AI Structured Summary
Not yet generated for this judgment
Judgment
(PER : URMILA JOSHI-PHALKE, J.)
Heard. Admit. Heard finally with the consent of learned Senior Counsel Mr. A. S. Mardikar, Senior Counsel a/b Ved R. Deshpande for the applicants, learned APP Ms. Shamsi Haider for the non-applicant/State and despite service non appears for the non-applicant no. 2.
The present application is filed by the applicants for quashing of the First Information Report in connection with Crime No. 0432/2020 registered by the Goregaon Police Station, District Gondia, and the consequent proceeding arising out of the same bearing Sessions Trial No. 79/21 under Sections 306, 406, 420 read with Section 34 of the Indian Penal Code, 1860.
The First Information Report came to be registered on the basis of the complaint lodged by the non-applicant no. 2 Praju Sandeep Harinkhede wife of the deceased on an allegation that her husband namely Sandeep Harinkhede was working as Programmer since 2018 at District Rural Development Agency, Bhandara. Since few days he was under depression, and when the informant made enquiry about the same, deceased disclosed that, applicant no. 1 and 2 are having work to appoint for the post of Rural Housing Engineers under the Housing Scheme and for that purpose they used to take Rs. 20 to 25 thousand for the appointment of each candidate and out of which deceased used to take Rs. 5,000/-. After receipt of the payments from candidates, he used to deposit remaining amount through CDM Machine, Bhandara in the accounts of applicants. Accordingly, the applicants appointed a number of candidates. But after receiving of payments from some candidates they were not appointed and therefore the said appointed candidates frequently demanding the money from him as well as they also threatened the deceased to return their money back and as such deceased was not having any other choice but to commit suicide.
It is further alleged that, on 07.11.2020 one Rakesh Bisen came at the house of the deceased and demanded Rs. 25,000/- as he was not appointed, though deceased disclosed that, the amount was sent to the account of the applicant no. 2 as such he was unable to pay the same. On 09.11.2020 at about 08.00 a.m. deceased went to Gondia by informing the informant. On very same day when informant called her husband, at that time he told that he is at Gondia and both applicants have cheated him and and therefore, he is committing suicide and consumed the poison and committed suicide. On the basis of the said report police have registered the crime against the present applicants.
Learned Senior Counsel for the applicants submitted that, admittedly, the deceased was working along with the applicants and he was dealing with the various candidates, and therefore he was having an apprehension regarding the demand of the money from the candidates, and therefore he committed suicide. As far as the First Information Report is concerned, which is lodged after one month of the incident, the suicide note was also found along with the deceased after four, five days of the said incident. Therefore, the entire investigation is doubtful. He submitted that in catena of decisions, principle is laid down that to attract Section 306 of the Indian Penal Code, two basic ingredients — that an act of suicide by one person and abetment by another person — are to be established. In order to sustain a charge under Section 306 of the Indian Penal Code, it must necessarily be proved that the accused persons have contributed to the suicide by the deceased by some direct or indirect act. Abetment involves a mental process of instigating or intentionally aiding another person to do a particular thing. To bring a charge under Section 306 of the Indian Penal Code, the act of abetment would require the positive act of instigating or intentionally aiding another person to commit suicide. Without such mens rea on the part of the accused person being apparent from the face of the record, a charge under the aforesaid Section cannot be sustained. In view of that, he prays for quashing of the First Information Report.
Per contra, learned APP strongly opposed for the same and submitted that at the time of framing of charge, a strong suspicion is also sufficient to frame charge. Whether there was requisite mens rea or not is a matter of evidence. Overall material shows that the applicants have created certain circumstances which compelled the deceased victim to commit suicide. The various documents which are collected during the investigation sufficiently shows the prima facie case against the present applicants and the statements of the witnesses shows the psychological pressure on the deceased and therefore there was no alternate before him but to commit suicide and therefore the present applicants are responsible for the suicide by the deceased and therefore, at this stage, investigation material which is sufficient to frame the charge and, therefore, the application deserves to be rejected.
Despite the service of the notice none appears for the non-applicant no. 2.
It is a settled principle of law that at the stage of considering an application for quashing of the First Information Report, the court must proceed on the assumption that the material which has been brought on record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material and taken on its face value, disclose the existence of the ingredients necessary of the offence alleged. At this stage the reference of the judgment of the Hon’ble Apex Court in the case of State of Haryana & Others vs. Ch. Bhajan Lal & Others reported in 1992 Supp. (1) SCC 335, where in the parameters are laid down by the Hon’ble Apex court as far as the quashment of the First Information Report is concerned is also required to be taken into consideration:-
“(1)Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2)Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4)Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6)Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
Section 306 (Section 108 of the Bharatiya Nyaya Sanhita, 2023) of the Indian Penal Code defines abetment of suicide, which reads thus:
306.Abetment of suicide. - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Classification of offence. - The offence under this section is cognizable, non-bailable, non-compoundable and triable by Court of Session.
Section 107 of the Indian Penal Code (Section 45 of the Bharatiya Nyaya Sanhita, 2023) defines abetment of a thing, which reads thus:
107.Abetment of a thing. A person abets the doing of a thing, who—
First.—Instigates any person to do that thing; or
Secondly.—Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or
Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Illustration
A, a public officer, is authorised by a warrant from a Court of Justice to apprehend Z, B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.
Explanation 2.—Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.
Section 108 of the Indian Penal reads thus:
108. Abettor.—
A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.
Explanation 1.— The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act.
Explanation 2.— To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused.
Illustrations
(a)A instigates B to murder C. B refuses to do so. A is guilty of abetting B to commit murder.
(b)A instigates B to murder D. B in pursuance of the instigation stabs D. D recovers from the wound. A is guilty of instigating B to commit murder.
Explanation 3.— It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge.
Illustrations
(a)A, with a guilty intention, abets a child or a lunatic to commit an act which would be an offence, if committed by a person capable by law of committing an offence, and having the same intention as A. Here A, whether the act be committed or not, is guilty of abetting an offence.
(b)A, with the intention of murdering Z, instigates B, a child under seven years of age, to do an act which causes Z’s death. B, in consequence of the abetment, does the act in the absence of A and thereby causes Z’s death. Here, though B was not capable by law of committing an offence, A is liable to be punished in the same manner as if B had been capable by law of committing an offence, and had committed murder, and he is therefore subject to the punishment of death.
(c)A instigates B to set fire to a dwelling-house, B, in consequence of the unsoundness of his mind, being incapable of knowing the nature of the act,or that he is doing what is wrong or contrary to law, sets fire to the house in consequence of A’s instigation. B has committed no offence, but A is guilty of abetting the offence of setting fire to a dwelling-house, and is liable to the punishment, provided for that offence.
(d)A, intending to cause a theft to be committed, instigates B to take property belonging to Z out of Z’s possession. A induces B to believe that the property belongs to A. B takes the property out of Z’s possession, in good faith, believing it to be A’s property. B, acting under this misconception, does not take dishonestly, and therefore does not commit theft. But A is guilty of abetting theft, and is liable to the same punishment as if B had committed theft.
Explanation 4.— The abetment of an offence being an offence, the abetment of such an abetment is also as offence.
Illustration
A instigates B to instigate C to murder Z. B accordingly instigates C to murder Z, and C commits that offence in consequence of B’s instigation. B is liable to be punished for his offence with the punishment for murder; and, as A instigated B to commit the offence, A is also liable to the same punishment.
Explanation 5.— It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed.
Illustration
A concerts with B a plan for poisoning Z. It is agreed that A shall administer the poison. B then explains the plan to C mentioning that a third person is to administer the poison, but without mentioning A’s name. C agrees to procure the poison, and procures and delivers it to B for the purpose of its being used in the manner explained. A administers the poison; Z dies in consequence. Here, though A and C have not conspired together, yet C has been engaged in the conspiracy in pursuance of which Z has been murdered. C has therefore committed the offence defined in this section and is liable to the punishment for murder.
Section 306 of the Indian Penal Code talks about abetment of suicide and states that whoever abets the commission of suicide of another person, he/she shall be punished with imprisonment of either description for a term not exceeding ten years and shall also be liable to fine.
The said Sections penalizes abetment of commission of suicide. To charge someone under this Section, the prosecution must prove that the accused persons played a role in the suicide. Specifically, the accused's actions must align with one of the three criteria detailed in Section 107 of the Indian Penal Code. This means the accused either encouraged the individual to take their life, conspired with others to ensure the person committed suicide.
A question arises as to when is a person said to have instigated another. The word “instigate” means to goad or urge forward provoke, incite or encourage to do “an act” which the person otherwise would not have done.
It is well settled that in order to amount to abetment, there must be mens rea. Without knowledge or intention, there cannot be any abetment. The knowledge and intention must relate to the act said to be abetted which in this case, is the act of committing suicide. Therefore, in order to constitute abetment, there must be direct incitement to do a culpable act.
In Ramesh Kumar vs. State of Chattisgarh, reported in AIR 2001 SC 383, The Hon’ble Apex Court has analysed different meanings of “instigation”. The relevant para of the said judgment is reproduced herein:
“20.Instigation is to goad, urge forward, provoke, incite or encourage to do “an act”. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.”
Thus, Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.
The essential ingredients which are to be meted out in order to bring a case under Section 306 IPC are to be discussed and catena of decisions it is held that, in order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted.
In the light of the above said settled principles of law, if the facts of the present case are taken into consideration, admittedly, what was the exact act committed by the present applicants to abet the deceased to commit suicide is not stated by any of the witnesses. Admittedly, First Information Report is also lodged after six weeks of the incident. The suicide note was also found with the deceased after four, five days of the incident. In all, circumstances create doubts as to the prosecution case. Moreover, the statements of the witnesses are also perused, which nowhere states in what manner there was abetment at the hands of the applicants to the deceased.
Thus, combine reading of Sections 306, 107, and 108 of the Indian Penal Code, shows the requirement is a positive act on the part of the accused to instigate or aid in committing suicide and in the absence of the same, the conviction cannot be sustained. There has to be a clear intention to commit the offence for being held liable under Section 306 of Indian Penal Code.
By applying the above said principles to the facts of the present case, and even accepting the case as it is, it reveals that except the allegations that the present applicants have harassed him and there was no alternative but to commit suicide, no specific act is narrated by the witnesses in the statements. Thus, considering the same, and after having separate sifting of the evidence which is collected during the investigation, and after going through the investigation papers and considering the materials on record, it is difficult to hold that inference of grave suspicion can be raised against the applicants on the basis of the evidence on record. The material appears to be insufficient for subjecting the applicant to trial, and therefore the applicants have made out a case for quashing of the First Information Report.
As far as the offences punishable under Section 420 and 406 are concerned, the ingredient of the offence under Section 420 of IPC, for which the intention since inception is required, appears to be absent. In the present case, none of the statements shows that in what manner the cheating was committed by the present applicants by deceiving the deceased. On the contrary, the statements of the witnesses show that the deceased was working with the present applicants, he was assigned with the work to deal with the various applicants approaching for the job, and the disclosure made by him to the wife itself shows that he was dealing with the monetary transactions. As far as the amount he had deposited is concerned, it is not substantiated by any material, and therefore the offences under Section 420 and 406 are also not made out. In view of that, the application deserves to be allowed. Accordingly, we proceed to pass the following order: -
ORDER
Application is allowed.
The First Information Report in connection with Crime No. 0432/2020 registered under Sections 306 read with Section 34 of the Indian Penal Code, and consequent proceeding arising out the same Session Trial No. 79/21 is hereby quashed and set aside to the extent of present applicants.
The application is disposed of in the above said terms.