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Judgment
Heard on admission.
With the consent of the parties, the matter is heard finally.
This revision has been filed by the applicants against the order dated 08.09.2016 passed by the Additional District Judge /FTC, Dantewada in Criminal Sessions Trial No. 52/2016 whereby learned trial Court framed charges against the applicants under Section 306/34 of IPC.
Brief facts of the case are that, Setram Sai is husband of deceased Shasmita Sai. Setram Sai is a constable in police department and posted at Police Station Dongargarh, District Rajnandgaon. Setram Sai is also occupying a government quarter in old police Bijapur, wherein his wife (deceased), nephew Kunj Bihari, Niece Mamta and two children were residing. Applicants Nandkumar Prajapati (head constable) and Rajaram ASI were residing in front of his quarter at Bijapur. Being neighbour, they are acquainted with his family and would also visit his quarter at Bijapur. On 09.12.2013 at about 5.45 PM, Setram Sai received a message on his mobile from the mobile No. of applicant No. 1 Rajaram. Setram Sai informed his wife that applicant No.1 has sent a dirty message which relates to your love relation. On 10.12.2013 his nephew Kunj Bihari informed over phone that Aunti (deceased) is not in the quarter. Setram Sai came to Bijapur, informed his father-in-law. When they searched for deceased, they found some blood stained earing, bangles and a letter written by deceased. On 10.12.2013, Satram Sai lodged a missing report at police Station Bijapur. On 02.02.2014, one female dead body was found on a branch of tree in the area of Singar bar forest. Dead body was identified as that of Shushmita Sai. After investigation, charge-sheet was filed against applicants and registered a crime under Section 306/34.
Learned trial Court, after hearing argument before charge, framed charges against applicants under Section 306/34 of IPC. Hence, this revision.
Learned counsel for the applicant submits that the allegation against the applicants is totally unsustainable because ingredients of offence under Section 306 of IPC is completely missing and no case under Section 306 IPC made out. There is no evidence that the mobile belongs to applicant No. 1 from which SMS was allegedly said to have been received in the mobile of Setram Sai (husband of the deceased). He further submits that there is no positive act on the part of applicants instigate or aid in committing suicide by the deceased and there is no proof that the letter was written by the deceased. Even if the allegation of persecution is accepted on its face value, no offence is made out against the applicant. So, both the applicants are liable to be discharged. In support of his argument, learned counsel for the applicants placed reliance in the matter of Premnarayan Arya v. State of MP passed on 27.06.2018 in CRR No. 2847/2018 and M. Arjunan v. State passed in [LAWS (SC) (2018) 1258]
On the other hand, learned counsel appearing for the State supported the impugned order.
Heard learned counsel appearing for the parties and perused the material available with due care.
At this juncture, it is appropriate to look into the provisions of Sections 306 and 107 of the Indian Penal Code, 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.
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 mission 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.
Exaplanation1. 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.
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 facilitate the commission thereof, is said to aid the doing of that act."
What is transpired from the charge-sheet is that respondent No. 2 received some SMS and he enquired about that SMS to his wife (deceased). But, it is nowhere mentioned in the charge-sheet that soon before the death of deceased, applicants met with the deceased or sent her SMS. All the messages were sent to the respondent No. 2 namely Satram Sai, and according to charge-sheet, all the conversations held with the Setram Sai only and on being asked by setram Sai to his wife that he will read over the messages tomorrow, thereafter, the deceased left the house.
The ingredient of suicidal letter allegedly written by deceased is as under:-
बदनाम से अच्छा मरजाउ,
बचे की अच्छे से रखना
इस SMS में प्रजापति का गलती है ना मेरा।
ना राजा का
ना मेरे पति का
मेरे को बदनाम करना चाहता है
प्रजापति को नही छोड़ना
आप की शसी
Even if the allegation of deceased is accepted as whole that some SMS was sent by applicant No. 1 Rajaram Yadav to decease's husband to tarnish her image, the ingredient of abetment are not attracted against the applicants.
M.P. High Court in Premnarayan (Supra) held that:-
"It is clear that a person can be said to have instigated another person, when he actively suggests or stimulates him by means of language, direct or indirect."
In Mahendra Singh v. State of M.P. [1995 (3) Supp SCC 731], the applicant was charged of an offence under Section 306 of the IPC basically based upon the dying declaration of the deceased, which reads as under.
"My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of those reasons and being harassed I want to die by burning."
In Mahendra (Supra), Hon'ble Apex Court has held that the charge and conviction of the appellant for an offence under Section 306 of the IPC was not sustainable merely on the allegation of harassment to the deceased. It is further held that none of the three ingredients of abetment are attracted on the statement of the deceased.
in the case in hand, what emerges from the material is that applicant No. 1 only sent some love and objectionable message to respondent No. 2, which, in view of the judgment of Hon'ble Apex Court in Mahendra (Supra) and judgment of High Court of M.P. in Premnarayan (Supra) do not attract the case under Section 306 of IPC. The possibility that something might have happened between the deceased and respondent No. 2 (husband of deceased), which led the deceased to take such extreme step, cannot be ruled out, and the offence under Section 306/34 IPC cannot be sustained against the applicants.
Consequently, in the light of above, the revision is allowed. The impugned order of framing charges against the applicants for alleged commission of offence punishable under Section 306/34 of the Indian Penal Code is set-aside. Applicants are discharged from the charge framed against them under Section 306/34 of IPC.