1. The cardinal question that emerges for consideration in this petition is whether the III Additional Sessions Court at Shajapur is justified in framing
the charge against the petitioners for the offence punishable under Sections 306 of the Indian Penal Code in ST No.26/2019 by the impugned order
dated 11th May, 2019.
2. The facts in detail need not be stated, for the controversy really lies in a narrow compass. On 25/08/2018 Shailendra @ Sonu Sharma committed
suicide at his home by hanging, leaving suicide-note wherein he levelled allegations of harassment by the petitioners, on account of demand of loan
amount from him. The police registered crime No.132/2018 under Section 306/34 of IPC and after investigation filed the charge-sheet.
3. It is submitted by the learned counsel for the petitioners that no case is made out on the basis of evidence collected by prosecution during
investigation. He took me through the statement of the wife of the deceased and the other witnesses and submitted that the police have recorded
statements of wife of the deceased. She has only stated that her husband was puzzled and scared and he told her that full amount has been paid to the
petitioners even then they are demanding money charging interest @ 10%-20%. She only expressed doubt that due to stress caused or pressure
created by the petitioners for refund of money; her husband might have committed suicide. No constituent enumerated under Section 107 of IPC is
present in the evidence collected by the prosecution and filed before the Court with the charge-sheet. It is asserted by the learned counsel that even if,
all this evidence is taken into consideration; no case under Section 306 of IPC is made out; therefore, charges framed against the petitioners must be
quashed.
4. The prosecution has opposed the prayer and submitted that wife of the deceased has disclosed before the police the reason of suicide and other
witnesses have supported her statement, therefore, prima facie sufficient evidence is available on record to frame the charges. The Court cannot
consider the effect and impact of the statement of witnesses recorded under Section 161 of Cr.P.C. on the prosecution case and also cannot
appreciate the contradictions and omissions at this stage and prayed for dismissal of the present petition.
5. Before parting with the evidence, apt would be the assessment of the legal proposition consistently pronounced in this regard. Section 107 IPC
reads thus :-
107. 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 willful 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 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.
6. The Hon’ble Supreme Court in State of Kerala and Ors. Vs. S. Unnikrishnan Nair and Ors. AIR 2015 SC 335 1has discussed various
authorities on the subject. Relevant paras of the judgment pronounced by Hon’ble Justice Deepak Misra reads thus:
11. The aforesaid provision was interpreted in Kishori Lal v. State of M.P (2007) 10 SCC 797 : (AIR 2007 SC 2457 b)y a two-Judge Bench and the
discussion therein is to the following effect:
Section 107, IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in IPC. A person, abets the doing
of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that
thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word
instigate"" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or
intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment
and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original
offence. ""Abetted"" in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the
abetment is normally linked with the proved offence.
7. In Analendu Pal alias Jhantu v. State of West Bengal (2010) 1 SCC 707 : (AIR 2010 SC 512 d)ealing with expression of abetment the Court
observed:-
The expression ""abetment"" has been defined under Section 107, IPC which we have already extracted above. A person is said to abet the
commission of suicide when a person instigates any person to do that thing as stated in clause Firstly or to do anything as stated in clauses Secondly or
Thirdly of Section 107, IPC. Section 109, IPC provides that if the act abetted is committed pursuant to and in consequence of abetment then the
offender is to be punished with the punishment provided for the original offence. Learned counsel for the respondent State, however, clearly stated
before us that it would be a case where clause Thirdly of Section 107, IPC only would be attracted. According to him, a case of abetment of suicide is
made out as provided for under Section 107, IPC.
8. In Netai Dutta (AIR 2005 SC 1775) (supra), a two-Judge Bench, while dealing with the concept of abetment under Section 107, I.P.C. and,
especially, in the context of suicide note, had to say this:
In the suicide note, except referring to the name of the appellant at two places, there is no reference of any act or incidence whereby the appellant
herein is alleged to have committed any wilful act or omission or intentionally aided or instigated the deceased Pranab Kumar Nag in committing the
act of suicide. There is no case that the appellant has played any part or any role in any conspiracy, which ultimately instigated or resulted in the
commission of suicide by deceased Pranab Kumar Nag. Apart from the suicide note, there is no allegation made by the complainant that the appellant
herein in any way was harassing his brother, Pranab Kumar Nag. The case registered against the appellant is without any factual foundation. The
contents of the alleged suicide note do not in any way make out the offence against the appellant. The prosecution initiated against the appellant would
only result in sheer harassment to the appellant without any fruitful result. In our opinion, the learned single Judge seriously erred in holding that the
First Information Report against the appellant disclosed the elements of a cognizable offence. There was absolutely no ground to proceed against the
appellant herein. We find that this is a fit case where the extraordinary power under Section 482 of the Code of Criminal Procedure is to be invoked.
We quash the criminal proceedings initiated against the appellant and accordingly allow the appeal.
9. In M. Mohan (2011) 3 SCC 626 : AIR 2011 SC 1238) (supra), while dealing with the abetment, the Court has observed 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 intention of the Legislature and the ratio of the cases decided by
this court are clear that in order to convict a person under section 306, IPC there has to be a clear mens rea to commit the offence. It also requires an
active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such
a position that he/she committed suicide.
10. In a recent judgment passed in Gurcharan Singh v. State of Punjab AIR 2017 SC 74 the Apex Court held that the basic ingredients of provision of
Section 306 of IPC are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or
instigate the commission of suicide is imperative. Any severance or absence of any of these constituents would militate against this indictment.
Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualize the suicide would fall short as well of the offence of
abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, culpability and complicity of the indictable acts or omission are the
concomitant indices of abetment. Section 306 IPC, thus criminalizes the sustained incitement for suicide. If there is no reference or disclosure of any
specific incident in support thereof, the materials on record do not suggest even remotely any act of cruelty, oppression, harassment or inducement so
as to persistently provoke or compel the deceased to resort to self-extinction being left with no other alternative and no such continuous and proximate
conduct of the appellant or his family members with the required provocative culpability or lethal instigative content is discernible to even infer that the
deceased and her daughters had been pushed to such a distressed state, physical or mental that they elected to liquidate themselves as if to seek a
practical alleviation from their unbearable earthly miseries, it could be said that the ingredients of the offence of Section 306 of IPC have remained
unproved and thus, the appellant deserves to be acquitted.
11. In this regard, we can further refer Jalam vs. State of M.P. 2014 CRI.L.J. 360, Ajay Patodia vs. State of M.P. 2004 CRI.L.J. 197, Surendra
Pathak vs. State of M.P. 2016 CRI.L.J. 762, Sanju @ Sanjay Singh Sengar Vs. State of M.P. AIR 2002 SC 1998.
12. Reverting back to the case in hand, I have gone through the evidence collected during investigation and submitted with the charge-sheet.
13. All these statements; if taken in toto even then they do not constitute offence of abatement to commit suicide. No evidence is there to show that
the intention of the petitioners in demanding their money back was to instigate the deceased to commit suicide. Neither there is any evidence of
persistent pressure, harassment or torture from the petitioner’s side nor any evidence that they have ever prompted the deceased in such a
manner that one may apprehend that in case of non-refund of money, they will kill him or will harm him in such a manner that to avoid such condition
a common prudent man may take a decision to self extinction. There is no cogent evidence that either by words or by any action, the petitioners have
forced the deceased to commit suicide. Demand of money credited does not amount to instigate committing suicide. For framing charge under Section
306 of IPC there has to be a mens rea to impel or incite the subject to commit suicide. It also requires an active or direct act, which lead the deceased
to commit suicide and this act must push the deceased into such a position that he sees no option except to annihilate his own life.
14. On a plain reading of the statement of the witnesses, it is difficult to hold that there had been any abetment by the petitioners. Entire material
available on record and the law which has been reiterated several times by the Courts in various pronouncement and in view of the legal provisions, if
we take the allegations made in the first information report or in the statements of the witnesses at their face value and accept them in their entirety,
even then it does not constitute the offence alleged against the petitioners. The prosecution manifestly fails to prove the charge by adducing clear and
sufficient evidence to hold the petitioners guilty.
15. On considering the above submissions, I find that there is no other evidence on record to indicate that the accused in any way abetted suicide.
Besides documentary evidence has been produced by the police; clearly indicated that the deceased Shailendra @ Sonu Sharma used to borrower
money then under the circumstances, it cannot be said that the demanding money back was an act of harassment to the deceased. In the matter of
Devendra Singh vs. State of M.P. 2007 (III) MPWN 95 suicide note contains the name of the accused petitioner undoubtedly, however the Court held
that it cannot be demand of money or loan amount or the alleged threatening in connection with the demand of money cannot be said to be a
provocation for committing suicide under Section 107 of the IPC, which defines abetment of thing and involvement of instigating or intentionally aided
by any act of illegal omission and, therefore, there must willful misrepresentation, or by willful concealment of a material fact which he is bound to
disclose, voluntarily causes or procures for a thing to be done.
16. In the result, I do perceive merits in the petition by placing reliance on the judgments cited above. The assessment of the evidence on record does
not demonstrate with any role of the petitioners, as contemplated by the above provisions, so as to return an unassailable finding of their criminality
under Section 306 IPC. Therefore, present petition deserves to be and is hereby allowed. The impugned order dated 11/05/2019 is hereby set-aside
and charge framed under Section 306 of IPC against the petitioners registered at Crime No.132/2018 passed in S.T. No 68/2019 is hereby quashed.
Petitioners are set at liberty. Their bail bonds be discharged.
17. The Revision is allowed to the extent indicate above. C.C. as per rules.