@JUDGMENTTAG-ORDER
T.S. Doabia, J.
The petitioner submits that there is no basis for framing a charge u/s 306 of the Indian Penal Code. He submits that the order passed by the Court below on 26th of April, 1994 and the consequent charge framed u/s 306 is liable to be set aside. The brief facts for the purposes of this petition be noticed as under:
There is a dying declaration of Deokinandan deceased. He stated as under : (English rendering)
Jagdish Agrawal keeps on harassing (pareshan) me. In spite of the fact that complaints have been lodged, he does not pay any heed. For this reason, I have taken Dawa." By ''Dawa'' he meant the medicine which was kept for preserving foodgrains. He has further stated that:
I worship at Bhujariyan Talab temple. By making me run away from there, he wants to occupy the temple. For this purpose, I was perturbed (Pareshan). He has been harassing me for the last three-four years.
To the same effect is the statement of other witnesses recorded during investigation.
The short question which has been raised by the learned counsel for the petitioner is that this is not a case which would fall u/s 306 of I. P. C. He further submits that none of the ingredients of abetment as used in section 107 of the I. P. C. are attracted in the instant case. This section reads as under:
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 of illegal omission take 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 willful 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 the commission of an act, does anything in order to facilitate the com-(sic) of that act, and thereby facilities the commission thereof, is said to aid the doing of that act''.
I am of the view that there is merit in the contention raised by the learned counsel for the petitioner. There is no evidence on record that any suggestion was made by the accused that the deceased should put an end to his life. The position of law is an under :-
In Panchram and Samailal v. State of M.P. 1971, JLJSN 80, the prosecution story was that the accused had developed a love affair with another lady and he started neglecting his wife. With this neglect being shown by the husband, the wife drenched herself with kerosene oil and burnt herself. This Court came to the conclusion that offence u/s. 306 could not be said to be made. The requirement to show that positive steps were taken with a view to induce the person concerned to commit suicide was held to be imperative.
In Tej Singh v. State of M.P. and 4 Others. 1985 C. Cri L.J. 202, it was observed that merely because evidence is brought on the record that there was some quarrel between the accused and the person who committed suicide, this would not amount to abetment.
To the same strain is the view expressed Mahaveer Singh and Others v. State of M.P., 1987, (sic) 403.
Basant Kumar and Others v. State of M.P. 1991 JLJ 175 is again an authority for the proposition that mere misbehaviour on the part of the accused cannot be equated with abetment.
In Deepak v. State of M.P., 1994 Cri. L. J. 677, in a dying declaration it was stated that accused had entered her room and caught hold of her and asked her to allow them to have sex and when she refused they threatened to defame and to rape her. The accused did not commit sexual intercourse with her. One hour after this incident, she poured kerosene oil on her body and set herself a fire.
It was held that a case u/s. 306 cannot be said to have been made out.
In Dinesh Chandra v. State of M.P. 1988 I1 MPWN 84, the person who committed suicide made a statement to the effect that he wants to put an end to his life as he is being harassed by his father, brother and sister-in-law. He has further stated that he is going to a place where there would be none to harass (pareshan) him.
Reliance is also being placed on a decision given by this Court in
A recent decision of the Supreme Court reported as Mahendra Singh v. State of M.P. AIR 1995 SCW 4570 may also be noticed. In this case, the charge u/s 306 of the Indian Penal Code was based on a dying declaration of the deceased. This stands reproduced in the judgment of the Supreme Court and the same be noticed :
My mother-in-law and husband and sister-in-law (husband''s elder brother''s wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning.
The Supreme Court was of the view that the ingredients of abetment are not attracted and a case u/s 306 of the Indian Penal Code cannot be said to be made out.
Thus, the petitioner has been able to make out a case that from the evidence which has been brought on recorded, there is nothing to suggest that the petitioner was aiding or he committed any overt act which resulted in abetment. There is nothing on record that there was any instigation, on any positive step was taken by the petitioner. If the case does not fall within the definition of the term "abetment" then the question of holding the petitioner guilty u/s. 306 would not arise.
The learned counsel for the petitioner submits that the Court while framing of charge is not to act mechanically but it is supposed to apply its mind and find out if all the ingredients of the offence are present. Reliance is being placed on Niranjan Singh Karam Singh v. Jitendra Bhimrai, 1991 I MPWN 49. The relevant observations made are to the effect that it is the duty cast on the Judge to apply his mind to the material on record and the charge should be framed if only if there is sufficient material.
The position in this case is not different. There is no suggestion that any positive step'' was taken by the petitioners to induce the deceased to commit suicide. In this view of the matter, I am of the opinion that no useful purpose would be served by proceeding with the matter any further.
This petition is accordingly, allowed. The charge framed against the petitioner is quashed.
