1 - Rajesh Rathiya S/o Hewanand Rathiya Aged About 34 Years, 2 - Jaikishor v. State of Chhattisgarh Through Station House Officer, P.S. Tamnar, District Raigarh, Chhattisgarh
Case Details
1 2025:CGHC:21010 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 657 of 2016 1 - Rajesh Rathiya S/o Hewanand Rathiya Aged About 34 Years, 2 - Jaikishor Rathiya S/o Banmali Rathiya Aged About 24 Years, Both are R/o Village Urba, Thana Tamnar, Civil and Revenue District Raigarh, District Raigarh, Chhattisgarh. ... Appellants versus State of Chhattisgarh Through Station House Officer, P.S. Tamnar, District Raigarh, Chhattisgarh. ---- Respondent ___________________________________________________________ For Appellants : Mr. Sourabh Sonwani, Advocate appears on behalf of Mr. Sanjay Agrawal, Advocate For State/Respondent : Mr. Rishabh Singh Deo, P.L. ___________________________________________________________ Hon'ble Shri Justice Arvind Kumar Verma Judgment on Board 07/05/2025 1. This appeal has been preferred by the appellants being aggrieved 2 with the judgment of conviction and order of sentence dated 09.05.2016 passed by the 5th Additional Sessions Judge, Raigarh, District Raigarh (C.G.) in Sessions Trial No.59/2013, whereby the trial Court has convicted and sentenced the each appellant as under : Conviction Sentence In Default of payment of fine Section Under 306/34 of the IPC R.I. for 07 years and fine amount of Rs.2,000/- Additional for 03 months RI
Legal Reasoning
2. Facts of the case in brief is that on 18.11.2012, Kartikeshwar fair was organized in village Urba, where during Bhajan Kirtan, deceased Jagan Sen was creating a ruckus after consuming alcohol. Then the accused kicked, punched and beat him with sticks and chased him away. On this matter, the deceased committed suicide by hanging himself from a Mahua tree on 19.11.2012 in the morning. 3. The information of which was given to Tamnar police station. On the basis of which, Tamnar police station registered a first information report against the accused and the case is under investigation. 4. The case was taken and after investigation, a charge sheet for the 3 crime under Section 306/34 of IPC was filed against the accused before the Court of Judicial Magistrate First Class, Gharghodha. 5. Criminal case No.268/2013 was registered against the accused by Judicial Magistrate First Class, Gharghoda and on the basis of the case being exclusively triable by the Sessions Judge, the case was surrendered to the Sessions Judge, Raigarh by the summation order dated 10.04.2013. 6. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. On completion of investigation, a charge-sheet was filed. The trial Court framed charge against the appellant as mentioned earlier. 7. In order to bring home the offence, the prosecution examined as many as 17 witnesses. Statement of the appellant under Section 313 of the Cr.P.C. was recorded, wherein he pleaded innocence and false implication. 8. After completion of the trial, the trial Court convicted and sentenced the appellants as mentioned in paragraph one of this judgment. Hence, this appeal. 9. Learned counsel appearing for the appellants submits that trial Court has wrongly convicted the appellants without there being any sufficient evidence available on record against him. He further 4 submits that if the entire case of prosecution is taken as it is, the act committed by the appellant does not fall within the purview of Section 306 of the IPC. There in no conclusive evidence available on record which shows that the appellants had in any manner instigated or abetted the deceased to commit suicide, as defined under Section
Legal Reasoning
107 of the IPC. Reliance has been placed by learned Counsel for the appellant on certain judgments passed by the Supreme Court in the case of Mahendra K.C. Vs. State of Karnataka and Another reported in (2022) 2 SCC 129, Ramesh Kumar Vs. State of Chhattisgarh reported in (2001) 9 SCC 618 and M. Mohan Vs. State Represented by the Deputy Superintendent of Police reported in (2011) 3 SCC 626. The trial Court has not evaluated the entire evidence in its right perspective, therefore, same is liable to be set aside. 10. On the other hand, learned Counsel appearing for the State opposed the arguments advanced by learned Counsel for the appellants and submitted that on appreciation of the evidence available on record, the trial Court has rightly convicted the appellants. 11. I have heard learned Counsel appearing for the parties, perused the order impugned including the evidence adduced by the prosecution before the Trial Court with utmost circumspection. 5 12. Sadanand (PW-1), who is son of the deceased stated that on the date of incident, Kartikeshwar fair was organized in village Urba. His father and his sister Poonam went to perform Bhajan Kirtan. His father was dancing. While his father was dancing, two accused dragged him to the electric pole and kicked him. After that they trampled his father's leg (pressed his stomach with their feet) and tied his father's hands and legs and they fled away from the spot. His father died there itself. Poonam (PW-2), daughter of the deceased also supported the version of his brother- Sadanand (PW-1). 13. Nanhuram (PW-3), father of the deceased has stated that on 19.11.2012, his son was found hanging from a Mahua tree in Darripara. His son was killed and hung. The villagers killed his son by beating with sticks. 14. The question in the present case is whether on considering the entire available material to be correct a prima facie case for alleged commission of offence under Section 306 of the Indian Penal Code is made out against the appellants or not? 15. At this juncture, it is appropriate to look into the provisions of Sections 306 and 107 of the Indian Penal Code, which run thus: “306. Abetment of suicide.-If any person commits suicide, whoever abets the commission of such suicide, 6 shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 07. 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 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. 7 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.” 16. As per the definition given in Chapter-V of Section 107 of the Indian Penal Code, and abetment is constituted by any one of the following three ingredients: I. it is necessary for the prosecution to prove that the accused aided, abetted, counselled or procured the commission of the principal offence; II. that the principal offence was in fact committed; and III. that he had the intent to aid or encourage its commission. 17. A person is said to “instigate” another to an act, when he actively suggests or stimulates him to the act by any means of language direct or indirect whether it takes the form of express solicitation or of hints, insinuation or encouragement. The word “instigate” means to goad, urge forward, provoke, incite or encourage to do an act. 18. As Section 306 of the Indian Penal Code makes abetment of commission of suicide punishable, therefore, for making liable for an 8 offence punishable under Section 306 of the Indian Penal Code, it is the duty of the prosecution to establish that such person has abetted the commission of suicide and for the purpose of determining the act of the accused, it is necessary to see that his act must fall in any of the three ingredients as enumerated under Section 107 of the Indian Penal Code and, therefore, it is necessary to prove that said accused has instigated the person to commit suicide or must have engaged with one or more persons in any conspiracy for seeking that the deceased commits suicide or he must intentionally aid by any act or illegal commission of the suicide by the deceased. 19. In the case of Ramesh Kumar (supra), it has been observed by the Supreme Court as under: “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 9 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. 21. In State of W.B. v. Orilal Jaiswal, (1994) 1 SCC 73, this court has cautioned that the court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for purpose of finding whether the cruelty meted out to the victim had in fact induced her end her life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide 10 should be found guilty.” 20. Dealing with the issue it has been observed by Hon’ble Supreme Court in the case of Gangula Mohan Reddy v. State of Andhra Pradesh reported in 2010 CRI. L.J 2110 that : “18. In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day-to-day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation. 19. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) 2009 (11) SCALE 24, had an occasion to deal with this aspect of abetment. The court dealt with the dictionary meaning of the word “instigation” and “goading” The court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person’s suicidability pattern is different from the others. Each person has his own idea of self esteem and self respect. Therefore, it is impossible to lay down any straightjacket formula in dealing with such cases. Each case has to be decided on 11 the basis of its own facts and circumstances. 20. 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.” 21. In the case of M. Mohan (supra), the Supreme Court, by the following observation, has clearly held that in order to convict a person under Section 306 of the Indian Penal Code there has to be a clear mens rea to commit the offence: “45. 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.” 22. In the light of aforesaid enunciation of law, the facts of the present case are to be examined. 12 23. Dead body of the deceased was examined by Dr. Dhansingh Paikra (PW-16). He stated that he posted as Medical Officer in Community Health Center, Tamnar since 2005. On 20.11.2012, Constable Geetaram Rathia No. 634 brought the deceased Yagyasen Nishad, to him for post- mortem. During the external examination of the dead body, he found that the body of the deceased was lying in a mute state on the mortuary table. He was of normal height. There was stiffness in the body. Both eyes were closed. The tongue was pressed between the teeth. There was blood coming out of the nose. Ligature mark was present on the neck. The hyoid bone was broken, on touching it was found to be a fracture of the bone. The knot of hanging was on the right side of the neck and saliva was coming out of the mouth on the left side. Semen and stool were coming out. Both knees were bruised, there were injury marks. The left thigh was also bruised, there were injury marks. In the internal examination, he found that both the lungs were congested. The heart was empty, the stomach had the smell of alcohol and half-digested food. There was gas in the small intestine and stool in the large intestine. The liver, spleen, kidney were congested and there was redness in them. The urinary bladder was empty. According to him, the death of the deceased was due to “asphyxia”. The nature of which was suicidal. My post mortem report is Ex.P-16. 24. In his cross-examination, this witness has deposed that the blood 13 found on the body of the deceased was the result of the tongue being cut by the teeth due to hanging. It is correct to say that it is not mentioned in Ex.P-16 whether the injury he has mentioned on the body of the deceased is antemortem or postmortem. 25. Considering the facts of the case is that on the date of incident, i.e., on 18.11.2012, Kartikeshwar fair was organized in village Urba, it is alleged that during Bhajan Kirtan, deceased Jagan Sen was creating a ruckus after consuming alcohol. Then the accused kicked, punched and beat him with sticks and chased him away. On this matter, the deceased committed suicide by hanging himself from a Mahua tree in the morning of 19.11.2012. 26. Further, considering the the facts of the case and the opinion given by the doctor (PW-16), who conducted the post mortem of the body of the deceased, it transpires that the death of the deceased was due to “asphyxia”. The nature of which was suicidal, therefore, there is no evidence to show that any type of instigation made by the appellants to the deceased. It is also transpires from the record that there is nothing to show that the appellants intentionally adduced, by any act or illegal omission of doing that thing, in considered view of this Court, this particular reason cannot be constituted for the offence punishable under Section 306 of the IPC against the appellants for their guilt. The act and conduct of the appellants as stated by the above mentioned witnesses 14 does not fall within the manner of instigation or abetment as defined under Section 107 of the IPC. 27. In case of Kumar @ Shiva Kumar Vs. Sate of Karnataka reported in 2024 SCC Online SC 216, the Hon’ble Supreme Court reiterated that to commit the accused for committing the offence of abetment to suicide under Section 306 of the IPC, it must be proved by the prosecution that the accused, by his acts or omission or by a continued course of conduct, created situation that the deceased was left with no other option except to commit suicide. 28. The Hon’ble Supreme Court in another case of Kamaruddin Dastagir Sanadi Vs. State of Karnataka Through SHO Kakati Police reported in AIR 2025 SC 153 has held as under: “29. There is no direct evidence adduced by the prosecution to prove that the accused-appellant has in any way instigated or provoked the deceased to commit suicide. The accused- appellant on asking of the deceased had simply refused to marry her which is not a positive act on his part with any intention to abet the crime of suicide. 30. If we examine the instant case on the touch stone of the above principles of law, we find that the 15 accused-appellant had simply refused to marry the deceased and thus, even assuming there was love between the parties, it is only a case of broken relationship which by itself would not amount to abetment to suicide. The accused-appellant had not provoked the deceased in any manner to kill herself; rather the deceased herself carried poison in a bottle from her village while going to Kakati, Karnataka with a predetermined mind to positively get an affirmation from the accused-appellant to marry her, failing which she would commit suicide. Therefore, in such a situation simply because the accused- appellant refused to marry her, would not be a case of instigating, inciting or provoking the deceased to commit suicide.” 29. Reverting the fact that in this case there is no evidence that the appellants had instigated the deceased. For offence under Section 306 of IPC there should be clear mens-rea to commit the abetment and there should be a direct or active act by the appellants which lead the deceased to commit suicide. Intentionally aiding a person to do a thing also includes in abatement, but from the record it cannot be inferred that the appellants instigated or intentionally aided the 16 deceased to commit suicide. 30. For the foregoing reason judgment of conviction and order of sentence passed by the trial Court is set aside. The appeal is allowed. The appellants are acquitted of the charge under Section 306/34 of the IPC. 31. Accordingly, the criminal appeal is allowed. 32. It is reported that the appellant is on bail. His bail bonds are not discharged at that stage and the same shall remain operative for a further period of six months in light of Section 481 of BNSS, 2023. 33. Records of the Court below be sent back along with a copy of this order forthwith for information and necessary compliance. Sd/- (Arvind Kumar Verma) Judge Vasant