2002 Supreme(MP) 166

Dipak Misra, J.
Laxmi Prasad Vishwakarma v. State of M.P.
Cr. Revn. No. 816 of 2001 (J); Decided onl 7.2.2002.*

Headnote:(1) Penal Code, 1860 -- Ss. 306 and 107 -- borrower saying to creditor that he may commit suicide -- it does not amount to instigation -- any conversation between borrower and creditor -- does not amount to abetment to commit suicide.

       

        (2) Criminal P.C., 1973 -- S.228 -- charge under S.306 IPC framed on conversation between creditor and borrower -- liable to be quashed.

       

        ¼1½ naM lafgrk] 1860 && /kkjk 306 rFkk 107 && m/kkj ysus okys dk ysunkj ls dguk fd og *vkRegR;k* dj ysxk && ;g mdlkus ds rqY; ugha && m/kkj ysus okys rFkk ysunkj ds chp dksbZ Hkh ckrphr && vkRegR;k djus ds nqiszj.k ds rqY; ugha gSA

       

        ¼2½ naM izfdz;k lafgrk] 1973 && /kkjk 228 && ysunkj rFkk m/kkj ysus okys ds chp ckrphr ds vk/kkj ij /kkjk 306 Hkk-n-ala- ds v/khu fojfpr vkjksi && vfHk[akfMr fd, tkus ;ksX; gSA

       

        The accused, Laxmi Prasad, has called in question the legal validity of the order dated 16.7.2001 passed in Sessions Trial No. 52/2001 whereby the learned trial Judge has framed charge under section 306 of the Indian Penal Code (in short IPC).

       

        The facts as have been unfurled are that the petitioner is a resident of Azad Ward. Kandeli, Narsinghpur. An FIR was lodged against him by H.P. Singh, Sub Inspector. Kotwali Narsinghpur on the ground that the petitioner had abetted in causing suicide of Mahendra Kothari and hence, he had committed an offence under section 306 IPC. After the matter was committed to the Court of learned that Judge question of framing of charge arose and the petitioner pleaded that ingredients of offence punishable under section 306 were not satisfied and, therefore, framing of charge in regard to that offence is untenable. The aforesaid stand of the petitioner was negatived and charge was framed by the learned trial Judge.

       

        Assailing the aforesaid order it is submitted by Mr. Shashank Upadhyaya, learned counsel for the petitioner, that even if the allegations are accepted in entirety, no offence under section 306 IPC is made out and therefore, framing of charge under that offence is totally unwarranted. Pyramiding his submission it is urged by him that if the concept of abetment as defined under section 107 IPC is understood in proper perspective, the instant case does not indicate any kind of abetment at the instance of the petitioner and, therefore, he is entitled to an order of discharge.

       

        Mr. Robertson, learned Government Advocate for the State, sounding a contra note combated the submission of Mr. Upadhyaya by stating that the present petitioner had harassed the deceased and, therefore, the factum of abetment cannot be totally ruled out and this is not a case where this Court should dwell upon the same.

       

        It is not inapposite to mention here that this Court by order dated 20.11.2001 had directed the learned counsel for the State to requisition the case diary and in pursuance of the said direction case diary has been requisitioned. Learned Government Advocate has read the statement of wife of the deceased Smt. Rajni Kothari and another witnesses Poonam Chand and canvassed that the accused-petitioner had abetted in the commission of Clime and there is no escape from the conclusion that an offence under section 306 IPC is prima facie made out. Learned Government Advocate did not refer to any other statement on record except referring to aforesaid two statements recorded under section 161 CrPC.

       

        I have carefully perused the aforesaid two statements. On a scrutiny of the same it transpires that Laxmi Prasad had borrowed a sum of Rs.4,00,000/- from the deceased and on demand being made by Late Mahendra Kothari on number of occasions the petitioner did not pay the same. All attempts made by the deceased became an exercise in futility. From the statement of Rajni Kothari it is manifest that her husband had told her about the anguish and agony he had suffered by such non-payment and had also indicated about the harassment meted to him. From the statement of Poonam Chand it is perceptible that he had also slated that petitioner had availed substantial sum from the deceased but was playing hide and seek to repay the loan. As alleged, under these circumstances, unable to bear the financial crunch and the agony the deceased committed suicide. It is also highlighted by Mr. Robertson that the wife has stated in her 161 CrPC statement that deceased had told Laxmi Prasad that if the amount was not paid to him he would commit, suicide by hanging himself and at that juncture Laxmi Prasad told him that he may take recourse to same if he was proud of his legitimacy.

       

        In view of the aforesaid factual backdrop the core question that falls for consideration is whether an offence under section 306 of the Indian Penal Code is made out against the petitioner. In this context I may profitably refer to section 306 of the Indian Penal Code. The said provision reads as under:

       

       "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 extent to ten years, and shall also be liable to fine. "

        In this context it is also useful to refer to section 107 of the Indian Penal Code. It reads as under:

       "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.

       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."

        This Court had the occasion to consider the import of section 107 in the case of Vedprakash Tarachand Bhaji v. State of Madhya Pradesh, 1994 JLJ 758 = 1995 MPLJ 458. In the said case this Court expressed the view as under :-

       "10. As per definition given in section 107 of the Indian Penal Code abetment is constituted by.:

       (i) Instigating a person to commit it; or

       (ii) engaging in a conspiracy to commit it; or

       (iii) intentionally aiding a person to commit it.

       11. 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 or urge forward to provoke, incite, urge or encourage to do an act. In the present case none of the accused goaded or urged forward, provoked, incited or urged or encouraged the deceased to commit suicide......"

        The factual matrix of the present case has to be tested on the touch stone of the aforesaid enunciation of law. The allegation on record do not indicate in any manner, whatsoever, that Laxmi Prasad has instigated the deceased to do a particular act. The allegations on record would not cover the act of the petitioner in any of the clauses occurring in section 107 IPC. Mr. Robertson, learned Government Advocate, endeavoured hard to contend that the act of the petitioner would come within the clause firstly as he had told that the deceased may commit the suicide. In my considered opinion this is not an act of instigation. Instigation in law has a different concept. If all the clauses in section 107 are scan red in proper perspective it would be clear that there is no instigation or any illegal omission. The act is also not covered by the explanations. The learned Government Advocate also tried to rely on the illustration. The illustration is connectable with Explanation No.1. In my considered opinion the illustration has no relevance in a case of this nature. There is nothing on record to show that the petitioner did anything by which it can be said that he abetted in the suicide of the deceased. The relationship between the petitioner and the deceased was that of person granting loan and a borrower. Any dialogue taking place in that regard cannot be regarded as an abetment to bring the offence under essential feature of section 306 IPC. I may hasten to add the abetment in the case of dowry death and other cogent matters has a different feature but as far as commercial transaction of this nature is concerned, in my considered view, section 306 is not attracted. In the result, the order of framing charge against the petitioner under section 306 is quashed.

       

        11. The Criminal revision is accordingly allowed.