O R D E R

This revision petition under Section 397/401 of Cr.P.C. is filed to question the legality, validity and propriety of the impugned order dated 23.9.2021 whereby learned Ist Additional Judge, Damoh in

Sessions Case No. 115/21 framed the charge against the applicants.

2. No. 106/20 regarding death of Murat Singh was recorded at P.S. Pathariya. During the investigation, the Police recorded the statements of relatives of deceased and other persons. The Police filed the charge sheet under Section 306 of IPC.

3. PM, the applicant no. 2, Bhupendra Singh Lodhi abused and assaulted the deceased Murat Singh by means of a ‘Lathi’. He instantaneously reported said incident in the Police Station. At around 7.30 PM, when Murat Singh returned home, it is alleged that the applicant nos. 1 and 3 pressurized him to compromise the matter and further threatened him of dire consequences. Murat Singh consumed ‘Sulphas’, a poisonous substance and committed suicide. In turn, after investigation, charge sheet (Annexure A-1) was filed. The charges under Section 306/34 of IPC were framed by the Court below by order dated 23.9.2021.

4. declaration of Murat Singh dated 29.10.2020 shows that Bhupendra Singh allegedly assaulted him by means of ‘lathi’. Learned counsel for the applicant no.2 urged that an assault by means of lathi nowhere indicates that it can become reason for committing suicide. Thus, the applicant no.2 is incorrectly arraigned for committing offence under Section 306/34 of IPC.

5. when after lodging the report in the Police Station, Murat Singh reached his house, the applicant nos. 1 and 3 allegedly pressurised him for entering a ‘Rajinama’/compromise. Even assuming that the story so narrated in the dying declaration is correct, it does not attract Section 306 of IPC. Widow of Murat Singh namely Guddi Bai in her statement recorded under Section 161 of Cr.P.C. tried to improve the case. If her statement is compared with dying declaration the embellishment will be apparent.

6. instant case necessary factors to attract Section 106 or Section 306 of IPC are absent. Thus, the court below has committed an error in framing charge against the applicant. In support of his argument, (2010) 1 SCC 750 (Gangula Mohan Reddy Vs. State of Andhra Pradesh)

and anr. Vs. State of M.P. reported in I.L.R. (2011) M.P. 1089.

7. urged that Court below has not committed any error of fact or law in framing the charge by order dated 23.09.2021. It is argued that dying declaration shows that applicant No. 2 has caused a lathi injury on deceased Moorat Singh. After lodging report about said incident when he came to his house, the applicant No. 1 and 3 came there and further threatened him. Since, no action was taken by police and Moorat Singh had no option but to commit suicide, he took that extreme step. Thus, it cannot be said that necessary factors for invoking Section 306 are absent. Shri Baghel, learned Dy. (2012) 9 SCC 734 (Praveen Pradhan Vs. State of Uttaranchal and another)

8. objector/respondent No. 2 borrowed the argument of Govt. counsel and argued that trial is in progress. Certain prosecution witnesses have already deposed their statements. The Court below best suited to take decision on merits.

9.

10. show and establish the element of instigation. The apex Court in the Sanju @ Sanjay Singh Sengar Vs. State of Madhya

Pradesh (AIR 2002 SC 1998)

13…………….. Even if we accept the prosecution story that the appellant did tell the deceased “to go and die”, that itself does not constitute the ingredient of “instigation”. The word “instigate” denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or on the spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotion.

(Emphasis supplied

Sanju (supra), deceased ‘to go and die. Yet Apex Court opined tha