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CASE NO.:

Appeal (crl.) 572 of 2002

PETITIONER:

SANJU @ SANJAY SINGH SENGAR

Vs.

RESPONDENT:

STATE OF M.P.

DATE OF JUDGMENT: 01/05/2002

BENCH:

M.B. Shah & H.K. Sema

JUDGMENT:

SEMA, J

Leave granted.

Heard Mr. R.P. Gupta, learned Senior counsel on behalf

of the appellant and Mr. B.S. Banthia, learned counsel on behalf of

the respondent.

The appellant felt aggrieved by an order dated 2nd July,

2001 passed by the Additional Sessions Judge, Sihora, in sessions

trial No.469 of 1998 whereby the appellant has been charge-

sheeted for an offence under Section 306 of the Indian Penal Code,

filed a petition under Section 482 of the Code of Criminal Procedure

for quashing the charge before the High Court without any result,

hence the appeal.

Basic facts may be noted.

Appellant is the brother of Neelam Sengar, wife of the

deceased Chander Bhushan @ Babloo. It is stated that the

marriage between the sister of the appellant and the deceased took

place in 1993. It is also stated that immediately after marriage she

was subjected to continuous ill-treatment by the deceased and the

family members forcing her to live separately along with her husband

and children for about a year. Thereafter, she went to her parents'

house and started living with her brother the appellant herein. About

two months prior to the incident, the appellant advised the deceased

to take his sister back to her matrimonial house and treat her

properly. On 25th July, 1998 (crucial date), it is stated that the

appellant visited the place of the parents of the deceased and

pleaded with them that his sister should be rehabilitated in the

matrimonial home and should not be physically ill-treated or

harassed. It is also alleged that on that day the appellant also said to

have threatened the parents of the deceased that if they do not

mend their behaviour towards his sister, he would be compelled to

resort to filing a complaint under Section 498 A of the Indian Penal

Code, to which the parents of the deceased expressed helplessness

as the deceased Chander Bhushan had been living separately from

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them. It is further stated that on this story being narrated to the

deceased by the mother of the deceased asking him to bring back

his wife to avoid any police case against them, the deceased went to

the house of the parents of the appellant followed by a quarrel

between them. Thereafter, the deceased returned alone and told his

brothers and other acquaintances that the appellant had threatened

and abused him by using filthy words.

On the next date i.e. 27th July, 1998, the deceased was

found hanging with a rope by neck on the raft of his house and he

was found dead. The deceased also left a suicide note on a stray

piece of wrapping paper. The autopsy on the body of the deceased

was held on 27th July, 1998 itself and it was revealed that the death

was due to asphyxia as a result of hanging, within 24 hours. The

investigating officer recorded statement of the witnesses under

Section 161 Cr.P.C. and after completion of the investigation,

submitted the charge-sheet and a charge was framed on 2nd July,

2001 against the appellant for an offence under Section 306 I.P.C.

Section 107 I.P.C defines abetment to mean that a

person abets the doing of a thing if he firstly, 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.

Before we advert further, at this stage we may notice a

few decisions of this Court, relevant for the purpose of disposal of this

case.

In Swamy Prahaladdas v. State of M.P. & Anr. ,

1995 Supp. (3) SCC 438, the appellant was charged for an offence

under Section 306 I.P.C. on the ground that the appellant during the

quarrel is said to have remarked the deceased 'to go and die' . This

Court was of the view that mere words uttered by the accused to the

deceased 'to go and die' were not even prima facie enough to

instigate the deceased to commit suicide.

In Mahendra Singh v. State of M.P., 1995 Supp.(3)

SCC 731, the appellant was charged for an offence under Section

306 I.P.C basically based upon the dying declaration of the

deceased, which reads as under:

"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."

This Court, considering the definition of 'abetment' under

Section 107 I.P.C., found that the charge and conviction of the

appellant for an offence under Section 306 is not sustainable merely

on the allegation of harassment to the deceased. This Court further

held that neither of the ingredients of abetment are attracted on

the statement of the deceased.

In Ramesh Kumar V. State of Chhattisgarh

(2001) 9 SCC 618, this Court while considering the charge framed

and the conviction for an offence under Section 306 I.P.C. on the

basis of dying declaration recorded by an Executive Magistrate , in

which she had stated that previously there had been quarrel

between the deceased and her husband and on the day of

occurrence she had a quarrel with her husband who had said that

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she could go wherever she wanted to go and that thereafter she had

poured kerosene on herself and had set fire. Acquitting the accused

this Court said:

"A word uttered in a fit of anger or emotion

without intending the consequences to actually follow

cannot be said to be instigation. 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 for abetting the

offence of suicide should be found guilty."

Reverting to the facts of the case, both the courts

below have erroneously accepted the prosecution story that the

suicide by the deceased is the direct result of the quarrel that had

taken place on 25th July, 1998 wherein it is alleged that the appellant

had used abusive language and had reportedly told the deceased 'to

go and die'. For this, the courts relied on a statement of Shashi

Bhushan, brother of the deceased, made under Section 161 Cr.P.C.

when reportedly the deceased, after coming back from the house of

the appellant, told him that the appellant had humiliated him and

abused him with filthy words. The statement of Shashi Bhushan,

recorded under Section 161 Cr.P.C. is annexed as annexure P-3 to

this appeal and going through the statement, we find that he has not

stated that the deceased had told him that the appellant had asked

him 'to go and die'. 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 unadvisable 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 in a spur of the moment cannot be

taken to be uttered with mens rea. It is in a fit of anger and

emotional. Secondly, the alleged abusive words, said to have been

told to the deceased were on 25th July, 1998 ensued by quarrel. The

deceased was found hanging on 27th July, 1998. Assuming that the

deceased had taken the abusive language seriously, he had enough

time in between to think over and reflect and, therefore, it cannot be

said that the abusive language, which had been used by the

appellant on 25th July, 1998 drived the deceased to commit suicide.

Suicide by the deceased on 27th July, 1998 is not proximate to the

abusive language uttered by the appellant on 25th July, 1998. The

fact that the deceased committed suicide on 27th July, 1998 would

itself clearly pointed out that it is not the direct result of the quarrel

taken place on 25th July, 1998 when it is alleged that the appellant

had used the abusive language and also told the deceased to go

and die. This fact had escaped notice of the courts below.

The next and most important material is the suicide note left by

the deceased. The translated copy is annexed to this appeal as

annexure P-1. It is extracted:

"SUICIDE NOTE

Danik Bhaskar

581 South Civil Lines

Jabalpur.

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Agent Name Sengar New Agency

Place Goshalpur

No. of copies 409 Date

Name of the person who prepared label

Gosalpur Sengar has threatned to report under Dowery demand and

threatned to involve family members due to this I am writing in my full

senses that Sanjay Sangar is responsible for my death. Sanjay

Sangar also Mukraj commander Loota Tha Sanjay ki.

Sengar New Agency

Gosalpur

I was threatened therefore I am dying

Sangar Gosalpur

My name Chander Bhushan Singh Goutam

Chander Bhushan Singh Goutam

Babloo Goutam

In my senses

Sengar responsible for my death.

My moti

Darling my moti. You look after my Chukho. My darling Moti Neelam Sengar @

Chander Bhushan Singh Goutam Gandhigram Budghagar.

Sengar is responsible for my death

Sanjay Sengar is responsible for my death

Sanjay Sengar is responsible for my death

Chander Bhushan Singh Goutam Gandhigram Budhagar".

A plain reading of the suicide note would clearly show that the

deceased was in great stress and depressed. One plausible reason

could be that the deceased was without any work or avocation and at

the same time indulged in drinking as revealed from the statement of

the wife Smt. Neelam Sengar. He was a frustrated man. Reading of

the suicide note will clearly suggest that such a note is not a handy

work of a man with sound mind and sense. Smt. Neelam Sengar, wife

of the deceased, made a statement under Section 161 Cr.P.C. before

the Investigation Officer. She stated that the deceased always indulged

in drinking wine and was not doing any work. She also stated that on

26th July, 1998 her husband came to them in an inebriated condition

and was abusing her and other members of the family. The

prosecution story, if believed, shows that the quarrel between the

deceased and the appellant had taken place on 25th July, 1998 and if

the deceased came back to the house again on 26th July, 1998, it

cannot be said that the suicide by the deceased was the direct result of

the quarrel that had taken pace on 25th July, 1998. Viewed from the

aforesaid circumstances independently, we are clearly of the view that

the ingredients of 'abetment' are totally absent in the instant case for an

offence under Section 306 I.P.C. It is in the statement of the

wife that the deceased always remained in a drunkened condition. It is a

common knowledge that excessive drinking leads one to debauchery. It

clearly appeared, therefore, that the deceased was a victim of his own

conduct unconnected with the quarrel that had ensued on 25th July, 1998

where the appellant is stated to have used abusive language. Taking the

totality of materials on record and facts and circumstances of the case into

consideration, it will lead to irresistible conclusion that it is the deceased

and he alone, and none else, is responsible for his death.

In the result, this appeal succeeds. The charge-sheet dated 2nd

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July, 2001, framed by the Additional Sessions Judge, Sihora, in Sessions

Trial No.469 of 1998 for an offence under Section 306 I.P.C. and the order

of the High Court under challenge are hereby quashed.

The appellant is on bail. His surety and bail bond shall stand

discharged.

.J

( M.B. SHAH )

..J

( H.K. SEMA )

May 1, 2002