Allowed

Ramsewak Alias Daya Shankar v. State of U.P. and 2 Others

Allahabad HC10 Aug 2023ABAIL/8716/2023

Case brief

AI extract

What is this about?

Inside Criminal Misc. Application under Section 438 Cr.P.C., the High Court of Judicature at Allahabad granted anticipatory bail to Ramsewak alias Daya Shankar in a suicide case under Section 306 IPC, finding prima facie ingredients of abetment missing and granting bail until filing of the police report.

What did the court decide?

Grant of anticipatory bail on a personal bond of Rs.50,000 with two sureties until the filing of police report under Section 173 (2) Cr.P.C.

Ramsewak Alias Daya Shankar Vs State of U.P. and 2 Others — Anticipatory Bail | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:165929

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Court No. - 73

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 8716 of 2023

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Applicant :- Ramsewak Alias Daya Shankar Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Om Prakash Singh,Amit Daga Counsel for Opposite Party :- G.A.

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Hon'ble Nalin Kumar Srivastava,J.

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Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material available on record.

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Apprehending his arrest in Case Crime No.44 of 2023, under Section 306 IPC, Police Station Raksa, District Jhansi, the present anticipatory bail application has been moved by the applicant - Ramsewak alias Daya Shankar seeking anticipatory bail.

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Prosecution story, as disclosed in the F.I.R., is that the coaccused Kunwar Yadav developed a friendship with the deceased and a promise of marriage was made, but when she was brought to the house of the co-accused Kunwar Yadav, his family members including the present applicant, the father of co-accused Kunwar Yadav, tortured her in the matter of marriage. When the informant made a search, he found his sister, the deceased, along with the co-accused Kunwar Yadav and took her back to home, but subsequently she went from her house with the scooty in the night of 22.2.2023 and a suicide note was found in her room mentioning therein that she was going to commit suicide due to the harassment caused by coaccused Kunwar and his family members. Subsequently, her dead body was recovered on 28.2.2023 from Angoori Barrage, Datia (M.P.). F.I.R. was lodged on 28.2.2023 under section 306 IPC and investigation started.

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It has been submitted by the learned counsel for the applicant that the applicant is innocent and he has apprehension of his arrest in the above-mentioned case, whereas there is no credible evidence against him. Allegations levelled against them are false. He has been falsely implicated in this case. It is further submitted that the applicant is only the father of the co-accused Kunwar Yadav against whom it is alleged that the deceased had friendly relations with him.As a matter of fact, the co-accused never made any promise to

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marry with the deceased nor any friendly relation was developed between the two. It is further submitted that six days after leaving the home, the dead body of the deceased was found and the cause of death of the deceased was found as asphyxia as a result of drowning and the death appears to have taken place 5 to 8 days before the postmortem, which was performed on 2.3.2023. It is further submitted that there are three dying declarations in a row having different versions and even in the suicide notes, no specific allegation has been levelled against the present applicant. It is further submitted that the essential ingredients to establish the guilt for an offence under section 306 IPC are completely missing in this case. It is further submitted that there was no provocation, abetment or instigation on the part of the applicant to the deceased to commit suicide. It is further submitted that the applicant is cooperating with the investigation and as such, he is entitled for anticipatory bail.

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Per contra, learned A.G.A. opposed the prayer for anticipatory bail and it has been submitted that in the suicide note written by the deceased herself it has been mentioned that she was committing suicide on account of harassment caused by co-accused Kunwar Yadav and his family members and his mother Mamta Yadav and sister Surabhi Yadav also made an assault upon her and the co-accused Kunwar Yadav, on the false pretext of marriage, physically and mentally exploited her and when she developed pregnancy, he refused to marry her and she was aborted.

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From the perusal of the record prima facie the essential ingredients to establish a case under Section 306 IPC appear to be missing. The mens rea on the part of the accused has to be established by the prosecution and there must be at least an indication that there was any intention on the part of the accused to abet the commission of suicide by the deceased, which is not appearing in this case and that is why the necessary element of abetment is conspicuously missing from the allegations levelled in the FIR, which is undoubtedly an essential ingredient to establish the offence under Section 306 I.P.C.

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In Gurcharan Singh v. State of Punjab, (2017) 1 SCC 433 the Hon'ble Apex Court held that the basic ingredients of Section 306 IPC are suicidal death and abetment thereof. To constitute abetment, intention and involvement of accused to aid or instigate commission of suicide is imperative. Any severance or absence of any of these constituents would militate against said indictment. Remoteness of culpable acts or omissions rooted in intention of accused to actualise the suicide

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would fall short of offence of abetment essential to attract Section 306 IPC. Contiguity, continuity, culpability and complicity of indictable acts or omission are concomitant indices of abetment. Section 306 IPC thus criminalises sustained incitement for suicide.

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The Hon'ble Apex Court in Special Leave to Appeal (Crl.) No.7284 of 2017, Shabbir Hussain vs. The State of Madhya Pradesh & Ors. , in almost similar circumstances, has held like this :

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"In order to bring a case within the provison of Section 306 IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigating or by doing a certain act to facilitate the commission of suicide.

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Mere harassment without any positive action on the part of the accused proximate to the time of occurrence which led to the suicide would not amount to an offence under Section 306 IPC [Amalendu Pal v. State of West Bengal(2010) 1 SCC 707].

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Abetment by a person is when a person instigates another to do something. Instigation can be inferred where the accused had, by his acts or omission created such circumstances that the deceased was left with no option except to commit suicide. [Chitresh Kumar Chopra v. State (Government of NCT of Delhi) (2009) 16 SCC 605]."

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In M. Arjunan v. State, (2019) 3 SCC 315 the Hon'ble Apex Court held that insulting deceased by using abusive language will not, by itself, constitute abetment of suicide. There should be evidence capable of suggesting that accused intended by such act(s) to instigate deceased to commit suicide. Unless ingredients of instigation/abetment to commit suicide are satisfied, accused cannot be convicted under Section 306 IPC.

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In Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1 , the Hon'ble Apex Court has held that while considering an application for grant of anticipatory bail, the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence including intimidating witnesses, likelihood of fleeing justice, such as leaving the country, etc. It has further been held that Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether

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to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion.

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In Siddharth Vs. State of Uttar Pradesh & Another, (2022) 1 Supreme Court Cases 676 , the Hon'ble Apex Court has held that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation, then there is no compulsion on the officer to arrest the accused.

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Considering the settled principles of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicant and all attending facts and circumstances of the case, without expressing any opinion of the merits of the case, in my view, it is a fit case for anticipatory bail to the applicant till the filing of police report under section 173 (2) Cr.P.C. before the competent Court.

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13. The anticipatory bail application is allowed .

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In the event of arrest of the applicant in the aforesaid case crime, they shall be released on anticipatory bail till the filing of police report under section 173 (2) Cr.P.C. before the competent Court on his furnishing a personal bond of Rs.50,000/- with two sureties each in the like amount to the satisfaction of Station House Officer of the police station concerned with the following conditions:-

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(i) The applicant shall make himself available for interrogation by a police officer as and when required.

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(ii) The applicant shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to any police office.

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(iii) The applicant shall not leave India without the previous permission of the Court and if they have passport, the same shall be deposited by them before the S.S.P./S.P. Concerned.

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In case of default of any of the conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of protection granted to the applicant.

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Order Date :- 10.8.2023 ss

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Digitally signed by :- SANDEEP SHARMA High Court of Judicature at Allahabad

Ramsewak Alias Daya Shankar v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

Ramsewak Alias Daya Shankar v. State of U.P. and 2 Others

Case brief

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