Kailash Tamrakar and Anr. Vs State of Chhattisgarh

Kailash Tamrakar, S/o Late Shri Amarchand Tamrakar, aged about 24 years, R/o Ramnagar Muktidham, infront of Higher Secondary School, Supela, P.S- Supela, District- Durg (C.G.)

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Suresh Kumar Gond, S/o Rajbihari Gond, aged about 24 years, R/o Shivaji Chowk Supela, P.S.- Supela, District- Durg (C.G.)

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Motilal Sen S/o Mohanlal Sen, aged about 22 years, R/o Shivaji Chowk, Supela, P.S.- Supela, District- Durg (C.G.)

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---Appellants

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Versus

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State of Chhattisgarh through Police Station- Supela, Durg, DistrictDurg (C.G.)

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2

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---Respondent/State

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For Appellants : Mrs. Indira Tripathi, Advocate in CRA No. 319 of 2008 and Mr. Sunil Pandey, Advocate on behalf of Mr. Uttam Pandey, Advocate in CRA No. 331 of 2008. For State : Mr. Ashish Shukla, Additional A.G.

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Hon'ble Smt. Justice Rajani Dubey C A V Judgment

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Since both these appeals arise out of the impugned judgment of conviction and order of sentence dated 29.02.2008 passed by learned 7^th Additional Sessions Judge (F.T.C.), Durg, District- Durg (C.G.) in Sessions Trial No. 38/2007, they are heard analogously and being disposed of by this common judgment. By the impugned judgment, each of the appellants stands convicted and sentenced as under:-

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Conviction	Sentence
U/S 306 read with	R.I. for 03 years with fine amount of
Section 34 of IPC	Rs. 500/- and in default of payment of
	fine, to undergo additional R.I. for 03
	months.

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Brief facts of the case are that on dated 20.06.2003, at about 7:45 P.M., the accused persons had used filthy language, beaten and threatened to the complainant- Shiv Ganesh’s Son namely deceased Shubham Dwivedi in relation to some money transactions and owed by his son and on this, the deceased Shubham had lodged a report, so on the basis of aforesaid report, a Crime No. 403/2003 for offence under Sections 294, 323, 506 and 324 read with Section 34 of IPC registered against the accused persons and due to the registration of the aforesaid offence against them, the accused persons held vengeance

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against the deceased and they all threatened him to withdraw the criminal case against them. However, being subjected to coercion, harassment by the accused persons, it is alleged that the deceased Shubham Dwivedi, committed suicide on dated 04.10.2003 near the Section-6 Pump House by run over a train, so a written complaint has been lodged by the father of the deceased i.e., complainant- Shiv Ganesh on dated 24.03.2006 at Police Station- Supela and on the basis of the aforesaid report an offence under Section 306 read with Section 34 of IPC was registered against the accused persons. The prosecution after completing the due and necessary investigation, led the charge-sheet before the concerned Jurisdictional Magistrate , who, in turn, committed the case for trial. On the basis of the material contained in the charge-sheet, learned trial Court framed charges against the accused for alleged commission of offence under Section 306 read with Section 34 of IPC. The accused having abjured guilt were subjected to trial.

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In order to bring home the guilt, the prosecution has examined as many as 13 witnesses to prove its case against the appellants. Statement of the accused/appellants were also recorded under Section 313 of Cr.P.C., in which they denied all the incriminating circumstances appearing against them in the prosecution case and pleaded their innocence and false implication in this case. However, two witnesses examined by them in his defence.

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After appreciation of oral as well as documentary evidence led by the prosecution, learned Trial Court has convicted the appellants and sentenced them as mentioned in inaugural paragraph of this judgment. Hence, this appeal.

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Learned counsel for the respective appellants submits that the

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prosecution has proved its case against the appellants for offence under Section 306 of IPC is erroneous and against the evidence on record. Learned trial Court has failed to appreciate the evidence of PW-1, PW-2, PW-3 and PW-13 and wrongly held that they have established the ingredients for the abetments of the suicide, though there is no legal material which sufficient to hold guilt of the appellants for the alleged commission of offence and the abnormal delay of three years in lodging the F.I.R. has not been taken into account by the learned trial Court as the incident had taken place on 04.10.2003 and the report was lodged on 25.03.2006 which creates a blemish in the prosecution story. It is further contended that the learned trial Court has failed to consider the defence of the appellants and wrongly been convicted them for the alleged commission of offence, though none of the ingredient of Section 306 IPC proved against them and the aforesaid presumption drawn by the learned trial Court on the basis of some suspicion and the suspicion however be strong, it cannot be take place of the legal proof and in view of the fact that probability of defence is more probable rather than the prosecution case. The learned trial Court did not appreciate the oral and documentary evidence minutely and thereby wrongly convicted the appellants for the alleged offence. So, the impugned judgment is liable to be set aside and the appellants deserves to be acquitted of the aforesaid charge. In support of their contentions, they relied upon the judgments of the Hon’ble Apex Court in the matter of Prakash and Others vs. The State of Maharashtra and Anothe r¹ , Sanju @ Sanjay Singh Sengar

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vs. State of M.P. 2 and upon the judgment of this Court in the matter of Roman Lal and others vs. State of Chhattisgarh 3

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2024 SCC OnLine SC 3835

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AIR 2002 Supreme Court 1998

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CRA No. 170 of 2007

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Ex adverso , learned counsel for the State opposes the submissions of learned counsel for the appellants and submitted that the prosecution has proved its case beyond reasonable doubt and the learned trial Court after minutely appreciating the oral and documentary evidence, rightly convicted the present appellants for the alleged offence and the impugned judgment of conviction and order of sentence needs no interference by this Court.

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I have heard learned counsel for the parties and perused the material available on record with utmost circumspection .

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It is apparent from record of learned trial Court that it framed charge against the appellants for offence under Section 306 read with Section 34 of IPC and learned trial Court after minutely appreciating the oral and documentary evidence, convicted the appellants herein for offence under Section 306 read with Section 34 of IPC and sentenced as mentioned in inaugural para of this judgment.

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It is an admitted position in this case that the deceased Shubham Dwivedi died on 04.10.2003 as he was run over by the train and his body was cut into two pieces.

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PW-11, Dr. Lal Mohammad Khan, who conducted the postmortem of the deceased Shubham Dwivedi, gave his report vide Ex. P/15 and opined that cause of death was shock due to excessive bleeding of multiple antemortem injuries.

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PW-1 Shivganesh Dwivedi, father of the deceased stated that his son was studying in Government School, Supela and in front of his school the hotel of accused/Sanjeev Dwivedi is situated, where his son used to have breakfast frequently, as such his son was in debt of Rs. 500/regarding the breakfast to the accused/appellants and also debt of some other amount to the same. On 03.06.2003 at about 10:00 PM,

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accused persons namely Sanjeev Dwivedi, Suresh and Laxmikant came to his house at that time we were sleeping, they have knocked the door and when he opened the door, the accused/Sanjeev Dwivedi said to him that his son owe him amount of Rs. 500/- and he added that he has to pay the interest amount too. On 05.06.2003, when his son (deceased) was coming with his friend Manish on Luna, in front of Sanjeev’s Shop, the accused persons Sanjeev, Suresh and Laxmikant stopped him and they abused and assaulted him in relation to money transactions. On 20.06.2003, his son went to Supela market for purchasing the vegetables where he set up a cart ( thela ) in Maitri Garden, at about 7:40 PM the accused persons called his son to their shop where altercation took place over the money transactions between them and thereafter the accused persons assaulted his son by gupti sword in wooden stick, due to which he sustained injuries on various parts of the body, though his son somehow managed to escape from the spot and come to home. Subsequently, he lodged the report against the accused persons. On the date of incident, he set up a cart ( thela ) in Power House Lal ground on the occasion of Dussehra and his son also set up a cart of ice-cream with his friend Manish. After a few times, Manish apprised him that Shubham was not present near the cart ( thela ), then he went for searching his son and at about 4:00 a.m., near Power House Railway Station, he came to know from the employees of railway that in front of Sector-6 Pump House, an unknown body of the boy was lying on the railway tracks and after seeing the body, he identified that the body is of his son, whose body was separated in two parts. Then, he gave a written complaint vide Ex. P/1 to Police Station- Supela and lodged the F.I.R. which is Ex. P/2. In his cross-examination, he admitted this fact that after finding death body of his son near railway track, he did not lodge the written

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complaint immediately, himself admitted this fact that after 13 days of the said incident lodged the written complaint to Police Station-Supela. He also admitted in para 36 of his cross-examination that he did not know what action has been taken with regard to the complaint in the year 2003 and he lodged the written complaint vide Ex.P/1 in the year 2006.

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PW-2 Manish Kumar, who is the friend of deceased Shubham Dwivedi has also supported the statement of PW-1 and stated that accused persons beaten the deceased on 20.06.2003 and on 03.10.2003 he along with PW-1 and the deceased Shubham set up a cart ( thela ) of ice-cream on the occasion of Dussehra in lal ground and at that time Shubham went somewhere else and he did not return. Then, he asked to the deceased’s father, but also he did not know about the deceased Shubham and they went for searching and later they came to know from the police that a dead body was lying upon the railway tracks and when they saw the said body, they identified the said body was of the deceased Shubham, which was separated in two parts. He further stated that the deceased usually remained depressed and shared the reason with him by saying that he received threats from the accused persons.

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PW-3, Vaijyantimala Dwivedi, who is the mother of the deceased Shubham has also stated that accused persons always threatened her son over the money transactions and they assaulted his son that is why he committed suicide.

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In this case, it is quite apparent that deceased Shubham died on 04.10.2003 and F.I.R. was lodged by the prosecution on 25.03.2006. PW-1, father of the deceased gave a written complaint on 24.03.2006.

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PW-1, father of the deceased, PW-2, friend of the deceased and PW-3

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mother of the deceased, they have all stated that deceased suffered mental agony as the accused persons assaulted him and threatened.

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It has been held and observed by the Apex Court in the matter of Prakash (supra) in paras 25, 26, 27 and 28 as under:-

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25. Relying on the decision in the case of Sanju @ Sanjay Singh Sengar (supra) , this Court in the case of Gurjit Singh (supra) set aside the conviction under Section 306 of the IPC as it was clear from the evidence on record that there was a time gap of about two months between the last visit of the deceased to her parents with regard to the illegal demand for money by the accused-appellant and the date of commission of suicide by the deceased. As such, this Court held that there was nothing on record to show that there was a proximate nexus between the commission of suicide and the illegal demand made by the accused-appellant. This Court observed as follows:

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“ 36. It could further be seen from the evidence on record that the time gap between the last visit of the deceased to her parents with regard to the illegal demand and the date of commission of suicide is about two months. As such, there is nothing on record to show that there was a proximate nexus between the commission of suicide and the illegal demand made by the appellant. In Sanju v. State of M.P. [Sanju v. State of M.P., (2002)

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5 SCC 371: 2002 SCC (Cri) 1141] this Court found that there was time gap of 48 hours between the accused telling the deceased "to go and die" and the deceased "committing suicide". As such, this Court held that there was no material to establish that the accused had abetted the suicide committed by the deceased."

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(emphasis supplied)

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26. Thus, this Court has consistently taken the view that instigation or incitement on the part of the accused person is the gravamen of the offence of abetment to suicide. However, it has been clarified on many occasions that in order to link the act of instigation to the act of suicide, the two occurrences must be in close proximity to each other so as to form a nexus or a chain, with the act of suicide by the deceased being a direct result of the act of instigation by the accused person.

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27. This Court in the case of Mohit Singhal (supra) reiterated that the act of instigation must be of such intensity and in such close proximity that it intends to push the deceased to such a position under which the person has no choice but to commit suicide. This Court held that the incident which had allegedly driven the deceased to commit suicide had occurred two weeks prior and even the suicide note had been written three days prior to the date on which the deceased committed suicide and further, there was no allegation that any act had been done by the accused-appellant therein in close proximity to the date of suicide. This Court observed as follows:

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"11. In the present case, taking the complaint of the

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third respondent and the contents of the suicide note as correct, it is impossible to conclude that the appellants instigated the deceased to commit suicide by demanding the payment of the amount borrowed by the third respondent from her husband by using abusive language and by assaulting him by a belt for that purpose. The said incident allegedly happened more than two weeks before the date of suicide. There is no allegation that any act was done by the appellants in close proximity to the date of suicide. By no stretch of imagination, the alleged acts of the appellants can amount to instigation to commit suicide. The deceased has blamed the third respondent for landing in trouble due to her bad habits.

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12. Therefore, in our considered view, the offence punishable under Section 306 IPC was not made out against the appellants. Therefore, the continuation of their prosecution will be nothing but an abuse of the process of law."

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(emphasis supplied)

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28. This Court in the case of Naresh Kumar v. State of Haryana^16, observed as follows:-

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"20. This Court in Mariano Anto Bruno v. State (Mariano Anto Bruno v. State, (2023) 15 SCC 560: 2022 SCC OnLine SC 1387], after referring to the abovereferred decisions rendered in context of culpability under Section 306IPC observed as under: (SCC para 45)

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"45. It is also to be borne in mind that in cases of alleged abetment of suicide, there must be proof of direct or indirect

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acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306IPC is not sustainable."

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(emphasis supplied)

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At this juncture, it is appropriate to look into the provisions of Sections 306 & 107 of Indian Penal Code, which reads as under:-

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“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 of which may extend to ten years, and shall also be liable to fine.

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107. Abetment of a thing- A person abets the doing of a thing who-

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First- Instigates any person to do that thing: or

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Second- Engages with one or more other person in any conspiracy for the doing of that thing, if an act or illegal mission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

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Third- Intentionally aids, by any act or illegal omission, the doing of that thing.

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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.

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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.”

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It has been held and observed by this Court in the matter of Roman Lal (supra) in paras 14 & 15 as under:-

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“14. Hon’ble Supreme Court has considered the scope of Sections 107 and 306 of IPC in the case of Patel Babubhai Manohardas (supra) and given the expression for abetment of suicide in paragraphs - 16, to 18 as under:-

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“16. Therefore, the crucial word in Section 306 IPC is ‘abets’. ‘Abetment’ is defined in Section 107 of IPC. As per Section 107 IPC, a person would be abetting the doing of a thing if he instigates any person to do that thing or if he encourages with one or more person or persons in any conspiracy for doing that thing or if he intentionally aids by any act or illegal omission doing of that thing. There are two explanations to Section 107. As per Explanation 1, even if a person by way of wilful misrepresentation or concealment of a material fact which he is otherwise 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 clarifies that whoever does anything in order to facilitate the commission of an act, either prior to or at the time of commission of the act, is said to aid the doing of that act. 17. Section 114 IPC is an explanation or clarification of Section 107 IPC. What Section 114 IPC says is that whenever any person is absent but was present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such an act or offence and

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would be liable to be punished as an abettor.

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18. In Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618, this Court held that to ‘instigate’ means to goad, urge, provoke, incite or encourage to do ‘an act’. To satisfy the requirement of ‘instigation’, it is not necessary that actual words must be used to that effect or that the words or act should necessarily and specifically be suggestive of the consequence. Where the accused by his act or omission or by his continued course of conduct creates a situation that the deceased is left with no other option except to commit suicide, then ‘instigation’ may be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be ‘instigation’.”

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15. In Swamy Prahaladdas vs. State of M.P. and Another, (1995) Supp (3) SCC 438), the appellant remarked to the deceased that ‘go and die’ and the deceased thereafter committed suicide. Hon’ble Supreme Court held that:-

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“…..Those words are casual nature which are often employed in the heat of moment between quarrelling people. Nothing serious is expected to follow thereafter. The said act does not reflect the requisite mens rea on the assumption that these words would be carried out in all events…”

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Considering the aforesaid facts and circumstances of the case and considering the law laid down by the Hon’ble Apex Court and by this Court in the aforesaid decisions, in the present case also, it is quite apparent from F.I.R. (Ex.P/2) that the incident of assaulting to the deceased had occurred on 03.06.2003 and 20.06.2003 and the deceased Shubham Dwivedi died on 04.10.2003 and father of the

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deceased (PW-1) gave a written complaint on 24.03.2006 and F.I.R. was lodged on 25.03.2006. Moreover, it is also apparent that at the time of preparing inquest memo (Ex. P/5), father of the deceased (PW1) was present, wherein he admitted his signature, but at that time, he did not lodge any complaint against the accused persons regarding instigation or abetment to commit suicide. Further, it is apparent that there is a time gap of over four months between the incident of assaulting and death of deceased from June, 2003 to October, 2003.

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As per the Hon’ble Apex Court, it is observed on this aspect in the matter of Prakash (supra) which is read as under:-

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“ 34. However, we do not wish to go into that issue. Even if we take the date of the mahalokadalat to be 17th February 2015 to be the factually correct one, there is enough gap between the two incidents to render the instigation or incitement by the appellants, nugatory. The cardinal principle of the subject-matter at hand is that there must be a close proximity between the positive act of instigation by the accused person and the commission of suicide by the victim. The close proximity should be such as to create a clear nexus between the act of instigation and the act of suicide. As was held in the case of Sanju @ Sanjay Singh Sengar (supra), if the deceased had taken the words of the appellants seriously, a time gap between the two incidents would have given enough time to the deceased to think over and reflect on the matter. As such, a gap of over a month would be sufficient time to dissolve the nexus or the proximate link between the two acts.

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In the light of above, it is quite evident that prosecution has failed to

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prove that the appellants had any intention to instigate or aid or abet the deceased to commit suicide beyond reasonable doubt, but without any sufficient evidence, learned trial Court convicted the present appellants under Section 306 read with Section 34 of IPC., therefore, the findings recorded by learned trial Court are not according to the provisions of Sections 306 and 107 of IPC and the same are not sustainable.

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Ex consequenti , the appeals are allowed and the impugned judgment of conviction and order of sentence dated 29.02.2008 is hereby setaside and the appellants are acquitted of the aforesaid charge.

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Keeping in view the provision of Section 481 of BNSS, 2023., the appellants are directed to furnish the personal bond a sum of Rs. 25,000/- each before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereof, shall appear before the Hon’ble Supreme Court.

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The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.

Sd/-

(Rajani Dubey)

JUDGE

AMIT PATEL

Kailash Tamrakar and Anr. v. State of Chhattisgarh

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Kailash Tamrakar and Anr. v. State of Chhattisgarh

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