Karnataka High Court
Smt Bhagyashri M K vs State Of Karnataka on 8 July, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.2059 OF 2022
C/W
CRIMINAL PETITION No.2104 OF 2022
IN CRIMINAL PETITION No.2059 OF 2022
BETWEEN:
SMT. SHAKUNTALA MALAKRI KAMLE
W/O MALAKARI KAMBLE
AGED ABOUT 50 YEARS,
RESIDING AT NO.46
5TH MAIN ROAD,
RALLIS COLONY,
VEERASAGARA ROAD,
ATTUR LAYOUT,
YELAHANKA NEW TOWN
BENGALURU - 560 064.
... PETITIONER
(BY SRI MOHAMMED MUJASSIM, ADVOCATE)
AND:
1. STATE OF KARNATAKA
KENGERI POLICE STATION,
BENGALURU
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
2
BENGALURU - 560 001.
2. SRI PUTTASWAMY
S/O LATE KALEGOWDA
AGED ABOUT 60 YEARS,
RESIDING AT KODIHALLI VILLAGE,
SAGATHALLI POST,
DANDIGANAHALLI HOBLI,
CHANNARAYAPATNA TALUK
HASSAN DISTRICT - 562 119.
... RESPONDENTS
(BY SMT.K.P.YASHODHA, HCGP FOR R1;
SRI T.PRAKASH, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE S.C.NO.1399/2021 FOR THE
OFFENCES P/U/S 306 R/W 34 OF IPC PENDING BEFORE THE LXI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU.
IN CRIMINAL PETITION No.2104 OF 2022
BETWEEN:
SMT.BHAGYASHRI M.K.,
W/O LATE DARSHAN
D/O MALAKARI KAMBLE
AGED ABOUT 28 YEARS,
RESIDING AT NO.46
5TH MAIN ROAD, RALLIS COLONY
VEERASAGARA ROAD, ATTUR LAYOUT
YELAHANKA NEW TOWN
BENGALURU - 560 064.
... PETITIONER
(BY SRI MOHAMMED MUJASSIM, ADVOCATE)
3
AND:
1. STATE OF KARNATAKA
KENGERI POLICE STATION,
BENGALURU
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
2. SRI PUTTASWAMY
S/O LATE KALEGOWDA
AGED ABOUT 60 YEARS,
RESIDING AT KODIHALLI VILLAGE,
SAGATHALLI POST,
DANDIGANAHALLI HOBLI,
CHANNARAYAPATNA TALUK
HASSAN DISTRICT - 562 119.
... RESPONDENTS
(BY SMT.K.P.YASHODHA, HCGP FOR R1;
SRI T.PRAKASH, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE S.C.NO.1399/2021 FOR THE
OFFENCE P/U/S 306 R/W 34 OF IPC, PENDING BEFORE THE LXI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU.
THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 05.07.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:-
4
ORDER
The petitioners in these petitions call in question proceedings in S.C.No.1399 of 2021 pending before the LXI Additional City Civil and Sessions Judge at Bangalore arising out of crime No.124 of 2020 registered for offences punishable under Section 306 r/w 34 of the IPC. Criminal Petition No.2104 of 2022 is filed by the wife of the deceased. Criminal Petition No.2059 of 2022 is filed by the mother-in-law of the deceased.
They are taken up together and considered by this order.
2. Heard in both the petitions Sri Mohammed Mujassim, learned counsel for the petitioners, Smt. K.P.Yashodha, learned High Court Government Pleader for respondent No.1 and Sri T.Prakash, learned counsel for respondent No.2.
3. Before embarking upon consideration of the case on its merit, I deem it appropriate to notice the relationship between the parties. 2nd respondent in both the petitions is the complainant, father of one K.P.Darshan, who dies by committing 5 suicide. The petitioners in Criminal Petition Nos.2104 of 2022 and 2059 of 2022 are the wife and the mother-in-law of complainant's son. For the sake of convenience the petitioners in Criminal Petition Nos. 2104 of 2022 and 2059 of 2022 will be referred to in this order as accused Nos. 1 and 2 respectively.
4. Brief facts that lead the petitioners to this Court in the subject petitions, as projected by the prosecution, are as follows:-
On 01-12-2019 the son of the complainant and accused No.1 get married. It is the case of accused No.1 that within a month of marriage her husband began to suspect her on receipt of every call and every message that she was receiving and used to seek explanation, every now and then. It is also averred in the petition that the couple had to go to counseling for their problems in marriage more than five times within a month of marriage and being fed up with the attitude of her husband, accused No.1 leaves the matrimonial house and begins to reside with her parents. The son of the complainant commits suicide 6 on 28-05-2020 leaving a note implicating accused No.1 for the ghastly act. The complainant who is the father of the deceased registers a complaint before the Police alleging that the accused herein are responsible for his son's unnatural death. This became a crime in Crime No.124 of 2020 for offences punishable under Section 306 read with Section 34 of the IPC. The police, after investigation, file a charge sheet for those very offences that were alleged in the FIR. It is the filing of the charge sheet that drives the accused/petitioners to this Court in the subject petitions.
5. The learned counsel appearing for the petitioners would contend with vehemence that it is an admitted fact that the couple got married on 01-12-2019 and accused No.1 leaves the matrimonial house in the month of January 2020 within a month of marriage, being unable to bear the torture of her husband and her husband after about four months after she left the house commits suicide. There can be neither proximity nor nexus to any act of the petitioners to the extent that the 7 complainant's son would be driven to commit suicide, for alleging offence punishable under Section 306 of the IPC against the petitioners, one the wife and the other is the mother-in-law.
6. On the other hand, the learned counsel representing respondent N.2 would vehemently refute the submissions to contend that the son of the complainant had left a note and the note clearly indicates that it is because of accused No.1 developing affair with some other person and unable to bear the humility has committed suicide. There is nexus and proximity, as both the mother-in-law and the wife have clearly abetted death of the son of the complainant.
7. The learned High Court Government would toe the lines of the learned counsel appearing for respondent No.2 to contend that since charge sheet is filed by the police it is a matter of trial for the accused/petitioners to come out clean.
8. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
89. The afore-quoted facts, dates and events are not in dispute. The husband of the 1st accused dies by committing suicide on 28-05-2020 leaving behind a death note. The death note becomes a part of the complaint. Since the entire issue now springs from the complaint, it is germane to notice the complaint so registered by the complainant reading as under:
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The Police, after investigation, have also filed a charge sheet in the matter. The summary of the charge sheet as found in Column No.7 reads as follows:
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The complaint itself narrates that accused No.1/wife had left the matrimonial house after a month of marriage and she has been residing in her parents' house for the last three months. The alleged death note again indicates that she was always on face-book chat or Whatapp chat or instagram chat and was hiding the phone and was not showing the photograph in her phone to her husband. This led to severe suspicion on the part of the husband on the wife. All this happened within a month of marriage and unable to bear this the deceased has 12 committed suicide. Therefore, the narration in the complaint or the writings in the alleged death note, which form a part of the complaint can hardly be said to be circumstance enough, to allege the offence against the accused/petitioners under Section 306 of the IPC.
10. Section 306 of the IPC which deals with abetment requires ingredients of Section 107 of the IPC to be proved.
Section 107 of the IPC deals with abetment. If abetment under Section 107 is not present in a given case, the alleged incident can hardly become an offence under Section 306 of the IPC for abetment to suicide in such a given case. The issue in this regard need not detain this Court for long or delve deep into the matter as the Apex Court in the case of KANCHAN SHARMA v.
STATE OF UTTAR PRADESH AND ANOTHER1 while considering the very issue has held as follows:
"9. Having heard learned counsel on both sides, we have perused the impugned order and other material placed on record. Except the self-serving statements of the complainant and other witnesses stating that deceased 1 2021 SCC Online SC 737 13 was in love with the appellant, there is no other material to show that appellant was maintaining any relation with the deceased. From the material placed on record it is clear that on the date of incident on 04.05.2018 deceased went to the house of the appellant and consumed poison by taking out from a small bottle which he has carried in his pocket. Merely because he consumed poison in front of the house of the appellant, that itself will not indicate any relation of the appellant with the deceased. 'Abetment' involves mental process of instigating a person or intentionally aiding a person in doing of a thing. Without positive act on the part of the accused to instigate or aid in committing suicide, no one can be convicted for offence under Section 306, IPC. To proceed against any person for the offence under Section 306 IPC it requires an active act or direct act which led the deceased to commit suicide, seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide. There is nothing on record to show that appellant was maintaining relation with the deceased and further there is absolutely no material to allege that appellant abetted for suicide of the deceased within the meaning of Section 306, IPC. Even with regard to offence alleged under Section 3(2)(v) of the Act it is to be noticed that except vague and bald statement that the appellant and other family members abused deceased by uttering casteist words but there is nothing on record to show to attract any of the ingredients for the alleged offence also. This Court in the case of Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi)1 had an occasion to deal with the aspect of abetment. In the said case this Court has opined that there should be an intention to provoke, incite or encourage the doing of an act by the accused. Besides, the judgment also observed that each person's suicidability pattern is different from the other and each person has his own idea of self-esteem and self-respect. In the said judgment it is held that it is impossible to lay down any straightjacket formula dealing with the cases of suicide and each case has to be decided on the basis of its own facts and circumstances. In the case of Amalendu Pal @ 14 Jhantu v. State of West Bengal2 in order to bring a case within the purview of Section 306, IPC this Court has held as under:
"12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect 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 306 IPC is not sustainable.
13. In order to bring a case within the purview 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 instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC."
10. In the judgment in the case of S.S. Chheena v. Vijay Kumar Mahajan3 this Court reiterated the ingredients of offence of Section 306 IPC. Paragraph 25 of the judgment reads as under:
"25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or 15 aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide."
11. In the judgment in the case of Rajiv Thapar v. Madan Lal Kapur4 this Court has considered the scope of the provision under Section 482, Cr.PC and has laid down the steps which should be followed by the High Court to determine the veracity of a prayer for quashing of proceedings in exercise of power under Section 482, Cr.PC. Paragraph 30 containing the four steps read as under:
"30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:
30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?
30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a 16 reasonable person to dismiss and condemn the factual basis of the accusations as false?
30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?
30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused."
12. By applying the aforesaid ratio decided by this Court, we have carefully scrutinized the material on record and examined the facts of the case on hand. Except the statement that the deceased was in relation with the appellant, there is no material at all to show that appellant was maintaining any relation with the deceased. In fact, at earlier point of time when the deceased was stalking the appellant, the appellant along with her father went to the police station complained about the calls which were being made by the deceased to the appellant. Same is evident from the statement of S.I. Manoj Kumar recorded on 05.07.2018. In his statement recorded he has clearly deposed that the father along with the appellant went to the police post and complained against the deceased who was continuously calling the appellant and proposing that she should marry him with a threat that he will die 17 otherwise. Having regard to such material placed on record and in absence of any material within the meaning of Section 107 of IPC, there is absolutely no basis to proceed against the appellant for the alleged offence under Section 306 IPC and Section 3(2)(v) of the Act. It would be travesty of justice to compel the appellant to face a criminal trial without any credible material whatsoever.
13. In view of the same, we are of the view that the High Court has committed error in rejecting the application filed by the appellant by merely recording a finding that in view of the factual disputes same cannot be decided in a petition under Section 482, Cr.PC."
(Emphasis supplied) This Court following the earlier judgments rendered by the Apex Court earlier to that of KANCHAN SHARMA (supra) has held in CRIMINAL PETITION NO.6390 OF 2017 decided on 14-09-2021 as follows:
"9. Since the entire issue springs from the death of the husband of the complainant who died by committing suicide and the allegation against the petitioner being for the offences punishable under abetment to suicide, it is germane to consider Section 306 of the IPC which reads as follows:-
"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 extend to ten years, and shall also be liable to fine."
Abetment as found in Section 306 of IPC is what is described in Section 107 of the IPC. Section 107 of the IPC reads as follows:
18"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 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."
Therefore, in terms of Section 306 of IPC whoever abets a particular thing as defined under Section 107 of IPC would become punishable under Section 306 of the IPC. Section 107 of IPC mandates that a person abets doing of a thing and instigates any person to do so, engages with one or more other person in any conspiracy for doing such a thing, intentionally aids by any act or illegal omission of doing of that thing. Therefore, for an offence punishable under Section 306 of IPC for abetment to suicide, the ingredients under Section 107 of IPC are to be present in a given case.
10. The learned counsel for the petitioner places reliance on a judgment of the learned Single Judge of this Court in the case of M.C.CHAITHRA AND OTHERS VS. STATE OF KARNATAKA reported in ILR 2008 KAR 2710. This judgment is of the year 2008. The clock of the flow of law did not freeze in the year 2008, as much water has flown thereafter in interpretation of Sections 306 and 107 of the IPC by plethora of judgments of the Apex Court. I therefore, deem it appropriate to, at the outset, notice such flow of law and then consider the facts obtaining in the case at hand on the touch stone of such interpretation by the Apex Court. The Apex Court interpreting Section 306 of IPC, has in several judgments, held the existence of 19 mens rea or instigation is necessary to make out an offence punishable under Section 306 of the IPC. The Apex Court in the case of GURCHARAN SINGH v. STATE OF PUNJAB2has held as follows:-
"20. Section 306 of the Code prescribes the punishment for abetment of suicide and is designed thus:
"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 extend to ten years, and shall also be liable to fine."
21. It is thus manifest that the offence punishable is one of abetment of the commission of suicide by any person, predicating existence of a live link or nexus between the two, abetment being the propelling causative factor. The basic ingredients of this provision are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of these constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualise the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. Section 306 IPC, thus criminalises the sustained incitement for suicide.
(Emphasis supplied) In the light of afore-extracted judgment of the Apex Court, to attribute act of abetment to suicide against an accused there has to be some link and proximity of the accused with the deceased who committed suicide.
2(2017) 1 SCC 433 20
11. The Apex Court in the case of RAMESH KUMAR v. STATE OF CHHATTISGARH3 considers what is abetment and delineates as follows:-
"20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.
21. In State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73: 1994 SCC (Cri) 107] this Court has cautioned that the court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide. 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 of abetting the offence of suicide should be found guilty."
(Emphasis supplied) 3 (2001) 9 SCC 618 21
12. The Apex Court in the case of AMALENDU PAL V. STATE OF WEST BENGAL4, has held as follows::
"12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect 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 306 IPC is not sustainable.
13. In order to bring a case within the purview 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 instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC.
14. The expression "abetment" has been defined under Section 107 IPC which we have already extracted above. A person is said to abet the commission of suicide when a person instigates any person to do that thing as stated in clause Firstly or to do anything as stated in clauses Secondly or Thirdly of Section 107 IPC. Section 109 IPC provides that if the act abetted is committed pursuant to and in consequence of abetment then the offender is to be punished with the punishment provided for the original 4 (2010) 1 SCC 707 22 offence. Learned counsel for the respondent State, however, clearly stated before us that it would be a case where clause Thirdly of Section 107 IPC only would be attracted. According to him, a case of abetment of suicide is made out as provided for under Section 107 IPC."
(Emphasis supplied) Again, the Apex Court in the case of S.S. CHHEENA V. VIJAY KUMAR MAHAJAN5, has held as follows:
"24. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) [(2009) 16 SCC 605 : (2010) 3 SCC (Cri) 367] had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the words "instigation" and "goading".
The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the other. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.
25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.
5(2010) 12 SCC 190 23
26. In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day-to-day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation.
27. When we carefully scrutinise and critically examine the facts of this case in the light of the settled legal position the conclusion becomes obvious that no conviction can be legally sustained without any credible evidence or material on record against the appellant. The order of framing a charge under Section 306 IPC against the appellant is palpably erroneous and unsustainable. It would be travesty of justice to compel the appellant to face a criminal trial without any credible material whatsoever. Consequently, the order of framing charge under Section 306 IPC against the appellant is quashed and all proceedings pending against him are also set aside."
(Emphasis supplied) The Apex Court in a recent judgment in the case of GURUCHARAN SINGH v. STATE OF PUNJAB6 while considering the entire spectrum of law has held as follows:
"13. Section 107 IPC defines "abetment" and in this case, the following part of the section will bear consideration:
"107. Abetment of a thing.--A person abets the doing of a thing, who--
First.--Instigates any person to do that thing; or *** Thirdly.--Intentionally aids, by any act or illegal omission, the doing of that thing."
14. The definition quoted above makes it clear that whenever a person instigates or intentionally aids by any 6 (2020) 10 SCC 200 24 act or illegal omission, the doing of a thing, a person can be said to have abetted in doing that thing.
15. As in all crimes, mens rea has to be established. To prove the offence of abetment, as specified under Section 107 IPC, the state of mind to commit a particular crime must be visible, to determine the culpability. In order to prove mens rea, there has to be something on record to establish or show that the appellant herein had a guilty mind and in furtherance of that state of mind, abetted the suicide of the deceased. The ingredient of mens rea cannot be assumed to be ostensibly present but has to be visible and conspicuous. However, what transpires in the present matter is that both the trial court as well as the High Court never examined whether the appellant had the mens rea for the crime he is held to have committed. The conviction of the appellant by the trial court as well as the High Court on the theory that the woman with two young kids might have committed suicide possibly because of the harassment faced by her in the matrimonial house is not at all borne out by the evidence in the case. Testimonies of the PWs do not show that the wife was unhappy because of the appellant and she was forced to take such a step on his account.
18. In Mangat Ram v. State of Haryana [Mangat Ram v. State of Haryana, (2014) 12 SCC 595: (2014) 5 SCC (Cri) 127] , which again was a case of wife's unnatural death, speaking for the Division Bench, K.S.P. Radhakrishnan, J. rightly observed as under : (SCC p. 606, para 24) "24. We find it difficult to comprehend the reasoning of the High Court [Mangat Ram v. State of Haryana, Criminal Appeal No. 592-SB of 1997, decided on 27-5-2008 (P&H)] that "no prudent man is to commit suicide unless abetted to do so". A woman may attempt to commit suicide due to various reasons, such as, depression, financial difficulties, disappointment in love, tired of domestic 25 worries, acute or chronic ailments and so on and need not be due to abetment. The reasoning of the High Court that no prudent man will commit suicide unless abetted to do so by someone else, is a perverse reasoning."
(Emphasis supplied) Therefore, the case at hand will have to be considered on the bedrock of the IPC and judgments of the Apex Court (supra).
13. Since the entire issue springs from the complaint registered against the petitioner and others, it is germane to notice the complaint, which reads as follows:
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(Emphasis added) In terms of the complaint what can be gathered is, the petitioner and the deceased were holding lands abutting to each other. The allegation in the complaint is that the petitioner and his family members have harassed the deceased by filing several cases against him concerning the dispute with regard to the land. The allegation in the complaint is that when the complainant and her husband went to the house of one Mahesh, it is there the deceased confided into Mahesh that he had raised loan and had purchased the property in B.C.Kaval and today he is not getting the said property as the petitioner has filed a complaint against him. It is his assumption that till he dies the property would not come in his possession. Because of that reason, the deceased consumed poison. This is what 27 is narrated by the complainant in the complaint. The complaint further narrates that Mahesh consoled the deceased by telling him that this trivial issue should not be a ground for him to commit suicide and on that day itself the complainant alleges that her husband unable to bear the insult, committed suicide. The entire complaint does not narrate any abetment by the petitioner being present at that point in time or leaving the deceased with no other option, but to commit suicide on account of a guilty mind on the part of the petitioner.
14. With regard to filing of cases against the deceased by the petitioner and his family members, an endorsement is appended to the petition papers with regard to the information furnished by the jurisdictional police that up to 11.10.2012 there were no criminal cases that are filed against the deceased by the petitioner or any other family members of the petitioner. The issuance of this endorsement and its veracity is not in dispute. The case that the family of the petitioner had filed against the deceased was O.S.No.131 of 2000 which was a suit filed for declaration and injunction against the deceased. The suit was decreed on 18-06-2008. This is the only litigation between the parties apart from a criminal complaint that was registered on 10-10-2012, a day before the deceased committed suicide. With regard to the original suit that was filed in the year 2000 and the civil court decreeing the said suit on 18-06-2008, the civil litigation has become final.
15. The complaint that was registered against the petitioner was with regard to constant harassment of the petitioner to the deceased. The complaint was registered on 10-10-2012 and therefore, it cannot even casually link the abetment to suicide to the registration of the complaint or the ingredients of such abetment. Mere filing of a case or registration of a complaint or even harassment cannot mean that the petitioner had indulged in abetment to suicide of the deceased.
16. As delineated by the Apex Court in the judgments extracted (supra), abetment under Section 107 of IPC has few ingredients to be proved. If Section 306 of IPC, has to be proved, if the judgment of the Apex court 28 and the facts obtaining in the case at hand, as stated above are considered, it would unmistakably reveal that there cannot be any link to the death of the deceased with the petitioner, as the state of mind to commit a particular crime is a sine qua non to establish an offence under Section 107 IPC and to prove mens rea, there has to be something on record, to establish or show that the petitioner had a guilty mind and in furtherance of that state of mind, abetted suicide to the deceased. Neither the narration in the complaint nor the material in the charge sheet link the offence under Section 306 IPC with the petitioner. The postmortem report indicates that the deceased died of consumption of excessive alcohol coupled with poison. Neither consumption of excessive alcohol or consumption of poison can link to the cases filed against the deceased by the petitioner. As stated hereinabove, mere harassment by way of filing of cases cannot even remotely link the petitioner for the offence punishable under Section 306 of the IPC. Except the self-serving statement in the complaint, by the complainant, there is nothing on record to show that the petitioner even remotely instigated abetment of the deceased to commit suicide. In my considered view, there is absolutely no basis to proceed against the petitioner for the alleged offence of Section 306 of the IPC and the provisions of the Atrocities Act. It would be travesty of justice to compel the petitioner to undergo trial particularly when there is no material against him."
In the light of the judgment rendered by this Court and the later judgment of the Apex Court in the case of KANCHAN SHARMA (supra) the result of the investigation or the complaint would not be enough circumstance to drive home the allegation of abetment to suicide. If the trial is permitted to continue against 29 the petitioners on the afore-narrated facts, it would fall foul of the postulates laid down in the case of KANCHAN SHARMA (supra) and that of BHAJANLAL reported in 1992 Supp. 1 SCC
335.
11. In somewhat similar situation the Apex Court in the case of SHABBIR HUSSAIN v. THE STATE OF MADHYA PRADESH AND OTHERS7 while dealing with a challenge to the order passed by the High Court of Madhya Pradesh has held as follows:
"On 10-09-2014, due to certain matrimonial dispute, Roshan Bee, wife of deceased Firoz Khan moved to her parental home. On 23-09-2014,Firoz Khan committed suicide in his house by consuming poison and also lft four suicide notes.
Shabbir Hussain, brother of the deceased - Firoz Khan preferred complaint i.e., Crime No.1403 of 2014, which was registered against respondent Nos. 2 to 4 under Section 306/34 IPC. After investigation, charge sheet was filed against respondent Nos. 2 to 4 and trial commenced against respondent Nos. 2 to 4. Respondent Nos. 2 to 4 preferred Criminal Revision No.725 of 2016 under Section 397/401 Cr.P.C. before the High Court of Madhya Pradesh at Indore. The High Court allowed the Criminal Revision filed by respondent Nos. 2 to 4. Aggrieved by which, the petitioner has preferred this special leave petition.7
S.L.P.(Crl.) No.7284 of 2017 decided on 26-07-2021 30 Learned counsel for the petitioner submitted that the High Court committed an error in allowing the criminal petition, especially after 10 witnesses had already been examined. He referred to the suicide notes that were written by the deceased Firoz Khan, to support his submissions that Firoz was harassed by respondent Nos. 2 to 4, due to which he took his own life. He argued that abetment of the offence of suicide by respondent Nos. 2 to 4 is prima facie made out as the harassment by respondent Nos. 2 to 4 facilitated the act of suicide by the deceased.
In order to bring a case within the provision 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.
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] 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].
In the instant case, the allegations against respondent Nos. 2 to 4 is that they harassed the deceased. There is no other material on record which indicates abetment. The High Court did not commit any error in allowing the Criminal Revision.31
Therefore, special leave petition is dismissed."
(Emphasis supplied) If the complaint, the judgments rendered by the Apex Court and this Court and summary of the charge sheet are considered, the unmistakable inference would be the exercise of jurisdiction of this Court under Section 482 of the Cr.P.C to obliterate such proceedings which does not even make out an offence under Section 306 of the IPC for the ingredients of Section 107 of the IPC being conspicuously absent in the case at hand. The undisputed facts of the husband suspecting the wife throughout as is narrated in the alleged death note and the wife leaving the matrimonial house within a month of marriage, cannot enmesh the wife or the mother-in-law for the offence of abetment to suicide of the deceased/husband. If further proceedings are permitted to continue in the case at hand, notwithstanding the charge sheet being filed by the police, it would become an abuse of the process of law, degenerate into harassment and result in miscarriage of justice.
3212. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petitions are allowed.
(ii) The proceedings in S.C.No.1399 of 2021 pending on the file of the LXI Additional City Civil and Sessions Judge, Bengaluru stand quashed qua the petitioners.
Sd/-
JUDGE bkp CT:MJ