Delhi District Court
State vs Rajiv Makan on 29 October, 2024
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
ADDITIONAL SESSIONS JUDGE (FAST TRACK COURT-01)
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
SC No. 27547/2016 CNR No. DLCT01-001075-2015
FIR No. 314/2009
U/s 306/34 IPC
P. S. Sarai Rohilla
STATE VERSUS RAJIV MAKAN & ORS.
(i) SC No. of the case : 27547/2016
(ii) Date of commission of offence : 09.12.2009
(iii) Name, parentage and address : (1) Rajiv Makan
of accused S/o Sh. Kishan Lal
R/o A-111-A,
Ashoka Enclave-2,
Faridabad, Haryana and
Also at:
645, Fourth Floor,
Sector-37, Faridabad,
Haryana.
(2) Tajinder Singh
S/o Sh. Sohan Singh
R/o BJ-73, West
Shalimar Bagh,
Delhi-88.
(3) Mohd. Umer
S/o Mohd. Shafi
R/o D-1211, Jaitpur,
Extn. Badarpur, Part-11
New Delhi-44.
SC No. 27547/2016
FIR No. 314/2009
State Vs. Rajiv Makan & Ors. Page 1 of 32
(iv) Offence complained of : Under Section:
306/34 IPC
(v) Plea of the accused : Pleaded not guilty and
claimed trial.
(vi) Final order : All accused stands
acquitted of the offence
under Section 306/34 IPC.
Date of Institution : 25.02.2015
Date of Judgment reserved on : 01.10.2024
Date of Judgment : 29.10.2024
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
1. The present case was registered on the complaint of Sh.
Anand Singh Rawat vide complaint Ex.PW10/A who is brother-in-law of the deceased. It is stated in the complaint that the deceased Pappu Kumar Negi was originally the resident of Village Lagar Bughi, Pauri Garhwal, Uttrakhand who was employed since last 8-9 years at TSI-506-507, Kailash Building, K. G. Marg, Connaught Place, New Delhi. The deceased was staying on rent with his friend Prakash Chand Joshi at Quarter No.124/16, Railway Colony, Kishan Ganj, Delhi. On 09.12.2009 PW-10 the complainant had received information about commission of suicide by deceased on which the complainant had reached at Delhi on 11.12.2009. A suicide note was also found with the deceased in which the three accused were found responsible for having levelled false allegations SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 2 of 32 of theft against the deceased. By troubling the deceased on such false allegation of theft and to falsely implicate the deceased the accused person had forced the deceased to commit suicide by consuming some poison. FIR Ex.PW1/A was registered in the matter on 11.12.2009 and the occurrence of offence is dated 09.12.2009.
2. Vide DD No.17A dated 09.12.2009 at 1:15 PM the information was given by Prakash Chand Joshi that he is employee of Railway. He was staying with his friend Pappu Kumar Negi the deceased. On 08.12.2009 he went on his duty at 8:30 AM and when he returned on 09.12.2009 at 12:30 PM then he found his friend Pappu Kumar Negi in unconscious condition. The information was received by DO who had sent Ct. Satbir to ASI Ramdhare Sahab for further inquiry. FIR Ex.PW1/A was registered in the matter. The case was investigated and after investigation the charge-sheet was filed. The suicide note was seized vide memo Ex.PW5/A and the suicide note is Ex.PW8/B. Ex.PW7/A and Ex.PW7/B are another letter written by deceased for taking advance from company/ his employer. The cognizance of the offence was taken and the accused person were summoned.
3. Charge was given to the accused on 02.12.2015 under Section 306/34 IPC to which all the accused pleaded not guilty and claimed trial. Prosecution has examined PW-1 to PW-20 as evidence against the accused. The statement of accused Rajiv Makan, Tajinder Singh and Mohd. Umer was recorded under Section 313 Cr. P. C. on 13.09.2024. All the accused have preferred not to lead evidence in defence.
SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 3 of 324. The ld. Counsel for accused has relied on following citations:
(i) Prabhu Vs. The State Rep. by the Inspector of Police & Anr. in SLP (Crl.) Diary No. 39981/2022 at relevant para no.
9 and 10.
(ii) Vikas Chandra Vs. State of Uttar Pradesh & Anr. 2024 SCC Online SC 1534 at relevant para no. 19.
(iii) Asha Rani Vs. State of NCT of Delhi & Ors. 2024 SCC Online Del 2578 at relevant para no. 20 to 23.
(iv) Madan Mohan Singh Vs. State of Gujarat & Anr. (2010) 8 SCC 628 at relevant para no. 11 to 14.
(v) Ramesh Kumar Vs. State of Chhattisgarh (2001) 9 SCC 618 at relevant para no. 12.
5. Final arguments are heard on behalf of both the parties and record perused.
6. The relevant para of citation titled State of Govt of NCT of Delhi vs. Hanuman Singh Bisht and Anr. is reproduced hereasunder:
The Hon'ble High Court of Delhi in case titled State Govt of NCT of Delhi vs Hanuman Singh Bisht & Anr on 10 October, 2023 in CRL.REV.P. 3/2017= (2023) 5 HCC (Del) 579 : 2023 SCC Online Del 6474 has held as under: 4.4 The Supreme Court in Asim Shariff V National Investigation Agency, (2019) 7 SCC 148 opined that the trial court is not expected or supposed to hold a mini trial for the purpose of marshalling the evidence on record. The Supreme Court in State of Karnataka V M.R. Hiremath, (2019) 7 SCC 515 held that it is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. The Supreme Court in Ghulam Hassan Beigh V Mohammad Maqbool Magrey& Others, Criminal SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 4 of 32 Appeal No. 001041 of 2022 (Arising Out of S.L.P. (Criminal) no 4599 OF 2021) decided on 26th July, 2022 observed as under:-
Thus from the aforesaid, it is evident that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law. However, the material which is required to be evaluated by the Court at the time of framing charge should be the material which is produced and relied upon by the prosecution. The sifting of such material is not to be so meticulous as would render the exercise a mini trial to find out the guilt or otherwise of the accused. All that is required at this stage is that the Court must be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. Even a strong suspicion would suffice. Undoubtedly, apart from the material that is placed before the Court by the prosecution in the shape of final report in terms of Section 173 of CrPC, the Court may also rely upon any other evidence or material which is of sterling quality and has direct bearing on the charge laid before it by the prosecution. (See: Bhawna Bai v. Ghanshyam, (2020) 2 SCC 217).
5. Section 306 IPC deals with abetment of suicide and reads as under:-
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.
The abetment is defined under Section 107 IPC which reads as under:-
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 wilful misrepresentation, or by wilful 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 SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 5 of 32 thing.
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.
5.1 The Supreme Court in various decisions has considered scope of section 306 IPC in ascertain culpability of the accused. The Supreme Court in Geo Varghese V State of Rajasthan and another, 2021 SCC OnLine SC 873 has re-examined the provisions of Section 306 IPC along with the definition of abetment under Section 107 IPC and observed as under:-
15. Section 306 of IPC makes abetment of suicide a criminal offence and prescribes punishment for the same.
16. The ordinary dictionary meaning of the word instigate' is to bring about or initiate, incite someone to do something. This Court in the case of Ramesh Kumar Vs. State of Chhattisgarh has defined the word instigate' as under:-
Instigation is to goad, urge forward, provoke, incite or encourage to do an act.
17. The scope and ambit of Section 107 IPC and its corelation with Section 306 IPC has been discussed repeatedly by this Court. In the case of S.S.Cheena Vs. Vijay Kumar Mahajan and Anr(2010) 12 SCC 190, it was observed as under:-
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 the Supreme 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.
5.2 The Supreme Court in M. Arjunan V State, represented by its Inspector of Police, (2019) 3 SCC 315 considered ingredients of section 306 IPC in detail and observed as under:-
The essential ingredients of the offence under Section 306 I.P.C.SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 6 of 32
are:
(i) the abetment;
(ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide.
The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied, accused cannot be convicted under Section 306 I.P.C.
5.3 The Supreme Court in Ude Singh & Others V State of Haryana, (2019) 17 SCC 301 held that in order to convict an accused under Section 306 IPC, the state of mind to commit a particular crime must be visible with regard to determining the culpability. It was observed as under:-
16. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act/s of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behavior and responses/reactions. In the case of accusation for abetment of suicide, the Court would be looking for cogent and convincing proof of the act/s of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case.
16.1 For the purpose of finding out if a person has abetted commission of suicide by another; the consideration would be if the accused is guilty of the act of instigation of the act of suicide.
As explained and reiterated by this Court in the decisions above referred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed suicide had been hypersensitive and the action of accused is otherwise not ordinarily expected to induce a similarly circumstanced person to commit suicide, it may not be safe to hold the accused guilty of abetment of suicide. But, on the other hand, if the accused by his SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 7 of 32 acts and by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to commit suicide, the case may fall within the four-corners of Section 306 IPC. If the accused plays an active role in tarnishing the self-esteem and self-respect of the victim, which eventually draws the victim to commit suicide, the accused may be held guilty of abetment of suicide. The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. Such being the matter of delicate analysis of human behaviour, each case is required to be examined on its own facts, while taking note of all the surrounding factors having bearing on the actions and psyche of the accused and the deceased.
5.4 The Supreme Court in Mariano Anto Bruno & another V The Inspector of Police, Criminal Appeal No. 1628 of 2022 decided on 12.10.2022 after referring above referred decisions rendered by the Supreme Court in context of culpability under section 306 IPC observed as under:-
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 their 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.
5.4.1 The Supreme Court also referred Ramesh Kumar V State of Chhattisgarh, (2001) 9 SCC 618 wherein the conviction for the offence under Section 306 IPC was set aside as ingredients of Section 306 IPC were not established. It was observed as under:-
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 SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 8 of 32 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 West Bengal v. Orilal Jaiswal and Anr.10, 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 the 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.
5.5 The Supreme court in Gurcharan Singh V State of Punjab, (2020) 10 SCC 200 observed that whenever a person instigates or intentionally aids by any act or illegal omission, the doing of a thing, a person can be said to have abetted in doing that thing. 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.
5.6 The Supreme Court in Kashibai & Others V The State of Karnataka, Criminal Appeal No.000627of 2023 (arising out of SLP (Crl.) No. 8584/2022) decided on 28.02.2023 observed that to bring the case within the purview of 'Abetment' under Section 107 IPC, there has to be an evidence with regard to the instigation, conspiracy or intentional aid on the part of the accused and for the purpose proving the charge under Section 306 IPC, also there has to be an evidence with regard to the positive act on the part of the accused to instigate or aid to drive a person to commit suicide.
6. The Supreme Court in Netai Dutta V State of W.B., (2005) 2 SCC 659 regarding suicide note observed as under:-
5. There is absolutely no averment in the alleged suicide note that the present appellant had caused any harm to him or was in any way responsible for delay in paying salary to deceased Pranab Kumar Nag. It seems that the deceased was very much dissatisfied with the working conditions at the workplace. But, it may also be noticed that the deceased after his transfer in 1999 had never SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 9 of 32 joined the office at 160, B.L. Saha Road, Kolkata and had absented himself for a period of two years and that the suicide took place on a 16-2-2001. It cannot be said that the present appellant had in any way instigated the deceased to commit suicide or he was responsible for the suicide of Pranab Knmar Nag. An offence under Section 306 IPC would stand only if there is an abetment for the commission of the crime. The parameters of ―abetment have been stated in Section 107 of the Indian Penal Code. Section 107 says that a person abets the doing of a thing, who instigates any person to do that thing; or 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, or the person should have intentionally aided any act or illegal omission.
The Explanation to Section 107 says that any wilful misrepresentation or wilful concealment of a material fact which he is bound to disclose, may also come within the contours of ―abetment.
6. In the suicide note, except referring to the name of the appellant at two places, there is no reference of-any act or incidence whereby the appellant herein is alleged to have committed any wilful act or omission or intentionally aided or instigated the deceased Pranab Kumar Nag in committing the act of suicide.
There is no case that the appellant has played any part or any role in any conspiracy, which ultimately instigated or resulted in the commission of suicide by deceased Pranab Kumar Nag.
6.1 The Supreme Court in Madan Mohan Singh V State of Gujurat & another, Criminal Appeal No 1291 of 2008 decided on 17.08.2010 regarding evidentiary value of suicide note opined as under:-
8.....We are convinced that there is absolutely nothing in this suicide note or the FIR which would even distantly be viewed as an offence much less under Section 306, IPC. We could not find anything in the FIR or in the so-called suicide note which could be suggested as abetment to commit suicide. In such matters there must be an allegation that the accused had instigated the deceased to commit suicide or secondly, had engaged with some other person in a conspiracy and lastly, that the accused had in any way aided any act or illegal omission to bring about the suicide. In spite of our best efforts and microscopic examination of the suicide note and the FIR, all that we find is that the suicide note is a rhetoric document in the nature of a departmental complaint. It also suggests some mental imbalance on the part of the deceased which he himself describes as depression. In the so-called suicide note, it SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 10 of 32 cannot be said that the accused ever intended that the driver under him should commit suicide or should end his life and did anything in that behalf. Even if it is accepted that the accused changed the duty of the driver or that the accused asked him not to take the keys of the car and to keep the keys of the car in the office itself, it does not mean that the accused intended or knew that the driver should commit suicide because of this. In order to bring out an offence under Section 306, IPC specific abetment as contemplated by Section 107, IPC on the part of the accused with an intention to bring out the suicide of the concerned person as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306, IPC. We are of the clear opinion that there is no question of there being any material for offence under Section 306, IPC either in the FIR or in the so-called suicide note.
10. As regards the suicide note, which is a document of about 15 pages, all that we can say is that it is an anguish expressed by the driver who felt that his boss (the accused) had wronged him. The suicide note and the FIR do not impress us at all. They cannot be depicted as expressing anything intentional on the part of the accused that the deceased might commit suicide. If the prosecutions are allowed to continue on such basis, it will be difficult for every superior officer even to work.
7. The Additional Public Prosecutor for the petitioner argued that the impugned order is legally not sustainable and erroneous as the trial court indulged in a mini trial at stage of passing the impugned order. The trial court has not appreciated the suicide note left by the deceased in right and legal perspective which is reflective of clear, deliberate and unambiguous role of the respondents in abetting the suicide of the deceased. The impugned order is not supported by well-defined reasons.
7.1 The counsel for the respondents argued that it is reflecting that the deceased was not happy with relation of the respondent no 1 with the respondent no 2 which cannot be accepted as an act to instigate the deceased to take extreme steps. There was no positive act on part of the respondents which can be said to instigate the deceased to commit suicide. The trial court has rightly passed the impugned order after considering relevant facts and material. The present petition is liable to be dismissed. The counsel for the respondent submitted written submissions and relied on judgement titled as Arnab Manoranjan Goswami V State of Maharashtara (2021) 2 SCC 427, and also cited other case laws.SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 11 of 32
8. It is reflecting that the deceased was son of the respondent no.1 and the respondent no.1 was not staying with his family including the deceased. The respondent no.1 was not taking appropriate care of his family. The respondent no.1 was/is staying with the respondent no 2. There is nothing on record to establish that marriage between Saraswati Devi, mother of the deceased and the respondent no.1 has even been dissolved in legal way. The deceased was not happy with relationship between the respondents and was under depression. The respondents also implicated the deceased and his brother in a criminal case under sections 307/34 IPC. Saraswati Devi, mother of the deceased also filed a petition for claiming maintenance against the respondent no.1. The family of the respondent no.1 also filed various complaints against the respondents. The prime act as per prosecution which compelled the deceased to commit suicide was relationship between the respondents and the respondent no. 1 was not taking care and did not maintain his family including the deceased. The issue which needs judicial consideration is that these acts are sufficient to compel the deceased to commit suicide.
9. It is an accepted legal position which is emerging from above referred decisions that abetment to commit suicide should involve positive act on the part of the accused to instigate or aid in committing suicide and there should be clear mens rea to commit the offence. The act complained of must be intended to push the deceased to commit suicide and there must be a proof of direct or indirect act/s of incitement to the commission of suicide. The Court should look for cogent and convincing acts of incitement towards the commission of suicide. The mere allegations of harassment caused to the deceased by the accused would not suffice unless such acts compel the person to commit suicide and such offending acts must be proximate to the time of occurrence. If the deceased happened to be hypersensitive and his action of committing suicide is not ordinarily expected to induce a similarly circumstanced person to commit suicide then it may not safe to hold the accused guilty of abetment of suicide. However if the accused by his acts and continuous course of conduct creates a situation leading the deceased to commit suicide, then case may be covered under section 306 IPC. There should be evidences pertaining to the positive act on the part of the accused to instigate or aid to drive the deceased to commit suicide.
10. The deceased was not happy with relationship between the respondents rather has not accepted their relationship. The deceased was under depression as reflected from suicide note.
Mere relationship of the respondent no 1 with the respondent no 2 cannot be said that the respondents had in any way instigated the SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 12 of 32 deceased to commit suicide or were responsible for the suicide of the deceased. The suicide note only reflects dissatisfaction of the deceased due to relationship of the respondents. There is absolutely nothing in suicide note or FIR which could be suggestive of abetment to commit suicide on the part of the respondents. The suicide note is just expressing dissatisfaction of the deceased for conduct of the respondent no.1 towards the family and psychological condition of the deceased which he himself describes as depression. The suicide note does not reflect that the respondents ever intended the deceased to commit suicide or end his life. Even if the respondent no.1 was living with the respondent no.2 without divorcing his wife i.e. mother of the deceased and was not taking appropriate care for family, it does not mean that the respondents ever intended to incite the deceased to commit suicide. There is nothing on the part of the respondents which can establish their intention to compel the deceased to commit suicide as required under section 107 IPC. The suicide note is merely reflective of expression of anguish and anger of the deceased which he felt for the conduct of the respondents and in particular conduct of his father i.e. the respondent no.1. The contents of the suicide note do not either refer or make out the offence punishable under section 306 IPC against the respondents. The evidences against the respondents as collected after investigation are not sufficient and definite to put them to trial for the offences punishable under sections 306/34 IPC. The pain and sufferings of the deceased during his life time and the complainant i.e. mother of the deceased are understandable as a young boy has committed suicide but the sympathies, pain and suffering of the complainant cannot be transformed or translated into legal remedies i.e. for criminal prosecution against the respondents.
7. It is seen that the nature of relationship between the deceased and the accused person was of employer and employee in respect of which the ingredients under Section 306 IPC and incitement thereunder are divided under two category. The first is where the accused had sentimental ties or physical relations with the accused and the second was where the deceased was having relation with the accused in official capacity. Such relationships of sentimental tie cannot be equated with the official relationship. The sentimental tie leads to more expectations whereas the official relationship has expectation and obligations as SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 13 of 32 prescribed by law, rules, policies and regulations. It has to be seen that whether there is anything prima facie to indicate that the accused intended consequences of the act which is suicide. The relevant law in this regard was laid in citation titled Nipun Aneja and Ors. vs. State of UP the relevant para of which are reproduced hereinunder:
The Hon'ble Supreme Court of India in Criminal Appeal No 654 of 2017 case titled Nipun Aneja and Others Versus State of Uttar Pradesh 20 This Court in Mariano Anto Bruno & another v. The Inspector of Police reported in 2022 SCC OnLine SC 1387, Criminal Appeal No. 1628 of 2022 decided on 12th October, 2022, after referring to the above referred decisions rendered in context of culpability under Section 306 of the IPC observed as under:-
"44. ...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 their 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."21 The ingredients to constitute an offence under Section 306 of the IPC (abetment of suicide) would stand fulfilled if the suicide is committed by the deceased due to direct and alarming encouragement/incitement by the accused leaving no option but to commit suicide. Further, as the extreme action of committing suicide is also on account of great disturbance to the psychological imbalance of the deceased such incitement can be divided into two broad categories. First, where the deceased is having sentimental ties or physical relations with the accused and the second category would be where the deceased is having relations with the accused in his or her official capacity. In the case of former category sometimes a normal quarrel or the hot exchange of words may result into immediate psychological imbalance, consequently creating a situation of depression, loss of charm in life and if the person is unable to control sentiments of expectations, it may give temptations to the person to commit suicide, e.g., when there is relation of husband and wife, mother and son, brother and sister, sister and sister and other relations of such type, where sentimental tie is by blood or due to physical relations. In the case of second category the tie is on account of official relations, where the expectations would be to discharge the obligations as provided for such duty in law and to receive the considerations as provided in law. In normal SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 14 of 32 circumstances, relationships by sentimental tie cannot be equated with the official relationship. The reason being different nature of conduct to maintain that relationship. The former category leaves more expectations, whereas in the latter category, by and large, the expectations and obligations are prescribed by law, rules, policies and regulations.
22 The test that the Court should adopt in this type of cases is to make an endeavour to ascertain on the basis of the materials on record whether there is anything to indicate even prima facie that the accused intended the consequences of the act, i.e., suicide. Over a period of time, the trend of the courts is that such intention can be read into or gathered only after a full fledged trial. The problem is that the courts just look into the factum of suicide and nothing more. We believe that such understanding on the part of the courts is wrong. It all depends on the nature of the offence & accusation. For example, whether the accused had the common intention under Section 34 of the IPC could be gathered only after a full-fledged trial on the basis of the depositions of the witnesses as regards the genesis of the occurrence, the manner of assault, the weapon used, the role played by the accused etc. However, in cases of abetment of suicide by and large the facts make things clear more particularly from the nature of the allegations itself. The Courts should know how to apply the correct principles of law governing abetment of suicide to the facts on record. It is the inability on the part of the courts to understand and apply the correct principles of law to the cases of abetment of suicide, which leads to unnecessary prosecutions. We do understand and appreciate the feelings and sentiments of the family members of the deceased and we cannot 2nd any fault on their part if they decide to lodge a First Information Report with the police. However, it is ultimately for the police and the courts of law to look into the matter and see that the persons against whom allegations have been levelled are not unnecessarily harassed or they are not put to trial just for the sake of prosecuting them. 23 In the case on hand, the entire approach of the High Court could be said to be incorrect. The High Court should have examined the matter keeping in mind the following:
(a) On the date of the meeting, i.e., 03.11.2006, did the appellants create a situation of unbearable harassment or torture, leading the deceased to see suicide as the only escape? To ascertain this, the two statements of the colleagues of the deceased referred to by us were sufficient.
(b) Are the appellants accused of exploiting the emotional vulnerability of the deceased by making him feel worthless or underserving of life leading him to commit suicide?SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 15 of 32
(c) Is it a case of threatening the deceased with dire consequences, such as harm to his family or severe financial ruin to the extent that he believed suicide was the only way out?
(d) Is it a case of making false allegations that may have damaged the reputation of the deceased & push him to commit suicide due to public humiliation & loss of dignity.
24 The aforesaid are just illustrations that could be considered as abetment under the law in the facts & circumstances of a given case.
25 In the overall view of the matter, we are convinced that putting the appellants to trial on the charge that they abetted the commission of suicide by the deceased will be nothing but abuse of process of law. In our opinion, no case worth the name against the appellants is made out.
8. It was further held in case titled Prabhat Kumar Mishra vs. State of UP at relevant para No.40 to 48 that a reasonable certainty to incite the consequence must be capable of being spelled out. A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. It has to be seen that whether the victim was hyper sensitive, he has difference and discord in domestic life, the society to which the victim belong and the conscience of the Court should be satisfied. Each person suicidability pattern is different from others. Without a positive act on the part of the accused to instigate or aid in committing suicide conviction cannot be sustained. There has to be clear mens rea to commit the offence. The relevant para are reproduced hereinunder:
Prabhat Kumar Mishra @ Prabhat Mishra vs The State of U.P. on 5 March, 2024 Criminal Appeal No(S).of 2024 (Arising out of SLP(Crl.) No(s). 9591 of 2022) =2024 INSC 172=[2024] 3 S.C.R. 157
40. The learned counsel also placed reliance on yet another judgment of this Court in Ramesh Kumar v. State of Chhattisgarh [(2001) 9 SCC 618], in which a three- Judge Bench of this Court had an occasion to deal with the case of a similar nature. In a SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 16 of 32 dispute between the husband and wife, the appellant husband uttered "you are free to do whatever you wish and go wherever you like". Thereafter, the wife of the appellant Ramesh Kumar committed suicide.
41. This Court in SCC para 20 of Ramesh Kumar [(2001) 9 SCC 618 has examined different shades of the meaning of "instigation".
Para 20 reads as under: (SCC p. 629) "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. In the said case this Court came to the conclusion that there is no evidence and material available on record wherefrom an inference of the appellant- accused having abetted commission of suicide by Seema (the appellant's wife therein) may necessarily be drawn.
42. In State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73], this Court has cautioned that (SCC p. 90, para 17) 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 appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life, quite common to the society, to which the victim belonged and such petulance, discord and difference 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.
43. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) [(2009) 16 SCC 605] had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the word "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 others. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straitjacket SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 17 of 32 formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.
44. 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.
45. The intention of the legislature and the ratio of the cases decided by this Court are 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 this act must have been intended to push the deceased into such a position that he/she committed suicide.
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48. In the instant case, what to talk of instances of instigation, there are even no allegations against the appellants. There is also no proximate link between the incident of 14-1-2005 when the deceased was denied permission to use the Qualis car with the factum of suicide which had taken place on 18-1-2005. Undoubtedly, the deceased had died because of hanging. The deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day-to-day life. In a joint family, instances of this kind are not very uncommon. Human sensitivity of each individual differs from person to person. Each individual has his own idea of self-esteem and self-respect. Different people behave differently in the same situation. It is unfortunate that such an episode of suicide had taken place in the family. But the question that remains to be answered is whether the appellants can be connected with that unfortunate incident in any manner?
9. In the present case it is the case of the prosecution that the accused had threatened the deceased with false accusation of theft. The suicide note is Ex.PW8/B in which it is recorded that the accused person had falsely levelling allegation of theft on the deceased. The accused Mohd. Umer had threatened the deceased to kill him and some boys were also sent behind the deceased. After reading the entire suicide note it cannot be made out that regarding theft of what article the deceased was SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 18 of 32 falsely accused.
10. PW-7 has deposed that he was working as Account Executive in Travel Services International Pvt. Ltd. who had handed over the applications and vouchers relating to deceased to the IO vide Ex.PW7/A to Ex.PW7/B. It is deposed that Sh. Gulshan Nagpal was Cashier of the Firm. PW-9 is the father of deceased who has received dead-body of the deceased vide memo Ex.PW9/A. PW-10 Sh. Anand Singh Rawat the complainant came to know about suicide by his brother-in-law from his relatives on telephone and also from the police. He came to know from suicide note about false implication of the deceased in theft case by accused. The deceased was depressed and it is deposed that suicide was committed by consuming poison which is contrary to deposition of PW-3 Dr. Akash Jhanjee that the viscera was negative for common poison and no definite opinion could be given on the basis of material at hand. However three external injuries were found on the body of the deceased which are as under:
1. Abrasion reddish 1.2 c.m. X 0.3 c.m. horizontally placed over right side forehead lying 4.1 c.m. above inner half of right eyebrow.
2. Abrasion reddish 2 c.m. X 0.6 c.m. over left forehead horizontally placed lying 3.7 c.m. above inner half of left eyebrow.
3. Abrasion reddish 1.5 c.m. X 0.3 c.m. over right forehead region inner half lying 1.1 c.m. above right eyebrow inner end.SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 19 of 32
11. It is deposed by PW-3 that the time since death was around 02 days from the time starting the postmortem. The postmortem report is Ex.PW3/A. There is no definite opinion as to the cause of death as the viscera report was negative for common poisoning. However the nature of injuries reported by PW-3 on the deceased are not reported as antemortem or postmortem or the expected period before which such injuries could have been caused. It is not the case of the prosecution that the deceased was beaten or assaulted before his death.
12. PW-9 has deposed in examination-in-chief that he is father of the deceased whereas in cross-examination he has deposed that the deceased was not his son and he was son of co-villager namely Sh. Shyam Singh Negi. PW-10 the brother-in-law of deceased has knowledge about the facts and circumstances of the suicide committed by the deceased only from the suicide note Ex.PW8/B. The suicide note mentions that accused no. 3 Mohd. Umer had sent some boys behind the deceased who went till the room of the deceased and they have killed the deceased. The boys who allegedly went at the instance of accused no. 3 could not be identified nor they were traced out by the prosecution. The suicide note mentions about false allegation of theft levelled against the deceased and that accused no. 3 had threatened to kill the deceased. It is settled law that in a particular case there may not be direct evidence in regard to instigation which may have direct nexus to the suicide and in such a case inference has to be drawn from the circumstances and it is to be determined as to whether circumstances had to be such which had created the situation that a person felt totally frustrated and committed suicide. The above law was discussed in case titled Dr. Shivani Nishad and Ors.
SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 20 of 32Vs. State of M.P. & Ors. Misc. Criminal Case No. 27101 of 2023 = 2024 SCC OnLine MP 2945 the relevant para of which are reproduced hereasunder:
The Hon'ble Madhya Pradesh High Court in case titled Dr. Shivani Nishad and other vs The State of Madhya Pradesh and other on 7 May, 2024 in MISC. CRIMINAL CASE No. 27101 of 2023 = 2024 SCC OnLine MP 2945
11. The Supreme Court in the case of Praveen Pradhan vs. State of Uttaranchal and Anothers reported in (2012) 9 SCC 734 held as under :-
"17. The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the person who has abetted. The abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 IPC. However, the words uttered in a fit of anger or omission without any intention cannot be termed as instigation. (Vide: State of Punjab v. Iqbal Singh ((1991) 3 SCC 1), Surender v. State of Haryana ((2006) 12 SCC 375, Kishori Lal v. State of M.P.( (2007) 10 SCC 797) and Sonti Rama Krishna v. Sonti Shanti Sree ((2009) 1 SCC 554)
18. In fact, from the above discussion it is apparent that instigation has to be gathered from the circumstances of a particular case. No straitjacket formula can be laid down to find out as to whether in a particular case there has been instigation which forced the person to commit suicide. In a particular case, there may not be direct evidence in regard to instigation which may have direct nexus to suicide. Therefore, in such a case, an inference has to be drawn from the circumstances and it is to be determined whether circumstances had been such which in fact had created the situation that a person felt totally frustrated and committed suicide. More so, while dealing with an application for quashing of the proceedings, a court cannot form a firm opinion, rather a tentative view that would evoke the presumption referred to under Section 228 CrPC."
12. The Supreme Court in the case of Sanju @ Sanjay Singh Sengar vs. State of M.P. reported in (2002) 5 SCC 371 has held as under :-
"6. Section 107 IPC 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 SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 21 of 32 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."
Further, in para 12 of the judgment, it is held as under:
"12. ..... The word "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. ...."
13. The Supreme Court in the case of Gangula Mohan Reddy vs. State of Andhra Pradesh reported in (2010) 1 SCC 750 needs mentioned here, in which Hon'ble Apex Court has held that "abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on part of accused to instigate or aid in committing suicide, conviction cannot be sustained. In order to convict a person under section 306 IPC, there has to be a clear mens rea to commit offence. It also requires an active act or direct act which leads deceased to commit suicide seeing no option and this act must have been intended to push deceased into such a position that he commits suicide. Also, reiterated, if it appears to Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to society to which victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstances individual in a given society to commit suicide, conscience of Court should not be satisfied for basing a finding that accused charged of abetting suicide should be found guilty. Herein, deceased was undoubtedly hypersensitive to ordinary petulance, discord circumstances of case, none of the ingredients of offence under Section 306 made out. Hence, appellant's conviction, held unsustainable".
14. In the case of State of West Bengal vs. Orilal Jaiswal and Another reported in (1994) 1 SCC 73, the Supreme Court has held that "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 the life by committing suicide. If it appears 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 that accused charged of abetting the offence of suicide should SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 22 of 32 be found guilty."
15. The Supreme Court in the case of M. Mohan vs. State represented by the Deputy Superintendent of Police reported in AIR 2011 SC 1238 has held that "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 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 this act must have been intended to push the deceased into such a position that he/she committed suicide."
16. The Supreme Court in the case of Kishori Lal vs. State of M.P. reported in (2007) 10 SCC 797 has held in para 6 as under:-
"6. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in IPC. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing.
These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence.
"Abetted" in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence."
17. In the case of Amalendu Pal @ Jhantu vs. State of West Bengal reported in (2010) 1 SCC 707, the Supreme 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 SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 23 of 32 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 their 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 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.
15. In view of the aforesaid situation and position, we have examined the provision of clause thirdly which provides that a person would be held to have abetted the doing of a thing when he intentionally does or omits to do anything in order to aid the commission of that thing. The Act further gives an idea as to who would be intentionally aiding by any act of doing of that thing when in Explanation 2 it is provided as follows:
"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 facilitates the commission thereof, is said to aid the doing of that act."
16. Therefore, the issue that arises for our consideration is whether any of the aforesaid clauses namely firstly alongwith explanation 1 or more particularly thirdly with Explanation 2 to Section 107 is attracted in the facts and circumstances of the present case so as to bring the present case within the purview of Section 306 IPC."
SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 24 of 3218. The Supreme Court in the case of Amit Kapur vs. Ramesh Chander and Another reported in (2012) 9 SCC 460 has held as under :-
''35. The learned counsel appearing for the appellant has relied upon the judgment of this Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) (2009) 16 SCC 605 to contend that the offence under Section 306 read with Section 107 IPC is completely made out against the accused. It is not the stage for us to consider or evaluate or marshal the records for the purposes of determining whether the offence under these provisions has been committed or not. It is a tentative view that the Court forms on the basis of record and documents annexed therewith. No doubt that the word "instigate" used in Section 107 IPC has been explained by this Court in Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618 to say that where the accused had, by his acts or omissions or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, an instigation may have to be inferred. In other words, instigation has to be gathered from the circumstances of the case. All cases may not be of direct evidence in regard to instigation having a direct nexus to the suicide. There could be cases where the circumstances created by the accused are such that a person feels totally frustrated and finds it difficult to continue existence. ....''
19. The Supreme Court in the case of Ramesh Kumar Vs. State of Chhattisgarh reported in (2001) 9 SCC 648 has held that "a word uttered in the 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 of abetting the offence of suicide should be found guilty."
20. The Supreme Court in the case of Kumar @ Shiva Kumar Vs. State of Karnataka decided on 01.03.2024 in Criminal Appeal No.1427/2011 has also laid down the same law.
21. The Supreme Court in the case of UDE Singh (supra) has held as under:
"21. In the given set-up and the respective position of the parties, if Accused 1 continuously addressed or called the deceased girl as his "wife", in our view, the utterance was not merely of teasing but of demeaning and destroying the self-esteem of the young girl whose engagement had broken and whose uncle was mocking her to join SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 25 of 32 him in matrimony. It was the act of humiliation of highest order for the girl, who had personally suffered the set-back of broken engagement, apart from that she was unable to clear even 10th standard examination. Obviously, she was being ridiculed and taunted for her broken engagement. The other accused persons chose to join Accused 1 and aggravated the humiliation of the girl by addressing her as younger brother's wife or aunt. There remains nothing to doubt that the accused persons were working with the common intention to harass and humiliate the girl with reference to her broken engagement. The significant part of the matter is that such taunting and humiliation of the deceased at the hands of the accused persons had not been a singular event or one- off affair but had been a continuous feature, as amply established by the prosecution witnesses. The incident of 5-5-1996 drew the final straw when the hapless girl received the same taunts from the accused persons and she even rebuked them. We find no reason to disbelieve the statement of PW 2 Jai Narain as regards the incident of 5-5-1996. Equally, there is no reason to disbelieve the statement of PW 11 Smt Krishna that her daughter wept the whole night after the said incident; and on being frustrated and exasperated with such humiliations, expressed her intention to end her life. The fact of the matter remains that the victim girl ended her life in the early morning very next day.
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24. As held by the Supreme Court in the case of UDE Singh (supra) a constant threat to falsely implicate the deceased in a case of rape and eve teasing and to send him to jail would not be a mere empty threat but it would demean and destroy his self-esteem as well as his career by branding him as a criminal of committing a heinous crime of rape and by ensuring that the deceased is lodged in jail on the basis of false allegations. If the deceased was afraid and was apprehensive of destruction of his self-esteem and respect in the society, then on account of daily humiliation at the hands of the accused persons, if the deceased committed suicide, then prima facie an offence under Section 306 of IPC would be made out.
13. It is necessary to know that what was the false allegations against the deceased imputed by the accused person to ascertain the hypersensitive nature, if any, of the deceased. Whether a similarly circumstanced individual in a given society would commit suicide to the satisfaction of conscience of the Court. The above fact is also necessary SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 26 of 32 to ascertain the nature and gravity of instigation, if any, and whether the cruelty and harassment had left the victim with no other alternative but to put an end to his life. Such instigation has to be proximate to the time of occurrence. The above fact is necessary to be proved to verify if the deceased was instigated by the accused person. This is the first ingredient of offence under Section 107 IPC. More than this from the same fact it has to be ascertained the intention of the accused to aid or to instigate or abet the deceased to commit suicide. The satisfaction of both the ingredient is necessary for completion of offence. In absence of proof of fact of false allegation that was falsely made out against the deceased by the accused it cannot be held that there was any abetment or intention thereof by the accused against the deceased to commit suicide.
14. The prosecution has successfully proved by deposition of PW-8 that Q1 to Q5 in Ex.PW8/B pertains to the deceased Pappu Negi when compared to admitted writing Mark A1 to A4. The Q1 to Q5 are part of suicide note Ex.PW8/B and A1 to A5 are part of document available with the Travel Services International vide Ex.PW7/A, Ex.PW7/B, Ex.PW7/C. The report of handwriting expert is Ex.PW8/A and it is proved on record that the said handwriting in suicide note belongs to the deceased.
15. PW-11 is wife of the deceased who has deposed that she had received telephone call 03 days before the death of her husband that three officers of the company were harassing him and they were falsely implicating him in some case due to which her husband was depressed and committed suicide. In cross-examination it is admitted by her that her husband did not inform her the name of the employer. Her husband was SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 27 of 32 on leave from 07.12.2009 to 08.12.2009. Her father-in-law had expired one month prior to death of her husband. She had come to Delhi after 2 or 3 days of death of her husband. She met police official in March 2010. She was confronted with her statement portion A to A of Mark PW12/D1 recorded under Section 161 Cr. P.C. stating before the police that accused person had no role in the death of her husband and she did not want any legal case against the accused person. Further, she was confronted with portion B to B in her above statement where she stated before the police that her husband used to remain upset after death of her father-in-law. Hence nothing incriminating has come on record against the accused person in evidence of PW-12.
16. It is pointed out by the ld. Counsel for the accused that in cross- examination of PW-7 dated 04.08.2018 that the name of the Cashier was Gulshan Nagpal and not the accused person. PW-5 in examination-in- chief dated 17.02.2018 at page 1 has deposed that there was a suicide note lying near the dead body. In cross-examination dated 15.03.2018 it is further deposed by PW-5 that the crime team photographer had taken the photograph of the spot before the suicide note was lifted by ASI Ramdhare. PW-6 has also deposed in his examination-in-chief that the suicide note was lying near the dead body whereas in cross-examination the PW-6 has deposed that suicide note was found inside the pocket of the trouser worn by the deceased. However the said finding of suicide note either in trouser or outside near the body is not seen as a major contradiction. Secondly, the PW-6 was not confronted by the accused with his deposition that the suicide note was lying near the body and the above fact was supported by evidence of PW-5. Further, PW-8 has SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 28 of 32 proved the suicide note in the handwriting of the deceased and no doubt remains to the fact that the suicide note was written by the deceased. When suicide note found in the same room of the deceased then it does not create any doubt to the fact that it was so written by the deceased during his last time.
17. However it is noted that one of the material prosecution witness namely Prakash Chand Joshi who was staying in the same room with the deceased in his last time has not been examined and produced by the prosecution in evidence. Sh. Prakash Chand Joshi was a first person who had reached at the spot having seen the deceased as a first person after his death and therefore he is most material witness to state about the circumstances in which the deceased has expired. No incriminating evidence has come on record even in polygraph test and PW-12 Dr. Himakshi Bhardwaj has deposed that according to polygraph examination and analysis of polygrams the accused no. 3 Mohd. Umer was truthful in his answers. The report is Ex.PW12/A. PW-13 Assistant Director Biology, FSL has deposed that blood could not be detected on any of the exhibits which were one baniyan, one shirt, one underwear, one sweater and one pant/trouser of the deceased. PW-15 has also deposed that the suicide note was found near the dead body. It is deposed by PW-15 that when he had reached at the quarter on 09.12.2009 at 1:30 PM then it was not bolted from inside.
18. In these circumstances of the case as discussed above it is held that prosecution has failed to substantiate the essential ingredients of Section 306 IPC against the accused person. The basic ingredients are not SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 29 of 32 proved in absence of which the investigation and participation of police witness does not advance the case of the prosecution any further. The prosecution has failed to prove that what were the false allegations against the deceased that could have damaged the reputation of the deceased and could have pushed him to commit suicide due to public humiliation and loss of dignity. Further, the prosecution has also failed to prove the complicity of all the accused in the nature of Section 34 IPC in reference of relevant citation which is reproduced hereasunder:
Ram Naresh Vs. State of Uttar Pradesh [Criminal Appeal No. 3577 of 2023] from Hon'ble Supreme Court of India dated 1 December, 2023.
8. A reading of Section 34 of the IPC reveals that when a criminal act is done by several persons with a common intention each of the person is liable for that act as it has been done by him alone.
Therefore, where participation of the accused in a crime is proved and the common intention is also established, Section 34 IPC would come into play. To attract Section 34 IPC, it is not necessary that there must be a prior conspiracy or premeditated mind. The common intention can be formed even in the course of the incident i.e. during the occurrence of the crime.
12. Assistance has been taken of paragraph 26 of the decision of this Court in Krishnamurthy alias Gunodu and Ors. vs. State of Karnataka1, which is reproduced herein below.
"26. Section 34 IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 to apply there should be common intention between the co-perpetrators, which means that there should be community of purpose and common design or prearranged plan. However, this does not mean that co-perpetrators should have engaged in any discussion, agreement or valuation.
For Section 34 to apply, it is not necessary that the plan should be prearranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 30 of 32 requires an inquiry into the antecedents, conduct of the co- participants or perpetrators at the time and after the occurrence. The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or acts of the coassailants/ perpetrators, object and purpose behind the occurrence or the attack, etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34 IPC are satisfied. We must remember that Section 34 IPC comes into operation against the co-perpetrators because they have not committed the principal or main act, which is undertaken/performed or is attributed to the main culprit or perpetrator. Where an accused is the main or final perpetrator, resort to Section 34 IPC is not necessary as the said perpetrator is himself individually liable for having caused the injury/offence. A person is liable for his own acts. Section 34 or the principle of common intention is invoked to implicate and fasten joint liability on other co-participants."
13. A plain reading of the above paragraph reveals that for applying Section 34 IPC there should be a common intention of all the coaccused persons which means community of purpose and common design. Common intention does not mean that the co- accused persons should have engaged in any discussion or agreement so as to prepare a plan or hatch a conspiracy for committing the offence. Common intention is a psychological fact and it can be formed a minute before the actual happening of the incidence or as stated earlier even during the occurrence of the incidence.
14. The aforesaid decision instead of helping the appellant rather supports the prosecution that the appellant was rightly convicted with the aid of Section 34 IPC for the offence of killing the deceased as they all had come armed, assaulted him together and thereafter left the place of occurrence together.
15. The decision in Jasdeep Singh alias Jassu vs. State of Punjab2 to the effect that a mere common intention per se may not attract Section 34 IPC unless the present accused has done some act in furtherance thereof is of no assistance to the appellant as it is writ large on record as per the evidence that the appellant not only had common intention to kill the deceased Ram Kishore but also actively participated in assaulting and giving blows to the deceased Ram Kishore together with the other accused persons.
19. Accordingly it is held that prosecution has failed to prove necessary ingredients of Section 306/34 IPC against all the accused SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 31 of 32 herein due to such lapse in investigation about what was the fact due to which the deceased has committed the suicide. Benefit of doubt is given to all the accused. All the accused stands acquitted of the offence charged against them. The earlier personal bond of accused person stands cancelled and surety bond stands discharged. The documents, if any, be returned to the surety and endorsement on security documents is allowed to be de-endorsed. In terms of Section 437A Cr. PC, accused person have already furnished their bail bond as directed which will be in force for period of six months from the date of this judgment. Case property be confiscated to the State.
File be consigned to Record Room.
Announced in the open Court JOGINDER Digitally signed by on 29.10.2024 JOGINDER PRAKASH PRAKASH NAHAR Date: 2024.10.29 NAHAR 15:31:51 +0530 (JOGINDER PRAKASH NAHAR) ADDITIONAL SESSIONS JUDGE (FTC-01) CENTRAL/TIS HAZARI COURT DELHI SC No. 27547/2016 FIR No. 314/2009 State Vs. Rajiv Makan & Ors. Page 32 of 32