Telangana High Court
Cassandra Mendonca, Mumbai., vs The State Of Telangana, Rep Pp Anr., on 7 November, 2022
Author: G.Radha Rani
Bench: G. Radha Rani
THE HON'BLE Dr. JUSTICE G. RADHA RANI
CRIMINAL REVISION CASE No.500 of 2017
ORDER:
This Criminal Revision Case is filed by the petitioner-A2 aggrieved by the orders dated 06.02.2017 passed in Crl.M.P. No.1183 of 2017 in SC No.127 of 2016 by the VII Additional Metropolitan Sessions Judge, Hyderabad, in dismissing the discharge petition filed by the petitioner.
2. The case of the petitioner was that the Police, Banjara Hills filed charge sheet against her for the offence under Section 306 IPC on a private complaint filed by the elder brother of the deceased, which was referred to the police by the court of the III Additional Chief Metropolitan Magistrate vide SR No.6441 of 2014 dated 29.10.2014. The complainant alleged that on 25.06.2014 at 2.00 PM while he was in Bangalore, he received a phone call from his brother- in-law (A1) informing about the deceased (sister of the complainant) committing suicide. Immediately, the complainant informed the same to all his family members, who were at Chennai and all of them reached Hyderabad at about 6.30 PM. They were taken to Apollo ::2:: Dr.GRR,J Crlrc No.500 of 2017 Hospital. At Apollo Hospital, the complainant and all the members of his family were informed by the police that a suicide note was found in the room where the deceased was found hanging. On the next day, i.e. on 26.06.2014, the dead body was shifted from Apollo Hospital to Osmania General Hospital, where the doctor conducted post mortem examination and issued a report on the same day stating that the death of the deceased was due to hanging. After the death of the deceased, while the complainant was checking his old e-mails, he came across an unread e-mail sent by the deceased on 31.01.2014 narrating about her marital discord. In the said e-mail the deceased stated that her husband (A1) was having illicit intimacy with his colleague in the office at Mumbai, she tried to reason with A1, but A1 was adamant and wanted divorce from her. She was heartbroken to hear that her 12 year old marriage was to end and conducted a background check on the character of the lady with whom her husband was dating and got a negative feedback. She strongly felt that A2 was after A1's money and confronted A1 and A2 during a surprise visit to Mumbai apartment from Hyderabad. Both A1 and A2 seemed unfazed on seeing her and were not willing to give up their relationship. The deceased fell at their feet and begged them to give up their relationship at least for the ::3:: Dr.GRR,J Crlrc No.500 of 2017 sake of their son Pranit, who would need his father. However, A1 and A2 declared that they were madly in love with each other. Shocked at such a revelation, the deceased developed seizures and had to be taken to an emergency. A1 panicked and told her that he would not leave her and their son Pranit. But, then A2 began to threat A1 that she would kill herself if he left her.
2.1 The deceased further stated in the said e-mail that she went back to Hyderabad after which she got a series of health issues. The people around her started calling up A1 and A1 felt that he was responsible for the ill health of the deceased, apologized and promised that he would work on their marriage and also end his affair with A2. The deceased, after the said issue hired a private detective to know if A1 and A2 continued their relationship and found out that both were having clandestine meetings secretly. After coming to know about it the deceased wanted to end her marriage and informed A1 that it was over between them. Hearing this, A1 pleaded forgiveness and promised to mend his ways and to stay away from A2 completely and asked the deceased to give him a last opportunity. A1 seemed to have shown remarkable change and spent quality time with the deceased ::4:: Dr.GRR,J Crlrc No.500 of 2017 and their son. Thereafter, when the deceased visited Mumbai for a week, she was shocked to find out that A1 had subscribed to a website by name "Ashley Madison" - an adult website to find mates - and forgotten to logout from the said website. When the deceased questioned, he started yelling at her and the deceased came to a conclusion that the character of A1 was beyond repair and that she could not be subjected to deceit and breach of trust. As per the e-mail, she had decided to give divorce to A1 and live her life on her own. 2.2 The complainant further submitted that on 21.06.2014, the deceased informed him that A1 left to Delhi on official work and that he would return in a week. But, on 25.06.2014 he received a call from A1 at 2.00 PM informing him that the deceased ended her life by committing suicide. The said information was beyond belief for the complainant as he knew very well that the deceased was a very strong person and was ready to face any challenge or trouble in her life. The complainant submitted that he had taken the services of a private detective to find out about the whereabouts of A1 during June, 2014 and was shocked to learn that there was frequent communication between A1 from his mobile to one 'Saruk'. It was found that the ::5:: Dr.GRR,J Crlrc No.500 of 2017 number in the name of 'Saruk' was being used by A2 and that she was constantly in contact and in conversation with A1. The complainant also came to know that A1 did not go to Delhi on 21.06.2014, but actually went to Bangalore and on the same day, A2 also had joined A1 in Bangalore and both of them were in Bangalore together from 21.06.2014 to 25.06.2014 morning, and on 25.06.2014 A2 boarded a flight to Mumbai around 5.30 AM and A1 boarded the flight to Hyderabad around 7.30 AM. He further contended that A1 and A2 hatched a conspiracy to do away with the life of the deceased. 2.3 On his further probe with the maid servant, the complainant came to know that on 25.06.2014, she came to the house at 9.00 AM and by that time, the son Pranit had left the house and A1 had just come into the house from outside and thereafter both the deceased and A1 went inside the bed room and remained inside for a long time and after completing the work, as she was about to leave the house at around 11.30 AM, she wanted to inform the deceased that she had completed the work, A1 came out of the bedroom and told her that the deceased was sleeping. The maid was surprised to know that the ::6:: Dr.GRR,J Crlrc No.500 of 2017 deceased was sleeping at that time since she normally would not sleep during that time and was always inspecting the work she was doing. 2.4 The complainant further submitted that subsequent to the death of the deceased, he asked A1 to hand over i-Pad and desktop computer used by deceased. A1 handed over i-Pad to their son Pranit few days later and claimed that he could not find the desktop. It created a suspicion to the complainant, as the deceased was in the habit of putting down everything on her desktop and therefore, there were strong reasons for A1 to have caused disappearance of the desktop. When the complainant examined the i-Pad, he was shocked to find out that all the contents (data) used by the deceased were erased by A1. 2.5 The complainant further submitted that as per the statement of A1, he received a whatsapp message from the deceased around 12.40 noon stating that "I want you to come and open the door before Pranit returns from School". On seeing the message, A1 rushed home at around 1.30 PM and called a carpenter. But, the complainant came to know that at around 1.40 PM, A1 rang up A2 and was in conversation with her for almost 7 minutes and after that around 2.05 PM, he called the complainant. Thus, the complainant alleged that it would show ::7:: Dr.GRR,J Crlrc No.500 of 2017 that A1 had committed the crime of murdering the deceased and consequent to the same, fabricated a suicide note which was totally false and far from truth. The deceased was a Post Graduate in English Literature and the proficiency with which she used to speak and write English was reflected in the e-mails and her letters to her parents, complainant and her other elder brother. He contended that a comparison with the earlier writings would clearly go to show that the suicide note was only an act of forgery by A1 or someone who was also an accomplice to the crime. He further contended that the post mortem report was also fabricated, as no Forensic expert of Osmania General Hospital would issue a certificate on the same day and would take at least a fortnight or more to issue the report. In all cases of suicide or suspected deaths, viscera of the deceased would be preserved and sent for forensic expert examination but the doctor, who conducted the PME did not send the viscera to the Forensic Science Laboratory since he had direct contact with A1 and hence gave a false report.
2.6 Basing on the said complaint, the Sub-Inspector of Police of Banjara Hills Police Station registered a case vide Crime No.1399 of ::8:: Dr.GRR,J Crlrc No.500 of 2017 2014 for the offences under Sections 120(B), 302, 406, 465, 471, 197, 201, 203, 218 IPC.
3. The police, after investigation filed charge sheet stating that their investigation revealed that the deceased and A1 met at abroad i.e. in UK and fell in love and got married on 30-11-2001 at Arya Samaj Hyderabad. They got blessed with a son on 24-11-2002 in Glasgow, Scotland. After shifting to Hyderabad, Al demanded for a house. His in-laws purchased a flat bearing No.302 for Al at Jyothi Villa Apartment, Road No.12, Banjara Hills, in the year 2004. They also sent A1 abroad i.e. Manila where father of the deceased spent money to send him. After returning back to Hyderabad in the year 2010, A1 along with deceased and their son were staying in the said apartment. A1 demanded for money and in the year 2011, the father of the deceased gave 8 lakhs in cash. A1 pressurized his in-laws for another flat in the same apartment. On his demand, the father of the deceased purchased another flat in the same building for Rs.60 Lakhs. In September, 2012 Al went to Mumbai for a job and worked there. After few months, the deceased and her son joined Al at Mumbai, but Al started harassing her mentally by keeping himself away from her ::9:: Dr.GRR,J Crlrc No.500 of 2017 and the house on some or other pretext. The deceased suspected that Al was having an affair with a lady and whenever she confronted A1, he said that he was talking with his colleagues. In June, 2013 the deceased came back to Hyderabad along with her son for his studies. Al in the month of October, 2013 came to Hyderabad from Mumbai and informed to deceased that he was in love with A2 and he was no more interested in the deceased and started harassing for more money to keep her as his wife. The deceased hired a private detective in Mumbai where he gave a report that both A1 & A2 were having affair. After much request from the deceased family, in February, 2014 Al came back to Hyderabad resigning his job in Mumbai and joined in a Software company at Hi-tech City, Hyderabad. From then, Al was harassing the deceased more for divorce at the instigation of A2. A2 was also hand-in-glove with Al and had open affair with A1. Both of them were acting like husband and wife even in-front of deceased when they were in Mumbai. Though the deceased begged A2 to leave her husband, both A1 and A2 were adamant and continued their affair and made the life of deceased miserable. As Al was totally under the influence of A2 and caused physical and mental harassment to the deceased, the deceased committed suicide by hanging. The police ::10:: Dr.GRR,J Crlrc No.500 of 2017 further stated in the charge sheet that on the same day of the death of the deceased i.e. on 25.06.2014, the mother of the deceased (LW.2) came to the police station and lodged a complaint about the death of her daughter on which a case was registered as Crime No.668 of 2014 under Section 174 Cr.P.C. and they seized the suicide note, apparently written by the deceased, in the presence of the mediators. In the suicide note, the deceased stated that nobody was responsible for her death. The brother of the deceased preferred a court referred complaint, expressing suspicion about the death of his sister and that the suicide note was not written by his sister, as such, the collected suicide note along with the admitted signatures of the deceased were sent to FSL, where the Assistant Director of FSL gave opinion that the hand writing on the suicide note and the admitted signatures of the deceased were one and the same. As both the crimes in Crime No.668 of 2014 under Section 174 Cr.P.C. and Crime No.1399 of 2014 were arising out of the same case, both the cases were clubbed together and investigated into. As per police, the death of the deceased was not homicidal but it was a suicide and A1 and A2 abetted the suicide and drove the deceased to commit suicide. As per the Investigating Officer, their investigation revealed that Sections 120-B, 302, 406, ::11:: Dr.GRR,J Crlrc No.500 of 2017 465, 471, 197, 201, 203 and 218 IPC were not attracted and hence, they were deleted and filed charge sheet against A1 for the offences under Sections 498A and 306 IPC and against A2 for the offence under Section 306 IPC.
4. During the course of trial, the petitioner-A2 filed a discharge petition contending that except for an allegation of adultery, there was no other material placed on record to show as to how the petitioner abetted the deceased to commit suicide. There was no material placed on record to show that the alleged adultery was with an intention to force the deceased to commit suicide. The material placed on record in the form of unread e-mail was contrary to any element of instigation. In fact, the e-mail indicated that the factum of adultery had nothing to do with the suicide. Upon investigation, no evidence relating to conspiracy under Section 120-B IPC was found. There was no allegation or material placed on record indicating the aid of any kind given for the suicide. The allegation that the deceased committed suicide on account of the alleged adultery was contradicted by the suicide note which was proved to be in the handwriting of the deceased. The ingredients of abetment as defined under Section 107, ::12:: Dr.GRR,J Crlrc No.500 of 2017 108 and 306 IPC were not satisfied against the petitioner-A2 and prayed to discharge her from the offence under Section 306 IPC.
5. The learned Assistant Public Prosecutor filed counter before the trial court.
6. On hearing the learned counsel for the petitioner-A2 and the learned Assistant Public Prosecutor, the trial court dismissed the petition observing that to discharge the accused, prima facie, the court should come to a conclusion that there were no sufficient grounds to proceed against the accused and on the other hand, if the court came to an opinion that there was a ground to presume that the accused had committed the offence, the court could frame charge. There need not be concrete evidence to frame a charge. Moreover, in the e-mails of the deceased there were sufficient allegations against the petitioner and A1 and the same need to be decided at the time of trial and opined that it was not a fit case for discharge of the petitoner-A2 as prima facie case was made out against her and dismissed the petition.
7. Aggrieved by the said order, the petitioner preferred this revision contending that the petitioner was a permanent resident of ::13:: Dr.GRR,J Crlrc No.500 of 2017 Mumbai, Maharashtra. A bare perusal of the charge sheet and the material accompanying the same would show that the only allegation against the petitioner was that she was having an illicit relationship with the husband of the deceased. There was no other allegation or material against the petitioner. The deceased had committed suicide in Hyderabad. It was settled proposition of law that charges could be framed against an accused only if the material placed on record along with the charge sheet if accepted on its face value would disclose all the ingredients of the offence. The Additional Sessions Judge failed to appreciate that in the entire charge sheet and the material accompanying it, there was no allegation or material to the effect that the petitioner had done anything to instigate or encourage the deceased to commit suicide. The only material that was forthcoming in the charge sheet was to the effect that the husband of the deceased was having an adulterous relationship with the petitioner. There was no material to suggest that the deceased committed suicide on account of the adulterous relationship. It was settled principle of law that mere existence of extra marital relationship would not constitute the offence of abetment to commit suicide under Section 306 IPC. The husband of the deceased or the petitioner had not conveyed the factum of their ::14:: Dr.GRR,J Crlrc No.500 of 2017 adulterous relationship to the deceased to contend that the same would amount to abetment to commit suicide under Section 306 IPC. In fact, it was the deceased who went out of the way by engaging a detective agency to spy upon her husband to find out that he was having an affair. Thus, the element of mens-rea was missing. There was no material on record to suggest that the petitioner contacted the deceased or that she ever humiliated the deceased. The suicide note did not name the petitioner. In fact, there was nothing in the suicide note from which it can be inferred that the deceased committed suicide on account of her husband's adulterous relationship. The suicide note read with the report of the hand writing expert has to be presumed to be true at the stage of framing of charges. The learned Additional Sessions Judge failed to appreciate that the alleged e-mail was not admissible in evidence, because the conditions required for its admissibility prescribed under Section 65 B of the Evidence Act were not satisfied. The e-mail taken on its face value also would not indicate any intention to commit suicide on the part of the deceased. The learned Additional Sessions Judge failed to appreciate that there was no evidence whatsoever to even remotely suggest any conspiracy between A1 and the petitioner-A2 to instigate the deceased to commit ::15:: Dr.GRR,J Crlrc No.500 of 2017 suicide and prayed to set aside the impugned order date 06.02.2017 and to discharge the petitioner from the offence under Section 306 IPC pending before the VII Additional Metropolitan Sessions Judge in SC No.127 of 2016.
8. Heard learned counsel for the petitioner, learned Additional Public Prosecutor and the learned counsel for the 2nd respondent - complainant.
9. Before considering the merits of the claims of both the parties, it is useful to refer to Section 227 of the Code of Criminal Procedure. It reads as under:
"227. Discharge--If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
10. The Hon'ble Apex Court in P. Vijayan v. State of Kerala and another1, held that:
"11. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are 1 (2010) 2 SCC 398 ::16:: Dr.GRR,J Crlrc No.500 of 2017 suspicious circumstances against the accused so as to frame a charge against him."
11. The scope of Section 227 of the Code was considered by the Hon'ble Apex Court in State of Bihar vs. Ramesh Singh2 wherein it observed that:
"4... ... Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross- examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. .... "
The Hon'ble Apex Court has thus held in B. Vijayan's case (1 supra) that:
"whereas strong suspicion may not take the place of the proof at the trial stage, yet it may be sufficient for the satisfaction of the Trial Judge in order to frame a charge against the accused."2
(1977) 4 SCC 39 ::17:: Dr.GRR,J Crlrc No.500 of 2017
12. In a subsequent decision i.e. in Union of India v. Prafulla Kumar Samal3, the Hon'ble Apex Court after adverting to the conditions enumerated in Section 227 of the Code and its other decisions, enunciated the following principles:-
"(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."3
(1979) 3 SCC 4 ::18:: Dr.GRR,J Crlrc No.500 of 2017
13. In Soma Chakravarty v. State through CBI4, the Hon'ble Apex Court held that:
"The settled legal position is that if on the basis of material on record the Court could form an opinion that the accused might have committed offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial.
Charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the Court must come to a prima facie finding that there exist some materials therefor. Suspicion alone, without anything more, cannot form the basis therefor or held to be sufficient for framing charge."
14. The Hon'ble Apex Court on considering the above judgments held that:
"As discussed earlier, Section 227 in the new Code confers special power on the Judge to discharge an accused at the threshold if upon consideration of the records and documents, he find that "there is not sufficient ground" for proceeding against the accused. In other words, his consideration of the record and document at that stage is for the limited purpose of ascertaining whether or not there is sufficient ground for proceeding against the accused. If the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228, if not, he will discharge the accused. This provision was introduced in the Code to avoid wastage of public time which did not disclose a prima facie case and to save the accused from avoidable harassment and expenditure."4
(2007) 5 SCC 403 ::19:: Dr.GRR,J Crlrc No.500 of 2017
15. The petitoner-A2 was charged only for the offence under Section 306 IPC. It is also considered profitable to extract Section 306 IPC:
"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."
16. The Hon'ble Apex Court in Gangula Mohan Reddy v. State of Andhra Pradesh5 held that:
"7. The word "suicide" in itself is nowhere defined in the Indian Penal Code, however its meaning and import is well known and requires no explanation. `Sui' means `self' and `cide' means `killing', thus implying an act of self-killing. In short a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself.
9. In our country, while suicide in itself is not an offence, considering that the successful offender is beyond the reach of law, attempt to suicide is an offence under section 309 of IPC.
10. "Abetment" has been defined under section 107 of the Code. We deem it appropriate to reproduce section 107, 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 places 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."5
(2010) 1 SCC 750 ::20:: Dr.GRR,J Crlrc No.500 of 2017 Explanation 2 which has been inserted along with section 107 reads as under:
"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."
17. In State of West Bengal v. Orilal Jaiswal & Another6, the Hon'ble Apex Court had 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 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."
18. The Hon'ble Apex Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi)7 while dealing with the dictionary meaning of the word "instigation" and "goading" 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 straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances."6
(1994) 1 SCC 73 7 2009 (11) SCALE 24 ::21:: Dr.GRR,J Crlrc No.500 of 2017
19. The Hon'ble Apex Court in Gangula Mohan Reddy's case (5 supra) further held that:
"17.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 this act must have been intended to push the deceased into such a position that he committed suicide."
20. In Arnab Manoranjan Goswami v. State of Maharashtra and others8 the Hon'ble Apex Court while dealing with the provisions of Section 306 IPC and the meaning of abetment within the meaning of Section 107 while referring the case in Madan Mohan Singh v. State of Gujarat [(2010) 8 SCC 628] observed that:
"12. 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 about the suicide of the person concerned 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.ǁ The Court noted that the suicide note expressed a state of anguish of the deceased and ― cannot be depicted as expressing anything intentional on the part of the accused that the deceased might commit suicide"8
(2021) 2 SCC 427 ::22:: Dr.GRR,J Crlrc No.500 of 2017
21. In M.Arjunan v. State (represented by its Inspector of Police)9, the Hon'ble Apex Court observed that:
"7. The essential ingredients of the offence under Section 306 IPC 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 the accused cannot be convicted under Section 306 IPC."
22. A two Judge Bench of the Hon'ble Apex Court in Ude Singh and Ors. v. State of Haryana10, expounded on the ingredients of Section 306 of the IPC, and the factors to be considered in determining whether a case falls within the purview of the aforesaid provision, in the following terms:
"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 behaviour 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 9 (2019) 3 SCC 315 10 (2019) 17 SCC 301 ::23:: Dr.GRR,J Crlrc No.500 of 2017 suicide by another or not, could only be gathered from the facts and circumstances of each case."
23. In Rajesh v. State of Haryana11, a two Judge Bench of the Hon'ble Apex Court, held as follows:
"9. Conviction under Section 306 IPC is not sustainable 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. 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."
24. In Gurcharan Singh v. State of Punjab12, a three Judge Bench of the Hon'ble Apex Court, held that:
"15. As in all crimes, mens rea has to be established. To prove the offence of abetment, as specified under Sec 107 of the 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."
25. In the light of these principles when the complaint, charge sheet and 161 Cr.P.C. statements of the witnesses are looked into, there was no material on record to suggest that the petitioner-A2 apart from having a relationship with the husband of the deceased on her own 11 (2020) 15 SCC 359 12 (2020) 10 SCC 200 ::24:: Dr.GRR,J Crlrc No.500 of 2017 contacted or humiliated the deceased or instigated her to commit suicide. The suicide note did not name the petitioner. The suicide note reads as follows:
"To my family This is to request everyone in my family to forgive me for leaving this way. Please understand that Prabhakar has nothing to do with my decision. He has been very loving and patient with me all his life. Unfortunately I didn't treat him with respect and ill treated him so much so that he feel rejected and unwanted. I am ashamed of torturing him and filling his life with unhappiness and grief. I want to relieve him from the burden of being around a loathsome person like me. I am solely responsible for my decision and there is no pressure from anyone for this move. Please take good care of Pranit and please do not hold Prabhakar responsible for any of this. I am an unhappy soul and no one can make me happy. So I'm putting an end to my misery. Please forgive me."
26. There was nothing in the suicide note from which it could be inferred that the deceased committed suicide on account of her husband's adulterous relationship. Though the complainant contended that the suicide note was a fabricated document, the report of the handwriting expert would disclose that the writings on the suicide note when compared with the admitted writings of the deceased, there were no fundamental differences between the standard and questioned document and the similarities in the characters were significant and sufficient to form a definite opinion that the person who wrote the standard writings also wrote the questioned writings in the suicide ::25:: Dr.GRR,J Crlrc No.500 of 2017 letter. Though the learned counsel for the complainant - 2nd respondent contended that A1 and the petitioner-A2 in furtherance of their conspiracy fabricated the suicide note to give a picture of suicide, while deciding the petition for discharge, the charge sheet as well as the documents enclosed to it shall be taken on their face value to decide whether a prima facie case was made out against the petitiioner-A2.
27. Though the learned counsel for the petitioner-A2 also contended that the e-mail filed by the complainant did not satisfy the requirements of Section 65-B of the Evidence Act required for its admissibility, this Court at this stage also cannot go into the probative value of the said document. However, the contents of e-mail even if considered does not indicate that the deceased was intending to commit suicide or that the petitioner-A2 had abetted or instigated her to do such act. There is no evidence on record from the charge sheet or the statements of the witnesses to suggest any conspiracy between A1 and A2 to instigate the deceased to commit suicide.
28. Hence, the trial court failed to appreciate that there was no prima facie material to proceed against the petitioner-A2 to charge for ::26:: Dr.GRR,J Crlrc No.500 of 2017 the offence under Section 306 IPC. As such, it is considered fit to allow the revision by setting aside the impugned order passed by the trial court.
29. Accordingly, the Criminal Revision Case is allowed setting aside the order dated 06.02.2017 passed in Crl.M.P. No.1183 of 2017 in SC No.127 of 2016 by the VII Additional Metropolitan Sessions Judge, Hyderabad. The petitioner-A2 is discharged from the offence under Section 306 IPC in SC No.127 of 2016.
Miscellaneous Petitions pending if any, shall stand closed.
_____________________ Dr. G.RADHA RANI, J November 07, 2022 KTL