Gujarat High Court
Dakshaben Rajeshbhai Gadhvi & vs State Of Gujarat & on 5 May, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/33263/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 33263 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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DAKSHABEN RAJESHBHAI GADHVI & 1....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
DARSHAN M VARANDANI, ADVOCATE for the Applicant(s) No. 1 - 2
MR KIRTIDEV R DAVE, ADVOCATE for the Respondent(s) No. 2
Ms.SHRUTI PATHAK, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 05/05/2017
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R/CR.MA/33263/2016 CAV JUDGMENT
CAV JUDGMENT
By this application under section 482 of the Code of Criminal Procedure, 1973, the applicants- original accused nos.1 and 2 seek to invoke the inherent powers of this Court praying for quashing of the proceedings of Sessions Case No.71 of 2016 pending in the Court of the learned 6th Additional District & Sessions Judge, Anjar-
Kachchh arising from F.I.R. Being C.R. No.I-91 of 2016 registered with the Anjar Police Station for the offences punishable under section 306 read with 114 of the Indian Penal Code.
The case of the prosecution may be summarized as under.
2. The deceased, by name, Rajeshbhai Lagdhirbhai Lamba was married to applicant no.1 herein, past 15 years. In the wedlock, a son, named, Shubham, was born. At the time of the incident, Shubham was aged 4 years. It appears that soonafter the marriage matrimonial disputes cropped up between the deceased and his wife. On 20.03.2016, the deceased had attempted to commit suicide by consuming acid. He was immediately shifted to the hospital by his father for medical treatment. On the very same day, his dying declaration came to be recorded by the Deputy Mamlatdar and the Executive Magistrate, Rajkot. In the dying declaration, he stated that he consumed acid on account of mental harassment caused by his wife, viz. applicant no.1 herein. He also Page 2 of 35 HC-NIC Page 2 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT stated that his wife-Dakshaben and her paramour, by name, Devubha, viz. applicant no.2 herein frequently visited his house and created ruckus. It also appears that on 20.03.2016, the Police recorded the statement of the deceased. The statement reads as under:
"I am residing with my father. I am earning my livelihood working as a driver. I got married to Dakshaben about 15 years back and I have a son, by name, Shubham, aged 4 years, as on date. My wife used to leave the matrimonial home frequently. As my wife used to leave matrimonial home, the same used to lead to disputes in the house. Past two months my wife is residing separately at Sonalnagar. I am staying with my father. Yesterday, i.e. on 19.03.2016 at about 06.30 PM when I was returning home from my work, I met my wife. I had a talk with her. She told me that she had illicit relations and she would continue with such illicit relations. She also said that she wanted to dissolve the marriage. She said that she was in illicit relations past 15 years. I thereafter, went to a shop and purchased a bottle of acid and consumed the same. I called up my father and informed him that I had consumed acid. My father reached home and shifted me to the Hariom Hospital at Adipur. My father thereafter, admitted me Page 3 of 35 HC-NIC Page 3 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT in Wockhard Hospital. I am fully conscious. I attempted to commit suicide by consuming acid as I got disturbed because of the illicit relations of my wife and frequent quarrels at the matrimonial home."
3. It appears from the materials on record that on 05.04.2016 the deceased passed away. In such circumstances, the father registered the F.I.R. against two applicants herein for the offence punishable under section 306 read with section 114 of the IPC. In the F.I.R the first informant has alleged that the applicant no.1 used to cause lot of mental harassment to his son, i.e. the deceased on account of her illicit relations with the applicant no.2 herein. At the end of the investigation, the Police filed charge sheet and filing of the charge sheet culminated in the Sessions Case No.71 of 2016 in the Court of the learned 6th Additional District & Sessions Judge, Anjar-Kachchh.
4. Mr.Darshan M. Varandani, learned counsel appearing for the applicants submitted that even if the entire case of the prosecution is believed or accepted to be true, none of the ingredients to constitute the offence of abetment are spelt out. According to the learned counsel, the illicit relations of the applicant no.1 with the applicant no.2 by itself would not amount to abetment or mental cruelty. The deceased and his wife were not getting along well past couple of years and the disturbed marital life might have taken Page 4 of 35 HC-NIC Page 4 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT a heavy toll on the mind of the deceased which ultimately led him to take the drastic step of consuming acid.
5. In support of his submissions, strong reliance has been placed on two decisions of the Supreme Court, (i) Pinakin Mahipatray Rawal Vs. State of Gujarat, reported in (2013) 10 SCC 48, and (ii) K.V. Prakash Babu Vs. State of Karnataka, reported in A.I.R. 2016 SC 5430. In such circumstances referred to above, Mr.Darshan M. Varandani, the learned counsel appearing for the applicants prays that there being merit in this application the same be allowed and the criminal proceedings be quashed.
6. On the other hand this application has been vehemently opposed by Mr.Kirtidev R. Dave, the learned counsel appearing for the first informant, viz respondent no.2 herein. Mr.Dave would submit that more than a prima facie case could be said to have been made out to put both the applicants on trial for the offence punishable under section 306 of the IPC. According to Mr.Dave the continuous harassment by the wife led the husband to consume the hydrochloric acid. The Consumption of acid ultimately led to death of the deceased. Mr.Dave submits that meeting of the deceased with the applicant no.1 herein on 19.03.2016 and the conversation between the two was sufficient to instigate a person within the meaning of section 107 of the IPC. If such instigation leads to commission of suicide, then the person responsible for the same Page 5 of 35 HC-NIC Page 5 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT can be tried for the offence punishable under section 306 of the IPC. According to Mr.Dave, there being more than prima facie case against the applicants, this application deserves to be rejected. Mr.Dave, the learned counsel in support of his submissions has relied upon the decision of the Supreme Court in the case of Chitresh Kumar Chopra Vs. State, reported in A.I.R. 2010 SC 1446.
7. The learned Additional Public Prosecutor appearing for the State has also opposed this application and submitted that no case is made out for discharging the two applicants from the offence.
The learned Additional Public Prosecutor submits that there being no merit in this application, the same be rejected.
8. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the proceedings of the sessions case should be quashed.
9. The following facts are not in dispute:
(i) Applicant no.1, soonafter the marriage appears to have developed intimacy for the applicant no.2 herein. The applicants continued to be in illicit relationship.
(ii) Applicant no.1 had left the matrimonial home and was Page 6 of 35 HC-NIC Page 6 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT insisting for divorce. Applicant no.1 was bold enough to admit before her husband that she had illicit relationship with the applicant no.2.
(iii) It was the abrupt meeting of the deceased with the applicant no.1 on 19.03.2016 which triggered the trouble.
(iv) In my view, the most important ingredient to constitute the offence of abetment, viz mens rea is missing. In the present case, there might have been serious matrimonial disputes between the husband and wife on account of the wife having an illicit affair, but that by itself is not sufficient to infer instigation within the meaning of section 107 of IPC. It could not be said, by any stretch of imagination, that the applicants herein intended the consequences of the Act.
10. The law in this regard is well settled. This Court in the case of Lalitbhai Vikramchand Parekh vs. State of Gujarat & Ors., Special Criminal Application No.16032 of 2014, decided on 10th April, 2015, has exhaustively explained what would constitute abetment within the meaning of section 107 of the Indian Penal Code so as to make the person liable for the offence under section 306 of the Indian Penal Code. I may quote the relevant observations as under;
Page 7 of 35HC-NIC Page 7 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT "11. Abetment of suicide is made punishable by Section 306 which provides that "if any person commits suicide, whoever abets the commission of such suicide, shall be punished." (emphasis supplied) The section does not define the expression" "abet", nor is the expression defined in Chapter II of the Code which deals with the general explanations". However, Chapter V of the Code incorporates an elaborate statement of "abetment". Section 107 in this Chapter defines "abetment of a thing", while Section 108 defines the expression "abettor". This is how these sections run : Section 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 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 facilitates the commission thereof, is said to aid the doing of that act."
12. Section 108 - Abettor- "'A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor".
Explanation 1.- The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act.
Explanation 2.- To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused.
Explanation 3.- It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, of any guilty intention or knowledge.
Page 8 of 35HC-NIC Page 8 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT Explanation 4.- The abetment of an offence being an offence, the abetment also an offence.
Explanation 5.- It is not necessary to the commission of the offence of abetment by conspiracy than the abettor should concern the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed."
13. As the expressions "abetment" and "abettor" have been legislatively defined, the ordinary dictionary meaning of the expressions would not be determinative of their import. It may, however, be useful to have a look at the ;dictionary meaning of the expression "abet". According to Webster, Webster's Third New International Dictionary Vol. I, the expression "abet", means to incite, encourage instigate, or countenance-now usually used disparagingly. According to Wharton, Whartone's Law Lexicon, 14th ed., "abet" means to stir up or excite, to maintain or patronize : to encourage or set on and the "abettor" is an instigator or setter on, one who promotes or procures a crime to be committed. Stroud, Stroud's Judicial Dictionary, 4th ed., has given various meanings of the expression "aid" or "abet", based on judicial pronouncements in England, in the context of different statutes. Thus, according to Hawkins, 51 L J.M.C. 78-R. v. Coney, J., "To constitute an aider or abettor, some active steps must be taken, by word or action, with intent to instigate the principal or principals. Encouragement does not, of necessity, amount to aiding and abetting. It may be intentional or unintentional. A man may unwillingly encourage another in fact by his presence, by misinterpreted gestures, or by his silence or non-interference-or he may encourage intentionally by expressions, gestures, or actions, intended to signify approval. In the latter case, he aids and abets; in the former he does not." Stroud also cites the case of Du Cros v. Lambourne, 1907 (1) K. B. 40.. in which it was held that "the owner in, and in control of, a motor car which is being driven at an improper speed by a driver who is not his servant, "aids or abets" in the offence if he (the owner) does not interfere." It is further noticed on the basis of decision in the case of Rubie v. Faulkner, 1980 (1) K.B. 571 :
"For a supervisor of a learner driver to see that an unlawful act is about to be done and to fail to prevent it is he can is for him to aid and abet." It is further noticed, on the authority of the decision in the case of Callow v. Tillstone, 83 L.T. 411, that "A man does not by negligence aid and abet a person to expose unsound meat for sale." It is further noticed, on the Page 9 of 35 HC-NIC Page 9 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT basis of the decision in the case of Ackroyds Air Travel v. Director of Police Prosecutions, 1950 (1) All. E.R. 933 and Thomas v. Lindop, 1950 (1) All. E.R. 966, that "If a person knows all the circumstances which constitute the offence he will be guilty of aiding and abetting whether he knew that they did in fact constitute the offence or not " Stroud also quotes Lord Goddard C J. in Ferguson v. Weaving, 1951 (1) K.B 814, that "it is well know that the words 'aid and abet are apt to describe the action of a person who is present at the time of the commission of an offence and takes some part therein."
14. It may be useful to refer to some of the early English decisions, dealing with different ways of taking part in a felony, it was recognized that a felony may be committed by the hand of an "innocent agent" who, having no blamable intentions in that he did, incurred no criminal liability by doing it. In such a case, the man who "instigates" this agent is the real offender; his was the last mens rea that preceded the crime, though it did not cause it "immediately but mediately". "Thus, if a physician provides a poisonous draught and tells a nurse that it is the medicine to be administered to her patient, and then by her administration of it the patient is killed, the murderous physician-and not the innocent nurse-is the principal in the first degree Kel. 52 (T.A.C.)." In English Law, as it stood before the later developments, "a principal in the second degree is one by whom the actual perpetrator of the felony is aided and abetted at the very time when it is committed; for instance, a car-owner sitting beside the chauffeur who kills some one by over-fast driving, or a passenger on a clandestine joy-riding expedition which results in manslaughter 1930 (22) Cr, App. R. 70 : 144 L.T. 185, "or bigamist's second 'wife' if she knows he is committing bigamy, or even be spectators if they actively encourage such a contest even by mere applause.
"But a spectator's presence at a prize-fight docs not of itself constitute sufficient encouragement to amount to an aiding and abetting 1882 (8) Q.B.D. 534." It was also recognised that a man may effectively "aid and abet" a crime and at the very moment of its perpetration, without being present at the place where it is perpetrated. "To be guilty of aiding and abetting, a person must either render effective aid to the principal offender or else must be present and acquiesce in what he is doing. Before a person can be convicted of aiding and abetting the commission of an offence, be must at least know the essential matters which constitute the offence 1951 (1) All. E.R. 412(414)." "But acquiescence sufficient to constitute the offence may be established by evidence of the accused persons motive and of his subsequent conduct 1951 Page 10 of 35 HC-NIC Page 10 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT (1) All. E.R. 464."
In the category of "accessory before the fact" comes a person who "procures or advises" one or more of the principals to commit the felony. This "requires from him an instigation so active that a person who is merely shown to have acted as the stakeholder for a prize-fight which ended fatally, would nut be punishable as an accessory 1875 (2) C.C.R. 147." "The fact that a crime has been committed in a manner different from the mode which the accessory had advised will not excuse him from liability for it. But a man who has councelled a crime does not become liable as accessory if. instead of any form of the crime suggested, an entirely 'different offence is committed 1936 (2) All. E.R. 813." Kenny, Kenny's Outlines of Criminal Law, New ed. by J.W.C. Turner, p. 88, points out that it is not always easy to decide whether or not the crime actually committed comes within the terms of the "incitement." so as to make the inciter legally responsible for it. He further observed that the courts in some of the older cases tended to "take a strict view of the facts" and refers by illustration to the case of R. v. Saunders, Kel. 52 (T.A.C ) and Archer in 1578. referred to in Plowden.
15. For obvious, reasons an act of suicide is not penal and even an unsuccessful attempt is not an offence now after the deletion of section 309 of the Indian Penal Code.. Suicide takes the victim or the perpetrator outside the purview of penal consequences, even though the common law in England at one time endeavoured to deter men from this crime by the threat of degradations to be inflicted upon the "suicide's corpose", which by a natural, if unreasoning association of ideas, were often a "potent deterrent", and also by threatening the forfeiture of his goods, a "vicarious punishment" which though falling wholly upon his surviving family, was likely often to appeal strongly to his sense of affection. Thus the man who feloniously took his own life was at one time "buried in the highway", with a stake through his body; and his goods were "forfeited". The burial of suicides lost its gruesome aspect in 1824 when the original mode was replaced by the practice of burial "between the hours of nine and twelve at night", without any service. In 1870, the confiscation of the goods of suicides was put to an end in the general abolition of forfeitures for felony. And in 1882, the statute removed every penalty, except the purely ecclesiastical one that the interment must not be solemnised by a burial service in the full ordinary Anglican form, Kenny's Outlines of Criminal Law, New ed. by J.W.C.,, Turner, p. 138.
16. Halsbury, in Halsbury's Law of England, 4th -ed. paras 42 Page 11 of 35 HC-NIC Page 11 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT to 44 notices some of the English decisions in the matter of classification of offence and complicity in the crime. Thus, a person who '"assists the perpetrator at the time of its commission, or if he assists or encourages the perpetrator before its commission, was held liable 1970 (2) Q.B. 54." According to R.V. Gregory (1867) L.R.I. C.C.R. 77 "any person who aids, counsel or procures the commission of an offence, whether an offence at common law or by statute, and whether indictable or summary, is liable to be tried and punished as a principal offender." Mere presence at the commission of the crime is not enough to create criminal liability, nor is it enough that a person is present with a secret intention to assist the principal should assistance be required. Some encouragement or assistance must have been given to the principal either before or at the time of the commission of the crime with the intention of furthering its commission. Presence without more may, however, afford some evidence of aid and encouragement. It is an indictable offence at common law for a person to incite or solicit another to commit an offence. For an incitement to be complete, there must be some form of actual communication with a person whom it is intended to incite, where, however, a communication is sent with a view to incite, but does not reach the intended recipient the sender may be guilty of an attempt to incite. Incitement is complete though the mind of the person incited is unaffected and notwithstanding that person incited intends to inform on the inciter ; but there can be no incitement unless one person seeks to persuade or encourage another Halsbury's Laws of England, Paras 42 to
44.
17. It may be useful to notice some of the Indian decisions on the question of abetment. Among the early cases of abetment of suicide arose out of unfortunate incidents of Sati, which was common in India, at one time. A person who induced the woman to return to the pyre after she had once retired from it, and immolated herself, was held to have abetted suicide 1863 (1) R.L.P.J. 174. Where a women prepared to commit suicide in the presence of certain persons who followed her to the pyre, stood by her and one of them told the women to say 'Ram Ram' and "She would became sati", the facts were held sufficient to prove the active connivance of these persons and to justify the inference that they had engaged with her in a conspiracy to commit suicide 1871 (3) N.W.P. 316; (1933) A.L.J.R. 7. Where the accused prepared the funeral pyre, placed the victim's husband's body over it, and did not use any force to prevent her from sitting on the pyre and supplied her with ghee which she poured over the pyre were found guilty of abetment of suicide. Where a Hindu Page 12 of 35 HC-NIC Page 12 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT women was burnt in the act of becoming sati, those who assisted her in taking off her ornaments, supervised the cutting of her nails and the dying of her feet, prepared the pyre on which she sat herself and put the corpse upon the pyre, were all held guilty of abetment of suicide. The defence that the abettors were in fact "expecting a miracle and did not anticipate that the pyre would be ignited by human agency was rejected, 1928 (8) Pat. 74. Similarly, where the accused, who were members of a crowd, who had joined the funeral procession from the house of the victim to the cremation ground, and were shouting "Sati Mata Ki Jai" it was held that all those persons, who joined the procession were aiding the widow in becoming sati and were guilty of an offence under Section 306 of the Penal Code, 1958 Cr. L J. 967, 1958 Raj. 143.
18. Some later decisions arising out of other instances of instigation throw further light on the question. In the case of Parimal Chatterjee and others A.l.R 1932 Cal. 760, a Division Bench of the Calcutta High Court observed that the word "instigate" literally means to goad or urge forward or to provoke, incite, urge or encourage to do an act. A person may however not only instigate another, but he may co-operate with him and his Co-operation - may consist of a conjoint action and that would amount to abetment. In the case of State of Bihar v. Ranen Nath and other A.I.R. 1958 Patna 259, a Division Bench of the Patna High Court was construing Section 27 of the Industrial Disputes Act which uses the expressions Instigation and incitement' and observed that the words "should be read to signify something deeper than a mere asking of a person to do a particular act. There must be something in the nature of solicitation to constitute instigation or incitement" and it was held that the words seem to convey the meaning "to goad or urge forward or to provoke or encourage the doing of an act." It was further observed that what acts should amount to instigation or incitement within the meaning of that section will depend upon the "particular facts of each case", and that in some circumstances a "throw of a finger" or "a mere turning of the eye' may give rise to an inference of either "incitement or instigation", and yet in others even "strong words, expressly used, may not mean that the person using them was stimulating or suggesting to anyone to do a particular act." The court expressed the view that there must be something "tangible" in evidence to show that the persons responsible for such action were "deliberately trying to stir up other persons to bring about a certain object". According to a division bench of the Calcutta High Court, a person abets the doing of a thing when he or she, inter alia. "instigates any Page 13 of 35 HC-NIC Page 13 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT person to do that thing." The other modes of abetment, besides instigation, are "conspiracy and intentional aid". The word "instigation" literally means "to goad or urge forward to do an act." "It is something more than co-operation." In the case of Shri Ram and another, 1975 (2) S.C.R. 622, the Supreme Court observed that in order to constitute abetment, the abettor must be shown to have "intentionally" aided the commission of the crime. "Mere proof that the crime charged could not have been committed without the interposition of the alleged abetter is not enough compliance with the requirements of Section 107". A person may, for example, "invite another casually or for a friendly purpose and that may facilitate the murder of the invitee". But unless the invitation was extended "with intent to facilitate the commission of the murder", the person inviting cannot be said to have abetted the murder. It is not enough that an act on the part of the alleged abettor "happens to facilitate the commission of the crime". "Intentional aiding and therefore active complicity is the gist of the offence of abetment under the third paragraph of Section 107".
19. In case of suicide how the evidence is required to be appreciated has been stated by the Hon'ble Supreme Court in number of judgments. In State of West Bengal v. Orilal Jaiswal, (1994) 1 SCC 73, the Hon'ble Supreme 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 the accused charged of abetting the offence of suicide should be found guilty. Further the Hon'ble Supreme Court in case of 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 words "instigation" and "goading". The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the other. Each person has his own idea of self esteem and self respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be Page 14 of 35 HC-NIC Page 14 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT decided on the basis of its own facts and circumstances.
20. The Hon'ble Supreme Court in case of Amalendu Pal @ Jhantu vs. State of West Bengal, 2010 AIR(SC) 512, after considering various earlier judgments in para 15 observed that, "15. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without 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."
"16. In order to bring a case within the purview of Section 306 of 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."
21. The Hon'ble Supreme Court in the case of Randhir Singh v. State of Punjab, (2004) 13 SCC 129 has reiterated the legal position as regards Section 306 IPC which is long settled in para 12 and 13. Para 12 and 13 reads thus :
"12. Abetment involves a mental process of instigation a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC.Page 15 of 35
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13. In State of W. B. v. Orilal Jaiswal this Court has observed that the courts 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 or ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belongs and such petulance, discord and differences were not expected to induce a similarly circumstances 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."
22. In Gcngula Mohan Reddy v. State of A.P., (2010) 1 SCC 750 the Supreme Court while interpreting Section 306 IPC held that:
"Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing and without a positive act on the part of the accused to instigate or aid in committing suicide, there cannot be any conviction. It was further held that to attract Section 306 IPC there has to be a clear mens tea to commit the offence."
23. In Ramesh Kumar v. State of Chhattisgarh., (2001) 9 SCC
618. the Supreme Court held that "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."
Page 16 of 35HC-NIC Page 16 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT
24. In Sanju alias Sanjay v. State of M.P., (2002) 5 SCC 371. the deceased committed suicide on 27.7.1998. whereas, the alleged quarrel had taken place on 25.7.1998 when it was alleged that the appellant had used abusive language and also told the deceased to go and die. The Supreme Court in the said circumstances held that the fact that the deceased committed suicide on 27.7.1998 would itself clearly point out that it was not the direct result of the quarrel taken place on 25.7.1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die.
25. Taking note of various earlier judgments, in M. Mohan u. State Represented the Deputy Superintendent of Police, (2011) 3 SCC 626. the Supreme Court held that "Abetment involves mental process of instigating or intentionally aiding a person in doing of a thing. There should be clear mens rea to commit offence under Section 306. It requires commission of direct or active act by accused which led deceased to commit suicide seeing no other option and such act must be intended to push victim into a position that he commits suicide."
26. On a close reading of the above provisions of the IPC, and the principles laid down by the Supreme Court in various decisions, it is apparent that in a case under Section 306 IPC, there should be clear mens-rea to commit the offence under this Section and there should be direct or active act by the accused, which led the deceased to commit suicide, that is to say that there must be some evidence of "instigation", "cooperation" or "initial assistance" by the accused to commit suicide by the victim/deceased.
27. In Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrajirao Angre, (1988) 1 SCC 692 the Supreme Court observed vide Para 7 that:
"7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to Page 17 of 35 HC-NIC Page 17 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
It was a proposition relating to criminal prosecution.
28. In Madan Mohan Singh v. State of Gujarat, (2010) 8 SCC
628. the Supreme Court quashed the proceedings under Section 306 IPC on the ground that the allegations were irrelevant and baseless and observed that the High Court was in error in not quashing the proceedings.
29. Accepting the allegations made against the applicants by the prosecution as it is, they do not constitute the offence of abetment. I am conscious of the fact that five persons of one family lost their lives on account of drastic step taken by them for no reason. It is very difficult to understand the mental state of mind of such persons who take an extreme step of putting an end to their life voluntarily by committing suicide.
30. According to the World Federation for Mental Health (WFMH), a number of countries have established national suicide prevention plans or strategies. Their principles and action steps represent good sources for developing specific policy recommendations to present to governmental and legislative leaders. Common elements of these plans and strategies include:
- Campaigns to increase public awareness of suicide as a preventable problem, to develop broad based support for prevention efforts, and to reduce stigma;
- Community development to support creation and implementation of suicide prevention programs;
- Improved access to services to suicidal people and their loved ones, and improved service delivery efforts through development of guidelines and linkages;
- Media education to improve reporting and portrayals of suicide in the media;
- Training for caregivers to improve recognition of at-risk behaviour and delivery of effective treatments;
- Incorporation of licensing standards for professional Page 18 of 35 HC-NIC Page 18 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT caregivers;
- Development and promotion of effective clinical and professional practices;
- Means restriction initiatives to reduce access to lethal means and methods of self harm;
- Research and evaluation to promote and support research, improve surveillance systems, and evaluate the effectiveness of new or existing suicide prevention interventions.
31. In this view of the matter, I am of the opinion that there is absolutely no material on record, sufficient for continuing the criminal prosecution against the applicants. The factual position clearly shows that the criminal proceedings pending against the applicants is nothing, but a sheer abuse of the process of law, which should be quashed by exercising powers under Section 482 of the Criminal Procedure Code. Mere vague allegations of harassment by themselves would not amount to abetment of the offence of commission of suicide. Something more is required under Section 107 of the IPC. These requisite ingredients are missing in this case.
32.Commission of suicide in the State is at rampage. Everyday, cases are reported. Sometimes, it could be a student or an estranged wife or a frustrated or mentally disturbed husband or it could be a terminally ill person fed-up with the ailment etc. Life is precious and should not be allowed to be lost in this manner. The State owes an obligation to see that its subjects do not take the extreme step of committing suicide for any reason. In such circumstances, the State Government should also seriously consider evolving some action plan or strategies as referred to above."
11. The Supreme Court, in the case of M. Mohan vs. State Represented by the Deputy Superintendent of Police, AIR 2011 SC 1238, observed in paras-45 and 46, as under;
"45. Abetment involved a mental process of instigating a person or intentionally aiding a person in doing of a thing.Page 19 of 35
HC-NIC Page 19 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.
46.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."
12. The learned APP as well as Mr.Dave placed strong reliance on the decision of the Supreme Court in the case of Chitresh Kumar Chopra v. State (Government of NCT of Delhi), (2009) 16 SCC 605 and complained that since the charge-sheet has been filed, whatever has been stated in the charge-sheet should be presumed as true.
13. I have gone through the decision relied upon by the learned APP in the case of Chitresh Kumar Chopra (supra). The facts of the said case were altogether different. Apart from the suicide note, which was left behind by the deceased, the statements were recorded by the police during the investigation of the different persons, showing that on account of business transactions with the accused, the deceased was put under tremendous pressure to do something which he was, perhaps, not willing to do. Having regard to the materials on record, the Supreme Court took the view that the conduct of the appellant and his accomplices was such that the deceased was left with no other option except to put an end to his life. In my view, the decision of the Supreme Court in the case of Page 20 of 35 HC-NIC Page 20 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT Chitresh Kumar Chopra (supra) is distinguishable and would not help the prosecution.
14. In the aforesaid context, let me now look into the two decisions relied upon by the learned counsel appearing for the applicants. In Pinakin Mahipatray Rawal Vs. State of Gujarat (supra), the wife committed suicide on account of her husband having extramarital affair with another lady. The Supreme Court, in detail, explained the position of law in such type of matters.
"ALIENATION OF AFFECTION
12. We are not prepared to say that there was any willful or malicious interference by A-2 in the marital relationship between A-1 and the deceased. A-2, it has not been proved, had in any way caused any kind of mental harassment by maintaining any relationship with A-1 so as to cause any emotional distress on the deceased. No evidence had been adduced or proved to show that A-2 had alienated A-1, the husband from the deceased. Further, no evidence had been adduced to show that due to the wrongful conduct of A-2, the deceased had lost companionship, affection, love, sexual relationship. No evidence has been adduced to show that there has been any attempt on the part of A-2 to disrupt the marital relationship between A-1 and the deceased.
13. Alienation of affection by a stranger, if proved, is an intentional tort i.e. interference in the marital relationship with intent to alienate one spouse from the other. Alienation of affection is known as "Heart Balm"
action. Anglo-Saxon common law on alienation of affection has not much roots in this country, the law is still in its nascent stage. Anglo- Saxon based action against third parties involving tortuous interference with the marital relationship was mainly compensatory in nature which was earlier available to the husband, but, of late, a wife could also lay such a claim complaining of alienation of affection. The object is to preserve marital harmony by deterring wrongful interference, thereby to save the institution of Page 21 of 35 HC-NIC Page 21 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT marriage. Both the spouses have a valuable interest in the married relationship, including its intimacy, companionship, support, duties, affection, welfare of children etc.
14. We notice, in this country, if the marital relationship is strained and if the wife lives separately due to valid reasons, the wife can lay a claim only for maintenance against the husband and if a third party is instrumental for disrupting her marriage, by alienating her spouse's affection, companionship, including marital obligations, seldom, we find the disgusted spouse proceeds against the intruder into her matrimonial home. Possibly, in a given case, she could question the extent, that such injuries can be adequately compensated, by a monetary award. Such an action, of course, may not protect a marriage, but it compensates those who have been harmed.
15. We are, however, of the view that for a successful prosecution of such an action for alienation of affection, the loss of marital relationship, companionship, assistance, loss of consortium, etc. as such may not be sufficient, but there must be clear evidence to show active participation, initiation or encouragement on the part of a third party that he/she must have played a substantial part in inducing or causing one spouse's loss of other spouse's affection. Mere acts, association, liking as such do not become tortuous. Few countries and several States in the United States of America have passed legislation against bringing in an action for alienation of affection, due to various reasons, including the difficulties experienced in assessing the monetary damages and few States have also abolished "criminal conversation" action as well.
16. We may, however, indicate that few States and countries strongly support such an action, with the object of maintaining and preserving the marriage as a sacred institution. Strong support comes from the State of Mississippi in the United States. In Knight Vs. Woodfield 50 So. 3d 995 (Miss. 2011), the husband filed a suit for alienation against his wife. The wife alleged paramour after gaining access to a phone call. Facts disclosed they had exchanged 930 text messages and talked more than 16 hours in two months. In that case jurisdictional issues were raised, but Court reaffirmed that law of alienation of affection is firmly established in State of Mississippi. Another case of some Page 22 of 35 HC-NIC Page 22 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT importance is Dare Vs. Stokes, 62 So, 3d 858 (Miss. 2011), where in a property settlement agreement of divorced couple, a provision was made that the husband would not bring suit against any other person for alienation of affection. Agreement was reduced to a final order by the trial Court. Later husband came to know that his wife had a love affair with one Dare and hence sought for a modification of the agreement. He also sent a notice to Dare as well of his intention to file a suit for alienation of affection. Dare's attempt to intervene and oppose the application for modification of the agreement was not favourably considered by the Court on the ground that he cannot middle with the marital relationship.
17. Action for alienation of affection lies for all improper intrusions or assaults on the marriage relationship by another, whether or not associated with "extramarital sex", his or her continued overtures or sexual liaisons can be construed as something akin to an assumption of risk that his/her conduct will injure the marriage and give rise to an action. But all the same, a person is not liable for alienation of affection for merely becoming a passive object of affection. The liability arises only if there is any active participation, initiation or encouragement on the part of the defendant. Acts which lead to the loss of affection must be wrongful, intentional, calculated to entice the affection of one spouse away from the other, in order to support a cause of action for alienation of affection. For proving a claim for alienation of affection it is not necessary for a party to prove an adulterous relationship.
18. We have on facts found that A-2 has not intruded into the family life of A-1 and his deceased wife, and the Court on evidence acquitted A-2 of all the charges levelled against her. Consequently, it cannot be said that A-2 had in any way contributed or abetted the deceased in committing the act of suicide, or had attempted to alienate the affection of A-1 towards his deceased wife. If that be so, we have to examine what type of relationship A-1 had with A-2. Can it be said as an "extra-marital relationship" of such a degree which amounted to "cruelty" falling within the explanation to Section 498A and also leading to an offence under Section 306 IPC?
Page 23 of 35HC-NIC Page 23 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT EXTRA-MARITAL RELATIONSHIP
19. Marital relationship means the legally protected marital interest of one spouse to another which include marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their up-bringing, services in the home, support, affection, love, liking and so on. Extra-marital relationship as such is not defined in the IPC. Though, according to the prosecution in this case, it was that relationship which ultimately led to mental harassment and cruelty within the explanation to Section 498- A and that A-1 had abetted the wife to commit suicide. We have to examine whether the relationship between A-1 and A-2 amounted to mental harassment and cruelty.
20. We have to examine the correctness or otherwise of the findings recorded by the trial Court, affirmed by the High Court, as to whether the alleged relationship between A-1 and A-2 has in any way constituted cruelty within the meaning of explanation to Section 498A IPC. The facts in this case have clearly proved that the A-1 has not ill-treated the deceased, either physically or mentally demanding dowry and was living with A-1, in the matrimonial home till the date, she committed suicide. Cruelty includes both physical and mental cruelty for the purpose of Section 498A. Section 498A IPC reads as under :-
"498A. Husband or relative of husband of a woman subjecting her to cruelty.-- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.- For the purposes of this section,"
cruelty" means-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any Page 24 of 35 HC-NIC Page 24 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
21. This Court in Girdhar Shankar Tawade Vs. State of Maharashtra, (2002) 5 SCC 177, examined the scope of the explanation and held as follows: (SCC p.180, para 3) "3. The basic purport of the statutory provision is to avoid "cruelty" which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word "cruelty" as is expressed by the legislatures: whereas Explanation
(a) involves three specific situations viz. (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury:
whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of "cruelty" in terms of Section 498A."
22. In Gananath Pattnaik Vs. State of Orissa, (2002) 2 SCC 619, this Court held that the concept of cruelty under Section 498A IPC and its effect under Section 306 IPC varies from individual to individual also depending upon the social and economic status to which such person belongs.
This Court held that cruelty for the purpose of offence and the said Section need not be physical. Even mental torture or abnormal behavior may amount to cruelty or harassment in a given case.
23.. We are of the view that the mere fact that the husband has developed some intimacy with another, during the subsistence of marriage and failed to discharge his marital obligations, as such would not Page 25 of 35 HC-NIC Page 25 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT amount to "cruelty", but it must be of such a nature as is likely to drive the spouse to commit suicide to fall within the explanation to Section 498A IPC. Harassment, of course, need not be in the form of physical assault and even mental harassment also would come within the purview of Section 498A IPC. Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree of endurance, some may meet with courage and some others suffer in silence, to some it may be unbearable and a weak person may think of ending one's life. We, on facts, found that the alleged extra marital relationship was not of such a nature as to drive the wife to commit suicide or that A-1 had ever intended or acted in such a manner which under normal circumstances, would drive the wife to commit suicide.
24. We also notice in this case that the wife committed suicide within seven years of the date of the marriage. Hence, a presumption under Section 113A of the Evidence Act could be drawn.
25. Section 113A which was inserted by the Criminal Law (Second Amendment) Act, 1983, w.e.f. 26.12.1983, is given below for easy reference :-
"113A. Presumption as to abetment of suicide by a married woman.- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation.-- For the purposes of this section, "cruelty" shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860 ).
26. Section 113A only deals with a presumption which the Court may draw in a particular fact situation which may arise when necessary ingredients in order to attract that provision are established. Criminal law amendment and the rule Page 26 of 35 HC-NIC Page 26 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT of procedure was necessitated so as to meet the social challenge of saving the married woman from being ill-treated or forcing to commit suicide by the husband or his relatives, demanding dowry. Legislative mandate of the Section is that when a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty as per the terms defined in Section 498A IPC, the Court may presume having regard to all other circumstances of the case that such suicide has been abetted by the husband or such person. Though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under Section 498A IPC is on the prosecution. On facts, we have already found that the prosecution has not discharged the burden that A-1 had instigated, conspired or intentionally aided so as to drive the wife to commit suicide or that the alleged extra marital affair was of such a degree which was likely to drive the wife to commit suicide.
27. Section 306 refers to abetment of suicide. It says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. Prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extra marital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide."
15. In K.V. Prakash Babu Vs. State of Karnataka (supra), the Supreme Court took the view in the facts of that case that if Page 27 of 35 HC-NIC Page 27 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT the husband gets involved in an extramarital affair, that may not, in all circumstances, invite conviction under Section 306 of the IPC but definitely that can be a ground for divorce or other reliefs in a matrimonial dispute under the other enactments. I may quote the relevant observations hereunder:
"10. In view of the aforesaid evidence, the question that emerges for consideration is whether the conviction under Section 498A and 306 IPC is legally justiciable in this context. We think it appropriate to refer to Section 498A of the IPC. The said provision reads as follows:-
"498-A. HUSBAND OR RELATIVE OF HUSBAND OF A WOMAN SUBJECTING HER TO CRUELTY:
Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation: For the purposes of this section, "cruelty"
means
(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman;
or
(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand"
11. The said provision came up for consideration in Giridhar Shankar Tawade vs. State of Maharashtra[1], where the Court dwelling upon the scope and purport of Section 498-A IPC has held thus:-
"The basic purport of the statutory provision is to avoid 'cruelty' which stands defined by attributing a specific statutory meaning attached thereto as noticed herein before. Two specific instances have been taken note of Page 28 of 35 HC-NIC Page 28 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT in order to ascribe a meaning to the word 'cruelty' as is expressed by the legislatures : Whereas explanation (a) involves three specific situations viz., (i) to drive the woman to commit suicide or (ii) to cause grave injury or
(iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury : whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of 'cruelty' in terms of Section 498-A."
[emphasis added]
12. In Gurnaib Singh v. State of Punjab[2], while dwelling upon the concept of 'cruelty' enshrined under Section 498-A the Court has opined thus:-
"Clause (a) of the Explanation to the aforesaid provision defines "cruelty" to mean "any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide". Clause (b) of the Explanation pertains to unlawful demand. Clause (a) can take in its ambit mental cruelty."
13. The aforesaid analysis of the provision clearly spells how coercive harassment can have the attributes of cruelty that would meet the criterion as conceived of under Section 498-A of the IPC. Thus, the emphasis is on any wilful conduct which is of such a nature that is likely to drive the woman to commit suicide. The mental cruelty which is engraved in the first limb of Section 498-A of the IPC has nothing to do with the demand of dowry. It is associated with mental cruelty that can drive a woman to commit suicide and dependent upon the conduct of the person concerned.
14. In this regard, Mr. Singh has drawn our attention to the authority in Pinakin Mahipatray Rawal v. State of Gujarat[3]. In the said case, the Court was dealing with as to whether relationship between the appellant and the second accused therein was extra-marital leading to cruelty within the meaning of Section 498-A IPC and whether that would amount to abetment leading to the act of suicide within the meaning of Section 306 IPC. Dealing with the extra-marital relationship, the Court has opined that marital relationship means the legally protected marital interest of one spouse to another which include marital obligation to another like companionship, living under the same roof, sexual Page 29 of 35 HC-NIC Page 29 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT relation and the exclusive enjoyment of them, to have children, their up-bringing, services in the home, support, affection, love, liking and so on, but extra- marital relationship as such is not defined in the IPC. The Court analyzing further in the context of Section 498A observed that the mere fact that the husband has developed some intimacy with another woman, during the subsistence of marriage and failed to discharge his marital obligations, as such would not amount to "cruelty", but it must be of such a nature as is likely to drive the spouse to commit suicide to fall within the explanation to Section 498A IPC. The Court further elucidated that harassment need not be in the form of physical assault and even mental harassment also would come within the purview of Section 498A IPC. Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree of endurance, some may meet with courage and some others suffer in silence, to some it may be unbearable and a weak person may think of ending one's life. The Court ruled that in the facts of the said case the alleged extra-marital relationship was not of such a nature as to drive the wife to commit suicide. The two-Judge Bench further opined that:-
"Section 306 refers to abetment of suicide which says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. The Prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extra marital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide." [emphasis added]
15. Slightly recently in Ghusabhai Raisangbhai Chorasiya v. State of Gujarat[4], the Court perusing the material on record opined that even if the illicit relationship is proven, unless some other acceptable evidence is brought on record to establish such high Page 30 of 35 HC-NIC Page 30 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT degree of mental cruelty the explanation (a) to Section 498-A of the IPC which includes cruelty to drive the woman to commit suicide, would not be attracted. The relevant passage from the said authority is reproduced below:-
"True it is, there is some evidence about the illicit relationship and even if the same is proven, we are of the considered opinion that cruelty, as envisaged under the first limb of Section 498A IPC would not get attracted. It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide. Mere extra-marital relationship, even if proved, would be illegal and immoral, as has been said in Pinakin Mahipatray Rawal (supra), but it would take a different character if the prosecution brings some evidence on record to show that the accused had conducted in such a manner to drive the wife to commit suicide. In the instant case, the accused may have been involved in an illicit relationship with the appellant no.4, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, the Explanation to Section 498-A which includes cruelty to drive a woman to commit suicide, would not be attracted."
16. The concept of mental cruelty depends upon the milieu and the strata from which the persons come from and definitely has an individualistic perception regard being had to one's endurance and sensitivity. It is difficult to generalize but certainly it can be appreciated in a set of established facts. Extra-marital relationship, per se, or as such would not come within the ambit of Section 498-A IPC. It would be an illegal or immoral act, but other ingredients are to be brought home so that it would constitute a criminal offence. There is no denial of the fact that the cruelty need not be physical but a mental torture or abnormal behaviour that amounts to cruelty or harassment in a given case. It will depend upon the facts of the said case. To explicate, solely because the husband is involved in an extra-marital relationship and there is some suspicion in the mind of wife, that cannot be regarded as mental cruelty which would attract mental cruelty for satisfying the ingredients of Section 306 IPC.
17. We are absolutely conscious about the presumption engrafted under Section 113-A of the Evidence Act. The said provision enables the Court to draw presumption in a particular fact situation when necessary ingredients in order to attract the provision are Page 31 of 35 HC-NIC Page 31 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT established. In this regard, we may reproduce a passage from Pinakin Mahipatray Rawal (supra):-
"Criminal law amendment and the rule of procedure was necessitated so as to meet the social challenge of saving the married woman from being ill- treated or forcing to commit suicide by the husband or his relatives, demanding dowry. Legislative mandate of the section is that when a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty as per the terms defined in Section 498-A IPC, the court may presume having regard to all other circumstances of the case that such suicide has been abetted by the husband or such person. Though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under Section 498-A IPC is on the prosecution."
16. Having regard to the materials on record and the nature of the allegations, it can definitely be said that the deceased was under serious 'emotional stress' in the sense that his matrimonial life was disturbed. The matrimonial life might have got disturbed on account of applicant no.1 developing intimacy for applicant no.2.
In my view, instances which have been quoted of harassment are not of such a nature that it would attract section 107 of IPC so as to make the act punishable under section 306 of the IPC. Past two months from the date of attempt to commit suicide, the wife was residing at a different place. As noted above, incidentally on 19.03.2016, the deceased met his wife while returning home and the conversation between the two led the deceased to consume acid.
17. In the aforesaid context, I may refer to and rely on the Page 32 of 35 HC-NIC Page 32 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT observations of the Supreme Court in the case of M. Mohan Vs. Velmurugan and another, reported in A.I.R. 2011 Supreme Court 1238, in paras 43, 44, 45, 46, 47 and 50, which read as under:
"43. In State of West Bengal v. Orilal Jaiswal & Another (1994) 1 SCC 73 (AIR 1994 SC 1418), 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 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.
44. 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 Page 33 of 35 HC-NIC Page 33 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT 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.
45. 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.
46. 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.
47. In V.P. Shrivastava v. Indian Explosives Limited and Others (2010) 10 SCC 361, this court has held that when prima facie no case is made out against the accused, then the High Court ought to have exercised the jurisdiction under section 482 of the Cr.PC and quashed the complaint.
50. Undoubtedly, the deceased had died because of hanging. The deceased was undoubtedly Page 34 of 35 HC-NIC Page 34 of 35 Created On Thu Aug 17 02:38:27 IST 2017 R/CR.MA/33263/2016 CAV JUDGMENT hyper-sensitive 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 remains to be answered is whether the appellants can be connected with that unfortunate incident in any manner?"
18. In the overall view of the matter, I am not convinced with the case put up by the prosecution against the applicants. In the result, this application succeeds and is hereby allowed. The proceedings of Sessions Case No.71 of 2016 pending in the Court of the learned 6th Additional District & Sessions Judge, Anjar-
Kachchh are hereby quashed. All the consequential proceedings pursuant thereto stand terminated. Rule is made absolute.
(J.B.PARDIWALA, J.) karim Page 35 of 35 HC-NIC Page 35 of 35 Created On Thu Aug 17 02:38:27 IST 2017