Gujarat High Court
Rajitram Ramfere Kanojia vs State Of Gujarat on 24 April, 2024
NEUTRAL CITATION
R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 664 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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1 Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation NO
of the Constitution of India or any
order made thereunder ?
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RAJITRAM RAMFERE KANOJIA
Versus
STATE OF GUJARAT
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Appearance:
HCLS COMMITTEE(4998) for the Appellant(s) No. 1
MR PV PATADIYA(5924) for the Appellant(s) No. 1
MR LB DABHI APP for the /Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 24/04/2024
CAV JUDGMENT
1. By way of present appeal under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC" for short), the appellant has challenged the judgment and order of Page 1 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined conviction dated 29.06.2002 passed by the learned Additional Sessions Judge, Bharuch in Sessions Case No.139/2001, whereby the appellant has been convicted for the offences under Section 306 of the Indian Penal Code (hereinafter referred to as "IPC" for short) and thereby sentenced him to undergo six years rigorous imprisonment and fine of Rs.1,100/-, in default, to undergo 30 days simple imprisonment.
2. The brief facts leading to filing of the present appeal are as under, 2.1 An FIR being C.R. No.I-93/2001 came to be registered with Ankleshwar Police Station for the offences under Section 306 of the IPC alleging inter alia that the daughter of the complainant married with the deceased before seven years and as the deceased was unable to conceive a child, the disputes were cropped up and at that time, the appellant - accused used to tell her that if the deceased dies, he will remarry and thereby the appellant - accused was giving mental and physical torture and because of constant harassment meted out to the deceased by the appellant - accused, the deceased committed suicide by hanging herself.
2.2 On the basis of the registration of the FIR, the investigation was carried out and on conclusion of investigation, the chargesheet came to be filed before the court of the Page 2 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined learned Judicial Magistrate First Class, Ankleshwar.
2.3. Since the case registered against the appellant -accused was exclusively triable by the Court of Sessions, the Learned Judicial Magistrate, First Class, Ankleshwar after making inquiry about the suppliance of copies of papers, free of cost to the accused as provided under Section 208 of the Code of Criminal Procedure and upon satisfaction that the accused have engaged own Advocate for defence committed the case to the Court of Session Judge, Bharuch under Section 209 of the Code of Criminal Procedure, which came to be registered as Session Case No.139 of 2001. 2.4 On committal, the case was transferred and placed for trial before the Learned Sessions Judge, Bharuch, who had initially framed charge against the accused vide Exh.6 for the alleged offences. The charge was read over and explained to him. Plea of each accused came to be recorded vide Exh.7, wherein he pleaded not guilty to the charge and claimed to be tried.
2.5 Thereafter in order to bring home the charges leveled against the appellant - accused, the prosecution has examined 14 prosecution witnesses and also produced 14 documentary evidence, details of which are mentioned in Paragraph Nos.8 & 9 of the impugned order.
Page 3 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined 2.6 After recording of the evidence of the prosecution witnesses was over, the learned Sessions Court explained to the accused the circumstances appearing against him in the evidence of the prosecution witnesses and recorded his further statement under Section 313 of the Criminal Procedure Code. In his further statement, he denied the case of the prosecution in entirety. According to him, he has been roped in a false case.
2.7 At the end of trial, the learned Sessions Judge convicted the appellant - accused by impugned judgment and order and imposed sentence as stated in Paragraph No.1 of the judgment.
3. Heard learned advocate, Mr. P.V. Patadia for the appellant and learned APP Mr. L.B. Dabhi for the responded - State of Gujarat.
4. Learned advocate for the appellant submitted that the learned Sessions Court has failed to appreciate the evidence available on record in its true spirit. He submitted that to prove the charges leveled against the appellant - accused, the prosecution has examined 14 witnesses. Learned advocate submitted that there are so many omissions, contradictions and improvements found out in the deposition of the said witnesses. Learned advocate has read the depositions of all the witnesses and submitted that certain facts, which were not mentioned in the FIR or in the Page 4 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined statements recorded before the IO, have been brought on record at the time of giving depositions and all those omissions/ contradictions were brought on record at the time of cross-examination of the said witnesses. Learned advocate submitted that the appellant - accused has solemnized the marriage with the deceased and span of marriage life is more than seven years, therefore as per settled proposition of law, presumption under Section 113A of the Evidence Act would not come into play, therefore in absence of presumption under Section 113A of the Evidence Act, the prosecution has to prove its case on the basis of direct, clear, cogent and convincing evidence. Learned advocate submitted that it is the case of the prosecution that the appellant - accused used to consume alcohol and used to beat the deceased at regular interval as due to said wedlock, the deceased was unable to conceive child. Learned advocate further submitted that if the Hon'ble Court would make a cursorily glance upon depositions of witnesses, in that event, it would be found out that the deceased has not conceived a child, therefore, she had gone in the depression. Learned advocate submitted that it is also found out that the present appellant - accused has tried his level best to extend all medical assistance to the deceased and at regular interval, she used to go to hospital for the purpose of getting medical treatment to conceive a Page 5 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined child and the said fact has also come on record on the basis of the deposition of the witnesses.
5. Learned advocate further submitted that for the purpose of constituting charge leveled against the appellant - accused, the prosecution has to first prove the cruelty by the appellant - accused upon the deceased but admittedly at the time of registration of complaint, the provision of Section 498A of the IPC have not been invoked and only charge under Section 306 of the IPC was alleged against the appellant - accused. Learned advocate submitted that in fact, cruelty is not defined in the code but word 'cruelty' in reference to human beings and human emotions and it would never defined precisely. The cruelty has been used in relation to human conduct and human behavior. It is the conduct in relation to or in respect of matrimonial duties and the obligations. The cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. Learned advocate submitted that the conduct of the present appellant is also required to be seen because immediately after the occurrence of the incident, the said fact was informed to the complainant and other family members of the deceased. Learned advocate submitted that in fact, as per the case of the prosecution, the brother of the present appellant was very much available at the place of occurrence Page 6 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined at that relevant point of time and he as well as landlord of the house had cut the nylon rope from the hook and brought deceased to the hospital for getting medical treatment and as per the advice given by the doctor concerned, they immediately tried to shift the deceased to nearby hospital but on the way, she died and those persons were examined by the prosecution as witnesses but nothing fruitful have come in the evidence of those witnesses and on the contrary, it is found out from the record that at the time of incident, the present applicant was not found available at home and he had gone outside to do his routine daily activities of business and it has also come on record that the deceased was illiterate and unable to write any note and, therefore, no suicide note purportedly written by the deceased was found at the place of occurrence. Learned advocate further submitted that as stated above, after the incident, the deceased was immediately shifted to hospital for the purpose of preliminary treatment and at that point of time, she was alive but she has not recorded her oral dying declaration before the doctor as well as other witnesses. Learned advocate submitted that even at the time of last breathe, she has not recorded her oral dying declaration before the brother of the appellant as well as landlord. Learned advocate submitted that immediately after the occurrence of the incident, the brother of the appellant has Page 7 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined registered accidental death report before the concerned police station, therefore by no stretch of imagination, it can be construed that the present appellant has ever tried to shield the incident and shurking from the liability. Learned advocate submitted that therefore considering the totality of the facts and the evidence available on record, it can be said that the prosecution has miserably failed to lead evidence, however in absence of cogent and convincing material available on record, a judgment and order of conviction has been passed, which may be quashed and set aside.
6. Learned advocate further submitted that on the same night when the incident had occurred, the complainant had gone to the house of the deceased and after verifying the position, immediately they rushed to the Police Station to register the complaint but there are so many contradictions and omissions in the depositions of those witnesses and if it is to be reappreciated in proper manner, in that event, the order of conviction cannot sustain, therefore, the impugned judgment and order of conviction may be quashed and set aside.
7. Learned advocate for the appellant has put reliance upon following decisions, (1) the judgment of the Hon'ble Apex Court in case of Kishori Lal Vs. State of M.P., reported in (2007) 10 SCC 797;
(2) the judgment of this Court in case of Page 8 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined Mahesh & Ors. Vs. State of Gujarat, reported in 2020 CriLJ 4881;
(3) the judgment of this Court in case of Ashokbhai Popatbhai Koladra Vs. State of Gujarat, delivered in Criminal Appeal No.93/2005 by judgment and order dated 18.07.2023;
8. Learned advocate, after referring to the aforesaid decisions, has submitted that for the purpose of providing charge of abetment to suicide, there must be proof of direct or indirect acts and instrument to commit suicide and mere allegation leveled against the accused that the husband had committed cruelty, is not enough evidence to record conviction. Learned advocate submitted that it is an admitted position of fact that the marriage span of the deceased is more than seven years and during that period, she could not conceive a child, due to which, she had gone into depression and the said fact is crystallized from the evidence available on record. Learned advocate further submitted that it is also settled position of law that for the purpose of proving charge of abetment to suicide, basic ingredients of Section 306 are required to be proved and in support of said contention, learned advocate has put reliance upon Section 107 of the IPC, which provides for "abetment of a thing". Learned advocate submitted that so far as one of the basic ingredients to constitute the charge under Section 306 of the IPC Page 9 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined are concerned, there should be mens rea on the part of the appellant - accused and as a part of mens rea, the present appellant has acted in a particular manner, which ultimately driven the deceased to commit suicide and the harassment meted to the deceased is of such a high degree that she has left with no other option except committing suicide. Learned advocate submitted that if the Hon'ble Court would make a cursorily glance upon the depositions of prosecution witnesses, in that event, mens rea is lacking and in absence of mens rea, the prosecution has miserably failed to prove the charges leveled against the appellant - accused.
9. Learned advocate submitted that the prosecution has also miserably failed to prove that there was proximate cause on the part of the appellant - accused as the appellant was not found available at the place of occurrence at the time of incident and on the contrary, it is found out from the evidence available on record that on the fateful day of incident, the appellant was playing with the kid and at that relevant point of time, the deceased got annoyed on account of not conceiving a child, due to which, she was under depression. Learned advocate, therefore, submitted that the appellant - accused has not committed any offence as alleged and to connect the appellant with the commission of crime, the prosecution has not produced on record concrete material and evidence, Page 10 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined despite that, the appellant has been wrongly convicted by the learned Sessions Court by impugned judgment and order of conviction and, hence, the present appeal may be allowed and the impugned judgment and order of conviction and sentence may be quashed and set aside.
10. Learned APP has submitted that the so-called incident had taken place on 29.06.2001 and on the very same day, as soon as the complainant came to know about the alleged incident, FIR has been lodged and pursuant to registration of the FIR, the investigation was carried out and ultimately, chargesheet was submitted against the appellant. Learned APP submitted that it is an admitted position of fact that the marriage span is more than seven years, therefore, presumption under Section 113A of the Evidence Act would not applicable in the case on hand but on the strength of the evidence led by the prosecution, the prosecution has successfully proved the charges leveled against the appellant - accused and for the purpose of proving the charges leveled against the appellant - accused, the prosecution has examined total 14 witnesses and all the witnesses have in a very categorical terms deposed that the appellant - accused was having habit of consumption of liquor and on regular interval under the influence of intoxication, he used to beat the deceased and the span of marriage life is more than seven years, however during that period, Page 11 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined as the deceased could not conceive a child, the appellant - accused used to taunt her that you may die so that I can remarry with another lady. Learned APP further submitted that the house of the applicant and the complainant is within 60-80 Kms. and at regular interval, the deceased used to visit her parental home, at that point of time, she used to complain about the ill-treatment at the hands of the appellant - accused and her sister-in-law (wawI) and the said fact has also come on record on the basis of the deposition of the sister-in-law of the deceased and the said witness was cross-examined by the defence and the depositions of all the witnesses are found to be reliable and creditworthy and all the witnesses have consistently deposed about the cruelty of the appellant - accused meted out to the deceased and after appreciating all the evidence available on record, the learned Judge has passed reasoned judgment, which does not require any interference at the hands of this Court at this juncture as one innocent lady has lost her life due to mental torture and physical harassment meted out to her by the appellant - accused. Learned APP, therefore, urged that the present appeal may not be entertained and it may be dismissed.
11. Having heard learned advocates appearing for the parties and having considered the submissions made on behalf of the parties, it is found out that an FIR has been registered against the appellant -
Page 12 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined accused for the offences under Section 306 of the IPC inter alia alleging about the cruelty meted out by him to the deceased, which led to committing suicide by her and, hence, he was tried by the court concerned and at the end of trial, an order of conviction has been passed against him, which led to filing of the aforesaid appeal challenging the impugned judgment and order of conviction and sentence.
12. Here in this case, as stated above, allegations leveled against the appellant - accused are with regard to giving mental and physical torture to the deceased on account of not conceiving a child by the deceased, which led to committing suicide by the deceased. It is, however, required to be noted that though allegations of physical torture are made, the provision of Section 498A of the IPC has not been invoked by the complainant and even on perusal of the contents of the FIR, it is found out that there is no whisper about the physical torture in the entire body of the FIR except allegations without any substance.
13. I have also considered the depositions of prosecution witnesses, more particularly, PW No.1 viz., Madhavlal D. Kanojiya, Exh.8 (who is father of the deceased); PW No.2 viz., Ramkishan M. Kanojiya, Exh.11 (who is brother of the deceased) and PW No.3 viz., Champaben Kanojiya, Exh.12 (who is wife of brother of the deceased). On conjoint reading of the evidence of the aforesaid Page 13 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined witnesses, who are near relatives of the deceased, it reveals that these witnesses have made improvements and additions in the narration of the facts during their depositions. On minutely scrutinizing the evidence of aforesaid witnesses, it is found out that they are close relatives of the deceased and thus, they are interested witnesses, who would naturally depose against the accused just because of the fact that they have lost their dear ones. From the depositions of these witnesses, it is found out that the marriage span is more than seven years, therefore, presumption under Section 113A of the Evidence Act would not applicable in the case on hand. It is also found out that there are omissions, contradictions and improvisation in their depositions and, hence, their depositions cannot be said to be trustworthy.
14. I have also considered the depositions of PW No.4 viz., Santosh Ramfere Kanojiya, Exh.14 (who is real brother of the deceased) as well as PW No.5 viz., Natvarbhai Ramabhai Vasava, Exh.15 (who is owner of the house, where the deceased had committed suicide). On minutely scrutinizing the evidence of these witnesses, it is found out that after the alleged incident, both these witnesses have reached the place of occurrence and tried to save the deceased by taking her to the hospital for getting medical treatment and on the way, the deceased died. Thus from this fact itself, it is Page 14 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined clear that after the incident, real brother of the appellant - accused had tried to give immediate treatment and tried to save her but she could not survive. Both these witnesses are examined by the prosecution but they have stated what actually has been done and on the contrary, it is found out that at the time of occurrence of the incident, the appellant - accused was not available at home and in fact, he was at his work place. Not only that, the brother of the appellant - accused has given accident death note, which clearly goes on to show that it was never the intention on the part of the appellant - accused to save his skin by not disclosing the said fact before the Police nor tried to flee away from his responsibility.
15. I have considered the deposition of PW No.22 viz., Dr. Ravishankar Rajendra Jha, Exh.22, who has performed the postmortem upon the dead body of the deceased. In his deposition, the said witness has narrated the injuries sustained by the deceased on her body and if look at the said deposition, it is found out that except ligature mark on neck, there is no external injury found on the body of the deceased, which ruled out the possibility of mental and physical torture to the deceased. I have also considered the deposition of PW No.12 viz., Mansukhbhai Amarsinghbhai Bariya, Exh.29, who is the Investigating Officer in the present case. From the evidence of this witness, it is clear that the appellant was not present at the Page 15 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined place of occurrence.
16. I have also considered the oral as well as documentary evidence produced on record and found that the marriage span of the appellant with the deceased was more than seven years and during that period, there was no mental and physical torture at the hands of the appellant - accused. Admittedly, the deceased could not conceive a child but for that period, the appellant - accused has tried his level best to extent all medical assistance to the deceased to come out from the said situation and the said fact has also come on record on the basis of the deposition of the witnesses. It is worthwhile to note that the Investigating Officer, who has recorded the statements of the various witnesses and those statements were revealing that the deceased was being taken care of by the appellant - accused. Thus from this fact itself, it is clear that there was no mental and physical torture at the hands of the appellant - accused to the deceased on account of not conceiving a child by the deceased and, hence, the presumption under Section 113A of the Evidence Act would not come into play, therefore in absence of presumption under Section 113A of the Evidence Act
17. At this stage, this Court would like to refer to Section 113A of the Indian Evidence Act, which deals with 'Presumption as to abetment of suicide by a married woman'. Section 113A reads as under, Page 16 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined "113A: When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative or 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 498-A of the Indian Penal Code (45 of 1860)."
18. On perusal of the aforesaid section, it is found out that this section The section requires proof that (1) that her husband or relatives subjected her to cruelty and (2) that the married woman committed suicide within a period of seven years from the date of her marriage. If these facts are proved, the court 'may' presume. The words are not 'shall' presume. Such a presumption can be drawn only after the court has taken into account all the circumstances of the case. The inference would then be that the 'husband or relatives' abetted her suicide. If there is no evidence of cruelty, the section does not apply. In a judgment in case of State of Punjab Vs. Iqbal Singh, reported in Page 17 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined AIR 1991 SC 1532 as well as in a judgment in case of State of Himachal Pradesh Vs. Nikku Ram, reported in AIR 1996 SC 67, it was held that in the absence of any evidence to show that the diseased was being harassed within the meaning of Explanation I(b) of section 498A IPC, the presumption under section 113A cannot be raised. Further, the Hon'ble Supreme Court in a judgment in case of State of West Bengal Vs. Orilal Jaiswal reported in AIR 1994 SC 1418 has considered the question as to 'standard of proof'. It observed that in a criminal trial, the degree of proof is stricter than what is required in a civil proceeding. In a criminal trial, however intriguing may be the facts and circumstances of the case, the charges made against may be in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of section 498-A in the Indian Penal Code and section 113-A in the Evidence Act. It is also observed in catena of decisions that the court should be extremely careful in assessing evidence under section 113A for finding out if cruelty was meted out. If it transpires that a victim committing suicide was hyper sensitive 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 Page 18 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined individual in a given society to commit suicide, the conscience of the Court would not be satisfied for holding that the accused charged of abetting the offence of suicide was guilty.
19. At this stage, this Court would like to place reliance upon the judgment of the Hon'ble Apex Court in case of Mangat Ram Vs. State of Haryana, reported in (2014) 12 SCC 595, the Hon'ble Apex Court considering the provisions of Section 498A and 306 of IPC in the light of the presumption under Section 113A of the Evidence Act, observed as under: -
"30. We are of the view that the mere fact that if a married woman commits suicide within a period of seven years of her marriage, the presumption under Section 113-A of the Evidence Act would not automatically apply. The legislative mandate is that where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband has subjected her to cruelty, the presumption as defined under Section 498-A IPC, may attract, having regard to all other circumstances of the case, that such suicide has been abetted by her husband or by such relative of her husband. The term "the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her Page 19 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined husband" would indicate that the presumption is discretionary. So far as the present case is concerned, we have already indicated that the prosecution has not succeeded in showing that there was a dowry demand, nor would the reasoning adopted by the courts below would be sufficient enough to draw a presumption so as to fall under Section 113-A of the Evidence Act.
31. In this connection, we may refer to the judgment of this Court in Hans Raj v. State of Haryana [(2004) 12 SCC 257 : 2004 SCC (Cri) 217] , wherein this Court has examined the scope of Section 113-A of the Evidence Act and Sections 306, 107, 498-A, etc. and held that, unlike Section 113-B of the Evidence Act, a statutory presumption does not arise by operation of law merely on the proof of circumstances enumerated in Section 113-A of the Evidence Act. This Court held that, under Section 113-A of the Evidence Act, the prosecution has to first establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband has subject her to cruelty. Even though those facts are established, the court is not bound to presume that suicide has been abetted by her husband. Section 113-A, therefore, Page 20 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined gives discretion to the court to raise such a presumption having regard to all other circumstances of the case, which means that where the allegation is of cruelty, it can consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word "cruelty" in Section 498-A IPC."
20. Therefore in view of the above facts, if the facts of the case on hand are examined, in that event, it is clear that admittedly the span of marriage life between the appellant - accused and the deceased was more than 7 years and as can be found out from the material available on record, there are no mental and physical harassment at the hands of the appellant, which attracts the provision of Section 113A of the Indian Evidence Act.
21. At this juncture, I would like to refer to certain case laws wherein the Hon'ble Apex Court as well as different High Courts have very succinctly crystallized the position of law so far as Sections 306 and 107 of the Indian Penal Code are concerned. The Hon'ble Supreme Court, in the case of Geo Verghese Vs. State of Rajasthan, reported in AIR 2021 SC 4764, observed and held as under:
"13. In our country, while suicide in itself is not an offence as a person committing suicide goes beyond the reach of law but an attempt to suicide is considered to be an offence under Section 309 IPC. The abetment Page 21 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined of suicide by anybody is also an offence under Section 306 IPC. It would be relevant to set out Section 306 of the IPC which reads as under :-
"306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
14. Though, the IPC does not define the word 'Suicide' but the ordinary dictionary meaning of suicide is 'self-killing'. The word is derived from a modern latin word 'suicidium' , 'sui' means 'oneself' and 'cidium' means 'killing'. Thus, the word suicide implies an act of 'self-killing'. In other words, act of death must be committed by the deceased himself, irrespective of the means adopted by him in achieving the object of killing himself.
15. Section 306 of IPC makes abetment of suicide a criminal offence and prescribes punishment for the same. Abetment is defined under Section 107 of IPC which reads as under :-
"107. Abetment of a thing - A person abets the doing of a thing, who--
First.--Instigates any person to do that thing; or Page 22 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined 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."
16. The ordinary dictionary meaning of the word 'instigate' is to bring about or initiate, incite someone to do something. This Court in the case of Ramesh Kumar Vs. State of Chhattisgarh1 has defined the word 'instigate' as under :-
"Instigation is to goad, urge forward, provoke, incite or encourage to do an act."
17. The scope and ambit of Section 107 IPC and Page 23 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined its co-relation with Section 306 IPC has been discussed repeatedly by this Court. In the case of S.S.Cheena Vs. Vijay Kumar Mahajan and Anr.2 , it was observed as under:-
"Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by the Supreme Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide."
18. In a recent pronouncement, a two-Judge Bench of this Court in the case of Arnab Manoranjan Goswami Vs. State of Maharashtra & Ors.3 , while considering the co-relation of Section 107 IPC with Section 306 IPC has observed as under :-
"47. The above decision thus arose in a situation where the High Court had declined to entertain a petition for Page 24 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined quashing an FIR under Section 482 of the 14 (2014) 4 SCC 453 PART I 33 CrPC. However, it nonetheless directed the investigating agency not to arrest the accused during the pendency of the investigation. This was held to be impermissible by this Court. On the other hand, this Court clarified that the High Court if it thinks fit, having regard to the parameters for quashing and the self restraint imposed by law, has the jurisdiction to quash the investigation ―and may pass appropriateand may pass appropriate interim orders as thought apposite in law. Clearly therefore, the High Court in the present case has misdirected itself in declining to enquire prima facie on a petition for quashing whether the parameters in the exercise of that jurisdiction have been duly established and if so whether a case for the grant of interim bail has been made out. The settled principles which have been consistently reiterated since the judgment of this Court in State of Haryana vs Bhajan Lal(Bhajan Lal) include a situation where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their Page 25 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined entirety, do not prima facie constitute any offence or make out a case against the accused. This legal position was recently reiterated in a decision by a two-judge Bench of this Court in Kamal Shivaji Pokarnekar vs State of Maharashtra.
48. The striking aspect of the impugned judgment of the High Court spanning over fifty-six pages is the absence of any evaluation even prima facie of the most basic issue. The High Court, in other words, failed to apply its mind to a 15 1992 Supp. 1 SCC 335 16 (2019) 14 SCC 350 PART I 34 fundamental issue which needed to be considered while dealing with a petition for quashing under Article 226 of the Constitution or Section 482 of the CrPC. The High Court, by its judgment dated 9 November 2020, has instead allowed the petition for quashing to stand over for hearing a month later, and therefore declined to allow the appellant's prayer for interim bail and relegated him to the remedy under Section 439 of the CrPC. In the meantime, liberty has been the casualty. The High Court having failed to evaluate prima facie whether the allegations in the FIR, taken as they stand, bring the Page 26 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined case within the fold of Section 306 read with Section 34 of the IPC, this Court is now called upon to perform the task."
19. In the case of M. Arjunan Vs. State, Represented by its Inspector of Police4 , a two-Judge Bench of this Court has expounded the ingredients of Section 306 IPC in the following words:-
"The essential ingredients of the offence under Section 306 I.P.C. are: (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied, accused cannot be convicted under Section 306 I.P.C."
xxx xxx xxx
23. In the backdrop of the above discussion, we may now advert to the facts of the present case to test whether the ingredients of offence under Section 306 IPC exist, even prima-facie, to continue with the investigations.
24. The FIR recites that victim boy was under Page 27 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024
NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined deep mental pressure because the appellant herein had harassed and insulted him in the presence of everyone and he was not willing to go to school on 25.04.2018 but was persuaded to go to school by the complainant. When he returned from the school, again he was under very much pressure and on being enquired told that today again he was harassed and insulted by the GEO, PTI Sir (the appellant). The boy was informed that the parents have been called to school next day and this brought him under further severe pressure and tension."
22. In the facts of the present case, clause secondly and thirdly in Section 107 will have no application. Now, the question remains is as to whether the appellant instigated the deceased to commit suicide. To attract the first clause, there must be instigation in some form on the part of the accused to cause the deceased to commit suicide. Hence, the accused must have 'mens rea' to instigate the deceased to commit suicide. The act of instigation must be of such intensity that it is intended to push the deceased to such a position under which he or she has no choice but to commit suicide. Such instigation must be in close proximity to the act of committing suicide. In the present case, taking the contents of the Page 28 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined FIR and the statements of the witnesses as correct, it is impossible to conclude that the appellant instigated the deceased to commit suicide just because of not conceiving a child by the deceased. By no stretch of the imagination, the alleged acts of the appellant can amount to instigation to commit suicide.
23. In the aforesaid decision of the Hon'ble Supreme Court in the case of Geo Varghese (supra), the Hon'ble Supreme Court has observed and held as under:
"32. Considering the facts that the appellant holds a post of a teacher and any act done in discharge of his moral or legal duty without their being any circumstances to even remotely indicate that there was any intention on his part to abet the commission of suicide by one of his own pupil, no mens rea can be attributed. Thus, the very element of abetment is conspicuously missing from the allegations levelled in the FIR. In the absence of the element of abetment missing from the allegations, the essential ingredients of offence under section 306 IPC do not exist."
24. As discussed hereinabove, the marriage span of the appellant with the deceased is more than 7 years and during that period, admittedly the deceased could not conceive a child and because of which, Page 29 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined she was under depression and even medical treatment was also provided to the deceased by the appellant and at regular interval, she was taken to doctor for required medical treatment and the said fact has come on surface from the oral as well as documentary evidence produced on record. Thus, it cannot be said that there was any intention on their part to abet the commission of suicide and, therefore, no mens rea can be attributed. Thus, in the opinion of this Court, the very element of abetment is missing from the allegations levelled in the FIR and in absence of the element of abetment from the allegations, the offence under Section 306 IPC would not be attracted.
25. At this stage, I would like to refer to the decision rendered by this Court in the case of Lalitbhai Vikramchand Parekh Vs. State of Gujarat in Criminal Misc. Application No.16032 of 2014 & allied matters decided on 10th April, 2015, wherein the following observations were made:
"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".Page 30 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024
NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined 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."Page 31 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024
NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined
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.
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 Page 32 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined 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 Page 33 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined 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 basis of the decision in the case of Ackroyds Air Travel v. Director of Police Prosecutions, 1950 Page 34 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined (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 recognised 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 Page 35 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined 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 Page 36 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined commission of an offence, be must at least know the essential matters which constitute the offence 1951 (1) All. E.R. 412(414)."
"But acquiescene sufficient to constitute the offence may be established by evidence of the accused persons motive and of his subsequent conduct 1951 (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 Page 37 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined 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, even though an unsuccessful attempt at it is punishable. 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 Page 38 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined 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 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 Page 39 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined 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 Page 40 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined 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 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 Page 41 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined 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 Page 42 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined 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 person to do that Page 43 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined 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 Page 44 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined 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 Page 45 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the other. Each person has his own idea of self esteem and self respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.
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 Page 46 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined 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 Page 47 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined 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.
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 Page 48 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined 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 Page 49 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined 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."
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 Page 50 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined 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 Page 51 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined 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 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, Page 52 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined 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."
26. I would also like to refer to the judgment of the Hon'ble Apex Court in case of Kishori Lal (supra), wherein the Hon'ble Apex Court has observed in Paragraph Nos.6 and 7 as under, "6. Section 107 of the Indian Penal Code defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three Page 53 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined clauses of Sec. 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. 'Abetted' in Sec. 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence
7. In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased-wife with cruelty is not enough. See Mahinder Singh V/s. State of M.P., 1995 0 AIR(SCW) 4570. Merely on the allegation of harassment conviction in terms of Sec. 306 of the Indian Penal Code is not sustainable. There is ample evidence on record that the deceased was disturbed because she had not given birth to any child. PWs. 8, 10, and 11 have categorically stated that the deceased was disappointed due to the said fact and her failure to beget a child and she was upset due to this."
27. I would like to refer to decision of the Hon'ble Supreme Court in case of S.S. Chheena Vs. Vijay Page 54 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined Kumar Mahajan & Ors., reported in (2010) 12 SCC 190, wherein the Hon'ble Apex Court has observed in Paragraph Nos.16, 17, 18, 19, 20, 21 and 23 as under, "16. In order to properly comprehend the scope and ambit of Sec. 306 IPC, it is important to carefully examine the basic ingredients of Sec. 306 IPC. The said section is reproduced as under:-
"306.Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
17. The word "suicide" in itself is nowhere defined in the 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.
18. Suicide by itself is not an offence under either English or Indian criminal law, though at one time it was a felony in England. In England, the former law was of Page 55 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined the nature of being a deterrent to people as it provided penalties of two types:-
(1) Degradation of corpse of the deceased by burying it on the highway with a stake through its chest.
(2) Forfeiture of property of the deceased by the State.
19. This penalty was later distilled down to merely not providing a full Christian burial, unless the deceased could be proved to be of unsound mind. However, currently there is no punishment for suicide after the enactment of the Suicide Act, 1961 which proclaims that the rule of law whereby it was a crime for a person to commit suicide has been abrogated.
20. 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 Sec. 309 IPC.
21. "Abetment" has been defined under Sec. 107 of the Code. We deem it appropriate to reproduce Sec. 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 Page 56 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined for the doing of that hing, 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 2 which has been inserted along with Sec. 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 facilitates the commission thereof, is said to aid the doing of that act."
23. The Court on the aforementioned allegations came to a definite conclusion that by no stretch the ingredients of abetment are attracted on the statement of the deceased. According to the appellant, the conviction of the appellant under Sec. 306 IPC merely on the basis of the aforementioned allegation of harassment of the deceased is unsustainable in law."
28. In the aforesaid judgment in case of S.S. Chheena (supra), necessary ingredients for the offence under Section 306 of the IPC was considered, where explaining the concept of abetment, Justice Dalveer Bhandari wrote as under, Page 57 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024 NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined "25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Sec. 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide."
29. Having regard to the provisions of Section 107 and 306 of the Indian Penal Code and the principle laid down by the Supreme Court in various decisions referred to in the case of Lalitbhai Vikramchand Parekh (supra) as well as other decisions as stated above, it is apparent that in a case under Section 306 of the Indian Penal Code, there should be correct mens rea to commit the offence under this section and there should be direct and active role by the accused, which led the deceased to commit the suicide, that is to say that there cannot be same evidence of "instigation" or "initial assistance" by the accused to commit suicide by the victim/deceased.
Page 58 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024NEUTRAL CITATION R/CR.A/664/2002 CAV JUDGMENT DATED: 24/04/2024 undefined However in the facts of the present case, as discussed hereinabove, the prosecution has failed to prove that there was mens rea on the part of the appellant - accused to commit the offence, which led the deceased to commit suicide. On the contrary, it is found out that the deceased might have committed suicide because of some other reason. Therefore in view of the observations made hereinabove, I am persuaded to conclude that the impugned judgment and order of conviction and sentence under challenge cannot be sustained and, hence, the present appeal deserves to be allowed.
30. In the result, the present appeal is allowed. The impugned judgment and order of conviction dated 29.06.2002 passed by the learned Additional Sessions Judge, Bharuch in Sessions Case No.139/2001 is hereby quashed and set aside and the appellant is acquitted of the offences with which he was charged by giving him the benefit of doubt. The appellant is on bail and, hence, his bail bond stands cancelled and he shall forthwith be set at liberty if not required in any other case. Record & Proceedings be sent back to the concerned court forthwith.
Sd/-
(DIVYESH A. JOSHI, J.) Gautam Page 59 of 59 Downloaded on : Wed Apr 24 20:47:52 IST 2024