Gujarat High Court
Hansaben @ Hasina Yusufbhai vs The State Of Gujarat on 25 July, 2024
NEUTRAL CITATION
R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 11 of 2005
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
of the Constitution of India or any NO
order made thereunder ?
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HANSABEN @ HASINA YUSUFBHAI & ANR.
Versus
THE STATE OF GUJARAT
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Appearance:
MR ZUBIN F BHARDA(159) for the Appellant(s) No. 1,2
MR SOAHAM JOSHI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 25/07/2024
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 conviction dated 22.12.2004 passed by the learned Additional Sessions Judge, 10th Fast Track Court, Page 1 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined Rajkot in Sessions Case No.10/2002, whereby the appellants have been convicted for the offences under Sections 306, 498(A), 506(2) and 114 of the Indian Penal Code (hereinafter referred to as "IPC" for short) and thereby sentenced them to undergo two yours rigorous imprisonment and fine of Rs.1,000/-, in default, to undergo thirty days simple imprisonment for the offence under Section 306 of the IPC; sentence them to undergo one year rigorous imprisonment and fine of Rs.500/- each, in default, to undergo fifteen days rigorous imprisonment for the offence under Section 498(A) of the IPC and sentenced them to undergo six months simple imprisonment for the offence under Section 506(2) of the IPC.
2. The brief facts leading to filing of the present appeal are as under, 2.1 An FIR being C.R. No.I-368/2001 came to be registered with Pradhyumannagar Police Station for the offences under Sections 306, 498(A), 506(2) and 114 of the IPC alleging inter alia that the accused no.1 is sister- in-law and the accused no.2 is brother-in-law of the deceased, who pressurized the husband of the deceased to indulge into illegal activity of bootlegging, which was not liked by the deceased and, hence, verbal quarrel used to take place and the deceased made to understand her husband not to indulge into such illegal activity but despite that, there Page 2 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined was consent mental harassment at the hands of the accused and because of which, the deceased poured kerosene over her body and set herself ablaze and, therefore, aforesaid FIR has been lodged.
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 learned Magistrate concerned.
2.3. Since the case registered against the appellant -accused was exclusively triable by the Court of Sessions, the Learned Magistrate 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, Rajkot under Section 209 of the Code of Criminal Procedure, which came to be registered as Session Case No.10 of 2002. 2.4 On committal, the case was transferred and placed for trial before the Learned Sessions Judge, Rajkot, who had initially framed charge against the accused vide Exh.9 for the alleged offences. The charge was read over and explained to the accused. Plea of each accused came to be recorded vide Exh.19, wherein they pleaded not guilty to the charge Page 3 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined and claimed to be tried.
2.5 Thereafter in order to bring home the charges leveled against the appellant - accused, the prosecution has examined 12 prosecution witnesses and also produced 20 documentary evidence, details of which are mentioned in Paragraph Nos.4 & 5 of the impugned order. 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 them in the evidence of the prosecution witnesses and recorded their further statements under Section 313 of the Criminal Procedure Code. In their further statement, they denied the case of the prosecution in entirety. According to them, they have 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. Zubin Bharda for the appellants and learned APP Mr. Soaham Joshi for the responded - State of Gujarat.
4. Learned advocate, Mr. Bharda submitted that the appellant no.1 is a sister-in-law and the appellant no.2 is a brother-in-law and the span of marriage life is round about six months and so far Page 4 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined as the allegations leveled against the appellants are concerned, it is specifically alleged that the appellants used to administer threats to the husband of the deceased to indulge into illegal activity of bootlegging, which was not liked by the deceased as she was against the said illegal activity and because of pressure created upon the husband of the deceased by the appellants, verbal altercations have been cropped up. Learned advocate submitted that it is the specific case of the prosecution that since last more than eight days, the appellants were insisting upon the husband of the deceased to carry on the said illegal activity of bootlegging and due to the said act committed by the appellants, the deceased has committed suicide. Learned advocate submitted that for the sake of argument without admitting the above factual aspects, by no stretch of imagination, it can be said that the appellants were aware about the fact that if they would be insisting upon the husband of the deceased, which ultimately leads the deceased to commit suicide and with the sole that intent to yield desired result, they had acted, continued and insisted upon the husband of the deceased to indulge into the illegal business of bootlegging but it was not the case of the prosecution that that was the intention of the appellants, therefore on the strength of the evidence available on record, it can safely be said that there was no instigation Page 5 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined and/or abetment on the part of the appellants, which ultimately drives the deceased to commit suicide. Learned advocate submitted that it is an admitted position of fact that unfortunate incident of death of the deceased has occurred and she has committed suicide by setting herself ablaze and ultimately succumbed to the said burn injuries sustained by her. Learned advocate submitted that to prove the said charge of guilt leveled against the accused persons, the prosecution has examined total 12 witnesses and produced number of documentary evidences and if the Hon'ble Court would go through the deposition of the husband of the deceased, in that event, it is found out that he has not supported the case of the prosecution and on the contrary, he has stated that he was working as driver and the incident, which is narrated in the body of the complaint, has never happened with him, therefore, there was no corroboration in the story put forward by the prosecution. Learned advocate submitted that other panch witnesses, who were examined to prove certain evidence collected by the IO during the course of trial, have also not supported the case of the prosecution and ultimately, they have been declared as hostile witness, therefore, reliance cannot be placed upon the said set of evidence, rather on the contrary, it can be said that the prosecution has miserably failed to prove the charge leveled against the appellants. He further Page 6 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined submitted that entire case of the prosecution is based upon the allegations leveled against the appellants that the appellants were insisting the husband of the deceased to indulge into illegal activity of bootlegging and the said fact is not supported by the husband, therefore, the prosecution has failed to prove the basic ingredients of charges leveled against the accused persons and in absence of any concrete, cogent, clinching and convincing evidence, an order of conviction ought not to have been passed. Learned advocate submitted that there are so many glaring and serious infirmities and contradictions found out on record but those set of evidence have not been considered by the court concerned at the time of appreciating the evidence. Rather, the learned Judge has given undue importance to non-important documents and passed an order of conviction. Learned advocate submitted that the learned Judge has not properly appreciated the contradictions available on record in the depositions of witnesses so far as the statement made by the prosecution witnesses before the Hon'ble Court. Learned advocate submitted that the father of the deceased has also not supported the case of the prosecution and ultimately declared hostile and it is required to be appreciated that in case where the daughter has committed suicide in that event, the father would have narrated everything what has been suffered by his daughter but in the facts of Page 7 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined the present case, it is found out from the deposition of the father of the deceased that no such incident as alleged has happened. Learned advocate submitted that it is an admitted position of fact that the appellants and the deceased and her husband were residing separately and if the Hon'ble Court would go through all evidence available on record, in that event, it would be found out that there was no whisper about the occurrence of any incident as defined under Section 498(A) of the IPC is concerned and not a single complaint and/or incident is registered before any authority and/or police station before registration of the present FIR. He, therefore, submitted that even in the present FIR, they have not come with a specific case that there was any mental and physical torture in the form of cruelty meted out by the appellants to the deceased, therefore, prima facie in absence of any evidence, the appellants ought not to have been punished for the offences punishable under Section 498(A) of the IPC. Learned advocate submitted that there is no direct evidence so far as the offence falling under Section 506(2) of the IPC is concerned. Learned advocate submitted that only mother of the deceased has stated that the appellants have threatened to kill the deceased if she does not support their illegal activity of bootlegging. Learned advocate submitted that on the strength of the threat administered by the accused persons, Page 8 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined the deceased was terrorized and effect of the threat was so alarming that she was living under threat constantly. Learned advocate submitted that it is an admitted position of fact that the mother is an interested witness and whatever she has deposed in her deposition is merely on the strength of the information received by her and, therefore, the mother of the deceased can be said to be hearsay witness and as per the settled proposition of law, hearsay evidence falls under the category of weak piece of evidence and ought not to have been relied upon by the court except corroborated with any independent evidence. Learned advocate submitted that it is the specific case of the prosecution that the mother of the complainant in her deposition has stated that the appellant no.2 compelled the husband of the deceased to indulge into illegal activity of bootlegging, which was not liked by the deceased and this is the only reason behind commission of suicide by the deceased but the said allegations were levelled against the appellant no.2 and so far as the appellant no.1 is concerned, there was no allegation levelled against her.
5. Learned advocate further submitted that with sole intent to prove charge leveled against the accused, the prosecution has examined doctor, who has deposed in a clear terms that the deceased had sustained burn injuries, due to which, she died and the said fact cannot be denied. He further Page 9 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined submitted that as per the case of the prosecution, immediately after the occurrence of the incident, the husband of the deceased took her to hospital for the purpose of getting preliminary treatment and initially she was treated by the doctor and her condition was stable and at that relevant point of time, the Executive Magistrate was called by the police to record dying declaration and to prove the contents of the dying declaration, the prosecution has examined Executive Magistrate, who reiterated the said fact, which is mentioned in the dying declaration and on the strength of the said material available on record, an order of conviction cannot be passed. Learned advocate submitted that for the sake of arguments, without admitting it, if those charges leveled against the appellants are to be proved, in that event, can it be said that there was instigation and abetment on the part of the accused, which ultimately drive the deceased to commit suicide?.
6. Learned advocate submitted that the learned Judge has put much reliance upon the evidence of Executive Magistrate. Learned advocate, however, submitted that before recording the dying declaration of the deceased, the said witness (Executive Magistrate) has not obtained any opinion from the concerned Medical Officer, who treated the deceased and also not obtained certificate from the concerned doctor, who treated the deceased and opined that the deceased was in Page 10 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined fit state of mind to give her dying declaration and thus, the procedure as required under the law has not been followed by him, which vitiate the prosecution case. Learned advocate submitted that as per the case of the prosecution, the deceased has sustained 92% to 95% burn injuries all over her body except lower part (on both legs) and dying declaration was recorded immediately after four hours of the incident and it is quite impossible to believe that at that time, the deceased was in fit state of mind to give her dying declaration and if the Hon'ble Court would go through the original copy of the dying declaration, in that event, it is found out that nowhere in the certificate, it has been endorsed by the Medical Officer, who had treated the deceased, that the deceased was fully oriented and is in a position to give dying declaration and only opinion is given by the Medical Officer stating that she was conscious but nowhere in the document, it is stated that she was cable enough to give her dying declaration and learned Judge has put much emphasis upon the said set of document. Learned advocate, however, submitted that relying upon the said set of evidence, the view adopted by the learned Judge while passing an order of conviction cannot be said to be correct one. Learned advocate further submitted that as per the case of the prosecution, immediately after the occurrence of the incident in the early Page 11 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined morning at about 4:35 a.m., she was taken to the hospital for the purpose of getting preliminary treatment, at that point of time, she had given history before the doctor stating that due to quarrel in her house, she set her ablaze and received burn injuries. Learned advocate submitted that the panch witnesses, who are independent witnesses, have not supported the case of the prosecution. Learned advocate submitted that the mother and aunt of the deceased have supported the case of the prosecution but if the deposition of the said witnesses are to be seen, in that event, the evidence of those witnesses would fall under the category of hearsay witness and it is settled proposition of law that hearsay evidence is a weak piece of evidence and if the said evidence would corroborate with each other and they are directly connected with the commission of crime, in that event, the reliance can be placed upon the said set of evidence. Learned advocate submitted that the independent witnesses have not supported the case of the prosecution and there is no direct evidence of torturing the deceased by the appellants to the extent that the deceased may commit suicide and there are no specific role of the present appellants and number of contradictions, infirmities, omissions and improvements in the evidence of the prosecution witnesses, therefore, the prosecution has miserably failed to prove the charge and guilt Page 12 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined against the accused persons and, hence, the order of conviction may be quashed and set aside.
7. Learned advocate has put reliance upon following decisions, (1) the judgment of the Hon'ble Apex Court in case of Mariano Anto Bruno & Anr. Vs. Inspector of Police, reported in AIR 2020 SC 4994;
(2) the judgment of this Court in case of Mahendra K.C. Vs. State of Karnataka & Anr., reported in (2022) 2 SCC 129; (3) the judgment of this Court in case of Rajesh Vs. State of Haryana, reported in (2020) 1 SCC 359;
(4) the judgment of this Court in case of Gurcharan Singh Vs. State of Punjab, reported in (2020) 10 SCC 200;
8. Referring to the aforesaid decisions of the Hon'ble Supreme Court, learned advocate submitted that the 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, conviction cannot be sustained. Learned advocate further submitted that in order to convict the appellants - accused in the aforesaid crime for the offence under Section 306 IPC, there has to be a clear mens rea to commit the offence, however in the facts of the present case, mens rea is missing as there is no Page 13 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined direct or indirect act on the part of the appellants - accused to drive the deceased to commit suicide. Learned advocate, therefore, urged that the aforesaid decisions are squarely applicable to the case of the appellants and, hence considering the ratio enumerated in those decisions, the present appeal may be allowed and the impugned judgment and order of conviction may be quashed and set aside.
9. Learned APP Mr. Soaham Joshi appearing for the responded - State of Gujarat has objected the present appeal with a vehemence and submitted that it is the specific case of the prosecution that the deceased and her husband were residing separately and the appellants are the sister-in- law and brother-in-law of the deceased and were residing in a very close vicinity of the deceased and they were indulged into the illegal activity of bootlegging and the appellants were trying to create pressure upon the husband of the deceased to indulge into the said illegal activity of bootlegging but the deceased was against the said illegal activity of the appellants and since last more than eight months, the appellants used to come at the house of the deceased and created pressure upon the husband of the deceased, which ultimately lead to quarrel between them as there was influence in the mind of the husband of the deceased and due to which, the deceased had sustained bout of frustration and ultimately Page 14 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined committed suicide by setting herself ablaze in her house and at the relevant time, her husband was present and he tried to douse the flames and took her to the hospital for the purpose of treatment but because of the said incident, she sustained 92% to 95% severe second degree burn injuries on her overall body. Learned APP submitted that because of her such condition, the doctor concerned had treated the said case as MLC and informed the concerned police station and in pursuance thereto, the police officer reached the hospital and considering the serious condition of the deceased, the police officer has summoned the Executive Magistrate for recording her dying declaration, who in turn reached the hospital and recorded her dying declaration after following due procedure. Learned APP submitted that if the Hon'ble Court would go through the contents of the dying declaration, in that event, in no uncertain terms, she has disclosed entire sequence of incident of events and why she has taken such drastic steps and who is responsible for the said act of the deceased and name and specific role of the appellants is also described specifically stating that she does not wish that her husband would indulge into in any illegal activity and she used to oppose the same but despite said fact, the appellants were pressurizing her husband to indulge into said illegal activity of bootlegging and due to which, since last eight days, the Page 15 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined dispute was going on between the parties and ultimately, she succumbed against the pressure of the appellants and taken such drastic steps to commit suicide by setting herself ablaze.
10. Learned APP submitted that it is an admitted position of fact on record that the span of marriage life of the deceased is six months, therefore, presumption of abetment to commit suicide would squarely applicable to the case on hand and in support of this submission, learned APP has put reliance upon Section 113A of the Indian Evidence Act and submitted that considering the above factual aspects, the statutory provision of law is also supporting the case of the prosecution as span of marriage life of the deceased is six months and within short span of marriage life, she was mentally and physically harassed by the appellants and ultimately, she left with no other option but to commit suicide and the said fact is proved by the prosecution by leading cogent, convincing, reliable evidence and if the evidence of the prosecution witnesses are to be read together, in that event, it would be proved the charges leveled against the accused persons. Learned APP further submitted that the definition of 'cruelty' is descried in Section 498A of the IPC and referring to said section, it is submitted that bare perusal of the evidence on record clearly goes on to show that the essential and requisite ingredients mentioned in the said Page 16 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined section are attracted and the prosecution has been able to prove the charges leveled against the accused persons.
11. Learned APP submitted that the mother of the deceased in her deposition has stated in a very categorical terms that her daughter was harassed by the appellants and the mental and physical harassment was meted out to her as the appellants used to create pressure upon the husband of the deceased to indulge into illegal business of bootlegging and the said illegally activity was not liked by the deceased, due to which, quarrel used to take place in the house of the deceased at regular interval even though the appellants were insisted upon her husband, therefore, she had no other objection but to commit suicide and the said evidence is also supported by other evidence of prosecution witnesses, which clearly goes on to show that the prosecution has proved its case beyond reasonable shadow of doubt by leading cogent, reliable and convincing evidence.
12. Learned APP submitted that therefore considering the totality of the facts available on record, the judgment and order passed by the learned Judge is just, fair, reasoned and based upon sound principle of law and it does not require any interference at the hands of this Hon'ble Court at this stage and same is required to be confirmed dismissing the present appeal.
13. Having heard learned advocates appearing for the Page 17 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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 - accused for the offences under Sections 306, 498(A), 506(2) and 114 of the IPC alleging about the cruelty meted out by the appellants to the deceased, which led to committing suicide by her and, hence, the appellants were 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.
14. Here in this case, as stated above, allegations leveled against the appellants - accused are with regard to giving mental and physical torture to the deceased by forcing and/or pressurizing her husband to indulge into an illegal activity of bootlegging, which was not liked by the deceased as she did not wish to see that her husband may indulge into such illegal activity of bootlegging and because of her opposition, quarrel had taken place in the house but ultimately the deceased succumbed to the pressure of the appellants and committed suicide by setting herself ablaze.
15. At this stage, before dwelling into the issue involved in the matter, first I would like to refer to the decisions upon which reliance has been placed by learned advocate for the appellant. 15.1 In a judgment in case of Mariano Anto Bruno Page 18 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined (supra), the Hon'ble Apex Court has made observations in Paragraph Nos.24, 25, 26, 36, 38 and 42, which read as under,
24. While analyzing the provisions of Section 306 IPC along with the definition of abetment under Section 107 IPC, a two-Judge Bench of this Court in Geo Varghese Vs. State of Rajasthan and Another, 2021 SCC OnLine SC 873 has observed as under:-
"13. xxx xxx xxx.
14. xxx xxx xxx.
15. xxx xxx xxx.
16. xxx xxx xxx.
17. The scope and ambit of Section 107 IPC and its corelation with Section 306 IPC has been discussed repeatedly by this Court. In the case of S.S.Cheena Vs. Vijay Kumar Mahajan and Anr, (2010) 12 SCC 190 it was observed as under:-
"Abetment involves a mental
process of instigating a person or
intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by the Supreme Court is clear that in order Page 19 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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."
25. The ingredients of Section 306 IPC have been extensively laid out in M. Arjunan Vs. State, represented by its Inspector of Police, (2019) 3 SCC 315 which are as under: -
"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 Page 20 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined I.P.C."
26. In order to convict an accused under Section 306 IPC, the state of mind to commit a particular crime must be visible with regard to determining the culpability. With regard to the same, a two-judge bench of this Court in Ude Singh & Ors. Vs. State of Haryana, (2019) 17 SCC 301 observed as under:-
"16. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act/s of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behavior and responses/reactions. In the case of accusation for abetment of suicide, the Court would be looking for cogent and convincing proof of the act/s of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such Page 21 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case. 16.1. For the purpose of finding out if a person has abetted commission of suicide by another; the consideration would be if the accused is guilty of the act of instigation of the act of suicide. As explained and reiterated by this Court in the decisions abovereferred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed suicide had been hypersensitive and the action of accused is otherwise not ordinarily expected to induce a similarly circumstanced person to commit suicide, it may not be safe to hold the accused guilty of abetment of suicide. But, on the other hand, if the accused by his acts and by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to commit suicide, the case may fall within the four-corners of Section 306 Page 22 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined IPC. If the accused plays an active role in tarnishing the selfesteem and self-respect of the victim, which eventually draws the victim to commit suicide, the accused may be held guilty of abetment of suicide. The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. Such being the matter of delicate analysis of human behaviour, each case is required to be examined on its own facts, while taking note of all the surrounding factors having bearing on the actions and psyche of the accused and the deceased."
36. To convict a person under Section 306 IPC, there has to be clear mens rea to commit Page 23 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined offence. It also requires an active act or direct act which leads deceased to commit suicide finding no other option and the act must be such reflecting intention of the accused to push deceased into such a position that he commits suicide. The prosecution has to establish beyond reasonable doubt that the deceased committed suicide and Appellant No. 1 abetted the commission of suicide of the deceased. In the present case, both the elements are absent.
38. This Court has time and again reiterated that before convicting an accused 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 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 Page 24 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined to commit suicide, conviction in terms of Section 306 IPC is not sustainable.
42. It is well settled that the Courts ought to 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. Reference may be made to the judgment of a three-Judge Bench of this Court in Ramesh Kumar Vs. State of Chhattisgarh, (2001) 9 SCC 618 wherein this Court set-aside the conviction of the accused for the offence under Section 306 IPC as ingredients of Section 306 IPC were not satisfactorily proved. It was observed as under :-
"20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course Page 25 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.
21. In State of West Bengal v. Orilal Jaiswal and Anr., (1994) 1 SCC 73 this Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be Page 26 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty."
(emphasis supplied)"
15.2 In a judgment in case of Mahendra K.C. (supra), the Hon'ble Apex Court has made observations in Paragraph Nos.24, 25 and 26, which read as under, "24. The essence of abetment lies in instigating a person to do a thing or the intentional doing of that thing by an act or illegal omission. In Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 a three- judge Bench of this Court, speaking through Justice RC Lahoti (as the learned Chief Justice then was), observed:
"20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances Page 27 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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."
25. A two judge Bench of this Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi, (2009) 16 SCC 605), speaking through Justice DK Jain, observed:
"19. As observed in Ramesh Kumar [(2001) 9 SCC 618 : 2002 SCC (Cri) 1088] , where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, an "instigation"
may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that:
(i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the Page 28 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined deceased move forward more quickly in a forward direction; and
(ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above.
Undoubtedly, presence of mens rea is the necessary concomitant of instigation.
20. In the background of this legal position, we may advert to the case at hand. The question as to what is the cause of a suicide has no easy answers because suicidal ideation and behaviours in human beings are complex and multifaceted. Different individuals in the same situation react and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide.
Each individual's suicidability
pattern depends on his inner
subjective experience of mental pain, fear and loss of self-respect. Each of these factors are crucial and exacerbating contributor to an individual's vulnerability to end his own life, which may either be an attempt for self-protection or an Page 29 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined escapism from intolerable self."
26. This has been reiterated in the decision in Amalendu Pal @ Jhantu v. State of West Bengal, (2010) 1 SCC 707 where it has been observed:
"12. [...] It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable." (See also in this context the judgments in Praveen Pradhan v. State of Uttaranchal, (2012) 9 SCC 734 Vaijnath Kondiba Khandke v. State of Maharashtra, (2018) 7 SCC 781 M. Arjunan v. The State (Represented By Its Inspector of Police), (2019) 3 SCC 315 Ude Singh v.
State of Haryana, (2019) 17 SCC 301 Rajesh @ Sarkari v. The State of Haryana, (2020) 15 SCC 359 and Gurcharan Singh v. The State of Punjab, (2020) 10 SCC 200. These decisions have been recently referred Page 30 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined to in the judgment of this Court in Arnab Manoranjan Goswami v. State of Maharashtra, (2021) 2 SCC 427)." 15.3 In a judgment in case of Rajesh (supra), the Hon'ble Apex Court has made observations in Paragraph Nos.9, 10 and 11, which read as under,
9. Conviction under Section 306 IPC is not sustainable on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused, which led or compelled the person to commit suicide. In order to bring a case within the purview of Section 306 IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC. (See Amalendu Pal alias Jhantu v. State of West Bengal, 2010 1 SCC 707).
10. The term instigation under Section 107 IPC has been explained in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi, 2009 16 SCC 605) as follows:
Page 31 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined "16. Speaking for the three-Judge Bench in Ramesh Kumar case [(2001) 9 SCC 618 :
2002 SCC (Cri) 1088] , R.C. Lahoti, J. (as His Lordship then was) said 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. 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 to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation.
17. Thus, to constitute "instigation", a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by Page 32 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined "goading" or "urging forward". The dictionary meaning of the word "goad"
is "a thing that stimulates someone into action; provoke to action or reaction" (see Concise Oxford English Dictionary); "to keep irritating or annoying somebody until he reacts"
(see Oxford Advanced Learner's Dictionary, 7th Edn.)."
11. Words uttered in a fit of anger or omission without any intention cannot be termed as instigation. (See Praveen Pradhan v. State of Uttaranchal, 2012 9 SCC 734)." 15.4 In a judgment in case of Gurcharan Singh (supra), the Hon'ble Apex Court has made observations in Paragraph Nos.15, 16 and 17, which read as under, "15. As in all crimes, mens rea has to be established. To prove the offence of abetment, as specified under Sec 107 of the IPC, the state of mind to commit a particular crime must be visible, to determine the culpability. In order to prove mens rea, there has to be something on record to establish or show that the appellant herein had a guilty mind and in furtherance of that state of mind, abetted the suicide of the deceased. The ingredient of mens rea cannot be assumed to be ostensibly present but has to be visible and conspicuous. However, what transpires Page 33 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined in the present matter is that both the Trial Court as well as the High Court never examined whether appellant had the mens rea for the crime, he is held to have committed. The conviction of Appellant by the Trial Court as well as the High Court on the theory that the woman with two young kids might have committed suicide, possibly because of the harassment faced by her in the matrimonial house, is not at all borne out by the evidence in the case.
Testimonies of the PWs do not show that the wife was unhappy because of the appellant and she was forced to take such a step on his account.
16. The necessary ingredients for the offence under section 306 IPC was considered in the case S.S.Chheena Vs. Vijay Kumar Mahajan, (2010) 12 SCC 190 where explaining the concept of abetment, Justice Dalveer Bhandari wrote as under:-
"25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or 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 Page 34 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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."
17. While dealing with a case of abetment of suicide in Amalendu Pal alias Jhantu vs. State of West Bengal, (2010) 1 SCC 707 Dr. Justice M.K. Sharma writing for the Division Bench explained the parameters of Section 306 IPC in the following terms:
"12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement Page 35 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.
13. In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC."
16. At this juncture, now I would like to consider the depositions of the prosecution witnesses examined by the prosecution during the course of trial.
17. PW No.1 viz., Dr. Jitendra Jivrambhai Joshi has been examined at Exh.12. This witness is the Medical Officer, who had carried out postmortem upon the dead body of the deceased. This witness in his deposition has stated about the burn Page 36 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined injuries received by the deceased to the extent of 90% to 95% and after carrying out postmortem, he prepared postmortem report, which was produced at Exh.13. This witness has also specifically stated that the deceased sustained second degree burn injuries on her overall body. This witness was cross-examined by the defence but nothing fruitful has come on record.
18. PW No.3 viz., Hanshraj Veljibhai has been examined at Exh.23. This witness is the father of the deceased. This witness in his deposition has stated that on the day of incident, his daughter was brought before him in burnt condition and, thereafter, they took her to hospital for the purpose of getting preliminary treatment. This witness has stated that he has not inquired from the deceased with regard to the burn injuries sustained by her. This witness has stated that some dispute was going on in the house because of the pressure of the accused upon her husband to indulge into illegal activity of bootlegging. However, this witness has not supported the case of the prosecution and has been declared hostile.
19. PW No.4 viz., Labhuben Hansrajbhai Solanki has been examined at Exh.24. This witness is the mother of the deceased. This witness has stated that the deceased married with Raju Vashram just five months ago and on the day of incident, the deceased was brought before him in burnt condition and, thereafter, they took her to hospital for the Page 37 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined purpose of getting preliminary treatment. This witness stated that when the deceased was brought to her house, she was in conscious state of mind and upon making inquiry, this witness was informed that the appellant, Yusuf is forcing her husband to indulge into illegal activity of bootlegging. This witness stated that the police has registered the complaint in the hospital. This witness was cross-examined by the defence but nothing fruitful has come on record.
20. PW No.5 viz., Ghandhyambhai Shivshankar Mehta has been examined at Exh.26. This witness is the Executive Magistrate, who has recorded the dying declaration of the deceased. This witness stated that at the relevant point of time, the police has summoned him and on receipt of the yadi, this witness reached the hospital for the purpose of recording dying declaration of the deceased. This witness has recorded the dying declaration of the deceased after following due procedure, which is produced on record at Exh.27.
21. PW No.6 viz., Rajubhai Vashrambhai has been examined at Exh.29. This witness is the husband of the deceased. This witness has stated that on the day of incident, the deceased set herself ablaze and while extinguishing the fire, he also sustained burn injuries but he does not know about the reason for taking such drastic steps. This witness has not supported the case of the prosecution and has been declared hostile.
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22. PW No.9 viz., Anil Hanshraj has been examined at Exh.25. This witness is the real brother of the deceased. This witness has stated that he does not know about the reason behind commission of suicide by the deceased. This witness has not supported the case of the prosecution and has been declared hostile.
23. PW No.10 viz., Dharamshibhai Bavabhai has been examined at Exh.36. This witness is the uncle of the deceased. This witness has stated that he does not know about the reason behind commission of suicide by the deceased and he has not inquired about the same. This witness has not supported the case of the prosecution and has been declared hostile.
24. PW No.11 viz., Hiralal Govindbhai has been examined at Exh.38. This wintess is the Police Sub Inspector working at Pradhyumannagar Police Station, who has recorded the complaint given by the deceased and, thereafter, further investigation was entrusted to Mr. Chauhan.
25. PW No.12 viz., Laxminarayansinh Mohansinh Chauhan has been examined at Exh.42. This witness is the Investigating Officer in the present offence, who has carried out investigation and submitted chargesheet before the court concerned. This witness has narrated the details about the investigation carried out by him and also the statements recorded by him during the course of investigation.
Page 39 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined
26. I have also considered the oral as well as documentary evidence produced on record and found that the marriage span of the deceased with her husband is admittedly six months but there was no harassment at the hands of her husband and the so- called harassment was meted out by the appellants, who are sister-in-law and brother-in-law, who are residing separately. As per the case of the prosecution, it is found out that accused have pressurized the husband of the deceased to indulge into illegal activity of bootlegging, which was not liked by the deceased and, hence, quarrels took place in the house, which ultimately drives the deceased to commit suicide. However on examination of the documentary evidence available on record, it is found out that the pressure was upon the husband of the deceased by the appellants to indulge into illegally activity of bootlegging and not upon the deceased and thus, there was no direct instigation and/or abetment for suicide by the appellants to the deceased, which attracts the provision of Section 306 of the IPC.
27. I have also considered the depositions of prosecution witnesses examined by the prosecution and found out that close relatives of the deceased i.e. husband, father, mother, brother and uncle of the deceased have been examined but except mother, other witnesses have not supported the case of the prosecution and have been declared hostile. On examination of the evidence of mother, it is found Page 40 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined that she has narrated that when the inquiry was made from the deceased, she informed that the appellant - Yusuf is forcing her husband to indulge into illegally activity of bootlegging and except this, nothing has come on record from her evidence. It is, however, required to be noted that if the said fact is believed to be true and correct, in that event, there is no proximate cause shown by prosecution on the part of the accused, which led the deceased to commit suicide. 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, however, 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 deceased to commit suicide, conviction recorded under Section 306 of the IPC cannot be said to be just and legal. On examination of the prosecution witnesses, it is also found out that all of sudden, the deceased has taken such drastic steps to put an end to her life by committing suicide and the said fact is supported by the dying declaration recorded by the Executive Magistrate coupled with the oral evidence of the Executive Magistrate, which ruled out the possibility of instigation and abetment for suicide on the part of the appellants.
28. It is worthwhile to note that the Investigating Page 41 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined Officer has recorded the statements of the various witnesses and those statements were revealing the fact that the deceased was being taken care of by her husband and no such untoward incident had taken place. Thus from this fact itself, it is clear that there was no mental and physical torture at the hands of her husband and, hence, the presumption under Section 113A of the Evidence Act would not come into play, therefore, submission made by learned APP on this aspect cannot be believed.
29. 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, "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 Page 42 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined Penal Code (45 of 1860)."
30. On perusal of the aforesaid section, it is found out that this 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. As can be seen from the oral evidence of the prosecution witnesses that there was no so- called cruelty meted out to her by the accused. In a judgment in case of State of Punjab Vs. Iqbal Singh, reported in 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 Page 43 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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 113A 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 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.
31. 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 Page 44 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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 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 Page 45 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined reads as under :-
"107. Abetment of a thing - A person abets the doing of a thing, who--
First.--Instigates any person to do that thing; or Secondly.--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.--Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that 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 :-
Page 46 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined "Instigation is to goad, urge forward, provoke, incite or encourage to do an act."
17. The scope and ambit of Section 107 IPC and its 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 Page 47 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined under :-
"47. The above decision thus arose in a situation where the High Court had declined to entertain a petition for 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) Page 48 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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 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 Page 49 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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 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 Page 50 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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
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."
32. 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 appellants 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 Page 51 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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 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.
33. Considering the ratio enumerated by the Hon'ble Apex Court in the aforesaid decisions, upon which reliance has been put by learned advocate for the appellants, it is found out that the 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, conviction cannot be sustained. Further in catena of judicial pronouncement, the Hon'ble Supreme Court has made the position clear that in order to convict a person under Section 306 IPC, there has to be a clear mens rea to commit the offence. Not only that, an active act or direct act is required, 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. However now considering the above proposition of law, if the Page 52 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined facts of the present case are carefully examined, in that event, it is clear that there is no clear mens rea on the part of the appellants to instigate and/or abetment for suicide, which led the deceased to commit suicide. As per the settled proposition of law, in order to prove mens rea, there has to be something on record to establish or show that the appellants herein had a guilty mind and in furtherance of that state of mind, abetted the suicide of the deceased, however, the ingredient of mens rea cannot be assumed to be ostensibly present but has to be visible and conspicuous. It is required to be noted that the essence of abetment lies in instigating a person to do a thing or the intentional doing of that thing by an act or illegal omission, however in the facts of the present case, it is evident that there was no instigation of the appellants upon the deceased to commit suicide. Thus from the material available on record, the theory that the deceased might have committed suicide possibility because of the harassment meted out to her, is not at all borne out as the testimonies of prosecution witnesses do not show that there was instigation and/or abetment on the part of the appellants upon the deceased, which forced her to take such a drastic step of committing suicide.
34. At this stage, it is required to be noted that in the present case, accusation of cruelty is also leveled against the appellants, which falls under Page 53 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined Section 498A of the IPC, which 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 purpose 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 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.]"
35. Thus from the aforesaid provision, it is found out that any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide. But in the facts of the case, as stated above and as could be found out from the evidence available Page 54 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined on record, there was no wilful act on the appellants, due to which, the deceased has committed suicide. Therefore, ingredient of Section 498(A) of the IPC are not fulfilled and, hence, conviction of the appellants under this section cannot sustain and deserves to be set aside.
36. 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".
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.-Page 55 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024
NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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 Page 56 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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 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 Page 57 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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 Page 58 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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 (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, Page 59 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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 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 Page 60 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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 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 Page 61 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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 Page 62 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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 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 Page 63 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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 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 Page 64 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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 Page 65 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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 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 Page 66 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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 Page 67 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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 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 Page 68 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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 Page 69 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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 decided on the basis of its Page 70 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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 Page 71 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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 Page 72 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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 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 Page 73 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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 Page 74 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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 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."
Page 75 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined
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) 1SCC 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 Page 76 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined 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, 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 Page 77 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined committing suicide."
37. I would like to refer to decision of the Hon'ble Supreme Court in case of S.S. Chheena Vs. Vijay 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 Page 78 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined either English or Indian criminal law, though at one time it was a felony in England. In England, the former law was of 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 Page 79 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined thing; or Secondly.--Engages with one or more other person or persons in any conspiracy 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."
38. In the aforesaid judgment in case of S.S. Chheena (supra), necessary ingredients for the offence Page 80 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined under Section 306 of the IPC was considered, where explaining the concept of abetment, Justice Dalveer Bhandari wrote as under, "25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or 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."
39. 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 Page 81 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024 NEUTRAL CITATION R/CR.A/11/2005 CAV JUDGMENT DATED: 25/07/2024 undefined that there cannot be same evidence of "instigation" or "initial assistance" by the accused to commit suicide by the victim/deceased. 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.
40. 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, Rajkot in Sessions Case No.139/2001 is hereby quashed and set aside and the appellants are acquitted of the offences with which they were charged by giving them the benefit of doubt. The appellants are on bail and, hence, their bail bond stands cancelled and they 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 82 of 82 Downloaded on : Thu Jul 25 21:05:01 IST 2024