Gujarat High Court
Anuj Hemantbhai Bhatt vs State Of Gujarat & on 5 May, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/13397/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 13397 of 2015
With
CRIMINAL MISC.APPLICATION NO. 13957 of 2015
With
CRIMINAL MISC.APPLICATION NO. 15380 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed YES to see the judgment ?
2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of NO the judgment ?
4 Whether this case involves a substantial question of NO law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== ANUJ HEMANTBHAI BHATT....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ========================================================== Appearance:
MR.IH SYED, ADVOCATE FOR MR CHIRAG B UPADHYAY, ADVOCATE for Page 1 of 19 HC-NIC Page 1 of 19 Created On Sat May 06 01:26:34 IST 2017 R/CR.MA/13397/2015 CAV JUDGMENT the Applicant(s) No. 1 MR KASHYAP R JOSHI, ADVOCATE for the Respondent(s) No. 2 MS SHRUTI PATHAK,PUBLIC PROSECUTOR for the Respondent(s) No. 1 MS NISHA THAKORE,PUBLIC PROSECUTOR for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 05/05/2017 COMMON CAV JUDGMENT
1. Since the issues raised in all the captioned applications are the same and the prayer is also to quash the selfsame Sessions Case No.25 of 2016 pending in the Court of the learned Fourth Additional District Judge, Bharuch, those were heard analogously and are being disposed of by this common judgment and order.
2. Rule returnable forthwith. The learned Additional Public Prosecutor waives service of notice of rule for and on behalf of the respondent State of Gujarat. Mr. Kashyap Joshi, the learned advocate waives service of notice of rule for and on behalf of the respondent No.2 original first informant.
3. By these three applications under Section482 of the Code of Criminal Procedure, 1973, the applicantsoriginal accused persons seek to invoke the inherent powers of this Court praying for quashing of the Sessions Case No.25 of 2016 pending in the Court of the learned Fourth Additional District Judge, Bharuch, arising from the F.I.R. bearing C.R. No.I133 of 2015 filed before the 'C' Division Police Station, District Bharuch, for the offence punishable under Sections306 r/w. 114 of the I.P.C.Page 2 of 19
HC-NIC Page 2 of 19 Created On Sat May 06 01:26:34 IST 2017 R/CR.MA/13397/2015 CAV JUDGMENT
4. The respondent no.2 herein is the original first informant. He is the father of the deceased who committed suicide by hanging. The respondent no.2 lodged an F.I.R. dated 03/07/2015 for an incident of suicide committed by his son dated 19/06/2015.
5. The free English translation of the FIR lodged by the respondent no.2 herein is as under: I, Rameshbhai Amrutlal Shah, Aged: 58 years, Occupation: business, Residing at 36, Samrudhhi Bungalows, Nr. Prarthna Vidyalaya (Bholav Gram Panchayat) Taluka District Bharuch.
do hereby in person narrate my factual complaint that i am residing at the above mentioned address with my family and am maintaining myself and my family by doing business in the name of Surya Aluminium, near Megha Hotel, below Allahabad Bank, Ankleshwar and was having one son viz. Dhruv, aged 20 years and my wife viz.Jagrutiben is a housewife.
That on 19.06.2015 in the evening I was present at my home and my son Dhruv was at the home of his maternal uncle viz.Vipulbhai Indravadan Shah at 36, Bhrugupur Society, Bharuch and at around 10:30 hours in the night, my brother in law Vipulbhai called me up and told that my son Dhruv has committed suicide by hanging himself from fan with the help of bedsheet in room of the first floor. Therefore, me and my wife immediately came to the house of my brother in law. That my son Dhruv by that time was taken in 108 Ambulance to Jeevan Jyot Hospital and the doctor had declared him as dead. That the reason for my son committing suicide has not been known to me. Therefore, I came to 'C' Division Police Station of Bharuch and declared the same as a result of which Bharuch 'C' Division Police Station registered Accidental Death Case No.31/014 under Section 174 of the CrPC and for doing the legal procedure, police got done the post mortem of the dead body of my son, conducted panchnama of the place of offence, took statements of concerned witnesses and as I was not knowing the reason of death of my son, the reason for my son committing suicide did not come out and while the investigation was on, one boy viz. Vasu Dixit, residing near Chamunda Mata's Temple, at Jadeshwar who was studying with my son Dhruv, informed me that when they were studying in engineering college, my son Dhruv got into friendship with one Dhvani Shah because of which Manan Mistry, residing in our society and Anuj Bhatt, residing at Ahmedabad used to torture my son Dhruv in person as well as on phone in this regard and because of such torture my son felt hurt and hanged himself. In this regard, I have given an application. Thus, during investigation, it has revealed that because of my son's friendship with Dhavni Shah, my son was being tortured on phone as well as in person as a result of which my son has committed suicide and therefore, this factual complaint of mine be investigated and my witnesses are the persons mentioned in this complaint and the persons found during investigation by your kindself.
Page 3 of 19HC-NIC Page 3 of 19 Created On Sat May 06 01:26:34 IST 2017 R/CR.MA/13397/2015 CAV JUDGMENT This much of my factual complaint is true and correct.
Sd/ (signature illegible) Before me
Complainant's signature Sd/
Officer of Police Station
Bharuch 'C' Division Police Station
6. In the F.I.R., there is a reference of one Vasubhai Ravindrabhai Dixit, who happened to be a close friend of the deceased. In the course of the investigation, the Investigating Officer recorded the statement of Vasubhai Dixit. The free English translation of the statement of Vasubhai Dixit is as under: I, Vasubhai Ravindrabhai Dixit, Aged: 20 years, Occupation:
studying, Residing at 24, Arunoday Bungalows, Nr. Chamuda Temple, Jadeshwar Road, Bharuch, Mo. No.7405466196.
On being asked to hereby state that I am residing at the above mentioned address with my family and am studying in 3rd year of Shroff Medical Engineering College, Vataria. That my father is doing business of fabrication from which my family is being maintained.
Today, on being asked by you, 'C' Division Police Station in connection with FIR being ICR No133/2015 for the offences under Sections 306, 114 of the IPC, I state that Dhruv Rameshbhai Shah, who died in the present case was my close friend and we used to talk with each other on phone and also used to meet each other whenever we get time. That on 18.06.2015, my friend Dhruv Shah called from his mobile No.8467885727 at around 9.35 hours in the night and told me that Anuj Bhatt who is resident of Ahmedabad, whose mobile number is 94277 11430 is frequently giving him threats to leave friendship with Dhvani Shah and if he, now, will contact Dhvani then the consequences will not be good because of which he got frightened. He further told me to come to his society because of which we immediately rushed to the house of Dhruv Shah and on reaching there I saw that my friend Dhruv Shah was standing with Manan Mistry, who is also residing in the society of my friend Dhruv and friend of Dhruv viz. Dhvani Shah, who is also residing in the same society in the garden of the society and therefore, I asked my friend Dhruv as to why he called me to which Dhruv Shah replied that his friend Manan Mistry and Anuj Bhatt, who is residing in Ahmedabad are quite oftenly threatening Dhruv Sha on phone that they will see Dhruv Shah and therefore, Dhruv Shah requested me to make Manan Mistry and Anuj Page 4 of 19 HC-NIC Page 4 of 19 Created On Sat May 06 01:26:34 IST 2017 R/CR.MA/13397/2015 CAV JUDGMENT Bhatt not to beat him and not to torture him. Therefore, I assured Dhruv that I will make them understand and that they will not harass you and I requested Manan and Dhvaniben, who were present there, that Dhruv Shah is a good man so nto to trouble him. That thereafter I asked Manan about the mark on the cheek of Dhruv Shah, to which Manan said that he had slapped Dhruv as Dhruv is talking with his friend Dhvani. That as I was getting late, I left from there. Thereafter, on the next day i.e. on 19.06.2015 at around 9 p.m. (08:58 hours), I received a call from Anuj Bhatt from Ahmedabad who mobile number is 94277 11430, who talked with me on phone for around 15 minutes and gave threats to me stating that you tell your friend Dhruv to stop talking to Dhvani otherwise consequences will not be good and that he has already talked to Dhruv on phone but you also make him understand. Thus, after talking with me in threatening tone, he disconnected the call. Thereafter, at around 6 am in the early morning, I came to know that my friend Dhruv Shah has committed suicide at his maternal uncle's place at 10.30 hours in night of 19.06.2015 by hanging himself with bedsheet from fan and thereafter I have never come across Manan Mistry and Dhvani Shah and did not have any conversation with Anuj Bhatt and with regard to the present case, whenever you will call, I will remain present for giving my statement.
7. Thus, it appears from the First Information Report and the other materials on record, more particularly, the statement of Vasubhai Dixit that the deceased had some affinity towards a girl by name Dhvani Jay Shah. Dhvani is the applicant of Criminal Misc. Application No.13957 of 2015. It appears that Dhvani was not at all interested in the deceased. Since the deceased was trying to get close to Dhvani, the same was not liked by the other two applicants and few instances of reprimanding the deceased have been highlated. In the aforesaid factual background, I need to consider whether any case is made out to put the applicants on trial for the offence punishable under Sections306 of the IPC.
8. Mr. I.H. Syed, the learned counsel appearing for the applicants submitted that even if the entire case of the prosecution is believed or accepted to be true, none of the ingredients to constitute the offence of abetment punishable under Section306 of the IPC are spelt out. It is Page 5 of 19 HC-NIC Page 5 of 19 Created On Sat May 06 01:26:34 IST 2017 R/CR.MA/13397/2015 CAV JUDGMENT submitted that by any stretch of imagination, it cannot be said that the applicants herein intended the consequences of the act. Mr. Syed submits that there is nothing in the chargesheet to even remotely indicate that the intention was to provoke, incite or encourage the doing of an act by the latter. According to the learned counsel, each person's suicidability pattern is different from the others. Each person has his own idea of selfesteem and selfrespect. Therefore, it is impossible to lay down any straightjacket formula in dealing with such cases. Mr. Syed submits that having regard to the decision of the Supreme Court and the intention of the legislature, it is clear that in order to put a person on trial for the offence under Section306 of the IPC, there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide.
9. Mr. Syed, would submit that the deceased might be hyper sensitive to a situation with which he had to combat. Each individual has his own idea of selfesteem and selfrespect. The human sensitivity of each individual differs from person to person. Mr. Syed submits that it is very unfortunate that the deceased took the drastic step of committing suicide, however, the applicants cannot be connected in any manner with that unfortunate incident. In such circumstances referred to above, Mr. Syed prays that there being merit in all the three applications, the same be allowed and the proceedings be quashed.
10. On the other hand, all the three applications have been opposed by Mr. Kashyap R. Joshi, the learned counsel appearing for the respondent no.2 - original first informant and the learned APP appearing for the respondentState. Both the learned counsel submitted Page 6 of 19 HC-NIC Page 6 of 19 Created On Sat May 06 01:26:34 IST 2017 R/CR.MA/13397/2015 CAV JUDGMENT that a primafacie case could be said to have been made out to put all the three applicants on trial for the alleged offence. It is submitted that specific instances have been cited in the FIR lodged by the respondent no.2 as well as in the statement of Vasubhai. Those instances are sufficient at this stage to primafacie infer the guilty mind of the applicants. In such circumstances referred to above, both the learned counsel pray that there being no merit in these applications, those be rejected.
11. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the criminal proceedings instituted against the applicants should be quashed.
12. I had an occasion to deal with the subject at length in the case of Lalitbhai Vikramchand Parekh Vs. State of Gujarat; Criminal Misc. Application No.16032 of 2014; decided on 10/04/2015. I may quote the observations made therein.
"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 107Abetment of a thing "A person abets the doing of a thing, who First.Instigates any person to do that thing or SecondlyEngages 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 willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or Page 7 of 19 HC-NIC Page 7 of 19 Created On Sat May 06 01:26:34 IST 2017 R/CR.MA/13397/2015 CAV JUDGMENT procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2.Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act."
12. Section 108 Abettor "'A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor".
Explanation 1. The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act.
Explanation 2. To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused.
Explanation 3. It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, of any guilty intention or knowledge.
Explanation 4. The abetment of an offence being an offence, the abetment also an offence.
Explanation 5. It is not necessary to the commission of the offence of abetment by conspiracy than the abettor should concern the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed."
13. As the expressions "abetment" and "abettor" have been legislatively defined, the ordinary dictionary meaning of the expressions would not be determinative of their import. It may, however, be useful to have a look at the ;dictionary meaning of the expression "abet". According to Webster, Webster's Third New International Dictionary Vol. I, the expression "abet", means to incite, encourage instigate, or countenancenow 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, Page 8 of 19 HC-NIC Page 8 of 19 Created On Sat May 06 01:26:34 IST 2017 R/CR.MA/13397/2015 CAV JUDGMENT according to Hawkins, 51 L J.M.C. 78R. 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 noninterferenceor he may encourage intentionally by expressions, gestures, or actions, intended to signify approval. In the latter case, he aids and abets; in the former he does not." Stroud also cites the case of Du Cros v. Lambourne, 1907 (1) K. B. 40.. in which it was held that "the owner in, and in control of, a motor car which is being driven at an improper speed by a driver who is not his servant, "aids or abets" in the offence if he (the owner) does not interfere." It is further noticed on the basis of decision in the case of Rubie v. Faulkner, 1980 (1) K.B. 571 : "For a supervisor of a learner driver to see that an unlawful act is about to be done and to fail to prevent it is he can is for him to aid and abet." It is further noticed, on the authority of the decision in the case of Callow v. Tillstone, 83 L.T. 411, that "A man does not by negligence aid and abet a person to expose unsound meat for sale." It is further noticed, on the basis of the decision in the case of Ackroyds Air Travel v. Director of Police Prosecutions, 1950 (1) All. E.R. 933 and Thomas v. Lindop, 1950 (1) All. E.R. 966, that "If a person knows all the circumstances which constitute the offence he will be guilty of aiding and abetting whether he knew that they did in fact constitute the offence or not " Stroud also quotes Lord Goddard C J. in Ferguson v. Weaving, 1951 (1) K.B 814, that "it is well know that the words 'aid and abet are apt to describe the action of a person who is present at the time of the commission of an offence and takes some part therein."
14. It may be useful to refer to some of the early English decisions, dealing with different ways of taking part in a felony, it was recognised that a felony may be committed by the hand of an "innocent agent" who, having no blamable intentions in that he did, incurred no criminal liability by doing it. In such a case, the man who "instigates" this agent is the real offender; his was the last mens rea that preceded the crime, though it did not cause it "immediately but mediately". "Thus, if a physician provides a poisonous draught and tells a nurse that it is the medicine to be administered to her patient, and then by her administration of it the patient is killed, the murderous physicianand not the innocent nurseis 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 carowner sitting beside the chauffeur who kills some one by overfast driving, or a passenger on a clandestine joyriding expedition which results in manslaughter 1930 Page 9 of 19 HC-NIC Page 9 of 19 Created On Sat May 06 01:26:34 IST 2017 R/CR.MA/13397/2015 CAV JUDGMENT (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 prizefight 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 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 prizefight 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. 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 Page 10 of 19 HC-NIC Page 10 of 19 Created On Sat May 06 01:26:34 IST 2017 R/CR.MA/13397/2015 CAV JUDGMENT when the original mode was replaced by the practice of burial "between the hours of nine and twelve at night", without any service. In 1870, the confiscation of the goods of suicides was put to an end in the general abolition of forfeitures for felony. And in 1882, the statute removed every penalty, except the purely ecclesiastical one that the interment must not be solemnised by a burial service in the full ordinary Anglican form, Kenny's Outlines of Criminal Law, New ed. by J.W.C.,, Turner, p. 138.
16. Halsbury, in Halsbury's Law of England, 4th ed. paras 42 to 44 notices some of the English decisions in the matter of classification of offence and complicity in the crime. Thus, a person who '"assists the perpetrator at the time of its commission, or if he assists or encourages the perpetrator before its commission, was held liable 1970 (2) Q.B.
54." According to R.V. Gregory (1867) L.R.I. C.C.R. 77 "any person who aids, counsel or procures the commission of an offence, whether an offence at common law or by statute, and whether indictable or summary, is liable to be tried and punished as a principal offender." Mere presence at the commission of the crime is not enough to create criminal liability, nor is it enough that a person is present with a secret intention to assist the principal should assistance be required. Some encouragement or assistance must have been given to the principal either before or at the time of the commission of the crime with the intention of furthering its commission. Presence without more may, however, afford some evidence of aid and encouragement. It is an indictable offence at common law for a person to incite or solicit another to commit an offence. For an incitement to be complete, there must be some form of actual communication with a person whom it is intended to incite, where, however, a communication is sent with a view to incite, but does not reach the intended recipient the sender may be guilty of an attempt to incite. Incitement is complete though the mind of the person incited is unaffected and notwithstanding that person incited intends to inform on the inciter ; but there can be no incitement unless one person seeks to persuade or encourage another Halsbury's Laws of England, Paras 42 to 44.
17. It may be useful to notice some of the Indian decisions on the question of abetment. Among the early cases of abetment of suicide arose out of unfortunate incidents of Sati, which was common in India, at one time. A person who induced the woman to return to the pyre after she had once retired from it, and immolated herself, was held to have abetted suicide 1863 (1) R.L.P.J. 174. Where a women prepared to commit suicide in the presence of certain persons who followed her to the pyre, stood by her and one of them told the women to say 'Ram Ram' and "She would became sati", the facts were held sufficient to prove the active connivance of these persons and to justify the inference that they had engaged with her in a conspiracy to Page 11 of 19 HC-NIC Page 11 of 19 Created On Sat May 06 01:26:34 IST 2017 R/CR.MA/13397/2015 CAV JUDGMENT 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 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 cooperate with him and his Cooperation may consist of a conjoint action and that would amount to abetment. In the case of State of Bihar v. Ranen Nath and other A.I.R. 1958 Patna 259, a Division Bench of the Patna High Court was construing Section 27 of the Industrial Disputes Act which uses the expressions Instigation and incitement' and observed that the words "should be read to signify something deeper than a mere asking of a person to do a particular act. There must be something in the nature of solicitation to constitute instigation or incitement" and it was held that the words seem to convey the meaning "to goad or urge forward or to provoke or encourage the doing of an act." It was further observed that what acts should amount to instigation or incitement within the meaning of that section will depend upon the "particular facts of each case", and that in some circumstances a "throw of a finger" or "a mere turning of the eye' may give rise to an inference of either "incitement or instigation", and yet in others even "strong words, expressly used, may not mean that the person using them was stimulating or suggesting to anyone to do a particular act." The court expressed the view that there must be something "tangible" in evidence to show that the persons responsible for such action were "deliberately trying to stir up other persons to bring about a certain object". According to a division bench of the Calcutta High Court, a person abets the doing of a thing when he or Page 12 of 19 HC-NIC Page 12 of 19 Created On Sat May 06 01:26:34 IST 2017 R/CR.MA/13397/2015 CAV JUDGMENT 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 cooperation." In the case of Shri Ram and another, 1975 (2) S.C.R. 622, the Supreme Court observed that in order to constitute abetment, the abettor must be shown to have "intentionally" aided the commission of the crime. "Mere proof that the crime charged could not have been committed without the interposition of the alleged abetter is not enough compliance with the requirements of Section 107". A person may, for example, "invite another casually or for a friendly purpose and that may facilitate the murder of the invitee". But unless the invitation was extended "with intent to facilitate the commission of the murder", the person inviting cannot be said to have abetted the murder. It is not enough that an act on the part of the alleged abettor "happens to facilitate the commission of the crime". "Intentional aiding and therefore active complicity is the gist of the offence of abetment under the third paragraph of Section 107".
19. In case of suicide how the evidence is required to be appreciated has been stated by the Hon'ble Supreme Court in number of judgments. In State of West Bengal v. Orilal Jaiswal, (1994) 1 SCC 73, the Hon'ble Supreme Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty. Further the Hon'ble Supreme Court in case of Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi), (2009) 16 SCC 605 had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the words "instigation" and "goading". The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the other. Each person has his own idea of self esteem and self respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.
20. The Hon'ble Supreme Court in case of Amalendu Pal @ Jhantu vs. State of West Bengal, 2010 AIR(SC) 512, after considering Page 13 of 19 HC-NIC Page 13 of 19 Created On Sat May 06 01:26:34 IST 2017 R/CR.MA/13397/2015 CAV JUDGMENT various earlier judgments in para 15 observed that, "15. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable."
"16. In order to bring a case within the purview of Section 306 of IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC."
21. The Hon'ble Supreme Court in the case of Randhir Singh v. State of Punjab, (2004) 13 SCC 129 has reiterated the legal position as regards Section 306 IPC which is long settled in para 12 and 13. Para 12 and 13 reads thus :
"12. Abetment involves a mental process of instigation a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC.
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 Page 14 of 19 HC-NIC Page 14 of 19 Created On Sat May 06 01:26:34 IST 2017 R/CR.MA/13397/2015 CAV JUDGMENT were not expected to induce a similarly circumstances individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty."
22. In Gcngula Mohan Reddy v. State of A.P., (2010) 1 SCC 750 the Supreme Court while interpreting Section 306 IPC held that:
"Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing and without a positive act on the part of the accused to instigate or aid in committing suicide, there cannot be any conviction. It was further held that to attract Section 306 IPC there has to be a clear mens tea to commit the offence."
23. In Ramesh Kumar v. State of Chhattisgarh., (2001) 9 SCC
618. the Supreme Court held that "Instigation is to goad, urge forward, provoke, incite or encourage to do 'an act'. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."
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 Page 15 of 19 HC-NIC Page 15 of 19 Created On Sat May 06 01:26:34 IST 2017 R/CR.MA/13397/2015 CAV JUDGMENT deceased to commit suicide seeing no other option and such act must be intended to push victim into a position that he commits suicide."
13. The intention of the Legislature and the ratio of the cases decided by the Supreme Court are clear that in order to convict a person under section 306, IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide.
14. In V.P. Srivastava Vs. Indian Explosives Limited and others (2010) 10 SCC 361, the Supreme Court has held that when prima faice no case is made out against the accused, then the High Court ought to have exercised the jurisdiction under section 482 of the Cr.P.C. and quashed the complaint.
15. By mere administration of threats, even if believed, having regard to the background of the entire prosecution case, it cannot be said that the accused persons abetted the suicide. There is nothing to indicate even remotely that the accused persons ever intended the consequences of the act.
16. I have gone through the decision relied upon by the learned counsel appearing for the first informant in the case of Chitresh Kumar Chopra (Supra). In Chitresh Kumar Chopras case, the facts were altogether different. Apart from the suicide note which was left behind by the deceased, statements were recorded by the Police during investigation of different persons, showing that on account of business transactions with the accused, the deceased was put under tremendous pressure to do something which he was, perhaps, not willing to do.
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17. Having regard to the materials on record the Supreme Court took the view that the conduct of the appellant and his accomplices was such that the deceased was left with no other option except to put an end to his life. There cannot be any debate so far as the principle of law explained by the Supreme Court is concerned. However, the principle are to be applied to the facts of each individual case. Therefore, in my view, the decision of the Supreme Court in the case of Chitresh Kumar Chopra would not help the first informant in any manner.
18. It is very sad to note that the deceased, a young boy lost his life on account of commission of suicide. A person might be very hypersensitive to the ordinary petulance, discord and differences which happen in our daytoday life. As observed by the Supreme Court in the case of M. Mohan (Supra), the human sensitivity of each individual differs from person to person. Each individual has his own idea of selfesteem and selfrespect. Different people behave differently in the same situation. There should be intention or guilty mind to provoke, incite or encourage the doing of an act by the latter.
19. Section107 of the IPC which contains the definition of abetment has three clauses, and if an act of a person falls within the purview of any of them it would amount to abetment. The first and second clauses are not germane in this context and hence the third clause is reproduced here. A person abets the doing of a thing who intentionally aids, by any act or illegal omission, the doing of that thing. The scope of the word "aids" has been clarified in Explanation2 which reads thus: "Whoever, either prior to or at the time of 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". The said explanation does not say what would or would not amount to "intentionally aids". It only explains what is meant by aiding simpliciter.
Page 17 of 19HC-NIC Page 17 of 19 Created On Sat May 06 01:26:34 IST 2017 R/CR.MA/13397/2015 CAV JUDGMENT This means that an act which merely amounts to aiding the commission of an offence is not abetment. The aiding must snowball into "intentionally aiding" the doing of a thing. When can you say that a person has intentionally aided the commission of an offence? The commission of the act must be the dominant intention of the person who aids it. Then only it can be said that he "intentionally" aided it. If there is community of interest between the aiding person and the one who commits the offence, there is possibility to draw the inference that the dominant intention was to aid the doing of that particular act. If the person only knows or has only the reason to believe that his act would facilitate the commission of offence, it cannot be said that his dominant intention was that.
20. The observation made by Batty, J. in Bhagwant Appaji Vs. Kedar Kashinath (ILR 1901 Vol.XXV 202) is considered to be "one of the best expositions of the meaning of the word intent as used in the Indian Penal Code". The learned Judge has stated thus (at page 226): "The word intent by its etymology seems to have metaphorical allusion to archery and implies aim and thus connotes not a casual or merely possible resultforeseen perhaps as a not improbable incident, but not desiredbut rather connotes the one object for which the effort is made and thus has reference to what has been called the dominant motive without which the action would not have been taken". This was followed in Phul Kumari v. Sheodahin (AIR 1965 Patna 507). While dealing with the expression "with intent" in Section441 of the IPC the Supreme Court has said that it means the dominant intention. (Vide Mathri Vs. State of Punjab AIR 1964 SC. 986). The same interpretation can be imported to the similar expression employed in Section107 of the IPC."
21. In my view, no case worth the name is made out to put the Page 18 of 19 HC-NIC Page 18 of 19 Created On Sat May 06 01:26:34 IST 2017 R/CR.MA/13397/2015 CAV JUDGMENT applicants herein on trial for the alleged offence.
22. In the result, all the three applications succeed and are hereby allowed. The proceedings of the Sessions Case No.25 of 2016 pending in the Court of the learned Fourth Additional District Judge, Bharuch, arising from the F.I.R. being C.R. No.I133 of 2015 filed before the 'C' Division Police Station, DistrictBharuch, is hereby quashed. All consequential proceedings pursuant thereto stands terminated.
Rule is made absolute to the aforesaid extent. Direct service is permitted.
(J.B.PARDIWALA, J.) aruna Page 19 of 19 HC-NIC Page 19 of 19 Created On Sat May 06 01:26:34 IST 2017