R/CR.MA/8815/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING SET ASIDE
FIR/ORDER) NO. 8815 of 2015
==========================================================
RASILABEN D/O. SAVJIBHAI SOLANKI 4....Applicant(s)
Versus
STATE OF GUJARAT 1....Respondent(s)
==========================================================
Appearance:
MR SHAKEEL A QURESHI, ADVOCATE for the Applicant(s) No. 1 - 5
HCLS COMMITTEE, ADVOCATE for the Respondent(s) No. 2
MR NILESH I JANI, ADVOCATE for the Respondent(s) No. 2
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 28/02/2017
ORAL ORDER
1 Rule returnable forthwith. Ms. Pathak, the learned Additional
Public Prosecutor waives service of notice of rule for and on behalf of the
respondent No.1 State of Gujarat and Mr. Nilesh Jani, the learned
advocate appointed by the High Court Legal Services Authority waives
service of notice of rule for and on behalf of the respondent No.2.
2 By this application, the applicants original accused persons seek
to invoke the inherent powers of this Court under Section 482 of the
Code of Criminal Procedure, 1973, praying for quashing of the First
Information Report bearing IC.R. No.26 of 2015 registered with the
Manavadar Police Station, District: Junagadh for the offence punishable
under Sections 306 read with 114 of the Indian Penal Code.
Page 1 of 15
HC-NIC Page 1 of 15 Created On Wed Mar 01 00:36:21 IST 2017
R/CR.MA/8815/2015 ORDER
3 The applicant No.1, namely, Rasilaben Solanki was married to the
deceased namely, Hareshbhai Manjibhai. The first informant happens to
be the father of the deceased. The deceased doused himself with
kerosene and set his body on fire as he was tired of the litigation
initiated by his wife i.e. the applicant No.1. It appears from the materials
on record that there were matrimonial disputes between the husband
and the wife. The wife initiated proceedings twice for maintenance
under Section 125 of the Cr.P.C. Tired of all these, the deceased decided
to put an end to his life. This is the case what he has said in his dying
declaration.
4 Even if the entire case of the prosecution is believed or accepted to
be true, none of the ingredients to constitute the offence punishable
under Section 306 of the Indian Penal Code are spelt out. By no stretch
of imagination, it can be said that the applicant No.1 and her family
members aided or instigated the deceased within the meaning of Section
107 of the Indian Penal Code to commit suicide. The law in this regard is
wellsettled. The Supreme Court in a very recent pronouncement in the
case of Narendra vs. K. Meena [Criminal Appeal No.3253 of 2008
decided on 6th October 2016] observed as under:
“10. With regard to the allegations of cruelty levelled by the Appellant, we
are in agreement with the findings of the trial Court. First of all, let us
look at the incident with regard to an attempt to commit suicide by the
Respondent. Upon perusal of the evidence of the witnesses, the findings
arrived at by the trial Court to the effect that the Respondent wife had
locked herself in the bathroom and had poured kerosene on herself so as to
commit suicide, are not in dispute. Fortunately for the Appellant, because
of the noise and disturbance, even the neighbours of the Appellant rushed
to help and the door of the bathroom was broken open and the
Respondent was saved. Had she been successful in her attempt to commit
suicide, then one can foresee the consequences and the plight of the
Appellant because in that event the Appellant would have been put toPage 2 of 15
HC-NIC Page 2 of 15 Created On Wed Mar 01 00:36:21 IST 2017
R/CR.MA/8815/2015 ORDERimmense difficulties because of the legal provisions. We feel that there was
no fault on the part of the Appellant nor was there any reason for the
Respondent wife to make an attempt to commit suicide. No husband would
ever be comfortable with or tolerate such an act by his wife and if the wife
succeeds in committing suicide, then one can imagine how a poor husband
would get entangled into the clutches of law, which would virtually ruin
his sanity, peace of mind, career and probably his entire life. The mere
idea with regard to facing legal consequences would put a husband under
tremendous stress. The thought itself is distressing. Such a mental cruelty
could not have been taken lightly by the High Court. In our opinion, only
this one event was sufficient for the Appellant husband to get a decree of
divorce on the ground of cruelty. It is needless to add that such threats or
acts constitute cruelty. Our aforesaid view is fortified by a decision of this
Court in the case of Pankaj Mahajan v. Dimple @ Kajal (2011) 12 SCC 1,
wherein it has been held that giving repeated threats to commit suicide
amounts to cruelty.
11. The Respondent wife wanted the Appellant to get separated from
his family. The evidence shows that the family was virtually maintained
from the income of the Appellant husband. It is not a common practice or
desirable culture for a Hindu son in India to get separated from the
parents upon getting married at the instance of the wife, especially when
the son is the only earning member in the family. A son, brought up and
given education by his parents, has a moral and legal obligation to take
care and maintain the parents, when they become old and when they have
either no income or have a meagre income. In India, generally people do
not subscribe to the western thought, where, upon getting married or
attaining majority, the son gets separated from the family. In normal
circumstances, a wife is expected to be with the family of the husband after
the marriage. She becomes integral to and forms part of the family of the
husband and normally without any justifiable strong reason, she would
never insist that her husband should get separated from the family and
live only with her. In the instant case, upon appreciation of the evidence,
the trial Court came to the conclusion that merely for monetary
considerations, the Respondent wife wanted to get her husband separated
from his family. The averment of the Respondent was to the effect that the
income of the Appellant was also spent for maintaining his family. The
said grievance of the Respondent is absolutely unjustified. A son
maintaining his parents is absolutely normal in Indian culture and ethos.
There is no other reason for which the Respondent wanted the Appellant to
be separated from the family the sole reason was to enjoy the income of
the Appellant. Unfortunately, the High Court considered this to be a
justifiable reason. In the opinion of the High Court, the wife had a
legitimate expectation to see that the income of her husband is used for her
and not for the family members of the Respondent husband. We do not see
any reason to justify the said view of the High Court. As stated
hereinabove, in a Hindu society, it is a pious obligation of the son to
Page 3 of 15
HC-NIC Page 3 of 15 Created On Wed Mar 01 00:36:21 IST 2017
R/CR.MA/8815/2015 ORDER
maintain the parents. If a wife makes an attempt to deviate from the
normal practice and normal custom of the society, she must have some
justifiable reason for that and in this case, we do not find any justifiable
reason, except monetary consideration of the Respondent wife. In our
opinion, normally, no husband would tolerate this and no son would like
to be separated from his old parents and other family members, who are
also dependent upon his income. The persistent effort of the Respondent
wife to constrain the Appellant to be separated from the family would be
torturous for the husband and in our opinion, the trial Court was right
when it came to the conclusion that this constitutes an act of cruelty.”
5 This Court had an occasion to consider the law of abetment in
length in the case of Lalitbhai Vikramchand Parekh vs. State of Gujarat
and another [Criminal Misc. Application No.16032 of 2014 decided
on 10th April 2015]. I may quote the relevant observations thus :
“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 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”.
Page 4 of 15
HC-NIC Page 4 of 15 Created On Wed Mar 01 00:36:21 IST 2017
R/CR.MA/8815/2015 ORDER
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, 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 noninterference
or he may encourage intentionally by expressions, gestures, or actions,
intended to signify approval. In the latter case, he aids and abets; in the
former he does not.” Stroud also cites the case of Du Cros v. Lambourne,
1907 (1) K. B. 40.. in which it was held that “the owner in, and in control
of, a motor car which is being driven at an improper speed by a driver who
is not his servant, “aids or abets” in the offence if he (the owner) does not
interfere.” It is further noticed on the basis of decision in the case of Rubie
v. Faulkner, 1980 (1) K.B. 571 : “For a supervisor of a learner driver to
Page 5 of 15
HC-NIC Page 5 of 15 Created On Wed Mar 01 00:36:21 IST 2017
R/CR.MA/8815/2015 ORDER
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 (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 the fact” comes a person who “procures
Page 6 of 15
HC-NIC Page 6 of 15 Created On Wed Mar 01 00:36:21 IST 2017
R/CR.MA/8815/2015 ORDER
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. For obvious, reasons an act of suicide is not penal, even though an
unsuccessful attempt at it is punishable. Suicide takes the victim or the
perpetrator outside the purview of penal consequences, even though the
common law in England at one time endeavoured to deter men from this
crime by the threat of degradations to be inflicted upon the “suicide’s
corpose”, which by a natural, if unreasoning association of ideas, were
often a “potent deterrent”, and also by threatening the forfeiture of his
goods, a “vicarious punishment” which though falling wholly upon his
surviving family, was likely often to appeal strongly to his sense of
affection. Thus the man who feloniously took his own life was at one time
“buried in the highway”, with a stake through his body; and his goods
were “forfeited”. The burial of suicides lost its gruesome aspect in 1824
when the original mode was replaced by the practice of burial “between the
hours of nine and 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
Page 7 of 15
HC-NIC Page 7 of 15 Created On Wed Mar 01 00:36:21 IST 2017
R/CR.MA/8815/2015 ORDER
enough that a person is present with a secret intention to assist the
principal should assistance be required. Some encouragement or assistance
must have been given to the principal either before or at the time of the
commission of the crime with the intention of furthering its commission.
Presence without more may, however, afford some evidence of aid and
encouragement. It is an indictable offence at common law for a person to
incite or solicit another to commit an offence. For an incitement to be
complete, there must be some form of actual communication with a person
whom it is intended to incite, where, however, a communication is sent
with a view to incite, but does not reach the intended recipient the sender
may be guilty of an attempt to incite. Incitement is complete though the
mind of the person incited is unaffected and notwithstanding that person
incited intends to inform on the inciter ; but there can be no incitement
unless one person seeks to persuade or encourage another Halsbury’s Laws
of England, Paras 42 to 44.
17. It may be useful to notice some of the Indian decisions on the question
of abetment. Among the early cases of abetment of suicide arose out of
unfortunate incidents of Sati, which was common in India, at one time. A
person who induced the woman to return to the pyre after she had once
retired from it, and immolated herself, was held to have abetted suicide
1863 (1) R.L.P.J. 174. Where a women prepared to commit suicide in the
presence of certain persons who followed her to the pyre, stood by her and
one of them told the women to say ‘Ram Ram’ and “She would became
sati”, the facts were held sufficient to prove the active connivance of these
persons and to justify the inference that they had engaged with her in a
conspiracy to commit suicide 1871 (3) N.W.P. 316; (1933) A.L.J.R. 7.
Where the accused prepared the funeral pyre, placed the victim’s husband’s
body over it, and did not use any force to prevent her from sitting on the
pyre and supplied her with ghee which she poured over the pyre were
found guilty of abetment of suicide. Where a Hindu 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
Page 8 of 15
HC-NIC Page 8 of 15 Created On Wed Mar 01 00:36:21 IST 2017
R/CR.MA/8815/2015 ORDER
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 Co
operation may consist of a conjoint action and that would amount to
abetment. In the case of State of Bihar v. Ranen Nath and other A.I.R.
1958 Patna 259, a Division Bench of the Patna High Court was construing
Section 27 of the Industrial Disputes Act which uses the expressions
Instigation and incitement’ and observed that the words “should be read to
signify something deeper than a mere asking of a person to do a particular
act. There must be something in the nature of solicitation to constitute
instigation or incitement” and it was held that the words seem to convey
the meaning “to goad or urge forward or to provoke or encourage the
doing of an act.” It was further observed that what acts should amount to
instigation or incitement within the meaning of that section will depend
upon the “particular facts of each case”, and that in some circumstances a
“throw of a finger” or “a mere turning of the eye’ may give rise to an
inference of either “incitement or instigation”, and yet in others even
“strong words, expressly used, may not mean that the person using them
was stimulating or suggesting to anyone to do a particular act.” The court
expressed the view that there must be something “tangible” in evidence to
show that the persons responsible for such action were “deliberately trying
to stir up other persons to bring about a certain object”. According to a
division bench of the Calcutta High Court, a person abets the doing of a
thing when he or she, inter alia. “instigates any 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
Page 9 of 15
HC-NIC Page 9 of 15 Created On Wed Mar 01 00:36:21 IST 2017
R/CR.MA/8815/2015 ORDER
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 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 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
Page 10 of 15
HC-NIC Page 10 of 15 Created On Wed Mar 01 00:36:21 IST 2017
R/CR.MA/8815/2015 ORDER
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 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 Gangula Mohan Reddy vs. 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 Chhatisgarh, (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
Page 11 of 15
HC-NIC Page 11 of 15 Created On Wed Mar 01 00:36:21 IST 2017
R/CR.MA/8815/2015 ORDER
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 vs. State
Represented the Deputy Superintendent of Police (2011) 3 SCC 626.
the Supreme Court held that “Abetment involves mental process of
instigating or intentionally aiding a person in doing of a thing. There
should be clear mens rea to commit offence under Section 306. It requires
commission of direct or active act by accused which led deceased to commit
suicide seeing no other option and such act must be intended to push
victim into a position that he commits suicide.”
26. On a close reading of the above provisions of the IPC, and the
principles laid down by the Supreme Court in various decisions, it is
apparent that in a case under Section 306 IPC, there should be clear mens
rea to commit the offence under this Section and there should be direct or
active act by the accused, which led the deceased to commit suicide, that is
to say that there must be some evidence of “instigation”, “cooperation” or
“initial assistance” by the accused to commit suicide by the
victim/deceased.
27. In Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrajirao
Angre (1988) 1 SCC 692 the Supreme Court observed vide Para 7 that:
“7. The legal position is well settled that when a prosecution at the
initial stage is asked to be quashed, the test to be applied by the
court is as to whether the uncontroverted allegations as made
prima facie establish the offence. It is also for the court to take into
consideration any special features which appear in a particular
case to consider whether it is expedient and in the interest of justice
to permit a prosecution to continue. This is so on the basis that the
court cannot be utilized for any oblique purpose and where in the
opinion of the court chances of an ultimate conviction are bleak
and, therefore, no useful purpose is likely to be served by allowing aPage 12 of 15
HC-NIC Page 12 of 15 Created On Wed Mar 01 00:36:21 IST 2017
R/CR.MA/8815/2015 ORDERcriminal 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 vs. State of Gujarat (2010) 8 SCC 628.
the Supreme Court quashed the proceedings under Section 306 IPC on the
ground that the allegations were irrelevant and baseless and observed that
the High Court was in error in not quashing the proceedings.
29. Accepting the allegations made against the applicants by the
prosecution as it is, they do not constitute the offence of abetment. I am
conscious of the fact that five persons of one family lost their lives on
account of drastic step taken by them for no reason. It is very difficult to
understand the mental state of mind of such persons who take an extreme
step of putting an end to their life voluntarily by committing suicide.
30. According to the World Federation for Mental Health (WFMH), a
number of countries have established national suicide prevention plans or
strategies. Their principles and action steps represent good sources for
developing specific policy recommendations to present to governmental
and legislative leaders. Common elements of these plans and strategies
include:
Campaigns to increase public awareness of suicide as a preventable
problem, to develop broad based support for prevention efforts, and
to reduce stigma;
Community development to support creation and implementation of
suicide prevention programs;
Improved access to services to suicidal people and their loved ones, and
improved service delivery efforts through development of guidelines
and linkages;
Media education to improve reporting and portrayals of suicide in the
media;
Training for caregivers to improve recognition of atrisk behaviour and
delivery of effective treatments;
Incorporation of licensing standards for professional caregivers;
Development and promotion of effective clinical and professional
practices;
Page 13 of 15
HC-NIC Page 13 of 15 Created On Wed Mar 01 00:36:21 IST 2017
R/CR.MA/8815/2015 ORDER
Means restriction initiatives to reduce access to lethal means and
methods of self harm;
Research and evaluation to promote and support research, improve
surveillance systems, and evaluate the effectiveness of new or
existing suicide prevention interventions.
31. In this view of the matter, I am of the opinion that there is absolutely
no material on record, sufficient for continuing the criminal prosecution
against the applicants. The factual position clearly shows that the criminal
proceedings pending against the applicants is nothing, but a sheer abuse of
the process of law, which should be quashed by exercising powers under
Section 482 of the Criminal Procedure Code. Mere vague allegations of
harassment by themselves would not amount to abetement of the offence
of commission of suicide. Something more is required under Section 107 of
the IPC. These requisite ingredients are missing in this case.
32. Commission of suicide in the State is at rampage. Everyday, cases are
reported. Sometimes, it could be a student or an estranged wife or a
frustrated or mentally disturbed husband or it could be a terminally ill
person fedup with the ailment etc. Life is precious and should not be
allowed to be lost in this manner. The State owes an obligation to see that
its subjects do not take the extreme step of committing suicide for any
reason. In such circumstances, the State Government should also seriously
consider evolving some action plan or strategies as referred to above.
6 The Supreme Court, in the case of M. Mohan vs. State
Represented by the Deputy Superintendent of Police, AIR 2011 SC
1238, observed in paras 45 and 46 as under :
“45. Abetment involved a mental process of instigating a person or
intentionally aiding a person in doing of a thing. 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 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.”
7 The learned A.P.P. placed strong reliance on the decision of the
Page 14 of 15
HC-NIC Page 14 of 15 Created On Wed Mar 01 00:36:21 IST 2017
R/CR.MA/8815/2015 ORDER
Supreme Court in the case of Chitresh Kumar Chopra v. State
(Government of NCT of Delhi), (2009)16 SCC 605 and complained that
since the chargesheet has been filed, whatever has been stated in the
chargesheet should be presumed as true.
8 I have gone through the decision relied upon by the learned A.P.P.
in the case of Chitresh Kumar Chopra (supra), the facts of the said case
were altogether different. Apart from the suicide note, which was left
behind by the deceased, the statements were recorded by the police
during the investigation of the different persons, showing that on
account of business transactions with the accused, the deceased was put
under tremendous pressure to do something which he was, perhaps, not
willing to do. Having regard to the materials on record, the Supreme
Court took the view that the conduct of the appellant and his
accomplishes was such that the deceased was left with no other option
except to put an end to his life. In my view, the decision of the Supreme
Court in the case of Chitresh Kumar Chopra (supra) is distinguishable
and would not help the prosecution.
9 In the result, this application is allowed. The First Information Report
bearing IC.R. No.26 of 2015 registered with the Manavadar Police Station,
District: Junagadh is hereby quashed. All consequential proceedings pursuant
thereto stand terminated. Rule is made absolute. Direct service is permitted.
(J.B.PARDIWALA, J.)
chandresh
Page 15 of 15
HC-NIC Page 15 of 15 Created On Wed Mar 01 00:36:21 IST 2017
