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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.989 OF 2003
The State of Maharashtra )
(Through Bandgarden Police Station) ) ..Appellant
Versus
1. Nabab Mohammad Shaikh )
Age 47 yrs. Occ: Service )
2. Mumtaj Nabab Shaikh )
Age 40 yrs. Occ: Household )
3. Akram Nabab Shaikh )
Age 24 yrs. Occ: Service )
All R/o, Council Hall, Hyderabad Chawl )
Servant Quarters, Room No.5, Bandgarden )
Pune ) ..Respondents
(Original Accused No.1 to 3)
Ms Pallavi Dabholkar APP for Appellant
Mr. Rohan Savant, Amicus Curiae
CORAM : K.R.SHRIRAM, J.
DATE : 4th FEBRUARY 2020
ORAL JUDGMENT :
1 This is an appeal impugning an order and judgment dated 7-5-
2003 passed by the learned 11th Additional Sessions Judge, Pune, acquitting
three respondents (accused) of offence under Sections 498A ( Husband or
relative of husband of a woman subjecting her to cruelty) and 306
(Abetment of suicide) read with Section 34 (Acts done by several persons in
furtherance of common intention) of Indian Penal Code.
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2 Since nobody is appearing for respondents, the court appointed
Mr. Rohan Savant, Advocate, as Amicus Curiae. Before I proceed with the
case, I must express my appreciation for the distinguished assistance
rendered by Mr. Savant. The endeavour put forth by Mr. Savant, has been
of immense value in rendering the judgment.
3 The prosecution’s case in brief is :- (a) Aarifa, daughter of
complainant Kadir Madar Shaikh (P.W.-1), got married to accused no.3
Akram Nabab Shaikh on 15-10-2000. For about 6 months after marriage,
the accused treated Aarifa well but thereafter, started ill-treating and
subjected her to physical and mental cruelty. Unable to withstand the
cruelty, Aarifa poured kerosene on her person and set herself on fire on 10-
1-2002. Accused kept themselves away from the spot of incident and it is
the neighbours of the accused, who came forward and informed the incident
of Aarifa to the police and her relatives.
(b) Ill-treatment after 6 months began because one of the daughter
of accused nos.1 and 2, whose name was Yasmin got married 6 months prior
to the incident and the accused had spent lot of money. Accused were
harassing Aarifa to get some money from her parents so that the accused
could tide over the financial tightness caused due to marriage of Yasmin.
(c) The accused used to abuse and beat Aarifa accusing her not
being a good cook and accused no.1 used to always talk to Aarifa angrily
and in loud voice.
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(d) Accused used to also beat Aarifa because she was unable to
conceive.
According to prosecution, prior to date of incident, the accused
in furtherance of their common intention subjected Aarifa to cruelty and
abetted suicide.
4 Charge sheet for offences punishable under Sections 498A and
306 read with Section 34 of IPC was filed in the Court of Judicial Magistrate
First Class, Pune and, thereafter, the case was committed to Sessions Court.
Initially, Shahin, the sister of accused no.3 and daughter of accused nos.1
and 2 was also arraigned as accused, but the charge sheet against her was
not considered by the Sessions Court, because Shahin was a minor.
Prosecution was called upon to submit a separate charge sheet against
Shahin before Juvenile Court. It is not clear what happened to that matter.
Charges were framed against the three respondents (accused), who pleaded
not guilty and claimed to be tried. Statements of the accused under Section
313 of Cr.PC were recorded and the stand of the accused was of total denial.
5 To drive home the guilt, prosecution led evidence of 7
witnesses; namely Kadir Madhar Shaikh, father of Aarifa and Complainant,
as P.W.-1; Abeda Kadir Shaikh, the mother of Aarifa, as P.W.-2; Hasina
Majhar Shaikh, aunt of Aarifa, as P.W.-3; Yasmin Harun Shaikh, another
aunt of Aarifa, as P.W.-4; Sayyad Hasanali Mahboobali, a panch witness for
spot panchnama and also a neighbour of accused, as P.W.-5; Barikrao Aaslu
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Chaure, PSI Special Branch, Pune, as P.W.-6, who had recorded the
statement and lodged the FIR; and Ramakant Vinayak Kale, Investigating
Officer, as P.W.-7, who received all papers from P.W.-6. The defence did not
lead any evidence. Postmortem report, Exhibit 18, has been admitted.
6 The Apex Court in Ghurey Lal Vs. State of U.P.1 has culled out
the factors to be kept in mind by the Appellate Court while hearing an
appeal against acquittal. Paragraph Nos.72 and 73 of the said judgment
read as under:
72. The following principles emerge from the cases above:
1. The appellate court may review the evidence in appeals against
acquittal under sections 378 and 386 of the Criminal Procedure
Code, 1973. Its power of reviewing evidence is wide and the
appellate court can reappreciate the entire evidence on record. It
can review the trial court’s conclusion with respect to both facts
and law.
2. The accused is presumed innocent until proven guilty.
The accused possessed this presumption when he was before the
trial court. The trial court’s acquittal bolsters the presumption that
he is innocent.
3. Due or proper weight and consideration must be given to the
trial court’s decision. This is especially true when a witness’
credibility is at issue. It is not enough for the High Court to take a
different view of the evidence. There must also be substantial and
compelling reasons for holding that trial court was wrong.
73. In light of the above, the High Court and other appellate courts
should follow the well settled principles crystallized by number of
judgments if it is going to overrule or otherwise disturb the trial
court’s acquittal:
1. The appellate court may only overrule or otherwise disturb the
trial court’s acquittal if it has “very substantial and compelling
reasons” for doing so.
A number of instances arise in which the appellate court would
1 (2008) 10 SCC 450
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have “very substantial and compelling reasons” to discard the trial
court’s decision. “Very substantial and compelling reasons” exist
when:
i) The trial court’s conclusion with regard to the facts is palpably
wrong;
ii) The trial court’s decision was based on an erroneous view of
law;
iii) The trial court’s judgment is likely to result in “grave
miscarriage of justice”;
iv) The entire approach of the trial court in dealing with the
evidence was patently illegal;
v) The trial court’s judgment was manifestly unjust and
unreasonable;
vi) The trial court has ignored the evidence or misread the material
evidence or has ignored material documents like dying
declarations/ report of the Ballistic expert, etc.
vii) This list is intended to be illustrative, not exhaustive.
2. The Appellate Court must always give proper weight and
consideration to the findings of the trial court.
3. If two reasonable views can be reached – one that leads to
acquittal, the other to conviction – the High Courts/appellate courts
must rule in favour of the accused.
7 The Apex Court in many other judgments including Murlidhar
Ors. Vs. State of Karnataka2 has held that unless, the conclusions reached
by the trial court are found to be palpably wrong or based on erroneous
view of the law or if such conclusions are allowed to stand, they are likely to
result in grave injustice. Appellate Court should not interfere with the
conclusions of the Trial Court. Apex Court also held that merely because the
appellate court on re-appreciation and re-evaluation of the evidence is
2 (2014) 5 SCC 730
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inclined to take a different view, interference with the judgment of acquittal
is not justified if the view taken by the trial court is a possible view.
We must also keep in mind that there is a presumption of
innocence in favour of respondent and such presumption is strengthened by
the order of acquittal passed in his favour by the Trial Court.
8 The Apex Court in Ramesh Babulal Doshi Vs. State of Gujarat 3
has held that if the Appellate Court holds, for reasons to be recorded that
the order of acquittal cannot at all be sustained because Appellate Court
finds the order to be palpably wrong, manifestly erroneous or demonstrably
unsustainable, Appellate Court can reappraise the evidence to arrive at its
own conclusions. In other words, if Appellate Court finds that there was
nothing wrong or manifestly erroneous with the order of the Trial Court, the
Appeal Court need not even re-appraise the evidence and arrive at its own
conclusions.
9 I have perused the impugned judgment, considered the
evidence and also heard Ms. Dabholkar, learned APP and Mr. Savant,
Amicus Curiae. I do not find anything palpably wrong, manifestly erroneous
or demonstrably unsustainable in the impugned judgment.
10 Admittedly, for the first 6 months, Aarifa was treated well by
the accused. It is the case of P.W.-1, P.W.-2, P.W.-3 and P.W.-4 that the accused
were ill-treating Aarifa on the grounds that:- (a) Aarifa was not bringing
3 1996 SCC (cri) 972
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money from her parents in view of the huge expenses that were incurred by
the accused for conducting the marriage of Yasmin 6 months prior to the
incident, (b) Aarifa used to not cook properly and, (c) Aarifa was not
conceiving.
11 Law on what would amount to an offence under Section 498A,
has been well discussed in catena of judgments. It is settled law that under
Section 498A of IPC, every cruelty is not an offence. The cruelty must be of
such a degree as contemplated by the Section, i.e., it must be willful conduct
of such a nature as is likely to drive the woman to commit suicide or to
cause grave injury or danger to life, limb and health of the woman.
12 The Division Bench of this court in Kamlesh Ghanshyam Lohia
and Ors. Vs. State of Maharashtra, through the commissioner of police
Ors.,4 in paragraphs 12 to 15, has observed as under:
“12. The allegations against the petitioners are, therefore, required to
be appraised through the aforesaid backdrop. If we take the
allegations in the FIR at par, qua the petitioners, at best, the
following three allegations can be attributed to the petitioners :
(i) After the first informant and Krishna shifted to Juhu in June 2012,
the petitioners occasionally visited them and during those visits,
insulted the first informant by calling her fat and dark complexioned.
(ii) On every festive occasion, the family members of Krishna
demanded clothes, ornaments and money from her parents and those
demands were met.
(iii) All the family members humiliated the first informant by calling
her, “infertile” and made her to demand money from her parents.
13. Whether the aforesaid allegations, even if taken at par, would
warrant the prosecution of the petitioners is the moot question. It is
indisputable that the cruelty under section 498-A of IPC has a specific
legal connotation. Ordinary quarrels, differences of views and wear
and tear of life, which every home witnesses, do not fall within the
4 2019 SCC online Bom 1762
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mischief of cruelty which section 498-A of IPC punishes. Nor, every
ill-treatment or harassment falls within its dragnet. To fall within the
tentacles of section 498-A, the married woman must have been
subjected to cruelty which would drive the woman to commit suicide
or to cause grave injury or danger to her life, limb or health, or with
a view to coerce her or any person related to her to meet an unlawful
demand of property. Mere demand of money or property,
unaccompanied by any harassment, would also not fall within the
mischief of section 498-A. There has to be a nexus between the
demand and the consequent harassment.
14. On the anvil of the aforesaid legal position, if the allegations
enumerated above, are weighed, it becomes evident that the first
allegation of insulting the first informant after she shifted to Juhu in
the year 2010, is of general nature. The allegation is stale as well. By
no stretch of imagination, it can be stated that the alleged conduct
had the propensity to drive the first informant to commit suicide or
cause harm to herself.
15. The second allegation of all the family members of Krishna
demanding money, clothes and ornaments on each of the festive
occasions is also of general nature and bereft of any specific instance
and authorship. The said allegations, at the highest, would indicate
that on festive occasions certain articles were demanded. In the
absence of the allegation that the first informant was subjected to
harassment either in order to meet the unlawful demands of property
or on her failure to meet such demands, the second allegation looses
the incriminating tendency. ”
13 A Learned Single Judge of this Court in Neeraj Subhash Mehta
Vs. The State of Maharashtra,5 in paragraphs 9 and 10 has observed as
under:
“9 Section 113A of the Evidence Act prescribes rule of
presumption in case of suicidal death by a married woman.
Whenever the question arose as to whether commission of suicide
by a woman has been abetted by her husband or relatives of her
husband and it is shown that she had committed suicide within the
period of seven years of her marriage and that her husband or
relatives of her husband had subjected her to cruelty, then the
court may presume “having regard to all other circumstances of the
case” that such a suicide has been abetted by her husband or
relatives of her husband. It is, thus, clear that, this presumption
cannot be raised automatically on proof of suicidal death within
seven years of marriage and subjecting a married woman to
cruelty. Something more is required to be seen for drawing this
5 2017 SCC Online Bom 62
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presumption.
10 By catena of judgments of this court as well as Apex
Court what amounts to cruelty as envisaged by Explanation to
Section 498A of IPC is explained. Cruelty implies harsh and
harmful conduct with certain intensity and persistence. It covers
acts causing both physical and mental agony and torture or
tyranny and harm as well as unending accusations and
recrimination reflecting bitterness putting the victim thereof to
intense miscarries. The conduct, in order to prove guilt, must be
such as strongly stirring up the feeling in the mind of a married
woman that life is now not worth living and she should die, being
the only option left. In other words, provisions of Section 498A of
the IPC envisages intention to drawing or force a woman to
commit suicide by unabetted persistence and grave cruelty. A
willful conduct of such a nature as is likely to propel or compel a
married woman to commit suicide or to cause grave injury or
danger to her life, limb or health is required to be established. In
other words, matrimonial cruelty is included from the definition of
legal cruelty. To put it in other words, ordinary petulance and
discord or differences in domestic life does not amount to cruelty.
By keeping this aspect in mind, let us prima facie examine the
instant case for a limited purpose as to whether the applicant /
accused is entitled for liberty. If the impugned judgment and order
of the trial court is perused, then it is seen that the reasoning part
is in paragraph 65 of the judgment. Reliance is placed on evidence
of PW1 to PW3 by the learned trial court. It is observed that the
dispute was over the issue of the deceased having made “kaccha
chapati.” Further observations are to the effect that this was too
trivial matter to invoke extreme and harsh response of calling her
brother and parents. In other words, the learned trial Judge was
very well aware of the fact that the incident of commission of
suicide was preceded by a trivial incident in the matrimonial life of
Neha. Still, without further discussion, offence punishable under
Section 498A of the IPC is held to be proved. Then by taking aid of
Section 106 of the Evidence Act, as well as Section 113A thereof, it
is held that the offence punishable under Section 306 of the IPC is
proved.”
14 As regards the allegations of demand of money, the same
appears to be of general nature and bereft of any specific incidence. First of
all (a) it does not mention what was the amount demanded, (b) who
demanded, and (c) who specifically meted out cruelty and in what form on
Aarifa.
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As regards inability to cook, again that is a general statement.
Aarifa’s inability to cook would have come out, if that was true, soon after
the marriage. But why would the accused start ill-treating Aarifa 6 months
after marriage alleging that she was unable to cook. On the contrary, Aarifa
used to carry lunch to accused no.1 at his place of work as stated by P.W.-3
and P.W.-4.
As regards cruelty due to Aarifa not conceiving, P.W.-2, mother
of Aarifa, in her cross-examination admits that Aarifa told her that her
mother-in-law even took her to Shanti Clinic for check up as to why Aarifa
was not conceiving. If the accused were subjecting Aarifa to cruelty due to
her inability to conceive, why would they take her to doctor to examine as
to why Aarifa was unable to conceive. P.W.-7 – Investigating Officer, in his
examination in chief states that on 7-2-2002, the treatment was given to
Aarifa in Shanti Clinic and the hospital had also issued a certificate, which is
Article No.A.
15 P.W.-2 admits that accused no.3 and Aarifa used to visit their
house and P.W.-1 and P.W-2 also used to go to the house of Aarifa and used
to have meals together. At no point of time, any of the witnesses have
informed the accused about alleged ill-treatment mentioned to them by
Aarifa. It has also to be noted that the place, where the accused used to live
with Aarifa, was called Hyderabad Chawl and it consisted of about 35-36
rooms. None of the neighbours have been examined and there is no
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complaint of any of the neighbour Aarifa ever telling them or they hearing
any commotion in the house of the accused. In fact, P.W.-5 – panch witness,
who was also the neighbour of the accused, states that his house and the
house of the accused are facing each other and there is a road having only
width of 8 ft. and the entrance of the houses are opposite to each other.
P.W.-5 says that the houses are at such distance that one can know what is
happening in the house of others. P.W.-5 says that the accused used to leave
their house every morning after preparing morning meal and taking their
tiffins with them. P.W.-5 also says that Aarifa’s cousin Mumtaz Pathan, who
resides in the same locality, used to come to his house and the house of the
accused and P.W.-5 never heard quarrel in the house of accused. As against
this, P.W.-2 says that Aarifa and Mumtaz were not visiting each others
houses. In his cross-examination, P.W.-5 also says that in the evening hours
accused no.3 and Aarifa used to go in the scooter to the market and come
back. P.W.-5 says that Aarifa and accused no.3 were happily cohabiting since
their marriage, till her death and she never complained against her in-laws.
P.W.-5 says that he frequently saw Aarifa with her husband while going for
outing and PW.-1 and P.W.-2, i.e., parents of Aarifa used to come to her
house and they also never complained to him about Aarifa’s grievances.
16 Though, P.W.-1, P.W.-2, P.W.-3 and P.W.-4 have made an attempt
to make out a case for cruelty and abetment, admittedly, there are too many
omissions and contradictions, which only shows that the witnesses have
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improved their cases in the evidence. P.W.-1 admits that while lodging the
complaint to the police, he stated that he had borne the expenses of
marriage. But in cross-examination, he says the accused also shared the
marriage expenses, but it was less than what they were supposed to. P.W.-1
admits that the cousin of accused no.1 and his wife used to come and spend
time with Aarifa every day. P.W.-1 also admits every 7 to 15 days Aarifa
along with the accused used to visit his house and have food with them and
similarly P.W.-1 would also go to the house of the accused, where they would
provide food to him. P.W.-1 also admits that every 1½ months, Aarifa used
to come to his house for 4-5 days. In the cross-examination, P.W.-1 admits
that accused spent for the reception of Aarifa’s marriage with accused no.3,
where there were 100 guests from his side. In paragraph 10 of his cross-
examination, P.W.-1 admits all the omissions in the statement recorded by
the police. P.W.-1 admits that his statement to the police does not contain
that the accused having spent large amount of money for marriage of
Yasmin were demanding the money from Aarifa, or the accused no.1 was
frequently talking angrily and loudly with Aarifa, or accused no.3 at the
instance of accused nos.1 and 2 used to beat Aarifa, or Shahin, who has not
been charged, used to instigate her parents, or the accused did not change
their attitude but increased the cruelty or one day prior to the incident,
accused no.1 asked Aarifa to bring tiffin on foot to Engineering College or
after his duty on 10-1-2002 P.W.-1 went to the house of his sister and
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thereafter at 1 p.m. he came to the house of Aarifa to provide fruits and one
of the accused told him Aarifa was burnt and she is in the Sasson Hospital.
P.W.-1 says he went to the police station at about 1 to 1.30 p.m. on 10-1-
2002 and nobody from his relation was with him while giving the complaint
and he was there upto 3 to 3.30 p.m. and till the lodging of the complaint
he was alone there. Per contra, P.W.-3 says that when she went to the
police station and police recorded her statement, P.W.-1 was with her.
Therefore, the statement of P.W.-1 that he was alone is not believable. This
impinges on the credibility of evidence of P.W.-1.
17 P.W.-2 says that she saw the body of Aarifa and Aarifa’s tongue
had come out of the mouth, whereas the postmortem report says that the
tongue was inside. P.W.-2 admits that the accused were present when the
last rites of Aarifa was performed, whereas P.W.-1 says that he does not
remember whether they were present. But the fact is nobody at the time of
funeral accused the accused of harassing Aarifa. P.W.-2 also says that the
cousin of accused no.1 and his wife used to be with Aarifa every day and she
used to talk to them a lot and the cousin of accused no.1 used to tell that
Aarifa was being looked after very well. If there were any problems as
alleged, I am sure, Aarifa would have disclosed it to those persons, even
though they may be related to the accused. Their statements were recorded,
but they were not examined.
18 P.W.-2 admits that what she has stated in her statement
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by her on 10-1-2002. P.W.-2 also admits that in the statement of 10-1-2002
she has not mentioned that accused used to harass Aarifa for not conceiving.
P.W.-2 says that it is correct to say that even after marriage of Yasmin, P.W.-1
used to go to the house of Aarifa and Aarifa used to visit them. If there was
a demand of money to Aarifa, I would assume, the accused would have
indicated that to P.W.-1 also. P.W.-2 admits that in the police statement, it is
recorded that accused no.1 was weeping loudly and it is stated "gale padun"
he was weeping. P.W.-2 admits in her statement recorded by the police it is
not mentioned that accused used to beat Aarifa and abuse Aarifa or 1 or 2
months prior to her death Aarifa told her about her grievances. Similarly,
there are too many omissions in the statements of P.W.-3 and P.W.43. P.W.-6,
who was the PSI and was investigating the matter has, in paragraphs 8, 9,
10 and 11 exposed all the omissions in the statements / evidence of P.W.-1,
P.W.-2, P.W.-3 and P.W.-4, which for the sake of brevity, I am not reproducing.
19 None of the witness as noted earlier, have indicated what was
the amount demanded. If there was repetitive demand of money, there
could have been disclosure of figure. None of the witnesses have given any
explanation as to why they were not in a position to disclose the amount
demanded. None of the witnesses have also not stated anything regarding
any coercion to Aarifa to meet their unlawful demand. What kind of
coercion ? The witnesses are silent about that. The prosecution could not
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doctor and the doctor opined that she was incapable to conceive. As against
this, it has come on record that in-laws were prepared to provide treatment
to Aarifa and there was no cogent evidence to form a presumption that
Aarifa was not capable to conceive. Therefore, the allegations under Section
498A have not been proved at all.
20 As regards Section 306:- Section 306 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."What is abetment and who is an abettor can be found in
Sections 107 and 108 of IPC which read as under:
"107: Abetment of a thing:- A person abets the doing of a thing, who:-
(1) Instigates any person to do that thing; or (2) 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 (3)
Intentionally aids, by any act or illegal omission, the doing of that
thing.""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. "21 Here is the case of abetment by instigation. When is a person
said to instigate another ? The word 'instigate' literally means to goad, or
urge, or to provoke, or incite, or encourage, to do an act, which the person,
otherwise would not have done. It is well settled, that in order to amount to
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16/24 apeal-989-03(206).docabetment, there must be mens rea or community of intention. Without
knowledge or intention, there can be no abetment and the knowledge and
intention must relate to the act said to be abetted, i.e., suicide, in this case.
In order to constitute 'abetment by instigation', there must be a direct
incitement to do the culpable act. This issue has been discussed by various
High Courts and Supreme Court of India and some of those pronouncements
are discussed here.
22 In Manish Kumar Sharma Vs. State of Rajasthan 6, the
prosecution story was that the accused Manish Kumar had advanced some
money to the victim Kusum Devi and that there were frequent quarrels
between the said accused and the said Kusum Devi. Kusum Devi started
living a life full of tension, which was accentuated on account of persistent
demands made by the accused in respect of money. On the fateful day, the
accused had, allegedly, demanded his money back and uttered the words
"Randi tu marti ku nahi hai mere saath chal nahi to tujhe janase maar
dunga" whereupon Kusum Devi consumed some tablets of some poisonous
substance and died. After carefully considering the legal position and the
concept of 'abetment', Rajasthan High Court held that, it could not be said
that accused wanted, or intended, Kusum Devi to commit suicide. There was
no evidence to suggest or indicate that the accused knew or had reason to
believe that Kusum Devi would commit suicide.
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17/24 apeal-989-03(206).doc23 In Vedprakash Bhaiji Vs. State of Madhya Pradesh 7, the facts of
the prosecution case were that the accused Vedprakash and others had
advanced a loan to the deceased Ramesh Kumar and that on the day prior to
the incident, the accused had filthily abused Ramesh Kumar and had
demanded an amount of Rs. 30,000/ from him, threatening that otherwise
he would be killed. Again, in the night of the same day, demand was made
from Ramesh Kumar for the repayment of the loan advanced. Ramesh
Kumar was abused and threatened repeatedly. On the next day, Ramesh
Kumar wanted to lodge a report in Police Station against the accused
person; but instead committed suicide by consuming some poisonous
substance. In the suicide note left by him, he blamed the accused persons,
who were charged of an offence punishable under Section 306 of the IPC
and were prosecuted. The Madhya Pradesh High Court, after considering
the concept of 'abetment' in the light of certain previously decided cases,
quashed the prosecution, holding that no case of abetting the commission of
suicide had been made out.
24 In Sanju alias Sanjay Singh Sengar Vs. State of Madhya
Pradesh8 the Supreme Court of India extensively dealt with the concept of
'abetment' in the context of the offence punishable under Section 306 of the
Indian Penal Code. In that case, the allegation against the accused/appellant
before the Supreme Court was that he had abetted the commission of
7 1995 Criminal Law Journal 893
8 2002 Criminal Law Journal 2796Meera Jadhav
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18/24 apeal-989-03(206).docsuicide of his sister's husband one Chander Bhushan. The facts show that
there were matrimonial disputes between Neelam, sister of the
appellant/accused and her husband and that, in connection with these
disputes, the appellant had allegedly threatened and abused the said
Chander Bhushan. Chander Bhushan committed suicide and the suicide was
attributed by the prosecution to the quarrel that had taken place between
the appellant and the said Chander Bhushan, a day prior. It was alleged that
the appellant had used abusive language against said Chander Bhushan and
had told him "to go and die". The appellant, who had been chargesheeted
for an offence punishable under Section 306 of the Indian Penal Code, filed
a Petition under Section 482 of the Code of Criminal Procedure, for
quashing the proceedings against him, but his Petition was dismissed by the
High Court. The petitioner had, therefore, appealed to the Supreme Court.
While allowing the appeal, the Apex Court, inter alia, observed as follows :
"Even if we accept the prosecution story that the appellant did tell the
deceased 'to go and die', that itself does not constitute the ingredient
of 'instigation'. The word 'instigate' denotes incitement or urging to do
some drastic or unadvisable action or to stimulate or incite. Presence
of mens rea, therefore, is the necessary concomitant of instigation."
(Para 13 of the reported judgment).25 A Learned Single Judge of the Kerala High Court in Cyriac, S/o
Devassia and another Vs. SubInspector of Police, Kaduthuruthy and
another,9 dealt with extensively the concept of abetment to commit suicide
after referring to a number of pronouncements including the decision of the
9 2005 Criminal Law Journal 4322
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19/24 apeal-989-03(206).docSupreme Court of India. The facts of that case were that the deceased
Joseph owed Rs. 200/- to one of the accused and was not able to pay back
the money. The accused had called Joseph to the bakery of accused,
wrongfully restrained him and abused him in public. One of the accused
also beat Joseph. Joseph felt insulted. On reaching home, he divulged his
embarrassment to his wife and on the same night, committed suicide by
consuming poison. According to the prosecution, it was because of the
words uttered by the accused persons and the manner in which the
deceased was dealt with by them in public, that the deceased had
committed suicide. The accused were being prosecuted for an offence
punishable under Section 306 of the Indian Penal Code and had approached
the Kerala High Court for quashing the proceedings initiated against them.
The Learned Single Judge ultimately summarized the legal position as
follows :
" 17. From the discussion already made by me, I hold as follows : The
act or conduct of the accused, however, insulting and abusive those
may be, will not by themselves suffice to constitute abetment of
commission of suicide, unless those are reasonably capable of
suggesting that the accused intended by such acts consequence of
suicide. Even if the words uttered by the accused or his conduct in
public are sufficient to demean or humiliate the deceased and even to
drive him to suicide, such acts will not amount to instigation or
abetment of commission of suicide, unless it is established that the
accused intended by his acts, consequence of a suicide. It is not
enough if the acts of the accused cause persuasion in the mind of the
deceased to commit suicide.18. An indirect influence or an oblique impact which the acts or
utterances of the accused caused or created in the mind of the
deceased and which drove him to suicide will not be sufficient to
constitute offence of abetment of suicide. A fatal impulse or an ill-fated thought of the deceased, however unfortunate and touchy it
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20/24 apeal-989-03(206).docmay be, cannot fray the fabric of the provision contained in Section
306 IPC. In short, it is not what the deceased 'felt', but what the
accused 'intended' by his act which is more important in this context."26 In Madan Mohan Singh vs. State of Gujarat 10
appellant before
the Supreme Court was facing prosecution in respect of the offences
punishable including under Section 306 of the IPC. The prosecution against
him had been initiated on the basis of the FIR lodged by one Harshidaben,
widow of Deepakbhai Joshi. The substance of allegation against the accused
was that her husband Deepakbhai was serving as a driver in Ahmedabad
Bharat Sanchar Nigam Ltd., in the Microwave Project Department. He had
undergone bypass surgery and was advised by the doctor to avoid lifting
heavy weights. The accused - Madan Mohan Singh, who was the superior of
Deepakbhai, used to use Deepakbhai to run his private errands and had
been harassing him. Though Madan Mohan Singh was transferred, he kept
on continuously using the services of Deepakbhai. Madan Mohan Singh was
then again transferred in the Microwave Project department. On the very
first day, he told Deepakbhai to keep the keys of the vehicle on the table.
Deepakbhai however, did not listen to him on account of which Madan
Mohan Singh was angry and had threatened him of suspension. He had also
threatened Deepakbhai that if he did not listen to him, he would create
difficulties for him. Madan Mohan Singh had told Deepakbhai, as to how he
was still alive, inspite of the insults. On 21.2.2008, Deepakbhai left his
10 (2010) 8 Supreme Court Cases 628
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21/24 apeal-989-03(206).dochouse as usual, but did not return in the evening. A missing report was
lodged with the police. Ultimately, Deepakbhai's dead body was found lying
in a vehicle. His wife Harshidaben then lodged a report with the police,
alleging that Deepakbhai had been harassed by Madan Mohan Singh and
that he had been insulted in front of the staff several times and because of
that Deepakbhai was depressed and had committed suicide. A suicide note
was allegedly left by the said Deepakbhai, blaming Madan Mohan Singh for
his acts and stating that he was committing suicide due to his functioning
style. Madan Mohan Singh approached the High Court at Gujarat and later
Supreme Court of India for getting the prosecution against him quashed.
Supreme Court of India while quashing the proceedings in question
observed in paragraph 12 as under :
"In order to bring out an offence under Section 306 IPC specific
abetment as contemplated by Section 107 IPC on the part of the
accused with an intention to bring about the suicide of the person
concerned as a result of that abetment is required. The intention of
the accused to aid or to instigate or to abet the deceased to commit
suicide is a must for this particular offence under Section 306 IPC."27 In the judgment in the case of Ramesh Kumar vs. State of
Chhattisgarh11 this Court has considered the scope of Section 306 and the
ingredients which are essential for abetment as set out in Section 107 IPC.
While interpreting the word "instigation", it is held in paragraph 20 as
under:
"20. Instigation is to goad, urge forward, provoke, incite or encourage
11 2001(9) SCC 618
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22/24 apeal-989-03(206).docto 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."28 In paragraph 19 of Shivaji Shitole and Ors. Vs. State of
Maharashtra Anr.12 this court has summed up the legal position on Section
306. Paragraph 19 reads as under:
"19. The legal position that emerges from the above discussion is as
follows : Even if a person would commit suicide because of the
torments of an accused, the accused cannot be said to have abetted
the commission of suicide by the deceased, unless the accused would
intend, while causing torments to the victim/deceased, that he should
commit suicide. Even if the rigour of this proposition is diluted, still,
the least that would be required is, that it should be shown that the
accused could reasonably foresee that because of his conduct, the
victim was almost certain or at least quite likely to commit suicide.
Unless that the victim should commit suicide, is either intended, or
can be reasonably foreseen and expected a person cannot be charged
of having abetted the commission of suicide, even if the suicide has
been committed as a result of some of the acts committed by the
accused. A perusal of the reported judgments show that even in cases
where the accused had uttered the words such as "go and die", in
abusive and humiliating language, which, allegedly, led to the
committing of suicide, it was held that it would not amount to
instigation and that consequently, there would be no offence of
abetment of suicide."29 The courts have held that the evidence must suggest or indicate
that the accused knew or had a reason to believe that deceased would
commit suicide.
30 It is nobody's case that the accused intended Aarifa to commit
suicide. A fatal impulse or an ill-fated thought of the deceased, however
12 2012(3) Bom.C.R. (CRI) 532Meera Jadhav
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23/24 apeal-989-03(206).docunfortunate and touchy it may be, cannot fray the fabric of the provision
contained in Section 306 of IPC. In short, it is not what the deceased 'felt',
but what the accused 'intended' by their act which is more important in this
context.
31 Ms Dabholkar relies upon a judgment of the Apex Court in
State of West Bengal Vs. Orilal Jaiswal Anr13 to submit that there was no
material to show that Aarifa was hypersensitive and/or for other reasons
committed suicide and not on account of cruelty. Therefore, the Trial Court
was not correct in acquitting the accused.
Each case has to be dealt with in its individual facts and
circumstances. Though, Ms Dabholkar stated that the facts in Orilal Jaiswal
(supra) were similar to the case in hand, I do not agree with Ms Dabholkar.
All cases relating to offences under Sections 498A and 306, may look or
sound similar, that does not mean they are even similar. In Orilal Jaiswal
(supra), a newly married girl had committed suicide. The court observed
that a newly married girl would reasonably expect love and affection from
in-laws. She was abused by the mother-in-law that she was a woman of evil
luck to the family because an elderly member in the family died soon after
the marriage. In the case at hand, Aarifa was looked after very well.
Admittedly, atleast for 6 months. On the contrary, Aarifa coming into the
house of the accused also brought good fortune that the daughter of accused
13 (1994) 1 SCC 73
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24/24 apeal-989-03(206).docnos.1 and 2 even got married and that marriage was done with spending lot
of money. In the case at hand, there is absolutely no evidence, except
general statements and what has come in evidence, do not find a mention in
the complaint. Therefore, this judgment is of no assistance to appellant.
32 There is an acquittal and therefore, there is double presumption
in favour of accused. Firstly, the presumption of innocence available to the
accused under the fundamental principle of criminal jurisprudence tha t
every person shall be presumed to be innocent unless they are proved guilty
by a competent court of law. Secondly, accused having secured their
acquittal, the presumption of their innocence is further reinforced,
reaffirmed and strengthened by the trial court. For acquitting accused, the
Sessions Court in Appeal rightly observed that the prosecution had failed to
prove its case.
33 In the circumstances, in my view, the opinion of the Trial Court
cannot be held to be illegal or improper or contrary to law. The order of
acquittal, in my view, need not be interfered with.
34 Appeal dismissed.(K.R. SHRIRAM, J.)
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