Category Archives: 498A & 306

Extra marital by husband NOT cruelty under 498a. Convictions under 306, 498a set aside by Supreme court

Extra marital by husband NOT cruelty under 498a. Convictions under 306, 498a set aside by Supreme court

In this classic but sad case a wife commits suicide suspecting that her husband is having an extra marital affair Unable to bear the stigma, the woman accused as his paramour commits suicide. That woman’s mother and brother too commit suicide ! The man gets charged under sec 306 and Sec 498a of IPC. The Hon Supreme court sets aside both convictions and states “... The concept of mental cruelty depends upon the milieu and the strata from which the persons come from and definitely has an individualistic perception regard being had to one’s endurance and sensitivity. It is difficult to generalize but certainly it can be appreciated in a set of established facts. Extra-marital relationship, per se, or as such would not come within the ambit of Section 498-A IPC. It would be an illegal or immoral act, but other ingredients are to be brought home so that it would constitute a criminal offence. There is no denial of the fact that the cruelty need not be physical but a mental torture or abnormal behaviour that amounts to cruelty or harassment in a given case. It will depend upon the facts of the said case. To explicate, solely because the husband is involved in an extra-marital relationship and there is some suspicion in the mind of wife, that cannot be regarded as mental cruelty which would attract mental cruelty for satisfying the ingredients of Section 306 IPC…..” . “..Consequently, the appeals are allowed. The conviction under Sections 306 and 498-A of the IPC is set aside. …..”

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE  JURISDICTION

CRIMINAL APPEAL  NO(S).   1138-1139        OF 2016
(@ S.L.P. (Crl) Nos.  5928-5929 OF 2016)

K.V. Prakash Babu                                  …     Appellant

VERSUS

State of Karnataka                                 …     Respondent

J U D G M E N T

Dipak Misra, J.

  1. Leave granted.
  2. The instant appeals reveal a factual score that has the potentiality to shock a sensitive mind and a sincere heart, for the materials brought on record show how “suspicion” can corrode the rational perception of value of life and cloud the thought of a wife to such an extent, that would persuade her to commit suicide which entail more deaths, that is, of the alleged paramour, her mother and brother who being not able to emotionally cope up with the social humiliation, extinguish their life-spark; and ultimately the situation ropes in the husband to face the charge for the offences punishable under Sections 302 and 498-A of the Indian Penal Code (IPC) read with Section 3 of the Dowry Prohibition Act, 1961 (‘1961 Act’ for short). As the facts would unveil, the husband gets acquitted for the offence under Section 302 IPC but convicted in respect of other two charges by the trial court. In appeal, his conviction under Section 3 of the 1961 Act is annulled but success does not come in his way as regards the offence under Section 498-A IPC. And the misery does not end there since in the appeal preferred by the State, he is found guilty of the offence under Section 306 IPC and sentenced to suffer four years rigorous imprisonment and to pay a fine of Rs.50,000/- to be given to the father of the victim with a default clause.
  3. In the course of our adumbration and analysis of facts, it will be uncurtained how the seed of suspicion grows enormously and the rumours can bring social dishonor and constrain not-so-thick skinned people who have bound themselves to limitless sorrow by thinking ‘it is best gift of God to man” and choose to walk on the path of deliberate death. A sad incident, and a shocking narrative, but we must say, even at the beginning, the appellant-husband has to be acquitted regard being had to the evidence brought on record and the exposition of law in the field.
  4. The singular issue, as the aforesaid passage would show, that arises for consideration in these appeals, by special leave, that assails the judgment and order dated 13.04.2016 passed by the High Court of Karnataka at Bengaluru in Criminal Appeal No. 655 of 2012 whereby the High Court has allowed the appeal preferred by the State which had called in question the legal acceptability of the judgment and order passed by the learned Additional Sessions Judge, Fast Track Court-III, District Kolar, Karnataka, who vide judgment dated 5.1.2012 had found the appellant guilty of the offences punishable under Section 498-A of the IPC and Section 3 of the 1961 Act and sentenced him to suffer rigorous imprisonment of one year and two years respectively with the default clause. It is apt to note here that the appellant had also preferred Criminal Appeal No. 126 of 2012 wherein the High Court while passing the common judgment has opined that the prosecution has miserably failed to establish the conviction under the 1961 Act. However, as stated earlier, it found the appellant guilty of the offence under Section 306 IPC and the result of such conviction was imposition of four years rigorous imprisonment and fine of Rs. 50,000/- (Rupees fifty thousand only) with the further stipulation that Rs.45,000/- (Rupees forty five thousand only) be paid to the father of the deceased. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  5. The occurrence that led to launching of prosecution is that the marriage between the appellant and the deceased, Anjanamma, was solemenised on 12.10.1997. The appellant, as alleged, got involved with one Deepa, daughter of one Ashwathamma inasmuch as his visit to the house of Ashwathamma was quite frequent. As the prosecution story proceeds, the deceased felt extremely hurt and eventually being unable to withstand the conduct of the husband who was allegedly involved in an extra-marital affair, put an end to her life on 20th August, 2004. An FIR was lodged at the concerned police station by the father of the deceased, which set the criminal law in motion and the investigating officer recorded statement of witnesses under Section 161 of the IPC and after completing the investigation, placed the charge sheet under Sections 201, 302 and 498-A of the IPC and Section 3 of the 1961 Act before the concerned Magistrate who, in turn, committed the matter to the Court of Session. The accused abjured his guilt and expressed his intention to face trial, advancing the plea of denial and false implication. In order to establish the charges, the prosecution examined 31 witnesses in all. The defence chose not to adduce any evidence. The main witnesses are father of the deceased, PW-1 and the neighbours who have deposed about the extra- marital affair of the husband and the death of the deceased.
  6. As we have already stated about the conviction and the punishment, the same need not be stated in detail. There is no dispute that the learned trial judge as well as the High Court has not found the appellant guilty of the offence punishable under Section 302 of the IPC. The High Court has also arrived at the conclusion after detailed deliberation that the prosecution has not been able to establish the offence under Section 3 of the 1961 Act. However, it has found the appellant guilty of the offence under Sections 498-A and 306 of the IPC.
  7. It is submitted by Mr. S.R. Singh, learned senior counsel that the High Court has completely erred in appreciating the evidence to sustain the conviction under Section 498-A inasmuch as there is no material whatsoever with regard to demand of dowry or any kind of torture. According to Mr. Singh, the High Court has applied the second limb of Section 498-A IPC on the foundation that the involvement of the husband in extra-marital affair established cruelty under the said provision and, therefore, it would be an offence under Section 306 of the IPC which is contrary to the pronouncements of this Court.
  8. Mr. V.N. Raghupathy, learned counsel appearing for the State had supported the judgment and order passed by the High Court by placing reliance on the analysis of the various facets and the scrutiny and scanning of the evidence of the prosecution witnesses including that of the father, the neighbours and the investigating officer.
  9. To appreciate the submissions raised at the Bar, we have bestowed our anxious consideration and carefully examined the decision rendered by the trial court and that of the High Court. On a studied scrutiny of the evidence, it is demonstratable that the father of the deceased in his deposition has not stated anything with regard to any kind of cruelty meted out to the deceased except stating that she quite often complained to the parents about the visit of the appellant to the house of Ashwathamma and that she had suspicion against her husband that he was going to have a second marriage. The other witnesses including the investigating officer have deposed that there was discussion in the locality about the illicit connection of the appellant with one lady at Chelur Village. Barring the aforesaid, there is no whisper with regard to any kind of ill-treatment or cruel behaviour by the husband.
  10. In view of the aforesaid evidence, the question that emerges for consideration is whether the conviction under Section 498A and 306 IPC is legally justiciable in this context. We think it appropriate to refer to Section 498A of the IPC. The said provision reads as follows:-
    • 498-A. HUSBAND OR RELATIVE OF HUSBAND OF A WOMAN SUBJECTING HER TO CRUELTY:
    • Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
    • Explanation: For the purposes of this section, “cruelty” means
    • (a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
    • (b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand”
  11. The said provision came up for consideration in Giridhar Shankar Tawade vs. State of Maharashtra[1], where the Court dwelling upon the scope and purport of Section 498-A IPC has held thus:- “The basic purport of the statutory provision is to avoid ‘cruelty’ which stands defined by attributing a specific statutory meaning attached thereto as noticed herein before. Two specific instances have been taken note of in order to ascribe a meaning to the word ‘cruelty’ as is expressed by the legislatures : Whereas explanation (a) involves three specific situations viz., (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury : whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrance the attributes of ‘cruelty’ in terms of Section 498-A.” [emphasis added]
  12. In Gurnaib Singh v. State of Punjab[2], while dwelling upon the concept of ‘cruelty’ enshrined under Section 498-A the Court has opined thus:-“Clause (a) of the Explanation to the aforesaid provision defines “cruelty” to mean “any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide”. Clause (b) of the Explanation pertains to unlawful demand. Clause (a) can take in its ambit mental cruelty.”
  13. The aforesaid analysis of the provision clearly spells how coercive harassment can have the attributes of cruelty that would meet the criterion as conceived of under Section 498-A of the IPC. Thus, the emphasis is on any wilful conduct which is of such a nature that is likely to drive the woman to commit suicide. The mental cruelty which is engraved in the first limb of Section 498-A of the IPC has nothing to do with the demand of dowry. It is associated with mental cruelty that can drive a woman to commit suicide and dependent upon the conduct of the person concerned.
  14. In this regard, Mr. Singh has drawn our attention to the authority in Pinakin Mahipatray Rawal v. State of Gujarat[3]. In the said case, the Court was dealing with as to whether relationship between the appellant and the second accused therein was extra-marital leading to cruelty within the meaning of Section 498-A IPC and whether that would amount to abetment leading to the act of suicide within the meaning of Section 306 IPC. Dealing with the extra-marital relationship, the Court has opined that marital relationship means the legally protected marital interest of one spouse to another which include marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their up-bringing, services in the home, support, affection, love, liking and so on, but extra-marital relationship as such is not defined in the IPC. The Court analyzing further in the context of Section 498A observed that the mere fact that the husband has developed some intimacy with another woman, during the subsistence of marriage and failed to discharge his marital obligations, as such would not amount to “cruelty”, but it must be of such a nature as is likely to drive the spouse to commit suicide to fall within the explanation to Section 498A IPC. The Court further elucidated that harassment need not be in the form of physical assault and even mental harassment also would come within the purview of Section 498A IPC. Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree of endurance, some may meet with courage and some others suffer in silence, to some it may be unbearable and a weak person may think of ending one’s life. The Court ruled that in the facts of the said case the alleged extra-marital relationship was not of such a nature as to drive the wife to commit suicide. The two-Judge Bench further opined that:- “Section 306 refers to abetment of suicide which says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. The Prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extra marital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide.” [emphasis added]
  15. Slightly recently in Ghusabhai Raisangbhai Chorasiya v. State of Gujarat[4], the Court perusing the material on record opined that even if the illicit relationship is proven, unless some other acceptable evidence is brought on record to establish such high degree of mental cruelty the explanation (a) to Section 498-A of the IPC which includes cruelty to drive the woman to commit suicide, would not be attracted. The relevant passage from the said authority is reproduced below:- “True it is, there is some evidence about the illicit relationship and even if the same is proven, we are of the considered opinion that cruelty, as envisaged under the first limb of Section 498A IPC would not get attracted. It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide. Mere extra-marital relationship, even if proved, would be illegal and immoral, as has been said in Pinakin Mahipatray Rawal (supra), but it would take a different character if the prosecution brings some evidence on record to show that the accused had conducted in such a manner to drive the wife to commit suicide. In the instant case, the accused may have been involved in an illicit relationship with the appellant no.4, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, the Explanation to Section 498-A which includes cruelty to drive a woman to commit suicide, would not be attracted.”
  16. The concept of mental cruelty depends upon the milieu and the strata from which the persons come from and definitely has an individualistic perception regard being had to one’s endurance and sensitivity. It is difficult to generalize but certainly it can be appreciated in a set of established facts. Extra-marital relationship, per se, or as such would not come within the ambit of Section 498-A IPC. It would be an illegal or immoral act, but other ingredients are to be brought home so that it would constitute a criminal offence. There is no denial of the fact that the cruelty need not be physical but a mental torture or abnormal behaviour that amounts to cruelty or harassment in a given case. It will depend upon the facts of the said case. To explicate, solely because the husband is involved in an extra-marital relationship and there is some suspicion in the mind of wife, that cannot be regarded as mental cruelty which would attract mental cruelty for satisfying the ingredients of Section 306 IPC. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  17. We are absolutely conscious about the presumption engrafted under Section 113-A of the Evidence Act. The said provision enables the Court to draw presumption in a particular fact situation when necessary ingredients in order to attract the provision are established. In this regard, we may reproduce a passage from Pinakin Mahipatray Rawal (supra):- “Criminal law amendment and the rule of procedure was necessitated so as to meet the social challenge of saving the married woman from being ill- treated or forcing to commit suicide by the husband or his relatives, demanding dowry. Legislative mandate of the section is that when a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty as per the terms defined in Section 498-A IPC, the court may presume having regard to all other circumstances of the case that such suicide has been abetted by the husband or such person. Though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under Section 498-A IPC is on the prosecution.” We have reproduced the aforesaid passage only to highlight that the Court can take aid of the principles of the statutory presumption.
  18. In the instant case, as the evidence would limpidly show, the wife developed a sense of suspicion that her husband was going to the house of Ashwathamma in Village Chelur where he got involved with Deepa, the daughter of Ashwathamma. It has come on record through various witnesses that the people talked in the locality with regard to the involvement of the appellant with Deepa. It needs to be noted that Deepa, being not able to digest the humiliation, committed suicide. The mother and the brother of Deepa paved the same path. In such a situation, it is extremely difficult to hold that the prosecution has established the charge under Section 498A and the fact that the said cruelty induced the wife to commit suicide. It is manifest that the wife was guided by the rumour that aggravated her suspicion which has no boundary. The seed of suspicion planted in mind brought the eventual tragedy. But such an event will not constitute the offence or establish the guilt of the accused-appellant under Section 306 of the IPC.
  19. Having said that we intend to make it clear that if the husband gets involved in an extra-marital affair that may not in all circumstances invite conviction under Section 306 of the IPC but definitely that can be a ground for divorce or other reliefs in a matrimonial dispute under other enactments. And we so clarify.
  20. Consequently, the appeals are allowed. The conviction under Sections 306 and 498-A of the IPC is set aside. The appellant be set at liberty unless his detention is required in connection with any other case.

………………..……………..J. (DIPAK MISRA)

………………..……………..J. (AMITAVA ROY)

New Delhi

November 22, 2016

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ITEM NO.4              COURT NO.3               SECTION IIC

S U P R E M E  C O U R T  O F  I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 5928-5929/2016 (Arising out of impugned final judgment and order dated 13/04/2016 in CRLA No. 126/2012 13/04/2016 in CRLA No. 655/2012 passed by the High Court Of Karnataka At Bangalore) K.V. PRAKASH BABU Petitioner(s) VERSUS STATE OF KARNATAKA Respondent(s) (with appln. (s) for bail and exemption from filing O.T. and office report) Date : 22/11/2016 These petitions were called on for hearing today.

CORAM :

HON’BLE MR. JUSTICE DIPAK MISRA HON’BLE MR. JUSTICE AMITAVA ROY For Petitioner(s) Mr. S.R. Singh, Sr. Adv.

Mr.Anurag Thomas, Adv.

Mr. B. Vishwanath Bhandarkar, Adv.

Mr. H.K. Naik, Adv.

Mr. Karunakar Mahalik,Adv.

For Respondent(s) Mr. V. N. Raghupathy,Adv.

UPON hearing the counsel the Court made the following O R D E R Leave granted.

Consequently, the appeals are allowed. The conviction under Sections 306 and 498-A of the IPC is set aside. The appellant be set at liberty unless his detention is required in connection with any other case.

|   (NEELAM GULATI)                |          (H.S. PARASHER)          |
|COURT MASTER                      |COURT MASTER                       |

(Signed Reportable Judgment is placed on the file)


[1]
(2002) 5 SCC 177
[2]    (2013) 7 SCC 108
[3]     (2013) 10 SCC 48
[4]     (2015) 11 SCC 753

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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


Deserting 498A working wife looses right 2 enhanced maintenance. ALL Criminal cases quashed. Super Patna HC order

A 498a filing wife who treated her husband cruelly and deserted her husband with two small kids, tries to enhance the monthly maintenance. Patna HC sees thru her game and denies her any enhancement. It ALSO quashes ALL criminal cases filed by her !!

  • Wife leaves husband and two very small children. Leaves matri home in the middle of the night. Does NOT take any steps for kid’s custody
  • She is employed in a beauty parlor and earning * Her father owns a palatial house
  • On the other hand, husband is maintaining the kids and is providing best education for them
  • couple are divorced as lower court sees the wife’s desertion and cruelty,
  • wife tries to enhance her maintenance to Rs 15000 p.m.
  • Patna HC seeks her cruelty and desertion and refuses to enhance her maintenance
  • Patna HC also orders that “…all criminal cases as between the parties arising out of matrimonial alliance would stand terminated/ quashed, so that the parties are free from any further relationship or harassment….”

This is an excellent judgment that should be used by harassed husbands

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IN THE HIGH COURT OF JUDICATURE AT PATNA

Miscellaneous Appeal No.528 of 2012

Rajiv Roshan, S/O Sri Nand Kishore Lal, R/O Lal Kothi, Tripolia Gate, P.S.- Alamganj, Distt-Patna …. …. Appellant/s

Versus

Sarika, D/O Shri Ishwar Chandra Prasad, W/O Sri Rajiv Roshan, R/O Talabpar, Near Bus Stand, Nasriganj, Distt-Rohtas …. …. Respondent/s

With

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Miscellaneous Appeal No. 204 of 2013

Sarika, D/O Shri Ishwar Chand Prasad, W/O Sri Rajiv Roshan, R/O Talabper, Near Bus Stand, Nasariganj, Distt-Sasaram …. …. Appellant/s

Versus

Rajiv Roshan, S/O Sri Nand Kishore Lal, R/O Lal Kothi, Tirpolia Ghat, P.S.- Alamganj, Distt-Patna …. …. Respondent/s

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Appearance :
(In MA No.528 of 2012)
For the Appellant : Mr. D.K. Sinha, Sr. Advocate Mr. Abhinay Raj, Advocate
For the Respondent : Mr. Md. Khurshid Alam, Advocate

(In MA No.204 of 2013)
For the Appellant : Mr. Md. Khurshid Alam, Advocate
For the Respondent : Mr. D.K. Sinha, Sr. Advocate Mr. Abhinay Raj, Advocate

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CORAM: HONOURABLE MR JUSTICE NAVANITI PRASAD SINGH and HONOURABLE JUSTICE SMT. NILU AGRAWAL

C.A.V. JUDGMENT

(Per: HONOURABLE JUSTICE SMT. NILU AGRAWAL)

Date: 06-10-2016

  1. The two miscellaneous appeal being M.A. No. 528 of 2012 (Rajiv Roshan Vs. Sarika) and M.A. No. 204 of 2013 (Sarika Vs. Rajiv Roshan) arise out of judgment and decree dated 28.04.2012, passed by Addl. Principal Judge, Family Court, Patna Patna High Court MA No.528 of 2012 dt.03-10-2016 in Matrimonial Case No. 242 of 2004 by which divorce petition filed by the husband against his wife has been decreed, marriage was dissolved and the divorce granted with direction to the husband to pay Rs. 6,000/- per month as permanent alimony to the wife till her remarriage.
  2. Heard the counsel appearing on behalf of the husband Rajiv Roshan and wife Sarika in both cases and with their consent both the appeals are heard together and being disposed of.
  3. Husband, Rajiv Roshan had filed Matrimonial Case No. 242 of 2004 seeking decree of divorce against his wife Sarika, stating that the marriage between them was solemnized on 04.05.1997 as per Hindu customs and rites. Out of the wedlock one son Arnav was born on 25.01.1998 and another son Pranav was born on 09.12.2000 and from the very beginning the behaviour of the wife was not cordial, hence, divorce was sought on the ground of cruelty. The husband found it very difficult to live with the wife, and the wife on 08.06.2004 (which the wife alleges to be 09.07.2004) left the matrimonial house and the two sons and went alone to her Naihar. The wife appeared before the court below and stated that she led a good conjugal life and it was the husband who was cruel and thrashed her and kept the two children and also demanded dowry for which Complaint Patna High Court MA No.528 of 2012 dt.03-10-2016 Case No. 3235(C)/2008 under Section 498-A of the Indian Penal Code has been filed by the wife.
  4. Wife Sarika has also preferred M.A. No.204 of 2013 arises out of the order passed in Matrimonial Case No. 242 of 2004 for enhancement of alimony from Rs. 6000/- to Rs. 15,000/- per month till her remarriage so that she may maintain herself properly but has not disputed the decree of divorce. She has also demanded jewellery including 25 bhari gold and Rs. 2 lakhs given in her marriage which the husband has withheld.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  5. The learned court below came to a finding that the act of the wife leaving the matrimonial house in the night and did not take any legal step for custody of her two sons since 2004 shows her lack of love and affection towards her children, who were very small at that time, and also her behaviour was cruel towards her husband, hence, factum of cruelty was established against the wife and hence decree of divorce granted.
  6. It may be noted that by an interim order the learned court below had granted maintenance of Rs. 7,000/- per month. This was challenged by the husband before this Court in C.W.J.C. No. 3863 of 2010 and the interim maintenance of Rs. 7,000/- was reduced to Rs. 3,000/- per month by order dated 30.03.2010 passed by this Court while issuing notice to the wife. Patna High Court MA No.528 of 2012 dt.03-10-2016 However, the said writ petition was disposed of on 05.01.2012. The interim maintenance of Rs. 3,000/- was directed to be continued till final order passed in Matrimonial Case No. 242 of 2004 by the court below. In the final order permanent alimony has been fixed at Rs. 6,000/- to be paid to the wife by the husband till remarriage of the wife, while granting decree of divorce.
  7. The wife although has not challenged the decree of divorce but seeks enhancement of permanent alimony to Rs. 15,000/- per month till her remarriage as well as the ornaments and cash given at the time of marriage. It has been submitted by learned counsel for the wife, Md. Khurshid Alam, that the family of the husband has a palatial house over 5.5 kathas of land and all the four brothers of the husband including the husband are living jointly. The husband also has 5 kathas of agricultural land and one shop from which he gets monthly rent of Rs. 4,000/- and also stated that the husband has a wholesale business of medicine in the name and style of Rap India and Roshan Surgico, hence, seeks maintenance as per status of her husband under Section 25 of the Hindu Marriage Act, 1955.
  8. However, learned Senior Counsel Sri D.K. Sinha for the husband Rajiv Roshan, in his reply submitted that the two sons born in the year 1998 and 2000 are living with him and Patna High Court MA No.528 of 2012 dt.03-10-2016 they are pursuing their studies in the best schools of Patna, namely, St. Michael High School, Digha, Patna and St. Xavier High School, West Gandhi Maidan, Patna in Class XII and VIII respectively. He submits that he has no medicine business and is just a salesman in medicine shop and gets Rs. 3,000/- per month and monthly rent of Rs. 2,000/- and has to look after the two sons and pay a huge amount of money more than two lakhs per year, for their education. It has also been submitted that the wife is the owner of a beauty parlour in the name and style of “Care and Glow” and is earning a very high income and some of her employees are getting Rs. 15,000/- per month from the said beauty parlour. In fact, the father of the wife has a palatial house at Nasriganj, Rohtas as well as an old mill at Delha Par, Gaya having two acres of land apart from 50 acres of agricultural land near Nasriganj, Rohtas. He also submits that the wife has filed a complaint case under Section 498-A of the I.P.C., Maintenance Case No. 102/2015, which is pending in the Family Court at Ranchi and Guardianship Case No. 31/2012, which is pending before the learned Principal Judge, Family Court, Patna. He, thus, submits that he has very little income and with that he has to provide maintenance and studies of the two sons who are growing up.
  9. From the facts aforesaid, it emerges that the father of the wife has a palatial house and substantial agricultural lands and if not as the owner she has admitted that she is working in the beauty parlour receiving income. The husband, on the other hand, is looking after the children maintaining them, who are pursuing their studies and has only a house where the joint family lives and some salary as well as rent.
  10. The finding of the trial Court on the aspect of divorce is not challenged by the wife. She abandoned the matrimonial house and her small children in 2004 never to return. She never claimed custody of her children nor she ever tried to meet them although guardianship case has been filed much after in 2012. Cruelty is not challenged. She is a working lady herself.
  11. The wife has not been living with her husband since 2004 and not having challenged the divorce, the decree of divorce is upheld. The two sons are living with their father who is providing the best of education to them in a reputed school at Patna. The wife even if not owner of beauty parlour but admits that she is a working lady. She has abandoned her two sons long back and had taken no steps for their custody since 2004 although a guardianship case has been filed recently in 2012.
  12. Considering the aforesaid facts, since the Patna High Court MA No.528 of 2012 dt.03-10-2016 husband has means to provide the best of education to the sons incurring huge amount of money as stated by the husband himself and that the wife is a working lady, the order dated 28.04.2012 passed by Additional Principal Judge, Family Court, Patna in Matrimonial Case No. 242 of 2004 requires no interference.
  13. It is also made clear that all criminal cases as between the parties arising out of matrimonial alliance would stand terminated/ quashed, so that the parties are free from any further relationship or harassment.
  14. In the result, both the appeals are dismissed and the order passed by the Additional Principal Judge, Family Court, Patna in Matrimonial Case No. 242 of 2004 dated 28.04.2012 is upheld.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick  

     

    (Nilu Agrawal, J.)

    Navaniti Prasad Singh, J.

    I agree

    (Navaniti Prasad Singh, J.)

    Rajesh/-

    AFR/NAFR       AFR

    CAV DATE 05.09.2016

    Uploading Date 06.10.2016

    Transmission Date

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


No dowry or cruelty soon b4 wife’s death! No evidence except bald statements! ALL acquitted in 306, 304B, 498A. Raj HC

Sad story of how a husband is acquitted 21 years AFTER the death of his wife. The Hon. HC scrutinizes the evidence and notices that there is NO evidence to prove either dowry demand or cruelty linking to the death !!

#SoonBeforeDeath #ProsecutionToProve #Cruelty_SoonBeforeDeath #soon_before_death_304B_(1)_of_IPC #acquittal #acquittalIn304B

The Honourable HC appreciates states “….. On an overall analysis of the entire sequence of events, … it is apparent that prosecution has failed to produce/bring on record any evidence indicating specific demand of dowry soon before the death of Vimla. In fact, in the entire statements of the above three witnesses, except for the statement that there is no custom of giving dowry in their community, there is no reference of the word dowry in their statements!!….”

“…Further, the few allegations which have been made pertaining to alleged ill treatment by father-in-law and mother-in-law like not giving food to Vimla, those allegations specifically pertains to the period immediately after the birth of first child, after first year of marriage and, thereafter, there is specific evidence regarding the fact that Ramesh thereafter took Vimla to Bombay and at Bombay they were living peacefully…..”

“…In those circumstances, apparently, it cannot be said from the evidence available on record that there was any demand of dowry on the part of the appellant Ramesh Kumar. So far as the allegation about beating being given by the appellant and father-in-law and mother-in-law to the deceased Vimla are concerned, the statements are too general and non-specific …”

“….As discussed extensively, there is no evidence available on record about any ill treatment/harassment by appellant except for bald statements about his giving beating to deceased Vimla. As already noticed the evidence only points to some such incident by the father-in-law/mother-in-law for which also there is no reference in Ex.P/5 and, therefore, there is no iota of evidence regarding abetment to suicide as well….”

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
J U D G M E N T :

S.B.CRIMINAL APPEAL NO. 221/1997

Ramesh Kumar
vs.
State of Rajasthan

DATE OF ORDER : 12th July, 2016

P R E S E N T
HON’BLE MR.JUSTICE ARUN BHANSALI

Mr.Suresh Kumbhat, for the appellant.
Mr. Arjun Singh, Public Prosecutor.

BY THE COURT:

This appeal is directed against the judgment dated 28/4/1997 passed by the Addl. Sessions Judge, Bali in Sessions Case No.54/95, whereby, the appellant Ramesh Kumar has been convicted for the offence under Sections 498A, 304B and 306 IPC and has been senteced to imprisonment as under:

U/s 498A IPC : 3 years R.I., Rs.1000/- fine, in default 3 months R.I.
U/s 304B IPC : 7 Years R.I., Rs.5000/- fine, in default 6 months R.I.
U/s 306 IPC : 7 Years R.I., Rs.500/- fine, in default 6 months R.I.
All the sentences have been ordered to run concurrently.
By the said judgment, other two accused Shanker Lal and Nopi Bai, parents of appellant Ramesh Kumar, were acquitted.

The brief facts of the case are that on 19/6/1995, Shanker Lal, father of the appellant, lodged an FIR indicating therein that his son Ramesh Kumar (Appellant) was married to Vimla 05 years ago; they are having one daughter Mamta aged about 2 years and a son Ravi aged about 06 months; at about 8.00 am on the said day Ramesh Kumar, his wife Vimla and other family members went to plough the field; at about 10.30 am his son Pratap informed him that he went to the well to start the pump, the pump did not start and Pratap found that one `odna’ (shorter version of saree) was lying near the motor; Pratap went to the well and Ramesh Kumar and Phoola Ram also came to the well and saw that clothes of woman were lying there; they went back to the house to search Ramesh’s wife and children but they were not found; Ramesh Kumar and Phoola Ram informed Pratap that about 10.00 am Vimla told that she is going to give milk to her children and Vimla along with Mamta & Ravi fell into the well.

On the said report proceedings under Section 174 Cr.P.C. were initiated by SDM, Bali and after investigation they lodged FIR under Section 498A and 304B IPC and after investigation challan was filed against appellant Ramesh Kumar, his father Shanker Lal and mother Nopi Bai. After trial, Shanker Lal and Nopi Bai were acquitted and appellant Ramesh Kumar was convicted and sentenced in the manner indicated hereinbefore.

On behalf of the prosecution, 17 witnesses were examined, whereafter, statement of accused under Section 313 Cr.P.C. was recorded; on behalf of the prosecution documents Ex.P/1 to P/32 were produced and defence produced the statement of Smt. Kastu as D-1.

While P.W.4 to P.W.12 were declared hostile, the trial court based on the statements of P.W.1 to P.W.3, Shesha Ram-brother, Mangi Lalfather and Smt. Kastumother, though brother and father during the course of their statement were also declared hostile, and based on the evidence available on record convicted the appellant for the offences under Sections 306 and 498A and 304B IPC with the aid of Section 113A & 113B of the Evidence Act, 1872. The other accused Shanker lal and Nopi Bai were acquitted, as noticed hereinbefore.

It is submitted by the learned counsel for the appellant that a bare perusal of the entire sequence of events as brought on record by the prosecution would clearly show that the prosecution has failed to bring home the charges against the appellant and, therefore, the judgment impugned deserves to be set aside. It is submitted that there is no evidence worth the name regarding the appellant seeking dowry and, therefore, the conviction under Section 498A and 304B cannot be sustained. With reference to the letters Ex.P/2, Ex.P/3 and Ex.P/4 it was submitted that the letters, even if taken as proved, were written between the period 13/4/1993 and 03/07/1993 and the incident has happened on 19/6/1995 i.e. almost after two years and, therefore, the ingredients of Section 304B regarding ‘demand of dowry soon before death’ is totally missing. It was further submitted that a bare reading of the letters would indicate that the same are nowhere connected with the demand of dowry but infact pertain to the amount which was lying with the appellant’s father-in-law along with some more amount as loan and, therefore, from the very nature of the said documents, it cannot be said that any dowry was ever demanded by the appellant. With reference to the statement of Shesha Ram and Mangi Lal, brother and father of deceased Vimla, it was submitted that from both the statements it is ex facie clear that the appellant did not demand any dowry and, therefore, the conviction of the appellant deserves to be set aside.

With reference to the conviction under Section 306 IPC it was submitted that the entire statements of Mangi Lal and Kastu, father and mother of deceased Vimla, clearly indicate about some dissatisfaction from the mother-in-law only and there is no reference whatsoever regarding any dissatisfaction/dispute with the appellant and, therefore, the appellant could not have been convicted for abetment of suicide by deceased Vimla and, therefore, the judgment deserves to be quashed and set aside. It was also submitted that the documents Ex.P/2 to Ex.P/5 which have formed the basis for conviction are full of overwriting, wherein, the Investigating Officer P.W.16 has indicated that he did not get examined said documents and that overwriting in said letters was apparent and, therefore, said documents could not have been relied on by the prosecution.

Reliance was placed on Harpal Singh vs. State of Rajasthan : 2004 (2) R.Cr.D 274, Devender Singh vs. State of Haryana : 2007 (1) Crimes 228 (SC), Manoj Kumar vs. State of Rajasthan : 2008 (1) Cr. L.R.(Raj.) 865, Vikram Singh vs. State of Rajasthan : 2007 (1) Current Judgments (Raj.) Criminal 295, Indrajit Sureshprasad Bind & Ors. vs. State of Gujarat : 2013 Cr.L.R.(SC) 403 and Bakshish Ram & anr. vs. State of Punjab : 2013 Cr.L.R.(SC) 753.

Learned Public Prosecutor vehemently opposed the submissions made by the counsel for the appellant. It was submitted that from the material available on record it is proved beyond reasonable doubt that deceased Vimla along with her two minor children, Mamta and Ravi, committed suicide on account of demand of dowry by the appellant and, therefore, his conviction is justified and the judgment of the trial court does not call for any interference.

I have considered the submissions made by the learned counsel for the parties and have perused the material available on record.

The ingredients of offence under Section 304B IPC pertaining to dowry death, which has got implication in the present case are death of a woman within seven years of marriage otherwise than under normal circumstances, woman being subjected to cruelty and harassment soon before her death in connection with any demand of dowry. Further, Section 113A of the Evidence Act provides for presumption as to abetment of suicide by a married woman in case it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or relatives of her husband had subjected her to cruelty and Section 113B of the Act provides for presumption as to dowry death if it is shown that soon before the death of a woman she was subject by such persons to cruelty and harassment for or in connection with demand of dowry.

A scanning of the evidence available on record indicates that P.W.1 Shesha Ram, brother of deceased Vimla, stated that his uncle Mangi Lal was in service at Bombay; Ramesh was in service at Bhiwandi; he was not aware about the nature of relation between Vimla and her husband as he used to come to the village once in a year; once or twice Vimla told him at Sadri that Ramesh used to give her beating. The said witness then referred to an incident of some Sunday regarding which he did not indicate any date or period and stated that he along with Puna Ram, Durga Ram and his uncle Mangi Lal went to Bhiwandi to meet Ramesh, where Ramesh sought monetary help from his uncle and offered to pay interest; his uncle told Ramesh that as he is in service he did not have the money; Ramesh had asked for Rs.50,000/-. Witness concluded his statement qua the said visit by indicating that that was the conversation which took place between Ramesh and Mangi Lal and there was no other discussion and then stated that Ramesh told his uncle that he will have to give the amount under any circumstance, whereafter, the said witness was declared hostile and was cross examined by Assistant Public Prosecutor, wherein, he exhibited his statement during police investigation as Ex.1. In cross examination by the counsel for the accused, he stated that Vimla told him 6-7 times about beating and as to when Vimla told him about the said aspect he was not aware of the year and time and reiterated that he used to visit village once in a year. When the witness was asked about other details qua Vimla as to birth of her children, he expressed ignorance. On further cross examination regarding the location of Ramesh’s room at Bhiwandi, he expressed ignorance and with regard to his visit he stated that Ramesh and Vimla were sitting happily. He expressed ignorance about Ramesh lending some money to Mangi Lal. Said statement of P.W.1 Shesha Ram is full of contradictions as noticed hereinbefore, he started with the fact that he met Vimla once or twice in Sadri when she informed about beating given by Ramesh, however, in the cross examination he claimed that Vimla told him 6-7 times regarding beating given to her. The said witness is cousin brother of deceased Vimla and is totally unaware of her family circumstances i.e. birth of her children and in those circumstances, the communication between Shehsa Ram and Vimla regarding her personal affairs, when admittedly Shesha Ram visited his village only once in a year from Bombay, specially in view of rural background of the parties involved, appears to be wholly improbable. The witness even qua the meeting indicated that Ramesh asked for monetary help and also offered to pay interest on the said amount, however, nowhere the witness has indicated anything about the point of time, not even the year has been indicated as to when the said incident regarding their visit to Bhiwandi happened, as such, it cannot be said that the alleged demand could be termed as demand for dowry.

Mangi Lal, P.W.2, father of deceased Vimla, indicated that relations between Ramesh and Vimla were (??? ???) normal. Ramesh used to serve at Bombay and Vimla was living at Bali. He alleged that Vimla was living at Bali peacefully for 12 months, whereafter, her in-laws stopped giving food to her. He stated that Ramesh Kumar wrote letters to him demanding Rs.2 lacs, which were handed over to Police and marked as Ex.P/2, Ex.P/3 and Ex.P/4. He also exhibited a letter written by Vimla to the community as Ex.P/5. He also stated that he met Vimla at Bombay, where she stated that everything was peaceful and she has no problem; Ramesh used to ask for Rs.2 lacs sometimes and Rs.35,000/- sometimes. When he stated that father-in-law and mother-in-law of Vimla & her husband forced her to commit suicide, he was declared hostile and was cross examined by Assistant Public Prosecutor, wherein, he exhibited his statement during investigation as Ex.P/6 and admitted the production of letters Ex.P/2, Ex.P/3, Ex.P/4 and Ex.P/5. In cross examination by the counsel for the accused, most of the allegations pertain to father-in-law and mother-in-law. A look at the statement indicates prodution of letters Ex.P/2, Ex.P/3, Ex.P/4 and Ex.P/5, making statement about demand of Rs.2 lacs and sketchy allegations only pertain to in-laws and not against appellant Ramesh Kumar.

A look at the letters Ex.P/2, Ex.P/3 and Ex.P/4 reveals that while Ex.P/2 is dated 13/4/1993 indicating that Ramesh was not well and that Mangi Lal should come with Rs.2 lacs for treatment and if he does not turn up then they should deem that their son-in-law is no more. The Investigating Officer qua the said letter indicated that there may be interpolation with the figures. The document Ex.P/3 dated 15/6/1993 is a piece of paper, wherein, it is indicated that please pay Rs.2 lacs to Phoola Ram, qua the said piece of paper also the Investigating Officer stated likelihood of interpolation in the figures, which is apparent from the bare look at the said exhibit. The third document is a letter dated 3/7/1993 (Ex.P/4), wherein, it is indicated that Mangi Lal should repay Rs.25,000/- given by Ramesh along with Rs.10,000/-, in total Rs.35,000/- by way of draft. It was indicated that the amount was paid by him two years back and, therefore, he can also lend and that amount would be returned back with interest. The document Ex.P/5 is a Note dated 29/11/1993 written by Vimla addressed to Panchas indicating that she was at her parents home for six months and there should be some settlement. Further reference was made that nobody has turned up from her in-laws to take her back and that she does not want to go back to her in-laws place. In his statement, Mangi Lal made bald statement about demand of Rs.2 lacs by appellant Ramesh and produced document Ex.P/2 to Ex.P/5 for supporting the said contention. However, a bare look at the said documents, as noticed hereinbefore, would indicate that besides the fact that there are apparent interpolations in the figures, from none of the communication it can be deciphered as to demand was in relation to dowry by appellant Ramesh Kumar. On the other hand, the letter Ex.P/4 indicates calling for return of the amount paid by Ramesh Kumar to Mangi Lal and offering interest on the additional amount requested by him. The said document, conclusively indicates that other communications Ex.P/2 & Ex.P/3, apparently cannot be termed as any demand for dowry. Further the indication by the father Mangi Lal regarding his daughter living peacefully at Bombay when he met her, also clearly indicates that in so far as appellant was concerned, there was apparently no dispute between the husband and the wife. The letter/representation dated 29/11/1993 (Ex.P/5) said to have been written by Vimla also does not indicate any demand of dowry from any quarter and only a grievance has been made that her in-laws were not taking her back from her parents’ house.

In view thereof, from the documents produced by Mangi Lal P.W.2 and from his statement also, nothing has emerged so as to bring home the allegations/charge against the appellant Ramesh Kumar.

P.W.3 Kastu,who is mother of deceased indicated that the first child was born to Vimla after about one year of her marriage; the relations of Vimla with her in-laws were normal when she ws sent back after delivery; thereafter, her father-in-law and mother-in-law used to quarrel with her and used to give her beating and would not give food to her. She made reference to communication made to Panchas of the Samaj regarding dispute after Vimla came to Sadri (parental home); Ramesh Kumar had written 2-3 letters, however, she was not aware of the contents thereof and her husband informed her that Ramesh was demanding amount of money, whereafter, Ramesh took Vimla to Bali and from there to Bombay. She alleged that husband of Vimla and her father-in-law and mother-in-law used to give beating and used to demand money. In cross examination she stated that Vimla returned from Bombay to Bali and she did not indicate anything about beating being given to her. She stated about beating given by mother-in-law when Ramesh was at Bombay; Ramesh took Vimla to Bombay where she remained for about 1 -2 years and a son was born to her at Bombay. A bare look at the said statement of Kastu, it can be deciphered that she made reference about relations being normal till the birth of first child and thereafter, when Vimla went to her in-laws place there was some dispute and when she returned back to her parental house and remained there for six months. Thereafter, Ramesh took her back and from there they went to Bombay and stayed at Bombay for over two years and relations were normal inasmuch as Vimla gave birth to her second child at Bombay i.e. place of her husband and whereafter, the incident has happened. The letters which have been written over a period of seven months during the period 3.4.1993 to 29.11.1993, pertain to the period when Vimla was at her parental home. Besides above, there is no other evidence as all other witnesses i.e. P.W.4 to P.W.12 have been declared hostile and P.W.13 to P.W.17 are official witnesses.

On an overall analysis of the entire sequence of events, as noticed hereinbefore, it is apparent that prosecution has failed to produce/bring on record any evidence indicating specific demand of dowry soon before the death of Vimla. In fact, in the entire statements of the above three witnesses, except for the statement that there is no custom of giving dowry in their community, there is no reference of the word dowry in their statements. Further, the few allegations which have been made pertaining to alleged ill treatment by father-in-law and mother-in-law like not giving food to Vimla, those allegations specifically pertains to the period immediately after the birth of first child, after first year of marriage and, thereafter, there is specific evidence regarding the fact that Ramesh thereafter took Vimla to Bombay and at Bombay they were living peacefully.

In those circumstances, apparently, it cannot be said from the evidence available on record that there was any demand of dowry on the part of the appellant Ramesh Kumar. So far as the allegation about beating being given by the appellant and father-in-law and mother-in-law to the deceased Vimla are concerned, the statements are too general and non-specific inasmuch as it is admitted on record that Ramesh used to reside at Bhiwandi during the period when allegation of giving beating has been indicated whereas Vimla is stated to be staying at Sadri with her father-in-law and mother-in-law and in the letter Ex.P/5 dated 29/11/1993 written to Panchas also there is no reference of any beating being given to deceased Vimla and,therefore, the prosecution has failed to being home even the said allegation against appellant Ramesh Kumar.

Even as per the evidence led by the prosecution, the demand, if any, (though it has been held hereinbefore that there was no such demand) was made between the period 13/4/1993 to 3/7/1993 based on Ex.P/2 to Ex.P/4, whereas, Vimla committed suicide on 19/6/1995 i.e. after almost two years.

Hon’ble Supreme Court in State of Karnataka vs. Dattaraj & Ors. : 2016 (2) RLW 1573 (SC) held that as the demand was made about two years before the occurrence, the same was too remote to the occurrence and, therefore, would not satisfy the requirement of ‘soon before her death’ as contemplated under Section 304B (1) of IPC. The Hon’ble Supreme Court further with reference to its judgment in the case of Appasaheb vs. State of Maharashtra : (2007) 9 SCC 721 and Rajinder Singh vs. State of Punjab : (2015) 6 SCC 477 refused to consider the demands made by the accused in the said cases for purchasing the agricultural land and also with reference to sewing machine to be treated as demands constituting ‘dowry’.

As discussed extensively, there is no evidence available on record about any ill treatment/harassment by appellant except for bald statements about his giving beating to deceased Vimla. As already noticed the evidence only points to some such incident by the father-in-law/mother-in-law for which also there is no reference in Ex.P/5 and, therefore, there is no iota of evidence regarding abetment to suicide as well.

The trial court while making reference to the various statements, frowning on the conduct of the witnesses, who turned hostile specially P.W.4 Prakash, based on drawing presumption under Section 113A and 113B of the Evidence Act, convicted the accused.

The Hon’ble Supreme Court in the case of Bakshish Ram (supra) held that there must be material to show that soon before her death the victim was subjected to cruelty or harassment, in other words the prosecution has to rule out the possibility of a natural and accidental death so as to bring it within the purview of death occurring other than in normal circumstances.

In the present case, the prosecution was obliged to prove that appellant had subjected the deceased to cruelty/soon before the occurrence there was cruelty or harassment and in view of the fact that prosecution has failed to prove that deceased Vimla was subjected to cruelty by the appellant/subjected to cruelty or harassment soon before her death in connection with any demand of dowry, the presumption under Section 113A and 113B of the Evidence Act does not arise and, therefore, the findings recorded by the trial court cannot be sustained.

In view of the above discussion, this Court is satisfied that prosecution has failed to establish the guilt of the appellant beyond reasonable doubt and the trial court committed an error in convicting the appellant and same is, therefore, liable to be set aside.

Accordingly, the appeal is allowed, the conviction of appellant Ramesh Kumar for the offences punishable under Sections 306, 304B and 498A IPC is set aside. The amount of fine, if paid by the appellant, be refunded back to him.

(ARUN BHANSALI), J.

baweja/

AB in Dowry, 306 case as accused is 52 yrs old diabetic & other accused already quashed. Guj. HC

“…regarding the FIR, … vide order dated 6.2.2015 quashed and set aside the FIR against other co- accused. ….”

“…that present applicant is aged about 52 years and suffering from diabetes and other ailments. ….”

“…Having heard the learned counsel for the parties and perusing the record of the case and taking into consideration the facts of the case, nature of allegations, role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicant. ….”

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION NO. 19319 of 2015

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RANJANBEN MANILAL BHANDARI….Applicant(s)
Versus
STATE OF GUJARAT & 1….Respondent(s)
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Appearance:
MR ADIL R MIRZA, ADVOCATE for the Applicant(s) No. 1
MR HARDIK SONI APP for the Respondent(s) No. 1
RULE UNSERVED for the Respondent(s) No. 2
http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED

Date : 30/10/2015

ORAL ORDER

1. This is an application for anticipatory bail Section 438 of the Code of Criminal Procedure in connection with the FIR bearing CR No. I – 85 of 2009 registered with Umargam Police Station, for the offences punishable under Sections 498A, 306 and 114 of the Indian Penal Code.

2. Learned advocate for the applicant submitted that the applicant is an innocent lady and has not committed any alleged offence. He submitted that regarding the FIR, one application being Criminal Misc. Application No.4201 of 2010 was filed before this Court and this Court vide order dated 6.2.2015 quashed and set aside the FIR against other co- accused. He submitted that against present applicant, the FIR was not quashed, as said applicant was not pressed at that time. He also submitted that present applicant is aged about 52 years and suffering from diabetes and other ailments. He therefore, submitted that the present applicant may kindly be granted anticipatory bail by imposing suitable conditions.

3. Heard learned APP for the respondent State. He has vehemently opposed the present application and submitted that no discretionary relief is required to be exercised in favour of the present applicant.

4. Having heard the learned counsel for the parties and perusing the record of the case and taking into consideration the facts of the case, nature of allegations, role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicant. This Court has also taken into consideration the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. reported in (2011)1 SCC 694, wherein the Hon’ble Apex Court reiterated the law laid down by the Constitutional Bench in the case of Shri Gurubaksh Singh Sibbia & Ors., reported in (1980)2 SCC 565.

5. Learned counsel for the parties do not press for further reasoned order.

6. In the result, the present application is allowed by directing that in the event of applicant herein being arrested pursuant to FIR being C.R.No.I- 85 of 2009 registered with Umargan Police Station, the applicant shall be released on bail on furnishing a personal bond of Rs.10,000/- (Rupees Ten Thousands only) with one surety of like amount, on the following conditions that she shall:

[a] cooperate with the investigation and make herself available for interrogation whenever and wherever required.

[b] shall remain present at the concerned Police Station on 4.11.2015 at 11.00 AM [c] shall not hamper the investigation in any manner nor shall directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

[d] at the time of execution of bond, furnish her residential address to the investigating officer and the Court concerned and shall not change the residence till the final disposal of the case or till further orders;

[e] not leave State of Gujarat without the permission of the Court and, if holding a passport, she shall surrender the same before the Trial Court within a week;

[f] not obstruct or hamper the police investigation and not play mischief with the evidence collected or yet to be collected by the police;

7. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

8. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicant on bail.

9. Rule is made absolute. Application is disposed of accordingly. Direct service is permitted.

(Z.K.SAIYED, J.)

YNVYAS

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Guj HC quashes 306, 498A agnst FIL’s sister & her husband, elders in jail due to a 498A, 306 case

Guj HC quashes 306, 498A against deceased woman’s father in law’s sister & her husband, two elders in jail, due to a 498A, 306 case

In this case, an elderly husband and wife, 70 and 74 years old, sisters of the deceased woman’s father in law, elders who were living away from the deceased woman, languish in Jail because the woman’s father ropes them into a 306, 498A case. Hon Guj HC appreciates the facts, analyses the accusations and quashes the case against them !!

The Hon HC states “……So far as Section 498A of the Indian Penal Code is concerned, the prosecution is obliged to point out the willful conduct which is of a nature as is likely to drive the woman to commit suicide. There has to be some material to prima facie indicate that the cruelty or harassment was un-abetted, incessant, persistent and being grave in nature unbearable with the intention to force the woman or drag her to commit suicide or to fulfill illegal demand of dowry. As held in catena of the decisions of the Supreme Court, Section 498A of the Indian Penal Code would not come into play in all the cases of harassment and/or cruelty and reasonable nexus between cruelty and suicide must be shown. The usual wear and tear in a matrimonial life would not attract Section 498A of the Indian Penal Code. …….. “

The Hon HC affirmatively quotes the Apex court’s words in the case of Ramesh kumar v. State of Chhatisgarh [(2001) 9 SCC 618] “…The other circumstances of the case’ used in Section 113A suggests the need to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. ….”

The Hon HC affirmatively quotes The Hon’ble Supreme Court in case of Amalendu Pal @ Jhantu vs. State of West Bengal, 2010 AIR(SC) 512 “….”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….”

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 11931 of 2015
FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE J.B.PARDIWALA

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1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the judgment ? NO
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? NO

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BABULAL DURICHAND ANCHALIA & 1….Applicant(s)
Versus
STATE OF GUJARAT & 1….Respondent(s)
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Appearance:
MR ANKIT B PANDYA, ADVOCATE for the Applicant(s) No. 1 – 2
MR JIGAR G GADHAVI, ADVOCATE for the Respondent(s) No. 2

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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 30/10/2015

CAV

JUDGMENT

1 By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants – the husband and wife aged 74 and 70 respectively, seek to invoke the inherent powers of this Court, praying for quashing of the proceedings of the Criminal Case No.25819 of 2015 pending at the stage of committal in the Court of the 5th Additional Senior Civil Judge and Judicial Magistrate First Class, Surat, arising from the First Information Report bearing I­C.R. No.27 of 2015 registered with the Puna Police station, Surat for the offence punishable under Sections 306, 498A read with 114 of the Indian Penal Code.

2 The case of the prosecution in brief is as under:

2.1 The daughter of the respondent No.2,namely, Shilpa (deceased) had got married on 07.02.2010 with a boy named Vikash Vijaychand Chopda – original accused at village Gangashaher, Taluka and District, Bikaner (Rajasthan). According to the father of the deceased, after marriage, the deceased started residing with her husband, father­in­law and mother­in­law at Kolkata. In the wedlock, a son was born named ‘Manas’, who, as on today, is aged 4 years. Thereafter, a daughter was born, namely, ‘Mansi’, who, as on today, is aged 1 ½ years. It is alleged that after about one year from the date of the marriage, the husband started harassing the deceased on petty issues. However, with a view to see that the matrimonial life does not get disturbed, the family members used to persuade the deceased to adjust herself in life. It is alleged that while the deceased was residing at Kolkata, her father­in­law and mother­in­law also used to cause harassment to her. It is further alleged that before about 10 months from the date of the incident, the deceased along with her husband and two minor children got settled at Surat. The husband was able to get a job at the Pandesara G.I.D.C. in one of the Dyeing units. It is further alleged in the First Information Report, that the husband and the in­laws used to demand for money and the first informant used to help monetarily according to his financial capacity. On 18.02.2015, the birthday of the son of the deceased, viz. ‘Manas’ was celebrated. However, the first informant and his family members were not informed about the party which was thrown for the birthday celebration. It is alleged that the deceased used to call up her father on mobile and convey about the harassment caused to her by the husband and the in­laws. On 27.02.2015, the deceased is said to have called up her father twice and conveyed that her father­in­law and the mother­in­ law and the two applicants herein (i.e. the father­in­law’s sister and the husband of the father­in­law’s sister) had come to her house and had levelled allegations against her about the household work and further that the deceased had sold off her jewellery. The deceased is said to have further conveyed that Vikash i.e. her husband had beaten her up. The deceased requested her father to make arrangements to see that someone would drop her at the house of her maternal uncle. According to the first informant, he did not take the words or what was conveyed by the deceased seriously. Thereafter, at about 11.49 hours in the night, the father received a message on mobile stating “Papa do not speak anything at present. Whatever I have conveyed to you do not pass it on to the others. You may talk in the morning and my mother­in­law has alleged that Shipla would run away with money”. According to the first informant, he did not call up his daughter in the morning on 23.02.2015. However, the father­in­law of the deceased called up in the morning at about 9.30 hours and conveyed that Shilpa i.e. the deceased had committed suicide by jumping from the 5th floor gallery. The deceased was shifted to the hospital where she was declared dead. It is alleged that the accused persons abetted the commission of the suicide punishable under Section 306 of the Indian Penal Code.

2.2 The statement of the mother of the deceased is almost on the same line as what has been alleged in the First Informant Report. So far as the other statements are concerned, I find a remote reference of the two applicants herein.

3 After the registration of the F.I.R., all the accused persons including the applicants herein were arrested. The applicants herein, who have as such nothing to do with the matrimonial life of the deceased, have also been implicated, and are in the judicial custody as on today. The only allegation against the two applicants herein is that they had gone at the house of the deceased in the late evening on 22.02.2015 and are alleged to have spoken something about the household work and jewellery. It appears that the applicants herein are residents of Surat. Their house is at little distance from the house where the deceased was residing.

4 Mr. Narendra Jain, the learned advocate appearing for the applicants submitted that even if the entire case of the prosecution is accepted as true, none of the ingredients to constitute the offence punishable under Section 306 or Section 498A of the Indian Penal Code could be said to have been spelt out so far as the applicants are concerned. He submitted that the ingredients for abatement for suicide would be satisfied only if the suicide is committed by the deceased due to direct alarming encouragement or incitement by the accused leaving no option but to commit suicide. He submitted that even if the presence of the two applicants herein at the house of the deceased in the evening on 22.02.2015 is believed, nothing could be alleged against them which would constitute an offence under Sections 306 and 498A of the Indian Penal Code.

5 He submitted that for no fault on the part of the applicants, they are languishing in jail as on today. He, therefore, prayed that the proceedings be quashed so far as the applicants herein are concerned.

6 On the other hand, this application has been vehemently opposed by Mr. Jigar Gadhvi, the learned advocate appearing for the respondent No.2 – first informant. He submitted that there is more than a prima facie case against the applicants to put them to trial for the offence punishable under Sections 306 and 498A of the Indian Penal Code. He submitted that as the action of committing suicide is on account of great disturbance to the psychological imbalance of the deceased such incitement can be divided into two broad categories, one normally where the deceased is having sentimental tie or physical relations with the accused, and second category would be where the deceased is having relations with the accused in official capacity. He submitted that the case in hand falls in the first category and consequently, creating the situation of depression, incessant harassment may give temptation to the person to commit suicide. He submitted that the former category leaves more expectation, whereas in the latter category, by and large, expectation and obligation are prescribed by law, rules and regulations. He submitted that in such circumstances, a legitimate prosecution may not be quashed at this stage. In support of his submissions, he placed reliance on the following decision:

(1) A.K. Chaudhary and others v. State of Gujarat and others [2005(3) GLH 444]

(2) State of A.P. v. Aravapally Venkanna and another [2009(2) GLH 572]

(3) Chintresh Kumar Chopra v. State (Government of NCT of Delhi) [(2009(16) SCC 605]

(4) A.M. Kapoor v. Rameshchander and another [(2012) 9 SCC 460]

7 The learned APP appearing for the State also opposed this application and submitted that no case is made out for quashing of the proceedings at this stage.

8 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the criminal proceedings should be quashed so far as the applicants herein are concerned.

9 The following emerges from the papers of the chargesheet:

(1) In the entire First Information Report as well as the other statements forming part of the chargesheet, there are no allegations against the applicants herein that they were continuously harassing the deceased in any way or the other.

(2) There are no allegations in the First Information Report as well as the other statements that the applicants herein used to instigate the husband and the in­laws on account of which there was incessant harassment to the deceased.

(3) The allegations are against the husband. The husband used to beat and harass the deceased a lot. The husband was alcoholic. It appears from the statement of one Shri Prakash Tikamchand Nahta (Jain), the brother of the first informant, which is at page 25 of the paper book, that it was conveyed to him by his brother i.e. the first informant. On 23.02.2015, Shilpa had called up and conveyed to the first informant that she was being beaten up by her husband and in the morning, she jumped from the 5th floor gallery of the flat. The first informant had not spoken anything to his brother as regards the applicants herein.

(4) The allegations in the First Information Report lodged by the father of the deceased are that on 22.02.2015, the applicants herein had come to the house of the deceased along with the father­in­law and the mother­in­law and had reprimanded the deceased as regards the household work and further alleged that the deceased had sold off the jewellery. Except this, there is nothing against the applicants herein.

(5) The applicants could be said to be distant relatives. They are “‘Fuvaji­in­law” (the husband of the father­in­law’s sister) and “Fuiji­in­ law” (the father­in­law’s sister) of the deceased. They are residing independently.

(6) It appears that immediately after the marriage, matrimonial disputes cropped up. The deceased was residing at Kolkata with her family. According to the first informant, she was being harassed at Kolkata. The applicants herein are residents of Surat. Nowhere, it has been stated that at any point of time, the applicants had visited the deceased at Kolkatta.

(7) The husband had become alcoholic. He was also persuaded and to understand that the alcohol would ruin his life. At one point of time, there was a settlement also.

10 Having regard to the facts narrated above, could it be said that the applicants herein abetted the commission of suicide in any manner.

11 Section 306 of the Indian Penal Code 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.”

12 It is a settled law that before a person is alleged to have abetted the commission of suicide, the prosecution must show some convincing and cogent evidence that the accused persons intended the consequences of the act, namely, suicide and abetted the suicide within the meaning of Section 107 of the Indian Penal Code. It is equally well settled that mere harassment or cruelty, which drags the woman to commit suicide, is not sufficient to constitute the offence under Section 306 of the Indian Penal Code. Section

107 of the Indian Penal Code is with regard to the abetment. Section 107 of the Indian Penal Code reads as under:

“107. Abetment of a thing A person abets the doing of a thing, who­ First.­Instigates any person to do that thing; or Secondly.­Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.­Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1.­A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z, B, knowing that fact and also that C is not Z, willfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.

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.”

13 At this stage, it would be apposite to look into the provisions of Section 113­A of the Evidence Act, which reads as under:

“113A. Presumption as to abetment of suicide by a married woman When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation.­For the purposes of this section, “cruelty” shall have the same meaning as in section 498A of the Indian Penal Code.”

14 The Supreme Court in the case of Ramesh kumar v. State of Chhatisgarh [(2001) 9 SCC 618] has explained the effect of Section 113­A of the Evidence Act in paras 12 and 13. Paras 12 and 13 read as under:

“12… To attract applicability of Section 113A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. The Parliament has chosen to sound a note of caution. Firstly the presumption is not mandatory; it is only permissive as the employment of expression “may presume” suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the Court shall have to have regard to ‘all the other circumstances of the case’…”

“13. The expression :­’The other circumstances of the case’ used in Section 113A suggests the need to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The present case is not one which may fall under clauses secondly and thirdly of Section 107 of Indian Penal Code.”

15 I shall now look into Section 498A of the Indian Penal Code, which reads as under:

“498A. Husband or relative of husband of a woman subjecting her to cruelty­ Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.­For the purposes of this section, “cruelty” means­

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.]”

16 Section 498A of the Indian Penal Code speaks about cruelty by the husband or the relatives of the husband. So far as Section 498A of the Indian Penal Code is concerned, the prosecution is obliged to point out the willful conduct which is of a nature as is likely to drive the woman to commit suicide. There has to be some material to prima facie indicate that the cruelty or harassment was unabetted, incessant, persistent and being grave in nature unbearable with the intention to force the woman or drag her to commit suicide or to fulfill illegal demand of dowry. As held in catena of the decisions of the Supreme Court, Section 498A of the Indian Penal Code would not come into play in all the cases of harassment and/or cruelty and reasonable nexus between cruelty and suicide must be shown. The usual wear and tear in a matrimonial life would not attract Section 498A of the Indian Penal Code. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

17 In the present case, except one incident i.e. the alleged act of saying something to the deceased with regard to some household work and alleging that the deceased had sold off her jewellery, there is no other material to even prima facie indicate that the applicants herein were unnecessarily or intentionally interfering with the matrimonial life of the deceased. It appears that after the deceased rented a house at Surat, which was at some distance from the house of the applicants herein. It is possible that being relatives, they might have visited the house of the deceased in the evening on 23.02.2015. Let me believe as true what is alleged by the prosecution. I am of the view that by any stretch of imagination, it could not be said that the applicants herein caused any harassment within the meaning of Section 498A of the Indian Penal Code or abetted the commission of suicide. I may only say that the deceased was a disturbed lady. She was fed up with her husband who used to beat her and was alcoholic. It is possible even if it is believed to be true at this stage that the incident which occurred in the evening might have added more to the misery of the deceased, but it cannot be said that the applicants herein abetted the commission of suicide. I may at this stage at the cost of repetition state that there is no reference at all of the two applicants herein in the statement of the brother of the father of the deceased. It appears that soon before the deceased committed suicide, she was beaten up by her husband and this might be during the night hours. The case of the prosecution is that she jumped from the 5th floor of the gallery at about 5.30 hours in the early morning.

18 I had an occasion to consider the law on the subject of abetment of suicide in the case of Lalitbhai Vikramchand Parekh v. State of Gujarat (Criminal Miscellaneous Application No.16032 of 2014). In this case, five members of one family committed suicide. I may quote the relevant observations as contained in paras 11 to 28 as under:

11. Abetment of suicide is made punishable by Section 306 which provides that “if any person commits suicide, whoever abets the commission of such suicide, shall be punished.” (emphasis supplied) The section does not define the expression” “abet”, nor is the expression defined in Chapter II of the Code which deals with the general explanations”. However, Chapter V of the Code incorporates an elaborate statement of “abetment”. Section 107 in this Chapter defines “abetment of a thing”, while Section 108 defines the expression “abettor”.

This is how these sections run :

Section 107 ­Abetment of a thing “A person abets the doing of a thing, who First – ­Instigates any person to do that thing or Secondly – ­Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly – ­Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1.­A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2.­­­Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.”

12. Section 108 ­ Abettor­ “‘A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor”.

Explanation 1.­ The abetment of the 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 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 physician ­and 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 does 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. 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 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 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 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 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 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. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

25. Taking note of various earlier judgments, in M. Mohan u. State Represented the Deputy Superintendent of Police, (2011) 3 SCC 626. the Supreme Court held that “Abetment involves mental process of instigating or intentionally aiding a person in doing of a thing. There should be clear mens rea to commit offence under Section 306. It requires commission of direct or active act by accused which led deceased to commit suicide seeing no other option and such act must be intended to push victim into a position that he commits suicide.”

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 a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.”

It was a proposition relating to criminal prosecution.

28. In Madan Mohan Singh v. State of Gujarat, (2010) 8 SCC 628. the Supreme Court quashed the proceedings under Section 306 IPC on the ground that the allegations were irrelevant and baseless and observed that the High Court was in error in not quashing the proceedings.”

19 I am conscious of the fact that a young woman committed suicide leaving behind two minor children and one of those just 1 ½ years of age. Life must have been miserable for her, and probably, unable to bear the pain and misery, she might not have thought even for a minute about her minor children. However, when I need to decide the matter keeping in mind the law as well as the materials on record, I should not go by emotions. In my view, the applicants herein should not be put to trial for the offence punishable under Sections 306 as well as 498A of the Indian Penal Code.

Let me look into the decisions relied upon by Mr. Gadhvi, the learned counsel appearing for the first informant.

21 In the case of A.K. Chaudhary(supra), the learned Single Judge of this Court drew a fine distinction between two categories of incitement observing as under:

“17. In view of the above, it appears that the ingredients for abetment for suicide would be satisfied only if the suicide is committed by the deceased due to direct and alarming encouragement/incitement by the accused leaving no option but to commit suicide. Further, as the action of committing suicide is also on account of great disturbance to the psychological imbalance of the deceased such incitement can be divided into two broad categories, one normally where the deceased is having sentimental tie or physical relations with the accused and second category would be where the deceased is having relations with the accused in official capacity. In case of former category some times a normal quarrel or the utterance of hot exchange of words may result into psychological immediate imbalance. Consequently creating situation of depression, loss of charm in the life and if the person is unable to control sentiments of expectations, it may give temptations to the person to commit suicide, e.g., when there is relation of husband and wife, mother and son, brother and sister, sister and sister and other relations of such type, where sentimental tie is by blood or due to physical relations. In case of second category the tie is on account of official relations, where the expectations would to discharge the obligation as provided for such duty in law and to receive the considerations as provided in law. In normal circumstances, relationships by sentimental tie cannot be equated with the official relationship and the reason being the different conduct of the parties for maintenance of the relations. The former category leaves more expectations, whereas in the latter category, by and large, expectations and obligations are prescribed by law, rules and regulations. Of course, for meeting with the requirement for ingredients of abetment to suicide, the provisions of the IPC are the same, but for the purpose of examination on the aspects of abetment to commit suicide or incitement/encouragement to suicide, it may have some relevance. Since, in the present case this Court is not concerned with the matter of matter of abetment to suicide where the deceased or the accused had the relations covered in the first category, no further discussion may be required in this regard to that extent. However, in case where the allegations for abetment of suicide committed by the deceased falling in second category are concerned, the strict interpretation is called for, otherwise it may result into damaging the discipline of any institution or organization or department, which may consequently result into creating a situation against national interest for which the expectation would be the strict discipline and the rule of law only and nothing else.”

21.1 There need not be any debate on the proposition of law laid down by the learned Single Judge of this Court. However, as observed above, there is no cogent material to prima facie suggest incitement/instigation to suicide at the hands of the applicants. The aforenoted decision otherwise is not helpful to the first informant in any manner.

22 In the case of State of A.P. (supra), the Supreme Court explained that the powers possessed by the High Court under Section 482 of the Code of Criminal Procedure should be exercised sparingly and should not be exercised to stifle a legitimate prosecution. The Supreme Court observed in para 8 as under:

“8. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution.

High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive.If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/F.I.R. has to be read as a whole.If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the F.I.R. that the ingredients of the offence of offences are disclosed and there is no material to show that the complaint/F.I.R. is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding.”

23 The case in hand so far as the applicants herein is concerned is one in which the powers under Section 482 of the Code deserves to be exercised having regard to the nature of the accusations and the materials on record.

24 In Chitresh kumar (supra), the Supreme Court has explained the offense of “abetment of suicide” punishable under Section 306 of the Indian Penal Code in reference to Section 107 of the Indian Penal Code.

The Supreme Court also explained the meaning of the words “instigation” and “goad”. In this case, the deceased was a partner with the accused persons and they were all engaged in the real estate business. The deceased committed suicide on account of the problems created by those three persons. The deceased left behind a suicide note which mentioned that there was some money transaction between them and thus, three persons had abetted the deceased to commit suicide. The Supreme Court observed in paras 20, 21, 22, 23, 24 and 25 as under:

“20. In the background of this legal position, we may advert to the case at hand. The question as to what is the cause of a suicide has no easy answers because suicidal ideation and behaviours in human beings are complex and multifaceted. Different individuals in the same situation react and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. Each individual’s suicidability pattern depends on his inner subjective experience of mental pain, fear and loss of self­respect. Each of these factors are crucial and exacerbating contributor to an individual’s vulnerability to end his own life, which may either be an attempt for self­protection or an escapism from intolerable self.

21. In the present case, the charge against the appellant is that he along with other two accused “in furtherance of common intention”, mentally tortured Jitendra Sharma (the deceased) and abetted him to commit suicide by the said act of mental torture. It is trite that words uttered on the spur of the moment or in a quarrel, without something more cannot be taken to have been uttered with mens rea . The onus is on the prosecution to show the circumstances which compelled the deceased to take an extreme step to bring an end to his life.

22. In the present case, apart from the suicide note, extracted above, statements recorded by the police during the course of investigation, tend to show that on account of business transactions with the accused, including the appellant herein, the deceased was put under tremendous pressure to do something which he was perhaps not willing to do. Prima facie, it appears that the conduct of the appellant and his accomplices was such that the deceased was left with no other option except to end his life and, therefore, clause firstly of Section 107 of the IPC was attracted.

23. Briefly dealing with the material available on record, in the order directing framing of charge against the appellant, the learned trial court has observed as under :

“In the present case the evidence shows threatening given to the deceased. One witness called Kartar Singh says that CK Chopra was heard saying to the deceased that the deceased had become dishonest because he was refusing to sign a paper in which the share in some joint property was shown to be 10%. On another occasion Chopra was heard by this witness to say that Chopra would ruin the deceased if he did not give up his claim for 25% and did not agree to accept 10%. Witness Padam Bahadur has stated inter alia that he overheard Jahoor and Mahavir telling the deceased that Chopra had asked them to say that this was the last opportunity to sign the document and that if he wanted to live in the society he should sign the agreement or should die by taking poison. Soon thereafter the deceased committed suicide.

Thus the evidence is not of a mere quarrel in which one person told the other go and die without actually suggesting that the opponent should commit suicide. In the present case the evidence collected by the investigation suggest that the deceased had been actually pushed to the wall and the escape by committing suicide was suggested by the accused persons.” http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

24. In the light of the material on record, in our judgment, it cannot be said that the trial court was in error in drawing an inference that the appellant had “instigated” the deceased to commit suicide and, therefore, there was ground for presuming that the appellant has committed an offence punishable under Section 306 read with Section 34, IPC.

25. It is trite that at the stage of framing of charge, the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence or offences. For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for “presuming” that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. (See: Niranjan Singh Karam Singh Punjabi and Ors. v. Jitendra Bhimraj Bijjaya.)”

24.1 Having regard to the materials on record including the suicide note naming the accused persons, the Supreme Court took the view that there was sufficient material to presume that the accused had committed the offence and if that be so, the charge can be framed. In the aforenoted case, the discharge application was rejected by the trial Court holding that a case for framing the charge against the accused persons had been made out. The Supreme Court concurred with the findings recorded by the trial Court. This decision also, in no manner, helpful to the prosecution.

25 In the case of A.M. Kapoor (supra), the Supreme Court took the view that framing of a charge is an exercise of jurisdiction by the trial Court in terms of Section 228 of the Cr.P.C., unless the accused is discharged under Section 227 of the Cr.P.C. The Supreme Court held that at the initial stage of framing of a charge, the Court is concerned not with the proof, but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the Court is to see that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. The case in hand is one where the ingredient of sections concerned do not exist considering the facts of the case of the accusation.

26 In the case of the Government of National Capital Territory, Delhi (supra), the Supreme Court while upsetting the acquittal of the accused observed having regard to the facts of the case the trial Court ought to have drawn the presumption under Section 113­A of the Evidence Act. In this case, there was a suicide note left behind by the deceased showing beating of the deceased by her husband as a motive for suicide. This decision is also not helpful to the first informant.

27 For the foregoing reasons, this application succeeds and is hereby allowed. The further proceedings of the Criminal Case No.25819 of 2015 pending at the stage of committal in the Court of the 5th Additional Senior Civil Judge and Judicial Magistrate First Class, Surat, arising from the First Information Report bearing I­C.R. No.27 of 2015 registered with the Puna Police station, Surat for the offence punishable under Sections 306, 498A read with 114 of the Indian Penal Code is hereby ordered to be quashed. Direct service is permitted.

28 The case shall proceed further expeditiously so far as the other co­ accused are concerned in accordance with law.

(J.B.PARDIWALA, J.)

chandresh