JUDGMENT [ENTITY], J.
1. The present revision petition has been filed challenging the order dated 8.10.2004 passed by the learned Additional Sessions Judge whereby it was directed that charges under [SECTION] [ACT] be framed against the petitioner. The formal charge was also drawn up on the same date. The charge which has been drawn up reads as under:
I [ENTITY], Addl. Sessions Judge, Delhi do hereby charge you accused [ENTITY] as under:
That from Sept./Oct. 2002 till the death of Smt. [ENTITY] which occurred during the night of 31.12.02/1.1.03 at your house No. D-99 Rides Line University Campus, Delhi within the jurisdiction of P.S. Mourice Nagar, you being the husband of Smt. [ENTITY] subjected her to cruelty by giving her beatings and used ugly language to her and by making harassment to her you committed an offence punishable Under [SECTION] [ACT] and within the cognizance of this Court.
Secondly, on the intervening night 31.12.02/1.1.03 at house No. D-99 Rides Line, University Campus, Delhi within the jurisdiction of P.S. Mourice Nagar due to mal-treatment and cruelty as mentioned above, done to your wife Smt. [ENTITY] by you, she committed suicide at your house and thus you abetted your wife [ENTITY] to commit suicide and thereby committed an offence punishable under [SECTION] [ACT] and within the cognizance of this Court.
2. Mr [ENTITY], the learned senior counsel appearing on behalf of the petitioner submitted that there are various circumstances available on the record which would go to indicate that this is not a case where a grave suspicion could have arisen with regard to the commission of the alleged offences by the petitioner. He submits that first of all, there is a suicide note which is admittedly written in the hands of the deceased [ENTITY]. The said suicide note is dated 31.12.2002 which was apparently written just prior to her committing suicide. The note is a one line statement which reads as under:
Meri maut ke liye koi zimmedar nahi hai In English, it would read as under:
Nobody is responsible for my death Sd/- [ENTITY] 31.12.2002.
Secondly, Mr [ENTITY] pointed out that immediately after the death of [ENTITY], her father's statement was recorded. Her father ([ENTITY]) in his statement made before the learned SDM recorded on 1.1.2003, i.e. the date on which the body of [ENTITY] was found, clearly mentioned that his daughter ([ENTITY]) and his son-in-law [ENTITY] were living happily. He stated that both visited his house on 29.12.2002 and were happy. On 30.1.2003 in the evening at 7.30 p.m., he is stated to have talked with his daughter [ENTITY] and she was reportedly happy. In his statement he has further indicated that in the morning of 1.1.2003 at about 8.30 a.m. his son-in-law had wished him a happy new year at his home. However, this phone call was made by his son-in-law ([ENTITY]) not from his home but from his friend's house where he had spent the previous night partying with other friends. It is further stated that when his son-in-law reached his home, he found that his wife ([ENTITY]) had committed suicide and immediately thereafter, he called his father-in-law ([ENTITY]) and informed him. What is material to note in the statement of the father-in-law is that he has categorically stated at several places that his daughter ([ENTITY]) and son-in-law ([ENTITY]) lived happily. He also stated at the end that nobody is involved in the incident. He did not suspect anybody. The s last sentence of his statement reads as under:
I realise that my daughter has committed suicide herself and I do not find anybody's hand in this.
3. Mr [ENTITY] also read out [ENTITY]'s mother's statement recorded under [SECTION] [ACT] This statement of the mother (Smt [ENTITY]) was, however, recorded after seven days, i.e. on 8.1.2003 where she has given a somewhat different picture. However, the only allegation contained in her statement is that after marriage her daughter used to frequently visit them. But, in the month of September, 2002 she had complaind that her husband used to abuse her and use to consume liquor with his friends. However, she further stated that as this was a new marriage and was a family matter, she did not disclose the same to anybody, including her husband. It was also made clear in the statement that her daughter never complained about her father-in-law, mother-in-law and sister-in-law. It was further stated by her that she did not even think it proper to talk about this with her son-in-law because her daughter told her that she would put things right. On 29.12.2002, it is stated further, [ENTITY] had called her mother on the telephone and said that she was coming to stay at her house for a week and that she would come after she (Smt [ENTITY]) returns from Kota. According to Smt [ENTITY], this conversation took place at about 6 p.m. on 27.12.2002. Thereafter, the said Smt. [ENTITY] left for Kota in Rajasthan and returned only on 2.1.2003 after hearing about the death of her daughter [ENTITY]. In her statement she has reiterated the fact that her son-in-law used to consume liquor and used to consume it with his friends and used to abuse and ill-treat her daughter and her daughter was unhappy and, therefore, legal action be taken against him. It was also clearly stated by her that the parents of [ENTITY] never demanded anything.
4. Apart from this, the statement of one Ms [ENTITY], a friend of the deceased [ENTITY], was also read out by Mr [ENTITY] indicating that the only allegation with regard to the conduct of the present petitioner was that he used to abuse [ENTITY] and pressurize her to accompany him when he visited his friends but, [ENTITY] did not like that company. In the statement of Ms [ENTITY], it is also indicated that on 31.12.2002, the present petitioner ([ENTITY]) and the deceased [ENTITY] had gone to a party and had returned from that party at about 8 p.m. in the evening. Thereafter, [ENTITY] wanted to attend a second party with his friends and wanted to take [ENTITY] with him. However, she refused and she remained at home whereas [ENTITY] went to the second party which continued till the early hours of the next morning. It is during this period that [ENTITY], being alone at home, committed suicide. Apparently, the suicide was committed on 31.12.2002 as the date indicated in the suicide note is 31.12.2002.
5. Mr [ENTITY], the Learned Counsel appearing on behalf of the petitioner, submitted that this is the sum-total of the evidence that can be garnered against the petitioner. He submitted, first of all, that [SECTION] is not attracted because there is no allegation of cruelty as such. He referred to the definition of cruelty as given in the explanation to [SECTION] and submitted that the second portion of the explanation which pertains to demand for dowry admittedly did not arise in the facts and circumstances of the present case. This is so because there is no allegation of any demand for dowry on the part of anybody. Secondly, he submitted that the first part of the explanation was also not attracted inasmuch as the conduct of the petitioner, even if the allegations are taken to be true and correct, would not be such as could be said to have driven the deceased [ENTITY] to take her life. Therefore, according to Mr [ENTITY], the ingredients of [SECTION] were not made out as there was no cruelty. This being the case, he submitted that the question of the petitioner being charged with the offence under [SECTION] [ACT] would also not arise. He also referred to [SECTION] [ACT] which relates to abetment.
6. Mr [ENTITY] referred to a decision of a Single Judge of this Court in the case of [PRECEDENT]. In that case also, on the basis of a suicide note which exonerated the accused and the statements of the parents of the deceased, this Court thought it fit to discharge the accused inasmuch the Court was of the view that there was no "grave suspicion" against the accused, although in view of the statement of the mother of the deceased some suspicion could arise. He also referred to the decision of the Supreme Court in the case of [PRECEDENT]. . In particular, he referred to paragraph 10 thereof which reads as under:
10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under [SECTION] of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Whether the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under [SECTION] of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
In the light of these principles, Mr [ENTITY] submitted that a case for discharge has been made out and the petitioner ought to be discharged of both the offences under [SECTION] and [SECTION] [ACT].
7. Mr [ENTITY], who appeared on behalf of the State, entirely supported the impugned order and submitted that on the facts of the case the charge has been correctly framed. He submitted, with reference to the statement of the mother Smt [ENTITY], that there was a clear allegation of abuse and mal-treatment on the part of the present petitioner. He submitted that although there was no mention of any demand for dowry and the second part of explanation of [SECTION] was not attracted, the first part could be invoked. He also referred to [ENTITY]'s statement recorded under [SECTION] [ACT] by the Investigating Officer on 8th January, 2003 which essentially reiterated the statement of the mother which was also recorded on the same date. Both these statements were recorded seven days subsequent to the incident and seven days subsequent to the statement of the father of the deceased which completely exonerated the petitioner. Mr [ENTITY] referred to the decisions of the Supreme Court in the case of [PRECEDENT]. and [PRECEDENT] . He submitted that once there are allegations which give an indication that offences under [SECTION] and [SECTION] [ACT] are made out then a charge ought to be framed and it has been correctly framed in the present case. He submitted that the charge under [SECTION] [ACT] has been correctly framed for another reason also and that is the presumption of abetment which can be raised in view of [SECTION] of the [ACT]. He submitted that at the stage of framing of charge, the Court is not to function like a trial Court and sift the evidence in great deal. That is a job which is better left to the Trial Court at the time of a full fledged trial. He had also referred to the decision of the Supreme Court in the case of [PRECEDENT]. That was a case under [SECTION] [ACT] where the Supreme Court was of the view that the husband had created such a condition by his incessant cruelty and harassment that it forced his wife to take her life. In that case the extreme step was taken by the wife who was a young woman and who had a son of 15 months and was carrying another child in her womb. It is in these exceptional circumstances, that the Supreme Court was of the opinion that a case under [SECTION] [ACT] was made out.
8. [SECTION] of the [ACT] deals with the issue of presumption as to abetment of suicide by a married woman. The necessary conditons for raising such a presumption are : (1) that the woman committed suicide within a period of seven years from the date of her marriage; and (2) that her husband or relative of her husband had subjected her to cruelty. By virtue of the explanation to the said [SECTION], it is made clear that "cruelty" shall have the same meaning as in [SECTION] [ACT]. Furthermore, the presumption that may be raised is at the discretion of the Court as the expression used is - "the Court may presume". This is in sharp contract to the expression - "the Court shall presume" - used in [SECTION] of the [ACT] which relates to presumption as to dowry deaths. Therefore, a careful reading of the said [SECTION] reveals that before a presumption that the suicide by a woman had been abetted by her husband can be drawn, the two conditions mentioned above must be satisfied. The second condition pertains to "cruelty" which, as explained above, is inextricably linked with "cruelty" for the purposes of [SECTION] [ACT]. Putting it differently, if "cruelty" under [SECTION] [ACT] cannot be established then the presumption as to abetment of suicide cannot be drawn against the husband or his relative. It may be pointed out that even where the two conditions are satisfied, the court has still to have "regard to all other circumstances of the case" before it can presume that the suicide had been abetted by her husband or his relative.
9. On the question of abetment also, one has to examine the provisions of [SECTION] [ACT]. There are three classes of abetment provided in the said provision. The first being when a person "instigates" any person to do a thing. In [ENTITY] v. State 2000 (2) JCC 478 (Delhi) it was held that a person is said to instigate another when he goads, provokes, incites, urges or encourages another to commit a crime. The facts in [ENTITY] (supra) were that the deceased had committed suicide as he was dissatisfied with the conduct of his employer ([ENTITY]). The deceased left a suicide note wherein he held [ENTITY] as being responsible for his death. The Court held that [ENTITY] had not goaded, provoked or incited the deceased to commit suicide and, therefore, no case for framing of charge under [SECTION] [ACT] was made out.
10. In [PRECEDENT] (supra), the Supreme Court was of the view that an offence under [SECTION] [ACT] would stand only if there is an abetment for the commission of the crime. The supreme Court observed that "the parameters of 'abetment' have been stated in [SECTION] of the [ACT]. [SECTION], according to the Supreme Court, states that "a person abets the doing of a thing, who instigates any person to do that thing; or 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, or the person should have intentionally aided any act or illegal omission". In the case before the Supreme Court, a suicide note was involved, but the court came to the conclusion that in the suicide note there was no reference of any act or incident whereby the appellant therein was alleged to have committed any willful act or omission or intentionally aided or instigated the deceased [ENTITY] to have committed suicide. Accordingly, the court quashed the proceedings under [SECTION] of the [ACT].
11. In [PRECEDENT] (supra), the Supreme Court observed as under:
6. [SECTION] [ACT] defines abetment to mean that a person abets the doing of a thing if he firstly, 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.
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9. In [ENTITY] Singh v. State of M.P. 1995 Supp. (3) SCC 731, the appellant was charged for an offence under [SECTION] [ACT] basically based upon the dying declaration of the deceased, which reads as under:
My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband [ENTITY] wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning.
10. This Court, considering the definition of 'abetment' under [SECTION] [ACT], found that the charge and conviction of the appellant for an offence under [SECTION] is not sustainable merely on the allegation of harassment to the deceased. This Court further held that neither of the ingredients of abetment are attracted on the statement of the deceased.
The Supreme Court further observed in paragraph 12 of the said decision that the word "instigate" denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of means rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in the spur of the moment cannot be taken to be uttered with means rea. It is in a fit of anger and emotional. The words expressed in the case before the Supreme Court were "to go and die". As a result of such an utterance, the deceased went and committed suicide. Yet, the Supreme Court was of the view that an offence under [SECTION] [ACT] was not made out because there was no element of means rea.
12. I had examined the question of abetment in [PRECEDENT] wherein means read was recognized as an essential ingredient of instigation and, consequently, abetment. In Shri [PRECEDENT] (supra) it was held:
Coming now to the facts of the present case, I find that the case of [ENTITY] Singh v. State of M.P. referred to in [PRECEDENT] (supra), is quite apposite. A similar allegation of harassment was made against the in-laws, but that was not considered to fall within the four corners of [SECTION] [ACT]. In that case, there were allegations of beating as well which are absent in the present case. Apart from all this, in the present case, I find that there is no element of means rea, which is an essential ingredient, even if the allegations, as per the case of the prosecution, were to be taken to be true and correct. In my view, the learned Additional Sessions Judge was entirely wrong in coming to the conclusion that a charge under [SECTION] [ACT] could be framed against the present petitioners. The deceased ([ENTITY]) may have been treated harshly and unfairly, if the allegations were to be believed, but, it cannot be said that the petitioners instigated, goaded or incited her to commit suicide. There is nothing on record to suggest that the petitioners had the means read to drive the deceased ([ENTITY]) to commit suicide.
13. In the present case, apart from the allegations qua beating and use of abusive language there is nothing to suggest that the petitioner had any means read to drive the deceased to commit suicide. Coupled with this, is the important circumstance that the suicide note exonerates the petitioner. So does the statement of the father of the deceased. Perhaps the deceased was upset that her husband (the petitioner) was spending the New Year's eve with his friends, leaving her alone at home. Being depressed she took her life. Perhaps the reason for suicide may have been something entirely different. But, from the material on record it cannot be said that the petitioner instigated his wife to commit suicide.
14. Furthermore, I have come to the conclusion that, applying the guidelines prescribed in [PRECEDENT]'s case (supra), a prima facie case has not been made out for the framing of charges. This is so because not only two views are possible but the view of the prosecution is less probable than the view espoused by the Learned Counsel for the petitioner. Therefore, there is no question of a grave suspicion arising in this matter and although the mother's statement contains some allegations that the petitioner used to abuse his wife [ENTITY], there is no material on record to indicate a conduct on the part of the petitioner which was so cruel and compelling as would drive the wife to take her life on account thereof. This is the requirement of [SECTION]. Since, admittedly, there is no allegation of any demand for dowry or any other valuable security or property, even [SECTION] would not apply. Clearly, the offence under [SECTION] [ACT] would also not stand. This conclusion is further buttressed by the suicide note left by [ENTITY] and her father's statement recorded on 1.1.2003. This requirement is missing in the case even if the allegations are taken to be correct and proved.
15. In these circumstances, I find that the petitioner is entitled to be discharged of both the charges under [SECTION] [ACT].
16. Accordingly, this revision petition is allowed and the petitioner stands discharged.