IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.12.2009 CORAM THE HONOURABLE MR. JUSTICE C.T.SELVAM Crl.O.P.Nos.33322 of 2007 and 36955 of 2007 and M.P.Nos.2 of 2009, 2 of 2008 and 1 + 1 of 2007 1.Suresh Kumar …. Petitioner in Crl.O.P.No.33322 of 2007/Accused-1 2.Mohanlal@Mohan Singh …. Petitioner in Crl.O.P.No.36955 of 2007/Accused -2 Versus 1.State represented by The Inspector of Police, C-1, Flower Bazaar Police Station, Chennai. (Crime No.558 of 2007) … 1st Respondent in both Crl.O.Ps 2.Tikam Singh … 2nd Respondent in Crl.O.P.No.36955 of 2007 Criminal Original Petition filed to invoke the extraordinary jurisdiction under section 482 of Criminal Procedure Code and to call for the records in Crime No.558 of 2007 pending investigation on the file of the 1st respondent and quash the same as against the petitioner. For Petitioners : Mr.Sriramulu Senior Counsel for M/s.Abudu Kumar Rajarathinam For Respondent 1 in both the petitions : Mr.J.C.Durairaj Government Advocate [Crl.Side] For Respondent 2 in Crl.OP 36955/07 : Mr.V.S.Venkatesh ******* https://hcservices.ecourts.gov.in/hcservices/ C O M M O N O R D E R These petitions seek the exercise of extraordinary jurisdiction under section 482 of Criminal Procedure Code and to call for the records in Crime No.558 of 2007 pending investigation on the file of the 1st respondent and quash the same as against the petitioners. 2.One Arjun Singh died on 29.08.2007 at 4.00 p.m., seemingly due to hanging. He had left a note in his pocket. On the strength thereof, the case which originally was registered by the first respondent police under Sections 174 of Cr.P.C stands altered to 306 I.P.C. The petitioners before this Court are the 1st and 2nd accused. 3.Mr.Sriramulu, learned Senior Counsel for the petitioners took this Court through the provisions of Section 107 IPC and several decisions on what would constitute abetment and what would not. The learned Senior Counsel contended that unless the abetment as understood under the law stands established, no offence under Section 306 I.P.C which provides for abetment of suicide and punishment therefor would stand attracted. Useful reference may be had to the relevant portions of some of the citations relied upon by the learned Senior Counsel. In the case of Sohan Raj Sharma v. State of Haryana (2008) 2 MLJ (Crl) SC 647: "10. Section 107 I.P.C. Defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as on offence. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the Act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the https://hcservices.ecourts.gov.in/hcservices/ original offence. 'Abetted' in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence". In the case of Pawan Kumar Bhalotia V. State of W.B. 2005 SCC (Cri) 543 "6. In the suicide note, except referring to the name of the appellant at two places, there is no reference of any act or incidence whereby the appellant herein is alleged to have committed any wilful act or omission or intentionally aided or instigated the deceased Pranab Kumar Nag in committing the act of suicide. There is no case that the appellant has played any part or any role in any conspiracy, which ultimately instigated or resulted in the commission of suicide by deceased Pranab Kumar Nag". In the case of Sanju Alias Sanjay Singh Sengar V. State of M.P. 2002 SCC (Cri) 1141 "14. A plain reading of the suicide note would clearly show that the deceased was in great stress and depressed. One plausible reason could be that the deceased was without any work or avocation and at the same time indulged in drinking as revealed from the statement of the wife Smt Neelam Sengar. He was a frustrated man. Reading of the suicide note will clearly suggest that such a note is not the handiwork of a man with a sound mind and sense. Smt. Neelam Sengar, wife of the deceased, made a statement under Section 161 CrPC before the investigation officer. She stated that the deceased always indulged in drinking wine and was not doing any work. She also stated that on 26.07.1998 her husband came to them in an inebriated condition and was abusing her and other members of the family. The prosecution story, if believed, shows that the quarrel between the deceased and the appellant had taken place on 25.07.1998 and if the deceased came back to the house again on 26.07.1998, it cannot be said that the suicide by the deceased was the direct result of the quarrel that had taken https://hcservices.ecourts.gov.in/hcservices/ place on 25.07.1998. Viewed from the aforesaid circumstances independently we are clearly of the view that the ingredients of "abetment" are totally absent in the instant case for an offence under Section 306 IPC. It is in the statement of the wife that the deceased always remained in a drunken condition. It is common knowledge that excessive drinking leads one to debauchery. It clearly appeared, therefore, that the deceased was a victim of his own conduct unconnected with the quarrel that had ensued on 25.07.1998 where the appellant is stated to have used abusive language. Taking the totality of materials on record and facts and circumstances of the case into consideration, it will lead to the irresistible conclusion that it is the deceased and he alone, and none else, is responsible for his death". In the case of Swamy Prahaladdas V. State of M.P and another 1995 SCC (Cri) 943 "3. At the time of framing of charge, the trial court thought it appropriate to associate the appellant herein as an accused because of the words he uttered to the deceased. We think that just on the basis of that utterance the Court of Session was in error in summoning the appellant to face trial. In the first place it is difficult, in the facts and circumstances, to come to even a prima facie view that what was uttered by the appellant was enough to instigate the deceased to commit suicide. Those words are casual in nature which are often employed in the heat of the moment between quarrelling people Nothing serious is expected to follow thereafter. The said act does not reflect the requisite mens rea on the assumption that these words would be carried out in all events. Besides the deceased had plenty of time to weigh the pros and cons of the act by which he ultimately ended his life. It cannot be said that the suicide by the deceased was the direct result of the words uttered by the appellant. For these reasons, the error is apparent requiring rectification. The appeal is accordingly allowed. The orders of the High Court and https://hcservices.ecourts.gov.in/hcservices/ that of the Court of Session are thus upset. The appellant need not face the charge". In the case of Ramesh Kumar v. State of Chhattisgarh 2002 SCC (Cri) 1088 "19. The picture which emerges from a cumulative reading and assessment of the material available is this: presumably because of disinclination on the part of the accused to drop the deceased at her sister's residence the deceased felt disappointed, frustrated and depressed. She was overtaken by a feeling of shortcomings which she attributed to herself. She was overcome by a forceful feeling generating within her that in the assessment of her husband she did not deserve to be his life partner. The accused Ramesh may or must have told the deceased that she was free to go anywhere she liked. May be that was in a fit of anger as contrary to his wish and immediate convenience the deceased was emphatic on being dropped at her sister's residence to see her. Presumably the accused may have said some such thing – you are free to do whatever you wish and go wherever you like. The deceased being a pious Hindu wife felt that having being given in marriage by her parents to her husband, she had no other place to go excepting the house of her husband and if the husband had "freed" her she thought impulsively that the only thing which she could do was to kill herself, die peacefully and thus free herself according to her understanding of the husband's wish. Can this be called an abetment of suicide? Unfortunately, the trial court misspelt out the meaning of the expression attributed by the deceased to her husband as suggesting that the accused had made her free to commit suicide. Making the deceased free – to go whereever she like and to do whatever she wished, does not and cannot mean even by stretching that the accused had made the deceased free "to commit suicide" as held by the trial court and upheld by the High Court. 20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of https://hcservices.ecourts.gov.in/hcservices/ 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. 21. In State of W.B V. Orilal Jaiswal ((1994) 1 SCC 73 : 1994 SCC (Cri) 107), this 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 her life by committing suicide. If it transpires 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. 22. Sections 498-A and 306 IPC are independent and constitute different offences. Though, depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under Section 498-A and may also, if a course of conduct amounting to cruelty is established leaving no other option for the woman except to commit suicide, amount to abetment to commit suicide. However, merely because an accused has been held liable to be punished under Section 498-A IPC it does not follow that on the same evidence he must also https://hcservices.ecourts.gov.in/hcservices/ and necessarily be held guilty of having abetted the commission of suicide by the woman concerned. Evidential value of the two writings contained in diary, Article A is that of dying declarations. On the principle underlying admissibility of dying declaration in evidence that truth sits on the lips of a dying person and the court can convict an accused on the basis of such declaration where it inspires full confidence, there is no reason why the same principle should not be applied when such a dying declaration speaking of the cause of death exonerates the accused unless there is material available to form an opinion that the deceased while making such statement was trying to conceal the truth either having been persuaded to do so or because of sentiments for her husband. The writing on p.11 of diary (Article A ) clearly sates that the cause for committing suicide was her own feeling ashamed of her own faults. She categorically declares – none to be held responsible or harassed for her committing suicide. The writing on p.12 of diary (Article A) clearly suggests that sometime earlier also she had expressed her wish to commit suicide to her husband and the husband had taken a promise from her that she would not do so. On the date of incident, the husband probably told the deceased that she was free to go wherever she wished and wanted to go and this revived the earlier impulse of the deceased for committing suicide. The dying declaration Ext.P-10 corroborates the inference flowing from the two writings contained in the diary and as stated hereinabove. The conduct of the accused trying to put off the fire and taking his wife to the hospital also improbabilises the theory of his having abetted suicide. 23. In our opinion there is no evidence and material available on record wherefrom an inference of the accused-appellant having abetted the commission of suicide by Seema may necessarily be drawn. The totality of the circumstances discussed hereinabove, especially the dying declaration and the suicide notes left by the deceased herself, which fall for consideration within the https://hcservices.ecourts.gov.in/hcservices/ express "all the other circumstances of the case" employed in Section 113-A of the Evidence Act, do not permit the presumption thereunder being raised against the accused. The accused-appellant, therefore, deserves to be acquitted of the charge under Section 306 IPC". In the case of Shri Ram v. State of U.P. AIR 1975 Supreme Court 175 "6. The question which then arises for consideration, a question to which the Sessions Court and the High Court have not paid enough attention, is whether the only inference which arises from the fact that Violet gave the particular shout is that by so doing, she intended to facilite the murder of Kunwar Singh, Section 107 of the Penal Code which defines abetment provides to the extent material that a person abets the doing of a thing whom "intentionally aids, by any act or illegal omission, the doing of that thing". Explanation 2 to the section says that "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". Thus, 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 abettor 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 my 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 https://hcservices.ecourts.gov.in/hcservices/ 107". In the case of Anandha Thandavam & Ors Vs. Udaya Sundaram 1998 III Crimes 209 "3. The facts stated above very clearly indicate that the petitioners had not manner of connection whatsoever with the crime in question. The allegations made by the prosecution in the complaint as well as the evidence in court clearly postulate that the petitioners were neither at the scene nor had done any act to facilitate the cime being committed by A-1 Thiruchelvam. To constitute abetment person must instigate any other person to do a particular thing or he must engage himself with one or more persons in a conspiracy of doing that thing or he must intentionally aid by any act or illegally omit the doing of that thing. The definition of abetment under Section 107 of the Indian Penal Code portrays that to constitue abetment, the abettor must be shown to have intentionally aided the commission of the crime. On the facts of this case, the first and second clauses of Section 107, Indian Penal Code have to be necessarily excluded. Concerning the third clause of Section 107, Indian Penal Code as stated earlier, there is no material to indicate that the petitioners intentionally aided the commission of the offence. All that the evidence led by the prosecution will indicate will be that after the event the respondent went and questioned the petitioners who stated that their sister P.W.3 would only live thereafter with A-1 Thiruchelvam. The evidence, even if true, cannot constitute abetment to connect the petitioners with the crime in question. Intentional aiding and active complicity are the gist of the offence of abetment. It is not even enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime. Even such material is not available on the facts of this case". In the case of Thanga Durai V. State & Anr 2007 Cri L.J.4377 "8. This makes it clear that there should https://hcservices.ecourts.gov.in/hcservices/ be instigation when the case has to come under the first category and there should be intentional aid or illegal omission when the case comes under the third category. The second category need not be discussed. In view of the first and the third category under S.107 I.P.C, the accused should have instigated the deceased or he might have been in a specific surface of omission to prevent the commission of offence, but with intentional or to aid the deceased to commit suicide. From the facts available, it is clear that the accused will not come under the third category also since it is not the case of the prosecution that he intentionally aided by any specific act. 9.There is nothing to show that there was any illegal omission on the part of the accused as if he failed in his attempt to prevent the suicide. As per the allegation, it is only the petitioner uttered the words that "why should the deceased be alive." The suicidal note of the deceased is only to the extent that it was only the decision of the deceased and it was only the feeling of the deceased and there is nothing to suggest that the petitioner instigated the deceased to commit suicide". 4.Keeping in mind the parameters as spelt out in the decisions referred to above, this Court towards considering the question in issue may reproduce the translated version of the note that was allegedly recovered from the pocket of the accused. "I Arjun Singh hereby state to whomsoever it may concern, that in case any eventuality happens to me it will be because of Suresh Kumar S/o. Sherji Sakarnawala and Mohan Singh S/o.Bherji Sakarnawala, these two Brothers have taken Rs.66,00,0000/- (Rupees Sixty Six Lakhs only) and on being asked to return the same I have been threatened that they have lost the same in items (goods). They are refusing to pay the money and are asking me to do whatever I like. So what I can do, because they Suresh Kumar and Mohan Singh are rich people. If I inform my people friends/neighbours, there is no one to support me and help because they Suresh Kumar and https://hcservices.ecourts.gov.in/hcservices/ Mohan Singh are rich people. I once or twice asked Suresh Kumar S/o.Bherji that I have borrowed money from others and it is not my money and requested Suresh Kumar to return my money or else I will go to the Village and tell all people that the Suresh Kumar is not paying my money. He i.e., Suresh Kumar is threatening me that if I am going to speak to the villagers regarding the money matter payable by him, he will kill me. So I am frightened, that if he Suresh Kumar kills me what will happen to my children. Because of the threat of being killed by Suresh Kumar, Bherji Sakarnawala I have written this letter before hand itself. The reason being he has killed his own maternal uncle in Sakarna and tells people that his maternal uncle has lot of debts on him and he has died because of debts. But it is not the reality. Suresh Kumar S/o.Bherji Sakarnawala has taken all the money of his maternal uncle. Also what his uncle can do because he has kept his uncle along with him as shelter, because of this reason his uncle has died. I Arjun Singh brought money on loan from people and have to return the same. So I am writing down the names. So that in case if anything happens to me, what happens to all those from whom I have borrowed money. Hence, I am writing down their names. 1)Mohan Bag (Man-gilalji) - 25364252 2)HIT CO - 25360758 3)Arun Shah - 9841013839 4)Mathu - 25391101 5)Bharat Pen (Bhawarlalji) 6)My house Landlord, T.Ramaswamy - 25225591 7)Bharath Bhai (who stays in China). Thanking you, Sd/- ArjunSingh" 5.It can be seen the note above reproduced hardly would justify a charge under Section 306 IPC. On the face of it, the same does not disclose any material suggestive of abetment, as legally understood, in the death of the deceased. https://hcservices.ecourts.gov.in/hcservices/ 6.The learned Government Advocate (Crl.Side) placed before this Court the expert opinion gathered regarding the note. The expert had opined that while the signatures found in the note tallied with the comparative signatures of the deceased, the writing in the note were not beyond doubt. It is to be stated that such is a matter which does not arise for consideration by this Court at this stage. However, the learned Government Advocate (Crl.Side) rightly relied upon the decision in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and others, AIR(SC) (1983) 67, wherein in an appeal against the quash of the proceedings by the High Court, the Honourable Apex Court observed as follows: "19.In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the Court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused". 7.Considering the facts of the case and the rival submissions, this Court feels that this is a fit case to quash the registration of FIR for offences under Section 306 IPC. However, this Court hastens to add that it will be open for the respondent police to continue investigation in the matter. If the result of the investigation reveals the case to be one, not of suicidal death but a homicidal one, then it will be open to the investigating agency to file charge sheet against such of the persons who appear to have committed offences. 8.The Criminal Original Petitions are ordered accordingly. Consequently, the connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gm https://hcservices.ecourts.gov.in/hcservices/ To 1.The Inspector of Police, C-1, Flower Bazaar Police Station, Chennai. (Crime No.558 of 2007) 2.The Public Prosecutor, High Court, Madras – 600 104. NG(CO) km/15.12. Crl.O.P.Nos.33322 of 2007 and 36955 of 2007 https://hcservices.ecourts.gov.in/hcservices/