Supreme Court: In a criminal appeal against the Gujarat High Court’s decision, whereby the appeal by the present four accused against the Trial Court’s decision convicting them for offences punishable under Sections 306 and 114 of the Penal Code, 1860 (‘IPC’), the Division Bench of Abhay S. Oka and Ujjal Bhuyan*, JJ. allowed the appeal and set aside the impugned decisions, as no offence of abetment to commit suicide could be made out against the accused persons considering that act of incitement on the part of the accused persons proximate to the date on which the deceased committed suicide was absent.
Background
The prosecution’s case was that a First Information Report (FIR) was lodged stating that her husband-deceased was found lying at her house and the people around them informed her that he had consumed poison. Foul smell of poison was coming from his mouth. It was also stated that a case of misappropriation was registered against her husband in his office. Her husband had informed her that one cleaning worker (accused 3) in his office had trapped him in a love scandal and thereafter started blackmailing him for money. It was for this reason that he had to withdraw money from the office to give to the accused 3, her husband, mother and other relative (accused persons). When the accused persons were called to return the money, they initially agreed but did not return and also took away ornaments.
From the note found with her husband, it was apparent that the accused persons were blackmailing her husband after taking various photographs and videos of him with the female accused person in a compromising position.
The Trial Court convicted the accused persons and sentenced them to rigorous imprisonment (RI) for 5 years and to pay a fine of Rs. 10,000 each with a default stipulation. Aggrieved by the conviction and sentence, accused persons preferred appeal before the High Court, which came to be dismissed.
Analysis and Decision
Perusing Section 306 of the IPC, the Court said that the crucial word in this provision is ‘abets’. ‘Abetment’ is defined under Section 107 of the IPC. As per Section 107, a person would be abetting the doing of a thing if he instigates any person to do that thing or if he encourages with one or more person or persons in any conspiracy for doing that thing or if he intentionally aids by any act or illegal omission doing of that thing. The Court also added that Section 114 of the IPC, which stipulates that whenever any person is absent but was present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such an act or offence and would be liable to be punished as an abettor, is an explanation or clarification of Section 107.
The Court referred to Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618, wherein, it was held that to ‘instigate’ means to goad, urge, provoke, incite or encourage to do ‘an act’. To satisfy the requirement of ‘instigation’, it is not necessary that actual words must be used to that effect or that the words or act should necessarily and specifically be suggestive of the consequence. Further, the Cour noted that in Amalendu Pal v. State of West Bengal, (2010) 1 SCC 707, it was held that in a case of alleged abetment of suicide, there must be proof of direct or indirect act(s) of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the deceased to commit suicide, conviction in terms of Section 306 IPC would not be sustained.
“Abetment to commit suicide involves a mental process of instigating a person or intentionally aiding a person in the doing of a thing. Without a positive proximate act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. Besides, in order to convict a person under Section 306 IPC, there has to be a clear mens rea to commit the offence.”
Additionally, the Court relied on Amudha v. State, 2024 SCC OnLine SC 373, wherein it was held that there has to be an act of incitement on the part of the accused proximate to the date on which the deceased committed suicide. The act attributed should not only be proximate to the time of suicide but should also be of such a nature that the deceased was left with no alternative but to take the drastic step of committing suicide.
Perusing the evidence on record, including the witness statements, the Court noted that the incident had occurred on 25-04-2009, the complaint was lodged by deceased’s wife on 14-05-2009, after a delay of 20 days. The Court stated that though delay in lodging of FIR is not always fatal but considering that the delay of 20 days which had remained unexplained, it had a material bearing on the prosecution case. The Court also perused head constable’s statement, wherein she categorically stated that no suicide note was found at the time of the inquest and that no such note was presented at the police station either.
Regarding the significant inconsistencies in the evidence of the prosecution witnesses regarding the occurrence, the Court pointed out that the deceased’s wife- complainant stated in her substantive evidence that on being informed about her mother-in-law’s illness, she had come home from her office, where she saw a huge crowd in front of her residence. When she entered her house, she saw the dead body of her husband. However, in her cross-examination, she stated that when she reached home, the relatives had already taken her husband to the hospital. Hence, the Court said that such inconsistent testimony cast serious doubts about the veracity of the evidence of the said prosecution witness. The Court also noted that PW 2 and 7 had informed the wife of the deceased about the suicide note and that from the time of death till the lodging of complaint, the suicide note was with PW-7 which cast serious aspersions about the credibility of the suicide note. Further, the Court also noted inconsistency the statements of the brothers of the deceased.
The Court stated that the very sub-stratum of the prosecution case that the accused persons were making illegal gain by blackmailing the deceased fell flat, as there was nothing on record to show recovery of any jewellery (ornaments) by the police from the accused persons. No signed cheques of the deceased or cheque book or passbook of the deceased were recovered and exhibited before the Court.
Though there were delayed and controversial circumstances under which the suicide note surfaced which made it highly suspect, the Court analysed the sum and substance of the suicide note allegedly written by the deceased. Therein, it was stated that the accused 3 had joined his office following the illness of the existing cleaner. Slowly they developed intimacy. It was alleged that she had performed ‘black art’ on the deceased so much so that, he fell in love with her. Taking advantage of the situation, she took photographs and video of them in compromising position. As the accused persons started blackmailing him, he initially paid Rs. 80,000 to them and thereafter started giving them ornaments. He also gave them his passbook and cheque books after signing on the cheques. Because of such blackmailing, he had to misappropriate money from his office for which he was suspended. All these circumstances led him to commit suicide as he had no other alternative.
The Court noted that the handwriting expert had opined that handwriting was of the deceased. However, the prosecution did not examine the expert as an expert witness. In this context, the Court relied on Keshav Dutt v. State of Haryana, (2010) 9 SCC 286 wherein, it was viewed that when the trial court chose to rely on the report of the handwriting expert, it ought to have examined the handwriting expert in order to give an opportunity to the accused to cross examine the said expert.
In Shashi Kumar Banerjee v. Subodh Kumar Banerjee, 1963 SCC OnLine SC 114 the Court observed that expert’s evidence as to handwriting is opinion evidence, it can rarely take the place of substantive evidence and before such opinion evidence is considered, it is necessary to see if it is corroborated either by clear direct evidence or by circumstantial evidence.
The Court stated that, even if the suicide note was taken as correct and genuine, the act of incitement on the part of the accused persons proximate to the date on which the deceased committed suicide was absent. Allowing the appeal, the Court held that no act was attributable to the accused persons proximate to the time of suicide which was of such a nature that the deceased was left with no alternative but to commit suicide.
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