Mahesh Singh Yadav vs The State
2009 Latest Caselaw 3128 Del

                IN THE HIGH COURT OF DELHI

              + Bail.Application.No. 1568/2009

                                Date of decision: 12th August, 2009

     Mahesh Singh Yadav                  ... Petitioner
          through: Mr. Sidharth Luthra, Sr. Adv. with Mr. H.S.
                   Chaudhary and Mr. Mohammad Fasal, Adv.

                             VERSUS

     The State                       ....Respondents

through: Mr. Manoj Ohri, APP for the state with ASI Ram Phal from PS Sarai Rohilla

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL

1. Whether reporters of local papers may be allowed to see the Judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

GITA MITTAL, J(Oral)

1. By this application u/s 438 of the CrPC Sh. Mahesh Singh Yadav

seeks grant of anticipatory bail in FIR No.177/09. The facts giving rise

to the application to the extent necessary are briefly noticed

hereafter.

2. The applicant states that he was married Smt. Manju Yadav on

22nd May, 1983. From their wedlock, they were blessed with three

children. The eldest daughter namely Surbhi @ Swati was born on 19th

February, 1986 while a second daughter namely Priyanka was born on

19th May, 1990. Their third child, a son, born on 23 rd April, 1993 was

named Abhishek. The applicant submits that at this time, the parties

were residing at 554, Jain Mandir Gali, Chota Bazar, Shahdara, Delhi

with the parents of the applicant. Subsequently, it is stated that they

moved to a rented accommodation.

3. The applicant alleges interference and mis-behaviour in the

married life of the parties by the brothers of his wife. As per the

applicant, he was thrown out of the house on 12th February, 1999 by

his wife and her brothers after being beaten and that he has not

cohabited with his wife and children from such date.

4. On 30th June, 2009, Surbhi, the eldest daughter of the applicant

is alleged to have committed suicide at the age of about 23 years. On

the complaint of the wife of the applicant, the police officers of police

station Serai Rohila registered FIR No. 177/2009 on 30th June, 2009

under section 306/34 of the Indian Penal Code implicating the

petitioner, his relatives and a lady with whom the applicant is stated

to be residing and having an illicit relationship.

It is also urged that the deceased Surbhi has left a suicide note

implicating the applicant, his relatives and the same lady.

The applicant has sought grant of anticipatory bail in this case.

5. Mr. Sidharth Luthra, learned senior counsel appearing for the

applicant has urged at great length that the very fact that the

applicant was separated from his wife and children since 12th

February, 1999 by itself shows that there is no proximity or nexus

between any act of the applicant which could be relatable as a cause

of suicide by the deceased. It is submitted that a period of 10 years

had lapsed since the separation and for this reason, no connection can

be drawn between the cause of the suicide and any act or omission of

the applicant. It has further been urged that for the provisions of

Section 306 of the IPC to be attracted, the offence of abetment of

suicide has to fall within the ambit of the provisions of Section 107 of

the Indian Penal Code. The submission is that the applicant cannot be

implicated even for abetment of the suicide of his deceased daughter.

6. Learned senior counsel has urged at length that there was

extensive litigation between the applicant and his wife Smt. Manju

Yadav. It is pointed out that she had lodged a complaint registered by

the police station Farash Nagar, Delhi as FIR No. 167/1999 under

Section 498A/406 of the Indian Penal Code against the applicant and

his relatives which is pending trial in the Karkardooma Courts, Delhi.

Another complaint by his wife against the applicant FIR No. 249/00

was registered by the police station Farash Bazar under Section 406

IPC on the allegation that the applicant has not returned his wife's

Maruti Zen car despite her demand which is also pending for trial. The

wife of the applicant alongwith the children had filed a petition under

Section 125 of the Code of Criminal Procedure for grant of

maintenance and under Section 12 of the Domestic Violence Act which

are pending trial.

7. The applicant has submitted that he learnt about the act of

suicide having been committed by his daughter at around midnight of

16th/17th July, 2009 when the police from police station Sarai Rohilla

visited his house with his brother-in-law and some other anti-social

elements in his absence and ransacked his house. A grievance is

made in the application that he was not joined in the last rites and

ceremonies of his deceased daughter either by his wife or by any of

her relatives.

8. Learned senior counsel has urged at great length that having

regard to the length of the litigation and the animosity between the

applicant and his wife, he has been falsely implicated in the case.

9. It has also been urged that the deceased Surbhi @ Swati was

working as a teacher in the R.M. Arya Girls Senior Secondary School,

Raja Bazar, Gole Market, Delhi for the last one year and that no act or

omission is attributable to the applicant towards her unfortunate

death.

10. In support of the submission that no case of abetment by suicide

was made out against the applicant. Mr. Sidharth Luthra, learned

senior counsel has placed reliance on the pronouncement of the Apex

Court reported at (2002) 2 JCC 847 Sanju @ Sanjay Singh Sengar vs

State of Madhya Pradesh and the pronouncement of this court

reported at 89 (2001) DLT 150 Roop Kishore Madan vs. State.

11. Learned senior counsel has urged at some length that the

applicant was separated from the deceased for a period of 10 years

and referred to the litigation noticed above to urge that there is no

proximity between any act of the applicant and the suicide.

12. Learned APP, on the other hand, has vehemently contested the

submissions made by learned senior counsel for the applicant. It is

contended that the deceased had suffered gravely at the callous

disregard and cruelty of her father who is the present applicant and

has committed suicide only because of his acts and omissions. He has

contended that the deceased has left a suicide note wherein she has

made specific allegations against the applicant and his relatives.

The deceased suffered complete rejection from the applicant and his

relatives and has ascribed a specific role to the applicant for the

extreme trauma leading to her suicide.

13. So far as the pronouncement reported at 89 (2001) DLT 150

Roop Kishore Madan vs. State is concerned, this judgment was

rendered in a case where the deceased was having a relationship with

a married person and in the suicide note left by her she stated that

she was mentally tortured by the petitioner for the reason that he had

abused and emotionally blackmailed her; promised to marry her after

divorcing his wife but had refused to do so. The court considered the

conduct of the deceased person and amongst others circumstances,

had noted the fact that the deceased was fully aware of the fact that

the petitioner was a married man and knowingly had got into the

relationship. It was observed that the deceased was frustrated due to

the petitioner not leaving his wife.

14. In (2002) 2 JCC 847 Sanju @ Sanjay Singh Sengar vs State

of Madhya Pradesh, the Apex Court was concerned with a petition

seeking quashing of charges which had been framed against the

appellant under Section 306 of the Indian Penal Code. In para 12 of

this judgment, the court laid down the principle that the word

'instigate' denotes incitement or urging to do some drastic or

unadvisable action or to stimulate or incite. Presence of mens rea,

therefore, is the necessary concomitant of instigation. It is common

knowledge that the words uttered in a quarrel or in a spur of the

moment cannot be taken to be uttered with mens rea.

15. In the case before the Apex Court, the court had referred to the

fact that the statement made by the brother of the deceased under

Section 161 of the CrPC did not attribute any statement to the

appellant to the effect that he should go and die. However he

improved on his statement in court and attributed this exhortion to

the appellant which was disbelieved. It was further observed that

between the date of the alleged quarrel between the deceased and

the appellant and the suicide, there was enough time for the deceased

to think over and reflect over the matter and therefore it could not be

said that the abusive language which had been used by the appellant

had driven the deceased to commit suicide. The court was of the view

that the suicide by the deceased was not proximate to the abusive

language attributed to the appellant. It is to be noted that the case of

the prosecution against the appellant was that of having instigated

him to commit suicide.

16. As per section 306 of the Indian Penal Code, if any person

commits suicide, who ever abets the commission of such suicide is

also liable for the punishment detailed in the section.

Abetment of a thing has been defined under Section 107 of the

Indian Penal Code. Learned senior counsel for the applicant has

contended that there is no act which could be attributed to the

applicant which could be covered under any part of Section 107. He

has placed reliance on two judicial precedents, both relating to

instigation of a person to commit suicide. However, it requires to be

noted that section 107 contemplates three kinds of actions on the part

of a person who is accused of abetment of an offence. While the first

part refers to instigation of any person to do a thing, the second part

is concerned with a conspiracy for the doing of any thing. The third

part of section 107 refers to an act or illegal omission of a person

whereby he intentionally aids the doing of that thing.

17. It is to be noted that no absolute proposition can be urged so far

as a case under Section 107 or 306 of the Indian Penal Code is

concerned. The question as to whether an act or omission on the part

of an accused person has proximity or nexus or provides the stimulus

or instigation for a person committing suicide has to be considered in

the facts and circumstances of every case. Further more, evidence

which is available before a court at the time of final consideration of

the case or even after the filing of the charge sheet is not available to

the court at the time when the police is still investigating the matter

and an application seeking grant of anticipatory bail is under

consideration. This fine but clear distinction is to be borne in mind

while considering the prayer for anticipatory bail made on behalf of an

accused person. At the same time, a careful balance has to be drawn

between the rights of the accused person and his entitlement to

liberty as against the requirement of custodial

interrogation which may be necessary in order to effectively and fairly

investigate the matter by the investigating agency.

18. So far as the argument that the applicant had separated from his

family members including the deceased about a decade ago and

consequently he can have no connection to her act of suicide is

concerned, has to be scrutinised in the facts and circumstances of the

case and cannot by itself also be urged as an entitlement to

anticipatory bail.

19. It is also to be kept in mind that no absolute proposition can be

laid down for evaluating conduct which may instigate a person to

commit suicide. The standard has to be that of impact of conduct on a

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reasonable person while carefully evaluating the effect of the conduct

attributed to the accused person or the deceased person.

20. Section 107 is thus not confined to a positive action alone

whereby there is instigation to commit suicide. It covers 'omission'

as well.

21. The present case does not relate to suicide by a spouse. In a

given case, while the same conduct may be considered as held to be

as not amounting to something which instigates a spouse to take

his/her life, the same conduct may be highly detrimental and

provocative in the mind of their child even of normal sensibilities.

Behaviour of sparring spouses emanates from several feelings and

perceptions of matrimonial rights and wrongs. None of these are

expected to colour either emotions or conduct towards the child. This

is not to say that such conduct may be permissible behaviour between

spouses. This court is called upon to consider acts and omissions

which could be considered as sufficient to instigate an off spring to

commit suicide. It would, therefore, not be proper to draw parity

between conduct of a husband vis-a-vis his wife and the impact of the

conduct on his children. For this reason a distinction is to be drawn

between the judicial precedents relied upon by learned senior

counsel for the

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petitioner. A young twenty three year old daughter who despite her

stated desperate situation managed to get education and secure

employment, committed suicide for acts and omissions which she has

attributed to her father, the present applicant.

22. The suicide note has been placed by learned APP before this

court. The same refers to the applicant as the cause for the

destruction ('barbadi') of the deceased and her mother and siblings.

The anguish of the deceased is to be found in her statement that she

alongwith the siblings were the responsibility of the applicant and

instead they have been dumped on her mother's relatives. She has

stated that instead of bearing their responsibility, he is enjoying an

illicit relationship with his consort. There is repeated reference to the

humiliation and the trauma which the deceased was undergoing at the

hands of the applicant.

23. During the course of arguments, it was stated on behalf of the

applicant that he has paid maintenance of total sum of Rs.1 lakh over

the 10 years to his wife and three children. The same works out to

payment of barely about Rs.1,000/- per month. Even to secure this

paltry amount, it appears that not only the wife of the applicant but

his children were dragged into protracted and, it appears, highly

contested extensive litigation which is pending even on date and has

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not concluded finally despite a decade having passed. This court does

not have the benefit of the defence taken by the applicant to his

daughter's prayers for maintenance and support. Prima facie the

applicant did not support her prayers for meeting her needs.

Financial deprivation, humiliation in society, the continued

rejection or ostracisation by the applicant and his relatives and shame

which the deceased appears to have been feeling at the acts of the

applicant and the rejection of his real family has also been expressed

by the deceased.

The deceased refers to the extremes which have been suffered

by not only all of them but her maternal relatives as well who have

been compelled to provide shelter to them because of the actions and

omissions on the part of the applicant.

24. From the above narration, it would appear that the deceased

would have been a child of twelve or thirteen years when her parents

separated. The anguish of a child cannot be compared with the

animosity which may be nurtured by a spouse. Undoubtedly, the pain

threshold varies from person to person. The forebearance which

prima facie appears to have been reflected in the conduct of the

deceased in the suicide note itself reflects the resilience which any

other reasonable person may not have borne. Therefore, it cannot

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be urged that merely because the torment may have existed for a

long time, the acts and omissions which are attributed by the

deceased to the applicant have no nexus or proximity with the cause

of death. What was the kind of hope or optimism that the child

nurtured and what was her reaction to the actions or omissions of the

applicant; how the separation from her father and deprivation of

sustenance impacted her and somehow turned to complete

hopelessness is stated in the suicide note and what act or omission

triggered off final action of the deceased is to be investigated.

25. It may be noticed that the deceased does not appear to be a

person who is hyper sensitive. Prima facie, her conduct does not

appear to be in the nature of sensitivity to ordinary petulance, discord

and differences in domestic life which may be common to the society

to which the parties belong.

26. The present matter is at the initial stage of investigation and the

police is looking into the entire matter. It has been urged that

interrogation of the applicant is essential for investigation.

27. So far as the investigation is concerned, at this stage, it

therefore cannot be said that the conduct of the applicant has no

connection or nexus or proximity with the cause of suicide by his

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deceased daughter. The deceased has not only referred to the

omissions by the applicant with regard to his responsibility towards

her mother, herself and her siblings but also to his action of

maintaining an illicit relationship. What was the last straw on the

camel's back and triggered the deceased action in hanging herself by

the fan using her chunni would be revealed during the course of

investigation.

At this stage, it is, therefore, not possible to hold that there is no

element of abetment to the act of suicide committed by the deceased

daughter of the applicant or that he has been falsely implicated.

I, therefore, find no merit in this application which is dismissed.

August 12, 2009                                    Gita Mittal, J.
kr