State vs Ramesh Sharma & Ors
2012 Latest Caselaw 2306 Del

*              HIGH COURT OF DELHI AT NEW DELHI

+                    CRL. L.P. No. 40/2007

                                 Date of Decision : 10.04.2012

STATE                                         ...... Petitioner
                               Through: Mr. Sunil Sharma, APP

                                Versus

RAMESH SHARMA & ORS.          ......      Respondents
                   Through: Ms. Saahila Lamba, Adv.
                            for respondent no.3

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (Oral)

1. This is a leave to appeal filed by the State against the

judgment dated 21.11.2006 passed by Shri Rajneesh

Kumar Gupta, the learned Additional Sessions Judge,

Delhi, acquitting three respondents, namely, Ramesh

Chand, Shambhu Nath and Chhotey Lal. It may be

pertinent to mention here that so far as Ramesh Chand

and Shambhu Nath are concerned, they are stated to

have died during the pendency of the appeal and this fact

was recorded by my learned Predecessor in the order

dated 22.2.2011 and thus the present appeal is surviving

only against the remaining respondent No.3, Chhotey Lal.

2. Briefly stated, the case of the Prosecution is that, on

21.4.1998, the State had received information that a

family of 4-5 persons had committed suicide at House

No.1/213, Ghat No.6, Yamuna Bazar, Delhi. A Police

party was sent to the said house and five dead bodies

were found. These were of one Smt. Mithilesh, who was

found hanging from the ceiling fan. Apart from this, four

children, Shikha and Nidhi were lying on the bed and

Umesh and Parul were lying on the floor. On the wall it

was found scribed by a sketch pen "Ramesh Hatyara Hai.

Shambhu Vah Chhotey Lal Hatyare Hain. In Sabhi Nein

Hamain Atam Hatya Karne Ko Majboor Kiya Hai" and

during the course of Search of the house, one register

containing a suicide note written by the deceased

Mithilesh was also found, which was seized.

3. After investigation, a Chargesheet under Section 306/34

IPC was filed against the three respondents, two of

whom are dead.

4. The Prosecution, in support of its case, examined 24

witnesses. After recording the statement of the accused

persons under Section 313, two defence witnesses were

also examined. The learned Trial Court, after hearing the

arguments and analyzing the evidence, acquitted all the

three accused persons of the charge of abetment of

suicide holding that there was absence of mens rea to

constitute the offence of abetment of suicide and

moreover, it was not established that there was any

incitement, goading etc. on the part of any of the

accused persons with the intention to compel the

deceased persons to commit suicide. Accordingly, all the

three accused persons were acquitted.

5. I have heard the learned APP for the State and the

learned counsel for the respondent no.3. I have also

gone through the record. There is no dispute about the

fact that Section 306 IPC makes abetment of suicide as a

penal offence. The word „abetment‟ has been defined by

Section 107 IPC instigating the victim to commit the

offence and engage himself in a conspiracy with others

for the commission of an offence or intentionally aiding

by any act or illegal omission to the commission of the

offence. The Hon‟ble Supreme Court, in Sanju alias

Sanjay Singh Sengar -vs- State of Madhya Pradesh,

2002 Cri.L.J.2796, has observed that the word „instigate‟

denotes incitement or urging to do some drastic or

unadvisable action or to stimulate or to incite. It has

been held that the presence of mens rea is a necessary

concomitant of the instigation. It was also observed that

it is a common knowledge that the words uttered in a

quarrel or on the spur of a moment cannot be said to be

uttered with mens rea. Thus, the aforesaid judgment

would clearly show that there are two essential things in

order to constitute the offence of abetment - firstly,

there must be a „mens rea' and secondly there must be

an act or omission attributable to the accused which

should be the proximate cause of the death of the victim

or, in other words, death must be the proximate cause of

inciting, goading, compelling or prompting the victim to

take his or her own life. If this connection of proximity

between the act or the omission and the cause of death

is not established, then the offence of abetment will not

be made out. In the instant case, there are three

material witnesses whose testimonies are crucial in order

to see the liability of the only surviving accused so far as

the offence under Section 306 IPC is concerned.

6. It is not in dispute that Chhotey Lal was living only as a

tenant in the premises purportedly belonging to the

deceased Mithilesh, PW1, Gopal Narain Tripathi, the

brother of the deceased Mithilesh has testified that

Ramesh Chand, who was the bother-in-law of the

deceased Mithilesh, had asked Chhotey Lal, that is the

only surviving respondent and Shambhu Nath, the

respondent no.2, (since deceased), who were the tenants

in the house of the deceased Mithilesh, not to pay the

rent to the deceased Mithilesh. It has also been stated

that they had stopped the payment of the rent to the

deceased Mithilesh, because of which her financial

condition had worsened. PW3, Kali Kishan is another

material witness who had supported the version that

Ramesh Chand was bent upon making the life of the

deceased Mithilesh miserable and there were number of

disputes pending between Mithilesh and the present

respondents regarding the non-payment of the rent.

Similarly, PW4, Asha Tripathi, has also deposed that the

deceased Mithilesh was related to her as Nanad and

Ramesh Chand, the Jeth, used to harass her and made

her life miserable. She had also corroborated that

Ramesh Chand had stated to the tenants, namely, the

present respondents not to pay the rent to the deceased

Mithilesh. Thus, on the basis of this statement, the

learned ASJ had concluded that there was absolutely no

mens rea on the part of the three accused persons nor

was there any act or omission attributable to the said

respondents which could be said to be constituting an

offence of abetting Mithilesh to take her own life. This

Court also subscribe to the same view that before the

respondent, Chhotey Lal, could be held to be guilty, there

ought to have been some positive evidence with regard

to any act or omission on his part which could be said to

incite, prompt, goad or compel the victim Mithilesh to

take her own life. This representation to Chhotey Lal by

Ramesh Chand, who happened to be the relative of the

deceased, not to pay the rent to his landlady, namely,

Mithilesh, even if assumed to be correct, would hardly, in

my view, qualify to meet the requirements of Section 107

IPC so as to constitute abetment, much less can it be

said that the offence of abetment is proved qua him by

the Prosecution.

7. Accordingly, I feel that no ground worth consideration is

made out by the learned APP which would warrant the

grant of leave to appeal against the impugned judgment

dated 21.11.2006 acquitting the respondents, especially

the respondent no.3, Chhotey Lal for an offence under

Section 306/34 IPC. I, accordingly, dismiss the leave to

appeal as being without any merit. I discharge the Bail

Bonds of the respondent no.3.

8. File be consigned to the Record Room.

V.K. SHALI, J.

APRIL 10, 2012 tp