Madras High Court

Sekar vs State By on 21 December, 2021

                                                                                     Crl.R.C.No.767 of 2015
                                                                                   and Crl.M.P.No.1 of 2015



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 21.12.2021

                                                         CORAM:

                                     THE HON'BLE Ms.JUSTICE R.N.MANJULA

                                                Crl.R.C.No.767 of 2015
                                                         and
                                                 Crl.M.P.No.1 of 2015
                  Sekar                                                          ... Petitioner

                                                            Vs.
                  State by
                  Inspector of Police,
                  H-1, Washermenpet Police Station,
                  Chennai-21
                  Crime No.717 of 2011                                          ... Respondent

                          Criminal Revision Case filed under Sections 397 and 401 Cr.P.C praying
                  to call for records and set aside the order passed by the learned III Additional
                  Sessions Judge, Chennai, i/c learned II Additional Sessions Judge, Chennai in
                  Crl.M.P.No.1857 of 2015 dated 10.07.2015 in S.C.No.399 of 2014.

                                        For Petitioner       : Mr.A.Nagarajan
                                        For Respondent      : Mr.A.Gopinath, GA (Crl.side)
                                                           ***
                                                         ORDER

The Criminal Revision Case has been preferred challenging the

judgment of the learned III Additional Sessions Judge, Chennai, i/c learned II

https://www.mhc.tn.gov.in/judis Crl.R.C.No.767 of 2015 and Crl.M.P.No.1 of 2015

Additional Sessions Judge, Chennai in Crl.M.P.No.1857 of 2015 dated

10.07.2015 in S.C.No.399 of 2014.

2. The above miscellaneous petition has been filed by the

revision petitioner before the learned Sessions Judge for discharging him from

the charges for the offence under Section 306 IPC.

3. The case of the prosecution is that the deceased has been living

along with his family at a temple house belonging to Kothandaramar temple

near Washermenpet. The accused is a clerk working under the Executive

Officer of the said temple. An eviction order has already been passed by the

civil Court and even thereafter, the deceased was living in the temple premises

without paying rental dues. When the deceased and his wife came to the office

of the Executive Officer, the accused abused him and because of which the

deceased had committed suicide.

4. A case has been registered based on the complaint given by the

deceased immediately after set fire on himself and got burnt. The case has

https://www.mhc.tn.gov.in/judis Crl.R.C.No.767 of 2015 and Crl.M.P.No.1 of 2015

been registered in Crime No.717 of 2011 for the offence under Section 309

IPC. At that point of time, no case has been registered against the deceased for

offence under Section 309 r/w. 109 IPC. It appears from records that in the

complaint given by the deceased, the deceased himself is the accused for

committing the offence under Section 309 IPC. The averment made in the

complaint would show about the deceased himself had admitted about a civil

case in connection with his eviction and it was over. Thereafter, he went to the

office of the Executive officer for settling the rental dues. It is alleged that

when the deceased was conversing with the Executive Officer, the accused,

who was working as a Clerk in that office came and uttered the following

words:

“,tq;f vy;yhk; jpULthq;f> J}f;F Nghl;Lf;F thq;f> fpU\;zhapy; Cj;jpf;Fthq;f> nghWf;fp nghWk;Nghf;F vd;W mrpq;fkhf jpl;bdhd;. mbf;fTk;

te;jhh;> ehd; fkp\dh;fpl;Nl gpbr;R nfhLj;J nrapYf;F mDg;gpLNthd;> nghz;lhl;bia $l;bfpl;L Nghlh ,y;Nyd;dh me;j tPlb ; Ny ,Uf;f khl;Nl.”

5. It is alleged by the deceased in his complaint that because of

the above words, he got frustrated and purchased petrol and went near the

https://www.mhc.tn.gov.in/judis Crl.R.C.No.767 of 2015 and Crl.M.P.No.1 of 2015

E.O.Office and poured the petrol over him and set fire.

6. The Petition filed before the learned III Additional Sessions

Judge, Chennai, by the accused to discharge him was dismissed by the trial

Judge for the following reasons:

“vdNt ,t; tof;fpid nghWj;J Fw;wk;rhl;lg;gl;lth; kPjhd tof;if rhl;rpfs; kw;Wk; rhz;whtzq;fspd; mbg;gilapy; tprhhpj;J mjd; gpwNf mtiu ,e;j tof;fpypUe;J ePf;fyhkh my;yJ Ntz;lhkh vd;gJ KbT nra;a KbAk; jw;NghJs;s Mtzq;fs;> thf;F%yq;fs;> Gyd;tprhuiz nra;jpfspypUe;J vjphp kPJ Fw;wr;rhl;L tidtjw;Fhpa Nghjpa mbg;gil fhuzq;fs; cs;sjhf njd;gLtjhYk;

kDjhuUf;F Mjuthd #o;epiyNah my;yJ MjuTfNsh vJTk; vOhjepiyapYk; kDjhuUk; jdJ jug;gpid ve;jypjj;jpYk; jw;NghJ epUgpj;Jf; nfhs;shj epiyapYk; Muk;gfhy fl;lj;jpYs;s ,t;tof;fpypUe;J jw;NghJ kDjhuiu tof;fpy; ,Ue;J tpLtpf;f ,ayhJ.”

7. According to the learned trial Judge, the accused cannot be

discharged from the offence, if there are sufficient grounds to frame charges

against him for the offence under Section 306 IPC. It is to be noted that the

accused was brought into the case subsequent to the death of the deceased and

https://www.mhc.tn.gov.in/judis Crl.R.C.No.767 of 2015 and Crl.M.P.No.1 of 2015

he has been charged for the offence under Section 306 IPC. Aggrieved over

that the petitioner has filed the criminal revision case

8. Heard the learned counsel for the petitioner and the learned

Government Advocate (Crl.Side) for the State.

9. The learned counsel for the petitioner submitted that there is no

proximity between suicide committed by the deceased and the action on the

part of the accused. He further submitted that when the accused had not done

any action or omission and created such circumstances, which would leave the

deceased to chose no other option except to commit suicide. It is further

submitted that no such case has been made out from the records of the

prosecution; since the accused is a Government servant, he was threatened by

the deceased for having executed his lawful duties.

10. In support of his above contentions, he cited the decision of

the Hon'ble Supreme Court rendered in Shabbir Hussain Vs. The State of

Madhya Pradesh & ORS reported in LL 2021 SC 341. In the said judgment it

https://www.mhc.tn.gov.in/judis Crl.R.C.No.767 of 2015 and Crl.M.P.No.1 of 2015

is held as under:

“Abetment by a person is when a person instigates another to do

something. Instigation can be inferred where the accused had, by his acts or

omission created such circumstances that the deceased was left with no

option except to commit suicide. [Chitresh Kumar Chopra V. State

(Government of NCT of Delhi)(2009) 16 SCC 605]”

11. The learned Government Advocate (Crl.Side) has stated that

when prima facie materials are available against the accused, it is uncalled for,

the trial Court to look into the merits of the case and discharge the accused.

He further submitted that the learned trial Judge has rightly appreciated the

question of law and dismissed the petition.

12. Points for consideration:

“Whether the sentence imposed by the lower Appellate Court

confirming the judgment of the learned trial Judge is unfair, improper or not

legal and in conformity with the offence proved to have committed by the

accused?”

https://www.mhc.tn.gov.in/judis Crl.R.C.No.767 of 2015 and Crl.M.P.No.1 of 2015

13. It has been held time and again by the Hon'ble Supreme

Court in various cases that in order to charge the accused for the offence under

Section 306 IPC, the prosecution has to establish that some action on the part

of the accused should amount to abetment or instigation so as to induce the

deceased to opt the one and only choice of committing suicide. With regard to

the fact of abetment, there should be some intentional aiding and doing

something in order to facilitate the deceased to commit suicide.

14. In the case on hand, even as per the statement of the deceased,

the accused was not present near the deceased, when he poured petrol upon

himself and set fire. The deceased has chosen the place of occurrence near the

office of the Executive Office and self-humiliated him. This is obviously with

an intention that he should be noticed by the authorities, more specifically by

the accused. This would only show that the deceased had grudge against the

accused and in order to avenge his revenge on him, the deceased went

extremely sadistic and self-humiliated by pointing the accused as the reason

for his death. The accused had not abetted any act of suicide by doing some

acts, which would amount to aiding the deceased to commit suicide. The

accused, on his own volition, went to the petrol bunk, bought petrol and set

fire on himself.

https://www.mhc.tn.gov.in/judis Crl.R.C.No.767 of 2015 and Crl.M.P.No.1 of 2015

15. In this context, it is relevant to refer the decision of the

Hon'ble Supreme Court rendered in Gurcharan Singh Vs. State of Punjab

reported in (2020) 10 SCC Online SC 796. In the said judgment, the Hon'ble

Supreme Court had held that in order to prove the offence of abetment, the

state of mind on the part of the accused should be visible and it should prove

that the accused has guilty mind to abet the deceased to commit suicide. The

relevant observation in the judgment in:

“10.The submissions of the learned counsel have been considered. In order to give the finding of abetment under Section 107 IPC, the accused should instigate a person either by act of omission or commission and only then, a case of abetment is made out. In the present case, however, there is no direct evidence of cruelty against the husband or the in-laws. There is nothing on record to show which particular hope or expectation of the deceased was frustrated by the husband. Evidence is also lacking on wilful neglect of the appellant, which led to the suicidal death. Whereas contrary evidence is available to suggest that care and treatment was given to the deceased in the matrimonial home and in the hospital, and during the three years of

https://www.mhc.tn.gov.in/judis Crl.R.C.No.767 of 2015 and Crl.M.P.No.1 of 2015

marriage, there was no instance of maltreatment, attributable to dowry demand. The demand of Rs 20,000 for purchase of a plot (in front of the residence which might have incidentally become available for sale just at that time), after three years of marriage, was ruled out by the trial court as the possible cause for the suicidal death. In any case, PW 2 stated that this sum was a “cash loan” asked for buying the plot. Thus, a loan may have been sought by the accused which could not be given. But there is nothing to show that the deceased was harassed on this count in the matrimonial home. In the face of such material, it is difficult to conclude that Shinder Kaur was pushed to commit suicide by the circumstances or atmosphere created by the appellant.

....

15. As in all crimes, mens rea has to be established.

To prove the offence of abetment, as specified under Section 107 IPC, the state of mind to commit a particular crime must be visible, to determine the culpability. In order to prove mens rea, there has to be something on record to establish or show that the appellant herein had a guilty mind and in furtherance of that state of mind, abetted the suicide

https://www.mhc.tn.gov.in/judis Crl.R.C.No.767 of 2015 and Crl.M.P.No.1 of 2015

of the deceased. The ingredient of mens rea cannot be assumed to be ostensibly present but has to be visible and conspicuous. However, what transpires in the present matter is that both the trial court as well as the High Court never examined whether the appellant had the mens rea for the crime he is held to have committed. The conviction of the appellant by the trial court as well as the High Court on the theory that the woman with two young kids might have committed suicide possibly because of the harassment faced by her in the matrimonial house is not at all borne out by the evidence in the case. Testimonies of the PWs do not show that the wife was unhappy because of the appellant and she was forced to take such a step on his account. ....

19. Proceeding with the above understanding of the law and applying the ratios to the facts in the present case, what is apparent is that no overt act or illegal omission is seen from the appellant's side, in taking due care of his deceased wife. The evidence also does not indicate that the deceased faced persistent harassment from her husband. Nothing to this effect is testified by the parents or any of the other prosecution witnesses. The trial court and the

https://www.mhc.tn.gov.in/judis Crl.R.C.No.767 of 2015 and Crl.M.P.No.1 of 2015

High Court speculated on the unnatural death and without any evidence concluded only through conjectures, that the appellant is guilty of abetting the suicide of his wife.

20. In such circumstances, we have no hesitation in declaring that the trial court and the High Court erred in concluding that the deceased was driven to commit suicide by the circumstances or atmosphere in the matrimonial home. This is nothing more than an inference, without any material support. Therefore, the same cannot be the basis for sustaining conviction of the appellant under Section 306 IPC.”

16. The judgment of the Hon'ble Supreme Court rendered in

Sanju Alias Sanjay Singh Sengar Vs. State of Madhya Pradesh reported in

(2002) 5 SCC 371 also lends support to the above said point as below:

“6.Section 107 IPC defines abetment to mean that a person abet 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

https://www.mhc.tn.gov.in/judis Crl.R.C.No.767 of 2015 and Crl.M.P.No.1 of 2015

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.”

17. In yet another decision of the Hon'ble Supreme Court

rendered in Gangula Mohan Reddy Vs. State of Andhra Pradesh reported in

(2010) 1 SCC 750. The Hon'ble Supreme Court held that suicide itself is not

an offence under Section 302 IPC. In the case on hand the deceased has been

booked for the offence under Section 309 IPC only immediately after the

filing of his complaint. Hence the above judgment seems to be relevant and

the said judgment is held as under:

6. The learned counsel for the appellant submitted that the conviction of the appellant is totally unsustainable because no ingredients of offence under Section 306 of the Code can be made out in the facts and circumstances of this case. It would be profitable to set out Section 306 of the Code:

“306. Abetment of suicide.—If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of

https://www.mhc.tn.gov.in/judis Crl.R.C.No.767 of 2015 and Crl.M.P.No.1 of 2015

either description for a term which may extend to ten years, and shall also be liable to fine.”

7. The word “suicide” in itself is nowhere defined in the Penal Code, however its meaning and import is well known and requires no explanation. “Sui” means “self” and “cide” means “killing”, thus implying an act of self-killing. In short, a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself.

8. Suicide by itself is not an offence under either English or Indian criminal law, though at one time it was a felony in England. In England, the former law was of the nature of being a deterrent to people as it provided penalties of two types:

• Degradation of corpse of the deceased by burying it on the highway with a stake through its chest. • Forfeiture of property of the deceased by the State. This penalty was later distilled down to merely not providing a full Christian burial, unless the deceased could be proved to be of unsound mind.

However, currently there is no punishment for suicide after the enactment of the Suicide Act, 1961

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which proclaims that the rule of law whereby it was a crime for a person to commit suicide, has been abrogated.

9. In our country, while suicide in itself is not an offence, considering that the successful offender is beyond the reach of law, attempt to suicide is an offence under Section 309 IPC.

10. “Abetment” has been defined under Section 107 of the Code. We deem it appropriate to reproduce Section 107, which reads as under:

“107. Abetment of a thing.—A person abets the doing of a thing, who— First.—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.” Explanation 2 which has been inserted along with Section 107 reads as under:

“Explanation 2.—Whoever, either prior to or at the time of the commission of an act, does anything in

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order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.”

18. From the recent judgment of the Hon'ble Supreme Court held

in S.L.P.No.7284 of 2017 dated 10.02.2017, it is made crystal clear that mere

harassment without positive action on the part of the accused proximity to the

time of occurrence, he cannot be held liable for the offence under Section 306

IPC. The relevant observation is extracted as under: [Shabbir Hussain Vs.

The State of Madhya Pradesh & ORS reported in LL 2021 SC 341.]

“Mere harassment without any positive action on the part of the accused proximate to the time of occurrence which led to the suicide would not amount to an offence under Section 306 IPC [Amalendu Pal V. State of West Bangal (2010) 1 SCC 707]”

19. The legal position on the point of abetment to commit the

suicide has been well settled in the above decisions of the Hon'ble Supreme

Court. So the accused ought to have done any positive action for the purpose

of committing an offence abetting the deceased to commit suicide. Without

https://www.mhc.tn.gov.in/judis Crl.R.C.No.767 of 2015 and Crl.M.P.No.1 of 2015

the said act, he cannot be charged for the offence under Section 306 IPC. In

the case on hand, it is alleged that the accused had abused the deceased at the

office of the Executive officer. The deceased tried to pass a serious threat for

the accused by attemting to commit suicide near the office of the Executive

officer. The accused has not done any positive action in order to abet the

deceased to commit suicide. Neither he had any intention of forcing the

deceased to commit suicide, Under such circumstances, the learned trial Judge