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Tuesday, February 4, 2014

SC: For abetment, a positive act to instigate suicide must be proved

The Times of India

SC: For abetment, a positive act to instigate suicide must be proved

TNN Jun 6, 2013, 01.03AM IST
MUMBAI: There is often confusion over suicideinvestigations in the absence of uniform rules or policy, leaving cases open to the discretion of the investigating police officer, admit legal experts.
Over the years, the city police in almost equal measure closed cases as suicide or charged alleged abettors. In the absence of a suicide note, there could be arrests or may be only a round of questioning; and, even when there's a suicide note with names, cops have been known to make arrests only after bereaved relatives have cried foul.
As the police take up Jiah Khan's case, they would do well to take note of a landmark 2010 Supreme Court judgment which dealt with abetment of suicide. A bench of Justices Dalveer Bhandari and A K Patnaik said abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. "Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained," they said. What makes up a "positive act on part of an accused" is the question police often grapple with.
Abetment of suicide is an offence under section 306 of the IPC, one that requires rigorous proof of actual instigation by an abettor. It is punishable with a maximum 10 years of rigorous imprisonment.
It's not necessary for every suicide case to have an abetment angle, said veteran criminal lawyer Shrikant Bhat. But the police ought to investigate each case to rule out foul play.
A suicide may be a suicide even when there is no note left behind, said a lawyer. "Police have discretion in probing a case and looking at all angles. Abetment is a widely-worded charge. Once it is made and added to an FIR, it often becomes difficult for the accused to rebut it and appeals can be prolonged," said criminal law advocate Arfan Sait.
In the 2010 case of G M Reddy versus Andhra Pradesh, the trial court had convicted the accused, a farmer, of harassing his farm-hand by accusing him of theft and thus abetting his suicide. The high court upheld the conviction. The SC held that the conviction had no merit and set it aside.
The SC in a number of other judgments has clarified that to convict a person of abetment of suicide, there has to be a clear mens rea (a guilty mind or intention) to commit the offence. "It also requires an active act or direct act which led the deceased to commit suicide...," the SC has held.

A Case In Point!

Gujarat High Court
Vikrambhai vs State on 22 June, 2012
Author: Z.K.Saiyed,
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CR.MA/6248/2012 7/ 7 ORDER
MISC.APPLICATION No. 6248 of 2012
RAMABHAI DESAI - Applicant(s)
OF GUJARAT - Respondent(s)
========================================================= Appearance
Applicant(s) : 1,
MS HANSA PUNANI, APP for Respondent(s) : 1,
: 22/06/2012
1. This
successive bail application has been preferred under Section 439 of the Code of Criminal Procedure, 1973 in connection with the offence being CR No.I-423 of 2011 registered with Vastrapur Police Station, Ahmedabad, for the offences under Sections 306, 294-B, 507 of the Indian Penal Code read with Section 33 of the Money Lenders Act.
2. Heard
Mr.P.M.Thakkar, learned Senior Counsel appearing with Mr.Y.N.Ravani, for the applicant. Earlier the present applicant had filed Criminal Misc. Application No.12033 of 2011 before this Court and the same was withdrawn on 8.9.2011 with a liberty to approach the lower Court after filing of the charge-sheet. Thereafter, second application being Criminal Misc. Application No.14835 of 2011 was filed. On 22.11.2011, learned advocate for the applicant submitted that present applicant is in custody under PASA and therefore, permission was granted to withdraw the said application.
It is contended that to encourage to commit suicide has to be proved beyond reasonable doubt. It is contended that so far as provisions of Section 107 of the Indian Penal Code is concerned, provocation, instigation and abetment has to be proved prima-facie, from the evidence of the witnesses as well as from the case of the prosecution. He has read contents of FIR and contended that deceased borrowed money on interest from the applicant and in the result when he demanded money from the deceased he committed suicide. It is contended that to prove prosecution case act of the present applicant should fall within the meaning of instigator, provocator or abettor to commit suicide.
4. He
has contended that from the case of the prosecution prima-facie it does not prove that due to the act or abetment the deceased has committed suicide. He has relied on the decision in the case of M. Mohan Vs. State, represented by the Dy. Superintendent of Police, reported in (2011) 3 SCC 626. He contended that the applicant has not abetted the victim to commit suicide. He has contended that as per observations of the Apex Court it requires commission of direct or active act by accused which led deceased to commit suicide seeking no other option and such act must be intended to push victim into a position that he commits suicide. The applicant has only asked for giving money back. It is contended that charge-sheet is already filed. No material is available on record to rope the present applicant in commission of alleged offence. He is in jail since long period.
5. He
has read Sections 306, 294-B and 507 of the Indian Penal Code and contended that so far as punishment under Section 306 of the IPC is concerned, it is not for life imprisonment. He has read paras 44 to 49 of the said citation and contended that prosecution has produced script of mobile telephone on record to disclose that due to harassment of the present applicant husband of the complainant has committed suicide.
6. So
far as mans-rea is concerned, Mr.Thakkar has relied on the decision in the case of Madan Mohan Singh Vs. State of Gujarat and Anr, reported in (2010) 8 SCC 628. He has contended that intention of accused to aid or to instigate or to abet the suicide must be proved. He has contended that from the papers of the charge-sheet it appears that prosecution has failed to prove that due to the abetment and provocation of the present applicant deceased has committed suicide. He has contended that in the present case no inference can be drawn that due to provocation of the present applicant the deceased committed suicide.
7. He has read contents of Banakhat and Power of Attorney and contended that from the transaction made by the deceased with the present applicant, prima-facie, case against the present applicant does not appear. He has contended that jail period of the present applicant is required to be considered. He has lastly contended that even in huge scam cases Apex Court has granted bail. Therefore, he has prayed to grant bail to the present applicant.
Heard Ms.Hansa Punani, learned APP for the respondent - State. She has has vehemently opposed the present application. She has read contents of the FIR and contended that from the allegations made against the present applicant, prima-facie it appears that present applicant has committed offence of Section 306 of the Indian Penal Code. She has contended that so far as statements of witnesses Sarlaben and Rajulaben are concerned, they have stated before the Investigating Officer that conduct of the present applicant was very rude and in the result of demand of high interest amount, the incident happened and victim committed suicide. She has therefore prayed not to grant bail to the present applicant.
Heard learned advocates for both the sides and perused the papers. It is true that so far as question regarding instigation, provocation and ingredients of Section 306 of the Indian Penal Code are concerned, ingredients of Sections 107 and 108 of the Indian Penal Code is required to be perused. To constitute instigation for commission of an offence it would depend upon the facts of each case. Just to decide whether person has abetted by instigation, the commission of an offence or the act of abetment has to be judged in conspectus of the entire evidence in the case. The act of abetment attributed to an accused is not to be viewed on tested in isolation. The human nature is very complex. The human behaviour varies from man to man. Different people behave and react differently in different situations. The human behaviour depends upon the facts and circumstances of each case. How a man would behave in a particular situation can never be predicted. In the given circumstances the behaviour of the deceased who has committed suicide shows conduct of the present applicant from whom he borrowed money. But only conduct cannot indicate that, prima-facie, ingredients of Section 107 of the Code appears. It is true that previous conduct of a person is also required to be considered. So far as document of Banakhat and Power of Attorney are concerned, prima-facie, it appears that in connection of the loan amount both the documents were prepared by the deceased in favour of the present applicant. The provisions of Section 107 of the Code shows that intentionally aiding and active complexity is the gist of the offence of abetment. In para-3 of Section 107 of the Code it is observed that, a person can abet the commission of an offence in any one of the three ways set out in Section 107 of the IPC. In the present case, it is the question that whether case of the present applicant would squarely fall under the category of Section 107 of the IPC or not. It is true that normally, one would not commit suicide unless there are strong and compelling reasons for it, so there must be a very pressing motive behind every case of suicide. In the present case statements of Sarlaben dated 27.7.2011 and Saileshbhai Patel dated 12.7.2011 both are perused. Therefore, without entering into merits of the case, jail period of the present applicant and provisions of Section 306 of the IPC I am of the opinion that this is a good case for bail. There is no submission from the prosecution side that present applicant will temper with evidence.
10. Considering
the above, this Application is allowed. The applicant is ordered to be released on bail in connection with CR No.I-423 of 2011 registered with Vastrapur Police Station, Ahmedabad, for the offence alleged against him in this Application on his executing a Bond of Rs.25,000/- (Rupees ten thousand only) with solvent surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall-
a) not
take undue advantage of his liberty or abuse his liberty;
b) not
to try to tamper or pressurise the prosecution witnesses or complainant in any manner;
c) maintain
law and order and should cooperate the Investigating Officer;
d) not
act in a manner injurious to the interest of the prosecution;
e) not
enter into Ahmedabad City till the trial against him is completed.
f) not
leave the country without the prior permission of the concerned Sessions Judge;
g) furnish
the address of his residence to the I.O. and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;
h) surrender
his passport, if any, to the lower Court within a week.
11. If
the breach of any of the above conditions is committed, the concerned Sessions Judge will be free to issue warrant or take appropriate action in the matter.
12. Bail
before the lower Court having jurisdiction to try the case. It would be open to the trial Court concerned to give time to furnish the solvency certificate if prayed for.
13. Rule
is made absolute. Direct service is permitted.

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