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2012 DIGILAW 312 (GAU)

Vishal Agarwal v. State of Assam

2012-03-06

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. With the help of this application, made under Section 482, Cr PC, the petitioner, who is an accused in Samguri PS Case No. 192/09 under Section 306, IPC, has sought for setting aside and quashing the first information report (in short "the FIR"), which gave rise to the registration of the said case. I have heard Mr. A.M. Bora, learned counsel appearing for the accused petitioner, and Mr. D. Das, learned Additional Public Prosecutor, Assam. None has appeared on behalf of the informant- opposite party No. 2. 2. Before entering into the merit of the present application, made under Section 482, Cr PC, it may be noted that the allegations made in the FIR are, in brief, thus : On 24.9.2009, a false allegation was brought by M/s. R.D. Motors against the informant's son, Pranjal Goswami, which led to the arrest of the said Pranjal Goswami (since deceased) by Haibargaon Police Outpost and, in consequence thereof, the said Pranjal Goswami was harassed, both mentally and physically, so much so that in the presence of the police personnel, the accused-petitioner, Vishal Agarwal, who is one of the owners of M/s. R.D. Motors, had physically assaulted Pranjal Goswami and the result of such assault and mental harassment was that the informant's son, Pranjal Goswami, committed suicide, on 29.9.2009, at about 11 a.m. 3. The question, which the present application raises for consideration of this Court, is : Whether the allegations, made in the FIR, attracts the penal provisions of Section 306, IPC and, if not, what action, if any, was required to be taken by the police on receipt of the said FIR. 4. Before answering the question posed above, it may be noted that Section 306, IPC reads as under :- S. 306. If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 5. While dealing with the scope of Section 306, IPC, it is necessary that one understands as to what the word 'abetment' conveys under the Indian Penal Code. 5. While dealing with the scope of Section 306, IPC, it is necessary that one understands as to what the word 'abetment' conveys under the Indian Penal Code. Section 107, IPC, which is most relevant in this regard, reads: 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; Thirdly, intentionally aids, by any act or illegal omission, the doing of that thing. 6. Broadly speaking, 'abetment', as contemplated in Section 107, IPC, falls into three distinct categories, namely, (i) a person can be said to abet the doing of a thing, when such a person instigates the other person to do that thing or (ii) when a person engages with one or more other persons in any conspiracy in the doing of that thing or (iii) when any person intentionally aids, by any act or illegal omission, doing of a thing. 7. In short, thus, the offence of 'abetment' is committed, when a person instigates another to do a thing or when he enters into a conspiracy for doing of a thing or when he intentionally aids, by illegal act or omission, the doing of that thing. 8. The question, now, is as to whether 'intention' is an integral part of the offence of 'abetment'. In this regard, it is necessary to point out that when a person enters into a conspiracy to do a thing, he not only knows, but also intends the effect of doing that thing, which he has conspired with one or more persons to do. Similarly, when such a person commits the offence of abetment by aiding, such aiding, in the face of the provisions of Section 107, IPC, has to be intentional. 9. The limited question, therefore, which remains to be ascertained, is this : Whether 'abetment' by 'instigation' involves 'intention'? 10. According to Oxford Dictionary, 'instigation' means "to goad or urge forward to prove, incite, encourage to do act". Stroud defines 'abet' thus, "To constitute an aider or abettor, some active steps must be taken, by word or action, with intent to instigate the principal or principals. 10. According to Oxford Dictionary, 'instigation' means "to goad or urge forward to prove, incite, encourage to do act". Stroud defines 'abet' thus, "To constitute an aider or abettor, some active steps must be taken, by word or action, with intent to instigate the principal or principals. Encouragement does not, of necessity, amount to aiding and abetting. It may be intentional or unintentional. A man may unwittingly encourage another in fact by his presence, by misinterpreted gestures, or by his silence or no-interference-or he may encourage intentionally by expressions, gestures, or actions, intended to signify approval. In the latter case, he aids and abets; in the former, he does not. It is no criminal offence to stand by a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime and offered no opposition to it, though he might reasonably be expected to prevent it, and it had the power so to do or at least to express his dissent, might, under some circumstances, afford cogent evidence upon which a jury would be justified in the finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury' whether he did so or not." 11. Black defines 'abet' to assist or facilitate the commission of a crime or to promote its accomplishment. 12. According to Wharton, 'to abet' means, literally, to bait or excite, as in the case of an animal. In its legal sense, 'to abet' means to encourage, advise or instigate the commission of a crime. 13. In Ramesh Kumar v. State of Chattishgarh, 2001 (9) SCC 618 , the Supreme Court, while interpreting the expression instigation as an act of 'abetment', in Section 306, IPC, observed : 20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. (Emphasis added) 14. In Randhir Singh v. State of Punjab, 2004 (13) SCC 129 , too, the Supreme Court, explaining as to what abetment, in the context of an offence under Section 306, IPC, conveys, observed, in paragraph 12, thusm: Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role, which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306, IPC. (Emphasis added) 15. In the light of the definition of the word 'abetment' or the meaning of the words 'to abet' and, more particularly, taking into view how the Supreme Court has described abetment, in Ramesh Kumar (supra) and Randhir Singh (supra), what becomes clear is that 'abetment' involves a mental process of entering into a 'conspiracy' for doing of a thing or a mental process of 'aiding' a person in doing a thing or in the mental process of 'instigating' i.e. 'goading urging forwarding, provoking, enticing or inscribing to do a thing. Thus, abetment implies an intentional act or omission on the part of the person, who is alleged to have abetted an act. There need not be direct evidence of such intention and such intention may be inferred even from circumstantial evidence. 16. Thus, abetment implies an intentional act or omission on the part of the person, who is alleged to have abetted an act. There need not be direct evidence of such intention and such intention may be inferred even from circumstantial evidence. 16. In State of W.B. v. Orilal Jaiswal, 1994 (1) SCC 73 , the Supreme Court has observed that the Courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced, at the trial for the purpose of finding whether the cruelty meted out to a victim had, in fact, induced her to end her life by committing suicide. If it transpires to the Court that a victim committing suicide, was hypersensitive to ordinary petulance, discord and differences in domestic life, quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual, in a given society, to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused, charged of abetting the offence of committing suicide, should be found guilty. 17. Thus, abetment, in the context of an offence under Section 306, IPC, would mean inciting, encouraging, provoking or urging forward to commit suicide. Such an act of inciting encouraging, provoking or urging would obviously reflect an intentional act, on the part of the accused, to induce one or intentionally drive one to commit suicide. Hence, to commit suicide merely because of the fact that a husband subjects his wife to cruelty and the cruelty is of the extent that it would, ordinarily drive a woman to commit suicide, such an act of subjecting the wife to cruelty by such a husband would not necessarily amount to abetment unless the Court is satisfied that the wife was subjected to cruelty, or the woman was subjected to cruelty, with 'intent' to drive her to commit suicide. 18. In the present case, the FIR, in question must prima facie indicate that the intent of assaulting the informant's son, Pranjal Goswami, by the accused-petitioner was to incite him or provoke him to commit suicide. If such an intention is not reflected from the FIR, in the present case, the registration of the case, under Section 306, IPC, has to be quashed. If such an intention is not reflected from the FIR, in the present case, the registration of the case, under Section 306, IPC, has to be quashed. Becoming ashamed, or being humiliated, if a person commits suicide, the person, who humiliates or puts to shame such a person, cannot be held responsible for abetment to commit suicide, under Section 306, IPC, if another person, similarly situated, would not commit suicide. The position of law can be made little clearer, if the distinction between Section 498-A, IPC vis-a-vis 306, IPC is explained. 19. Turning to the inherent difference between what Section 498-A penalizes or what Section 306 punishable, it needs to be pointed out that a careful reading of Section 498-A shows that when a wife is subjected to 'cruelty' to such an extent that a woman, placed in her position, is likely to commit suicide, an offence under Section 498-A is complete irrespective of the fact whether the woman, so subjected to cruelty, actually commits suicide or not. Conversely, it is also true that merely because of the fact that a wife, who has been subjected to cruelty, commits suicide, it will not, automatically, make out a case of 'abetment' to commit suicide. 20. Let us try to understand the ambit of Section 306, IPC by an example. Two men A and B are married to X and Y respectively. A has been subjecting his wife, X, to cruelty, which was of a such a nature and of such an extent that it would have, ordinarily, driven a woman, placed in the position of X, to commit suicide, but A never intended that X shall commit suicide. However, unable to bear such cruelty, X commits suicide. Let us, now, compare such a case with the case of B. Let us assume that B subjects Y to cruelty with intent that she commits suicide and unable to bear such cruelty, Y commits suicide. In the case of A, where there was no intention to drive the woman to commit suicide, though his wife, X, did commit suicide, the fact remains that in the case of B, there was an intention to instigate Y to commit suicide; hence, while B can be held liable and guilty of an offence under Section 306, IPC, A cannot be so held guilty of an offence under Section 306, IPC. The test is, therefore, not as to whether X or Y was subjected to cruelty. 21. The test is also not whether X or Y committed suicide. The test would be as to whether the woman was subjected to cruelty with a view to making her commit suicide or whether she was subjected to cruelty without any intention to make her commit suicide. If the intention was not to drive the woman to commit suicide, the mere fact that the nature of cruelty was such that the woman was likely to commit suicide, it would not make out a case of Section 306, IPC, if Y commits suicide. 22. In an offence under Section 306, IPC, therefore, it is imperative for the prosecution to prove that the woman committed suicide not merely because of the fact that she was subjected to cruelty, but that she was subjected to cruelty with a view to making her commit suicide. No wonder, therefore, that the Supreme Court, in Sushil Kumar v. Union of India, 2005 (6) SCC 281 , observed, at para 11, thus : 11. The basic difference between the two sections i.e. Section 306 and Section 498-A is that of intention. Under the latter, cruelty committed by the husband or his relations drag the woman concerned to commit suicide while under the former provision suicide is abetted and intended. 23. It will, therefore, depend on the facts of a given case as to whether a person did or did not intend that the woman, in question, shall commit suicide. There need not be any direct evidence of such intention. Clearly, therefore, such an intention can be gathered from the facts and attending circumstances of a given case. Not only the conduct previous to the act of commission of suicide, but, at times, even the subsequent conduct of the accused may give rise to an inference that the person, in question, did intend, while subjecting the woman to cruelty, that she shall commit suicide. 24. Not only the conduct previous to the act of commission of suicide, but, at times, even the subsequent conduct of the accused may give rise to an inference that the person, in question, did intend, while subjecting the woman to cruelty, that she shall commit suicide. 24. Ordinarily, therefore, when a woman is placed in such a situation that she is left with no opinion, but to commit suicide, it would be reasonable to infer that an intention existed to drive the woman to commit suicide and, in such a case, the onus would be on the man, who is prosecuted, to show that no such intention to drive the woman to commit suicide existed, though he might have subjected the woman to cruelty of such a degree that she was left with no option, but to commit suicide. 25. It is in the light of what has been pointed out above that one has to read the decision in Ramesh Kumar v. State of Chhattisgarh, 2001 (9) SCC 618 , wherein R.C. Lahoti, (as his Lordship then was), speaking for the Court, observed : 22. Sections 498-A and 306, IPC, are independent and constitute different offences. Though, depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under Section 498-A and may also, if a course of conduct amounting to cruelty is established leaving no other option for the woman except to commit suicide, amount to abetment to commit suicide. However, merely because an accused has been held liable to be punished under Section 498-A, IPC it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned. Evidential value of the two writings contained in diary, Article A is that of dying declarations. However, merely because an accused has been held liable to be punished under Section 498-A, IPC it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned. Evidential value of the two writings contained in diary, Article A is that of dying declarations. On the principle underlying admissibility of dying declaration in evidence that truth sits on the lips of a dying person and the Court can convict an accused on the basis of such declaration where it inspires full confidence, there is no reason why the same principle should not be applied when such a dying declaration speaking of the cause of death exonerates the accused unless there is material available to form an opinion that the deceased while making such statement was trying to conceal the truth either having been persuaded to do so or because of sentiments for her husband. The writing on p. 11 of diary (Article A) clearly state that the cause for committing suicide was her own feeling ashamed of her own faults. She categorically declares--none to be held responsible or harassed for her committing suicide. The writing on p. 12 of diary (Article A) clearly suggests that sometime earlier also she had expressed her wish to commit suicide to her husband and the husband had taken a promise from her that she would not do so. On the date of the incident, the husband probably told the deceased that she was free to go wherever she wished and wanted to go and this revived the earlier impulse of the deceased for committing suicide, The dying declaration Ext. P-10 corroborate the inference flowing from the two writings contained in the diary and as stated hereinabove. The conduct of the accused trying to put off the fire and taking his wife to the hospital also improbabilises the theory of his having abetted suicide. 26. What emerges from the above discussion is that, in order to bring an act or omission, on the part of the accused, within the scope of Section 306, IPC, an act of abetment, as contemplated by Section 107, IPC, must be established, on the part of the accused, showing that he 'intended' to bring about the suicide of the person concerned. In short, the intention of the accused to aid or to instigate, or to abet the deceased to commit suicide is a condition precedent for an offence under Section 306, IPC. [See Madan Mohan Singh v. State of Gujarat, 2010 (8) SCC 628 . Also see Chitresh Kumar Chopra v. State (Government of NCT of Delhi), 2009 (16) SCC 605 ]. 27. The word, 'suicide' is, nowhere, defined in the Indian Penal Code. However, Sui means self and cide means killing. Thus, suicide implies 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. [See M. Mohan v. State, 2011 (3) SCC 6263. 28. In the backdrop of the position of law, discussed above, when one reverts to the FIR, lodged in the present case, what attracts the eyes, most prominently, is that, according to the informant, the accused-petitioner had falsely lodged the information against Pranjal Goswami, which led to Pranjal Goswami's arrest and he was, both physically and mentally, harassed, and the accused went to the extent of assaulting Pranjal Goswami in the presence of the police personnel and because of the physical and mental harassment and torture, which Pranjal Goswami had so undergone, he committed suicide. 29. Abetment of suicide requires, as discussed above, instigation from the end of the accused to the person, who commits suicide. The action of the accused has to be, therefore, intentional in the sense that the person, who assaults, must intend that the person assaulted commits suicide. If one person assaults another person with no intention to make the latter commit suicide, the mere assault would not amount to an offence under Section 306, IPC if the person assaulted commits suicide. Even if a person is mentally and physically harassed and tortured, the person, who perpetrates harassment and torture, cannot be held liable under Section 306, IPC unless there is some material indicating that the intention, behind the harassment and torture, was to see that the person, harassed and tortured, commits suicide. 30. Even if a person is mentally and physically harassed and tortured, the person, who perpetrates harassment and torture, cannot be held liable under Section 306, IPC unless there is some material indicating that the intention, behind the harassment and torture, was to see that the person, harassed and tortured, commits suicide. 30. In the case at hand; the lodging of the false case, as alleged by the informant, might have led to the mental and physical harassment of the informant's son, Pranjal Goswami and the assault on him, by the accused petitioner, might have also been the cause of his suicide; but the accused petitioner, in the absence of any material in the FIR cannot be prosecuted, unless the FIR discloses, indicates or reflects that the intention of the accused-petitioner, in physically assaulting the informant's said son, was to make the informant's son, Pranjal Goswami, commit suicide. There is not even an iota of material, in the FIR lodged in the present case, which could indicate that the 'intention' behind assault of Pranjal Goswami, was to make him commit suicide. 31. What emerges from the above discussion is that merely because of the fact that the informant's said son committed suicide, a case has been registered under Section 306, IPC despite the fact that FIR does not contain any such material, which could indicate that the intention, in either lodging the case against the informant's said son by the accused petitioner, or in assaulting the informant's son, was intended to make the information's son commit suicide. 32. Under the circumstances indicated above, the registration of the FIR under Section 306, IPC, is not merely misconceived, but also untenable in law. Such a FIR shall, if allowed to survive, lead to abuse of the process of Court and cause serious miscarriage of justice. At the same time and in the same breath, one has to also take note of the fact that the FIR alleges that the accused-petitioner had assaulted Pranjal Goswami. This assault could amount to an offence under Section 352, IPC and could also amount to an act of voluntarily casing hurt leading to the commission of an offence under Section 323, IPC. Both, Section 352, IPC as well as Section 323, IPC, are non-cognizable offences. This assault could amount to an offence under Section 352, IPC and could also amount to an act of voluntarily casing hurt leading to the commission of an offence under Section 323, IPC. Both, Section 352, IPC as well as Section 323, IPC, are non-cognizable offences. Because of the fact that both the said offences are non-cognizable offences, the duty of the Officer-in-Charge of Samguri Police Station was, in the case at hand, to enter, or cause to be entered, in the prescribed book, the substance of the offences, which the informant, in the present case, had given and, then, refer the information to the Magistrate and if the Magistrate had directed an investigation, the Officer-in-Charge, Samguri Police Station, could have investigated the case. 33. What emerges from the above discussion is that while registration of the FIR under Section 306, IPC, cannot be sustained and is, therefore, set aside and quashed, the Officer-in-Charge, Samguri Police Station, is hereby directed to record, in the prescribed book, the information, which has been given by the informant, as indicated hereinbefore, and refer the informant to the Chief Judicial Magistrate, Nagaon, and if, thereafter, the Chief Judicial Magistrate, Nagaon, directs investigation of the case, the Office-in-Charge, Samguri Police Station, shall do the needful in accordance with law. With the above observations and directions, this criminal petition shall stand disposed of. Petition disposed of.