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2014 DIGILAW 28 (MAD)

Suresh Kumar v. State

2014-01-03

P.N.PRAKASH

body2014
ORDER “To be or not to be; that is the question: Whether ‘tis nobler in the mind to suffer The slings and arrows of outrageous fortune, Or to take arms against a sea of troubles, An by opposing end them.” Shakespeare, Hamlet. 1. The petitioner is the sole accused in S.C. No. 245 of 2008 for an offence under Section 306 IPC. 2. The case of the prosecution as evidenced by the final report is that the petitioner was married to the deceased Juliegandhi five years prior to 22.8.2007, which is the date of the occurrence. There was marital discord between the petitioner and his wife. It is alleged by the prosecution that on 22.8.2007, at about 8 O’ Clock, the child of the couple had taken sour food from the earthen pot and on account of which, the petitioner is supposed to have scolded his wife. Aggrieved over which, his wife committed suicide by taking pesticide. She died subsequently at 11 a.m., on that day. There is no dying declaration in this case. The Revenue Divisional Officer’s report discloses that the death was not due to demand of dowry warranting a prosecution under Section 304-B of IPC. Therefore, the prosecution was rest content with filing a final report for an offence under Section 306 IPC. 3. The final report dated 27.02.2008 filed by the respondent reads as under: “That Suresh Kumar is the husband of Julie Gandhi. They got married, within a period of five years; that they used to quarrel frequently. On 22.08.2007 at around 8.00 a.m. when their child consumed food from the earthen pot which had become sour, the accused scolded his wife and she got angry with him and consumed the pesticide available in the house. She was taken to the hospital and was given treatment by Doctors despite which she died at 11.00 a.m. on the same day. Therefore, the accused Suresh Kumar had instigated and aided the suicide of Julie Gandhi and hence, he is liable for an offence under Section 306 IPC.” 4. A complete reading of the final report and the 161 Statements reveal that apart from scolding his wife for allowing the child to eat sour food, the petitioner has not done anything to instigate or aid the commission of suicide by his wife. 5. Section 306 IPC reads as follows: “306. A complete reading of the final report and the 161 Statements reveal that apart from scolding his wife for allowing the child to eat sour food, the petitioner has not done anything to instigate or aid the commission of suicide by his wife. 5. Section 306 IPC reads as follows: “306. Abetment of suicide: 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.” 6. The word “abetment” used in Section 306 IPC is defined in Section 107 IPC, 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 1: A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.” 7. To attract the offence of abetment of suicide under Section 306 IPC, the accused must have done any one of the overt acts enumerated in Section 107 IPC. Ignoring this salutary requirement, it is seen that frequently people are arrested and prosecuted indiscriminately under Section 306 IPC for the suicide of another person. When a person commits suicide, the whole neighbourhood rises in unison to clamour for the scalp of another and the police, unable to withstand social pressure, look out for a scapegoat to arrest and prosecute under Section 306 IPC. This Court cannot close its eyes to the fact that even teachers have become vulnerable today. If a teacher catches a student for copying, she gets arrested for an offence under Section 306 IPC if that student commits suicide. Nobody questions the parents for not inculcating discipline and values in their children. Teachers are loco parentis and Section 79 IPC protects them when they chastise or admonish their wards for indiscipline. 8. If a teacher catches a student for copying, she gets arrested for an offence under Section 306 IPC if that student commits suicide. Nobody questions the parents for not inculcating discipline and values in their children. Teachers are loco parentis and Section 79 IPC protects them when they chastise or admonish their wards for indiscipline. 8. Does the law as it stand today permit such prosecutions? It may be profitable to quote from the 91st Report dated 10th August 1983 of the Law Commission of India on the topic “Dowry Deaths”: “The first impediment mentioned above is aptly illustrated by the situation where a woman takes her life with her own hands, though she is driven to it by ill-treatment. This situation may not fit into any existing pigeon-hole in the list of offences recognised by the general criminal law of the country, except where there is definite proof of instigation, encouragement or other conduct that amounts to “abetment” of suicide. Though, according to newspaper reports, there have been judgments of lower courts which seem to construe “abetment” in this context widely, the position is not beyond doubt.” In paragraph 3.3, the Law Commission said: “Having regard to the need to deal effectively with suicides that are the result of ill-treatment within the family, it is also necessary to punish persistent cruel conduct on the part of one person that drives another member of family living with him to the commission of suicide. Such a recommendation was, in fact, made by the Law Commission long ago in its Report on the Indian Penal Code. That recommendation awaits implementation. The matter has now become very urgent. The new Section may run on these lines: “Whoever, by persistent acts of cruelty, drives a member of his family living with him to committing suicide shall be punished with imprisonment of either description, which may extend to three years, and shall also be liable to fine.” Thus it is clear that if a woman commits suicide on account of cruelty inflicted on her, that cannot lead to a prosecution under Section 306 IPC in the normal course. That is why the Law Commission had suggested that, as the Act complained does not fully fit into the pigeon-hole of any known offence, a new section should be introduced. That is why the Law Commission had suggested that, as the Act complained does not fully fit into the pigeon-hole of any known offence, a new section should be introduced. Following the Law Commission report, by Criminal Law (Second Amendment) Act 1983 (Central Act 46 of 198), Section 113-A and 498-A were introduced into the Indian Evidence Act and I.P.C. respectively with effect from 26.12.1983. Section 113-A reads as under: “113-A. Presumption as to abetment of suicide by a married woman.--When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation.-- For the purposes of this section, “cruelty” shall have the same meaning as in section 498A of the Indian Penal Code, 1860 (45 of 1860).” Section 498-A IPC reads as under: “498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.-- For the purposes of this section, “cruelty” mean-- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” 9. It is clear from the explanation to Section 498A IPC that the husband or his relative can be prosecuted under Section 498A IPC for their wilful conduct which is of such a nature as is likely to drive her to commit suicide. It is clear from the explanation to Section 498A IPC that the husband or his relative can be prosecuted under Section 498A IPC for their wilful conduct which is of such a nature as is likely to drive her to commit suicide. Introduction of Section 498A IPC and 113A Evidence Act did not provide tangible succour to suffering wives nor were husbands punished for driving their better halves to commit suicide because legal pandits contended that Section 113A Evidence Act did not create any new offence but it only created a new rule of evidence with which a person cannot be convicted for an offence under section 306 IPC without corresponding amendment to the definition of abetment of suicide in the IPC. The Parliament felt the need to further strengthen the penal laws governing this subject and so Sections 304B and 113B were introduced in IPC and Evidence Act respectively with effect from 19.11.1986 by Dowry Prohibition (Amendment) Act 1986 (Central Act 43/1986). The Supreme Court in Satvir Singh and Others v. State of Punjab AIR 2001 SC 2828 : (2001) 8 SCC 633 : 2001 (7) Supreme 267 : LNIND 2001 SC 2168 explained these provisions lucidly in the following terms: “Section 306 IPC when read with Section 113A of the Evidence Act has only enabled the court to punish a husband or his relative who subjected a woman to cruelty (as envisaged in Section 498A IPC) if such woman committed suicide within 7 years of her marriage. It is immaterial for Section 306 IPC whether the cruelty for harassment was caused “soon before here death” or earlier. If it was caused “soon before her death” the special provision in Section 304B IPC would be invokable, otherwise resort can be made to Section 306 IPC. No doubt Section 306 IPC read with Section 113A of the Evidence Act is wide enough to take care of an offence under Section 304B also. But the latter is made a more serious offence by providing a much higher sentence and also by imposing a minimum period of imprisonment as the sentence. No doubt Section 306 IPC read with Section 113A of the Evidence Act is wide enough to take care of an offence under Section 304B also. But the latter is made a more serious offence by providing a much higher sentence and also by imposing a minimum period of imprisonment as the sentence. In other words, if death occurs otherwise than under normal circumstances within 7 years of the marriage as a sequel to the cruelty or harassment inflicted on a woman with demand of dowry, soon before her death, Parliament intended such a case to be treated as a very serious offence punishable even upto imprisonment for life in appropriate cases. It is for the said purpose that such cases are separated from the general category provided under section 306 IPC (read with Section 113A of the Evidence Act) and made a separate offence.” 10. In K. Prema S. Rao and Another v. Yadla Srinivasa Rao and Others AIR 2003 SC 11 : (2003) 1 SCC 217 : LNIND 2002 SC 662 the Supreme Court convicted the husband under Section 306 IPC with the aid of Section 113A of the Evidence Act though no charges were framed by the trial Court for an offence under Section 306 IPC. The Supreme Court invoked Section 221 Cr.P.C. to justify the conviction of the husband under Section 306 IPC. 11. From the analysis of the above provision of law, the Parliament in its wisdom defined “Dowry Death” in Section 304B IPC and brought into its ambit both suicide and homicide. 12. The principle of continuous harassment leading to the suicide of a person was wrongly imported to cases falling outside the realm of Family Law. For instance if a debtor, unable to pay his debts, commits suicide, the creditor was prosecuted on the species plea that he had instigated the debtor to commit suicide by harassing him. The word ‘instigates’ employed in Section 107 IPC has been wrongly stretched by the Police to bring within the net of Section 306 IPC such imponderable cases. The word instigate is defined in Oxford English Dictionary as “incite someone to do something”. The concept of harassment can by no stretch of imagination be imported into the meaning of the word “instigate”. The word instigate is defined in Oxford English Dictionary as “incite someone to do something”. The concept of harassment can by no stretch of imagination be imported into the meaning of the word “instigate”. If we expand the contours of Section 306 IPC in order to satiate emotional demands, a wife can also be arrested and prosecuted, if the husband, finding her to be immoral and characterless, commit suicide. 13. This issue can be also be looked at from another angle. Though every man has an unassailable title to his life and person yet law prohibits alienation of life, by holding out threats via Section 309 IPC. This is because, the citizenry should not become a horde of cowards in this country and they should live to fight adversity with courage and fortitude. Section 309 IPC was declared unconstitutional by the Supreme Court in P. Rathinam v. Union of India AIR 1994 SC 1844 : (1994) 3 SCC 394 : LNIND 1994 SC 445 and this was reversed by the Constitution Bench in Gian Kaur v. State of Punjab AIR 1996 SC 946 : (1996) 2 SCC 648 : LNIND 1996 SC 653 : (1996) 1 MLJ(Cri) 467. 14. Law makers in India are very clear in their mind that Section 306 IPC cannot be invoked against all and sundry indiscriminately. That is why special definition for abetment of suicide is given by the Legislature in some statutes. 14. Law makers in India are very clear in their mind that Section 306 IPC cannot be invoked against all and sundry indiscriminately. That is why special definition for abetment of suicide is given by the Legislature in some statutes. For example: (i) Section 7 of the Tamil Nadu Prohibition of Ragging Act, 1997 (Tamil Nadu Act 7 of 1997) reads as under: “7.Deemed abetment.-- If the head of the educational institution or the person responsible for the management of the educational institution fails or neglect to take action in the manner specified in sub-section (1) of section 6 when a complaint of ragging is made, such person shall be deemed to have abetted the offence of ragging and shall be punished as provided for in section 4.” (ii) Section 4-B of the Tamil Nadu Prohibition of Harassment of Woman Act, 1998 (Tamil Nadu Act 44 of 1998) reads as under: “4-B. Harassment suicide.-- (1) If any woman commits suicide and it is shown that soon before her death, she was subjected to harassment by any person or that in respect of her an offence under Section 294 ,354 or 509 of the Indian Penal Code (Central Act XLV of 1860) was committed, such suicide shall be called the harassment suicide and such person shall be deemed to have abetted the suicide. (2) Notwithstanding anything contained in Section 4, whoever abets harassment suicide shall be punished with imprisonment of either description for a term which may extend to ten years and with fine which shall not be less than fifty thousand rupees.” (iii) Section 9 of the Tamil Nadu Prohibition of Charging Exorbitant Interest Act, 2003 (Tamil Nadu Act 38 of 2003) reads as under: “9. Abetment of suicide.--Where a debtor or any member of his family commits suicide and if it is shown that immediately prior to such suicide, the debtor or any member of his family was subjected to molestation by any person, the person who has advanced loan shall, unless the contrary is proved, be deemed to have abetted the commission of such suicide.” The Legislators have understood the law of suicide well but it is only the implementers who feign ignorance. 15. 15. In Amalendu Pal alias Jhantu v. State of West Bengal AIR 2010 SC 512 : (2010) 1 SCC 707 : LNIND 2009 SC 1978 : (2010) 2 MLJ(Cri) 109 the Supreme Court has held that: “In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC.” 16. In the facts of this case, except the quarrel which the accused is alleged to have had with his wife for allowing the child to eat the stale food from the earthen pot, there is no iota of material to show that he had instigated or aided or entered into a criminal conspiracy with someone to make her commit suicide. Hence, the Criminal Original Petition is allowed and the prosecution in S.C. No. 245/2006 on the file of the learned Principal District and Sessions Judge, Cuddalore is quashed. Consequently, the connected miscellaneous petition is closed. Petition allowed.