Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 849 (ORI)

Dipika Sharma v. State of Odisha

2014-12-09

S.K.SAHOO

body2014
JUDGMENT S.K.SAHOO, J. : In all these three bail applications filed under Section 438 Cr.P.C., the petitioners have prayed for pre-arrest bail in connection with Jatni P.S. Case No. 238 of 2014 which corresponds to G.R. Case No.599 of 2014 pending in the Court of learned J.M.F.C. (O), Bhubaneswar for offences punishable under Sections 306/294/506/120-B/507/380 read with Section 34 of I.P.C. Petitioner in BLAPL No.19309 of 2014 namely Dipika Sharma is the wife, petitioner in BLAPL No.19632 of 2014 namely Purnima Sharma @ Guddi Sharma is the elder sister-in-law (wife’s elder sister) and petitioner in BLAPL No.19836 of 2014 namely Kundan Lal Sharma @ Kundan Sharma is the elder brother-in-law (wife’s elder brother) of one Rahul Sharma (hereinafter “the deceased”). All the three bail applications were heard analogously and a common order is passed. 2. On 24.08.2014 one Pawan Kumar Sharma, the maternal uncle of the deceased reported before the Inspector-in- Charge, Jatani Police Station, Jatani regarding commission of suicide by the deceased in his bed room by hanging in a ceiling fan with a saree around his neck. On the basis of such report, Jatani P.S. U.D. Case No. 21 of 2014 dated 24.08.2014 was registered. During U.D. Case enquiry, the dead body of the deceased was sent for post mortem examination to the District Headquarters Hospital, Khurda and the cause of death was opined to be asphyxia due to ligature mark around the neck like hanging which is suicidal in nature. On 27.8.2014 one Smt. Usha Sharma, mother of the deceased lodged an FIR before IIC, Jatni Police Station stating therein that the wife of the deceased along with her elder brother and elder sister came to her house on 23.8.2014 morning at about 7 O’ Clock. As per the prevailing custom, the wife of the deceased had been to her father’s place which is situated in the State of Chhattisgarh for about one month as she was newly wedded and newly wedded couple are not allowed to stay together in the month Shravan. After the deceased left to his office, the wife and the elder brother-in-law of the deceased abused the informant and her younger sister without any cause and threatened them with dire consequence. They further threatened to implicate the family members of the informant in a false dowry torture case. After the deceased left to his office, the wife and the elder brother-in-law of the deceased abused the informant and her younger sister without any cause and threatened them with dire consequence. They further threatened to implicate the family members of the informant in a false dowry torture case. All the elderly members of the family of the informant tried for an amicable settlement but it was not fruitful. At about 1 O’ clock in the afternoon the wife of the deceased entered inside her bed room and took away all the gold and silver ornaments and all the petitioners left the house of the informant at about 3 O’ clock. On the same day in the night, the deceased was threatened over phone for which he lost mental balance and committed suicide in the night on 23/24.8.2014 in his bed room by hanging himself in the ceiling fan leaving a suicide note. On 24.8.2014 morning at about 6 O’ Clock the informant and her family members detected the suicide of the deceased and intimated the police officials and after the necessary legal formalities, the dead body was cremated at about 4 O’ Clock in the afternoon. The informant verified the Almirah of the deceased and found that the wife of the deceased had taken away all the gold ornaments and other valuables with her to her father’s place at the instance of her elder brother and elder sister. On the report of the brother of the informant Jatni P.S.U.D. Case No.21 of 2014 was registered and post mortem was conducted. Suspecting the petitioners to be responsible for the commission of suicide of the deceased, the FIR was lodged. 3.The learned counsel for the petitioners submitted that the marriage between petitioner Dipika Sharma and deceased Rahul Sharma was solemnized on 10.12.2013 and the deceased was pregnant at the time of commission of suicide of her husband and her expected the date of delivery is on 23.2.2015 as per the medical documents annexed to BLAPL 19309 of 2014. Learned counsel for the petitioners further submitted that the deceased committed suicide in his own house that to in the absence of the petitioners and the cause of death as per post mortem report is on account of asphyxia due to ligature around the neck which is suicidal in nature. Learned counsel for the petitioners further submitted that the deceased committed suicide in his own house that to in the absence of the petitioners and the cause of death as per post mortem report is on account of asphyxia due to ligature around the neck which is suicidal in nature. The learned counsel for the petitioners further submitted that the deceased was a Homeopathic doctor and on the eventful day when the petitioners came to the house of the informant, the informant demanded Rs.15,00,000/- (fifteen lakh) from petitioner Dipika Sharma and when she expressed inability of her parents to fulfill such demand, the informant and her family members got annoyed and even physically assaulted her. The deceased who was present then got disappointed at the conduct of his own family members but he did not protest at that point of time and left for his job assignment. The petitioners being disappointed with the attitude of the family members of the deceased returned back to Chhattisgarh. The learned counsel for the petitioners further submitted that the deceased being dissatisfied with the conduct of his own family members might have committed suicide as a result of which petitioner Dipika Sharma who is expecting a child became a widow and she lodged an FIR before IIC, Akaltara Police Station in the District of Janjagir Champa of Chhattisgarh. Learned counsel for the petitioners further submitted that the ingredients of offence under Section 306 IPC are not attracted against the petitioners and four days after the death of the deceased, the informant has concocted a story and presented the same by way of an F.I.R. just to harass and humiliate the petitioners. 4.The learned counsel for the State on the other hand submitted that few days after the marriage, the petitioner Dipika Sharma insisted the deceased to stay separately from other family members which was not accepted by the deceased for which she used to abuse the deceased on account of which the deceased was remaining upset. He further submitted that on the date of occurrence the deceased was misbehaved by all the petitioners and he was also threatened over phone by the petitioners and was told that they would file cases against the deceased so that he would lose his service. He further submitted that on the date of occurrence the deceased was misbehaved by all the petitioners and he was also threatened over phone by the petitioners and was told that they would file cases against the deceased so that he would lose his service. The learned counsel for the State further submitted that on account of such continuous misbehavior of petitioner Dipika Sharma and also the conduct of the petitioners on the relevant day coupled with threat given by them over phone compelled the deceased to commit suicide because he wanted to stop the pain and suffering forever and therefore they can be said to have abetted the commission of suicide and as such the ingredients of offence under Section 306 IPC is clearly made out. The learned counsel for the State pointed out the 161 statements of the informant and others and also a suicidal note which was seized during course of investigation lying near the dead body and collected by the informant and produced before the police officials during course of U.D. Case enquiry. The learned counsel for the informant also opposed the prayer for bail and submitted that the petitioners are squarely responsible for the suicide of the deceased. 5.As it appears that the suicidal note stated to have written by deceased Rahul Sharma and his note pad which was produced by the informant have been sent by the Investigating Officer to the Additional Superintendent of Police, Handwriting Bureau, Rasulgarh, Bhubaneswar for examination. Perused the suicidal note seized in this case. The suicidal note reflects that the petitioners made the life of the deceased hell and poisonous and they demanded that the deceased should leave his family and thereafter live along with his wife which was not possible on the part of the deceased. It further indicates that the deceased tried his level best to convince the petitioners but they disagreed and tortured him and his family members and accordingly the deceased demanded strict action to be taken against the petitioners. In another page of the suicidal note, it is mentioned that the deceased had no option than to commit suicide and his wife was not the right choice for him and made her life practically impossible to live and he has requested his family members to give strict punishment to his wife. In another page of the suicidal note, it is mentioned that the deceased had no option than to commit suicide and his wife was not the right choice for him and made her life practically impossible to live and he has requested his family members to give strict punishment to his wife. The suicidal note has been written in a pad and bears the signature and date. 6.Law is well settled as held in case of Sharad Birdhichand Sarda –v- State of Maharashtra reported in AIR 1984 SC 1622 that Section 32 of the Evidence Act does not speak of homicide alone but includes suicide also and hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide. Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant. The learned counsel for the petitioners submitted that the suicidal note is an afterthought one and it has been created for the purpose of the case. He further submits that it was not in the handwritings of the deceased and everything has been stage managed. 7.Considering the submissions made by the respective parties, when the disputed handwritings and the admitted handwritings of the deceased have been sent by the Investigating Officer, handwriting bureau for examination and the report has not been received, it would not be proper to give any opinion on the same. The contention raised by the learned counsel for the petitioners as to whether the alleged suicidal note has been created for the purpose of the case or not and whether such note is in the handwriting of the deceased or not is to be adjudicated at the stage of trial after receipt of the opinion from the handwriting expert as well as the evidence produced during course of trial. 8.The materials available on records indicates that after marriage of the deceased with the petitioner Dipika Sharma, the deceased was very much happy for quite some time and thereafter he became depressed when the petitioner Dipika Sharma pressurized the deceased to live separately. 8.The materials available on records indicates that after marriage of the deceased with the petitioner Dipika Sharma, the deceased was very much happy for quite some time and thereafter he became depressed when the petitioner Dipika Sharma pressurized the deceased to live separately. It further appears that on 24.6.2014 the deceased went to her house as per custom on the eve of arrival of month of Shravan as she was newly wedded and she returned back with the other petitioners on 23.8.2014 to her in-laws house. On the date of occurrence the petitioners arrived in the morning at about 7 O’ Clock and they stayed with the deceased for some time where after the deceased left to his office. There is allegation that during such stay of the petitioners with the deceased, they abused the deceased and left the house of the deceased in the afternoon with ornaments. Though there is allegation that the deceased disclosed before the informant after returning from the office that he was threatened by the petitioners over phone but no documentary evidence was produced by the learned counsel for the State to indicate that there was any telephonic conversation between the deceased and the petitioners on 23.8.2014. There is also no material on record to indicate that after the deceased came back to his house from his office, there was any conversation between him or any of the petitioners over phone. The deceased stated to have committed suicide in his bedroom in the night while he was alone which was detected on the next day morning. 9.Law is well settled that in order to prove the abetment of suicide as required under Section 306 I.P.C., there must be a positive act on the part of the accused to instigate or aid the deceased in committing suicide. Abetment has been defined under Section 107 of the IPC. Keeping such definition in the context of Section 306 I.P.C., there has to be material regarding instigation of the accused or intentional aid by any act or by way of illegal omission on the part of the accused which has to be some proximate link with the commission of suicide. The intentional aiding is a very important criteria. Abetment can be by act of omission or commission. An act of omission would only amount to abetment if somebody was legally bound to do something which he omitted to do. The intentional aiding is a very important criteria. Abetment can be by act of omission or commission. An act of omission would only amount to abetment if somebody was legally bound to do something which he omitted to do. The act of commission would be to instigate, incite or bring about by persuasion to any person to do an act. Sometimes abusive words used by an accused against the deceased cannot be considered to be an act or omission creating a circumstance which left the deceased with no option than to commit suicide and as such it cannot be treated as abetment of suicide. Where the accused by way of a continuous course of conduct created such circumstances for the deceased that he was left with no other option except to commit suicide, instigation can be inferred but words uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. Presence of mens rea is the necessary concomitant of instigation. There use to be quarrel in many a families in the day-to-day life and sometimes the abusive words are also hurled at each other by the family members in a fit of anger which goes to the peak but if taking exception to such quarrel somebody in the family commits suicide, it cannot be said that the other party who was quarreling with him has abetted the commission of suicide. Another example may be taken. When a teacher abuses a student for the poor performance in an examination in front of other students and the student takes it as an exception and commit suicide, it cannot be said that the teacher has abetted the commission of suicide. A person may be suicide prone and to hold the person rebuking him or hurting his sentiment responsible for the offence of abetting the committing of suicide would lead to startling consequences. Each case has to be adjudicated on its own facts and circumstances. The Court has to assess the entire materials available on record and see as to whether there was an instigation or intentional aid by way of an act or illegal omission and whether that has got any proximate link with the commission of suicide or not. Each case has to be adjudicated on its own facts and circumstances. The Court has to assess the entire materials available on record and see as to whether there was an instigation or intentional aid by way of an act or illegal omission and whether that has got any proximate link with the commission of suicide or not. In case of S.S. Chheena –v- Vijay Kumar Mahajan reported in (2010) 47 Orissa Criminal Report (SC) 376, it is held as follows:- “28.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. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC, there has to be clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide. 29.In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day-to-day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation.” In Case of Chitresh Kumar Chopra –v- State reported in (2009) 44 Orissa Criminal Report 354, it is held as follows:- “16.…… The question as to what is the cause of suicide has no easy answers because suicidal ideation and behaviours in human being are complex and multifaceted. Different individuals in the same situation react and behave differently because of personal meaning they add to each event, thus accounting for individual vulnerability to suicide. Each individual’s suicidability pattern depends on his inner subjective experience of mental pain, fear and loss of self-respect. Each of these factors are crucial and exacerbating contributor to one individual’s vulnerability to end his own life, which may either be an attempt for self protection or an escapism for intolerable self. 10.Considering the materials available on record, it is found that in between 24.6.2014 when the deceased went to her father’s place and stayed there till the date of occurrence, nothing untoward incident happened between the petitioners and the deceased. 10.Considering the materials available on record, it is found that in between 24.6.2014 when the deceased went to her father’s place and stayed there till the date of occurrence, nothing untoward incident happened between the petitioners and the deceased. Even prior to that there was some allegation that the petitioner Dipika Sharma was insisting the deceased to remain separately from the other family members which was not accepted by the deceased. Therefore, till the date of occurrence there are no such clinching materials available on record against the act of petitioners which could form a continuous course of conduct or creation of any circumstance for the deceased relating to the commission of suicide. So far as the date of occurrence is concerned, there is allegation and counter allegation. The petitioner Dipika Sharma has lodged the FIR that on the relevant day there was demand of money and she was physically assaulted in her in-laws house which compelled her to leave the house, on the other hand there is allegation from the side of the prosecution that the deceased was abused by the petitioners in the morning and he left for his office. As already stated there is absolutely no documentary evidence to show that there was any telephonic conversation between the deceased and the petitioners thereafter till the commission of suicide though it is alleged that the deceased complained before his mother (informant) that the petitioners threatened him to file cases over phone. So far the morning quarrel is concerned, the allegations are also omnibus in nature. If the deceased took the morning quarrel as an exception and committed suicide in the night in his bed room while he was alone, it cannot be prima facie said that the petitioners are squarely responsible for the commission of suicide. Of course the prosecution may bring further materials during course of investigation or during trial which is to be adjudicated on its own merit. Of course the prosecution may bring further materials during course of investigation or during trial which is to be adjudicated on its own merit. Considering the submissions made by the respective parties and the fact that petitioners Dipika Sharma and Purnima Sharma @ Guddi Sharma are ladies and petitioner Dipika Sharma is in the advanced stage of pregnancy and expecting her child in the month of February 2015 as per medical documents and there is no specific allegation against the petitioners prima facie to have conspired together forming an unlawful combination and thereby abetting the commission of suicide and particularly when the investigation has made substantial progress and there is no chance of absconding or tampering with the evidence, I am inclined to release the petitioners on anticipatory bail. 11.Accordingly, this Court directs that in the event of arrest of the petitioners in connection with the aforesaid case, they shall be released on bail on furnishing bail bond of Rs.10,000/- (rupees ten thousand) with two sureties each for the like amount to the satisfaction of the arresting officer with further conditions that they shall make themselves available for interrogation by the I.O. as and when required and they shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing any facts to the Courts or to the investigating Officer. Violation of any of the above conditions shall entail cancellation of bail. The BLAPL is accordingly disposed of. BLAPL disposed of.