Babuli @ Kishore @ Kishore Chandra Mohanty vs State Of Orissa

That, the present petitioner is seeking bail under Section 439 of Cr. P.C. who has been implicated U/s. 498(A), 306/34 of IPC, 1980 based on the

FIR lodged by the informant before the IIC, Tangi registered vide P.S Case No.295/2019, corresponding to G.R. No.382/2019 and now the matter is

pending before NGN- cum-J.M.F.C., Tangi, Khurda.

The allegations in the FIR as summarised, the complainant Mr. Shashank Mohanty, brother of the deceased, lodged a complaint on 16.10.2019 in

the Police Station- Jankia, District-Khurda implicating the accused for committing the offences punishable under Sections 498-A/306/34 of I.P.C.

According to the complainant, the petitioner and the deceased had tied the nuptial knot on 11.05.2000. Since the inception of marriage, the deceased

was treated with disdain by her in-laws for dowry. However, the Petitioner and his parents started physically torturing her when she was not able to

conceive a child. The Petitioner then got married to the co- accused (Rozalin Mahanty) which was the triggering point for the deceased to file a

complaint regarding the same in the Khurda Town Police Station on 01.05.2014. After that the deceased had fled to her paternal home, only in

expectation to be convinced and brought back by the Petitioner and his second wife Rozalin Mahanty to her matrimonial home. The deceased was

made to take care of the children of the co-accused (Rozalin Mahanty). On the day of the incident, the co-accused (Rozalin Mahanty) and the

deceased got into a quarrel on the issue of taking care of both of the children and the former berated her for the same. Later on, one day finding

herself alone, the deceased poured kerosene all over her own body and lit herself on fire. She later succumbed to her injuries in the hospital. These

facts are appropriately reflected in the statement recorded under Section 161 of Cr. P.C.

Mr. Sangramjit Panda, learned counsel for the petitioner strenuously contended that the Petitioner has no role in the alleged commission of offence.

The cause and circumstances surrounding the death of Petitioner’s first wife has been termed as suicide, however, the allegations made against

him in the FIR are false and fabricated. Though the statements made under Section 161 of Cr.P.C. by some of the family members, neighbours and

friends regarding the tragic end of the deceased prima facie thinly establishes the commission of the said crime but none has attributed any motive or

intention of the Petitioner or his role in the suicide of the deceased. The Petitioner was arrested on 18.10.2019 and since then he is in jail. Hence, he

may be granted bail.

Per contra, Mr. Sailaza Nandan Das, Ld. Addl. Standing Counsel vehemently opposed the bail application of the Petitioner stating that the Petitioner

is involved in the instant crime in so far as his role in abetting the suicide is concerned. He has contended that the deceased was physically and

mentally tortured by the Petitioner on different grounds and such circumstances forced the deceased to take such an extreme step. He has further

contended that in a particular case, there may not be direct evidence in regard to instigation which may have direct nexus to the commission of crime

like abetment to suicide. Therefore, in a given set of circumstances, an inference has to be drawn to determine whether the circumstances were of

such gravity that it compelled the victim to commit suicide. From the statements recorded under Section 161 of Cr. P.C, it can be prima facie viewed

that the contours of such circumstances were created by the Petitioner leading to commission of an offence punishable under Sections 498-A/306 of

I.P.C. He contends that the accused is not entitled for bail and seeks rejection of the instant petition.

Having heard the rival contentions of the parties and after perusal of up-dated Case Diary, it prima facie appears that the aforementioned chain of

events might have led to the unfortunate incident but the role of the petitioner as perpetrator of this incident is quite obscure. A married woman in her

matrimonial home should be treated with care, respect and compassion by the husband and her in-laws; which does not appear to be so in the instant

case. However, the allegations against the petitioner or his acts, as demonstrated by the prosecution, are not sufficient to implicate him under Sections

306 and 498-A of IPC. Section 306 of IPC is to be afforded a conjective meaning as under Section 107 of IPC (there must be instigation/ conspiracy/

intentional assistance or aid given to the actual offender to do or an illegal omission to do an act). A person who himself does not commit the crime but

commands, urges, induces, encourages, requests or helps a third person to do a crime is guilty of the offence of ‘abetment’. In other words, any

act of an individual which aids/ assists/ helps another to commit a crime falls within the offence of ‘abetment’.

The offence of abetment to suicide under Section 306 of IPC is endowed with twin essential ingredients: (i) a person commits suicide (ii) such

suicide was abetted by the accused. The offence involves a mental process of instigating a person or intentionally aiding a person in doing of a thing.

To hold a person liable for abetting suicide active role is required which can be described as instigating or aiding in doing thing [K.D. Gaur, Criminal

Law: Cases and Material, Lexis Nexis 8th Edn. 2015]. This has been reiterated in plethora of judgments decided by various High Courts and the

Supreme Court.

The Kerala High Court in Cyriac and Ors. vs. The S.I. of Police and Ors ILR 2005. has put the issue very succinctly:

“17. …….The act or conduct of the accused, however, insulting and abusive those may be, will not by themselves suffice to constitute

abetment of commission of suicide, unless those are reasonably capable of suggesting that the accused intended by such acts consequence

of suicide. Even if the words uttered by the accused or his conduct in public are sufficient to demean or humiliate the deceased and even to

drive him to suicide, such acts will not amount to instigation or abetment of commission of suicide, unless it is established that the accused

intended by his acts, consequence of a suicide. It is not enough if the acts of the accused cause persuasion in the mind of the deceased to

commit suicide.

……..a fatal impulse or an ill-fated thought of the deceased, however unfortunate and touchy it may be, cannot unfortunately, touch

the issue. Those cannot fray the fabric of the provision contained in section 306 of IPC, in short, it is not what the deceased ‘felt’, but

what the accused ‘intended’ by his act which is more important in this context. Of course, the deceased’s frail psychology which

forced him to suicide also may become relevant, butit’s only after establishing requisite intention of accused.â€​

The Supreme Court in Gurcharan Singh vs. State of Punjab 2017) 1 SCC 433., held that the basic ingredients of Section 306 of IPC are that a

suicide death and abetment thereof, and absence of any of these conditions could vitiate the indictment. The judgment derived its strength from State

of West Bengal vs. Orilal Jaiswal and Another (1994) 1 SCC 73., wherein it was observed by the Hon’ble Supreme Court that the court should be

extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial of the parties. The apex court in

Chitresh Kumar Chopra vs. State (Govt. of NCT) (2009)16 SCC 605., Gangula Mohan Reddy vs. State of Andhra Pradesh (2010) 1 SCC 750., S.

Mohan vs. State (2011) 3 SCC 626., Gurjit Singh vs. State of Punjab Criminal Appeal Nos. 1492-1493 of 2010(S.C) etc. once again reiterated that the

abetment involves a mental process of instigating a person intentionally hence in such cases conviction cannot be sustained.

The Ld. Counsel for the State has contended that the acts of the petitioner and his family shall amount to cruelty against the deceased under

Section 498-A of IPC which has forced the deceased to commit suicide and therefore the petitioner should be charged under Section 306 of IPC.

However, this contention has been distinctly set aside by the Supreme Court in the case of Ramesh Kumar vs. State of Chattisgarh (2001) 9 SCC

wherein the court held that:

“22. Sections 498A 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 498A 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 498A 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.

26…… To constitute an offence Under Section 306, the prosecution has to establish that a person has committed suicide and the suicide

was abetted by the accused. Prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused

abetted the commission of suicide. But for the alleged extra marital relationship, which if proved, could be illegal and immoral, nothing has

been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide.â€​

Further various High Courts have iterated that mere demand of money or property, unaccompanied by any harassment, would also not fall within

the mischief of Section 498-A. There has to be a nexus between the demand and the consequent harassment. As stated by Bombay High Court in the

case of Kamlesh Ghanshyam Lohia vs. State of Maharashtra, Through the Commissioner of Police and Others2019 SCC OnLine Bom 1762.:

“13. It is indisputable that the cruelty under section 498-A of IPC has a specific legal connotation. Ordinary quarrels, differences of

views and wear and tear of life, which every home witnesses, do not fall within the mischief of cruelty which section 498-A of IPC punishes.

Nor, every ill-treatment or harassment falls within its dragnet. To fall within the tentacles of section 498-A, the married woman must have

been subjected to cruelty which would drive the woman to commit suicide or to cause grave injury or danger to her life, limb or health, or

with a view to coerce her or any person related to her to meet an unlawful demand of property. Mere demand of money or property,

unaccompanied by any harassment, would also not fall within the mischief of section 498-A. There has to be a nexus between the demand

and the consequent harassment.â€​

The Bombay High Court in Neeraj Subhash Mehta vs. The State of Maharashtra Criminal Application No. 1213 of 2016 in Criminal Appeal No. 555

of 2016. has reiterated in the similar lines wherein it has stated that:

“Cruelty implies harsh and harmful conduct with certain intensity and persistence. It covers acts causing both physical and mental agony

and torture or tyranny and harm as well as unending accusations and recrimination reflecting bitterness putting the victim thereof to intense

miscarries. The conduct, in order to prove guilt, must be such as strongly stirring up the feeling in the mind of a married woman that life is

now not worth living and she should die, being the only option left. In other words, provisions of Section 498A of the IPC envisages

intention to drawing or force a woman to commit suicide by unabetted persistence and grave cruelty. A wilful conduct of such a nature as is

likely to propel or compel a married woman to commit suicide or to cause grave injury or danger to her life, limb or health is required to be

established. In other words, matrimonial cruelty is included from the definition of legal cruelty. To put it in other words, ordinary petulance

and discord or differences in domestic life does not amount to cruelty.â€​

As opposed to the contention of the prosecution, several High Courts and Supreme Court have held that cruelty shall not always act as an

“instigation†to commit suicide. It is required to be proved that the accused could reasonably foresee that the victim is likely to commit suicide

because of his conduct. The Bombay High Court in Shivaji Shitole and Ors. Vs. State of Maharashtra & Anr. 2012(3) Bom. C.R. (CRI) 532. has held

that:

“Even if a person would commit suicide because of the torments of an accused, the accused cannot be said to have abetted the

commission of suicide by the deceased, unless the accused would intend, while causing torments to the victim/deceased, that he should

commit suicide. Even if the rigour of this proposition is diluted, still, the least that would be required is, that it should be shown that the

accused could reasonably foresee that because of his conduct, the victim was almost certain or at least quite likely to commit suicide. Unless

that the victim should commit suicide, is either intended, or can be reasonably foreseen and expected a person cannot be charged of having

abetted the commission of suicide, even if the suicide has been committed as a result of some of the acts committed by the accused. A perusal

of the reported judgments show that even in cases where the accused had uttered the words such as ""go and die"", in abusive and

humiliating language, which, allegedly, led to the committing of suicide, it was held that it would not amount to instigation and that

consequently, there would be no offence of abetment of suicide.â€​

The Supreme Court in Ude Singh &Ors. Vs. State of Haryana AIR 2019 SC 4570., has reiterated the ratio wherein it held that:

“38. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act/s of incitement to the commission of suicide. It

could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a

vexed one, involving multifaceted and complex attributes of human behaviour and responses/reactions. In the case of accusation for

abetment of suicide, the Court would be looking for cogent and convincing proof of the act/s of incitement to the commission of suicide. In

the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the

part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of

occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and

circumstances of each case.â€​

Several decisions of this Court on the aforesaid aspect were also perused and having done so I revert back to the factual position of the present

case. The prosecution has specifically alleged that few days prior to the date of commission of suicide by the deceased, the latter was harassed by the

Petitioner, Rozalin and the other co-accused persons present in the house of the petitioner. In view of such circumstances, the deceased committed

suicide when she was alone in the house. The complicity of the accused in the commission of the crime can be better proved in the trial. The entire

observation made hereinabove are purely based on a prima facie view based on the case diary and arguments of the counsels from both the sides.

Having considered the matter in the aforesaid perspective and guided by the precedents cited hereinabove, this Court is of the view that the

petitioner be enlarged on bail. Accordingly, the Court in seisin over the matter will enlarge him on bail imposing some terms and conditions as deems fit

and proper with further condition that he will cooperate the investigation and shall not threaten the witnesses or misutilise the liberty granted to him.

However, it is made clear that any of the observation made hereinabove with respect to the fact of the case, shall not come in the way or prejudicially

affect the fair trial of the present case.

For the aforesaid reasons, the present bail application is disposed of.