Shyambai and Others vs State of M.P.

C.V. Sirpurkar, J—This criminal revision is preferred against order dated 29.03.2014 passed by the Court of A.J.S. Itarsi in Session Trial No. 188/2013, whereby learned A.S.J. had framed charges under Sections 306 and in alternative 306 read with section 34 of the IPC against the revision petitioners/accused persons Shyambai, Rajesh @ Khuman Singh, Baijantibai and Kailash Thekedar.

The facts necessary for disposal of this criminal revision may briefly be summarized thus: Baijaintibai was wife, Shyambai was mother in law, Rajesh @ Khuman Singh was brother in law and Kailash Thekedar was neighbour of deceased Omprakash. Deceased Omprakash was married to Baijantaibai about 14 years before the date of incident. They had no issues and lived away from parent of the deceased since the year 2007. She had extra marital relationship with accused Kailash Thekedar since the year, 2009. This affair continued till August, 2012, under the garb of relationship between father and daughter. Family members of the deceased as well as neighbours and wife of Kailash warned the deceased about the illicit relationship between his wife and Kailash Thekedar but he did not believed them and on occasions even quarreled with them stating that they were leveling baseless allegations against his wife. However, gradually, the deceased also started to suspect the conduct of his wife, as he saw them talking with each other in suspicious circumstances. Kailash and Baijantibai used to talk frequently on mobile phone and after talking, Baijantibai used to delete the call details. They also used code words for sex and male organ and spoke as if they were husband and wife. On some occasions, the deceased also recorded their conversation. The deceased tried to reason it out that his wife; however, she always denied that she was having affair with Kailash. Deceased also started to believe that his wife and Kailash Thekedar were having sex regularly. He suspected that his wife was surreptitiously administering some drug to him inducing problem of pre mature ejaculation. She also avoided having sex with him on one pretext or the other. On 25th, 26th and 27th of July, 2012 Baijantibai left her bed and went outside for about an hour. When asked by deceased, she stated that that she was suffering from diarrhea.

On 28.07.2012, deceased ultimately confronted his wife with a recording of her and Kailash" conversation; whereon she reluctantly confessed that she was having illicit relation with Kailash for a long time but promised to put an end to the affair and also suggested that the deceased could either sent her to her maternal home or he could bring his mother to their house to keep a watch on her. On 29.7.2012, deceased dropped Baijantibai at her parent" place.

When the deceased informed his mother in law Shyambai and brother in law Rajesh about the affair, they sided with Baijantibai and started blaming deceased for the state of affairs. Baijantibai, Rajesh and Shyambai also started abusing deceased and threatened to implicate him in false criminal cases. Deceased also took up the matter with other relatives of his wife but they said that this was a matter for the husband and wife to settle and they could do nothing in this regard. Thus, harassed and frustrated, deceased wrote an elaborate suicide note running into about 24 handwritten pages from 20.07.2012 to 31.07.2012 in his diary, recounting the entire tale. Thereafter, he was found dead at about 5.00 pm on 01.08.2012, hanging from the roof.

After investigation, a charge sheet was filed and learned trial Court framed the charges as aforesaid.

The impugned order framing charge against four accused persons/revision petitioners has been challenged mainly on the grounds that elements of abetment of suicide are missing from the case; therefore, even if entire material placed on record by the prosecution is believed to be true, no case under section 306 or 306 read with section 34 would be made out. Thus, the revision petitioners deserve to be discharged.

Learned Government Advocate for the respondent State has supported the impugned order.

After perusal of record of the case and on due consideration of rival contentions, the Court is of the view that this revision petition must succeed for the reasons hereinafter stated:

"(i) Section 306 of the Indian Penal Code 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 extent to ten years, and shall also be liable to fine."

Term abetment has been defined under section 107 of the Indian Penal Code as follows:

"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 aides, by any act or illegal omission, the doing of that thing."

The main question that arises for the Court to consider in this criminal revision is that whether the conduct of any of the accused persons/revision petitioners as brought forth by the suicide note and statement of witnesses, constituting abetment of suicide.

Reverting back to the facts and circumstances of the case at hand, we find that the deceased was a emotional person, who trusted his wife implicitly and could not imagine that she could be unfaithful to him; therefore, he did not believe his family members, neighbours and even wife of accused Kailash when they warned him about the extra-marital affair between Kailash and Baijantibai. However, gradually he started to suspect her conduct and keep a watch on her activities, particularly her telephonic conversation with Kailash Having collected enough material, he confronted his wife, who had to confess that she was having illicit affair with Kailash for a long time. However, she promised to discontinue the affair. Thereafter, he dropped her at her parent" place. When he took up the matter with the relative of his wife, they blamed him for the situation and threatened to implicate him in false cases. Thus, there is no doubt that there is sufficient material available on record to presume that the deceased was thoroughly dejected and disappointed on account of conduct of his wife and Kailash and felt harassed by the behaviour of his mother-in-law Shyambai and brother-in-law Rajesh. Consequently, he committed suicide on 01.08.2012. However, admittedly, his wife was not staying with him when he committed suicide.

Thus, there is sufficient material on record to presume that the deceased committed suicide because of conduct of his wife and his neighbour Kailash; however, the question that arises for consideration is whether conduct of Baijantibai and Kailash in having extramarital affair amounted to abetment of suicide?

Punjab and Haryana High Court in the case of State of Punjab Vs. Kamljit Kaur alias Bholi and Another, (2008) CriLJ 2104 : (2008) 2 RCR(Criminal) 562 has held that where deceased along with his son had committed suicide and left suicide note to the effect that wife of the deceased was a women of bad character, in the absence of material showing that the accused wife was present at the time of commission of suicide or she had instigated or aided the suicide, it may be held that though the conduct of wife was bad, it was not for the purpose of inciting the deceased to commit suicide.

In the present case also, it may be said that the conduct of wife was unbecoming in having extra-marital affair with her neighbour under the garb of relationship of father and daughter but there is nothing on record to suggest that she actually instigated or aided the deceased to commit suicide. Though, the deceased felt humiliated by the extra-marital affair of his wife, it cannot be said by any stretch of imagination that she had created such situation for the deceased where he was left with no option but to commit suicide. In the circumstances, in which the deceased found himself, he had various options, which any man of ordinary prudence would have exercised. For example, he could have enlisted services of his family members to put an end to the affair. If all else failed, he could have divorced his wife but without exercising any of the aforesaid options, he wallowed in self-pity and impulsively committed suicide within days of the confession made by his wife. It is apparent that he was being ultra-sensitive to the situation.

It is true that the Supreme Court in the case of Dammu Sreenu Vs. State of A.P., AIR 2009 SC 2532 : (2009) CriLJ 3728 : (2009) 7 JT 478 : (2009) 8 SCALE 731 : (2009) 14 SCC 249 : (2009) 9 SCR 858 : (2009) AIRSCW 4421 : (2009) 4 Supreme 525 has held that:

"13. We have carefully examined the aforesaid statement of PW-5 and on perusal of the statement we do not find that any suggestion was made to the said PW-5 that there did not exist an illicit relationship between Accused No. 1 and Accused No. 2. Besides, the close relatives of the deceased who were also examined as witnesses had categorically stated in their statements that on coming to know of the fact that Accused No. 1 has taken Accused No. 2 from the house of PW-5 and left her only on 06.01.1996 at her parents'' house, the deceased stated before the said inmates of his house that because of the said insult and humiliation he does not like to live. It is also proved that immediately thereafter in the night intervening 7th and 8th of January, 1996 the deceased committed suicide. The aforesaid fact leads to only one conclusion that it is on account of humiliation and insult due to the behaviour and conduct of Accused No. 1 and Accused No. 2 that he proceeded to commit the suicide.

The facts which are disclosed from the evidence on record clearly establish that Accused No. 1 had illicit relationship with Accuse No. 2 who is the wife of the deceased. It is also not in dispute that Accused No. 1 was visiting the house of the deceased to meet Accused No. 2 and that he even went to the house of deceased when he came to know that the wife of the deceased was sent with her father for counselling and advise. He loudly stated that he would continue to have relationship with Accused No. 2 and would come to her house so long she does not object to the same. He also took her away from the house of PW-5, her brother and kept her with him for 4 days. Immediately after the said incident the deceased committed the suicide. Therefore, there is definitely a proximity and nexus between the conduct and behaviour of Accused No. 1 and Accused No. 2 with that of the suicide committed by the deceased. Besides, there is clear and unambiguous findings of fact of three courts that the appellant is guilty of the offence under Section 306 of IPC. Such findings do not call for any interference in our hand. This Court also does not generally embark upon re-appreciation of evidence on facts which are found and held against the appellant."

However, aforesaid authority is distinguishable on facts. In the present case, though, the wife was admittedly having illicit affair with his neighbour, she was being discreet about it. She kept denying the affair, till she was cornered into confessing about the same. Both Kailash and Baijantibai were not brazen about the affair and did not inflict any public humiliation upon the deceased. No conduct on the part of the either Baijantibai or Kailash could be interpreted as an affront on his manhood. They did not incite or provoke the deceased in any manner for committing suicide. Simply having an illicit affair does not tantamount to inciting the husband to commit suicide nor a person of ordinary prudence would take such a step.

So far as role of in laws of the deceased Shyambai and Rajesh are concerned, it was natural for them to side with Baijantibai. Even if we assume for the sake of argument that Baijantibai, Shyambai and Kailash threatened to implicate the deceased in false criminal cases, this by itself does not amount to abetment of suicide. This Court has held in the case of Sita @ Sita Pratap Vaishya Vs. State of M.P., (2008) ILR (MP) 74 : (2008) 1 MPHT 92 that threatening to implicate a person in false cases cannot be equated with abetment of suicide.

On the basis of aforesaid discussion, this Court is of the view that there is no material on record to suggest that any of the accused persons/revision petitioners had in any manner intended or wanted that the deceased should commit suicide. No action or conduct on their part, could be interpreted to mean instigation of aiding of suicide. Thus, even if the entire material collected by the prosecution is believed to be true, it would not constitute the offence of abetment. Thus, learned trial Court erred in framing charge against the accused persons/revision petitioners.

As such, there is no sufficient ground to proceed against the revision petitioners Shyambai, Rajesh @ Khuman Singh, Baijantibai and Kailash Thekedar under Section 306 or 306 read with section 34 of the IPC.

Consequently, they are entitled to be discharged in respect of aforesaid offences.

In the result, this criminal revision succeed. The impugned order is set aside. Revision petitioners/accused persons Shyambai, Rajesh @ Khuman Singh, Baijantibai and Kailash Thekedar are discharged of the offences under Section 306 and in the alternative 306 read with section 34 of the IPC.