Thanga Durai vs State and Another

T. Sudanthiram, J.—The petitioner seeks to quash the proceedings pending against him in Sessions Case No. 318 of 2003 on the file of the

learned Assistant Sessions Judge, Periyakulam.

The respondent-police filed a case against the petitioner and another person for an offence u/s 306, I.P.C. The case of the prosecution is that

the first accused by name Sudha, the wife of the deceased by name Kalyani and Kalyanasundaram, had illicit intimacy with the 2nd accused/the

petitioner herein, who is the Postmaster. The illicit intimacy had come to the knowledge of the deceased and the first accused had gone to her

parental home. On 24-6-2002, the deceased went to the house of the first accused and called hen to his house. A-1 had told the deceased that he

was not capable of running a family and no ""Thaali"" was necessary and she further told him that he had spread a wrong news about her and

defamed her. She further told that she was not prepared to live with him and only if he dies, she would be able to live. On the same day, in the

evening, the deceased went to A-2 and told him that if he intervenes in his family affairs, it would not be proper. Then, the petitioner herein/A-2

had told the deceased, ""as you are not able to lead a life with your wife, why should you be alive."" Dejected by these words, on the next day, i.e.,

25-6-2002, the deceased consumed poison and was admitted in the hospital and died subsequently.

The learned Counsel for the petitioner submitted that originally a case was registered u/s 309, I.P.C. on the basis of the statement recorded from

the deceased in the hospital and in that statement, the deceased had not implicated the petitioner at all. It was stated by the deceased that only the

first accused had gone to her parental home about two months back and as the deceased went and called her, she had refused and further, she had

given a complaint in the All Women Police Station against him. Due to that, deciding to put an end to his life, the deceased had consumed poison.

Subsequently, the case was altered to one u/s 306, I.P.C. on the basis of a petition given by the brother of the deceased along with suicidal note of

the deceased in which it was mentioned that the life of the deceased was spoiled by A-2 and he was responsible for the final decision of the

deceased.

The learned Counsel for the petitioner submitted that even if the averments are taken as it is, no offence is made out against the petitioner herein.

The ingredients required u/s 107, I.P.C. leading to Section 306, I.P.C. are not made out by the prosecution. The materials available with the

prosecution do not compel the Court to infer abetment as contemplated under the law.

The learned Counsel for the petitioner placed reliance on the decisions reported in 1995 SCC (Crl) 943 (Swamy Prahaladdas v. State of

Madhya Pradesh); 2002 SCC (Crl) 1141 : 2002 Cri LJ 2766 (Sanju alias Sanjay Singh Sengar v. State of M.P.) and also the decision of this

Hon''ble Court in 2007 (1) LW (Crl) 163 (Anada Sekaran v. State by the Inspector of Police, Kl Sembiam Police Station. Chennai).

This Court had perused the materials available along with the final report. It is true that in the statement recorded from the deceased by the

police, attested by the doctor, which amounts to dying declaration, this petitioner/A-2 was not at all implicated. In the petition given by the brother

of the deceased based on which the case was altered to Section 306, I.P.C, it is stated that the petitioner/A-2 has scolded the deceased that

(Vernacular matter omitted....Ed.) further it is also stated in the suicidal note that (Vernacular matter omitted....Ed.) Non it is to be seen whether

these materials are sufficient to proceed against the petitioner for an offence u/s 306, I.P.C.

Section 107, I.P.C. defines abetment which reads as follows:

ABATEMENT 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 capacity 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.

This makes it clear that there should be instigation when the case has to come under the first category and there should be intentional aid or

illegal omission when the case comes under the third category. The second category need not be discussed. In view of the first and the third

category u/s 107, I.P.C., the accused should have instigated the deceased or he might have been in a specific surface of omission to prevent the

commission of offence, but with intentional or to aid the deceased to commit suicide. From the facts available, it is clear that the accused will not

come under the third category also since it is not the case of the prosecution that he intentionally aided by any specific act.

There is nothing to show that there was any illegal omission on the part of the accused as if he failed in his attempt to prevent the suicide. As per

the allegation, it is only that the petitioner uttered the words that ""why should the deceased be alive."" The suicidal note of the deceased is only to

the extent that it was only the decision of. the deceased and it was only the feeling of the deceased and there is nothing to suggest that the petitioner

instigated the deceased to commit suicide.

In the decision of the Hon''ble Supreme Court in 1995 SCC (Crl) 943. (Swamy Prahaladdas v. State of Madhya Pradesh) it is observed in

paragraphs 2 and 3 as follows:

...Sushila Bai, respondent, a married woman, is alleged to have two paramours, one was the deceased and the other is the appellant. It is

alleged that there was sexual jealousy between the two. The deceased was a married man. The prosecution alleges that Sushila Bai had completely

bewitched him her heart was with the appellant. On the morning of 13-6-1992, all the three had a quarrel while sharing their morning tea. During

that course, the appellant is said to have remarked for the deceased to go and die. The prosecution alleges that thereafter, the deceased went

home in a dejected mood, whereafter he committed suicide. The suicide has been termed as the direct cause for the treatment meted out to the

deceased by the appellant. It is Sushila Devi though, who alone stands committed to the Court of Session to face trial because of her preferential

treatment to the appellant.

At the time of framing of charge, the trial Court thought it appropriate to associate the appellant herein as an accused because of the words he

uttered to the deceased. We think that just on the basis of that utterance the Court of Session was in error in summoning the appellant to face trial.

In the first place it is difficult, in the facts and circumstances, to come to even a prima facie view that what was uttered by the appellant was enough

to instigate the deceased to commit suicide. Those words are casual in nature which are often employed in the heat of the moment between

quarrelling people. Nothing serious is expected to follow thereafter. The said act does not reflect the requisite mens rea on the assumption that

these words would be carried out in all events. Besides the deceased had plenty of time to weigh the pros and cons of the act by which he

ultimately ended his life. It cannot be said that the suicide by the deceased was the direct result of the words uttered by the appellant. The appeal is

accordingly allowed. The orders of the High Court and that of the Court of Session are thus upset. The appellant need not face the charge.

In the decision of the Hon''ble Supreme Court reported in 2002 SCC (Crl) 1141 : 2002 Cri LJ 2796 (Sanju alias Sanjay Singh Sengar v.

State of M.P.) in paragraphs 12 to 15 (paras 13 to 16 of Cri LJ), it is observed as follows:

Reverting to the facts of the case, both the Courts below have erroneously accepted the prosecution story that the suicide by the deceased is

the direct result of the quarrel that had taken place on 25-7-1998 wherein it is alleged that the appellant had used abusive language and had

reportedly told the deceased, ""to go and die."" For this, Courts relied on a statement of Shashi Bhushan, brother of the deceased, made u/s 161,

Cr. P.C., when reportedly, the deceased after coming back from the house of the appellant, told him that the appellant had humiliated him and

abused him with filthy words. The statement of Shashi Bhushan, recorded u/s 161, Cr. P.C., is annexed as Annexure P-3 to this appeal and going

through the statement, we find that he has not stated that the deceased had told that the appellant had asked him ""to go and die."" Even if we accept

the prosecution story that the appellant did tell the deceased ""to go and die,"" that itself does not constitute the ingredient of ""institution."" The word

instigate"" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea therefore, is the

necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or on the spur of the moment cannot be taken to

be uttered with mens rea. It is in a fit of anger and emotion. Secondly, the alleged abusive words, said to have been told to the deceased were on

25-7-1998 ensued by a quarrel. The deceased was found hanging on 27-7-1998. Assuming that the deceased had taken the abusive language

seriously, he had enough time in between to think over and reflect and, therefore, it cannot be said that the abusive language, which had been used

by the appellant on 25-7-1998 drove the deceased to commit suicide. Suicide by the deceased on 27-7-1998 is not proximate to the abusive

language uttered by the appellant on 25-7-1998. The fact that the deceased committed suicide on 27-7-1998 would itself clearly point out that it is

not the direct result of the quarrel taken place on 25-7-1998 when it is alleged that the appellant had used the abusive language and also told the

deceased to go and die. This fact had escaped notice of the Courts below.

The next most important material is the suicide note left by the deceased. The translated copy is annexed to this appeal as Annexure P-1. It is

extracted:

SUICIDE NOTE

Dainik Bhaskar

581, South Civil Lines,

Jabalpur.

Agent''s name Sengar News Agency

Place- Goshalpur

Number of copies 409

Date

Name of the person who prepared lable

Goshalpur Senar has threatened to re port under dowry demand and threatened to involve family members due to this I am writing in my full senses

that Sanjay Sengar is responsible for my death. Sanjay Sengar also Mukraj commander loota tha Sanjay ki.

Sengar News Agency,

Goshalpur

Sengar News Agency,

Goshalpur

I was threatened therefore I am Dying

Sengar, Goshalpur

My name Chander Bhushan Singh

Goutam

Chander Bhushan Singh Goutam

Babloo Goutam

In my senses,

Sengar responsible for my death.

My Moti,

Darling my Moti. You look after my

Chukho.

My darling moti Neelam Sengar alias Chander Bhushan Singh Goutam,

Gandigram Budhagar.

Sengar is responsible for my death

Sanjay Sengar is responsible for my death

Sanjay Sengar is responsible for my death

Chander Bhushan Singh Goutam, Gandhigram Budhagar.

A plain reading of the suicide note would clearly show that the deceased was in great stress and depressed. One plausible reason could be that

the deceased was without any work or avocation and at the same time indulged in drinking as revealed from the statement of the wife Smt. Neelam

Sengar. He was a frustrated man. Reading of the suicide note will clearly suggest that such a note is not the handiwork of a man with a sound mind

and sense. Smt. Neelam Sengar, wife of the deceased, made a statement u/s 161, Cr. P.C. before the Investigating Officer. She stated that the

deceased always indulged in drinking wine and was not doing any work. She also stated that on 26-7-1998 her husband came to them in an

inebriated condition and was abusing her and other members of the family. The prosecution story, if believed, shows that the quarrel between the

deceased and the appellant had taken place on 25-7-1998 and if the deceased came back to the house again on 26-7-1998, it cannot be said that

the suicide by the deceased was the direct result of the quarrel that had taken place on 25-7-1998. Viewed from the aforesaid circumstances

independently, we are clearly of the view that the ingredients of ""abetment"" are totally absent in the instant case for an offence u/s 306, I.P.C. It is

in the statement of the wife that the deceased always remained in a drunken condition. It is common knowledge that excessive drinking leads one

to debauchery. It clearly appeared, therefore, that the deceased was a victim of his own conduct unconnected with the quarrel that had ensued on

25-7-1998 where the appellant is stated to have used abusive language. Taking the totality of materials on record and facts and circumstances of

the case into consideration, it will lead to the irresistible conclusion that it is the deceased and he alone, and none else, is responsible for his death.

In the result, this appeal succeeds. The charge-sheet dated 2-7-2001 framed by the Additional Sessions Judge, Sihora, in Sessions Trial No.

469 of 1998 for an offence u/s 306, I.P.C. and the order of the High Court under challenge are hereby quashed.

In the decision reported in 2007 (1) LW (Crl) 163 (Anada Sekaran v. State by the Inspector of Police, KI Sembiam Police Station, Chennai),

it is observed in paragraphs 19 and 21 as follows:

In the second case, referring the above decision, when the case was dealt with u/s 306 read with Section 107, I.P.C, the Apex Court held that

the words uttered in a quarrel or on the spur of the moment such as ''to go and die'' cannot be taken to be uttered with mens rea and, therefore, the

person so ""said cannot be convicted u/s 306, I.P.C. If the accused had the motive or intention that his wife should die committing suicide on her

own, then there must be some instance bringing to surface the mens rea, which is essential as held by the Apex Court. No instance brought to the

notice of the Court how the accused entertained mens rea or how and why he should think that his wife should commit suicide for which he should

have abetted.

In State of Gujarat v. Sunilkumar Kanaiyalal Jain 1997 Cri LJ 2014 a Division Bench of the Gujarat High Court considering the scope of

Section 306, I.P.C. elaborately dealt with abetment, realising the responsibility of the Court also has observed, ""better die today than tomorrow,"" if

had been uttered cannot be said to be the abetment in the eye of law since the words might have been uttered due to outburst of one''s own fatuity

or anger or consternation without any intention or knowledge or might be the rude or insulting, not with desire to instigate the person to commit

suicide, which principle also could be extended to the above case on hand....

On considering the materials of the case in hand and on the principles laid down in the decisions cited supra, this Court is of the considered

opinion that the ingredients required u/s 107, I.P.C. leading to Section 306, I.P.C. are not available. There is no material to show that there was an

intention and mens rea on the part of the petitioner to induce or instigate the deceased to commit, suicide.

In the result, the criminal original petition is allowed and the proceedings against the petitioner is quashed. Consequently, connected

miscellaneous petition is also closed.