N.I.Act / Section 243 of Cr.P.C. /denial to verify cheque for hand writing expert- Fatal for fair trial

Held: As per Section 243(2) CrPC is clear that a Magistrate holding an inquiry under the Cr.P.C. in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a hand-writing expert to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The having declined to send the document for the examination and opinion of the hand-writing expert has deprived the Appellant of an opportunity of rebutting it. The Appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. “Fair trial” includes fair and proper opportunities allowed by law to prove her innocence.

SUPREME COURT OF INDIA

CASE NO.: Appeal (crl.) 1293 of 2006

[Arising out of S.L.P. (Crl.) No. 2639 OF 2004]

 Mrs. Kalyani Baskar                                   …………….. PETITIONER:

VS

 Mrs. M. S. Sampoornam                            ……………… RESPONDENT:

BENCH: G. P. Mathur & Lokeshwar Singh Panta

DATE OF JUDGMENT: 11/12/2006

 J U D G M E N T: Lokeshwar Singh Panta, J.

               Leave granted.

               This appeal by special leave, directed against the order dated 10.2.2004 of the High Court of Judicature at Madras, involves a question with regard to the scope of the powers of the Magistrate under Section 243 of the Code of Criminal Procedure, 1973 [hereinafter referred to as ‘Cr.P.C.’]. It arises out of these circumstances.

                A complaint has been preferred by Mrs. M. S. Sampoornam, complainant-respondent herein, against Mrs. Kalyani Baskar, appellant herein, and her husband for the offence under Section 138 of the Negotiable Instruments Act, 1881 [for short "the Act"] before the Judicial Magistrate, Tambaram, Chennai, alleging that the appellant along with her husband jointly signed and issued a cheque No. 037296 for discharging their liability. On presentation of the said cheque, it was dishonoured for ’insufficient funds’. Though the notice was served upon both the accused persons yet no reply has been sent by them. Thereafter, observing all the formalities as contemplated under the Act, the complainant respondent had preferred C.C. No. 439/1998 on the file of the Judicial Magistrate, Tambaram, Chennai, against the appellant and her husband. The accused appeared before the Magistrate and filed an application under Section 245 of Cr.P.C. raising inter alia preliminary objections that:-

 (1) the accused has not signed the cheque nor issued it to the complainant-respondent; (2) the cheque, in question, was drawn from the individual account of the accused and therefore, as alleged by the complainant, the accused and her husband could not have jointly signed and issued the cheque;

(3) the signature on the cheque may be sent for expert opinion to ascertain bona fide of the same; and

 (4) neither the appellant nor her husband owe any debt to the respondent.

                  The Judicial Magistrate dismissed the said application on the ground that the genuineness of the signature could be questioned only at the time of trial of the complaint. Thereafter, the trial was commenced and the evidence of the respondent was recorded. The banker of the appellant during the cross-examination deposed that he has not verified the signature before returning the cheque, in question, as dishonoured. In these circumstances, during the trial of the case the appellant preferred an application under Section 243 of Cr.P.C., requesting the Magistrate to send the cheque in question for expert opinion to ascertain the correctness and genuineness of the appellant’s signature appearing thereon. The Magistrate, however, dismissed the application on the ground that it was not mandatory that every disputed document or signature has to be sent to an Expert for opinion, that the original document filed in the court cannot be sent out for any reason and that every document filed before the court should be safe till the disposal of the litigation.

                  Feeling aggrieved by this order, the appellant preferred a Criminal Revision Case No. 335 of 2002 under Section 397 read with Section 401 of Cr. P.C in the High Court of Judicature at Madras. The Revision Petition came to be dismissed by the impugned order. Hence, this appeal by the appellant.

                   We have heard Shri V. Krishnamurthy, learned counsel appearing for the appellant-accused and Shri S.G.K. Kumar, learned counsel appearing for the respondent and examined the material on record.

                    Learned counsel for the appellant contended that the High Court has failed to appreciate the legal position that no offence can be established against the appellant by the respondent unless the respondent proves on record that the cheque, in question, bears the signature of the appellant. According to the learned counsel, the appellant cannot be debarred from entering upon her defence and produce her evidence without deciding the genuineness of the signature on the cheque, in question and the dismissal of the application by the Magistrate has caused miscarriage of justice to the appellant.

                    On the other hand, the learned counsel appearing on behalf of the respondent contended that the Magistrate has exercised his jurisdiction judiciously as the application filed by the appellant was with the sole object to protract the trial. He submitted that the High Court has recorded a well-reasoned order in dismissing the revision petition filed by the appellant and this Court in exercise of its jurisdiction under Article 136 of the Constitution of India should not lightly interfere with the said order.

                    We have given our anxious and thoughtful consideration to the respective contentions of the learned counsel for the parties.

                     It is not in dispute that the appellant at the initial stage of her appearance before the Magistrate had filed an application under Section 245 Cr.P.C. in which she had categorically denied her signature on the cheque and its delivery to the respondent besides raising other preliminary objections in opposition to the complaint filed by the respondent under Section 138 of the Act. From the record, it appears that the said application was dismissed by the Magistrate on the ground that the genuineness of the signature can be questioned only at the time of trial. The appellant accepted the correctness of the said order of the Magistrate. During the trial, the respondent was examined as P.W. 1 on 22.09.1999 and PW-3, the officer of the Bank, was examined on 22.11.2000. It is thereafter that the appellant had filed the application under Section 243 Cr.P.C. praying to send the cheque, in question, for ascertaining the bona fide and genuineness of her signature appended thereon. The Trial Magistrate as well as the High Court have observed that Section 243 Cr.P.C. deals with summoning of defence witnesses and cause any document or thing to be produced through him. But in the present case, the accused has filed a petition without naming any person as witness or anything to be summoned which is to be sent for hand-writing expert for examination.

                     To appreciate the reasoning recorded by the High Court in its impugned order, it is useful to refer to the provisions of Section 243 of Cr.P.C., which reads as under:-

 ”243. Evidence for defence.27(1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record.

(2) If the accused, after he had entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing:

 Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice.

 (3) The Magistrate may, before summoning any witness on an application under subsection (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court.”

                   Section 243 (2) is clear that a Magistrate holding an inquiry under the Cr.P.C. in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a hand-writing expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert.

                   The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the hand-writing expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. ’Fair trial’ includes fair and proper opportunities allowed by law to prove her innocence.

                   Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and courts should be jealous in seeing that there is no breach of them. We have not been able to appreciate the view of the learned Judge of the High Court that the petitioner has filed application under Section 243 Cr.P.C. without naming any person as witness or anything to be summoned, which are to be sent for handwriting expert for examination. As noticed above, Section 243(2) Cr.P.C. refers to a stage when the prosecution closes its evidence after examining the witnesses and the accused has entered upon his defence. The appellant in this case requests for sending the cheque, in question, for the opinion of the hand-writing expert after the respondent has closed her evidence, the Magistrate should have granted such a request unless he thinks that the object of the appellant is vexation or delaying the criminal proceedings. In the circumstances, the order of the High Court impugned in this appeal upholding the order of the Magistrate is erroneous and not sustainable.

                     For all the foregoing reasons, we allow this appeal and set aside the order of the High Court dated 10.02.2004 passed in Criminal Revision Case No.335 of 2002 by which the order dated 15.11.2001 of the Judicial Magistrate made in Crl. M. P. No.341 of 2001 in C.C. No. 439 of 1998 dismissing the application of the appellant under Section 243 Cr.P.C. was affirmed. Accordingly, Crl. M. P. No.341 of 2001 in C.C. No.439 of 1998 on the file of the Judicial Magistrate, Tambaram, Chennai, shall stand allowed. The learned Magistrate shall take appropriate steps for obtaining the report of handwriting expert on the point whether the signature in the cheque is that of the accused and shall proceed with the trial of the case in accordance with law. Since the case is very old, further proceedings shall be taken with utmost expedition.

                  We make it clear that any observation made in this order shall not be construed as an expression of opinion on the merits of the case and the same shall be decided by the Magistrate on its own merit.

Abetment -- Necessary Requirements : Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person abets the doing of a thing when...

Head Notes:

Abetment- Necessary requirements stated :

Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person abets the doing of a thing when

1)      He instigate any person to do that thing or

2)      Engage with one or more other persons in conspiracy for the doing of that thing or

3)      Intentionally aids, by act or illegal omission, the doing of that thing.

These things are essential to complete abetment as crime.

REPORTABLE

Supreme Court of India (Criminal Jurisdiction)

CASE NO.: Appeal (crl.) 1464 of 2007

PETITIONER: Sohan Raj Sharma     Vs           RESPONDENT: State of Haryana

DATE OF JUDGMENT: 07/04/2008

BENCH: DR. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: Dr. ARIJIT PASAYAT, J.

1.       Challenge in this appeal is to the order passed by a learned Single Judge of the Punjab and Haryana High Court upholding appellant’s conviction for offence punishable under Section 306 of the Indian Penal Code, 1860 (in short ’IPC’) and sentence of 7 years RI.

2.       Background facts in a nutshell are as follows:

First Information Report lodged by Shri Rajiv Lochan Jain (PW4) was to the effect that Jyoti (hereinafter referred to as the ’deceased’) had written in her letter that her husband Sohan Raj Sharma the accused-appellant was torturing him for sex in many different ways, mostly pervert and tired of the same, she had poisoned her children, and had consumed poison herself. The FIR is further to the effect that appellant- Sohan Raj Sharma, because of the circumstances, had compelled Jyoti to consume poison. The first endorsement of the Investigating Officer ASI Rohtash Singh (PW10) on the statement Ex.PL of Shri Rajiv Lochan Jain (PW4) is Ex.PL/1 and it is to the effect that on his reaching B.K. Hospital Faridabad alongwith other police officials, Shri Rajiv Lochan Jain had handed him over one letter (Ex.PX ) of eight pages which was taken into possession of the police vide memo Ex.PM and from the statement of Shri Rajiv Lochan Jain and the letter produced by him, the allegations of commission of offences punishable under Section 306 IPC on the part of the Sohan Raj Sharma were made out. Statement Ex. PL/1, the statement Ex. PL alongwith endorsement Ex.PL/1 was sent to the police station for registration of the case on which formal FIR was recorded. During investigation, the incriminating evidence in the form of medical evidence regarding death of Jyoti, Pinki and Gudiya having been caused due to consumption of poison surfaced. Further the report regarding letter (Ex.PX) and other oral evidence of the witnesses regarding circumstances connected with the occurrence were collected. Accused Sohan Raj Sharma was put on trial for offence punishable u/s 306 IPC, he was challaned by the police and was committed to the court of Sessions for trial by

the Illaqa Magistrate.

3.       Prosecution examined 11 witnesses and exhibited several documents. Most vital one is purported suicide note Ex.PX. Appellant took the stand during examination under Section 313 of the Code of Criminal Procedure, 1973 (in for ’Code’) that she was never married to the deceased officially. It also alleged that she was a lesbian and in proof of this stand, one Anita Parmar was examined as DW1. The Trial Court found the contents of Ex.PX satisfied ingredients of Section 306 IPC. Accordingly, the appellant was found guilty and convicted and sentenced as aforesaid.

4.       In appeal before the High Court, the stand taken before the Trial Court that ingredients of Section 306 IPC have not been fulfilled was reiterated. Stand of the prosecution was that the ingredients have been established.

5.       The High Court found that Ex.PX was sufficient to show as to what was the reason for deceased committing suicide.

6.       Learned counsel for the appellant submitted that letter Ex.PX in no way establishes that the appellant had abeted the suicide. As a matter of fact, the fact that the deceased took the lives of two innocent children and then committed suicide without any doubt establishes that she was mentally unsound. The letter at the most describes the accused as a sexual pervert, but his behaviour, if any, cannot be taken to be an act of abeting the suicide. It is pointed out that in Ex Px she has clearly stated that she wanted to take appellants’ life.

7.       Learned counsel for the respondents-State on the other hand supported the judgment of the courts below. Section 306 IPC deals with abetment of suicide. The said provision 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."

8.     Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing it required before a person can be said to be abetting the commission of offence under Section 306 IPC.

9.      In State of West Bengal v. Orilal Jaiswal (AIR 1994 SC 1418) this Court has observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of  suicide should be found guilty.

10.   Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. ’Abetted’ in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence.

11.    In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased-wife with cruelty is not enough. [See Mahinder Singh v. State of M.P. (1995 AIR SCW 4570)].

12.   When the factual scenario is examined, it is clear that the accused has been described as a sexual pervert and that he had behaved like an animal and the deceased had tolerated the insulting manner in which he behaved. They were married in court. It was stated that the accused was impotent and he was trying to defame the deceased for having relationship with ladies.

13.   The most significant part of the letter the deceased had written is as follows:

"I desired to kill you along with us but no, if you have any sense of shame you will die as a result of the sequence of events. But it do not make any difference for shameless person because these abuses will sound as correct if you realize your capacity. You have not spent even eight days in a period of eight years in peace with me. You yourself are responsible for death of these children. Flowers had been prayed for from the deities of your family regarding whom you disclosed "they are not mine they are with me from my friend. (girl friend) on, you, the condemned the day children will be born as a result of cohabitation of a woman with woman, a woman will stop giving birth to man like you."

(Underlined for emphasis)

14.   Above being the factual scenario, it cannot be said that the ingredients of Section 306 IPC have been established. Therefore, the conviction as recorded cannot be maintained. The order of the High Court is set aside. The appellant be released forthwith unless required in connection with other case.

Right to Information Act, 2005— Sections 2(f) and 6—Scope of getting any information

An applicant can get any information which is already in existence and accessible to the public authority under law— An applicant is entitled to get copy of the opinions, advices, circulars, orders, etc.—He cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed, especially in matters pertaining to judicial decisions.

 A judge speaks through his judgments or orders passed by him. If any party feels aggrieved by the order/judgment passed by a judge, the remedy available to such a party is either to challenge the same by way of appeal or by revision or any other legally permissible mode. No litigant can be allowed to seek information as to why and for what reasons the judge had come to a particular decision or conclusion. A judge is not bound to explain later on for what reasons he had come to such a conclusion.

(Para-6)

 A judicial officer is entitled to get protection and the object of the same is not to protect malicious or corrupt judges, but to protect the public from the dangers to which the administration of justice would be exposed if the concerned judicial officers were subject to inquiry as to malice, or to litigation with those whom their decisions might offend. If anything is done contrary to this, it would certainly affect the independence of the judiciary. A judge should be free to make independent decisions.

(Para-7)

  

SUPREME COURT OF INDIA

K.G. Balakrishnan, C.J. & B.S. Chauhan, J.

Special Leave Petition (Civil) No. 34868 of 2009

Decided on : 04.01.2010

Khanapuram Gandaiah ... Appellants     Vs.         Administrative Officer and Ors. ...Respondent

 ORDER

 1. This special leave petition has been filed against the judgment and order dated 24.4.2009 passed in Writ Petition No. 28810 of 2008 by the High Court of Andhra Pradesh by which the writ petition against the order of dismissal of the petitioner’s application and successive appeals under the Right to Information Act, 2005 (hereinafter called the “RTI Act”) has been dismissed. In the said petition, the direction was sought by the Petitioner to the Respondent No. 1 to provide information as asked by him vide his application dated 15.11.2006 from the Respondent No. 4 – a Judicial Officer as for what reasons, the Respondent No. 4 had decided his Miscellaneous Appeal dishonestly.

2. The facts and circumstances giving rise to this case are, that the petitioner claimed to be in exclusive possession of the land in respect of which civil suit No. 854 of 2002 was filed before Additional Civil Judge, Ranga Reddy District praying for perpetual injunction by Dr. Mallikarjina Rao against the petitioner and another, from entering into the suit land. Application filed for interim relief in the said suit stood dismissed. Being aggrieved, the plaintiff therein preferred CMA No. 185 of 2002 and the same was also dismissed. Two other suits were filed in respect of the same property impleading the Petitioner also as the defendant. In one of the suits i.e. O.S. No. 875 of 2003, the Trial Court granted temporary injunction against the Petitioner. Being aggrieved, Petitioner preferred the CMA No. 67 of 2005, which was dismissed by the Appellate Court – Respondent No. 4 vide order dated 10.8.2006.

3. Petitioner filed an application dated 15.11.2006 under Section 6 of the RTI Act before the Administrative Officer-cum- Assistant State Public Information Officer (respondent No. 1) seeking information to the queries mentioned therein. The said application was rejected vide order dated 23.11.2006 and an appeal against the said order was also dismissed vide order dated 20.1.2007. Second Appeal against the said order was also dismissed by the Andhra Pradesh State Information Commission vide order dated 20.11.2007. The petitioner challenged the said order before the High Court, seeking a direction to the Respondent No. 1 to furnish the information as under what circumstances the Respondent No. 4 had passed the Judicial Order dismissing the appeal against the interim relief granted by the Trial Court. The Respondent No. 4 had been impleaded as respondent by name. The Writ Petition had been dismissed by the High Court on the grounds that the information sought by the petitioner cannot be asked for under the RTI Act. Thus, the application was not maintainable. More so, the judicial officers are protected by the Judicial Officers’ Protection Act, 1850 (hereinafter called the “Act 1850”). Hence, this petition.

4. Mr. V. Kanagaraj, learned Senior Counsel appearing for the petitioner has submitted that right to information is a fundamental right of every citizen. The RTI Act does not provide for any special protection to the Judges, thus petitioner has a right to know the reasons as to how the Respondent No. 4 has decided his appeal in a particular manner. Therefore, the application filed by the petitioner was maintainable. Rejection of the application by the Respondent No. 1 and Appellate authorities rendered the petitioner remediless. Petitioner vide application dated 15.11.2006 had asked as under what circumstances the Respondent No. 4 ignored the written arguments and additional written arguments, as the ignorance of the same tantamount to judicial dishonesty, the Respondent No. 4 omitted to examine the fabricated documents filed by the plaintiff; and for what reason the respondent No. 4 omitted to examine the documents filed by the petitioner. Similar information had been sought on other points.

5. At the outset, it must be noted that the petitioner has not challenged the order passed by the Respondent No. 4. Instead, he had filed the application under Section 6 of the RTI Act to know why and for what reasons Respondent No. 4 had come to a particular conclusion which was against the petitioner. The nature of the questions posed in the application was to the effect why and for what reason Respondent No. 4 omitted to examine certain documents and why he came to such a conclusion. Altogether, the petitioner had sought answers for about ten questions raised in his application and most of the questions were to the effect as to why Respondent No. 4 had ignored certain documents and why he had not taken note of certain arguments advanced by the petitioner’s counsel.

6. Under the RTI Act “information” is defined under Section 2(f) which provides:

information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.

 This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed, especially in matters pertaining to judicial decisions. A judge speaks through his judgments or orders passed by him. If any party feels aggrieved by the order/judgment passed by a judge, the remedy available to such a party is either to challenge the same by way of appeal or by revision or any other legally permissible mode. No litigant can be allowed to seek information as to why and for what reasons the judge had come to a particular decision or conclusion. A judge is not bound to explain later on for what reasons he had come to such a conclusion.

7. Moreover, in the instant case, the petitioner submitted his application under Section 6 of the RTI Act before the Administrative Officer-cum- Assistant State Public Information Officer seeking information in respect of the questions raised in his application. However, the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the “public authority” under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him. A judge cannot be expected to give reasons other than those that have been enumerated in the judgment or order. The application filed by the petitioner before the public authority is per se illegal and unwarranted. A judicial officer is entitled to get protection and the object of the same is not to protect malicious or corrupt judges, but to protect the public from the dangers to which the administration of justice would be exposed if the concerned judicial officers were subject to inquiry as to malice, or to litigation

with those whom their decisions might offend. If anything is done contrary to this, it would  certainly affect the independence of the judiciary. A judge should be free to make independent decisions.

8. As the petitioner has misused the provisions of the RTI Act, the High Court had rightly dismissed the writ petition.

9. In view of the above, the Special Leave Petition is dismissed accordingly.

Section 306—Abetment of suicide—Suicide—Section 107—- Meaning of Abetment of a thing

A. Indian Penal Code, 1860—Section 306—Abetment of suicide—Suicide—Meaning of The word suicide in itself is nowhere defined in the Indian Penal Code, however its meaning and import is well known and requires no explanation. ‘Sui’ means ‘self’ and ‘cide’ means ‘killing’, thus implying an act of self-killing. In short a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself.  (Para7)

 B. Indian Penal Code, 1860—Section 309—While suicide in itself is not an offence, considering that the successful offender is beyond the reach of law, attempt to suicide is an offence (Para-10)

 C. Indian Penal Code, 1860—Section 306—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 (Paras 20 and 21)

 SUPREME COURT OF INDIA

Dalveer Bhandari & A. K. Patnaik, JJ.

Criminal Appeal No. 1301 of 2002 Decided on : 05.01.2010

Gangula Mohan Reddy ….Appellants         Vs.      State of Andhra Pradesh ……Respondent

Case-laws relied on

1. Mahendra Singh & Another v. State of M.P. 1995 Supp. (3) SCC 731

2. Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618

3. State of West Bengal v. Orilal Jaiswal & Another. (1994) 1 SCC 73

4. Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) 2009 (11) SCALE 24

 JUDGMENT: Dalveer Bhandari, J. —

 1.      This appeal is directed against the judgment of the High Court of Judicature of Andhra Pradesh at Hyderabad in Criminal Appeal No. 1039 of 1996 dated 30.3.2002. The appellant was convicted by the Assistant Sessions Judge, Nagarkurnool under Section 306 of the Indian Penal Code (for short ‘the Code’) and sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000/- and in default to suffer simple imprisonment for six months.

2.       The appellant, aggrieved by the said judgment of the learned Assistant Sessions Judge filed an appeal before the High Court. The High Court upheld the judgment of the learned Assistant Sessions Judge, but while affirming the conviction of the appellant under Section 306 of the Code, the sentence of rigorous imprisonment of 10 years was reduced to 5 years. The appellant, aggrieved by the said judgment, approached this Court. This Court granted leave and released the appellant on bail.

3.       The brief facts which are relevant to dispose of this appeal are recapitulated as under:

 According to the case of the prosecution, the appellant, who is an agriculturist had harassed his agriculture labour (servant) deceased Ramulu by levelling the allegation that he had committed theft of some gold ornaments two days prior to his death. It was also alleged that the appellant had demanded Rs. 7,000/- from the deceased which was given in advance to him at the time when he was kept in employment.

4.       The prosecution further alleged that the deceased Ramulu could not bear the harassment meted out to him and he committed suicide by consuming pesticides. The prosecution in support of its case examined the father of the deceased as P.W.1 Urikonda Jammanna in which he had stated that his son Ramulu was a farm servant and used to work at the house of the appellant. He also stated that the appellant gave Rs. 7,000/- in advance to his son. PW1 also stated that about two years ago, the appellant had asked his son (Ramulu) that his wrist watch was missing from his house and harassed him on which his son had returned the watch to the appellant. PW1 in his statement stated that the appellant also levelled the allegation that the gold ear-rings were also missing from his house and the same were stolen by Ramulu. PW1 also stated that the appellant also demanded the advance of Rs. 7,000/- paid to Ramulu at the time of his employment. He further stated that Ramulu committed suicide because the appellant had levelled the allegation of theft of ornaments.

5.       The prosecution also examined Balamma, the mother of the deceased as P.W.2. She also corroborated the statement of PW1 and gave same version of the incident in her testimony. On the basis of the testimonies of P.W.1 and P.W.2, the Trial Court convicted the appellant under Section 306 of the Code and his conviction on appeal was confirmed by the High Court.

6.      Learned Counsel for the appellant submitted that the conviction of the appellant is totally unsustainable because no ingredients of offence under Section 306 of the Code can be made out in the facts and circumstances of this case. It would be profitable to set out Section 306 of the Code:

“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.”

7.      The word suicide in itself is nowhere defined in the Indian Penal Code, however its meaning and import is well known and requires no explanation. ‘Sui’ means ‘self’ and ‘cide’ means ‘killing’, thus implying an act of self-killing. In short a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself.

8.      Suicide by itself is not an offence under either English or Indian criminal law, though at one time it was a felony in England. In England, the former law was of the nature of being a deterrent to people as it provided penalties of two types:

 • Degradation of corpse of deceased by burying it on the highway with a stake through its chest.

• Forfeiture of property of deceased by the State.

9.      This penalty was later distilled down to merely not providing a full Christian burial, unless the deceased could be proved to be of unsound mind. However, currently there is no punishment for suicide after the enactment of the Suicide Act, 1961 which proclaims that the rule of law whereby it was a crime for a person to commit suicide has been abrogated.

10.   In our country, while suicide in itself is not an offence, considering that the successful offender is beyond the reach of law, attempt to suicide is an offence under Section 309 of IPC.

11.   ‘Abetment’ has been defined under Section 107 of the Code. We deem it appropriate to reproduce Section 107, 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 places 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.

 12.   Explanation 2 which has been inserted along with Section 107 reads as under:

 Explanation 2 – Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.

 13.  Learned Counsel for the appellant has placed reliance on a judgment of this Court in Mahendra Singh and Anr. v.State of M.P. 1995 Supp. (3) SCC 731. In the case of Mahendra Singh, the allegations levelled are as under:

 My mother-in-law and husband and sister-in-law (husband’s elder brother’s wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning.

14.  The court on aforementioned allegations came to a definite conclusion that by no stretch the ingredients of abetment are attracted on the statement of the deceased. According to the appellant, the conviction of the appellant under Section 306 IPC merely on the basis of aforementioned allegation of harassment of the deceased is unsustainable in law.

15.   Learned Counsel also placed reliance on another judgment of this Court inRamesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618. A three-Judge bench of this Court had an occasion to deal with a case of a similar nature. In a dispute between the husband and wife, the appellant husband uttered “you are free to do whatever you wish and go wherever you like”. Thereafter, the wife of the appellant Ramesh Kumar committed suicide. The Court in paragraph 20 has examined different shades of the meaning of “instigation’. Para 20 reads as under:

“20. Instigation is to goad, urge forward, provoke, incite or encourage to do “an act”. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect. or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. the present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.”

 16.   In State of West Bengal v. Orilal Jaiswal and Anr. (1994) 1 SCC 73, this Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trail for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.

17.  The Court in the instant case came to the conclusion that there is no evidence and material available on record wherefrom an inference of the accused-appellant having abetted commission of suicide by Seema may necessarily be drawn.

18.  In the instant case, the deceased was undoubtedly hyper sensitive 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.

19.   This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) 2009 (11) SCALE 24 had an occasion to deal with this aspect of abetment. The court dealt with the dictionary meaning of the word “instigation” and “goading”. The court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person’s suicidability pattern is different from the others. Each person has his own idea of self esteem and self respect. Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.

20.  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.

21.  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 a 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 this act must have been intended to push the deceased into such a position that he committed suicide.

22.   In the light of the provisions of law and the settled legal positions crystallized by a series of judgments of this Court, the conviction of the appellant cannot be sustained. Consequently, the appeal filed by the appellant is allowed and disposed of.

23.  During the pendency of the appeal, the appellant was released on bail. He is not required to surrender. His bail bond is cancelled and he is set at liberty forthwith, if not required in any other case.

24.  Consequently, the appeal filed by the appellant is allowed.