ORDER
R.S. Verma, J.
1. Manish Kumar Sharma. who is lacing trial under Section 306, IPC, in the Court of learned Additional Sessions Judge, No. 1. Jaipur City. Jaipur, has filed this revision petition against the order of the learned trial Court dated 13-10- 1993. whereby a charge under Section 306, IPC, has been framed against the accused-petitioner.
2. Briefly staled, the case of the prosecution is thai deceased, Smt. Kusum Devi, aged about 32 years, was resident of Gangaur-ka-rasta in the city of Jaipur. She was married to first-informant, Ram Kishore, some 20 years back. Srnt. Kusum Devi had u daughter Seema and two sons - Rakesh and Anil. Ram Kishore had two brothers and out of them Ram Charan and his wife - Santosh were residing with Ram Kishore. Thus, it was a large family. Ram Kishore was serving as a Class-IV employee in the Tourism Department. His son Rakesh was studying in VIth Class, while the other son Anil Sharma was employed in Rajasthan Shilp Gram Udyog.
3. It appears that the family was afflicted by one of the greatest sins in the society, namely poverty. There were only two bread earners in the family. namely Ram Kishore (the husband of the deceased) and Anil (son).
4. Seema was of marriagable age and had been married away in December, 1992. This must have added to the financial burden of the family.
5. Accused-petitioner Manish Kumar alias Mukesh was residing in the neighbourhood of the family. He is said to be a young boy of 24 years of age. It appears that the petitioner was a frequent visitor to the house of Ram Kishore. Particularly, he would visit the house of Ram Kishore in absence of Ram Kishore and Anil. He took Smt. Kusum Devi out to Ram Niwas Garden and certain hotels and it appears that Kusum Devi and the accused-petitioner were on terms of great familiarity. Kusum Devi had even borrowed a sum of Rs. 200/- from the accused- petitioner.
6. It appears that Ram Kishore and Anil Sharma did not like the visits of the petitioner to their house. There is also an allegation that the petitioner had committed a theft in respect of 'pazeb' belonging to Seema.
7. It is also in evidence that there were frequent quarrels between the petitioner and Kusum Devi and Kusum Devi started living a life full of tension. Persistent demands made by accused-petitioner in respect of money lent by him accentuated the tension of Smt. Kusum Devi.
8. The case of the prosecution is that Smt. Kusum Devi, before her alleged suicide, purchased tablets of Salphos, which are used for preserving food grains.
9. The prosecution story further is that on the evening of 22-5-1993 Kusum Devi and Anil were taking their meals on the roof of the house when the accused-petitioner came to the roof of the house.
This house was adjoining to the house of Smt. Kusum Devi. He remanded back his money and uttered the following words:-
^^jaMh rw ejrh D;ksa ugha gS A esjs lkFk py ughrks rq>s tku ls ekj nqaxk A**
The prosecution ;story is that Smt. Kusum Devi immediately went down stairs and consumed some tablets of salphos. Soon afterwards she started vomitting. She was taken to S. M. S. Hositpal, Jaipur, by her husband Ram Kishore. She was given some first aid and she suffered further vomits. She was eventually shifted to 3 De Ward of the S. M. S. Hospital where she breathed her last. A post-mortem examination of Smt: Kusum Devi was conducted on 23-5-1993 at 11.35 a.m. The Doctor conducting the autopsy could not ascertain the cause of death and preserved and sealed the viscera of the deceased for chemical examination.
10. The prosecution story further is that a report of this incident was lodged by Ram Kishore on 27- 5-1993 whereupon a case was registered against the accused-petitioner for offence under Section 306, IPC. Due investigation was made and eventually the accused-petitioner was challaned before the Magistrate having jurisdiction, who committed him to the Court of Session at Jaipur for standing trial. The learned Sessions Judge, Jaipur City, Jaipur, made over the accused for trial to the learned Additional Sessions Judge, No. 1, Jaipur City, Jaipur, who after hearing both the parties, passed the impugned order and framed charge under Section 306, IPC, against the accused-petitioner.
11. The contention of the learned counsel for the petitioner is that the entire prosecution story, even if, taken to be true, does not disclose any offence under Section 306 of the IPC against the accused-petitioner and the learned trial Court fell in serious error in framing charge under Section 306 of the IPC against the accused-petitioner. It is submitted that it has been vaguely alleged that the accused-petitioner was trying to blackmail Smt. Kusum Devi but it has not been spelled out in the prosecution evidence as to how and in what manner the accused-petitioner was trying to blackmail Smt. Kusum Devi. Police did not find any case against the petitioner so far as alleged blackmailing was concerned and the learned trial Court also did not frame any charge against the accused-petitioner for alleged blackmailing. It has been vaguely alleged that the accused-petitioner used to harass Smt. Kusum Devi but again the prosecution has not alleged or even faintly pointed out as to in what manner the accused-petitioner used to harass Smi. Kusum Devi. An allegation was made that the accused-petitioner had committed theft in respect of 'pajeb' of the daughter of the deceased but there is nothing to show that any charge was levelled against the accused-petitioner on this count. It is urged that asking for repayment of a loan does not constitute any offence whatsoever and if the accused-petitioner uttered some words in anger, when not repaid the money, it cannot be said that he had the necessary mens rea and he in any way abetted the alleged act of suicide committed by Smt. Kusum Devi. May be, that Kusum Devi was under great mental stress because she had not been able to repay the amount taken on loan from the accused-petitioner and hence committed suicide, but on this ground alone it cannot be said that the accused-petitioner had abeted the act of suicide committed by Smt. Kusum Devi. It is, therefore, urged that the impugned order may be set aside and the charge framed against the accused-petitioner should be quashed and the entire proceedings in respect of the charge should also be quashed.
12. Learned Public Prosecutor vehemently opposes this revision petition and she submits that it was the harassment caused by the accused-petitioner which persuaded Smt. Kusum Devi to purchase tablets of salphos and then to consume them. The persistent demands made by the accused-petitioner for return of his money must have put a great mental stress upon Smt. Kusum Devi and the incident which took place on the night of 22-5-1993 was the last straw on the camel's back which led her to commit suicide and, therefore, accused-petitioner should be prima facie held liable and should be tried for the charge under Section 306 of the IPC.
13. I have considered the rival contentions and have gone through the material on record. As already stated, it appears that Smt. Kusum Devi and accused-petitioner were neighbours. It also appears that both of them were on terms of familiarity to the extent that Smt. Kusum Devi used to go to Ram Niwas Garden and certain hotels with accused-petitioner Manish Sharma. It is in evidence that accused-petitioner Manish Sharma had advanced her a loan of Rs. 200/- and was persistently asking for return of the money.
14. The prosecution has not made it clear in what way the accused-petitioner was harassing or ill-treating or blackmailing Smt. Kusum Devi, though, this has come in evidence that accused-petitioner used to visit Smt. Kusum Devi at her home during the period Kusum Devi's husband and adult son used to be out from very house in connection with their vocations. There is prima facie evidence to show that on the fateful evening accused-petitioner went on the roof of the house tenanted by him and asked Smt. Kusum Devi to return the amount and also abused her and uttered the words reproduced, above.
15. The question is Whether it can be said that by uttering the aforesaid words accused-petitioner committed an offence under Section 306, IPC. In Nathulal v. State of Madhya Pradesh, : 1966CriLJ71 , stated the law of mens rea as follows:- (Para 4)
'The law on the subject is fairly well settled. It has come under judicial scrutiny of this Court on many occasions. It does not call for a detailed discussion. It is enough to restate the principles. Mens rea is an essential ingredient of a criminal offence. Doubtless a statute may exclude the element of mens rea, but it is sound rule of construction adopted in England and also accepted in India to construe a statutory provision creating an offence in conformity with the common law rather than against it unless the statute expresslly or by necessary implication excluded mens rea.'
Section 306 of the IPC 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.'
A bare reading of this Section goes to show that it makes punishable an abetment of suicide. The very expression 'abetment' would postulate presence of guilty mind or guilty intention, which is known as 'mens rea' in the eye of law.
16. Abetment of offences has been dealt with under Chapter V of the IPC. Section 107 of the IPC defines abetment of a thing. This section reads 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 aids, by any act or illegal omission, the doing of that thing.
Explanation 1. - A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose. Voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
ILLUSTRATION
A, a public officer, is authorised by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z. wilfully represents to A that C is Z., and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.
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 facilitates the commission thereof, is said to aid the doing of that Act.'
Section 108 of the IPC defines an abettor. This section reads as follows :-
'108. Abettor. - A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.
Explanation 1. - The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that Act.
Explanation 2. - To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused.
ILLUSTRATIONS.
(a) A instigates B to murder C. B refuses to do so. A is guilty of abetting B to commit murder.
(b) A instigates B to murder D. B in pursuance of the instigation stabs D. D recovers from the wound. A is guilty of instigating B to commit murder.
Explanation 3. :- It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge.
ILLUSTRATIONS.
(a) A, with a guilty intention, abets a child or lunatic to commit an act which would be an offence. If committed by a person capable by law of committing an offence, and having the same intention as A. Here A, whether the act be committed or not, is guilty of abetting an offence.
(b) A, with the intention of murdering Z, insitgates B, a child under seven years of age, to do an act which causes Z's death. B, in consequence of the abetment, does the act in the absence of A and thereby causes Z's death. Here, though B was not capable by law of committing an offence, A is liable to be punished in the same manner as if B had been capable by law of Committing an offence, and had committed murder, and he is therefore subject to the punishment of death.
(c) A instigates B to set fire to a dwelling-house, B, in consequence of. the un-soundenss of his mind, being incapable of knowing the nature of the bet, or that he is doing what is Wrong or contrary to law. Sets fire to the house in consequence of A's instigation. B has committed no Offence, but A is guilty of abetting the offence of setting fire to a dwelling house, and is liable to the punishment provided for that offence.
(d) A, intending to cause a theft to be committed, instigates B to take property belonging to Z out of Z's possession. A induces B to believe that the property belongs to A. B takes the property out of Z's possession, in good faith, believing it to be A's property. B, acting under this misconception, does not take dishonestly, and therefore, does not commit theft. But A is guilty of abetting theft, and is liable to the same punishment as if B had committed theft.
Explanation 4. - The abetment of an offence being an offence, the abetment of such an abetment is also an offence.
ILLUSTRATION
A instigates B to instigate C to murder Z. B accordingly instigates C to murder Z and C commits offence in consequence of B's instigation. B is liable to be punished for his offence with the punishment for murder; and, as A instigated B to commit the offence, A is also liable to the same punishment.
Explanation 5. - It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed.
ILLUSTRATION.
A concerts with B a plan for poisoning Z. It is agreed that A shall administer the poison. B then explains the plan to C mentioning that a third person is to administer the poison, but without mentioning A's name. C agrees to procure the poisons, and procures and delivers it to B for the purpose of its being used in the manner explained. A administers the poison; Z dies in consequence. Here, though A and C have not conspired together, yet C has been engaged in the conspiracy in pursuance of which 2 has been murdered. C has therefore committed the offence defined in this section and is liable to the punishment for murder.'
Section 108 A deals with abetment in India of offences outside India. Section 109, IPC, deals with punishment of abetment if the act abetted is committed in consequence of abetment and where no express provision is made for its punishment. Section 110, IPC, deals with punishment of abetment if person abetted does not act with a different intention from that of abettor. Section 111, IPC, deals with liability of abettor when one act abetted is different from the act done. Section 112, IPC, deals with the punishment when abettor is liable for the act abetted and for the act done. Section 113, IPC, deals with liability of abettor for an effect caused by the act abetted, that is different from that intended by the abettor. Section 114, IPC, deals with a situation where abettor is present when offence is committed, Section 115, IPC, deals with abetment of offence punishable with death or imprisonment for life. Section 16, IPC, deals with abetment of offence punishable with imprisonment if offence be not committed and also deals with a situation where abettor or person abetted be a public servant whose duty is to prevent offence. Section 117, IPC, deals with abetting commission of offence by the public or by more than ten persons. Section 118, IPC, deals with concealing design to commit offence punishable with death or imprisonment for life. Section 119, IPC, deals with public servant concealing design to commit offence which it is the duty to prevent. Section 120, IPC deals with concealing design to commit offence punishable with imprisonment.
16. (A) The aforesaid scheme goes to show that abetment of an offence has been made punishable under different given situations. The liability of an abettor of a crime is co-extensive with the liability of the principal offender. 'Suicide' contemplates a situation where the person committing suicide is no longer amenable to the jurisdiction of the Court. For such an offence, abettor has been made punishable under Section 306, IPC.
17. As already stated, abetment would imply an intentional abetment. There can be no abetment if the mens rea is missing.
18. In the present case, it is extremely doubtful if all the circumstances taken cumulatively could indicate any mens rea on the part of the accused-petitioner. It is an admitted position that Smt. Kusum Devi was not in a position to repay the amount borrowed from the accused-petitioner and he had been demanding this money very often. Hence, if he made the casual remarks attributed to him as reproduced earlier, it cannot be said that he wanted or. intended Smt. Kusum Devi to commit suicide. There is no evidence to suggest or indicate that the petitioner knew or had reason to believe that Smt. Kusum Devi had purchased tablets of salphos and would contemplate or commit suicide.
19. Demanding a sum of money given on loan is not an offence under any provision of the criminal law. Taking out a willing and mature lady to Ram Niwas Garden or certain hotels, is also no offence. Frequent visits by the accused-petitioner to the house of Smt. Kusum Devi was also no offence because it is not said that he was visiting the house against the wishes of Smt. Kusum Devi.
20. As already stated, no charge regarding theft of 'pajeb' has been made out against the accused-petitioner. The alleged harassment of Smt. Kusum Devi by accused-petitioner has been vaguely alleged and no specific particulars have been given, likewise regarding alleged blackmail, no specific-particulars or details have been given. Simply alleging that the accused-petitioner was blackmailing Smt. Kusuir. Devi would not be sufficient.
21. Now I may refer to the rulings cited at the bar dealing with some situations. In Gautram Raj Mehta v. State of Rajasthan with Ram Babu Sharma v. State of Rajasthan, 1984 Cri LR (Rajasthan) 646 one Mohan committed theft in respect of certain valuable belonging to one, Shri Bhagwan Singh Nathwat. Ram Babu was maternal brother and he had made efforts for getting Mohan employed. The conduct of Mohan shocked Ram Babu. It is alleged that Ram Babu and Gautam Raj took Mohan to his village-Kawad and narrated the entire facts to the father of Mohan. It appears that following words were uttered by the accused-petitioners-
^^rw esjk fj'rsnkj gS A rwus gekjh cnukehdjoknh blls rks vPNk gksrk rw ej tkrk A
It appears that Mohan jumped into well and eventually died. In these circumstances, an FIR was lodged against two petitioners. Learned trial Court after hearing arguments framed charges for offence under Section 306, IPC against both the petitioners, who approached this Court by way of filing a revision petition. It was held that the act of committing suicide by Mohan could not be considered as having any proximity or as a consequence or result of uttering any words by the accused-petitioners.
In Mst. Jeet Kaur v. State of Rajasthan, 1978 WLN (UC) 453, the accused retorted that if Sahab Kaur was the daughter of her father, she might commit suicide by burining herself. The accused further told Sahab Kaur that she might take the match box and kerosene oil was available in the kitchen. After about 8 or 10 minutes the cries of Sahab Kaur were heard and it was found that she had tried to burn herself. It was held that there were no reasons to believe that the accused gave a retort to Sahab Kaur that she might commit suicide. Accused had no reason to believe and did not have the necessary mens rea that Sahab Kaur would commit suicide on mere retort.
The law pertinent to abetmet was dealt with in some details in Bhanwar Lal v. State of Rajasthan, 1988 Raj Cri C 546. In that case, Sections 306, 107 & 108, IPC, were analysed and considered, and following observations were made:-
'According to the aforesaid definition, there should be either instigation or sorne conspiracy or intentionally aiding or illegal omission.'To instigate' means to urge on, incite; to foment which in other words, means a positive action on the part of the instigator, as unless some thoughts are modified or put into action, there cannot be instigation. It requires stimulation as well as rousing while in intentional aiding it can be both by illegal omission as well as doing of that thing and that is why the legislature separately defines the word, 'abettor' wherein explanations 2 and 3 are relevant. Thus, the case has to be brought within the purview of one or the other explanation of Section 107 or 108 IPC. The act of suicide is one of the modes of death and out of the four modes of death viz., 'natural, accidental, suicidal and homicidal', the last mode may be categorised as 'violent deaths', and in suicide the violence is used on the self and it is intentionally taking of one's life. The Court, while dealing with the cases of suicide., has to consider that this mode of death is behavioural life-style and there are several causes for such a behaviour. There has to be a psycological departure or aggressive impulse or endangered by frustration or environmental condition and most of the cases analysed by psychoanalyst the persons who commit suicide, they are bound to have a history of psychiatric disturbances particularly, depression and schizophrenia. Therefore, the evidence has to be scanned thoroughly to arrive at the conclusion whether the cause of suicide was sociological psychological, biochemical or environmental. Unless that is done, it would be difficult to arrive at an inference about the cause of self-destruction.'
The learned Judge quoted with approval the observations made by H. L. Anand, J. of Delhi High Court in Brijlal v. State (Delhi Admn.), (1984) 2 Crimes 987.
''Halsbury notices some of the recent English decisions in the matter of classification of offence and complicity in crime. Thus, a person who assists the perpetrator at the ti me of its commission, or if he assists or encourages the perpetrator before its commission, was held liable'. According to R. V. Gregory - any person who aids counsels or procures The commission of an offence, whether an offence at common law or by statute, and whether indicatable or summary, is liable to be tried and punished as a principal offender. Mere presence at the commission of the crime is not enough to create criminal liability, nor is it enough that a person is present with a secret intention to assist the principal should assistance be required. Some encouragement or assistance must have been given to the principal either before or at the time of the commission of the crime with the intention of furthering its commission, Presence without more may, however, afford some evidence of aid and encouragement. It is an indicatable offence at common law for a person to incite or solicit another to commit an offence. For an incitement to be complete, there must be some form of actual communication with a person whom it is intended to incite, where, however, a communication is sent with a view to incite, but does not reach the intended recipient the sender may be guilty of an attempt to incite, Incitement is complete though the mind of the person incited is unaffected and not with standing that person incited intends to inform on the inciter; but there can be no incitement unless one person seeks to persuade or encourage another.'
22. After analysing the aforesaid Sections learned Judge finally observed :-
'From a careful study of the aforesaid cases, analogical deduction comes to that moral aspect of the case has to be separated from the legal aspect and that every ill-treatment including humiliation etc. would not fall within the purview of instigation or illegal omission again because every omission is not illegal. Besides this, to bring the case within the ambit of Section 107. IPC. some active steps must be taken by word or action with intent to instigate principal or principals and that encouragement does not, of necessity, amount to aiding of abetting. It may be intentional or unintentional. I may make it clear that while drawing the aforesaid deduction, I have kept in my mind that any thing being considered in this case according to law which existed on the day of the commission of the crime and would not govern the cases which come after incorporation of Sections 113A and 113B of the Indian Evidence Act.
I have kept the consideration of these sections out of consideration because they were not on statute on the day, the offence was committed in this case. Thus, the evidence will have to be scrutinized within the parameters mentioned above.'
(Emphasis mine)
23. In the present case, I find that the totality of the evidence, whether read collectively or dis-jointly is not enough to bring out a case of instigating, aiding or illegal omission against the accused-petitioner with the requisite criminal intent or mens rea.
24. In the present case, accused-petitioner could not have even remotely thought that Smt. Kusum Devi would commit suicide or would put an end to her life. It appears that Smt. Kusum was under great mental strain because, she was being criticized for allowing accused-petitioner to visit her frequently; she was being critcized for moving with the accused-petitioner and eventually she had borrowed money from the accused-petitioner but could not repay. Whatever accused-petitioner is said to have uttered to Smt. Kusum Devi was at best an out-burst of an angry mind. It was not calculated or designed to instigate Smt. Kusum Devi to put an end to her life by committing suicide.
24A. I, therefore, find that the learned trial Judge was wrong in holding that a prima facie case under Section 306, IPC was made out against the accused-petitioner. He was wrong in framing the chargefor aforesaid offence against the accused-petitioner.
25. No other point was urged before me.
26. In that of what I have stated above, I accept this revision petition, set aside the impugned order of the learned Additional Sessions Judge, No. 1, Jaipur City, Jaipur, and quash the charge framed against the accused-petitioner for offence under Section 306, IPC. Further proceedings in pursuance of the challan filed by the police in this case are quashed. The bonds of accused-petitioners shall stand cancelled. He need not appear before the trial Court.
The revision petition is disposed of accordingly.