Dipendra Mishra Vs. State of Rajasthan - Court Judgment

Mohammad Rafiq, J.

1. Heard learned Counsel for the petitioner and the learned Public Prosecutor.

2. This revision petition has been filed by complainant against the judgment dated 28.11.2007, whereby, the Additional Sessions Judge (Fast Track) No. 1, Jaipur District, Jaipur acquitted the accused respondent from the charges for offence under Section 306 IPC.

3. Shri Pradeep Choudhary, learned Counsel for the petitioner has argued that the learned trial Court has not correctly appreciated the evidence of the prosecution witnesses which fully proved the charges of abatement to commit suicide against the respondents. It was argued that marriage of the petitioner's sister, who was daughter of the deceased Banwari Lal Mishra, was solemnized with the accused-respondent on 29.1.2005. The accused- respondent served the notice for divorce on his sister for divorce on 19.9.2006. Sister of the petitioner lodged first Information Report against the accused-respondent for the offence of demand of dowry punishable under Section 498A IPC on 24.9.2006. The respondent went to the shop where the petitioner's father was serving on 27.9.2006 and threatened him with dire consequences. Learned Counsel argued that allegation made by the petitioner-informant in the FIR was that the accused-respondent threatened Banwarilal Mishra of dire consequences, if he did not make payment of the dowry of Rs. 1 lakh. Learned Counsel also referred' to the statements of the PW 5 Amarchand, brother-in-law of the deceased, PW. 9 Deep-shikha, daughter of the deceased and PW. 10 Mangilal Gehlot. Learned Counsel argued that from all these statements, it is proved that the accused-respondent had come to the shop where deceased was working on 27.9.2006 and asked him to get the paper for consent divorce signed or withdraw the criminal case. It was argued that the accused-respondent in fact, stated that if deceased Banwarilal was not capable of arranging even a sum of Rs. 1 lakh, he does not deserve to live. The learned Counsel further submitted that the kind of threat that was extended to Banwarilal Mishra and proximity of time of such threat with the time of suicide committed by him, sufficiently prove the abatement made by the accused-respondent for committing suicide.

4. I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the petitioner and perused the judgment impugned as also the material available on record.

5. It is evident from the various statements which are available on record that the daughter of the deceased. PW.9 Deepshikha was having matrimonial dispute with the accused respondent. The accused-respondent had served a notice for divorce upon her on 19.9.2006, who then filed FIR against the accused-respondent on 24.9.2006 for offence under Section 498 A IPC. All the witnesses whose statements have been relied upon by the learned Counsel for the petitioner and the petitioner himself as PW. 1, have stated that the deceased informed them that the accused-respondent had come to the shop where he was working on 27.9.2006 and threatened him with dire consequences if he did not withdraw the criminal case or did not make payment of Rs. 1 lakh. But the kind of words that are attributed to the accused respondent by the petitioner while threatening the deceased are not borne out from the aforesaid statements except that PW. 9 Deepshikha, in her examination in chief has stated that the deceased told her that when accused went to shop, he asked that if he did not have a sum of Rs. 1 lakh to pay to accused- respondent he deserves to die. Question which arises for consideration of this Court is whether the demand of money and on that basis, threat extended by accused-respondent to deceased Banwarilal Mishra two days before the fateful day on which he committed suicide, if accepted as correct, can by itself prove beyond reasonable doubt offence of abatement to commit suicide punishable under Section 306 IPC.

6. In order to attract ingredients of offence under Section 306 IPC, the intention of the accused to ad or to instigate the deceased to commit suicide are necessarily to be proved. While suicide in the present has been proved, intention on the part of the accused-respondent on available evidence to abate deceased to commit such suicide cannot be taken as proved beyond reasonable doubt. Section 107 of the IPC defines what is abatement 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 place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly- Intnetionally aids, by any act or illegal omission, the doing of that thing. Explanation 1. - A person who, by willful misrepresentation, or by willful 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 authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, willfully 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 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.

7. Section 108 of the IPC defines the abater as under:

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.

Illustration

(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.

Illustration

(a) A, with a guilty intention, abets a child or a 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, instigates B, a child under seven years of age, to do an act which causes Z's death. B, in consequence of the abetment, does not 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 unsoundness of his mind, being incapable of knowing the nature of the act, or that he is doing what is wring 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 as offence.

Illustration

A. instigates B to instigate C to murder Z. B accordingly instigates G to murder Z, and C commits that 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 poison, 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 Z has been murdered. C has therefore committed the offence defined in this section and is liable to the punishment for murder.

A. Abetment in India of offences outside India.- A person abets an offence within the meaning of this Code who, in India, abets the commission of any act without and beyond India which would constitute an offence if committed in India.

Illustration

A, in India, instigates B, a foreigner in Goa, to commit a murder in Goa. A is guilty of abetting murder.

8. Section 107 (supra) defines abetment of an offence. Abetment is a separate and distinct offence described as such in the penal Code. A person abets the doing of a thing when (1) he instigates any person to do that thing; or (2) instigates that one or more other person in any conspiracy for doing that thing; or (3) intentionally aids, by act or illegal commission by doing that thing. Any of these three ingredients are essential to complete the abetment as a crime. The word 'instigate' in law means 'to promote', 'to urge on' or 'to bring about' any persuasion to do any thing. Abetment may be by instigation, conspiracy or intentional aid as provided in one of three clauses of Section 107.

9. It would be thus evident from the scheme of the penal policy of the legislature reflected in the aforesaid provisions that a person who abates the commission of an offence or of an act which would be an offence if committed by a person capable by law of committing of an offence with the same intention only as that of the ablator, such person, if the alleged abatement to commit offence happens to be suicide, according to Section 306 of the IPC, shall be punished with imprisonment for a term which shall extend to ten years and shall also be liable to fine. Though ordinarily the commission of offence as well as the abatement to commit such offence are both made punishable in the law. This is so because the liability of an abator of the crime is co- extensive with that of the principle of offender. Suicide however, contemplates a situation where the person committing suicide is no longer available for being punished and therefore, not amenable to the jurisdiction of the Court. Like any other offence, the element of intention or knowledge or at least one of them, on the part of the person alleged to have committed the offence of abatement, is required, to be proved. In the facts of the present case, even if the circumstances, as are alleged on the basis of evidence, are assumed to be proved and taken cumulatively, they do not indicate any such mens rea on the part of the accused-respondent.

10. The Supreme Court in Randhir Singh and Anr. v. State of Punjab (2004) 13 SCC 129 While considering the case which arose out of an offence under Section 306 observed as to what is meant by abetment as under:

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 is required before a person can be said to be abetting the commission of offence under Section 306 IPC.

11. The Supreme Court in Sanju alias Sanjay Singh Sengar v. State of M.P. : 2002CriLJ2796 was dealing with a case where the appellant was charged with having abetted commission of suicide by his brother-in-law. Story put forth by prosecution was that there were strained relations between the deceased and his wife who at the material time was staying with the appellant. The deceased went to the house of appellant to bring back his wife on 25.7.1998 and there was a quarrel between the deceased and the appellant. The deceased came back alone. The deceased told his brothers and other acquaintances that the appellant had threatened and abused him by using filthy words. On 27.7.1998, the deceased was found dead leaving a suicide note blaming the appellant for his suicide. In those facts, the Supreme Court in para 14 of the judgment observed as under.

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 under Section 161 CrPC before the investigation 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 under Section 306 IPC. 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.

12. In Mst. Jeet Kaur v. State of Rajasthan 1978 WLN (UC) 453, the accused, who was father of the deceased, retorted that if Sahab Kaur was the daughter of her father, she might commit suicide by burning herself. The accused further told Sahab Kaur that she might take the match box and kerosene oil which was available in the kitchen. After about 8 or 10 minutes, 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 are that Sahab Kaur would actually commit suicide on mere retort.

13. Law relating to abetment was dealt with in somewhat greater details by this Court 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 some 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 work, '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 behavioral life-style and there are several causes for such a behaviour. There has to be a psychological 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.

14. Observations of the Delhi High Court in Brijlal v. Stale (Delhi Admn.) (1984) 2 Crimes 987 in this connection are relevant to quote:

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 time of its commission, or if he assists or encourage 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 indictable 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 notwithstanding that person incited intends to inform on the inciter; but there can be no incitement unless one person seeks to persuade or encourage another.

15. The Delhi High Court in the above referred to judgment further observed as under:

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 illtreatment 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 work or action with intent to instigate principal or principals and that encouragement does not, of necessity, amount to aiding or 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.

16. Notwithstanding the fact that the accused-respondent threatened the deceased two days before the date on which he actually committed suicide, the ingredients of abatement which may have made him to commit suicide, are not available on record. The evidence that has come on record simply suggests that the deceased Banwarilal Mishra was not having a healthy mental state. This is admitted by his brother-in-law PW-5 Amarchand. In fact, PW. 7 V.K. Devdas Menon, a neighbor of the deceased while denying the suggestion that the deceased Banwarilal Mishra was a mad person, clearly stated that he was a patient of depression and he was undergoing severe state of depression for last 5-6 months and this got aggravated when his daughter received notice for divorce. Some persons may withstand enormous amount of pressure brought upon them by circumstances, while some other may over react to the slightest of the difficulties in life. The case of the deceased Banwarilal Mishra would obviously fall in the later category of the cases. Unfortunate though his death was, but on that basis the case cannot be held to fall within the category of abatement to suicide.

17 In my considered view, therefore, the learned trial Court has not erred in acquitting the accused respondent. Accordingly, the criminal revision petition stands dismissed.