Nandkishore Paralkar & Anr. vs The State Of Maharashtra & Anr.

The present application under Section 482 of the CrPC is filed for quashing of FIR in connection with Crime No.1185/2021 registered under Sections 498-A, 306, and 509 read with 34 of the IPC.

The crime is registered in view of order passed by this Court in Criminal Writ Petition No.520/2020 on 18.6.2021 at Washim City Police Station. As per the allegations levelled in the FIR by non-applicant No.2, due to the ill-treatment to his daughter, she has committed suicide on 3.5.2020. Recital of the FIR shows that the marriage of his daughter was performed prior to 22 years with applicant No.1. From the said wedlock, the applicant No.1 and the deceased were having two children. As per the allegations, initially, for some years, the deceased was treated well by the applicant No.1. Applicant No.2 is brother-in-law of the deceased who was running the shop and used to mentally harass the deceased with ill-intentions. It is also alleged that whenever she made a complaint about applicant No.2 to the applicant No.1, the applicant No.1 used to ignore the same and harass her physically as well as mentally. The applicant No.1 was also having illicit relations with a lady. As the deceased was fed up with the act of the applicant No.1, she committed suicide by hanging herself. On the basis of the said report, the police registered the crime against the applicants.

Heard learned counsel Shri A.P.Tathod for the applicants and learned Additional Public Prosecutor Shri M.J.Khan for the State.

Learned counsel for the applicants submitted that as far as the allegations are concerned, the same do not attract the offence “abetment” described under Section 107 of the IPC. There is no proximity between two acts. He submitted that even if the allegations are taken as it is at its face value, it is wholly to the extent that the deceased was ill-treated by the applicants and, therefore, she has committed suicide. He submitted that even accepting the allegations as it is, there was no positive act or action on the part of the applicants which drove the deceased to commit suicide. There is no close proximity as to the act of suicide. Thus, even accepting the case as it is, there is no mens rea on the part of the applicants appearing on the face of the record. Therefore, the charge under Section 107 of the IPC cannot be sustained.

^5. Per contra, learned Additional Public Prosecutor for the State submitted that at the time of quashing of the FIR, what is required to be seen is, whether there was a requisite mens rea and obviously, it is a matter of evidence. A strong suspicion is also sufficient to proceed against the accused. He submitted that overall material shows that the applicants created certain circumstances which compelled the deceased to commit suicide. At this stage, the court is required to examine the material and the documents on record with a view to find out if the facts emerging therefrom, if taken on their face value, disclose an existence of ingredients or not. Thus, at this stage, the material collected during the investigation is sufficient to proceed against the applicants and, therefore, the application deserves to be rejected.

Whether there was an “abetment” which drove the deceased to commit suicide or not, is a matter of evidence. At this stage, statements of various witnesses, especially statements of children son of the deceased who were along with her at the relevant time, are sufficient to proceed against the applicants and, therefore, the application deserves to be rejected.

Before entering into the merits of the case, it is necessary to see, what are considerations as far as the offence under Section 306 of the IPC is concerned.

Section 306 (Section 108 of the Bharatiya Nyaya Sanhita, 2023) of the Indian Penal Code defines abetment of suicide, which reads thus:

Section 107 of the Indian Penal Code (Section 45 of the Bharatiya Nyaya Sanhita, 2023) defines abetment of a thing, which reads thus:

Section 108 of the Indian Penal Code reads thus:

Section 306 of the Indian Penal Code talks about abetment of suicide and states that whoever abets the commission of suicide of another person, he/she shall be punished with imprisonment of either description for a term not exceeding ten years and shall also be liable to fine.

The said Section penalizes abetment of commission of suicide. To charge someone under this Section, the prosecution must prove that the accused played a role in the suicide. Specifically, the accused's actions must align with one of the three criteria detailed in Section 107 of the Indian Penal Code. This means the accused either encouraged the individual to take their life, conspired with others to ensure the person committed suicide.

A question arises as to when is a person said to have instigated another. The word “instigate” means to goad or urge forward provoke, incite or encourage to do “an act” which the person otherwise would not have done.

It is well settled that in order to amount to abetment, there must be mens rea. Without knowledge or intention, there cannot be any abetment. The knowledge and intention must relate to the act said to be abetted which in this case, is the act of committing suicide. Therefore, in order to constitute abetment, there must be direct incitement to do culpable act.

In the case of SLP (Cri.) Diary No.39981/2022 (Prabhu vs. The State represented by the Inspector of Police and anr) decided by the Hon’ble Apex Court on 30.1.2024, by referring the various earlier decisions, the Hon’ble Apex Court held that the physical relationship over a considerable period of time was out of mutual love between the appellant and the deceased and not based on the promise of marriage. In the said case, the Hon’ble Apex Court has considered its earlier decision in the case of Kamlakar vs. State of Karnataka (Criminal Appeal No.1485/of 2011, decided on 12.10.2023 and explained ingredients of Section 306 of the Indian Penal Code and held, as under:

Thus, the Hon’ble Apex Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable. In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 of the IPC.

In the light of the above said principle laid down by the Hon’ble Apex Court, it is well settled that to attract the provision, what is to be shown is that the accused have actually instigated or aided to the victim in committing suicide. There must be direct or indirect incitement to the commission of suicide and the accused must be shown to have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide.

Applying the above principles to the facts of the present case and even accepting the case as it is, it reveals that the allegation against the applicants is that there was dispute between the applicants and the deceased which is matrimonial in nature. Whether it is substantiated by the material, the investigation papers show that the allegation levelled against the applicants, especially the applicant No.1 that he used to harass her as he was having illicit relation with some lady, the deceased was also harassed as she has made a complaint against the applicant No.2 regarding his ill-intentions. As far as these allegations are concerned, statements of both children of the deceased are recorded namely Rishikesh and Rutuja. Their statements nowhere reveal that there was any dispute between applicant No.1 and the deceased on account of having illicit relation with some lady. On the contrary, the statements reveal that on the day of the incident, the applicant No.1 was not at home as he left the home for attending the office. The deceased was sitting along with the children and at about 12:10 pm, she left sitting room and went to her bedroom. The children though that she went in the bedroom to change the clothes as she has to go to her brother’s house. However, after some time, she has committed suicide by hanging herself. Their statements show that she was worried about the relationship between her brother and wife of the brother. They specifically stated that there was no dispute as far as their parents are concerned. Even, accepting the statements of the parents of the deceased and other relatives, it nowhere discloses any specific instance as far as harassment at the hands of the applicants is concerned. The general and vague allegations are levelled against the applicants.

Thus, considering the allegations levelled against the applicants, which are to the extent that the deceased was harassed on account of illicit relation of applicant No.1 with some lady, during investigation, nothing revealed regarding the said illicit relation.

As far as the quarrel on account of illicit intention on the part of applicant No.2 is concerned, the children of the deceased and the applicant No.1 have not stated anything about the dispute between the husband and the wife. Therefore, “instigation” to do a particular thing is necessary for charging a person to abetment. Even, in a case where a victim commits suicide which may be result of cruelty meted out to her, the Courts have always held that discord and differences in domestic life are quite common in society and that the commission of such an offence largely depends upon the mental state of the victim. Surely, until and unless some guilty intention on the part of the accused is established, it is ordinarily not possible to convict him for an offence under Section 306 of the Indian Penal Code. While dealing with the situation on the basis of the facts, the allegations levelled against the applicants that the applicant No.1 was having illicit relation and the applicant No.2 was having ill-intention for the deceased, which are not substantiated by any material.

The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court. However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by the Hon’ble Apex Court in the cases of State of Haryana and ors vs. Bhajan Lal and ors, reported in 1992 Supplementary (1) SCC 335. This court has jurisdiction to quash the FIR/complaint when no prima facie case is made out against the accused.

The crucial word in Section 306 IPC is ‘abets’. ‘Abetment’ is defined in Section 107 of IPC. As per Section 107 IPC, a person would be abetting the doing of a thing if he instigates any person to do that thing or if he encourages with one or more person or persons in any conspiracy for doing that thing or if he intentionally aids by any act or illegal omission doing of that thing. There are two explanations to Section 107. As per Explanation 1, even if a person by way of willful misrepresentation or concealment of a material fact which he is otherwise 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. Explanation 2 clarifies that whoever does anything in order to facilitate the commission of an act, either prior to or at the time of commission of the act, is said to aid the doing of that act.

As observed earlier, the Hon’ble Apex Court, in the case of Ramesh Kumar vs. State of Chattisgarh supra, has observed that “instigation” means 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. Where the accused by his acts or omission or by a continued course of conduct creates a situation that the deceased was left with no other option except to commit suicide, then an “instigation” may be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be “instigation”.

The Hon’ble Apex Court in the case of Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) [(2009) 16 SCC 605 has summed up the constituents of “abetment” as laid down, as; (i) the accused kept on irritating or annoying the deceased by words, deeds or willful omission or conduct which may even be a willful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or willful omission or conduct to make the deceased move forward more quickly in a forward direction; and (ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above.

Applying the aforesaid principles to the facts of the present case and even accepting the allegations as it is, it reveals that no specific instances are narrated by the informant or any other witnesses as far as the ill-treatment at the hands of the applicants is concerned. It is alleged that the applicant No.1 was having illicit relation with one lady. However, during the investigation, nothing revealed to substantiate the fact that the applicant No.1 was having any relations. Similarly, regarding the ill-intention of the applicant No.2 as to the deceased is concerned, the statements of the children of the deceased nowhere support the same.

Thus, the entire material collected during the investigation including the statements of the witnesses reveals that the allegations levelled against the applicants are not substantiated by any material. There was no proximity or nexus between the two acts i.e. the dispute between the deceased and her husband and suicide and the dispute between the deceased and the applicant No.2 and suicide. Merely because there was allegation by the non-applicant No.2, which is not substantiated by any other material, it would not be sufficient to infer that the deceased has committed suicide due to the ill-treatment at the hands of the applicants.

A plain reading of Sections 107, 108, and 306 of the Indian Penal Code and applying it to the undisputed facts of the present case indicates that none of ingredients are attracted to the case in hand. The material appears to be insufficient for subjecting the applicants to trial. On the basis of the evidence on record, it cannot be stated that the material is sufficient for the prosecution to establish the charge against the applicants. Subjecting the applicants to trial, on the basis of the above said evidence, would not only be a mere formality but also abuse of process of law.

In this view of the matter, the application deserves to be allowed. Hence, we proceed to pass following order: