to convict a person under Section 306 IPC, there has to be a clear mens rea: Supreme Court 2016

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1135 OF 2016
(ARISING OUT OF S.L.P (CRIMINAL) NO. 8764 OF 2016)

GURCHARAN SINGH .…APPELLANT

VERSUS

STATE OF PUNJAB ….RESPONDENT

J U D G M E N T

AMITAVA ROY, J.
1. In assailment is the judgement and order dated 17.12.2014 passed by
the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. S-
566-SB of 2004, affirming the conviction of the appellant and co-accused
Sukhvinder Singh under Section 306 of the Indian Penal Code (hereinafter to
be referred to as “IPC”), as entered by the Trial Court. While by the
decision impugned, the conviction has been endorsed, the substantive
sentence of six years of rigorous imprisonment awarded by the Trial Court
to each of the accused persons has been scaled down to one of five years of
the same description. The instant appeal seeks to overturn the concurrent
determinations on the charge by the courts below.
2. We have heard Ms. Kawaljit Kochar, learned counsel for the appellant
and Mr. V. Madhukar, learned counsel for the respondent.
3. The fascicule of facts, indispensable to comprehend the backdrop of
the prosecution, has its origin in the inexplicable abandonment of the
deceased Surjit Kaur and her two daughters namely; Geet Pahul and Preet
Pahul by Dr. Jaspal Singh, their husband and father respectively, about two
years prior to the tragic end of his three family members as above. The
prosecution version is that Dr. Jaspal Singh, who was initially in the
Government service, had relinquished the same and started a coal factory
at Muktsar. He suffered loss in the business and consequently failed to
repay the loan availed by him in this regard from the bank. As he and his
brother Gurcharan Singh (appellant herein) and others succeeded to the
property left by their predecessors, he started medical practice in
private.
4. Be that as it may, before leaving his family, he addressed a
communication to the concerned bank expressing his inability to repay the
loan inspite of his best efforts as he was not possessed of any property in
his name. Dr. Jaspal Singh was thereafter not to be traced. Following
this turn of events, according to the prosecution, his wife Surjit Kaur
and his daughters shifted from Jalalabad where they used to stay to Abohar
and started residing in a rented house of one Hansraj (PW3). According to
them, they had no source of income and further, they were also deprived of
their share in the property and other entitlements, otherwise supposed to
devolve on Dr. Jaspal Singh. They were also not provided with any
maintenance by the family members of her husband – Jaspal Singh and instead
were ill-treated, harassed and intimidated.
5. While the matter rested at that, on 3.10.2000 at about 10.30 p.m.,
Hansraj, the landlord of the deceased Surjit Kaur, being suspicious about
prolonged and unusual lack of response by his tenants, though the
television in their room was on, informed the brother of the deceased
Surjit Kaur. Thereafter they broke open the door of the room and found all
three lying dead. The police was informed and FIR was lodged.
6. In course of the inquisition, the Investigating Officer collected a
suicide note in the handwriting of Surjit Kaur and also subscribed to by
her daughter Preet Bahul. The suicide note implicated the appellant, his
wife Ajit Kaur and the convicted co-accused Sukhvinder Singh @ Goldy as
being responsible for their wretched condition, driving them in the
ultimate to take the extreme step. A note book containing some letters,
written by deceased Geet Pahul was also recovered. On the completion of
the investigation, which included, amongst others the collection of the
post-mortem report which confirmed death due to consumption of aluminium
phosphide, a pesticide, charge-sheet was submitted against the three
persons named hereinabove along with Satnam Kaur under Section 306/34 IPC.
7. Whereas Satnam Kaur died during the committal proceedings, charge was
framed against the remaining accused persons namely; Gurcharan Singh
(appellant), Ajit Kaur and Sukhvinder Singh @ Goldy under the
aforementioned provisions of the Code. As the accused persons claimed to
be innocent, they were made to face trial.
8. At the trial, the prosecution examined eight witnesses including the
doctor, who had performed the autopsy on the dead body. The accused
persons stood by the denial of the charge in their statements under Section
313 Cr.P.C. and also examined five witnesses in defence.
9. The Trial Court, on a scrutiny of the evidence adduced, held the
appellant herein and the co-accused Sukhvinder Singh to be guilty of the
charge levelled against them and awarded them the sentence as hereto before
mentioned. It, however, acquitted the co-accused Ajit Kaur. To reiterate,
by the impugned verdict, the conviction of the appellant and the co-accused
Sukhvinder Singh has been upheld with the marginal modification in the
substantive sentence as aforementioned.
10. Mrs. Kawaljit Kochar, learned counsel for the appellant has
emphatically urged that the evidence on record does not furnish the
ingredients of abetment as visualised in Section 306 of the Code and thus,
the conviction is manifestly illegal and is liable to be set-aside. It
being patent from the materials on record that the deceased Surjit Kaur and
her daughters, had been duly accorded their share in the family property
and that they had sufficient means to independently maintain themselves
with reasonable comfort, the accusation to the contrary, as levelled by the
prosecution, is wholly unfounded, she insisted. According to the learned
counsel, the in-laws of the deceased Surjit Kaur had throughout been
considerate, compassionate and supportive towards her and two daughters and
that the suicide committed by them had been on their own volition and not
as a result of any torture, harassment and oppression by them, as alleged.
The learned counsel has maintained that the suicide note has not been
proved in the handwriting of Surjit Kaur as well and thus, there being no
evidence whatsoever in corroboration of the charge of abetment, the
conviction and sentence is liable to be set-aside in the interest of
justice.
11. Per contra, the learned counsel for the respondent, has urged in
confutation, that the evidence of the prosecution witnesses, more
particularly of (Gurjeet Singh) PW5 and Gaganjit Singh (PW6), the
brothers of Surjit Kaur as well as the medical testimony, has proved the
imputation against the appellant and co-accused Sukhvinder Singh beyond
all reasonable doubt and in the face of concurrent findings recorded by the
courts below, on an in-depth appraisal of the materials on record, no
interference with the impugned judgement and order is warranted.
12. Though, in the teeth of the sequential findings of guilt of the
courts below, normally, reappraisal of the evidence is otherwise uncalled
for, we are impelled to embark upon that exercise, having regard to the
rival assertions in the unique facts and circumstances of the case. This
is more so, as in controversion of the allegation of wilful and deliberate
deprivation of the deceased Surjit Kaur and her daughters of their share in
the family property, as laid by the prosecution, evidence has surfaced to
the contrary, being conceded by her brothers in the course of their
testimony at the trial.
13. PW3 Hans Raj, the landlord stated on oath that the deceased Surjit
Kaur and her daughters used to reside in the first floor of his house. On
the date of the incident, at about 10.00 p.m. his wife reported to him that
though the lights of that floor were off, the television was on. The
witness thereafter along with his wife knocked the door of the apartment of
the deceased, but there was no response. After waiting for some time, the
witness informed Gurjit Singh and Gaganjit Singh, the brothers of Surjit
Kaur, and on their arrival, as the same state of affairs continued, they
broke open the door and found all the three lying dead. The police was
thereafter informed. According to this witness, even after this incident,
none of the accused persons or the in-laws of Surjit did come to inquire
about the same.
14. In cross-examination, the witness mentioned that all the three
deceased used to remain dejected and depressed. They however, often
visited the parents and the brothers of Surjit. He disclosed that Surjit
had a house at Abohar. He admitted that at no point of time, Surjit and
her daughters did complain to him about any threat extended by the accused
persons. The witness disclosed that though Surjit had expended substantial
amount on the coaching of her daughter, she failed in the examination, for
which she was morose and anguished. The witness opined that Surjit and her
daughters had committed suicide out of grief for their missing
husband/father. According to him, the accused persons were not in any
manner responsible for their death.
15. PW4 Dr. Kalra, who had performed the post-mortem examination of Preet
Bahul, testified on the basis of the report of the chemical analysis of her
viscera that death was due to consumption of aluminum phosphide which was
sufficient to cause death in due course of time. To the same effect, is
the evidence of PW11 Dr. Thakral vis-a-vis Surjit and her daughter Geet.
16. PW5 and PW6 Gurjit and Gaganjit, the brothers of Surjit Kaur did
depose in similar lines. They stated that at the time of their death, Geet
and Preet were aged 22 years and 18 years respectively. They reiterated the
version narrated in the FIR pertaining to the sudden disappearance of their
brother-in-law Dr. Jaspal Singh, husband of Surjit, he having suffered
losses in business. They also mentioned that, at that time, Dr. Jaspal
Singh had heavy outstanding dues qua the bank. They disclosed as well that
after the death of Jaktar Singh, the father of Dr. Jaspal, their brother-
in-law along with his brothers inherited the joint property. They also
reiterated the narration of the facts preceding the discovery of the dead
bodies as recited by PW3. They confirmed the recovery and seizure of,
amongst others the diary containing the suicide note. They identified the
text of the suicide note in the hand of their sister Surjit. They
identified the signature of Preet also thereon. These witnesses in their
examination-in-chief, though alleged that their sister and nieces had
committed suicide because they were deprived of their share in the joint
properties, and for which they suffered from sustained depression, in cross-
examination, they acknowledged a sale deed executed by the appellant
Gurucharan in favour of Surjit regarding half share in the house at Abohar,
which was also a segment of the family property. They conceded as well
that Satnam Kaur, the mother-in-law of Surjit might have issued a cheque of
Rs.68,650/- in her name and that she had opened an account therewith in the
name of her brother Gagandeep. They admitted that there was a parcel of
land in the name of deceased Surjit at Muktsar. When confronted with the
statements under Section 161 Cr.P.C., they admitted of not having disclosed
to the Investigating Officer, that the share in land of Dr. Jaspal Singh
had not been given to Surjit Kaur. They accepted that the main reason for
the depression of the deceased was the absence of near and close relatives.
They conceded that neither Surjit nor they had ever lodged any complaint
with the police against the accused person for the ill-treatment meted out
to her or for denying her entitlements in the joint property. They
admitted as well that no civil suit had been filed in that regard.
17. PW6, in addition admitted his signature on the sale deed executed by
appellant Gurucharan in favour of Surjit. According to PW6, the sale deed
was executed in a family settlement after Jaspal Singh had gone missing.
This witness disclosed as well that the appellant and the other family
members were ready to transfer the share of his brother-in-law to his
sister.
18. The evidence on record, to start with, in our estimate, does not
substantiate the imputation that Surjit and her daughters had been
deprived wholly of their shares in the joint family property as the heirs
of Dr. Jaspal Singh. Admittedly, there is no proof of any threat being
extended by the appellant or anyone of the in-laws of Surjit so as to
reduce them to destitutes in a petrified state. The disappearance of Dr.
Jaspal Singh, the husband of Surjit, father of Preet and Geet though
unfortunate, the event had occurred about two years prior to the incident.
Neither the appellant nor the in-laws of Surjit did have any role in this
regard. The absence of any complaint or civil litigation also permits an
inference against the denial of the share in the family property to Surjit
and her daughters or of any ill-treatment, torture, oppression meted out to
them. There is thus neither any proximate nor remote acts of omission or
commission on the part of the appellant and his family members that can be
irrefutably construed to be a direct or indirect cause or factor compelling
Surjit and her daughters to take the extreme step of self-elimination.
19. The suicide note which transpires to be the sheet anchor of the
prosecution case needs extraction for reference as hereunder.
“The whole of my land and property should be given to National Defence
Fund. The family of my in-laws especially my mother-in-law, Jeth Master
Gurcharan Singh, his wife Ajit Kaur and his son Goldy are responsible for
our death. My younger daughter is still minor.

My husband was also to die by them. Now how can we live when our living is
more than a hell. I pleaded before the Prime Minister, President and Chief
Minister but there is no one for me in this society. I also filed a case
before the Human Rights Commission. This is our cultured and democratic
society. I struggled continuously for 1 ½ years but now no more. My
daughters are so intelligent that one is doing pre-medical test and the
second is doing Master of Computer Applications. This is the reason that I
bore all such pains but still remain alive. If there is any justice in
this cultured and democratic society then at least my in-laws should be
punished after our death and every common man should get justice.

My two biggas land of Diwan Khera, 4 ½ biggas land of Sajrana and 4/5
kanals land at Muktsar should go to Mission Hospital, Muktsar. No body is
entitled for my two plots in Bharat Colony Bathinda and my house in Anand
Nagri, Abohar. All the sale deeds of the land are lying by my side.
Suicide note of my husband is also lying here which I was forced not to
hand over to the police on 22 March 1999 and assurance that I and my
children would be looked after in a very good manner.
Sd/ Surjit Kaur”
This is however the translated version of the original which is in Hindi
script.
20. A plain perusal of the above quote also reveals that apart from an
omnibus grievance against her in-laws to be responsible for their death,
for which according to her, they ought to be punished, there is no
reference or disclosure of any specific incident in support thereof. The
suicide note divulges her ownership of lands and house which per se belies
the charge that she had been denied the share of her husband in the family
property. Noticeably, no attempt was made by the prosecution to prove the
author of the text through an expert and both the courts below solely based
their conclusion, in this regard on the evidence of PWs 5 and 6, the
brothers of Surjit, who identified the contents to be that of hers again on
eye estimation.
21. Section 306 of the Code prescribes the punishment for abetment of
suicide and is designed thus:
“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.”

22. It is thus manifest that the offence punishable is one of abetment of
the commission of suicide by any person, predicating existence of a live
link or nexus between the two, abetment being the propelling causative
factor. The basic ingredients of this provision are suicidal death and the
abetment thereof. To constitute abetment, the intention and involvement of
the accused to aid or instigate the commission of suicide is imperative.
Any severance or absence of any of this constituents would militate against
this indictment. Remoteness of the culpable acts or omissions rooted in the
intention of the accused to actualize the suicide would fall short as well
of the offence of abetment essential to attract the punitive mandate of
Section 306 IPC. Contiguity, continuity, culpability and complicity of the
indictable acts or omission are the concomitant indices of abetment.
Section 306 IPC, thus criminalises the sustained incitement for suicide.
Section 107 IPC defines abetment and is extracted hereunder:

“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 doing.

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.”

23. Not only the acts and omissions defining the offence of abetment
singularly or in combination are enumerated therein, the explanations
adequately encompass all conceivable facets of the culpable conduct of the
offender relatable thereto.
24. Section 113A of the Indian Evidence Act, 1872 permits a presumption
as to the abetment of suicide by a married woman by her husband or any
relative of his, if it is proved that she had committed the act within a
period of seven years from the date of her marriage and that her husband or
such relative of his had subjected her to cruelty. The explanation to
this Section exposits “cruelty” to have the same meaning as attributed to
this expression in Section 498A IPC. For ready reference, Section 113A of
the Indian Evidence Act, 1882 is quoted hereunder as well.
“113A. Presumption as to abetment of suicide by a married woman—When the
question is whether the commission of suicide by a woman had been abetted
by her husband or any relative of her husband and it is shown that she had
committed suicide within a period of seven years from the date of her
marriage and that her husband or such relative of her husband had subjected
her to cruelty, the Court may presume, having regard to all the other
circumstances of the case, that such suicide had been abetted by her
husband or by such relative of her husband.

Explanation—For the purposes of this section, “cruelty” shall have the same
meaning as in section 498A of the Indian Penal Code (45 of 1860).”

25. In the legislative backdrop outlined hereinabove, Section 498A of the
Code also demand extraction.

“498A. Husband or relative of husband of a woman subjecting her to cruelty
– Whoever, being the husband or the relative of the husband of a woman,
subjects such woman to cruelty shall be punished with imprisonment for a
term which may extend to three years and shall also be liable to fine.

Explanation- For the purpose of this section, “cruelty” means-

(a) any wilful conduct which is of such a nature as is likely to drive the
woman to commit suicide or to cause grave injury or danger to life, limb or
health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful demand for
any property or valuable security or is on account of failure by her or any
person related to her to meet such demand.”

26. This provision, as the quote hereinabove reveals, renders the husband
of a woman or the relative of his, punishable thereby with imprisonment for
a term which may extend to three years and also fine, if they or any one
of them subject her to cruelty. The explanation thereto defining “cruelty”
enfolds:

any wilful conduct which is of such a nature as is likely to drive the
woman to commit suicide or to cause grave injury or danger to life, limb or
health (whether mental or physical) of the woman; or

harassment of the woman, where it is with a view to coercing her or any
person related to her to meet any unlawful demand for any property or
valuable security or is on account of failure by her or any person related
to her, to meet such demand.

27. Though for the purposes of the case in hand, the first limb of the
explanation is otherwise germane, proof of the willful conduct actuating
the woman to commit suicide or to cause grave injury or danger to life,
limb or health, whether mental of physical, is the sine qua non for
entering a finding of cruelty against the person charged.
28. The pith and purport of Section 306 IPC has since been enunciated by
this Court in Randhir Singh vs. State of Punjab (2004)13 SCC 129, and the
relevant excerpts therefrom are set out hereunder.

“12. 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.

13. In State of W.B. Vs. Orilal Jaiswal (1994) 1 SCC 73, 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 the 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.”
29. Significantly, this Court underlined by referring to its earlier
pronouncement in Orilal Jaiswal (supra) that courts have to be extremely
careful in assessing the facts and circumstances of each case to ascertain
as to whether cruelty had been meted out to the victim and that the same
had induced the person to end his/her life by committing suicide, with the
caveat that if the victim committing suicide appears to be hypersensitive
to ordinary petulance, discord and differences in domestic life, quite
common to the society to which he or she belonged and such factors were not
expected to induce a similarly circumstanced individual to resort to such
step, the accused charged with abetment could not be held guilty.
The above view was reiterated in Amalendu Pal @ Jhantu vs. State of West
Bengal (2010) 1 SCC 707.
30. That the intention of the legislature is that in order to convict a
person under Section 306 IPC, there has to be a clear mens rea to commit
an offence and that there ought to be an active or direct act leading the
deceased to commit suicide, being left with no option, had been propounded
by this Court in S.S. Chheena vs. Vijay Kumar Mahajan (2010) 12 SCC 190.
31. In Pinakin Mahipatray Rawal vs. State of Gujarat (2013) 10 SCC 48,
this Court, with reference to Section 113A of the Indian Evidence Act,
1872, while observing that the criminal law amendment bringing forth this
provision was necessitated to meet the social challenge of saving the
married woman from being ill-treated or forcing to commit suicide by the
husband or his relatives demanding dowry, it was underlined that the burden
of proving the preconditions permitting the presumption as ingrained
therein, squarely and singularly lay on the prosecution. That the
prosecution as well has to establish beyond reasonable doubt that the
deceased had committed suicide on being abetted by the person charged under
Section 306 IPC, was emphasised.
32. The assessment of the evidence on record as above, in our considered
opinion, does not demonstrate with unqualified clarity and conviction, any
role of the appellant or the other implicated in-laws of the deceased
Surjit Kaur, as contemplated by the above provisions so as to return an
unassailable finding of their culpability under Section 306 IPC. The
materials on record, to reiterate, do not suggest even remotely any act of
cruelty, oppression, harassment or inducement so as to persistently provoke
or compel the deceased to resort to self-extinction being left with no
other alternative. No such continuous and proximate conduct of the
appellant or his family members with the required provocative culpability
or lethal instigative content is discernible to even infer that the
deceased Surjit Kaur and her daughters had been pushed to such a
distressed state, physical or mental that they elected to liquidate
themselves as if to seek a practical alleviation from their unbearable
earthly miseries.
33. In the wake up of the above determination, we are, thus, of the
unhesitant opinion that the ingredients of the offence of Section 306 IPC
have remained unproved and thus the appellant deserves to be acquitted.
The findings to the contrary recorded by the courts below cannot be
sustained on the touchstone of the law adumbrated by this Court as well as
the facts involved. The appeal is thus allowed. The appellant would be
set at liberty from custody, if his detention is not required in connection
with any other case.

………………………………………J.
(DIPAK MISRA)

……………………………………….J.
(AMITAVA ROY)
NEW DELHI;
DECEMBER 2, 2016.
Judgement

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