Sunday, 16 December 2018

Whether a woman can be prosecuted for abetment of suicide of her husband if she has phone sex with friend of husband?


The learned Senior Counsel Mr.Mundargi has made out a
point that this communication was secretly done. It is true that this
fact is crucial and has direct bearing on deciding whether this Act
can be called as an abetment. Undoubtedly, this communication
was clandestinely done with a view that it should not be known to
the deceased. This was very private and in a way immoral
behaviour of the accused. Such phone sex or chatting is not an
adultery falling under the definition of adultery under section 13(1)
of Hindu Marriage Act, which expressly states that adultery means
having voluntary sexual intercourse with person other than spouse.
Thus, when the Indian Penal Code or Hindu Marriage Act were
enacted in those days, such kind of sexual intercourse by SMSs
was never imagined by the law makers. It is not an adultery but
these are instances of infidelity and unfaithfulness, which is not
expected when the marriage is solemnised. Such acts of infidelity
are bound to cause emotional trauma to the spouse, who may
react by taking extreme step like suicide. Thus, in the
circumstances like a case in hand, the spouse who indulges into
such activity is responsible for reaction of the other spouse.

18. Thus, when one partner does such activity clandestinely,
then it pre-supposes guilty mind. However, such an act or guilty
mind cannot be substituted for mens rea which is the requirement
for abetment under section 107 of the Indian Penal Code. The
intention of the partner who is engaged into such phone sex or
causing ill-treatment should be, that the other spouse should finish
his or her life. For example, if at all, the applicant/accused would
have indulged into phone sex deliberately disclosing this
repeatedly to the deceased albeit warning given by the deceased
of discontinuing such activity, it would have been considered a
planned harassment to the deceased and therefore, such
repeated, deliberate sexual SMSs would have manifested the
intention to drive the victim to the decision of committing suicide.
The guilty mind is to be necessarily linked with infidelity but not
abetment to commit suicide. It is not the case of the prosecution
in the present case. No such material is produced on record in the
present case. To commit suicide is a very unfortunate reaction of
the accused, who was deeply hurt. It was beyond his capacity to
bear such behaviour of his wife. However, this also cannot be said
that the applicant abetted the deceased to commit suicide.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.57 OF 2018
WITH
CRIMINAL APPLICATION NO.435 OF 2018
IN
CRIMINAL REVISION APPL
ICATION NO.57 OF 2018

Anagha Hitesh Arya Vs. The State of Maharashtra 

CORAM: Mrs.MRIDULA BHATKAR, J.

Dated: DECEMBER 14, 2018



1. This Revision application is moved by the applicant/accused
against the judgment and order dated 12.12.2017 below exhibit 4
in Sessions Case No.179 of 2016 passed by the learned Additional
Sessions Judge, Thane rejecting the discharge application. The
applicant/accused is the wife of the deceased/husband, who is
facing prosecution u/s 306 of the Indian Penal Code.

2. The case of the prosecution in brief is that the
applicant/accused and her husband Hitesh got married in
December, 2002. In 2005, the applicant/wife delivered a boy and
they all were residing together at Thane. The deceased Hitesh was
working in ICICI bank. The couple was not sailing smooth due to
the disputes between them. Both of them were suspicious about
each other. The deceased Hitesh used to inform about the torture
and harassment at the hands of the applicant/accused. He had
informed his father that he was tired of his life because of the
ill-treatment. On 3.7.2015, Hitesh showed vulgar messages sent
by the applicant/accused to his friend Bhaskar and due to this
objectionable communication between the applicant/accused and
his friend, the deceased Hitesh was hurt and disturbed. On
8.7.2015, the applicant/accused called the father of the
deceased/husband. Accordingly, he went to Platinum hospital,
Thane. At that time, she told him that her husband has set himself
on fire. The father of the deceased found him in a burnt condition.
He was shifted to National Burns Centre, Navi Mumbai. However,
he succumbed to the injuries at 10.30pm on the same day. The
father thereafter on the next day, approached Kasarwadavli police
at Thane and gave complaint against the applicant/accused. The

police after recording an FIR lodged by Mahendra Bhikubhai Arya,
registered the offence at C.R. No.I-165 of 2015 under section 306
of the Indian Penal Code against the applicant/accused. The case
was then committed against her. During the pendency of the
case, an application was moved for discharge at exhibit 4. The
learned Additional Sessions Judge II, Thane, by his order dated
12.12.2017 rejected the said application. Hence, this revision
application.
3. Mr.Mundargi, the learned Senior Counsel appearing for the
applicant/accused, has submitted that the material placed before
the Court does not make out the offence of abetment to commit
suicide punishable under section 306 of the Indian Penal Code. He
has submitted that the husband and wife both were suspicious
about each other. The FIR does not disclose the act of abetment
by the applicant/accused. He relied on the statement of the
witnesses, neighbours Prasad and Priya, who had reported about
the quarrel between the deceased and the accused on the night
intervening 7.7.205 and 8.7.2015 and thereafter, they were the first
to whom the applicant/accused reported the incident of burning
which took place in the morning at 8.10am on 8.7.2015. He relied

on the statements of friend Bhaskar, neighbour Sharwari; so also
on the statement of one Pooja, the friend of Hitesh. He argued
that these statements do not reveal any act of abetment of the
applicant/accused wife or any role played by her in the commission
of offence of abetment to commit suicide. He relied on the
statement of Krishiv Hitesh Arya, the son of the couple which was
recorded on 16.7.2015. The learned Counsel has further
submitted that she is blamed by the father for getting involved in
the phone sex by sending messages with Bhaskar and her another
friend at Dubai. The learned Counsel has submitted that this fact of
phone sex cannot be denied. However, this cannot be said as
abetment to commit suicide as the act was done secretly with a
view to keep the deceased husband in dark. The learned Counsel
submitted that mens rea is required to prosecute a person under
section 306 of the Indian Penal Code which is absent in the
present case. The learned Counsel placed reliance on the ratio
laid down in the case of S.S. Chheena vs. Vijay Kumar
Mahajan1.
4. Learned Prosecutor while opposing this application has
submitted that the evidence before the trial Court is sufficient to
1 (2010) 12 SCC 190

frame charge and the arguments of the learned Senior Counsel
can be considered at the stage of trial. It is not correct to consider
the statements of the witnesses and the truthfulness in it at the
stage of discharge. In support of his submissions, he relied on
Amit Kapoor vs. Ramesh Chander2.
5. The learned Counsel for the intervener, the complainant, has
heavily relied on the messages sent by the applicant/accused and
her friend and Bhaskar. She has submitted that the
applicant/accused has tortured her husband throughout. The
complainant has given details about the ill-treatment given by her
during their married life. The deceased husband was shocked to
come across such messages sent by his wife and received by her.
This led him to commit suicide. In support of her submission she
relied on the judgment in the case of Siddaling vs. The State,
through Kalagi police station3.
6. Heard. While deciding an application for discharge, the
Court can neither go into probable defence taken by the accused
nor the documents produced by him. Also, the Court cannot think
of a possibility of conviction of the accused. The Court while
2 (2012) 9 SCC 460
3 Criminal Appeal No.(s). 1606 of 2009 (Supreme Court) dated 9.8.2018

entertaining the application for discharge under Article 227 has to
confine itself to the papers or documents produced and relied on
by the prosecution. After going through the record of the
prosecution, the Court has to find out whether charge can be
framed under the offence for which the accused is prosecuted.
This is a settled principle of law.
7. Further, it is useful to refer to the ratio laid down in the
judgment in the case of Amit Kapoor vs. Ramesh Chander
(supra) and S.S. Chhenna vs. Vijay Kumar Mahajan & anr.
(supra) and Siddaling vs. The State (supra) to decide this
application.
8. In the case of S.S. Chhenna vs. Vijay Kumar Mahajan &
anr. (supra), the Supreme Court while dealing with the issue of
abetment of suicide, has observed as follows:
“25. Abetment involves a mental process of instigating
a person or intentionally aiding a person in doing of a
thing. Without a positive act on the part of the
accused to instigate or aid in committing suicide,
conviction cannot be sustained. The intention of the
legislature and the ratio of the cases decided by this
Court is clear that in order to convict a person under
Section 306 Indian Penal Code there has to be a clear
mens rea to commit the offence. It also requires an
active act or direct act which led the deceased to

commit suicide seeing no option and that act must
have been intended to push the deceased into such a
position that he committed suicide.”
9. In the case of Amit Kapoor vs. Ramesh Chander (supra),
the property of the deceased lady was grabbed. Her signatures
were taken on a blank paper. Money was not given to her and the
deceased lady in the said case before committing suicide had left
a suicide note that though she fully trusted the accused, he has
betrayed her. She went in depression. She gave details about the
transactions between the accused and her and held him
responsible, who drove her to the decision of committing suicide.
In the present case, there is no suicide note. So also, the facts are
different. However, the ratio laid down by the Supreme Court of
applying yardstick while deciding the matter under section 227 is
useful, which is as follows:
“19. … The standard of test and judgment which is to
be finally applied before recording a finding regarding the
guilt or otherwise of the accused is not exactly to be applied
at the stage of deciding the matter under Section 227 or
Section 228 of the Code. At that stage the court is not to
see whether there is sufficient ground for conviction of the
accused or whether the trial is sure to end in his conviction.
…...”

10. In the case of Siddaling vs. The State through Kalagi
police station (supra), the wife had committed suicide within four
months of marriage by jumping into a well. She committed suicide
due to the demand of dowry, cruelty and so also due to adulterous
behaviour of her husband. In the said case, the couple was
married on 6.5.2002 and thereafter, when she realised that her
husband was having illicit relationship with another lady, the matter
was taken before the Panchayat, where he had admitted that he
was living with another woman and his deceased/wife had
knowledge. He agreed that he will sever his relations, however, he
did not. The demand of dowry and ill-treatment continued and
ultimately, she committed suicide. The appeal was against the
conviction. The Supreme Court has observed that it cannot be
said that the appellant's act of having illicit relationship with
another woman would not have affected to negate the ingredients
of section 306 of the Indian Penal Code.
11. In order to attract section 306 of the Indian Penal Code i.e.,
the abetment to commit suicide, it is necessary that the act of
abetment as contemplated under section 107 of Indian Penal Code
is to be complied with. The meaning of 'abetment' under the Indian

Penal Code is to be strictly read as per the section and then only
can be attracted. Section 107 states 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 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 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”.
12. Thus, there should be instigation, aid, or intentional omission
to a particular act or there should be such an act of the accused,

driving the deceased to the decision of committing suicide. Hence,
the facts of the present case are to be looked into on the basis of
the FIR and the statements of the witnesses. In the FIR, the
allegations are made by the father of the deceased that the
applicant/accused Anagha was used to ill-treat him and harass
him. She used to nag him on account of his earlier friendship with
one lady. She had assaulted him on account of his ex-relationship.
However, the deceased son had come across the communication
in the form of messages his friend Bhaskar, wife Anagha and her
another friend at Dubai. After coming across such objectionable
communication, Hitesh was terribly disturbed and he informed his
father that he might commit suicide because of the improper
behaviour and conduct of his wife. The statement of the mother of
the deceased supports the FIR. Apart from this FIR and the
allegations made therein, the prosecution has produced printouts
of the messages sent on the cellphone of the applicant/accused
Anagha and her friend Bhaskar and other friend. These messages
are in English and state about sexual activities, which is called and
known as Phone Sex. The language used is very vulgar.

13. There is a third set of evidence i.e., the statements of the
neighbours, Deshpande couple and other person. They give a
different picture that the applicant/accused and the deceased used
to fight on different grounds and on that day, the husband was
aware of the objectionable chat which took place between the
accused and her friends. However, on the day of the incident,
when the deceased set himself on fire on 8th July, 2015 in the
morning at 8.10 am. However, earlier to that night at 1.30am, the
deceased was drunk and there was a fight between them. The
accused went to the Police Station alongwith one neighbour
Deshpande. She had approached Deshpande and went to the
police station alongwith Mr.Deshpande. The deceased also
followed them and thereafter, in the morning again, there was fight
and the accused set himself on fire and died due to that fire. The
statements reveal that the accused person called for help by going
to her neighbours that her husband set himself on fire. She tried to
extinguish the fire. She took him to the hospital.
14. In his statement, son Krishiv has stated that the father and
mother used to fight and the mother used to object whenever his
father used to drink and they used to fight. He has also stated that

the father used to assault his mother and on the night of 7.7.2015,
he saw his father was banging his mother's head on the wall. He
also stated that he went to the Police Station alongwith his
neighbour on that night.
15. I have considered this material on record which is in the
nature of statements and messages. The statements of the father,
mother of the deceased reveal that the deceased was subjected to
ill-treatment and nagging and he was shocked and deeply hurt
after coming across the objectionable communication between his
wife and the friend. Thus, there is evidence of harassment and
nagging. However, it cannot be said that this is an abetment to
commit suicide. A cruel behaviour with specific incidents is so
grave that it leaves no option but to commit suicide, can be said an
abetment in certain cases.
16. A bunch of messages produced on record disclosing phone
sex are very vulgar. The revelation of this phone sex to the
deceased took place as per the evidence on 3.7.2015 and he
committed suicide on 8.7.2015 morning.

17. The learned Senior Counsel Mr.Mundargi has made out a
point that this communication was secretly done. It is true that this
fact is crucial and has direct bearing on deciding whether this Act
can be called as an abetment. Undoubtedly, this communication
was clandestinely done with a view that it should not be known to
the deceased. This was very private and in a way immoral
behaviour of the accused. Such phone sex or chatting is not an
adultery falling under the definition of adultery under section 13(1)
of Hindu Marriage Act, which expressly states that adultery means
having voluntary sexual intercourse with person other than spouse.
Thus, when the Indian Penal Code or Hindu Marriage Act were
enacted in those days, such kind of sexual intercourse by SMSs
was never imagined by the law makers. It is not an adultery but
these are instances of infidelity and unfaithfulness, which is not
expected when the marriage is solemnised. Such acts of infidelity
are bound to cause emotional trauma to the spouse, who may
react by taking extreme step like suicide. Thus, in the
circumstances like a case in hand, the spouse who indulges into
such activity is responsible for reaction of the other spouse.

18. Thus, when one partner does such activity clandestinely,
then it pre-supposes guilty mind. However, such an act or guilty
mind cannot be substituted for mens rea which is the requirement
for abetment under section 107 of the Indian Penal Code. The
intention of the partner who is engaged into such phone sex or
causing ill-treatment should be, that the other spouse should finish
his or her life. For example, if at all, the applicant/accused would
have indulged into phone sex deliberately disclosing this
repeatedly to the deceased albeit warning given by the deceased
of discontinuing such activity, it would have been considered a
planned harassment to the deceased and therefore, such
repeated, deliberate sexual SMSs would have manifested the
intention to drive the victim to the decision of committing suicide.
The guilty mind is to be necessarily linked with infidelity but not
abetment to commit suicide. It is not the case of the prosecution
in the present case. No such material is produced on record in the
present case. To commit suicide is a very unfortunate reaction of
the accused, who was deeply hurt. It was beyond his capacity to
bear such behaviour of his wife. However, this also cannot be said
that the applicant abetted the deceased to commit suicide. The
case of suicide is a very delicate issue which involves

understanding and mental condition and fall out of behavioural
pattern of human being. The life is never throughout a bed of
roses but there are difficulties, fights, failures what is called as
wear and tear of life. Every individual reacts differently to the
situation depending on his or her mindset. Some persons are
strong and some are weak. Thus, the impact of reaction to a
particular incident is always different from person to person and,
therefore, the law-makers of Indian Penal Code who drafted
section 306 have linked it with section 107 by using the word
“abetment”.
19. There is evidence that on the earlier night, the deceased was
drinking at 1.30am and the incident took place at 8.10am. The
submission of the learned Counsel for the Intervener/Complainant
that the deceased was having everything and he had no reason to
commit suicide is true. The deceased was a family man having
wife, a son and parents and was getting a handsome salary while
working with ICICI bank. However, it appears that though all these
things were with him, the deceased and the accused could not
lead happy life because he could not bear the trauma of the
behaviour of his wife which led to the tragic end of his life. Thus,

though the applicant/accused can be said to be responsible for the
trauma caused to the deceased, she is not an abettor for the act of
suicide.
20. In the case of Rahul Raj Singh vs. The State of
Maharashtra4 it is observed by me as follows:
“Every suicide has cause but all the causes cannot be labelled
as abetment. Therefore, while assessing abetment, the Judge
has to take the objective view guided by section 107 of the
Indian Penal Code. The harassment or torture should be of
such a degree that it really left no option and drove a person
to commit suicide. An individual may carry suicidal traits, or
may be very emotional or may be very egoist or be jealous or
vindictive. Such emotions may overpower the individual
leading him to take drastic step to kill himself or herself.
Under such circumstances, unless the mens rea is brought on
record, prima facie it cannot be said that it is an abetment.”
21. Under such circumstances, I am of the view that the order of
the learned Sessions Judge needs to be set aside as there is no
4 Anticipatory Bail Application No.661 of 2016 decided on 25.4.2016

material to frame charge against the applicant/accused under
section 306 of the Indian Penal Code. Accordingly, the impugned
order dated 12.12.2017 below exhibit 4 in Sessions Case No.179
of 2016 passed by the learned Additional Sessions Judge, Thane
is quashed and set aside.
22. Revision application is allowed accordingly.
23. Criminal application No.435 of 2018 stands disposed of.
(MRIDULA BHATKAR, J.)

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