Saturday, 10 October 2020

Whether the court can convict husband for abetment of suicide to wife in the absence of mens rea and overt acts?

To prove the offence of abetment, as specified under

Sec 107 of the IPC, the state of mind to commit a

particular crime must be visible, to determine the

culpability. In order to prove mens rea, there has to

be something on record to establish or show that the

appellant herein had a guilty mind and in furtherance

of that state of mind, abetted the suicide of the

deceased. The ingredient of mens rea cannot be assumed

to be ostensibly present but has to be visible and

conspicuous. However, what transpires in the present

matter is that both the Trial Court as well as the High

Court never examined whether appellant had the mens rea

for the crime, he is held to have committed.


Proceeding with the above understanding of the law

and applying the ratios to the facts in the present

case, what is apparent is that no overt act or illegal

omission is seen from the appellant’s side, in taking

due care of his deceased wife. The evidence also does

not indicate that the deceased faced persistent

harassment from her husband. Nothing to this effect is

testified by the parents or any of the other

prosecution witnesses. The Trial Court and the High

Court speculated on the unnatural death and without any

evidence concluded only through conjectures, that the

appellant is guilty of abetting the suicide of his

wife.

20. In such circumstances, we have no hesitation in

declaring that the Trial Court and the High Court erred

in concluding that the deceased was driven to commit

suicide, by the circumstances or atmosphere in the

matrimonial home. This is nothing more than an

inference, without any material support. Therefore, the

same cannot be the basis for sustaining conviction of

the appellant, under section 306 of the IPC.

 [REPORTABLE]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.40 OF 2011

Gurcharan Singh  Vs The State of Punjab 


Author: Hrishikesh Roy, J.

Dated: OCTOBER 1, 2020

1. This Appeal challenges the judgment and order dated

4.3.2010 of the High Court of Punjab and Haryana

whereunder, the Criminal Appeal No. 408-SB of 1999 of

the convicted appellant was dismissed and the judgment

of conviction under section 306 of the Indian Penal

Code, 1860 (for short “the IPC”) and the consequential

sentence of 4 years RI and fine of Rs. 5000/-

imposed by the Learned Additional Sessions Judge,

Barnala, was upheld.


2. The appellant along with his parents was charged

under sections 304B and 498A read with section 34 of

the IPC. The learned Trial Court ordered acquittal of

the appellant’s parents Dulla Singh and Karnail Kaur.

However, even while declaring that there is

insufficient material to convict anyone under section

304B & 498A IPC, the trial Court opined that although

no charge of abetment was framed against the husband

Gurcharan Singh, he can be convicted for abetting

suicide of his wife, under section 306 IPC.

3. The criminal process was set in motion with

registration of FIR No. 177 dated 13.8.1997 at P.S.

Kotwali, Barnala, under section 304B/34 IPC and under

section 498A IPC. The case was registered on the basis

of statement made by Jail Singh, father of Shinder

Kaur(deceased). The appellant was married to Shinder

Kaur and they had a son (21/4 years) and a daughter (8/9

months), when the mother committed suicide on

12.8.1997. According to the prosecution case, Shinder

Kaur was harassed after marriage, for insufficient

dowry. A few days prior to the occurrence, Shinder

Kaur was beaten and was turned out from her matrimonial

home by the accused to bring Rs.20,000/- from her

parents for purchase of a plot. Then the Complainant

had escorted back his daughter to her matrimonial home

by pleading with the accused that he was unable to meet

their cash demand. On 13.8.1997, the father received a

message that Shinder Kaur had died in her matrimonial

house. On hearing this, the Complainant Jail Singh

along with his wife Surjit Kaur and Chand Singh

(brother of Surjit Kaur), rushed to Barnala and saw the

dead body of Shinder Kaur in the matrimonial home who

had died at about 5 P.M. on 12.8.1997. Since, it was an

unnatural death, the Complainant alleged that either

the accused had caused the death of his daughter by

giving her some poisonous substance or she had ingested

such substance, due to harassment by the accused.

4. The post mortem report disclosed that death was due

to consumption of aluminium phosphide. The husband and

the parents-in-law of the deceased were charged and

after the case was committed on 28.10.1997, the trial

commenced before the Court of Additional Sessions

Judge, Barnala.

5. Adverting to the evidence of Jail Singh(PW2), Chand

Singh(PW3) and Surjit Kaur(PW4), who were the father,

maternal uncle and mother of the deceased respectively,

the Court proceeded to determine whether the unnatural

death was the result of Dowry demand. The witnesses

testified that Rs. 20,000/- was demanded by the accused

from the deceased’s family as they wanted to purchase a

plot and since this demand could not be met, Shinder

Kaur committed suicide. The evidence of PW2, the father

of the deceased shows that “cash loan” of 20,000/- was

asked. It is also seen from the evidence that the

appellant Gurcharan Singh is the only son of his

parents and they are the owner of a big house with a

vegetable garden. The appellant and his father were

drivers with Punjab police. What is also of relevance

is that during delivery time, the deceased was admitted

in the hospital for 10/12 days in November 1996 and her

medical treatment was arranged by the husband and the

father-in-law. No evidence of any dispute relating to

dowry demand or maltreatment of the deceased, during

three years of marriage was seen. On this basis, the

Trial Court concluded even if Rs. 20,000/- was asked

for purchase of plot three years after marriage and few

days later the unnatural death takes place, the death

cannot be related to demand of dowry.

6. The Trial Court then posed a question to itself as

to why a young lady with two small children would

commit suicide unless she has been pushed to do so, by

the circumstances in the matrimonial home. It was then

observed that the expectation of a married woman will

be love and affection and financial security at the

hands of her husband and if her hopes are frustrated by

the act or by wilful negligence of the husband, it

would constitute abetment within the meaning of section

107 IPC, warranting conviction under section 306 IPC.

With such reasoning, the Trial Court concluded that

Shinder Kaur committed suicide when her hopes were

frustrated by the act of her husband or alternatively,

by his wilful neglect. Thus, the Court itself was

uncertain on the nature of the act to be attributed to

the appellant. Moreover, even while noting that no

direct evidence of cruelty against the husband and the

in-laws is available, the learned Court assumed that

section 306 IPC can be applied against the appellant.

With such conjecture, while acquitting all three

accused of the charged crime under section 304B and

498A of IPC, the husband was convicted under section

306 IPC.

7. In the resultant Criminal Appeal, the appellant

contended that the conviction cannot be justified

unless evidence disclosed some positive act or conduct

of the accused, which might have compelled the deceased

to commit suicide. On the plea of cordial relationship

of the deceased with her husband, the appellate Judge

conjectured that if such be the situation, the family

members (PW2,PW3,PW4) of the deceased, would not have

deposed against the husband. The suggestion that the

deceased accidentally consumed pesticide kept for the

vegetable garden was brushed aside by the learned

Judge. Accordingly, the High Court endorsed the Trial

Court’s view that deceased was pushed to commit suicide

by the circumstances and the atmosphere in the

matrimonial home. The appeal was accordingly dismissed

by the impugned judgment leading to the present appeal.

8. For the appellant, the learned Counsel Mr R K

Kapoor focused on the findings of the Trial Court that

there is no direct evidence of cruelty towards the

deceased, by the husband or parents-in-law. It is then

submitted that there is nothing to conclude that the

husband had wilfully neglected his wife or had

frustrated her, to bring the case within the ambit of

abetment. The Counsel argues that the court’s

conclusion is entirely based on conjectures and not

upon any substantial evidence. Since no evidence of

dowry harassment was found and the demand of Rs.

20,000/- was ruled out as the cause for suicide, the

learned Counsel submits that both Courts erred in

concluding that the deceased was pushed to commit

suicide, on account of the circumstances or atmosphere

created by the appellant. The contrary evidence of

care and attention of the deceased by her husband and

in-laws is highlighted by the appellant’s lawyer to

argue that in the matrimonial home, the deceased was

treated well. In any case, the degree of love and

affection expected of a husband, cannot be measured to

base the conviction of abetment. Accordingly, it is

contended that the inference without any evidence of

vitiating circumstances in the matrimonial home

purportedly created by the appellant, is nothing but an

inference and conviction cannot be sustained on that

basis alone. The Counsel then points out that both

children born to the deceased are residing with the

appellant and this would also indicate that appellant

is a caring and responsible person. The Counsel further

submits that the appellant has already undergone

sentence for about two years.

9. On the other hand, Ms Jaspreet Gogia, learned

counsel for the State of Punjab refers to the evidence

of Jail Singh(PW2) and Surjit Kaur (PW4), the parents

of deceased, who stated that a week before the

incident, the deceased was beaten and was sent to her

parental home to bring cash for purchase of a plot. As

the parents were unable to pay the demanded sum, the

deceased was driven to commit suicide in her

matrimonial home on the very day, when her father

dropped her back. The Counsel then argues that if not

for the circumstances or atmosphere in the matrimonial

home, why should a young mother of two children commit

suicide, by consuming pesticide.

10. The submissions of the learned Counsel have been

considered. In order to give the finding of abetment

under section 107 IPC, the accused should instigate a

person either by act of omission or commission and only

then, a case of abetment is made out. In the present

case however, there is no direct evidence of cruelty

against the husband or the in-laws. There is nothing

on record to show which particular hope or expectation

of the deceased was frustrated by the husband.

Evidence is also lacking on wilful neglect of the

appellant, which led to the suicidal death. Whereas

contrary evidence is available to suggest that care and

treatment was given to the deceased in the matrimonial

home and in the hospital, and during the three years of

marriage, there was no instance of maltreatment,

attributable to dowry demand. The demand of Rs.

20,000/- for purchase of a plot (in front of the

residence which might have incidentally become

available for sale just at that time), after three

years of marriage, was ruled out by the trial Court as

the possible cause for the suicidal death. In any case,

PW2 stated that this sum was a “cash loan” asked for

buying the plot. Thus, a loan may have been sought by

the accused which could not be given. But there is

nothing to show that the deceased was harassed on this

count, in the matrimonial home. In the face of such

material, it is difficult to conclude that Shinder Kaur

was pushed to commit suicide by the circumstances or

atmosphere created by the appellant.

11. Insofar as the possible reason for a young married

lady with two minor children committing suicide, in the

absence of evidence, conjectures cannot be drawn that

she was pushed to take her life, by the circumstances

and atmosphere in the matrimonial home. What might have

been the level of expectation of the deceased from her

husband and in-laws and the degree of her frustration,

if any, is not found through any evidence on record.

More significantly, wilful negligence by the husband

could not be shown by the prosecution.

12. It must also be noted that both children born to

deceased are being brought up by the appellant’s family

ever since the death of the mother on 12.8.1997. The

maternal grandparents, even while pointing fingers

against the accused, never raised any issue on their

grandchildren being brought up in the home where their

daughter died an unnatural death.

13. Section 107 IPC defines “abetment” and in this

case, the following part of the section will bear

consideration: -

“107. Abetment of a thing – A person

abets the doing of a thing, who –

First-Instigates any person to do that

thing; or

**** **** **** **** ****

Thirdly – Intentionally aids, by any act

or illegal omission, the doing of that

thing.”

14. The definition quoted above makes it clear that

whenever a person instigates or intentionally aids by

any act or illegal omission, the doing of a thing, a

person can be said to have abetted in doing that thing.

15. As in all crimes, mens rea has to be established.

To prove the offence of abetment, as specified under

Sec 107 of the IPC, the state of mind to commit a

particular crime must be visible, to determine the

culpability. In order to prove mens rea, there has to

be something on record to establish or show that the

appellant herein had a guilty mind and in furtherance

of that state of mind, abetted the suicide of the

deceased. The ingredient of mens rea cannot be assumed

to be ostensibly present but has to be visible and

conspicuous. However, what transpires in the present

matter is that both the Trial Court as well as the High

Court never examined whether appellant had the mens rea

for the crime, he is held to have committed. The

conviction of Appellant by the Trial Court as well as

the High Court on the theory that the woman with two

young kids might have committed suicide, possibly

because of the harassment faced by her in the

matrimonial house, is not at all borne out by the

evidence in the case. Testimonies of the PWs do not

show that the wife was unhappy because of the appellant

and she was forced to take such a step on his account.

16. The necessary ingredients for the offence under

section 306 IPC was considered in the case SS Chheena

Vs. Vijay Kumar Mahajan (2010) 12 SCC 190

 where explaining the concept of abetment,

 Justice Dalveer Bhandari wrote as under:-

“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 IPC 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.”

17. While dealing with a case of abetment of suicide in

Amalendu Pal alias Jhantu vs. State of West

Bengal (2010) 1 SCC 707, 

Dr. Justice M.K. Sharma writing for the

Division Bench explained the parameters of Section 306

IPC in the following terms:

“12. Thus, this 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.

13. 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 IPC.

18. In the case Mangat Ram Vs. State of Haryana

 (2014) 12 SCC 595, which

again was a case of wife’s unnatural death, speaking

for the Division Bench, Justice K.S.P. Radhakrishnanan

rightly observed as under:-

“24. We find it difficult to comprehend the

reasoning of the High Court that “no prudent

man is to commit suicide unless abetted to do

so”. A woman may attempt to commit suicide due

to various reasons, such as, depression,

financial difficulties, disappointment in love,

tired of domestic worries, acute or chronic

ailments and so on and need not be due to

abetment. The reasoning of the High Court that

no prudent man will commit suicide unless

abetted to do so by someone else, is a perverse

reasoning.”



19. Proceeding with the above understanding of the law

and applying the ratios to the facts in the present

case, what is apparent is that no overt act or illegal

omission is seen from the appellant’s side, in taking

due care of his deceased wife. The evidence also does

not indicate that the deceased faced persistent

harassment from her husband. Nothing to this effect is

testified by the parents or any of the other

prosecution witnesses. The Trial Court and the High

Court speculated on the unnatural death and without any

evidence concluded only through conjectures, that the

appellant is guilty of abetting the suicide of his

wife.

20. In such circumstances, we have no hesitation in

declaring that the Trial Court and the High Court erred

in concluding that the deceased was driven to commit

suicide, by the circumstances or atmosphere in the

matrimonial home. This is nothing more than an

inference, without any material support. Therefore, the

same cannot be the basis for sustaining conviction of

the appellant, under section 306 of the IPC.

21. In view of the foregoing, we are persuaded to

conclude that the decisions under challenge cannot be

legally sustained. Consequently, interfering with the

impugned judgment of the High Court and the Trial

Court, the appellant’s conviction under Section 306 IPC

is set aside and quashed. The appeal is accordingly,

allowed.

……………………………………………J.

[N.V. RAMANA]

……………………………………………J.

[SURYA KANT]

……………………………………………J.

[HRISHIKESH ROY]

NEW DELHI

OCTOBER 1, 2020


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