Friday 17 September 2021

Whether an offence of Abetment of suicide By Instigation Depends On Intention Of Accused or Victim's Actions?

 The note is scribed by the deceased few hours before

she took the extreme step and is an expression of despair and her

anguish; it reflect her desperation and pain.

She is a girl in formative years and her writing give an

impression that she feel trapped. It is possible that any other girl

in similar circumstances would have responded to the situation in a different way, but as stated above, the applicant was her own

uncle and considering the close association of the family with

him, there was an absolute inhibition on her part to blame him

and embroil him in accusation. The screen shots from the mobile

make it apparent that the applicant was harassing the deceased

and inspite of her strong protest, was seeking something from her, leaving her in a despondent state.

12 The accepted legal position being to the effect that

the word ‘instigation’ is to goad, urge, forward, provoke, incite or

encourage to do an act. However, to satisfy the requirement of

instigation, though it is necessary that the actual words must be

used to that effect, but what constitutes instigation must

necessarily and specifically be suggestive of the consequences.

The position of law which emerges from the authoritative

pronouncements is that a reasonable certainty to incite, the

consequences must be capable of being spelt out. The offence of

abetment by instigation depends upon the intention of the person

who abets and not upon the act which is done by the person who

was abetted.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL BAIL APPLICATION NO. 2687 OF 2021

Gaurav  Sopan Narkhede Vs  The State of Maharashtra 

CORAM: BHARATI DANGRE, J.

DATED : 1st SEPTEMBER, 2021


1 C.R.No. 666 of 2020 registered with Bhosari police

station, Pune depict a woeful and a dismal picture, when on 6th

September 2020, a young girl, aged 17 years jumped from the

balcony of a flat located on 4th floor of a high rise building,

succumbed to injuries sustained on account of the said fall on 17th

October 2020 in a private hospital. The body of the girl was

handed over to her relatives and the last rites were performed.

2 After 96 days of the incident, a complaint came to be

lodged with Bhosari police station by the mother of the girl

against the present applicant, attributing to him that he has

abetted a commission of suicide by her daughter on the fateful

day.

The informant recount that her daughter was

pursuing her education in 12th Std and in the month of April

2018, after her Board examination, she had visited the applicant,

the cousin brother of her husband, at Aurangabad.

Before 7 to 8 months, her daughter informed her that

the applicant texted her messages of Good Night, etc, late in the

night, upon which she confronted him and responded by saying

that he was just messaging.

3 An hapless incident dated 6th September 2020 is

narrated by the mother, when she along with her other daughter

was present in the house at 11.30 p.m. She received a message

from friend of her daughter on WhatsApp inquiring who was the

Applicant and she clarified the relationship. In turn, she received

a message that whether she is aware that he is forwarding dirty

messages to her daughter. The informant, thereupon, entered

the bedroom of her daughter and pointedly asked her about the

messages forwarded by the applicant, upon which the girl handed

over her mobile to the mother and asked herself to have a look.

On not finding the messages and on persisting that she should

reply, she went into the mobile gallery and opened a folder in the

caption “S.S” and told her to have look at it and she barged out of

the room. On inspecting, screen shots were found in the mobile

phone and immediately, by keeping mobile on the bed, the

Informant followed her daughter, who by that time, jumped from

the gallery of other bedroom. On realizing the severity of the

shocking incident, the informant became unconscious and she

was informed that her daughter was taken to the hospital. The

informant recollect that in the hospital, her daughter was little

conscious and on being inquired as to why did she take the

extreme step, she murmered that because of “Gaurav uncle”. She

did not utter anything further and was administered treatment in

the hospital.

4 The informant state that while admitting her

daughter in the hospital, it was informed that she had fallen out

of the gallery while taking out the towel. On 7th September 2020,

when she was arranging things in the house, on dressing table of

her daughter, she found a scrap of paper with a hand written note

on which her daughter had scribed for her. On reading this, she

confronted the applicant, who denied to have done any wrong

and expressed that he would visit her but the informant refused to

accept him at her house. She informed about the said note to her

husband and preserved the same. Thereafter, the family became

busy in treating their daughter who breathed her last on 17th

October 2020. The entire family was in grief and they visited

their native place. The applicant, being in their close relation and

since he was a powerful person, the family mused whether

complaint should be lodged against him, but ultimately was

convinced that they should proceed against the applicant, and

therefore, by remaining present at the police station, the

complaint was lodged and the chit/note written by the deceased

was handed over to the police.

This resulted in registration of the subject C.R,

invoking Sections 306, 354A, 354-B of the IPC and Section 4

and 8 of the POCSO Act.

5 The chit came to be seized during investigation along

with the mobile of the deceased. The chit was written on a page

in the notebook where the deceased had scribed as under :-

“Mummy, I have not told you about one person, Gaurav

Uncle in our house. For no reason, he often come close to

me and attempted to touch my private parts. I concealed

the same from you, but that was my mistake. I kept mum

because I thought if I disclose it to you, it would result into

quibble. However, he messaged me. Before one week, he

was talking to me about bad things. The screen shots of

the said message are stored in my mobile in the folder ‘SS’.

On receipt of the message, I have blocked him, but

yesterday night, he texted me. I was unable to understand

what should I do and how should I disclose it. After you

come to know about this, please do not quarrel and let the

things continue to remain as they are. You and Papa

should not fight. Bye…. Take care ….. Because even if I

blocked him on the mobile, I will have to face him some

day. I carry no feelings for him in my mind, still he said so

and further Kaki narrating it to aunt and no matter how

much I tolerate, I will be blamed”

6 The mobile phone with a Jio Sim card is also seized

by panchnama dated 11th December 2020 and ‘SS’ folder in the

mobile phone is found to contain 9 screen shot images. The first

is the screen shot of Instagram Page where the name of the

applicant is mentioned, second image is again a screen shot of

Instagram Page where the photographs of the deceased is on the

top and below it, the applicant had typed a message “You are

looking very hot”. The third message is on Whatsapp by the

applicant “Bolaychch aahe ektyat tujhasobat”. (want to talk to you

in Private). Fourth message is from the deceased ‘nahi, tumhi

maje kaka ahe in place of my dad” (No, You are my uncle and like

my Dad). This is responded by the applicant “U Chat clear kar”

(clear chat). In the last screen shot, the applicant has deleted the

message. The text message in the phone also reveal that from the

applicant, a message is received on 5th September 2020 as ‘Good

Night” and below that, the deceased has typed “Mala nahi

bolaycha tyanchya sobat, kalat nahi ka tumhala” (I do not want to

talk to you, why don’t you understand)

7 The version of Informant is that the deceased had

visited the applicant in April 2018 and at that time, her sister-in-law

had disclosed to her that the applicant’s wife had told her that

the deceased was constantly chatting with someone and

exchanging messages but when the informant inquired, she did

not respond. However, after that, as per the chits scribed by the

deceased, he attempted to manipulate her, but she did not

disclose it either to her mother nor to anyone and the reason is

apparent that the applicant is her Uncle.

During investigation, the prosecution has recorded

statements of the friend of the deceased who corroborate the

informant on the aspect that he had apprised her about the dirty

messages being forwarded by the applicant to the deceased. The

said witness is a close friend of the deceased and she had spoken

to him about the applicant and his ill-intentions when he

attempted to touch her private part when she visited his place in

vacation. He narrated that the deceased had told her that she did

not inform it to her mother because that would have ensued

quarrels in the house. The deceased disclosed to him that he was

messaging her and she was very scared. Since she did not divulge

it to her mother, he forwarded a message to her mother since she

was disturbed by the dirty messages from the applicant.

Statement of the sister of deceased is also compiled in

the charge-sheet, which is in sync with the statement of

informant. Apart from the informant who told that in the

hospital, the deceased had uttered that she had taken the said step

on account of the applicant, statement of two witnesses who are

close relatives of the family are also compiled in the charge-sheet.

8 In the wake of the material compiled in the chargesheet,

learned Senior Counsel Mr.Ponda has advanced his

submissions and according to him, the foremost question is

whether the deceased had committed suicide or she accidentally

fell from the balcony of her house as per the version by her family

members while she was admitted in the hospital.

Describing the step taken by the young girl to be very

unfortunate, the learned senior counsel would argue that for the

said step, how was he responsible. Though not, admitting but

assuming for a moment that he has committed an error in texting

to the girl and that he had crossed his limits, for which at the

most, he can be said to have committed a moral blunder, but the

submission is, if this was attributed to him, why the girl or her

family did not go to the police. The extreme step taken by the

deceased was not the only solution left to her as there were other

ways how the issue could have been sorted out, is his submission.

According to him, as far as the allegation under POCSO are

concerned, they are too stale to be taken cognizance of, and even

prima facie if they are taken at its face value, what is alleged is

only an attempt to touch her private parts, with no such act

actually being indulged into.

By inviting my attention to a catena of decisions

elaborating the position of law, as far as Section 306 of the IPC is

concerned, and in particular latest decision of the Apex Court in

case of Arnab Goswami Vs. State of Maharashtra and ors,

2021(2) SCC 427, the learned senior counsel would submit that

he had no intention or knowledge that the girl will commit

suicide and merely because it is alleged that there was some

harassment or anguish on her part, in absence of any positive act

attributed to him, he cannot be held guilty of abetment to

commit suicide. He would submit that the act of the deceased

will have to be decided by applying the parameters of a prudent

person, but not of an over sensitive one, who has taken the

extreme step for which he cannot be held responsible.

In any case, the submission of the learned counsel is

since the investigation is now complete and the charge-sheet is

filed, his incarceration is unwarranted and he is ready to abide by

any conditions imposed while securing his release.

9 Learned APP has vehemently opposed the said

application and he would focus on the gravity of the accusations

and submit that the applicant is charged with a serious offence

under the IPC which is punishable with Imprisonment which

may extend to 10 years and also offence punishable under the

POCSO Act, 2012.


10 The legal position which could be discerned from the

authoritative pronouncements being not in doubt, I have perused

the material compiled in the charge-sheet. The deceased is a

young girl in her adolescence and impressionable age, and here is

the case of this girl who is hesitant to disclose about the ill intentions

of the applicant, who is her own uncle. This factor

distinguishes the present case since it revolve around an intimate

relationship with her own uncle, which posed a barrier for the

victim girl to report of the said incident to anyone in the family,

but she chose to disclose it to her close friend. The chit which is

scribed by the deceased referred to a message and screen shots of

which is found in the mobile phone. From the screen shots, it is

evident that on 5th September 2020, a message is forwarded by

the applicant which is responded by the deceased by typing that

she was not interested in talking to him. The unhappy tone was

set in the night of 5th September 2020 and in the note which is

scribed, the deceased has opened her mind to her mother where

she talk about his ill-deeds and also offered explanation as to why

she concealed it from her mother. She categorically state that

though she blocked him in the night, he had text the message.

Though Mr.Ponda has vehemently argued that from

this note, it cannot be discerned that the girl is going to commit

suicide, I am unable to agree with the said submission. It is

evident that this note is scribed by the girl after the message was

received by her on 5th September 2020 and after she responded to

the message. In the said chit/note, she expressed her helplessness

about his manifest intentions and she has also written that before

one week, he indulged in dirty talks. The said note is concluded

by bidding adieu. She also expressed her helplessness since she is

apprehensive that even if she has blocked him, she will again have

to face him and will have to take the blame though, she had no

feeling in her mind.

11 The note is scribed by the deceased few hours before

she took the extreme step and is an expression of despair and her

anguish; it reflect her desperation and pain.

She is a girl in formative years and her writing give an

impression that she feel trapped. It is possible that any other girl

in similar circumstances would have responded to the situation in

a different way, but as stated above, the applicant was her own

uncle and considering the close association of the family with

him, there was an absolute inhibition on her part to blame him

and embroil him in accusation. The screen shots from the mobile

make it apparent that the applicant was harassing the deceased

and inspite of her strong protest, was seeking something from her, leaving her in a despondent state.

12 The accepted legal position being to the effect that

the word ‘instigation’ is to goad, urge, forward, provoke, incite or

encourage to do an act. However, to satisfy the requirement of

instigation, though it is necessary that the actual words must be

used to that effect, but what constitutes instigation must

necessarily and specifically be suggestive of the consequences.

The position of law which emerges from the authoritative

pronouncements is that a reasonable certainty to incite, the

consequences must be capable of being spelt out. The offence of

abetment by instigation depends upon the intention of the person

who abets and not upon the act which is done by the person who

was abetted. True it is, that abetment as contemplated under

Section 107 of the IPC, may be by instigation, conspiracy or

intentional aid and the words uttered in feet of anger or omission

without any intention being attributed cannot be termed as

instigation.

However, instigation has to be gathered from the

circumstances of a particular case and no straight jacket formula can be laid down, to find out as to whether in a particular case, there was instigation which forced the person to commit suicide. In a particular case, it is possible that there may not be direct evidence in regard to instigation which may bear a direct nexus to suicide.

In such circumstances, inference will have to be drawn from the

surrounding circumstances and it will have to be ascertained

whether circumstances had been such which in fact had created a situation that a person felt totally frustrated and committed

suicide.


13 The present case is of a young teenage girl, who felt

cornered by the conduct and demeanor of her own uncle, which

was unexpected since she held him on a high pedestal as her own

father and was unable to vent her anguish on account of the close

proximity of the family with that of the applicant. She suffered

the consequences mutely for a year or so. From the note, it is

apparent that her harassment continued and the message of Good Night do not appear to be a solitary and innocuous one, out of isolation, but since the learned APP has made a statement that the mobile phone was empty barring the screen shots saved in one folder, the possibility cannot be ruled out that the deceased

suffered such harassment through various calls and text messages.

The mobile phone has been forwarded for analysis and when its

report is obtained, the picture would become clear since it is

possible to retrieve the entire data including chats from it.

14 Sexual violence know no boundaries. It occurs in

every country, across all parts of society.

A child may be subjected to sexual abuse or

exploitation at home too. The widespread use of digital

technology can also put children at risk. At times, the abuse

occurs at the hands of someone a child knows and trusts. Any

form of sexual violence result in severe physical, psychological

harm. Unfortunately, we have not been able to create an

atmosphere in the Society where Parents, teachers and adults in


company of the child can identify signs of abuse and make sure

children receive care and protection.

For the deceased, who was not an adult, but a child,

her adolescent years were shaped by horrowing experience that

left her with irreversible and irreparable memories. The fear of

stigma, not being believed and being blamed, found her in

precarious situation, left her isolated and insecure and which

persuaded her to end her life.

15 In the nature of accusation, the applicant who is a

matured, married man, do not deserve his liberty. Another reason

to deny his release is his close proximity with the family of the

deceased and there is every likelihood that on his release, the

applicant may pressurize the prosecution witnesses and tamper

with the case of the prosecution.

16 For the aforesaid reasons, Application is rejected.

SMT. BHARATI DANGRE, J


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