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CASE NO.: Appeal (crl.)  1464 of 2007

PETITIONER: Sohan Raj Sharma

RESPONDENT: State of Haryana

DATE OF JUDGMENT: 07/04/2008

BENCH: DR. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: JUDGMENT REPORTABLE

CRIMINAL APPEAL NO.1464 OF 2007

Dr. ARIJIT PASAYAT, J.

1.      Challenge in this appeal is to the order passed by a  learned Single Judge of the Punjab and Haryana High Court  upholding appellant’s conviction for offence punishable under  Section 306 of the Indian Penal Code, 1860 (in short ’IPC’) and  sentence of 7 years RI.   2.      Background facts in a nutshell are as follows:         First Information Report lodged by Shri Rajiv Lochan  Jain (PW4) was to the effect that Jyoti (hereinafter referred to  as the ’deceased’) had written in her letter that her husband  Sohan Raj Sharma the accused-appellant was torturing him  for sex in many different ways, mostly pervert and tired of the  same, she had poisoned her children, and had consumed  poison herself. The FIR is further to the effect that appellant- Sohan Raj Sharma, because of the circumstances, had  compelled Jyoti to consume poison.  The first endorsement of  the Investigating Officer ASI Rohtash Singh (PW10) on the  statement Ex.PL of Shri Rajiv Lochan Jain (PW4) is Ex.PL/1  and it is to the effect that on his reaching B.K. Hospital  Faridabad alongwith other police officials, Shri Rajiv Lochan  Jain had handed him over one letter (Ex.PX ) of eight pages  which was taken into possession of the police vide memo  Ex.PM and from the statement of Shri Rajiv Lochan Jain and  the letter produced by him, the allegations of commission of  offences punishable under Section 306 IPC on the part of the  Sohan Raj Sharma were made out.  Statement Ex. PL/1, the  statement Ex. PL alongwith endorsement Ex.PL/1 was sent to  the police station for registration of the case on which formal  FIR was recorded.  During investigation, the incriminating  evidence in the form of medical evidence regarding death of  Jyoti, Pinki and Gudiya having been caused due to  consumption of poison surfaced.  Further the report regarding  letter (Ex.PX) and other oral evidence of the witnesses  regarding circumstances connected with the occurrence were  collected. Accused Sohan Raj Sharma was put on trial for  offence punishable u/s 306 IPC, he was challaned by the  police and was committed to the court of Sessions for trial by  the Illaqa Magistrate.           3.      Prosecution examined 11 witnesses and exhibited several

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documents.  Most vital one is purported suicide note Ex.PX.   Appellant took the stand during examination under Section  313 of the Code of Criminal Procedure, 1973 (in for ’Code’)  that she was never married to the deceased officially.  It also  alleged that she was a lesbian and in proof of this stand,  one  Anita Parmar was examined as DW1. The Trial Court found  the contents of Ex.PX satisfied ingredients of Section 306 IPC.   Accordingly, the appellant was found guilty and convicted and  sentenced as aforesaid.   

4.      In appeal before the High Court, the stand taken before  the Trial Court that ingredients of Section 306 IPC have not  been fulfilled was reiterated. Stand of the prosecution was that  the ingredients have been established.               

5.      The High Court found that Ex.PX was sufficient to show  as to what was the reason for deceased committing suicide.

6.      Learned counsel for the appellant submitted that letter  Ex.PX in no way establishes that the appellant had abeted the  suicide. As a matter of fact, the fact that the deceased took the  lives of two innocent children and then committed suicide  without any doubt establishes that she was mentally  unsound.  The letter at the most describes the accused as a  sexual pervert, but his behaviour, if any, cannot be taken to  be an act of abeting the suicide.  It is pointed out that in Ex Px  she has clearly stated that she wanted to take appellants’ life.                 7.      Learned counsel for the respondents-State on the other  hand supported the judgment of the courts below.                                                                                   Section 306 IPC deals with abetment of suicide.  The said  provision reads as follows:

"306 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."  

8.      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 it required before a person can be  said to be abetting the commission of offence under Section  306 of IPC.

9.      In State of West Bengal v. Orilal Jaiswal (AIR 1994 SC  1418) 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 her 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

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suicide should be found guilty.        10.     Section 107 IPC defines abetment of a thing. The offence  of abetment is a separate and distinct offence provided in the  Act as an offence. A person, abets the doing of a thing when (1)  he instigates any person to do that thing; or (2) engages with  one or more other persons in any conspiracy for the doing of  that thing; or (3) intentionally aids, by act or illegal omission,  the doing of that thing. These things are essential to complete  abetment as a crime. The word "instigate" literally means to  provoke, incite, urge on or bring about by persuasion to do  any thing. The abetment may be by instigation, conspiracy or  intentional aid, as provided in the three clauses of Section  107. Section 109 provides that if the act abetted is committed  in consequence of abetment and there is no provision for the  punishment of such abetment, then the offender is to be  punished with the punishment provided for the original  offence. ’Abetted’ in Section 109 means the specific offence  abetted. Therefore, the offence for the abetment of which a  person is charged with the abetment is normally linked with  the proved offence

11.     In cases of alleged abetment of suicide there must be  proof of direct or indirect acts of incitement to the commission  of suicide.  The mere fact that the husband treated the  deceased-wife with cruelty is not enough. [See Mahinder Singh  v. State of M.P. (1995 AIR SCW 4570)].

12.     When the factual scenario is examined, it is clear that the  accused has been described as a sexual pervert and that he  had behaved like an animal and the deceased had tolerated  the insulting manner in which he behaved. They were married  in court.  It was stated that the accused was impotent and he  was trying to defame the deceased for having relationship with  ladies.  

13.     The most significant part of the letter the deceased had  written is as follows:               

"I desired to kill you alongwith us but no, if  you have any sense of shame you will die as a  result of the sequence of events. But it do not  make any difference for shameless person  because these abuses will sound as correct if  you realize your capacity.  You have not spent  even eight days in a period of eight years in  peace with me. You yourself are responsible for  death of these children.  Flowers had been  prayed for from the deities of your family  regarding whom you disclosed "they are not  mine they are with me from my friend.  (girl  friend) on, you, the condemned the day  children will be born as a result of co- habitation of a woman with woman, a woman   will stop giving birth to man like you."                                    (Underlined for emphasis)   14.     Above being the factual scenario, it cannot be said that  the ingredients of Section 306 IPC have been established.  Therefore, the conviction as recorded cannot be maintained.   The order of the High Court is set aside.  The appellant be  released forthwith unless required in connection with other

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case.