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Brij Lal and anr. Vs. State (Delhi Admn.) - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberCriminal Revision No. 326/83
Reported in1984(2)Crimes987; 27(1985)DLT356; 1985(8)DRJ322
ActsIndian Penal Code (IPC), 1860 - Sections 34 and 306
AppellantBrij Lal and anr.
RespondentState (Delhi Admn.)
Appellant AdvocateK.K. Sud adn; R. Chauhan, Advs
Respondent Advocate Bharti Anand, Adv.
DispositionPetition allowed
Cases ReferredState of Bihar v. Ranen Nath and Ors.
indian penal code, 1860 - section 306/34--abetment of suicide--deceased living with her son and daughter-in-law for the last ten years died of self immolation. son & daughter-in-law charged for abetting suicide by ill-treatment, neglect, humiliation and suggestion that the deceased should die by drowning. two conflicting dying declarations. the accused were discharged in absence of evidence as to the course of conduct of the accused persons before or after the death of the deceased. - - kanta wife of brij lal her son was also calling her all sort of bad words, not giving her food and also giving all sorts of troubles, her son also used to give her bad words at the instance of her daughter-in-law smt. 350, and a decision of the punjab and.....h.l. anand, j.1. brij lal and kanta devi, a married couple, challenged in revision the order of the trial court directing that a charge be framed against them for an offence under section 306 read with section 34 indian penal code, of abetment of suicide by durga devi, mother of brij lal. the victim died of self-immolation and the petitioners we're sent up for trial, on the basis of two dying declarations, on the allegations that the petitioners were guilty of 'abetting' suicide by 'ill-treatment', 'neglect', 'humiliation'' and even a suggestion that she should 'die by drowning in yamuna'. it is an unusual case of mother-in-law having been allegedly driven to put an end to her life on account of maltreatment by the son and the daughter-in-law'. it is, in a sense, a case of 'reverse'.....

H.L. Anand, J.

1. Brij Lal and Kanta Devi, a married couple, challenged in revision the order of the trial court directing that a charge be framed against them for an offence under Section 306 read with Section 34 Indian Penal Code, of abetment of suicide by Durga Devi, mother of Brij Lal. The Victim died of self-immolation and the petitioners we're sent up for trial, on the basis of two dying declarations, on the allegations that the petitioners Were guilty of 'abetting' suicide by 'ill-treatment', 'neglect', 'humiliation'' and even a suggestion that she should 'die by drowning in Yamuna'. It is an unusual case of mother-in-law having been allegedly driven to put an end to her life on account of maltreatment by the son and the daughter-in-law'. It is, in a sense, a case of 'reverse' maltreatment of a mother-in-law in which the son allegedly colluded or actively participated.

2. Durga Devi was living with the couple. She was 64 years of age. On February 12, 1983, she committed suicide. The couple must have been married more than 10 years ago because, according to one of the two decla-rations, the victim had been living with them for the 'last 10 years'. Durga Devi, who died in hospital on the morning of February 14, 1983 had made two dying declarations. She is alleged to have set fire to her clothes at about 2:30 A.M. She was in the hospital by 4 a.m. The first declaration was made before the attending doctor and was attested by a Sub-Inspector of Police. It was recorded in Hindi. There is no mention of the time but it must have been recorded between 4 a.m. and 8.55 a.m. on the date of the incident. This is how its free English translation runs :--

'I state that I live on the above address. My younger son Brij Lal also lives there with me. Today at about 2.30 A.M. while lightening 'JYOTI' for Hanuman worship 1 set myself to fire with the match stick as I was in great trouble. My daughter-in-law Kanta Devi used to trouble one and two days before I even had a quarrel with her and I had left the home. I again came back home and in the night I told everyone in the family that I should be given Rs. 200/- for my expenses as I needed the same. Nobody gave me the money and my son Brij Lal asked me to leave his house. On account of being fed up I set myself to fire in the night as my daughter-in-law was not giving me milk and tea. I was in great trouble and they used to say that I should die.

The second was made again while in hospital, at 8.55 A.M. on the same day. This was recorded by a Sub Divisional Magistrate, who happened to be an Assamese. The S.D M couldn't have recorded it in Hindi, and the victim was illiterate and knew no English. This declaration was, thereforee, recorded in English. This is how it runs :--

'Smt. Durga Devi has stated in her declaration that her daughter-in-law Smt. Kanta wife of Brij Lal her son was also calling her all sort of bad words, not giving her food and also giving all sorts of troubles, her son also used to give her bad words at the instance of her daughter-in-law Smt. Kanta told her to die by drowning in Yamuna and she was told to open the Trunk of Smt. Durga Devi and to give the money in the presence of elder son.

As her daughter-in-law was not behaving properly and she could not spare anyone. 'She herself put the match stick on the quilt and burnt. She was living with her son Brij Lal for the last 10 years and she was being harassed by her daughter-in-law and her son for the last two years. Kanta had told many thing but I could not remember. She has got nothing to say'.

In the trial court, the couple sought discharge on the ground that, on the dying declarations, the only material on which thigh they had been sent up for trial framing of charge was not justified as there was no material to show any abetment by way of 'instigation', 'illegal omission', 'persuasion' or 'any consistent course of torture', neglect or harassment', which could be said to have driven her to take her own life. It was also urged that the victim was in an 'advanced age' and committed suicide either because of 'incompatibility' between her and the daughter-in-law, or because of 'minor domestic bickering' for which charge of abetment to suicide could not be foisted on the petitioners. Even false implication of the couple out of 'spite' was not ruled out. Reliance was placed on a judgment of Aggarvval, J. in Criminal Misc. 249/81, since reported 1983 C C.C. 350, and a decision of the Punjab and Haryana High Court in the case of Raj Kumar . The trial court turned down the plea distinguishing the aforesaid cases and observed that the victim had stated in her dying declaration that she had been 'instigated by her son and daughter-in-law to die and it could not, thereforee, be said that the ingredients of Section 107 Indian Penal Codewas not satisfied.' It was further observed that, according to the allegations,'the son and daughter-in-law provoked, excited Durga Devi to go and die,'and that 'it amounts to instigation fully covered under clause firstly of Section 107 Indian Penal Code'. It was further observed that at the stage ofcharge, the Court was not concerned with the 'truthfulness, veracity andeffect of the dying declaration' and was not required 'to go in detail andweigh in a sensitive manner the facts of the case and also consider that ifthose facts are proved that they would be incompatible with the innocence ofthe accused or not'. It was further observed that, at that stage, the court wasnot concerned if there was 'sufficient ground for conviction', and held that aprima facie case was made out 'from the bare reading of dying declarations.'

3. I have heard learned counsel for the petitioners and the Administration. On the rival contentions, following 4 questions arise :

1. What are the ingredients of the offence of abetment of suicide under Section 306 of the Indian Penal Code, read with Section 107 and 108 of the Indian Penal Code ?

2. Could it be said that, on the two dying declarations, framing ofcharge was justified ?

3. Whether in ordering framing of charge, the Court below has committed any illegality or, irregularity in the exercise of its jurisdiction ?

4. Whether on the facts and circumstances of the case, this Court's interference in revision would be justified ?

4. Abetment of suicide is made punishable by Section 306 which provides that 'if any person commits suicide, whoever abets the commission assuch suicide, shall be punished.' The section doesnot define the expression' 'abet', nor is the expression defined in Chapter IIof the Code, which deals with the general Explanationns'. However, ChapterV of the Code incorporates an elaborate treatment of 'abetment'. Section107 in this Chapter defines 'abetment of a thing', while Section 108 definesthe expression 'abettor'. This is how these sections run :

Section 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 I.--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.

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 facilitates the commission thereof, is said to aid the doing of that act.'

Section 108--Abettor---

'A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.

Explanation 1.--The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act.

Explanation 2.--To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused,

Explanation 3.--It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, of any guilty intention or knowledge.

Explanation 4.--The abetment of an offence being an offence, the abetment also an offence,

Explanation 5.--It is not necessary to the commission of the offence of abetment by conspiracy than the abettor should concern the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed.'

5. As the expressions 'abetment' and 'abettor' have been legislatively defined, the ordinary dictionary meaning of the expressions would not be determinative of their import. It may, however, be useful to have a look at the dictionary meaning of the expression 'abet'. According to Webster, Webster's Third New International Dictionary Vol. I, the expression 'abet', weans to incite, encourage instigate, or countenance--now usually used disparagingly According to Wharton, Whartone's Law Lexicon, 14th ed., 'abet' means to stir up or excite, to maintain or patronize : to encourage or set on and the 'abettor' is an instigator or setter on, one who promotes or procures a crime to be committed. Stroud, Stroud's Judicial Dictionary, 4th ed., has given various meanings of the expression 'aid' or 'abet', based on judicial pronouncements in England, in the context of different stautes. Thus, according to Hawkins 51 L J.M.C. 78--R. v. Coney, J., 'To constitute an aider or abettor, some active steps must be taken, by word or action, with intent to instigate the principal or principals. Encouragement does not, of necessity, amount to aiding and abetting. It may be intentional or unintentional. A man may unwillingly encourage another in fact by his presence, bymisinterpreted gestures, or by his silence or non-interference--or he may encourage intentionally by expressions, gestures, or actions, intended to signify approval. In the latter case, he aids and abels; in the former he does not.' Stroud also cites the case of Du Cros v. Lambourne 1907 (1) KB. 40, in which it was held that 'the owner in, and in control of, a motor car which is being driven at an improper speed by a driver who is not his servant, 'aids or abets' in the offence if he (the owner) does not interfere.' It is further noticed on the basis of decision in the case of Rubie v. Faulkner 1980 (1) K.B. 571 : 'For a supervisor of a learner driver to see that an unlawful act is about to be done and to fail to prevent it is he can is for him to aid and abet.' It is further noticed, on the authority of the decision in the case of Callow v. Tillatone 83 L.T. 411, that 'A man does not by negligence aid and abet a person to expose unsound meat for sale.' It is further noticed, on the basis of the decision in the case of Ackroyds Air Travel v. Director of Police Prosecutions 1950 (1) All. E.R. 933 and Thomas v. Lindop 1950 (1) All. E.R. 966, that 'If a person knows all the circumstances which constitute the offence he will be guilty of aiding and abetting whether he knew that they did in fact constitute the offence or not' Stroud also quotes Lord Goddard C J. in Ferguson. Weaving 1951 (1) K.B. 814, that 'it is well know that the words 'aid and abet are apt to describe the action of a person who is present at the time of the commission of an offence and takes some part therein.'

6. It may be useful to refer to some of the early English decisions dealing with different ways of taking part in a felony. It was recognised that a felony may be committed by the hand of an 'innocent agent' who, having no blamable intentions in that he did, incurred no criminal liability by doing it. In such case, the man who ''instigates' this agent is the real offender; his was the last means read that preceded the crime, though it did not cause it 'immediately but mediately'. 'Thus, if a physician provides a poisonous draught and tells a nurse that it is the medicine to be administered to her patient, and then by her administration of it the patient is killed, the murderous physician--and not the innocent nurse--is the principal in the first degree Kel. 52 (T.A.C.).' In English Law, as it stood before the later developments, 'a principal in the second degree is one by whom the actual perpetrator of the felony is aided and abetted at the very time when it is committed; for instance, a car-owner sitting beside the chauffeur who kills some one by over-fast driving, or a passenger on a clandestine joy-riding expedition which results in manslaughter 1930 (22) CrI. A R. 70 : 144 L.T. 185, 'or bigamist's second 'wife' if she knows he is committing bigamy, or even be spectators if they actively encourage such a contest even by mere applause. 'But a spectator's presence at a prize-fight does not of itself constitute sufficient encouragement to amount to an aiding and abetting 1882 (8) Q.B.D. 534.' It was also recognised that a man may effectively 'aid and abet' a crime, and at the very moment of its perpetration, without being present at the place where it is perpetrated. 'To be guilty of aiding and abetting, a person must either render effective aid to the principal offender or else must be present and acquiesce in what he is doing. Before a person can be convicted of aiding and abetting the commission of an offence, be must at least know the essential matters which constitute the offence 1951 (1) All. E.R 412.' 'But acquiescence sufficient to constitute the offence may be established by evidence of the accused persons motive and of his subsequentconduct 1951 (1) All. E.R. 464,' In the category of ''accessory before the fact' comes a person who 'procures or advises' one or note of the principals to commit the feJony. This 'requires from him an instigation so active that a person who is merely shown to have acted as the stake-holder for a prize-fight which ended fatally, would not be punishable as an accessory 1875 (2) C.C.R. 147.' 'The fact that a crime has been committed in a manner different from the mode which the accessory had advised will not excuse him from liability for it. But a man who has counseled a crime does not become liable as accessory if instead of any form of the crime suggested, an entirely different offence is committed 1936 (2) All. E.R. 813.' Kenny, Kenny's Outlines of Criminal Law, New ed. by J.W.C. Turner, p. 88, points out that it is not always easy to decide whether or not the crime actually committed comes within the terms of the 'incitement'' so as to make the inciter legally responsible for it. He further observed that the courts in some of the older cases tended to 'take a strict view of the facts' and refers by illustration to the case of R. v. Smolders, Kel. 52 (T.A.C) and Archer in 1578, referred to in Plowderu.

7. For obvious, reasons an act of suicide is not penal even though an unsuccessful attempt at it is punishable. Suicide takes the victim or the perpetrator outside the purview of penal consequences, even though the common law in England at one time endeavored to deter men from this crime by the threat of degradiations to be inflicted upon the 'suicide's corpose', which by a natural, if unreasoning association of ideas, were often a 'potent deterrent', and also by threatening the forfeiture of his goods, a 'vicarious punishment' which though falling wholly upon his surviving family, was likely often to appeal strongly to his sense of affection. Thus the man who feloniously took his own life was at one time 'buried in the highway', with a stake through his body; and his goods were 'forfeited'. The burial of suicides lost its gruesome aspect in 1824 when the original mode was replaced by the practice of burial 'between the hours of nine and twelve at night'', without any service. In 1870, the confiscation of the goods of suicides was put to an end in the general abolition of forfeitures for felony. And in 1882, the statute removed every penalty, except the purely ecclesiastical one that the interment must not be solemnised by a burial service in the full ordinary Anglican form, Kenny's Outlines of Criminal Law, New ed. by J.W.C., Turner, p. 138.

8. Halsbury, Haisbury's Law of England, 4th ed. paras 42 to 44, notices some of the recent English decisions in the matter of classification of offence and complicity in crime. Thus, a person who 'assists the perpetrator at the time of its commission, or if he assists or encourages the perpetrator before its commission, was held liable 1970 (2) Q.B. 54.' According to R.V. Gregory (1867) L R.I. C.C.R. 77 'any person who aids, counsel or procures the commission of an offence, whether an offence at common law or by statute, and whether indictable or summary, is liable to be tried and punished as a principal offender.' Mere presence at the commission of the crime is not enough to create criminal liability, nor is it enough that a person is present with a secret intention to assist the principal should assistance be required. Some encouragement or assistance must have been given to the principal either before or at the time of the commission of the crime with the intentionof furthering its commission. Presence without more may, however, afford some evidence of aid and encouragement. It is an indictable offence at common law for a person to incite or solicit another to commit an offence. For an incitement to be complete, there must be some form of actual communication with a person whom it is intended to incite, where, however, a communication is sent with a view to incite, but does not reach the intended recipient the sender may be guilty of an attempt to incite. Incitement is complete though the mind of the person incited is unaffected and notwithstanding that person incited intends to inform on the inciter ; but there can be no incitement unless one person seeks to persuade or encourage an other Halsbury's Laws of England, Paras 42 to 44.

9. It may be useful to notice some of the Indian decisions on the question of abetment. Among the early cases of abetment of suicide arose out of unfortunate incidents of Sati, which was common in India, at one time. A person who induced the woman to return to the pile after she had once retired from it, and immolated herself, was held to have abetted suicide 3863 (1) R.L.P.J. 174. Where a women prepared to commit suicide in the presence of certain persons who followed her to the pyre, stood by her and one of them told the women to say 'Ram Ram' and 'She would become suttee', the facts were held sufficient to prove the active connivance of these persons and to justify the inference that they had engaged with her in a conspiracy to commit suicide 1871 (3) N.W.P. 316; (1933) A.L.J.R. 7, Where the accused prepared the funeral pyre, placed the victim's husband's body over it, and did not use any force to prevent her from sitting on the pyre and supplied her with ghee which she poured over the pyree and guilty of abetment of suicide. Where a Hindu women was burnt in the act of becoming suttee, those who assisted her in making her toilet, those who help up the screen for her, took her ornaments, supervised the cutting of her nails and the dying of her feet, prepared the pyre on which she stated herself and put the corpse upon the pyre, were all held guilty of abetment of suicide. The defense that the abettors were in fact 'expecting a miracle and did not anticipate that the pyre would be ignited by human agency was rejected 1928 (8) Pat 74, Similarly, where the accused, who were members of a crowed, who had joined the funeral procession from the house of the victim to the cremation ground, and were shouting 'Sati Mata Ki Jai' it was held that all those persons, who joined the procession were aiding the widow in committing suttee and were guilty of an offence under Section 306 of the Penal Code .

10. Some later decisions arising out of other instances of instigation throw further light on the question. In the case of Parimal Chatterjee and others : AIR1932Cal760 , a Division Bench of the Calcutta High Court observed that the word 'instigate' literally means to goad or urge forward or to provoke, incite, urge or encourage to do an act. A person may however not only instigate another, but he may co-operate with him and his Co-operation may consist of counsel or conjoint action and that in either case, there was an abetment. In the case of State of Bihar v. Ranen Nath and Ors. : AIR1958Pat259 , a Division Bench of the Patna High Court was construing Section 27 of the Industrial Disputes Act which uses the expressions 'Instigation and incitement' and observed that the words 'should beread to signify something deeper than a mere asking of a person to do a particular act. There must be something in the nature of solicitation to constitute instigation or incitement' and it was held hat the words seem to convey the meaning 'to goad or urge forward or to provoke or encourage the doing of an act.' It was further observed that what acts should amount to instigation or incitement within the meaning of that section will depend upon the 'particular facts of each case', and that in some circumstances a 'throw of a finger' or 'a mere turning of the eye' may give rise to an inference of either 'incitement or instigation', and yet in others even 'strong words, expressly used, may not mean that the person using them was stimulating or suggesting to anyone to do a particular act.' The court expressed the view that there must be something 'tangible' in evidence to show that the persons responsible for such action were 'deliberately trying to stir up other persons to bring about a certain object'. According to a division bench of the Calcutta High Court, a person abets the doing of a thing when he or she, inter alia, 'instigates any person to do that thing.' The other modes of abetment, besides instigation, are 'conspiracy and intentional aid'. The word 'instigation' literally means 'to goad or urge forward to do an act.' 'It is something more than co-operation.' The evidence disclosed in this case revealed many circumstances which would show that the mother-in-law 'suggested' to the deceased by her conduct, by her language, direct or indirect, to commit suicide. True, it did not amount to 'express solicitation' but certainly 'her cruel conduct towards young Sumana over the months made the latter suffer mentally'. The series of conduct referred to above amount to 'actively suggesting and stimulating Sumana to commit suicide' and that 'clearly amounts to instigation''. 'There is no doubt that Sumana committed suicide as she was very miserable and as she lost all interest in life on account of callousness apathy and continued hostility even cruelty towards her in her mother-in-law's house where from time to time her sensitive mind was made to think directly and indirectly by the mother-in-law that the only way out for her was to embrace death by committing suicides.' Sumana was subtly and overtly urged and encouraged to choose that course. Law does not require that instigation should be in a particular form. 'The cumulative effect of her conduct, in our view, amounted to instigating Sumana to commit suicide'. The conduct of the mother-in-law specially 'at the time of Sumana's death and immediately thereforee are consistent with such conduct.' The 'callousness' and apathy in that extreme form' amount to more than indifference. In the case of Shri Ram and another, : [1975]2SCR622 , the Supreme Court observed that in order to constitute abetment, the abettor must be shown to have 'intentionally' aided the commission of the crime. 'Mere proof that the crime charged could not have been committed without the interposition of the alleged a better is not enough compliance with the requirements of Section 107'. A person may, for example, 'invite another casually or for a friendly purpose and that may facilitate the murder of the invitee'. But unless the invitation was extended 'with intent to facilitate the commission of the murder', the person inviting cannot be said to have abetted the murder. It is not enough that an act on the part of the alleged abettor 'happens to facilitate the commission of the crime'. 'Intentional aiding and thereforee active complicity is the gist of the offence of abetment under the third paragraph of Section 107'. In the case of Prem Chand, 1978 (6) C.L.R. 224, the Punjab and Haryana High Court was concerned with acharge of abetment of suicide by a wife and it was held that even if it may be assumed that ''the relations were strained' then also 'it is not safe' to convict the appellant for an offence of abetment to commit suicide. Reliance was placed on an earlier decision of that court in the case of Rajinder Pal and another, Crl. Appeal No. 997/64 decided 1-2-65, in. which that court had observed that no case of abetment was made out because there was nothing on the record to show that any of 'the appellants did anything positive to help the deceased in committing the suicide within the meaning of Explanationn 2 of Section 107 of the Penal Code.' Jf someone's son or daughter fails in examination and his parents 'scold him by saying that he or she better drown himself or herself rasher than fail'; or a person does not succeed in obtaining his object and his friends and others 'taunt him by saying be should die rather than live'; and suppose if such a person on such taunting goes and puts an and to his life, surely the person who taunted his could not be said to be responsible for abetment of the commission of that offence. It was further held by the Punjab High Court that the 'subsequent conduct of the accused' was such, which is inconsistent with the charge of instigation. The deceased was of 'peevish nature' and was 'extremely sensitive and she took to heart a petty family quarrel'. Such quarrels do occur in family life. She suffered from depression and had a diseased mind'. She committed suicide on account of her diseased mind and the appellant tried his best to save her but in vain. In the case of Gurdip Kumar 1981 Crl. L.J. N.O.C. 178, it was observed by the Punjab and Haryana High Court that a case of abetment was not made out where suicide was committed by a newly married girl, in tense family atmosphere, due to certain disturbances, no act or illegal omissions having been attributed to husband and parents-in-law and (hat they could not be held guilty because 'She was not taking food and her husband or parents-in-law made no effort to persuade her to take food'. It was held that in the circumstances the victim must be deemed to have 'dropped down as a sensitive girl not able to withstand normal jolts of life.' In the case of Hari Singh 1983 C.L.R. 123, the wife had committed suicide by taking poison. The accused had absconded after alleged occurrence. The prosecution version was that the accused gave 'beating' to his wife and said to her in anger that 'She could die by taking poison if she liked.' It was held that 'this fact by itself could not amount to culpable instigation for commission of suicide'. It was further observed that the beating alleged to have been given also did not amount to abetment to commit suicide. In the case of Gurcharan Singh 1983 C.C.C. 350, Aggarwal, J. of this Court, had held that the fact that the petitioner had 'mal-treated' the wife and thereby 'created circumstances which made the deceased to and her life will n'ot amount to abetment within the meaning of the word 'abetment' as defined in Section 107 of the Indian Penal Code.' This decision was, however, reversed by the Supreme Court Crl. Appeal No. 51/84 decided on 27-1-1984, in appeal on the ground that the High Court 'purported to go into the merits' and quashed the charge. It was held that, 'the court was not justified in quashing the charge'. In the case of Raj Kumar , a Division Bench of the Punjab and Haryana High Court held that third clause of Section 107 envisages 'not a simple omission but an illegal omission.' The omission would be illegal only if what has been omitted to be clone by the accused 'was required under the law to be done by him.' It was further held that where the accused charge with abetting suicide of the wife of the one of them, 'failed to dissuade thelady from committing suicide when she threatened to commit suicide and actually committed suicide by setting fire to her clothes after sprinkling kerosene on them, the accused could not be said to be guilty of illegal omission contemplated by Clause (3)'. It was further held that the 'retort by the accused that the deceased could do what she liked when the deceased threatened to commit suicide if one of the accused, her husband, did not agree to her request, did not amount to instigation.'

11. For a determination of the question if the order of discharge was justified on the material on record, and if this court would be justified in interfering with such an order under its revisional or inherent jurisdiction, it would be necessary to examine the extent to which the trial court could scrutinise the material, at the stage of charge, and as to the legitimate approach of this court, while dealing with an order of discharge.

12. In the case of Ajay Kumar, Cr. R. 145/83 decided on 9-3-1984 and others decided by me on March 9, 1984, I considered the scheme of the various provisions of the Code with regard to the framing of charge in the context of a number of decisions of the Supreme Court : 1979CriLJ1390 , and expressed the view that :

''In dealing with these provisions, as indeed, with different situations both in criminal and civil law, courts have used the expression 'prima facie'. The expression has never been legislatively defined nor ever made part of a legislative mandate, and for obvious reasons. The attempt to define the expression judicially have often proved futile and have perhaps made confusion a little more confounded. It has been like the proverbial problem of defining obscenity: 'You do not know what if is, but you know when you see it.' The order tests laid down by Courts, though fairly well articulated, have also, presented quite a few difficulties. Various expressions have been used : 'Suspicion', 'strong suspicion', 'sifting and weighing' of material and words of caution have been used to warn the courts against 'meticulous' examination of the material or ''weighing the material in a fine scale'. The distinguishing line between some of these test is rather thin and at times almost indiscernible. The application of the tests have presented difficulties, if they have not altogether failed. That is why all the tests and up with the well known judicial cautions 'Facts of each Case', and thus completing the full circle, leaving the courts at lower levels back to square one, deciding matters on their haunches, if not surmises and conjectures.

It would also be necessary to clear the ground as to the limitation on the powers of this Court, if any, while dealing with an order of discharge, either in exercise of its revisional jurisdiction or that of its inherent jurisdiction, or as to the circumstances in which this Court could or should interfere in an order of discharge made bythe trial court. Learned counsel for the respondents relied on a number of cases, to reinforce their contention that the revisional power of this court should be sparingly used and that in dealing with an order of discharge on its revisional side, the court would not, as if sitting in appeal, substitute its conclusion for that of the trial court. Section 227 of the Code provides that if the trial court considers that there is not sufficient ground for proceedings against the accused, 'he shall discharge the accused and record his reasons for so doing'. As was observed by the Supreme Court in the case of Muniswami the object of the provisions, which requires the trial court to record his reasons, is 'to enable the superior court to examine the correctness of the reasons', for which the court held that there is or is not sufficient ground for proceeding against the accused. The High Court was, thereforee entitled 'to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case. Section 397 empowers this Court to call for an examine the record of any proceeding for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court'. Section 482 of Code saves the inherent powers of this Court 'to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice'. Neither of the two provisions contains any words of limitation. The judicially evolved principles to regulate the exercise of jurisdiction are not intended to fetter the power of this Court under any of these provisions. The true test for the exercise of power is if such an exercise is in the interest of justice. In the exercise of this power, this Court would be entitled to quash the proceeding if it comes to the conclusion that allowing the proceedings to continue would be an abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed. These powers are intended to achieve a salutary public purpose which is that a Court proceeding ought not to be permitted to degenerate into a weapon of harassment or prosecution. While it is undoubtedly in the interest of justice that if there is not sufficient ground for proceeding against a person, he shall be discharged, it is equally in the interest of justice that such a person should not be discharged if there is ground presuming that he has committed an offence. That is the true test. Whether in a particular case, the court would interfere with an order of discharge or not, would depend on the 'facts of each case' and it is neither proper not possible to lay down any rule of universal application nor to encase the jurisdiction within the strait-jacket of a rigid formula. It is, however, good to bear in mind the basic parameters in regulating the exercise of this jurisdiction. That an innocent person should not be subjected to the oppression and indignity of a trial is one of these. That a personwho deserves to be proceeded against should not be left off at the threshold is the other Courts have far too long shed tears for those sent up for trial, as indeed, the convicts, inter alia, with a view to ensure fair trial, strict, observance of procedural safeguards and humane conditions at the place of the trial and of detention. In a breeder sense, any one charged with the commission of an offence, as indeed, this dependents, are victims of the crime that he may have perpetrated but in dealing with crime, courts have not always shown enough concern for the other victims of the crime, as indeed, the larger public interest that crime is effectively detected and adequately punished. These are the other parameters.'

13. The problem of life and death has for generations engaged the mind of the lay and learned alike. It is enigmatic and baffling. Is death the end of life or its real beginning? The question has been answered differently. Different people have reacted differently to the problem Millions have lived or at least tried to live what they considered to be fully because life must come to an end. Others have failed to live well for fear of death. Yet there are others who believe life which is meant for higher pursuits has been wasted in 'mere living'. Death is inevitable yet mortals behave as if they were immortals. But even if death is inevitable, very few people are prepared to face it. We all try to escape it. We do not even recognise its inevitability. That seems to be clear from normal human actions and behavior. But there may be those who may live in the hope of 'dying in dignity'. That is what philosophy is all about. Death by choice is, however, rare That is the privilege of self-realized souls or perhaps great philosophers. Death by choice in such cases is even enthroned by certain oriental religions, including Hinduism. That is an act by which, on the realisation of the self, the soul leaves the body of its own volition. But there may be death to escape the life of indignity, humiliation, torment or harassment. Such death is not a voluntary or rational act. It is purely involuntary, brought about by a variety of objective conditions, which are oppressive, degarding, and disgusting to a point that the victim chooses to take his own life. Law recognises a right to die so long as the right is effectively exercised. An abortive attempt to take life is, however, penal; a successful attempt at self-destruction is not. But where an act of suicide is not a voluntary act but is committed under the compulsion of adverse circumstances, the law punishes those who could be held responsible for bringing it about, directly or indirectly, either by active suggestion or by creating objective conditions which drive the victim to it, but only if these are intended to achieve the desired object. A philosophic suggestion or an intemperate and indiscreet eruption in a fit a anger could not constitute an act of abetinent. An act of abetment must be intended to operate on the mind of the victim so as to lead him to the disaster. The homo sapiens are in constant search for pleasure, which they mistake for happiness, both of which, however, elude them. There is a yawning gap between their expectations and what life can offer to them. With all their quest for happiness, people are, by and large, unhappy for a variety of reasons, some of which they are themselves contributory while the others are beyond their control. There are variety of pressures in social and domestic life all of which operate on the rational mind. The sensitivity of the people alsodiffers depending on their background, age, state of health and financial condition. Everybody has different level of tolerance. The coping mechanism is not uniform. Some are able to withstand various pressures, while others succumb to them. When someone, thereforee, commits suicide, it raises difficult questions as to the motivation for it, the compulsions for it, the conditions that drove the person to the extreme step and those who were, wittingly or unwittingly, intentionally or unintentionally responsible for it. If a person is guilty of abetment or not would depend on how one answers these questions and these questions could be effectively answered not only with reference to the last words of the victim, which may or may not be unbiased but also material with regard to the background of the victim, the state of the environments in which the act was committed and the conduct of the suspect at the time of the commission of the act and subsequent thereto.

14. There is a growing public awareness of citizens rights and of the deficiencies of the systems with the resultant public agitation over acts of misuse, abuse and improper use of executive power and of instances of harassment or indifference to public grievances by the law enforcement agencies. This is partly because of the environment of populism generated by some of the political measures at the Centre and in the States. The public awareness and the susceptibility of the public to agitational approach to problems, though a healthy sign in a democratic set-up, poses its own peculiar challenge in that executive action, which should normally be just fair and reasonable, having regard to the legal requirements and the objective situation, tends to deteriorate into executive excess under public pressure either to assuage justified or unjustified public sentiments or to seek justifiable or unjustifiable public approbation for wholly irrelevant and extraneous purposes. What may justify public condemnation or the morally improper need not necessarily be legally actionable or be culpable in criminal law or call for police intervention. What may justify registration of a criminal case may or may not justify sending up of the suspects for trial. What may justify sending up of a suspect for trial may or may not justify framing of a charge, and the reason for framing of a charge does not necessarily justify a conviction on the charge at the trial. Each of these have their own legal requirements as also situation justification. It may, and often happens, that police action is initiated in response to public agitation, even though such action may not be legally justified. Thus, prosecutions may be and have been launched merely because there was a popular upsurge for it because event excited public condemnation or sympathy or sentiments of compassion. Once a prosecution is filed, even courts have not lagged behind in moulding relief as a response to possible public reaction either to assuage sentiments and even for public acclaim in controversial matters. These are instances of both executive and judicial populism, which must be condemned unreservedly even though they may not arise out of any motivation of personal gain or even personal prejudice. The moral side of an action or the social reaction of an order or an event is not altogether irrelevant, but could not legitimately form the only basis of any legal action, whether executive, legislative or judicial, which must be based on all relevant and material considerations. Extension of the creed of populism in the realm of executive, legislative or judicial action must be discouraged in any system based on the concept of rule of law, even though one may have no control ever it in a purely political filed.

15. The increasing incidents of bride burning as indeed of stray cases of harassment of and even of suicide by the mother of the husband, who is proverbially painted as the 'villain of the peace' in the domestic scene have, by any large, their genesis in the dismal failure of a husband to strike a reasonable balance between his conflicting loyally to an agingmother, mostly a widow, in an advanced age, on the one hand, and the growing expectations of a young wife, at the threshold of a marital career, looking for freedom and minor pleasures of life, on the other. The introduction, on the marriage, of a comparative stranger into the domestic scene introduces a new power centre in domestic life of a family where the mother has held the traditional sway for a number of decades unchallenged by any other female member of the family. The situation normally calls for adjustments, circumspection, and caution, on both sides, but these are not always possible for a variety of reasons. There are economic conflicts, apart from clash of personalities, temperamental difference, and conflicting egoes. These are essentially problems of harmony between conflicting pulls, loyalties and interests.

16. Although the fall out of the conflict may either be on the unfortunate bride, or not so fortunate mother-in-law, there is a qualitative difference between their respective circumstances and situations. While cases of bridge burning or of suicide by a married girl evoke intense sentiments of sympathy, similar fate that the mother-in-law meets may or may not evoke similar feeling, not at least with the same intensity. The reason is not far to seek. The mother-in-law has ordinarily held a sway over the affairs of the family for decades, even though she must have also suffered initially as a young bride at the hands of her mother-in-law, but has apparently weathered the storm, but feels increasingly alienated, and has a crisis of identity with the emerging competing centre of power in the daughter-in-law. The neglect of the mother and her financial needs as also if she is a widow a concern for her insecurity may aggravate the unfavorable environment for her. It is rarely that all this can ever add up to a mother being driven, as it were, to a state of desperation or deprivation in which suicide is the only respectable escape. However, in the case of a young bride, constant taunts, indifference, neglect or pressures may be intended to extort financial gain from her unfortunate parents, if according to the husband or the order members of his family, the marriage was not sufficiently profitable financial bargain. The bride in such a situation is surrounded by near hostile elements, and may feel almost driven to a state of desperation in which self-immolation may appear to her to be the only source of liberation. The two cases do not appear to me to have a parallel. While the consistent course of torture, humiliation, neglect and oppression may, in one situation, amount to abetment to an act of suicide, it need not necessarily be so in the other, unless there are other compelling circumstances, which lend support to such a conclusion. In either case, much will depend on the background of the victim concerned, state of her mind, the extent of pressure or torture to which she was subjected, how sensitive or insensitive was her nature, as also on the conduct of the relations said to be responsible for it, at the time of and after the incident, but in either case, the dying declaration, by itself, may not be conclusive as to the totality of these circumstances.

17. Let us now turn to what had allegedly happened in the present case. The only material consists of the two dying declarations, and they havebeen quoted in extenso. There is no evidence as to the course of conduct, or the nature of relationship between the victim and the other members of the family in the recent past or as to the conduct of the couple after the unfortunate event. None of the near relations of the victim, or the neighbours of the family have been examined as to how she was treated in the past or as to the other factors that may have contributed to the unfortunate decision that she eventually took on the fateful morning. There was some controversy as to which of the two dying declarations should be considered more authentic, particularly, because the last dying declaration is based on a recording by a Sub-divisional Magistrate, who was not from the North, and could not have understood an illiterate Punjabi lady's dialect when she allegedly related her version of why she acted the way she did. But it is not proper at this stage to 'Weigh' the material in a 'fine scale' and the question has to be examined on the assumption that the dying declaration, which is more unfavorable to the couple, would be taken on its face value. Where does this lend one to? According to the worst of these declarations, the victim was being 'neglected' by the son at the instance of the daughter-in-law, had been abused and the daughter-in-law had even told her 'to die by drawing in Yamuna'. The language of the declaration is not very coherent but it is not difficult to spell out of it that the victim decided to take her life because she was not happy the way she was being treated by the son at the instance of the daughter-in-law, and by the daughter-in-law. But none of these allegations, including a mere suggestion that she should go and drown herself in Yamuna, in the absence of other material would, on any reckoning, be sufficient to justify a charge of abetment. The dying declaration, at best, shows that there were usual bickerings in the family, and the victim was not being looked after as she expected to. It is also patent on the face of the record that the couple had been married for over 10 years and nothing untoward had happened during the long period. The victim no doubt attributes to the daughter-in-law an exhortation to die by drawing in Yamuna but such a suggestion could not be said to have been intended to be taken seriously, and must in the ordinary course of events, have emanated from the daughter-in-law in the heat of the moment or out of anger or disgust at the recurring bickerings in the family. None of these, by themselves, would be sufficient to justify a charge of abetment in the absence of other material, irrespective of the way one looks at the insinuations in the dying declaration. One may not go as far as counsel for the couple would have this court believe that the victim decided to put an end to her life because she was a little 'too sensitive' and 'falsely implicated the daughter-in-law out of spite', but there is nevertheless no escape from the conclusion that, even though the couple could not altogether escape the moral responsibility for what has happened, their conduct or their alleged utterance could not be said to constitute an act of abetment, having regard to the legislatively defined meaning of the expression, even its ordinary discretionary meaning, and the consistent course of judicial interpretation. If in addition to the dying declarations, there was other material, one would have been justified in declining to rule on the controversy at the stage of revision against an order of framing a charge because all those circumstances would have to be assessed and evaluated at the trial, but in the absence of any such material, the trial of the couple on the charge would appear to be an exercise in futility, and if the couple must ultimately be acquitted on the material, whichever way one looks at the declarations it would certainly be an abuse of the process of the court to subject them to the agony of the trial, particularly where one of them, if not both, must have already suffered, mental agony and humiliation because of the unfortunate event. It is no doubt very unfortunate that a widow in the evening of her life became a victim of self-immolation because she thought she was being unjustifiably neglected and even humiliated even though she had been blessed with two sons, both of whom are presumably well off, and could have certainly made the course of her life fairly comfortable, and must no doubt share moral responsibility for loss of a valuable life in tragic circumstances. All this would point to the need not only of individual awareness on the part of those under their legal and moral duty to maintain their elderly parents but also of social awareness of the problem of the aging parents but to justify prosecution. On the facts and circumstances of this case, much less the framing of the charge on the ground of abetment to suicide, merely because a life has been lost and could, with greater care and affection, have been saved would be a failure to distinguish a moral issue from a legal one. Further proceeding in such a case could not but be described as impelled by judicial malice, however, condemnable socially may be the action or inaction of those who had the moral and legal obligation to keep an aging mother happy and contented.

18. In the result, the petition succeeds; the impugned order is quashed; and the accused persons are discharged. Their bail bonds accordingly stand discharged.

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