Case BriefsForeign Courts

Supreme Court of Canada: The Bench comprising of Wagner C.J. and Moldaver, Côté, Brown, Rowe, Martin and Kasirer JJ., held that appellate courts cannot always limit the scope of a new trial to a particular theory of liability on a single criminal charge. While setting aside the order of the Appellate Court wherein it had curtailed the scope of re-trial to a specific point, the Bench remarked,

“Put simply, the ancillary order gave rise to a partial acquittal on a single criminal charge — a two-headed hydra-like creation unknown to Canada’s criminal law.”

The instant case dealt with robbery committed by two individuals in a Subway restaurant. One C was arrested in relation to the robbery; although he denied involvement in the robbery but admitted that he had told a group of individuals, including his friends T and L, how to do a robbery what to say how to do it how long to be in there. C was subsequently charged with armed robbery and tried by a judge alone.

Findings of the Courts below

At trial, the Crown advanced two alternative theories of liability: that C was the masked robber and guilty as a principal offender, or that C was guilty as a party to the armed robbery in that he either abetted the commission of the offence, or counselled its commission. The trial judge rejected both theories of liability and acquitted C, holding that the evidence fell short of proving that C was one of the principal offenders. Regarding party liability, the Trial Court found that C could only be convicted as a party if the Crown established that C’s friends T and L had committed the robbery, but the evidence also fell short in that regard.

In appeal, the Appellate Court opined that the Trial Court erred in holding that it was incumbent on the Crown to prove that T and L were the persons who committed the robbery in order to find C guilty. Holding that the Trial Court had failed to recognize that the evidence before him was reasonably capable of establishing that C committed the prohibited act with the requisite intent for party liability on the basis of abetting or counselling, the Appellate Court set aside C’s acquittal and ordered a new trial. However, in doing so, it ordered that the new trial be limited to the question of “whether C is guilty of robbery, as a party, on the basis of abetting or counselling”.

Whether the Appellate Court erred in restricting the scope of the new trial?

Where an appellate court allows an appeal and sets aside an acquittal, it has the power, under s. 686(4)(b)(i) of the Criminal Code, to order a new trial and to make any order, in addition, that justice requires under s. 686(8). However, three conditions must be met for s. 686(8) to apply.

  1. First, the appellate court must have exercised one of the triggering powers conferred under s. 686(2), (4), (6) or (7).
  2. Second, the order issued must be ancillary to the triggering power in that it cannot be at direct variance with the court’s underlying judgment.
  3. Third, the order must be one that justice requires.

Opining that the second and third conditions were not met in the instant case, as the ancillary order limiting the scope of the new trial was at variance with the underlying judgment and was not an order that justice required, the Bench held that the new trial must be on all available modes of committing the offence.

“To prospectively deny a trier of fact the ability to consider a viable theory of liability would be to undermine their ability to carry out their core function: to determine whether the Crown has proven that the accused committed the offence(s) charged.”

The Bench stated, as one of the purposes of the criminal process is to foster a search for truth, justice cannot require that a trier of fact be restricted in their ability to determine how, if at all, an accused participated in a given offence. Hence, the Bench opined that upholding the Court of Appeal’s ancillary order would mean that if, at the new trial, the defence adduced evidence showing that Mr. Cowan did not abet or counsel anyone because he was, in fact, the principal offender, and the trier of fact believed that evidence or it raised a reasonable doubt, the trier of fact would have no option but to acquit Mr. Cowan of the charge of armed robbery and, such a result would make a mockery of the justice system and cannot be what justice requires.

However, while holding that the Court of Appeal was not permitted to restrict the available theories of liability at the new trial, the Bench clarified that it should not be taken to mean that appellate courts do not have the power to limit the scope of a new trial in all circumstances.

Observation and Analysis

For the purposes of determining criminal liability, the Criminal Code does not distinguish between principal offenders and parties to an offence. Hence, where an accused is being tried alone and there is evidence that more than one person participated in the commission of the offence, the Crown is not required to prove the identity of the other participant(s) or the precise part played by each in order to prove an accused’s guilt as a party offence.

Therefore, the Bench held that the Crown was only required to prove that any one of the individuals encouraged by Mr. Cowan went on to participate in the offence either as a principal offender — in which case Mr. Cowan would be guilty as both an abettor and a counsellor — or as a party — in which case Mr. Cowan would be guilty as a counsellor.

Issue Estoppel

Rejecting the accused’s argument that the Court could not order a full new trial because the doctrine of issue estoppel prevents the re-litigation of the Crown’s theory that he was guilty of armed robbery as a principal offender point, the Bench opined that issue estoppel does not apply simply by virtue of the fact that a trial has been held and that there is no final decision made in a prior proceeding where an appellate court finds that a verdict of acquittal on a single criminal charge was tainted by legal error and, accordingly, renders that verdict invalid as a whole by setting it aside and ordering a new trial on the relevant charge.

The Bench stated that in the instant case no issue could be said to have been finally decided in the first trial because the result of that trial, i.e. the acquittal on the single charge of armed robbery had been entirely set aside.

Verdict

In the above backdrop, the judgment of the Appellate Court setting aside the acquittal on the charge of armed robbery and ordering a new trial was upheld, but the order limiting the scope of new trial was set aside and a full new trial on the armed robbery charge was ordered. [Jason William Cowan v. Queen, 2021 SCC 45, decided on 05-11-2021]


Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court:  In a case where the appellant had challenged his conviction under Section 306 IPC for driving his wife to suicide, the 3-judge bench of NV Ramana, Surya Kant and Hrishikesh Roy, JJ set aside the verdict of the Trial Court and the Punjab and Haryana High Court and held that the conclusion that the deceased was driven to commit suicide, by the circumstances or atmosphere in the matrimonial home was nothing more than an inference, without any material support and the same cannot be the basis for sustaining conviction of the appellant, under section 306 of the IPC.

KEY FACTS CONSIDERED BY COURTS

  • The appellant was married to the deceased 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, the deceased was harassed after marriage, for insufficient dowry. The appellant along with his parents was charged under sections 304B and 498A read with section 34 of the IPC.
  • The father of the deceased submitted that “cash loan” of 20,000/- was asked from him by the family of the appellant.
  • appellant 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.
  • 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.

TRIAL COURT AND HIGH COURT’s VERDICT

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.

The Trial Court also 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.

However, posing 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, the Trial Court 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.

The High Court also endorsed the Trial Court’s view that deceased was pushed to commit suicide by the circumstances and the atmosphere in the matrimonial home.

SUPREME COURT’s OBSERVATION

On ingredients to establish offence of abetment under Section 107

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.

“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.”

On facts and circumstances of the case

Cruelty

In the present case 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.”

Dowry

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.

“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.”

Expectations from husband and in-laws

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.”

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.

Conclusion

The Court noticed that in the present matter 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.”

On the other hand, it is apparent 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.

“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.”

Hence, the conviction of the appellant, under section 306 of the IPC cannot be sustained.

[Gurcharan Singh v. State of Punjab, CRIMINAL APPEAL NO.40 OF 2011, decided on 02.10.2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of V.M. Deshpande and Anil S. Kilor, JJ., held that if the prosecution fails prima facie to show that that accused had an intention to aid or instigate or abet deceased to commit suicide caused cannot be compelled to face trial for the offence punishable under Section 306 of the Penal Code, 1860.

The instant application was filed for quashing the FIR registered for offence punishable under Section 306 of Penal Code, 1860 along with a prayer to stay the investigation in the said matter.

The complainant had a Loan Account with the Bank of Maharashtra wherein the applicant was discharging his duties as Branch Manager, Bank of Maharashtra.

In the present matter, complainant’s real brother is the deceased who committed suicide in 2015 by hanging himself.

Complainant lodged his report against the present applicant a day after his brother committed suicide.

Though the applicant was granted pre-arrest bail, he filed for the present proceedings to quash the FIR.

Section 306 of the Penal Code, 1860

“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.”

Section 107 of Penal Code, 1860: 

As per the First clause, “if a person instigates any person to do a particular thing, it can be said that he has abetted”.

High Court referred to the decision of Dilip v. State of Maharashtra, (2004) 11 SCC 401.

Ratio: It is incumbent upon the prosecution to at least show prima facie case that accused had an intention to aid or instigate or abet deceased to commit suicide. In the absence of availability of such material, the accused cannot be compelled to face trial for the offence punishable under Section 306 of the Penal Code.

In the present matter, it has been noted that the deceased was not having any loan outstanding in his name. According to the prosecution, the deceased went to the Bank of Maharashtra for a loan.

If previous loan amount is outstanding and if the applicant, who is Branch Manager of the said Bank, is refusing to grant any further loan, can be said as act of a vigilant and prudent banker and if he is not granting any further loan, it cannot be termed that by such act he instigated and/or abetted the person to commit suicide.

Hence, in view of the above, Court terminated the proceedings against the applicant. [Santoshkumar v. State of Maharashtra,  2020 SCC OnLine Bom 914, decided on 09-09-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal for SAFEMA, FEMA, PMLA, NDPS & PBPT Act: Justice Manmohan Singh (Chairman) allowed an appeal challenging the impugned Judgment wherein the appellants were penalized for abetting illegal transfer of money.

In the present case, the respondent had alleged that the appellant-Bank abettor in illegal and unauthorized dealing of foreign exchange. The appellant-Bank had cleared four cheques issued by the Bank of Economic Affairs (which were denominated in non-convertible Indian Rupees) totalling Rs 11 Crores, for the purpose of crediting the VOSTRO Account of Girobank Plc (convertible rupee account) maintained by ANZ Grindlays Bank. Thereafter, this money was freely transmitted outside India in foreign currency by Girobank Plc. The Adjudicating Authority issued show-cause notices in respect of four cheques and imposed penalties against the appellants.

The counsel representing the respondents, Ashok Kumar Panda submitted that on receipt of the said amount of Rs 3,00,00,000 from Canara Bank, the ANZ Grindlays Bank, an authorised dealer of Foreign Exchange in India credited to the non-resident-Girobank Plc, London. Thereby on the instructions from the Canara Bank, the non-convertible rupee funds of the Bank of Economic Affairs into the convertible funds and transferred the same in foreign exchange to Girobank Plc., London a person resident outside India.

Thus, Canara Bank, Bombay abetted ANZ Grindlays Bank in contravening the provisions of the Foreign Exchange Regulation Act, 1973. The respondents placed reliance on the Supreme Court’s statement on abetment in the case of State of Madhya Pradesh v. Mukesh, 2006 (10) SCALE 346 wherein the Apex Court stated “A person, it is trite, abets by aiding, then by any act done either prior to, or at the time of, the commission of an act, he intends to facilitate and does, in fact, facilitate, the commission thereof would attract the third clause of Section 107 of the Indian Penal Code. Doing something for the offender is not abetment. Doing something with knowledge so as to facilitate him to commit the crime or otherwise would constitute abetment.”

The counsel representing the appellant-Bank, Debarshi Bhuyan submitted that although cheques were honoured by the Canara Bank, they did not possess any knowledge of the fact that the cheques were to be remitted abroad. The appellants relied on Shri Ram vs. State of U.P., (1975) 3 SCC 495 wherein it was held that in order to constitute abetment it must be established that there were active complicity and intentional aiding. The appellant further submitted that it was not within the knowledge of the appellants that the money was to be transferred abroad.

High Court upon perusal of the facts and records allowed the appeal. The Court stated that ANZ Grindlays Bank had presented the drafts to the appellant for payment in normal clearance without being accompanied by the required form A3 and in these circumstances, the appellant had no reason whatsoever to believe or to apprehend that the proceeds of the said draft were to have been remitted outside India.

Further, Court mentioned that the adjudicating authority has without considering the role of the officers of the Canara Bank imposed a penalty on them and also considering the similarity in the appeals filed by Standard Chartered Bank in another appeal, wherein the issue of abetment has been seen not to arise, the appeals were allowed.[Canara Bank v. Special Director, 2019 SCC OnLine ATFEMA 16, decided on 20-09-2019]

Case BriefsHigh Courts

Bombay High Court: A.M. Badar, J. addressed the present appeal challenging the Judgment and order of the trial court by setting aside and quashing the same, by observing that,

“Mere negligence or carelessness on the part of the accused cannot be termed as ‘abetment’.”

The accused 2 who has challenged the judgment and order of the trial court was convicted under Section 17 of Protection of Children from Sexual Offences Act, 2012. 

The facts of the case are that the victim of the crime was about 5 years of age at the time of the crime and accused 2 is the biological mother of the victim child. Accused 1 is the step-father. PW 2 had lodged the report for the crime who used to reside in the neighbourhood of accused persons and victim child used to visit her house for playing with her daughter. 

At the Dashera festival, accused 2 accompanied by victim child visited PW 2 who noticed injuries on the person of the victim female child. Victim female child disclosed to PW 2 that she was beaten by her step father, on hearing this, PW 2 asked accused 2 to accompany her in order to lodge the report of the offence being committed by accused 1 but the same was declined by accused 2. Further, while the female child victim was being bathed by PW 2, she noticed some injuries on the person of the victim, which were caused by her step-father. Victim informed PW 2 that accused 1 used to insert something in her vagina and also put chilly powder in her vagina. She even disclosed that she is beaten by him after tying her hands with wire of the mobile charger.

So far as accused 2 is concerned, the trial court had framed the charge for the offence punishable under Section 17 of the POCSO Act. Charge for the offence punishable under Sections 4 and 10 of the POCSO Act was framed against accused 1. Both accused persons were accordingly tried.

Trial Court’s conclusion was that the victim female child informed her mother i.e. accused 2 regarding the assault by accused 1 but accused 2 ignored this fact. Further, it added that though PW 2 disclosed accused 2 maintained silence and not interfered with the act of accused 1. This amounted to abetment by “illegal omission as well as intentional aid”. Thus, with the stated finding, Court had convicted accused 2 of the offence punishable under Section 17 of the POCSO Act accordingly.

High Court’s Finding

On hearing the submissions of the parties and in view of the facts and circumstances of the case, Court reproduced Section 16 of the POCSO Act, which defines the term ‘abetment’ of offence under POCSO Act.

“Trial Court held that the case of the prosecution is covered by Clause Thirdly of Section 16 of POCSO Act which deals with intentional aid by an act or illegal omission. At the cost of repetition it needs to mention here that trial court was alive to the legal position that in case of abetment by illegal omission, it is required to be proved b the prosecution that the accused was present at the time of commission of an act and at place of occurrence, but had failed to interfere in it which amounts to illegal omission.

Second explanation to Section 16 of the POCSO Act deals with the situation as to what amounts to intentionally aiding the offender. For making an accused liable for abetment by intentional aiding by an act or illegal omission, it is required to be established by the prosecution that either prior to or at the time of commission of act of offence, such Abettor does anything in order to facilitate the commission of the act of offence and facilitate the commission of offence. Thus the presence of the Abettor either before the commission of the offence for facilitating the commission of the offence or at the time of the commission of an act constituting the offence is necessary; for making out the offence of abetment.”

High Court stated that the evidence of child female victim makes it clear that accused 2 was not present either before or at the time of the commission of the act.

Court held that “mere giving aid will not make the act of abetment of an offence if the person who gave the aid did not know that the offence was being committed or contemplated. 

In order to convict a person of abetment by illegal omission, it is necessary to show that the accused intentionally aided the commission of offence by his non-interference and that the omission involved a breach of legal obligation.”

Subsequent failure on the part of accused 2 in non-reporting the matter to police, as such, does not amount to intentionally aiding the commission of offence by co-accused 1.

Mens rea is an essential element of the offence of abetment.

Thus, in view of the above, Court set aside the impugned Judgment and Order of the trial court and quashed the same by setting accused 2 at liberty if not required in any other case. [Asha Patil v. State of Maharashtra, 2019 SCC OnLine Bom 2056, decided on 18-09-2019]

Case BriefsHigh Courts

Gujarat High Court: The Bench of Vipul M. Pancholi, J. allowed a petition seeking anticipatory bail subject to certain restrictions.

In the pertinent case, the allegations against the accused were of producing forged documents and of abetment. The counsel for the applicant stated that he is ready and willing to abide by all the conditions including the imposition of conditions with regard to powers of Investigating Agency. And considering the nature of the alleged offences, custodial interrogation was not needed at this stage.

The Court considered that the allegation against the applicant is that at the most he has abetted the main accused and there was an undue delay of 5 years in lodging the FIR. And since he is cooperating with the investigation agency, his custodial interrogation is not required. The Court relied on the law laid down by Shri Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 and thus, allowed the petition directing the release of the applicant on bail.[Gupta Anandkumar Satyanarayan v. State of Gujarat, 2019 SCC OnLine Guj 285, Order dated 21-02-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: The Bench of Arvind Singh Sangwan, J. set aside an order framing charges under Sections 306 and 506 of the Indian Penal Code, 1860 against petitioner.

The facts of the case were that one Amandeep Singh committed suicide after two years of marriage with the petitioner’s daughter. Pursuant to the dispute between the two families, the deceased’s wife left her matrimonial home. Thereafter, the deceased left his house and told his sister on the phone that he was disturbed because of his wife and was going to take his life by jumping in a canal. Later, his car and other belongings along with a gift bag were found near the canal with a note stating “I love U Aman Best Wishes for ours next life. This is last gift for you by me. Muhha Putt love you.”

A First Information Report was registered by father of the deceased – Ranjit Singh – under Sections 306, 506 read with Section 34 of Penal Code, 1860 against the petitioner and his daughter – Amanpreet Kaur. After completion of the investigation, the trial Court passed an order framing charges under Sections 306 and 506 of IPC, against petitioners. Aggrieved thereby, the instant revision petition was filed.

Counsel for the petitioner submitted that there was no direct allegation of abetment against them. Further, the deceased’s suicide note did not suggest that he had leveled any allegations against the petitioners, rather, he had shown his affection towards his wife. It was further argued that nothing on record to show that the petitioners have ever abetted the deceased to commit suicide.

The Court, opined that before holding an accused guilty of an offence under Section 306 IPC, the Court must scrupulously examine facts and circumstances of the case to find out whether the cruelty and harassment meted out to the victim had left him with no other alternative but to put an end to his life. 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 actions to facilitate the commission of suicide. Reliance was placed on Apex Court’s dictum in Bhagwan Das v. Kartar Singh, (2007) 11 SCC 205 and Madan Mohan Singh v. State of Gujarat, (2010) 8 SCC 628.

It was held that there was nothing on record to show that by way of willful conduct of the petitioners, the deceased was compelled to commit suicide. Allegations in the FIR, as well as the material collected during the investigation, did not prima facie constitute offence under Section 306 IPC as no material has come on record to support the allegations/charge against the petitioners. The alleged suicide note only reflected deceased’s love towards his wife and there was no indication of any harassment. Thus, the impugned order was set aside.[Balwinder Singh v. State of Punjab, 2019 SCC OnLine P&H 11, decided on 09-01-2019]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench comprising of Md. Mumtaz Khan and Jay Sengupta, JJ. partly allowed the appeal of the appellant-husband who was convicted under Sections 498-A and 306 IPC for cruelty and abetting the suicide of the deceased-wife by the trial court.

Prosecution’s case was that the appellant and the deceased were married 19 years ago. The wife lived in husband’s native village. Subsequently, she joined the husband in his dwelling home. There she came to know of the illicit relationship between the husband and the maid-servant who lived in the same house. She confronted the husband but to no avail. Instead, the husband started to abuse her and beat her. On the night of the incident, PW-1, brother of the wife, heard noise of her sister shouting from inside the appellant’s house. The door was locked from inside. PW-1 along with the local policeman forced-open the door of the house and found that the deceased was burning in flames. The appellant was not at home. The husband was charged, tried and convicted by the trial court for the offences mentioned above. Aggrieved by the same, the husband filed the present appeal.

The High Court perused the record. It was noted that the word cruelty mentioned in Section 498-A is any wilful conduct of the husband or his relative which is of such a nature as is likely to drive the women to commit suicide or cause grave injury or danger to life, limb, health. In Court’s opinion, the evidence of PW-1 and PW-2, brothers of the deceased, unerringly pointed towards the guilt of the husband in inflicting cruelty to the wife after she confronted him about his illicit relationship. This drove her to commit suicide. No irregularity was found with husband’s conviction under Section 498-A. However, the Court was of the view that he could not be held guilty under Section 306 as there was no direct evidence that he has, by his act, instigated or provoked the deceased to commit suicide. The only allegation was that on a fateful night, the parties had quarreled and thereafter the husband went to his night duty and the wife committed suicide. There was no evidence about the issue of quarrel and how the wife got burned. There was no direct evidence to show that the husband abetted the suicide committed by the wife. In such circumstances, the husband deserved to be acquitted of the charge under Section 306. Hence, the appeal was partly allowed. Conviction of the husband under Section 306 was set aside, however, that under Section 498-A was upheld. [Md. Sarfulla v. State of W.B., 2018 SCC OnLine Cal 5946, dated 03-09-2018]

Case BriefsHigh Courts

Bombay High Court: A criminal appeal preferred by the appellant against the order of his conviction and sentence passed by the trial court, was allowed by a Single Judge Bench comprising of Sarang V. Kotwal, J.

The appellant was accused of subjecting his wife to cruelty due to which she committed suicide. The appellant was charged under Sections 498-A and 306 of IPC. He was tried, convicted and sentenced for the said offences by the trial court. The appellant challenged the decision of the trial court.

The High Court perused the record and found that the allegations against the appellant were that he demanded Rs. 1000 from the deceased. The Court was of the view that only asking for financial help from the wife without any further allegations would not amount to cruelty to attract the provisions of Section 498-A. Neither the allegation that the appellant harassed the deceased for she was not able to cook good food was proved by any evidence. In fact, it was found that the fact of the wife leaving the appellant’s house one month prior to the incident, was suppressed by the prosecution. In such circumstances, the High Court held that neither cruelty nor abetment could be proved against the appellant. Therefore, the Court allowed the appeal preferred by the appellant and set aside the impugned order. [Ananta Laxman Pansare v. State of Maharashtra, 2018 SCC OnLine Bom 963, dated 07-05-2018]

Case BriefsHigh Courts

Chhattisgarh High Court: The appellant was acquitted of the charges under Section 306 IPC by a Single Judge Bench comprising of Ram Prasanna Sharma, J., holding that there was no live link between the act of the appellant and suicide of the deceased so as to convict the appellant under the section.

The appellant-husband was alleged to have abetted the suicide of the deceased-wife. The statement of witnesses pointed to the fact that the appellant had assaulted the deceased on one previous occasion; however the date of such incident was not clear.

The High Court perused Section 306 along with Section 107 of IPC and observed that the abetment involves a mental process of instigating a person or intentionally aiding a person in doing a thing. Without a positive act on the part of accused to instigate or aid in committing suicide, conviction under Section 306 can not be sustained. In order to convict a person under Section 306, there has to be a clear mens rea to commit offence. It also requires an active act or direct act which leads deceased to commit suicide seeing no option and this act must have been intended to push deceased into such a position that he commits suicide. In the instant case, there was nothing on record as to what had happened on or prior to the date of incident which was unbearable for the deceased. Mens rea on the part of the appellant, requiring direct act and active act which led the deceased to commit suicide, was lacking. Some bitter experience during routine married life is natural and that was not sufficient to hold that since long back of the incident there was quarrel between the parties that is why the deceased took the extreme step. In the present case, there was no live link between the act of the appellant and the act of the deceased.

Accordingly, the appeal was allowed and the conviction and sentence of the appellant passed by the trial court was set aside. [Tulsiram v. State of Chhattisgarh, 2018 SCC OnLine Chh 413, dated 11-04-2018]

Case BriefsSupreme Court

Supreme Court: Dealing with the scope of Section 306 IPC, the Court said that in order to convict a person under Section 306 IPC, there has to be a clear mens rea to commit an offence and that there ought to be an active or direct act leading the deceased to commit suicide, being left with no option.

The bench of Dipak Misra and Amitava Roy, JJ said that the offence punishable under Section 306 IPC is one of abetment of the commission of suicide by any person, predicating existence of a live link or nexus between the two, abetment being the propelling causative factor. The basic ingredients of this provision are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of this constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualize the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. Section 306 IPC, thus criminalises the sustained incitement for suicide.

In the present case, where a woman and her 2 daughters committed suicide, the Court noticed the materials on record do not suggest even remotely any act of cruelty, oppression, harassment or inducement so as to persistently provoke or compel the deceased to resort to self-extinction being left with no other alternative. No such continuous and proximate conduct of the appellant or his family members with the required provocative culpability or lethal instigative content is discernible to even infer that the deceased and her daughters had been pushed to such a distressed state, physical or mental that they elected to liquidate themselves as if to seek a practical alleviation from their unbearable earthly miseries.

It was explained that the courts have to be extremely careful in assessing the facts and circumstances of each case to ascertain as to whether cruelty had been meted out to the victim and that the same had induced the person to end his/her life by committing suicide, with the caveat that if the victim committing suicide appears to be hypersensitive to ordinary petulance, discord and differences in domestic life, quite common to the society to which he or she belonged and such factors were not expected to induce a similarly circumstanced individual to resort to such step, the accused charged with abetment could not be held guilty. [Gurcharan Singh v. State of Punjab, 2016 SCC OnLine SC 1415, decided on 02.12.2016]

Case BriefsSupreme Court

Supreme Court: The Bench of V. Gopala Gowda and Arun Mishra, JJ gave a split decision on the question as to whether a person can be convicted under Section 109 IPC for abetment if the charges of conspiracy under Section 120-B IPC fail.

As per V. Gopala Gowda, J, for Section 109 of IPC, it is not enough to show a conspiracy as it has to be taken a step further. He said that it needs to be proved that an act is committed in furtherance of that conspiracy. Once the charge under Section 120-B of IPC falls, in order to convict the accused under Section 302 read with Section 109 IPC, or Section 365 read with Section 109 IPC, what is needed to be established is the happening of some overt act on the part of the accused.

However, on the other hand, Arun Mishra, J disagreed with the abovementioned view and said that under section 109 IPC, the abettor is liable to the same punishment which may be inflicted on the principal offender if the act of the latter is committed in consequence of the abetment. The offence of conspiracy under section 120-B IPC is different. Section 120-A is bare agreement to commit an offence which has been made punishable under section 120B. The punishment for these two categories of crimes is also quite different. Section 109 IPC is concerned only with punishment of abetment for which no express provision has been made in the IPC. An offence of criminal conspiracy on the other hand is an independent offence which is made punishable under section 120-B IPC for which a charge under section 109 is unnecessary and inappropriate. He, hence, said that when charge under section 109 IPC has been found established, mere acquittal under section 120-B is of no avail to the accused. Charges which were framed were specific ingredients of section 109 IPC and the acquittal under section 120-B of IPC cannot help the accused as offences of both sections are separate. [Somasundaram v. State, 2016 SCC Online SC 1006, decided on 28.09.2016]

Case BriefsSupreme Court

Supreme Court: Hearing the appeal by the husband and the in-laws of the victim of dowry death against the order of the High Court of Karnataka which had reversed the order of acquittal by the Trial Court, the bench of Dipak Misra and Shiva Kirti Singh, JJ upheld the order of the High Court and said that once the prosecution succeeds in establishing the component of cruelty leading to conviction under Section 498A, only in a rare case, the Court can refuse to invoke the presumption of abetment, if other requirements of Section 113A of the Evidence Act stand satisfied.

In the incident that occurred 2 decades ago, a 25-year-old women who had a 10-month old son and was mothering a life of twenty week in her womb committed suicide in the wake of dowry demands. However, the appellant had alleged that the suicide was an outcome of the victim being stopped from going to her mother’s place. The High Court, after going through the relevant oral and documentary evidence in the form of letters, conclude that the trial Judge failed to look for the relevant documents already available on the record.

The Court, agreeing with the High Court’s reasoning, held that the initial explanation that the deceased committed suicide because she was not permitted to go to her mother’s place does not inspire confidence and has rightly been rejected by the High Court as only for such a trivial matter, a hale and hearty young woman having a ten months old son and a pregnancy of twenty weeks is not at all expected to take her life. Also, no explanation was given by the accused for the injuries on the person of the victim. The Court, hence, upheld the order of the High Court and said that the order of the Trial Court was highly erroneous. [Satish Shetty v. State of Karnataka, 2016 SCC OnLine SC 589, Decided on 03.06.2016]