HONOURABLE MR.JUSTICE SUNDER MOHAN Crl.O.P.(MD).Nos.3572 of 2019 and 10021 of 2021 and Crl.M.P.(MD).Nos.2023 of 2019, 5121 & 5122 of 2021 1.Neelavathi @ Leelavathi 2.Palaniammal there is no allegation of any positive act committed by the petitioners to instigate the deceased to commit suicide. There is nothing to suggest that there was cruelty and that cruelty/harassment allegedly meted out to the victim had left her with no other alternative, but to put an end to her life

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 03.02.2023
Pronounced on : 08.02.2023
CORAM
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
Crl.O.P.(MD).Nos.3572 of 2019 and 10021 of 2021 and
Crl.M.P.(MD).Nos.2023 of 2019, 5121 & 5122 of 2021
1.Neelavathi @ Leelavathi
2.Palaniammal
… Petitioners in Crl.O.P(MD)No.3572 of 2019
/A2 & A3
S.Senthilkumar
… Petitioner in Crl.O.P(MD)No.10021 of 2021/A1
Vs.
1.The Inspector of Police, Chinnamanur Police Station, Theni District.
(Crime No.339/2014
P.R.C.No.54/2014)
… 1st Respondent/
Complainant in both petitions
2.Ponram
…2nd Respondent/De-facto Complainant in both petitions Common Prayer: Criminal Original Petitions are filed under Section 482 Cr.P.C., to call for the records of the Charge Sheet in P.R.C.No.54 of 2014 on the file of the learned Judicial Magistrate Court, Uthamapalayam and quash the same as against the petitioners.
In Crl.O.P(MD)No.3572 of 2019
For Petitioners : Mr.G.Karuppasamy Pandiyan for
Mr.V.Meenakshi Sundaram
For R-1 : Mr.R.Meenakshi Sundaram, Additional Public Prosecutor.
For R-2 : No appearance
In Crl.O.P(MD)No.10021 of 2021
For Petitioner : Mr.G.Karuppasamy Pandiyan for
Mr.G.Mohankumar
For R-1 : Mr.R.Meenakshi Sundaram, Additional Public Prosecutor.
For R-2 : No appearance
COMMON ORDER
Crl.O.P(MD)No.10021 of 2021 has been filed by the husband, by name, Senthilkumar, Crl.O.P(MD)No.3572 of 2019 has been filed by the mother in law and the sister in law of the deceased, by name, Nacharammal @ Gokila challenging the final report, which is now pending committal in P.R.C.No.54 of
2014 on the file of the Judicial Magistrate Court, Uthamapalayam.
2. The allegation in the charge sheet is that the deceased was married to one Senthilkumar on 17.06.2007. On 22.06.2014 at about 10.45 a.m, the deceased consumed poison and died at the matrimonial home. On the same day, the defacto complainant, who is the father of the deceased, gave a complaint stating that his son received information at about 10.45 a.m that his sister Gokila was admitted at Chinnamanur Government Hospital after consuming poison and declared dead. The defacto complainant along with his sons and wife went to the hospital and saw the deceased. The defacto complainant, thereafter, at about 12.30 hours gave a complaint to the respondent police stating that he suspected the involvement of his son-in-law, mother and the sister of his son-in-law in the death of his daughter. The respondent police registered FIR in Crime No.339 of 2014 under Section 306 IPC. Thereafter, pursuant to the investigation, the charge sheet was filed against the petitioners for the offences under Sections 306 and 498A IPC.
3.This Court at the time of admission in Crl.O.P(MD)No.3572 of 2019, had granted interim stay of the proceedings, by the order dated 07.03.2017.
Therefore, the case is still pending at the committal stage.
4.Mr.G.Karuppasamy Pandiyan, learned counsel appearing for the petitioners submitted that the impugned charge sheet is liable to be quashed as the allegations made in the charge sheet do not constitute the offences of Sections 306 or 498A IPC. The F.I.R lodged by the second respondent does not refer to any dowry harassment or ill-treatment allegedly committed by the petitioners. The allegations of dowry demand besides being vague is an after thought. Even according to the defacto complainant, the deceased did not speak to him for more than 3½ years. Neither the defacto complainant nor the other witnesses examined on the side of the prosecution have spelt out as to when and what was the nature of the dowry demand. The learned counsel further submitted that the deceased died 7 years after the marriage and the presumption under Section 113(a) of the Evidence Act is also not available for the prosecution in the instant case. The prosecution had not taken steps to conduct R.D.O. enquiry to ascertain whether there was any dowry demand. No proof has been given other than the vague allegations to implicate the petitioners. The learned counsel further submitted that tendency to false implication can be seen from the fact that the sister in law, who was residing far away from the matrimonial home, has been unnecessarily implicated. The mother in law who is an old lady, was also sought to be implicated. The learned counsel relied upon the Judgment of this Court reported in (2021)2 MLJ (Crl) 610 (Mala @ Manimala vs. State) and another unreported Judgment of this Court made in Crl.O.P.No.13628 of 2014 dated 05.08.2014 (Sarojini vs. State), in support of his submission.
5.The learned Additional Public Prosecutor submitted that the allegation of dowry demand is found in the statement of the witnesses examined during investigation and from the inquest report. Merely because RDO enquiry was not conducted, the prosecution case cannot be said to be false. The investigation has independently collected evidence and found that the deceased was subjected to cruelty and she had committed suicide on account of the said cruelty.
6.Though notice was served on the defacto complainant, none has entered appearance on behalf of the defacto complainant.
7.A perusal of the charge sheet shows that the marriage between the said Senthilkumar, who is the petitioner in Crl.O.P(MD)No.10021 of 2021 and the deceased took place on 17.06.2007. The deceased died due to poisoning on 22.06.2014. It is the case of the prosecution that the accused abetted the deceased to commit suicide. According to the prosecution, A1 did not allow her wife to talk to her parents and all the accused had caused cruelty by demanding dowry. The complaint was lodged by the defacto complainant
stating that he suspected the petitioners in his daughter’s death.
8.Reading of the complaint would show that the defacto complainant had not stated anything about the alleged dowry demand. His only grievance was that his son in law Senthilkumar did not allow the deceased to talk to the defacto complainant and his family members. Admittedly, the defacto complainant had not been talking with the deceased. However, during investigation, the defacto complainant stated as follows:-
““vdJ kfs; ehr;rhuk;khs; vd;w Bfhfpyhit tujl;rid Bfl;L bre;jpy;Fkhh;, ePyhtjp vd;w yPyhtjp, bre;jpy;Fkhhpd; mk;kh gHdpak;khs; ntA;f bfhLikgLj;jpajhy; jhd; tp&^Ue;ij Foj;J nwe;Js;shh.;”
The wife and the son of the defacto complainant have also stated the same in their 161 Cr.P.C statements. Apart from these witnesses, there are no other witnesses or any other evidence to suggest that the deceased was subjected to cruelty on account of dowry demand. The portion of statement extracted above would indicate that the allegations are vague. Neither the nature of dowry demand, nor the details as to when this dowry demand was made has been spelt out. In order to constitute the offence under Section 498 IPC, the victim must have suffered either cruelty on account of dowry demand or cruelty of any other relative which is likely to drive the victim to commit suicide or commit grave injury to herself. This Court and the Hon’ble Apex Court had time and again held that where allegations of cruelty on account of dowry demand are made, unless it is backed with specific details, the continuation of the prosecution would be an abuse of process of law. In this regard, this Court relied upon the observations of the Hon’ble Apex Court in the case of Varala Bharath Kumar vs. State of Telangana reported in (2017)9 SCC 413, which reads as follows:-
“8. We are conscious of the fact that, Section 498A was added to the Code with a view to punish the husband or any of his relatives, who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. Keeping the afore-mentioned object in mind, we have dealt with the matter. We do not find any allegation of subjecting the complainant to cruelty within the meaning of Section 498A of IPC. The records at hand could not disclose any willful conduct which is of such a nature as is likely to drive the complainant to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the complainant. So also, there is nothing on record to show that there was a demand of dowry by the appellants or any of their relatives, either prior to the marriage, during the marriage or after the marriage. The record also does not disclose anywhere that the husband of the complainant acted, with a view to coerce her or any person related to her to meet any unlawful demand of any property or valuable security.” and in the case of Shakson Belthissor vs. State of Kerala and others reported in (2009)14 SCC 466, which reads as follows:-
“21. In the light of the aforesaid language used in the Section, the provision would be applicable only to such a case where the husband or the relative of the husband of a woman subjects the said woman to cruelty. When the ingredients of the aforesaid Section are present in a particular case, in that event the person concerned against whom the offence is alleged would be tried in accordance with law in a trial instituted against him and if found guilty the accused would be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. The said section contains an explanation, which defines “cruelty” as understood under Section 498A IPC. In order to understand the meaning of the expression `cruelty’ as envisaged under Section 498A, there must be such a conduct on the part of the husband or relatives of the husband of woman which is of such a nature as to cause the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman.
22. When we examine the facts of the present case particularly the FIR and the charge sheet we find that there is no such allegation either in the FIR or in the charge sheet making out a prima facie case as narrated under explanation
(a). There is no allegation that there is any such conduct on the part of the appellant which could be said to be amounting to cruelty of such a nature as is likely to cause the Respondent No. 2 to commit suicide or to cause any injury to her life. The ingredient to constitute an offence under explanation (a) of Section 498A IPC are not at all mentioned either in FIR or in charge sheet and in absence thereof, no case is made out. Therefore, explanation (a) as found in Section 498A IPC is clearly not attracted in the present case.
23. We, therefore, now proceed to examine as to whether the case would fall under explanation (b) of Section 498A of IPC constituting cruelty of the nature as mentioned in explanation (b). In order to constitute cruelty under the said provision there has to be harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or a case is to be made out to the effect that there is a failure by her or any person related to her to meet such demand. When the allegation made in the FIR and charge sheet is examined in the present case in the light of the aforesaid provision, we find that no prima facie case even under the aforesaid provision is made out to attract a case of cruelty.”
9. Thus, this Court finds that the only allegation is the vague statement which is found in the 161 Cr.P.C statements which is extracted above. The nature of dowry demand and the nature of cruelty and as to when it was made are not found anywhere in the charge sheet. Thus, no prima facie case is made out to attract the offence of Section 498A IPC.
10.As regards the offence under Section 306 IPC, it is well settled that in order to constitute the offence of abetment, there must be a positive averment which suggest that there was an intention on the part of the accused to instigate to do that thing, i.e., to instigate the commission of suicide which is one form of abetment. The second and third modes of abetment namely, engaging is conspiracy and intentionally aiding does not arise in the case of this nature. In order to constitute abetment by instigation, unless the evidence/allegation is of such nature that the accused intended to provoke, incite or encourage doing an act, the act of mere harassment even if found to be true, cannot be the basis for charging a person for abetment to commit suicide. In this regard, the judgment of the Hon’ble Apex Court in the case of Gangula Mohan Reddy v. State of Andhra Pradesh reported in (2010) 1 SCC 750, which elaborately discusses the law on the subject, is extracted hereunder for better appreciation:-
“10. “Abetment” has been defined under Section 107 of the Code. We deem it appropriate to reproduce Section 107, which reads as under:
“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 2 which has been inserted along with Section 107 reads as under:
“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.”
11. The learned counsel for the appellant has placed reliance on a judgment of this Court in Mahendra Singh v. State of M.P. [1995 Supp (3) SCC 731 : 1995 SCC (Cri) 1157] In Mahendra Singh [1995 Supp (3) SCC 731 : 1995 SCC (Cri) 1157], the allegations levelled were as under:(SCC p.731, para 1)
“1. … My mother-in-law and husband and sister- in-law (husband’s elder brother’s wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed
I want to die by burning.” The Court on the aforementioned allegations came to a definite conclusion that by no stretch the ingredients of abetment are attracted on the statement of the deceased. According to the appellant, the conviction of the appellant under Section 306 IPC merely on the basis of the aforementioned allegation of harassment of the deceased is unsustainable in law.
12. The learned counsel also placed reliance on another judgment of this Court in Ramesh Kumar v. State of Chhattisgarh [(2001) 9 SCC 618 : 2002 SCC (Cri) 1088] . A three-Judge Bench of this Court had an occasion to deal with a case of a similar nature. In a dispute between the husband and wife, the appellant husband uttered “you are free to do whatever you wish and go wherever you like”. Thereafter, the wife of the appellant Ramesh Kumar committed suicide. The Court in para 20 has examined different shades of the meaning of “instigation”. Para 20 reads as under: (SCC p. 629)
“20. Instigation is to goad, urge forward, provoke, incite or encourage to do ‘an act’. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.”
13. In State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73 : 1994 SCC (Cri) 107] this Court has cautioned that the court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.
14. The Court in Ramesh Kumar case [(2001) 9 SCC 618 : 2002 SCC (Cri) 1088] came to the conclusion that there is no evidence and material available on record wherefrom an inference of the appellant-accused having abetted commission of suicide by Seema may necessarily be drawn.
15. In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day-to-day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation.
16. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) [(2009) 16 SCC 605 : (2009) 11 Scale 24] had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the words “instigation” and “goading”. The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person’s suicidability pattern is different from the other. Each person has his own idea of self-esteem and self- respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.
17. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide.”
11. Further in Gurcharan Singh v. State of Punjab reported in (2020)
10 SCC 200 in paragraphs 15, 16, 17 and 18 it is observed as follows :-
15. As in all crimes, mens rea has to be established. To prove the offence of abetment, as specified under Section 107 IPC, the state of mind to commit a particular crime must be visible, to determine the culpability. In order to prove mens rea, there has to be something on record to establish or show that the appellant herein had a guilty mind and in furtherance of that state of mind, abetted the suicide of the deceased. The ingredient of mens rea cannot be assumed to be ostensibly present but has to be visible and conspicuous. However, what transpires in the present matter is that both the trial court as well as the High Court never examined whether the appellant had the mens rea for the crime he is held to have committed. The conviction of the appellant by the trial court as well as the High Court on the theory that the woman with two young kids might have committed suicide possibly because of the harassment faced by her in the matrimonial house is not at all borne out by the evidence in the case. Testimonies of the PWs do not show that the wife was unhappy because of the appellant and she was forced to take such a step on his account.
16.The necessary ingredients for the offence under Section 306 IPC were considered in S.S. Chheena v.
Vijay Kumar Mahajan [S.S. Chheena v. Vijay Kumar Mahajan, (2010) 12 SCC 190 : (2011) 2 SCC (Cri) 465] where explaining the concept of abetment, Dalveer Bhandari, J. wrote as under :
“25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.”
17. While dealing with a case of abetment of suicide in
Amalendu Pal v. State of W.B. [Amalendu Pal v. State of W.B., (2010) 1 SCC 707 : (2010) 1 SCC (Cri) 896] , Dr M.K. Sharma, J. writing for the Division Bench explained the parameters of Section 306 IPC in the following terms : (SCC p. 712, paras 12-13)
“12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.
13. In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC.”
18. In Mangat Ram v. State of Haryana [Mangat Ram v. State of Haryana, (2014) 12 SCC 595 : (2014) 5 SCC (Cri) 127] , which again was a case of wife’s unnatural death, speaking for the Division Bench, K.S.P. Radhakrishnan, J. rightly observed as under : (SCC p. 606, para 24)
“24. We find it difficult to comprehend the reasoning of the High Court [Mangat Ram v. State of Haryana, Criminal Appeal No. 592-SB of 1997, decided on 27-5-2008 (P&H)] that “no prudent man is to commit suicide unless abetted to do so”. A woman may attempt to commit suicide due to various reasons, such as, depression, financial difficulties, disappointment in love, tired of domestic worries, acute or chronic ailments and so on and need not be due to abetment. The reasoning of the High Court that no prudent man will commit suicide unless abetted to do so by someone else, is a perverse reasoning.”
12.Further, this Court in a similar case in Crl.O.P.No.13628 of 2014 dated 05.08.2014 (Sajojini vs. State) had held as follows:-
“11.By referring to above cited observations, the Hon’ble Supreme court in the decision reported in (2010) 1 SCC 750 is of the view that the abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing and there must be a positive act on the part of the accused to instigate or aid in committing suicide and such act must have been intended to push the deceased into such a position to commit suicide failing which conviction cannot be sustained. However, in this case, the act complained of is not one such positive act on the side of the petitioner, as such, no prima facie case is made out against the petitioner for the offence under section 306 IPC. Further, the same act, being one single incident of such nature, will not attract the ingredients of section 498A also.”
13.We have already held that in the instant case, cruelty on account of dowry demand has not been established and the offence of Section 498A IPC has not been made out for the reasons stated above. When the allegations in the impugned charge sheet does not even constitute the offence Section 498A IPC, there is no question of inferring instigation to commit suicide on account of cruelty suffered by the deceased due to act of the petitioners. Applying the principles laid down by the Hon’ble Apex Court and this Court, this Court finds that in the instant case, there is no allegation of any positive act committed by the petitioners to instigate the deceased to commit suicide. There is nothing to suggest that there was cruelty and that cruelty/harassment allegedly meted out to the victim had left her with no other alternative, but to put an end to her life. In such circumstances, the proceedings against the petitioners is an abuse of process of law and hence, the same is liable to be quashed.
14.Accordingly, both the Criminal Original Petitions are allowed and the
Charge Sheet in P.R.C.No.54 of 2014 on the file of the learned Judicial Magistrate Court, Uthamapalayam is quashed in entirety. Consequently, connected miscellaneous petitions are closed.
08.02.2023
NCC : Yes / No
Index : Yes / No Internet : Yes/ No
skn
To
1.The Special Judicial Magistrate,
Special Court for Exclusive Trial of Land Grabbing Cases, Madurai.
2.The Inspector of Police,
City Crime Branch,
Madurai City,
(In Crime No.74 of 2017).
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai. 
SUNDER MOHAN, J.
skn
Common Order made in
Crl.O.P.(MD).Nos.3572 of 2019 and 10021 of 2021 and Crl.M.P.(MD).Nos.2023 of 2019, 5121 & 5122 of 2021
08.02.2023

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