Raj Sharma Vs. State of
INSC 593 (7 April 2008)
DR. ARIJIT PASAYAT & P. SATHASIVAM
REPORTABLE CRIMINAL APPEAL NO.1464 OF 2007 Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the order passed by a learned Single Judge
of the Punjab and Haryana High Court upholding appellant's conviction for
offence punishable under Section 306 of the Indian Penal Code, 1860 (in short
'IPC') and sentence of 7 years RI.
2. Background facts in a nutshell are as follows:
First Information Report lodged by Shri Rajiv Lochan Jain (PW4) was to the
effect that Jyoti (hereinafter referred to as the 'deceased') had written in
her letter that her husband Sohan Raj Sharma the accused-appellant was
torturing him for sex in many different ways, mostly pervert and tired of the
same, she had poisoned her children, and had consumed poison herself. The FIR
is further to the effect that appellant- Sohan Raj Sharma, because of the
circumstances, had compelled Jyoti to consume poison. The first endorsement of
the Investigating Officer ASI Rohtash Singh (PW10) on the statement Ex.PL of
Shri Rajiv Lochan Jain (PW4) is Ex.PL/1 and it is to the effect that on his
reaching B.K. Hospital Faridabad alongwith other police officials, Shri Rajiv
Lochan Jain had handed him over one letter (Ex.PX ) of eight pages which was
taken into possession of the police vide memo Ex.PM and from the statement of
Shri Rajiv Lochan Jain and the letter produced by him, the allegations of
commission of offences punishable under Section 306 IPC on the part of the
Sohan Raj Sharma were made out. Statement Ex. PL/1, the statement Ex. PL
alongwith endorsement Ex.PL/1 was sent to the police station for registration
of the case on which formal FIR was recorded. During investigation, the
incriminating evidence in the form of medical evidence regarding death of
Jyoti, Pinki and Gudiya having been caused due to consumption of poison
surfaced. Further the report regarding letter (Ex.PX) and other oral evidence
of the witnesses regarding circumstances connected with the occurrence were
collected. Accused Sohan Raj Sharma was put on trial for offence punishable u/s
306 IPC, he was challaned by the police and was committed to the court of
Sessions for trial by the Illaqa Magistrate.
3. Prosecution examined 11 witnesses and exhibited several documents. Most
vital one is purported suicide note Ex.PX.
Appellant took the stand during examination under Section 313 of the Code of
Criminal Procedure, 1973 (in for 'Code') that she was never married to the
deceased officially. It also alleged that she was a lesbian and in proof of
this stand, one Anita Parmar was examined as DW1. The Trial Court found the
contents of Ex.PX satisfied ingredients of Section 306 IPC.
Accordingly, the appellant was found guilty and convicted and sentenced as
4. In appeal before the High Court, the stand taken before the Trial Court
that ingredients of Section 306 IPC have not been fulfilled was reiterated.
Stand of the prosecution was that the ingredients have been established.
5. The High Court found that Ex.PX was sufficient to show as to what was the
reason for deceased committing suicide.
6. Learned counsel for the appellant submitted that letter Ex.PX in no way
establishes that the appellant had abeted the suicide. As a matter of fact, the
fact that the deceased took the lives of two innocent children and then
committed suicide without any doubt establishes that she was mentally unsound.
The letter at the most describes the accused as a sexual pervert, but his
behaviour, if any, cannot be taken to be an act of abeting the suicide. It is
pointed out that in Ex Px she has clearly stated that she wanted to take
7. Learned counsel for the respondents-State on the other hand supported the
judgment of the courts below.
Section 306 IPC deals with abetment of suicide. The said provision reads as
"306 ABETMENT OF SUICIDE.
If any person commits suicide, whoever abets the commission of such suicide,
shall be punished with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine."
8. Abetment involves a mental process of instigating a person or
intentionally aiding that person in doing of a thing.
In cases of conspiracy also it would involve that mental process of entering
into conspiracy for the doing of that thing.
More active role which can be described as instigating or aiding the doing
of a thing it required before a person can be said to be abetting the
commission of offence under Section 306 of IPC.
9. In State of West Bengal v. Orilal Jaiswal (AIR 1994 SC 1418) this Court
has observed that the courts should be extremely careful in assessing the facts
and circumstances of each case and the evidence adduced in the trial for the
purpose of finding whether the cruelty meted out to the victim had in fact
induced her to end her life by committing suicide.
If it transpires to the Court that a victim committing suicide was
hypersensitive to ordinary petulance, discord and differences in domestic life
quite common to the society to which the victim belonged and such petulance
discord and differences were not expected to induce a similarly circumstanced
individual in a given society to commit suicide, the conscience of the Court
should not be satisfied for basing a finding that the accused charged of
abetting the offence of suicide should be found guilty.
10. Section 107 IPC defines abetment of a thing. The offence of abetment is
a separate and distinct offence provided in the Act as an offence. A person,
abets the doing of a thing when (1) he instigates any person to do that thing;
or (2) engages with one or more other persons in any conspiracy for the doing
of that thing; or (3) intentionally aids, by act or illegal omission, the doing
of that thing. These things are essential to complete abetment as a crime. The
word "instigate" literally means to provoke, incite, urge on or bring
about by persuasion to do any thing. The abetment may be by instigation,
conspiracy or intentional aid, as provided in the three clauses of Section 107.
Section 109 provides that if the act abetted is committed in consequence of
abetment and there is no provision for the punishment of such abetment, then
the offender is to be punished with the punishment provided for the original
offence. 'Abetted' in Section 109 means the specific offence abetted.
Therefore, the offence for the abetment of which a person is charged with the
abetment is normally linked with the proved offence
11. In cases of alleged abetment of suicide there must be proof of direct or
indirect acts of incitement to the commission of suicide. The mere fact that
the husband treated the deceased-wife with cruelty is not enough. [See Mahinder
Singh v. State of M.P. (1995 AIR SCW 4570)].
12. When the factual scenario is examined, it is clear that the accused has
been described as a sexual pervert and that he had behaved like an animal and
the deceased had tolerated the insulting manner in which he behaved. They were
married in court. It was stated that the accused was impotent and he was trying
to defame the deceased for having relationship with ladies.
13. The most significant part of the letter the deceased had written is as
"I desired to kill you alongwith us but no, if you have any sense of
shame you will die as a result of the sequence of events. But it do not make
any difference for shameless person because these abuses will sound as correct
if you realize your capacity. You have not spent even eight days in a period of
eight years in peace with me. You yourself are responsible for death of these
children. Flowers had been prayed for from the deities of your family regarding
whom you disclosed "they are not mine they are with me from my friend.
(girl friend) on, you, the condemned the day children will be born as a result
of co- habitation of a woman with woman, a woman will stop giving birth to man
(Underlined for emphasis)
14. Above being the factual scenario, it cannot be said that the ingredients
of Section 306 IPC have been established.
Therefore, the conviction as recorded cannot be maintained.
The order of the High Court is set aside. The appellant be released
forthwith unless required in connection with other case.