Law Web: Whether father can be held guilty for abetment of suicide of son if father is drunkard?

In Father Peter Paul Antony Vs. State of Maharashtra,

reported in 2014 ALL MR (Cri) 3429, in paragraph nos. 20 and

21, this Court observed thus:

“20. In the light of above facts and settled legal

position, it is noted that even if a person would

commit suicide because of certain acts of the accused,

the accused cannot be said to have committed

abetment of suicide by the deceased unless the

accused would intend, while causing such acts to the

victim, that he/she should commit suicide. As such, it

is necessary for the prosecution to establish that by his

acts, the applicant/accused could reasonably foresee

that because of his conduct, the victim was almost

certain or at least, quite likely to commit suicide.

Unless this is established, a person cannot be charged

of having abetted commission of suicide, even if,

suicide has been committed as a result of some of the

acts committed by the accused.

In the case of Sanju (supra), it is seen that

even in the case where the accused had uttered words

such as "go and die" in abusive and humiliating

language which, allegedly, led to committing of

suicide, it was held that it would not amount to

instigation and consequently, there would be no

offence of abetment of suicide.

21. In the application on hand, there is

absolutely no evidence to establish that on the day of

incident or immediately prior to the deceased

committing suicide, applicant has instigated or

abetted deceased to commit the same. In that view of

the matter, applicant cannot be attributed the

requisite mens rea so as to hold him guilty as abettor.

This appears to be fundamental defect in the case of

prosecution and it does not spell out any offence

punishable under Section 305 of Indian Penal Code.

19. Thus, I am of the view that the deceased was not

denied any basic amenities to his life by the appellant. Further,

though it is the case of the prosecution that the deceased used to

prosecute his studies, there is nothing brought on record to show

that at any point of time, the deceased was declared unsuccessful

in any of his academic year. In the light of evidence of Hemant

(PW4) and Pooja (PW2), it is clear that there was no objection for

the deceased even to withdraw huge amounts from the account of

appellant by using ATM though the deceased, who was only in the

9th standard. Not only that, this evidence would show that the

deceased was also permitted to retain an amount of Rs.1,000/-

and looking to his age, in my view, it is a very huge amount. The

admitted position also speaks that the mother of the deceased was

a psychic patient having nothing to do with drinking of the

appellant. Therefore, he used to be always under depressed

condition. Different persons may react differently to the same

situation. Therefore, merely because the deceased by writing a

note mentioning about the drinking habit of his father and

committed suicide, in my view, it cannot be treated as an

abetment, especially when the prosecution evidence falls short to

show that there used to be ill treatment at the hands of the

appellant under the influence of liquor to the deceased so as to

drive the deceased to take the extreme step of his life.

In my view, the learned Judge of the Court below has

swayed away with the fact that the deceased boy was required to

commit suicide for an admitted position that the appellant was a

drunkard. Merely drinking can never be an abetment for a person

to commit suicide.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR

CRIMINAL APPEAL NO.391/2015

Ramrao Kisan Rathod, Vs State of Maharashtra

CORAM:- V. M. DESHPANDE, J.

DATED :- 04.01.2020.

1. Present appeal is directed against the judgment and

order of conviction passed by learned Additional Sessions Judge,

Washim dated 03.09.2015 in Sessions Trial No.130/2013. By the

said judgment and order of conviction, appellant stands convicted

for an offence punishable under Section 305 of the Indian Penal

Code (IPC) and is directed to suffer rigorous imprisonment for ten

years and to pay a fine of Rs.10,000/-, in default to suffer simple

imprisonment for six months.

2. Heard Mr. Chande, learned counsel for appellant and

Mr.Thakare, learned A.P.P. for respondent-State. With assistance

of both the learned counsel, I have gone through the record and

proceedings. Both the learned counsel submitted their cases

vehemently and prayed for their respective reliefs.

3. Rameshwar Chavhan (PW9), while he was discharging

his duties as Police Sub Inspector (PSI) at Police Station, Washim,

sent one Police Constable Umesh Bibekar to Civil Hospital,

Washim to protect a dead body. On 25.10.2012, Rameshwar

Chavan carried inquest panchanama (Exh.36) in presence of

pancha witness Subhash Chavan (PW3). During the course of

preparing inquest panchanama, one chit was found in the left side

pocket of the shirt of the deceased. The same was seized under

seizure panchanama (Exh.-37). The chit (Exh.-28) is available on

record. The chit was containing recitals that the deceased

committed suicide being fed up by harassment and ill treatment at

the hands of the appellant. PSI Chavan (PW9) also prepared spot

panchanama (Exh.-59). While preparing spot panchanama, two

notebooks were seized from the drawing room of the house of the

deceased. Pooja (PW2), sister of the deceased, informed that

those notebooks are of the deceased.

4. In the meanwhile, Sandip Pawar (PW1), maternal

uncle of the deceased, lodged a written complaint (Exh.26). On

the basis of the written complaint, Varsha Mate (PW7), registered

the crime against the appellant vide Crime No.220/2012 for the

offence punishable under Section 306 of the IPC.

5. After registration of crime, investigation was taken up

by Rameshwar Chavan (PW9). He conducted usual investigation

and also sent the suicide note along with the note book to the

handwriting expert. After completion of investigation, charge was

framed for the offence punishable under Section 306 of the IPC.

Appellant denied the charge and claimed for his trial. In order to

prove its charge, prosecution examined in all ten witnesses and

also relied on various documents especially suicide note (Exh.-28).

During the course of trial, charge was altered and the appellant

was charged for the offence punishable under Section 305 of the

IPC, looking to the fact that the deceased was only 16 years of age

at the time of commission of suicide.

6. Dr. Swati Giri (PW6), at the relevant time, was working

as Government Medial Officer. On 25.10.2012, she conducted

autopsy on the dead body of Pavan Rathod. No external injuries

were found on the dead body. However, she noticed internal

injuries i.e. fracture of posterior horns of thyroid cartilage. She

also found marks situated above the level of thyroid cartilage

between larynx and chin. The probable cause of death is the result

of asphyxia due to hanging. She proved post mortem report

(Exh.-47).

In view of the medical evidence, it is clear that Pavan

met unnatural death due to step which he took to hang himself.

7. The question that this Court is required to answer is

whether appellant is responsible and/or has abetted commission

of suicide of deceased Pavan, as claimed by the prosecution.

8. In order to prove its charge of abetment, prosecution

has examined Sandip Pawar (PW1), Pooja Rathod (PW2), Renuka

Pawar (PW8) and also relied on suicide note (Exh.-28).

Sandip (PW1) is maternal uncle of deceased whereas

Pooja (PW2) is real sister of deceased. Renuka (PW8) is maternal

grandmother of deceased. All these three witnesses have turned

hostile. However, to reach to the truth, their evidence is required

to be seen.

9. Sandip (PW1) who has lodged his written report (Exh.-

26) on the basis of which printed FIR (Exh.-27) was prepared by

PSI Varsha Mate (PW7). In addition to these three closely related

witnesses of the deceased, the prosecution has also examined

Hemant Dongare (PW4), friend of the deceased and his mother

Asha Dongare (PW5). They have fully supported the prosecution

case. As per the report, marriage of the appellant took place with

Kavita in the year 1991 and from their wedlock, the couple was

having two daughters and one son. Son was deceased Pavan

whereas two daughters were Pooja (PW2) and Arti. According to

the report, appellant was habituated to liquor and was a drunkard.

According to the FIR, under the influence of liquor, he used to

take up quarrels with his wife Kavita and also used to maltreat his

three progeny. According to the report, the appellant’s behaviour

was narrated by the deceased.

10. Sandip (PW1) has turned hostile and did state before

the Court as to why said narration is mentioned in the FIR. In my

view, the said aspect is rightly considered by the learned trial

Court by observing that the report (Exh.26) was a written report.

Therefore, he cannot claim ignorance. Obviously, it appears that

to save skin of the appellant, he has turned hostile. Even though

the witnesses have turned hostile, the Courts are not barred from

evaluating their respective evidence to reach to the conclusion as

to whether the person charged has committed the offence or not.

Appreciation of the evidence of hostile witness has to be done by

Court with same standard when the Courts evaluate the evidence

of the prosecution witnesses who support the prosecution case

with a caveat that while appreciating the evidence of such hostile

witnesses, the Courts must put itself to the strict guard and should

not sway away with the evidence, as adduced by such witnesses

who do not support the prosecution.

11. Evidence of Vinodkumar (PW10), was Assistant State

Examiner of Documents of CID, clearly shows that the handwriting

in suicide note (Exh.-28) is identical to the handwriting in the

notebook which were of deceased Pavan. From opinion (Exh.88)

of Vinodkumar (PW10) and cross-examination of this handwriting

expert, it is crystal clear that his evidence is not at all challenged

during the course of trial by the defence.

12. Evidence of Hemant (PW4) would show that deceased

was his friend. His evidence would show that appellant and his

wife used to quarrel inter se. The appellant used to be under the

influence of liquor.

As per his evidence, on the date of incident i.e. on

24.10.2012, it was the day of Dashera. He and deceased went for

fetching Mango leaves and Marigold flowers. Thereafter, the

deceased went to attend his tuition. His evidence would further

show that at 02.00 p.m., he received a phone call from the

deceased requesting him to go to movie hall to view the movie

called “Student of the Year” and thereafter they, on the motorcycle

of the deceased, went to the cinema hall. His evidence would

show that thereafter the deceased purchased new jerkin and at

6.30 p.m. they returned to home and they were chit-chatting in

front of his house for about 15 minutes. Later on, both of them

went to their respective places. As per the evidence of Hemant

(PW4), after 15 minutes, he got the information that the deceased

has committed suicide.

13. Asha (PW5) mother of Hemant also deposed from the

witness box that appellant was a drunkard though she claims in

her evidence that there used to be frequent quarrels between

appellant and deceased. On the said aspect, evidence of Hemant

is conspicuously silent. Had there used to be quarrels between the

appellant and the deceased, it would not have missed from the

notice of Hemant, being a close friend of the deceased.

From the evidence of Asha, it is clear that her son

Hemant was elder than deceased as at the relevant time, Hemant

was studying in 12th standard whereas the deceased was studying

in 9th standard. What is important to note from the evidence of

Asha is that she was knowing that the deceased used to always

remain depressed apart from the fact that she has never seen

personally the appellant beating Pawan.

14. It is noteworthy to mention here that the evidence of

Hemant (PW4) shows the following recitals:

“After entering the Court, I have gone through my

statement.”

From the aforesaid evidence it is clear that Hemant had

read the previous statements which is impermissible in view of the

law laid down by this Court in Suresh s/o Purushottam

Ashtankar .vs. The State of Maharashtra and anr.; reported in

2015 ALL MR (Cri) 4243.

15. In the backdrop of the evidence of Ashabai (PW5), now

let us scrutinize evidence of Pooja (PW2) as the witness was

thoroughly cross-examined by the learned A.P.P. for the State who

was incharge of the brief. From the evidence, it is clear that on

24.10.2012 i.e. on the date of incident itself, deceased withdrew

Rs.12,000/- from the account of appellant from Automated Teller

Machine (ATM) for household expenses and out of that

Rs.11,000/- was given by him to Pooja (PW2) for household

expenses and Rs.1,000/- was kept by deceased himself. This

evidence of Pooja, in my view, has a ring of truth inasmuch as the

evidence of Hemant (PW4) on the day of incident in the noon

hours, the deceased made a phone call to Hemant and asked him

to accompany for watching a movie in the cinema hall and

thereafter he purchased a new jerkin. That shows that deceased

was having sufficient money with him apart from the fact that this

duo went to cinema hall and purchased clothes on the motorcycle

of deceased that shows that deceased was having his motorcycle

and therefore, in my view, it does not lie in the mouth of the

prosecution that the deceased was subjected to denial of the basic

amenities in his day to day life. Even evidence of Renuka (PW8),

maternal grandmother is very clear. In the cross-examination by

the learned A.P.P., it is brought on record that his daughter i.e.

mother of the deceased and wife of the appellant was a psychic

patient. Therefore, deceased used to be under great mental stress.

It is an admitted position on record that Kavita, wife of the

appellant, was mentally disturbed since long and has nothing to

do with drinking habit of the appellant. If that be so, if his mother

is having mental disturbances, her child Pavan, would also be

under mental stress and, in my view, this is the most natural

phenomenon.

16. The law on abetment to commit suicide is well

crystallized by numerous decisions of the Hon’ble Apex Court as

well as this Court. Section 107 of the IPC defines abetment of a

thing, which reads thus:

“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.”

17. The only difference between Sections 305 and 306 of

the Indian Penal Code is that Section 305 is a punishing section

for abetting an insane or a child whereas Section 306 of the IPC is

a punishing section for the accused who abetted any other person

to commit suicide. However, in my view, the parameters for

deciding the fact under Section 305 and Section 306 of the IPC are

identical.

18. In Father Peter Paul Antony Vs. State of Maharashtra,