S.S. Chheena V/S Vijay Kumar Mahajan & Another (CRIMINAL APPEAL NO. 1503 OF 2010-12-08-2010)

REPORTABLE



IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1503 OF 2010
(Arising out of SLP (Crl) No.6811 of 2009)

S.S. Chheena .. Appellant

Versus

Vijay Kumar Mahajan & Another .. Respondents




JUDGMENT



Dalveer Bhandari, J.

1. Leave granted.


2. This appeal is directed against the judgment of the High

Court of Punjab & Haryana at Chandigarh in Criminal

Revision No.1800 of 2008 dated 17.2.2009.





3. The appellant S.S. Chheena was a Security Officer at

Guru Nanak Dev University, Amritsar. This job was accepted

by him after his retirement from the Indian Police Service
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(IPS). He is seriously aggrieved by the order of the Additional

Sessions Judge, Amritsar by which he had framed a charge

against the appellant under section 306 of the Indian Penal

Code (for short, IPC).


4. Brief facts necessary to dispose of this appeal are as

under:-

On 13.10.2003, a dispute arose between the son of the

complainant, namely, Saurav Mahajan, deceased who was a

final year student of the Law Department and Harminder

Singh, a fellow student of the same class. The dispute was

with regard to the theft of a mobile phone which came to the

notice of M.D. Singh, the then Head of the Law Department on

13.10.2003, pursuant to which M.D. Singh asked both the

students, i.e., Saurav Mahajan, deceased and Harminder

Singh alias Montu to submit their versions of the incident in

writing.


5. The deceased and Harminder Singh gave their written

versions of the incident and thereafter M.D. Singh forwarded

their versions to the University authorities for taking

necessary action. Consequently, the enquiry was conducted
3

on 13.10.2003 by the Security Officer of the University - the

appellant herein. During the course of the enquiry, on

17.10.2003, the son of the complainant committed suicide by

jumping in front of a train. Subsequently, during the search,

a suicide note was recovered from the pocket of the deceased

dated 16.10.2003. The suicide note is important for

adjudicating and deciding this appeal. The said suicide note

is reproduced as under:-

"SUICIDE NOTE

I am Saurav Mahajan a final year student of
Department of Law of GNDU. Montu had levelled a
false allegation upon me. I am very annoyed
because a false allegation has been levelled upon
me. I have a faith that this allegation is false,
accused Montu and his accomplices will be arrested
and I will be declared as innocent. The reason of
my annoyance is that I am falsely involved as I did
not commit any theft. A dying person will not speak
falsely. I have not committed this theft.

According to me, the theft has been committed
by Harminder Singh in connivance with his
accomplices. Harminder Singh says that on the day
when the Mobile was stolen, he was taking the test.
I made request to Mr. Chhina to see as to whether
he was engaged in the test or not? Or he had not
completed the whole test, came out a little before
the fixed time, and committed theft. Examination
sheet of the said day of Harminder Singh be seen.
Harminder Singh had admitted two things in the
presence of M.D. Singh, HOD of the Law
Department, i.e. (1) he had played a joke with me
4

(2) Harminder Singh admitted that he had
demanded money from me.

Chhina Sahib, M.D. Singh, while dying, I will
not speak untrue. I have not committed any theft.
Real thief is Montu. He has falsely involved my
name. Harminder Singh cannot prove this at any
cost because he is totally wrong. On the other
hand, he has admitted that he had sold this
Reliance set to his friends and has falsely leveled
this allegation against me.

I request my uncle/aunt, mother/father to
forgive me that I tried my best to fulfill their
expected wishes but could not do the same because
Harminder Singh has leveled false allegation against
me. I want to say this thing again that I am
innocent and request my mother/father that they
may not make any complaint regarding my suicide.
I will also say to Chhina Sahib even if they give
justice and leave me but the people will have a
suspicion about me. I am taking this step on
account of my insult. Harminder Singh and his
accomplices are responsible for my suicide or MD
Singh who did not take into account my faith and
without consulting me, has forwarded this case.

Dated: 16.10.2003 Sd/-
Saurav Mahajan


I have not committed any theft and I am not
involved with Montu and his accomplices are
responsible of my this step. Till today, I have not
spoken badly to any one but, however, if any
mistake had been done by me to anybody, please
forgive me.
Sd/-
Saurav Mahajan"
5

6. In the suicide note it is stated that he (Saurav Mahajan)

did not commit the theft and he had committed suicide

because he was falsely implicated in the theft case of a mobile

phone. He further mentioned in the suicide note that

Harminder Singh and his accomplices were responsible for

this act. On the basis of the suicide note a FIR No.81 dated

17.10.2003 under section 306 of the IPC was registered at the

Police Station, GRPS, Amritsar. In the said FIR, the suicide

note of the deceased has been reproduced and on the basis of

the same, Harminder Singh was implicated under section 306

IPC along with M.D. Singh. It is pertinent to mention that in

the said FIR, the appellant, namely, S.S. Chheena, the

Security Officer was not even named as an accused.


7. The complainant had approached the Punjab State

Human Rights Commission, Chandigarh, but, the Commission

had also refused to interfere in the investigation conducted in

FIR No.81 dated 17.10.2003.


8. A report under section 173 of the Code of Criminal

Procedure was submitted only against Harminder Singh.
6

Pursuant to the presentation of the Challan, charges were

framed against Harminder Singh @ Montu.


9. The complainant, being father of the deceased filed a

private complaint in the court of learned Additional Chief

Judicial Magistrate, Amritsar, in which it was alleged that the

appellant S.S. Chheena and M.D. Singh were responsible for

abetting the suicide of his son and sought for their trial under

section 306 IPC.


10. During the course of the trial, an application was moved

by the Public Prosecutor for summoning of the appellant and

M.D. Singh, the then Head of the Department of Law of Guru

Nanak Dev University, Amritsar under section 319 Cr.P.C.

The learned Additional Chief Judicial Magistrate, Amritsar, on

the basis of the said complaint, summoned the appellant as

well as M.D. Singh to face trial under section 306 IPC. The

trial court dismissed the application under section 319 Cr.P.C.

being not pressed as the appellant and his co-accused stood

summoned in the complaint case. The trial court clubbed the

complaint case with the State case and ordered for framing of

the charge under section 306 IPC. Accordingly, a charge-sheet
7

was filed against the appellant along with Harminder Singh @

Montu.


11. The appellant, aggrieved by the framing of the charge

moved the High Court in the Revision Petition which was

dismissed on 17.2.2009. Against that order, the appellant has

approached this court.


12. The High Court observed that the material against the

appellant was not just the suicide note but also includes

threats, humiliating phrases etc. addressed to the deceased

and his father over a period of few days.


13. According to the appellant, it may be significant to

mention that if the threat or the humiliating phrases etc. by

the appellant had any impact on the deceased's mind or had

led to the abetment to commit suicide then all these facts

ought to have been mentioned in the suicide note. In the

suicide note nothing had been mentioned against the

appellant. According to the appellant in absence of any

material against him, no charge could be framed against him

under section 306 of IPC.
8

14. The appellant submitted that the main question which

arises for adjudication is whether it would be just and fair to

compel the appellant to face the rigmarole of a criminal trial in

absence of any credible material against him? According to

the appellant, a careful reading of the suicide note clearly

leads to the conclusion that the appellant was not even

remotely connected with the offence of abetment. When the

appellant was in no manner connected with this case and

there was no credible material to connect the appellant with

the crime, in this view of the matter, according to the

appellant, it would be a futile exercise to compel him to

undergo the rigmarole of a criminal trial.


15. Learned counsel for the appellant has placed reliance on

the judgment of this court in Gangula Mohan Reddy v.

State of Andhra Pradesh (2010) 1 SCC 750 (in which one of

us, Bhandari, J., was the author of the said judgment). The

ratio of the said judgment is fully applicable to this case and

we deem it proper to rely and reproduce some parts of the

said judgment.
9

16. In order to properly comprehend the scope and ambit of

Section 306 IPC, it is important to carefully examine the basic

ingredients of Section 306 IPC. The said section is

reproduced as under:-

"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."


17. The word "suicide" in itself is nowhere defined in the

Penal Code, however its meaning and import is well known

and requires no explanation. "Sui" means "self" and "cide"

means "killing", thus implying an act of self-killing. In short, a

person committing suicide must commit it by himself,

irrespective of the means employed by him in achieving his

object of killing himself.


18. Suicide by itself is not an offence under either English or

Indian criminal law, though at one time it was a felony in

England. In England, the former law was of the nature of

being a deterrent to people as it provided penalties of two

types:
10

7 Degradation of corpse of the deceased by burying
it on the highway with a stake through its chest.

7 Forfeiture of property of the deceased by the
State.


19. This penalty was later distilled down to merely not

providing a full Christian burial, unless the deceased could be

proved to be of unsound mind. However, currently there is no

punishment for suicide after the enactment of the Suicide Act,

1961 which proclaims that the rule of law whereby it was a

crime for a person to commit suicide has been abrogated.


20. In our country, while suicide in itself is not an offence,

considering that the successful offender is beyond the reach of

law, attempt to suicide is an offence under Section 309 IPC.


21. "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
11

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."


22. 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. In Mahendra Singh, 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."


23. 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
12

aforementioned allegation of harassment of the deceased is

unsustainable in law.


24. The learned counsel also placed reliance on another

judgment of this Court in Ramesh Kumar v. State of

Chhattisgarh (2001) 9 SCC 618. In this case, 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




25. In this case, the court 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.



26. In State of West Bengal v. Orilal Jaiswal (1994) 1 SCC

73, 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



27. This Court in Chitresh Kumar Chopra v. State (Govt. of

NCT of Delhi) (2009) 16 SCC 605 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.


28. 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
15

that act must have been intended to push the deceased into

such a position that he committed suicide.


29. 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.


30. When we carefully scrutinize and critically examine the

facts of this case in the light of the settled legal position the

conclusion becomes obvious that no conviction can be legally

sustained without any credible evidence or material on record

against the appellant. The order of framing a charge under

section 306 IPC against the appellant is palpably erroneous

and unsustainable. It would be travesty of justice to compel

the appellant to face a criminal trial without any credible

material whatsoever. Consequently, the order of framing

charge under section 306 IPC against the appellant is quashed

and all proceedings pending against him are also set aside.
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31. As a result, the appeal is allowed and the impugned

judgment of the High Court is set aside.



.................................J.
(Dalveer Bhandari)



.................................J.
(K.S. Radhakrishnan)
New Delhi;
August 12, 2010