Abetment to suicide by a married woman

This article was written by Akshita Jain, a student of Vivekananda Institute of Professional Studies

Abstract

The aim of study is to critically analyse the existing laws on abetment of suicide and the
guidelines issued by Supreme Court of India with respect to different cases. There is sections for abetment of suicide in Indian penal code (IPC). Section 306 of the Indian Penal Code penalizes abetment of suicide. “S.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 not exceeding ten years, and shall also be liable to fine. “Section 306 prescribes punishment for abetment of suicide while section 309 punishes attempt to commit suicide. Abetment of attempt to commit suicide is outside the purview of section 306 and it is punishable only under section 309 read with section 107, IPC. In certain other jurisdictions, even though attempt to commit suicide is not a penal offence yet the abettor is made punishable. The provision there provides for the punishment of abetment of suicide as well as abetment of attempt to commit suicide. Thus, even where the punishment for attempt to commit suicide is not considered desirable, its abetment is made a penal offence. In other words, assisted suicide and assisted attempt to commit suicide are made punishable for cogent reasons in the interest of society. Such a provision is considered desirable to also prevent the danger inherent in the absence of such a penal provision.

In most of the cases it is the married woman who fall in prey of the offence of abetment of suicide due to the mental and physical cruelty meted on her by her husband or her in- laws due to many reasons, one of the major reason is the never ending dowry demand by in- laws and many more.

Key words – suicide, punishment, offence, abetment, abettor, dowry, cruelty

Introduction

In India, suicide is not an offence while attempt to suicide is a punishable offence and so is Abetment to suicide as mentioned under section 306 of IPC. Abetment to suicide is self-murder or self-destruction and it is done in many ways in which life itself can be destroyed. The reason for abetting other to commit suicide are numberless. In case of a married woman ending her life on her own in early years of marriage can be due to dowry demands, consequent taunts and cruelty are the major reasons. Those who aid and abet commission of suicide by the hand of the person himself who commits the suicide is punishable under the section 306 of IPC. Thus, section 306 of the INDIAN PENAL CODE penalizes Abetment to suicide. It reads as:

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.

When another person, at the request of or with the consent of the suicide, has killed that person, he would be guilty of culpable homicide under exception 5 to section 300 of IPC. It states that:

Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

Also, those who assist a Hindu widow in becoming sati will be guilty of abetment of suicide.¹

Section 306 prescribes punishment for abetment of suicide while section 309 punishes
attempt to commit suicide. Abetment of attempt to commit suicide is outside the purview of section 306 and it is punishable only under section 309 read with section 107, IPC. In certain other jurisdictions, even though attempt to commit suicide is not a penal offence yet the abettor is made punishable. The provision there provides for the punishment of abetment of suicide as well as abetment of attempt to commit suicide. Thus, even where the punishment for attempt to commit suicide is not considered desirable, its abetment is made a penal offence. In other words, assisted suicide and assisted attempt to commit suicide are made punishable for cogent reasons in the interest of society. Such a provision is considered desirable to also prevent the danger inherent in the absence of such a penal provision.

Research Problem:

Whether the laws relating abetment to suicide by a married woman in India are sufficient to curb suicide by women in early years of their marriage and judicial trends in the field of law?

Hypothesis:

Critical analysis of the prevailing laws laid down under penal code and other acts relating to
abetment of suicide in India.

Objective:

The aim of this study is to analyse about the abetment of suicide, especially the suicide by married woman, to study about the punishment under abetment of suicide and the judicial trends about the offence and to critically analyse the existing laws on abetment of suicide in India and the guidelines issued by Supreme Court of India with respect to different cases.

Methodology                                   

Research is based on secondary sources using books, articles, government gazettes, documents on different authors opinion, legislations and news articles.

Abetment

ABETMENT is an offence as defined under section 107 of Indian Penal Code, 1860. Abetment in its literal sense means, the instigation of a person to do (or not to do) an act in a certain way, or aid given by some person to another either of his own accord or under the provisions governing joint and constructive liability. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing

Important Elements of Abetment
The main ingredients to constitute the offence of abetment under section 107 are:

I. There must be an abetment

II. The abetment must be an offence or an act which would be an offence, if committed by a person capable in law of committing the offence with same intention or knowledge as that of the abettor.

III. Mens Rea or the Guilty mind.

Mens Rea is a very important element in abetting of an offence. Requirement of mens rea is considered as a pre-condition for liability of the offence of abetment.

Suicide

The word suicide in itself is nowhere defined in the Indian 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. Suicide is often carried out as a result of despair, the cause of which is frequently attributed to a mental disorder such as depression, bipolar disorder, schizophrenia, borderline personality disorder, alcoholism, or drug abuse. Stress factors such as financial difficulties or troubles with interpersonal relationships often play a role.

While a person who has completed suicide is beyond the reach of the law, as the crime abates with him. However, when a person is unsuccessful in commission of suicide or if the desired intention of the offender is not met in committing suicide, he is within the ambit of Indian penal code under section 309. This section is based on a reasonable public policy to prevent other person’s involvement, instigation and aiding in terminating one’s life. It takes care of the situation and threats imposed by death baiters.² Suicide is an exceptional crime where both the accused and victim are the same person affecting himself.

Abetment of suicide

Section 306 under Indian 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.

Creation of circumstances that provoked or forced wife to commit suicide attracts section 306 of IPC as observed in Brij Lal vs Prem Chand.³

Thus, 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 a direct act which lead the deceased to commit suicide seeing no other option and this act must have been intended to push the deceased into such a position that he committed suicide. Suicide is self-murder and the person committing suicide is beyond the reach of the law. Nevertheless, it does not follow that abetment of suicide is not forbidden by the code. A man encouraging and abetting another to commit suicide is certainly a criminal and his act is punishable under section 306. In fact, such an act is not only criminal but condemnable from every point of view.

To make out a case of abetment, there must be instigation by the accused—provoking, inciting or encouraging a person to do an act. The offence of abetment under this section must conform to the definition given under section 107 of Indian Penal Code, i.e., there must be instigation, cooperation or intentional assistance given to the person committing suicide. Before the actual conviction of a person under Sec. 306, it must be established that such other
person has committed suicide. Section 306 creates a specific offence and the liability does not arise in case of an attempted suicide which will attract section 309, IPC. The direct involvement by the accused in such abetment or instigation is necessary.⁴

Co- Relation between Section 107 and Section 306

Abetment of suicide involves a mental process of instigating a person or intentionally aiding a person in committing suicide. 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 the Supreme Court are 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 a direct act which let 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. No straight jacket formula can be laid down to find out as to whether in a particular case there has been instigation which force the person to commit suicide. In a particular case, there may not be direct evidence in regard to instigation which may have direct relationship between section 306 and Section 107. Therefore, in such a case an inference has to be drawn from the circumstances and it is to be determined whether circumstances had been such which in fact had created the situation that a person committed suicide.

Abetment of suicide by married woman

Most of the cases of suicide are of married young women in the early years of their marriage due a number of reasons such as dowry demands, cruelty etc. by her in laws that is why it is said that the person who meted out cruelty due to which she committed suicide is said to have abetted the woman to commit suicide and is liable under section 306 of IPC. Also, there is a presumption under section 113 of Indian Evidence Act, 1872 as to the abetment of suicide by a married woman. It reads as:113A. Presumption as to abetment of suicide by a married woman-When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume,

having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.”

Explanation- For the purposes of this section, “cruelty” shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860).]

The section states that if a woman commits suicide within seven years of her marriage due to the physical or mental cruelty subjected by her husband or his relatives (in laws) then the court may presume that her suicide has been abetted by the person who has treated her cruelly. The cruel behaviour may be due any of the reason which may include dowry demands, etc. A Court may presume and convict the husband (or his relatives) for harassing and subjecting his wife to ‘cruelty’ and there by driving her to commit suicide even if he (or his relatives) is (or are) not formally charged under section 306, IPC along with section 498A of the IPC. And where an accused is held guilty for cruelty under section 498A, he can, on the same evidence, be convicted under section 306, IPC, for abetting the suicide. Similarly, a court can convict a person under section 306, IPC, even if he is not charged under S. 498A, IPC.⁵

For attracting the provisions of 113A, I.E.A., 1872, the following things has to be proved:
1. Suicide must be committed by a married woman
2. Suicide must have been abetted by husband or any relative of her husband
3. Suicide must be committed within seven years of the marriage
4. She must have been subjected to cruelty (as defined in 498A of Indian Penal Code) by her
husband.

The presumption of abetment of suicide by a married woman is rebuttable. If the accused is able to prove that the woman has committed suicide by other reason or she was not harassed in her matrimonial house by her in-laws in the name of demanding more dowry. This presumption can be rebutted. There is a noteworthy fact that the presumption of 113A, Indian Evidence Act, is applicable only against the husband not against woman. This was revealed in an interesting case that came before the HC of Madhya Pradesh in 2000.

Presumption under section l13A, Indian Evidence Act, refers to one of the three ingredients of abetment as defined in section 107, IPC, i.e. instigation, conspiracy and intentional aiding of the act. Where conduct of the accused indicated that he did not want her to die even though he might have treated her cruelly earlier, it cannot be presumed that he abetted the suicide. The law of evidence being procedural law, sections 113A and 113B are retrospective in their application.⁶ They enact a rule of presumption. It should be noted that the initial burden of proof is on the prosecution. They enact a rule of presumption. It should be noted that the initial burden of proof is on the prosecution. In other words, on the prosecution discharging the initial burden of proof that the husband or in-laws subjected the woman to cruelty, etc, then the court will presume that the husband and the in-laws abetted the suicide by the woman. Similarly, once the initial burden that the woman died on account of demand for dowry, then the presumption under section 113B, IEA, 1872 will apply. Both the sections are retrospective. Thus, if at the date of occurrence, it is shown that within seven years of marriage, the married woman committed suicide or was murdered, the presumption will apply, even though this period commenced before the coming into force of the provisions of sections 113A and 113B of the Indian Evidence Act.

The mere fact that a married woman committed suicide within seven years of her marriage and that she was subjected to cruelty by her husband and his relatives does not automatically give rise the presumption that the suicide was abetted by the husband or his relatives, as the case may be. A court is not bound to presume that the accused persons have abetted the suicide even though the prosecution has established that the deceased woman committed suicide within a period of seven years of her marriage and that the accused subjected her to cruelty.⁷

The difficulties which arise in most of the cases of this nature are due to the following reasons:

• Direct evidence is hardly available.
• The circumstantial evidence is sometimes, so scanty that the accused escapes from the arm of law.
• Even accidental or suicidal deaths (without any abetment) are tried to pass on as dowry deaths and in such cases, proof is ordinarily not available.

Instigation or abetment can also be done by conduct of a person. As in case of Girija Shankar vs State of M.P.⁸, one Dinesh was married with Urmila. Sometimes after the searching for another bride for Dinesh. She was made to starve and work like a bonded labour and also subjected to mental and physical torture. One day her dead body was found in a well situated at a distance of about a furlong from the house of appellants. The three were tried under Section 302 of IPC and alternatively under Section 306 of IPC. They were found guilty under section 306. The court held that it is not necessary that instigation should be only in words or may not be by conduct. Direct evidence of any instigation or aid is not necessary. It is a matter which can be deduced from the circumstances. In this case maltreatment and starvation coupled with a search for another bride for their son was proved and therefore appellants were guilty of abetment of suicide.⁹

Judicial Decisions

In Praveen Pradhan vs State of Uttaranchal,¹⁰ it was held that for an act to constitute instigation must be with intention and words uttered in anger without any intention do not constitute instigation. In this case deceased was persistently harassed by accused superior. On one occasion accused disgraced deceased and told him that any other person in his place would have committed suicide. Charge- sheet for offence under Section 306 was filed against him. It was held not liable to be quashed.

In Arvind Kumar vs State of U.P.,¹¹ there was consistent reliable and trustworthy evidence to prove that accused husband constantly harassed, humiliated and tortured his wife for bringing insufficient dowry articles. Consequently, wife poured kerosene oil and set her body on fire and sustained 100 per cent burn injuries. Husband though present in house at the time of the incident made no attempt to save his deceased wife. He did not even bother to call doctor. Therefore, presumption contemplated under Section 113- A, Evidence Act would be attracted in facts and circumstances of the case. Accused husband failed to rebut that presumption. Therefore, conviction of accused under Section 306, IPC and Section 4 of Dowry Prohibition Act was held not to be illegal.

In Nachhatter Singh vs State of Punjab,¹² it was held that in case of suicide on account of cruelty, cruelty meted out must be of nature as would drive a person of common prudence to commit suicide. Expecting daughter- in- law to look after aged in- laws is not cruelty of category contemplated in Section 498-A, IPC. Therefore, conviction of appellant in- laws of deceased under Section 306 IPC held liable to be set aside. It was held by the Supreme Court that evidence of father and brother of deceased wife qua- harassment for demand of dowry by appellant husband was shaky. Evidence of neighbour completely dislodges statement of father and brother. Neighbour was not declared hostile. His statement is reliable. Every quarrel between husband and wife which results in suicide cannot be taken to abetment by husband. For abetment standard of reasonable and practical woman as compared to headstrong and over sensitive one is to be applied and hence appellant was acquitted.

 In Bimla Devi v State of Punjab¹³, the Punjab and the Haryana court said that merely providing that the married woman committed suicide within seven years of her marriage and that she was subjected to cruelty by her husband or in-laws was not sufficient to bring into operation presumption under section 113A. The Court should have regard to all other circumstances. Then only it should apply the presumption. Further, cruelty or harassment of the married woman by her husband or in-laws should be of such quality to drive or prompt her to commit suicide. It is only then that the court should apply the presumption of abetment to suicide. It may be emphasized that presumption will arise only when the married woman committing suicide was subjected to cruelty by the husband or in-laws. The presumption will apply if the woman had in fact committed suicide.

In Wazir Chand v. State of Haryana¹⁴, it was pleaded that the deceased was abetted to commit suicide. The husband and the father-in-law of the deceased pleaded that the deceased committed suicide of her own free will. In this case Veena, the deceased was married on 16.10.1983 and within less than a year of marriage she died after having sustained extensive burn injuries at the residence of her husband. She was shifted to a nursing home and within six hours she died. The prosecution was that not being satisfied with the dowry she brought, her husband and in-laws were making demands for further articles of dowry from Veena and her relatives and were harassing, humiliating, and insulting Veena and ultimately, she was driven to commit suicide by setting herself on fire. The case appears to be that she sprinkled kerosene on her clothes and set herself on fire. It is also the case of prosecution that, although Veena cried, the noise of her cries were suppressed by someone in family by putting on loudly a television set and that the neighbours and the outsiders whose attention was attracted by the cries of Veena were prevented from entering the residence as the doors were shut. It was also alleged by the prosecution that there was deliberate delay in taking Veena to the hospital where she died. The learned Additional Session Judge acquitted mother-in-law but convicted the husband and the father-in-law under section 306 and 498A of the Indian Penal Code. On appeal, the High court confirmed the sentence but reduced the sentence of the father-in-law under section 306 to three years. Later the Supreme court also confirmed the verdict of the High Court.

In Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi),¹⁵ the court dealt with the dictionary meaning of the word “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 suicidal pattern is different from the others. Each person has his own idea of self- esteem and self-respect. Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.

In Babulal Durichand Anchalia vs State of Gujarat,¹⁶ dated 30 October 2015 authored by Justice J.B. Pardiwala, it was observed that firstly the presumption is not mandatory; it is only permissive as the employment of expression “may presume” suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the Court shall have to have regard to ‘all the other circumstances of the case’. The expression :’ The other circumstances of the case’ used in Section 113A suggests the need to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption.

In Ramesh Kumar vs State of Chhattisgarh,¹⁷ in a dispute between the husband and wife, the husband uttered to the wife, “You are free to do whatever you wish and go wherever you like”. As a result of this statement, the wife committed suicide. The Court interpreted the term “instigation” again and declared that in order to satisfy the requirement of instigation, though the actual words must be used for such a consequence, yet a reasonable certainty to incite the consequence must be capable of being spelt out. A word uttered out of anger or emotion cannot be termed as “instigation”.

In Manikandan vs State,¹⁸ This has proved to be an imperative judgment in the history of landmark judgments. The Madras High Court held that merely being named in a Suicide Note does not invoke Section 306 IPC. The contents of the note need proper scrutinization to find out whether the accused falls within the ambit of abetment as mentioned under section 306. The Court further declared that “it is not the wish and willingness nor the desire of the victim to die, it must be the wish of the accused, it is the intention on the part of the accused that the victim should die that matters much. There must be a positive act on the part of the accused.”

Three recent decisions of High Courts reinforce the position that a mere suicide note naming a person does not constitute sufficient evidence of the offence of abetment. Justice AH Joshi of the Bombay High Court delivered a stark message: “This is no mathematical equation, that a suicide note plus threat equals abetment. If harassment is proved, show the proof.” He further said: “A threat to kill is not abetment. An advice to kill is also not abetment.” It is noteworthy that this appeal, filed by the woman victim’s family, was dismissed by the Court for non-appearance of the lawyer.

The second decision is by the Madurai Bench of the Madras High Court which relied on the Rajamannar case (2014) that said: “If a lover commits suicide due to love failure, if a student commits suicide because of his poor performance in the examination, a client commits suicide because his case is dismissed, the lady, examiner, lawyer respectively cannot be held to have abetted the commission of suicide. For the wrong decision taken by a coward, fool, idiot, a man of weak mentality, a man of frail mentality, another person cannot be blamed as having abetted his committing suicide.” But not all persons commit suicide because of such blameworthy reasons and a muscular app-roach is best avoided in apprising the evidence.

The Punjab and Haryana High Court was confronted by a situation where the victim, a manager (taxation) at a Gurgaon-based company, committed suicide on March 23, 2011 and claimed in his suicide note that four lawyers and two officers of his company had forced him to do the act. Justice PB Bajanthari held that a mere mention of a person’s name in the suicide note does not empower the Court to “jump to a conclusion that it is enough to mulct the accused with criminal liability under Section 306 IPC”. Rather than jumping around, “one has to analyse and examine the contents of the suicide note to find out whether it contains any incriminating information in the nature of instigation, provocation, forcing the victim to committed suicide.” It quashed the FIR against these six people.¹⁹

In King Emperor v. Vidya Sagar Pande,²⁰ it was held that a person assisting widow to become sati is guilty of abetment of suicide under Section 306 of IPC. Supreme court in a case held that a person accused of dowry harassment cannot be automatically convicted for abetment of suicide. A bench of Justices Navin Sinha and B.R. Gavai held that “even if it is established that the woman concerned had committed suicide within a period of seven years from the date of marriage and that her husband has subjected her to cruelty, the court is not bound to presume that suicide has been abetted by her husband.”
The court is required to take into consideration all other circumstances of the case.

Punishment under Section 306

A person who abets another to commit suicide is punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Constitutional validity of Section 306

The constitutional validity of section 306 has been upheld in Naresh Morotrao v. UOI. It was observed that section 306 constitutes an entirely independent offence. It is based on the principle of public policy that nobody should involve himself in, or instigate, or aid, the commission of a crime. It is not violative of Articles 14 and 21 of the Indian Constitution.

International Perspective of laws regarding abetment of suicide

Several countries and jurisdictions around the world like Bangladesh, Ghana, India, Kuwait, Nigeria, Pakistan, Rwanda and Singapore had its stringent laws regarding the offence of suicide which can be attempted suicide also.

CANADA
Suicide is no longer a crime in Canada as it was removed from the Criminal Code of
Canada in 1972 by the Parliament of Canada. But everyone who
(a) Counsels a person to commit suicide, or
(b) Aids or abets a person to commit suicide,
Whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

ENGLAND AND WALES
The Suicide Act, 1961 has decriminalized suicide in England. However, Section 2(1) of the Act states that “A person who aids, abets, counsels or procures the suicide of another, or any attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years.”

IRELAND
Attempted suicide is not a criminal offence in Ireland and, under Irish law, self-harm is not generally seen as a form of attempted suicide. It was decriminalized in 1993. Assisted suicide and euthanasia are, however, illegal. This is currently being challenged at the High Court, as of December 2012. As of 2014 assisted suicide remains illegal in Ireland.

NETHERLANDS
In the Netherlands, being present and giving moral support during someone’s suicide is not a crime; neither is supplying general information on suicide techniques. However, it is a crime to participate in the preparation for or execution of a suicide, including supplying lethal
means or instruction in their use.

Suggestions

The current definition of Abetment falls short. The section covers abetment by way of aid, instigation and conspiracy, but there are instances where the actions of the person do not strictly fall in these three categories but pressurize a person to commit suicide. As there are number of cases where abetment is caused by conduct or certain omission on the part of abettor which may incite a married woman to commit suicide as the conduct or omission of the accused seems cruel to her.

Conclusion

With the changing time, pattern of the society is changing vastly, calling for new and amended laws and provisions, as already enacted laws and legislations are falling short of the purpose for which they were enacted. Over a period of time, the ways of commission of offences have changed in such a way that they have gone beyond the ambit of the enacted provisions. There arises need for such laws that does not restrict the judgments to mere pigeon hole patterns of the criminal laws. Each case should be decided on its own merits keeping in mind the facts and circumstances of such case so that the justice is administered in its true sense. Moreover, along with an increase in the number of suicidal cases, there has been a steady rise in cases of Abetment of suicide, be it a case of abetment by instigating or by aiding the victim in committing suicide. The accused can easily defeat the penal provisions dealing with such offence as the ambit of the provision is limited to three categories, only. Thus, there is a dire need to amend the provisions dealing with the offence of abetment, in such a way that the criminals are not able to bypass the legislations and mend the cases suiting their own desires and escape the punishments. Also there are increased number of suicide among married woman due to cruelty meted out on them by her in laws which must be curbed as direct evidence of abetting is not available due to the accused is acquitted most of the time.

Bibliography

• Indian Penal Code, Prof. S.N. Mishra
• Indian Penal Code, K D Gaur
• The Indian Penal Code, 1860 (Bare Act)
• The Indian Evidence Act, 1872
• International Journal of Law and Legal Jurisprudence Studies
• Internet sources