C482/870/2018 of Smt. Asha Solanki Vs STATE OF UTTARAKHAND

HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Misc. Application No. 870 of 2018

Smt. Asha Solanki and another .......Petitioners

State of Uttarakhand and another …..... Respondents

Present : Mr. Sandeep Kothari, Advocate for the petitioners. Mr. Siddhartha Bisht, Brief Holder for the State/respondent no.1.

JUDGMENT

Hon’ble Ravindra Maithani, J. (Oral)

The challenge in this petition is made to the charge dated 10.10.2017 passed in Sessions Trial No. 79 of 2017, State vs. Asha Solanki and another, by the court of Sessions Judge, Dehradun (“the case”). By it, the petitioners have been charged for the offence under Section 306/34 IPC.

2. Heard learned counsel for the parties and perused the record.

3. The factual matrix is in very short compass. The deceased Nikita was student of Class VIII. On 09.03.2016, she was writing her examination. According to the FIR, in the school, the petitioners, who were teachers in the school did maar peet with her and harassed her. The deceased after returning from the

examination hall revealed it to her mother that due to beating up by the petitioners, she could not write well in the examination. Subsequently, she committed suicide. The FIR records that the CCTV footages revealed that the petitioners were beating up to the deceased. According to the FIR, it was the petitioners, who abetted the deceased to commit suicide. The FIR of the incident was given by the father of the deceased on 10.03.2016, based on which, an investigation was carried out and charge-sheet submitted against the petitioners for the offence under Section 306 IPC. When cognizance was taken, it was challenged by the petitioners in petition under Section 482 of the Code of Criminal Procedure, 1973 bearing No. C-482 No.868 of 2016. It was decided on 24.10.2016. The Court observed as follows:-

“In view of the suicide note and the reports of the F.S.L., Chandigarh as well as from F.S.L., Dehradun, there is no merit in the case. There is neither any illegality nor any perversity in the order dated 13.05.2016 passed by the Chief Judicial Magistrate, Dehradun.

Accordingly, the petition is dismissed.

However, in the interest of justice, it shall be open to the applicants to move appropriate application(s) seeking bail before the trial court. The trial court shall decide the application on the same day, when it is presented.”

4. The case proceeded and on 10.10.2017, charge

was framed, it is impugned herein.

5. Learned counsel for the petitioners would submit that it is not the case of abetment at all. Both the petitioners were not regular teachers in the school. The petitioner no.1, Smt. Asha Solanki was the Member of Flying Squad and the petitioner no.2, Smt. Jyoti Agarwal was the Invigilator. On the date of incident, the deceased was found cheating in the examination. She was given “B” answer-sheet and remarks were made thereon. The deceased returned to her house and after long interval she committed suicide, therefore, by no stretch of imagination, it could be said that it is case of abetment to suicide.

6. It is also argued that, in fact, the petitioners did not have any occasion prior interaction with the deceased. They were not concerned with the deceased in any manner, except on 09.03.2016, when the deceased was caught cheating in the examination. It is argued that there is no basis to frame charge; accordingly, the petition deserves to be allowed.

7. Learned State counsel would very fairly concede that, in fact, in the instant case, offence under Section 306 IPC is not made out.

8. Section 306 IPC provides punishment for

abetment to suicide. It reads as hereunder:-

“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 term which may extend to ten years, and shall also be liable to fine.

9. What is “abetment” is defined under Section 107 IPC. There are three ingredients basically, instigation, conspiracy and intentional aid. This Section reads as hereunder:-

“107. Abetment of thing.—A person abets the doing of 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 1.—A person who, by wilful misrepresentation, or by wilful concealment of material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, thing to be done, is said to instigate the doing of that thing.

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.”

10. It is petition against framing charge. At this stage, generally the Court should be much slow to make any interference. In much exceptional circumstances, the Court should interfere with the charge, if there is some material, which is debatable and which requires reading of evidences, it is settled law that the Court should be much slow to make any interference. But then, what is being argued is that even if the circumstances and the facts admitted in its entirety, the offence under Section 306 IPC at all is not made out.

11. The law on this point had been discussed in umpteen judgments by the Hon’ble Supreme Court. In the case of Rajesh and others vs. State of Haryana, 2019 SCC OnLine SC 44, the Hon’ble Supreme Court discussed the provisions of Section 306 IPC and held that 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 under Section 306 IPC is not sustainable. The Hon’ble Supreme Court observed as hereunder:-

“9.Conviction under Section 306 IPC is not sustainable 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. In order to bring case within the purview of Section 306 IPC, there must be 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. (See Amalendu Pal v. State of W.B. [Amalendu Pal v. State of W.B., (2010) 1 SCC 707 : (2010) 1 SCC (Cri) 896] )

10. The term “instigation” under Section 107 IPC has been explained in Chitresh Kumar Chopra v. State (NCT of Delhi) [Chitresh Kumar Chopra v. State (NCT of Delhi), (2009) 16 SCC 605 : (2010) 3 SCC (Cri) 367] as follows: (SCC p. 611, paras 16-17)

“16. Speaking for the three-Judge Bench in Ramesh Kumar v. State of Chhattisgarh [Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 : 2002 SCC (Cri) 1088] , R.C. Lahoti, J. (as His Lordship then was) said that 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 reasonable certainty to incite the consequence must be capable of being spelt out. Where the accused had, by his acts or

omission or by 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 to be inferred. word uttered in fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation.

17. Thus, to constitute “instigation”, person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by “goading” or “urging forward”. The dictionary meaning of the word “goad” is “a thing that stimulates someone into action; provoke to action or reaction” (see Concise Oxford English Dictionary); “to keep irritating or annoying somebody until he reacts” (see Oxford Advanced Learner's Dictionary, 7th Edn.).”

(emphasis in original)” 12. In the case of Ude Singh and others vs. State of Haryana, (2019)17 SCC 301, the Hon’ble Supreme Court discussed the ingredients of offence under Section 306 IPC. Further, the word “instigation” has been interpreted as to what it means. In paragraphs 16, 16.1 and 16.2, the Hon’ble Supreme Court observed as hereunder:-

“16. In cases of alleged abetment of suicide, there must be proof of direct or indirect act(s) of incitement to the commission of suicide. It could hardly be disputed that the question of cause of suicide, particularly in the context of an offence of abetment of suicide, remains vexed one, involving multifaceted and complex attributes of human behaviour and responses/reactions. In the case of accusation for abetment of suicide, the court would be looking for

cogent and convincing proof of the act(s) of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. Whether person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case.

16.1. For the purpose of finding out if person has abetted commission of suicide by another, the consideration would be if the accused is guilty of the act of instigation of the act of suicide. As explained and reiterated by this Court in the decisions above referred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed suicide had been hypersensitive and the action of the accused is otherwise not ordinarily expected to induce similarly circumstanced person to commit suicide, it may not be safe to hold the accused guilty of abetment of suicide. But, on the other hand, if the accused by his acts and by his continuous course of conduct creates situation which leads the deceased perceiving no other option except to commit suicide, the case may fall within the four corners of Section 306 IPC. If the accused plays an active role in tarnishing the self-esteem and self-respect of the victim, which eventually draws the victim to commit suicide, the accused may be held guilty of abetment of suicide. The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, particular case may fall short of the offence of abetment of suicide. However, if the accused kept on

irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, particular case may be that of abetment of suicide. Such being the matter of delicate analysis of human behaviour, each case is required to be examined on its own facts, while taking note of all the surrounding factors having bearing on the actions and psyche of the accused and the deceased.

16.2. We may also observe that human mind could be affected and could react in myriad ways; and impact of one's action on the mind of another carries several imponderables. Similar actions are dealt with differently by different persons; and so far particular person's reaction to any other human's action is concerned, there is no specific theorem or yardstick to estimate or assess the same. Even in regard to the factors related with the question of harassment of girl, many factors are to be considered like age, personality, upbringing, rural or urban set-ups, education, etc. Even the response to the ill action of eve teasing and its impact on young girl could also vary for variety of factors, including those of background, self-confidence and upbringing. Hence, each case is required to be dealt with on its own facts and circumstances.”

13. In the case of M. Arjunan vs. State, (2019)3 SCC, 315, the Hon’ble Supreme Court observed, “The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide.”

In fact, what transpired in the mind of deceased while committing suicide is tried to be gathered by the Court while dealing with such cases, to ascertain as to what ignited the deceased to take such extreme step of terminating his/her life.

14. In the case of Geo Varghese vs. State of Rajasthan and another, 2021 SCC OnLine SC 873, the applicability of Section 306 IPC has been interpreted. In fact, in that case, student had committed suicide and subsequently, it was alleged that the Physical Training Teacher had harassed and tortured the student in the school. Under those factual circumstances, the Hon’ble Supreme Court observed as hereunder:-

“23. What is required to constitute an alleged abetment of suicide under Section 306 IPC is there must be an allegation of either direct or indirect act of incitement to the commission of offence of suicide and mere allegations of harassment of the deceased by another person would not be sufficient in itself, unless, there are allegations of such actions on the part of the accused which compelled the commission of suicide. Further, if the person committing suicide is hypersensitive and the allegations attributed to the accused is otherwise not ordinarily expected to induce similarly situated person to take the extreme step of committing suicide, it would be unsafe to hold the accused guilty of abetment of suicide. Thus, what is required is an examination of every case on its own facts and circumstances and keeping in consideration

the surrounding circumstances as well, which may have bearing on the alleged action of the accused and the psyche of the deceased.”

15. Hon’ble Supreme Court, while discussing the role of teacher further discussed as hereunder:-

“28. It is solemn duty of teacher to instil discipline in the students. It is not uncommon that teachers reprimand student for not being attentive or not being upto the mark in studies or for bunking classes or not attending the school. The disciplinary measures adopted by teacher or other authorities of school, reprimanding student for his indiscipline, in our considered opinion, would not tantamount to provoking student to commit suicide, unless there are repeated specific allegations of harassment and insult deliberately without any justifiable cause or reason. simple act of reprimand of student for his behaviour or indiscipline by teacher, who is under moral obligations to inculcate the good qualities of human being in student would definitely not amount to instigation or intentionally aid to the commission of suicide by student.

29. ‘Spare the rod and spoil the child’ an old saying may have lost its relevance in present days and Corporal punishment to the child is not recognised by law but that does not mean that teacher or school authorities have to shut their eyes to any indiscipline act of student. It is not only moral duty of teacher but one of the legally assigned duty under Section 24 (e) of the Right of Children to Free and Compulsory Education Act, 2009 to hold regular meetings with the parents and guardians and apprise them about the regularity in attendance, ability to learn, progress made in learning and any other act or relevant information about the child.

30. Thus, the appellant having found the deceased boy regularly bunking classes, first reprimanded him but on account of repeated acts, brought this fact to the knowledge of the Principal, who called the parents on telephone to come to the school. No further overt act has been attributed to the appellant either in the First Information Report or in the statement of the complainant, nor anything in this regard has been stated in the alleged suicide note. The alleged suicide note only records insofar as, the appellant is concerned, ‘THANKS GEO (PTI) OF MY SCHOOL’. Thus, even the suicide note does not attribute any act or instigation on the part of the appellant to connect him with the offence for which he is being charged.

31. If, student is simply reprimanded by teacher for an act of indiscipline and bringing the continued act of indiscipline to the notice of Principal of the institution who conveyed to the parents of the student for the purposes of school discipline and correcting child, any student who is very emotional or sentimental commits suicide, can the said teacher be held liable for the same and charged and tried for the offence of abetment of suicide under section 306 IPC.

32. Our answer to the said question is ‘No’.”

16. In the instant case, there is suicide note also. It is very short suicide note, in which, the deceased is tendering apology to her family members and she writes, “How could I face the people after such insult?” If person is over sensitive and because of that reason, commits suicide, perhaps no one can be held responsible for abetment of such an act.

17. In the instant case, it is admitted fact that on 09.03.2016, the deceased was writing examination paper, where she was found using unfair means. The petitioner no.1 was Member of Flying Squad and the petitioner no.2 was an Invigilator deputed on that date in the room, where the deceased was writing her examination. The deceased was slapped and subsequently, late in the evening the deceased committed suicide. By no stretch of imagination, act of petitioners could be termed as abetting to suicide of the deceased.

18. In fact, the charge levelled against the petitioners is groundless. There is no material to frame the charge under Section 306 IPC against the petitioners. The court below has committed an error. Accordingly, the petition deserves to be allowed and the charge dated 10.10.2017 framed in the case deserves to be set aside.

19. The petition is allowed.

20. The charge dated 10.10.2017 is hereby set aside. The petitioners are discharged of the offence under Sections 306/34 IPC.

21. The petitioners are on bail, their bonds cancelled and sureties are discharged of their liability.

22. Let copy of the judgment alongwith the record

of the case be sent to the court concerned.

Sanjay

(Ravindra Maithani, J.)

17.04.2023