In a latest, landmark, laudable and learned judgment titled Gurcharan Singh vs The State of Punjab in Criminal Appeal No. 40 of 2011 delivered as recently as on October 1, 2020, the Supreme Court in exercise of its criminal appellate jurisdiction has explicitly, elegantly and effectively ruled that the ingredients of mens rea for abetment of suicide [Section 306 IPC] cannot be assumed to be ostensibly present but has to be visible and conspicuous.

The Bench of Apex Court comprising of Justice NV Ramana, Surya Kant and Hrishikesh Roy set aside the conviction of a husband who was accused of driving wife to suicide. Earlier, the husband's conviction by the trial court of Barnala was upheld even by the High Court of Punjab and Haryana.

To start with, the ball is set rolling in para 1 of this notable judgment wherein it is observed that:
This Appeal challenges the judgment and order dated 4.3.2010 of the High Court of Punjab and Haryana whereunder, the Criminal Appeal No. 408-SB of 1999 of the convicted appellant was dismissed and the judgment of conviction under section 306 of the Indian Penal Code, 1860 (for short the Code) and the consequential sentence of 4 years RI and fine of Rs. 5000/- imposed by the learned Additional Sessions Judge, Barnala, was upheld.

While dwelling on the progress of the case, it is then stated in para 2 that:
The appellant along with his parents was charged under sections 304B and 498A read with section 34 of the IPC. The learned Trial Court ordered acquittal of the appellant's parents Dulla Singh and Karnail Kaur. However, even while declaring that there is insufficient material to convict anyone under section 304B & 498A IPC, the trial Court opined that although no charge of abetment was framed against the husband Gurcharan Singh, he can be convicted for abetting suicide of his wife, under section 306 IPC.

While elaborating further, it is then aptly mentioned in para 3 that:
The criminal process was set in motion with registration of FIR No. 177 dated 13.8.1997 at P.S. Kotwali, Barnala, under section 498A IPC. The case was registered on the basis of statement made by Jail Singh, father of Shinder Kaur (deceased). The appellant was married to Shinder Kaur and they had a son (2 ¼ years) and a daughter (8/9 months) when the mother committed suicide on 12.8.1997.

According to the prosecution case, Shinder Kaur was harassed after marriage, for insufficient dowry. A few days prior to the occurrence, Shinder Kaur was beaten and was turned out from her matrimonial home by the accused to bring Rs. 20,000/- from her parents for purchase of a plot. Then the Complainant had escorted back his daughter to her matrimonial home by pleading with the accused that he was unable to meet their cash demand. On 13.8.1997, the father received a message that Shinder Kaur had died in her matrimonial house.

On hearing this, the Complainant Jail Singh along with his wife Surjit Kaur and Chand Singh (brother of Surjit Kaur), rushed to Barnala and saw the dead body of Shinder Kaur in the matrimonial home who had died at about 5 P.M. on 12.8.1997. Since, it was an unnatural death, the Complainant alleged that either the accused had caused the death of his daughter by giving her some poisonous substance or she had ingested such substance, due to harassment by the accused.

It would be relevant to note that it is then disclosed in para 4 that:
The post mortem report disclosed that death was due to consumption of aluminium phosphide. The husband and the parents-in-law of the deceased were charged and after the case was committed on 28.10.1997, the trial commenced before the Court of Additional Sessions Judge, Barnala.

While delving deeper, it is then put forth in para 5 that:
Adverting to the evidence of Jail Singh (PW2), Chand Singh (PW3) and Surjit Kaur (PW4), who were the father, maternal uncle and mother of the deceased respectively, the Court proceeded to determine whether the unnatural death was the result of Dowry demand. The witnesses testified that Rs. 20,000/- was demanded by the accused from the deceased's family as they wanted to purchase a plot and since this demand could not be met, Shinder Kaur committed suicide.

The evidence of PW2, the father of the deceased shows that cash loan of 20,000/- was asked. It is also seen from the evidence that the appellant Gurcharan Singh is the only son of his parents and they are the owner of a big house with a vegetable garden. The appellant and his father were drivers with Punjab police.

What is also of relevance is that during delivery time, the deceased was admitted in the hospital for 10/12 days in November 1996 and her medical treatment was arranged by the husband and the father-in-law. No evidence of any dispute relating to dowry demand or maltreatment of the deceased, during three years of marriage was seen. On this basis, the Trial Court concluded even if Rs. 20,000/- was asked for purchase of plot three years after marriage and few days later the unnatural death takes place, the death cannot be related to demand of dowry.

While dwelling further on this case proceeding before the trial Court, it is then enunciated in para 6 that:
The Trial Court then posed a question to itself as to why a young lady with two small children would commit suicide unless she has been pushed to do so, by the circumstances in the matrimonial home. It was then observed that the expectation of a married woman will be love and affection and financial security at the hands of her husband and if her hopes are frustrated by the act or by willful negligence of the husband, it would constitute abetment within the meaning of section 107 IPC, warranting conviction under Section 306 IPC. With such reasoning, the Trial Court concluded that Shinder Kaur committed suicide when her hopes were frustrated by the act of her husband or alternatively, by his willful neglect.

Thus, the Court itself was uncertain on the nature of the act to be attributed to the appellant. Moreover, even while noting that no direct evidence of cruelty against the husband and the in-laws is available, the learned Court assumed that section 306 IPC can be applied against the appellant. With such conjecture, while acquitting all these accused of the charged crime under section 304B and 498A of IPC, the husband was convicted under section 306 IPC.

What follows next is then stated in para 7 that, In the resultant Criminal Appeal, the appellant contended that the conviction cannot be justified unless evidence disclosed some positive act or conduct of the accused, which might have compelled the deceased to commit suicide. On the plea of cordial relationship of the deceased with her husband, the appellate Judge conjectured that if such be the situation, the family members (PW2, PW3, PW4) of the deceased, would not have deposed against the husband. The suggestion that the deceased accidentally consumed pesticide kept for the vegetable garden was brushed aside by the learned Judge. Accordingly, the High Court endorsed the Trial Court's view that deceased was pushed to commit suicide by the circumstances and the atmosphere in the matrimonial home. The appeal was accordingly dismissed by the impugned judgment leading to the present appeal.

On the one hand, it is stated in para 8 that:
For the appellant, the learned Counsel Mr RK Kapoor focused on the findings of the Trial Court that there is no direct evidence of cruelty towards the deceased, by the husband or parents-in-law. It is then submitted that there is nothing to conclude that the husband had willfully neglected his wife or had frustrated her, to bring the case within the ambit of abetment. The Counsel argues that the court's conclusion is entirely based on conjectures and not upon any substantial evidence. Since no evidence of dowry harassment was found and the demand of Rs 20,000/- was ruled out as the cause for suicide, the learned counsel submits that both Courts erred in concluding that the deceased was pushed to commit suicide, on account of the circumstances or atmosphere created by the appellant.

The contrary evidence of care and attention of the deceased by her husband and in-laws is highlighted by the appellant's lawyer to argue that in the matrimonial home, the deceased was treated well. In any case, the degree of love and affection expected of a husband cannot be measured to base the conviction of abetment. Accordingly, it is contended that the inference without any evidence of vitiating circumstances in the matrimonial home purportedly created by the appellant, is nothing but an inference and conviction cannot be sustained on that basis alone. The Counsel then points out that both children born to the deceased are residing with the appellant and this would also indicate that appellant is a caring and responsible person. The Counsel further submits that the appellant has already undergone sentence for about two years.

On the contrary, it is then stated in para 9 that:
On the other hand, Ms Jaspreet Gogia, learned counsel for the State of Punjab refers to the evidence of Jail Singh (PW2) and Surjit Kaur (PW4), the parents of deceased, who stated that a week before the incident, the deceased was beaten and was sent to her parental home to bring cash for purchase of a plot. As the parents were unable to pay the demanded sum, the deceased was driven to commit suicide in her matrimonial home on the very day, when her father dropped her back. The Counsel then argues that if not for the circumstances or atmosphere in the matrimonial home, why should a young mother of two children commit suicide, by consuming pesticide.

Having said this, the Bench then observes after considering the version of both the sides in para 10 that,:
The submissions of the learned Counsel have been considered. In order to give the finding of abetment under section 107 IPC, the accused should instigate a person either by act of omission or commission and only then, a case of abetment is made out. In the present case however, there is no direct evidence of cruelty against the husband or the in-laws.

There is nothing on record to show which particular hope or expectation of the deceased was frustrated by the husband. Evidence is also lacking on willful neglect of the appellant, which led to the suicidal death, whereas contrary evidence is available to suggest that care and treatment was given to the deceased in the matrimonial home and in the hospital, and during the three years of marriage, there was no instance of maltreatment, attributable to dowry demand.

The demand of Rs. 20,000/- for purchase of a plot (in front of the residence which might have incidentally become available for sale just at that time), after three years of marriage, was ruled out by the trial Court as the possible cause for the suicidal death. In any case, PW2 stated that this sum was a cash loan asked for buying the plot. Thus, a loan may have been sought by the accused which could not be given. But there is nothing to show that the deceased was harassed on this count, in the matrimonial home. In the face of such material, it is difficult to conclude that Shinder Kaur was pushed to commit suicide by the circumstances or atmosphere created by the appellant.

While pointing further at the loopholes of the prosecution version, the Bench then makes it known in para 11 that, Insofar as the possible reason for a young married lady with two minor children committing suicide, in the absence of evidence, conjectures cannot be drawn that she was pushed to take her life, by the circumstances and atmosphere in the matrimonial home. What might have been the level of expectation of the deceased from her husband and in-laws and the degree of her frustration, if any, is not found through any evidence on record. More significantly, willful negligence by the husband could not be shown by the prosecution.

What cannot be glossed over is then stated in para 12 that, It must also be noted that both children born to deceased are being brought up by the appellant's family ever since the death of the mother on 12.8.1997. The maternal grandparents, even while pointing fingers against the accused, never raised any issue on their grandchildren being brought up in the home where their daughter died an unnatural death.

Most significantly, the Bench then makes it abundantly clear in para 15 that:
As in all crimes, mens rea has to be established. To prove the offence of abetment, as specified under Section 107 of the IPC, the state of mind to commit a particular crime must be visible, to determine the culpability. In order to prove mens rea, there has to be something on record to establish or show that the appellant herein had a guilty mind and in furtherance of that state of mind, abetted the suicide of the deceased.

The ingredients of mens rea cannot be assumed to be ostensibly present but has to be visible and conspicuous. However, what transpires in the present matter is that both the Trial Court as well as the High Court never examined whether appellant had the mens rea for the crime, he is held to have committed. The conviction of Appellant by the Trial Court as well as the High Court on the theory that the woman with two young kids might have committed suicide, possibly because of the harassment faced by her in the matrimonial house, is not at all borne out by the evidence in the case. Testimonies of the PWs do not show that the wife was unhappy because of the appellant and she was forced to take such a step on his account.

What's more, the relevant case laws to substantiate its decision that have been referred are that of SS Chheena Vs. Vijay Kumar Mahajan (2010) 12 SCC 190 in para 16, of Amalendu Pal alias Jhantu vs. State of West Bengal (2010) 1 SCC 707 in para 17 and Mangat Ram Vs. State of Haryana (2014) 12 SCC 595 in para 18 which discuss the necessary ingredients for the offence under Section 306 IPC.

Quite remarkably, it is then held in para 19 that:
Proceeding with the above understanding of the law and applying the ratios of the facts in the present case, what is apparent is that no overt act or illegal omission is seen from the appellant's side, in taking due care of his deceased wife. The evidence also does not indicate that the deceased faced persistent harassment from her husband. Nothing to this effect is testified by the parents or any of the other prosecution witnesses. The Trial Court and the High Court speculated on the unnatural death and without any evidence concluded only through conjectures, that the appellant is guilty of abetting the suicide of his wife.

Going ahead, it is then held in para 20 that,:
In such circumstances, we have no hesitation in declaring that the Trial Court and the High Court erred in concluding that the deceased was driven to commit suicide, by the circumstances or atmosphere in the matrimonial home. This is nothing more than an inference, without any material support. Therefore, the same cannot be the basis for sustaining conviction of the appellant, under Section 306 of the IPC.

Finally, it is then held in the last para 21 that:
In view of the foregoing, we are persuaded to conclude that the decisions under challenge cannot be legally sustained. Consequently, interfering with the impugned judgment of the High Court and the Trial Court, the appellant's conviction under Section 306 IPC is set aside and quashed. The appeal is accordingly allowed.

To summarize, the three-Judge Bench of the Apex Court goes through the finer details of the case and after hearing both the sides and considering their version very rightly concludes while acquitting husband accused of driving wife to suicide that mens rea for Section 306 IPC cannot be assumed to be ostensibly present but has to be visible and conspicuous as has already been discussed in detail. There can certainly be no denying or disputing it also!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh