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Abetment of suicide: Use section 306 carefully

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A suicide always shocks people and they look for someone to blame. But various judgments have made it clear that baseless allegations cannot be used for prosecution for such a serious offence
By Mary Mitzy


In recent times, the glamour world has been rocked by various suicides, be it of actresses Pratyusha Banerjee and Jiah Khan or model Viveka Babajee. Work pressures, complicated personal lives and financial instability are often the reasons for them taking their lives. On April 1, Pratyusha was found hanging in her apartment and the post-mortem report confirmed the cause of death as “asphyxia”, indicating that it was suicide. Her boyfriend, Rahul Raj Singh, and her cook, Sunil Mukhya, were the first people to see her body hanging from the ceiling fan.

There were allegations and counter-allegations between Rahul and his parents on one side and Pratyusha’s family on the other. Her colleagues too gave statements that she was having trouble in her relationship with Rahul, and that he was physically violent with her. On April 5, on the basis of a fresh statement by Pratyusha’s mother Soma Banerjee, the police lodged an FIR against Rahul for abetting suicide, assault and intimidation under Sections 306, 323 and 506 of the Indian Penal Code (IPC).

VOLUNTARY ACT

Suicide is not defined in the IPC, but the word suicide (felo de se) means the voluntary act of taking one’s own life. The Supreme Court in the M Mohan vs State (2011)3SCC 626 stated that “sui” means self and “cide” means killing, implying self-killing. Philosophers, moralists and sociologists have not agreed on what constitutes suicide. This is because suicide may be described by different communities differently depending on the circumstances and socio-religious practices prevalent.

On the other hand, an abettor of suicide is defined in the IPC under Section 107 as:

-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.

Section 306 penalizes abetment of suicide. It reads: “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.”

In order to convict a person under Section 306, not only must there be a clear intention to commit the offence, but there must also be an active act which steers the deceased to commit suicide. Such an act must be inveigled and push the deceased to seeing no other option, but to commit suicide.

The Supreme Court has cautioned in many of its decisions that there could be no straightjacket formula in deciding the above aspect and the need to slap Section 306 should be considered on a case-to-case basis.

PIONEERING VERDICTS

There have been various landmark judgments in this regard. Supreme Court in P Rathinam vs Union of India and Anr, 1994 (3) SCC 394 held that Section 309 (punishment for attempt to commit suicide) is unconstitutional and violative of Article 21 of the constitution. This ended the debate that had started from a decision of the Mumbai High Court in Maruti Shripati Dubal vs State of Maharashtra, 1987 Cr LJ 743, which held that Section 309 was violative of Article 14 and 21. It also held that Article 21 that enshrines the “right to life” also inherently enshrines the “right to die”. Then, there was an Andhra High Court judgment in the Chenna Jagadeeshwar & Anr vs State, Cr LJ 549, which upheld the constitutional validity of Section 309 while rejecting that Article 21 includes “right to die”. The Supreme Court in the Gian Kaur vs State of Punjab (1996 AIR 946, 1996 SCC (2) 648), reopened the issue and the two main contentions therein were that:

(i) Abetment of suicide under Section 306 does not constitute a crime as it is only assisting another person who is exercising a fundamental right resting on the judgment in P Rathinam vs Union of India and Anr.
(ii) Section 306 is equally violative of Article 21.

The constitution bench held that Article 21 does not include “right to die” and hence overruled P Rathinam vs Union of India and categorically stated that the judgment in it does not stand judicial scrutiny.

It was also held that the right to live with dignity cannot be construed to include the right to terminate one’s natural life, at least before commencement of the natural process of death and so Section 309 was neither violative of Articles 21 or 14.

ABETTOR VS PERPETRATOR

With regard to abetment of suicide, the Supreme Court held that as the challenge to the constitutional validity of Section 309 had been rejected, hence no serious challenge survives for the constitutional validity of Section 306. It was also held that Section 306 enacts a separate offence that survives independent of Section 309. The apex court stated that the arguments for not punishing a person attempting suicide cannot be used to benefit a person who assisted a person who had committed suicide or attempted to. The law views the abettor differently from the perpetrator of the crime, as he abets the extinguishment of life of another person.

However, other judgments of the Supreme Court also laid down guidelines regarding abetment of suicide. In the Madan Mohan Singh vs State of Gujarat, (2010) 8 SCC 628, it said that baseless allegations could not be used for prosecution for a serious offence under Section 306. It added that in such matters there must be an allegation that the accused had instigated the deceased to commit suicide or had engaged with some other person in a conspiracy to do so.

However, in a landmark and controversial judgment, the Rajasthan High Court on August 10, 2015, in Nikhil Soni vs Union of India declared that Santhara or Sallekhana was punishable under Sections 306 and 309. Santhara is a revered Jain practice of giving up food and water till one dies of starvation. The High Court seems to have gone with the judgment in Gian Kaur’s case.

There was an appeal made in the Supreme Court stating that it was improper and unwise to relate Santhara to suicide in concept and act. The plea said that this vow is not taken either in passion or in anger or deceit but is a conscious process of spiritual purification where one does not desire death but seeks to live his life in a manner so as to reduce the influx of karmas. On August 31, 2015, the Supreme Court stayed the judgment of the Rajasthan High Court.

(This article features in India Legal – May 15 issue)

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