WILL SUSHANT SINGH RAJPUT’S DEATH SATISFY THE THRESHOLD OF ABETMENT OF SUICIDE? : A MYSTERY

by Arjun Sudhir, Associate at CrestLaw Partners, Bangalore


THE EVENTS

The tragic death of a young Bollywood Actor has occupied centre stage in our TV channels in recent days. A conversation that started about mental health and nepotism has now metamorphosized into questions of murder and abetment of suicide. The FIR lodged by the Bihar Police is for investigation into offences allegedly committed under Sections 341, 342, 380, 406, 420, 306, 506, and 120(B) of the Indian Penal Code. As of today, the status is that Bollywood actor Rhea Chakraborty has approached the Supreme Court seeking transfer of the case lodged against her and others from Patna to Mumbai; citing S-177 of the Code of Criminal Procedure, 1973 which mandates that every offence “shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.”[1] For the purpose of this article we shall look at the most important offense alleged in the FIR- Section 306 which penalizes abetment of suicide.

A great majority of the litigation and judicial rulings on S-306 are inevitably intertwined with S-498A (the wife being subject to cruelty by the husband or his relatives) of the IPC, dowry deaths and domestic violence. There thus lies a difficulty in applying these principles to a case that is not under such a factual scenario. However, the principles of criminal law and evidence continue to remain the same and the most recent rulings of the Supreme Court throw light on when an accused could be convicted of the offence of abetment of suicide.


BACKGROUND OF SECTION 306

It is interesting to note that S-306 has remained on the statute book since the inception of the Indian Penal Code, and was not introduced by any subsequent amendment. This section was introduced, in line with the 19th century British Reform of Indian Society- seeking to outlaw practices like Sati. It is perhaps not common knowledge that S-306 has undergone a constitutional challenge to remove it from the statute book. This challenge was unique in the sense that it was not a stand alone or independent challenge. It was a subsidiary challenge tagged alongside the principal challenge to decriminalize attempt to suicide under S-309. A Constitution bench of the Supreme Court upheld the constitutionality observing the independent nature of S-309:

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. The arguments which are advanced to support the plea for not punishing the person who attempts to commit suicide do not avail for the benefit of another person assisting in the commission of suicide or in its attempt.[2] [Emphasis Supplied]


WHAT AMOUNTS TO ABETMENT OF SUICIDE

It should firstly be understood that abetment is not a trifling matter that is easily satisfiable. As with other criminal offense, mens rea and the burden of proof are indispensable. It is now well settled that abetment occurs when:

1. A person instigates any person to do that thing; or

2. 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

3. Intentionally aids, by any act or illegal omission, the doing of that thing.[3]

The Supreme Court has emphasized that in all three situations, direct involvement of the person or persons concerned in the commission of offence of suicide is essential to bring home the offence under Section 306 Indian Penal Code.[4]


The key is to ‘instigate’ the commission of suicide. The Supreme Court has been cautious to not loosely interpret this term, making the ceiling as high as possible. To paraphrase the Supreme Court ‘…a reasonable certainty to incite the consequence must be capable of being spelt out’, where the accused had by acts or omission or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide.[5] It notes:

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


IS INSTIGATION ESTABLISHED: LOOKING AT PAST PRECEDENT

It should be borne in mind that in many of these precedents, there is the added factor of a suicide note being left by the deceased. That provides a substantial amount of circumstantial evidence to be factored in. As this is being written, the FIR names six people, including Rhea Chakraborty, her brother and other family members, accusing her of cheating Sushant financially, harassing him mentally and driving him to suicide. The FIR notes a suspicious transaction worth Rs 15 crore that has led the ED explore a money laundering angle.

We are now at pre-trial stage. The charges are themselves yet to be framed. A decision of the Supreme Court in 2009 in reasonably similar circumstances perhaps shows us how the judiciary might lean in this case. A gentleman called Jitendra Sharma was part of a partnership firm with two others. The charge was that he was asked to sign a settlement paper, according to which, his share was reduced from 25% to 10% in favour of the others. Hence his share fell from 45%. As he owed money to the partners it was alleged that the deceased was mentally harassed and pressurized to commit suicide. The Trial Court framed charges of S-306 r/w S-34 of the IPC. The contention of the accused was that even assuming there was any sort of settlement to forego shares, this could not show any evidence of ‘instigation’ of S-306. In what seems a frivolous argument, it was also contended that as the deceased owed money, ‘there was no logic in the accused promoting his suicide as they had nothing to gain by the same’. There was extensive circumstantial evidence (such as witness statements recording the accused threatening to ruin the deceased) and even the suicide note itself ( in which the deceased says that the accused were troubling and pressurizing him). The Supreme Court observes:

…..suicide has no easy answers because suicidal ideation and behaviours in human beings are complex and multifaceted. Different individuals in the same situation react and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. Each individual's suicidability pattern depends on his inner subjective experience of mental pain, fear and loss of self-respect. Each of these factors are crucial and exacerbating contributor to an individual's vulnerability to end his own life, which may either be an attempt for self-protection or an escapism from intolerable self.[6]


Relying on the material on record, it upholds the trial court’s decision to frame charges. It adds that at the stage of framing of charges, the court has to consider the material only with a view to find out if there is ground for "presuming" that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is likely to lead to a conviction.


DEDUCTION:

This is where we stand today. There are allegations flying around that Mr. Rajput received threats and his family had written to the Police to provide him protection. There are also allegations that Ms. Chakraborty would use Mr. Rajput’s visits to a therapist/psychiatrist as leverage or blackmail. All these remain unsubstantiated. The view of this writer is that, we have much less circumstantial evidence than what was available in the precedent mentioned above. Post the investigation there might be sufficient material for framing of charges to be upheld as the court cannot at the stage of framing of charges look at probative value for conviction. However, seeing the high threshold for satisfying S-306; there must be direct causation, instigation and circumstantial evidence to show that Rhea Chakraborty mentally harassed, by actions or words, continuously to cause Mr. Rajput to end his life. Mere fights, however nasty will not suffice. The absence of any suicide note makes this more difficult to prove.

It must not be forgotten that a perceived wrong in an interpersonal sense is not always sufficient to be a legal wrong. Even assuming the worst about Ms. Chakraborty and her intentions and designs vis-à-vis Mr. Rajput, one will need direct concrete evidence and persistent actions driving him to suicide to satisfy the threshold of S-306. This will remain the same whether it is financial threats, emotional blackmail or mental harassment. One must remember that the threshold of proof in criminal law is ‘beyond reasonable doubt’ and not a ‘preponderance of probability’ as in a civil dispute. Falling short

of that threshold will inevitably mean acquittal.

[1] See, Section 177, the Code of Criminal Procedure, 1973. [2] Smt. Gian Kaur v. State of Punjab, (1996) 2 SCC 648. [3] Chitresh Kumar Chopra v. State (Government of NCT of Delhi), (2009) 16 SCC 605. [4] Ibid. [5] Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618. [6] Supra, Footnote 3.

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