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Safi @ Somanath Sahu v/s State of Odisha


    BLAPL No. 3623 of 2021

    Decided On, 11 August 2021

    At, High Court of Orissa

    By, THE HONOURABLE MR. JUSTICE S.K. PANIGRAHI

    For the Petitioner: M/s. R.L. Patnaik, S.K. Panda, K. Panda, A.K. Jena, R.C. Patnaik, A. Biswal, Advocates. For the Respondent: Manoj Kumar Mohanty Additional Standing Counsel.



Judgment Text

1. The present petitioner, who is in custody, has filed the instant bail application under Section 439 of Cr.P.C. in connection with Chhendipada P.S. Case No.199 of 2020 corresponding to C.T. (S) Case No.11 of 2021 which is now pending before the learned District & Sessions Judge, Angul. The petitioner herein is the accused in connection with alleged commission of offence punishable under Section 306 of the I.P.C. Prior to the instant application, the petitioner also approached the learned Sessions Judge, Angul, vide Bail Application No.66 of 2021 which was rejected on 23.02.2021.2. Shorn of unnecessary details, the facts of the present case are that one Artatrana Sahu lodged an FIR on 17.06.2020 at 5.00 P.M. before the Chhendipada P.S. stating that his daughter, namely Puspanjali (now deceased) had left her home on 14.06.2020 saying that she had to attend nature’s call at a nearby river. However, unfortunately, she did not return. The complainant searched for his daughter in the vicinity as well as relatives houses but could not find her. On 17.06.2020 at 12 noon, the body of the deceased was found hanging from a tree on the said river bank. Pursuant to filing of the FIR, the Investigating Officer commenced investigation. The post mortem report revealed that the cause of death was asphyxia as a result of hanging and in the absence of any signs of force, sexual assault, the death was opined to be suicidal in nature. It was also noted that the “whole body was distinctively decomposed” to the extent that the body was covered with maggots, flies and larva. A chiffon dupatta belonging to the deceased was used for the hanging which left a V shaped ligature mark around her neck. No other discernible marks or injuries were found on the body of the deceased. During the course of investigation, a phone was recovered which was belonging to the deceased from which it was found that three numbers were frequently contacted. The three numbers belonged to the present petitioner, one Sanjay Behera and one Sunil Dehury. It is relevant to note here that Sanjay Behera has been absconding since then and a non-bailable warrant has been issued against him. Acting purely on suspicion and in the light of uncovering of facts from a few people of the area, it was suspected that the petitioner and the deceased had probably shared a relationship. Thereafter, the present petitioner was arrested and forwarded to judicial custody on 06.07.2020 for allegedly abetting the suicide of the deceased.3. The learned counsel for the petitioner contends that there is no prima facie case made out against the present petitioner. The petitioner is in no way directly connected to the offences and has been falsely implicated in the matter. It was also submitted that no incriminating material is available against the petitioner and, therefore, he should not be kept in custody. In the absence of any direct evidence to the contrary and keeping in mind that on the date of occurrence the petitioner was not present in the village, the petitioner is liable to be released on bail. It was also contended that charge-sheet has been submitted and there is no chance of the petitioner tampering with any evidence.4. Per contra, the learned counsel for the State opposed the bail application and prayed for its rejection by contending that the petitioner is the prime accused who compelled the victim to commit suicide and exploited her by falsely assuring of their marriage.5. Heard learned counsel for the parties. It becomes necessary, at this juncture, to examine the scope of bail in cases involving Section 306 of the I.P.C. Recently the Hon’ble Supreme Court in Dataram Singh v. State of Uttar Pradesh (2018) 3 SCC 22, held that the freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has further held in the aforesaid judgment that a person is believed to be innocent until found guilty. Such sentiments have been echoed in the following words:“2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception.”Unfortunately, some of these basic principles appear to have been lost sight of as a result of which more and more persons are being incarcerated for longer periods. This does not do any good to our criminal jurisprudence or to our society.6. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by the Hon’ble Apex Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.“4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re- Inhuman Conditions in 1382 Prisons.”Furthermore, the Hon'ble Apex Court in Sanjay Chandra v. Central Bureau of Investigation (2012) 1 SCC 40, has held as under:“The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. In India, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson.”Keeping in mind that the normal rule is of bail and not jail, the Courts must also keep in mind that apart from the above considerations, the Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime when considering the question of bail.7. The offence of abetment to suicide under Section 306 of IPC has twin essential ingredients: (i) a person commits suicide (ii) such suicide was abetted by the accused. This offence involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. To hold a person liable for abetting suicide, active role is required which can be described as instigating or aiding in doing thing.8. A person can be said to have abetted in doing of a thing, who “instigates” any person to do that thing. The word “instigate” is not defined in IPC. The meaning of the said word was considered by the Hon’ble Supreme Court in Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618, wherein Mr. 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 a reasonable certainty to incite the consequence must be capable of being spelt out. Where the accused had, by his acts or omission or by a 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. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation.9. It is only where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, an “instigation” may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that:(i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and(ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above.10. In the background of this legal position, this Court may advert to the case at hand. There is no answer as to why suicides occur because it is impossible to ever fully comprehend or analyze what goes on inside a person’s mind. Suicidal ideation and behaviors in human beings are complex and multifaceted. Human beings by their very intrinsic nature of being individualistic react and behave differently in different situations because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide.11. The Madras High Court in Manikandan v. State MLJ CRL 240 (2016) Madras High Court relying on a judgment of the same High Court in Rajamannar v. State Rep. by the Inspector of Police, Sewapet Police Station, Thirruvallur District Crl. O.P. No. 8320/2014 dated 3.4.2014 observed that:“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 of his case is dismissed, the lady, examiner, lawyer respectively cannot be held to have abetted the commission of suicide. Sometimes, the decision to commit suicide might be taken by the victim himself/herself, unaccompanied by any act or instigation etc. on the part of the accused.”12. Furthermore, the Kerala High Court in Cyriac v. The S.I. of Police ILR 2005 (3) Kerala 646 has put the issue very succinctly:“A fatal impulse or an ill-fated thought of the deceased, however unfortunate and touchy it may be, cannot unfortunately, touch the issue. Those cannot fray the fabric of the provision contained in section 306 of IPC. In short, it is not what the deceased ‘felt’, but what the accused ‘intended’ by his act which is more important in this context. Of course, the deceased's frail psychology which forced him to suicide also may become relevant, but it is only after establishing the requisite intention of accused.”13. The Supreme Court in Gurcharan Singh v. State of Punjab (2017) 1 SCC 433 held that the basic ingredients of Section 306 of IPC are that a suicide death and abetment thereof, and absence of any of these conditions could vitiate the indictment. The judgment derived its strength from State of West Bengal v. Orilal Jaiswal (1994) 1 SCC 73 wherein it was o

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bserved by the Hon'ble Supreme Court that the court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial of the parties.14. In the instant case, the prima facie view is that although some witnesses seem to suggest a love relationship between the petitioner and deceased, the nature of evidence that has been forthcoming does not meet the standards required to prove that the petitioner abetted the suicide of the accused. The fact as to what the degree of intimacy and affinity of the petitioner and deceased shared is a matter that can only be unearthed at the stage of trial. At this stage, for the purpose of this application, the same does not need to be gone into.15. It is also relevant to note that there is a complete lack of any proof produced before this Court showcasing how or which acts of the petitioner led him to allegedly commit the offence of abetting the deceased’s suicide.16. Having considered the matter in the aforesaid perspective and guided by the precedents cited hereinabove, this Court comes to the conclusion that the petitioner shall be released on bail in connection with Chhendipada P.S. Case No.199 of 2020 corresponding to C.T. (S) Case No.11 of 2021 by the learned court in session over the matter with imposition of certain stringent terms and conditions as deemed fit and proper. It is clarified that the trial court shall proceed with a fair trial uninfluenced by any of the prima facie observations made hereinabove.17. The Bail Application is accordingly disposed of.
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