The Telegraph
Wednesday , June 26 , 2013
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Star son Suraj Pancholi’s arrest on the charge of abetting the suicide of actress Jiah Khan has raised a flurry of discussion on whether he was nabbed unfairly. Pancholi was in a relationship with Khan and is alleged to have been abusive towards her. While his innocence or guilt will only be decided by the outcome of the case, the spotlight is back on the circumstances that merit a person being held legally culpable for abetment to suicide.

Abetment to suicide, as defined in Section 306 of the Indian Penal Code, is a non-bailable offence (as per the Schedule appended with the Criminal Procedure Code).

The IPC section says, “If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment... for a term which may extend to 10 years, and shall also be liable to a fine.”

There’s a legal definition or explanation of abetment too. According to Section 107 of the IPC, abetment can be caused either by instigation or by engaging in a conspiracy or “intentionally” aiding by “any act or illegal omission”.

In other words, there can be direct or indirect evidence of abetment. “For instance, if a man, husband or lover, continuously tells a woman to go and hang herself and if there are witnesses who have seen this mental torture, then it’s certainly direct evidence of abetting suicide,” explains Sardar Amjad Ali, senior advocate, Calcutta High Court.

Again, it could be that a person is emotionally dependent on another person, but he or she is so neglected and tortured that ultimately the person is driven to suicide. “This can be indirect abetment,” adds Amjad Ali. “There seems to have been this kind of abetment in Jiah Khan’s case,” he believes.

Agrees Jay Sengupta, advocate, Calcutta High Court and Supreme Court, “Say a person, by his words or actions, persuades a young girl to fall in love with him, makes her pregnant upon a false promise of marriage and then refuses to marry her and asks her to commit suicide. If, as a direct consequence of this, the girl takes her life, the man can be said to have abetted her suicide.”

But lawyers admit that it’s not easy to prove abetment as there seems to be a thin line between guilt and innocence in such cases. “Ideally, there should be some direct or proximate relation between the abetment and the suicide,” says Sengupta. “But direct evidence of abetment is difficult to find. It has to be gathered from circumstantial evidence.”

Lawyers say that cases of direct abetment are few and far between. One such is an incident reported in the media in 2007. A cameraman in Ludhiana instigated a local businessman who had lost his property in a court battle to commit suicide in order to draw the district administration’s attention to the injustice done to him. The cameraman intimated other local journalists and he himself was present at the spot where the businessman was to kill himself. The cameraman intended to film the whole event. The police intervened at the right time and the cameraman was charged with Section 306 of the IPC.

In yet another interesting case, Urmila Pramanik, a small investor in Baruipur, West Bengal, committed suicide after she lost Rs 50,000 in the Saradha chit fund’s Ponzi schemes. Her son lodged a case of abetment to suicide under Section 306 against Sudipta Sen, the fund’s chairman-cum-managing director. “This seems to be a valid charge — a woman trusted the group, invested money and lost everything,” says Amjad Ali.

Other clear instances of abetment take place in dowry cases, says Y.P. Singh, a Delhi-based criminal lawyer. “There are cases of ‘cruelty’ or harassment by in-laws that can drive a woman to suicide,” he says. In fact, there are legal provisions that deal with cases of abetment to suicide of a married woman by her husband or in-laws. “There is a special presumption under Section 113A of the Evidence Act,” says Sengupta, “if suicide takes place within seven years of marriage and cruelty is shown to have been inflicted.”

The Supreme Court has explained what could constitute “instigation”. In a 2009 case, a special bench of the apex court held, “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... A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.”

Lawyers too point out that a mere heated exchange of words might not be enough to prove “instigation” or “abetment” to suicide. “Sometimes one may say things in anger, but he or she may not mean it,” says Singh, adding that there needs to be a clear mens rea or intention to commit the offence.

In the past Supreme Court judgments have underscored the need to have substantive proof in abetment cases. For instance, while in 2009, the apex court held, “ cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely 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, conviction in terms of Section 306 IPC is not sustainable.”

In India, legal experts say that the conviction rate under Section 306 is low. Although no official figures are available, it is estimated that it is no more than 5-10 per cent. “At the end of the day, it all depends on the facts and circumstances of individual cases,” says Mrunalini Deshmukh, a senior lawyer based in Mumbai who often handles celebrity cases.

Legal experts also come down heavily on law enforcement authorities when it comes to cases of alleged abetment to suicide. “In most abetment cases, there is hardly any fair investigation by the police who seem keen to extort money or give in to political and public pressure. So often, only the innocent are harassed,” says Singh.

Others contend that the police often resort to heavy-handed tactics while handling high profile cases. “Call it overzealousness or a tendency to project that they are not sparing the socially known,” says Deshmukh.

Of course, there is also the argument that a person may have been “driven” to commit suicide, in which case should one spare the one who drove the action? As Amjad Ali says, “A person may have been depressed, clinically or otherwise, but he or she will take such an extreme step as suicide only when there has been a trigger from someone or some circumstances.”

It’s a nebulous issue, and there are often no clear answers. One hopes that whatever the verdict in the Suraj Pancholi case, it will help clear some confusion around what does or does not constitute abetment to suicide.