Tunisha Sharma suicide case: Why it’s difficult to prove abetment to suicide charge

Generally, however, when it comes to abetment to suicide cases, police are not in a hurry to make an arrest given how difficult it is to prove these cases. As per National Crime Records Bureau (NCRB) data for 2021, the conviction rate for abetment to suicide cases, where the victims were women, was 20 per cent.

The courts have repeatedly mentioned that there must be ‘mens rea’ — an intention to drive a person to commit suicide — for anyone to be charged with the offence apart from other conditions. Besides, the courts have mentioned that for an accused to be charged with Section 306 (abetment to suicide) of IPC (Indian Penal Code), the deceased should have been left with no option but to commit suicide by the accused.

In the landmark judgment of M Mohan versus state, the Supreme Court in 2011 observed, “…there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person’s suicidability pattern is different from the others. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances…”

It added, “…abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this court are clear that in order to convict a person under Section 306 of IPC, there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide.”

Apart from this, there have been several recent court orders where the court has time and again clarified the need for facilitating suicide for anyone to be charged by it even if that person has been named in the suicide note by the deceased.

Earlier this month, while acquitting a 39-year-old man for abetting his wife’s suicide in 2015, a sessions court observed that even if the husband was harassing his wife under the influence of alcohol, it did not establish that he abetted his wife’s suicide or did something to facilitate it. There were allegations that the husband would drink and beat his wife that drove her to commit suicide. The court said that it was not proved that there was no option left with the woman but to commit suicide.

In August this year, the Bombay High Court, granting bail to an accused in an abetment to suicide case, where his wife had named him in the suicide note, observed that abusive language, however insulting, will not constitute a crime.

Justice Bharati Dangre said, “The act of the accused, however insulting to the deceased by using abusive language, by itself will not constitute abetment to suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied, the accused cannot be convicted under Section 306.”

An IPS officer said, “To prove Section 306 is difficult as one has to show that due to the accused, the person was left with no option but to commit suicide and that the accused intended and abetted the suicide.”

He added, “However, after losing a family member, the family is usually distraught and we generally do register an FIR if they give a complaint to defuse the situation. We then investigate the matter and, in cases where we do not find enough evidence to prove abetment, we do not arrest or file a chargesheet against the person.”

In Mumbai itself, there have been several examples of police registering an abetment to suicide case and closing the case a few years hence of the FIR being quashed by courts.

In September this year, the Bombay High Court quashed an abetment to suicide case involving seven-time Member of Parliament Mohan Delkar against Praful Patel, the administrator of Dadra and Nagar Haveli along with others. Delkar had named the accused in the suicide note but the court observed that “the allegations fall too short to show any positive act.”

In September 2017, musician Karan Joseph (29) allegedly jumped to death from the 13th floor residence of his friend and music producer Rishi Shah’s Bandra residence. The family members made allegations against Shah following which the police registered an abetment to suicide case, which was eventually closed in February 2022 for want of evidence.

In July 2020, the Bihar police registered an FIR against actress Rhea Chakraborthy, her family members and others on the charge of abetment to suicide of actor Sushant Singh Rajput who died by suicide in June 2020. The case was transferred to the CBI. However, till date the CBI has not mentioned any evidence they have found against the accused in the case.

Section 306, which carries a maximum sentence of 10 years, was first used to act against Sati. As per the Thakore Nitaben vs State of Gujarat order of February 2017, “Among the early cases of abetment of suicide arose out of unfortunate incidents of Sati, which was common in India, at one time. A person who induced the woman to return to the pyre after she had once retired from it, and immolated herself, was held to have abetted suicide.”

As per NCRB data, a total of 9,361 cases of abetment to suicide were registered across the country in 2021 and formed 0.3 per cent of the share of total crime cases registered across the country. Interestingly, Maharashtra tops the list of crimes registered under abetment to suicide (sections 305 and 306) in 2021 with 1,462 cases being registered. In cases of abetment to suicide of women registered across the country, the conviction percentage in 2021 was 20 per
cent, low even by India’s general poor conviction rate.