Appellate Division :
Nazmun Ara Sultana J
Hasan Foez Siddique J
Syed Mahmud Hossain J
Dr APM Sohrab-uz-zaman ............Appellant
State represented by the Deputy Commissioner Dhaka.........
January 20th, 2016
Nari-o-Shishu Nirjatan Daman Ain (8 of 2000)
Suicide and abetment-Uttering of abusive language will not amount to provocation to commit suicide and does not constitute abetment unless something more is done in pursuance of the said utterance of abuses .........(24)
Nari-o-Shishu Nirjatan Daman Ain (8 of 2000)
The wilful act was done without the consent of the victim or against her will is totally inelegant here since they are husband and wife. The phone call was between two consensual adults, i.e. married couple. . ... (20)
The question of infringing the modesty of a woman is depended upon the customs and habit of the people. Acts which are outrageous to morality would be outrageous to modesty of women. Modesty is defined as the quality of being modest and in relation to woman, womanly propriety of behavior, scrupulous chastity of thought, speech and conduct. It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. . ..... (21)
Nari-o-Shishu Nirjatan Daman Ain (8 of 2000) Section 9Ka
There must be an act of abetment of committing suicide of a female ( নারীর আত্মহত্যা করিতে প্ররোচিত করিবার ঃযধঃ ঃযবৎব সঁংঃ নব ধ রিষভঁষ ধপঃ ড়ভ ঃযব ধপপঁংবফ “ব্যক্তির ইচ্ছাকৃত (রিষভঁষ) কোন কার্য]” ; that the wilful act is done without the consent of the victim or against her will [ নারীর সম্মতি ছাড়া বা ইছ্চার বিরুদ্ধে] that the wilful act violates her modesty [কার্য দ্বারা সম্্ভ্রমহানী] ধহফ ঃযধঃ ারড়ষধঃরড়হ ড়ভ যবৎ সড়ফবংঃু রং ঃযব ফরৎবপঃ পধঁংব ড়ভ যবৎ ঃড় রহংঃরমধঃব ংঁরপরফব নু যরং ধপঃ ¦ সম্্ভ্রমহানী হইবার প্রত্যক্ষ কারণে কোন নারী আত্মহত্যা করিলে উক্ত ব্যক্তি নারীকে অনুরূপ কার্য দ্বারা আত্মহত্যা করিতে প্ররোচিত করিবার] ৃৃ(১৭)
"Modesty" of a women is intimately connect with feminity including her sex. Exacts words used by him or them are absent in the FIR or police report. …… (22)
Nari-o-Shishu Nirjatan Daman Ain (8 of 2000) Section 9Ka
Section 9Ka provides that, Òbvixi m¤§wZQvov ev ইচ্ছার বিরুদ্ধে “সম্্ভ্রমহানী” anticipated a non-consensual act of such a nature where there has been violation of modesty. The word modesty is not to be interpreted with reference to the particular victim of the act, but as an attribute associated with female human beings as a class. It is a virtue which attaches to a female on account for her sex. The word modesty has not been defined in the Ain or in the Penal Code. ...... (21)
Nari-o-Shishu Nirjatan Daman Ain (80[2000) Section 9Ka
Neither the telephone conversation nor the alleged conduct of the appellant as revealed from the FIR and charge-sheet could have been the direct cause (প্রত্যক্ষ কারণে) of the commission of suicide as required under section 9ka of the Ain. It can be said that the act which, as claimed by the respondent, instigated suicide and caused her death, cannot be accepted for the causal link of the sad demise of the deceased with the act as described in the charge-sheet against the appellant, is not present to form the offence which can fit to call within the ambit of section 9Ka of the Ain ... (23)
Swami Prahaldas vs State, of MP 1995 SCC (Cri) 943; P Srini Vasulu vs State, 2004 Crl LJ 2718 (AP); State of Punjab vs Major Singh, AIR 1967 SC 63 and Damoder Behari vs State of Orissa, 1996 Crl LJ 346 ref.
M Amir-ul-Islam. Senior Advocate, (Hartin-or-Rashid. Advocate) with him. instructed by Md Taujique Hossain. Advocate-on-Record-For the Appellant.
Ekramul Huq, Deputy Attorney-General. instructed by Md Zahirul Islam. Advocate-on-Record-For the Respondent.
Hasan Foez Siddique J : This criminal appeal, by leave, is directed against the judgment and order dated 30-7-2006 passed by a Division Bench of the High Court Division in Criminal Miscellaneous Case No. 5401 of 2006 discharging the Rule.
2. Criminal Miscellaneous Case No. 5401 of 2006 relates to an application under section 561A of the Code of Criminal Procedure filed by the appellant Dr APM Sohrabuzzaman in the High Court Division for quashing the proceeding of Nari-o-Shishu Nirjaton Case No. 72 of 2006 arising out of Mohammadpur PS Case No. 59 dated 28-2-2006 under section 9Ka of the Nari-o-Shishu Nirjaton Daman Ain, 2000 (hereinafter referred as Ain), pending before the Nari-o-Shishu Nirjatan Daman Special Tribunal No.4, Dhaka (hereinafter referred as tribunal)
3. The facts, in brief, are that informant Golam Rabbani, brother of deceased Nurunnahar, filed Unnatural Death Case No.1 of 2006 dated 4-2-2006 with Mohammadpur Police Station, Dhaka stating that there was marital disharmony between the deceased and her husband, the appellant. On 3-2-2006, at around 11-00 pm there was a heated exchange of words over telephone between the deceased and the appellant and some time, thereafter, the deceased became ill after taking sleeping-pills. On receiving the news, the appellant rushed her residence. The appellant and family members of deceased shifted her to Labaid Cardiac Hospital by ambulance where the deceased expired. On 4-2-2006, a death certificate was issued by the Doctors of the Labaid Cardiac Hospital stating that the cause of death, the deceased was due to "Hypoxic injury to brain due to drug abuse followed by cardiac arrest". Holding post-mortem examination of the dead body and the Chemical examination of viscera, the concerned Doctor opined that "the deceased died due to Cardio respiratory failure as a result of amiriptyline ingestion which was ante-mortem and injuries found during post-mortem examination were produced as a result of Cardiac massage". In such as situation, the informant lodged the First Information Report (FIR) on 28-2-2006 with Mohammadpur Police Station, Dhaka against the appellant alleging commission of an offence under section 9Ka of the Ain.
4. After holding investigation, the Investigating Officer submitted charge-sheet under section 9Ka of the Ain against the appellant.
5. Thereafter, the case record was transmitted to the Tribunal for holding trial and the same was registered as Nari-o-Shishu Nirjaton Case No. 72 of 2006.
6. The accused-petitioner filed an application under section 241 A of the Code of Criminal Procedure before the tribunal for getting him discharge from the case. After hearing the parties, the tribunal rejected the said application and framed charge against the appellant under section 9Ka of the Ain by an order dated 6-4-2006.
7. Than, the appellant filed an application under section 561A of the Code of Criminal Procedure in the High Court Division and obtained Rule and stay. By the impugned judgment and order dated 30-7-2006, the High Court Division discharged the Rule. The, appellant, thus, preferred this Appeal getting leave.
8. This Division granted Leave to consider the points that the High Court Division erred in expanding the jurisprudential meaning and connotation of 'modesty' by reading section 9Ka out of context and by reading the word Òmg&&ågnvbÓ without the two most important qualifying limitations ‘সম্মতি ছাড়া বা ইচ্ছার বিরুদ্ধে’ ধহফ ‘প্রত্যক্ষ কারণে’ due and to the misconception of criminal jurisprudence and by wrongly applying liberal and expanding interpretative principle to a penal statute failing thereby to appreciate the concept of modesty in relation to a woman and that the outraging the modesty of a woman is well defined and expounded, the modesty of woman being "in essence an attribute to her sex". That the High Court Division erred in omitting to address the words ‘সম্মতি ছাড়া বা ইচ্ছার বিরুদ্ধে’ which constitute the qualifying part of Òmg&&ågnvbxÓ under section 9Ka of the Ain and thereby created an artificial distinction between the words ‘শ্লীলতাহানী’ ধহফ ‘সম্্ভ্রমহানী’ by reading ‘সম্্ভ্রমহানী’ out of context. That the High Court Division erred in highlighting ‘সম্মতি ছাড়া বা ইচ্ছার বিরুদ্ধে’ without the qualifying part of ‘সম্্ভ্রমহানী’ it has widened the meaning of the word ‘সম্্ভ্রমহানী’ to include all such unilateral acts within the otherwise strict ambit of section 9Ka of the Ain. That the High Court Division erred in accepting that the alleged commutative acts constituted a willful act under section 9Ka of the Ain notwithstanding the wording of the section which clearly asserts
the need for a direct link (প্রত্যক্ষ কারণে between the act of violation of modesty (‘ই"ছার বিরুদ্ধে’ সম্ভ্রমহানি) and the commission of suicide being the direct consequence of such an act.
That the High Court Division erred in concluding that the facts and records reveal a prima facie case and upon consideration of those facts and records, it is evident that no case having been disclosed nor any of the ingredients of the offence, i. e, a willful act of the accused violating the modesty of a woman without her consent or against her will and such violation being the direct cause of her to commit suicide being present, the' High Court Division ought to have come to the conclusion 'that no offence under section 9Ka of the Ain being attributable to the appellant.
9. Mr M Amir-ul-Islam learned Senior Counsel appearing on behalf of the appellant, in his submission, reteriating the grounds, on which, leave was granted for consideration, submits that prima-facie ingredients of section 9Ka of the Ain have not been established against the appellant from the FIR police report, post mortem report and other prosecution documents, the High Court Division erred in law in not quashing the entire proceeding which has been initiated only to harass and humiliate the appellant. Mr Islam submits that earlier the deceased married twice.
The appellant was her third husband and that she had been suffering from schizophrnia and died taking overdose sleeping pills.
10. Mr Ekramul Huq, learned Deputy Attorney General appearing on behalf of the State-respondent in his submission, supported the judgment and order of the High Court Division.
11. On perusal of the FIR, it appears that the informant has mentioned the date and time of occurrence as between midnight, 3rd February, 2006 and morning, 4th February, 2006. Place of occurrence has been mentioned as House No. 3/Ka, Road No. I, Shamoli, PS. Mohammadpur, that is, in her own residence. FIR was lodged on 28-2-2006. In the FIR, the informant, narrating the story of disharmony in conjugal life of this couple, stated the occurrence, which took place at the relevant time, place and manner, that at about mid night the appellant abused the deceased with filthy language and false accusation thereby tortured her mentally over telephone.
The victim became ill taking sleeping pills. The informant and her other family members getting such message went to her residence. The appellant hearing the news also rushed there taking an ambulance and got her admitted, at first, with Shamarita Hospital and, thereafter, with Lab- Aid Cardiac hospital. Those are the nutshell of the facts regarding the date, time and manner of occurrence besides the previous other stories of discording of their conjugal life.
(To be continued)
12. The Investigating Officer, holding investigation, submitted chargesheet against the appellant under section 9Ka of the Ain. In police report, the Investigating Officer, also narrated their previous disharmony in conjugal life and found the facts about the time, date and manner of occurrence mentioned in the FIR, prima-facie true.
13. The Doctor, holding autopsy, kept his opinion pending till arrival of the chemical examination report of the viscera of the victim. On chemical examination of viscera, the Chemical Expert opined:
“তিনটি প্লাষ্টিকের পাত্রে রক্ষিত পাকস্থলী ও উহার বস্তসমূহে লিভারের অংশে, কিডনী এবং রক্তে এ্যমটিলিম পাওয়া গেছে।
অন্য প্লাষ্টিকের পাত্রে রক্ষিত সাদা দানাদার পদার্থ সোডিয়াম ফোরাইড”
14. The Doctor finally opined that the death was due to cardio reparatory failure as a result of Amiry Ptyllina ingestion which was antimortem and injuries found during post mortem examination were product as a result of Cardiac Message.
15. Often, innocent persons are trapped or brought in with ulterior motives. This places an arduous duty on the court to separate such individuals from the offenders . Hence the Courts have to deal such cases with circumvention, sift through the materials with caution. scrutinize the circumstances utmost care. The present matter is one such where similar questions have been raised, including questions or interpretation of the ' stringent law.
16. The point for adjudication in this case is that in view of the contents of the FIR, police report, post mortem report prima:facie case under section 9Ka of the Nari-o-Shishu Nirjatan Daman Ain has been made out against the appellant or not. It is relevant here to reproduce the provisions of section 9Ka of the Ain which run as follows:
“৯ক। নারীর আত্মহত্যা প্ররোচণা, ইত্যাদি ও শাস্তি। -- কোন নারীর সম্মতি ছাড়া বা ইচ্ছার বিরুদ্ধে কোন ব্যক্তির ইচ্ছাকৃত (রিষভঁষ) কোন কার্য দ্বারা ‘ সম্ভ্রমহানি হইবার প্রত্যক্ষ কারণে কোন নারী আত্মহত্যা করিলে উক্ত ব্যক্তি নারীকে অনুরূপ কার্য দ্বারা আত্মহত্যা করিলে উক্ত ব্যক্তি নারীকে অনুরূপ কার্য দ্বারা আত্মহত্যা করিতে প্ররোচিত করিবার অপরাধে অপরাধী হইবেন এবং উক্ত অপরাধের জন্য তিনি অনধিক দশ বৎসর কিন্তু অন্যূন পাঁচ বৎসর সশ্রম কারাদ-ে দ-নীয় হইবেন এবং ইহার অতিরিক্ত অর্থদ-েও দ-নীয় হইবেন।”
17. The imperative ingredients of 9Ka of the Ain are that there must be an act of abetment of committing suicide of a female (নারীর আত্মহত্যা করিতে প্ররোচিত করিবার”) ; that there must be a wilful act of the accused "[ ব্যক্তির ইচ্ছাকৃত (রিষভঁষ)....... কোন কার্য] ; that the said wilful act is done without the consent of the victim or against her will [......bvixi m¤§wZ Qvov ev B”Qvi weiæ‡×] that the said wilful act violates her modesty [Kvh© Øviv m¤£gnvwb] and that
violation of her modesty is the direct cause of her to instigate suicide by his aforesaid act m¤£gnvwb nBevi প্রত্যক্ষ কারণে কোন নারী আত্মহত্যা করিলে উক্ত ব্যক্তি নারীকে অনুরূপ কার্য দ্বারা আত্মহত্যা করিতে প্রেেরাচিত করিবার]
18. From the contents of the allegation it appears that the appellant and deceased Nurun nahar had a discorded marital life. It is alleged that Nurunnahar became unhappy of her married life and she was being abused, humiliated and subjected to mental cruelty and ill treatment. The last conversation they had on phone at 11 pm on the 3rd of February, 2006. This phone call, allegedly caused the victim to lose her control over self and made her to take an overdose of sleeping pills which ultimately led her to her death at 5 am on the 4th of February, 2006. First question is the papers of the prosecution disclose prima facie ingredients of abetment of commission or suicide as provided in section 9Ka of the Ain against the appellant or not. Abetment means some active suggestion or support to the commission of the offence. Abetment comprising (a) instigation to commit the offences (b) engaging in conspiracy to commit the offence, and (c) aiding the commission of an offence. The word "instigate" literally means to goad, urge forward, provoke, incite or encourage to do an act and a person is said to instigate another when he actively suggests or stimulates him to the act by any means, or language, direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement. Instigation to commit suicide means goading, provoking, inciting, urging or encouraging to commit suicide. In the case of Swami Prahaldas vs State of MP reported in 1995 SCC (Cri) 943 one Sushila Bai, a married women, is alleged to have had two paramours one was the deceased and the other was the appellant. It was alleged that there was sexual jealousy between the two. The deceased was a married man. The prosecution alleges that Sushila Bai had completely bewitched him but her heart was with the appellant. On the morning of 13-6-1992, all three had a quarrel while sharing their morning lea. During that course, the appellant is said to have remarked for the deceased to go and die. The deceased went home in a dejected mode, whereafter he committed suicide. Supreme Court of India held that it cannot be said that the suicide by the deceased was the direct result of the words uttered by the appellant. Accordingly, proceeding was quashed. Similar view has been taken in the case of P Srini Vasulu vs State, 2004 Crl LJ 2718 (AP). In that case wife poured Kerosene over herself and set herself a fire because of abuses of accused husband. It was held that simple abuses are not sufficient to provoke the victim to commit suicide.
19. In the instant case there is nothing in the FIR, police report or. in any other prosecution papers about the exact words used in telephone conversation which allegedly instigated the victim to commit suicide. There is nothing in the materials on record regarding the language used by the appellant during phone conversation" which instigated the deceased to have overdose sleeping pills and commit suicide.
20. The "wilful act of the accused" would have to be according to the essence of the section 9Ka of the Ain. In this case, both the appellant and deceased are adults, married to each other, and have had various telephone conversations completely related to their personal mood and circumstances of that moment. The wilful act was done without the consent of the victim or against her will is totally irrelevant here since they are husband and wife. The phone call was between two consensual adults, i.e. married couple.
21. FIR and Charge Sheet do not disclose that "the said wilful act violated her modesty" to round up the offence. The telephone conversation which allegedly resulted into a disagreement on their personal life is incapable of constituting an act of violation of modesty or m¤£gnvwb If we look into the context of the Statute, the word modesty refers to the attribute of sexuality of the woman. section 9Ka provides that, “নারীর সম্মতি ছাড়া ই"ছার বিরুদ্ধে সম্ভ্রমহানি anticipated a non-consensual act of such a nature where there has been violation of modesty. The word modesty is not to be interpreted with reference to the particular victim of the act, but as an attribute associated with female human beings as a class. It is a virtue which attaches to a female on account for her sex. As explained by Bachawat J in State of Punjab vs Major Singh AIR 1967 SC 63 "the essence of a woman's modesty is her sex." The culpable intention of the accused is the crux of the matter. The word modesty has not been defined in the Ain or in the Penal Code. In the Oxford English Dictionary one of the meaning given for the word 'modesty' is womanly propriety of behaviour. What the legislature had in mind when it used the word 'modesty' in the Ain was protection of an attribute which is peculiar to women. It has relation to the sense of propriety of behaviour in relation to a women against whom the offence is committed. Modesty is the attribute of female sex and she possesses it irrespective of her age. The question of infringing the modesty of a woman is depended upon the customs and habit of the people. Acts which are outrageous to morality would be outrageous to modesty of women. "Modesty is defined as the quality of being modest and in relation to woman, "womanly propriety of behavior, scrupulous chastity of thought, speech and conduct. It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions." (Damoder Behari vs State of Orissa, 1996 Crl LJ 346).
22. The concept of "modesty" concern with feminity including sex. Wherever there is an assault or insult to this feminity or the like quality accompanying it. The culpable intention of the accused is the crux of the matter. "Modesty" of a women is intimately connect with feminity including her sex. The facts and circumstances as it appears from the prosecution papers that the appellant did nothing with the violation of "modesty" of the victim. He exchanged views with his wife, which was according to the prosecution, was heated. But exacts words used by him or them are absent in the FIR or police report. It is not the case of prosecution that the appellant husband outrage the modesty of his wife in a public place and to the knowledge of the public. The telephonic conversation with the wife, even, exchanging of hot talks, could not be Òm¤£gnvwb cÖZ¨ÿ KviYÓ I. That is an important ingredient of section 9Ka of the Ain that "if a woman commits suicide because of violation of her modesty by willful acts of any persons without her consent against her will.........." is absent in the instant case, (underlined by us)
23. Men and women are equally being thrown into depression for thousands of matters. There are many reasons which causes women to fall into depressions and consequently cause them to end their own life to escape the despair. There may not be any violation of modesty. Neither the telephone conversation nor the alleged conduct of the appellant as revealed from the FIR and chargesheet could have been the direct cause (cÖZ¨ÿ KviY) of the commission of suicide as required under section 9ka of the Ain. Therefore, it can be said that the act which, as claimed by the respondent, instigated suicide and caused her death, cannot be accepted for the causal link of the sad demise of the deceased with the act as described in the chargesheet against the appellant, is not present to form the offence which can fit to call within the ambit of section 9Ka of the Ain.
24. Considering the facts and circumstances as revealed from the prosecution papers our considered view is that there was no direct incitement or mensrea on the part of the appellant which comes within the definition of abetement of suicide. There is no iota of material to show that immediately before the instant the deceased had given and inkling about her feeling of dismay and harassment on account of any conduct of the appellant which could have been a ground to connect the appellant with the offence under section 9Ka of the Ain. Uttering of abusive language will not amount to pro-vocation to commit suicide and does not constitute abetment unless something more is done in pursuance of the said utterance of abuses. In this case, the materials on record, prima-facie, do not disclose an offence under section 9Ka of the Ain and therefore the accused appellant ought not to be tried upon the charge.
25. Considering the facts and circumstances of the case, we are of the view the High Court Division committed an error of law is discharging the Rule.
26. Accordingly, we find merit in the appeal. Thus the appeal is allowed. The judgment and order of the High Court Division is set aside and the proceeding is quashed.