'Abetment By Instigation Depends On Intention Of Accused, Not On Victim's Actions': Bombay High Court

In a significant ruling, the Bombay High Court has held that the offence of abetment by instigation would depend on the intention of the accused and not the victim's actions. Refusing bail to a man accused of sexually harassing and abetting the suicide of his 17-year-old niece who jumped out of her balcony, Justice Bharati Dangre observed that 'instigation' in cases of abetment would have to be gathered from the circumstances surrounding the suicide. "In a particular case, it is possible that there may not be direct evidence in regard to instigation which may bear a direct nexus to suicide. In such circumstances, inference will have to be drawn from the surrounding circumstances and it will have to be ascertained whether circumstances had been such which in fact had created a situation that a person felt totally frustrated and committed suicide," Justice Bharati Dangre observed. She rejected that defence's argument that there was no positive act on his part to be charged with abetment of suicide. "The position of law which emerges from the authoritative pronouncements is that for a reasonable certainty to incite, the consequences must be capable of being spelt out. The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the person who was abetted." Facts of the Case On September 6 2020, the victim's mother received a message from her daughter's friend about a cousin uncle sending the victim "dirty messages". When the mother confronted the victim, she showed her screenshots in a hidden folder in the phone and then ran out and jumped from the 4th floor balcony of their high-rise apartment. She succumbed to her injuries a month later, on October 17 2020, in a private hospital. The next day, the mother found a note in her daughter's dresser. She had narrated her ordeal and bid adieu to the family. Considering the accused was a close family friend, the FIR was finally registered after 96 days invoking Sections 306, 354A, 354-B of the IPC and Section 4 and 8 of the POCSO Act. Arguments Senior Advocate, Aabad Ponda, argued that the accused had no intention or knowledge that the girl would commit suicide. Merely because it is alleged that there was some harassment or anguish on her part, in the absence of any positive act attributed to him, he cannot be held guilty of abetment to commit suicide. Observations The court disagreed with Ponda that the note did not show that the child would take her own life. Justice Dangre said that the girl had written the note soon after she received a message from the accused. The screenshots showed that the accused was harassing the girl for a year despite her protests, the court said, adding, her note demonstrated her fears and anguish. "She is a girl in formative years and her writing give an impression that she felt trapped… cornered by the conduct and demeanour of her own uncle, which was unexpected since she held him on a high pedestal as her own father and was unable to vent her anguish on account of the close proximity of the family with that of the applicant. She suffered the consequences mutely for a year or so." On Sexual Abuse The court further observed that we have still not been able to create an environment where those close to a child can identify signs of abuse. "Sexual violence knows no boundaries. It occurs in every country, across all parts of society. A child may be subjected to sexual abuse or exploitation at home too. The widespread use of digital technology can also put children at risk. At times, the abuse occurs at the hands of someone a child knows and trusts. Any form of sexual violence result in severe physical, psychological harm."Unfortunately, we have not been able to create an atmosphere in the Society where Parents, teachers and adults in company of the child can identify signs of abuse and make sure children receive care and protection", Justice Bharati Dangre noted.Case Title: Gaurav s/o Sopan Narkhede v. State of MaharashtraClick Here To Read/ Download Order

'Abetment By Instigation Depends On Intention Of Accused, Not On Victim's Actions': Bombay High Court

Sharmeen Hakim

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