IN THE COURT OF LD.

SESSIONS JUDGE,
SESSIONS COURT

In the matter of

(Criminal Case __________ of 2020)

STATE ... PROSECUTION

V.

KARAN .... DEFENDANT

For offences charged under Section 306& 498-A of the Indian Penal Code, 1860

RESPECTFULLY SUBMITTED TO THE HON’BLE JUDGE ON THE BEHALF OF

THE DEFENDANT
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TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................. ii

LIST OF ABBREVIATIONS ......................................................................................................... iii

INDEX OF AUTHORITIES............................................................................................................ v

STATEMENT OF JURISDICTION.............................................................................................. vii

STATEMENT OF FACTS ........................................................................................................... viii

ISSUES RAISED ............................................................................................................................ ix

SUMMARY OF ARGUMENTS ..................................................................................................... x

ARGUMENTS ADVANCED ......................................................................................................... 1

1. THAT THE DEFENDANT IS NOT GUILTY OF THE OFFENCE OF CRUELTY

AGAINST DECEASED ................................................................................................................ 1

1.1. That the elements of cruelty under §498-A not fulfilled ............................................... 1
2. THAT THE DEFENDANT IS NOT GUILTY OF THE OFFENCE OF ABETMENT TO
SUICIDE ...................................................................................................................................... 5

2.1. That the elements of abetment of suicide not fulfilled. ................................................. 6

PRAYER ........................................................................................................................................ 10

MEMORANDUM ON BEHALF OF DEFENDANT

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LIST OF ABBREVIATIONS

ABBREVIATIONS EXPANSIONS
& And

§ Section

¶ Paragraph

¶¶ Paragraphs

AIR All India Reporter

Anr. Another

AP Andhra Pradesh

Bom Bombay

CR Criminal Report

CrLJ Criminal Law Journal

CrPC Code of Criminal Procedure

ed. edition

HC High Court

Hon’ble Honourable

IEA Indian Evidence Act

IPC Indian Penal Code

J. Justice

LW Law Weekly

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Mad. Madras

Ors. Others

P. Page no.

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

Supl. Supplementary

UOI Union of India

v. Versus

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INDEX OF AUTHORITIES

CASES:

Arlene Uday Heble v. Usay Laxman Heble, (1995) 4 Bom CR 219 .................................. 2
Chitresh Kumar Chopra v. State (Govt. of N.C.T. Delhi), AIR 2010 SC 1446. ................. 7
Clift v. Schwabe, (1845) 2 C& K 134. ................................................................................ 5
Ghusabhai Raisangbhai Chorasiya v. State of Gujarat, 2015 SCC OnLine SC 137. ........ 8
Gurnaib Singh v. State of Punjab ........................................................................................ 3
K.V. Prakash Babu v. State of Karnataka, AIR 2016 SC 5430 .......................................... 3
K.V. Prakash Babu v. State of Karnataka, AIR 2016 SC 5430. ......................................... 4
Pinakin Mahipatray Rawal v. State of Gujarat, AIR 2014 SC 331.................................... 4
Pinakin Mahipatray Rawal v. State of Gujarat, AIR 2014 SC 331.................................... 8
Ramesh Kumar Vs. State of Chhattisgarh, (2001) 9 SCC 618. .......................................... 7
S.S. Chhena v. Vijay kumar Mahajan, (2010) 12 SCC 190. ............................................... 7
State of West Bengal v. Orilal Jaiswal and Anr., (1994) 1 SCC 73 ................................... 8

BOOKS:

1. James Fitzjames Stephen, A History of the Criminal Law of England, Vol. III,
Cambridge University Press, London, 2014.
2. J.W.C. Turner, Russell on Crime, 12th edition, Stevens Publication, London, 1964
3. P. Ramanatha Aiyar, The Law Lexicon- The Encyclopaedic Law Dictionary with
Legal Maxims, Latin Terms, Words & Phrases, 2nd ed., Lexis Nexis Butterworths
Wadhwa, Mumbai, 2006
4. J.W. Cecil Turner, Kenny’s Outlines of Criminal law,19th ed., Cambridge
University Press, London.

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5. HALSBURY’S Laws of England, 4th ed., Vol 11, Lexis Nexis Buttersworth
Wadhwa, p. 619.
6. Archibald Alison, Principles of Criminal Law of Scotland, T. Cadell Strand,
London, 1832
7. The Gaur’s Commentary on Indian Penal Code, 1860, Lexis Nexis Publications,
Buttersworth Wadhwa.

LEGISLATIONS:

THE INDIAN PENAL CODE, 1860

THE INDIAN EVIDENCE ACT, 1872

THE CODE OF CRIMINAL PROCEDURE, 1973

LEGAL DATABASES:

• Supreme Court Cases Online

• Westlaw India
• Manupatra
• Heinonline

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STATEMENT OF JURISDICTION

The Defendant, most humbly and respectfully, submits that this Hon’ble Court has the
requisite territorial and subject matter jurisdiction to entertain and adjudicate this matter
under Section 177 read with Section 26 of Code of Criminal Procedure, 1973. It is further
submitted that all procedural requirements have been adhered to in the prescribed manner.
The present memorandum sets forth the facts, contentions and arguments in the present
case.

Section 177: Ordinary place of inquiry and trial- Every offence shall ordinarily be inquired
into and tried by a Court within whose local jurisdiction it was committed.
Section 26: Courts by which offences are triable- Subject to the other provisions of this
Code, any offence under the Indian Penal Code (45 of 1860) may be tried by-
The High Court, or the Court of Session, or any other Court by which such offence is shown
in the First Schedule to be triable;
Provided that any offence under section 376, section 376A, section2 376AB, section 376B,
section 376C, section 376D, section 376DA, section 376DB or section 376E1 of the Indian
Penal Code shall be tried as far as practicable by a Court presided over by a woman. Any
offence under any other law shall, when any Court is mentioned in this behalf in such law, be
tried by such Court and when no Court is so mentioned, may be tried by the High Court, or
any other Court by which such offence is shown in the First Schedule to be triable.

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STATEMENT OF FACTS

BACKGROUND

Karan and Poorvi are a happily married couple, both working in corporate sector. Within
two years of marriage, Karan got transferred to some other city in lieu of his job. For the
household work. He hired a maid named Shanta with whom Karan was allegedly having
extra-marital relationship.

THE CASE

Poorvi on April 2014, commit suicide allegedly suffering from the feeling of alienation
and loss of companionship. A suicide note was found mentioning her husband’s extra
marital relations to be the cause of her extreme action. Two letters requesting Poorvi to
remain calm and to confront the husband was recovered by the police which were written
to her by her father-in-law.

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ISSUES RAISED

ISSUE- 1

WHETHER THE DEFENDANT IS GUILTY OF THE OFFENCE OF CRUELTY

AGAINST DECEASED?

ISSUE- 2

WHETHER THE DEFENDANT IS GUILTY OF THE OFFENCE OF ABETMENT TO

SUICIDE?

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SUMMARY OF ARGUMENTS

1. That the defendant is not guilty of the offence of cruelty

For the commission of the offence of cruelty, there is need of any wilful conduct to
harass the party to such an extent that it would drive the person to commit suicide.
However, the defendant indulged in an extra marital relationship with another person, it
was not sufficient to include within the terms of cruelty.

2. That the defendant is not guilty of the offence of abetment of suicide.

For the commission of the offence of abetment of suicide, there is need to prove two
things, firstly that there has been occurrence of suicide and there has been act of
abetment by someone leading to the incitement and inducement leading to the death of
the deceased. Moreover, the act of relationship does not amount to cruelty thus, not
enough to constitute instigation.

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ARGUMENTS ADVANCED

The edifice of the judicial system in India rests on the principle, ‘it is better and more
satisfactory to acquit a thousand guilty than to condemn a single innocent’. This sacred
principle is unimpeachably embedded in the criminal laws of India so that the rule in its
sublime semantics does not become a rope of sand losing its righteous meaning and moral
quintessence, causing a miscarriage of justice. The Defendant in pursuance of his case
submits to the Hon’ble court the following arguments:

1. THAT THE DEFENDANT IS NOT GUILTY OF THE OFFENCE OF

CRUELTY AGAINST DECEASED

It is humbly submitted before the Hon’ble Court that the defendant is not guilty for the
offence of cruelty as under §498-A of Indian Penal Code, 1860, which deals with the
offence of Husband and the relatives of the husband of a woman subjecting her to cruelty.
The counsel humbly submits before the court that the essentials for construing the offence
under the said provision are as follows:

1.1.That the elements of cruelty under §498-A not fulfilled

The term cruelty is described as an act or conduct of such a nature as to have caused danger
to life, limb or health-physical or mental as to make a reasonable apprehension of such
danger. In Black’s Law Dictionary, ‘Mental cruelty’ has been defined as a ground for
divorce, one spouse’s course of conduct (not involving actual violence) that creates such
anguish that it endangers the life, physical health, or mental health of the other spouse. In
American jurisprudence, the term mental cruelty means, “a course of unprovoked conduct
toward one’s spouse which causes embarrassment, humiliation, and anguish so as to render
the spouse’s life miserable and unendurable”.1

1
24 American Jurisprudence, 2nd edition.

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Thus, cruelty can be either physical or mental. In the present case, according to the facts it
is clear that there has been complete absence of any sort of physical violence over the
deceased. Thus, it is clear that defendant has not inflicted any harm to the deceased
physically.

The word cruelty is an ambiguous term, it differs from case to case. What is cruelty in one
case may not amount to cruelty in another case2. On account of the mental torture, it is to
be first seen that the mental cruelty varies from person to person, depending upon the
intensity and the degree of endurance, some may meet with courage and some others suffer
in silence, to some it may be unbearable and a weak person may think of ending one’s life.

For the purposes of attracting the provisions of Indian Penal Code, Section 498-A read as
follows:

“498A. Husband or relative of husband of a woman subjecting her to

cruelty: Whoever, being the husband or the relative of the husband of a
woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall also be
liable to fine.

Explanation: For the purpose of this section, “cruelty” means—

(a) any wilful conduct which is of such a nature as is likely to drive

the woman to commit suicide or to cause grave injury or danger
to life, limb or health (whether mental or physical) of the
woman; or
(b) harassment of the woman where such harassment is with a view
to coercing her or any person related to her to meet any unlawful
demand for any property or valuable security or is on account of
failure by her or any person related to her to meet such
demand.”3

2
Arlene Uday Heble v. Uday Laxman Heble, (1995) 4 Bom CR 219.
3
The Indian Penal Code, 1860, § 498-A.

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The Hon’ble SC discussed this provision in great detail in the case of Girdhar Shankar
Tawade v. State of Maharashtra4, where they observed that:

“The basic purport of the statutory provision is to avoid “cruelty”

which stands defined by attributing a specific statutory meaning
attached thereto as noticed herein before. Two specific instances
have been taken note of in order to ascribe a meaning to the word
'cruelty' as is expressed by the legislatures : Whereas explanation (a)
involves three specific situations viz., (i) to drive the woman to
commit suicide or (ii) to cause grave injury or (iii) danger to life,
limb or health, both mental and physical, and thus involving a
physical torture or atrocity, in explanation (b) there is absence of
physical injury but the legislature thought it fit to include only
coercive harassment which obviously as the legislative intent
expressed is equally heinous to match the physical injury : whereas
one is patent, the other one is latent but equally serious in terms of
the provisions of the statute since the same would also embrace the
attributes of 'cruelty' in terms of Section 498-A.”5

It clearly spells how coercive harassment can have the attributes of cruelty that would meet
the criterion as conceived of under Section 498-A of the IPC. Clause (a) of the Explanation
can take in its ambit mental cruelty.6 Thus, the emphasis is on any wilful conduct which is
of such a nature that is likely to drive the woman to commit suicide. The mental cruelty
which is engraved in the first limb of Section 498-A of the IPC has nothing to do with the
demand of dowry. It is associated with mental cruelty that can drive a woman to commit
suicide and dependent upon the conduct of the person concerned.7

It has been alleged in the present case that the defendant’s act of having extra marital
relationship amounts to cruelty. As per Supreme Court, marital relationship means legally

4
Girdhar Shankar Tawade v. State of Maharashtra, (2002) 5 SCC 177.
5
Girdhar Shankar Tawade v. State of Maharashtra, (2002) 5 SCC 177.
6
Gurnaib Singh v. State of Punjab, (2013) 7 SCC 108 .
7
K.V. Prakash Babu v. State of Karnataka, AIR 2016 SC 5430.

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protected marital interest of one spouse to another which include marital obligation to
another like companionship, living under the same roof, sexual relation and the exclusive
enjoyment of them, to have children, their up-bringing, services in the home, support,
affection, love, liking and so on, but extra-marital relationship as such is not defined in
the IPC.8

In the case of Pinakin Mahipatray Rawal v. State of Gujarat9, the Supreme Court held that,

“The mere fact that the husband has developed some intimacy with
another, during the subsistence of the marriage and failed to
discharge his marital obligations, as such would not amount to
‘cruelty’ within the explanation of Section 498-A of Indian Penal
Code, 1860.”10

“The concept of mental cruelty depends upon the milieu and the strata from which the
persons come from and definitely has an individualistic perception regard being had to
one’s endurance and sensitivity. It is difficult to generalize but certainly it can be
appreciated in a set of established facts. Extra-marital relationship, per se, or as such would
not come within the ambit of Section 498-A IPC. It would be an illegal or immoral act, but
other ingredients are to be brought home so that it would constitute a criminal offence.
There is no denial of the fact that the cruelty need not be physical but a mental torture or
abnormal behaviour that amounts to cruelty or harassment in a given case. To explicate,
solely because the husband is involved in an extra-marital relationship and there is some
suspicion in the mind of wife, that cannot be regarded as mental cruelty.”11

In the light of above statements, counsel humbly submits that though the defendant was
allegedly having an extra marital relation, there was not the defendant’s intention to harass
the deceased mentally. Moreover, taking into consideration the suicide note found near the
deceased, it is evident that the suicide note lacks any indication of cruelty committed
against her, which led the deceased to take the grave step to take her own life.

8
Pinakin Mahipatray Rawal v. State of Gujarat, AIR 2014 SC 331.
9
Ibid.
10
Ibid.
11
K.V. Prakash Babu v. State of Karnataka, AIR 2016 SC 5430.

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In the present case, the deceased seems to be in stress due to being staying away from her
husband and because of which she developed some sort of suspicion of her husband having
a relationship with her husband. It defines that she has a weak mentality that she attempted
to commit suicide leaving her 2-year child on an allegedly immoral act of her husband.

It can be thus concluded that there exists no legal evidence with respect to the alleged
cruelty of the accused with the deceased. Therefore, the defendant is not guilty of the
offence of the cruelty against deceased as explained in S.498A of IPC, 1860.

2. THAT THE DEFENDANT IS NOT GUILTY OF THE OFFENCE OF

ABETMENT TO SUICIDE

The Indian Penal Code does not define the term suicide and the meaning has just been
understood through series of judgments held both nationally and internationally. In the
case of Clift v. Schwabe12, “to ‘commit suicide’ is for a person voluntarily do an act (or, as
it is submitted, to refrain from taking bodily sustenance), for the purpose of destroying his
own life, being conscious of that probable consequence, and having, at the time, ‘sufficient
mind to will the destruction of life.”13

In the present case, the relevant provision of S.306 illustrates that:

“306. Abetment of suicide: If any person commits suicide, whoever

abets the commission of such suicide, shall be punished with
imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine.”14

To prove the offence under Section 306, one needs to establish two ingredients that the
deceased has committed suicide and the said suicide has been abetted by the defendant. In
the present case according to the fact, it has been established that the deceased has

12
Clift v. Schwabe, (1845) 2 C& K 134.
13
Ibid.
14
The Indian Penal Code, 1860, § 306.

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committed suicide but however, there exists no evidence of the act of the abetment
committed by the defendant.

2.1.That the elements of abetment of suicide not fulfilled.

The abetment of anything is described in Section 107 of the Code as:

“107. Abetment of a thing: A person abets the doing of a thing, who:

1. Instigates any person to do that thing; or

2. Engages with one or more other person or persons in any conspiracy
for the doing of that thing, if an act or illegal omission takes place
in pursuance of that conspiracy, and in order to the doing of that
thing; or
3. Intentionally aids, by any act or illegal omission, the doing of that
thing.

Explanation: (1) A person who, by willful misrepresentation, or by

willful concealment of a material fact which he is bound to disclose,
voluntarily causes or procures, or attempts to cause or procure, a
thing to be done, is said to instigate the doing of that thing.

(2) Whoever, either prior to or at the time of the commission of an

act, does anything in order to facilitate the commission of that act,
and thereby facilitates the commission thereof, is said to aid the
doing of that act.”15

The Supreme Court has explained abetment as follows:

“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

15
The Indian Penal Code, 1860, § 107.

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legislature and the ratio of the cases decided by this Court is clear
that in order to convict a person under Section 306 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 that act must have been intended to push the deceased
into such a position that he committed suicide.”16

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. 17

The Hon’ble SC in the case of Chitresh Kumar Chopra v. State (Govt. of N.C.T. Delhi)18
elaborates further that to constitute "instigation", a person who instigates another has to
provoke, incite, urge or encourage doing of an act by the other by "goading" or "urging
forward". The dictionary meaning of the word "goad" is "a thing that stimulates someone
into action: provoke to action or reaction". Similarly, "urge" means to advise or try hard to
persuade somebody to do something or to make a person to move more quickly and or in
a particular direction, especially by pushing or forcing such person. Therefore, a person
who instigates another has to "goad" or "urge forward" the latter with intention to provoke,
incite or encourage the doing of an act by the latter.19

The Court should be extremely careful in assessing the facts and circumstances of each
case and the evidence adduced in the trial for the purpose of finding whether the cruelty
meted out to the victim had in fact induced her to end the life by committing suicide. If it

16
S.S. Chhena v. Vijay kumar Mahajan, (2010) 12 SCC 190.
17
Ramesh Kumar Vs. State of Chhattisgarh, (2001) 9 SCC 618.
18
Chitresh Kumar Chopra v. State (Govt. of N.C.T. Delhi), AIR 2010 SC 1446.
19
Ibid.

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transpires to the court that a victim committing suicide was hypersensitive to ordinary
petulance discord and differences in domestic life quite common to the society to which
the victim belonged and such petulance discord and differences were not expected to
induce a similarly circumstanced individual in a given society to commit suicide, the
conscience of the Court should not be satisfied for basing a finding that the accused charged
of abetting the offence of suicide should be found guilty.20

However, in the present case as it has been established above that the extra marital
relationship does not amount to cruelty and thus it is no way amount to the act of
instigation. Moreover, though alleged having an extra marital relationship, the defendant
has not ill-treated the deceased, whether physically or mentally of the nature to drive the
deceased to commit suicide.21

Therefore, according to the said facts, the alleged extra marital relationship could be illegal
and immoral however, it is not enough to provoke, incite or induce the deceased to commit
suicide.22 It would be difficult to hold that the mental cruelty was of such a degree that it
would drive the wife to commit suicide.23 Since, there is no evidence on record in perusal
of the same, it would be of great injustice to blame an individual for a grave offence for
the trivial act of misconduct on his part.

The counsel humbly submits before the court that the suicidal death of the deceased was
not a direct result of the alleged extramarital relationship and would not constitute an
offence punishable under Section 306 of the Indian Penal Code, 1860. The counsel further
submits that even if the defendant was allegedly maintaining the extra marital relationship
with the help Shanta, there is no mens rea to show that such affair was maintained by the
defendant with the intention to drive the deceased to commit suicide.

Taking into consideration the suicide note found near the deceased, it is evident that the
suicide note lacks any indication of cruelty committed against her, which led her to take
the grave step to take her own life. Therefore, it can be summarised that in no view, it can

20
State of West Bengal v. Orilal Jaiswal and Anr., (1994) 1 SCC 73.
21
Pinakin Mahipatray Rawal v. State of Gujarat, AIR 2014 SC 331.
22
Ibid.
23
Ghusabhai Raisangbhai Chorasiya v. State of Gujarat, 2015 SCC OnLine SC 137.

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be assumed that the extra marital relationship was of such a degree that would incite,
provoke or push the deceased to a depressed situation to commit suicide.

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PRAYER

IN THE LIGHT OF THE ARGUMENTS ADVANCED, CASES AND AUTHORITIES

CITED, THE COUNSEL FOR DEFENDANT HUMBLY REQUESTS THE HON‟BLE
COURT TO ADJUDGE AND DECLARE THAT

1. THAT THE DEFENDANT IS NOT GUILTY OF THE OFFENCE OF CRUELTY

AGAINST DECEASED.

2. THAT THE DEFENDANT IS NOT GUILTY OF THE OFFENCE OF ABETMENT

OF SUICIDE AGAINST DECEASED.

AND PASS ANY OTHER ORDER, DIRECTION OR RELIEF THAT THE COURT
MAY DEEM FIT IN THE BEST INTERESTS OF JUSTICE, FAIRNESS, EQUITY AND
GOOD CONSCIENCE.

FOR THIS ACT OF KINDNESS, THE DEFENDANT SHALL DUTY BOUND

FOREVER PRAYS.

SD/-

COUNSELS FOR DEFENDANT

MEMORANDUM ON BEHALF OF DEFENDANT

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