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Section 309 of Indian Penal Code, 1860 – Explained!

January 14, 2019 0 Comment

According to the section liability under this provision exists when an attempt is made to commit suicide and any act towards the commission of such offence is done. This is the only section in the Indian Penal Code where punishment could be meted for an unsuccessful act only and never for a successful one. In other words, suicide is not a crime, its attempt is.

The law is quite sympathetic to the offender is apparent from the fact that the quantum of penalty prescribed is not harsh and also that the imprisonment is always simple, never rigorous. The words ‘or with fine, or with both’ were substituted for the words ‘and shall also be liable to fine’ by the Indian Penal Code Amendment Act, 1882.

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It is surprising to note that out of about twenty-five sections in all on attempts in the Indian Penal Code in only two of them, sections 309 and 511, particular expression ‘and does any act towards the commission of such offence’ in section 309 and ‘and in such attempt does any act towards the commission of the offence’ in section 511 been used.

It is surprising because there could perhaps be no attempt where ‘and an act towards the commission of such offence’ or ‘and in such attempt does any act towards the commission of the offence’ is not done, and the expressions in these two sections is, therefore, redundant and unnecessary. But eminent persons like Macaulay and other members would not have used an expression without purpose.

The only reasonable explanation is that he and others in his group perhaps believed that cases that will have come under these sections before the courts might pose a few more problems than under other provisions and, therefore, as a matter of abundant caution these required to be more clear. Interestingly the courts in a large number of cases under these two sections have emphasised on this very unnecessary part of the section while delivering judgments.

Where the accused woman with the intention of committing suicide ran towards a well with a view to jump into it, but was prevented from doing so by a person who seized her, it was held that she could not be held guilty under this section as there was always a possibility that she could change her intention and also because her act was still in the stage of preparation as she was caught before she did anything which could be regarded as commencement of an offence.

But where the accused woman was in an advanced stage of pregnancy and was uncomfortable and very distressed because of prolonged severe labour pains, and she jumped into a well as a result of which the child was born dead, it was held that even though she could not be held guilty of voluntarily causing miscarriage, she was liable under section 309 for attempting to commit suicide.

In another case, while the accused woman was suffering from a chronic incurable illness her youngest little child was suffering from rickets. Whereas they went to bed in the night as usual, they were found in a nearby well on the next morning from which they were taken out, the woman alive but the child dead. The woman stated before the court that she was very ill and that there was something wrong with her brain.

The evidence was not clear as to how the woman and her child reached inside the well. It was held that it would be wrong to play on the imagination and hold the accused guilty of murder and attempted suicide and deny her the benefit of section 84 especially when the prosecution has failed to prove that she had deliberately jumped into the well along with her child.

The accused village woman was being ill-treated by her husband and after a quarrel between the two he threatened that he would beat her, and late in the night she left her home along with her child. After walking for some distance she heard the footsteps of someone behind her, and on turning round she found that her husband was following her. In a panic she suddenly jumped into a nearby well with her child.

The child died but she was saved. On a charge under this section it was held that she could not be held guilty because attempt connotes a conscious endeavour to accomplish an act while in the instant case the accused jumped into the well to escape from her husband and she had to decide about it at the spur of the moment as there was no time to deliberate over the matter.

She was, however, held guilty of culpable homicide not amounting to murder for the death of the child. Similarly, where the accused jumped into a well to escape from the clutches of the police, and when rescued he came out voluntarily, it was held that he could not be convicted under this section as the prosecution had failed to produce any evidence which would lead the court to conclude that he had done so to commit suicide.

One of the main questions in all cases of attempt is to find out as to whether the act on the part of the accused has crossed the stage of preparation because except in exceptional cases as long as it is in the preparatory stage there is no liability.

Where the accused was caught grinding oleander roots with the intention of committing suicide by consuming the same, it was held that no offence under this section was committed as his act had not gone beyond the stage of preparation to fall into the stage of attempt.

The question is no different in cases of hunger strike. In Ram Sunder Dubey v. State the accused, an employee in a mental hospital, was suspended from service. He went into hunger strike against his suspension. After three or four days he was removed to a hospital. He argued that at no stage did he have an intention to fast unto death and in fact he had been taking lemon juice regularly, and so he could not be held guilty under section 309.

He was not held guilty of attempted suicide because at the time of his removal to hospital he was not on the verge of death, and there was always a possibility of his breaking the fast before it became too dangerous, and hence his act was in the stage of preparation only.

In such cases even if a person declares beforehand that he was going on fast unto death, even then he could not be held guilty of attempt to commit suicide until the prosecution could prove that his condition had become so bad that he was on the verge of death. Hunger strike cases are always long drawn affairs and not eating for a short period may cause loss of weight but not death generally.

There may, however, be an irony about such cases in India where the general impression may be that different yardsticks are applied in different cases. For instance, a saint leader of stature who had voluntarily left food and water a few days before he decided to end his life was not charged under this section.

Similarly the practice of following ‘santhara’ is prevalent amongst the Jain community and this is quite frequently undertaken especially by Jain sadhus and sadhvis. Under this practice food and water is totally left after one decides to die and slowly the death results. But a prosecution is not launched against such person. However, when a similar act is done by any ordinary person, he is bound to be charged for attempted suicide.

Constitutionality of section 309

A Division Bench of the Bombay High Court has held in Maruti Sripati Dubai v. State where a police constable who became mentally ill after a road accident attempted to commit suicide by dousing himself with kerosene and then trying to light a match held that section 309 is violative of Articles 14, 19 and 21 of the Constitution.

It violates Article 14 because suicide not having been defined in the Code, what may be regarded as suicide in one community may not be so regarded in another. It may be described differently in different circumstances and at different times in the same community. While some suicides are eulogised, others are condemned.

All suicides are treated alike without regard to the circumstances under which they are committed and same punishment is prescribed irrespective of the fact that circumstances under which they are committed may be different. The section violates Article 19 since the fundamental rights enumerated therein are only extensions of the right to life under Article 21 and have no meaning without it.

The section is violative of Article 21 because this Article recognises right to life as a positive right which includes right to live and right not to live or right not being forced to live. It includes, therefore, right to die or right to terminate one’s life. In State of Maharashtra v. Maruti Shripati Dubai the accused had attempted to commit suicide eleven years ago.

The High Court had noted that after meeting with a road accident causing head injuries, he had become disbalanced and his ailment was diagnosed as giddiness, fright, reduced sleep etc. Subsequently, the doctor diagnosed that he was suffering from schizophrenia. The Supreme Court felt that it will not be desirable to proceed with a criminal case initiated against him.

The Court observed that even if found guilty, he deserved to be treated very sympathetically and directed quashing of the case. However, a Division Bench of the Andhra Pradesh High Court in Chenna Jagdeeswar v. State has ruled that right to life does not include right not to live or right to die, and, therefore, section 309 is not violative of Articles 19 and 21 of the Constitution.

It cannot be said that the right to life impliedly guaranteed by the Constitution (as the right to life is not specifically mentioned in Article 19 or 21) includes right not to live. It was also pointed out that the courts have sufficient power to see that unwarranted harsh treatment or prejudice is not meted out to those who need care and attention. This, therefore, does not violate Article 14.

There is a growing feeling in India that attempt to commit suicide should no longer be regarded as a crime and section 309 deserves to be deleted from the statute book. So many reasons are being given in favour of this point of view including that one should be free to deal with his body in any way he likes and that the act of killing oneself does neither interfere with peace and harmony in society nor does it cause alarm to it.

In addition to this, another important fact in favour of its abolition is that many countries in the world including Britain have no such crime and in many American States the position is the same. In tune with the times a Division Bench of the Delhi High Court while acquitting a young boy who attempted to take his own life by consuming an insecticide has observed in State v. Sanjaya Kumar Bhatia that the continuance of section 309 is an anachronism unworthy of a human society like ours. Instead of sending the young boy to a psychiatric clinic, the society gleefully sends him to mingle with criminals. Medical clinics are needed for such social misfits and not police and prison.

However, the question of its constitutional validity with reference to any provision of the Constitution was not considered. The Court went on to state that there was no special reason as to why the prosecution should be allowed to continue its investigation beyond a period of six months. The respondent had sufficient traumatic experience and so we refuse to disturb the finding of the trial court acquitting the respondent.

In P. Rathinam v. Union of India, the two petitions before the court assailed the validity of section 309 by contending the same to be violative of Articles 14 and 21 of the Constitution and the prayer was to declare the section as void. The additional prayer was to quash the proceedings initiated against the latter petitioner under section 309. A Division Bench of Supreme Court observed that section 309 of the Indian Penal Code deserves to be effaced from the statute book to humanise our penal laws.

It is a cruel and irrational provision, and it may result in punishing a person again (doubly) who has suffered agony and would be undergoing ignominy because of his failure to commit suicide. Then an act of suicide cannot be said to be against religion, morality or public policy, and an act of attempted suicide has no baneful effect on society.

Further, suicide or attempt to commit it causes no harm to others, because of which State’s interference with the personal liberty of the concerned persons is not called for. It was, therefore, held that section 309 violates Article 21 and so it is void. The court stated that by effacing section 309, we would be attuning this part of our criminal law to the global wavelength. The Court agreed with the Andhra Pradesh High Court’s view in Chenna Jagdeeswar v. State, that section 309 does not violate Article 14.

The court also observed that shortly after passing of the Suicide Act, 1961 in England, the Ministry of Health there issued recommendation advising all doctors and authorities that attempted suicide was to be regarded as a medical and social problem, as to which it was stated that the same was more in keeping with present day knowledge and sentiment than the purely moralistic and punitive reaction expressed in the old law.

Holding that the act of attempted suicide is not against religion, the court continued that the life does not end in this world and the quest continues, may be after the end of this life. Therefore, one who takes life may not really be taken to have put an end to his whole life. The court quoted several examples from the mythologies as well as that of Mahatma Gandhi’s fast unto death and Acharya Vinoba Bhave’s ending of life by fast.

Ruling that attempted suicide is not immoral, it was pointed out by the court that if human beings can be treated inhumanly, as a very large segment of our population is, which in a significant measure may be due to wrong (immoral) act of others, charge of immorality cannot be, and in any case should not be, levied, if such human beings or like of them, feel and think that it would be better to end the wretched life instead of allowing further humiliation or torture. Those who demand virtue must do virtue, and should see that others too do the same.

Regarding the adverse sociological effects which suicide may produce, the court stated that no doubt, the effects of suicide in such cases are quite hurting; but then, it is a matter of extreme doubt whether by booking a person who had attempted to commit suicide to trial, suicide can be taken care of. Even imposition of death sentences had not been able to take care of commission of murders.

Further, the adverse sociological effects are caused by the death of the concerned person, and not by one who had tried to commit suicide. Indeed, those who fail in their attempts become available to be more or less as useful to the family as they were. So the person to be punished is one who had committed suicide; but he is beyond the reach of law and cannot be punished. This can provide no reason to punish a person who should not be punished.

Regarding attempted suicide being against public policy, the court opined that it would be uninformed man in law who would say with any degree of definiteness that commission of suicide is against public policy.

Holding that taking one’s own life does not damage the monopolistic power of the state to take life, the court observed that if a person takes his life, he is taking his own life and not the life of anybody else; and so, the argument that State’s monopolistic power of taking life is taken away by the person who attempts to commit suicide has no legs to stand.

Touching the question of euthanasia, the court said that it would remain content by saying that the justification for allowing persons to commit suicide is not required to be played down or cut down because of any encouragement to persons pleading for legalisation of mercy killing.

On the question of the impact of the present decision on the liability of a person who aids or abets a suicide, the court was of the view that as regards the persons aiding and/or abetting suicide, the law can be entirely different, as indeed it is even under the Suicide Act, 1961 of England. The Bombay judgment has rightly made this distinction.

It is for this reason that the apprehension raised by the Andhra Pradesh High Court does not seem to be justified that if section 309 were to be held bad, it is highly doubtful whether section 306 could survive, as self-killing is conceptually different from abetting others to kill themselves. They stand on different footing, because in one case a person takes his own life, and in the other a third person is abetted to take his life.

With respect to Article 21, the court pointed out that in any case, a person cannot be forced to enjoy right to life to his detriment, disadvantage or disliking. Right to life of which Article 21 speaks of can be said to bring in its trail the right not to live a forced life. Law cannot be cruel, which it would be if persons attempting suicides are treated as criminals and are prosecuted to get them punished, whereas what they need is psychiatric treatment, because suicide basically is a call for help. May it be reminded that a law which is cruel violates Article 21 of the Constitution.

In Smt. Gyan Kaur v. State of Punjab the first appellant and her husband, the second appellant, were convicted by the trial Court under section 306 of the Code for abetting the commission of suicide of a woman. On appeal their conviction was maintained but the sentence of the first appellant was reduced.

They both appealed to the Supreme Court by special leave. It was urged that right to die being included in Article 21 of the Constitution as held in the P. Rathinam’s case by a Division Bench of the Supreme Court declaring section 309 of the Code to be unconstitutional, any person abetting the commission of suicide by another is merely assisting in the enforcement of the fundamental right under Article 21, and, therefore, section 306 is equally violative of Article 21.

Thus a reconsideration of that decision became inescapable. In view of the significance of this contention involving a substantial question of law as to the interpretation of Article 21, the Division Bench, before which these appeals came, referred the matter to a Constitution Bench, and ultimately a Constitution Bench of five members heard the matter. Senior Advocates Nariman and Sorabji were invited to appear as amicus curiae. Justice J. S. Verma delivered the judgment.

It was observed by the Court that the desirability of retaining section 309 is a different matter and non-sequitur in the context of its constitutionality which has to be tested with reference to the constitutional provisions. Undue emphasis on the global debate on the desirability of retaining such a provision and the reference to euthanasia tends to befog the real issue of determining constitutional validity.

Drawing analogy from the interpretation of freedom of speech and expression to include freedom not to speak, freedom of association and movement to include the freedom not to join any association or to move anywhere, freedom of business to include freedom not to do business, it was held in P. Rathinam that logically it must follow that right to live would right not to live, i.e., right to die or to terminate one’s life. Having concluded that Article 21 includes also the right to die, it was held that section 309 violated Article 21.

In all these cases the fundamental right is of a positive kind, and there the right to do an act includes right not to do an act in that manner. It does not flow from these that if the right is for protection from any intrusion thereof by others then the converse positive act also flows there from to permit expressly its discontinuance by holder of the right. The difference in nature of right has to be borne in mind.

When a man commits suicide he has to undertake certain positive overt acts and the genesis of those acts cannot be traced to, or be included within, right to life. The significance of sanctity of life also is not to be overlooked. Right to life is a natural life but suicide is an unnatural termination or extinction of life, and so is inconsistent with the concept of right to life.

To give meaning and content to the word ‘life’ in Article 21 it has been construed as life with human dignity. Any aspect of life which makes it dignified may be read into it but not that which extinguishes it. The right to die, if any, is inherently inconsistent with the right to life as is death with life.

Protagonism of euthanasia on the view that existence in persistent vegetative state (PVS) is not a benefit to the patient of a terminal illness being unrelated to the principle of sanctity of life or the right to live with dignity is of no assistance to determine the scope of Article 21 for deciding whether the guarantee of right to life includes the right to die.

The right to life including right to live with human dignity would mean the existence of such a right up to the end of natural life. But the right to die with dignity at the end of life is not to be confused or equated with the right to die an unnatural death curtailing the natural span of life. A question may arise in the context of a dying man who is terminally ill or in a persistent vegetative state that he may be permitted to terminate it by a premature extinction of his life in those circumstances.

This category of cases may. fall within the ambit of the right to die with dignity as a part of right to live with dignity, when death due to termination of natural life is certain and imminent and the process of natural death has commenced. The argument to support the view of permitting termination of life in such cases to reduce the period of suffering during the process of certain natural death is not available to interpret Article 21 to include the right to curtail the natural span of life. Thus, section 309 is not violative of Article 21.

The debate on the desirability of retaining such a penal provision of punishing attempted suicide, including the recommendation for its deletion by the Law Commission are not sufficient to indicate that the provision is unconstitutional being violative of Article 14. Even if those facts are to weigh, the severity of the provision is mitigated by the wide description in the matter of sentencing since there is no requirement of awarding any minimum sentence and the sentence of imprisonment is not even compulsory.

There is also no minimum fine prescribed as sentence, which alone may be the punishment awarded on conviction under section 309. This aspect is noticed in P. Rathinam for holding that Article 14 is not violated, and there is no cause to differ. Thus, section 309 is not violative of Article 14 of the Constitution.

In conclusion it is clear, therefore, that section 309 of the Code does not violate Articles 14 and 21 of the Constitution.

The offence under this section is cognizable and bailable, and is triable by any magistrate.

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