Give Pancholi A Bad Name And…

Was there a case for arresting Suraj Pancholi? Or did the cops play fast and easy with the law?

WrittenBy:Arpita Seth
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I read some wise words from Shobha De the other day. “Showbiz is a voraciously hungry monster that devours the unwary”. Why refer to herself as “unwary”? Oh ye of little brain. I think she was speaking of the dearly departed beauty queens. Parveen Babi, Nafisa Joseph, Kuldeep Randhawa and now Jiah Khan.

Aah, this is about Suraj Pancholi. He’s out of prison right? I was hoping he wouldn’t be let out. That’s really mature. Before condemning him to lifelong imprisonment you have to give him the benefit of doubt.

Are you going to harp on about how you can’t arrest someone for dumping someone else? Even if they’ve been named in the suicide note and have admitted to hitting the person? No, I’m saying that the legal merits of arresting him have to be taken into account. No one’s saying Suraj Pancholi’s a shining example of the perfect boyfriend. But maybe someone could have taken a look at the facts before locking him up and throwing away the key for the last few weeks. Of course having pedestrian-unfriendly Salman Khan as his mentor didn’t help his case.

First, let’s look at how the events unfolded. Jiah Khan’s mother, Rabiya Khan, released a letter – allegedly written by Jiah – to the media a few days after her daughter’s suicide. She then lodged an FIR at the Juhu police station against Suraj Pancholi for abetting Jiah’s suicide. The police on the basis of the letter and the FIR arrested Suraj under abetment to suicide. The Sessions Court in Mumbai rejected his bail application. In the meantime, the police found more letters allegedly written by Jiah in Suraj’s room. The handwriting of these letters don’t match the one submitted to the police and released to the press by Rabiyah. The Pancholis filed an appeal in the Bombay High Court against the Sessions Court order which rejected Suraj’s bail application. The hearing of the matter was due on July 5, but Suraj Pancholi was granted bail on a surety of Rs 50,000 on July 1, 2013 – three weeks after being arrested.

So everything seems to be going according to the law. What’s everyone getting so upset about then? Well, the police had charged Suraj for abetment to suicide. Abetment to suicide has been criminalised in Section 306 of the Indian Penal Code 1860.

It says – 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.

Suicide has as such not been defined in the Indian Penal Code. Abetment can be adduced from Section 107 of the Code which explains abetment of a thing as A person abets the doing of a thing, who—

First — Instigates any person to do that thing; or

Second — 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

Third — Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1- A person who, by wilful misrepresentation, or by wilful 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

Explanation 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 facilitate the commission thereof, is said to aid the doing of that act.

Which means? According to the Supreme Court, the following conditions can attract Section 306. –

  • Gangula Mohan Reddy Vs State of Andhra Pradesh on 5 Jan 2010“In order to convict a person under section 306 IPC there has to be a clear mens rea (guilty mind) 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 committed suicide.”
    One would think that breaking up or dumping someone doesn’t constitute a direct or active act.
  • Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618“A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.”
    Again, say Pancholi did verbally abuse Khan or tell her off, that can’t be held as instigation.

All fine and dandy, but she was said to be a depressive and very upset that she was not getting roles in Hindi cinema. If he knew she was a depressive and still dumped her, isn’t it abetment? And this is why the Supreme Court’s judgment in the State of West Bengal v. Orilal Jaiswal & Another. (1994) 1 SCC 73 is important.
If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance, discord and difference 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.

Couldn’t be clearer. According to the SC judgment, there is a clear lack of evidence to prove that Suraj “induced” Jiah to commit suicide. He can’t be held responsible if she was hypersensitive to ordinary discord in domestic life. Unless, of course, there is evidence to show that Suraj directly “instigated” Jiah’s death. Only then could he have been arrested under Section 306 of the Indian Penal Code.

But the letter. She named Suraj. She was also allegedly upset over an abortion and about buying Pancholi lots of presents. Calm down. The letter released by Rabiyah Khan is not addressed to him or anyone. It neither has a date nor Jiah’s signature. It could very well have been fabricated.

So now? Well the police might have found the loophole they need to justify Suraj Pancholi’s arrest. Recent media reports are claiming that the police are planning to take the letter to be Jiah’s “dying declaration”.

Thank god for dying declarations. What is it by the way? A dying declaration is a relevant statement made by a person who is no longer alive. Section 32(1) of the Indian Evidence Act 1872 states Statements, written or verbal, of relevant facts made by a person who is dead…are themselves relevant facts in the following cases –

When it relates to cause of death – When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction, which resulted in his death, in cases in which the cause of that person’s death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

The Supreme Court in Ramesh Kumar v. State of Chattisgarh AIR 2001 SC 3837 —“On the principle underlying admissibility of dying declaration in evidence that truth sits on the tips of a dying person and the Court can convict an accused on the basis of such declaration where it inspires full confidence.”

So once the police decide what law they’re following, they might just be able to use the “dying declaration” as the reason for arresting Pancholi.

So was the fisticuff-friendly fellow wrongfully detained or not? Well he was arrested on the basis of the FIR which was filed by Jiah’s mother claiming that he had abetted Jiah’s suicide. Sadly for him that was a non-bailable offence. Thanks to our super-efficient legal system and the fact that the court initially rejected his bail application, the poor sod ended up spending many many moons in prison.

As per the law and evidence in the public domain, a legal case against him stands on very shaky grounds. We’ll probably have to wait for more conclusive evidence to turn him in.

You’re saying that after admitting to beating up Jiah and sending her a “breakup bouquet” and all the public hue and cry, he won’t be brought to book? Only if we follow the law. And if we locked up every guy who behaved like a prick with his girlfriend, our lockups would be even more overflowing than they usually are. Since you’re so concerned about Suraj roaming around a free man, maybe you could follow Shobha aunty’s advice and stay away from the “lethal business” of Bollywood. And in case you do get involved with someone in Bollywood, don’t become “clingy and possessive”.

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