Analysing the Delhi court order discharging Congress Parliamentarian Shashi Tharoor for the offences of subjecting to cruelty and abetting the suicide of his wife Sunanda Pushkar, who was found dead under mysterious circumstances in 2014, ISHITA C P explains the legal rationale that led to the Special Judge’s decision.
cleared Indian National Congress MP Shashi Tharoor of all charges in connection with the death of his late wife Sunanda Pushkar, citing lack of evidence in the case. DELHI Special Court on Wednesday
Senior advocate Vikas Pahwa, who represented Tharoor in the matter, made the case that the prosecution led by Additional Public Prosecutor Atul Shrivastava had failed to prove that Pushkar’s death was a suicide. The judge agreed with Pahwa.
“Criminal trials require evidence,” Special Judge Geetanjali Goel stated in the court order released Thursday.
The judge maintained that the allegations made and the material collected during the investigation “do not prima facie disclose the commission of offences punishable under Sections 498A or 306 of IPC against the accused.”
Tharoor was charged by the Delhi Police in May 2018 under Sections 498A (husband or his relative subjecting a woman to cruelty) and 306 (abetment of suicide) of the Indian Penal Code (IPC), four years after the death of his wife in January 2014.
Tharoor’s discharge brings to conclusion a case that has captivated the attention of political circles and news media over the past seven years. While Pushkar’s death was mysterious, the police investigation and court proceedings in the case have been even more so — shining a light on the Indian judicial system and its workings.
From first being registered as a murder to the later claim that Pushkar’s death was a suicide that Tharoor abetted, the case has had its turns. Public faith and trust in the judiciary are important facets of democracy, and the responsibility of maintaining this trust falls on the justice system.
Commenting on the case, Rebecca Mammen John, eminent criminal lawyer and a Senior Advocate at the Supreme Court of India told The Leaflet that in the absence of any kind of definitive evidence, the police and the prosecution were clutching at straws.
“You can’t have a theory and then expect to get evidence to fit into the theory. You must get the evidence first and then decide what is the offence that is made out on the basis of the evidence that was collected,” said John, suggesting that the investigators and the prosecutor had taken a reverse approach in the case.
The process of framing of charges gives the accused a detailed understanding of the nature of accusations against him, and a chance to defend against the accusations made in the police report. It is up to the judge to look at the evidence presented and decide if a prima facie case against the accused has been made.
“All the reports of various medical boards including Psychological Autopsy Reports exonerated Dr Shashi Tharoor from the charges of homicide or suicide,” Pahwa said in a statement after the discharge.
Charges levied against Tharoor
The two charges levied against Tharoor, accusing him of subjecting his wife to cruelty and the abetment of her suicide, while compatible with each other, did not individually stand up in court due to lack of evidence pointing towards a suicide, as argued by Pahwa and noted by Judge Goel.
Sections 306 and 498A of the IPC are independent of one another, although there have been many instances where accused have been charged on both offences since abetment of suicide could involve harassment, which is also covered under Section 498A (subjection to cruelty).
The two charges are connected under Section 113A of The Indian Evidence Act, which states that if the death of a woman within seven years of getting married is shown to be a suicide and the husband or a relative had subjected her to cruelty, then the court may assume that the suicide was abetted by the husband or relative.
The Prosecution put forth that if cruelty under Section 498A was proved, then Section 113A would come into play. However, Pahwa argued that the Prosecution had to establish the cause of death before invoking Section 113A. The Prosecution was unable to prove suicide in this case.
No cruelty proven
Section 498A, added to the IPC in 1983 to protect women from mental or physical marital cruelty, can be filed by the aggrieved or any relative of hers. In the absence of any relative, a public servant may also file charges under this Section.
In light of the antemortem marks, especially an injection mark, found on Pushkar’s body, the Delhi Police seems to have jumped to unfounded conclusions since there was no complaint of cruelty or abuse filed by any of Pushkar’s family members or friends.
None of the witnesses mentioned cruelty in their statements, with Pushkar’s son Shiv Menon having stated that Tharoor could not have killed his mother. “Shashi can’t harm even a fly,” Menon had said in his statement, which was read out by Pahwa in court.
Regardless of there being no complaints from family members, the prosecution can still stand if there is evidence independent of what the family members are saying, which was not present in this case, according to Senior Advocate John.
The antemortem marks were stated to have been produced in a scuffle and found to be non-contributory to the death. The injection mark was found to be due to a cannula that was inserted during the treatment of the deceased.
No abetment of suicide proven
For an offence to be made out under Section 306, the accused must have played an active role in the abetment of suicide. There was no evidence that directly points to abetment. While the anti-anxiety drug Alprazolam was present in Pushkar’s system, as detected in the post-mortem report, this alone cannot point to murder or abetment of suicide as there is not enough information to suggest the drug was not taken voluntarily by the deceased.
In his statement, Menon had stated that Pushkar had been taking Alprax for many years.
“The Prosecution was no able to point out even one instance where the accused had done something purposefully which facilitated the commission of the offence,” the judge pointed out in the final court order.
Tharoor’s lawyer asserted that the charge-sheet filed by the Delhi Police was without any basis.
Section 174(3) of the Criminal Procedure Code (CrPC) makes it mandatory for the police to conduct an inquiry into the suicide of a woman within seven years of marriage. The section was added in association with the Dowry Prohibition (Amendment) Act, 1986, after a large number of dowry-related deaths were observed in India.
The Prosecution argued that the alleged extramarital affair between Tharoor and Pakistani journalist Mehr Tarar had caused the deceased mental agony, which amounted to cruelty.
Pahwa referenced the Supreme Court’s judgment in the case of Pinakin Mahipatray Rawal vs. State of Gujarat (2013) wherein it was held that evidence of an affair did not amount to mental or physical torture and did not fall within the ambit of section 498A.
“In the present case as well, the deceased might have felt distressed or mentally disturbed with the alleged extramarital relation of the accused but mental disturbance does not constitute the offence of abetment”, said the judge, pointing to past judgements held by the Supreme Court.
“The foundational basis of the case was so sketchy and so shaky that it could not end in anything but this,” Senior Advocate John told The Leaflet.
A timeline of the case
Pushkar was found dead at the Leela Palace Hotel in Delhi on January 17, 2014. While early reports ruled the death as suicide, the Sub-Divisional Magistrate (SDM) said that she died of poisoning, after taking into account the post-mortem report which suggested Alprazolam poisoning and pointed to 15 antemortem injuries on the body of the deceased.
In January 2015, the Delhi Police registered an FIR against unknown persons under Section 302 (murder) of the IPC. An FBI report released in September 2015 confirmed that the death had been caused by “excessive ingestion of tablet Alprazolam.”
In May 2018, the Delhi Police put out a charge sheet ruling Pushkar’s death a case of suicide based on circumstantial evidence and sought to frame charges against Tharoor, who vehemently denied the charges.
The case was transferred to the Additional Chief Metropolitan Magistrate’s court in Delhi, and in June 2018, the court found sufficient grounds to proceed against him and summoned him as an accused.
The statements recorded under Section 161 of the CrPC include Shashi Tharoor’s statement to the Delhi Police taken in January 2015 as well as statements by Pushkar’s son and other family members.
In the course of the proceedings, Pahwa argued for Sunanda Pushkar’s tweets to be brought on record as they would show that she was in a positive state of mind with respect to her relationship with Tharoor. The application was dismissed on the basis that Tharoor “cannot insist on a direction to the prosecution to first obtain the document and then supply it to him when the documents are in the public domain”
A Psychological Autopsy Report released in November 2017 stated that it was unlikely that the cause of death was homicide.
Pahwa maintained that an investigation conducted by a Special Investigation Team exonerated his client. Despite the availability of post-mortem reports, viscera and other medical reports, a cause of death had not been established. Pahwa argued that since the doctors were unable to determine the cause of death, the case by the prosecution did not stand and was “a figment of imagination of the IO.”
“Suffice it to say that none of the reports either of Medical Doctors or of Psychological Autopsy Board had confirmed that the death was a suicide,” the judge remarked in the court order.
Tharoor was discharged with instructions to furnish a bond of 1 lakh rupees as under Section 437A of the CrPC.
Shortly after the final judgment was released on Thursday, Bharatiya Janta Party MP Subramanian Swamy sent a letter to the Police Commissioner of Delhi, Rakesh Asthana, asking if the Delhi Police intended to appeal against the discharge.
(Ishita Chigilli Palli is a journalist and a Young India Fellow. She is passionate about human rights and environmental causes. The views expressed are personal.)