Prakash (Died and Abated) Vs State of Chhattisgarh

This appeal under Section 374 (2) of Code of Criminal Procedure, 1973 has been filed by the appellants being aggrieved by the judgment of conviction and order of sentence dated 28.06.2005 passed by Additional Sessions Judge, Balod, District Durg in S. T. No.193/2004. By the impugned judgment, the appellant has been convicted under Section 306/34 of the Indian Penal Code, 1860 and sentenced to undergo 4 years RI with fine of Rs.1000/- plus default stipulations. Initially three accused persons namely Prakash S/o Tijau Ram, Jaishree and Tijiya Bai were put to trial. By

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the impugned judgment, all of them convicted and sentenced as stated above. During pendency of appeal appellants Prakash S/o Tijau Ram and Tijiya Bai had passed away and their appeal stood abated.

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Case of the prosecution in brief is that on 21.05.2004 an intimation was given by appellant- Jayshree to the Balod Police Station that the deceased Rekhabai had been burnt by pouring kerosene on her. On which Rojnamchasanha No. 1241 dated 24.12.2004 was registered and Constable Nos.18, 982 and 1341 had gone to the deceased house. The deceased Rekhabai was found lying in a burnt condition. She was immediately taken to CHC, Balod for treatment. Her relatives were informed about the burning and after that her dying declaration was recorded. In dying declaration she stated that she poured kerosene on her body and set herself on fire as she was fed up of the constant torture of appellants/her husband, mother-in-law and sister-in-law. She was referred to District Hospital, Durg where she died during treatment. Upon which Merg intimation Ex. P-11 was registered, her dead body was sent for postmortem. Doctor conducted the postmortem and gave his report. On receipt of dying declaration, merg Panchayatnama, PM report, First Information Report Ex. P-17 under Crime No.133/04 under Section 306 IPC was registered at Police Station Balod . On receipt of case diary, Spot Map Ex. P-14 was prepared and certain articles containing 7 matchsticks, pieces of burnt sari of deceased, Nylon Rope, two burnt coconuts, a five litre red colored jerry can filed with two litres of kerosene oil were presented and seizure memo Ex. P-3 was prepared in front of witnesses. The accused persons were arrested. After completion of investigation, charge-sheet under Section 306 of IPC was filed before Judicial Magistrate First Class, Balod who committed the case to Sessions Court, Durg which was made over to the learned trial court for trial. The accused/appellants were charged under Section 306/34 IPC, however, denied the charge framed against them and claimed for trial.

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So as to establish its case, the prosecution has examined as many as many 21 witnesses and exhibited 22 documents. The statement of the accused/appellants

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under Section 313 CrPC were also recorded where they pleaded their innocence and false implication in the case.

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By the judgment impugned learned Court below has held the accused/appellants guilty and imposed the sentence as described above which is challenged before this Court by the appellants.

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Learned counsel for the present appellant submits that the prosecution was not able to bring home the guilt of the appellant beyond reasonable doubt. He submits that the learned trial Court did not appreciate the evidence to its proper perspective and erroneously passed the impugned judgment. He further submits that the ingredients of Section 306 and 107 of IPC could not be proved by the prosecution. He submits that the there is no allegation of instigation against the present appellant. The present appellant is the sister-in-law (Jethani) of the deceased and as such she is also a widow and no role as played by her in causing any instigation which led to the commission of suicide by the deceased. He further submits that even in the dying declaration Ex. P-4 is read as a whole, it does not indicate that any instigation was made to hold the conviction of the appellant under Section 306 of IPC. He submits that PW-1 father of the victim and PW-12 mother of the victim did not lay any specific allegation of instigation against the present appellant and as such even assuming some allegations are there i.e. with regard to only domestic dispute which cannot lead to any irresistible conclusion of continuous instigation which led the deceased to commit suicide.

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Per contra, State counsel supports the judgment impugned and submits that the prosecution by cogent and prudent evidence have been able to bring home the guilt of the accused/appellant and dying declaration clearly spell out that because of some domestic dispute between the deceased and family members including the present appellant, she committed suicide. The father and mother of the deceased have also deposed against the husband (since deceased) and naturally if the appellant was residing in same house she was convicted with the aid of Section 306/34 of IPC, therefore, meritorious findings recorded by trial Court is not required to be interfered

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with by this Court in this appeal.

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Heard learned counsel for the parties and perused the record.

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This Court is required to see as to whether the prosecution was able to bring home the guilt of the appellant under Section 306 of the IPC beyond reasonable doubt. In order to appreciate the argument advanced by learned counsel for the parties, the provisions of section 107 & 306 of the IPC that fell

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for consideration are reproduced as under:

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Section 107. Abetment of a thing.

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A person abets the doing of a thing, who—

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First .—Instigates any person to do that thing; or

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Secondly .—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

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

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Explanation

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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.

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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.

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Section 306. Abetment of Suicide

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“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 not exceeding ten years, and shall also be liable to fine."

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Section 306 of the IPC has two basic ingredients-first, an act of suicide by one

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person and second, the abetment to the said act by another person(s). In order to sustain a charge under Section 306 of the IPC, it must necessarily be proved that the accused person has contributed to the suicide by the deceased by some direct or indirect act. To prove such contribution or involvement, one of the three conditions outlined in Section 107 of the IPC has to be satisfied.

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Section 306 read with Section 107 of IPC, has been interpreted, time and again, and its principles are well- established. To attract the offence of abetment to suicide, it is important to establish proof of direct or indirect acts of instigation or incitement of suicide by the accused, which must be in close proximity to the commission of suicide by the deceased. Such instigation or incitement should reveal a clear mens rea to abet the commission of suicide and should put the victim in such a position that he/she would have no other option but to commit suicide.

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It is, therefore, evident that the positive act of instigation is a crucial element of abetment. While dealing with an issue of a similar nature, the Hon’ble Supreme Court in case of Ramesh Kumar Vs. State of C.G. reported in (2001) 9 SCC 618 laid down the parameters of what would be constituted to be an act of instigation. The Hon’ble Supreme Court observed as follows:

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“20. 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. The present one is not a case 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 been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.”

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It could thus be seen that Hon’ble Supreme Court observed that instigation is to goad, urge forward, provoke, incite or encourage to do “an act”. It has been held that in order to satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes

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instigation must necessarily and specifically be suggestive of the consequence, however, a reasonable certainty to incite the consequence must be capable of being spelt out. Applying the law to the facts of the case, the Hon’ble Supreme Court on to hold that a word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.

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The Hon’ble Supreme Court in another case of Mariano Anto Bruno Anr Vs. The Inspector of Police reported in 2022 Live Law (SC) 834, has held as under:

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“In cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.”

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It has been further held by the Hon’ble Supreme Court is that “Each suicide is a personal tragedy that prematurely takes the life of an individual and has a continuing ripple effect, dramatically affecting the lives of families, friends and communities. However, the Court of law while adjudicating is not to be guided by emotions of sentiments but the dictum is required to be based on analysis of facts and evidence on record.”

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Recently in case of Kashibai & Ors.Vs. The State of Karnataka reported in 2023 Live Law (SC) 149, the Hon’ble Supreme Court observed as under:

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“Mere fact of commission of suicide by itself would not be sufficient for the court to raise the presumption under Section 113A of the Evidence Act, and to hold the accused guilty of Section 306 IPC.”

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It has been further held by the Hon’ble Supreme Court is that “In order to convict a person for the offences under Section 306 IPC, the basic constituents of the offence namely where the death was suicidal and whether there was an abetment on the part of the accused as contemplated in Section 107 IPC have to

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be established. In order to bring the case within the purview of 'Abetment' under Section 107 IPC, there has to be an evidence with regard to the instigation, conspiracy or intentional aid on the part of the accused. For the purpose proving the charge under Section 306 IPC, also there has to be an evidence with regard to the positive act on the part of the accused to instigate or aid to drive a person to commit suicide.

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In case of Gangula Mohan Reddy vs State Of Andhra Pradesh reported in ( 2010) 1 SCC 750 , the Hon’ble Supreme Court while interpreting Section 306 of IPC held as under:

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“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.

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It has been further held by the Hon’ble Supreme Court that “In order to convict a person under section 306 IPC there has to be a clear mens rea to commit the offence. ”

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Yet in an another case M. Mohan Vs. State represented by deputy superintendent of police reported in ( 2011) 3 SCC 626 , it has been held by the Hon’ble Supreme Court as under:

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“44. 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.

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45. The intention of the legislature and the ratio of the cases decided by this Court are 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 this act must have been intended to push the deceased into such a position that he/she committed suicide.”

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20.In light of the above authoritative pronouncement, the evidence brought on record in this case is to be seen. On perusal of dying declaration, it indicates that no specific allegations were leveled against the present appellant and she simply stated that she had a fight with her mother-in-law (deceased-appellant) and the sister-in-law (present appellant) at 8:00 am. She further stated that because of some domestic dispute she had set herself on fire. In dying declaration it has also been mentioned that she resided with her husband separately and her husband/ deceased-appellant committed assault with her on saying of her mother (deceased-appellant). It does not reflect as to whether any instigation was made by the appellant to hold the appellant guilty under Section 107 IPC. The learned trial Court relied upon the statement of father (PW-1) and Mother (PW-12). On close scrutiny of the evidence of these two witnesses clearly spells out the allegation against the husband and only on one place it has been stated that the present appellant also used to quarrel. Apart from this, from scrutiny of the evidence nothing significance is on record to hold that there was continuous instigation on the part of the appellant which left no choice to the deceased except to commit suicide. The defence witnesses were also examined. Perusal of DW-2 (Jeevjan) also indicates that the deceased was residing separately with her husband. May be on the date of incident the appellant was present at the place of incident but it does not lead to any irresistible conclusion that there was a continuous instigation.

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In view of the above, the appeal is allowed and the appellant is acquitted from the charge. The impugned judgment is hereby set aside. Appellant is said to be on bail during pendency of the appeal. Her bail bond shall be kept alive for six months as per provision of section 481 of BNSS, 2023. The record of the trial Court with copy of the judgment be sent back for information and compliance.

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Sd/-

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PARUL MITTAL Digitally signed by PARUL MITTAL Date: 2025.04.17 10:36:37 +0530 Parul

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(Sachin Singh Rajput)

Prakash (Died and Abated) v. State of Chhattisgarh

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Prakash (Died and Abated) v. State of Chhattisgarh

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