HIGH COURT OF MADHYA PRADESH : JABALPUR Cr.A. No. 1727/1995 Rajaram Versus The State of Madhya Pradesh ___________________________________________________________ For the appellant: Shri Manish Mishra, Advocate For the respondent/: Shri S.K. Shrivastava, Panel Lawyer. State ___________________________________________________________ Present: Hon'ble Mr. Justice S.C. Sinho ___________________________________________________________ J U D G M E N T (10.03.2011) This criminal appeal under Section 374(2) of Cr.P.C. has been filed by the appellant being aggrieved by the judgment dated 05.12.1995 passed by II Additional Sessions Judge, Damoh in S.T. No.21/1995, whereby the appellant has been convicted under Section 306 of I.P.C. and sentenced to R.I. for 5 years. 2. The facts necessary for disposal of the present appeal are as under: The appellant was married with deceased Mamta Bai about 6 years prior to the incident. It is alleged that appellant used to harass his wife for demand of dowry and on 13.05.1994 he assaulted Mamta Bai, therefore, she set her into fire. Immediately appellant took her to the hospital in a tractor but she succumbed to death on the way. Just after the incident a marg report Ex.P-14 was recorded at police station Raneha, Damoh and during investigation of the marg it was revealed that appellant used to demand dowry from her and harassed her and, therefore, deceased Mamta Bai has committed suicide. Postmortem of the dead body of Mamta Bai was done by Dr. Shailendra Kumar (PW-2), Assistant Surgeon, Community Health Centre, Hata on 14.05.1994 and as per his postmortem report Ex.P-12 she died due to burn injuries within 16 to 24 hours of the postmortem examination. PW-13 Vimal Jain, Station House Officer, Hata investigated into the matter and filed a charge sheet. 3. The appellant was charged under Section 306 of I.P.C. He abjured the guilt and submitted his defence that before 2-3 days of the incident abortion of deceased took place and deceased was unable to bear the pain and shock, therefore, she committed suicide. 4. During trial a number of prosecution witnesses were examined. The appellant did not produce any defence witness. On conclusion of the trial, the trial Court vide impugned judgment dated 05.12.1995 convicted the appellant under Section 306 of I.P.C. and sentenced to R.I. for 5 years. Aggrieved by the aforesaid judgment of conviction and sentence passed by the trial Court the appellant has preferred this appeal before this Court. 5. Shri Manish Mishra, learned counsel appearing on behalf of the appellant very painstakingly argued the appeal and submitted that in absence of cogent and reliable evidence of abetment of suicide the conviction of the appellant under Section 306 of the I.P.C. could not be sustained and was bad in law. He further submitted that the trial Court erred in convicting the appellant under Section 306 of I.P.C. He strenuously submitted before this Court that there was no evidence of infliction of torture upon the deceased by the appellant just before the incident and a such it could not be said that the appellant has instigated the deceased to commit suicide. Learned counsel further submitted that apart from PW-1 Ram Prasad father of the deceased no other prosecution witnesses PW-2 Jamna Prasad, PW-3 Awadh Rani, PW-4 Ram Milan, PW-5 Sitaram, PW-6 Gora Bai and PW-7 Pannalal have supported the prosecution case and further they were declared hostile by the prosecution even then there is nothing against them. 6. At the outset, Shri Manish Mishra, learned counsel for the appellant has submitted that he is not challenging the death of Mamta Bai due to burn injuries and further that she has committed suicide within 7 years of the marriage. 7. At the outset, I intend to address the issue regarding applicability of Section 306 of I.P.C. in the facts of the present case. Section 306 deals with abetment of suicide and Section 107 deals with abetment of a thing. They read as follows: "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." “107. Abetment of a thing :- A person abets the doing of a thing; or First – Instigates any person to do that things; or 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 Thirdly – intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1- A person who, by wilful misrepresentation, or by 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 offence of an act, does anything in order to facilitates the common of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.” 8. The legal position as regards Section 306 of I.P.C. is long settled by the Apex Court in following judgments:- In State of West Bengal vs. Orilal Jaiswal and another AIR 1994 SC 1418 dealing with offence under section 306/34 IPC the Apex Court held as under: “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. It is transpires to the Court that a victim committing suicide was hyper sensitive to ordinary petulance dischord and difference in domestic life quite common to the society to which the victim belonged and such petulance dischord 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.” In Padmabai v. State of MP 1987 Cri.L.J.1573 it has been held: “It is of the essence of the crime of abetment of suicide that the abettor should be proved to have substantially assisted in a commission of the offence of suicide. Investigation, incitement,provocation,encouragement insinuation, solicitation, which words connote different meanings are, no doubt, some of the acts, which may constitute an 'abetment' for commission of suicide. But all such acts or any of them have to be positive and potent in nature, of such a degree, that the direct result of such acts may be none other, but the commission of suicide. Stray domestic quarrels, perfunctory abuses by mother-in-law, to her daughter-in-law in the Indian Society, crude and uncultured behaviour by the 'in-laws' or the husband towards his wife being mundane matters of normal occurrence in the traditional joint Hindu families, will not go to form and constitute 'abetment' unless these acts or conduct singly or cumulatively, are found to be of such formidable and compelling nature as may lead to the commission of suicide or may facilitate in a singular and prime manner, the commission of the same.” 9. In order to bring a case within the purview of Section 306 of I.P.C. there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC. 10. I have carefully assessed the evidence of sole witness PW-1 Ram Prasad who has supported the prosecution case. Ram Prasad has stated that appellant used to beat his daughter and once Sitaram (PW-5) brother of appellant intimated him that appellant assaulted Mamta Bai and she also verified aforesaid fact but PW-5 Sitaram has not supported the version of Ram Prasad, as such his evidence cannot be accepted. There is no evidence that just before the incident appellant assaulted her or abetted her to commit suicide. Further prosecution has filed a certified copy of judgment Ex.P-19 passed in Criminal Appeal No.799/1991 regarding offence under Section 498-A of I.P.C. against appellant in respect of torturing deceased on 25.01.1989 and it also ended in acquittal, moreover this incident took place in May, 1994, almost after 5 years. 11. Ram Prasad PW-1 father of the deceased has stated in para 12 of his cross examination that two days before death of Mamta Bai he heard that abortion took place to her, further he stated in para 7 of the examination in chief that he has a doubt that Mamta Bai has committed suicide because appellant used to harass her but there is no evidence on record to show that appellant abetted her to commit suicide, and on the basis of doubt appellant cannot be convicted under Section 306 of I.P.C. 12. In the light of the material on record, there is no evidence that appellant abetted Mamta Bai to commit suicide. 13. In the result, this criminal appeal is allowed. The impugned judgment dated 05.12.1995 passed in S.T. No.21/1995 is set aside. The appellant is acquitted from the offence under Section 306 of I.P.C. He is on bail. His bail bonds are discharged. A copy of this judgment be sent to the trial Court for necessary information and compliance. (S.C. Sinho) Judge psm