THE HON’BLE SRI JUSTICE B. SESHASAYANA REDDY Criminal Appeal No.1162 of 2001 Date:02nd March, 2010 Between: Gugulothu Erriya …Appellant/accused and The State of A.P., through Public Prosecutor, High Court of A.P., Hyderabad. …Respondent/Complainant *** THE HON’BLE SRI JUSTICE B. SESHASAYANA REDDY Criminal Appeal No.1162 of 2001 JUDGMENT: This criminal appeal is directed against the judgment dated 16.07.2001 passed in Sessions Case No.10 of 2001 on the file of II Additional Assistant Sessions Judge, Warangal, whereby and whereunder the learned Additional Assistant Sessions Judge found accused Gugulothu Erriya s/o.Balu guilty for the offences under Sections 306 and 509 IPC and convicted him accordingly and sentenced him to suffer Rigorous Imprisonment for 10 years and pay a fine of Rs.5,000/-, in default, to suffer simple imprisonment for six months for the offence under Section 306 IPC and Rigorous Imprisonment for one year and fine of Rs.500/-, in default, to suffer simple imprisonment for two months for the offence under Section 509 IPC. 2. The prosecution case in brief is:- Gugulothu Dwali and Gugulothu Eeriya are wife and husband. They are residents of Ramachandru Thanda, hamlet of Elugur of Sangam Mandal. Accused Gugulothu Erriya s/o.Balu is also resident of same Thanda. He developed an evil eye over Gugulothu Dwali. He was insisting her to have an affair with him for the last four years prior to the date of incident. PW.3 Gugulothu Champla is father-in-law of Gugulothu Dwali and father of Gugulothu Eeriya. On the night of 12.01.2000, Gugulothu Eeriya S/o.Champla was not at home. The accused went to the house of Gugulothu Dwali and pelted stones so as to make her to wake up. PW.3 Gugulothu Champla, who was sleeping in one of the rooms of the house wherein Gugulothu Dwali was sleeping, woke-up and raised cries as ‘thief’ ‘thief’. Thereupon, the accused took to heels. On the next day morning, PW.3 called elders of the Thanda and by that time, his son also had returned from the field. The accused stated before the elders that Gugulothu Dwali is his kept mistress and has been maintaining her. Gugulothu Dwali felt insulted on the accusation levelled against her by the accused, went inside the house and consumed poison. It is further alleged that the accused abused Gugulothu Eeriya S/o.Champla as impotent and incapable. Gugulothu Eeriya S/o.Champla felt insulted of impotency attributed to him, and consumed poison. Both Gugulothu Dwali and her husband Gugulothu Eeriya S/o.Champla were shifted to hospital for treatment. Gugulothu Dwali died at 02.10 P.M. and whereas Gugulothu Eeriya S/o.Champla died at 6.30 P.M. on the same day. Gugulothu Dwali is hereinafter referred to as ‘deceased No.1’, and Gugulothu Eeriya S/o.Champla is hereinafter referred to as ‘deceased No.2’. PW.1 Mudu Chandulal is the younger brother of the deceased No.1. He presented Ex.P1 report before the Station House Officer, Sangem Police Station on 13.01.2000 at 6.00 P.M. PW.10 Ch.Venkateswara Rao, Sub-Inspector of Police, Sangem P.S., received Ex.P1 Report and registered a case in Crime No.4 of 2000 for the offences under Sections 376 (2)(g) and 306 IPC and issued Ex.P10 FIR. PW.11 M.Sashikumar, Circle Inspector of Police, Mamnoor, took-up investigation on 14.01.2000 and examined PWs.2 to 7 and 9 and recorded their statements under Section 161 Cr.P.C. He conducted inquest on the dead bodies of deceased No.1 and deceased No.2 in the presence of PW.7 Jatothu Vagya, LW.10 Jatothu Chatrunaik and Lw.12 Ajmeera Meeramma. The Opinion arrived at by the panchas with regard to the cause of death of the deceased has been incorporated in Col.15 of the respective inquest reports. Ex.P2 is the inquest report in respect of the deceased No.1 and Ex.P3 is the inquest report in respect of the deceased No.2. After the inquest, the dead bodies of the deceased Nos.1 and 2 were sent for postmortem examination. PW.8 Dr.N.Dudeiah, Asst. Professor, Forensic Medicine, K.M.C., Warangal, held postmortem on the dead bodies of the deceased and issued postmortem reports opining that they died due to consumption of Organophosphate, an insecticide poison. Ex.P4 is the postmortem report issued in respect of the deceased No.1. Ex.P7 is the postmortem report issued in respect of the deceased No.2. Ex.P5 is the FSL Report. Exs.P6 and P8 are the final reports. PW.11 M.Sashikuar, Circle Inspector of Police, Mamnoor, arrested accused Gugulothu Erriya S/o.Balu on 19.01.2000 and sent him for remand. After completing the investigation, a charge-sheet came to be presented before III Additional Munsif Magistrate, Warangal. 3. The learned III Additional Munsif Magistrate took the charge-sheet on file as P.R.C.No.344 of 2000 and committed the case to the Sessions Division, Warangal, as the offence under Section 306 IPC is exclusively triable by a Court of Session. The learned Sessions Judge took the case on file as Sessions Case No.10 of 2001 and made over the same to the Court of II Additional Assistant Sessions Judge, Warangal, for disposal according to Law. 4. Learned Additional Assistant Metropolitan Sessions Judge, on hearing the prosecution and the accused, framed the following charges against the accused: Charge No.1: That on 13.1.2000 at about 7.30 a.m. at the house of deceased no.1 and deceased No.2 at Ramchandru Thanda, one Gugulothu Dwali (deceased No.1) and Gugulothu Eeriya (deceased No.2) committed suicide and that you abetted its commission abusing deceased No.2 in filthy language by insulting his character and also insulted deceased No.1 saying that she is having extra marital relation with you in the presence of villagers and thereby committed an offence punishable under Section 306 of the Indian Penal Code, and within my cognizance. Charge No.2:- That you on the aforesaid date, time and place mentioned in charge no.1 intending to insult the modesty of deceased No.1 Gugulothu Dwali, said that deceased No.1 is having extra marital relation with you and also insulted deceased No.2 Gugulothu Eriya abusing him in filthy language by insulting his character, and that you thereby committed an offence punishable under Section 509 of the Indian Penal Code, and within my cognizance.” The learned Additional Assistant Sessions Judge read over and explained the charges to the accused, for which the accused pleaded not guilty and claimed to be tried. 5. To bring home the guilt of the accused for the offences with which he stood charged, prosecution examined 11 witnesses and proved 10 documents and exhibited 6 material objects. The plea of the accused is that on the night of 12.01.2000 some one entered the house of the deceased in the absence of deceased No.2 and on the next day morning, an altercation took place between deceased No.1 and deceased No.2 over the entry of some one on the previous night and due to that quarrel deceased No.1 consumed poison and thereafter, deceased No.2 also consumed poison and that he is not responsible for their consuming poison. 6. The learned Additional Assistant Sessions Judge, on appreciation of the evidence brought on record and on hearing the prosecution and the accused, found that the accused is the person who instigated deceased Nos.1 and 2, by hurling abuses against them, to commit suicide and therefore, he is guilty of the offences under Sections 306 and 509 IPC and convicted him accordingly and sentenced him as stated supra, by judgment dated 16.07.2001. Hence, this criminal appeal. 7. Heard Sri A.Prabhakar Rao, learned counsel appearing for the appellant/accused and learned Additional Public Prosecutor appearing for the respondent/State. 9. Sri A.Prabhakar Rao, learned counsel appearing for the appellant/accused submits that there is no consistency in the evidence of prosecution witnesses as to what happened on the night of 12.01.2000 in the house of the deceased and therefore, the entire case of the prosecution becomes suspicious. A further submission has been made that PWs.1 and 2 deposed before the Court that on the night of 12.01.2000, the accused along with A2 Gugulothu Bojya, who has been subsequently deleted, entered the house and committed rape on the deceased No.1. Whereas, the evidence of PW.3, who is the father of the deceased No.2 and father-in-law of the deceased No.1, is that the accused hurled stones on the deceased No.1 so as to wake her up, and since these two versions cannot go together, the testimony of all the material witnesses is liable to be rejected. He would also contend that even if the appellant/accused hurled abuses against the deceased Nos.1 and 2, at the most it amounts to a civil wrong and not `instigation’ as defined in Section 107 IPC. He would also submit that except PW.5, none of the material witnesses speaks of the appellant/accused hurling abuses against the deceased No.2 and in which case, the appellant/accused cannot be held responsible for deceased No.2 committing suicide. In support of his submissions, reliance has been placed on the following decisions: 1) V.Shankaraiah v. State of A.P., Hyderabad[1] 2) State of Gujarat v. Pradyuman Ramanlal Mehta & Ors.[2] 3) Mahendra Singh v. State of M.P.[3] 4) Sanju v. State of M.P.[4] 5) Ramesh Kumar v. State of Chhattisgarh[5] 10. In State of Gujarat v. Pradyuman Ramanlal Mehta & Ors.’s case (2 supra), it has been held that publication of defamatory article against victim can not be categorized as instigation as defined in Section 107 IPC. Coming to the facts of the case on hand, it is not the publication of defamatory article against the deceased Nos.1 and 2. According to the prosecution, the accused proclaimed in the presence of elders that deceased No.1 is his kept mistress and he has been maintaining her. Therefore, the cited decision has no application to the facts of the case on hand. 11. In V.Shankaraiah v. State of A.P., Hyderabad’s case (1 supra), the deceased therein committed suicide because her marriage with A1 therein was cancelled after settlement. The facts in the cited case are distinctive from the facts of the case on hand and therefore, the cited case has no application to the facts of this case. 12. I n Mahendra Singh v. State of M.P.’s case (3 supra), the Supreme Court held that conviction for abetment of suicide merely on the allegation of harassment to the deceased not sustainable. The dying declaration made by the deceased therein was that her mother- in-law and husband and sister-in-law harassed her, beat her and abused her. Her husband wants to marry a second time. He has illicit connections with his sister-in-law. Because of these reasons and being harassed, she wanted to die by burning. Considering the text of the dying declaration, the Supreme Court held that the conviction of the appellants therein under Section 306 IPC is not sustainable. 13. In Sanju v. State of M.P.’s case (4 supra), the accused told the deceased ‘to go and die’. The question was whether the words uttered by the accused would constitute instigation within the meaning of Section 107 IPC. Para.12 of the cited judgment needs to be noted and it is thus: “12. Reverting to the facts of the case, both the courts below have erroneously accepted the prosecution story that the suicide by the deceased is the direct result of the quarrel that had taken place on 25-07-1998 wherein it is alleged that the appellant had used abusive language and had reportedly told the deceased 'to go and die'. For this, the courts relied on a statement of Shashi Bhushan, brother of the deceased, made under Section 161 Cr. P. C. when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abused him with filthy words. The statement of Shashi Bhushan, recorded under Section 161 Cr. P. C. is annexed as annexure P-3 to this appeal and going through the statement, we find that he has not stated that the deceased had told him that the appellant had asked him 'to go and die'. Even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional. Secondly, the alleged abusive words, said to have been told to the deceased were on 25-07-1998 ensued by quarrel. The deceased was found hanging on 27-07-1998. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it cannot be said that the abusive language, which had been used by the appellant on 25-07-1998 drove the deceased to commit suicide. Suicide by the deceased on 27-07- 1998 is not proximate to the abusive language uttered by the appellant on 25-7-1998. The fact that the deceased committed suicide on 27-07-1998 would itself clearly pointed out that it is not the direct result of the quarrel taken place on 25-07-1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. This fact had escaped notice of the courts below.” Coming to the facts of the case on hand, PW.3 informed the elders about the incident occurred on 12.01.2000. When the accused was questioned on 13.01.2000 by the elders, the accused proclaimed that deceased No.1 is his kept mistress and he has been maintaining her. Thereupon, the deceased No.1 felt insulted, went inside the house and committed suicide. There is no time gap of the alleged proclamation of the accused and deceased No.1 consuming poison. Therefore, the cited case has no application to the facts of the case on hand. 14. In Ramesh Kumar v. State of Chhattisgarh’s case (5 supra), there was no direct evidence to speak of the appellant/accused therein abetting the deceased to commit suicide. The prosecution relied on Section 113-A of the Evidence Act. The Supreme Court having considered the facts of the case therein came to the conclusion that there is no evidence and material available on record wherefrom an inference of the accused/appellant having abetted the commission of suicide by Seema may necessarily be drawn. Paras.19 and 20 of the cited judgment need to be noted and they are thus: “19. The picture which emerges from a cumulative reading and assessment of the material available is this: presumably because of disinclination on the part of the accused to drop the deceased at her sister's residence the deceased felt disappointed, frustrated and depressed. She was overtaken by a feeling of shortcomings which she attributed to herself. She was overcome by a forceful feeling generating within her that in the assessment of her husband she did not deserve to be his life-partner. The accused Ramesh may or must have told the deceased that she was free to go anywhere she liked. May be that was in a fit of anger as contrary to his wish and immediate convenience the deceased was emphatic on being dropped at her sister's residence to see her. Presumably the accused may have said some such thing - you are free to do whatever you wish and go wherever you like. The deceased being a pious Hindu wife felt that having being given in marriage by her parents to her husband, she had no other place to go excepting the house of her husband and if the husband had "freed" her she thought impulsively that the only thing which she could do was to kill herself, die peacefully and thus free herself according to her understanding of the husband's wish. Can this be called an abetment of suicide? Unfortunately, the trial Court misspelt out the meaning of the expression attributed by the deceased to her husband as suggesting that the accused had made her free to commit suicide. Making the deceased free - to go wherever she liked and to do whatever she wished, does not and cannot mean even by stretching that the accused had made the deceased free "to commit suicide" as held by the Trial Court and upheld by the High Court. 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.” 15. Learned Additional Public Prosecutor appearing for the respondent/State submits that PW.3 being the inmate of the house is a natural witness to speak of the incident that occurred on the night of 12.01.2000. He further submits that the evidence of PWs.3 to 6 is cogent and consistent that the appellant/accused hurled abuses against the deceased Nos.1 and 2 and thereupon, the deceased Nos.1 and 2, felt insulted by the abuses, consumed poison to commit suicide and therefore, the act of the accused comes within the meaning of investigation as defined in Section 107 IPC and thus, the trial Court rightly convicted the appellant/accused for the offences under Sections 306 and 509 IPC and the same is not liable to be interfered with in this appeal. He would also submit that the abuses hurled by the appellant/accused attributing chastity to the deceased No.1 and impotency to the deceased No.2 amount to instigation as defined in Section 107 IPC. In support of his submissions, reliance has been placed on the following decisions: 1) Shaik Ibrahim v. The State of A.P.[6] 2) Dammu Sreenu & Anr. v. State of A.P.[7] 3) Randhir Singh v. State of Punjab[8] 4) Kishori Lal v. State of M.P.[9] 16. In Shaik Ibrahim v. The State of A.P.’s case (6 supra), a learned Single Judge of this Court has observed in para.26 of the judgment as hereunder: “26. A family in the Indian Society, whether big or small, rich or poor, wants to live in peace with some dignity and reputation. Indian women do not tolerate insults and get offended at the slightest remarks made against them, and more so, when touching remarks with respect to their chastity are made, and they become so sensitive that they even go to the extent of giving up their lives, and in fact, give up their lives, instead of leading an unceremonuous life. In Indian society, chastity is regarded as a women's virtue, and no women would digest if any person makes touching remarks or casts aspersion against her chastity or doubts her chastity, even if it be her husband. Indian woman prefers to lead honourable life than lead a life of unchastity or with insults touching her honour. In spite of modernization in the world, yet rural India continues to be traditional and follows the customs with utmost regard. In the instant case, the deceased was unable to bear the words uttered by A1, and such utterances, on the fateful day, made her to kill herself by dousing kerosene on her body and lighting it up. P.W.1 spoke about the incident and P.W.2 corroborated the same and this is direct evidence. No doubt their evidence in relation to pro incident is more in the nature of hearsay, but the fact remains that the accused teased her by making touching remarks against her chastity, and if this conduct of the A1 on the fateful day, is not construed as instigation or abetment, then what else would constitute abetment, and this Court is at a loss to understand. Instigation or abetment has to be understood in the context of age of the deceased, the society in which she lives, and the social acceptance of the nature of the words uttered by Al and the attending circumstances.” 17. I n Randhir Singh v. State of Punjab’s case (8 supra), the Supreme Court held that abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC. 18. In Kishori Lal v. State of M.P.’s case (9 supra), the Supreme Court held that ‘instigate’ literally means to provoke, incite, urge on or bring about by persuasion to do anything. Para.6 of the cited judgment needs to be noted and it is thus: “6. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in IPC. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. 'Abetted' in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence” 19. In Dammu Sreenu & Anr. v. State of A.P.’s case (7 supra), a learned Single Judge of this Court has observed that what constitutes an instigation or abetment varies from case to case. While in some cases, acts, which are specific, positive and direct, may not be construed as abetment, in certain cases, indirect acts or omissions even remotely connected to the offence may constitute abetment. Whatever maybe the connotation of abetment in respect of other offences, as regards the incidents of suicide, it is the creation of a circumstance for the deceased to commit the suicide that constitutes abetment. It may not involve any specific course or act. But, if a situation is created by the accused, for the deceased to have no other recourse than to commit suicide, it can safely be said that the accused are guilty of the offence of abetment. 20. The prosecution examined 11 witnesses to bring home the guilt of the appellant/accused for the offences under Sections 306 and 509 IPC. Deceased Nos.1 and 2 are wife and husband. The fact that they committed suicide by consuming Organophosphate, an insecticide poison, is not in dispute. Indeed, the postmortem doctor, who has been examined as PW.8, states that both the deceased died due to consumption of Organophosphate, an insecticide poison. Nothing is suggested to this witness in the cross-examination disputing the cause of death of the deceased. The question is whether the appellant/accused instigated the deceased Nos.1 and 2 to commit suicide. 21. PW.1 is brother and PW.2 is sister of the deceased No.1. PW.3 is the father-in-law of the deceased No.1 and father of the deceased No.2. PW.4 is neighbour to PW.3. PW.5 is the nephew of the deceased No.1. PW.6 is one of the elders in the panchayat. PW.7 is