s ^" ^. SingSa Bew^ IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR Crimmal appeal No.^O.S of 2005 b<i°n S'nr; ADpeHant (Injail) p,.toD.R-CB ResDondent Sujay Malik, son of Devendra Nath caste - Namo Sudra (B^ngali), aged about 23 years, resident of New Colony P.V. 118, Police Station Pankhajoore District Kanker (Chhattisgarh) VERSUS The State of Chhattisgarfa Through D. M. Kanker APPEAL U1SFDER SECTION 374T2) OF THE CODE OF CRIMINAL HIGH COURT OF CHHATnSGARHAT^tJLASPUR Single Bench: Hon?ble Shri Dilip Raosaheb Deshmukh, J Criminal Appeal No. 908/2005 Sujay Malik Vs. State of Chhattisg^rh Presents Shri Pankaj Shrivastava, leamed counsel for tiie appellant. Shrl Ashish Shukla, leamed Govt. Advocate/ Addl, PubUc Prosecutor for the State. ORALJUDGMENT (DeUvered on 01-02-2006) 1. This appeal is directed against fhe judgnient dated 2.12.2005 deUvered by Shri B. Raai, Addl. Sessions Judge, (F.T.C.), Distt. Kanker (CG) in Sessions Trial No. 457/2003 whereby fhe appellant was convicted under Sectiou 306 of I.P,C. and was sentenced to undergo rigorous iaiprisoninent for seven years aad fine of Rs. 1,000/- aiid ia default of payment of fine to iindergo rigorous iaiprisoninent for one year. It is not disputed tfiat deceased Snit. Lipika MaUk was niarded to tlie appeUaat about 3 years prior to her death on 16.1.2003. It is also not disputed fhat Smt Lipika Malik died on 16.1.2003 due to consiiniption of excessive chloroquia tablets. The deceased was Uviag with her parcnts since about a year prior to her death aad had a girl chUd, Briefly stated tlie prosecution stoiy is that tiie appeUant suspected fhe character of fhe deceased aiid denied the parenthood of fhe chUd ia the wonib of Snit. Lipika MaKk. It is also alleged fhat Suit. Lipika Malik was repeatedly harassed for havitig conceived frora sonie ofher person. After soxnetiiae, a daughter was bora to Sint Lipika MaUk. Thirteen days thereafter, fhe appellaat left Sint Lipika Malika aad her daughter at fhe house of her parents aad went to Calcutta. After 6 montihs, the parents of Snit Lipika Maltka requested fhe appellant to take her honie bzit fhe appeUant did not agree aad started preparing for a second uiarriage, Upon knowiag about the aforesaid facts, Srat Lipika Malik became extreinely fi-ustrated aad consuiaed excessive chloroquia tablets aad coiaDiitted suicide ia the house of her parents. On the basis of aforesaid facts, fhe appeUant was prosecuted under Section 306 of I.P.C, The appeUaat abjured fhe guilt, pleaded innocence aiid led no evidence ia defence, The prosecution exaouned as maay as 23 witaesses. The trial Court relying upon ftie evidence led by the prosecution convicted and sentenced the appellarit as aforesaid ra para 1. ^. 4. Leamed counsel for the appeUaat has contended fhat even if fhe entijne evidence led by the prosecution is accepted, fhe conviction of fhe appeUaat under Section 306 of I,P.C, caanot be sustamed. He relied upon Nanka Vs. State ofM.P. reported m 1999 (1) M.P.W.N. [S2] in support of the above argunient. On fhe ofher haad, Shri Ashish Shukla, learaed Govt. Advocate/ Addl, PubUc Prosecutor argued ia support of fhe inipugned judgnient, th.oiigh formally 5. Section 107 ofI.P.C, reads as under: "107. Abetmeat of a thiag - A person abets m domg of a thiag, who— FirstJy—Instigates aay person to do fhat fhing; or Second?y-—Engages with oue or more other person or persons ia any conspiracy for ftie doiag of that fhing, if aa act or Ulegal omission takes place ia •^. pursuaace of that conspiracy, aiid ia order to fhe doing of that fhiag; or Thirdly—IntentionaUy aids, by aiiy act or iUegal oniission, ia doing of that fhing. Explanation 1.—A person who, by wiUful inisrepresentation, or by wiUful concealxnent of a inaterial fact which he is bound to disclose, voluntarily causes or prociircs, or atterapts to cause or procure, a thmg to be done, is said to iastigate the doiag of fhat thiag. Explanation 2.—Whoever, eifher prior to or at the tmie of the coinniissioii of aa act, does aaything ia order to faciUtate tiie coinxaission of fhat act, aad thereby faciUtate, the commission thereof, is said to aid fhe doing of that act. It is ttius clear tliat for constitutuig the offence of abetment, it niust be shown by fhe prosecution that fhe appeUant instigated or iatentionally aided the doiag of a particular thmg. In ofher words, it raust be proved by the prosecution that fhe accused uitentionaUy iastigated fhe deceased to coiniait suicide. In ofher words, the act of suicide coixmiitted by fhe deceased raust be fhe proximate cause of fhe iastigation offered by fhe accused aad it inust be shown that fhe tastigation, if any, was so direct, co-related, iairaediate and proximate wifh the act of suicide that it caa be safely iaferred fhat fhe deceased conunitted suicide only on account of such instigation, This is in conforaiity with. fhe dictum laid dowa by this Court in. Rakesh Vaishncw Vs. Stale of M.P. 2004 (1) CGLJ 324 aad Tek Sincsh Verema Vs. State of Chhattisgarhisi Crixniaal Appeal No. 753/2005 videjudgment dated 23.01.2006. 5. In this case, it is not disputed that the deceased was Uvuig ia her parental honie siace aboiit a year with her daughter. Alfhough it is torue that the prosecution has led evidence to show fhat the appeUaat used to suspect the character of the deceased aad did not accept parenfhood of the chUd ia her woinb Yet, the prosecution has led no evidence to show tfaat at any poiat of tmie, fhe appellaat iastigated Snit Lipika Malik to comLimt suicide. Siace fhe deceased was Uviag wifh her parents for about a year prior to her deafh, fhe question of aay such iastigation beiag offered by the appellaat soon before tlie suicide conimitted by Sait Lipika Malik does not arise. It appears fhat out of sheer fhistration Sint Lipika MaUk coinniitted suicide by consuniiag chloroquia tablets ia excess quaatity, This act of ftie deceased was an escapist attitude towards life aiid could in. no maaner constitute aii offence under Section 306 of I.P.C. agaiast fhe appeUaat, Thus, fhe conviction of fhe appellaD-t under Section 306 of I.P.C. aad fhe sentence imposed thereunder cannot be sustauied and deser^es to be set aside, 6, In fhe result, fhe appeal is aUowed. Conviction oftlie appellaat under Section 306 ofI,P.C. and the sentence ioiposed thereunder are set aside. The appellaat is acquitted. He shall be set at Uberty forthwifh., if not rcquired ia any ofher case, F Dilip Raosaheb Deshmukh Judge Priya