Crl.A. 97/2008 BEFORE THE HON’BLE MR JUSTICE B D AGARWAL The Appellant herein stands convicted under Section 306 of the Indian Penal Code vide impugned Judgment dated 06.05.2008 passed by the Learned Additional Sessio ns Judge (FTC) , Kamrup, Guwahati in Sessions Case No. 198(K) of 2006 under se ction 306/ 34 of the Indian Penal Code ( IPC) . After convicting the appellant, he has been sentenced to undergo rigorous imprisonment for 5 (five) years and a lso to pay fine of Rs. 500/- with default stipulation of further rigorous impris onment for 6 (six) months. 2. Heard Mr. B K Mahajan, learned counsel for the appellant. Also heard M r. Z Kamar learned P.P. for the State of Assam. I have also gone through the imp ugned Judgment and evidence on record proffered by prosecution as well as the ac cused in the Trial Court. 3. Apparently, the record reveals that the marriage of the deceased with th e appellant took place on 04.03.1998 and the deceased committed suicide on 10.09 .2000 i.e. within a period of 2 ‰ years. In view of the unnatural death of the deceased, her father lodged an FIR that was registered as Palashbari Police Stat ion Case No.113 of 2000 under Section 306 of the IPC. After investigation charge sheet was submitted against the husband and in-laws . However, after the trial t he in-laws have been acquitted and the husband has been convicted as noted earli er. 4. As could be gathered from the records, as many as 9 (nine) witnesses wer e examined by the prosecution to prove the offence of abetment of suicide. Out o f them one independent witness i.e. PW-8 has been declared hostile. PW-1 is the medical officer who had conducted autopsy on the dead body and in his opinion th e death was caused due to consuming organo phosphorus pesticide, which is a pois onous substance. In fact the appellant did not challenge the factum of suicide d ue to consuming poison by his wife in the Trial Court. 5. The remaining witnesses are either the relatives or independent wi tnesses from the informant’s village or from the village of the appellant. After scanning the evidence, it appears to me that out of seven non-official witness es ( excluding the hostile witness) three witnesses are supporting the appellant / accused and three witnesses are pro- prosecution. The testimony of PW-4 is a b alanced one. In other words only PWs- 2, 3 and 7 have spoken about the torture a nd abetment to suicide by the deceased. Out of these three witnesses, PW-2 is t he father of the deceased,. PW-3 was working as domestic help in the house of th e informant and PW-7 is also distantly related to the informant. In this way all the three witnesses can be termed as interested witnesses. 6. On the other hand, the witness defending the appellant includes one mate rnal aunt of the deceased ( Pw- 9) . PWs 4 and 5 are independent witnesses and a lso the immediate neighbor of the appellant. These witnesses have admitted in t he Chief examination itself that matrimonial relation between the husband and wi fe was sweet and cordial and they did not hear about any quarrel in between them . The aunt of the deceased (Pw-9) did not say anything about the matrimonial dis cord in the examination-in- chief. However, the entire deposition in the cross-e xamination is in favour of the accused. In the cross examination, PW-9 has admit ted that she did not see any quarrel in between the appellant and the deceased. Not only that PW-9 has further gone to say that their relation was cordial and s he was never complained about any torture to her niece. The testimony of PW-9 as sumes additional significance because she is not only the aunt of the deceased b ut also used to live adjacent to the house of the appellant. Strangely PW-9 has not even spoken about day to day quarral in between the husband and wife. After going through the entire testimonies of Pws- 5, 6 and 9, I do not get any reason to discard their testimonies. On the other hand, the pro-prosecution witnesses are all relatives of the deceased. 7. PW-4 can be said to be a neutral witness. Although this witness has s tated that on few occasions, the deceased came to her mothers house and reported about the torture but at the same time, PW-4 has stated that the deceased did n ot disclose the reasons of torture. PW-4 has further stated in the cross examin ation that he had also visited the house of the appellant to meet the deceased . But, in his presence, the deceased was not misbehaved. Be that as it may, PW-4 has not given a concrete evidence of high degree of cruelty which can amount t o instigation for committing suicide. 8. In the case of Harijan Thiropala -vs- the P.P. of High Court of A.P. (20 02) Cr.L.J. 3751, the Hon’ble Supreme Court has held that if two views are possi ble on the evidence produced in the case, one indicating the guilty of the accus ed and on the other to his innocence, the view favorable to the accused is to be accepted. In fact this cardinal principle in criminal jurisprudence is being re gularly followed. It is true that in the aforesaid case, the Apex Court has give n a rider that the case of prosecution must be adjudged as a whole having regard to the totality of the evidence and the approach of the Court must be intricate and not truncated of isolated one. 9. In the case before me, the testimony of PWs- 5, 6 and 9 have totally eclip sed the prosecution witnesses favouring the prosecution story. In other words, i t is not a case where it can be said that the balance of evidence tilts in favou r of the prosecution. Rather the average testimony is more in favour of the appe llant than to the prosecution and as such it is a fit case in which the theory o f benefit of doubt deserves to be adopted. 10. The above apart in the case of Randhir Singh -vs- Punjab (2004) 13 SSC 1 29 the Hon’ble Supreme Court has held that while recording the conviction under section 306 of the IPC , the Court should also take into consideration the ordin ary nature and behavior of the victim and there should be clear evidence of ins tigation of abetment. The proposition laid down by the Apex Court to draw the i nference of abetment to suicide can be fruitfully reproduced as follows: Abetment involves a mental process of instigating a person or intentionally a iding that person in doing of a thing. In cases of conspiracy also it would invo lve 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 Section 306 IPC. In State of W.B. vs- Orilal Jaiswal this Court has observed that the courts sho uld be extremely careful in assessing the facts and circumstances of each case a nd the evidence adduced in the trial for the purpose of finding whether the crue lty meted out to the victim had in fact induced her to end the life by committin g suicide. If it transpires to the Court that a victim committing suicide was hy persensitive to ordinary petulance, discord and differences in domestic life qui te common to the society to which the victim belonged and such petulance, disco rd and differences were not expected to induce a similarly circumstanced individ ual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a find that the accused charged of abetting the offence of suicide should be found guilty. 11. In the case before me, the father of the victim has admitted in the cros s examination that his younger daughter had also attempted to commit suicide. Th e aunt of the deceased ( pw-9) has also admitted in the cross examination that the deceased had also taken poison, ostensibly to commit suicide, prior to her m arriage. In this way the deceased and her sister had the tendency to commit suic ide before her marriage of the deceased with the appellant. Besides this, there is no specific, clear and cogent evidence as to what kind of unlawful demand of dowry was made from the parents’ house. 12. Having regard to all the aspects of the case, it is a fit case tha t the appellant should be given the benefit of doubt and the same is given by me . 13. In the result, the appeal stands allowed. The impugned judgment is hereb y set aside. The appellant is directed to be set at liberty forthwith unless wa nted in any other case. Since, the appellant is in judicial custody, the Registr y is directed to issue the release order.