THE HON’BLE SRI JUSTICE N.RAVI SHANKAR CRIMINAL APPEAL NO.405 OF 2004 AND CRIMINAL REVISION CASE NO.2055 OF 2004 COMMON JUDGMENT: Appellant (hereinafterwards referred to as the accused) in Crl.A.No.405 of 2004 is accused in Sessions Case No.88 of 2003 on the file of the Court of Metropolitan Sessions Judge, Hyderabad (trial court). He was tried on two charges i.e. one under Section 306 IPC (abetment of suicide) and the other under Section 309 IPC (i.e. attempt to commit suicide). 2. The trial court after considering the evidence by its Judgment dated 23.02.2004 convicted the accused of both the charges and sentenced him to rigorous imprisonment for five years and to pay a fine of Rs.5,000/- on the first count and one year simple imprisonment and a fine of Rs.1,000/- on the second count with default clause prison sentences for non-payment of fines. It however directed both the substantive sentences of imprisonment to run concurrently. Questioning the said judgment, the accused filed this appeal. 3. On the other hand P.W.1 Sarojini Devi the de facto complainant in the said case who is the mother of the deceased filed Crl.R.C.No.2055 of 2004 for enhancement of sentences to the maximum imposable for the count under Section 306 IPC and the grounds of revision also contain a prayer for re-trial. As both the matters pertain to same case they are taken up for disposal by this common judgment. As the whole matter is at large before this court in criminal appeal it has to be considered in detail. 4. Sri C.Padmanabha Reddy, the learned senior counsel appearing for the accused, Sri P.Kesava Rao, the learned standing counsel for the CBI, which is the investigating agency in this case, and Sri A.Satya Prasad, the learned senior counsel appearing for the de facto complainant who is the petitioner in the revision have been heard at length. The following facts as can be seen from the evidence and their arguments are not in dispute. 5. The deceased by name Ms.Prathyusha and the accused both residents of Hyderabad were college mates in Gouthami Academy Junior College at S.R. Nagar, Hyderabad, when they were studying Intermediate in the year 1993. They fell in love and wanted to marry at a later stage in life. The contacts between the accused and the deceased continued till the death of the deceased. P.W.1 Smt.Sarojini Devi (de facto complainant) is the mother of the deceased and though she initially opposed the above marriage, she agreed for it subsequently. In the meanwhile the accused entered into some Engineering course and the deceased chose a career as a heroine in feature films. It is not necessary to go into these details, but by the date of her death the deceased became a recognised heroine in feature films and was also having her own earnings. 6. The parents of the accused were however opposed to the marriage and his mother even threatened the accused that she would commit suicide if he went ahead with his proposal to marry the deceased and they were also taking steps to effectively prevent the accused from meeting the deceased, but the accused continued in meeting the deceased either at her instance on some occasions and on his own on some other occasions. By February 2002, the opposition from the parents of the accused for the marriage became very stiff. 7. It may then be noted that while matters stood thus on the morning of 23.02.2002 the accused and the deceased had a talk on phone and he told her that his parents were opposed to their marriage and the threats of his mother. On that day i.e. 23.02.2002 in the evening at about 5.00 p.m. the deceased along with her cousin i.e. P.W.2 Prafullasri went to a beauty parlour called Ferry’s Beauty Parlour at Panjagutta, Hyderabad for some facial brush up as she (deceased) was already booked for a Kannada feature film and was to leave for Bangalore on the morning of 24.02.2002. The other details are not necessary. 8. It may then be noted that on the evening of 23.02.2002 both the accused and deceased at the instance of latter met at the aforesaid beauty parlour around 5.00 PM or so and they both left together from that place in the car of the accused. This is evident from the deposition of P.W.2. Subsequently on the same day in the evening about at 7.30 p.m. or 8.00 p.m. both of them went to Care Hospital in Banjara Hills after consuming poison. Both were admitted in the said hospital. The condition of the deceased became serious and she died on the morning of 24.02.2002 in the said hospital while undergoing treatment. It is stated that the condition of the accused was also serious but he ultimately recovered and was discharged from the hospital on 09.03.2002. This part of the case is evident from the deposition of P.W.13 and P.W.10 the doctors of Care Hospital. Initially the case was registered in the Banjara Hills Police Station and subsequently the investigation was taken over by the CBI police. 9. The evidence of P.Ws.1 to 38 examined by the prosecution and Exs.P.1 to 64 documents filed by it discloses the above facts which are not in dispute. M.O.1 is Novacron bottle that is a pesticide bottle and M.O.4 is a knife and both these items are said to have been purchased by the accused apart from a coca-cola bottle which is said to have been used by both the accused and deceased for consuming the above poison by mixing it in coca-cola. M.O.4 knife is said to have been purchased for opening MO.1 poison bottle. 10. Initially the post-mortem examination on the body of the deceased was conducted by one Dr.B.Munuswamy, the then Professor of Department of Forensic, Gandhi Medical College, Hyderabad and Ex.P.51 post-mortem report dated 25.02.2002 was given by him. This Ex.P.51 report shows that the death of the deceased was homicide caused by asphyxia due to manual strangulation. Subsequently the Government of Andhra Pradesh through Ex.P.50 G.O.Rt.No.174, Health, Medical and Family Welfare (N1) Department, dated 05.03.2002, constituted a committee of three doctors i.e. P.W.31 Dr.M.Narayana Reddy of Osmania Medical College, Dr.Vijaya Kumar of Sidharth Medical College and Dr.Satyavathi, the then Superintendent of Maternity Hospital, Nayapul, Hyderabad to submit a report about the cause of death of the deceased. The said committee gave its report marked as Ex.P.52 to the effect that the deceased died of organophosphate poisoning and that there was no evidence of manual strangulation and also sexual assault prior to the death of the deceased. This was relied upon by the CBI in prosecuting the accused. 11. Subsequently the CBI Police consisting of P.Ws.36 and 37 Inspectors and P.W.38 Deputy Superintendent of Police investigated into the matter and the CBI ultimately filed the charge sheet against the accused for the aforesaid two offences under Sections 306 and 309 IPC. 12. The trial court discussed the evidence in detail and concluded that having loved the deceased and having been loved by her, the accused did not come up to her expectations for marriage and he procured M.O.1 Novocran pesticide and coca-cola and mixed the poison with coca-cola and made the deceased to consume it and therefore aided and abetted her in the commission of suicide and he also consumed it to commit suicide. On this finding it convicted the accused of both the offences i.e. under Sections 306 and 309 IPC. In fact, the prosecution case was also in substance the same and the trial court accepted it. 13. It has now to be examined whether the prosecution case on both the charges can be accepted as proved beyond doubt on evidence. The questions raised by the de facto complainant in her revision are proposed to be taken up after examining the above aspect. 14. The admitted facts have already been set out supra. It may be noted that after leaving the beauty parlour at Panjagutta as spoken to by P.W.2, there is no evidence to show what transpired between the deceased and the accused on the evening of 23.02.2002 till both of them again reached the Care Hospital by about 8.00 PM and told the doctors there i.e. P.Ws.13 and 10 that they both consumed poison. Thus there is no evidence to show that of the accused and the deceased who goaded the other to consume poison first and who consumed what quantity of poison. Thus no findings can be given on the above two questions. 15. To repeat, the medical evidence consisting of P.W.13 and P.W.10 would only show that both the accused and the deceased consumed poison on the evening of 23.02.2002 and Ex.P.52 post mortem report of the expert committee would show that the deceased died of poison. It is however clear from the evidence of P.W.34 D.Anil Kumar who was at that time a sales man in a pesticides shop called Revathi Agencies at Hyderguda, Hyderabad, that the accused purchased M.O.1 poison bottle from that shop on the evening of 23.02.2002 and the said witness also identified the accused as the person who purchased it in a subsequent test identification parade. It may be noted that when a boy and a girl who are in love go out together in a car, normally the human tendency would be that the boy would step out of the car and will make purchases such as cool drink or other eatables when they decide to consume them on the road side in the car. Going by the same human tendency the prosecution case that the accused stepped out of the car and bought M.O.1 poison, M.O.4 knife to open the same poison bottle and also coca- cola can be accepted. The evidence of P.W.13 and P.W.10 also would show that if poison is consumed especially of the kind mentioned in this case i.e. novocran pesticide it will be showing its effect one hour after its consumption. 16. It will also be found from the evidence of P.W.10 that a poison will have more deadly effect on a female body than on a male body because of anatomy reasons and the effect may be more deadlier when it is consumed on an empty stomach. It is not necessary to go into the above details but the evidence looked from any angle would show that both the accused and the deceased consumed poison on the evening of the fateful day and thereupon reached the hospital together by about 8.00 PM. The above circumstances show that after consuming of poison both had time to reach the hospital and the accused was also in a position to drive the car to the hospital. 17. Sri Kesava Rao the CBI counsel pointed out two circumstances to show that the accused must be held guilty of abetment of the suicide. The first is that the deceased was an upcoming film actress and had considerable earnings by 23.02.2002 and she was to go to Bangalore on 24.02.2002 morning in connection with her assignment in a Kannada feature film and therefore she could not have and had no intention to commit suicide as she was interested in her career. The second is as disclosed from the evidence that it was the accused who purchased the poison bottle and the coca-cola and therefore he must be held to have abetted her suicide though he also consumed poison. 18. On the other hand, the contention of Sri C.Padmanabha Reddy is that as disclosed from the evidence the only inference that can be drawn is that both the accused and the deceased voluntarily together consumed poison to end their lives in a suicide pact out of dejection from the opposition to their marriage from the parents of the accused and therefore in such a situation especially when the accused also consumed poison to commit suicide he cannot be held guilty of abetment of suicide by the deceased. It has now to be seen which of the above contentions can be accepted on evidence. 19. From the evidence and the admitted facts which are already mentioned, only one conclusion is possible in my opinion and that is that since the parents of the accused were opposed to their marriage the accused and the deceased have entered into a suicide pact and consumed poison perhaps with the belief that in death none can separate them. 20. It would now be useful to see Section 107 of IPC which defines “abetment” for application of Section 306 IPC and that reads as follows. “Section 107 - Abetment of a thing:- A person abets the doing of a thing, who:— First:-- Instigates any person to do that thing; 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 wilful 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. Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A, that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2:-- 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 facilitate the commission thereof, is said to aid the doing of that act.” 21. The first and third parts of the main Section 107 IPC are more relevant here. The first part says that a person abets the doing of a thing if he instigates any person to do that thing and the third part says that it would be abetment if a person intentionally aids another, by any act or illegal omission, the doing of that thing. The words “intentionally aiding by any act or illegal omission” assume importance in this case. It may be noted that there was acquaintance between the accused and the deceased right from 1993 onwards and both decided to marry. In such a situation it would, in my opinion, be against evidence and the matters placed before the court to conclude that the accused would have purchased M.O.1 poison bottle, coca-cola bottle and M.O.4 knife without the consent of the deceased and the fact that both of them consumed poison only fortifies that whatever happened regarding consumption of poison by both happened with the consent of both. Therefore the second contention of Sri Kesava Rao that since accused purchased the poison bottle he alone must be held to have abetted the deceased in committing suicide cannot be accepted, though as will be presently seen, he cannot escape from liability of abetment of suicide by the deceased for different reasons which may include the purchase of poison also by him. 22. Regarding the first contention of Sri Kesava Rao, the evidence would no doubt show that the deceased was booked in some films for acting as heroine and she was also having considerable earnings. The case of the prosecution is that both of them decided to end their lives because of the opposition of the parents of the accused to their marriage. Therefore even a girl who is deeply in love with her boyfriend and thinks of marrying him may go to the extent of ending her life if there is no likelihood of their marriage taking place and the chances of herself coming up in life as a good or popular heroine with a further chance of making lot of money may not deter her from ending life as any girl would think of a happy married life with a boy of her choice in preference to a career. Thus this first contention of Sri Kesava Rao cannot also be accepted. 23. The evidence would, in my opinion, as already mentioned in para- 19, only show that both the accused and the deceased together consumed poison under an agreement or what may be called a suicide pact and the accused survived while the deceased unfortunately died. In such a situation i.e. where two persons in a case like this enter into an agreement or a suicide pact and consume poison the question would be whether each of them can be said to have abetted the act of the other to commit suicide and further when one of them dies can the survivor be found guilty of the charge of abetment of suicide by the other as in such a case the person who dies. Sri Padmanabha Reddy says that the survivor cannot be held guilty of abetment in such a situation, whereas Sri Kesava Rao says that he ought be. 24. In this connection it would be useful to refer to the commentary given under Section 306 IPC in Dr. Harisingh Gour’s Penal Law of India (11th Edition published by the Law Publishers India Pvt. Ltd., Allahabad) (Vol.III at pages 3107 and 3108). Two English cases are referred to giving out their facts. It would be better to reproduce the said commentary and it is as follows. “Mutual suicide attempt; survivor is guilty of murder but under this section, guilty of abetment. The prisoner was indicted for the murder of his sweetheart by drowning her. It appeared that the two had cohabited for several months previous to the woman’s death and the woman was with child by the prisoner. Owing to distress and poverty they both resolved to commit suicide by drowning themselves in the Thames. For that purpose they got into a boat, but finding the water shallow, they got into another boat. They then stood up, and as they were talking, the prisoner found himself in the water. He struggled and got back into the boat again, and then found that the woman was gone. He searched for her with a view to saving her but she could not be found. He stated that he intended to drown himself, but had dissuaded the woman from following his example. The Judge told the jury that if they believed the prisoner’s statement, they should acquit him, but they believed that both the accused and the deceased had got into the boat with the object of drowning themselves together, each encouraged the other in the commission of a felonious act, and the survivor was guilty of murder. He also told the jury that, although the indictment charged the prisoner with throwing the deceased into the water, yet if he were present at the time she threw herself in, and consented to her doing it the act of the throwing was to be considered to be the act of both, and so the act was reached by the indictment. The jury found that both the prisoner and the deceased went to the water to drown themselves and the prisoner was thereupon convicted. And upon a case reserved the Judges were clear that if the deceased threw herself into the water by the encouragement of the prisoner, and because she thought he had set her the example in pursuance of their previous agreement, he was a principal in the second degree, and was guilty of murder; but as it was doubtful whether the deceased did not fall into the river by accident, it was not murder in either of them, and the prisoner was recommended for a pardon. So in another case where the deceased and the prisoner, who had been living as husband and wife, being in very great distress, both agreed to take poison and die together, and both took a quantity of laudanum in each other’s presence, after which they both lay down on the same bed, wishing to die in each other’s arms, and the woman died, but the prisoner recovered. Patterson, J., told the jury that “supposing the parties in this case mutually agreed to commit suicide, and one only accomplished that object, the survivor will be guilty of murder in point of law. Of course, here he would be guilty only of abetment under this section.” 25. It should be noted that in both the above cases the accused and the deceased entered into a suicide pact and executed it, but one of them died and the other survived. The survivor was put on trial for murder or manslaughter. At that time in England when the above cases were decided there was no provision akin Section 306 IPC though it is not known what the position now is. However the principle is important. The principle and the reasons in the above two cases would, in my opinion, show that in such cases which are akin to the present case, each of them i.e. the two partners must be held responsible for the abetment of the suicide by the other in keeping silent i.e. by an illegal omission and encouraging the other to go for suicide while the abettor himself/herself also making an attempt to commit suicide. At the end of the second case the authors of the commentary gave an opinion that in India in such cases the survivor can be held guilty of abetment. 26. It was argued by Sri Padmanabha Reddy that this opinion of the authors has no value as it is not binding on the court. May be, but the said opinion which is based on the above decisions cannot be rejected as absurd or unreasonable in view of the principle governing the above two decisions and on the other hand it can be said to have been given on sound reasoning. I therefore agree with the said opinion though it is not equivalent to a binding precedent as any opinion given in a commentary on a statute can be accepted, if it is found reasonable. 27. Sri Padmanabha Reddy argued that the above principle is not applicable in India and we have to go by only Section 306 IPC and in the circumstances of this case the accused cannot be held guilty of the offence under Section 306 IPC. It is difficult to accept his contention. It may be noted that if a person abets suicide by another without joining in any suicide pact and that results in the death of the latter, he would be certainly liable for the offence under Section 306 IPC. Now when two persons enter into a suicide pact that is also contrary to law and the survivor can be held guilty under this Section for abetting the suicide of the other. In such a case the principle is each must dissuade the other from the idea of committing suicide and when both attempt suicide the principle would be that each must be held guilty of abetting the suicide by the other and consequently basing on this principle the survivor must be held guilty under Section 306 IPC. The said provision, it may be noted, does not make any distinction between a person who attempts suicide with the deceased and the person who does not make any such attempt but abets the suicide by the other and hence it follows that when two persons attempt to commit suicide under a suicide pact or agreement the survivor can be found guilty under Section 306 IPC going by its language and the above principle. This is what has happened in the present case when the accused and the deceased both attempted suicide by consuming poison which resulted in the death of the deceased and survival of the accused. 28. Sri Padmanabha Reddy could not cite any decision or authority to hold that