Kishori Lal Vs. State of M.P [2007] Insc 699 (19 June 2007)
Dr. ARIJIT PASAYAT & D.K. JAIN
Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the order passed by the learned Single
Judge of the Madhya Pradesh High Court, dismissing the appeal filed by the
appellant questioning his conviction under Section 306 of the Indian Penal
Code, 1860 (in short 'IPC') and sentencing him to undergo RI for five years.
2. The background facts in a nutshell are as follows:
Appellant was married to Rajkumari (hereinafter referred to as the
'deceased'). On 31.8.1982 she committed suicide. On the basis of information
lodged by the accused investigation was undertaken. The accused was arrested
for allegedly having abetted deceased to commit suicide on 31.8.1982.
According to the prosecution in the evening of 31.8.1982 the accused left
for his duty leaving the deceased in the house. In the evening when he reached
the house the room was found closed from inside and the deceased did not
respond to his call for opening the door. Apprehending that there was something
wrong, he went to Police Station and lodged the report. The police went with
him and with the help of persons of the locality broke open the door and found
that the deceased had committed suicide by hanging from the roof. After
completion of investigation charge sheet was placed and the accused pleaded
innocence.
3. Primarily relying on the evidence of PWs. 8, 10 and 11 the Trial Court
came to hold that the accused had abetted suicide. Accordingly the conviction
was recorded and sentence was imposed. Appeal before the High Court did not
bring any relief to the appellant.
4. In support of the appeal, learned counsel for the appellant submitted
that the witnesses PWs.8, 10, and 11 who are the brothers and the mother of the
deceased clearly stated that after living together for long years some
differences cropped up between the deceased and the accused and, therefore, she
started living in the house of the parents. On the persuasions of the
father-in-law and the brother-in-law she came to the accused's house about a
month before the date of occurrence. There was no evidence led to show that the
accused was in any manner responsible for suicide. The so-called alleged
torture done by the accused as spoken by the mother of the deceased related to
the alleged incident about 4- 5 years prior to the occurrence. The post-mortem
also did not reveal any mark of violence. In fact, the so called marks were
stated to be several days old and there was no evidence to conclude that those
injuries were inflicted by the accused.
5. On the other hand, learned counsel for the State submitted that the
presumption available under Section 113A of the Indian Evidence Act, 1872 (for
short 'the Act') can be pressed into service. He, however, fairly conceded that
the marriage was more than a decade old when the alleged occurrence took place.
6. Section 107 IPC defines abetment of a thing. The offence of abetment is a
separate and distinct offence provided in the Act as an offence. 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
7. In cases of alleged abetment of suicide there must be proof of direct or
indirect acts of incitement to the commission of suicide. The mere fact that
the husband treated the deceased-wife with cruelty is not enough. [See Mahinder
Singh v. State of M.P. (1995 AIR SCW 4570)]. Merely on the allegation of harassment
conviction in terms of Section 306 IPC is not sustainable. There is ample
evidence on record that the deceased was disturbed because she had not given
birth to any child. PWs. 8, 10, and 11 have categorically stated that the
deceased was disappointed due to the said fact and her failure to beget a child
and she was upset due to this.
8. If the background facts are analysed it is crystal clear that the
prosecution has failed to establish its case. That being so, the appeal
deserves to be allowed, which we direct.
9. The bail bonds of the accused executed for bail on 6.1.1999 shall stand
discharged. We record our appreciation for the able assistance rendered by Shri
Shankar Divate, learned amicus curiae.
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