5. Having regard to the said evidence, which has been also appreciated by the Sessions Court and High Court, there remains no shadow of doubt that the deceased was subjected to the harassment at the instance of the appellants-accused and that the prosecution had successfully brought home the charges levelled against them so far as the offence under Section 498A read with Section 34 of IPC was concerned. However, the next question that falls for consideration before this Court is whether the prosecution had proved beyond reasonable doubt the charge levelled against the appellant with regard to the offence punishable under Section 306 read with Section 34 of IPC.
6. At this juncture, it would be beneficial to reproduce the relevant provision contained in Section 306 IPC pertaining to Abetment of suicide.
“306. Abetment of suicide.- If any person commits suicide, whoever abets the commission of such suicide, shall be punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
7. What is “Abetment of a thing” has been described in Section 107 which reads as under: –
“107. 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 willful misrepresentation, or by willful 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.”
8. From the bare reading of the said provisions, it clearly transpires that in order to convict a person for the offences under Section 306 IPC, the basic constituents of the offence namely where the death was suicidal and whether there was an abetment on the part of the accused as contemplated in Section 107 IPC have to be established.
9. In M. Mohan Vs. State Represented by the Deputy Superintendent of Police1 , this Court has elaborately dealt with the provisions contained in Section 306 read with Section 107 IPC, and after discussing various earlier decisions has observed as under: –
“…………………”
10. In view of the above, it is quite clear that in order to bring the case within the purview of ‘Abetment’ under Section 107 IPC, there has to be an evidence with regard to the instigation, conspiracy or intentional aid on 7 the part of the accused. For the purpose proving the charge under Section 306 IPC, also there has to be an evidence with regard to the positive act on the part of the accused to instigate or aid to drive a person to commit suicide.
FACTS
11. So far as facts of the present case are concerned, the prosecution had sought to lead the evidence by examining the witnesses to prove that the deceased had committed suicide because of the mental and physical harassment of the appellants-accused. The PW-21 Dr. Jayashree Masali, who had carried out the post-mortem of the deceased, had narrated in her deposition the injuries found on the body of the deceased as mentioned in the post-mortem report (Exhibit-14). As per her final opinion, the cause of death was “due to drowning as a result of Asphyxia”. It may be noted that nothing comes out from her evidence as to whether the death was suicidal or not. The PW-1 Annapurna Limbikai, who happened to be the mother though had alleged in her examination-in-chief that her daughter was murdered by the accused by throwing her in the well, she had admitted that when she reached at the spot, she had not seen the dead body of her daughter in the well. She had also admitted that she had not stated in her complaint that her daughter had committed suicide by jumping into the well on account of the mental and physical harassment caused by the accused. At this juncture she was declared hostile, and the public prosecutor was permitted to cross examine her. In the cross-examination she had stated that she did not remember the incident as it had occurred long back. In the further cross-examination by the learned advocate for the accused she had admitted that the accused no. 3 had informed her on telephone that her daughter-Jayashree had accidentally slipped, and as a result thereof she fell down in the well at about 12.00 O’clock. She also stated that when she, her husband, other relatives and the neighbours went to the place of occurrence at about 4.30 p.m., they had not seen the dead body floating in the well.
PROSECUTION DID NOT SOUGHT OPINION AS TO THE DEATH TO SHOW WHETHER IT WAS SUICIDE OR ACCIDENTAL
13. The PW-21 Dr. Jayashree Masali though had opined that the death of the deceased was due to the drowning as a result of Asphyxia, there was no opinion given by her nor any opinion was sought from her as to whether it was a suicide committed by the deceased or it was an accident by which she fell down in the well. Even if it is presumed that the deceased had committed suicide, there was no evidence whatsoever adduced by the prosecution that there was an abetment on the part of any of the accused which had driven her to commit suicide. There is no evidence worth the name to show that any of the appellants accused had either instigated or intentionally aided or abetted the deceased to commit suicide or had caused any abetment as contemplated under Section 107 of the IPC.
14. Though it is true that as per Section 113A of the Evidence Act, when the question arises as to whether commission of suicide by a woman had been abetted by her husband or any relative of her husband, and when it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court can presume, having regard to the other circumstances, that such suicide has been abetted by her husband or such relative of her husband. However, mere fact of commission of suicide by itself would not be sufficient for the court to raise the presumption under Section 113A of the Evidence Act, and to hold the accused guilty of Section 306 IPC.
15. In Mangat Ram Vs. State of Haryana2 , this Court considering the provisions of Section 498A and 306 of IPC in the light of the presumption under Section 113A of the Evidence Act, observed as under:
“……….”
16. So far as the evidence adduced by the prosecution in the instant case is concerned, in our opinion the prosecution had failed to adduce any clinching evidence to enable the Court to conclude that the appellants accused had abetted the deceased to commit suicide. In absence of any satisfactory evidence having been brought on record, in our opinion both the Courts below had committed grave error in holding the appellants guilty of the offence under Section 306 of IPC.
17. In that view of the matter while upholding the conviction of the appellants under Section 498A, we acquit the appellants from the charges levelled against them under Section 306 of IPC by giving them benefit of doubt. Since the appellants have already undergone the imprisonment for a period of two years for the offence under Section 498A read with Section 34 of IPC, as directed by the courts below, it is hereby directed to set free the appellants forthwith.
PARTY: KASHIBAI & ORS. v. THE STATE OF KARNATAKA – Criminal Appeal No. 627 of 2023 (Arising out of SLP (Crl.) No. 8584/2022) – FEBRUARY 28, 2023 – [2023] 3 S.C.R. 175
https://main.sci.gov.in/supremecourt/2021/27982/27982_2021_5_1502_42385_Order_28-Feb-2023.pdf
