1. Present Criminal Appeal has been filed against the judgment dated 23.09.2009, passed by learned District and Sessions Judge, Pauri Garhwal in Sessions Trial No. 124 of 2006, “State vs. Anil Kumar”, by which, the appellant has been convicted and sentenced to undergo rigorous imprisonment for a period of seven years along with a fine of Rs. 5,000/- for the offence punishable under Section 306 of the Indian Penal Code, 1860 (in short, “IPC”).

2. Briefly stated the prosecution case as it emerges from the re-appreciation of the evidence on record is that the deceased-Smt. Sunita, the real sister of the informant, was married with the present appellant on 22.06.2003. The appellant and his family members demanded money from the deceased. She was being harassed and tortured on that pretext. The deceased-Smt. Sunita informed about her harassment to the informant. On 28.03.2006, when the informant was at her parents’ house, at around 8:00 a.m., one Kuldeep Chandra came to her house and informed that Sunita was unwell. On receiving the said information, she went to Sunita’s in-laws house and found that Sunita was lying dead on the upper floor of the house. The First Information Report (Ext. Ka.3) was lodged through written information (Ext. Ka. 1) of the informant-Babita Naithani (PW1). The First Information Report was registered on 28.03.2006 at 2:30 p.m. The inquest proceedings were conducted on the same day. The post-mortem examination of the dead body was conducted on 29.03.2006. On completion of investigation, the Investigating Officer filed charge-sheet against the appellant for allegedly committing the offence punishable under Section 306 IPC.

3. The case was committed to the Court of Sessions.

4. The Trial Court framed charge against the appellant under Section 306 IPC and in the alternative framed charge under Section 304B IPC to which he pleaded not guilty and claimed to be tried.

5. The prosecution at the trial examined nine witnesses including the investigating officer and the doctor who had performed the post-mortem examination.

6. Statement under Section 313 of the Code of Criminal Procedure, 1973 was recorded. Appellant has denied all the incriminating evidence, adduced by the prosecution.

7. Learned Trial Court heard the arguments, assessed the evidence on record and held that the prosecution has succeeded in proving its case under Section 306 IPC against the appellant beyond all reasonable doubts. However, the Trial Court acquitted the appellant of the alternative charge framed under Section 304 B of IPC.

8. I heard Mr. Kartikey Hari Gupta, learned counsel for appellant and Mr. Pratiroop Pandey, learned Assistant Government Advocate assisted by Mr. Rakesh Negi, learned Brief Holder for State and carefully assessed the evidence, adduced by the proseuction.

9. The First Information Report (Ext. Ka. 3) was lodged by Smt. Babita Naithani (PW1), the sister of the deceased. She has stated that the appellant used to demand money. At the time of marriage, he had told that he worked in a private company in Delhi, but after marriage he did not go to his work. According to this witness, at the time of her sister’s death he was working as a security guard at Ghurdauri.

10. PW2 Smt. Shakuntala Devi is the mother of the deceased. She stated that sometimes Rs.50,000/-, sometimes Rs.20,000/- and sometimes Rs.15,000/- were demanded by the appellant. However, it has also been stated by this witness that the appellant himself had not demanded the said money.

11. PW3 Chakrdhar Prasad is the father of the deceased who stated that his daughter was distressed but he did not know the reason for her distress. According to this witness, his two daughters used to support Sunita by giving her clothes and medicines.

12. PW4 Dr. D.K. Jain had conducted the post- mortem examination of the dead body of the deceased. According to this witness, the cause of death of the deceased was asphyxia as a result of ante-mortem hanging. He has proved the post-mortem report (Ext. Ka. 2).

13. Since the incident took place in the Revenue Police Area, the First Information Report (Ext. Ka.3) was registered by Surya Prakash Bhatt, Patwari (PW5). He prepared the inquest report (Ext. Ka.5) and conducted the initial investigation. He prepared a site plan (Ext. Ka.6) of the incident site.

14. PW6 Smt. Laxmi Devi is the sister of the deceased. She has stated that the deceased was harassed for dowry. She stated that she and her husband used to help Sunita financially.

15. PW7 Smt. Uma Pokhariyal, the sister of the deceased, has stated that the deceased was harassed by her in-laws. They used to demand clothes for the children and money, then they used to give clothes and money.

16. PW8 Rajesh Pokhariyal, the brother-in-law (Jija), has stated that the deceased was harassed for dowry by the appellant and his mother. Then they would give them some money for their expenses.

17. After the order of the District Magistrate, the investigation of this case was transferred from the Revenue Police to the regular police. Further investigation was conducted by Darshan Lal, the then Deputy Superintendent of Police (PW9) and after the investigation was completed, he filed a charge-sheet (Ext. Ka.18) against the appellant under Section 306 IPC.

18. Mr. Kartikey Hari Gupta, Advocate, contended that the impugned judgment, passed by learned trial court is against the evidence on record. Appellant was working as a security guard in the Engineering College, situated at Ghurdauri. The deceased wanted to live with him at Ghurdauri. He was looking for a suitable house for the deceased to reside at Ghurdauri. He wanted the deceased to reside in the village until a suitable house became available. An altercation took place between him and the deceased on the same issue and due to said altercation, she committed suicide. The impugned judgment is based on the wrong interpretation of evidence, therefore, it cannot be held legally sustainable in the eye of law.

19. On the other hand, Mr. Pratiroop Pandey, learned Assistant Government Advocate, has supported the impugned judgment. He has submitted that the appellant used to demand money as financial help to get a job. However, he has fairly conceded that the appellant was working as a security guard in the Engineering College, Ghurdauri at the time of the death of the deceased as stated by the prosecution witnesses.

20. Assessing the evidence, adduced by the prosecution, learned trial court has observed that the accused has clearly stated in his statement under Section 313 of the Code of Criminal Procedure, 1973 that he used to keep his wife in the village. However, she wanted to reside with him in Ghurdauri. There was an altercation between them on this point. For this reason his wife committed suicide. In such a situation, it is confirmed that there was an altercation between the deceased and the accused before her death. It has been stated by the prosecution witnesses that the accused was an unemployed, he mostly resided in his in-laws house, he did not have any permanent job and he repeatedly took financial help from the deceased’s sisters. These facts prove that the deceased was being mentally harassed by the accused before her death. Learned trial court observed that in these circumstances, it would be held that the accused was responsible for creating the adverse circumstances under which she committed suicide. Accordingly, he had induced or instigated the deceased to commit suicide. (This is the translated version of the original which is in Hindi script).

21. Mr. Kartikey Hari Gupta, Advocate, contended that even if the said circumstances are accepted as true, still the charge under Section 306 IPC is not proved against the appellant because the intention and involvement of the appellant to aid or instigate the commission of suicide has not been proved by the prosecution.

22. The point that arises for the consideration of this Court is whether the appellant can be held guilty for committing an offence under Section 306 IPC in the facts and circumstances of this case.

23. Section 306 IPC prescribes the punishment for abetment of suicide in the following terms;

“306. Abetment of suicide:- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

24. The essential ingredients for an offence under Section 306 IPC are;

"(i) The victim of offence committed suicide;

(ii) The accused abetted the commission of the offence;

(iii) Such abetment being one under Section 107 IPC."

25. It is necessary to refer to Section 107 IPC which reads as under:-

"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.

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."

26. The basic ingredients of Section 306 IPC are suicidal death and the abetment thereof. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing.

27. Mr. Kartikey Hari Gupta, learned counsel for the appellant, has urged that the evidence on record does not furnish the ingredients of abetment as visualized in Section 306 of IPC and thus, the conviction is manifestly illegal and is liable to be set aside. He has placed reliance on a judgment of the Hon’ble Supreme Court in “Gurcharan Singh Vs. State of Punjab, (2017) 1 SCC 433 [LQ/SC/2016/1537] ” in which, the Hon’ble Supreme Court has observed as under;

“21. It is thus manifest that the offence punishable is one of abetment of the commission of suicide by any person, predicating existence of a live link or nexus between the two, abetment being the propelling causative factor. The basic ingredients of this provision are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of these constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualize the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. Section 306 IPC, thus criminalises the sustained incitement for suicide.”

28. Section 113 A of the Indian Evidence Act for reference are extracted hereunder:-

“113 A. Presumption as to abetment of suicide by a married woman. –When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and 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 may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation. – For the purposes of this section, “cruelty” shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860).”

29. Coming to the present matter, the deceased had committed suicide within a period of seven years from the date of her marriage is not in dispute. The mandate of Section 113 A of the Indian Evidence Act, 1872 is that where a woman commits suicide within seven years of marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty as the terms has been defined in Section 498 A IPC, the Court may presume, having regard to all the other circumstances of the case that such suicide had been abetted by such person. Therefore, presumption of abetment of suicide can be drawn only when the prosecution has discharged the initial onus of proving cruelty. The Court cannot mechanically resort to a strait-jacket approach in applying the provisions of Section 113 A of the Indian Evidence Act, 1872 for raising a presumption of abetment of suicide.

30. The prosecution has to establish beyond reasonable doubt that the appellant abetted the commission of suicide. In the instant case, the appellant and the deceased Smt. Sunita were married on 22.06.2003. From the said wedlock, two children were born. Smt. Sunita died on 28.03.2006. Appellant was working as a security guard in the Engineering College, Ghurdauri at the time of the death of the deceased. After carefully assessing the evidence on record, this Court finds that there is no direct evidence to show that the appellant had by his acts instigated or provoked the deceased to commit suicide. The present one is not a case where the appellant had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide.

31. As a result, I accept the case of the appellant. Accordingly, the Appeal is allowed. The impugned judgment of the conviction and the sentence dated 23.09.2009, passed by learned District and Sessions Judge, Pauri Garhwal in Sessions Trial No.124 of 2006, “State Vs. Anil Kumar”, is set aside. The appellant-Anil Kumar is acquitted of the charge under Section 306 IPC. Appellant is on bail. His bail bonds are cancelled and the sureties are discharged.

32. Appellant is directed to make compliance of Section 437 A of the Code of Criminal Procedure, 1973 within four weeks’ from today by appearing before the Court concerned and execute a personal bond and two reliable sureties, each in the like amount to the satisfaction of the Court concerned.