Judgment ( 1. ) THIS appeal has been preferred against the judgment dated 22/06/1992 passed by First Additional Sessions Judge, East Niwad, khandwa in S. T. No. 112/1987, whereby the appellant was convicted under Section 306 of the IPC and sentenced to undergo R. I. for 10 years and to pay fine of Rs. 5000/- and in default, to suffer R. I. for 2 years. By that judgment only, he was acquitted of the charge of the offence under Section 376 of the IPC (on two counts ). Admittedly, the State has not preferred an appeal against the order of acquittal. ( 2. ) THE prosecution story, in short, may be narrated thus - (i) At the relevant point of time, Kailash Chandra guru (since deceased), a resident of village dulhar, was posted as Head Master in Janpad middle School at Rustampur. He was married to kuntidevi, who died together with him in the same transaction. In the wedlock, they were blessed with three daughters and two sons. Marriage of their eldest daughter namely Manibala was solemnized with Kailashchandra Bhatt (PW10), who was posted as Assistant Surgeon in the veterinary Department at Unhail, Distt. Ujjain. The prosecutrixs, whose names need not be indicated, are their younger daughters. They shall hereinafter be referred to as s and p correspondingly. (ii) As the facility of post-middle education was not available at Dulhar/rustampur, Kailash Chandra guru (for short kailash) had sent Manibala to khandwa to pursue her studies there and for her residence, had taken back portion of the appellants house situated in Khadakpura Ward there. Being similarly placed, her sisters viz. s (PW19) and p (PW20), aged about 20 and 17 years respectively, and younger brother dharmendra (PW18) were also required to stay at khandwa to undertake higher education and the same accommodation was also considered suitable for their residence. (iii) Appellant is a bachelor and journalist by profession. During their stay in the back portion of his house, he was able to persuade s and p to cook food for him also. Thereafter, taking undue advantage of their young ages, he started making advances by touching their bodies and ultimately, succeeded in satisfying his lust by subjecting them to sexual intercourse. (iv) On 10. 05. During their stay in the back portion of his house, he was able to persuade s and p to cook food for him also. Thereafter, taking undue advantage of their young ages, he started making advances by touching their bodies and ultimately, succeeded in satisfying his lust by subjecting them to sexual intercourse. (iv) On 10. 05. 1987 at 11 a. m. , both Kailash and kuntidevi suddenly came to the house of the appellant for the purpose of taking their daughters back to village Dulhar. However, they found both of them lying in obscene and objectionable positions with the appellant in his bed only. They reprimanded the appellant as well as the girls and also asked them to leave the place immediately. This led to a quarrel in the course of which, the appellant not only belaboured Kailash but also threatened him with dire consequences. (v) Upon receipt of information about the quarrel, h. S. Dubey (PW14), the In-charge SHO of kotwali and Sub-Inspector G. S. Kushwaha (PW17) rushed to the appellants house along with other members of the police force. However, he was able to impress upon them that it was a domestic matter that did not require police action. Being unsuccessful in taking their unmarried daughters back to the village, both Kailash and kunti, feeling humiliated, frustrated and disgusted, returned home. On the following day only, they jointly committed suicide by consuming pesticide known as dimecrone in their house at village Dulhar. Before doing so, the parents disclosed the reasons for ending their life in a note (Ex. P-15), that was written by Kailash and signed by both wherein they emphatically declared that the appellant as well as their misguided daughters were responsible for driving them to take the extreme step. (vi) Accordingly, mergs (death cases) were registered. During inquiry, the dying declaration (Ex. P-15) written on a rice paper, two porcelain cups containing violet coloured fluid, 100 ml bottle of dimecrone and one maroon cotton handkerchief were seized from the spot. (vii) After inquest proceedings, the dead bodies were sent to Main Hospital at Khandwa for post-mortem. Dr. C. K. Sharma (PW11) and Dr. D. R. Bhatiya (PW13), who conducted the autopsies of the bodies of Kailash and Kunti respectively, opined that cause of death in each case was coma due to poisoning. (vii) After inquest proceedings, the dead bodies were sent to Main Hospital at Khandwa for post-mortem. Dr. C. K. Sharma (PW11) and Dr. D. R. Bhatiya (PW13), who conducted the autopsies of the bodies of Kailash and Kunti respectively, opined that cause of death in each case was coma due to poisoning. However, for confirmation, they also preserved viscera and fingertips of the deceased for chemical analysis. (viii) In the light of the findings of the inquiry, Rama shankar Yadav (PW22), the then SHO of P. S. Pandhana registered a case, under Section 306 of the IPC, by scribing the FIR. During investigation, the following documents containing standard handwriting of the deceased and signatures of both of them were seized (a) Daily information diary (Art. a) maintained by kailash as Head Master of the School during the period from 27. 09. 1984 to 02. 04. 1987. (b) Register (Art. b) containing administrative orders passed by Kailash during the period from 15. 08. 1982 to 27. 04. 1987. (c) Bhu Adhikar and Rin Pustika (Art. c) containing signatures of Kunti. (d) Leave applications (Ex. P-16 and P-17) written by kailash on 05. 02. 1987 and 02. 03. 1987. The seized documents along with the suicide note were sent to the Additional State Examiner of Questioned document (for short "aseqd"), Bhopal. The Handwriting expert H. S. Tomar (PW16), who examined the dying declaration with reference to the standard handwriting of kailash and signatures of both the deceaseds, opined that it was scribed by Kailash and signed by him as well as by Kunti. (ix) Viscera along with the seized cups, plastic bottle and fingertips were forwarded to FSL, Sagar for analysis. The chemical examiners report indicated that all the articles including viscera were found to contain organo-phosphorus pesticide known as dimecrone. (x) After due investigation, charge-sheet for the offences punishable under Sections 306, 376, 342 and 506 of the IPC was submitted in the Court of JMFC, Khandwa who committed the case to the Court of Session for trial. ( 3. ) THE appellant abjured the guilt and pleaded false implication. To substantiate the plea, following documents were tendered in evidence - (i) Copy of a joint exculpatory affidavit (Ex. D-7)purported to have been sworn in by both the prosecutrixs on 12. 05. 1987. (ii) An inland letter (Ex. D-8), said to have been written by p (PW20) on 22. 06. ) THE appellant abjured the guilt and pleaded false implication. To substantiate the plea, following documents were tendered in evidence - (i) Copy of a joint exculpatory affidavit (Ex. D-7)purported to have been sworn in by both the prosecutrixs on 12. 05. 1987. (ii) An inland letter (Ex. D-8), said to have been written by p (PW20) on 22. 06. 1987 to his lover sudhakar Savant, suggesting that she had to incriminate the appellant in view of the fact that despite being unmarried, she was carrying pregnancy of 3 months. (iii) A photograph of Sudhakar Savant (Ex. D-6 ). Since p had denied authorship of the letter (Ex. D-8), an handwriting expert namely Chandrashekhar Sarvate (DW1) was also summoned to establish that it was written by her only. ( 4. ) THE prosecution sought to prove the charges by examining as many as 22 witnesses including the prosecutrixs s and p (respectively PW19 and PW20), their brothers Dharmendra (PW18)and Rajendra (PW21) and the medical experts. ( 5. ) UPON a critical appraisal of the entire evidence on record, learned trial Judge, for the reasons recorded in the impugned judgment, while holding that both the prosecutrixs had persistently been subjected to sexual exploitation by the appellant, proceeded to acquit him of the offence of rape as each one of the victims was found to be above 16 years of age. However, he further concluded that the guilt of the appellant for abetting suicide of their parents was proved beyond a reasonable doubt. ( 6. ) LEGALITY and propriety of the impugned conviction have been challenged on the following grounds (i) The allegation, as incorporated in the dying declaration (Ex. P-15) that the deceaseds had found the appellant committing sexual acts with their daughters, who were lying naked on his cot during daytime, was apparently unnatural and improbable and, therefore, it could not be acted upon as truthful. (ii) The defence was able to prove that in the inland letter (Ex. D-8) written by p (PW20), it was clearly confessed that the appellant was falsely implicated with a view to saving her own prestige. (iii) Even if the contents of the suicide note are taken at their face value and accepted in their entirety, the offence under Section 306 of the IPC would not be made out. D-8) written by p (PW20), it was clearly confessed that the appellant was falsely implicated with a view to saving her own prestige. (iii) Even if the contents of the suicide note are taken at their face value and accepted in their entirety, the offence under Section 306 of the IPC would not be made out. In response, learned Panel Lawyer, while making reference to the incriminating pieces of evidence, has submitted that the conviction was justified. ( 7. ) BEFORE entering into merits of the rival contentions in a right perspective, it would be necessary to first advert to the evidence of the prosecutrixs s and p (PW19 and PW20 respectively)regarding their alleged sexual exploitation at the hands of the appellant despite the fact that finding of not guilty has attained finality. Both p and s had vividly described as to how the appellant, after persuading them to maintain a joint kitchen, had been able to first make advances and then subject both of them persistently to sexual intercourse. Their evidence drew ample corroboration from the medical opinion given by Dr. Smt. Leela Joshi (PW2) to the effect that each one of them was found to be accustomed to coition. According to the medical expert, she not only referred the girls, apparently aged about 20 and 18 years, to the radiologist for age determination but also advised urine examination for confirmation of ps suspected pregnancy. Dr. R. P. Gupta (PW1)testified that in the ossification tests, age of each one of the prosecutrixs was ascertained as above 19 years. ( 8. ) WHILE dealing with the appeal against conviction under Section 306, the Court is not required to enter into the merits of the reasons for recording finding of not guilty in respect of offence under Section 376 of the IPC. Still, it may be observed that the acquittal of the appellant was not justified in the peculiar facts and circumstances of the case establishing that submission of body by each one of the prosecutrixs, who were residing in his house for a preceding period of nearly 3 years, under fear of being blackmailed could not be construed as their consent for the sexual acts (See. State of H. P. v. Mange Ram AIR 2000 SC 2798 ). State of H. P. v. Mange Ram AIR 2000 SC 2798 ). Further, in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753 , the apex Court had enumerated the reasons to fortify the observation that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as is relevant to the western society. The relevant extract containing reasons applicable to an unmarried prosecutrix may be reproduced as under - " (5) If she is unmarried, she would apprehend all it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family, (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself, (7) The fear of being taunted by others will always haunt her, (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo, (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy, (10) The parents of an unmarried girl. . . . . . . . . , would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour, (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence, (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross-examination by counsel for the culprit, and the risk of being disbelieved, act as a deterrent. " ( 9. ) DEFENCE witness C. S. Sharwate reaffirmed the opinion as recorded in the report (Ex. D-21) that the letter bearing date 22. 06. 1987 was written by p only. Contents of the prosecutrixs joint affidavit-dated 12. 05. 1987 (a photocopy of which was placed on record as Ex. D-7) also suggested that the appellant was being defamed by the members of the rival group as the person responsible for suicidal deaths of their parents. D-21) that the letter bearing date 22. 06. 1987 was written by p only. Contents of the prosecutrixs joint affidavit-dated 12. 05. 1987 (a photocopy of which was placed on record as Ex. D-7) also suggested that the appellant was being defamed by the members of the rival group as the person responsible for suicidal deaths of their parents. However, these documents, which were brought into existence, with a view to exonerating the appellant from penal consequences of the allegations recorded in the dying declaration, further suggested that the prosecutrixs continued to be under his undue influence. The prosecution evidence comprising testimony of the prosecutrixs and supportive medical opinion was, therefore, rightly considered sufficient to establish that the appellant had been persistently subjecting them to sexual exploitation. ( 10. ) COMING to the other evidence on record, it may be seen that both s (PW19) and p (PW20) candidly admitted that at the time when their parents entered into the appellants house, they were sitting on the cot wherein the appellant was lying. They further acknowledged that, at this point of time, their younger brother dharmendra (PW18) was in the bathroom. Although, they denied the fact that while being subjected to sexual intercourse by the appellant, they were lying in the bed in naked condition but, this denial did not assume much significance as their act of sharing a common bed with the appellant, by itself, was apparently more than enough to offend their parents. ( 11. ) s and p categorically asserted that, on being reprimanded by their parents, the appellant started quarreling with them. According to them, in the course of altercation, the appellant also assaulted Kailash. Their younger brothers viz. Rajendra (PW21), the companion of their parents, and Dharmendra (PW18), who further stated that the appellant not only slapped his father repeatedly but had also threatened to get him removed from the Govt. Service and beaten by Hukum and Abdul. Evidence of these progenies of the deceaseds did not suffer from any basic inconsistency. Further, it also drew adequate support from the statements of police officers namely H. S. Dubey (PW14) and G. S. Kushwaha (PW17 ). Service and beaten by Hukum and Abdul. Evidence of these progenies of the deceaseds did not suffer from any basic inconsistency. Further, it also drew adequate support from the statements of police officers namely H. S. Dubey (PW14) and G. S. Kushwaha (PW17 ). They clearly deposed that, on being informed about the quarrel in the house of the appellant, they had proceeded along with police force to the spot but had to return without taking any action as the appellant was able to convince them that it was a domestic matter. The non-corroborative evidence of Aziz Khan (PW6), colleague of the appellant, does not assume any importance. Thus, the prosecution was also able to prove, beyond a reasonable doubt, the factum of quarrel between Kailash and the appellant on the day preceding the suicides. ( 12. ) THE fact that the dying declaration (Ex. P-15) was scribed by kailash and signed by him as well as by his wife Kunti was not seriously disputed. The Handwriting Expert H. S. Tomar (PW16) also opined that the standard handwriting and signatures of Kailash and those of Kunti reflected a common authorship. His report (Ex. P-28)running into 7 pages and the documents examined by him and their photographs marked as Exhibits P-15, P-16, P-17 and P-29 and P-150 were tendered in evidence. This apart, Krishnarao Upadhyay (PW5), the Head Master of Primary School in Rustampur, also came forward to prove that the documents (Ex. P-15 to P-17) were written by Kailash only and this assertion was not challenged in the cross-examination. ( 13. ) TO sum up, the following finding of facts as recorded by learned trial Judge do not suffer from any serious infirmity - (i) The appellant had subjected the prosecutrixs p and s, the unmarried daughters of Kailash and Kunti to persistent sexual exploitation. (ii) On 10. 05. 1987, finding that the appellant indulged in objectionable activities with their daughters, Kailash and kunti not only scolded him but also asked the girls to leave his company but in the course of altercation thus ensued, the appellant also assaulted Kailash. (iii) On being informed about the commotion in the appellants house, the police force arrived there but was sent back by the appellant, who also did not allow kailash and Kunti to take the prosecutrixs along with them. (iv) On the following day only i. e. 11. 05. (iii) On being informed about the commotion in the appellants house, the police force arrived there but was sent back by the appellant, who also did not allow kailash and Kunti to take the prosecutrixs along with them. (iv) On the following day only i. e. 11. 05. 1987, Kailash and kunti committed suicide by consuming dimecrone after signing the dying declaration (Ex. P-15) that was scribed by Kailash only. ( 14. ) REFLECTING all these facts in the dying declaration (Ex. P-15), the declarants had given the following reasons for ending their life (i) They had seen the appellants committing misdeeds with their unmarried daughters who were lying naked in his bed. (ii) As they asked s and p to immediately leave his house, the appellant started (a) quarreling and (b)blustering that being a journalist, he would be able to get them and their son Dharmendra imprisoned as well as beaten by Hukum Pahalwan and Abdul etc. (iii) Had the appellant succeeded in getting Kailash convicted in a criminal case, he would have been dismissed from the Govt. Service. (iv) Being reputed members of the society and persons of self-respect and dignity, they were unable to bear the impact of the mishap and were not in a position to show their faces to the society. (v) The appellant as well as their daughters, who were misled by him only, were responsible for their untimely death. ( 15. ) LEARNED Senior Counsel has strenuously contended that in the light of this factual scenario, the offence of abetment of suicide would not be made out in absence of evidence to indicate that the appellant had taken any positive step to goad or urge forward, provoke, incite or encourage Kailash and Kuntidevi to commit suicide. To buttress the contention, reference has been made to the following decisions - (i) Panchram and Samailal v. State of M. P. 1971 JLJ SN 80 (ii) Vedprakash Tarachand Bhaiji v. State of M. P. 1995 mplj 458 (iii) Deepak Raghunathrao Shohle @ Shole v. State of M. P. 1993 MPLJ 729 (iv) Netai Dutta v. State of W. B AIR 2005 SC 1775 (v) Sohan Raj Sharma v. State of Haryana AIR 2008 SC 2108 ( 16. ) SECTION 107 IPC defines abetment of a thing. ) SECTION 107 IPC defines abetment of a thing. Accordingly, 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. In absence of any allegation as to conspiracy or intentional aiding, the point to be considered is as to whether the appellant instigated Kailash and kunti to commit suicide. ( 17. ) IN Panchram and Samailals case (supra), the only evidence relied upon by the prosecution was that Samailal was in love with another girl and did not desire that his wife (since deceased) should live with him and a single Bench of this Court proceeded to acquit the accused observing that there was absolutely nothing to show as to what, if any, positive steps were taken him to induce his wife to commit suicide whereas in Vedprakashs case (above), it was observed that mere goading to refund or repay the amount advanced as loan would not amount to instigation. Deepaks case (ibid) is cited as an authority on the point that outraging modesty of an unmarried girl would not constitute any positive act to abet suicide. In Netai Duttas case, there was no averment in alleged suicide note that accused had caused any harm to deceased or was in any way responsible for delay in paying salary to him and further no reference of any act or incidence in alleged suicide note whereby accused has committed any wilful act or omission or intentionally aided or instigated deceased in committing act of suicide was made. In such a situation, it was held that it could not be said that accused had in any way instigated deceased to commit suicide or he was responsible for suicide of deceased. In Sohan Rajs case (supra)wife committed suicide after giving poison to her children and leaving a suicide note wherein her husband was described as sexual pervert and impotent person who was trying to defame her. Against this backdrop, it was held that husbands cruel or insulting behaviour cannot be taken to be an act of abetting suicide. ( 18. ) HOWEVER, the facts and circumstances of the case are clearly distinguishable. The dying declaration (Ex. Against this backdrop, it was held that husbands cruel or insulting behaviour cannot be taken to be an act of abetting suicide. ( 18. ) HOWEVER, the facts and circumstances of the case are clearly distinguishable. The dying declaration (Ex. P-15) categorically reflected that the parents of the unmarried girls had taken decision to commit suicide as they were unable to bear the impact of these acts attributable to the appellant (a) exploiting their daughters sexually and not permitting them to leave his company despite their insistence;. (b) intimidating them by giving threats to get them and their son Dharmendra beaten by gangsters namely Hukum and Abdul and also getting kailash convicted on a concocted charge and removed from Govt. Service. The suicide note further projected that the appellant and their daughters s and m had put them in such an embarrassing situation that they had no courage to show their faces to the society. As explained by Brij Lal v. Prem Chand AIR 1989 SC 1661 , as to what would constitute instigation for the commission of an offence would depend upon the facts of each case. Therefore, in order to decide whether a person has abetted by instigation, the commission of an offence or not, the act of abetment has to be judged in the conspectus of the entire evidence on record with reference to contemporary standards of the Indian society. Law does not require instigation to be in a particular form or that it should only be in words. The instigation may be by conduct. Whether there was instigation or not is a question to be decided on the facts of each case. It is not necessary in law for the prosecution to prove that the actual operative cause in the mind of the person abetting was instigation and nothing else, so long as there was instigation and the offence has been committed or the offence would have been committed if the person committing the act had the same knowledge and intention as the abettor. The instigation must be with reference to the thing that was done and not to the thing that was likely to have been done by the person who is instigated. ( 19. ) IN this view of the matter, the act of abetment attributed to the accused/appellant is not to be viewed or tested in isolation. The instigation must be with reference to the thing that was done and not to the thing that was likely to have been done by the person who is instigated. ( 19. ) IN this view of the matter, the act of abetment attributed to the accused/appellant is not to be viewed or tested in isolation. In an identical situation, taking note of the fact that the suicide note clearly referred to the background in which the victim took the extreme step of taking away his own life by committing suicide, the Supreme court Apex Court in Didigam Bikshapathi v. State of A. P. , (2008) 2 SCC 403 , proceeded to distinguish the decision in Netai Duttas on facts. ( 20. ) THIS apart, in a yet another decision rendered in Dammu Sreenu v. State of Andhra Pradesh 2009 AIR SCW 4421, conviction of the accused/appellant who, admittedly, had illicit relations with wife of deceased and had taken her in presence of close relatives of deceased, for the offence of abetment of suicide was held to be justified as there was proximity and nexus between his conduct and behaviour and the suicide. In the instant case also, there was a proximate and live link between the offending acts of the appellant and the suicides in question as the deceaseds were made to understand that any further attempt to extricate their unmarried daughters from the clutches of the appellant would make their life more miserable. Besides this, they had also realized that the police would not take any action against the appellant who happened to be a journalist of repute. ( 21. ) PLACING reliance on the decision of the Supreme Court in sharad Biridhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 , learned Senior Counsel still submitted that learned trial Judge has failed to consider the psychological aspects of the personalities of the deceaseds to find as to whether they had tendency to commit suicide. According to him, the contents and texture of the dying declaration (Ex. P-15) amply suggested that both Kailash and his wife Kunti were extremely distressed and depressed. However, fact of the matter is that nothing could be brought in the cross-examination of their daughters s and p, sons Dharmendra and rajendra and son-in-law Kailashchandra Bhatt that any one of the deceaseds had suffered from propensity to commit suicide. P-15) amply suggested that both Kailash and his wife Kunti were extremely distressed and depressed. However, fact of the matter is that nothing could be brought in the cross-examination of their daughters s and p, sons Dharmendra and rajendra and son-in-law Kailashchandra Bhatt that any one of the deceaseds had suffered from propensity to commit suicide. Further, the contents of the dying declaration clearly indicated that they were in a sound mental condition. ( 22. ) IN the face of overwhelming incriminating evidence on record and the well-settled position of law on the point, learned trial Judge did not commit any illegality in convicting the appellant for the offence of abetment of suicide. Thus, the conviction in question deserves to be maintained. ( 23. ) COMING to the question of sentence, it may be seen that a considerable period of 22 years has elapsed after the incident in question. It is also true that the appellant had gone through the ordeal of a trial and his appeal before this Court that has unfortunately remained pending for a considerable period of time. However, taking into consideration the nature of offence, their magnitude and corresponding social impact, the delay in disposal of the appeal cannot be considered as mitigating circumstance to restrict the term of imprisonment to the period already undergone by the appellant, which is nearly 2 months. Interests of justice would be met if the term of custodial sentence is reduced to 7 years. ( 24. ) IN the result, the appeal is allowed in part. The impugned conviction and consequent sentence of fine passed against the appellant are hereby affirmed. However, the term of the sentence of imprisonment is reduced from 10 years to 7 years. ( 25. ) APPELLANT is on bail. He is directed to surrender to his bail bonds before the trial Court on or before 17. 11. 2009 for being committed to custody for undergoing remaining part of the sentence. Appeal partly allowed.