JUDGMENT (Prayer: Criminal Appeal filed u/s.374 of the Code of Criminal Procedure against the judgment dated 22.01.2016 passed by Sessions Judge, Fast Track Mahila Court, Nagapattinam, in S.C.No.101 of 2015.) 1. This Criminal Appeal has been filed against the judgment and order passed in S.C.No.101 of 2015 by the Sessions Judge (Fast Track Mahila Court), Nagapattinam, dated 22.01.2016, convicting the appellants for offence u/s.306 IPC and sentencing each of them to undergo 7 years rigorous imprisonment and to pay fine of Rs.5,000/-, in default, to undergo one year rigorous imprisonment. 2. The case of the prosecution is that 2.1. The appellants herein [A1 and A2] are husband and wife. The deceased Geetha was living in the opposite house along with her children [PWs.3 and 7]. There seems to be a long standing dispute between A2 and deceased since A2 suspected that the deceased Geetha had an illicit intimacy with her husband A1. Hence, on many occasions, A2 seems to have abused deceased Geetha in this regard. On 29.12.2013, at about 08.00 p.m., A2 seems to have abused deceased Geetha in filthy language and A1 was also present when this incident took place. Ultimately, both of them asked deceased Geetha to go and die rather than live a life like this. The deceased Geetha poured kerosene on herself and set herself on fire. 2.2. This news reached the brother of the deceased [PW-1], who immediately took steps to take the deceased Geetha in 108 ambulance to Government hospital at Mayiladuthurai. At that point of time, the deceased Geetha had told PW-1 as to how she was abused by the accused persons and why she resorted to take the extreme step. The deceased Geetha was referred to Medical College Hospital, Thanjavur, for further treatment. 2.3. PW-5, doctor, gave first aid treatment to the deceased Geetha at Government hospital, Mayiladuthurai. Ex.P3 is the Accident Register, which was prepared by PW-5. The doctor has stated that the deceased Geetha suffered 75% burn injuries and she referred the deceased for further treatment to the Government College and Hospital at Thiruvarur. 2.4. When the deceased Geetha was given treatment at Government hospital, Mayiladuthurai, a requisition was sent to the Judicial Magistrate to record the dying declaration. On receipt of the information, the Judicial Magistrate [PW-4] came to the hospital and recorded the dying declaration. 2.4. When the deceased Geetha was given treatment at Government hospital, Mayiladuthurai, a requisition was sent to the Judicial Magistrate to record the dying declaration. On receipt of the information, the Judicial Magistrate [PW-4] came to the hospital and recorded the dying declaration. Before proceeding to record the dying declaration, one Dr.R.Mahendran certified the mental status of the deceased and he found the deceased to be in a fit state of mind to give the declaration. That apart, PW-4 also assessed the mental status of the deceased and proceeded to record the dying declaration. The dying declaration has been marked as Ex.P2 and the relevant portion in the dying declaration recorded by PW-4 is extracted hereunder: 2.5. The police was informed about this incident and hence, statement of the deceased Geetha, in the nature of a dying declaration was recorded by PW-13 and this statement was marked as Ex.P6. Based on this statement, a First Information Report [Ex.P7] was registered in Crime No.224 of 2013 on 30.12.2013 at about 08.00 a.m. (the date of First Information Report has been wrongly mentioned as 29.12.2013). 2.6. The investigation was taken up by PW-14, Sub-Inspector of Police and he went to the scene of crime and prepared the observation mahazar marked as Ex.P4 and the rough sketch marked as Ex.P8. He also recorded the statement of the deceased u/s.161(3) Cr.P.C. and this statement was marked as Ex.P9. Since it was in the nature of a dying declaration, this statement was taken as the third dying declaration of the deceased Geetha. PW-14 also recorded the statements of witnesses, who were present at the time of preparation of observation mahazar and inquest report. Thereafter, PW-14 handed over the case dairy to PW-15, Inspector of Police, for further investigation. 2.7. The deceased Geetha died on 02.01.2014 at about 09.00 a.m. when she was under treatment at Thanjavur Medical College and Hospital. PW-15, on receiving this information, prepared an alteration report marked as Ex.P10 and altered the offence to one u/s.306 IPC. PW-15, thereafter, went to the Thanjavur Medical College and Hospital and conducted inquest in the presence of Pachayatdhars between 02.00 p.m. and 04.00 p.m. The inquest report, prepared by PW-15, was marked as Ex.P11. Thereafter, PW-15 recorded the statements of witnesses u/s.161(3) Cr.P.C. The dead body of the deceased was sent for postmortem and the postmortem was conducted by PW-8, doctor. Thereafter, PW-15 recorded the statements of witnesses u/s.161(3) Cr.P.C. The dead body of the deceased was sent for postmortem and the postmortem was conducted by PW-8, doctor. The postmortem report was marked as Ex.P5. The findings in the postmortem report are extracted hereunder: ''Infected burns seen all over the body, except patchy area over face, right forearm, right thigh and leg and both foot. Base of burnt area red in colour. Some of burnt area appear green colour pus material. Partial singeing of eye brow, eye lashes, Axillary & pubic hair. OTHER FINDINGS: Heart: Normal, Coronary vessels: patent. Hyoid bone: Intact. Stomach: Contains 100ml of yellow colour fluid. No specific smell, mucosa - pale. Lungs, Liver, Spleen, Kidneys & Brain: Normal, c/s pale. Small Intestine: contains 20ml of bile stained fluid. No specific smell, mucosa - pale. Bladder: Contains 10ml of urine. Uterus: Normal, c/s empty. Spinal column: Intact.'' 2.8. PW-8, doctor, also gave a final opinion to the effect that the deceased would appear to have died due to complications of burns. 2.9. PW-15, Investigation Officer, thereafter collected necessary reports and ultimately, the final report came to be laid before the Judicial Magistrate, Sirkazhi. The copies were served on the appellants u/s.207 Cr.P.C. The case was committed u/s.209 Cr.P.C. and it was made over to the Court below. 2.10. The Court below framed charges against A1 for offence u/s.306 IPC and as against A2 for offences u/s.306 and 294(b) IPC. The prosecution examined PWs.1 to 15 and marked Exs.P1 to P11. The incriminating evidence that was gathered during the course of trial was put to the appellants when they were questioned u/s.313(1)(b) Cr.P.C. and they denied the same as false. 2.11. The Court below, on considering the facts and circumstances and on appreciation of the oral and documentary evidence came to a conclusion that the prosecution has made out the case beyond reasonable doubts against the appellants u/s.306 IPC and accordingly, convicted and sentenced them as stated above. A2 was acquitted from the charge u/s.294(b) IPC. Aggrieved by the same, the present appeal has been filed before this Court. 3. Heard Mr.K.M.Subrahmaniam, learned counsel for appellants and Mr.L.Baskaran, learned Government Advocate [Crl.side], appearing for respondent. 4. It was brought to the notice of this Court that the first appellant (A1) died on 05.04.2019 and a death certificate was also produced before this Court. Aggrieved by the same, the present appeal has been filed before this Court. 3. Heard Mr.K.M.Subrahmaniam, learned counsel for appellants and Mr.L.Baskaran, learned Government Advocate [Crl.side], appearing for respondent. 4. It was brought to the notice of this Court that the first appellant (A1) died on 05.04.2019 and a death certificate was also produced before this Court. A petition was filed by the second appellant (A2) seeking for leave to prosecute the appeal in the place of A1 also since A1 was employed in the Electricity Board and if ultimately, the criminal appeal is closed as abated as against A1, the attendant benefits will not be paid by the Electricity Board. The delay in filing the petition seeking for leave was condoned by an order dated 17.02.2020 in Crl.M.P.No.1526 of 2020. The petition seeking for leave was numbered as Crl.M.P.No.3470 of 2023 and the same was also allowed by this Court in the course of hearing of this criminal appeal today. 5. This Court has carefully considered the submissions made on either side and the materials available on record. 6. The important evidence that is available before the Court is the dying declaration of deceased Geetha made before the Judicial Magistrate [PW-4], which was marked as Ex.P2. The dying declaration that was made by the deceased has already been extracted supra. 7. Learned counsel for appellants attacked the dying declaration mainly on the ground that there is absolutely no evidence to show that the deceased was in a fit state of mind to give such a dying declaration. Learned counsel also pointed out to the fact that one doctor R.Mahendran had certified that the deceased was in a fit state of mind, but, however, this doctor was not even examined. 8. In the considered view of this Court, the dying declaration was taken by a Judicial Magistrate. While recording the dying declaration apart from getting the certificate from the doctor, the Judicial Magistrate has also put questions to satisfy himself that the deceased was in a fit state of mind to give the dying declaration. In view of the same, the dying declaration that was recorded by PW-4 cannot be disregarded just because the doctor has not been examined as a witness. In view of the same, the dying declaration that was recorded by PW-4 can be acted upon by this Court. In view of the same, the dying declaration that was recorded by PW-4 cannot be disregarded just because the doctor has not been examined as a witness. In view of the same, the dying declaration that was recorded by PW-4 can be acted upon by this Court. The recording of the dying declaration commenced at about 10.15 p.m. on 29.12.2013 and it was completed at about 10.25 p.m. This dying declaration took place when the deceased was at the Government Hospital, Mayiladuthurai. 9. On carefully going through the dying declaration, it is seen that there was a subsisting dispute between A2 and deceased and A2 seems to have suspected the deceased to have an illicit intimacy with her husband (A1). This has been spoken to by the deceased and the deceased took the extreme step of committing suicide by self-immolation after the last incident that took place on 29.12.2013 at 08.00 p.m. when she was said to have been abused by A2. 10. The next important document to be taken into consideration is Ex.P6, which was the statement recorded by PW-13, which was the basis for registration of the First Information Report. The statement that was recorded was also considered to be a dying declaration and in the considered view of this Court, it is almost in line with the earlier dying declaration except for the fact that it has been mentioned therein that A1 did not stop A2 from making such allegations and warn her. 11. Apart from the above two exhibits, it is also relevant to take note of the evidences of PW-3/daughter of deceased and PW-7/son of deceased and PWs.9 and 10, who are independent witnesses, examined on the side of the prosecution. 12. It is evident from the deposition of PWs.3 and 7 that there was a long standing dispute between A2 and the deceased Geetha since she suspected the deceased to have an illicit relationship with her husband (A1). These two witnesses state that A2 regularly used to shout at the deceased and ultimately, on 29.12.2013, at about 08.00 p.m., A2 once again started abusing the deceased Geetha which led to the deceased taking the extreme step of committing self-immolation. 13. The prosecution has also examined PWs.9 and 10, who are said to be masons by profession. These two witnesses state that A2 regularly used to shout at the deceased and ultimately, on 29.12.2013, at about 08.00 p.m., A2 once again started abusing the deceased Geetha which led to the deceased taking the extreme step of committing self-immolation. 13. The prosecution has also examined PWs.9 and 10, who are said to be masons by profession. They have deposed to the effect that they were working as masons in the house of one Jayakumar and they saw A2 abusing the deceased in filthy language and ultimately, they also found the deceased engulfed with fire after the incident. 14. PW-1 is the brother of the deceased and he has stated that he heard about this news through a telephonic message and he immediately rushed to the house of the deceased and made arrangements to send the deceased Geetha in an ambulance. The evidence of PW-1 is more in the nature of what deceased Geetha had told him and he is not a direct witness. 15. PW-2 is the sister of the deceased and she also has deposed in line with what was stated by PW-1 and it was PW-1, who informed about the incident to PW-2. 16. In the considered view of this Court, the evidence available on record does not really make out a case as against A1. The main allegation was that A2 was abusing the deceased Geetha stating that she is having an illicit intimacy with A1. Just because A1 did not question A2 when she abused deceased Geetha or that he was also present at the time when A2 abused Geetha, that by itself will not make out an offence u/s.306 IPC since the ingredients of abetment of suicide u/s.107 IPC has not been satisfied. A1 has been roped in this case by the prosecution more on the ground that he was the reason behind the misunderstanding between deceased Geetha and A2. Apart from that, there are no strong materials to really convict A1 for the offence u/s.306 IPC. 17. Insofar as A2 is concerned, this Court must see whether the overtact that has been attributed against A2 will satisfy the ingredients of Section 306 IPC. Apart from that, there are no strong materials to really convict A1 for the offence u/s.306 IPC. 17. Insofar as A2 is concerned, this Court must see whether the overtact that has been attributed against A2 will satisfy the ingredients of Section 306 IPC. On an overall consideration of the materials available on record, there is no doubt that A2 had a misunderstanding with the deceased since she suspected that the deceased was having an illicit intimacy with A1, who is none other than her husband. Hence, the fact that she used to shout at the deceased Geetha, which has been spoken to by PWs.3 and 7, are natural and there is no scope to disbelieve the same. 18. To constitute an offence u/s.306 IPC, the following ingredients must be satisfied and they are: a. abetment; b. intention of the accused person to aid or instigate or abet the deceased to commit suicide. 19. The Apex Court in M.Arjunan v. State represented by Inspector of Police [ 2019 (3) SCC 315 ] after taking into consideration the earlier judgments has held that the act of the accused, however, insulting the deceased by abusive language will not, by itself, constitute abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. There must be evidence to show that there was a direct or indirect act/acts of incitement to the commission of suicide. Whether a person has abetted in the commission of suicide by another or not could only be gathered from the facts and circumstances of each case. The consideration for reaching a conclusion would be to see if the accused person had instigated which may involve an act of goading, provoking, inciting or encouraging to do the act of suicide. A Court must also be very vigilant to see if the person, who had committed suicide had been hyper sensitive or that the action of the accused is otherwise not ordinarily expected to induce a similarly placed person to commit suicide. In short, the accused by his acts and by his course of conduct must create a situation which must lead the deceased with no option except to commit suicide. This may happen if the accused plays an active role in tarnishing the self-esteem and self-respect of the victim, which ultimately/eventually draws the victim to commit suicide. In short, the accused by his acts and by his course of conduct must create a situation which must lead the deceased with no option except to commit suicide. This may happen if the accused plays an active role in tarnishing the self-esteem and self-respect of the victim, which ultimately/eventually draws the victim to commit suicide. The mens rea on the part of the accused in such cases would be examined with reference to actual acts and deeds of the accused and the acts and deeds are of such a nature where the accused intended that the same will drive the deceased to commit suicide. 20. In the instant case, as already pointed out by this Court, A2 had suspected the deceased Geetha to have an illicit intimacy with her husband (A1). If a married woman gets such an impression and the suspicion gets stronger, not all women react in a matured manner. In many cases, they loose their control and start hurling abuses. Sometimes, in a spur of the moment, it is also possible that they may utter words to the effect that the deceased must go and die and should not live. All these are words, which are more in the nature of an outpour due to anger and frustration since the concerned woman suspects that her husband is having an illicit intimacy with another. Under such circumstances, all those words that are uttered by an angry woman may be abusive and insulting. However, that by itself, will not constitute abetment of suicide. 21. To understand the facts of the case in a more proper manner, let us take a hypothetical case and compare it to the facts of the present case. Let us take a case where a woman starts accusing the woman in the opposite house with loose character. If this woman does this act continuously and pushes the woman living in the opposite house to the corner and thereby tarnishes her self-esteem and self-respect, the acts and deeds of the accused woman will clearly reflect mens rea and if in this case, the woman in the opposite house takes the extreme step of committing suicide, the continuous course of conduct of the accused woman, which drove the woman living in the opposite house to commit suicide, will satisfy the ingredients of abetment of suicide u/s.306 IPC. 22. 22. This Court wanted to come up with the above hypothetical case to demonstrate as to how the hurling of abusive words which are also insulting differs when A2 was indulging in such a conduct suspecting that the deceased was having an illicit relationship with her husband (A1) and as to how the very same conduct when done to the woman in the opposite house without any basis and only with an intention of tarnishing the self-esteem and self-respect of the victim, driving such a woman to commit suicide will not constitute an offence. The question of mens rea on the part of the accused can be clearly differentiated from the one that is apparent in the hypothetical case narrated in the previous paragraph and how that mens rea is lacking when the very same abusive and insulting words were used by A2 in the facts of the present case. 23. In the light of the above discussion, this Court holds that the act of A2 in abusing/accusing the deceased Geetha, by itself will not constitute an offence of abetment of suicide u/s.306 IPC since such abuse was made by A2 not to instigate the deceased Geetha to commit suicide but only to ventilate her grievance that her husband (A1) was having an illicit intimacy with the deceased Geetha. This crucial aspect was not taken note of by the Court below and the Court below went by the dying declaration and the evidences of PWs.3, 7, 9 and 10 and came to the conclusion that offence u/s.306 IPC has been made out. This finding of the Court below requires the interference of this Court. 24. In the result, the judgment and order passed in S.C.No.101 of 2015 by the Sessions Judge (Fast Track Mahila Court), Nagapattinam, dated 22.01.2016, is hereby set aside and the appellants are acquitted from the charge u/s.306 IPC. Insofar as A2 is concerned, bail bonds, if any executed, shall stand cancelled and fine amount, if any paid, shall be refunded. Accordingly, this Criminal Appeal stands allowed.