Research › Search › Judgment

Gujarat High Court · body

2023 DIGILAW 873 (GUJ)

Ashokbhai Popatbhai Koladra v. State of Gujarat

2023-07-18

HEMANT M.PRACHCHHAK

body2023
JUDGMENT : HEMANT M. PRACHCHHAK, J. 1. The present appeal is filed by the appellant-original accused under Section 374 of the Code of Criminal Procedure, 1973, (for short “the Cr.P.C.”) against the judgment and order of conviction and sentence dated 16/12/2004 passed by the learned Additional Sessions Judge, Fast Track Court No. 6, Bhavnagar in Sessions Case No. 160 of 2003, whereby, the learned Sessions Judge has convicted the appellant herein for the offence punishable under Section 498A of the Indian Penal Code (for short “the IPC”) and sentenced to undergo rigorous imprisonment for a period of 3 years and imposed fine of Rs.500/- in default of payment of fine, to undergo further 2 months’ simple imprisonment. The appellant was also convicted for the offence punishable under Section 306 of the IPC and sentenced to undergo rigorous imprisonment for 5 years and imposed fine of Rs.1,000/- in default of payment of fine, to undergo further 4 months’ simple imprisonment. 2. The brief facts giving rise to the present appeal are that, the daughter of the complainant namely, Ilaben was married with the accused before 4 years of the incident. After marriage, Ilaben (deceased) was residing with the accused in a joint family and out of the wed-lock, they had two children, one son and one daughter. It is the case of the prosecution that, after 3 months of the marriage, the deceased told her mother that the appellant is of suspicious nature and does not like the deceased talking with others and the appellant is also quarreling with the deceased. It is also alleged that the appellant was doubting about the character of the deceased and was passing sarcastic comments on the deceased. It is also the case of the prosecution that, prior to one and half month of the incident, when the complainant came to know that there was a quarrel at the matrimonial house of deceased Ilaben, the complainant went to the matrimonial house of the deceased and took Ilaben and the appellant. Thereafter, about a month later, the mother-in-law of the deceased came to the house of the complainant and assured the complainant that there would not be any quarrel in her house. Therefore, the complainant sent Ilaben to her matrimonial house. Thereafter, about a month later, the mother-in-law of the deceased came to the house of the complainant and assured the complainant that there would not be any quarrel in her house. Therefore, the complainant sent Ilaben to her matrimonial house. It is further the case of the prosecution that, on 21.06.2003, the complainant came to know that his daughter has received severe burn injuries and admitted in the hospital. But, when the complainant reached at the hospital, the deceased had died and the dead-body was taken for post-mortem. At that time, the wife of the complainant, sister-in-law of the complainant and son of the complainant were present at the hospital. It is the case of the prosecution that, because of the harassment, the deceased had committed suicide. 2.1 The complaint was filed and thereafter, the Investigating Agency carried out the investigation and had arrested the appellant. The prosecution led the evidence and examined 9 witnesses and also produced some documentary evidence to prove its case. Upon giving closure purshish, the Sessions Court recorded the statement of the appellant as prescribed under Section 313 of the Cr.P.C. and the appellant took the defence of complete denial. 2.2 After examination of the witnesses in detail and after considering the documentary evidence and after hearing arguments advanced by both the sides, the learned Sessions Judge has passed the impugned order of conviction convicting the appellant for the offences as mentioned hereinabove. 2.3 Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction, the appellant-original accused has filed the present appeal under Section 374 of the Code of Criminal Procedure, 1973. 3. Heard Mr. Shivang M. Shah, the learned counsel appearing on behalf of Mr. Darshil S. Shah, the learned counsel for the appellant and Ms. Maithili D. Mehta, the learned APP appearing for the respondent-State of Gujarat. 4. Mr. Shah, the learned advocate for the appellant has raised contention that the learned Sessions Judge has not properly appreciated the evidence led by the prosecution and thereby committed an error while passing the impugned judgment and order of conviction and sentence. It was further contended by the learned advocate Mr. Shah that there was no material on record and the evidence came forth with regard to the ill-treatment meted out to the deceased as alleged and charged against the present appellant. Mr. It was further contended by the learned advocate Mr. Shah that there was no material on record and the evidence came forth with regard to the ill-treatment meted out to the deceased as alleged and charged against the present appellant. Mr. Shah has further contended that from the bare perusal of the evidence led by the prosecution, no case is made out against the appellant with regard to abetment of the crime of commission of suicide by the wife of the appellant and, therefore, the learned Sessions Judge has committed an error while appreciating the evidence in its true and proper spirit and, therefore, the impugned judgment and order of conviction is against the settled legal principles of law. Mr. Shah has further contended that the appellant also sustained burn injuries while saving her wife, meaning thereby that the appellant had tried to save his wife and the doctor has also deposed in the medical certificate that the appellant sustained burn injuries at the time of saving his wife, however, this fact was not taken into consideration by the learned Sessions Judge while passing the impugned judgment and order of conviction. He, therefore, urges before the Court that the impugned judgment and order of conviction be quashed and set aside and the appellant be acquitted from the charges levelled against him. 4.1 Learned advocate Mr. Shah has referred to and relied upon the following decisions in support of his submissions: (1) Kishori Lal vs. State of U.P. (2007) 10 SCC 797 (2) Jagdishraj Khatta vs. State of Himachal Pradesh, Criminal Appeal Nos. 539-540 of 2008, decided on April 26, 2019 (3) S.S. Chheena vs. Vijay Kumar Mahajan and Others, (2010) 12 SCC 190 (4) Gurcharan Singh vs. State of Punjab, (2020) 10 SCC 200 (5) M. Arjunan vs. The State, (2019) 3 SCC 315 (6) Mariano Anto Bruno vs. The Inspector of Police, 2022 Live Law (SC) 834 5. As against that, Ms. Maithili Mehta, the learned APP appearing for the respondent-State has opposed the present appeal and submitted that the learned Sessions Judge has rightly appreciated the evidence of the mother, brother and sister of the deceased and the evidence of the Investigating Officer in its true and proper spirit while passing the impugned judgment and order of conviction. Ms. Maithili Mehta, the learned APP appearing for the respondent-State has opposed the present appeal and submitted that the learned Sessions Judge has rightly appreciated the evidence of the mother, brother and sister of the deceased and the evidence of the Investigating Officer in its true and proper spirit while passing the impugned judgment and order of conviction. Ms. Mehta further submitted that the prosecution has sufficiently proved the case against the appellant accused by leading cogent and material evidence before the learned Sessions Judge and, therefore, there is no illegality or any perversity found in the impugned order of conviction and sentence. Learned APP Ms. Mehta has drawn the attention of this Court to the deposition of the mother of the deceased who has supported the case of the prosecution and submitted that the learned Sessions Court has rightly considered the deposition of the mother of the deceased who has supported the version made in the FIR through her evidence before the learned Sessions Court on oath and the same cannot be discarded and, therefore, the learned Sessions Judge has rightly appreciated the evidence of the witnesses and convicted the present appellant. She, therefore, submitted that no interference is required to be called for in the present appeal and the present appeal be dismissed and the impugned judgment and order of conviction be confirmed. 6. I have heard the learned advocate appearing for the respective parties and perused the material placed on record. After going through the depositions of the witnesses in detail and the record and proceedings of the learned Sessions Court, I have framed these questions for determination by referring to and relying upon the evidence recorded by the learned Trial Court: (1) Whether the impugned judgment and order of conviction passed by the learned Trial Court suffers from any illegality or any erroneous findings are recorded or not? (2) Whether prosecution has proved the charge against the present appellant beyond reasonable doubt or not? (3) Whether the learned Trial Judge has committed any error while passing the impugned judgment and order by appreciating the evidence come forth and led by the prosecution or not? 7. (2) Whether prosecution has proved the charge against the present appellant beyond reasonable doubt or not? (3) Whether the learned Trial Judge has committed any error while passing the impugned judgment and order by appreciating the evidence come forth and led by the prosecution or not? 7. I answer accordingly: 7.1 While re-appreciating the evidence of the prosecution witnesses and while minutely going through the depositions of the witnesses, it appears that neither of the witnesses have stated with regard to the ill-treatment nor any cruelty by physical or mental torture meted out to the deceased out of the wed-lock. On the contrary, PW-1-Laljibhai Gagjibhai, the father of the deceased (Exh.13), has not support the case of the prosecution and was declared hostile. In his cross- examination also, no any illicit material came on record with regard to any ill-treatment or any physical or mental torture meted out to the deceased by the appellant which leads to commit suicide by abetting the crime in question. Even from the evidence of the PW-2-Babuben Laljibhai, the mother of the deceased (Exh.25), who is the natural witness to the incident, before whom the deceased used to disclose her day- in and day-out activities and share her circumstances in all manner, from her cross-examination also, the fact reveals that the complaint is filed after one and half days from the actual time of incident. In her cross-examination, she has clearly stated on oath before the Court that they had not registered any complaint with regard to any ill-treatment or mental or physical torture prior in point of time of registration of the present FIR. Even they had not raised their voice against the present appellant or any family members of the appellant before their community leader (Gnati Panch). She has also further admitted in her cross-examination that though there was a dispute with regard to living with the mother-in-law at Botad instead of village Lakhiyani, which is the village of the present appellant, the dispute had taken place between husband and wife. Even 10 days before the alleged incident, the appellant and the deceased were residing together at the parental house of the deceased at Botad and thereafter, the mother-in-law of the deceased came and took the deceased and her son at village Lakhiyani and within 10 days, the deceased committed suicide by pouring kerosene on herself. Even 10 days before the alleged incident, the appellant and the deceased were residing together at the parental house of the deceased at Botad and thereafter, the mother-in-law of the deceased came and took the deceased and her son at village Lakhiyani and within 10 days, the deceased committed suicide by pouring kerosene on herself. With regard to other allegations alleged in the FIR and in the deposition, there is no evidence to the effect that there is any ill-treatment or any cruelty meted out to the deceased on account of the suspicion made against the deceased by the present appellant. 7.2 Even from the evidence of PW-3-Nareshbhai Laljibhai, the brother of the deceased (Exh.26), nothing has come out against the present appellant with regard to any ill-treatment or any cruelty or any mental and physical torture meted out to the deceased. Infact, this witness has admitted in his cross- examination as under: “It is true that my relatives had suggested my father that we should file complaint in this regard.” So from the evidence of the brother of the deceased, it reveals that the present FIR was registered at the instance of their relatives and the same was also registered on the next day of the alleged incident, otherwise, they had not filed any FIR and after considering the advice of the relatives and other family members, the present FIR was filed by the complainant being father of the deceased in consultation with their relatives. Thus, from the evidence of this witness, it is crystal clear that the allegations made against the present appellant is at the behest of advice of somebody else, otherwise there are no allegations with regard to any cruelty or mental or physical torture meted out to the deceased by the appellant. 7.3 PW-5-Hansaben Nathubhai, sister of the deceased (Exh.31), has also in her deposition categorically stated that prior to the date of incident, the deceased and the present appellant were residing together at the parental house of the deceased at Botad. Even on earlier occasions, as and when she had an occasion to meet the deceased, the deceased had never informed about any ill-treatment or mental or physical torture meted out to her. Even on earlier occasions, as and when she had an occasion to meet the deceased, the deceased had never informed about any ill-treatment or mental or physical torture meted out to her. Infact, prior thereto, the deceased had stayed at her parental house at Botad for about 8 months on account of some dispute between husband and wife and after persuasion by the family members of the appellant husband, she had returned to matrimonial house and again, prior to the alleged incident, both had resided together at Botad for about 15 days. So during that period, no complaint was made by the deceased to the complainant or any other family members with regard to any ill-treatment or mental or physical torture on account of suspicion raised by the appellant and, therefore, from the bare perusal of the evidence of all these near relatives also, it is crystal clear that there was no any ill-treatment or any physical or mental torture meted out to the deceased by the present appellant. The fact also reveals that the appellant had also sustained burn injuries while saving the deceased and he was also admitted in the hospital. Thus, there is no reason to draw the presumption against the present appellant. The said fact also comes in the history recorded by the doctor at Exh.46, the certificate issued by the Government Hospital with regard to the injury received by the appellant, wherein, it was mentioned that while saving her wife, he received these burn injuries and for that the witness namely, Nareshbhai has also confirmed the said fact that while saving the deceased, the appellant has also sustained burn injuries and was admitted in the hospital and at the same time, the deceased was also taking treatment. 7.4 Thus, while passing the impugned judgment and order, the learned Trial Court has ignored the said aspect while going through the evidence of the witnesses and therefore, in my opinion, the learned Trial Judge has committed an error while passing the impugned judgment and order convicting the present appellant. 7.4 Thus, while passing the impugned judgment and order, the learned Trial Court has ignored the said aspect while going through the evidence of the witnesses and therefore, in my opinion, the learned Trial Judge has committed an error while passing the impugned judgment and order convicting the present appellant. I have gone through the depositions and the record and proceedings of the learned Trial Court and while examining the evidence in detail, I have come across the fact that none of the near relatives and witnesses have stated with regard to any ill-treatment or any cruelty meted out to the deceased on account of suspicion raised by the appellant as alleged in the FIR. Infact, the witnesses have categorically admitted in their evidence that neither they had filed any complaint prior to the date of incident with regard to any ill- treatment or any physical or mental torture meted out to the deceased nor they had raised any dispute before their community leader. Infact, the brother of the deceased (PW-3) has clearly admitted in his cross-examination, as mentioned hereinabove that, the present FIR was registered only after consultation and advice of the near relatives after a period of about 35 hours from the alleged incident and all these facts were not controverted and therefore, the learned Trial Judge ought to have appreciated the evidence in its true and proper spirit and thereby the learned Trial Judge has committed an error while passing the impugned judgment and order of conviction against the present appellant. 8. It is worthwhile to refer to the decision of the Hon’ble Apex Court in the case of Kishori Lal vs. State of U.P. (2007) 10 SCC 797 , wherein the Hon’ble Apex Court has held and observed in paragraphs no. 5, 6 and 7 as under: “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. 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 vs. 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.” 8.1 In case of Jagdishraj Khatta vs. State of Himachal Pradesh, Criminal Appeal Nos. 539-540 of 2008, decided on April 26, 2019, wherein the Hon’ble Apex Court has held and observed in paragraph no. 8 as under: “8. With respect to the former, we are unable to agree with the reasoning of the High Court in relying on the testimonies of the relatives of the deceased. 539-540 of 2008, decided on April 26, 2019, wherein the Hon’ble Apex Court has held and observed in paragraph no. 8 as under: “8. With respect to the former, we are unable to agree with the reasoning of the High Court in relying on the testimonies of the relatives of the deceased. As highlighted by the Trial Court, not only were the allegations in the FIR extremely general in nature, but also the same were never raised by the family of the deceased when they were present at the time of preparation of the inquest report or to the investigating officer. In fact, the allegation of cruelty meted out by the appellant against the deceased appears for the first time at the time of filing the FIR, after a delay of nearly one and a half days. Further, the prosecution did not even examine any neighbor of the appellant and the deceased to substantiate the allegation that the appellant ill treated the deceased. In fact, and as the High Court also recorded, it appears from the evidence on record that the appellant treated the deceased with love and affection and provided for all her needs. In these circumstances, a reliance on the general oral testimonies of the prosecution witnesses, without any supporting evidence, would be misplaced. Further, as the High Court itself indicated somewhat contradictorily, reliance on the instances testified to by the witnesses would not be appropriate as the said incidents had taken place much before the deceased’s death and could not be treated as conduct which drove the deceased to commit suicide.” 8.2 In case of S.S. Chheena vs. Vijay Kumar Mahajan and Others, (2010) 12 SCC 190 , wherein the Hon’ble Apex Court has held and observed in paragraphs no. 16, 17, 18, 19, 20, 21 and 23 as under: “16. In order to properly comprehend the scope and ambit of Section 306 IPC, it is important to carefully examine the basic ingredients of Section 306 IPC. The said section is reproduced as under: “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.” 17. The said section is reproduced as under: “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.” 17. The word “suicide” in itself is nowhere defined in the Penal Code, however its meaning and import is well known and requires no explanation. “Sui” means “self” and “cide” means “killing”, thus implying an act of self-killing. In short, a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself. 18. Suicide by itself is not an offence under either English or Indian criminal law, though at one time it was a felony in England. In England, the former law was of the nature of being a deterrent to people as it provided penalties of two types: (i) Degradation of corpse of the deceased by burying it on the highway with a stake through its chest. (ii) Forfeiture of property of the deceased by the State. 19. This penalty was later distilled down to merely not providing a full Christian burial, unless the deceased could be proved to be of unsound mind. However, currently there is no punishment for suicide after the enactment of the Suicide Act, 1961 which proclaims that the rule of law whereby it was a crime for a person to commit suicide has been abrogated. 20. In our country, while suicide in itself is not an offence, considering that the successful offender is beyond the reach of law, attempt to suicide is an offence under Section 309 IPC. 21. “Abetment” has been defined under Section 107 of the Code. We deem it appropriate to reproduce Section 107, which reads as under: “107. Abetment of a thing - A person abets the doing of a thing, who: First - Instigates any person to do that thing. 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. 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. Thirdly - Intentionally aids, by any act or illegal omission, the doing of that thing.” Explanation 2 which has been inserted along with Section 107 reads as under: “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 facilitates the commission thereof, is said to aid the doing of that act.” 23. The Court on the aforementioned allegations came to a definite conclusion that by no stretch the ingredients of abetment are attracted on the statement of the deceased. According to the appellant, the conviction of the appellant under Section 306 IPC merely on the basis of the aforementioned allegation of harassment of the deceased is unsustainable in law.” 8.3 In case of Gurcharan Singh vs. State of Punjab, (2020) 10 SCC 200 , wherein the Hon’ble Apex Court has held and observed in paragraphs no. 10 to 17 as under: “10. The submissions of the learned Counsel have been considered. In order to give the finding of abetment under section 107 IPC, the accused should instigate a person either by act of omission or commission and only then, a case of abetment is made out. In the present case however, there is no direct evidence of cruelty against the husband or the in-laws. There is nothing on record to show which particular hope or expectation of the deceased was frustrated by the husband. Evidence is also lacking on wilful neglect of the appellant, which led to the suicidal death. Whereas contrary evidence is available to suggest that care and treatment was given to the deceased in the matrimonial home and in the hospital, and during the three years of marriage, there was no instance of maltreatment, attributable to dowry demand. The demand of Rs. 20,000/- for purchase of a plot (in front of the residence which might have incidentally become available for sale just at that time), after three years of marriage, was ruled out by the trial Court as the possible cause for the suicidal death. The demand of Rs. 20,000/- for purchase of a plot (in front of the residence which might have incidentally become available for sale just at that time), after three years of marriage, was ruled out by the trial Court as the possible cause for the suicidal death. In any case, PW2 stated that this sum was a “cash loan” asked for buying the plot. Thus, a loan may have been sought by the accused which could not be given. But there is nothing to show that the deceased was harassed on this count, in the matrimonial home. In the face of such material, it is difficult to conclude that Shinder Kaur was pushed to commit suicide by the circumstances or atmosphere created by the appellant. 11. Insofar as the possible reason for a young married lady with two minor children committing suicide, in the absence of evidence, conjectures cannot be drawn that she was pushed to take her life, by the circumstances and atmosphere in the matrimonial home. What might have been the level of expectation of the deceased from her husband and in-laws and the degree of her frustration, if any, is not found through any evidence on record. More significantly, wilful negligence by the husband could not be shown by the prosecution. 12. It must also be noted that both children born to deceased are being brought up by the appellant’s family ever since the death of the mother on 12.8.1997. The maternal grandparents, even while pointing fingers against the accused, never raised any issue on their grandchildren being brought up in the home where their daughter died an unnatural death. 13. Section 107 IPC defines “abetment” and in this case, the following part of the section will bear consideration: “107. Abetment of a thing-A person abets the doing of a thing, who-First-Instigates any person to do that thing: *** *** *** *** *** Thirdly - Intentionally aids, by any act or illegal omission, the doing of that thing.” 14. The definition quoted above makes it clear that whenever a person instigates or intentionally aids by any act or illegal omission, the doing of a thing, a person can be said to have abetted in doing that thing. 15. As in all crimes, mens rea has to be established. The definition quoted above makes it clear that whenever a person instigates or intentionally aids by any act or illegal omission, the doing of a thing, a person can be said to have abetted in doing that thing. 15. As in all crimes, mens rea has to be established. To prove the offence of abetment, as specified under Sec 107 of the IPC, the state of mind to commit a particular crime must be visible, to determine the culpability. In order to prove mens rea, there has to be something on record to establish or show that the appellant herein had a guilty mind and in furtherance of that state of mind, abetted the suicide of the deceased. The ingredient of mens rea cannot be assumed to be ostensibly present but has to be visible and conspicuous. However, what transpires in the present matter is that both the Trial Court as well as the High Court never examined whether appellant had the mens rea for the crime, he is held to have committed. The conviction of Appellant by the Trial Court as well as the High Court on the theory that the woman with two young kids might have committed suicide, possibly because of the harassment faced by her in the matrimonial house, is not at all borne out by the evidence in the case. Testimonies of the PWs do not show that the wife was unhappy because of the appellant and she was forced to take such a step on his account. 16. The necessary ingredients for the offence under section 306 IPC was considered in the case S.S. Chheena vs. Vijay Kumar Mahajan, (2010) 12 SCC 190 where explaining the concept of abetment, Justice Dalveer Bhandari wrote as under: “25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.” 17. While dealing with a case of abetment of suicide in Amalendu Pal alias Jhantu vs. State of West Bengal, (2010) 1 SCC 707 Dr. Justice M.K. Sharma writing for the Division Bench explained the parameters of Section 306 IPC in the following terms: “12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable. 13. In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC.” 8.4 In case of M. Arjunan vs. The State, (2019) 3 SCC 315 , wherein the Hon’ble Apex Court has held and observed in paragraphs no. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC.” 8.4 In case of M. Arjunan vs. The State, (2019) 3 SCC 315 , wherein the Hon’ble Apex Court has held and observed in paragraphs no. 8 and 9 as under: “(8) The essential ingredients of the offence under Section 306 I.P.C. are: (i) the abetment. (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied, accused cannot be convicted under Section 306 I.P.C. (9) In our considered view, in the case at hand, M.O.1-letter and the oral evidence of PW-1 to PW-5, would not be sufficient to establish that the suicide by the deceased was directly linked to the instigation or abetment by the appellant- deceased. Having advanced the money to the deceased, the appellant-accused might have uttered some abusive words; but that by itself is not sufficient to constitute the offence under Section 306 I.P.C. From the evidence brought on record and in the facts and circumstances of the case, in our view the ingredients of Section 306 I.P.C. are not established and the conviction of the appellant-accused under Section 306 I.P.C. cannot be sustained.” 8.5 In case of Mariano Anto Bruno and Another vs. The Inspector of Police, 2022 Live Law (SC) 834, wherein the Hon’ble Apex Court has held and observed in paragraphs no. 20 to 27 as under: “20. We have carefully considered the rival contentions of the learned counsel appearing for the parties and perused the entire records. 21. The genesis of the present appeal originates from the impugned order pronounced by the High Court whereby the High Court upheld the conviction of the Appellants under Sections 306 and 498A of IPC. Taking that into account, it is necessary to advert to the essential ingredients of Section 306 IPC. 22. Section 306 of IPC reads as under: “306. 21. The genesis of the present appeal originates from the impugned order pronounced by the High Court whereby the High Court upheld the conviction of the Appellants under Sections 306 and 498A of IPC. Taking that into account, it is necessary to advert to the essential ingredients of Section 306 IPC. 22. Section 306 of IPC reads as under: “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.” 23. Abetment is defined under Section 107 of IPC which reads as under: “107. Abetment of a thing: A person abets the doing of a thing, who: First - Instigates any person to do that thing. 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. 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.” 24. While analyzing the provisions of Section 306 IPC along with the definition of abetment under Section 107 IPC, a two-Judge Bench of this Court in Geo Varghese vs. State of Rajasthan and Another has observed as under: “13. In our country, while suicide in itself is not an offence as a person committing suicide goes beyond the reach of law but an attempt to suicide is considered to be an offence under Section 309 IPC. The abetment of suicide by anybody is also an offence under Section 306 IPC. It would be relevant to set out Section 306 of the IPC which reads as under: “306. The abetment of suicide by anybody is also an offence under Section 306 IPC. It would be relevant to set out Section 306 of the IPC which reads as under: “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.” 14. Though, the IPC does not define the word ‘Suicide’ but the ordinary dictionary meaning of suicide is ‘self-killing’. The word is derived from a modern latin word ‘suicidium’ or ‘sui’ means ‘oneself’ and ‘cidium’ means ‘killing’. Thus, the word suicide implies an act of ‘self-killing’. In other words, act of death must be committed by the deceased himself, irrespective of the means adopted by him in achieving the object of killing himself. 15. Section 306 of IPC makes abetment of suicide a criminal offence and prescribes punishment for the same. 16. The ordinary dictionary meaning of the word ‘instigate’ is to bring about or initiate, incite someone to do something. This Court in the case of Ramesh Kumar vs. State of Chhattisgarh, 2021 SCC Online SC 873 has defined the word ‘instigate’ as under: “Instigation is to goad, urge forward, provoke, incite or encourage to do an act.” 17. The scope and ambit of Section 107 IPC and its co- relation with Section 306 IPC has been discussed repeatedly by this Court. In the case of S.S. Cheena vs. Vijay Kumar Mahajan and Another, (2010) 12 SCC 190 it was observed as under: “Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by the Supreme Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.” 25. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.” 25. The ingredients of Section 306 IPC have been extensively laid out in M. Arjunan vs. State, Represented by its Inspector of Police, (2019) 3 SCC 315 which are as under: “The essential ingredients of the offence under Section 306 I.P.C. are: (i) the abetment. (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied, accused cannot be convicted under Section 306 I.P.C.” 26. In order to convict an accused under Section 306 IPC, the state of mind to commit a particular crime must be visible with regard to determining the culpability. With regard to the same, a two-judge bench of this Court in Ude Singh and Others vs. State of Haryana, (2019) 17 SCC 301 observed as under: “16. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act/s of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behavior and responses/reactions. In the case of accusation for abetment of suicide, the Court would be looking for cogent and convincing proof of the act/s of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. 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. 16.1. 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. 16.1. For the purpose of finding out if a person has abetted commission of suicide by another; the consideration would be if the accused is guilty of the act of instigation of the act of suicide. As explained and reiterated by this Court in the decisions abovereferred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed suicide had been hypersensitive and the action of accused is otherwise not ordinarily expected to induce a similarly circumstanced person to commit suicide, it may not be safe to hold the accused guilty of abetment of suicide. But, on the other hand, if the accused by his acts and by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to commit suicide, the case may fall within the four-corners of Section 306 IPC. If the accused plays an active role in tarnishing the self- esteem and self-respect of the victim, which eventually draws the victim to commit suicide, the accused may be held guilty of abetment of suicide. The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. Such being the matter of delicate analysis of human behaviour, each case is required to be examined on its own facts, while taking note of all the surrounding factors having bearing on the actions and psyche of the accused and the deceased.” 27. In the backdrop of the above discussion, we may now advert to the facts of the present case to test whether the conviction of the Appellants for the offence under Sections 306 and 498A IPC is sustainable or not.” 9. In the backdrop of the above discussion, we may now advert to the facts of the present case to test whether the conviction of the Appellants for the offence under Sections 306 and 498A IPC is sustainable or not.” 9. In view of the above referred decisions of the Hon’ble Apex Court, at this juncture, I refer and rely upon the decisions cited by the learned advocate Mr. Shah for the appellant which covers the issue with regard to the abetment of suicide and in view of the foregoing reasons, I am persuaded to conclude that the decision under challenge cannot be legally sustained. Consequently, interfering with the impugned judgment and order of the learned Trial Court, the appellant’s conviction under Section 306 of the IPC is required to be quashed and set aside and the present appeal deserves to be allowed. 10. The present appeal is hereby allowed. The impugned judgment and order of conviction and sentence dated 16.12.2004 passed by the learned Additional Sessions Judge, Fast Track Court No. 6, Bhavnagar in Sessions Case No. 160 of 2003 is hereby quashed and set aside. The fine of Rs. 1500/- is putforth. As the appellant is on bail, he need not surrender to the jail authority. The bail and bail bond stands cancelled. Surety, if any, shall stand discharged. Record and Proceedings to be sent back to the concerned Trial Court forthwith.