(PER: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM)
2. The prosecution case in brief is that the
(4) years prior to the incident. The couple allegedly lived
harmoniously for about 4-5 months. Thereafter, it is
mental cruelty culminating in miscarriage. About two (2)
mediated a compromise. Later, appellant working as an
CW.28/Sunita's residence. Thereafter, the deceased
search of the appellant. It is alleged that the appellant
without communication or support for about 15 days. On
were found dead in a well at Basavakalyan.
3. Prosecution examined PW.1 to PW.38 and
4. PW.1 (mother of the deceased) has turned
hostile to the case of the prosecution. PW.2 and PW.3 also
5. The Trial Court acquitted accused Nos.2 and 3
i. He failed to discharge the marital
obligation and abandoned the deceased
and child;
ii. He failed to offer satisfactory explanation
in the statement recorded under Section
313 of the Code of Criminal Procedure,
1973, (for short 'Cr.P.C.') and failed to
adduce rebuttal evidence; and
iii. As the suicide occurred within seven (7)
years of marriage, presumption under
Section 113A of the Evidence Act operated
warranting conviction under Sections
498A and 306 of IPC.
6. The appellant herein is assailing the judgment
7. Learned counsel appearing for the appellant,
requisite ingredients of Section 306 of IPC. He would
turned hostile. He would further point out that the Trial
abetment of suicide. He would submit that there must be
ultimately led to commission of suicide. He would contend
the offence punishable under Section 306 of IPC. He
8. Per contra, learned High Court Government
9. Having heard the learned counsels, this Court
ii. Whether appellant's acts/omissions
constitute abatement of suicide under
Section 306 of IPC with requisite mens
rea as defined under Section 107?
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iii. Whether the Trial Court was justified in
invoking Section 113A of the Evidence Act
to draw a presumption? and
iv. Whether the appellant's answer in the
statement recorded under Section 313 of
Cr.P.C., would substitute proof?
Finding on Point No.(i):
10. Though mother of the deceased had not
supported the prosecution case and has turned hostile,
PW.27-Sunita has supported the prosecution case
indicating that the accused started harassing the deceased
physically and mentally and during the deceased's stay at
accused No.2's quarters, the deceased used to often tell
this witness about the harassment. She has also deposed
that the deceased resided in her house also for some time.
She has also deposed that despite deceased's attempts to
contact the appellant/accused, the appellant was not
accessible to the deceased. She has also spoken about
forcible abortion.
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11. Similarly, PW.28-Mahesh who is the brother of
the deceased has also stated that the appellant was
harassing the deceased on the ground that she was unable
to cook properly and she was not acquainted with
agricultural activities. He has also deposed that he
intervened along with his parents and pacified and advised
the appellant/accused not to harass deceased-
Shantamma. This witness was also extensively cross-
examined by the defence.
12. PW.30-Swamydas has also deposed about
Shantamma having got conceived and later, got aborted
due to harassment and has further deposed that he came
to know later that, Shantamma and child died and he was
summoned to police station where he identified
Shantamma and her son-chintu on the basis of photo
shown by the Police.
13. PW.33, who is a Police Officer and also residing
in the quarters since 2017, has also deposed that the
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appellant along with the deceased was residing at accused
No.2's quarters. However, his statement is that he came
to know that, because of harassment by the accused, the
deceased along with the child committed suicide.
14. Similarly, PW.35-Mallinath, who was also
staying in the quarters, has deposed about the present
appellant quarrelling with his wife, Shantamma. Later, he
came to know that there are dead bodies of the lady and
the child found in the well situated near Sastapur, Shivara.
15. On going through the evidence of the
prosecution witnesses, this Court is of the view that there
is some material on record to bring home the guilt of the
appellant for the offence punishable under Section 498A of
IPC. The evidence of siblings and also the Police Constable
staying at the quarters coupled with surrounding
circumstances, clearly establish that during the
subsistence of marriage which lasted for seven (7) years,
the deceased was subjected to some physical and mental
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cruelty. The consistent testimony of material witnesses,
the absence of any plausible defence and the admitted fact
that the wife along with her infant child committed suicide
by jumping into a well, speak to the atmosphere of there
being some harassment.
16. The Trial Court, therefore, referring to these
evidences, has rightly come to the conclusion that the
appellant is guilty of harassing his wife. The Trial Court
has rightly recorded the finding that the prosecution has
established the necessary mandate under Section 498A of
IPC. Therefore, the finding recorded by the Trial Court in
respect of the offence punishable under Section 498A of
IPC does not warrant any interference. Accordingly, point
No.(i) is answered in the affirmative.
Finding on Point Nos.(ii) to (iv):
17. Before this Court examines whether the
ingredients of Section 306 of the IPC are made out in the
present case, it is necessary to advert to the governing
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legal principles that define the contours of abetment to
suicide. The Supreme Court has consistently held that
mere harassment, ordinary domestic discord, or general
neglect, a specific, proximate, and active act of instigation
or intentional aid does not satisfy the requirement of
abetment. There must be a clear and live link between the
conduct of the accused and the eventual decision of the
deceased to commit suicide, as elucidated in Gurcharan
Singh v. State of Punjab, [(2017) 1 SCC 433]. The
Hon'ble Apex Court in S.S. Chheena v. Vijay Kumar
Mahajan and another, [(2010) 12 SCC 190], further
emphasized that abetment involves a mental process of
instigating or intentionally aiding the commission of
suicide, and that without a positive act attributable to the
accused, a conviction under Section 306 cannot be
sustained. Similarly, in Amalendu Pal @ Jhantu v. State
of W.B., [(2010) 1 SCC 707], it has been reiterated that
the prosecution must establish the requisite mens rea and
show that the acts of the accused were of such intensity
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and immediacy that the deceased was left with no option
but to take the extreme step; stray utterances or remote
incidents fall short of this threshold. The essential
ingredients of the offence have been succinctly
summarized in M. Arjunan v. State, [(2019) 3 SCC
315], namely: (i) the factum of suicide; (ii) abetment as
defined under Section 107 IPC; and (iii) intention on the
part of the accused to aid or instigate the act. The
principles laid down in Madan Mohan Singh v. State of
Gujarat and another, [(2010) 8 SCC 628] and M.
Mohan v. State of Tamil Nadu, [(2011) 3 SCC 626]
also reinforce the requirement that abetment must be
clearly established through cogent and proximate conduct.
18. In the light of the essential ingredients
summarized by the Hon'ble Apex Court in the reported
judgments cited supra, this Court needs to examine as to
whether the Court below was justified in invoking Section
113A of the Evidence Act, which emphasizes discretionary
presumption conditioned on proof of cruelty.
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19. The presumption under Section 113A of the
Evidence Act is not automatic. The language is quite clear,
which says that the Court may presume only upon proof
that the woman committed suicide within seven (7) years
of marriage and that she was subjected to cruelty under
Section 498A of IPC.
20. Though, while answering point No.(i), this Court
has held that there was some degree of harassment and
cruelty, but the question is whether the cruelty was of
such a degree that it would have driven the deceased to
commit suicide. Stray or remote incidents do not suffice
and allegations regarding abetment under Section 306 of
IPC must be proved beyond reasonable doubt. Even grave
material indiscretions without clear proof of cruelty driving
the woman to suicide will not by themselves attract
Section 306 of IPC.
21. The mother/PW.1, who is the complainant, has
turned hostile and has not supported the case of the
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prosecution. Her cross-examination of harassment for
about four years earlier is vague and temporally remote
from the suicide. PWs.2 and 3 have also turned hostile.
The remaining witnesses, PWs.27 to 33, speak broadly
about prior discord and a compromise two years before
the occurrence of the incident. No witnesses described a
specific proximate and contemporaneous act of cruelty or
instigation shortly before 03.09.2017.
22. The prosecution case hinges on the alleged
abandonment by the appellant for a period of 15 plus
days. The prosecution asserts that the appellant left the
deceased and the child without contact/support for over
15 days. Even assumed neglect, there is no tangible
evidence which has driven the deceased to take such a
drastic step. As repeatedly held, mere neglect or failure to
discharge marital obligations, without more, does not
constitute abetment under Section 306 of IPC and would
not satisfy instigation or intentional aid under Section 107
of IPC, and therefore, may not constitute an abetment.
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23. An unsatisfactory answer in the statement
recorded under Section 313 of Cr.P.C., cannot substitute
the prosecution's burden to prove the essential ingredients
of offence. To prove the essential ingredients of the
offence punishable under Section 306 of IPC, an adverse
inference cannot by itself form a conviction for abetment.
The substratum of instigation/aid with mens rea must first
be independently established.
24. Therefore, in the light of the mother turning
hostile, this Court needs to examine whether the Trial
Court erred in invoking Section 113A of the Evidence Act,
merely because suicide occurred within seven years of
marriage and because the appellant allegedly abandoned
the deceased. This approach, according to this Court, is
legally infirm. The prosecution's evidence though sufficient
to convict the appellant for the offence punishable under
Section 498A of IPC, however, lacks credible evidence to
convict the appellant under Section 306 of IPC. The charge
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sheet materials and the evidence of the witnesses do not
demonstrate that the conduct of the appellant was of such
a nature that it drew the deceased to commit suicide.
25. Applying the above principles, the records lack
proof of instigation, conspiracy, or intentional aid. There is
no positive act by the appellant proximate to the suicide.
The prosecution has not shown the requisite mens rea.
The Trial Court's inference that abandonment/failure to
discharge marital obligations ipso facto amounts to
abetment is directly contrary to the law laid down by the
Hon'ble Apex Court in the case of Ghusabhai
Raisangbhai Chorasiya v. State of Gujarat, [(2015)
11 SCC 753]. Accordingly, point Nos.(ii) to (iv) are
answered in 'negative'.
26. Conclusion:
(a). At the outset, this Court finds that the
learned Trial Judge has proceeded on an erroneous
understanding of the scope and ingredients of the
offence punishable under Section 306 of the IPC.
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The conviction is primarily founded on the premise
that the appellant failed to discharge his marital
obligations and had allegedly abandoned the
deceased and their minor child. Such reasoning,
though reflective of a moral disapproval of the
appellant's conduct, does not satisfy the statutory
requirement of abetment as defined under Section
107 IPC. Absent proof of instigation, intentional
aid, or active participation coupled with mens rea,
mere neglect or absence from the matrimonial
home cannot be elevated to the level of abetment
of suicide.
(b) The Trial Court has failed to identify any
positive, proximate or direct act on the part of the
appellant which could have compelled or incited the
deceased to commit suicide. The evidence on
record does not disclose any overt act, words of
provocation, threats, or continuous harassment
immediately preceding the incident. In criminal
jurisprudence, particularly in prosecutions under
Section 306 IPC, there must exist a live and direct
nexus between the conduct of the accused and the
act of suicide. The findings recorded by the Trial
Court are conspicuously silent on this essential
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requirement and rest purely on inference and
conjecture.
(c) The Trial Court has placed undue reliance
on allegations of harassment said to have occurred
nearly four years prior to the incident, which were
admittedly followed by a compromise between the
parties two years before the death of the deceased.
Such stale and remote allegations, in the absence
of evidence showing their continuation or
recurrence in close proximity to the suicide, cannot
constitute the basis for a conviction under Section
306 IPC. The law mandates that the conduct relied
upon must be of such gravity and immediacy as to
leave the victim with no option except to take the
extreme step.
(d) A serious legal infirmity arises from the
mechanical invocation of the presumption under
Section 113-A of the Evidence Act. The Trial Court
has presumed abetment solely on the ground that
the suicide occurred within seven years of
marriage. In the present case, the foundational
facts necessary to attract such presumption have
not been proved, rendering the application of
Section 113-A wholly unsustainable.
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(e) The Trial Court has further erred in
drawing an adverse inference against the appellant
on the ground that he failed to offer a satisfactory
explanation in his statement under Section 313
Cr.P.C., or to lead defence evidence. It is well-
settled that the burden to prove the guilt of the
accused beyond reasonable doubt always rests
upon the prosecution and does not shift merely
because the accused remains silent or fails to
adduce evidence. Deficiencies in the prosecution
case cannot be cured by drawing adverse
inferences from the accused's explanation.
(f) The reasoning adopted by the Trial Court
suffers from internal inconsistency. While accused
Nos.2 and 3 were acquitted on the ground that
there was no evidence of instigation or abetment,
the appellant alone has been convicted without any
additional or distinguishing material to demonstrate
a higher degree of culpability. Criminal liability
under Section 306 IPC is personal and cannot be
fastened solely on the basis of marital relationship
or presumed responsibility of the husband.
(g) Viewed cumulatively, the impugned
judgment reveals that the conviction is founded
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more on moral assumptions and sympathetic
considerations rather than on strict legal proof of
the essential ingredients of abetment. The
approach adopted by the Trial Court dilutes the
settled distinction between matrimonial discord and
criminal abetment of suicide, which the law has
consistently guarded against.
(h) For all the aforesaid reasons, this Court is
of the considered opinion that the findings recorded
by the Trial Court under Section 306 IPC suffer
from perversity, misapplication of legal principles,
and non-appreciation of material evidence, thereby
warranting interference. Consequently, the
conviction and sentence imposed on the appellant
under 306 are liable to be set aside.
27. For the foregoing reasons, this Court passes the
following:
ORDER
i. The appeal is allowed in part.
ii. The judgment of conviction dated
08.02.2023 and order of sentence dated
09.02.2023 passed by II Additional District
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and Sessions Judge, Bidar, sitting at
Basavakalyan, in S.C.No.82/2018
convicting the appellant for the offence
punishable under Section 498A of IPC is
confirmed.
iii. However, the impugned judgment of
conviction and order of sentence passed by
the Trial Court convicting the accused for
the offence punishable under Section 306 of
IPC is set aside. The appellant is acquitted
for the offence punishable under Section
306 of IPC.
iv. The period of imprisonment already
undergone by the appellant is hereby set
off against the sentence imposed upon the
accused in terms of Section 428 of Cr.P.C.
v. The rest of the sentence is affirmed.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
NB
List No.: 2 Sl No.: 45
CT:SI
