K.A. Abdul Gafoor, J.
1. Appellant/accused was charged for the offence punishable under Ss.306 and 498A IPC. He was acquitted on the latter count finding that there was no valid marriage between the appellant and the deceased. On the other hand he was convicted for the offence under former count and was sentenced to undergo rigorous imprisonment for 8 years and to pay fine of Rs. 5000/-. This conviction is under challenge.
2. PW1 saw the deceased Ammini hanging on the shed of the house owned by son PW6 where she was living, at 8.30 p.m. on 14.11.1997. Immediately prior to that there was quarrel, threat and cruelty by the accused towards the victim. The investigation revealed that she committed suicide because of such illtreatment and cruelty and harassment from the hands of, the accused. It was proved from Ext.P3, the suicide note kept by the deceased. It was in the above circumstance he was charged for the said offence.
3. The Trial Court found that 'in the light of the dictum laid down in the above reported decision, the accused has illtreated the deceased woman Ammini and due to the cruelty which amount to abetment, the said Ammini committed suicide. Hence I find that offence under S. 306 IPC is attracted and the accused is found guilty for the offence under S. 306 IPC'.
4. Section 306 IPC is abetment of suicide. Whoever abets the commission of such suicide is liable for punishment. Abetment is separately defined in Section 107 IPC. A person can be said to abet of doing things if he,
'(i) instigates any person to do that thing; or
(ii) Engages with one or more other person or persons in any conspiracy for the doing of that thing or
(iii) intentionally aids, by any act or illegal omission, the doing of that thing'.
Any how, the second clause is not at all attracted. In order to find one guilty of the offence punishable under S. 306 it should be proved that the accused had instigated the deceased to commit suicide. As per Explanation (1) to S. 107 a person can be said to instigate the doing of a thing if he,
'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'.
Therefore, a wilful act which shall result in the thing done shall be there. A wilful act which shall result in the act done shall be proved. So instigation shall be a wilful one. Clause (iii) of Section 107 makes it clear that aiding or doing any act shall be intentional: In this case merely because the accused had been cruel towards the deceased it cannot be taken that he had intended the victim committing suicide or that he had instigated suicide. Thus the ingredients for abetment are not proved in this case.
5. Even going by the prosecution case relying on Ext.P3, it is clear that the victim had committed suicide as she had been desperate because of the conduct of the accused and because of the cruelty by the accused. That means the reason for the suicide is her own, mental perception that her further life would be miserable. It will not amount to abetment to invite conviction under S. 306 IPC.
6. Moreover there arises no question of application of the presumption available under S. 113A of the Evidence Act. The presumption under S. 113 of the Evidence Act arises only in case of suicide by a wife within seven years of the marriage. In this case the victim was not his wife. There was no marriage between the victim and the accused. Necessarily, that presumption is not available in this case.
Accordingly, I set aside the conviction and sentence passed by the Asst. Sessions Judge, N. Parur against the accused in S.C.No.261/1999. The appellant shall be set at liberty forthwith, if he is not wanted in any other case.