V.G. Palshikar, J.
1. This appeal is directed against the judgment of conviction recorded by the Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Cases), Jodhpur, convicting the appellants Under Sections 306, and 498A I.P.C. and sentencing each of them to seven year's rigorous imprisonment and a fine of Rs. 2,000/- each under Section 306 and simple imprisonment for three years and a fine of Rs. 2,000/- under Section 498A, in Sessions Case No. 14 of 1993, on 17.9.1994.
2. The Prosecution story, stated in brief, is that Sita, w/o Dhanna Ram committed suicide, it was alleged that she was driven to suicide by her husband father-in-law and mother-in-law, as she was issueless for the fifteen years of her married life. The prosecution has examined 12 witnesses in support of the case that the suicide was abetted by the accused persons. Seven witnesses were examined on behalf of the defence. On appreciation of the entire evidence on record, the learned Judge came to the conclusion that the accused were guilty of abetment as contemplated by Section 306 of the Indian Penal Code and, therefore proceeded to convict the accused as aforesaid.
3. Arguing the appeal on behalf of the accused, Mr. S.R. Bajwa, learned Counsel, submitted that the conviction Under Section 306 of the Penal Code is unsustainable in law. It is submitted that there is no evidence on record to prove the offence Under Section 498A of the Penal Code. It is the contention of the learned Counsel that there is no proximity or close relationship between the death and Ill-treatment.
4. Opposing these submissions, Mr. M.L. Garg, learned Counsel appearing for the complainant and Mr. J.R. Choudhary, learned Public Prosecutor, contended that there is ample evidence of nagging on record and since suicide is committed the conviction is proper, as the suicide was a consequence of the constant nagging.
5. The provisions of Section 306 and Section 107 of the Penal Code will be required to be carefully scruittnised, to appreciate the rival contentions. Section 306 and 107 read thus:
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.
107- Abetment of a thing: A person abets the doing of a thing who-First- Instigates any person to do that thing; or.
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, or.
Thirdly - Intentionally aids by any act or illegal omission the doing of that thing.
6. In order to sustain conviction Under Section 306, it must, therefore, be proved by the prosecution that there was abetment of suicide. According to the allegations of the complainant and the case of the prosecution, the deceased was instigated to commit suicide by constant nagging by the inlaws, i.e. present appellants. A scrutiny of the evidence of these witnesses will show that there is no such evidence existing in this case.
7. With the assistance of learned Counsel for the appellants, complainant and the learned public Prosecutor, I have carefully seructinised the evidence on record. There is no eye witness to the death of Smt. Sita. It is undisputed that 15 years had passed since the marriage. It is and admitted position by all the witnesses of the prosecution that except for being unproductive, there was no torture or nagging to the deceased. The evidence on record goes to show that for about 10 years prior to her death Smt. Sita was abused for her Inability to procreate. It cannot, therefore, be said that even If this evidence is completely accepted that by such nagging the appellants have instigated Smt. Sita to commit suicide, she has obviously become habituated to the nagging for her infertility.
8. The learned Counsel for the appellants cited several decisions in support of his contention that in order to constitute instigation to suicide it must be Immediately prior to the commission of suicide. It must be such as will excite the person to whom it is given to commit suicide.
9. A Division Bench of the Punjab High Court has held in Criminal Appeal No. 335 (SB) 1985 decided on 14.10.87, reported In 1988 (1) RCR 115 that the wife committed suicide because her husband was living with another woman. Setting aside the conviction Under Section 306, it was observed that in order to constitute abetment, Intentional aid through active complicity is the gist of the offence of abetment.
10. The learned Counsel then relied on a judgment of the Supreme Court reported in AIR 1989 SC 378, wherein the Supreme Court has observed as under:
Reading Sections 306 and 107 together it is clear that if any person instigates any other person to commit suicide and as a result of such instigation the other person commits suicide, the person causing the instigation is liable to be punished under Section 306 of the Penal code for abetting the commission of suicide. A plain reading of this provision shows that before a person can be convicted of abetting the suicide of any other person, it must be established that such other person committed suicide.
11. Therefore, as laid down by the Supreme Court of India, the prosecution must prove, to bring home charge under section 306, that the accused instigated the deceased to commit suicide and as a result of which instigation, suicide was committed. It, therefore, must be proved by the prosecution that
(a) The deceased committed suicide or the death was suicidal; and.
(b) That the suicide was committed at the instigation of the accused.
12. In the present case, there is no evidence either to prove that the death was suicidal nor is there any evidence of any positive instigation or constant nagging by the accused requiring the deceased to meet death. It was therefore, contended by the learned Counsel that its the absence of such evidence, it is impermissible in law to convict any person under section 306.
13. In AIR 1986 SC 752, it has been observed that where no dependable evidence in regard to actual abetment by any of the accused is available, the accused is entitled to be acquitted.
14. In the present case, except for the testimony of the witnesses that the appellants were constantly nagging the deceased, there is no evidence whatever of any cruelty.
15. Reliance was then placed on another judgment of the Supreme Court in Criminal Appeals No. 748 and 749 of 1991 decided on 19.11.91 (1991 (2) RCR 328 (S.C.), wherein it has been held that where there is no evidence that due to harassment deceased committed suicide, the conviction is not possible. In that case before the Supreme Court also the accused harassed the deceased and caused mental agony for not begetting children. In this case also, even if the entire evidence of the prosecution in relation to the nagging is accepted, there is no evidence that Just before the death there was harassment by the accused.
16. A scrutiny of evidence will show that there is no evidence on record to sustain the conviction of the appellants. There are several material contradictions in the depositions of the witnesses. There is positive improvement in the case of Jagdish, brother of the deceased, who lodged the F.I.R. Several things have been omitted. The incident has taken place around midnight. The complainant Jagdish visited the deceased an hour prior to that and there is no evidence of the conversation that took place. In the First Information Report, several things have not been said. It is true, as contended by Shri Garg that the First Information Report did not give a verbatim description of every occurrence leading to the commission of the offence. However, at the same time it cannot be said that things which are material to make out an offence must be stated in the First Information Report. It is pertinent to note in the present case that immediately on the occurrence of death, report was lodged by the brother-in-law of the deceased, of death by burns and then the First Information Report was lodged at 6.30 in the morning by the brother of the deceased.
17. Taking into consideration the several contradictions in the evidence and improvement in the statement of the prosecution witnesses, I am of the opinion that the conviction is unsustainable in law. There is no evidence of abetment. In fact, there is no evidence of even suicide. Even if suicide is assumed, it cannot be said that there was, in any manner, any abetment as observed above, by any of the appellants. I am unable to agree with the conclusion of the learned Special Judge, as there is no evidence of abetment, as such in this case. Even if the entire evidence of the prosecution is accepted in its entirety, it cannot be said that any of the appellants actively helped or instigated the deceased in committing suicide.
18. There is also no evidence on record to sustain the conviction Under Section 498 of the Penal Code. In fact, no physical cruelty was alleged. Nagging was continuing for more than ten years and cannot, therefore, be called a persistant mental cruelty.
19. In the result, therefore, the appeal is allowed. The judgment of conviction dated 17.9.94 is set aside. All the accused appellants are acquitted of the offence Under Sections 306 and 498A of the Indian Penal Code. Accused appellants Dhanna Ram, Hemraj and Smt. Patasi Devi are in jail. They shall be released forthwith, if not required in any other case.