Criminal

Abetment of suicide

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.

Of Abetment

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 or 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 the thing; or

Thirdly. – Intentionally aids, by any act or illegal omission, the doing of that thing.

EXPLANATION1. – A person who, by wilful mispresentation, 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.

Illustration

A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.

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.

108. Abettor. – A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.

EXPLANATION 1. – The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act.

EXPLANATION 2. – To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused.

ILLUSTRATIONS

(a) A instigates B to murder C. B refuses to do so. A is guilty of abetting B to commit murder.

(b) A instigates B to murder D. B in pursuance of the instigation stabs D. D. recovers from the wound. A is guilty of instigating B to commit murder.

EXPLANATION 3. – It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge.

ILLUSTRATIONS

(a) A, with a guilty intention, abets a child or a lunatic to commit an act which would be an offence, if committed by a person capable by law of committing an offence, and having the same intention as A. Here A, whether the act be committed or not, is guilty of abetting an offence.

(b) A, with the intention of murdering Z, instigates B, a child under seven years of age, to do an act which causes Z’s death. B, in consequence of the abetment, does the act in the absence of A and thereby causes Z’s death. Here, though B was not capable by law of committing an offence. A is liable to be punished in the same manner as if B had been capable by law of committing an offence, and had committed murder, and he is therefore subject to the punishment of death.

(c) A instigates B to set fire to a dwelling-house. B, in consequence of the unsoundness of his mind, being incapable of knowing the nature of the act, or that he is doing what is wrong or contrary to law, sets fire to the house in consequence of A’s instigation. B has committed no offence, but a is guilty of abetting the offence of setting fire to a dwelling-house, and is liable to the punishment provided for that offence.

(d) A, intending to cause a theft to be committed, instigates B to take property belonging to Z out of Z’s possession. A induces B to believe that the property belong to A. B takes the property out of Z’s possession, in good faith, believing it to be A’s property. B, acting under this misconception, does not take dishonestly, and therefore does not commit theft. But A is guilty of abetting theft, and is liable to the same punishment as if B had committed theft.

EXPLANATION 4. – The abetment of an offence being an offence, the abetment of such an abetment is also an offence.

Illustration

A instigates B to instigate C to murder Z. B accordingly instigates C to murder Z, and C commits that offence in consequence of B’s instigation. B is liable to be punished for his offence with the punishment for murder; and, as A instigated B to commit the offence, A is also liable to the same punishment.

EXPLANATION 5. – It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed.

Illustration

A concerts with B a plan for poisoning Z. It is agreed that A shall administer the poison. B then explains the plan to C mentioning that a third person is to administer the poison, but without mentioning A’s name. C agrees to procure the poison, and procures and delivers it to B for the purpose of its being used in the manner explained. A administers the poison, Z dies in consequence. Here, though A and C have not conspired together, yet C has been engaged in the conspiracy in pursuance of which Z has been murdered. C has therefore committed the offence defined in this section and is liable to the punishment for murder.

108-A. Abetment in India of offences outside India. – A person abets an offence within the meaning of this Code who, in India, abets the commission of any act without and beyond India which constitute an offence if committed in India.

Illustration

A, in India, instigates B, a foreigner in Goa, to commit a murder in Goa. A is guilty of abetting murder.


COMMENT 

In the decision reported in 1995 Supp (3) Supreme Court Cases 731 in the case of Mahendra Singh and Anr. Gayathri Bai v. State of M.P., the Apex Court has held that the dying declaration of the deceased wife alone is not sufficient to bring the acts of the appellant/husband and in-laws of the deceased within Section 306 of IPC and conviction for abetment of suicide merely on the allegation of harassment to the deceased not sustainable.

In the decision reported in AIR 2007 SCW 3107 in the case of Bhagwan Das v. Kartar Singh and Ors. the Apex Court has held that harassment of wife by husband or in law’s due to differences per se does not attract the offence u/s 306 of IPC, if the wife commits suicide and for a charge u/s 306 of IPC there has to be something more.

In the decision reported in 2004 (4) SC 676 in the case of Hansa Raj v. State of Haryana wherein the accused was convicted for the offence u/s 498A and 306 of IPC by the trial Court based on the presumption u/s 113A of the Evidence Act and the High Court has also upheld the said order of conviction, wherein as per the evidence the accused was addicted to ‘bhang’ and that deceased objected to taking bhang and frequent quarrels took place wherein the Apex Court has held that there is no direct evidence that the appellant either aided or instigated the deceased to commit suicide and that presumption u/s 113A of the Evidence Act does not raise by operation of law merely on proof of circumstances enumerated u/s 113A of the Act and the provision gives discretion to Court to raise such a presumption and in the facts of the case presumption was not invocable, accordingly, it has held that conviction u/s 306 of IPC is liable to be set aside and that conviction u/s 498A of IPC is maintainable.

In the case of GIRIDHAR SHANKAR TAWADE v. STATE OF MAHARASHTRA, 2002 AIR SCW 2140 it is held that; “If a dying declaration is accepted as trustworthy piece of evidence, it can be acted upon”. It is also further held that; “The acquittal of the accused for the offence u/s 306 of I.P.C. would not entail for an acquittal u/s 498-A of I.P.C.”

An offence of abetment of suicide punishable u/s 306 of the Indian Penal Code is much broader in scope than an offence punishable u/s 304B of the Indian Penal Code. Bhupendra v. State of U.P. (2014) 2 SCC 106.

The view expressed in Ananda Mohan Sen and Another Vs. State of West Bengal, . In that case the exact cause of death could not be stated since the viscera preserved by the autopsy surgeon were to be sent to the chemical expert. In fact, one of the witnesses stated that the unnatural death was due to the effect of poisoning but he would be able to conclusively state the cause of death by poisoning only if he could detect poison in the viscera report. This Court noted that it was not in dispute that the death was an unnatural death and held that the deposition of the witness indicated that the death was due to poisoning. It is only the nature of the poison that could not be identified. In view of this, the conviction of the Appellant u/s 306 of the Indian Penal Code was upheld, there being no charge u/s 304B of the Indian Penal Code.

 In State of Karnataka Vs. K. Yarappa Reddy, the accused and the victim had coffee at a friend’s house. Soon thereafter, the accused launched a murderous assault on the victim with a chopper. It was pleaded by the accused that if they actually had coffee at the friend’s house, it would have shown up in the stomach contents. This Court dismissed the contention as “too puerile”. It was held that there was no need for the doctor to ascertain whether there was coffee in the stomach contents of the victim. This is because the case was not one of suspected death by poisoning. These decisions clearly bring out that a chemical examination of the viscera is not mandatory in every case of a dowry death; even when a viscera report is sought for, its absence is not necessarily fatal to the case of the prosecution when an unnatural death punishable u/s 304B of the Indian Penal Code or u/s 306 of the Indian Penal Code takes place; in a case of an unnatural death inviting Section 304B of the Indian Penal Code (read with the presumption u/s 113B of the Evidence Act, 1872) or Section 306 of the Indian Penal Code (read with the presumption u/s 113A of the Evidence Act, 1872) as long as there is evidence of poisoning, identification of the poison may not be absolutely necessary.

In Satvir Singh and Others Vs. State of Punjab and Another, this Court drew a distinction between Section 306 of the Indian Penal Code and Section 304B of the Indian Penal Code in the following words:  Section 306 Indian Penal Code when read with Section 113A of the Evidence Act has only enabled the court to punish a husband or his relative who subjected a woman to cruelty (as envisaged in Section 498A Indian Penal Code) if such woman committed suicide within 7 years of her marriage. It is immaterial for Section 306 Indian Penal Code whether the cruelty or harassment was caused “soon before her death” or earlier. If it was caused “soon before her death” the special provision in Section 304B Indian Penal Code would be invocable, otherwise resort can be made to Section 306 Indian Penal Code. It was held that Section 306 of the Indian Penal Code is wide enough to take care of an offence u/s 304B also. However, an offence u/s 304B of the Indian Penal Code has been made a far more serious offence with imposition of a minimum period of seven years imprisonment with the sentence going upto imprisonment for life. Considering the gravity of the offence it is treated separately from an offence punishable u/s 306 of the Indian Penal Code. On this basis, this Court rejected the contention that if a dowry related death is a case of suicide it would not fall within the purview of Section 304B of the Indian Penal Code at all. Reliance in this regard was placed on Smt Shanti and Another Vs. State of Haryana, and Kans Raj Vs. State of Punjab and Others, wherein this Court held that a suicide is one of the modes of death falling within the ambit of Section 304B of the Indian Penal Code.

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