@JUDGMENTTAG-ORDER
Ms. K.B.K. Vasuki, J.@mdashThe revision is filed by the defacto-complainant, who is none-else than the mother of the deceased against the order of acquittal of the first respondent/accused from the charges for the offence u/s 306 IPC. The case of the prosecution is that on 22.1.2006 morning the deceased Priya aged about 12 years took one empty beer bottle near the house of the first respondent/accused Jothilakshmi and gave it to one cone-ice seller and had one cone-ice and the first respondent/accused beat her with wooden log and threatened her that she will instruct her husband to beat her and she further abused her by questioning her legitimacy and by instigating her to commit suicide and the minor girl felt so insulted and was so mentally upset and out of the shame committed suicide by pouring kerosene in her house at 12 pm on the same day and was admitted in the hospital with 75% burn injuries and despite due treatment, succumbed to injuries at 23.45 on the same day. Thereby the accused committed the acts constituting the offence punishable u/s 306 IPC.
2. The prosecution has, in order to prove the guilt of the accused, examined the mother of the deceased, her neighbour, Mahazer witness, Post mortem doctor and the sub-inspector of police who received the complaint and registered the case, and investigation officer as P.Ws.1 to P.W.8 and has produced Exhibits P-1 to P-7 documents and M.Os. 1 to No. 3 material objects.
3. The trial Court, on the basis of the materials available, arrived at a conclusion that the deceased did not commit suicide because of any instigation on the part of the accused who had no intention to do so and acquitted the accused against which, the criminal revision is preferred by P. W.1/defacto-complainant/ mother of the deceased.
4. The learned counsel for the petitioner would seriously argue against the correctness of order of acquittal by highlighting the error committed in framing the charges against the accused for the offence u/s 306 IPC instead of 305 IPC. According to the learned counsel for the petitioner, any act of abetment of suicide of any person who is under 18 years age is severely punishable u/s 305 IPC as such the charges framed against the accused for the offence u/s 306 IPC, which is applicable for the act of abetment of suicide by the adult, resulted in injustice. It is further strenuously argued by the learned counsel for the petitioner that though the allegations constitute the same offence and though the standard and nature of proof, to be let in to establish the guilt of the accused may be the same the approach of the Court below while deciding the commission of offence punishable u/s 305 and 306 IPC are to be different and as the offence punishable u/s 305 IPC relate to the death of a child below 18 years or delirious person the same may not be viewed in the same manner as that of the act of abetment of suicide of major and had the matter been viewed from that angle trial Court would have arrived at a right conclusion that the minor girl was abused by the accused and the same instigated her to commit suicide and would have found the accused to be guilty of the offence u/s 305 IPC.
5. Per contra, the first respondent/accused by relying upon the judgment of our High Court X. Rukumani v. State rep. by Sub Inspector of Police B-4 Police Station, Coimbatore, LNIND 2008 Mad 895 : (2008) 2 MLJ (Crl) 1279, 2
6. Heard the Rival submissions made on both sides.
7. The fact that Priya aged about 12 years who is the daughter of P.W.1 died by self immolation is not seriously denied. It may be true that four witnesses were examined as P.W.1 to P.W.4 to support the case of the prosecution that the accused had on the date of occurrence shouted at the deceased and used abusive words by calling her as an orphan and threatened her and minor girl was too dejected by such act of the accused and she in the same dejected mood, committed suicide on the same evening. One of the witnesses also in the course of his cross examination admitted that as the accused scolded the deceased as she got annoyed and committed suicide. Thus it may be true that the abusive words uttered by the accused was the main reason for minor girl to go and commit suicide. But as rightly argued by the learned counsel for the respondent by relying upon the judgments as above referred to the same does not render the accused guilty of the offence u/s 305 or 306 IPC.
8. It may be true that the charge leveled against the accused falls u/s 305 IPC and hot u/s 306 IPC. But the error or omission to frame the charge under correct provision of law has in no manner caused any prejudice to the deceased side. In the other judgment, Durgo Bai and Another v. State of Punjab and Another (supra), 2nd cited above the Apex Court held that unless the prosecution is able to show that either deceased or complainant suffered any prejudice due to citation of wrong Section in charge, the trial Court judgment cannot be set aside on that score.
9. It may be true that the nature and standard of proof to be let in to decide the offence u/s 305 or Section 306 IPC and the nature of the sentence to be imposed for offence u/s 305 or 306 IPC once made out may be different. While the sentence prescribed as punishment for the offence u/s 305 IPC is imprisonment of life and imprisonment extending to 10 years also fine for the offence u/s 305 IPC.
10. But the main ingredient to be proved for the offence either u/s 305 or 306 IPC is the active instigation by one or more persons to do or the doing of any act or intentionally aids, by any act or illegal omission, the doing of that thing, the act of abetment to commit suicide, and not the act of suicide, is punishable under either Section 305 and 306 IPC as observed by the judgment in Rukumani v. State rep. by Sub Inspector of Police B-4 Police Station, Coimbatore (supra) cited above.
11. In this connection what is ''instigation'' and "an act of abetment''1 as defined u/s 107 and 306 IPC is for better appreciation extracted here under:
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 taken 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.
Explanation 1: A person who, by willful 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.
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.
12. If the factual matrix of the case in hand is appreciated in the light of the above definition it reveals that there is absolutely no evidence to show that the act of the accused in uttering the words ''go and die'' would amount to any act of instigation or intentionally aiding so as to constitute an act of abetment which is an offence punishable either under Sections 305 or 306 IPC.
13. When it is only the nature of the act committed by the accused and not the manner in which the other person reacts to such act which is material factor to decide the guilt of the accused for the offence under either of the Sections, the main ingredient is totally absent in the instant case. In this case, admittedly the accused scolded the deceased for her taking beer bottle from near the house of the accused and for her buying cone ice in exchange of the beer bottle. The accused shouted at her in a fit of anger and on the spur of the moment and there is no previous misunderstanding of any sort between the defacto-complainant and the accused and the accused had nothing to do with the family of the deceased and the words are uttered only without any mens rea and without actually realizing the consequences that is likely to follow.
14. In the judgment in Rukumani v. State rep. by Sub Inspector of Police B-4 Police Station, Coimbatore (supra), the victim was only a small girl and the accused abused her and shouted at her by saying ''go and die''. The. High Court, following the Supreme Court judgment in Swami Prhaladdas v. State of MP. 1995 SCC (Cr) 943 and Division Bench judgment of Gujarat High Court in State of Gujarat v. Sunilkumar Kanaiyalal Jain 1997 Crl. LJ 2014: LNIND 1996 Guj 105 held that it cannot be definitely said that accused scolded the deceased with mens rea surfacing to attract abetment of suicide and the suicide is not the direct result of the words uttered by the accused.
15. In the instant case also there is absolutely no intentional scolding on the part of the accused to treat it as an act of abetment in the eye of law. The trial Court has rightly found that the accused is not guilty of the offence u/s 306 IPC. Thus, for the discussion held above, this Court finds no error or infirmity or irregularity in the order of acquittal and the same warrants no interference. In the result, the criminal revision stands dismissed.
