JUDGMENT
P.G. Agarwal, J.
1. This is an appeal under Section 374(2) of Cr. P.C. directed against the Judgment and order dated 29-3-2003 passed by the Additional Sesions Judge (Adhoc) Barpeta, Assam in Sessions case No. 185 of 2000 whereby the accused appellant Smt. Sashi Prabha Devi has been convicted for commission of offence under Section 306 IPC and sentenced to imprisonment for 3 years and to pay a fine of Rs. 2000/- in default to further imprisonment for 2 months.
2. The accused Smt. Sashi Prabha Devi is the Head Mistress of Barnagar Girl’s High School. The prosecution case is that Miss Labhita Nath was a student of Class IX of the said School in the year 1997 and in the year 1998 her name appeared in the students of Class X of the said School. Subsequently, the name of Labhita Nath was struck off as per order of the accused appellant, whereupon she met the accused appellant to enquire about the reasons for striking out the name. The student was informed that as she has not passed the Class IX examination, she cannot continue her studies in Class X and she cannot be allowed to study in Class X. The said student Labhita Nath, as alleged, was also scolded by the accused appellant. The girl returned back to her class and thereafter attended some classes and left the School and thereafter she committed suicide by throwing herself in front of the running train.
3. During trial prosecution examined 12 witnesses and the learned trial Court convicted and sentenced the accused appellant as aforesaid. So far the commission of suicide by Labhita Nath is concerned, there is unrebutted oral or medical evidence on record. Dr. D. Sarma, P.W. 9 held the autopsy on the dead body and found as follows:
Injuries : (i) Lacerated injury in the left parietal region of scalp 4 inch x 1 inch x bone deep, (ii) body is divided into two halves at the level of thoraeo abdominal region with laceration at both ends all the thoracic and abdominal visceras vertebral column and spinal cord lacerated, (iii) Traumatic amputation of lateral thread fingers of left foot.
All the injuries mentioned above are an-temortem in nature.
Opinion : In my opinion death is instantaneous from haemorrhage following the injuries sustained in her person.
4. Sri Choudhury, learned Sr. counsel has submitted that the death of the deceased/commission of suicide by Labhita Nath, as such, is not challenged or disputed by them.
5. The question crops up for determination is whether the accused person has abetted the commission of suicide by the deceased Labhita Nath.
6. The prosecution has relied on the following circumstances to establish the charge brought against the accused appellant.
1. The name of the deceased Labhita Nath appeared in the School Register of Class X students and the said Labhita Nath also attended her classes. However, her name was subsequently struck off from the said Register without any reasons at the instance of accused.
2. On the date of occurrence the accused appellant scolded/rebuked her.
3. The accused appellant had asked the deceased to work as maidservant at her place for a period of 6 months, in case she wants to study in Class X.
7. So far the 3rd circumstance is concerned, we find that no prosecution witness except P.W. 1 has deposed on that count; but we find that the defence has brought out that she did not make a statement to that effect before the Police during the investigation and this contradiction has been brought out through Investigating Police Officer as required under Section 145 of the Evidence Act. Admittedly, it is a material contradiction. The evidence of P.W. 1 and 2, being obvious development, it cannot be accepted. So far Upurna Devi, P.W. 2 is concerned she has categorically stated that she is not aware as to what transpired in the office chamber of the accused appellant when the deceased went to meet her.
8. In this case, there is no dispute at the bar that in the year 1997 Labhita Nath was a student of Class IX. In the year 1998 her name appeared in the Register of students of Class X. According to the defence this was due to oversight or mistake and when it was brought to the notice of the accused appellant, who was the Head Mistress of the School, the latter directed that the name be struck off and accordingly her name was striked out. P. W. 7 Mr. P. Das is the L.D. assistant of the School and he has categorically deposed to that effect. This witness has deposed that the name of the deceased was wrongly recorded in the Class Register of Class X and thereafter it was deleted at the direction of the accused appellant. Further, he was present when Labhita Nath met the accused appellant in the latter’s chamber and according to this witness, the accused appellant merely told the deceased, “in case, she desires to attend classes she can do so in Class IX or otherwise, she can go from the School.” Defence has also brought out by way of cross-examination that the deceased Labhita Nath had not appeared in the annual examination of Class IX. None of the prosecution witnesses including the classmates of the deceased, were able to state that the deceased had passed Class IX examination. So far the scolding/rebuking part is concerned PW 7 was physically present in the chamber and he has not deposed a single word to that effect. Witnesses have further stated that the mark sheets are given to the students in respect of final examination, but prosecution has not produced any mark sheet or any other Register which is kept in the School and which were seized to show that the deceased in fact had passed class IX examination and her name was wrongly deleted.
9. The question that needs determination is even if it is accepted for argument sake, that the name of the deceased was wrongly struck off or that the deceased was scolded by the Head Mistress of the School, does it amount to abetment or instigation to commit suicide.
The three ingredients of abetment as defined in the code are:
(i) Instigating a person to do a particular thing.
(ii) By engaging in any conspiracy for doing that thing.
(iii) By intentionally aids in the doing of that thing.
In the present case the allegations are in respect of Clause (i) only. We know that tendering an advice, general and vague, does not constitute abetment. The mens rea is an essential component of an abetment and there must be an overt act on the part of the accused in course of alleged instigation. It must be shown that the instigation was prior and at the point of time. It was directly or indirectly to give a suggestion to the person to do a certain act. In the present case, there is absolutely no evidence to show that the accused had acted at the point of time suggested or hinted for the commission of suicide.
10. In the case of Ramesh Kumar v. State of Chhattisgarh the apex Court has held as follows:
20. Instigation is to goad, urge forward, provoke, incite or encourage to do ‘an act’. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in fit of anger or emotion without intending the consequence to actually follow cannot be said to be instigation.
11. In the latter case of Sanju alias Sanjoy Singh Sengar v. State of Madhya Pradesh observed (Para 13) :.
Even if we accept the prosecution story that the appellant did tell the deceased ‘to go and die’ that itself does not constitute the ingredient of instigation. The word instigate denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional.
12. On perusal of the impugned Judgment, we find that the learned trial Court was under the impression that the accused appellant being the Head Mistress of the School, was not entitled to recall any wrong order or rectify any mistake that has cropped up or that the Head Mistress is not eligible to scold a student for any undue advantage sought by her. This act will not amount to abetment of an offence. Even if we accept the prosecution evidence in toto, we find that there was absolutely no instigation or abetment on the part of the accused to provoke the deceased to commit suicide. Further with reference to the decision of the Apex Court regarding giving of false explanation by the accused appellant, the prosecution case has not been challenged on the ground that the Head Mistress had left the School around 11.30 a.m. and had gone to Barpeta on official duty. Therefore, on analysis of the evidence on record, we are satisfied that no case for instigation or abetment to commit suicide by the deceased is made out against the appellant. The act attributed will not constitute an offence of abetment under Section 107 IPC.
13. In the result, the appeal is allowed. The conviction and sentence under Section 306 IPC is set aside and the accused appellant is acquitted. She is on bail. She need not surrender to her bail bond.
14. Send down the record.
