IMPORTANT POINT
To convict for abetment of suicide, there must be clear evidence of instigation or incitement, not merely allegations of harassment.

JUDGMENT :

S.G. MEHARE, J.

1. The applicant/convict preferred this revision against the judgment and order of conviction of the learned 5th Ad-hoc Assistant Sessions Judge, Aurangabad, in Sessions Case No.21 of 2004 dated 28.04.2004 and the learned 4th Additional Sessions Judge, Aurangabad, in Criminal Appeal No.80 of 2004, dated 30.06.2004. The appellate Court maintained the conviction against the applicant/husband and acquitted his parents.

2. The learned counsel for the applicant has vehemently argued that both Courts erred in law in not commenting upon the contradictory opinions of the Medical Officer performing the postmortem report and Chemical Analyzer about the cause of death. Considering the chemical analysis report, the prosecution failed to prove the exact cause of death. Since the cause of death is not proven, the applicant cannot be blamed for the alleged offences. The conviction is based only upon the partisan witnesses. The neighbours were not examined. The evidence has not been appreciated properly. The prosecution case was based on hearsay evidence. The contradiction and omissions have not been correctly appreciated. The findings of the trial Court are self- contradictory. There was no evidence of abetment to commit suicide. The abetment, as defined under Section 107 of the Indian Penal Code (“IPC”) has not been established. The learned trial Court erred in exhibiting the statement of the witnesses under Section 164 of the Code of Criminal Procedure without giving an opportunity to cross-examine the Special Executive Magistrate.

3. To bolster his arguments, he relied on the case of - (i) Naresh Kumar vs. State of Haryana, Criminal Appeal (No.) 1722 of 2010 (@ Special Leave Petition (Criminal) No.8873 of 2008, SC, dated 22 February, 2024, and (ii) Kashibai and Ors. vs. The State of Karnataka, Criminal Appeal No. …. of 2023 (Arising out of SLP (Crl.) No.8584 of 2022, dated 28.02.2023 :: 2023 LiveLaw (SC) 149.

4. Per contra, the learned A.P.P. submits that there are concurrent judgments of conviction imposed on the applicant. The Revision Court cannot re-appreciate the evidence. Both Courts have correctly appreciated the evidence and recorded the conviction against the applicant. The difference of opinion between the Medical Officer and the Chemical Analyzer does not vitiate the prosecution. In such a case, circumstantial evidence is to be considered. Both Courts have correctly considered the circumstances. The applicant had a false defense of snake biting. There is no error of law in the impugned judgment.

5. To bolster his arguments, he relied on the case of State of Kerala: Managing Director, Western India Plywoods vs Puttumana Illath Jathavedan Namboodriri, 1999 AIR (SC) 981.

6. The Hon’ble Supreme Court, in the case of State of Kerala (supra), has laid down the law that the revisional powers cannot be equated with the power of an Appellate Court, nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re- appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.

7. The first legal question is whether contradictory opinions as regards the cause of death vitiate the trial.

8. The Medical Officer who performed the postmortem, has opined that the cause of death was insecticidal poisoning. His opinion was based upon the postmortem signs that the brain was congested oedematous, right and left lungs congested oedematous, paritoneuum was congested, imparting abnormal smell, the stomach contained 20 cc., dark reddish liquid imparting abnormal smell, mucosa congested, eroded with defused submucosal haemorrhage. Other contents of the stomach, pancreas, spleen, and kidney were congested. She had conceived