The prosecution must establish mens rea and instigation to prove abetment of suicide under Section 306 IPC.

1. Heard.

2. This appeal is directed against the impugned judgment dated 22-12009 passed by Sessions Judge, Raipur in Sessions Trial No. 168/2008 convicting the appellant/accused for the offence punishable under Section 306 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for 5 years and pay fine of Rs. 1,000/-, in default of payment of fine to further undergo rigorous imprisonment for 6 months.

3. The prosecution story in nutshell is that on the basis of merg intimation (Ex.P-1) lodged by Manglu Mahidhar (P.W.-11) F.I.R. (Ex.P-12) was registered on 28-8-2008 against the appellant/accused alleging in it that on 2-8-2008 his wife Nisha Mahidhar committed suicide and thereby the appellant/accused committed the offence under Section 306 IPC.

4. So as to prove the guilt of the appellant/accused, the prosecution has examined as many as 11 witnesses. Statement of the accused was also recorded under Section 313 Cr.P.C. in which he denied the charge levelled against him and pleaded his innocence. 1 defence witness Humanlal has also been examined by the appellant/accused. After hearing learned counsel for the parties, the trial Court has convicted and sentenced the appellant/accused as mentioned above. Hence this appeal.

5. Learned counsel for the appellant/accused submits that even if the entire prosecution case is taken as it is, the offence under Section 306 IPC is not made out because the basic ingredients of Section 306 IPC in particular Section 107 IPC are not attracted in the present case. It has been argued by learned counsel for the appellant/accused that as per the case of the prosecution, the deceased Nisha Mahidhar was alleged to be the second wife of the appellant/accused and it has further come in evidence that on or around April, 2008 the appellant/accused married one Pinki Dhritlahre and thereafter in June, 2008 it is alleged that he married to the deceased Nisha Mahidhar. He submits that admittedly Pinki Dhritlahre, the first wife of the appellant/accused was living along with the parents of the appellant/accused in his own house whereas deceased Nisha Mahidhar was residing in a separate old house along with brothers of the appellant/accused Vidya Sagar and Manoj. He submits that the appellant/accused has been convicted on the basis of statements of Manglu Mahidhar (P.W. -1), Ritu Mahidhar (P. W.2), Sadhanbai:(P.W.-3) and Radhelal (P.W.-4) and according to him even if the statements of these witnesses are taken as it is, the offence under Section 306 IPC is not made out. In support of his contention, learned counsel for the appellant/ accused placed reliance on Ramesh Kumar Vs. State of Chhattisgarh-1, Sanju alias Sanjay Singh Sengar Vs. State of Madhya Pradesh-2, Netai Dutta Vs. State of West Bengal-3 and Sohan Raj Sharma Vs. State of Haryana-4.

1. AIR2001 SC 3837

2. AIR 2002 SC 1998

3. AIR 2005 SC 1775

4. AIR 2008 SC 2108

6. On the other hand, it has been argued by learned counsel for the State/ respondent that the deceased Nisha Mahidhar was subjected to cruelty by the appellant/accused to the extent where she was left with no other option but to commit suicide. According to him, the appellant/accused was well aware that he was a married person yet he performed the second marriage with the deceased Nisha Mahidhar and in Stead of keeping her in his main house along with his parents, the deceased Nisha Mahidhar was kept in a mud house (kachcha house). Be referred the statement of Manglu Mahidhar (P.W.-1) in particular para 13 wherein it has been stated by this witness that his daughter was subjected to cruelty and once she had telephoned him and asked him for money because she was not having any money to arrange her food as she was being kept separately. He further submits that as per the statement of Sadhanbai (P.W.-3), 2 days prior to the date of incident, when she had gone to the first house of the appellant/accused, Ramavtar, brother of the appellant/accused had told the first wife of