ORDER

1. Both the Criminal Appeals are filed under section 374(2) of the Cr.P.C, being aggrieved by the common judgment of conviction and sentence passed by 14th Additional Sessions Judge, Indore in Sessions Trial No.428/92 whereby the appellants have been convicted and sentenced for offence under section 306 IPC, R.I for 5 years and fine of Rs. 1000/- and in default 6 months R.I.

2. In Criminal Appeal No.419/2000 it was stated that one of the appellants Sushil Tiwari son of Ramnath Tiwari has expired during pendency of the Appeal. The said fact was verified and by order dated 14.11.19, this Court directed for deleting the name of the appellant No.2 Sushil Tiwari son of Ramnath Tiwari from the array of appellants.

3. The appeal has been dismissed as abated so far appellant No.2 Sushil Tiwari is concerned.

4. Facts of the case adumbrated in a nutshell are that the appellants and other co-accused persons are the employees of the Citizens Co-operative Bank, while the deceased was the collection agent of the said Bank. It is further alleged by the prosecution that the deceased had defalcated money out of the amount of daily collection made by him, therefore, action was taken by the Bank against him and the appellant and other co-accused persons being the employees of the Bank were sent to persuade the deceased for depositing the amount defalcated by him. It is further alleged that after sometime the deceased had committed suicide. It is also alleged that the deceased had left a letter/suicide note alleging therein that the appellants/accused persons were pressurizing him for returning the Bank money, therefore, he had committed suicide.

5. After investigation, a case was registered under section 306 IPC and the appellants have been convicted under section 306 and sentenced to undergo R.I for 5 years with fine of Rs.1000/- with default stipulation.

6. Counsel for the appellants submits that the appellants were employees of the Bank and the deceased was working as a collection Agent for collecting the amount and since he defalcated the Bank money, therefore, they had gone to recover the said amount from him. The alleged act of the appellants cannot be said to be instigation or abetment within the definition of abetment under section 107 or 306 of the IPC as also the necessary factors/ingredients to attract the aforesaid Sections are absent. There is no allegation against the appellants of instigating or abetting the deceased in any manner to commit suicide and it cannot be said that due to their acts, the deceased was left with no other option but to commit suicide and, therefore, their conviction and sentence is contrary to law. In support of his submission, he has relied on the judgments passed by the apex Court in the case of Sanju @ Sanjay Singh Sengar v. State of M.P., AIR 2002 SCC 1998 and judgment in the case of Gangula Mohan Reddy v. State of Andhra Pradesh (2010) 1 SCC 750 and also in order passed by a co-ordinate Bench of this Court in Shivnarayan & others v. State of M.P and others passed in MCRC No.15725/2022 vide order dated 13.12.2022.

7. Per contra, learned counsel for the respondent submit that the deceased was mentally as well as physically harassed by the appellants to such an extent that he was left with no other option but to commit suicide and, therefore, the order of conviction and sentence is legal and valid.

8. I have heard learned counsel for the parties and perused the record.

9. Section 107 of the IPC makes it obligatory for the prosecution to show and establish the elements of instigation. The Apex Court in the case of Sanju @ Sanjay Singh Sengar v. State of M.P., AIR 2002 SC 1998 has opined as under :-

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 inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the