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.

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.

The appeal has been dismissed as abated so far appellant No.2 Sushil

Tiwari is concerned.

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

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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.

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.

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/s.

State of M.P., AIR 2002 SCC 1998 and judgment in the case of Gangula

Mohan Reddy V/s. State of Andhra Pradesh (2010) 1 SCC 750 and also in

order passed by a co-ordinate Bench of this Court in Shivnarayan & others

Vs. State of M.P and others passed in MCRC No.15725/2022 vide order

dated 13/12/2022.

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

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order of conviction and sentence is legal and valid.

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

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/s. 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 necessary concomitant of

instigation. It is common knowledge that t