2024 INSC 177 Crl. A. @ SLP(Crl.) No. 4684/2019 1

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. of 2024

(Arising out of SLP(Crl.) No.4684 of 2019)

M. Vijayakumar Appellant(s)

Versus

State of Tamil Nadu Respondent(s)

J U D G M E N T

C.T. Ravikumar, J.

Leave granted.

1. This appeal is directed against the Judgment dated 25.01.2019

passed by the High Court of Judicature at Madras (for short the “High

Court”) in Criminal Appeal No. 667 of 2011 whereunder the appellant’s

conviction under Sections 342 and 365 of the Indian Penal Code, 1860 (IPC

for short) was reversed and he was acquitted therefrom, but his conviction

for the offence under Section 306, IPC was confirmed. The sentence

imposed for the said conviction was reduced to three years rigorous

imprisonment from rigorous imprisonment for seven years.

2. As a matter of fact, the appellant stood trial along with the four

others, including his father Muthu (A-3). The appellant and one

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Ravichandran (A-2) stood trial for the offences under Sections 306, 342 and

365, IPC whereas the others were charged only for offences under Sections

342 and 306 IPC. After the trial, the appellant was convicted for all the

offences for which he stood the trial and at the same time all his co-accused

were acquitted from all the charges. As noticed hereinbefore, in the

appellant’s appeal the High Court confirmed the conviction under Section

306, IPC and acquitted him only of the other two offences. Hence, this

appeal.

3. Heard learned counsel for the appellant and also the learned

Standing Counsel for the State of Tamil Nadu.

4. Before dealing with the contentions and the evidence on record

which ultimately resulted in the confirmation of the conviction of the

appellant under Section 306, IPC, certain relevant aspects of Section 306,

IPC with reference to certain relevant decisions are to be looked into.

There can be no doubt with respect to the position that to bring home a

charge under Section 306, IPC it is incumbent upon the prosecution to

establish :

a) That the victim of the offence committed suicide;

b) That the accused abetted the commission of suicide;

c) That the abetment attracts the ingredients under Section

107,IPC.

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5. Section 107, IPC defines the offence of abetment and it is constituted

by any of the following:-

(a) instigation to commit the offence; or

(b) engaging in conspiracy to commit it; or

(c) intentionally aiding a person to commit it.

6. Now, bearing in mind the scope and ambit of Section 107, IPC and its

co-relation with Section 306, IPC and the decision of this Court in M.

Mohan v. State represented by the Deputy Superintendent of Police

1

and

in Madan Mohan Singh v. State of Gujarat

2

we will proceed to consider

the case. After referring to an earlier decision in Chitresh Kumar Chopra

v. State (Govt. of NCT of Delhi)

3

, this Court in M. Mohan’s case (supra)

analysed the meaning of the word ‘abetment’ and held in paragraphs 44

and 45 thus:-

“44. Abetment involves a mental process of instigating a

person or intentionally aiding a person in doing of a thing.

Without a positive act on the part of the accused to

instigate or aid in committing suicide, conviction cannot

be sustained.

45. The intention of the legislature and the ratio of the

cases decided by this Court are clear that in order to

1

(2011) 3 SCC 626

2

(2010) 8 SCC 628

3

(2009) 16 SCC 605

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convict a person under Section 306 IPC there has to be a

clear mens rea to commit the offence. It also requires an

active act or direct act which led the deceased to commit

suicide seeing no option and this act must have been

intended to push the deceased into such a position that

he/she committed suicide.”

7. In the decision in Madan Mohan Singh’s case (supra) this Court was

considering an appeal against dismissal of a petition filed under Section

482 Cr. PC to quash the FIR registered against the appellant therein under

different Sections of IPC including Section 306, IPC. For the purpose of this

case, it is only referred to paragraph 12 therein, insofar as it is relevant

which reads thus:-

“In order to bring out an offence under Section 306 IPC

specific abetment as contemplated by Section 107 IPC

on the part of the accused with an intention to bring

about the suicide of the person concerned as a result of

that abetment is required. The intention of the accused

to aid or to instigate or to abet the deceased to commit

suicide is a must for this particular offence under

Section 306 IPC………”

8. Thus, an analysis of the provisions under Section 306, IPC with

reference to abetment as contemplated under Section 107, IPC and the

decisions in M. Mohan’s case (supra) and Madan Mohan Singh’s case

(supra) would reveal that while considering the question as to whether a

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person can be convicted under Section 306, IPC or whether a conviction

thereunder could be sustained, one has to consider the mens rea of the

accused/convict to bring about suicide of the victim. Needless to say, that

it requires an active act or direct act which led the victim to commit suicide

seeing no option; and in other words, the act must have been of such a

degree intending to push the deceased into such a position that he/she

committed suicide. Bearing in mind the aforesaid position, we will analyse

the case of the prosecution and the evidence on record to find out whether

the prosecution had succeeded in bringing conviction to the appellant

under Section 306, IPC.

9. A brief reference to the prosecution case is required in the above

regard. As per the prosecution, the victim Senthil Kumar, while working as

a supplier in Salem Hotel belonging to one Muthu (A-3), borrowed an

amount of Rs. 2000/- from the appellant who is the son of A-3. It is the case

that the latter arranged it as a loan on the request of the deceased, from

one Kishore, Venkatachalpati Finance. The deceased failed to repay the

borrowed amount and then the finance company pestered the appellant for

repayment. Enraged by this, the appellant along with one Ravichandran (A-

2) kidnapped the deceased and brought him to the shop of A-2 and from

there took him and wrongfully confined him in the tailor shop of one

Sampath Kumar (PW-3), on 06.12.2002 demanding repayment of the

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borrowed amount. For wrongfully confining him and thereby instigating

him to commit suicide, accused Nos. 3 to 5 had played their role along with

the appellant and A2. It is unable to withstand the torment that Senthil

Kumar committed suicide by hanging in the tailoring shop of PW -3.

Indisputably, this was the prosecution case. But the indisputable and the

undisputed position is that the prosecution which is supposed to establish

its case, as is put forth by it, failed to prove the same. No volume of

argument is required to come to such a conclusion as the very acquittal of

all the co-accused of the appellant by the trial Court and the acquittal of the

appellant of the conviction under Sections 342 and 365, IPC, by the High

Court as per the impugned judgment, would speak for itself. It is also an

undisputable position that despite the acquittal of the co-accused of the

appellant and thereafter, the appellant, as above, no appeal was preferred

against their acquittal. In the contextual situation it is also relevant to note

that though the aforementioned Kishore was cited as a witness for the

prosecution but was not examined. According to the prosecution one

Alexander had witnessed the appellant taking the deceased and

wrongfully confining him in the tailoring shop of PW-3, Smapath Kumar.

However, he was also not examined. In view of the aforesaid facts and the

judgments of the trial Court as also the High Court it can be indubitably

said that the case of the prosecution put forth that the deceased Senthil

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Kumar was kidnapped and wrongfully confined in the tailoring shop of PW-

3 Sampath Kumar was not attempted to be established by the prosecution

by examining the aforesaid Kishore and Alexander and at any rate, case of

kidnapping and wrongful confinement against the appellant was

disbelieved by the High Court.

10. Bearing in mind the aforesaid circumstance that the contentions

against the conviction under Section 306, IPC have to be appreciated.

11. Through PW-2, who claimed to be the wife of the deceased Senthil

Kumar, the prosecution attempted to establish that one week prior to the

occurrence the appellant along with three others went to the house of the

deceased and created a ruckus and at that time PW-2 alone was there.

According to her, when the deceased came back home, she divulged the

entire episode to him. Further, she would depose that her husband had

received Rs. 2000/- for interest and it was to be repaid in instalments. She

would also depose that earlier, the deceased himself had deposited two

installments of Rs. 400/- each, towards the loan amount directly to the

aforementioned financial institution. She has also deposed that subsequent

to the appellant’s iniquitous visit as above, she asked him to come on

Wednesday and then paid him an amount of Rs.800/-.

12. PW-2 further deposed that while leaving the house, after that first

iniquitous visit, the appellant threatened that the deceased would be lifted

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unless the balance amount is not returned. Going by the evidence of PW2

out of borrowed amount of Rs. 2,000/- an amount of Rs. 1,600/- was paid

back. Hence, going by the prosecution case the kidnapping and

consequential wrongful confinement was due to the failure on the part of

the deceased to repay the balance amount. But then, as noticed above, the

case of kidnapping and wrongful confinement was disbelieved by the High

Court and consequently, the appellant’s conviction under Sections 342 and

365, IPC was set aside and the conviction under Section 306, IPC alone was

sustained. It is in the aforesaid context that we have referred to and

analysed the provisions under Section 306, IPC and also referred to the

decisions in M. Mohan’s case (supra) and Madan Mohan Singh’s case

(supra). In the light of the provisions thus analysed with reference to the

said decisions the question to be considered is whether the prosecution

had succeeded in establishing that there was mens rea on the part of the

appellant to commit the offence rather to push the victim to commit suicide

and to attract the offence under Section 306, IPC.

13. While considering the said question it is relevant to take into account

the fact that though the prosecution had attempted to establish the case that

the appellant and the second accused herein had committed the offences

under Sections 306, 342 and 365, IPC. With the acquittal of the appellant

and the second accused under those offences there can be no case of

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kidnapping or wrongful confinement of the deceased Senthil Kumar, by the

appellant. In paragraph 2.1 of the impugned judgment itself the High Court

took note of the prosecution case. It is only apropos to extract paragraph

2.1 which reads thus:-

“2.1 It is the case of the prosecution that the deceased Senthil

Kumar had borrowed Rs.2,000/- from Vijayakumar (A1), which

Vijayakumar (A1) had borrowed from a Finance Company;

when Senthil Kumar did not return the money, the Finance

Company started mounting pressure on Vijayakumar (A1);

therefore, it is alleged that Vijayakumar (A1) and Ravichandran

(A2) abducted Senthil Kumar on 06.12.2002 and locked him up

in the tailoring shop of Sampath Kumar (PW3) and thereby

wrongfully restrained him demanding repayment of the

amount; unable to withstand the torment Senthil Kumar

committed suicide by hanging in the tailoring shop of Sampath

Kumar (PW3) on 06.12.2002.”

14. Thus, it is to be considered when the case put forth by the

prosecution is abduction and wrongful confinement of the appellant for

repayment of the balance amount and the inability to withstand the torment

as the instances for accusing the appellant for commission of the offence of

‘abetment of suicide’, how conviction under Section 306, IPC can be

sustained in the light of his acquittal under Sections 342 and 365, IPC.

15. In the contextual situation, in view of the analysis of the provisions

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under Section 306, IPC and the decisions referred to supra, we will also

have to consider what is mens rea? ‘Mens rea’ means a guilty mind. As a

general rule, every crime requires a mental element, the nature of which,

will depend upon definition of the particular crime in question. Although it

is impossible to ascribe any particular meaning to the term ‘mens rea’ as

the circumstance to determine the existence of mens rea depends upon the

ingredients constituting the particular offence and the expression used in

the definition of the particular offence to constitute such offence. It is only

appropriate to refer to Halsbury’s Laws of England (4

th

Edn., Vol-11, Para-

10), going by the same:

“…it is impossible to ascribe any particular meaning to the

term ‘mens rea’, concepts such as those of intention,

recklessness and knowledge which commonly used as the

basis for criminal liability and in some respects, it may be

said to be fundamental to it. Generally, subject to both

qualification and exception, a person is not to be made

criminally liable for serious crimes unless he intends to

cause or foresees that he will probably cause or at the

lowest he may cause the elements which constitute a crime

in question.”

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16. In the decision in Director of Enforcement v. MCTM Corp. Pvt. Ltd.

& Ors.

4, it was observed that mens rea is a state of mind and held that under

the criminal law mens rea is considered as the “guilty intention” and unless

it is found that the ‘accused’ had the guilty intention to commit the crime, he

could not be held guilty of committing the crime.

17. In the case on hand the question to be considered is whether the

appellant had instigated as envisaged under Section 107, IPC, to commit

the offence under Section 306, IPC. It is in the said circumstances that we

have earlier referred to the ingredients to attract offence under Section

306, IPC. Essentially the gravamen of the offence punishable under Section

306, IPC, is abetting suicide. Abetment imposes a mental process of

instigating a person or initially aiding a person in doing the offence. In the

case on hand, the question is whether the appellant abetted the deceased

Senthil Kumar to commit suicide. The evidence of the prosecution witness

viz., PW-1 and PW-3 did not reveal existence of the element of mens rea on

the part of the appellant. There is nothing in their oral testimonies which

would suggest that the appellant had instigated the deceased Senthil

Kumar to commit suicide. In this context, it is to be noted that the victim

committed suicide inside the tailoring shop of PW-3 Sampath Kumar. He

would submit that on 06.12.2002 at about 06.30 pm he locked his shop and

4

AIR 1996 SC 1100

Crl. A. @ SLP(Crl.) No. 4684/2019 12

left the key of the shop with A-3, father of the appellant. Sampath Kumar

would further depose that he came to know about the commission of

suicide by Senthil Kumar inside his tailoring shop only in the next morning

by about 9 O’clock. We have already noted that though the prosecution got

a case that one Alexander had witnessed the appellant taking the victim

and wrongfully confining him in the said shop, the said Alexander was not

examined by the prosecution. At any rate, the fact is that the appellant was

already acquitted for the offence under Sections 342 and 365, IPC. It is also

to be noted that though A-3, Muthu, (the father of the appellant) was the

person to whom PW-3 said to have handed over the key of his shop, he was

acquitted by the trial Court and no appeal was filed against his acquittal.

The impugned judgment would reveal that even after acquitting the

appellant for the offences under Sections 342 & 365, IPC, the High Court

confirmed his conviction under Section 306, IPC, holding that the appellant

had failed to offer explanation as to how the deceased Senthil Kumar

entered into the tailoring Shop of PW-3 to commit suicide in terms of

Section 106 of the Evidence Act.

18. We are at a loss to understand as to how Section 106 of the Evidence

Act could be applied in the case on hand against the appellant in view with

facts narrated above. This Section is an exception to the general rule laid

down in Section 101 which casts burden of proving a fact on the party who

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substantially asserts the affirmative of the issue. Section 106 is not intended

to relieve any person of that duty or burden. On the contrary, it says that

when a fact to be proved, either affirmatively or negatively, is especially

within the knowledge of a person, it is for him to prove it. This Section, in

its application to criminal cases, applies where the defence of the accused

depends on his proving a fact especially within his knowledge and of

nobody else. In short, Section 106 cannot be used to shift the burden of

proving the offence from the prosecution to the accused. It can only when

the prosecution led evidence, which, if believed, will sustain a conviction

or which makes out a prima facie case, that the question of shifting the onus

to prove such fact(s) on the accused would arise. (See the decision in

Sawal Das v. State of Bihar

5

).

19. In view of the exposition of law as above and in the absence of

anything to make Section 106 applicable to shift the onus on the appellant,

the High Court had committed an error in applying Section 106 of the

Evidence Act, in the instant case.

20. We have no hesitation, therefore, to hold that there is absolute

absence of any basis for its application against the appellant in view of the

evidence on record.

21. The upshot of the discussion is that the prosecution has miserably

5

AIR 1974 SC 778

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failed to establish that the appellant herein had abetted the victim to

commit suicide. The conviction of the appellant under Section 306, IPC

cannot be sustained.

22. Resultantly this appeal stands allowed. The appellants conviction

under Section 306, IPC which was confirmed vide judgment dated

25.01.2019 passed by the High Court in Criminal Appeal No.667/2011 is

quashed and set aside. Consequently, he stands acquitted of the offence

under Section 306, IPC. The appellant is already on bail. His bail bonds

are discharged.

23. Pending application(s), if any, shall stand disposed of.

.........................J.

(C.T. RAVIKUMAR)

.......................J.

(RAJESH BINDAL)

New Delhi;

February 21, 2024.