KAMARUDDIN DASTAGIR SANADIversusSTATE OF KARNATAKA THROUGH SHO KAKATI POLICE

                [2024] 11 S.C.R. 1269 : 2024 INSC 908

                    Kamaruddin Dastagir Sanadi
                                 v.
           State of Karnataka Through SHO Kakati Police
                     (Criminal Appeal No. 551 of 2012)
                              29 November 2024
                [Pankaj Mithal* and Ujjal Bhuyan, JJ.]


                            Issue for Consideration
       Whether the High Court was justified in reversing the acquittal of
       the appellant-accused and convicting him under Sections 417,
       306 IPC.

                                   Headnotes†
       Penal Code, 1860 – ss.306, 107, 417 – When asked by the
       deceased, the appellant refused to marry her – Deceased
       committed suicide – On facts, whether the appellant, instigated
       or provoked the deceased to commit suicide:
       Held: No – Dying declaration of the deceased indicates that it
       was the deceased who was in love with the appellant and wanted
       to marry him – There was no evidence to prove any physical
       relationship between the two, promise to marry on the part of the
       appellant or that he was instrumental in instigating the deceased
       to consume poison or to commit suicide – When the appellant
       had left the village, it was the deceased who searched about him,
       traced him out and went after him – She called him and when they
       met, he refused to marry her and as her sentiments were hurt,
       she consumed poison – No evidence to prove that the appellant
       instigated or provoked the deceased to kill herself, rather the
       deceased herself carried poison in a bottle with a predetermined
       mind to positively get an affirmation from the appellant to marry
       her, failing which she would commit suicide – To convict a person
       for abetment of suicide u/s.306, there has to be a clear mens rea
       on the part of the accused to abet such a crime with an active or
       a direct act leading to the commission of suicide – On being asked
       by the deceased, the appellant had simply refused to marry her
       which is not a positive act on his part with any intention to abet the
       crime of suicide – No guilty intention or mens rea on part of the

* Author
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    appellant established – Judgment of the High Court set aside –
    Appellant acquitted. [Paras 16, 17, 23, 30, 31]

    Penal Code, 1860 – s.306 – Abetment of suicide – In cases of
    marital discords – No offence u/s.306, unless guilty intention
    established:
    Held: Discord and differences in domestic life are quite common in
    society and the commission of offence of suicide largely depends
    upon the mental state of the victim – Until and unless some guilty
    intention on the part of the accused is established, it is ordinarily
    not possible to convict him for an offence u/s.306. [Para 25]

    Words and Phrases – “abetment”; “instigation” – Penal Code,
    1860 – ss.306, 107 – Abetment of suicide – Abetment of a
    thing – Discussed. [Paras 21, 22, 23, 24, 26]

                             Case Law Cited
    Ramesh Kumar v. State of Chhattisgarh [2001] Supp. 4 SCR 247 :
    (2001) 9 SCC 618; M. Mohan v. State represented by the Deputy
    Superintendent of Police [2011] 3 SCR 437 : (2011) 3 SCC 626;
    Amalendu Pal alias Jhantu v. State of West Bengal [2009] 15 SCR
    836 : (2010) 1 SCC 707 – relied on.
    Prabhu v. State represented by Inspector of Police & Anr. 2024
    SCC Online SC 137 – referred to.

                               List of Acts
    Penal Code, 1860.

                            List of Keywords
    Abetment of suicide; Abetment of a thing; “abetment”;
    “instigation”; Instigated or provoked the deceased to commit
    suicide; Dying declaration; Deceased in love with the accused;
    Broken relationships; Heart breaks; Cheating; No physical
    relationship; No promise to marry; Consumed poison; Refusal
    to marry; No guilty intention or mens rea; Active or a direct act
    leading to the commission of suicide; No positive act; Intention to
    abet the crime of suicide; Acquittal reversed; Discord, differences
    in domestic life.
[2024] 11 S.C.R.                                                      1271

                          Kamaruddin Dastagir Sanadi v.
                  State of Karnataka Through SHO Kakati Police

                               Case Arising From
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      551 of 2012
      From the Judgment and Order dated 15.12.2011 of the High Court
      of Karnataka Circuit Bench at Dharwad in CRLA No.2806 of 2010

                             Appearances for Parties
      Shirish K. Deshpande, Sharanagouda Patil, Ms. Supreeta
      Sharanagouda, Jyotish Pandey, Advs. for the Appellant.
      Muhammad Ali Khan, A.A.G., Omar Hoda, Ms. Eesha Bakshi, Arjun
      Sharma, Kamran Khan, Ms. Gurbani Bhatia, D. L. Chidananda,
      Advs. for the Respondent.

                      Judgment / Order of the Supreme Court

                                   Judgment

      Pankaj Mithal, J.

1.    The accused-appellant was charged under Sections 417, 376 and
      306 of the Indian Penal Code.1 The trial court acquitted him of all
      the above offences, but on appeal by the State of Karnataka to
      the High Court, he was convicted for the offences under Sections
      417 and 306 IPC. However, the acquittal under Section 376 IPC
      was maintained. Hewas awarded sentence of 1 year under Section
      417 IPC with a fine of Rs.5,000/-; and with a sentence of 4 years
      for the offence under Section 306 IPC with a fine of Rs.20,000/-.
      Basically,the conviction of the accused-appellant is for the offences
      of cheating and for abetment of suicide only.
2.    A girl named Suvarna, aged about 21 years, was in love with the
      accused-appellant for the past 8 years i.e. she was in love with him
      since the age of 13 years. It is alleged that the accused-appellant
      had promised to marry her but when he refused, she consumed
      poison and committed suicide.
3.    It is alleged that the accused-appellant, Kamruddin Dastagir Sanadi,
      had promised to marry the deceased before the jamaat (panchayath)


1    In short ‘IPC’
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     but 4 months prior to the incident, he had left the village and started
     living at Kakati, Karnataka. The deceased came to Kakati in the
     evening of 18.08.2007 and when the accused-appellant clearly
     refused to marry her, she left. The deceased spent the whole night
     at the bus stand at Kakati and in the morning consumed poison
     which she had brought with her from Gadhinglaj. One Badshaha
     (PW-5), relative of the accused-appellant, found her lying at the bus
     stand and took her to hospital at about 08:50 am on 19.08.2007.
     PSI Kakati (PW-15) recorded the statement of the deceased
     between 3 pm and 4 pm & thereafter sent a requisition to the
     Executive Magistrate to record the deceased’s dying declaration.
     The dying declaration of the deceased was recorded by the Taluka
     Executive Magistrate, Belgaum (PW-11) in the presence of the doctor
     (PW-12) between 04.50 pm and 05.20 pm. Thereafter, she died in
     the hospital on the same day itself i.e. on 19.08.2007.
4.   The mother of the deceased (PW-1) lodged an FIR on 20.08.2007
     under Section 306 read with Section 34 IPC at the Police Station,
     Kakati, Circle Belgaum Rural District, Karnataka against the
     accused-appellant and his uncle, alleging that the accused-appellant
     had deceived her daughter by promising to marry her and then
     refusing it, which led to the commission of suicide by her in frustration.
5.   After investigation, a chargesheet was drawn and submitted
     charging the accused-appellant under Sections 417, 376 and 306
     IPC. The accused-appellant was arrested on 20.08.2007 and later
     released on bail during the trial. The IInd Additional Sessions Judge,
     Belgaum, vide judgment and order dated 13.04.2010 acquitted the
     accused-appellant of all the charges as there was no allegation
     in the dying declaration that the accused-appellant ever had any
     sexual intercourse with the deceased on the pretext of promise to
     marry her or ever had any physical relationship with her. Her only
     allegation was that she consumed poison as he refused to marry
     her. There was no allegation that the accused-appellant instigated
     her to consume poison or to commit suicide.
6.   Moreover, the statement of mother of the deceased (PW-1)
     revealed that it was only the deceased who was in love with the
     accused-appellant and not the other way around. The deceased had
     impressed upon her mother to convince the accused-appellant to
     marry her as she was in love with him. The mother of the deceased
[2024] 11 S.C.R.                                                    1273

                     Kamaruddin Dastagir Sanadi v.
             State of Karnataka Through SHO Kakati Police

     (PW-1) nowhere stated that the accused-appellant was in love
     with her daughter. No other evidence was there to prove that any
     physical relationship was established by the accused-appellant with
     the deceased except that he had agreed to marry her before the
     panchayath, which was not proved.
7.   Thus, in the facts and circumstances of the case coupled with the
     fact that there was no evidence to suggest that the accused-appellant
     had instigated or aided the deceased in consuming poison and
     committing suicide, the trial court acquitted the accused-appellant.
8.   On appeal by the State of Karnataka, the High Court convicted
     the accused-appellant under Sections 417 and 306 IPC. Thus, the
     present appeal.
9.   Learned counsel for the parties were heard at length and ease.
10. The submission of learned counsel for the accused-appellant is that
    there is no iota of evidence on record to prove abetment of suicide
    or cheating on part of the accused-appellant and that the High
    Court is not justified in reversing the decision of acquittal passed
    by the trial court.
11. The FIR alleges that the daughter of the complainant, upon
    completion of BA, took admission for MA at Gadhinglaj. She i.e.
    the mother of the deceased came to know that her daughter was
    in love with a Muslim boynamed Kamruddin Dastagir Sanadi of the
    village i.e. the accused-appellant. She complained about their affair
    with the reputed people of the Muslim community of the village
    and a meeting of the Muslim community was called wherein the
    accused-appellant and her deceased daughter were present and
    both of them agreed to marry. The accused-appellant cheated her
    daughter by giving false assurance of marriage and by entering
    into physical relationship with her, then refusing to marry, which
    compelled her to consume poison, leading to her death.
12. The deceased left behind two dying declarations which are on
    record.Exh.P17 is the dying declaration recorded by PSI, Kakati
    (PW-15) whereas Exh.P10 is another dying declaration recorded
    later by the Taluka Executive Magistrate, Belgaum (PW-11) in the
    presence of the doctor (PW-12) in the hospital between 04:50 pm
    to 05:20 pm on 19.08.2007.
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13. The dying declaration of the deceased duly recorded by PSI, Kakati
    states that the deceased was a 21 year old girl studying in MA 1st
    year. She was in love with the accused-appellant who had left the
    village 4 months back and had started residing at Kakati, Belgaum.
    Allegedly about 8 days before the incident, he had called on her
    phone and asked her to come to Kakati. She reached Kakati in the
    evening of 18.08.2007 and met him at Avanti Hotel. She asked him
    to marry her but he refused to marry and left. She, thereafter, went
    to the bus stop and consumed poison which she had brought with
    her from Gadhinglaj.
14. The dying declaration recorded later by Taluka Executive Magistrate
    (PW-11), Belgaum, on 19.08.2007 states that she was aged about
    21 years and was residing with her mother, elder sister and younger
    brother and was studying in MA 1st year. She was having an affair
    with the accused-appellant since last 8 years. Their affair came
    to the knowledge of the elder persons of both the families and all
    of them decided to perform the marriage. The accused-appellant
    agreed to marry her in front of the elders of the village. He left the
    village about 4 months ago and when she made inquiries about
    him, she came to know that he was residing at Kakati. She went
    to Kakati and searched him and made a phone call. Then she met
    him at Avanti Hotel and asked him to marry her but he refused.
    Thereafter, she consumed poison which she had brought in a bottle
    from Gadhinglaj. She was shifted to the hospital for treatment by
    a relative of the accused-appellant named Badshaha Nazir Pathan
    (PW-5) of Kakati.
15. The aforesaid statement was made in Marathi and a translated copy
    was put on record. The doctor had certified that the patient was
    fully conscious and fit to give statement. The Executive Magistrate,
    Belgaum, has recorded that the deceased had a frustrated mentality.
16. The dying declaration of the deceased reveals that there is no
    allegation of any physical relationship between the accused-appellant
    and the deceased or that the accused-appellant had ever entered into
    any physical relationship or had sexual intercourse with the deceased
    under the pretext of marriage. The dying declaration indicates that
    it was the deceased who was in love with the accused-appellant
    and wanted to marry him. When the accused-appellant had left the
    village, it was the deceased who made search about him and came
[2024] 11 S.C.R.                                                   1275

                     Kamaruddin Dastagir Sanadi v.
             State of Karnataka Through SHO Kakati Police

     to know that he was residing in Kakati. She herself traced him out
     at Kakati and went after him. She called him and when they met,
     he refused to marry her and thus, as her sentiments were hurt, she
     consumed poison leading to her death.
17. There is no allegation by her that the accused-appellant had
    instigated her to consume poison or to commit suicide. No other
    evidence in this regard has been adduced. Even the mother of
    the deceased (PW-1) in her statement revealed that it was the
    deceased who was in love with the accused-appellant and that she
    wanted her mother to convince him to marry her. The said witness
    though may have stated that the deceased entered into physical
    relationship with her daughter but the same otherwise does not
    stand proved or corroborated, not even by the dying declarations.
    As regards the promise to marry alleged to have been made by the
    accused-appellant, it is said that the same was made before the
    village elders in context with which Najaruddin Mohammad Malik
    (PW-3) and Kashim Babalal Sankeshwar (PW-4) were examined.
    Both these witnesses have stated that they had provided a written
    document regarding the panchayath proceedings to the deceased
    and her mother but no such document was produced by PW-1 to
    prove that the accused-appellant had actually ever promised or
    agreed to marry her daughter. There is allegation but no evidence to
    prove that the accused-appellant was also in love with the deceased
    or that he was in touch with her in any manner. The allegation that
    both of them were talking to each other on phone is without any
    substance as no evidence was produced in the form of call records
    of either of them to establish that the accused-appellant used to
    call the deceased and talk to her and to establish that he was also
    in love with her. There is no evidence to even establish that the
    accused-appellant entered into any physical relationship with the
    deceased on the pretext of marrying her. So, the evidence fails to
    prove any physical relationship between the two, promise to marry
    on the part of the accused-appellant and that he was instrumental
    in instigating the deceased to consume poison or to commit suicide.
18. Section 306 IPC defines abetment of suicide which reads as under:
          “306. If any person commits suicide, whoever abets
          the commission of such suicide, shall be punished with
          imprisonment of either description for a term which may
          extend to ten years, and shall also be liable to fine.”
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19. It provides for the punishment for abetting the commission of suicide.
    Therefore, ‘abetment’ of suicide is an essential element for punishing
    a person for an offence under Section 306 IPC.
20. Abetment has been defined under Section 107 IPC and it reads
    as under:
            “107. Abetment of a thing.- A person abets the doing
            of a thing,who-
            First.- Instigates any person to do that thing; or
            Secondly.- Engages with one or more other person or
            persons in any conspiracy for the doing of that thing, if
            an act or illegal omission takes place in pursuance of
            that conspiracy, and in order to the doing of that thing; or
            Thirdly.- Intentionally aids, by any act or illegal omission,
            the doing of that thing.”
21. The very first clause of the aforesaid provision lays down that a
    person, who abets the doing of a thing, is a person who instigates
    any person to do that thing. Therefore, ‘instigation’ to do a particular
    thing is necessary for charging a person with abetment.
22. ‘Instigation’ is to provoke, incite or encourage a person to do an act.
23. This Court has repeatedly observed that abetment involves a mental
    process of instigating a person or intentionally aiding a person in
    doing of a particular thing and without the positive act on part of the
    accused there would be no instigation. It has also been observed
    that to convict a person for abetment of suicide under Section 306
    IPC, there has to be a clear mens rea on the part of the accused
    to abet such a crime and it requires an active act or a direct act
    leading to the commission of suicide.
24. In Ramesh Kumar vs. State of Chhattisgarh,2 a three Judges
    Bench of this Court dealt with a case of suicide by the wife, where
    the husband in anger uttered-‘You are free to do whatever you wish
    and go wherever you like’.Thereafter, the wife committed suicide.
    The Court, after examining the meaning of instigation which is
    an essential element for abetment of suicide, observed that such


2   [2001] Supp. 4 SCR 247 : (2001) 9 SCC 618
[2024] 11 S.C.R.                                                          1277

                        Kamaruddin Dastagir Sanadi v.
                State of Karnataka Through SHO Kakati Police

     words, uttered out of emotion, do not constitute mens rea and do
     not amount to intentionally inciting the other party to actually do an
     act which may result in the commission of self-killing/suicide.
25. Even in cases where the victim commits suicide, which may be as a
    result of cruelty meted out to her, the Courts have always held that
    discord and differences in domestic life are quite common in society
    and that the commission of such an offence largely depends upon
    the mental state of the victim. Surely, until and unless some guilty
    intention on the part of the accused is established,it is ordinarily
    not possible to convict him for an offence under Section 306 IPC.
26. The salient features constituting an offence under Section 306 IPC
    were elucidated by this Court in M.Mohan vs. State represented
    by the Deputy Superintendent of Police3 and it was observed
    as under:
            “43. This Court in Chitresh Kumar Chopra v. State (Govt.
            of NCT of Delhi) [(2009) 16 SCC 605: (2010) 3 SCC (Cri)
            367] had an occasion to deal with this aspect of abetment.
            The Court dealt with the dictionary meaning of the word
            “instigation” and “goading”. The Court opined that there
            should be intention to provoke, incite or encourage the
            doing of an act by the latter. Each person’s suicidability
            pattern is different from the others. Each person has his
            own idea of self-esteem and self-respect. Therefore, it is
            impossible to lay down any straitjacket formula in dealing
            with such cases. Each case has to be decided on the
            basis of its own facts and circumstances.
            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
            convict a person under Section 306 IPC there has to be
            a clear mens rea to commit the offence. It also requires


3   [2011] 3 SCR 437 : (2011) 3 SCC 626
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            an active act or direct act which led the disease to commit
            suicide seeing no option and this act must have been
            intended to push the disease in two such a position that
            he/she committed suicide.”
27. The same aspects have been reiterated by this Court in Amalendu
    Pal alias Jhantu vs. State of West Bengal 4 and have been again
    repeated in Prabhu vs. State represented by Inspector of Police
    & Anr.5
28. In Prabhu (supra) the Court further observed that broken
    relationships and heart breaks are part of everyday life and that
    breaking-up of the relationship would not constitute any instigation
    or abetment of suicide inasmuch as in order to constitute ‘Instigation’
    it must be shown that the accused had by his acts and omissions
    or by continued course of conduct created such circumstances
    that the deceased was left with no other option except to commit
    suicide.
29. There is no direct evidence adduced by the prosecution to prove
    that the accused-appellant has in any way instigated or provoked
    the deceased to commit suicide. The accused-appellant on asking
    of the deceased had simply refused to marry her which is not a
    positive act on his part with any intention to abet the crime of suicide.
30. If we examine the instant case on the touch stone of the above
    principles of law,we find that the accused-appellant had simply
    refused to marry the deceased and thus, even assuming there was
    love between the parties, it is only a case of broken relationship which
    by itself would not amount to abetment to suicide. The accused-
    appellant had not provoked the deceased in any manner to kill
    herself; rather the deceased herself carried poison in a bottle from
    her village while going to Kakati, Karnataka with a predetermined
    mind to positively get an affirmation from the accused-appellant to
    marry her, failing which she would commit suicide. Therefore, in
    such a situation simply because the accused-appellant refused to
    marry her, would not be a case of instigating, inciting or provoking
    the deceased to commit suicide.



4   [2009] 15 SCR 836 : (2010) 1 SCC 707
5   2024 SCC Online SC 137
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                        Kamaruddin Dastagir Sanadi v.
                State of Karnataka Through SHO Kakati Police

31. Even assuming, though there is no evidence that the accused-
    appellant promised to marry the deceased, that there was such
    a promise, it is again a simple case of a broken relationship for
    which there is a different cause of action, but not prosecution or
    conviction for an offence under Section 306, specially in the facts
    and circumstances of the case where no guilty intention or mens
    rea on the part of the accused-appellant had been established.
32. In view of the facts and circumstances of the case, we are of
    the opinion that the judgment and order of the High Court dated
    15.12.2011 cannot be sustained in law and is hereby set aside and
    the accused-appellant stands acquitted as was done by the trial court.
33. The appeal is allowed with no order as to cost.

     Result of the case: Appeal allowed.



     †
         Headnotes prepared by: Divya Pandey