Supreme Court of India
M. VIJAYAKUMARversusSTATE OF TAMIL NADU
- Citation
- 2024 INSC 177
- Decided
- 21 February 2024
- Disposal
- Appeal(s) allowed
- Bench
- C T RAVIKUMAR
Holding
A conviction under Section 306 IPC requires proof of a clear mens rea and a positive act of instigation or aid, which the prosecution failed to establish, rendering the conviction unsustainable.
Summary
The appellant, M. Vijayakumar, was convicted under IPC sections 306, 342 and 365 for allegedly kidnapping and wrongfully confining the deceased, leading to the latter's suicide. The prosecution argued that the appellant’s abduction and confinement forced the victim to commit suicide, thereby satisfying the elements of abetment under Section 306. The Supreme Court examined the requirement of mens rea and a positive act of instigation or aid as mandated by Section 107 in conjunction with Section 306, and found no evidence that the appellant intended or directly caused the suicide. It also held that Section 106 of the Evidence Act could not shift the burden of proof to the accused, as the prosecution had not established a prima facie case. Consequently, the Court quashed the conviction under Section 306, acquitted the appellant, and discharged his bail bonds.
Issues considered
- Whether the prosecution proved the appellant's mens rea and positive act of abetment required under Section 306 IPC in conjunction with Section 107 IPC.
- Whether Section 106 of the Evidence Act can be invoked to shift the burden of proof to the accused in an abetment of suicide case.
Legislation cited
- Code of Criminal Procedure, 1973s. 482
- Evidence Act, 1872s. 101, s. 106
- Indian Penal Code, 1860s. 107, s. 306, s. 342, s. 365
Subjects
SuicideAbetment of suicideMens reaInstigationBurden of proofKidnappingWrongful confinement
Judgment
[2024] 2 S.C.R. 1054 : 2024 INSC 177
M. Vijayakumar
v.
State of Tamil Nadu
(Criminal Appeal No. 1078 of 2024)
21 February 2024
[C.T. Ravikumar* and Rajesh Bindal, JJ.]
Issue for Consideration
Prosecution, if 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 u/s. 306, IPC.
Headnotes
Penal Code, 1860 – s. 306 – Abetment of suicide – Conviction
u/s. 306, when sustainable – Prosecution case that the
appellant and others abducted and wrongful confined the
victim for repayment of the balance amount and the inability
to withstand the torment, he committed suicide – Conviction
of the appellant u/ss. 306, 342 and 365 by the trial court,
however, the High Court acquitted him for the offence u/ss.
342 and 365 but upheld conviction for the offence u/s. 306 –
Sustainability:
Held: One has to consider the mens rea of the accused/convict
to bring about suicide of the victim – It requires an active act or
direct act which led the victim to commit suicide seeing no option;
and the act must have been of such a degree intending to push
the deceased into such a position that he/she committed suicide
– Gravamen of the offence punishable u/s. 306, is abetting suicide
– Abetment imposes a mental process of instigating a person or
initially aiding a person in doing the offence – Evidence of the
prosecution witness did not reveal existence of the element of
mens rea on the part of the appellant abetting the deceased to
commit suicide – There is nothing in their oral testimonies which
would suggest that the appellant had instigated the deceased to
commit suicide – Though the prosecution got a case that one
person had witnessed the appellant taking the victim and wrongfully
confining him in the said shop, the said person was not examined
by the prosecution – At any rate, the fact is that the appellant was
* Author
[2024] 2 S.C.R. 1055
M. Vijayakumar v. State of Tamil Nadu
already acquitted for the offence u/s. 342 and 365 IPC – s. 106 of
the Evidence Act cannot be used to shift the burden of proving the
offence from the prosecution to the accused – High Court erred
in applying s. 106 – Thus, there is absolute absence of any basis
for its application against the appellant in view of the evidence
on record – Prosecution miserably failed to establish that the
appellant had abetted the victim to commit suicide – Conviction
of the appellant u/s. 306, IPC cannot be sustained – Appellants
conviction u/s. 306 quashed and set aside and he is acquitted.
[Paras 14, 17-22]
Criminal law – Mens rea – Meaning of:
Held: 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. [Para 15]
Evidence Act, 1872 – s. 106 – Burden of proving fact especially
within knowledge – Application of s. 106:
Held: Section 106 is an exception to the general rule laid down
in s. 101 which casts burden of proving a fact on the party who
substantially asserts the affirmative of the issue – s. 106 is not
intended to relieve any person of that duty or burden – 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 – s. 106 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 – s.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 facts on the accused would arise. [Para 18]
Case Law Cited
M. Mohan v. State represented by the Deputy
Superintendent of Police, [2011] 3 SCR 437 : (2011) 3
SCC 626; Madan Mohan Singh v. State of Gujarat, [2010]
1056 [2024] 2 S.C.R.
Digital Supreme Court Reports
10 SCR 351 : (2010) 8 SCC 628; Sawal Das v. State of
Bihar, [1974] 3 SCR 74 : AIR 1974 SC 778 – relied on.
Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi),
[2009] 13 SCR 230 : (2009) 16 SCC 605, Director of
Enforcement v. MCTM Corp. Pvt. Ltd. & Ors., [1996] 1
SCR 215 : AIR 1996 SC 1100 – referred to.
Books and Periodicals Cited
Halsbury’s Laws of England (4th Edn., Vol-11, Para –
10) – referred to.
List of Acts
Penal Code, 1860; Evidence Act, 1872.
List of Keywords
Suicide; Abetment of suicide; Mens rea; Instigation; Burden of
proof; Kidnapping; Wrongful confinement.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1078
of 2024
From the Judgment and Order dated 25.01.2019 of the High Court
of Judicature at Madras in CRLA No. 667 of 2011
Appearances for Parties
G. Sivabalamurugan, Selvaraj Mahendran, C. Adhikesavan, S.B.
Kamalanathan, P.V. Harikrishnan, Sunil Singh Rawat, Kartik Sandal,
Advs. for the Appellant.
D. Kumanan, Mrs. Deepa. S, Sheikh F. Kalia, Veshal Tyagi, Advs.
for the Respondent.
Judgment / Order of the Supreme Court
Judgment
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
[2024] 2 S.C.R. 1057
M. Vijayakumar v. State of Tamil Nadu
“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
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.
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.
1058 [2024] 2 S.C.R.
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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 Police1 and in Madan Mohan Singh v. State
of Gujarat2 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
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
1 [2011] 3 SCR 437 : (2011) 3 SCC 626
2 [2010] 10 SCR 351 : (2010) 8 SCC 628
3 [2009] 13 S.C.R. 230 : (2009) 16 SCC 605
[2024] 2 S.C.R. 1059
M. Vijayakumar v. State of Tamil Nadu
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 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 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
1060 [2024] 2 S.C.R.
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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 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
[2024] 2 S.C.R. 1061
M. Vijayakumar v. State of Tamil Nadu
be lifted 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 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
1062 [2024] 2 S.C.R.
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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
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 (4th 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.”
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
4 [1996] 1 S.C.R. 215 : AIR 1996 SC 1100
[2024] 2 S.C.R. 1063
M. Vijayakumar v. State of Tamil Nadu
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 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
1064 [2024] 2 S.C.R.
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general rule laid down in Section 101 which casts burden of proving
a fact on the party who 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 Bihar5).
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
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.
Headnotes prepared by: Nidhi Jain Result of the case:
Appeal allowed.
5 [1974] 3 SCR 74 : AIR 1974 SC 778
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