M. JEYAPAUL, J.

1. Accused Gurcharan Singh and Sukhwinder singh who were convicted under Section 306 of the Indian Penal Code and sentenced to undergo 6 years rigorous imprisonment and to pay a fine of Rs. 3000/- each and in default to undergo a further period of 6 months rigorous imprisonment have challenged the above judgment of conviction and sentence passed by the trial Court.

2. It is the case of the prosecution that Surjit Kaur (since deceased) was married to Dr. Jaspal Singh. They were blessed with two daughters namely Geet Pahul (since deceased) and Preet Pahul (since deceased). At the time of occurrence that took place on 3.10.2000 Geet Pahul was 22 years old and Preet Pahul was 18 years old. Dr. Jaspal Singh having left the government service about 18 years prior to the occurrence started a coal factory at Muktsar. He suffered losses in the said business. He could not repay the loan obtained by him from the bank. On the death of Jagtar Singh, the father of Dr. Jaspal Singh his property was inherited by Dr. Jaspal Singh and his brothers including accused Gurcharan Singh. Accused Sukhwinder Singh is the son of accused Gurcharan Singh. As the factory went into heavy loss, he started his private medical practice. About 1¾ years prior to the occurrence Dr. Jaspal Singh went missing. He left behind a letter addressed to Regional Manager, Punjab and Sind Bank, Faridkot to the effect that he could not repay the loan as the factory went into loss and he was not having any property in his name. Despite best efforts made by the family of Dr. Jaspal Singh, he could not be traced.

3. Surjit Kaur along with her two daughters Geet Pahul and Preet Pahul shifted her residence from Jalalabad to Abohar and started residing in a rented house of PW3 Master Hans Raj. As they did not have sufficient source of income to meet the expenditure, Surjit Kaur demanded her share in the agricultural land and the house from the family of her in laws for the maintenance of herself and her daughters.

4. On 3.10.2000 at about 10.30 P.M, PW3 Master Hans Raj alerted PW5 Gurjeet Singh and PW6 Gaganjit Singh, the brothers of deceased Surjit Kaur as there was no response from the house of Surjit Kaur. They broke open the window panes and found Surjit Kaur and her daughters Geet Pahul and Preet Pahul lying dead after consuming poisonous substance. There was a death note in the hand writing of Surjit Kaur left behind at the time of committing suicide. It would read that the whole of her land should be given to National Defence Fund. The family of in-laws especially her mother-in-law, Master Gurcharan Singh and his wife Ajit Kaur and his son Goldy were responsible for her death. They also forced her husband to die. They could not live the life of hell. She pleaded before Smt. Sonia Gandhi, President and Chief Minister but there was no one to protect her in the society. She filed a case before the Human Rights Commission. She struggled continuously for 1½ years. As her intelligent daughters were studying, she bore all such pains and remained alive. At least her in-laws should be punished after their death. All the sale deeds of the land were lying by her side. Suicide note of her husband was not handed over to the police on account of some coercion.

5. PW4 Dr. G.S Kalra conducted post mortem examination on 3.10.2000 on the dead body of Preet Pahul. He having harvested the viscera sent them for chemical examination. After receiving the report of the chemical examiner he opined that the cause of death was due to poisoning of Aluminum Phosphide which was sufficient to cause death in due course of events. PW8 Dr. L.C Thakral conducted post mortem examination on the persons of deceased Surjit Kaur and Geet Pahul on 3.10.2000 Based on the chemical examiner's report, he opined that the death was caused due to poisoning of Aluminum Phosphide which was sufficient to cause death in the ordinary course of nature.

6. As many as eight witnesses were examined on the side of the prosecution. The accused submitted a plea in the proceedings under Section 313 Cr.P.C that the share of Dr. Jaspal Singh was already given. Satnam Kaur, the mother of Jaspal Singh had infact gifted in favour of the deceased Surjit Kaur 1/5th share in the property she got from her parents. In addition to that she also gave a some of Rs. 68,650/- to Surjit Kaur on 8.4.1999 but unfortunately a sum of Rs. 67,000/- from the said amount was withdrawn by Surjit Kaur and her brother Gaganjeet Singh who was examined as PW6. They disputed the incriminating circumstances spoken to by the witnesses.

7. On the side of the defence DW1 Ritesh Kumar, Office Executive, Bank of Punjab, Abohar was examined to establish that a sum of Rs. 67,000/- was withdrawn by PW6 Gaganjit Singh, the brother of the deceased Surjit Kaur from the accounts of the latter. They also examined DW2 to DW5.

8. The trial Court having relied upon the suicide note Ex. P-12 and the letter Ex. P-17 sent to Smt. Sonia Gandhi by the deceased Geet Pahul in the background of the evidence of PW5 and PW6, returned a verdict of conviction as against the accused as stated supra.

9. The learned counsel appearing for the appellants would vehemently submit that no witnesses spoke about the act of the accused which amounted to abetment to prove the charge under Section 306 IPC. Referring to Ex. D2 sale deed, Ex. D5 settlement deed and Ex. D6 gift deed, he would submit that one half of the house was already given to the deceased Surjit Kaur. 1/5 share in the property of Satnam Kaur, the mother-in-law of Surjit Kaur, was also given as gift. Rent also has been collected from those properties by Surjit Kaur. The settlement also arrived at between the parties. A sum of Rs. 68,650/- was also deposited by Satnam Kaur in the account of Surjit Kaur. Except the bald allegation that the accused were responsible for the suicide committed by them, no other particulars as regards the abetment were found in the suicide note. The signature in the suicide note was not proved. No complaint was lodged. Nor was any suit filed on the ground that the accused refused to give their share. Therefore, it is his submission that the ingredients of Section 306 IPC were not proved to convict the accused under Section 306 IPC.

10. The learned State counsel referring to Ex. P-17 a letter sent by deceased Geet Pahul to Smt. Sonia Gandhi, President and Chief Minister would submit that the trial Court has rightly come to a conclusion that the transfer of share of the property was only sham and nominal. They could not take possession of the property. They faced threat of re-possession. Left with no option, they had committed suicide. He also referred to the suicide note Ex. P-12. The learned State counsel would submit that the accused had been held responsible by Surjit Kaur and her two daughters for the suicide committed by them.

11. Abetment is nothing but an instigation to do a thing. Aiding intentionally a person to take an ultimate decision to commit suicide by some act or illegal omission also would amount to abetment.

12. Let us first take up the letter Ex. P-17 written by deceased Geet Pahul to Smt. Sonia Gandhi. The decision to end their life had been taken in the background of the grievance expressed in the letter Ex. P-17. She had categorically stated in the said letter that her father suffered huge loss in business. He had to leave the home once for all as he was humiliated, beaten and insulted by his brothers in the matter of settlement of property in dispute. The brother of her father assured to give them two acres of land. Some how two acres of land belonging to her grand mother was transferred in their name but accused Gurcharan Singh the eldest uncle along with Raju came to their house and threatened them. They were not allowed to live in their house at Abohar. They also did not allow them to rent out or sell the same. Whenever someone came to take the house on rent or to purchase the same, they used to threaten them. They also threatened to take back the house but unfortunately they offered much lesser price than the market value. Though the land and house had been given to them, they had proposed to take back the house and land by all means, having sent away her father. They have now snatched all the means of their livelihood. Similar version is found in the letter Ex. P-18 written by deceased Geet Pahul.

13. As rightly pointed out by learned counsel appearing for the accused-appellants, the fact remains that one half of the house was sold under Ex. D2 to Surjit Kaur as per the settlement Ex. D5 arrived at between the parties. 1/5 share in the property of Satnam Kaur, the mother in law of Surjit Kaur, was also gifted in the name of Surjit Kaur as per gift deed Ex. D6. A sum of Rs. 68,650/- was also deposited by Satnam Kaur in the account of Surjit Kaur. But the question that arises for consideration is whether the victims namely Surjit Kaur, Geet Pahul and Preet Pahul had been permitted to enjoy the fruits of the transfers made under those documents. Ex. P-17 and Ex. P-18 categorically state that these accused had put a spoke in enjoying the properties given under those documents. There had been threat also from the accused-appellants. The victims could not enjoy their properties. They could not even rent out the house which was given to them nor could they sell the property on account of the unjustifiable act of the accused. Therefore, the accused-appellants cannot escape from the charge under Section 306 IPC on the ground that the family had already parted with due share of the victims and that, therefore, the question of any abetment committed by them would not arise.

14. In the above background of Ex. P-17 and Ex. P-18, Ex. P-12 will have to be thoroughly analysed by the Court.

15. It was argued by the learned counsel appearing for the appellants that suicide note cannot be looked into as the hand writing and the signature of Surjit Kaur were not established by the prosecution.

16. We have the evidence of PW5 and PW6 who were none other than the brothers of the deceased Surjit Kaur. They are the competent persons to speak about the style of hand writing and the signature put by Surjit Kaur. Of course, there is slight variation in the style of writing of the suicide note and the signature put thereunder by Surjit Kaur compared to her signature found in Ex. D5 and Ex. D6 but the Court will have to sit in the arm chair of the deceased who was under tremendous pressure on the eve of their departure from the world once and for all. Surjit Kaur who had been in a nervous state, having taken an ultimate decision not only to end her life but also to end the precious life of her two daughters. Under such circumstances, normal style of writing cannot at all be expected. Therefore, the mild variation in the style of hand writing and the signature put thereunder is found to be quite normal.

17. There was no delay in lodging the First Information Report and the recovery of the suicide note by the investigating official. There was no breathing time either for PW5 and PW6 or for the investigating official to concot and fabricate a false story as against the accused. Therefore, I have no hesitation to accept the suicide note left behind by the deceased.

18. In the suicide note Ex. P-12 it has been categorically stated that these two accused-appellants also were responsible for the unfortunate decision they had taken to end their life. Further, Surjit Kaur had in fact prayed for punishment to these accused-appellants as well for the act they committed.

19. PW5 and PW6 also have categorically deposed that the failure on the part of the accused/appellants in not permitting the victims to enjoy their due share in the property had led to the suicide of Surjit Kaur and her daughters. Their evidence also corroborates the letters Ex. P-17 and Ex. P-18 written by Geet Pahul suicide note Ex. P-12 left behind by Surjit Kaur. The act of the accused, as described by PW5 and PW6, in not permitting the victims to enjoy the share of their property had virtually instigated the victims to end their life by consuming Aluminum Phosphide.

20. PW3 Hans Raj was the land lord of the premises let out to Surjit Kaur. Of course, he would depose that Surjit Kaur was under depression on account of the missing of her husband and the failure in the educational pursuit of her daughters. He also spoke to the fact that accused had never visited the house of Surjit Kaur.

21. Missing of Dr. Jaspal Singh was attributed to the adamant behaviour of the accused. He had gone out of the house on 2.3.1999 but the present occurrence had taken place on 3.10.2000 If at all missing of the husband could be the reason the for taking such an ultimate decision to end her life, Surjit Kaur would not have awaited for about 1½ years to end her life. As regards the failure in the educational pursuit of Geet Pahul ad Preet Pahul, I find that there is an answer in the suicide note itself. Surjit Kaur has stated in the suicide note that she had been waiting all along bearing the pain and suffering for the educational pursuit of her children. She was prepared to put up with the ordeal just for the sake of education of her children but the act of the accused which had deprived the livelihood of the victims had ultimately driven them to commit suicide. The missing of her husband and the failure in the educational pursuit of her children might have also contributed to her suffering but the proximite cause is found to be the act of the accused which deprived them of their livelihood. That was the reason why the victim has categorically stated in the suicide note that the accused were responsible for taking an ultimate decision by them to commit suicide. That was also the reason why the victims had thought it fit to make provision in such a way that the accused or their family members do not get any right in the property.

22. It is true that no suit was laid for partition of the property and no criminal complaint was also lodged aggrieved by the refusal to part with the property. It was not the refusal to part with the share but the refusal to permit them to enjoy the share given was the real. That was the ultimate grievance of the victims which had been amply demonstrated in the letter Ex. P-17 and P-18 written by Geet Pahul. Under such circumstances, the question of filing a suit for partition does not arise. The letters Ex. P-17 and Ex. P-18 addressed by Geet Pahul are found to be in the shape of complaint. Therefore, no formal criminal complaint was expected from the victims.

23. The learned counsel appearing for the appellants cited a decision of the Hon'ble Supreme Court in Amalendu Pal Alias Jhantu v. State Of West Bengal (2010) 1 SCC 707 wherein it has been held as follows:-

“15. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 Indian Penal Code, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 Indian Penal Code is not sustainable.

16. In order to bring a case within the purview of Section 306 Indian Penal Code there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 Indian Penal Code.”

24. Firstly, I find that the above case dealt by the Hon'ble Supreme Court was a case not only under Section 306 IPC but also under Section 498A IPC. Further in the instant case, I find that the act of the accused-appellants in not permitting the victims to enjoy the share given to them had instigated them to take a decision to end their life. Therefore, the above decision would not come to the rescue of the appellants.

25. The Hon'ble Supreme Court in Gangula Mohan Reddy v. State of Andhra Pradesh 2010 (1) RCR (Criminal 603 has held as follows:-

“20. 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.

21. The intention of the Legislature and the ratio of the cases decided by this Court is 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 committed suicide.”

26. In the instant case, Surjit Kaur had already lost the company of her husband as he had gone missing. She had to maintain herself and two daughters only with the share of her husband. Though the share had been given, the accused had seen that such a share was not fruitfully enjoyed by the deceased. Under such circumstances, instigation made by the accused to commit suicide as per the first limb of Section 107 I.P.C is found established. Therefore, the above ratio also would not apply to the facts and circumstances of this case.

27. The Hon'ble Supreme Court in Indrajit Sureshparsad Bind v. State of Gujrat 2013 (2) MLJ (Criminal) 225 held as follows:-

“Since there are grave doubts as to whether the letter (Ext. 49) was actually written by the deceased or not, conviction of the appellants only on the basis of the said letter (Ext. 49) for the offence under Sections 304B, 498A and 306 Indian Penal Code is unsafe.”

28. In the instant case, I find that the suicide note had been written in the diary maintained by Surjit Kaur. The diary along with the letter written by her husband to the Regional Manager of the bank also was recovered by the investigating agency without any loss of time. PW5 and PW6, the brothers of Surjit Kaur had identified the hand writing and signature of Surjit Kaur in Ex. P-12. Further, the slight variation in the style of writing and the signature of Surjit Kaur has already been dealt by me. Under such circumstances, I do not doubt the suicide note left behind by Surjit Kaur. Therefore, the above decision also does not apply to the facts of this case.

29. In view of the above, I am of the firm view that the trial Court has rightly convicted the accused under Section 306 IPC. As regards the sentence, it was submitted that the 1st appellant was an elderly person and the 2nd accused has his children to take care of. The occurrence had taken place about 14 years ago. Therefore, the learned counsel appearing for the appellants prays for some leniency in the matter of sentence.

30. As three persons had committed suicide on account of the instigation made by the appellants, I am not inclined to give undue leniency in the matter of sentence. At any rate, considering the above submissions made by the learned counsel appearing for the appellants, the sentence of 6 years rigorous imprisonment imposed on the accused appellants is reduced to 5 years rigorous imprisonment. The fine amount imposed and the default sentence awarded by the trial Court for the offence under Section 306 IPC stands confirmed. With the above slight modification in the matter of sentence, the appeal stands dismissed. Both the accused are on bail. Their bail bonds stand cancelled. They shall surrender before the learned Chief Judicial Magistrate, Ferozepur within 15 days from the date of this judgment. In case the appellants fail to surrender within the time frame fixed by this Court, the learned Chief Judicial Magistrate, Ferozepur shall take coercive steps and send them to jail to undergo the unexpired portion of the sentence.