Section 305 of The Indian Penal Code, 1860

305 of The Indian Penal Code, 1860.

Section 305 states :

Abetment of suicide of child or insane person.—If any person under eighteen years of age, any insane person, any delir­ious person, any idiot, or any person in a state of intoxication, commits suicide, whoever abets the commission of such suicide, shall be punished with death or 1[imprisonment for life], or imprisonment for a term not exceeding ten years, and shall also be liable to fine.

Accordingly, section 306 should also be read with it.

The section says that whosoever is responsible to abet the suicide of a person who is either 18years of age, insane or delirious or idiot or in a state of intoxication and the abetted person commits suicide then the person shall be punished with death or imprisonment for life or with imprisonment for minimum ten years, and shall also be liable to fine.

The section is attracted only when the abetted person commits suicide. The offence is very serious and thus its penalty shall also be serious like that of death.

Abetment can be caused by instigation, conspiracy or intentional aiding provided under section 107 of The Indian Penal Code, 1860.

The offence under this section is cognizable, non-bailable and non-compoundable. It can also be tried by the court of session.

The terms :

Suicide - self murder and the person who commits suicide is beyond the reach of law.

Abetment - abet means to instigate or encourage the commission of a crime.

Abetment of a thing

A person abets the doing of a thing who –

First – instigates that person to do that thing.

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.

Thirdly – intentionally aids, by any act or illegal omission, the doing of that thing.

Illustration:

If A says to B that ‘I am going to kill C’ and B replies ‘Do as you wish and take the consequences’, whereupon A kills C, B cannot be said to have instigated A to stab C. Thus, B is not liable for abetment.

1.Abetment by instigation

The word instigate means to goad or urge forward or to provoke, incite, urge or encourage doing an act prohibited by the law. A person is said to instigate another when he actively suggests or estimates him to an unlawful act by any means or language, direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragements.

2.Abetment by conspiracy

The abetment engaging with one or more persons in a conspiracy to commit an offence. In abetment by conspiracy and the criminal conspiracy the only difference is that the act should have been done. The distinction between an offence of abetment by conspiracy and the offence of criminal conspiracy, so far as an agreement to commit an offence is considered, is that for abetment by conspiracy, mere agreement is not enough. An act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for.

3.Abetment by aid

A person is said to abet the commission of an offence, if he intentionally renders assistance or gives aid by doing an act or omitting to do an act. Mere intension to render assistance is not sufficient.

Intentional aid consists of following three components: • Doing of an act directly assisting the commission of the crime, or • Illegally omitting to do a thing which one is bound to do, or • Doing any act which may facilitate the commission or the crime by another.

Abettor

As per Indian Penal Code, Section 108 deals with Abettor as under:

Abettor—A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.

Explanation I— The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act.

Explanation II— To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused.

Explanation III— It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge.

Explanation IV— The abetment of an offence being an offence, the abetment of such an abetment is also an offence.

Explanation V— It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed.

SUICIDE

The word suicide in itself is nowhere defined in the Indian Penal Code, however its meaning and import is well known and requires no explanation. `Sui’ means `self’ and `cide’ means `killing’, thus implying an act of self-killing.

Suicide is often carried out as a result of despair, the cause of which is frequently attributed to a mental disorder such as depression, bipolar disorder, schizophrenia, borderline personality disorder, alcoholism, or drug abuse. Stress factors such as financial difficulties or troubles with interpersonal relationships often play a role.

While a person who has completed suicide is beyond the reach of the law, as the crime abates with him. However, when a person is unsuccessful in commission of suicide or if the desired intention of the offender is not met in committing suicide, he is within the ambit of Indian penal code under section 309.

This section is based on a reasonable public policy to prevent other person’s involvement, instigation and aiding in terminating one’s life. It takes care of the situation and threats imposed by death baiters.

ATTEMPT TO COMMIT SUICIDE

As per Indian penal code, Section 309 deals with attempt to commit suicide as under:

S.309: Whoever attempts to commit suicide and does any act towards the commission of such offence shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both.

The essence of suicide is intentional self-destruction of life. Intension to commit suicide is essential in order to constitute an offence under this section. Where an accused jumped into a well to avoid the police and later came out of the well of his own accord, it was held that in absence of evidence that he jumped into the well to commit suicide; he couldn’t be convicted of an offence under this section, that is, Section 3097.

The constitutional validity of Section 309 was initially struck down as a cruel and irrational provision and violative of Article 21 of the Constitution, in the case of P. Rathinam v. Union of India8.However, in Gian Kaur v. state of Punjab9, P. Rathinam v.. Union of India was reversed and a constitutional bench of the Supreme Court upheld the constitutional validity of section 309 by indicating that it does not violate Art 14, 19 and 21 of the Indian constitution.

KEY INGREDIENTS OF ABETMENT OF SUICIDE

For conviction under this section, the prosecution has to prove -

1. The deceased committed suicide, 2. The accused instigated or abetted for committing suicide, and 3. Mens Rea of the accused.

The liability arises only when the suicide is committed. In case of an attempted suicide, provisions of Section 306 will not be applicable.

For conviction under Section 305 or 306, the offence of abetment must conform to the definition of ‘abetment’ given in section 107 of the Indian Penal Code. There must be instigation, or engaging in conspiracy, or assistance in the commission of the offence.

In order to convict a person under Section 305 or 306, IPC, there has to be a clear Mens Rea to commit the offence. A conviction for abetment to suicide is possible only if the accused actually made a positive move to push the victim to take his or her own life.

To attract the ingredients of abetment, the intention of the accused to aid, instigate, or abet the deceased to commit suicide is necessary.

The basic constituents of an offence under section 306 are suicidal death and abetment thereof.

The direct involvement by the accused in such abetment or instigation is necessary.

Case

Ankita Goyal vs The State Of Madhya Pradesh on 6 February, 2018

He was a student of 9th class in Active English High School in Ujjain. Police seized a suicide note that said that the child was given threats and demanded money by the petitioner and one of the teachers. The crime was registered against the teacher and the petitioner. The other siblings of the deceased were also studying in the same school for the past few years in different standards. The next day it was discovered that the child had committed suicide by drowning in the pond. The child was so scared that during his lifetime also he did not ever tell his family about the threats. There is lack of direct or indirect circumstance evidence and that makes it not liable to put up a complaint for the petitioner and the teacher under section 305.

There was a revision petition filed by the co-accused Pankaj Bhatnagar.

The judgement states that the alleged threat might be to commit suicide but there was no abetment to commit suicide as defined in section 103 in The Indian Penal Code, 1860.

Therefore, the trial court has made error in framing the chart. Taking this view of the case, the revised petition is allowed. Ankita Goyal is discharged from the commission of the offence under section 305 of the IPC.