Author - Nidhi Lakhotia
Though the title does talk about “murder,” in the present context, murder shall more or less be used as the “act of killing a human being with malice aforethought” in relation to instigating or abetting a person to commit suicide. Instigating a person to commit suicide or to take any steps for the same is not only morally wrong but also unlawful. The Indian Penal Code, 1860 (IPC) terms this as “abetment of suicide” and abetment of an attempt to commit suicide. It is an established law that abetting suicide or an attempt thereof is a crime. But under what conditions should a person encouraging suicide be liable if the person so encouraged does not commit or attempt suicide?
To understand, encouraging suicide can be categorised into three scenarios:
a. A instigates Z to commit suicide, and Z attempts to commit suicide,
b. A instigates Z to commit suicide, and Z commits suicide, and
c. A instigates Z to commit suicide, and Z does not commit suicide.
In the first scenario, attempt to commit suicide is an offence, and its abetment is an offence as well. In the second scenario, abetment of suicide is itself an offence under the IPC, and therefore, A is liable for punishment. In the last scenario, Z does not commit suicide or attempt to do so. Thus, should A be liable, and if yes, under what? To answer this question, it is imperative to understand what is abetment and the constituents of the first two scenarios.
As per Section 107 of the IPC read with Section 108 and Section 40, abetment of a thing (or an offence) can be:
a. Instigating a person to commit the offence, or
b. Engaging with one or more person[s] in any conspiracy to commit the offence by an act or illegal omission, or
c. Intentionally aiding by an act or illegal omission to commit an offence.
The term “instigation” is defined as “to goad, urge forward, provoke, incite or encourage to do ‘an act.” Instigation is not limited merely to actual words used to that effect or necessarily or specifically be suggestive of the consequence. However, “a reasonable certainty to incite the consequence must be capable of being spelt out.” Instigation must also include the mens rea or the “mental process of instigating a person or intentionally aiding a person in doing of a thing.” In other words, to determine abetment, the acts preceding the commission of offence must be taken into account. Individually, these acts may not amount to instigation under Section 107, but if cumulatively the acts qualify as instigation, Section 107 shall be applicable. To illustrate, in the same example, if A, in a fit of anger, says to Z that, “you should die, you waste of space,” the same would not be instigation. But if A continues to harass Z over a period of time through quarrels and says, “I would feel very relieved if you were to die,” and Z commits suicide immediately (or attempt to commit suicide), the same is abetment.
Looking at the first scenario, for a person to be held liable for abetting an attempt to commit suicide, ingredients under Section 107 read with Section 309 must be met. Section 309 lays down that the attempt to commit suicide and any act done towards the commission of such offence is punishable. Section 107 talks of abetment of a thing, thereby bringing all offences under IPC to be a subject matter under it. An abettor is a person who abets the commission of an offence. Since attempt to suicide itself is an offence and any offence can be abetted, the abetment of attempt to commit suicide shall be punishable under Section 309, read with Section 109. In Satvir Singh v. State of Punjab, the court stated that penalising abetment of attempt to suicide would be preposterous, extremely flawed and poorly reasoned. The Court, in a later judgement goes on to state that, “[a]betment of attempt to commit suicide is outside the purview of Section 306, and it is punishable only under Section 309 read with Section 107 IPC.” Thus, A would be liable for punishment under IPC provisions.
Unlike the previous scenario, suicide by itself is not punishable under the IPC and thus, abetting suicide, too, is not punishable under Section 107. To rectify this, the Legislature included “abetment of suicide” as an offence under Sections 305 and 306. In other words, abetting suicide is an offence as per the definition of offence and cannot be categorised as abetment under Section 107. The ingredients of Section 306 are as follows:
a. Deceased must have committed suicide;
b. Accused must abet the commission of suicide.
However, not only must the requirements of Sections 305 and 306 be proved, but the prosecution shall also have to prove any of the three ingredients under Section 107. That is, whether the act of the accused did abet the deceased to commit suicide must be proved as well. Furthermore, to constitute abetment by instigation, a direct link between the incitement and the suicide must be proved. In other words, the act of the deceased to commit suicide must be traceable back to the accused’s act of instigation, and the accused must have the mens rea to instigate.
To sum up, for an offence to fall under Section 306, the objective criterion is that the deceased’s death must be suicidal. The second criterion of the accused act to abet the commission of suicide is partly subjective and partly objective, such that abetment must qualify the conditions under Section 107 and must also be one of the main reasons or the only reason for the deceased to commit suicide.
In the last scenario, A instigates Z to commit suicide but Z does not commit suicide.
Thus, though A’s act is morally reprehensible, he cannot be held liable under Section 306 as Z has not committed suicide, which is an essential requirement. Thus, though A may have had the requisite mens rea and had instigated Z to commit suicide, the fact that Z did not do so results in A not being liable under Section 306.
Section 116 provides for a case wherein abettor is punishable even if the offence or act that the person abetted does not occur. However, even by reading Section 306 with Section 116, A would not be liable as ‘suicide’ by itself is not defined under the IPC. Thus, though Z has not committed suicide, it would not automatically come under Section 116. Even in this case, A would not be liable for his morally reprehensible act.
In both cases, A would not be liable as no offence has been committed.
Now, if the situation was to be tweaked, such that B instigates A who, in turn, instigates Z to commit suicide, who does not do so. Again, applying the aforementioned reasoning, A would not be liable under IPC. A was instigated by B to abet Z to commit suicide. Thus, by virtue of Section 116 read with Sections 107, 108 and 306, B would be liable as an abettor and punishable under Section 116. To elaborate, A had instigated Z to commit suicide. But Z did not commit suicide. Thus, no offence is made out under Section 306 and A is not liable. Section 116, as discussed above, covers scenarios wherein the offence abetted is not committed. Even in such case, the abettor is liable. In the present situation, B had primarily instigated A to abet Z to commit suicide. Though as per a preliminary reading, B could be seen as an abettor to abetment of an offence and would be liable to be punished under Explanation 4 to Section 108, since ‘abetment to commit suicide’ in itself is an offence, the application of the provision of abetment of abetment is wrong. Here, Section 107 would be applicable. B is instigating A to commit an offence. Thus, though A does not commit the offence, B would be liable as an abettor to the offence and be punishable under Section 116.
Again, by tweaking the scenario, the situation can be laid out as given: A attempts to instigate Z to commit suicide and Z does not commit or attempt to commit suicide.
Firstly, it is prudent to understand what falls under the “attempt to commit an offence’. A culprit first intends to commit the offence, then makes preparation for committing it and thereof attempts to commit the offence. Attempt to commit an offence can be said to have begun when the preparations are complete and the accused has commenced to do an act with the intention to commit the offence. This act must be a step towards the commission of the offence. Preparation is devising or arranging the means or measures necessary for the commission of the offence. An attempt is the direct movement towards the commission post preparation. To illustrate, if P has the intention to steal O’s necklace and has found out when O’s house will be empty and where the necklace is stored, breaks into the house and opens the jewellery box which is found to be empty, P is guilty of attempting an offence.
In the given scenario, liability of A under Section 511 read with Section 306 (former) or Section 309 (latter) is highly subjective or based on the facts and circumstances. Nonetheless, to understand it better, a factual matrix is presented. A and Z have been married for 15 years. A has been having an affair for the past 2 years. A intends for Z to kill himself to inherit Z’s property. For this, A sends Z videos of A and A’s lover in intimate positions and begins arguing with Z and says, “You should kill yourself” and variants thereof. Here, even if Z does not commit suicide or attempts to, A shall still be liable under Section 511 read with Section 306 or 309 (as per the case) because A had taken clear steps to commit the offence or abetment of an offence. Had A only recorded the videos but not sent them, it would have still been in a preparatory stage and would not be punishable under the aforementioned sections.
Lastly, taking the scenario further, it can be said that Z has not attempted to commit suicide. Thus, instead of analysing the case from the perspective of Z’s lack of commission of suicide, thereby indicating that no offence has been committed, the case shall be construed to say that Z had not attempted to commit suicide. In such a case, the case may squarely fall under Section 116 read with Sections 107 and 309 because attempt to commit suicide is an offence and by extension, abetment of the same is punishable. And since the attempt to suicide was not committed, no offence took place. As discussed above, Section 116, wherein abettor is punished even if the offence is not committed, is applicable. Therefore, though prima facie there exists no difference in situations where Z does not commit suicide or attempt to commit suicide, purely from an academic view, A shall be liable in the latter case. However, if Z procures a rope with the intention to hang himself but does not go through the act at a later stage, A shall be liable under Section 116 read with Sections 107 and 309. But, if Z takes no action whatsoever, A shall not be liable. Therefore, there exists a thin line of demarcation between not committing suicide and not attempting to commit suicide.
To conclude, A shall be liable in cases where Z commits suicide, attempts to commit suicide, intents or prepares but does not attempt to commit suicide, and attempts the abetment to commit suicide. Under these, A shall be liable as the primary offender in the case where Z commits suicide and succeeds. Z shall only be liable in cases where he attempts to commit suicide, in cases where Z prepares but does not attempt to commit suicide, Z shall not be punished under Section 309. A shall not be liable where suicide is not committed, and in cases where A himself is instigated by B to instigate Z to commit suicide.
[The author is a second-year law student at the National Law University, Jodhpur.]
 Murder, Oxford English Dictionary (9th ed. 2006). Cf. Section 300, Pen. Code (defines murder as an offence, is the legally acceptable definition).  Naresh Marotrao v. Union of India, (1995) Cr LJ 96 (Bom) (‘instigating’ or ‘encouraging’ or ‘aiding’ any person to commit suicide opposes the public policy and is seen as a threat to society.).  Section 306, Pen. Code.  Section 107 read with Section 307, Pen. Code.  M. Mohan v. State Represented by the Deputy Superintendent of Police, (2011) 3 SCC 626.  Id.  Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618; Gangula Mohan Reddy v. State of A.P., (2010) 1 SCC 750.  Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 (a word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to instigate.); M. Mohan v. State Represented by the Deputy Superintendent of Police, (2011) 3 SCC 626; Nachhattar Singh v. State of Punjab, (2011) 11 SCC 542 (difference of opinion within a family on everyday mundane matters would not fall within abetment to suicide.).  Brij Lal v. Prem Chand, AIR 1989 SC 1661.  Section 108, Pen. Code.  Satvir Singh v. State of Punjab, (2001) 8 SCC 633.  Gian Kaur v. State of Punjab, (1996) 2 SCC 648 (Abetment of suicide or attempted suicide is a distinct offence which is found enacted even in the law of the countries where attempted suicide is not made punishable.).  Mrs. K. Kamala v. State of Karnataka, Crl. P. No. 2759 of 2007, decided on Mar. 16, 2012 (the High Court of Karnataka convicted Mr. V. G. Maiya for abetment of an attempt to die by suicide under Sections 309 and 109.).  M. Mohan v. State Represented by the Deputy Superintendent of Police, (2011) 3 SCC 626.  Section 40, Pen. Code.  Satvir Singh v. State of Punjab, (2001) 8 SCC 633 (the crux of the offence under Section 306 itself is abetment. In other words, if there is no abetment there is no question of the offence under Section 306 coming into play.).  Devanand Chandwani v. State of Chhattisgarh, 2019 SCC OnLine Chh 19.  Sanju v. State of M.P., (2002) 5 SCC 371 (The word ‘instigate’ denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation.).  M. Mohan v. v. State Represented by the Deputy Superintendent of Police, (2011) 3 SCC 626.  Section 511, Pen. Code.  Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1968; Malkait Singh v. State of Punjab, AIR 1970 SC 713.  Aman Kumar v. State of Haryana, (2004) 4 SCC 379.  Illustration A, section 511, Pen. Code.  Section 109, Pen. Code.