JUDGMENT 1. - The facts of the case in nut shell are that on 6.1.92, P.W. 7 Mohan Singh, Station House Officer received information from M.B.S. Hospital, Kota on reaching there, he recorded the statement (Ex.P 3) of Smt. Sumitra, who was admitted in the Burn Unit, in the presence of Dr Jai Singh Shekhawat, PW 5 and Dr. N.K. Gupta, PW 6. In her statement, she has stated that accused appellant Mohammed Azaz had committed sexual intercourse and since she was not in a position to show her face in the society, she had no option but too get herself burnt. After her statement was recorded, she succumbed to burn injuries. On the basis of her statement Ex.P. 3, a case for offence under Section 376 and 306 IPC was registered at Police Station, Kunhari vide FIR, Ex.P. 4. PW Dr. G.S. Visnar 10 conducted post-mortem on the dead body of Sumitra and prepared post-mortem report, Ex.P. 9. During the course of investigation, PW 7 Mohan Singh prepared Panchayatsnama, Ex.P. 1, site inspection report Ex.P. 6, seizure memo of kerosene tin and match box seized from the place of occurrence vide Ex.P. 7 and arrested the accused vide memo Ex.P. 8. After completion of investigation, police submitted a charge sheet under Section 376 and 306 IPC against the accused in the court of Judicial Magistrate No. 1, Kota. 2. The offence being exclusively triable by the court of Sessions, the learned Judicial Magistrate committed the case to the court of Sessions for trial and the learned Sessions judge proceeded with the trial of the case. 3. Having considered the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the learned Public Prosecutor, the learned trial court framed chargesunder section 376 and 306 IPC against the accused, which were read over and explained to the accused, to which he denied and claimed trial. 4. The prosecution in support of its case examined P.W. 1 Tajudin, P.W. 2 Vijay Singh, P.W. 3 Uma Shankar, P.W. 4 Smt. Kanti Bai, P.W. 5 Dr. Jai Singh Shaktawat, P.W. 6 Dr. N.K. Gupta, P.W. 7 Mohan Singh, P.W. 8 Aanndi Lal, P.W. 9 Kheri Lal, P.W. 10 Dr. G.S. Vishnar, P.W. 11 Bhanwar Singh. The trial court examined the accused under section 313 Cr.PC. Jai Singh Shaktawat, P.W. 6 Dr. N.K. Gupta, P.W. 7 Mohan Singh, P.W. 8 Aanndi Lal, P.W. 9 Kheri Lal, P.W. 10 Dr. G.S. Vishnar, P.W. 11 Bhanwar Singh. The trial court examined the accused under section 313 Cr.PC. for the purpose of enabling the accused personally to explain circumstances appearing in the evidence against him. The accused had examined D.W. 1 Ram Kishan, D.W. 2 Mahendra Singh, D.W. 3 Krishan Kumar, D.W. 4 Fateh Singh in defence. 5. The learned trial Court by his impugned judgment dated 24.5.2000 acquitted the accused appellant for the offence under section 376 IPC but convicted him under section 306 IPC and sentenced him to undergo 7 years rigorous imprisonment and a fine of Rs. 2000/- and in default, to further undergo simple imprisonment for 6 months. 6. Feeling aggrieved by the judgment of the learned trial court, the accused appellant has filed this appeal on the grounds that when the trial Court acquitted the accused of the charge under section 376 IPC, the conviction of appellant under section 306 IPC is wholly unfounded. The learned counsel appearing on 30 behalf of the accused appellant has relied a judgment of Apex Court reported as 2000 Cr.L.J. 3490 (SC) Sudhakar and another v. State of Maharashtra . 7. I have heard the rival contention of both the parties and perused the record, evidence and documents available in this case. 8. It is an admitted fact that Sumitra committed suicide by burning herself. According to prosecution, it was the commission of rape on her person, which resulted in the suicide of Smt. Sumitra, alleged to have committed on the abetment of the accused appellant. The learned trial Court acquitted the accused of the charge under Section 376 IPC. The report of FS.L. Ex.D. 1 also indicates that no semen was detected in vaginal swab and urethral swab of the victim. It has also come on record from the statements of investigation officer P.W. 7 Mohan Singh and P.W. 8 Anandi Lal that accused and Sumitra had sexual relations and they used to exchange letters prior to the marriage of Sumitra and even after her marriage both Sumitra and the accused appellant maintained their sexual relations and both went on exchanging letters to each other through D.W. 2 Mahendra. The letters are on record as Ex.D. 3 also proves their intimacy. The letters are on record as Ex.D. 3 also proves their intimacy. The word `instigate' literally means to goad, urge forward, provoke, incite or encourage to do an act. The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is actually done by the person whom he abets. In the facts and circumstances of the case narrated above, the accused could not be said to have abetted suicide of Sumitra as per the definition of abetment in section 107 IPC. 9. Since the accused has been acquitted by the trial Court for the 1 offence of rape, which is the alleged cause for committing suicide, the accused appellant cannot be held responsible for the abetment of the ultimate offence of suicide. I am fortified in my view by the following observations of the Hon'ble Supreme Court in Sudhakar's case (supra) : "In the absence of the charge being proved under Section 376 IPC the prosecution could not have asked for conviction of the appellants under Section 306 of the I.P.C. as according the prosecution it was the commission of rape on her person which resulted in the suicide of Ms. Rakhi, allegedly on the abetment of the appellants. If the cause for committing suicide is not legally proved, the appellants cannot be held responsible for the abetment of the ultimate offence of suicide." 10. In the result, the appeal succeeds and hereby allowed. The conviction and sentence of the accused appellant under section 306 IPC is set aside. The accused appellant is in jail and he be released forthwith, if not required in any other case.Appeal allowed. *******