JUDGMENT Sushma Shrivastava, J. 1. Appellant has preferred this appeal challenging his conviction and order of sentence passed by Additional Sessions Judge, Panna in S.T. No. 49/94, decided on 26.03.96. 2. Appellant has been convicted under Section 306 of IPC and sentenced to rigorous imprisonment for three years with fine of Rs. 1000/-, in default further rigorous imprisonment for three months, by the impugned judgment. 3. According to prosecution, on 27.06.94 at village Kamalpura, District Panna deceased Mangaldeen @ Hakke Patel had gone to the place of Appellant to collect the price of wheat sold to him, but the Appellant did not make payment. Deceased Mangaldeen (hereinafter to be referred as 'deceased') then came back and sat on the platform of Jhurre Patel. After sometime, Appellant came there, abused the deceased and alleged that he had stolen his Rs. 2150/-and asked back for his money. Deceased denied to have taken his money, but the Appellant said that he was making lie and he should eat Celphos and die. Appellant also gave beating to the deceased, then Jhurre Patel, Mohan and Baiju Patel intervened and came to his rescue. Deceased came to his house and narrated the whole incident to his father and mother. Next day, on 28.6.94 about 10 O'clock in the morning Appellant again came to his house and made false allegation of theft of his Rs. 2150/ against the deceased and asked for this amount from his father. The father and uncle of the deceased kept the money before the Appellant and said that if any theft has taken place, he can pick up the money. Appellant then picked up Rs. 2150/-saying if the deceased had any prestige, he should consume Celphos and die. Being harassed by all this, deceased consumed Celphos tablet; when he felt pain in his stomach he went to the Police Station alongwith his father, uncle and other members of his family, lodged the FIR, on the basis of which an offence was registered against the Appellant and was investigated. Deceased was sent for medical examination; he was admitted in the hospital, but he died during treatment. The intimation of his death was sent to the Police by the hospital authorities, whereupon merg intimation was recorded and merg inquest report was prepared. The dead body of deceased was sent for postmortem examination. His viscera was preserved and sent for chemical examination. The intimation of his death was sent to the Police by the hospital authorities, whereupon merg intimation was recorded and merg inquest report was prepared. The dead body of deceased was sent for postmortem examination. His viscera was preserved and sent for chemical examination. After due investigation, Appellant was prosecuted under Section 306 of IPC and was put to trial. 4. Appellant denied the charge levelled against him and pleaded false implication due to enmity. Appellant also took a plea that he was not present in the village at the time of incident. 5. Learned Additional Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, found the Appellant guilty under Section 306 of IPC, convicted and sentenced him as aforesaid, by the impugned judgment, which has been challenged in this appeal. 6. Learned Counsel for the Appellant and learned Counsel for the State were heard. 7. It was no longer disputed that deceased Mangaldeen died as a result of consuming Celphos. It is also evident from the testimony of Bhagwandas (P.W-5) that deceased had consumed one Celphos tablet and had begun vomiting. The FIR (Ex.P-9) lodged by the deceased and recorded by Head Constable Sahablal Pyasi (P.W-7) also mentions that deceased himself had consumed a tablet of Celphos. The evidence of Baldu (P.W-2), the uncle of deceased and Rambhuvan (P.W-12) also indicates that after consuming Celphos, the condition of the deceased deteriorated and he died in the hospital same day. The evidence of Head Constable Virendra Kumar Tiwari (P.W-6), who recorded the merg intimation (Ex.P-8) on the basis of intimation (Ex.P-7) received from District Hospital, Panna, also indicates that deceased Mangaldeen had died in the hospital on 28.6.94 at 3:45 P.M. As per FSL report (Ex.C-1) Aluminium Phosphide (Celphos Pesticide) was found in the viscera of the deceased. Thus, it was clearly established that deceased committed suicide by consuming Celphos. 8. The next question that emerges for consideration is whether the Appellant abetted the commission of suicide by the deceased? 9. Learned Counsel for the Appellant submitted that there was no cogent and dependable evidence on record that the Appellant instigated, aided or in any manner abetted the commission of suicide by the deceased and the facts of the case did not justify his conviction under Section 306 of IPC. 10. 9. Learned Counsel for the Appellant submitted that there was no cogent and dependable evidence on record that the Appellant instigated, aided or in any manner abetted the commission of suicide by the deceased and the facts of the case did not justify his conviction under Section 306 of IPC. 10. Learned Counsel for the State, on the other hand, submitted that there was a dying declaration of the deceased in the form of FIR lodged by him indicating that Appellant instigated the deceased to consume Celphos and to commit suicide, and he was rightly convicted under Section 306 of IPC. 11. Perused the evidence on record. The evidence of Bhupat Prasad (P.W-9), the father of the deceased, his mother Ramrati (P.W-10) and his uncle Baldu (P.W-2) as well as the evidence of Jhurre Prasad (P.W-11) and Uttara Bai (P.W-13) indicates that Appellant Mijajilal had made an allegation of theft of Rs. 2150/-against the deceased. According to Bhupat Prasad (P.W-9) and Ramrati (P.W-10), when their son Mangaldeen had gone to the place of Appellant to ask for the money for wheat sold to him, Appellant made an allegation of theft against their son and also gave him beating. As per the evidence of Bhupat Prasad (P.W-9), the father of the deceased, he did not himself witness the incident of marpeet, but he had seen the marks of beating by lathi, shoe and 'Gatuka' etc. on his body. According to Uttara Bai (P.W-13), she had seen the Appellant pulling, beating, abusing the deceased and saying that deceased had taken his Rs. 2150/-, whereas according to Jhurre Prasad (P.W-11), Appellant had simply pulled the deceased and asked him why he went to his house in his absence and took out Rs. 2150/-from the purse of his daughter, to which the deceased denied. It is however, significant to note that Dr. Sharad Dwivedi (P.W-8), who medically examined Mangaldeen (deceased) after the incident and before his death, admittedly did not find any injury on his body. The evidence of the parents of deceased and few witnesses that Appellant subjected the deceased to beating, while levelling the allegation of theft against him, is thus not found to be reliable. However, there is ample evidence that Appellant made allegation of theft of Rs. The evidence of the parents of deceased and few witnesses that Appellant subjected the deceased to beating, while levelling the allegation of theft against him, is thus not found to be reliable. However, there is ample evidence that Appellant made allegation of theft of Rs. 2150/-against the deceased; but mere allegation of theft or making a complaint in this behalf by the Appellant, if he suffered theft of considerable amount, would not imply that Appellant by such an act or allegation really meant or intended that deceased should commit suicide. 12. Apposite to add that none of the aforesaid witnesses including the parents and uncle of the deceased as well as other witnesses examined by the prosecution ever deposed that Appellant had asked the deceased to consume Celphos and die. Per contra, all of them, even Bhupat Prasad (P.W-9), father of the deceased, Ramrati (P.W-10), the mother of deceased, Baldu (P.W-2), uncle of the deceased as well as Jhurre Prasad (P.W-11), Rambhuvan Patel (P.W-12) and Uttara Bai (P.W-13) categorically stated that Appellant, while making an allegation of theft against the deceased never asked or instigated him to eat Celphos and die. Although, these witnesses were declared hostile by the prosecution, but their evidence cannot be discarded for this reason. As reiterated by the Apex Court in the case of Khujji @ Surendra Tiwari v. State of Madhya Pradesh reported in AIR 1991 SC 1853 , the evidence of a hostile witness cannot be treated as effaced or washed off from the record altogether, but the same can be accepted to the extent the version of such witness is found to be dependable on a careful scrutiny thereof. 13. No doubt, the FIR lodged by the deceased can be treated as a dying declaration after his death, but the fact cannot be lost sight of that it was recorded by a Police Personnel and the possibility of making addition of certain facts while jotting down the FIR cannot be totally ruled out. There is no dying declaration of deceased recorded by Naib Tahsildar or Executive Magistrate in the instant case. As per averments made in the FIR (Ex.P-9) recorded by Head Constable Sahablal Pyasi (P.W-7), when deceased sat on the platform of Jhurre Patel (P.W-11), Appellant came there, made an allegation of theft of Rs. There is no dying declaration of deceased recorded by Naib Tahsildar or Executive Magistrate in the instant case. As per averments made in the FIR (Ex.P-9) recorded by Head Constable Sahablal Pyasi (P.W-7), when deceased sat on the platform of Jhurre Patel (P.W-11), Appellant came there, made an allegation of theft of Rs. 2150/-against him saying that he should die by consuming Celphos; Appellant also asked him to eat Celphos and die in the following words ^^ukd yxk;s fQjrk gS vxj ikuhokyk gS rks lYQkl dh xksyh [kkdj ej tkuk pkfg,**. Strangely enough, neither Jhurre Prasad (P.W-11), nor the father and uncle of the deceased, namely, Bhupat Prasad (P.W.9) and Ramrati (P.W-10) in whose presence such words or remarks were alleged to have been made by the Appellant, testified that Appellant had made such remarks and asked the deceased to consume Celphos. Had it been a fact, at least the mother, father and uncle of the deceased, who deposed against the Appellant about his making false allegation of theft against deceased with exaggeration of giving him good beating, would not have withheld the aforesaid words allegedly used by the Appellant. Therefore, the averment made in the FIR in this behalf about asking the deceased to eat Celphos and die, does not appear to be a truthful statement made by the deceased. 14. Although, the dying declaration of the deceased can be acted upon without any corroboration, yet the Court should be satisfied that it is true and voluntary statement made by the deceased. As observed by the Apex Court in the case of Muthu Kutty and Anr. v. State by Inspector of Police, Tamilnadu reported in AIR 2005 SC 1473 the dying declaration is only a piece of untested evidence and must like any other evidence, satisfy the Court that what is stated therein is unalloyed truth and that it is absolutely safe to act upon it. 15. Besides, even if it is assumed that Appellant uttered aforesaid words while making allegation of theft against the deceased, it cannot be safely inferred in the facts and circumstances of the case, as brought on record, that Appellant intended to provoke, urge or goad the deceased to go and commit suicide. 15. Besides, even if it is assumed that Appellant uttered aforesaid words while making allegation of theft against the deceased, it cannot be safely inferred in the facts and circumstances of the case, as brought on record, that Appellant intended to provoke, urge or goad the deceased to go and commit suicide. It is well settled, as held by the Apex Court in its three Judges' Bench judgment rendered in the case of Ramesh Kumar v. State of Chhattisgarh reported in AIR 2001 SC 3837 (1) that a word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be an instigation. If the Appellant suffering or suspecting theft of his money by the deceased, made an allegation of theft against the deceased and even if he uttered aforesaid words in a fit of anger or emotion, it cannot be said that Appellant really meant or intended that deceased should go and commit suicide. 16. The Apex Court in the case of Gangula Mohan Reddy v. State of Andhra Pradesh reported in 2010 (1) SC 750 after considering the dictum laid down in its various earlier decisions held as under: 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. 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. 17. In the instant case when the entire evidence is thoroughly and closely examined, it is revealed, that Appellant made an allegation of theft of his Rs. 17. In the instant case when the entire evidence is thoroughly and closely examined, it is revealed, that Appellant made an allegation of theft of his Rs. 2150/-against the deceased because he suspected that deceased had taken his money, the stolen amount was also paid to the Appellant by the uncle and father of the deceased, namely, Baldu (P.W-2) and Bhupat Prasad (P.W-9), as evident from their testimony, which lends weight to his suspicion; but the evidence on record falls short to conclude that Appellant really intended that the deceased should commit suicide. An oral allegation of theft made by the Appellant against the deceased, even if followed by some amount of beating, does not amount to such circumstance that the deceased was left with no option except to commit suicide. 18. Thus, in the facts and circumstances of the instant case, no offence under Section 306 of IPC was proved against the Appellant beyond periphery of doubt. His conviction under Section 306 of IPC, therefore, cannot be sustained and deserves to be set aside. 19. Appeal is accordingly allowed. The conviction of Appellant and sentence awarded to him under Section 306 of IPC are hereby set aside and Appellant is acquitted of the charge. Appellant is on bail. His bail bonds shall stand discharged.