ORDER : Mr. Pushpendra Dubey, counsel for the applicant. Mr. Santosh Yadav, Panel Lawyer for the respondent. Challenge has been made to order dated 2-11-2015 passed by First Additional Sessions Judge, Deori, District Sagar in Sessions Trial No. 326/2015 whereby charge under section 306 of the Indian Penal Code has been framed against the petitioner-accused, in this revision under section 397 read with section 401 of the Code of Criminal Procedure. 2. It is alleged that the petitioner used to go to the house of deceased-Anita Saini and used to harass her, because of which, she poured kerosene oil and set her self ablaze on 29-4-2015. During her treatment in the hospital, she died on 4-5-2015. The cause of death shown in the post mortem report is due to cardiac respiratory failure as a result of burning complications. As per the prosecution story, the petitioner-accused used to go to the house of Anita Saini in the absence of her husband and used to harass her, because of which, she committed suicide by setting herself on fire. 3. Surprisingly, the statement of the injured-Anita or the dying declaration of deceased during her life-time has not been recorded, where as she was alive for about 6 days after the incident. The First Information Report has been lodged after about 15 days alleging the petitioner to have harass the deceased. 4. Learned counsel for the petitioner-accused submitted that prosecution has failed to establish why and how the petitioner harassed the deceased-Anita Saini. It is also argued that even if the statements are taken as it is, there is no sufficient material to establish abetment for commission of suicide as required under section 107 of the Indian Penal Code. Learned counsel has placed reliance upon decisions rendered in the cases of Gangula Mohan Reddy vs. State of Andhra Pradesh, (2010) 1 SCC 750 , Pappu Khare vs. State of M.P., 2015 (2) MPHT 271 and Vivek Kumar Jain and another vs. State of M.P. and another, 2015(1) MPHT 75 . 5. Learned Panel Lawyer for the respondent-State has opposed the petition and stated that all the witnesses have clearly and unambiguously mentioned that petitioner-accused was responsible for harassment caused to the deceased-Anita Saini, which prompted her to commit suicide. 6. Heard the parties. Perused the record. 7. 5. Learned Panel Lawyer for the respondent-State has opposed the petition and stated that all the witnesses have clearly and unambiguously mentioned that petitioner-accused was responsible for harassment caused to the deceased-Anita Saini, which prompted her to commit suicide. 6. Heard the parties. Perused the record. 7. For better understanding the provisions, it would be appropriate to reproduce Sections 306 and 107 of the Indian Penal Code :— “306. Abetment of suicide. — If any person commits suicide, whoever abets the commission of such suicide shall be punished with imprisonment of either description for a term, which may extend to ten years, and shall also be liable to fine. 107. Abetment of a thing. — A person abets the doing of a thing who — First — Instigates any person to do that thing; or 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; or Thirdly — Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1 — A person who by wilful misrepresentation, or by wilful concealment of a material fact, which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2 — Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.” 8. It would be appropriate to mention here that it is not a case where presumption as provided under section 113-A of the Evidence Act is applicable. 9. Failure to record statement under section 161, Criminal Procedure Code or dying declaration of the deceased under section 32 of the Evidence Act creates a reasonable and probable doubt in the prosecution case. She witnesses, including the husband of the deceased, has stated that petitioner-Manish Saini used to visit the house of the deceased and harassed her. However, they have not stated anything about why the deceased was being harassed and how she was being harassed. She witnesses, including the husband of the deceased, has stated that petitioner-Manish Saini used to visit the house of the deceased and harassed her. However, they have not stated anything about why the deceased was being harassed and how she was being harassed. Otherwise also, if the statements of the witnesses are taken as they are, the petitioner-accused could have caused other offences, but by no stretch of imagination, it can be held to have “instigated” or goaded the deceased to commit suicide. 10. In Gangula Mohan Reddy (supra) the Apex Court has held that 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 accused to instigate or aid in committing suicide, conviction cannot be sustained. In order to convict a person under section 306, Indian Penal Code, there has to be a clear mens rea to commit offence. It is also observed that it requires an active act or direct act which leads the deceased to commit suicide seeing no option and this act must have been intended to push deceased into such a position that he commits suicide. If it appears to court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to society to which victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, conscience of court should not be satisfied for basing a finding that accused charged of abetting suicide should be found guilty. In the facts and circumstances of case, none of ingredients of offence under section 306, Indian Penal Code is made out. 11. In Pappu Khare (supra), this Court has held that evidence collected by the prosecution indicates that there is no overt act fall within the purview of sections 107 and 109 of the Indian Penal Code and, therefore, prima facie no offence punishable under section 306 of the Code is made out against the petitioner. Accordingly, in the said case the impugned order framing charge under section 306, Indian Penal Code against petitioner-accused was set aside. 12. Considering that word ‘instigate’ means to goad upon forward, provoke, incited or urged or encourage to an act. Accordingly, in the said case the impugned order framing charge under section 306, Indian Penal Code against petitioner-accused was set aside. 12. Considering that word ‘instigate’ means to goad upon forward, provoke, incited or urged or encourage to an act. In the present case, the act of instigating the deceased to commit suicide is completely missing. That being so, it is not appropriate to frame charge offence under section 306, Indian Penal Code. Hence, order dated 2-11-2015 is set aside. However, it is made clear that if the petitioner has committed any other offence, the Court may proceed against the petitioner. With the above observations and directions, the petition is allowed.