JUDGMENT : Rumi Kumari Phukan, J. 1. "You have to take care of a child and also to attend household work" is the version of husband towards his wife, who requested for little accommodation from her husband. The present case depict a sad end of a love story of an woman who eloped with her loved one and married him and after birth of a child, said person refusing to extend helping hand to his wife has rebuked her as above. The victim Manisha eloped with her loved one (accused petitioner) leaving aside all her family and curtailing all relations she married him. Out of their married life one child also born who was 2 years at the time of occurrence. On the day of occurrence on 20.6.05 victim asked her husband to accommodate her by holding the child, so that she can attend household work, but refusing the same he stated as above, which yield the end result of commission of suicide by wife. The brother of the victim lodged FIR against accused Ashim Das with allegation that his sister committed suicide for the intolerable cruelty inflicted upon her by her husband. On receipt of the ejahar Raha P.S. Case No. 58 of 2005 U/S 498(A)/306 IPC was registered and took up the case for investigation. On completion of investigation, police submitted the charge sheet against accused Ashim Das U/S 498(A)/306 IPC. The case being exclusively triable by the Court of Sessions, the Judicial Magistrate, committed the case to the Court of Sessions at Nagaon. The accused person duly appeared before the Court and faced the trial and after hearing both sides charges U/S 498(A)/306 IPC framed and explained to accused to which he pleaded not guilty and claimed to be tried. 2. The prosecution examined 10 witnesses and defence examined one. On closing of prosecution case the statement of accused person was recorded U/S 313 CrPC. The plea of defence was of total denial At the conclusion of the trial, the accused person was convicted U/S 306 IPC sentenced him S.I. for three years and pay fine of Rs. 3000/- in default S.I. for one month. 3. On closing of prosecution case the statement of accused person was recorded U/S 313 CrPC. The plea of defence was of total denial At the conclusion of the trial, the accused person was convicted U/S 306 IPC sentenced him S.I. for three years and pay fine of Rs. 3000/- in default S.I. for one month. 3. Being aggrieved and dissatisfied with the aforesaid judgment and order present appeal has been preferred on the grounds that impugned judgment and order is bad in law as the learned trial Court failed to appreciate the evidence on records and the law involved in true perspective. The learned trial Court has given much stress upon the dying declaration of the victim which is not proper in the given circumstances. 4. Be it mentioned that though in the cause list it was directed that no adjournment would be granted in the hearing of old pending cases but non-appeared for and on behalf of the appellant to conduct the haring. The matter being relating to old pending of 2009, same is taken up accordingly by this Court 5. Heard the submissions of learned Addl. P.P. Mr. M. Goswami, for and on behalf of the State, who has made a fir submission that save and except the dying declaration, no other clinching evidence on the point of torture and abetment, and now Court can appreciate the matter on record. 6. I have carefully examined the matters on record and let us discuss the relevant evidence accordingly. 'Evidence on record' 7. P.W. 1 Sri Deb Lal Das, the informant of the case stated that deceased Monisha Das was his own sister and she got married with accused Ashim Das three years back. Since the day of her marriage the accused and his mother tortured physically and mentally to his sister/victim. P.W. 1 said that on the day of occurrence being intolerable harassment caused by her husband, Monisha Das killed herself by setting fire. Hearing hue and cry from the house of accused, he along with his mother rushed there and found his sister lying in their courtyard in a serious burning condition. Immediately she was admitted to Nagaon Civil Hospital where doctor advised to shift her to Guwahati Medical College, but on her way to Guwahati she died at Jagiroad. Hearing hue and cry from the house of accused, he along with his mother rushed there and found his sister lying in their courtyard in a serious burning condition. Immediately she was admitted to Nagaon Civil Hospital where doctor advised to shift her to Guwahati Medical College, but on her way to Guwahati she died at Jagiroad. PW 1 handed over the dead body of his sister to the family members of accused and filed ejahar (Ext. 1) to Raha Police station. 8. In his cross-examination PW 1 expressed that his deceased sister eloped with the accused, so they did not go to her matrimonial home and he did not see how the fire set to her body, and also did not know about the quarrel between accused and deceased prior to the incident. 9. The mother of accused, Smti Nizoram Das examined as PW 2 has deposed that on the day of occurrence while she was working in her garden, she heard crying of his daughter-in-law Monisha and reached the house, she saw Monisha with fire on her body, came out from inside of their house. On asking her daughter-in-law/victim told her that she herself set fire in her body. PW 2 made hue and cry and neighbouring people gathered and they shifted the injured victim to Civil Hospital. The matter was referred to Gauhati Medical College, she died on her way to Guwahati. In her cross-examination PW 2 stated that at the time of occurrence she was working in the garden and hearing hue and cry of her daughter-in-law Manisha she ran to the house and seeing Manisha, she made hue and cry and then the neighbouring people arrived. According to her the conjugal relationship between the deceased and accused was quite normal. 10. PW 3 Hiran Das and PW 4 Ranjit Das both are neighbouring witnesses and PW 5 Sri Matiram Das are close relative of the accused. In her evidence PW 3 has stated that she is adjacent neighbour to the house of accused. On the day of occurrence having heard of hue and cry from the house of accused he came out from his house and saw that victim was engulfed with fire but said PW 3 does not know how she was set to fire. Neighbouring people were gathered at the place of occurrence. On the day of occurrence having heard of hue and cry from the house of accused he came out from his house and saw that victim was engulfed with fire but said PW 3 does not know how she was set to fire. Neighbouring people were gathered at the place of occurrence. She disclosed in her cross-examination that she never heard any quarrel between accused and victim nor deceased told her anything against her husband (accused) before her. Being an adjacent neighbour PW 3 did not notice any strain relationship in their martial life. 11. Another independent witness PW 4 Sri Ranjit Das deposed that being a labour, on the day of occurrence he was doing labour work in the garden of accused along with accused's mother (PW 2). Having heard of crying, PW 4 rushed to the place of occurrence along with PW 2 Nizora Das and PW 5 Motiram Das and saw victim Mionisha Das coming out from her room engulfing fire on her body. Then PW 5 Motiram Das wrapped some clothes over the body of victim to put off the fire and victim fell down outside courtyard. PW 4 also never heard about any dispute or quarrel between victim and accused. They have one daughter out of their wedlock. In his cross-examination PW 4 said that the husband/accused was not at his home and he was outside somewhere while his wife set fire in her body. PW 4 did not see him at the place of occurrence. 12. The evidence of PW 5 Sri Motiram Das a close relative of accused is that on hearing the cry of victim he immediately arrived at the place of occurrence alongwith PW 4 and tried to put of fire from the body of victim by wrapping some cloths on her body. PW 5 asked his daughter in law/victim why she did so, on reply victim let him know that she herself set fire in her body and it is not their fault. With the help of neighbouring people victim was sent to hospital and thereafter on her way to Gauhati Medical College & Hospital she died at Jogiroad. PW 5 also asserted that the relationship between the accused person and victim was cordial and their married life continued for two and half years and there was no dispute between them. 13. With the help of neighbouring people victim was sent to hospital and thereafter on her way to Gauhati Medical College & Hospital she died at Jogiroad. PW 5 also asserted that the relationship between the accused person and victim was cordial and their married life continued for two and half years and there was no dispute between them. 13. Apart from the evidence of PW 1 (the informant/brother of the victim) the other witnesses PW 2 to PW 5 reflects that at the time of occurrence the accused was not in the house and the mother of accused/PW 2 was working outside along with PW 4 and they arrived at the place of occurrence only after hearing hue and cry of deceased Manisha and all of them have stated that they do not know how Manisha got fire. PW 1 obviously not an eye witness to the occurrence and he simply filed the FIR being heard about the occurrence. In the circumstances there can be hardly anything to connect the accused for the commission of the offence. On the next, all the witnesses have stated that there was a cordial relation between the deceased and the accused person, not to speak of any torture of any kind on the part of the accused appellant 14. As regards evidence of PW 1, who is the brother of the deceased, it is to be noted that save and except one line statement that since after the marriage of his sister with the accused appellant she was subjected to torture by her husband and mother in law for which she committed suicide by setting fire, he has failed to describe the nature of torture, on the part of the accused appellant (date, manner and timing etc.) which may indicate torture and cruelty within the purview of the Act. Such a vague evidence is not at all sufficient to prove harassment or cruelty on the part of the accused appellant. 15. Prosecution also examined father of the deceased as PW 10/Golap Das, who in his deposition has stated that his daughter Manisha was tortured by her husband since last one week of the occurrence and his daughter was driven out by the accused by pulling her hair. 15. Prosecution also examined father of the deceased as PW 10/Golap Das, who in his deposition has stated that his daughter Manisha was tortured by her husband since last one week of the occurrence and his daughter was driven out by the accused by pulling her hair. On the day of occurrence at about 9.30 am hearing hue and cry he along with family members rushed to the house of accused and found his daughter with serious burn injury on her person. She was not in a position to talk and she was immediately taken to local hospital and on being referred she was taken to GMC & H but on the way she succumbed to her injury. However, in his cross examination he disclosed that they never visited the house of his daughter and Manisha occasionally used to come to their house. In view of such admitted position that they have no sort of relation with Manisha after she married to the appellant, statement of PW 10 regarding her harassment is again not at all sufficient to prove the torture within the purview of law relating to cruelty U/S 498A IPC. 16. The learned Court has made a elaborate discussion as to the facts that there is no allegation of continuous torture for non fulfilment of demand of dowry and that the deceased was living happily in her matrimonial house. The status of evidence of PW 1 and PW 10 (only relative of the deceased) is also dealt with that they failed to prove any such torture. In that context the learned trial Court referring to the dying declaration also made an observation that even in the dying declaration she has not complained of such harassment of any manner. After elaborate discussion of evidence on record, the learned trial Court come to a finding that the matter of cruelty to the deceased is not proved in the given facts and circumstances of the case and has acquitted the accused of the charge under Section 498A IPC. But however, by relying on the dying declaration so made by the deceased has come to a finding that the accused person has committed the offence under Section 306 IPC. 17. Let us discuss the evidence so far adduced by the concerned witnesses regarding the dying declaration made by the deceased. But however, by relying on the dying declaration so made by the deceased has come to a finding that the accused person has committed the offence under Section 306 IPC. 17. Let us discuss the evidence so far adduced by the concerned witnesses regarding the dying declaration made by the deceased. PW 7 is the medical officer, who recorded the dying declaration of the deceased woman vide Ext. 3, at the request made by the I.O. From his evidence it appears that for a fickle of moment the deceased was able to say something about the incident before going to serious state of her coma. Although the defence has challenged the dying declaration on the pretext that the deceased was not in a position to talk but same cannot be accepted as the PW 7 being the Medical and Health Officer of the Civil Hospital has duly certified the dying declaration in presence of Investigating officer, PW 8 H Ahmed and other officials of the Hospital. According to the M.O./PW 6 who conducted the post mortem examination there was 95% burn injury but according to PW 7 she was in a position to give her statement and accordingly it was recorded by the I.O U/S 161 CrPC. In her statement she has stated that on the day of occurrence she asked her husband to take the baby to accommodate her to do the domestic works but her husband refused to do and forcibly put the baby to her and rebuked her by gripping at her neck and went away. Being unable to bear the conduct of her husband she herself pour kerosene oil upon her and set fire. Immediately, after such statement of the victim and considering her critical condition the I.O. made a prayer to the attending Doctor to record the dying declaration and accordingly, the Doctor S Islam/PW 7 recorded the statement of victim in presence of Biren Kumar Saikia. Thereafter he went to the place of occurrence and investigated into the matter and seized burnt red mekhala in the courtyard of the accused and recorded the statement of the witnesses. 18. Thereafter he went to the place of occurrence and investigated into the matter and seized burnt red mekhala in the courtyard of the accused and recorded the statement of the witnesses. 18. It is to be noted that although according to the M.O. PW 6, who conducted the post mortem examination there was 95% burn injury but PW 7 and PW 8 found her in a position to give her statement and accordingly the same was recorded immediately after her admission in the Hospital. There appears no any reason or adverse circumstances to raise any doubt upon the authenticity of the evidence of PW 7 and PW 8. Further, it is found that the victim has not indicated any sort of torture upon her on the part of her husband, save and except the incident occurred on the day of occurrence. In view of such, allegation of PW 10/father of the deceased that the accused inflicted torture upon her since after her marriage that too, without going to their house cannot be accepted. On the other hand the evidence of DW1 Shasikanta Das/brother of the deceased reflects that victim reported to them that she herself set fire to her. He also stated that the victim married the accused out of love and affection and their family life was peaceful. They never heard any quarrel between the parties, although their house is nearby. He also stated that after the incident deceased replied some of the queries made by them. "Dying declaration" 19. For better appreciation of the matter, let us reproduced the dying declaration vide Ext. 3 which is as follows:- "My name is Manisha Das, wife of Ashim Das, village-Demou Chariali, Thana Raha. Today in the morning I asked my husband to take the girl in his lap so that I can attend household works, then my husband told that I had to work with the girl in lap and by gripping my neck rebuked me and went away from the house. I could not tolerate the agony and pour kerosene oil on my body and set fire by lighting with a match stick." 20. It is obvious, that the deceased has cited about one incident that happened in the day of occurrence in the morning and has not narrated any other matter of assault, torture etc., on the part of her husband. It is obvious, that the deceased has cited about one incident that happened in the day of occurrence in the morning and has not narrated any other matter of assault, torture etc., on the part of her husband. The above incident itself reflects that it arose out of trifling matter regarding handling of their child and this sort of incident is quite familiar in the family of village people. It can also be inferred that the accused petitioner perhaps was to leave the house for his duty and as such he refused to take the baby and reacted accordingly. In such ordinary course of petulance commission of suicide cannot be a natural one, unless being hyper-sensitive. 21. Let us discuss the provision regarding abetment of suicide. Section 306 of the IPC reads as under: "306. Abetment of suicide- If any person commits suicide whoever abets the commission of such suicide shall be punished with imprisonment of either description which may extend to 10 years and also liable to be fine. From a bare reading of the provision, it is clear that to constitute an offence under Section 306 IPC, the persecution has to establish "(i) that a person committed suicide, and (ii) that such suicide was abetted by the accused. In other words, an offence under Section 306 would stand only if there is an "abetment" for the commission of the crime. The parameters of "abetment" have been stated in section 107 of the IPC, which defines abetment of a thing as follows: 107. Abetment of a thing- A persons abets the doing of a thing who - First - instigate any person to do that thing or, Secondly,- Engages with one or moire other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in presence of that conspiracy, and in order to the doing of that thing omission, 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 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. As per the Section, a person can be said to have abetted in doing a thing, if he, firstly, instigate 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 omission, the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing. Explanation to Section 107 stated that any wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, may also come within the contours of "abetment". It is manifest that under all the three situations, direct involvement of the person or persons concerned in the commission of offence of suicide is essential to bring home the offence under Section 306 of the IPC." 22. As per clause Firstly in the said section a person can be said to have abetted in doing of a thing, who instigates of a person. The meaning of the word is not defined in the IPC. In Ramesh Kumar v. State of Satishgarh, (2001) 9 SCC 618 the word instigation has been discussed as follows: The word instigation is to goad, urge- forward, provoke, insight or encourage to do an act. To satisfy the requirement of instigation, though it is not necessary that actual word must be used to the effect that or what constitute inspiration much necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to insight his acts or omission or by a continue course of conduct created such circumstances that the deceased was left with no other option except to commit suicide, in which case a instigation may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. 23. A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. 23. In Kishuri Lal v. State of M.P., (2007) 10 SCC 797 , Hon'ble Apex Court gave a clear exposition of Section 107 IPC when it is observed as follows in para 6: "6. Section 107 defines a abetment of a thing. The offence of abetment is a separate and distinct offence provided in the IPC. A person abets the doing of a thing when (i) he instigates any person to do that thing or (ii) engaged with one or more other persons in any controversy for the doing of that thing or (iii) intentionally aids, by act or illegal commission, doing of that thing. These things are essential to complete abetment of a crime. The word instigate literally means to provoke, incite, urge on or doing about by persuasion to do anything. The abetment may be by instigation, conspiracy or intentional aid as provided in three clauses of Section 107. Section 109 provides if the act abetted is committed in consequence of abetment and there is no provision for punishment of such abetment then the offender is to be punished with the punishment provided for original offence abetted in Section 109 means the specific offence abetted. Therefore the offence for the abetment of which a person is charged with the abetment is normally linked with proved offence." 24. Some other references which may be useful to decide the issue are discussed below: Kartar Singh & Ors. v. CBI, 131 (2006) DLT 643 Delhi It has been observed that mens rea is an essential ingredient and prosecution is required to show that the accused had mens rea to drive the deceased to commit suicide. State of Rajasthan v. Mukesh, 2012 (5) RCR (Crl) 489 It has been held that something said in a fit of anger cannot be held to be abetment of suicide. State of Rajasthan v. Mukesh, 2012 (5) RCR (Crl) 489 It has been held that something said in a fit of anger cannot be held to be abetment of suicide. Therefore, even if the accused-respondent had told Smti Geeta "to kil herself", the said words would not bring his acts within the definition of abetment as defined under Section 107 of the Act." Sanju @ Sanjay Singh Sengar v. State of Madhya Pradesh, 2002 AIR SCW 2035 The Supreme Court observed that even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. 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. It is common knowledge that the word uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional. Swamy Prahaladdas v. State of M.P., 1995 Supp (3) SCC 438 The appellant was charged for an offence under Section 306 IPC on the ground that the appellant during the quarrel is said to have remarked the deceased 'to go and die'. The Supreme Court was of the view that mere words uttered by the accused to the deceased 'to go and die' were not even prima-facie enough to instigate the deceased to commit suicide. Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) 2009 (11) SCALE 24 Apex Court opined that there should be intention to provoke incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others. Each person has his own idea of self esteem and self respect. Therefore, it is impossible to lay down any strait-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances. 25. Each person's suicidability pattern is different from the others. Each person has his own idea of self esteem and self respect. Therefore, it is impossible to lay down any strait-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances. 25. It is a settled position of law that before holding an accused guilty of the offence U/S. 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to commit suicide. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable. 26. In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC. 27. Having regard to all the facts and circumstances of the case and in view of the legal proposition discussed above turning to the present case if we consider whether in the facts and circumstances of the case is sufficient to bring home the offence under Section 306 IPC against the accused petitioner, the answer will be 'Negative'. It can very well be assessed that the dying declaration so made by the victim is a simple statement made by the deceased as to the cause of her death but in any extent, the conduct of accused cannot be stated as a instigation within the purview of law. 28. It can very well be assessed that the dying declaration so made by the victim is a simple statement made by the deceased as to the cause of her death but in any extent, the conduct of accused cannot be stated as a instigation within the purview of law. 28. The dying declaration is a statement by a person as to cause of his death or as to any other circumstances resulting in his death became relevant U/S 32(1) of the Evidence Act. In a case in which cause of death of that person comes into question. It is true that dying declaration is not a deposition in Court nor made on oath. It is, therefore, not tested by cross examination on behalf of accused but a dying declaration is admitted in evidence by way of exception to the general rule against the admissibility or hearsay evidence on the principle of necessity. Greater solemnity and sanctity is attached to the words of a dying man, because a person at the verge of death is not likely to tell lies or to concoct a case so as to implicate a innocent person. The Court can accept such dying declaration on being satisfied about such making of dying declaration in proper manner. 29. In the given case, dying declaration made by the deceased is the sole basis for prosecution as to the cause of death of the victim, as there is no other eye witness as well as circumstantial witness. Now going by the averment made in the dying declaration, (which corroborates statement recorded U/S 161 CrPC) it reflects that whatever was stated by the accused in a fit of anger, but not persuaded by any other motive to instigate her to commit suicide. However the deceased committed suicide being hypersensitive as the background says she eloped and married the accused out of love and affection and his conduct created sense of betrayal in her mind for which in a haste she finished her life. Although, conduct of husband towards his wife not fair at all, to behalf unlike of responsible husband and father, which cannot be in any way appreciated, but legally same fall short of instigation as discussed above. In the circumstances, none of ingredient of offence of abetment has been proved that because of instigation on the part of the accused appellant the victim was compelled to commit suicide. In the circumstances, none of ingredient of offence of abetment has been proved that because of instigation on the part of the accused appellant the victim was compelled to commit suicide. The conclusion that can be arrived that no conviction can legally be sustained on the basis of such dying declaration. The finding of the trial court is unsustainable due to lack of proper appreciation of evidence as well as legal perception of law. In the result the appeal succeeds and impugned judgment and order is quashed and set aside. The appellant is acquitted from the charge. He is set at liberty and bail bond discharged. Return the LCR.