JUDGMENT : H.B. Prabhakara Sastry, J. The appellant who was the accused before the learned Additional District & Sessions Judge, Chamarajanagara, sitting at Kollegala [henceforth for the sake of brevity referred to as "trial Court"], in S.C.No.26/2014, has challenged the judgment of conviction and order on sentence dated 25.06.2016, passed by the trial Court, convicting him for the offence punishable under Section 306 of Indian Penal Code, 1860 [henceforth for the sake of brevity referred to as "IPC"] and sentencing him to undergo simple imprisonment for a period of five years and to pay fine of Rs.20,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one year. 2. The summary of the case of the prosecution is that the deceased Smt. Uma was married to one Sri. Nagendra, who was her maternal uncle ie., younger brother of her mother about 14 years prior to the date of complaint, which complaint was filed on 23.05.2013. Said Uma, even after having two girl children born to her from the wed-lock, since two years was showing some leniency to the accused. Their family members knew that it was an illicit relationship she had established with the accused. Accordingly, a panchayath was also held, wherein the said Uma was suitably advised to discontinue such relationship with the accused. However, after few days, she had started her objectionable relationship with the accused. That being the case, on 22.05.2013, at 7.30 pm., deceased Nagendra, husband of the deceased Uma, went to his brother ie., the complainant Sri. Mahadevaswamy, who was also residing in the same village, but, in a separate house and informed him that on the same evening, at about 6.00 O'clock, he saw his wife Uma talking freely with some leniency with the accused and when he questioned the accused, the said accused stated to him that he would continue his relationship with Uma and asked Nagendra to die, so that, he can continue his relationship with Uma unabatedly. Having heard the said statement from his brother Nagendra, the complainant asked him to wait for a day, so that on the next day, he can discuss the matter with the elders. However, on the next day morning, that was on 23.05.2013, through one Devappa, the complainant came to know that Nagendra has committed suicide by hanging to an Eucalyptus tree in the land of said Devappa. However, on the next day morning, that was on 23.05.2013, through one Devappa, the complainant came to know that Nagendra has committed suicide by hanging to an Eucalyptus tree in the land of said Devappa. After hearing the news of death of her husband, even Uma his wife, also committed suicide by drowning in the water in the land of Sri. Vedavyasa Bhatta near her house. Accordingly, the complaint was registered for the offence punishable under Section 306 of IPC against the accused. The charge sheet also came to be filed for the alleged offence. 3. Since, the accused pleaded not guilty, the prosecution examined eight witnesses through PWs.1 to 8 and got marked documents from Exs.P1 to P19 and material object at MO.1. Neither any evidence was led, nor any document was marked from the accused side. The trial Court by its impugned judgment dated 25.06.2016 convicted the accused for the offence punishable under Section 306 of IPC and sentenced him accordingly. It is challenging the said judgment of conviction, the appellant has preferred this appeal. 4. Lower Court Records were called for and placed before this Court. 5. Heard the argument from both side and perused the materials placed before the Court. 6. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court. 7. Learned counsel for the appellant in his argument submitted that the witnesses shown to have supported the case of prosecution are all the family members of the deceased, as such, they are the interested witnesses. The only independent witnesses ie., PWs.4 and 5 have not supported the case of prosecution. He also submitted that admittedly there are no eye witnesses for the alleged illicit relationship between the deceased Uma and the accused. Learned counsel further submitted that though he does not dispute the death of Uma and her husband Nagendra committing suicide, but, he disputes that there was any abetment for them to commit suicide. According to him, the trial Court being carried away with the evidence of interested witnesses and without noticing the absence of any abetment, has erroneously held the accused guilty of the alleged offence. 8. According to him, the trial Court being carried away with the evidence of interested witnesses and without noticing the absence of any abetment, has erroneously held the accused guilty of the alleged offence. 8. Learned High Court Government Pleader in his argument submitted that the witnesses though are the relatives of the deceased, but, in the circumstances of the case, where the alleged relationship between the deceased Uma and the accused was a family matter and Uma being their family member, it is only the relatives who are competent to say about the relationship and the abetment. The alleged holding of panchayath to advise Uma is also not been denied or disputed from the accused side. Therefore, when the accused has asked the deceased Nagendra to go and die, due to untolerable humility, said Nagendra has committed suicide, as such, the trial Court has rightly held the accused guilty of the alleged offence. 9. Among the eight witnesses examined by the prosecution, PW1 is the elder brother of the deceased, so also, the complainant in the case. The said witness while reiterating the summary of his complaint, even in his examination-in-chief also has stated that the deceased Uma, who was the wife of his deceased brother Nagendra, had illicit relationship with the accused, in which connection, by holding a panchayath, they had advised Uma suitably. However, she continued her old habit. On 22.05.2013, when deceased Nagendra saw his wife talking to the accused and objected to the same, the accused abused Nagendra and asked him to go and die. According to the witness, the said information was given to him by none else than his deceased brother Nagendra who also expressed his decision of committing suicide. However, he was asked by PW-1 to wait till next day, so that he could convene a meeting of elders in that regard. He has further stated that, in the next day morning, through one Devappa, the landlord, he came to know that at 7.00 am., Nagendra was found hanged himself to Eucalyptus tree and committed suicide in the land of said Devappa. When these people rushed to the said field, Uma, wife of the deceased, knowing that her husband has committed suicide, had also jumped into the well in the premises of Iyengar and committed suicide. When these people rushed to the said field, Uma, wife of the deceased, knowing that her husband has committed suicide, had also jumped into the well in the premises of Iyengar and committed suicide. He identified the complaint lodged by him and also scene of offence panchanama, which is said to have been drawn in his presence and also a rope at MO.1, which is said to be used by the deceased himself for hanging. He stated that the accused is the cause for death of his brother-Nagendra. He was subjected to a detailed cross examination. 10. Pw-2 Devappa, has stated that the deceased Nagendra was working in his land and in connection with the illicit relationship between Uma and the accused, a panchayath was held, wherein, these people had advised Uma. 11. Pw-3 Smt. Mangalamma, who is the mother of the deceased Uma and elder sister of deceased Nagendra, has stated that she came to know from third person that accused has developed illicit relationship with her daughter Uma. Thinking that his reputation has been spoiled by the said illicit relationship of his wife with the accused, her brother, who is the husband of Uma, committed suicide. The witness has also stated that she had advised her daughter with respect to her illicit relationship with the accused, still, she had continued the same with the accused. After noticing that her husband died, Uma also died. 12. Pw-4 Sundrappa and PW-5 Mahadevaswamy, who are the localities of the village, though were projected by the prosecution as the persons knowing the alleged illicit relationship of deceased Uma with the accused and the cause for both the suicides, but, both the witnesses by expressing their ignorance about the relationship of Uma with accused and cause for the suicide of Uma and Negendra, have not supported the case of the prosecution in any manner. Both of them have turned hostile and prosecution could not get any favourable statement from them. 13. Pw-6 Smt. Neelamma, who is also a resident of the same village of the deceased, has also stated about the existence of illicit relationship between the deceased Uma and the accused and Uma continuing the said relationship despite being advised by elders in the village, including this witness. 13. Pw-6 Smt. Neelamma, who is also a resident of the same village of the deceased, has also stated about the existence of illicit relationship between the deceased Uma and the accused and Uma continuing the said relationship despite being advised by elders in the village, including this witness. She has also stated that deceased Nagendra had seen his wife and accused being together on the date of his death, as such, he committed suicide. After hearing about her husband's suicide through this witness, Uma jumped into a well and died. The witness has stated that deceased Nagendra committed suicide after seeing the illicit relationship of his wife with accused. 14. Pw-7 B. Puttaswamy and PW-8 M.Shivamma, are the Investigating Officers in this case who have deposed about they conducting the investigation in this matter. 15. From the above evidence, the nature of death of both the deceased Nagendra and his wife - deceased Uma as suicide is not in dispute. The inquest panchanama at Exs.P-4 and P-5 of deceased Nagendra and his wife respectively mentions the opinion of panchas that both the deaths are suicidal in nature. Further Ex.P-8, which is the post-mortem report with respect to deceased Nagendra, apart from noticing the presence of ligature mark across the neck expanding from right side occiput to left side mastoid process and measuring 1 inch breadth and 8 to 10 inches in length, the doctor has opined that cause of death was due to asphyxia as a result of hanging. 16. The post-mortem report with respect to deceased Smt.Uma, which is at Ex.P-9, shows that cause of her death was due to asphyxia as a result of drowning. The material witnesses i.e., PW-1, PW-3 and PW-6 have also stated that death of both these deceased are suicide. Therefore, it is clear that death of both Nagendra and Smt. Uma are suicidal in nature. 17. The only point that remains for consideration is whether the accused has abetted the commission of suicide by deceased Nagendra and Smt. Uma. To find out whether there was any abetment from the side of the accused for the suicide of the deceased, it is necessary to bear in mind as to what constitutes an abetment of suicide. 17. The only point that remains for consideration is whether the accused has abetted the commission of suicide by deceased Nagendra and Smt. Uma. To find out whether there was any abetment from the side of the accused for the suicide of the deceased, it is necessary to bear in mind as to what constitutes an abetment of suicide. Section 306 of IPC reads as below: "Section 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." The above Section 306 of IPC only speaks about the punishment for which an abettor of the suicide is liable to be sentenced with, however, it does not define what constitutes abetment. To know what constitutes abetment, one should consider the definition of abetment of a thing as defined under Section 107 of IPC, which reads as below : "Section 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." According to the prosecution, the act of the accused has resulted in instigating deceased Nagendra to commit suicide, thus, it is an act of abetment. The Hon'ble Apex Court in Sanju alias Sanjay Singh Sengar vs. State of Madhya Pradesh, (2002) AIR SC 1998; { (2002) 5 SCC 371 }, while speaking about the ingredients of the term 'instigate' under Section 107 of IPC was pleased to observe that, word 'instigate' denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. The presence of mens rea is the necessary concomitant for instigation. It also observed that words uttered in a quarrel or on the spur of the moment, such as "to go and die", cannot be taken to be uttered with mens rea. Instigation is to goad, urge forward, provoke, incite or encourage to do an act. To satisfy the requirement of instigation, though it is not necessary that actual words must be used to that effect, but, what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. 18. In the above background, if the case of the prosecution is analysed, it can be noticed that the nature of death of both deceased Nagendra and his wife deceased Uma as suicide is not in dispute. 19. In the instant case, the relationship between deceased Nagendra and Smt.Uma that they are husband and wife, with a married life of thirteen to fourteen years and having two girl children born to them, is not in dispute. Nagendra was earlier doing coolie work and thereafter having a broken leg, was almost depending upon the income of his wife since about four years prior to the incident and that since then, to maintain family, his wife Smt. Uma was going to coolie work, is also not in dispute. Accused was residing in the same lane where the deceased were residing and that both deceased Uma and accused were working under the same employer, is also not in dispute. 20. According to PW-1 - the elder brother of the deceased Nagendra, PW-3 the elder sister of deceased Nagendra-cum-mother of deceased Uma and PW-2 and PW-6, deceased Uma had illicit relationship with the accused. These witnesses have also spoken about they conducting panchayath and advising deceased Uma to discontinue her illicit relationship with the accused. However, none of these witnesses are eye witnesses to the alleged illicit relationship of Uma with the accused. These witnesses have also spoken about they conducting panchayath and advising deceased Uma to discontinue her illicit relationship with the accused. However, none of these witnesses are eye witnesses to the alleged illicit relationship of Uma with the accused. Even assuming that there was such a illicit relationship between deceased Uma and the accused, still, according to these witnesses, accused was not a party in the panchayath, as such, the advise said to have been made by these witnesses was only to Uma and not to the accused. Therefore, the first doubt that arises in the case of the prosecution is about the accused being not advised by any of these material witnesses either in panchayath or separately, advising him to discontinue his alleged illicit relationship with Uma. Secondly, when the evidence of PW-1 is considered in its entirety, his knowledge about deceased Uma having illicit relationship with the accused is only as a hearsay from his deceased brother Nagendra. PW-1 though has stated that on the previous day evening of the suicide of his brother Nagendra, the said Nagendra said to this witness about his decision to commit suicide. Thus, a day before the alleged incident of suicide, PW-1 knew that his brother Nagendra has determined to commit suicide. According to PW-1, he informed the same to the wife of Nagendra i.e., to deceased Uma also. Still, he has not taken any care or caution to avoid possible suicide by his brother Nagendra in a short time thereafter. This leads to a suspicion that even PW-1 also did not consider that the alleged statement of accused said to have been made to the deceased Nagendra on the previous evening i.e., on 22.5.2013 at about 6.30 p.m. as a serious statement made with some intention that Nagendra should go and die. That means, PW-1 did not consider the alleged utterance of the accused to Nagendra as an instigation made by the accused for Nagendra committing suicide. 21. Admittedly, PW-2 is not an eye witness to the alleged act of the accused stating to deceased Nagendra to go and die. He has only stated that he came to know that because of the previous day's exchange of words, Nagendra committed suicide. 21. Admittedly, PW-2 is not an eye witness to the alleged act of the accused stating to deceased Nagendra to go and die. He has only stated that he came to know that because of the previous day's exchange of words, Nagendra committed suicide. The witness has not stated as to through whom he came to know and how far the said information about the cause for the suicide of Nagendra was reliable, have not been explained by this witness. Therefore, the evidence of PW-2 would be of no help to the prosecution to say that there was any abetment by the accused towards the suicide of the deceased Nagendra. 22. The evidence of PW-3, who is none else than the mother of the deceased Uma and at the same time, elder sister of deceased Nagendra, is also of no benefit to the prosecution. She has only stated that her brother-cum- son-in-law Nagendra died since he came to know about illicit relationship existing between his wife and the accused. Even according to prosecution witnesses, it is not that it was for the first time i.e., on 22.5.2013, deceased Nagendra, the husband of Uma, came to know about the illicit relationship of his wife with the accused. According to the prosecution, much earlier to that, since two years, deceased Nagendra was knowing about his wife's illicit relationship with the accused, so also, the other family members also knew it since earlier. It is for the said reason, a panchayath was held wherein Uma was suitably advised. Therefore, neither the evidence of PW-1 nor the evidence of PW-3 would go to show that it is because of the shock of deceased Nagendra coming to know his wife's illicit relationship with the accused and simultaneously the accused also asking him to go and die, that he committed suicide. 23. Pw-6 not only a localite, but, also grandmother of deceased Uma, though states that having seen the illicit relationship between his wife-Uma and accused, Nagendra committed suicide, but, in the same breath, the very same witness has also stated that after seeing all these, Nagendra decided that he should not live any long and as such, he committed suicide. In this manner, the eldest family member of both the deceased has shown that committing suicide was an independent decision of deceased Nagendra and that there was no abetment by anybody, including the accused. 24. In this manner, the eldest family member of both the deceased has shown that committing suicide was an independent decision of deceased Nagendra and that there was no abetment by anybody, including the accused. 24. In this manner, even though the evidence of PW-1, PW-2, PW-3 and PW-6 though accepted on their facial value and in its entirety, their statements would only go to show that being hurt by continued illicit relationship of his wife with the accused, the deceased Nagendra decided to put an end to his life which led him to commit suicide. 25. Though the illicit relationship between his wife- Uma and accused was not a new knowledge to him at the time of his suicide, but incidentally, the previous day's alleged statement of the accused to him that it is better for Nagendra to go and die, so that, he (the accused) could continue his illicit relationship with Uma, was only a fact which has made deceased Nagendra to decide finally that he should commit suicide. In such a circumstance, the mere alleged utterance of the word by the accused towards the deceased Nagendra that he should go and die cannot be considered as an instigation by the accused for the deceased Nagendra to commit suicide. No mens rea on the part of the accused in uttering those words can be gathered from the evidence of prosecution witnesses. 26. The Hon'ble Apex Court in Sanju Sengar's case (supra), observing the fact in that case wherein in a quarrel that had taken place between the appellant and the deceased, the appellant had stated to the deceased "to go and die" and thereafter, deceased was found dead two days later, was pleased to hold that suicide was not proximate to the quarrel. In that case, there was also a suicide note giving the name, still the Hon'ble Apex Court held the same does not amount to abetment of suicide. The same analysis of 'abetment' applies to the case on hand also. 27. As observed above, the alleged illicit relationship between Uma and the accused being not a new matter and said to have been prevailing since a long time and the same was to the knowledge of deceased Nagendra. The same analysis of 'abetment' applies to the case on hand also. 27. As observed above, the alleged illicit relationship between Uma and the accused being not a new matter and said to have been prevailing since a long time and the same was to the knowledge of deceased Nagendra. Further, in the said long duration, deceased Nagendra appears to have not taken any steps against the accused or to ensure that the illicit relationship would come to an end. Furthermore, even after the accused was said to have told Nagendra to go and die, still, there was sufficient time for the deceased to think and act upon. In that regard, he had also met his elder brother i.e., PW-1 and disclosed the incident to him. Thus, the deceased Nagendra though had sufficient time to take a proper decision, but has shown that, without thinking as a reasonable prudent man, has taken a drastic step, which act on the part of the deceased Nagendra cannot be considered as an act of an ordinary prudent man who would react in a similar situation. Therefore, the act of the accused falls short of calling it as an act of abetment of suicide. 28. However, the trial Court without appreciating these aspects and without analysing the evidence of the prosecution witnesses in their proper perspective, but taking into consideration that accused had asked the deceased to go and die, has held that there was abetment on the part of the accused in the act of suicide by deceased Nagendra. The said finding of the trial Court since has now proven to be an erroneous finding and since it is found that the prosecution has failed to prove the alleged guilt against the accused beyond reasonable doubt, the judgment of the trial Court under appeal deserves to be set aside. Accordingly, I proceed to pass the following order: ORDER The Appeal is allowed. The judgment of conviction and order on sentence dated 25.06.2016, passed by the learned Addl.District & Sessions Judge, Chamarajanagara, sitting at Kollegala, in S.C.No.26/2014, holding the accused/appellant Shivaswamy @ Kalal, S/o Lalingappa, guilty of the offence punishable under Section 306 of IPC, is set aside. The accused/appellant is acquitted of the offence punishable under Section 306 of IPC. The accused be released forthwith, provided he is not required to be retained in judicial custody in any other matter. The accused/appellant is acquitted of the offence punishable under Section 306 of IPC. The accused be released forthwith, provided he is not required to be retained in judicial custody in any other matter. The Jail authorities be intimated about the release of the accused/appellant. The Registry is directed to transmit a copy of this judgment along with lower Court records to the trial Court immediately.