JUDGMENT : 1. This appeal is directed against the judgment of conviction and sentence dated 12.03.2003 passed by the Ist Additional Sessions Judge Surguja (Ambikapur) in Sessions Trial No.123/2002, whereby the appellants have been convicted for the offence under Section 306/34 IPC and sentenced them to undergo RI for 10 years with fine of Rs.5000/-, in default to pay fine amount, further RI for 1 year to each appellants. 2. Brief facts of the case is that one Ramdhan Pando has given a merg intimation to the police Station Lakhanpur, Surguja on 17.09.2000 at about 20:30 hours intimating that the deceased Aloka Rani, working as an Angan Badi worker and residing along with her 10 year old son (Chintu), has committed suicide by setting herself ablaze on 17.09.2000 at about 12:45 pm in her house. When the villagers asked her about the incident, she replied that she herself has committed suicide. Thereafter, she was being taken to Lakhanpur hospital from where she was referred to Ambikapur hospital. When she was being taken to Ambikapur hospital, on the way she died. Merg intimation Ex.P/5 was recorded by the police and started merg enquiry. The inquest Ex.P/7 of the deadbody was prepared in presence of the witnesses. The body was sent for postmortem to primary health centre Lakhanpur where PW-9, Dr. P.S. Kerketta has conducted postmortem and gave his report vide Ex.P/18. While conducting postmortem, the doctor found 100 percent burn injuries. He also found Carbon particles present in nostril, deep burn in chest, abdomen and both thigh. 100 percent burn in rest part of the body. Blisters present at place, there is exudate from burn area. Present burn is antemortem in nature. The doctor has opined that cause of death is shock as a result of antemortem burn. Vide seizure memo Ex.P/3, Jerikane contained with kerosene, aluminum pot, one match box, burnt piece of clothes and one burnt matchstick was seized from the spot in presence of the witnesses. Vide Ex.P/10 one steel glass from which poisonous like smell coming out, 4 nos. photo, 3 nos. letter written by Raju, 5 nos. letter written by deceased Aloka Bai and 4 nos. of another letters written by deceased Aloka were seized. FIR Ex.P/11 was registered by the police for the offence under Section 306 IPC against the appellants and also against one Khursheed Miyan. The seized articles were sent for FSL examination. photo, 3 nos. letter written by Raju, 5 nos. letter written by deceased Aloka Bai and 4 nos. of another letters written by deceased Aloka were seized. FIR Ex.P/11 was registered by the police for the offence under Section 306 IPC against the appellants and also against one Khursheed Miyan. The seized articles were sent for FSL examination. FSL report is Ex.P/15 in which it has been found that the seized plastic Jerikane and burnt pieces of clothes contains with kerosene oil whereas, aluminum pot, the match box and burnt matchstick does not contain with kerosene oil. Spot map Ex.P/17 was prepared by the police and Ex.P/19 was prepared by the Patwari. 3. It is also the case of the prosecution that when the deceased was being taken to Lakhanpur Hospital, PW-9, Dr. PS Kerketta have taken her dying declaration Ex. P/1. 4. The statement of the prosecution witnesses were recorded under section 161 CrPC. After completion of investigation and after arresting the accused persons, charge sheet was filed for the offence under Section 306/34 IPC against the appellants and another co-accused Khursheed, who is absconding. 5. The case was committed to Sessions Court for its trial and from where it has been transferred to trial Court. The trial court has framed charges against the appellants for the offence under Section 306/34 IPC. The appellants abjured their guilt and claimed trial. 6. In order to establish the charge against the appellants, the prosecution has examined 12 witnesses. The statement under section 313 of CrPC of the appellants were recorded in which they denied the material appearing against them and plead innocence and submits that they have been falsely implicated in the offence. They would further submit there was an allegation of embazzlement of fund of Mahila Samuh for which a complaint was made before the Panchayat and Panchayat has taken action against her. Therefore, she had falsely implicated the appellants. 7. After appreciation of evidence adduced by the prosecution, the learned trial court has convicted the appellants and sentenced them as mentioned in para 1 of this judgment. Hence this appeal. 8. Learned counsel for the appellants would submit that the prosecution has failed to prove the case against the appellants beyond reasonable doubts. The appellants are innocent and falsely implicated in the offence. There are material omissions and contradictions in the evidence of prosecution witnesses. Hence this appeal. 8. Learned counsel for the appellants would submit that the prosecution has failed to prove the case against the appellants beyond reasonable doubts. The appellants are innocent and falsely implicated in the offence. There are material omissions and contradictions in the evidence of prosecution witnesses. There is no allegation of any instigation or abetment on the part of the present appellants with which the appellants could have been charged for the said offence, There is no abatement from them to the deceased. There is no report against the appellants that they have threatened the deceased or harassed her in any manner. She was working as Angan Badi worker and could have lodged complaint against the present appellants before the authorities or the police persons, but she didn’t do so. There is no specific allegation against the appellants that at the time of commission of offence she was being pressurized by the appellants to satisfy their lust, as alleged against the appellant Sanjay Kumar, and to provide 5 liters refined oil every month to appellant John Balihar from the Angan Badi Centre. He would further submit that the alleged demand made by the appellants does not come under the purview of any harassment or inducement to commit suicide. Therefore, the appellants are entitled for their acquittal. 9. On the other hand, the learned counsel for the State opposes the arguments advanced by the counsel for the appellants and contended that there are sufficient evidence available against the appellants. The appellants were continuously making pressure upon the deceased to provide 5 liters refined oil every month to appellant John from the Angan Badi Centre and also to satisfy their lust. The pressure made by the appellants were in such extent that she was left with no other option, but to take extreme decision of committing suicide by setting herself ablaze. He would further submit that when she was being taken to the hospital, the doctor who has given her primary treatment PW-9 Dr. PS Kerketta, has recorded his dying declaration Ex.P/1 in which she disclosed the harassment made by the appellants which has been proved by the doctor and therefore the conviction of the appellants is justified and the appeal is liable to be dismissed. 10. I have heard the counsel for the parties and perused the records. 11. PS Kerketta, has recorded his dying declaration Ex.P/1 in which she disclosed the harassment made by the appellants which has been proved by the doctor and therefore the conviction of the appellants is justified and the appeal is liable to be dismissed. 10. I have heard the counsel for the parties and perused the records. 11. To resolve the controversy it appears necessary first of all to have a look on the provisions of Section 306 and 107IPC which reads as under- “306. 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. Abatement has been defined in Section 107 and 109 IPC which reads as under- 107. 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. 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. Section 109 IPC provides for punishment of abetment which reads as under Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.” 12. As per definition given in Section 107 IPC abatement is constituted by- I. Instigating a person to commit an offence; or II. Engaging in a conspiracy to commit it; or III. Intentionally aiding a person to commit it. 13. A person is said to 'instigate' another to an Act, when he actively suggests or stimulates him to the act by any means of language, direct or indirect, whether it takes the form of express solicitation, or of hints, insinuation or encouragement. The word 'instigate' means to goad or urge forward or to provoke, incite, urge or encourage to do an act. The word 'instigate' means to goad or urge forward or to provoke, incite, urge or encourage to do an act. 14. As Section 306 IPC makes abatement of commission of suicide punishable, therefore, making liable for an offence punishable under Section 306 IPC, it is a duty of the prosecution to establish that such person has abetted the commission of suicide and for the purpose of determining the act of the accused it is necessary to see that his act must fall in any of the three categories as enumerated under Section 107 IPC, and therefore, it is necessary to prove that the said accused has instigated the person to commit suicide or must have engaged with one or more other person in any conspiracy for seeking that the deceased commits suicide or he must intentionally aid by any act or illegal omission, of the commission of suicide by the deceased. 15. The unnatural death of deceased is not in dispute. PW-9, Dr. PS Kerketta, who conducted postmortem, have deposed that on 17.09.2000 about 4 pm Aloka Bai was brought before him for recording her dying declaration. He recorded dying declaration as she stated to him which is Ex.P/1. After recording dying declaration, he referred her for better treatment, however, while shifting to other hospital she died. On 18.09.2000 the dead body of the deceased was brought before him for postmortem. He conducted postmortem on the same day i.e. 18.09.2000. After postmortem, he opined that cause of death of the deceased was shock due to antemortem burn injuries. However, her viscera was preserved and sent for chemical examination. The postmortem report is Ex.P/18. In cross examination, he has stated that in dying declaration Ex.P/1 there is no endorsement of any police station that she was being sent to police station for recording her dying declaration. He had not done MLC of the deceased. He has stated that he has given life saving drugs to the deceased. He has not mentioned in her dying declaration about giving her medicine. He admits that she received 100 percent burn injuries. He admits that in Ex.P/1 he has not disclosed about the fact that she was 100 percent burnt. There is no endorsement in Ex.P/1 that patient is giving her statement to him. He has not mentioned in her dying declaration about giving her medicine. He admits that she received 100 percent burn injuries. He admits that in Ex.P/1 he has not disclosed about the fact that she was 100 percent burnt. There is no endorsement in Ex.P/1 that patient is giving her statement to him. He admits that even the police has also not taken any report as to whether she was in a condition to give her statement or not. When the deceased was brought before him, she was in shock. It is also not mentioned in Ex.P/1 that from where she has come, what is her name and how the incident occurred. 16. So far as dying declaration Ex.P/1 is concerned, the doctor has recorded dying declaration on 17.09.2000 at about 4 pm. He has stated that the deceased has made allegation against the all the accused persons while recording her dying declaration. Against appellant No.1 it was alleged in the capacity of village Sarpanch he used to demand 5 liters of oil every month from the Angan Badi Centre, or else she would be removed from the post of Angan Badi Worker. The allegation against the appellant No.2-Sanjay was that he asked for physical relation with him. The doctor has further stated that the deceased has given her statement that she set herself ablaze and no one else have burnt her. There was no certification in the dying declaration. There was no endorsement that at the time of recording dying declaration she was in a fit state physical condition to give statement. In cross examination, the doctor has admitted that when she was being taken to the hospital, she was in shock and 100 percent burn injuries. There was no primary verification as to from where she came, what is her name etc. 17. PW-1, Sharif Khan and PW-3, Ramdhan were stated to be witness of dying declaration Ex.P/1. PW-1, Sharif Khan has stated in his deposition that when they have taken the deceased to hospital at Lakhanpur, the doctor has recorded her statement and asked her to immediately shift her to Ambikapur hospital. He further states that the appellant Sanjay have abused her, but why he abused her has not been disclosed by the deceased. PW-1, Sharif Khan has stated in his deposition that when they have taken the deceased to hospital at Lakhanpur, the doctor has recorded her statement and asked her to immediately shift her to Ambikapur hospital. He further states that the appellant Sanjay have abused her, but why he abused her has not been disclosed by the deceased. Deceased Aloka Bai has also given her statement that Khursheed has forcefully applied vermilion on her head and thereafter Ramdhar and Chintu (son of deceased) have taken her to Ambikapur hospital and on the way she died. This witness was declared hostile. Thereafter, he has stated that deceased Aloka Bai had disclosed the name of other accused John Balihar. In cross examination he has stated that the fact that Sanjay has abused her was disclosed by the deceased, however the same was not stated before the doctor while recording dying declaration. When the deceased was being taken to police station, no one was there at police station and therefore they have taken her to the Lakhanpur hospital and from where she was being taken to Ambikapur hospital and she died on the way. If the deceased did not meet with any police officer before her death, then memo Ex.P/1-A written by the police officer to the doctor of Lakhanpur hospital itself was suspicious as to at what point of time the police has given the said memo to the doctor and behind his back the dying declaration was recorded by the doctor. 18. Another witness PW-3, Ramdhan has stated in his deposition that when Aloka Bai was being taken to hospital at Lakhanpur, she was immediately referred to Ambikapur hospital. He states that the doctor has not recorded any statement of Aloka Bai. In Ex.P/1 his signature at “B” to “B” part was taken by the police. This witness also turned hostile and not supported the case of the prosecution. 19. From the evidence of PW-9, Dr. PS Kerketta, PW-1, Sharif Khan and PW-3, Ramdhan, the prosecution could not establish the fact that when the deceased was being taken to the hospital, prior to that, she was taken to police station from where memo Ex.P/1-A was written by the police and in compliance thereof, the doctor has recorded her dying declaration. From the evidence of PW-9, Dr. PS Kerketta, PW-1, Sharif Khan and PW-3, Ramdhan, the prosecution could not establish the fact that when the deceased was being taken to the hospital, prior to that, she was taken to police station from where memo Ex.P/1-A was written by the police and in compliance thereof, the doctor has recorded her dying declaration. Although, the doctor has stated that she was being taken by the police constable Anand Singh for recording her dying declaration, but the witnesses PW-1 & P/3 have made the statement of doctor doubtful as to whether she was being sent by the police for recording her dying declaration. Therefore, this court is of the opinion that dying declaration Ex.P/1 produced by the prosecution does not inspire confidence upon the court to rely the same. A dying declaration alone can be the basis of conviction, provided it was recorded correctly and inspires confidence in the court both with regard to the maker and its contents. 20. PW-1, Shareef Khan, has further stated in his deposition that in a village meeting presided by one Niyogi madam, Aloka Bai was also present, however, after 5-10 minutes she left the meeting. After sometime, when he came out from the meeting, he saw that Aloka Bai was burning and she was shouting. Appellant Sanjay was passing through the house of deceased at that time. On being asked, she disclosed that Sanjay has abused and warned her that if she wants to live in the Panchayat, she has to follow his order. He further adds, except this, Aloka Bai has not disclosed anything. 21. This witness also turned hostile. After declaring him hostile, he has stated that he has not disclosed before the police in his statement that John Balihar was demanding oil from her. She has not disclosed the name of any person except Khursheed. In cross examination, he has stated that deceased was an educated lady. Prior to date of incident, she has not made any complaint to him against any person. This witness has denied the material part of his police statement Ex.P/2. He has further stated in his cross examination that at the time when she was being taken to hospital, she was unconscious and unable to speak anything. The manner in which this witness is making his deposition, takes his deposition to be branded as shaky witness. 22. This witness has denied the material part of his police statement Ex.P/2. He has further stated in his cross examination that at the time when she was being taken to hospital, she was unconscious and unable to speak anything. The manner in which this witness is making his deposition, takes his deposition to be branded as shaky witness. 22. PW-2, Kameshwar, have stated in his deposition that when he heard the noise, he went on the spot and asked from Aloka Bai as to how she has burnt, then she has narrated the incident that Sanjay has abused and threatened her and Khursheed has applied vermilion on her head. Except this, nothing has been stated by her. Thereafter, she was taken to the hospital and on the way she died. This witness also turned hostile and denied giving his police statement Ex.P/4. He has further stated that the deceased has not made any complaint to him before the incident against any of the accused persons. When she went to the house of the deceased, there was no conversation between him and the deceased. He admits that after death of the deceased, Shareef has informed him that Sanjay abused her and on the basis of said information he has stated that Sanjay had abused the deceased. 23. PW-3, Ramdhan is also the witness of same fashion as PW-1 is. He too declared hostile and denied his police statement Ex.P/8. He admits in his cross examination that when he went on the spot, she was not in conscious. He also denied that deceased had disclosed before him that the appellant John had demanded oil every month and appellant Sanjay asked her to satisfy him. 24. PW-4, Kamal Sai, have stated in his deposition that a village meeting was convened in the house of Ramdhan who was Up Sarpanch. In the said meeting Aloka Bai was also present. After 10-15 minutes she left the meeting as someone came in her house. Again she came back in the meeting and disclosed that it was Sanjay Agrawal who came to her house. After sometime Ramdhan has informed them that the house of Aloka Bai is burning. He went to the house of Aloka Rani and saw that Aloka was burning. After 10-15 minutes she left the meeting as someone came in her house. Again she came back in the meeting and disclosed that it was Sanjay Agrawal who came to her house. After sometime Ramdhan has informed them that the house of Aloka Bai is burning. He went to the house of Aloka Rani and saw that Aloka was burning. When they asked from her, she disclosed that she herself committed suicide and also stated that Khursheed has thrown her bucket when she went to borewell for water. This witness also turned hostile and not supported his police statement Ex.P/9. 25. Another important witness is PW-5, Chintu, who is son of the deceased. He has stated in his deposition that before the incident Sanjay abused his mother. In cross examination, he has stated incident of abusing by Sanjay to his mother is not of the day of incident when her mother burnt, but it was prior to date of incident. This abuse by Sanjay to his mother was first stated by him before the court. 26. PW-10, Khageshwari Netam, have stated in her deposition that after meeting when they were going to their house, they heard the noise that madam got burnt, then she went to her house and then Aloka Rani disclosed that John Balihar has demanded oil every month from her or else she would be removed from service. Sanjay Agrawal abused her with filthy language and Khursheed has thrown her bucket when she went to bring water. She denied some part of her police statement that John has demanded oil and Sanjay abused her. 27. From the evidence of these witnesses, the only fact come forward that the accused John Balihar have demanded oil from her every month, Sanjay abused her and other co-accused Khursheed has thrown her bucket when she went to borewell to bring water. When the appellant John Balihar having demanded oil and appellant- Sanjay Kumar having abused her, she was having ample opportunity to lodge a complaint before the Panchayat person or before the police to that effect. She being an educated lady, can very well make her complaint to the authorities or to protest the action of the accused persons. Prior to that, there is no complaint against the accused persons by her. 28. In Mahendra Singh v. State of MP, 1995 (3) Sup. She being an educated lady, can very well make her complaint to the authorities or to protest the action of the accused persons. Prior to that, there is no complaint against the accused persons by her. 28. In Mahendra Singh v. State of MP, 1995 (3) Sup. SCC 731, the appellant was charged of an offence under Section 306 IPC basically based upon the dying declaration of the accused, which reads as under- “MY mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of those reasons and being harassed I want to die by burning.” 29. The Supreme Court, considering the definition of 'abetment' under Section 107 IPC, found that the charge and conviction of the applicants for an offence under Section 306 is not sustainable merely on the allegation of harassment to the deceased. It is further held that neither of the ingredients of abetment are attracted on the statement of the deceased. 30. In case of M. Mohan v. State represented by the Deputy Superintendent of Police, 2011 (3) SCC 626 , the Supreme Court has clearly held that in order to convict a person under Section 306 IPC, there has to a clear mens rea to commit the offence, by observing as under- “45. The intention of the Legislature and the ratio of the cases decided by this court are 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/she committed suicide.” 31. In the matter of Hansraj Vs. State of Haryana, 2004 (8) SCC 257, the Supreme Court has held as under: “12. The question then arises as to whether in the facts and circumstances of the case the appellant can be convicted of the offence under Section 306 I.P.C. with the aid of the presumption under Section 113 A of the Indian Evidence Act. State of Haryana, 2004 (8) SCC 257, the Supreme Court has held as under: “12. The question then arises as to whether in the facts and circumstances of the case the appellant can be convicted of the offence under Section 306 I.P.C. with the aid of the presumption under Section 113 A of the Indian Evidence Act. Any person who abets the commission of suicide is liable to be punished under Section 306 I.P.C. Section 107 I.P.C. lays down the ingredients of abetment which includes instigating any person to do a thing or engaging with one or more person in any conspiracy for the doing of a thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing, or intentional aid by any act or illegal omission to the doing of that thing. In the instant case there is no direct evidence to establish that the appellant either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide.” 32. In the matter of Gurucharan Singh Vs. State of Punjab, 2017(1) SCC 433 the Supreme Court has observed as under: “…...It is thus manifest that the offence punishable is one of abetment of the commission of suicide by any person, predicating existence of a live link or nexus between the two, abetment being the propelling causative factor. The basic ingredients of this provision are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of this constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualize the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC” 33. After considering the evidence on record, and also the law laid down by the Supreme Court in the aforementioned judgments, this court is of the considered opinion that the evidence on record does not demonstrate the unqualified clarity and conviction and role of the appellants as contemplated by the above provision so as to hold an unassailable findings of their culpability under Section 306 of IPC. The material on record do not suggest any act of cruelty, oppression, harassment or inducement so as to provoke or compel the deceased to commit suicide with no alternative. No such continuous and proximate conduct of the appellant with the required provocative culpability is proved by the prosecution to infer that the deceased has been put in such a condition either physically or mentally that she had chosen to commit suicide. 34. In the result, the appeal is allowed. The judgment of conviction and sentence passed by the trial Court is set aside. The appellants are acquitted from the charges framed against them. They are reported to be on bail. Their bail bond shall remain in operation for a further period of six months as provided under Section 437-A CrPC. 35. The lower court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.