JUDGMENT : 1. This criminal appeal filed by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 27-11-1998, passed by the Additional Sessions Judge, Ambikapur, Dist: Sarguja (C.G.) in Sessions Trial No.173/1997, whereby the appellant-accused has been convicted and sentenced as under:- Conviction Sentence U/s 306 of the IPC S.I. for 5 years. 2. It is noteworthy that under the decision in question above, the trial court had acquitted the accused of the said offence under Section 498-A of IPC and Section 304-B of IPC as it was not proved against the appellant. 3. The prosecution case in brief is that the appellant-Dilip Kumar Gupta was married to Sunita on 11/05/1995. After the marriage, the appellant herein continuously demanded color TV, VCR, scooter, gold chain and money in the form of dowry, and when the said demand was not fulfilled, the appellant, after consuming liquor used to give physical and mental torture to his wife Sunita. As a result of which, on 04/01/1997, Sunita set her ablaze by pouring kerosene upon her, thereafter, she was taken to the hospital. After examination by Dr. S.P. Vaishya (PW-9), Sunita was found fit to give statement, on which her dying declaration Ex.P-18 was recorded by Executive Magistrate B.C. Ekka (PW-16), in which, she stated that her husband/appellant-Dilip Kumar Gupta used to come in drunken condition and, hence, she set her ablaze. As a result of death of his wife-Sunita within 07 years, merg was registered. The post-mortem of dead body of Sunita(deceased) was conducted. Broken bangles, half-burnt clothes etc. were seized from the spot and the same were sent for chemical examination to FSL. The crime was registered at P.S.- Balrampur vide Ex.P-11 and after completion of investigation, charge sheet was filed. 4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 16 witnesses and exhibited 24 documents. Statements of the appellant was recorded under Section 313 of Cr.P.C. in which he denied circumstances appearing against him in prosecution case, pleaded innocence and false implication. He stated that he married to Sunita without any demand of dowry, he was not at home when his wife-Sunita set her ablaze. He does not drink alcohol and has not assaulted his wife-Sunita. He stated that he married to Sunita without any demand of dowry, he was not at home when his wife-Sunita set her ablaze. He does not drink alcohol and has not assaulted his wife-Sunita. In defence, the appellant Dilip Kumar Gupta has examined Ram Gopal Pandey, Head Constable of Balrampur police station, who has given information about the dying declaration of deceased (Sunita) by submitting rojnamcha Sanha vide Ex.P-19 recorded on 04/01/1997, according to which, Sunita(deceased) dying declaration of Sunita (deceased) was recorded on that date. 5. After hearing both the parties, the trial court did not find it proved that Sunita was tortured for dowry soon before her death. It was also found that the relationship between husband and wife was cordial. The statement of the father and brother of the deceased-Sunita was found to be an exaggeration but on the basis of the dying declaration of the deceased- Sunita, it was found to be proved that the appellant used to drink alcohol and as a result of the said act of the appellant, his wife-Sunita committed suicide and hence, the appellant-Dilip Kumar Gupta was found guilty. He was convicted and sentenced for the offense under Section 306 of IPC, which has been challenged in this appeal. 6. Learned counsel for the appellant submits that for abetment under Section 107 of IPC, some instigation, conspiracy or assistance is necessary, which has not been proved in this case. Jugal Prasad Sahu (PW-1), father of Sunita(deceased) has admitted in paragraph 52 of his evidence that his daughter-Sunita was unhappy due to the death of her child at the time of birth and thus, in fact, the reason for suicide by Sunita was being disappointment, due to the death of her newborn baby girl. The appellant was not induced to torture her in any way. Therefore, the conviction and sentence passed by the trial court in question does not deserve to be sustained. Hence, the appeal may be allowed. He has placed reliance on the various judgments in support of his contentions. 7. On the other hand, learned counsel for the State supporting the impugned judgment, opposed the arguments advanced on behalf of the appellant. 8. Heard learned counsel for the parties and perused the material on record including the impugned judgment. 9. Hence, the appeal may be allowed. He has placed reliance on the various judgments in support of his contentions. 7. On the other hand, learned counsel for the State supporting the impugned judgment, opposed the arguments advanced on behalf of the appellant. 8. Heard learned counsel for the parties and perused the material on record including the impugned judgment. 9. The conviction of the appellant Dilip Kumar Gupta is mainly based on the dying declaration of his wife-Sunita(deceased) vide Ex.P-18, according to which she has deposed that her husband/appellant-Dilip Kumar Gupta used to consume liquor and came to the house in drunken condition. Apart from that, Sunita has not made any statement against the appellant in her dying declaration. 10. The first and foremost question is as to whether the said act falls in the category of abetment? 11. The abetment of suicide under Section 306 IPC are as follows:- “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. 12. Under Section-107 IPC, abetment has been defined as follows:- 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 - 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. 13. The appellant has relied on Amalendu Pal v. State of West Bengal, (2010) 1 SCC 707 is cited in which the Hon'ble Supreme Court has expressed the following holdings in para-12 and para-13 of the judgment. “12. 13. The appellant has relied on Amalendu Pal v. State of West Bengal, (2010) 1 SCC 707 is cited in which the Hon'ble Supreme Court has expressed the following holdings in para-12 and para-13 of the judgment. “12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 of 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 put an end to her life. 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 of IPC is not sustainable. 13. In order to bring a case within the purview of Section 306 of 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 of IPC. 14. In S.S. Cheena v. In Vijay Kumar Mahajan, (2010) 12 SCC 190 , the Hon'ble Supreme Court in the matter of abetment of suicide under Section- 306 IPC has expressed the determination in paragraph-25 as follows:- “25. 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. 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 of 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 that act must have been intended to push the deceased into such a position that he committed suicide.” 15. In Gurucharan Singh Vs. State of Punjab reported in (2020) 10 SCC 200 , in this matter, the Hon’ble Supreme Court has held that Abetment involves a mental process of instigating a person or intentionally aiding a 1 (2010) 12 SCC 190 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 that act must have been intended to push the deceased into such a position that he committed suicide.” Before holding an accused guilty of an offence under Section 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 put an end to her life. 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. 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. 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. A woman may attempt to commit suicide due to various reasons, such as, depression, financial difficulties, disappointment in love, tired of domestic worries, acute or chronic ailments and so on and need not be due to abetment. Reasoning to the effect that no prudent man will commit suicide unless abetted to do so by someone else, is a perverse reasoning. 16. Reverting to the facts of the present case, in thelight of the above cited judgments, considering the statements of the deceased's father-Jugal Prasad Sahu (PW-1), brother-Ramjit Prasad (PW-2) and neighbor Roop Chandra Thakur (PW-3), it has not been established that Sunita was abetted by the appellant-Dilip Kumar Gupta, as a result of which she abetted to commit suicide. It is reflected in the statement of deceased/Sunita's father-Jugal Prasad Sahu (PW-1) that Sunita was depressed due to death of her newborn child, which could be a reason for her committing suicide. Sunita's dying declaration Ex.P-18, shows about the drinking of alcohol by the appellant, cannot be considered as any kind of instigation or abetment in the light of the above cited judgments, as a result of which Sunita might have committed suicide. 17. On the basis of the above discussions and observations, this Court finds that there is no enough evidence to convict the appellant for abetment of suicide under Section 306 of the Indian Penal Code. 17. On the basis of the above discussions and observations, this Court finds that there is no enough evidence to convict the appellant for abetment of suicide under Section 306 of the Indian Penal Code. The case of the prosecution has not been proved. In this situation, the judgment of the trial court in question regarding conviction and sentence of the appellant is not found to be maintainable. 18. Accordingly, the appeal is allowed. The judgment of conviction and order of sentence passed by trial Court against the appellant for the offence under Section 306 of the Indian Penal Code is set-aside. The appellant is stated to be on bail. Under Section-437/A of the Code of Criminal Procedure, his bail-bond will be effective for another 6 months. If there is no need to appear in the superior Court, his bail-bond will be considered free. 19. The record of the trial court along with the copy of this judgment be sent back immediately for necessary action and compliance.