JUDGMENT : (Sachin Singh Rajput, J.) 1. The appellants in this appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) have called in question the legality, correctness and judicial propriety of the judgment dated 16/12/2003 passed by the II Additional Sessions Judge, Balodabazar in Sessions Trial No. 68/2003, by which the appellants have been convicted and sentenced in the following manner :- Conviction Sentence Under Section 306 read with 34 of Indian Penal Code, 1860 (for short IPC) 5 Years R.I. with fine of Rs. 5000/- with default sentence of R.I. for 6 Under Section 498-A of IPC 2 Years R.I. with fine of Rs. 500/- with default sentence of R.I. for 2 months. Both sentences to run concurrently and default sentence to run separately. 2. As per prosecution story, the appellant No.1 and the deceased Patrika Bai (herein after deceased) were in love for about 1 year prior to the date of incident i.e. 23/12/2002 and as a result of their relationship, the deceased became pregnant. When the factum of pregnancy of the deceased came to light, a panchayat meeting was convened on 16/12/2002 in the village Naktidih, wherein the appellant No. 1 accepted that he is the father of the child and had also shown his willingness to keep the deceased with him. Thereafter, the deceased came to live with the appellant No. 1 who was residing with appellants No. 2 & 3. On the next day i.e. 17.12.2002, the deceased gave birth to a female child. The sixth day ceremony was organized by the appellants which the parents of the deceased did not attend. The deceased was found missing and she was searched by the appellants and the parents of the deceased. On the next day, the dead body of deceased and her infant baby was found floating in the well. A zero FIR (Ex.P/10) was registered and based on that FIR (Ex.P/11) was recorded in P.S. Bailaigarh. Merg (Ex.P/12) was registered. Postmortem examination on the bodies of Patrika Bai and her infant child was conducted and the autopsy report of the two are (Ex.P/14) and (Ex.P/15). The cause of death as mentioned in the aforesaid autopsy reports has been opined to be drowning. Merg (Ex.P/12) was registered. Postmortem examination on the bodies of Patrika Bai and her infant child was conducted and the autopsy report of the two are (Ex.P/14) and (Ex.P/15). The cause of death as mentioned in the aforesaid autopsy reports has been opined to be drowning. Spot maps (Ex.P/5) and (Ex.P/6) were prepared, statements of the witnesses were recorded, the appellants were arrested and after due investigation the charge-sheet was filed before the competent Court. Since the case was triable by a Court of sessions, it was committed to the learned Sessions Judge who in turn made over the same to learned Additional Sessions Judge, Balodabazar who conducted the trial. The appellants were charged for the offence punishable under Section 306 /34 in the alternative 302/34 and 498-A of IPC . The appellants however denied the charges leveled against them and claimed trial. 3. Prosecution in order to bring home the guilt of the appellants examined as many as 11 witnesses and exhibited 18 documents. The learned trial Court by the impugned judgment, convicted and sentenced the appellants as stated in para 1 of this judgment which is assailed before this Court in this appeal. 4. Shri Y.C. Sharma, learned Senior Advocate vehemently argued that the prosecution was not able to bring home the guilt of the appellants beyond reasonable doubt. He submits that there is no admissible evidence available against the appellants to convict them under Section 306 and Section 498-A of IPC . He submits that essential ingredients of abetment as contained in Section 107 of IPC are missing in the case in hand. He also submits that though some allegations have been made by the father of the deceased namely Chhatram (PW-1) and mother Darasmati (PW-2), those allegations are completely missing in their 161 Cr.P.C. statements. He further submits that learned trial Court has committed a glaring error in relying upon the evidence of these witnesses which is full of material omissions and thus holding the accused / appellants guilty as mentioned above. He submits that the deceased lived with the appellants only for 7 days, that the 6 th day function of the newly born child was organized but the parents of the deceased did not attend the same though invitation was there to them. He submits that the deceased lived with the appellants only for 7 days, that the 6 th day function of the newly born child was organized but the parents of the deceased did not attend the same though invitation was there to them. He submits that from the evidence on record it is quite evident that the parents of the deceased had left her and there is every likelihood that having been put to mental trauma by this act of the parents she put her life to an end by committing suicide. He further submits that on account of being from different caste background, the parents of the deceased must have raised objection to her accompaniment with accused / appellant No.1 and having been caught in the grip of mental stress, she appears to have taken this drastic step of ending her life, but the accused /appellants do not appear to have goaded her in any manner whatsoever prompting her to this extremity at the cost of her life. Learned senior counsel thus submits that looking to the number of improvements made by Chhatram (PW-1) and Darasmati (PW-2) in their Court statement and the ones recorded under Section 161 CrPC, the conviction of the accused / appellants under Section 306 IPC does not become even a remote possibility. He further goes on to submit that the appellant No.1 and the deceased after separating themselves from the company of appellant No.2 and 3, they were living in a different room and therefore there cannot be any occasion for them (appellant No.2 and 3) atleast to harass the deceased or to instigate her in any manner whatsoever which led her to commit suicide. To buttress his submission, he placed reliance upon the judgment of Supreme Court in case of Kashibai & Others vs. The State of Karnataka reported in 2023 LiveLaw (SC) 149, Mariano Anto Bruno & Another vs. The Inspector of Police reported in 2022 Live Law (SC) 834 and Ramesh Kumar vs. State of Chhattisgarh , reported in (2001) 9 SCC 618 5. Combating the submissions made by learned senior counsel appearing for the appellants, it has been submitted by learned State counsel that the statement of Chhatram (PW-1) and Darasmati (PW-2) clearly establishes the ingredients of Section 107 IPC and therefore their conviction under Section 306 of IPC cannot be said to be at fault. Combating the submissions made by learned senior counsel appearing for the appellants, it has been submitted by learned State counsel that the statement of Chhatram (PW-1) and Darasmati (PW-2) clearly establishes the ingredients of Section 107 IPC and therefore their conviction under Section 306 of IPC cannot be said to be at fault. He further submits that the parents of the deceased have categorically deposed before the learned trial Court that the deceased was subjected to cruelty and she was forced to deliver the child under a tree which definitely caused mental trauma forcing her to commit suicide along with her newly born child. He further submits that Chhatram (PW-1) and Darasmati (PW-2) have categorically stated that the statement made by them in the examination-in-chief was also made to the Police but if the Police has not recorded the same, its benefit cannot go to the accused. He further submits that in view of the categorical allegation made by the parents of the deceased against the accused/ appellants, the findings recorded by the trial Court holding the accused /appellants guilty as described above do not appear to be illegal or erroneous in any manner warranting a view other than the one taken by the trial Court in the judgment impugned. In sum and substance, it is submitted that the conclusion drawn by the trial Court being based on just and proper assessment of the evidence led by the parties, thus deserves affirmation and the appeal is liable for dismissal. 6. Heard learned counsel for the parties patiently and perused the record cautiously. 7. Before delving into the merits of the case, this Court thinks it proper to take note of the settled legal position with respect to the charge under Section 306 IPC . In the case of Kashibai (supra), the Hon’ble Supreme Court has held that in order to bring the case within the purview of abetment under Section 107 of IPC , there has to be an evidence with regard to instigation, conspiracy or intentional aid on the part of the accused. For the purpose of proving the charge under Section 306 of IPC also, there has to be an evidence with regard to the positive act on the part of the accused to instigate or to act to drive a person to commit suicide. 8. For the purpose of proving the charge under Section 306 of IPC also, there has to be an evidence with regard to the positive act on the part of the accused to instigate or to act to drive a person to commit suicide. 8. Likewise in the case of Mariano Anto Bruno (supra) the Hon’ble Supreme Court in paragraph 36 and 38 held as under :- “36. To convict a person under Section 306 IPC , there has to be clear mens rea to commit offence. It also requires an active act or direct act which leads deceased to commit suicide finding no other option and the act must be such reflecting intention of the accused to push deceased into such a position that he commits suicide. The prosecution has to establish beyond reasonable doubt that the deceased committed suicide and Appellant No. 1 abetted the commission of suicide of the deceased. In the present case, both the elements are absent. 38. This Court has time and again reiterated that before convicting an accused 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 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 their 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.” 9. In the case of Ramesh Kumar (supra) this Hon’ble Supreme Court in paragraph 20 held as under:- “20. 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 or 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. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or 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. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.” 10. In light of the above principle laid down by the Hon’ble Supreme Court the facts of this case are required to be dealt with. The star witnesses in this case projected by the prosecution are Chhatram (PW-1) and Darasmati (PW- 2). Chhatram PW-1, father of the deceased stated that her daughter became pregnant and on coming to know about her pregnancy from Rameshwar (Appellant No.1), a meeting was convened where the deceased had disclosed that she was carrying six months pregnancy through Rameshwar (Appellant No.1). Rameshwar (Appellant No.1) also admitted the pregnancy of the deceased through him and even agreed to keep her with him. Thereafter, the appellants kept the deceased with them and on the next day, a girl child was born. He further deposed that for delivery, the deceased was left by the appellants under a tree in their Kitchen-Garden (Baadi) where the deceased delivered a child and other people brought the deceased and her child to the house of the appellants. He further deposed that on being asked by Samaru (Appellant No.2) and Sukmat Bai (Appellant No.3), the accused / appellant No.1 Rameshwar started living separately with the deceased. The deceased is also stated to have been deprived of food and clothing by appellant No.2 and 3. He further deposed that after 4–5 days of delivery Rameshwar (Appellant No.1) and one villager namely Chamru came and informed them that deceased along with her child had gone somewhere, upon which he asked them to search for the deceased. Inspite of extensive search, the deceased and her child were not found. He further deposed that after 4–5 days of delivery Rameshwar (Appellant No.1) and one villager namely Chamru came and informed them that deceased along with her child had gone somewhere, upon which he asked them to search for the deceased. Inspite of extensive search, the deceased and her child were not found. The Sarpanch, Panch and Kotwar of the village were informed about the missing of the deceased and her child. Thereafter, deceased and her child were found in a well. This witness was subjected to cross-examination. He admitted that he belongs to ‘Kenwat’ caste whereas the appellants belong to ‘Sahu’ caste and the marriage between their castes is not permissible in their society. He admitted that Rameshwar (Appellant No.1) used to visit their house a year before the incident and had a love relationship with the deceased. He also admitted that the deceased and Rameshwar (Appellant No.1) agreed to live together. He expressed his apprehension that if he keeps his pregnant daughter in his house, the members of the society shall raise a finger at them and for that the deceased was sent to the house of the appellants. He also admitted that Samaru (Appellant No.2) gave a separate room to Rameshwar (Appellant No.1) and deceased and asked them to live separately. He admitted that he has not gone to sixth day function. In the statement he stated that the fact with regard to the delivery of the deceased under a tree was told by him to the police, however, in diary statement Ex.D/1 it is missing and the reason for that remains unknown. From his statement it appears that the factum of relationship between the deceased and Rameshwar (Appellant No.1) came to the knowledge of this witness and thereafter a panchayat meeting was convene. He is stated to have been apprehensive of being targetted by the society and therefore when Rameshwar (Appellant No.1) accepted the pregnancy from him and also agreed to take her with him, she was sent to the house of the appellants. 11. Darasmati (PW-2) is the mother of the deceased who also deposed in the line of Chhatram (PW-1). She has also stated that even after the delivery, the accused /appellants did not ensure any post delivery care by summoning the doctor or the mid-wife for that purpose. 11. Darasmati (PW-2) is the mother of the deceased who also deposed in the line of Chhatram (PW-1). She has also stated that even after the delivery, the accused /appellants did not ensure any post delivery care by summoning the doctor or the mid-wife for that purpose. She is stated to have come to know about the deprivation of food and clothing of the deceased at the hands of the accused / appellants four days after the delivery. In the cross-examination she admitted that she asked the deceased to live with the person from whom she became pregnant and after that the deceased went to the house of Rameshwar (Appellant No.1). She also admitted that Samaru (Appellant No.2) separated the deceased and Rameshwar (Appellant No. 1) from them and they were living in a separate room. She has stated though the kitchen for all of them was common but the meals of Rameshwar (Appellant No.1) and deceased was cooked separately. She has deposed that after the deceased went missing, accused/ appellant No.1 had come to her house and made an enquiry about her on which she told him that she had not come there. She however has admitted about the statement regarding the delivery of the deceased under a tree being not made to the police but she did not assign any reason for that. 12. Learned trial Court on the basis of statement of these two important witnesses came to a conclusion that as the deceased was forced to deliver the child under a tree, the deceased was put to a mental trauma driving her to commit suicide, the ingredients of Section 306 and 498-A of IPC are fully attracted. 13. At this stage, to ascertain whether the factual background attracts the ingredients of abetment to commit suicide, the provisions of Section 107 and 306 of IPC appears to be the need of the hour for ready reference. They read as under: Section 107. 13. At this stage, to ascertain whether the factual background attracts the ingredients of abetment to commit suicide, the provisions of Section 107 and 306 of IPC appears to be the need of the hour for ready reference. They read as under: 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 willful misrepresentation, or by willful 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. 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 facilitates the commission thereof, is said to aid the doing of that act. 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 not exceeding ten years, and shall also be liable to fine." 14. In case of Gangula Mohan Reddy vs State Of Andhra Pradesh reported in (2010) 1 SCC 750 , the Hon’ble Supreme Court while interpreting Section 306 of IPC held as under: “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.” 15. It has been further held by the Hon’ble Supreme Court that “In order to convict a person under section 306 IPC there has to be a clear mens rea to commit the offence.” 16. Yet in an another case M. Mohan Vs. State represented by deputy superintendent of police reported in (2011) 3 SCC 626 , it has been held by the Hon’ble Supreme Court as under: “44. Yet in an another case M. Mohan Vs. State represented by deputy superintendent of police reported in (2011) 3 SCC 626 , it has been held by the Hon’ble Supreme Court as under: “44. 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. 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.” 17. In case of Mangat Ram Vs. State of Haryana reported in (2014) 12 SCC 595 , Hon’ble Supreme Court considering the provisions of Section 306 and 498-A of IPC in the light of presumption under Section 113 of Evidence Act, 1872, observed as under:- “30. We are of the view that the mere fact that if a married woman commits suicide within a period of seven years of her marriage, the presumption under Section 113A of the Evidence Act would not automatically apply. The legislative mandate is that where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband has subjected her to cruelty, the presumption as defined under Section 498-A IPC , may attract, having regard to all other circumstances of the case, that such suicide has been abetted by her husband or by such relative of her husband. The term “the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband” would indicate that the presumption is discretionary. So far as the present case is concerned, we have already indicated that the prosecution has not succeeded in showing that there was a dowry demand, nor the reasoning adopted by the Courts below would be sufficient enough to draw a presumption so as to fall under Section 113A of the Evidence Act. So far as the present case is concerned, we have already indicated that the prosecution has not succeeded in showing that there was a dowry demand, nor the reasoning adopted by the Courts below would be sufficient enough to draw a presumption so as to fall under Section 113A of the Evidence Act. 31.In this connection, we may refer to the judgment of this Court in Hans Raj v. State of Haryana (2004) 12 SCC 257 , wherein this Court has examined the scope of Section 113A of the Evidence Act and Sections 306 ,107, 498-A etc. and held that, unlike Section 113A of the Evidence Act, a statutory presumption does not arise by operation of law merely on the proof of circumstances enumerated in Section 113A of the Evidence Act. This Court held that, under Section 113A of the Evidence Act, the prosecution has to first establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband has subject her to cruelty. Even though those facts are established, the Court is not bound to presume that suicide has been abetted by her husband. Section 113A, therefore, gives discretion to the Court to raise such a presumption having regard to all other circumstances of the case, which means that where the allegation is of cruelty, it can consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word ‘cruelty’ in Section 498-A IPC .” 18. In the present case, what emerges from the record is that the deceased got pregnant from Rameshwar (Appellant No.1). This fact was accepted by him in the panchayat meeting. He also agreed to accept the deceased and keep her with him. It also emerges that the deceased and Appellant No.1 were given separate room in the same house by appellants No.2 and 3 but with a common kitchen though food prepared for appellant No.2 and 3 and the appellant No.1 and the deceased was being cooked separately. Much emphasis was laid by the learned trial Court that the deceased was left under a tree in the kitchen garden (Baadi) for delivery of child and no proper medical care was provided by the appellants to her. Much emphasis was laid by the learned trial Court that the deceased was left under a tree in the kitchen garden (Baadi) for delivery of child and no proper medical care was provided by the appellants to her. It is quite vivid that fact of leaving deceased under a tree and delivering the child there is missing in the 161 Cr.P.C. statement of Chhatram PW-1 and Darasmati PW-2. Even otherwise, it is not evident from the record that the deceased was taken under a tree was perforce or otherwise. In the absence of any specific evidence therefor, so many possibilities could be derived, one of them may be of her own for answering the nature call and at that very time, the delivery might have started. No allegation is there about ensuring the delivery outside the house for any ulterior motive. Even otherwise, the material omission and improvement made by them in their court statement renders the testimony not worthy of implicit reliance. The Hon’ble Supreme Court in case of Alauddin and others Vs. State of Assam and another reported in 2024 SCC OnLine SC 760 observed that “it must be noted here that every contradiction or omission is not a ground to discredit the witness or to disbelieve his/her testimony. A minor or trifle omission or contradiction brought on record is not sufficient to disbelieve the witness’s version. Only when there is a material contradiction or omission can the Court disbelieve the witness’s version either fully or partially. What is a material contradiction or omission depends upon the facts of each case. Whether an omission is a contradiction also depends on the facts of each individual case”. Every omission or contradiction may not be fatal to the case of prosecution but if the omission is material one and forms the basis of conviction, it has to be analyzed with care and caution. 19. The delivery of child took place on the next day when deceased started living with the appellants. Thereafter, 6 th day function was also organized by appellants. It was not attended by Chhatram PW-1 and Darasmati PW-2. Deceased with child went missing thereafter and their dead bodies were discovered from a well on 24.12.2002. The 161 C.P.C. statement of Chhatram PW-1 and Darasmati PW-2 was recorded on 28.12.2002. Thereafter, 6 th day function was also organized by appellants. It was not attended by Chhatram PW-1 and Darasmati PW-2. Deceased with child went missing thereafter and their dead bodies were discovered from a well on 24.12.2002. The 161 C.P.C. statement of Chhatram PW-1 and Darasmati PW-2 was recorded on 28.12.2002. From the panchayat meeting being convened in the village till recovery of dead body, the entire episode happened in short span of 7-8 days. Therefore, it would be difficult to accept that material omission in the 161 Cr.P.C. statement of Chhatram PW-1 and Darasmati PW-2 could have been disclosed by them to the police. Hence, this Court finds itself unable to hold that the statement of Chhatram PW-1 and Darasmati PW-2 is free from shadow of doubt. 20. Apart from the above, it is to be seen that after the delivery of child, a 6 th day function was also organized by the appellants inviting Chhatram PW-1 and Darasmati PW-2 to attend which they chose not to attend. This also suggests that the appellants were celebrating the birth of the child. Had there been any strained relationship between the appellants and deceased, there may be no occasion to organize such function with an invitation to the parents of the deceased. The deceased came to live with the appellants on 16.12.2002, delivered the child on 17.12.2002, her dead body was found in a well on 24.12.2002. After the deceased with her child went missing, she was searched and Appellant No. 1 went to the house of her parents in search of her. Barring the evidence of Chhatram PW-1 and Darasmati PW-2 with regard to ill treatment of deceased by the appellants, no other clinching evidence is available on record. It is unfortunate that the deceased and her infant child lost their lives. However, the evidence brought by the prosecution with unmistakable terms is not sufficient to point fingers towards the appellants for commission of offence under section 306 and 498-A of IPC . 21. Section 306 of the IPC has two basic ingredients-first, an act of suicide by one person and second, the abetment to the said act by another person(s). In order to sustain a charge under Section 306 of the IPC , it must necessarily be proved that the accused person has contributed to the suicide by the deceased by some direct or indirect act. In order to sustain a charge under Section 306 of the IPC , it must necessarily be proved that the accused person has contributed to the suicide by the deceased by some direct or indirect act. To prove such contribution or involvement, one of the three conditions outlined in Section 107 of the IPC has to be satisfied. To attract the offence of abetment to suicide, it is important to establish proof of direct or indirect acts of instigation or incitement of suicide by the accused, which must be in close proximity to the commission of suicide by the deceased. Such instigation or incitement should reveal a clear mens rea to abet the commission of suicide and should put the victim in such a position that he/she would have no other option but to commit suicide. 22. As a fallout of the discussion made herein above, the prosecution was unable to prove the direct or indirect acts of instigation or incitement of suicide by the accused which must be in close proximity to the commission of suicide by the deceased. Therefore, this appeal is allowed. The appellants are acquitted of all charges. The impugned judgment is hereby set aside. Appellants are said to be on bail during pendency of the appeal. Their bail bonds shall be kept alive for six months as per provision of section 481 of BNSS, 2023. The record of the trial Court with copy of the judgment be sent back for information and compliance.