Nirmalabai was the wife of the appellant.They married 20 years hence the alleged occurrence.JUDGMENT D.P.S. Chouhan, J.It appears that she committed suicide sometime in the night intervening 7th and 8th January, 1990 by consuming poison.She died while on way to hospital on 8-11990 and the F.I.R./Marg (Ex.P/1) was lodged by Ward Boy.Garibdas (P.W.I) at 8.35 A.M. at P.S. Timarni.The prosecution case in brief was that deceased Nirmalabai, the wife of the appellant, was married 20 years hence the alleged occurrence.During her life time about 15-16 years hence the date of alleged occurrence he married a second woman namely Kotubai.The appellant usedto beat and accuse Nirmalabai.On a night between 7th and 8th of January, 1990 Nirmalabai was given a beating, as a result of which she consumed poison which resulted in her death.The accused took Nirmalabai to Timarni Hospital where Dr. Sharad Kumar Gadre on 9-1-1990 sent a written information Ex.P/2 to the police Station Timarni and a case of sudden death was registered and the panchnama was prepared but no cause for death could be ascertained by the Police Officers or the panch witnesses, therefore, the body was sent for post mortem.In the post mortem it was detected that the death was on account of consuming some poison.It was also detected that in the night at about 11.00 A. M. Nirmalabai was shouting in her house for seeking help by saying ^^cpkvks & cpkvks**- On this basis the case was registered against the accused-appellant for an offence punishable under Section 306, Indian Penal Code and after investigation the charge-sheet was filed for offence punishable under Sections 306 and 498A of the Indian Penal Code.The prosecution examined as many as 8 witnesses.Garibdas, the Ward boy of the Govt. Hospital, Timarni was examined as P.W.I who sent the information of the death of Nirmalabai to the police.There was no dying declaration of the deceased.The cause of death as per the opinion of Dr. S. K Gadre (P.W. 6) was consumption of the poison.In defence, the prosecution allegation was denied and the accused stated that he did not commit any cruelty, did not assault her wife Nirmalabai in the alleged night and it was he who took her to the hospital.7. Heard the learned counsel for the appellant and learned Panel Lawyer for the State.Learned counsel for the appellant made three-fold submissions :-(i) That the prosecution has failed to establish beyond reasonable doubt the presence of the appellant in the house at the relevant point of time and as a result whereof no guilt can be fastened on the appellant for the offence under Section 306, Indian Penal Code.(ii) Apart attribution of beating to the deceased it cannot be said and held to be an act of abetting of suicide by the appellant and at the most if any liability in regard to the beating could be found that could be an offence only under Section 323, Indian Penal Code.Before the trial Court there were two questions for consideration as have been stated in paragraph 5 of the Judgment :-So far as the question of cruelty at the hands of the appellant against her wife Nirmalabai was concerned, the Court recorded a finding in paragraph 37 of the judgment.So far as the earlier incident was concerned, the cruelty cannot be established against him and for that he cannot be held guilty and that question was decided in negative.Second question was decided in affirmative but the appellant was not found guilty for offence under Section 498A of the Indian Penal Code.He was found guilty for committing abetment between the period 7-1-1990 and 8-1-1990 which resulted in commission of suicide by Nirmalabai.It has come in the evidence of P.W. 2 Sushilabai in paragraph 6 that in the house apart from Nirmalabai, her husband's elder brother Ajabsingh, Tulsabai (wife of Ajabsingh) and Kotubai (second wife of the appellant) were living in the same house.None of these persons has been examined by the prosecution.So far evidence of Sushilabai (P.W.2) is concerned, there was enmity as a result of which she was not in talking terms with the deceased since last 8 years.Further in paragraph 12 she has stated that there are other houses adjacent to the house of the appellant.In the east side are the houses of Jagdish Wadi, Shyamabai and Ramesh Wadi.In the north side, adjacent to the house of the appellant, are the houses of Anarsingh, Yavalsingh, Umeshsingh etc. and in front of the house of the accused are the houses of Madansingh Master, Mastan Singh, Manohar Singh and Jeevan Singh.None of these witnesses has been examined.P.W.2 Sushilabai was not an independent witness as she was an interested witness, She has stated in her statement that Nirmalabai did not use to come to her place.She has stated that her father and brother are in the party of Madan Singh Master with whom the appellant is having litigation.Learned counsel further pointed out that P.W. 2 Sushilabai in her statement stated that on the date of occurrence she went to the temple and after returning back from the temple she heard the voice of Nirmalabai.On that day other ladies, whose houses were in the vicinity, adjacent to the house of the appellant, also went to temple and they returned with her from the temple when she heard the voice of Nirmalabai soliciting help.But in spite of availability of the witnesses, the prosecution did not examine any independent witness.P.W. 4 Jagdish, who was the witness of hearing voice of Nirmalabai soliciting help and calling for not beating, was declared hostile.The witness in the statement stated that the voice which he heard was that of a lady as it was a lady like voice.In his statement in paragraph 6 he has stated that he was working with Gajraj Singh, who is in the party of Madan Master.He worked at his place and was still working on the date of deposition.He clearly stated that between the parties of Devi Singh and Madan Master cases are going on in the Court of S.D.O. He also admitted a case against him where he was included in the party of Madan Master.The witness accordingly is not an independent witness.That apart, from the independent witnesses, the prosecution itself got the witness declared hostile.He was declared hostile on the point that in the statement under Section 161, Criminal Procedure Code the police recorded that at that time the voice of Devi Singh was coming out and he was scolding his wife, which statement he denied, that he never gave any such statement to the police and he categorically stated that he did not hear any voice of Devi Singh.Then the prosecution examined Karan Singh as a witness for hearing the voice of Nirmalabai, but this witness did not support at all the prosecution case and he made a statement that on the relevant night no voice of shouting of Devi Singh or his wife was heard by him and he did not give any such statement to the police under Section 161, Criminal Procedure Code.On this basis, the prosecution got him declared hostile.There is no other evidence which could link the appellant or establish the appellant about his presence in the house at the relevant point of time.As such the presence of the appellant in the house at the relevant point of time has not been established by the prosecution beyond any reasonable doubt and when the presence of the appellant in the house at the relevant time when occurrence took place has not been established then the question of abetment by instigation does not arise.

Sections cited: Section 306 in The Indian Penal Code, Section 498A in The Indian Penal Code, Section 323 in The Indian Penal Code