Crl.A. 279/2003 BEFORE HON’BLE MR JUSTICE CR SARMA JUDGMENT AND ORDER(ORAL) This appeal is directed against the judgment and order, dated 16.8.2003, passed by the learned Sessions Judge, Kokrajhar in Sessions Case No.54/2002. By the impugned judgment and order aforesaid, the learned Sessions Judge convicted the appellant, namely, Sri Budheswar Roy, under section 306/34 IPC and sentenc ed him to suffer rigorous imprisonment for 5 years and pay fine of Rs.3000/- in default, to suffer rigorous imprisonment for further period of one month. Bein g aggrieved by the said conviction and sentence, the appellant has come with th is appeal. 2. I have heard Mr MH Ahmed, learned counsel appearing for the appellant an d Mr BB Gogoi, learned Addl. Public Prosecutor appearing for the State responden t. 3. The prosecution case, in brief, may be stated as follows : Smti Niva Roy (hereafter referred to as the ’deceased’) , daughter of S ri Niren Roy (PW 5) was engaged as a maid servant in the house of Sri Budheswar Roy. On 15.11.99 at about 3-30 p.m. , Sri Krishna Roy (PW 1), i.e. the materna l uncle of the deceased was informed by a boy from the house of Sri Budheswar Ro y that the deceased consumed poison. On being so informed, he rushed to the hous e of Sri Budheswar Roy, where he found that she(deceased) was in a critical cond ition of her health. Accordingly, though he wanted to administer lemon juice , t he appellant i.e. Sri Budheswar Roy asked him not to do so, on the ground that he had already administered fish water for causing vomiting. PW 1 was assured by the appellant that she(deceased) had already vomited and as such she would be come stable, but her condition got deteriorated. Accordingly, she was taken to t he hospital, wherein, she was declared dead. Thereafter, the dead body was broug ht to the house of the appellant and kept there till she was taken by the polic e for postmortem examination. The father of the deceased, namely, Sri Niren Roy (PW 5) came to know about the occurrence on 16.11.99 and lodged the FIR with the police on 17.11.99. Accordingly , police registered a case on 18.11.99 under se ctions 306/34 IPC and launched investigation into the matter. During the investi gation, the police conducted inquest in respect of the dead body and forwarded t he same for autopsy. On the closure of the investigation, police submitted the c harge-sheet against the appellant and his son, namely, Dipak Roy (since deceased ) under sections 306/34 IPC and forwarded them to the court to stand trial. The offence being exclusively triable by the court of sessions, the learned Session s Judge framed charge under sections 306/34 IPC. The charge was explained and re ad over to the accused appellant ,who pleaded not guilty. 4. In course of investigation, prosecution examined eight witnesses includi ng I.O.( PWs 7 and 8) and the Medical Officer( PW 6). During the trial, accused Dipak Roy died and as such the case proceeded against the present appellant. 5. Learned Sessions Judge considering the evidence on record, convicte d the appellant and sentenced him as indicated above. 6. Mr Ahmed, learned counsel appearing for the appellant has submitted that there is no substantive evidence on record to believe that the appellant had co mmitted the offence under section 306 IPC and as such, the learned Sessions Jud ge committed an error by recording the conviction and sentence as aforesaid. 7. Supporting the impugned judgment and order, learned Additional Public Pr osecutor, Assam has submitted that in view of the available evidence on record, the learned Sessions Judge committed no illegality by convicting the accused ap pellant and recording the sentence aforesaid. 8. In order to appreciate the rival submissions advanced on behalf of the parties and to examine the correctness of the impugned judgment and order, I fee l it appropriate to recaptualate the evidence on record. 9. The father of the deceased deposed as PW 5. He lodged the FIR. The FIR is exhibited as Ext.1. In the FIR, it was mentioned that the deceased committed suicide and that the appellant and the members of his family had committed cheat ing. 10. Sri Krishna Roy , the maternal uncle of the deceased was the first p erson to meet the deceased immediately before her death. He deposing as PW 1, stated that he was informed, by a boy from the house of the appellant, that Niva Roy had consumed poison. On being informed, he arrived in the house of the app ellant and wanted to give her lemon juice , but the appellant persuaded him not to give lemon juice on the ground that he had already administered fish water fo r causing vomiting. This witness further stated that the deceased, who was cry ing disclosed, that she was treated as daughter by the appellant and his son. H e was further informed by the deceased that her period was stopped for the last three months. According to PW 1, as the condition of the deceased deteriorated f urther, she was shifted to the hospital, wherein the doctor had declared her d ead. This witness did not state anything regarding ill treatment meted out to t he deceased by the appellant. From the evidence of PW 1, it is clearly found th at the deceased, immediately before her death had declared that she was treated as a daughter by the appellant and his son. She stated nothing incriminating ag ainst the appellant. Scrutinizing the evidence of PW 1, nothing incriminating is found against the appellant. 11. Sri Bijuli Roy (PW 2) who was the President of Anchalik Mahila Committee , stated that she received a complaint on 17.11.99 regarding committing the suic ide by the deceased. She further stated that after receipt of the said complain t, resolution was sent to the Deputy Commissioner and the Superintendent of Po lice. In her cross-examination, she stated that she did not know anything abou t the occurrence. 12. In tune with the evidence of PW 2, Smti. Sindhu Bala Roy a social worke r deposing as PW 3 stated regarding the receipt of the complaint on 17.11.99 in connection with the death of the deceased. She also stated that they had request ed the Deputy Commissioner and the Superintendent of Police to take appropriate action. Both PWs 2 and 3 aforesaid did not state anything regarding involvemen t of the appellant with the death of the deceased. 13. Dhananjoy Roy deposing as PW 4 stated that the brother of the accused Dipak( since deceased) had used his vehicle for taking the deceased to the hospi tal. In his cross examination, this witness stated that he came to know that the deceased committed suicide by consuming poison. He stated that he had no kno wledge regarding the cause of the death. 14. Sri Niren Roy i.e. father of the deceased deposed as PW 5. He stated tha t he came to know about the death of his daughter on 16.11.99 and he did not se e the dead body. He further stated that his daughter was carrying three months’ pregnancy and that she committed suicide due to loss of her chestity. This wi tness lodged the FIR with the police on 17.11.99. The father of the deceased i. e. PW 5 did not make any whisper against the appellant. 15. Dr Debadas Bhowal, who performed the postmortem of the dead body of the deceased deposed as PW 6. The said Medical officer , in his evidence, stated th at upon postmortem examination except noticing swelling in the face and throat , he found no external injury on the dead body. He also opined that no product of gestation was seen inside the uterus. The Medical Officer further stated that c ause of the death could not be ascertained. In absence of any product of gestation inside the uterus, as stated by t he said Medical Officer rules out the pregnancy of the deceased at the time of h er death stood ruled out. As the Medical officer failed to indicate the cause o f death, there is no substantive evidence to believe that the deceased committed suicide by consuming poison. 16. The Sub Inspector of Police, who initiated the investigation, deposed as PW 7. He stated that, on being transferred , he handed over the case diary. 17. PW 8, Asstt. Sub Inspector of Police stated that he examined the witness es. 18. Carefully considering the above discussed evidence, adduced by the prose cution, I find nothing to hold that the appellant instigated the deceased to co mmit suicide by consuming poison. There is no substantive evidence to find that the deceased had consumed any poison. The prosecution failed to produce/prove any forensic science report in respect of the viscera etc. to substantiate the allegation that the deceased had consumed poison. Even the Medical Officer (PW 6 ) clearly stated that the cause of the death could not be ascertained. Therefore , it cannot be safely held that the deceased had consumed poison. 19. In order to hold a person guilty of the offence under section 306 IPC, t he prosecution is required to establish the ingredient of abetment of suicide. Abetment has been defined under section 107 of the Indian Penal Code as follows :- 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 f or the doing of that thing, if an act of illegal omission takes place in pursuan ce 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 willfu l concealment of a material fact which he is bound to disclose ,voluntarily caus es or procures, o attempts to cause or procure, a thing to be done, is said to i nstigate the doing of that thing. The evidence revealed by the prosecution witnesses, does not inspire confidence to believe that the appellant had instigated the deceased to commit suicide in any manner. That apart, the evidence of PW 1, that the deceased had told him th at she was treated as daughter by the appellant and his son, belies the prosecut ion version itself. 20. It is settled law that in a criminal proceeding, the prosecution is req uired to establish the allegation, brought against the accused person, beyond al l reasonable doubt. Considering the entire evidence on record, I am of the opini on that in the present case, the prosecution failed to establish beyond, all rea sonable doubt, that the appellant had abetted the deceased to commit suicide. Ac cordingly, I find sufficient merit in this case. 21. For the reasons aforesaid, the appeal is allowed. The impugned judgmen t and order is set aside and quashed. The accused appellant is set at liberty forthwith. His bail bond stands discharged. Return the case record.