R.S. Garg, J.
1. The prosecution case in brief is that each of the accused abetted the deceased Jaianand for committing suicide. The prosecution case in brief is that deceased Jaianand, a resident of Village Sonajari was living with his first cousin Paitram. On 25.7.1996 Dayatam and Jaianand had gone to plough the fields where Jaianand informed Dayaram that he had to recover eight annas (0.50 paise) from the shop-keeper Bhojram, thereafter he went to purchase Gudakhu from the shop of Bhojram where Bhojram and Bhoogdev (the accused persons) earned a fight with the deceased. Seeing all this Dayaram also reached on the spot; Bhoogdev was beating Jaianand by his hands and Bhojram after breaking a stick from some tree gave beating to the deceased, thereafter the deceased was fell on the ground. Dayaram intervened in the matter and after saving Jaianand he brought him to the house. Jaianand informed the incident to the wife of his cousin thereafter Jaianand went out of the house but did not return back. On 29.7.1996 that is almost about 4 days of the first incident the deceased was found hanging. The dead body was seen by number of persons and the matter was reported to the police immediately. The inquest report Ex. P4 was lodged by Santram (P.W. 5). The First Information Report Ex. P/6 after preliminary investigation was recorded by S.N. Sen. After preparing the Panchnamas, obtaining the medical report and recording the statements of the witnesses, the Investigating Agency filed the challan against the accused persons. The learned Trial Court-after hearing the parties convicted the accused persons of the charges. Being aggrieved by the said judgment dated 21.5.1999 passed in Sessions Trial No. 200/96 by the IInd Addl. Sessions Judge, Raigarh convicting each of the appellants under Section 306, I.P.C. and sentencing them to undergo R.I. for ten years, the appellants have filed this appeal.
2. Learned Counsel for the appellants submits that even if the facts are taken as projected by the prosecution the same would not make out a case for recording conviction of the appellants for commission of offence punishable under Section 306, I.P.C. He submits that from the very language of Section 306, it would appear that there must be some abetment for committing suicide and as in the present case the evidence is wanting, the Court below was not justified in convicting the appellants. On the other hand, learned Counsel for the State submitted that because of the severe beating given by the accused persons and the manner in which he was beaten publicly, the deceased committed suicide, therefore the accused persons have been rightly convicted for commission of offence punishable under Section 306, I.P.C. In have heard the parties at length and have perused the records.
3. Section 306 of I.P.C. says that 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. For proving commission of an offence under Section 306, IPC, the prosecution is obliged to prove that somebody committed suicide and somebody had abetted the commission of such suicide.
4. Section 109 of Indian Penal Code provides punishment of abetment, if the act abetted is committed in consequence and where no expressed provision is made for his punishment. As Section 306 makes a special and expressed provisions for punishment the provisions of Section 109 would not be applicable. For proving abetment a Court is obliged to see not only the evidence brought on record but also the definition which defines abetment.
5. Section 107 of Indian Penal Code defines 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 of 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.'
6. A person is said to have abetted a thing if he has instigated any person to do that thing. In the present case, it is not the prosecution case that each or any of the accused independently or conjointly instigated the deceased for committing suicide.
7. Clause Secondly of Section 107 provides that a person would be said to have abetted the thing if he engages with one or more person or persons in any conspiracy for 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. In the present case, it is not the prosecution case that each of the accused conspired or after making a secret plan conjointly thought that they would beat the accused and would commit such an offence leading to the suicide of the deceased. Clause Secondly would come into operation where somebody ask the other man for doing something and that doing is an offence punishable under the law of land. In the present case at best the Court below could hold that each of the accused in furtherance of their common intention had caused injuries to the deceased. The prosecution did not bring any evidence on record to show or suggest that the accused engaged anyone for doing something which was illegal or asked him to omit to do something or not to do a thing which otherwise was required to be done in accordance with law.
8. Clause Thirdly of Section 107 provides that a person can be held guilty of abetment of an offence if he intentionally aids, by any act or illegal omission, the doing of that thing. It is not the prosecution case that the deceased wanted to commit suicide and the accused persons knowing well, intentionally aided to the said intention either by their act or by illegal omission. The prosecution case is plain and simple as it floats on the surface of the records that when the deceased had gone to the shop of Bhojram, he was beaten, thereafter he came back to his cousin's place, informed of the incident to the wife of his cousin and left his cousin's premises at about 6.00 in the evening and thereafter his dead body was recovered after four days. The prosecution unless proves application of either of the clauses provided under Section 107, I.P.C. would not be successful in securing the conviction of the accused. In the present case, as referred to above the prosecution has miserably failed in showing the application of any of the clauses provided in Section 107, I.P.C.
In absence of the positive evidence that either of the accused instigated some person to do a particular thing or engaged himself or someone for commission of the offence or for illegal omission or intentionally aided in commission of the act by their own acts or illegal omissions it would not be entitled to secure a conviction of the accused persons.
9. Learned Court below appears to have been swayed by the fact that because of the beating by the said accused the deceased probably felt bad therefore he must have committed suicide. The criminal jurisprudence does not talk of moral conviction. It talks of a conviction which is based on sound footing and perfect foundation. The criminal jurisprudence begins with the presumption that unless otherwise proved the person facing the trial would be deemed to be an innocent. The burden to prove the ingredients instituting the offence is on the prosecution and not on the accused. If the prosecution fails to connect the act of the accused with the ultimate crime and the material links which constitute the chain are missing the accused would be entitled to an acquittal. The Court below was unjustified in convicting the accused. It is unfortunate, that even on the facts as available on the First Information Report and the statements of the witnesses recorded by the police, the Trial Court did not choose to frame a charge for any minor offence. The Trial Court had framed the charges under Section 306, I.P.C. only. Even if the facts stand proved that the deceased was beaten by each of the accused they cannot be convicted even for causing simple hurt to the deceased because Section 323, I.P.C. is not a minor or lesser offence for Section 306, I.P.C. In view of the facts and the discussion made above, I am of the opinion that the Court below was not justified in convicting the accused persons. The appeal deserves to be and is accordingly allowed. The accused persons be released immediately.