The central legal point established in the judgment is the requirement to establish proximate instigation for sustaining a conviction under Section 306 of the IPC, and the need for the alleged act to fall under the categories enumerated in Section 107 of IPC to constitute abetment.

1. This appeal is directed against the judgment dated 25-08-2005 delivered by IInd Additional Sessions Judge, Baloda Bazar in Sessions Case. No.95/2005 whereby the appellants were convicted under Section 306 read with Section-34 of IPC and were sentenced to undergo rigorous imprisonment for 7 years and fine of Rs.500/- each and in default of payment of fine to undergo additional rigorous imprisonment for 6 months.

2. It is not disputed that the appellant No.3 Smt. Ram Bai is the mother and the appellant No.2 Smt. Heera Bai is the sister-in-law of the appellant No.1.

3. Briefly stated the prosecution story is that Rambati Bai was in love with the appellant No.1 Jugam. Although, she was married to one Bhuwan of Village Parsada, she left him two days after the marriage and returned to her maternal home. After some time, she started living with the appellant No.1 Jugam as his mistress and gave birth to a daughter. Since, the appellant Jugam had kept Rambati without marrying her, the appellant No.2 & 3 used to harass and instigate her to leave the house. On 31-12-2004, a quarrel ensued between Rambati and the appellant No.2 & 3 upon brooming of the Courtyard. Fed up, Rambati went along with her 4 year old daughter near the Dawanbod Railway Crossing and committed suicide by jumping with her daughter in front of the running train.

4. The driver of the train reported the matter to the Station Master who in turn sent report EX.P-7 to the Station House Officer, P. S. Bhatapara Gramin. The autopsy vide EX.P-I 0 was conducted by Dr. S.K. Dhagamwar PW-9. Statement of Mahettar PW -1 and Dukalhin Bai PW-2, parents of the deceased under Section161 of Cr.P.C. were recorded after considerable delay on 31-01-2005. After completion of investigation, the appellants were prosecuted under Section-306 read with Section-34 of the IPC. The appellants abjured the guilt, pleaded innocence and led no evidence in defence. The prosecution examined as many as II witnesses. The learned trial Judge relying upon the evidence led by the prosecution convicted and sentenced the appellants as aforesaid in para-I.

5. Shri Ashok Soni, learned counsel for the appellants has contended that even if the entire evidence led by the prosecution, was taken on its face value, the conviction of the appellants for offences under Section-306 read with Section-34 IPC could not be sustained under law. He referred to the testimony of Dukalhin PW -2, mother of the deceased in para-8 that the deceased had narrated her sufferings about 4 months before her death and prior to that the deceased never informed about her sufferings. It was also stated therein that the deceased and her husband were happily living together and earning their livelihood. It was argued that there is no evidence to show that soon before the death of Rambati, she was instigated by the appellants for the commission of suicide. Lastly, it was contended that death of Rambati was merely an accidental death while crossing the Railway track. The driver of the train who was the best witness to disclose as to whether death of Rambati and her child was accidental or suicidal, was not examined by the prosecution for which an adverse inference ought to have been drawn.

6. On the other hand, Shri Sumesh Bajaj, Govt. Advocate while arguing in support of the impugned judgment referred to para- 3 of the testimony of Baliram Verma PW -3, Patel of Village-Dawanbod where he had stated that the appellant Jugam had informed him that due to quarrel with the appellant No.2 & 3, Rambati went to Railway track with her daughter and committed suicide. My attention was drawn to para-4 of the testimony of Dukalhin PW-2, mother of the deceased that Rambati used to tell her that relatives of the appellant Jugam used to ask her to get out of the house or else to commit suicide by getting underneath a train or motorcar. It was contended that so far as the appellant No.2 & 3 were concerned, the evidence led by the prosecution establishe