JUDGMENT :

DEEPAK ROSHAN, J.

1. Heard learned counsel for the parties.

2. The instant appeal is directed against the judgment of conviction and order of sentence dated 15.09.2003 and 16.09.2003, respectively, passed by learned Additional Sessions Judge-XI, Dhanbad corresponding to S.T. No. 101 of 2002, whereby the appellant has been convicted for the offence under Section 306 of the IPC and sentenced to undergo R.I. for a period of Four years with a fine of Rs.500/- and in default of payment of fine, further to undergo S.I. for two months.

3. The brief fact of the case is that the marriage of informant’s sister, Musari Devi-deceased was solemnized with the appellant in the year 1985 and two children were born out of their wed lock. On 19.02.2001, the appellant in order to kill his sister Musari Devi set fire on her and escaped. On hearing hulla, villagers came there and admitted her in the Central Hospital, Seraidhela where she died on 20.02.2001 during treatment.

4. Mr. Atanu Bernjee, learned counsel for the appellant has made following submissions:

(i) Even admitting the entire story of prosecution, the same does not constitute the offence under Section 306 IPC.

(ii) None of the prosecution witnesses have proved that the appellant intentionally instigated the victim to commit suicide.

(iii) Even assuming, but not admitting, that the appellant was an alcoholic; then also that was his habit and that cannot be treated as instigation.

Even otherwise, both the daughters have deposed that the appellant was not an alcoholic.

(iv) The learned trial court has misdirected itself in convicting this appellant for the offence under 306 IPC by interpreting that it was only due to this habit of the appellant the victim committed suicide.

Relying upon the aforesaid submission, he prays for acquittal of the appellant.

5. Learned APP opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellant.

6. Having heard learned counsel for the parties and after going through the impugned judgment and the documents available on LCR, it is necessary to refer the finding given by the learned trial court at paragraph 23 and 24 of the impugned judgment which is quoted herein-below:

“23. Now the matter to be considered that whether Musari Devi committed suicide on being perplexed due to over drinking and beating of her husband or there was any other reason. PW9 father of the deceased has deposed that a few days before of the event his daughter had complained him that her husband beat her after drinking. This statement is supported by the deposition of PW1 Jagdish Ravidas who has deposed that he had told to the police that due to over drinking Musari Devi lived perplexed and created pressure on her husband to leave the habit and due to that the sprinkled kerosene oil on herself and on Gopal Ravi Das and set the fire due to which she died. In his cross-examination this witness has deposed that Gopal is a man of his village-Gopal’s marriage was performed 15-16 years ago. He has three children, two sons and a daughter. Daughter is the eldest she would be of twelve her name is Uma Devi. Hence, PW1 has fully supported the statement of victim’s father.

24. One peculiar thing of the case is that the prosecution witnesses PW1, PW2, PW4, PW5, PW6 have deposed that when they reached at P.O. they found both husband and wife burnt, they got both of them boarded in a vehicle and admitted in central Hospital. All of them have further deposed that they had made their statement before police. Due to these statements’ prosecution did not declare them hostile. However, on question what statements they had made before the police PW1 has deposed that due