JUDGMENT :

G.R. SWAMINATHAN, J.

1. The appellant was convicted for the offence under Section 306 of IPC and sentenced to undergo ten years rigorous imprisonment, vide Judgment dated 30.06.2011 in S.C. No. 144 of 2010 on the file of the Additional Sessions Judge/Fast Track Court No. 2, Madurai.

2. The prosecution case is that the appellant was keeping the deceased kamayee illegally. They were virtually living as husband and wife. While so, on 24.10.2009, at about 11.00 p.m., the appellant picked up quarrel with the said Kamayee. Angered by the imputation of Kamayee that the appellant was having relationship with others, the appellant set fire to Kamayee. The said Kamayee suffered extensive burn injuries. She was admitted to the Government Rajaji Hospital, Madurai. The treatment given to her was not successful and on 26.10.2009, she succumbed to the injuries at about 12.20 p.m. A case of murder was registered against the appellant by the Inspector of Police, Usilampatti Police Station. Investigation was conducted and the final report was filed before the Judicial Magistrate No. 1, Usilampatti. The case was committed to the Sessions Court in P.R.C. No. 7 of 2010 and made over to the Additional Sessions Court/Fast Track Court No. 2, Madurai in S.C. No. 144 of 2010. Charge under Section 302 of IPC was framed against the appellant. The appellant denied the same and claimed to be tried. The prosecution examined 16 witnesses and marked Ex. P1 to Ex. P18. M.O. 1 to M.O. 7 were marked. The learned trial Judge, after a detailed consideration of the evidence on record, acquitted the appellant of the offence under Section 302 of IPC, but then, found him guilty of the offence under Section 306 of IPC and sentenced him to undergo 10 years rigorous imprisonment. Questioning the same, this appeal has been filed.

3. The learned Senior Counsel appearing for the appellant reiterated the contentions set out in the appeal memorandum and wanted this Court to reverse the impugned Judgment.

4. Per contra, the learned Government Advocate (Crl. side) submitted that the impugned Judgment does not warrant any interference.

5. I carefully considered the rival contentions and perused the evidence on record.

6. As rightly pointed out by the learned Senior Counsel appearing for the appellant, all the material witnesses turned hostile and did not support the prosecution case. The prosecution case essentially rests on the dying declaration given by Kamayee vide Ex. P8. The said dying declaration was given before the Judicial Magistrate No. 1, Madurai who was examined as PW-13. Even if the said dying declaration is accepted in toto, it does not establish the charge under Section 306 of IPC. Kamayee had only stated before the Magistrate that on the fateful night, the appellant had beaten her. Unable to bear the same, kamayee set fire to herself. Kamayee would of-course blame the appellant Karuppaiah for her act. Now the question that arises for consideration is whether on that basis, the appellant can be fastened with penal liability under Section 306 of IPC. On a recent decision of the Honourable Supreme Court in Rajesh vs. State of Haryana, Crl. Appeal No. 93 of 2019, it was held as follows:-

"7. It is necessary to refer to Section 306 IPC and Section 107 IPC which reads as under:

"306. Abetment of suicide - 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.

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 for the 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; or Thirdly. Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1 - A person who, by will