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"The contention of the learned counsel for the accused revisionist is that undisputedly Smt. Tara Devi is alive and in the circumstances, the offence under Section 306 IPC cannot be made out. On the factual matrix the submission of the learned counsel for the accused is not disputed. It is also admitted to the learned State counsel that wife Smt. Tara Devi is alive. From the perusal of the case diary, I find statements " of other witnesses including the mother of Smt. Tara Devi to the effect that in an attempt to commit suicide from the cruel acts and behaviour of the revisionist, Smt. Tara Devi jumped into Saryu river and she was saved. In such circumstances, even if the offence under Section 306 IPC was not completed at this stage, the offence under Section 306 IPC read with Section 511 of IPC cannot be ruled out. In these circumstances, the approach of the learned Magistrate cannot be said to be illegal."

7. He further held that revision was preferred against an interlocutory order and the applicant was at liberty to raise this point before the Sessions Judge. With these findings, he dismissed the revision and the impugned order of the Magistrate was sustained to the extent that question of sustainability of the offence under Section 306 IPC read with Section 511 IPC can be seen at the time of framing of charge.

8. The above orders of the Magistrate and Revisional Court have been challenged in this writ petition.

12. The contention of the learned counsel for the petitioner was that Smt. Tara Devi is alive and living with him as his wife and therefore there was no question of making out any offence punishable under Section 306 IPC. That the learned Sessions Judge without submission of any charge-sheet under Section 306/511 IPC has wrongly converted the offence under Section 306 IPC to the offence under Section 306/511 IPC.

Section 306 IPC reads as under :--

"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."
(Vernacular matter omitted...... Ed.)

19. Moreover, the offence punishable under Section 109 IPC i.e. abetment is made out after the act abetted is committed in consequences of the abetment and no express provision is made by the Code (I.P.C.) for the punishment of such abetment. When the substantive offence of abetment is made out on the commission of the offence how its attempt could be made without its commission. Therefore, the offence of abetment or attempt is only made out when the offence abetted, is committed in consequence of the abetment. Therefore, in view of the facts and circumstances of the case no offence under Section 306/511 IPC could be said to have been made out. The learned Sessions Judge thus wrongly held that if the offence punishable under Section 306 IPC was not made out, the commission of the offence by the applicant punishable under Section 306/511 IPC could not be ruled out. Consequently, the offence punishable under Section 306 IPC was wrongly shown in the charge-sheet probably due to utter ignorance of the Investigating Officer.