Uttarakhand High Court
Faizan vs State Of Uttarakhand And Another on 18 February, 2026
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application No. 1652 of 2016
18th February, 2026
Faizan -Applicant
Versus
State of Uttarakhand and Another -Respondents
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Presence:-
Mr. Mohd. Safdar, learned counsel for the applicant.
Mr. Dinesh Chauhan, learned A.G.A. for the State.
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Hon'ble Alok Mahra, J.
This criminal miscellaneous application has been filed by the applicant challenging the charge-sheet dated 19.08.2016, summoning/cognizance order dated 25.10.2016 as well as entire proceedings of Special Session Trial No. 72 of 2016 (Case Crime No. 210 of 2016), under Section 305 of IPC and 16(I)/17 of Protection of Children from Sexual Offence Act ('POCSO Act'), pending in the court of FTC/Additional Session Judge/Special Judge, POCSO, Haridwar.
2. Heard learned counsel for the parties on merits and perused the records.
3. Brief facts of the case are that the respondent no. 2 on 31.07.2016, lodged an FIR at Police Station Kotwali Gangnahar, Roorkee, District Haridwar with the allegations that on 04.06.2016 at about 03:00 to 04:00 PM, the younger 2 sister of complainant Shivani, who is minor had jumped into the gangnahar canal from Neela Pul near Nahar Patri and on 07.06.2016, the dead body of Shivani was recovered from the Libberhedi. After the inquest report and post-mortem report, the cremation of the dead body was done. It is also alleged in the FIR that on the same day, the complainant had seen her sister Shivani alongwith the present applicant while they were coming outside from Hardev Hotel and the complainant tried to persuade her sister but even then the applicant took her to Nahar Patri and there the altercation took place between them, due to which, the sister of the complainant had committed suicide by jumping into the canal. Initially, on 31.07.2016, an FIR was lodged against the applicant under Section 305 of IPC at Police Station - Kotwali Gangnahar, Roorkee, District Haridwar, which has been registered as Case Crime No. 210 of 2016. After investigation, since the deceased was 17 years of age and a minor, therefore, Sections 16(I)/17 of POCSO Act were added and the charge-sheet was filed under Sections 305 of IPC and Sections 16(I)/17 of POCSO Act. Thereafter, against the cognizance/summoning order dated 25.10.2016, the applicant was summoned to face the trial. Feeling aggrieved, the applicant preferred the present criminal miscellaneous application.
4. Learned counsel for the applicant submits that the applicant has been falsely implicated in the case. It is further 3 argued that as per the averments made in the FIR, the deceased jumped in Gangnahar on 04.06.2016 and her body was recovered on 07.06.2016, but, the FIR with regard to this incidence was lodged almost after two months of delay i.e. on 31.07.2016. It is further submitted all the allegations made against the applicant, even if accepted in their entirety, do not make out a case under Section 305 of IPC. It is further submitted that to constitute the abetment within the meaning of Section 107 read with Section 305 of IPC, there should be instigation, provocation, incitement, suggestion, insinuation or goading to commit suicide and that accused must have intended that the deceased commits suicide. But, in this case, only omnibus allegations have been levelled against the present applicant. Furthermore, the deceased left no suicide note or any dying declaration before the incident. Thus, there is no evidence so as to prove that the applicant in any manner instigated the victim for committing suicide or as to what was the basis of the alleged altercation between the applicant and the deceased, after which, she committed suicide.
5. It is further submitted by learned counsel for the applicant that to attract the offence under Section 305 of IPC, it is important to establish proof of direct or indirect acts of instigation or incitement of suicide by the accused, which must be in close proximity to the commission of suicide by the deceased, but, here in the instant case, the applicant has not 4 played any active role or any positive or direct act to instigate or aid the deceased in committing suicide. In the FIR, there is no such role and no action of the applicant which is described which has enticed the deceased to commit such an act. Learned counsel further submits that the applicant never instigated/abated the deceased for commission of suicide; that there cannot be any presumption of abatement against the applicant and that the investigation has not brought out any omission or commission of the applicant, which led to the deceased to take any extreme step of committing suicide. It is further submitted by learned counsel for the applicant that the proceedings of the trial court concerned were also earlier stayed in this matter by this Court on 02.12.2016.
6. To support his arguments, learned counsel for the applicant has relied upon a judgment passed by Hon'ble Apex Court in the case of Prakash and Others Vs. State of Maharashtra and Another, reported in 2024 SCC OnLine SC 3835. Paragraph 22 and 28 of the judgment is extracted hereinbelow:-
"22. It could thus be seen that this Court observed that in cases of alleged abetment of suicide, there must be a proof of direct or indirect act(s) of incitement to the commission of suicide. It has been held that since the cause of suicide particularly in the context of the offence of abetment of suicide involves multifaceted and complex attributes of human behaviour, the court would be looking for cogent and convincing proof of the act(s) of incitement to the commission of suicide. This Court further observed that a mere allegation of harassment of the deceased by another person would not suffice unless there is such action on the part of the accused which compels the person to commit suicide. This Court also emphasised that such an offending action ought to be 5 proximate to the time of occurrence. It was further clarified that the question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused. It was further held that if the acts and deeds are only of such nature where the accused intended nothing more than harassment or a snap-show of anger, a particular case may fall short of the offence of abetment of suicide, however, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. This Court held that owing to the fact that the human mind could be affected and could react in myriad ways and that similar actions are dealt with differently by different persons, each case is required to be dealt with its own facts and circumstances."
"28. This Court in the case of Naresh Kumar v. State of Haryana, observed as follows:-
"20. This Court in Mariano Anto Bruno v. State [Mariano Anto Bruno v. State, (2023) 15 SCC 560 : 2022 SCC OnLine SC 1387] , after referring to the abovereferred decisions rendered in context of culpability under Section 306IPC observed as under : (SCC para 45) "45. ... It is also to be borne in mind that in cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable."
7. Per contra, learned State Counsel has submitted that on the basis of complete case diary submitted by the Investigating Officer, learned FTC/Additional Session Judge/Special Judge, POCSO, Haridwar found prima facie case against the applicant and after perusing the entire material evidence on record, has rightly passed the summoning order. Thus, there is no illegality in the summoning order passed by learned FTC/Additional Session Judge/Special Judge, POCSO, Haridwar.
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8. This Court has carefully considered the rival submissions and perused the material placed on record.
9. Now, the question is as to whether the offence punishable under Section 305 of IPC is made out against the applicant. Before dwelling upon the point, the provisions of Sections 305 & 107 of IPC is required to be predicated here as under:-
"305. Abetment of suicide of child or insane person.-- If any person under eighteen years of age, any insane person, any delirious person, any idiot, or any person in a state of intoxication, commits suicide, whoever abets the commission of such suicide, shall be punished with death or imprisonment for life, or imprisonment for a term not exceeding ten years, and shall also be liable to fine." Further, section 107 of the IPC provides thus:-
107. Abetment of a thing -- A person abets the doing of a thing, who--
Firstly -- 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 wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2.-- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act."
10. So far as the word 'abetment for committing offence under Section 305' is concerned, there should be availability of means rea in the offence. On this aspect, the law has been laid down by Hon'ble the Apex Court in the case of S.S. Chheena 7 Vs. Vijay Kumar Mahajan reported in 2010 (12) SCC 190, in which, it has been observed that :-
"Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 of IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide."
11. Similarly, in the case of M. Mohan Vs. State represented by the Deputy Superintendent of Police reported in AIR 2011 SC 1238, the Hon'ble Apex Court has observed as hereunder:-
45. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.
46. The intention of the Legislature and the ratio of the cases decided by this court are clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide.
12. In view of the aforesaid law, the facts of this case and the material available on record fail to satisfy the ingredients of Section 305 of the IPC because the reason to commit suicide and abetment to commit suicide cannot be equated for the purpose of Section 305 of IPC. It may be possible that the deceased committed suicide by jumping into the gangnahar canal from Neela Pul near Nahar Patri and on the same day, 8 the complainant saw the deceased alongwith the present applicant, but it is not enough to convict a person for offence under Section 305 of IPC unless the ingredients of Section 107 of the IPC is to be satisfied.
13. Section 305 read with Section 107 of IPC, has been interpreted, time and again, and its principles are well established. To attract the offence of abetment to suicide, it is important to establish proof of direct or indirect acts of instigation or incitement of suicide by the accused, which must be in close proximity to the commission of suicide by the deceased. Such instigation or incitement should reveal a clear mens rea to abet the commission of suicide and should put the victim in such a position that he/she would have no other option but to commit suicide.
14. Insofar as the offence under Section 16(I)/17 of POCSO Act are concerned, it would be expedient to reproduce Section 16 and 17 of POCSO Act, which are as hereunder:-
16. Abetment of an offence.--A person abets an offence, who--
First.--Instigates any person to do that offence; or Secondly.-- Engages with one or more other person or persons in any conspiracy for the doing of that offence, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that offence; or Thirdly.--Intentionally aids, by any act or illegal omission, the doing of that offence.
Explanation I.--A person who, by wilful misrepresentation, or by wilful concealment of a material fact, which he is bound to disclose, voluntarily causes or procures, or attempts to cause or 9 procure a thing to be done, is said to instigate the doing of that offence.
Explanation II.--Whoever, either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.
Explanation III.--Whoever employ, harbours, receives or transports a child, by means of threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of a position, vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of any offence under this Act, is said to aid the doing of that act.
17. Punishment for abetment.--Whoever abets any offence under this Act, if the act abetted is committed in consequence of the abetment, shall be punished with punishment provided for that offence.
Explanation.-- An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy or with the aid, which constitutes the abetment.
15. There is no allegation or averment which suggests that any abetment was done by the applicant, prior to commission of offence. Even if the material collected during the investigation is taken at its face value and accepted in its entirety, does not prima facie constitute an offence under Section 16(I)/17 of POCSO Act against the applicant.
16. Furthermore, FIR was lodged almost after two months of delay, which is a serious infirmity on the part of the prosecution, and, as such, no explanation has been given for such delay in the FIR. The absence of explanation for delay within the FIR itself is a significant procedural flaw. No reasonable explanation has been given in the FIR for such inordinate delay.
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17. After going through the record and hearing the arguments advanced by learned counsel for both the parties, this Court is of the opinion that in the present case, there is no iota of evidence that the applicant was involved either actively and passively in instigating or abetting the sister of the complainant i.e. the deceased to commit suicide. The ingredients of the offence punishable under Section 305 of IPC as well as under Section 16(I)/17 of POCSO Act have remained unproved and thus the applicant deserve to be acquitted of the charges for the offence punishable under Section 305 of IPC and Section 16(I)/17 of POCSO Act.
18. Accordingly, the present criminal miscellaneous application filed under Section 482 of the Code of Criminal Procedure, 1973 is allowed and the entire proceedings of Special Session Trial No. 72 of 2016 (Case Crime No. 210 of 2016), under Section 305 of IPC and 16(I)/17 of Protection of Children from Sexual Offence Act ('POCSO Act'), pending in the court of FTC/Additional Session Judge/Special Judge, POCSO, Haridwar, is hereby quashed, qua the applicant.
(Alok Mahra, J.) 18.02.2026 Ujjwal