Bombay High Court
Saurabh S/O Sharad Wasule vs The State Of Maharashtra Thr. Pso Ps ... on 28 February, 2025
2025:BHC-NAG:2057
Judgment
366 revn159.24
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION NO.159 OF 2024
Saurabh s/o Sharad Wasule,
aged about 33 years, occupation -
service, resident of Jamdar Wadi,
Mehdibagh Corner, Nagpur. ..... Applicant.
:: V E R S U S ::
1. The State of Maharashtra,
through Police Station Officer,
Police Station, Mankapur, Nagpur
City, Nagpur.
2. Krushnarao Raghobaji Makode,
aged about 48 years, resident of plot
No.50, Jamdar Wadi, Mehdibagh
Corner, Nagpur. ..... Non-applicants.
Shri Akshay Naik, Senior Counsel assisted by Shri Atharva S.Manohar,
Advocate for the Applicant.
Mrs.S.S.Dhote, Additional Public Prosecutor for Non-applicant
No.1/State.
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 10/02/2025
PRONOUNCED ON : 28/02/2025
JUDGMENT
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366 revn159.24
1. Heard finally by consent of learned Senior Counsel
Shri Akshay Naik for the applicant and learned Additional
Public Prosecutor Mrs.S.S.Dhote for the State.
2. The challenge in the revision is to order dated
13.9.2024 passed below Exh.3 by learned Incharge
Assistant Sessions Judge-8, Nagpur in Sessions Trial
No.345/2021 whereby learned Sessions Judge rejected the
application filed for discharge in connection with Crime
No.74/2020 registered with the non-applicant No.1/Police
Station for offence under Section 306 of the Indian Penal
Code.
3. Factual matrix of the case is as under:
On 3.3.2020, FIR came to be registered by
Krushnarao Makode, who is the father of the deceased. As
per the report, he alleged that there was relationship
between his daughter (the deceased) and the applicant
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(the accused) around 3 years ago. He asked the deceased
to desist meeting from the accused, but it was the accused
who was insisting the deceased to perform marriage with
the accused. Due to repeated proposals of the marriage on
the part of the accused, the deceased committed suicide by
jumping from 4th Floor of her office. Thus, the accused has
abetted her to commit suicide.
4. After registration of the crime, wheels of the
investigation started rotating. During the investigation, the
Investigating Officer has drawn the spot panchanama,
which was building "Raj Palace". He has recorded various
statements of the witnesses and collected CCTV Footage on
the day of the incident which show that the deceased had
been out of the office during the recess and met the
accused. Thereafter, they both travelled together on one
vehicle and came to the office of the deceased and,
thereafter, the deceased has committed suicide. After
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366 revn159.24
completion of the investigation, the chargesheet was
submitted against the accused.
5. After filing of the chargesheet, the case was
committed to the Court of Sessions. The accused filed an
application below Exh.3 under Section 227 of the Code of
Criminal Procedure for discharge contending that the
entire investigation papers nowhere reveal in what manner
he had abetted the deceased to commit suicide. As per the
prosecution, the deceased has broken the relationship with
him, is not also substantiated by any material as the
deceased was on visiting terms with the accused. The
CCTV Footage also shows that on the day of the incident,
she left the office during the lunch hours and came to meet
the accused. Thereafter, they travelled together till her
office and the deceased rushed towards the office and,
thereafter, went at fourth floor and jumped from the said
place. There is no proximity between the abetment and act
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366 revn159.24
of commission of suicide. Thus, material available on
record is not sufficient to frame charge against him.
6. Learned Sessions Judge, after considering the
application, held that material available on record is
sufficient to proceed with the trial and thereby rejected the
application.
Hence, this revision.
7. Learned counsel for the accused submitted that the
relationship between the accused and the deceased is not
denied. As far as the statement is concerned, that she
broke the relationship, the same is not sufficient by any
material as the prosecution evidence itself shows that she
left the office on the day of the incident during lunch hours
to meet the accused. The CCTV Footage collected by the
investigating agency also shows that on the day of the
incident, she met the accused and, thereafter, they
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366 revn159.24
travelled together towards the office. There is no evidence
on record to show that there was any altercations of words
between the accused and the deceased and, thereafter, she
has committed suicide. On the contrary, they travelled
together itself is sufficient to show that they were still in
relationship. Thus, no positive act or action is there on the
part of the accused to abet her to commit suicide. To
attract Section 306 of the Indian Penal Code, two basic
ingredients by one person and abetment by another person
are to be established. In order to substantiate charge
under Section 306 of the Indian Penal Code, it must
necessarily be proved that the accused has contributed to
suicide by the deceased by some direct or indirect act.
Abetment involves a mental process of instigating a person
or intentionally aiding a person in doing of a particular
thing. To bring charge under section 306 of the Indian
Penal Code, the act of abetment would require the positive
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act of instigating or intentionally aiding another person to
commit suicide. Without such mens rea on the part of the
accused being apparent from the face of record, the charge
under the aforesaid Section cannot be sustained. In view
of that, the order passed by learned Sessions Judge
deserves to be quashed and set aside.
8. In support of his contentions, learned Senior
Counsel for the accused placed reliance on following
decisions:
1. Criminal Appeal No.174/2024 (Vaibhav s/o
Premanand Mawale vs. State of Maharashtra)
decided by this court on 15.1.2025;
2. Criminal Appeal No.221/2025 (Mahendra Awase
vs. The State of Madhya Pradesh) decided by the
Supreme Court on 17.1.2025;
3. Criminal Appeal No.705/2017 (Laxmi Das vs. The
State of West Bengal) decided by the Supreme Court
on 21.1.2025, and
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366 revn159.24
4. Criminal Appeal NO.461/2025 (Ayyub and ors vs.
State of Uttar Pradesh and anr) decided by the
Supreme Court on 7.2.2025.
9. Per contra, learned Additional Public Prosecutor for
the State submitted that at the time of framing of charge, a
strong suspicion is also sufficient to frame charge. Whether
there was requisite mens rea or not is a matter of evidence.
The material of the case shows that the accused created
certain circumstances which compelled the deceased to
commit suicide. At the stage of framing of charge, the
court is required to evaluate material and documents on
record with a view to find out whether the facts emerging
therefrom taken at the their face value disclose existence of
ingredients or not. Thus, at this stage, the material
collected during the investigation is sufficient to frame
charge and, therefore, no interference is called for.
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10. It is a settled principle of law that at the stage of
considering an application for discharge, the court must
proceed on the assumption that the material which has
been brought on record by the prosecution is true and
evaluate the material in order to determine whether the
facts emerging from the material, taken on its face value,
disclose the existence of the ingredients necessary of the
offence alleged.
11. The Hon'ble Apex Court in the case of State of
Gujarat vs. Dilipsinh Kishorsinh Rao, reported in
MANU/SC/1113 2023, adverting to the earlier
propositions of law in its earlier decisions in the cases of
State of Tamil Nadu vs. N.Suresh Rajan and ors, reported
in (2014) 11 SCC 709 and The State of Maharashtra vs.
Som Nath Thapa, reported in (1996) 4 SCC 659 and The
State of MP Vs. Mohan Lal Soni, reported in (2000) 6 SCC
338, has held as under:
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366 revn159.24
"10. It is settled principle of law that at the stage of
considering an application for discharge the court
must proceed on an assumption that the material
which has been brought on record by the
prosecution is true and evaluate said material in
order to determine whether the facts emerging from
the material taken on its face value, disclose the
existence of the ingredients necessary of the offence
alleged. This Court in State of Tamil Nadu vs.
N.Suresh Rajan and ors, (2014) 11 SCC 709
adverting to the earlier propositions of law laid
down on this subject has held:
"29. We have bestowed our consideration to
the rival submissions and the submissions
made by Mr. Ranjit Kumar commend us. True
it is that at the time of consideration of the
applications for discharge, the court cannot act
as a mouthpiece of the prosecution or act as a
post office and may sift evidence in order to
find out whether or not the allegations made
are groundless so as to pass an order of
discharge. It is trite that at the stage of
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consideration of an application for discharge,
the court has to proceed with an assumption
that the materials brought on record by the
prosecution are true and evaluate the said
materials and documents with a view to find
out whether the facts emerging therefrom
taken at their face value disclose the existence
of all the ingredients constituting the alleged
offence. At this stage, probative value of the
materials has to be gone into and the court is
not expected to go deep into the matter and
hold that the materials would not warrant a
conviction. In our opinion, what needs to be
considered is whether there is a ground for
presuming that the offence has been
committed and not whether a ground for
convicting the accused has been made out. To
put it differently, if the court thinks that the
accused might have committed the offence on
the basis of the materials on record on its
probative value, it can frame the charge;
though for conviction, the court has to come to
the conclusion that the accused has committed
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the offence. The law does not permit a mini
trial at this stage."
12. Thus, the defence of the accused is not to be looked
into at this stage when the application is filed for
discharge. The expression "the record of the case" used in
Section 227 of the Code of Criminal Procedure is to be
understood as the documents and materials, if any,
produced by the prosecution. The provisions of the Code
of Criminal Procedure does not give any right to the
accused to produce any document at the stage of framing
of the charge. The submission of the accused is to be
confined to the material produced by the investigating
agency. The primary consideration at the stage of framing
of charge is the test of existence of a prima facie case, and
at this stage, the probative value of materials on record
need not be gone into. At the stage of entertaining the
application for discharge under Section 227 of the Code of
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366 revn159.24
Criminal Procedure, the court cannot analyze or direct the
evidence of the prosecution and defence or the points or
possible cross examination of the defence. The case of the
prosecution is to be accepted as it is.
13. In the case of Union of India vs. Prafulla Kumar
Samal and anr, reported in (1973)3 SCC 4, the Hon'ble
Apex Court considered the scope of Section 227 of the
Code of Criminal Procedure. After adverting to the various
decisions, the Hon'ble Apex Court has enumerated the
following principles:
"(1) That the Judge while considering the question
of framing the charges under section 227 of the
Code has the undoubted power to sift and weigh the
evidence for the limited purpose of finding out
whether or not a prima facie case against the
accused has been made out.
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(2) Where the materials placed before the Court
disclose grave suspicion against the accused which
has not been properly explained the Court will be,
fully justified in framing a charge and proceeding
with the trial.
(3) The test to determine a prima facie case would
naturally depend upon the facts of each case and it
is difficult to lay down a rule of universal
application. By and large however if two views are
equally possible and the Judge is satisfied that the
evidence produced before him while giving rise to
some suspicion but not grave suspicion against the
accused, he will be fully within his right to
discharge the accused.
(4) That in exercising his jurisdiction under section
227 of the Code the Judge which under the present
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Code is a senior and experienced Judge cannot act
merely as a Post office or a mouth-piece of the
prosecution, but has to consider the broad
probabilities of the case, the total effect of the
evidence and the documents produced before the
Court, any basic infirmities appearing in the case
and so on. This however does not mean that the
Judge should make a roving enquiry into the pros
and cons of the matter and weigh the evidence as if
he was conducting a trial."
14. Thus, the catena of decisions explains the scope of
Sections 227 and 228 of the Code of Criminal Procedure
from which following principles emerge:
1. While considering the question of framing
the charges under section 227 of the Code, the
court has the undoubted power to sift and
weigh the evidence for the limited purpose of
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finding out whether or not a prima facie case
against the accused has been made out: The
test to determine prime facie case would
depend upon the facts of each case.
2. Where the materials placed before the Court
disclose grave suspicion against the accused
which has not been properly explained the
Court will be, fully justified in framing a
charge and proceeding with the trial.
3. The court cannot act merely as a Post office
or a mouth-piece of the prosecution, but has to
consider the broad probabilities of the case,
the total effect of the evidence and the
documents produced before the Court, any
basic infirmities appearing in the case and so
on. However, at this stage, there cannot be a
roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was
conducting a trial.
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4. If on the basis of the material on record, the
Court could form an opinion that the accused
might have committed offence, it can frame
the charge, though for conviction the
conclusion is required to be proved beyond
reasonable doubt that the accused has
committed the offence.
5. At the time of framing of the charges, the
probative value of the material on record
cannot be gone into but before framing a
charge the Court must apply its judicial mind
on the material placed on record and must be
satisfied that the commission of offence by the
accused was possible.
6. At the stage of sections 227 and 228 the
Court is required to evaluate the material and
documents on record with a view to find out if
the facts emerging there from taken at their
face value discloses the existence of all the
ingredients constituting the alleged offence.
For this limited purpose, sift the evidence as it
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cannot be expected even at that initial stage to
accept all that the prosecution states as gospel
truth even if it is opposed to common sense or
the broad probabilities of the case.
7. If two views are possible and one of them
gives rise to suspicion only, as distinguished
from grave suspicion, the trial Judge will be
empowered to discharge the accused and at
this stage, he is not to see whether the trial
will end in conviction or acquittal.
15. With the above principles, if the material in the
present case collected during the investigation is discussed,
there is no dispute as to the fact that the deceased and the
accused were in relationship. As far as breaking of
relationship concerned, the same is not substantiated by
any material. On the contrary, the statements of the
witnesses show that on the day of the incident i.e. 3.3.2020
the deceased left the office to meet the accused. They
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communicated with each other. Thereafter, the accused
and the deceased proceeded towards the spot of the
incident on one vehicle. The seizure panchanama date
6.3.2020 shows that the investigating officer has collected
the CCTV Footage from which it reveals that the accused
and the deceased proceeded from Mankapur Chowk to
Jafar Nagar on 3.3.2020. Thereafter, from 2:36 to 3:00 pm
they were together near the Mankapur Square and after
that they again proceeded towards the spot of the incident
on one vehicle. The statements of the witnesses, especially
of colleagues of the deceased, show that the deceased had
been to the office and was present in the office till lunch
break. During lunch break at about 2:00 pm, she left the
office and did not return back. One of her colleagues
called the deceased and the deceased disclosed that her
vehicle is not properly working and she will return in the
office within two minutes. After 10-15 minutes, she
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attempted to call the deceased, but her phone was
switched off. At about 3:00 pm, the deceased had
committed suicide by jumping from 4th Floor. The father
and brother of the deceased, though stated that the
accused was torturing the deceased, they have not
specifically stated nature of the torture.
16. Recital of the FIR shows that it was the father who
asked her to desist the relationship with the accused and as
per contentions, she has broken up the said relationship.
The CCTV Footage states otherwise that the deceased had
been to Mankapur Square to meet the accused. The
CCTV Footage only shows that they were together at the
said Mankapur Square. It nowhere reveals that there any
adverse communication was going between them. The
circumstance, that they returned together on one vehicle
till she reaches at office, itself is sufficient to show that the
relationship was not such that she was avoiding the
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accused. As far as the allegation is concerned, that the
accused was torturing her, it is not supported by any
evidence.
17. Now, a question remains, whether breaking of the
relationship with the deceased victim is sufficient to say
that the applicant has abetted her to commit suicide?
18. Section 306 (Section 108 of the Bharatiya Nyaya
Sanhita, 2023) of the Indian Penal Code defines abetment
of suicide, which reads thus:
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.
Classification of offence. - The offence under this
section is cognizable, non-bailable, non-
compoundable and triable by Court of Session.
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19. Section 107 of the Indian Penal Code (Section 45 of
the Bharatiya Nyaya Sanhita, 2023) defines abetment of a
thing, which reads thus:
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 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.
Illustration
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A, a public officer, is authorised by a warrant from a
Court of Justice to apprehend Z, B, knowing that
fact and also that C is not Z, wilfully represents to A
that C is Z, and thereby intentionally causes A to
apprehend C. Here B abets by instigation the
apprehension of C.
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.
20. Section 108 of the Indian Penal reads thus:
108. Abettor.--
A person abets an offence, who abets either the
commission of an offence, or the commission of an
act which would be an offence, if committed by a
person capable by law of committing an offence
with the same intention or knowledge as that of the
abettor.
Explanation 1.-- The abetment of the illegal
omission of an act may amount to an offence
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although the abettor may not himself be bound to
do that act.
Explanation 2.-- To constitute the offence of
abetment it is not necessary that the act abetted
should be committed, or that the effect requisite to
constitute the offence should be caused.
Illustrations
(a) A instigates B to murder C. B refuses to do so. A
is guilty of abetting B to commit murder.
(b) A instigates B to murder D. B in pursuance of
the instigation stabs D. D recovers from the wound.
A is guilty of instigating B to commit murder.
Explanation 3.-- It is not necessary that the person
abetted should be capable by law of committing an
offence, or that he should have the same guilty
intention or knowledge as that of the abettor, or any
guilty intention or knowledge.
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366 revn159.24
Illustrations
(a) A, with a guilty intention, abets a child or a
lunatic to commit an act which would be an
offence, if committed by a person capable by law of
committing an offence, and having the same
intention as A. Here A, whether the act be
committed or not, is guilty of abetting an offence.
(b) A, with the intention of murdering Z, instigates
B, a child under seven years of age, to do an act
which causes Z's death. B, in consequence of the
abetment, does the act in the absence of A and
thereby causes Z's death. Here, though B was not
capable by law of committing an offence, A is liable
to be punished in the same manner as if B had been
capable by law of committing an offence, and had
committed murder, and he is therefore subject to
the punishment of death.
(c) A instigates B to set fire to a dwelling-house, B,
in consequence of the unsoundness of his mind,
being incapable of knowing the nature of the act, or
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that he is doing what is wrong or contrary to law,
sets fire to the house in consequence of A's
instigation. B has committed no offence, but A is
guilty of abetting the offence of setting fire to a
dwelling-house, and is liable to the punishment,
provided for that offence.
(d) A, intending to cause a theft to be committed,
instigates B to take property belonging to Z out of
Z's possession. A induces B to believe that the
property belongs to A. B takes the property out of
Z's possession, in good faith, believing it to be A's
property. B, acting under this misconception, does
not take dishonestly, and therefore does not commit
theft. But A is guilty of abetting theft, and is liable
to the same punishment as if B had committed theft.
Explanation 4.-- The abetment of an offence being
an offence, the abetment of such an abetment is
also as offence.
Illustration
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A instigates B to instigate C to murder Z.
accordingly instigates C to murder Z, and
commits that offence in consequence of B's
instigation. B is liable to be punished for his offence
with the punishment for murder; and, as A
instigated B to commit the offence, A is also liable
to the same punishment.
Explanation 5.-- It is not necessary to the
commission of the offence of abetment by
conspiracy that the abettor should concert the
offence with the person who commits it. It is
sufficient if he engages in the conspiracy in
pursuance of which the offence is committed.
Illustration
A concerts with B a plan for poisoning Z. It is
agreed that A shall administer the poison. B then
explains the plan to C mentioning that a third
person is to administer the poison, but without
mentioning A's name. C agrees to procure the
poison, and procures and delivers it to B for the
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purpose of its being used in the manner explained.
A administers the poison; Z dies in consequence.
Here, though A and C have not conspired together,
yet C has been engaged in the conspiracy in
pursuance of which Z has been murdered. C has
therefore committed the offence defined in this
section and is liable to the punishment for murder.
21. Section 306 of the Indian Penal Code talks about
abetment of suicide and states that whoever abets the
commission of suicide of another person, he/she shall be
punished with imprisonment of either description for a
term not exceeding ten years and shall also be liable to
fine.
The said Sections penalizes abetment of commission
of suicide. To charge someone under this Section, the
prosecution must prove that the accused played a role in
the suicide. Specifically, the accused's actions must align
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with one of the three criteria detailed in Section 107 of the
Indian Penal Code. This means the accused either
encouraged the individual to take their life, conspired with
others to ensure the person committed suicide.
22. A question arises as to when is a person said to have
instigated another. The word "instigate" means to goad or
urge forward provoke, incite or encourage to do "an act"
which the person otherwise would not have done.
23. It is well settled that in order to amount to
abetment, there must be mens rea. Without knowledge or
intention, there cannot be any abetment. The knowledge
and intention must relate to the act said to be abetted
which in this case, is the act of committing suicide.
Therefore, in order to constitute abetment, there must be
direct incitement to do culpable act.
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24. the Hon'ble Apex Court has considered its earlier
decision in the case of Kamlakar vs. State of Karnataka
(Criminal Appeal No.1485/of 2011, decided on 12.10.2023
and explained ingredients of Section 306 of the Indian
Penal Code and held, as under:
"8.2. Section 306 IPC penalizes abetment of
commission of suicide. To charge someone under
this Section, the prosecution must prove that the
accused played a role in the suicide. Specifically, the
accused's actions must align with one of the three
criteria detailed in Section 107 IPC. This means the
accused either encouraged the individual to take
their life, conspired with others to ensure the person
committed suicide, or acted in a way (or failed to
act) which directly resulted in the person's suicide.
8.3. In Ramesh Kumar vs. State of Chattisgarh,
reported in AIR 2001 SC 383, this Court has
analysed different meanings of "instigation". The
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relevant para of the said judgment is reproduced
herein:
"20. Instigation is to goad, urge forward,
provoke, incite or encourage to do "an act". To
satisfy the requirement of instigation though it
is not necessary that actual words must be used
to that effect or what constitutes instigation
must necessarily and specifically be suggestive
of the consequence. Yet a reasonable certainty
to incite the consequence must be capable of
being spelt out. The present one is not a case
where the accused had by his acts or omission
or by a continued course of conduct created
such circumstances that the deceased was left
with no other option except to commit suicide
in which case an instigation may have been
inferred. A word uttered in the fit of anger or
emotion without intending the consequences to
actually follow cannot be said to be instigation."
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366 revn159.24
8.4. The essentials of Section 306 IPC were
elucidated by this Court in M.Mohan vs. State,
AIR 2011 SC 1238, as under:
"43. This Court in Chitresh Kumar Chopra
v. State (Govt. of NCT of Delhi) [(2009) 16
SCC 605 : (2010) 3 SCC (Cri) 367] had an
occasion to deal with this aspect of
abetment. The Court dealt with the
dictionary meaning of the word
"instigation" and "goading". The Court
opined that there should be intention to
provoke, incite or encourage the doing of
an act by the latter. Each person's
suicidability pattern is different from the
others. Each person has his own idea of
selfesteem and selfrespect. Therefore, it is
impossible to lay down any straitjacket
formula in dealing with such cases. Each
case has to be decided on the basis of its
own facts and circumstances.
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366 revn159.24
44. 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.
45. 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."
8.5. The essential ingredients which are to be
meted out in order to bring a case under Section
106 IPC were also discussed in Amalendu Pal
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366 revn159.24
alias Jhantu vs. West bengal AIR 2010 SC 512,
in the following paragraphs:
"12. Thus, this Court has consistently taken
the view that before holding an accused
guilty of an offence under Section 306 IPC,
the court must scrupulously examine the
facts and circumstances of the case and
also assess the evidence adduced before it
in order to find out whether the cruelty
and harassment meted out to the victim
had left the victim with no other
alternative but to put an end to her life. 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.
.....35/-
Judgment
366 revn159.24
13. In order to bring a case within the
purview of Section 306 IPC there must be a
case of suicide and in the commission of
the said offence, the person who is said to
have abetted the commission of suicide
must have played an active role by an act
of instigation or by doing certain act to
facilitate the commission of suicide.
Therefore, the act of abetment by the
person charged with the said offence must
be proved and established by the
prosecution before he could be convicted
under Section 306 IPC."
8.6. On a careful reading of the factual matrix
of the instant case and the law regarding Secion
306 IPC, there seems to be no proximate link
between the marital discord between the
deceased and the appellant and her subsequent
death by burning herself. The appellant has not
committed any positive or direct act to instigate
.....36/-
Judgment
366 revn159.24
or aid in the commission of suicide by the
deceased."
25. In the case of Sanju @ Sanjay Singh Sengar v. State
of M.P., reported in (2002) 5 SCC 371, the Hon'ble Apex
Court extensively dealt with concept of 'abetment' in the
context of the offence punishable under Section 306 of the
Indian Penal Code. In that case, the allegation against the
accused/appellant therein was that he had abetted the
commission of suicide of his sister's husband one Chander
Bhushan. The facts reveals that there were matrimonial
disputes between sister of the appellant/accused and her
husband and in connection with the said disputes, the
appellant had allegedly threatened and abused Chander
Bhushan. Chander Bhushan committed suicide and the
suicide was attributed by the prosecution to the quarrel
that had taken place between the appellant and the said
Chander Bhushan, a day prior. It was alleged that the
.....37/-
Judgment
366 revn159.24
appellant had used abusive language against said Chander
Bhushan and had told him "to go and die". The appellant,
who had been chargesheeted for an offence punishable
under Section 306 of the Indian Penal Code, filed a Petition
under Section 482 of the Code of Criminal Procedure, for
quashing the proceedings against him, but his Petition was
dismissed by the High Court. While allowing the appeal,
the Hon'ble Apex Court, inter alia, observed as follows:
"Even if we accept the prosecution story that the
appellant did tell the deceased 'to go and die', that
itself does not constitute the ingredient of
'instigation'. The word 'instigate' denotes incitement
or urging to do some drastic or unadvisable action
or to stimulate or incite. Presence of mens rea,
therefore, is the necessary concomitant of
instigation."
26. Thus, a direct influence or an oblique impact with
the acts or utterances of the accused caused or created in
.....38/-
Judgment
366 revn159.24
the mind of the deceased and which draw him to suicide
will not be sufficient to constitute offence of abetment of
suicide. A fetal impulse or ill-fated thoughts of the suicide,
however unfortunate and touchy it may be, cannot fray the
fabric of the provision contained in Section 306 of the
Indian Penal Code. In order to bring out an offence under
Section 306 of the Indian Penal Code specific abetment as
contemplated by Section 306 of the Indian Penal Code on
the part of the accused with an intention to bring about the
suicide of the person concerned as a result of that
abetment is required. The intention of the accused to aid
or to instigate or to abet the deceased to commit suicide is
a must for an offence under Section 306 of the Indian
Penal Code.
27. The Hon'ble Apex Court in the case of Ramesh
Kumar vs. State of Chhattisgarh, supra, in para No.20, has
examined different meaning of 'instigation', which reads
.....39/-
Judgment
366 revn159.24
as, 'instigation' is to goad, urge forward, provoke, incite or
encourage to do "an act". To satisfy the requirement of
instigation though it is not necessary that actual words
must be used to that effect or what constitutes instigation
must necessarily and specifically be suggestive of the
consequence. Yet a reasonable certainty to incite the
consequence must be capable of being spelt out. The
present one is not a case where the accused had by his acts
or omission or by a continued course of conduct created
such circumstances that the deceased was left with no
other option except to commit suicide in which case an
instigation may have been inferred. A word uttered in the
fit of anger or emotion without intending the consequences
to actually follow cannot be said to be 'instigation'.
28. Thus, combine reading of Sections 306, 107, and
108 of the Indian Penal Code, shows the requirement is a
positive act on the part of the accused to instigate or aid in
.....40/-
Judgment
366 revn159.24
committing suicide and in the absence of the same, the
conviction cannot be sustained. There has to be a clear
intention to commit the offence for being held liable under
Section 306 of Indian Penal Code.
29. The Hon'ble Apex Court, in the case of Mariano
Anto Bruno vs. State, reported in (2023)15 SCC 560 in the
context of culpability under Section 306 of the Indian
Penal Code, observed as under :
"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."
.....41/-
Judgment
366 revn159.24
30. Recently, the Hon'ble Apex Court in Criminal Appeal
No.221/2025 (Mahendra Awase vs. The State of Madhya
Pradesh) supra dealt with the issue of abetment of suicide
has referred the earlier decisions in the cases of Swamy
Prahaladdas vs. State of M.P. and anr, reported in 1995
Supp (3) SCC 438; Madan Mohan Singh vs. State of
Gujarat and anr, reported in (2010)8 SCC 628; Amalendu
Pal alias Jhantu vs. State of West Bengal, reported in
(2010)1 SCC 707, and Ramesh Kumar vs. State of
Chhattisgarh, reported in (2001)9 SCC 618 and reiterated
that Section 306 IPC (Now Section 108 read with Section
45 of the Bharatiya Nyaya Sanhita, 2023) appears to be
applied casually. While the persons involved in genuine
cases where the threshold is met should not be spared.
The conduct of the proposed accused and the deceased,
their interactions and conversations preceding the
unfortunate death of the deceased should be approached
.....42/-
Judgment
366 revn159.24
from a practical point of view and not divorced from day-
to-day realities of life. The trial courts also should exercise
great caution and circumspection and should not adopt a
play it safe syndrome by mechanically framing charges,
even if the investigating agencies in a given case have
shown utter disregard for the ingredients of Section 306 of
the IPC.
31. In Laxmi Das vs. The State of West Bengal supra
also after referring catena of decisions including Ramesh
Kumar vs. State of Chattisgarh supra it is held that even if
all evidence on record, including the chargesheet and the
witness statements, are taken to be correct, there is not an
iota of evidence against the appellant.
32. In Ayyub and ors vs. State of Uttar Pradesh and anr
supra the Hon'ble Apex Court reiterated that in order to
make out an offence under Section 306 IPC, specific
.....43/-
Judgment
366 revn159.24
abetment as contemplated by Section 107 IPC on the part
of the accused with an intention to bring about the suicide
of the person concerned as a result of that abetment is
required. It has been further held that the intention of the
accused to aid or instigate or to abet the deceased to
commit suicide is a must for attracting Section 306 IPC. It
is further held that the alleged harassment meted out
should have left the victim with no other alternative but to
put an end to her life and that in cases of abetment of
suicide there must be proof of direct or indirect acts of
incitement to commit suicide.
33. After going through the catena of decisions, it
reveals that test that the court should adopt in these types
of cases is to make an endeavour to ascertain on the basis
of the materials on record whether there is anything to
indicate even prima facie that the accused intended the
consequences of the act, i.e., suicide. To attract the
.....44/-
Judgment
366 revn159.24
provisions what is to be shown is that the accused have
actually instigated or aided in the victim act of committing
suicide. There must be direct or indirect incitement to the
commission of suicide and the accused must be shown to
have played an active role by an act of instigation or by
doing certain act to facilitate the commission of suicide.
34. Applying the above principles to the facts of the
present case and even accepting the case as it is, it reveals
that there was relationship between the accused and the
deceased. After sifting the evidence on record on the
touchstone of the principles laid down by the Hon'ble Apex
Court, there is no evidence that the said relationship was
broken between them. As far as investigation papers are
concerned, it nowhere reveals that the applicant at any
time provoked the deceased in any manner to kill herself.
On the contrary, the evidence shows that they were in
contact with each other. Merely because the deceased has
.....45/-
Judgment
366 revn159.24
committed suicide that by itself is not sufficient to attract
the offence against the accused.
35. A plain reading of Sections 107, 108, and 306 of the
Indian Penal Code and applying it to the undisputed facts
of the present case indicates that none of ingredients is
attracted to the case in hand.
36. After having sifted weigh through the evidence on
record and gone through the investigation papers and
considering the materials on record, it is difficult to hold
that inference of grave suspicion can be raised against the
applicant on the basis of the evidence on record. The
material appears to be insufficient for subjecting the
applicant to trial. On the basis of the evidence on record,
it cannot be stated that the material is sufficient for the
prosecution to establish the charge against the applicant.
Subjecting the applicant to trial on the basis of the above
.....46/-
Judgment
366 revn159.24
said evidence would not only be a mere formality but also
abuse of process of law. Learned Sessions Judge ought to
have appreciated this position while deciding the
application for discharge. Learned Sessions Judge ought to
have appreciated that the ingredients of the offence under
Section 306 are absent. Even, if it is assumed that the
material collected by the prosecution is true, it would not
be sufficient to establish the case of the prosecution and,
therefore, the conducting of the trial against the applicant
would be an empty formality. I am, therefore, of the view
that the order impugned is liable to be set aside.
37. In this view of the matter, this Court passes
following order:
ORDER
(1) The Criminal Revision Application is allowed.
.....47/-
Judgment
366 revn159.24
(2) The order dated 13.9.2024 passed below Exh.3 by
learned Incharge Assistant Sessions Judge-8, Nagpur in
Sessions Trial No.345/2021 whereby learned Sessions
Judge rejected the application filed for discharge in
connection with Crime No.74/2020 is hereby quashed and
set aside.
(3) The accused is hereby discharged of the offence under
section 306 read with 34 of the Indian Penal Code.
Revision stands disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge ...../-
Date: 28/02/2025 17:34:45
