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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

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

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

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

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.

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

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,

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

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