Bombay High Court · 2025

Judgment

(PER : URMILA JOSHI-PHALKE, J.)

2. Admit. Heard finally with the consent of the learned Counsel of the parties. (2) apl.935.2022.Judgment.odt

3. Present application is preferred by the applicant for quashing of the First Information Report in connection with Crime No.367/2022 registered at Police Station, Anjangaon Surji, District Amravati for the offence punishable under Section 306 read with Section 34 of the Indian Penal Code and charge sheet bearing No.123/2022 arising out of the same crime number.

4. Brief facts which are necessary for the disposal of the application are as under: Informant namely Amol Pandurang Mahalle son of the deceased, lodged a report alleging therein that deceased is his father and agriculturist. He is having an agricultural field at Mouza Chinchona, admeasuring 6 acres vide Gat No.289. The said 6 acres land was divided between his father and mother and adjacent to their agricultural land, there is another agricultural field of one Ramrao Wankhede and besides the agricultural land of Ramrao Wankhede, there is agricultural land of the applicant Devidas Wankhede. The informant and deceased were using the land of the adjoining agricultural field to approach to their land. On 18.05.2022, there was inspection pertaining to the approach road of the complainant to his agricultural field therefore, the deceased went to the agricultural field in the morning. The Tahsildar and other revenue officers went away after inspection of the said spot. Thereafter, there was an altercation between (3) apl.935.2022.Judgment.odt the deceased and the applicant Devidas Wankhede, co-accused Suraj and Ramrao. The said altercation of words was on account of the right of way to approach the agricultural field. It was alleged that the deceased was assaulted by the present applicant during the altercation and therefore, on 19.05.2022, the deceased has committed suicide by hanging himself. As per the allegations, before the deceased committed suicide, he made a phone call to the informant and informed him that he is doing something about his life. The informant immediately rushed to the spot of incident. Police also arrived there. During the inquest panchnama, one suicide note was found with the person of the deceased wherein the name of the present applicant was mentioned and it was also mentioned that he is responsible for his death.

5. During investigation, the Investigation Officer has drawn the spot panchnama, recorded the statements of the witnesses and after completion of the investigation submitted charge sheet against the present applicant and other co-accused.

Heard learned Counsel Mr. Akash Moon for the applicant, who submitted that as far as the allegations are concerned, which are of wear and tear manner. There is no material to show that there was quarrel to the extent that deceased was not having any alternate but to commit suicide. (4) apl.935.2022.Judgment.odt He submitted that even accepting the allegation as it is, nowhere it reflect that what actually act or instigation was on the part of the applicant, due to which deceased has committed suicide. Even the suicide note, if taken into consideration, it is only to the extent that the right of way is not given to him, he is committing suicide as his way was restrained by the present applicant and assaulted him. He submitted that even accepting the allegations as it is, there was no positive act or action on the part of the applicant which drewing the deceased to commit suicide. There is no close proximity as to the act of suicide. Thus, even accepting the case as it is, there is no mens rea on the part of the accused apparent on the face of record and therefore, the charge under the aforesaid section cannot be sustained.

7. Per contra, learned APP for the State submitted that at the time of the quashing of the First Information Report, what requires to be seen is whether there was requisite mens rea and obviously, it is a matter of evidence. A strong suspicion is also sufficient to proceed against the accused. He submitted that overall material shows that the applicant created certain circumstances which compelled the deceased to commit suicide. At this stage, the Court is required to evaluate the material documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose existence of (5) apl.935.2022.Judgment.odt ingredients or not. Thus, at this stage, the material collected during investigation is sufficient to proceed against the present applicant and therefore, the application deserves to be rejected.

8. Learned Counsel for the non-applicant No.2 reiterated the said contentions and submitted that whether there was an abetment which drove the deceased to commit suicide or not is a matter of evidence. At this stage, prima facie material is sufficient to proceed against the present applicant and therefore, the application deserves to be rejected.

9. Before entering into merits of the case, it is necessary to see what are consideration as far as the offence under Section 306 of the IPC is concerned.

10. 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. (6) apl.935.2022.Judgment.odt

11. 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 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. (7) apl.935.2022.Judgment.odt 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.

12. 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 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. (8) apl.935.2022.Judgment.odt (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. 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. (9) apl.935.2022.Judgment.odt (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 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 A instigates B to instigate C to murder Z. B accordingly instigates C to murder Z, and C 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 (10) apl.935.2022.Judgment.odt 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 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.

13. 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 (11) apl.935.2022.Judgment.odt 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 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.

14. 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.

15. 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.

16. In the case of Prabhu vs. The State represented by the Inspector of Police and anr, relied by learned counsel for (12) apl.935.2022.Judgment.odt the applicant, by referring the various earlier decisions, the Hon’ble Apex Court held that the physical relationship over a considerable period of time was out of mutual love between the appellant and the deceased and not based on the promise of marriage. In the said case, 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 relevant para of the said judgment is reproduced herein: (13) apl.935.2022.Judgment.odt “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 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.”

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 (14) apl.935.2022.Judgment.odt 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.

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 (15) apl.935.2022.Judgment.odt 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.

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. (16) apl.935.2022.Judgment.odt 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 Section 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 or aid in the commission of suicide by the deceased.”

17. In the light of above said principles laid down by the Hon’ble Apex Court, it is well settled that to attract the provisions what is to be shown is that the accused have actually instigated or aided to the victim in 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.

18. Applying the above principles to the facts of the present case and even accepting the case as it is, it reveals that the allegation against the present applicant is that there was a (17) apl.935.2022.Judgment.odt dispute between the applicant and the deceased on account of right of way. As per the contention of the informant, there was a way from the agricultural land of the present applicant to approach his field and he is using the said way since long. The application filed by his father before the Tahsildar is also allowed by the Tahsildar and Tahsildar has also determined the right of the informant and his father as far as the use of agricultural land of the present applicant to approach his land. However, the deceased was assaulted by the present applicant on account of the dispute and therefore, on 19.05.2022 he has committed suicide. During the investigation, the suicide note was seized from the person of the deceased. The recitals of the suicide note as under: ßeh ikaMqjax dk’khukFk egYys yhmu nsrks dh eh ekt ‘ksr x-u-289 gs ‘ksr 1992 e/;s ?ksry eh 1992 iklqu x-u-281 e/kqu ek÷;k ‘ksrkr tkr vkgs rjh ek>k jLrk vMoyk nsohnkl rqG’khjke oku[kMs vkuh jkejko ‘kkejko oku[kMs vkuh R;kpk eksB eqyxk eyk ekjgku dsyh rjh eyk jLrk ehGkyk ikghts rjh ;kP;ka eqGs eh vkRegR;k djhr vkgs- ek÷;k tqokps nkslh nsohnkl rqG’khjke oku[kMs vkuh jkejko ‘kkejko oku[kMs vkuh R;kpk eqyx vkgs- rjh eyk jLrk ehGkyk ikghts vkiyk ‘ksrdjh ikaMqjax dk’khukFk egYysÞ (18) apl.935.2022.Judgment.odt

19. Thus, considering the allegation levelled against the present applicant and the suicide note, which is to the extent that deceased was using the way from the agricultural land of the present applicant since long and it was restrained and he was assaulted and therefore, he committed suicide. Whether this act of the present applicant amounts to abetment of suicide. In the case of Kamaruddin Dastagir vs. State of Karnataka, reported in MANU/SC/1266/2024 wherein while dealing with the provisions under Section 306 of the Indian Penal Code extensively it is held that the very first clause of Section 107 of the Indian Penal Code lays down that a person, who abets the doing of a thing, is a person who instigates any person to do that thing. Therefore, ‘instigation’ to do a particular thing is necessary for charging a person with abetment. In paragraph No. 25 it is observed that even in cases where the victim commits suicide, which may be as a result of cruelty meted out to her, the Courts have always held that discord and differences in domestic life are quite common in society and that the commission of such an offence largely depends upon the mental state of the victim. Surely, until and unless some guilty intention on the part of the accused is established, it is ordinarily not possible to convict him for an offence under Section 306 of the Indian Penal Code. While dealing with the situation on the basis of the facts before the Hon’ble Apex Court, it is held that the accused-appellant had (19) apl.935.2022.Judgment.odt simply refused to marry the deceased and thus, even assuming there was love affair between the parties, it is only a case of broken relationship which by itself would not amount to abetment to suicide.

20. In Monika Vs. The State of Maharashtra and Ors. relied upon by the present applicant wherein also the Division Bench of this Court by applying the various decisions held that on applying the parameters and while exercising the powers under Section 482 Cr.P.C. or under Section 226 of the Constitution of India, the power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court. However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur and Bhajan Lal has the jurisdiction to quash the FIR/complaint.

21. In the case of Patel Babubhai Manohardas and Ors Vs. State of Gujrat (referred supra) wherein also the provisions under Section 306 and 107 are extensively considered and observed by the Hon’ble Apex Court that “attempt to commit suicide is an offence in India. Section 309 IPC says that whoever attempts to commit suicide and does any act towards such act, (20) apl.935.2022.Judgment.odt shall be punished with simple imprisonment for a term which may extend to one year or with fine or with both. However, once suicide is carried out, the offence is complete. Considering the nature of the offence, obviously such a person would be beyond the reach of the law. Therefore, question of penalising him would not arise but whoever abets the commission of such suicide would be penalised under Section 306 of IPC. Punishment prescribed under Section 306 of IPC is imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine. What Section 306 IPC says is that if any person commits suicide, then whoever abets the commission of such suicide shall be punished as above.”

22. It is further held that “therefore, the crucial word in Section 306 IPC is ‘abets’. ‘Abetment’ is defined in Section 107 of IPC. As per Section 107 IPC, a person would be abetting the doing of a thing if he instigates any person to do that thing or if he encourages with one or more person or persons in any conspiracy for doing that thing or if he intentionally aids by any act or illegal omission doing of that thing. There are two explanations to Section 107. As per Explanation 1, even if a person by way of wilful misrepresentation or concealment of a material fact which he is otherwise bound to disclose voluntarily causes or procures or attempts to cause or procure a thing to be (21) apl.935.2022.Judgment.odt done, is said to instigate the doing of that thing. Explanation 2 clarifies that whoever does anything in order to facilitate the commission of an act, either prior to or at the time of commission of the act, is said to aid the doing of that act.”

23. Section 114 IPC is an explanation or clarification of Section 107 IPC. What Section 114 IPC says is that whenever any person is absent but was present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such an act or offence and would be liable to be punished as an abettor.

24. By referring the decision of Ramesh Kumar V. State of Chhattisgarh, reported in (2001) 9 SCC 618 the Hon’ble Apex Court held that “ ‘instigate’ means to goad, urge, provoke, incite or encourage to do ‘an act’. To satisfy the requirement of ‘instigation’, it is not necessary that actual words must be used to that effect or that the words or act should necessarily and specifically be suggestive of the consequence. Where the accused by his act or omission or by his continued course of conduct creates a situation that the deceased is left with no other option except to commit suicide, then ‘instigation’ may be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be ‘instigation’.” (22) apl.935.2022.Judgment.odt

25. The Hon’ble Apex Court further refers the judgment of Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) reported in (2009) 16 SCC 605 observed that to constitute ‘instigation’, a person who instigates another has to provoke, incite, urge or encourage doing of an act by the other by ‘goading’ or ‘urging forward’. This Court summed up the constituents of ‘abetment’ as under and laid down the constituents as follows: (i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and (ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above.

26. Applying the above principles to the facts of the present case and even accepting the allegation as it is, it reveals that there was a dispute between the present applicant and the deceased on account of right of way. It is alleged that on that count, the applications were filed before the Tahsildar, which were pending at the time of incident. As per the allegations, there was altercations of words between the deceased and the (23) apl.935.2022.Judgment.odt present applicants on 19.05.2022, it was alleged that the deceased was assaulted by the present applicant. As far as the allegation of the assault is concerned, which is not substantiated by the postmortem report, as no injuries are found on the person of the deceased while conducting the postmortem notes. Admittedly, the documents collected during the investigation shows that the dispute on the account of right of way was not raised against the present applicant, but it was against one Ramrao Shamrao Wankhede. Thus, as far as the presence of the present applicant on 19.05.2022, and the act of the assault on the deceased, admittedly, not substantiated by any material except the bare words of the informant and the suicide note. On examination of the instant case on the touchstone of the principles laid down by the Hon’ble Apex Court, the entire material collected during the investigation even the statements of the witnesses, suicide note it reveals that the dispute on account of right of way was between one Ramrao and the deceased. The litigation filed by the deceased was also against the Ramrao and not against the present applicant. Moreover, the suicide committed by the deceased victim is not immediate result of the said dispute. Thus, there was no proximity or nexus between two acts i.e. the dispute between the deceased and the present applicant and the suicide. Merely because, there was dispute between the deceased and the present applicant and (24) apl.935.2022.Judgment.odt present applicant restraining him from using his agricultural land as a way to approach the field is not sufficient to infer that out of that dispute the deceased has committed suicide.

27. 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 are attracted to the case in hand. The material appears to be insufficient for subjecting the applicant to trial. On the basis of the nature of the evidence on record, it cannot be said that the material is sufficient for the prosecution to establish the charge against the applicant. In such circumstances, subjecting the applicant to trial on the basis of the above said evidence would not only be a mere formality but also abuse of process of law.

28. In this view of the matter, the application deserves to be allowed. Hence, I proceed to pass following order: ORDER The application is allowed. First Information Report registered against (i) (ii) the present applicant in connection with Crime No.367/2022 registered at Police Station, Anjangaon Surji, District Amravati for the offence punishable under Section 306 read with Section 34 of the Indian Penal Code and charge sheet arising out of the said crime bearing No.123/2022 are hereby quashed. (25) apl.935.2022.Judgment.odt The application is disposed of in the aforesaid terms. (NANDESH S. DESHPANDE, J) (URMILA JOSHI-PHALKE, J) Sarkate.