Vaibhav S/O Premanand Mawale vs The State Of Maharashtra Ps Shegaon City … on 15 January, 2025

Bombay High Court

Vaibhav S/O Premanand Mawale vs The State Of Maharashtra Ps Shegaon City … on 15 January, 2025

2025:BHC-NAG:424




              Judgment

                                                               340 cra174.24

                                            1

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                          NAGPUR BENCH, NAGPUR

                   CRIMINAL REVISION APPLICATION NO.174 OF 2024

              Vaibhav s/o Premanand Mawale,
              aged about 25 years, occupation : service,
              r/o Wadner Gangai, taluka Daryapur,
              district Amravati.                   ..... Applicant.

                                    :: V E R S U S ::

              State of Maharashtra, through Police Station
              Shegaon City, district Buldhana. ..... Non-applicant.
              ==============================
              Shri Akshay Sudame, Counsel for the Applicant.
              Shri M.J.Khan, Additional Public Prosecutor for the Non-
              applicant/State.
              ==============================

              CORAM : URMILA JOSHI-PHALKE, J.
              CLOSED ON : 06/01/2025
              PRONOUNCED ON : 15/01/2025

              JUDGMENT

1. Heard finally by consent of learned counsel Shri

Akshay Sudame for the applicant and learned Additional

Public Prosecutor Shri M.J.Khan for the State.

…..2/-

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2. The present revision application is filed by the

applicant (the accused) in connection with Crime

No.486/2020 registered with the Shegaon Police Station,

district Buldhana under Section 306 of the Indian Penal

Code against rejection of discharge application Exhibit.8

filed under Section 227 of the Criminal Procedure Code.

3. The factual matrix of the case is as under:

The applicant is educated having qualification of

Bachelor of Computer Application. Deceased victim and

the applicant were having love affair from last nine

years. On 3.12.2020, the deceased committed suicide by

hanging herself. The deceased victim has left behind an

exhaustive suicide note stating in it the details of affair

and her relationship with the applicant. It was further

alleged that on the promise of marriage, the applicant

and the deceased had physical relationship and

…..3/-

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subsequently, the applicant broke the said relationship

and denied to marry with her. It is further alleged that

the applicant has developed relationship with other girl

and as the deceased victim was disturbed and in a

depression, she committed suicide. On the basis of the

said suicide note, the informant, the father of the

deceased victim, lodged a report against the applicant

that he abetted the deceased victim to commit suicide.

On the basis of the said report, the crime was registered.

4. After registration of the crime, wheels of the

investigation started rotating. During the investigation,

the Investigating Officer has drawn spot panchanama

and seized suicide note. He has also collected

postmortem note and transcript of WhatsApp Chats

between the deceased victim and the applicant and

recorded relevant statements of witnesses and after

…..4/-

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completion of the investigation, submitted chargesheet

against the applicant.

5. After filing of the chargesheet, the case was

committed to the Court of Sessions. The applicant filed

an application below Exhibit-8 under Section 227 of the

Code for discharge contending that the entire

investigation papers nowhere reveal that in what

manner, he had abetted the deceased victim to commit

suicide. Breaking of the relationship is not sufficient to

show that he has abetted the deceased victim to commit

suicide. There should be a direct proximity between

abetment and act of commission of suicide. Thus,

offence is not made out against him and, therefore, he

claimed discharge. Learned Sessions Judge, Khamgaon

rejected the application by observing that her suicide

note reflects that she was in relationship with the

…..5/-

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applicant for nine years. The deceased victim has

narrated the entire affair of behaviour of the applicant.

The material available on record is sufficient to frame

charge against the applicant and rejected the application.

Hence, this revision.

6. Learned counsel for the applicant submitted that

admittedly, there was love affair between the deceased

victim and the applicant and due to some reasons, the

said relationship came to an end. From the suicide note

also, nowhere it reflects that what actually act or

instigation was on the part of the applicant due to which

she has committed suicide. The WhatsApp Chats show

that she was in communication with the applicant and

from the WhatsApp chats, it reveals that physical

relationship was out of consent. The communication

dated 3.12.2020 reflects that she has expressed her

…..6/-

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apology for everything to the applicant. Thus, no

positive act or action was on the part of the applicant to

abet her to commit suicide. She has committed suicide

on 3.12.2020. Prior to four months of the said incident,

the said relationship was broken. So, there is no close

proximity as to the act of the suicide. He submitted that

even WhatsApp Chats show that the deceased victim and

the applicant were intending to perform marriage, but

due to some reasons, the said relationship was broken

and, thereafter, from June 2020 till October 2020, there

was communication between the deceased victim and the

applicant. He submitted that now law is settled as far as

the abetment is concerned. In catena of decisions,

principle is laid down that to attract Section 306 of the

Indian Penal Code, two basic ingredients that an act of

suicide by one person and abetment by another person

are to be established. In order to sustain a charge under

…..7/-

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Section 306 of the Indian Penal Code, it must necessarily

be proved that the accused person has contributed to the

suicide by the deceased by some direct or indirect act.

Abetment involves a mental process of instigating or

intentionally aiding another person to do a particular

thing. To bring a charge under Section 306 of the Indian

Penal Code, the act of abetment would require the

positive act of instigating or intentionally aiding another

person to commit suicide. Without such mens rea on the

part of the accused person being apparent from the face

of the record, a charge under the aforesaid Section

cannot be sustained. In view of that, the order passed by

learned Sessions Judge, Khamgaon deserves to be

quashed and set aside.

7. In support of his contentions, learned counsel for

the applicant placed reliance on following decisions:

…..8/-

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1. SLP (Cri.) Diary No.39981/2022 (Prabhu vs.
The State represented by the Inspector of Police
and anr) decided by the Hon’ble Apex Court on
30.1.2024;

2. Prakash and ors vs. State of Maharashtra and
anr, reported in 2024 SCC OnLine SC 3835;

3. Jayedeepsinh Jayedeepsinh Chavda and ors vs.
State of Gujarat, reported in 2024 SCC OnLine Sc
3679;

4. Criminal Appeal No.654/2017 (Nipun Aneja
and ors vs. State of Uttar Pradesh) decided by the
Hon’ble Apex Court on 3.10.2024;

5. GEP Vargjese vs. State of Rajasthan and anr,
reported in (2021)19 SCC 144, and

6. Lata w/o Pramod Dangre vs. State of
Maharashtra and anr, reported in 2022 SCC
OnLine Bom 2840.

8. 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. Overall material shows that the

…..9/-

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applicant created certain circumstances which compelled

the deceased victim to commit suicide. The WhatsApp

Chats and statements of witnesses show psychological

condition of the deceased victim. At the stage of framing

of charge, the court is required to evaluate the material

and documents on record with a view to find out if the

facts emerging therefrom taken at their face value

disclose existence of ingredients or not. Thus, at this

stage, the material collected during investigation is

sufficient to frame the charge and, therefore, no

interference is called for.

9. Before entering into merits of the case, it is

necessary to see what are considerations for considering

the application for discharge.

10. It is a settled principle of law that at the stage of

considering an application for discharge, the court must

…..10/-

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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:

…..11/-

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“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

…..12/-

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an order of discharge. It is trite that at the
stage of 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

…..13/-

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can frame the charge; though for conviction,
the court has to come to the conclusion that
the accused has committed 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

…..14/-

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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 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

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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.

(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

…..16/-

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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 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.”

…..17/-

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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 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.

…..18/-

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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.

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

…..19/-

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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 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.

…..20/-

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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 victim and the applicant were having long

standing relationship. The suicide note also reflects the

nature of relationship which the applicant and the

deceased were having. As far as allegations of the

prosecution are concerned, that there was a promise to

marriage and on the promise of marriage the deceased

victim was subjected for physical relationship, material

document is the WhatsApp Chats between the deceased

victim and the applicant. Perusal of the WhatsApp Chats

reveals that it was the deceased victim who was

intensively eager to perform the marriage with the

applicant. It reveals from the Chats that both family

members were visiting to each other’s house and the

deceased victim was attracted towards the applicant. It

…..21/-

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further reveals that they also developed the physical

relationship between them and the said relationship was

continued for nine years. As far as promise of marriage

is concerned, the entire Whatsapp Chats nowhere reflect

that the applicant has promised her for marriage and on

the promise of marriage subjected her for the physical

relationship. On the contrary, the said WhatsApp Chats

Show that by consent of the deceased victim, the said

physical relationship was developed between them and

subsequently due to some reasons, the said relationship

was broken. It reveals from the WhatsApp Chats that

some discord took place between them in the month of

June 2020. WhatsApp Chat dated 5.7.2020 shows that

there was some discords occurred between them.

Thereafter, there was a communication, but the said

communication nowhere reflects regarding their physical

relationship. Thus, it is apparent that the physical

…..22/-

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relationship was continued upto July 2020 and,

thereafter, the said relationship had some issues and it

appears to be broken. Thereafter, approximately after

five months, the deceased victim had committed suicide.

Recital of the suicide note also reflects that they were in

relationship for nine years. It also nowhere states that

the applicant had developed physical relationship with

the deceased victim on the promise of marriage. On the

contrary, it shows that it was consensual relationship and

continued for nine years as one girl with whom the

applicant had a communication and, therefore, the

relationship was broken. As far as allegations, that the

applicant has developed relationship with the other girl,

who initially was co-accused against whom First

Information Report is quashed, are not supported by any

evidence.

…..23/-

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16. 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?

17. 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.

18. Section 107 of the Indian Penal Code (Section 45

of the Bharatiya Nyaya Sanhita, 2023) defines abetment

of a thing, which reads thus:

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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
abets by instigation the apprehension of C.

…..25/-

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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.

19. 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

…..26/-

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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.

Illustrations

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(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,

…..28/-

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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.

…..29/-

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Illustration

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

…..30/-

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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.

20. 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

…..31/-

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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.

21. 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.

22. 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

…..32/-

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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.

23. In the case of Prabhu vs. The State represented by

the Inspector of Police and anr, relied by learned counsel

for 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:

…..33/-

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“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:

“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

…..34/-

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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.”

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]

…..35/-

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340 cra174.24

35

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.

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.

…..36/-

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340 cra174.24

36

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 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

…..37/-

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340 cra174.24

37

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

…..38/-

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340 cra174.24

38

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 or aid in the commission
of suicide by the deceased.”

…..39/-

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340 cra174.24

39

24. 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 appellant

had used abusive language against said Chander

…..40/-

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340 cra174.24

40

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.”

25. Thus, a direct influence or an oblique impact with

the acts or utterances of the accused caused or created in

…..41/-

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41

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.

26. The Hon’ble Apex Court in case of Ramesh Kumar

vs. State of Chattiness, reported in AIR 2001 SC 383

…..42/-

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42

referred in Prabhu vs. The State represented by the

Inspector of Police and anr supra, relied upon by learned

counsel for the applicant, in para No.20 has examined

different meaning of ‘instigation’, which reads 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

…..43/-

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340 cra174.24

43

the consequences to actually follow cannot be said to be

‘instigation’.

27. 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 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.

28. 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

…..44/-

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44

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.”

29. 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 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

…..45/-

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45

an act of instigation or by doing certain act to facilitate

the commission of suicide.

30. Applying the above principles to the facts of the

present case and even accepting the case as it is, it

reveals that there was a long standing relationship

between the applicant and the deceased victim. There is

nothing on record to show that it was based on the

promise of marriage. The physical relationship over a

considerable period of time was out of mutual love and

by consent of the deceased victim. The communication

between both of them shows that it was a cordial

relationship till June 2020. Subsequently, there appears

to be some discords between them. The communication

between the deceased victim and the WhatsApp Chats

took place in the month of July 2020 show that the

applicant specifically stated to her during the telephonic

…..46/-

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46

communication at 11:31 pm that henceforth we can be

friends and nothing else. But, it reveals that it was the

deceased victim who was insisting him for the sexual

relationship to which the applicant denied. Thus, the

communication shows that the relationship was broken

in July 2020 and the deceased victim has committed

suicide on 3.12.2020.

31. As observed by the Hon’ble Apex Court in the case

of Prabhu vs. The State represented by the Inspector of

Police and anr supra, broken relationships and heart

breaks are part of everyday life. It could not be said that

the appellant by breaking up relationship and by advising

her to marry in accordance with the advice of her

parents, as he himself was doing, had intended to abet

suicide and, therefore, the offence under Section 306 of

the Indian Penal Code is not made out. It is further

…..47/-

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47

observed 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. This aspect is recently

considered by the Hon’ble Apex Court in the case of

Kamaruddin Dastagir vs. State of Karnataka, reported in

MANU/SC/1266/2024 and the Hon’ble Apex Court has

extensively dealt with provisions under Section 306 of

the Indian Penal Code and 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

…..48/-

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48

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 simply refused to

marry the deceased and thus, even assuming there was

love between the parties, it is only a case of broken

relationship which by itself would not amount to

abetment to suicide.

32. On examination of the instant case on the

touchstone of the principles laid down by the Hon’ble

Apex Court, the exhaustive suicide note written by the

…..49/-

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49

deceased victim and the transcript of the Whatsapp Chats

between the deceased victim and the applicant reveal

that love relationship was developed between them and

out of the same, there was consensual relationship

between them. The suicide note or WhatsApp Chats

nowhere disclose that the said physical relationship was

developed on the promise of marriage. The said

relationship was broken between them. Thus, it is the

case of only broken relationship. Moreover, the suicide

by the deceased victim is not immediate result of the said

broken relationship. The applicant denied to have love

relationship with her in July 2020 itself and, thereafter,

the deceased victim committed suicide on 3.12.2020.

Thus, there was no proximity or nexus between two acts

i.e. breaking of the relationship and the suicide. It is

only a case of broken relationship which by itself would

not amount to abetment to commit suicide. As far as

…..50/-

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50

investigation papers are concerned, it nowhere reveals

that the applicant, at any time, provoked the deceased

victim in any manner to kill herself. On the contrary, the

evidence shows that after breaking of the relationship,

the deceased victim was constantly in contact with the

applicant and was communicating with him. Therefore,

in such a situation, merely because the applicant refused

to marry her, that by itself would not amount to instigate

or provoke the deceased victim to commit suicide. At the

most, what is attributable to the applicant is that he has

broken the relationship.

33. 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.

…..51/-

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51

34. 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

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

…..52/-

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52

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.

35. In this view of the matter, the criminal revision

application deserves to be allowed. Hence, I proceed to

pass following order:

ORDER

(1) The Criminal Revision Application is allowed.

(2) The order dated 17.5.2024 passed below Exhibit-8 by

learned Additional Sessions Judge, Khamgaon in Sessions

Case No.78/2021 rejecting the discharge application is

quashed and set aside.

…..53/-

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53

(3) The applicant is hereby discharged of offence

punishable under Section 306 read with 34 of the Indian

Penal Code in connection with Crime No.486/2020 and

Chargesheet No.33/2021 registered by the Shegaon

Police Station, district Buldana.

The Criminal Revision Application stands disposed

of.

(URMILA JOSHI-PHALKE, J.)

!! BrWankhede !!

Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge …../-
Date: 16/01/2025 14:32:10