Bombay High Court
Pravin S/O Gyaniram Borkar vs The State Of Mah. Thr. Pso Ps Salekasa ... on 17 September, 2025
2025:BHC-NAG:9278-DB
28.apl.28.2023.judgment.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL) NO.28 OF 2023
1. Pravin s/o Gyaniram Borkar,
Aged about 39 Years,
Occupation : Service,
R/o C/o. Gyaniramji Borkar,
Gandhi Ward,
Near FCI Godam, Warthi,
Mohadi Bhandara - 441909
and presently residing
at Hariom Colony,
Near New Vivek Mandir School,
Gondia - 441916. .... APPLICANTS
// VERSUS //
1. The State of Maharashtra through
Police Station Officer,
Salekasa Police Station,
District Gondia.
2. Rameshwar s/o Chotelal Giriya,
Aged about 62 Years,
R/o Pandhari (Pauldauna),
Salekasa, District Gondia. .... NON-APPLICANTS
-------------------------------------------
Mr. Sameer Sonwane, Counsel for the applicant.
Mr. Shamshi Haider, APP for non-applicant No.1/State.
Mr. K. R. Bhise, appointed Counsel for non-applicant No.2.
-------------------------------------------
CORAM : URMILA JOSHI-PHALKE AND
NANDESH S. DESHPANDE, JJ.
RESERVED ON : 10.09.2025
PRONOUNCED ON : 17.09.2025
JUDGMENT :(PER : URMILA JOSHI-PHALKE, J.)
1. Admit.
2. Heard finally with the consent of the learned Counsel of the parties.
28.apl.28.2023.judgment.odt (2)
3. Present application is preferred by the applicant for quashing of the First Information Report in connection with Crime No.315/2021 registered at Police Station, Salekasa, District Gondia for the offence punishable under Sections 306, 506 and 507 of the Indian Penal Code and the proceeding Sessions Case No.43/2022 arising out of the said FIR pending before the District Judge - 1 and Additional Sessions Judge, Gondia.
4. Brief facts which are necessary for the disposal of the application are as under:
One Rameshwar Giriya lodged the report alleging therein that he is the father-in-law of the deceased. His son and the deceased were serving as Police Constables attached to the Police Station Salekasa. As per the allegations, deceased was having illicit relations with the present applicant and therefore, on 09.12.2021 she has committed suicide by hanging herself. It is alleged that due to the abetment at the hands of the present applicant on account of having illicit relations, she has committed suicide. On the basis of the said report, police have registered the crime against the present applicant.
5. During the investigation, the Investigating Officer has drawn the spot panchnama, collected the postmortem notes, and also drawn the panchnama as to the telephonic
28.apl.28.2023.judgment.odt (3) communication between the present applicant and the mother of the deceased and after completion of the investigation, submitted charge sheet against the accused/applicant.
6. Heard learned Counsel Mr. Sonwane for the applicant, who submitted that as far as the illicit relations are concerned, there is no material to show that there was any relationship between the deceased and the present applicant. Only because they were attached to the same Police Station as the applicant was serving as a driver on the police vehicle, he is implicated falsely in the alleged offence. He submitted that it was the present applicant, who removed the dead body of the deceased when she hanged herself, as he was residing opposite to the house of the deceased. He further 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 she has committed suicide. Even the communication between the present applicant and the mother of the deceased nowhere discloses that there were any illicit relations between the deceased and the present applicant and there was any positive act or action on the part of the applicant which drewing the deceased to commit suicide. He submitted that even accepting that there was an illicit relation, but there is no close proximity as to the act of suicide. Thus, even accepting the
28.apl.28.2023.judgment.odt (4) allegation 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 sections cannot be sustained.
7. In support of his contention he placed reliance on:
(1) Monika Vs. The State of Maharashtra and Ors. reported in Law Finder Doc ID#1998176, (2) Swamy Prahaladdas Vs. State of M. P. and another reported in 1995 Supp (3) SCC 438, (3) Madan Mohan Singh Vs. State of Gujarat and another reported in (2010) 8 SCC 628, (4) Patel Babubhai Manohardas and Ors Vs. State of Gujarat reported in (2025) LiveLaw (SC) 288, (5) Laxmi Das Vs. The State of West Bengal and Ors. in Criminal Appeal No.706/2017 decided on 21.01.2025.
(6) Vaibhav s/o Premanand Mawale Vs. State of Maharashtra in Criminal Revision Application No.174/2024 decided on 15.01.2025.
8. 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
28.apl.28.2023.judgment.odt (5) overall material shows that the applicant created certain circumstances which compelled the deceased to commit suicide. The mobile communication between the present applicant and the mother of the deceased shows the conduct of the present applicant. 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 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.
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.
28.apl.28.2023.judgment.odt (6)
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.
28.apl.28.2023.judgment.odt (7) 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.
28.apl.28.2023.judgment.odt (8)
(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.
28.apl.28.2023.judgment.odt (9)
(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. 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
28.apl.28.2023.judgment.odt (10) 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
28.apl.28.2023.judgment.odt (11) 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
28.apl.28.2023.judgment.odt (12) 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:
28.apl.28.2023.judgment.odt (13) "20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act".
To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."
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
28.apl.28.2023.judgment.odt (14) 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
28.apl.28.2023.judgment.odt (15) 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.
28.apl.28.2023.judgment.odt (16) 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 he was having illicit relations with the deceased. As far as the nature of the
28.apl.28.2023.judgment.odt (17) relationship between the deceased and the present applicant is concerned, except the statements of the relatives of the deceased, there is no other material collected during the investigation. Admittedly, the death of the deceased is caused due to Asphyxia due to hanging. Thus, the death admittedly is not a natural death. During investigation, the Investigating Officer has collected the mobile phone communication between the mother of the deceased and the present applicant. Even accepting the said communication as it is and even accepting the fact that there were illicit relations between the deceased and the present applicant, there is nothing on record to show that he has by any manner, abetted the deceased to commit suicide. No single instance is narrated by the witnesses to show that due to the some specific instances, there was no alternative before the deceased but to commit 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,
28.apl.28.2023.judgment.odt (18) 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 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.
19. 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
28.apl.28.2023.judgment.odt (19) 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.
20. 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, 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."
21. It is further held that "therefore, the crucial word in Section 306 IPC is 'abets'. 'Abetment' is defined in Section 107 of
28.apl.28.2023.judgment.odt (20) 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 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."
22. 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.
23. 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
28.apl.28.2023.judgment.odt (21) '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'."
24. 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
28.apl.28.2023.judgment.odt (22)
(ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above.
25. Applying the above principles to the facts of the present case and even accepting the case as it is, it reveals that the deceased and present applicant were working in the Salekasa Police Station. It is alleged that there were illicit relations between them, but except the bare words, no such instances are narrated by any of the witnesses to show that there were any illicit relations between the deceased and the present applicant. Even the communication between the mother of the deceased and the present applicant is taken as it is, it also nowhere discloses that there was any type of relationship between the deceased and the present applicant. 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 communication between the present applicant and the mother of the deceased nowhere it reveals that there was any type of illicit relationship between the deceased and the present applicant. Only thing reveals is that they both were working in the Police Station. Moreover, the suicide committed by the deceased victim is not immediate result of the said relationship, even if the allegation is accepted. Thus, there was no proximity or nexus between two acts i.e. the illicit
28.apl.28.2023.judgment.odt (23) relations between the victim and the present applicant and the suicide. Merely because, the present applicant was serving in the same Police Station where the deceased was serving and some suspicion was raised by the family members of the deceased is not sufficient to infer that out of illicit relationship the deceased has committed suicide.
26. 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.
27. In this view of the matter, the application deserves to be allowed. Hence, I proceed to pass following order:
ORDER
(i) The application is allowed.
(ii) First Information Report registered against the present applicant in connection with Crime No.315/2021 registered at Police Station Salekasa, District Gondia for the offence punishable under
28.apl.28.2023.judgment.odt (24) Sections 306, 506 and 507 of the Indian Penal Code and Charge Sheet No.17/2022 in Sessions Case No.43/2022 arising out of the said First Information Report pending before the District Judge - 1 and Additional Sessions Judge, Gondia are hereby quashed.
The application is disposed of in the aforesaid terms. (NANDESH S. DESHPANDE, J) (URMILA JOSHI-PHALKE, J) Sarkate.
Signed by: Mr. A.R. Sarkate Designation: PA To Honourable Judge Date: 18/09/2025 17:18:44