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NEUTRAL CITATION R/CR.MA/4597/2016 CAV JUDGMENT DATED: 04/04/2024 undefined The complainant is not the eye-witness. One of the applicants is a teacher and another is a trustee of the school where the deceased was studying. Learned Senior Advocate Mr. Pandya further submitted that for the sake of arguments without admitting it, if the allegations/accusations levelled against the applicant are to be considered as true and genuine, even though the FIR prima facie fails to establish the basic and essential ingredients of Section 306 IPC. Learned Senior Advocate Mr. Pandya further submitted that as per the case of the prosecution, the so-called incident took place due to solitary incident occurred within the school premises between the students and teacher and by no stretch of imagination it can be said that the act of the applicant would fall under the category of aiding or instigating the deceased to commit suicide. It is settled proposition of law and in numerous case laws, the Hon'ble Supreme Court as well as different High Courts have held that for the purpose of attracting the ingredients of provisions of Section 306 IPC, the first and foremost condition which is required to be satisfied is that there must be instigation in some form on the part of the accused which ultimately led the deceased to commit the suicide. Admittedly, from bare perusal of the contents of the FIR, it clearly goes on to show that there was no aid or instigation on the part of the present applicant which led the deceased to commit suicide. Learned Senior Advocate Mr. Pandya further submitted if the sequence of NEUTRAL CITATION R/CR.MA/4597/2016 CAV JUDGMENT DATED: 04/04/2024 undefined events mentioned in the FIR is accepted as it is without admitting it, even though, it fails to establish the basic ingredient of commission of crime i.e. 'mens rea'. Learned Senior Advocate Mr. Pandya further submitted that there was no intention on the part of the present applicant accused to aid and/or instigate the deceased to commit suicide and it is within the knowledge of one and all that for the purpose of attracting the provisions of Section 306 IPC, the act of the instigation must be of such intensity that it is intended to push the deceased to such a position under which he or she has left with no choice except to commit suicide and such instigation must be in a close proximity to the act of committing suicide. Learned Senior Advocate Mr. Asim Pandya further submitted that on the ground of absence of essential intention of commission of crime i.e. 'mens rea' even in the cases where the deceased have purportedly written suicide note by specifically alleging against the concerned accused persons, however, in absence of aid and/or instigation on the part of the accused which ultimately drives the deceased to commit suicide, the Hon'ble Apex Court has quashed number of FIRs, whereas in the instant case, no suicide note is written by the deceased inter alia alleging any aid and/or instigation on the part of the present applicant which led the deceased to commit suicide.

19. In the case of M. Arjunan Vs. State, Represented by its Inspector of Police4 , a two- Judge Bench of this Court has expounded the ingredients of Section 306 IPC in the following words:-

"The essential ingredients of the offence under Section 306 I.P.C. are: (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied, accused cannot be convicted under Section 306 I.P.C."

12. In the facts of the present case, clause secondly and thirdly in Section 107 will have no application. Now, the question remains is as to whether the applicants instigated the deceased to commit suicide. To attract the first clause, there must be instigation in some form on the part of the accused to cause the deceased to commit suicide. Hence, the accused must have 'mens rea' to instigate the deceased to commit suicide. The act of instigation must be of such intensity that it is intended to push the deceased to such a position under which he or she has no choice but to commit suicide. Such instigation must be in close proximity to the act of committing suicide. In the present case, taking the contents of the FIR and the statements of the witnesses as correct, it is impossible to conclude that the applicants instigated the deceased to commit suicide by way of so-called humiliation meted out to the deceased. By no stretch NEUTRAL CITATION R/CR.MA/4597/2016 CAV JUDGMENT DATED: 04/04/2024 undefined of the imagination, the alleged acts of the applicants can amount to instigation to commit suicide.

15. Having regard to the provisions of Sections 107 and 306 of the Indian Penal Code and the principle laid down by the Supreme Court in various decisions referred to in the case of Lalitbhai Vikramchand Parekh (supra), it is apparent that in a case under Section 306 of the Indian Penal Code, there should be correct mens rea to commit the offence under this section and there should be direct and active role by the accused, which led the deceased to commit the suicide, that is to say that there cannot be same evidence of "instigation" or "initial assistance" by the accused to commit suicide by the victim/deceased.