The main legal point established in the judgment is that to constitute the offence of abetment of suicide under Sec. 306 of the Indian Penal Code, there must be a clear mens rea and a positive act on the part of the accused to instigate or aid in committing suicide.

JUDGMENT

REVATI MOHITE DERE,J. - Heard learned Counsel for the parties.

2. Rule. Rule is made returnable forthwith, with the consent of the parties and is taken up for final disposal. Learned APP waives notice on behalf of the respondent No.1-State.

3. By this application, preferred under Sec. 482 of the Criminal Procedure Code, the applicant seeks quashing of the FIR, registered vide C.R.No.I-221 of 2019 with the Rabale Police Station, Navi Mumbai, for the alleged offence punishable under Sec. 306 r/ w 34 of the Indian Penal Code.

4. The facts, as are necessary, to decide this application are as under;

According to the first informant "" Suresh Sharma (father of the deceased), his son was studying in the 3rd year and daughter "" Priya (deceased aged 18 years 2 months) was taking external tuitions for standard 12th; that his daughter would go for tuitions at 6.00 p.m. and return at 9.30 p.m. The first informant has alleged that on 6/8/2019, his son and daughter "" Priya were at home, when the applicant's father came home and scolded his daughter "" Priya; that after some time, his son realised that Priya was not at home, and hence, he started looking out for her in the vicinity; as Priya could not be traced, his son went back home and checked her books and while going through one of the books, found a note written by Priya. The first informant has alleged that in the said book, Priya had written that she was in a relationship with a boy "" Adarsh (co-accused) and that he was bad and that "Pawanbhaiya' (applicant) is also bad. Priya has further written that she was going to commit suicide. According to the first informant, when he returned home and on seeing the note, he informed the police, pursuant to which, a missing complaint was lodged with the police. According to the complainant, whilst searching for Priya, he learnt that Priya's friend "" Adarsh Upadhyay was troubling her and that Pawan Sharma (applicant) was also instigating Adarsh. On 12/8/2019, Priya's body was found under the railway bridge between Rabale and Ghansoli station. Pursuant thereto, the aforesaid FIR was lodged as against the Adarsh Upadhyay and the applicant. After investigation, chargesheet was filed as against the applicant and co-accused "" Adarsh.

5. Learned Counsel for the applicant submits that taking the prosecution case as it stands, no offence as alleged under Sec. 306 is disclosed qua the applicant. He submits that even the suicide note, if taken at its face value, does not disclose the ingredients necessary to constitute the alleged offence under Sec. 306 of the Indian Penal Code.

6. Learned APP opposes the application.

7. Perused the papers with the assistance of the learned Counsel for the parties. The short question that arises for consideration is, whether after taking the prosecution case as it stands, an offence under Sec. 306 is disclosed qua the applicant? The essential / main evidence on which, reliance is placed by the prosecution is a suicide note written by Priya. In the said suicide note, Priya has essentially stated as under;

"........ that her fault was to love Adarsh, however, Adarsh cheated her and hence Adarsh was not a good boy; that Pawanji (applicant) was also bad; that she loved her father; that Adarsh be told not to do the same with any other girl....."

8. In order to consider whether sec. 306 would apply to the facts in case, one would have to consider whether the essential ingredients of Sec. 107 of the Indian Penal Code are disclosed. Hence, it would be apposite to reproduce Ss. 306 and 107 of the Indian Penal Code. The same read as under;

"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"

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 w