The necessity of establishing mens rea and a positive act to sustain a conviction under Section 306 of the IPC, and the requirement that the accused's act must have pushed the deceased into a position where suicide was the only option.

ORDER

1. This petition under Section 482 of the Code of Criminal Procedure has been preferred by the petitioner/accused for quashing the FIR registered vide Crime No.110/20221 at Police Station Nalkheda, District Agar Malwa on 17.04.2022, the final chargesheet dated 22.07.2022 against him for alleged offences punishable under Sections 420, 306 and 34 of the IPC and all consequential proceedings. Learned counsel for the petitioner submits that he is pressing this petition only in so far as the offence punishable under Section 306 of the IPC is concerned.

2. As per the prosecution, a written complaint was lodged by certain persons against Dinesh, Rajesh and Padmadevi to the effect that they have taken the crops of the farmers and have kept it in their godown and are not making payment of the same. The deceased Laxminarayan was one of the complainant. Upon the complaint the persons who had allegedly kept the crops in the godown were called and during conversation it appeared to Laxminarayan that he is not going to get back his money and he got highly disturbed due to the same and went home and committed suicide on 27.04.2022 by consuming a poisonous substance. He was taken to the hospital but was declared dead. On the death upon furnishing of the intimation, merg was registered and investigation was commenced, upon completion of which the applicant has been implicated and arrested for the present offence.

3. Learned counsel for the petitioner submits that the petitioner is innocent and has falsely been implicated in the case. The entire allegations as leveled against the petitioner even if taken to be true at their face value do not amount to an offence punishable under Section 306 of the IPC. There is no allegation against the petitioner of either instigating or abetting the deceased in any manner to commit suicide and it cannot be said that due to act of the petitioner, the deceased had no other option but to commit suicide. He had various other legal remedies available to him. The act alleged against the petitioner is only to the effect that he was one of the accused who had taken the crops of the deceased and had kept it in his godown and was not making payment of the same. The same cannot in any manner be said to be abetment or instigation or even a remote cause for the deceased to commit suicide. It is hence submitted that the FIR registered against the petitioner be quashed.

4. Per contra learned counsel for the respondent/State has submitted that there is sufficient material available on record to proceed against the petitioner and it cannot be said that no offence whatsoever is made out in view of which the petition deserves to be dismissed.

5. I have heard learned counsel for the parties at length and have perused the record.

6. Section 107 of the IPC makes it obligatory for the prosecution to show and establish the elements of instigation. The Apex Court in the case of Sanju @ Sanjay Singh Senger V/s. State of M.P., AIR 2002 SC 1998 has opined as under :-

'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 inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or on the spur of the moment cannot be taken to be uttered with mens rea it is in a fit of anger and emotion.'

7. In the case of Sanju @ Sanjay (supra) the accused allegedly told the deceased "to go and die". Yet Apex Court opined that it does not constitute the ingredient of "instigation". In the instant case if story of the prosecution is read and believed as such it would be clear that the petitioner did not in any manner instigate the deceased to commit suicide. There is no element of "incitement" or "instigation" on his behalf. Thus Section 306 of the IPC is no