1 2025:CGHC:13836 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1724 of 2024 Manish Gawale S/o Late Arun Gawale, Aged About 29 Years R/o Village Dharampura No. 1, Near Kailash Hotel, Police Station Kotwali, District Bastar, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Police Station Frejarpur, Jagdalpur, District Bastar, Chhattisgarh. ... Respondent For Appellant : Shri R.K. Jain and Smt. Kiran Jain, Advocates. For Respondent/State : Ms. Sunita Sahu, PL. Hon'ble Shri Justice Arvind Kumar Verma Judgment On Board 22/03/2025 1. This appeal has been preferred by the appellant/accused being aggrieved with the judgment of conviction and order of sentence dated 07/08/2024 passed by the Sessions Judge, Bastar at Jagdalpur (C.G.) in Sessions Case No.77/2023, whereby the trial Court has convicted and sentenced the appellant as under : GOURI MUDALIAR Digitally signed by GOURI MUDALIAR Date: 2025.04.04 11:13:24 +0530 2 Conviction Sentence Under Section 306 of the IPC. RI for 05 years and fine amount of Rs.500/-, in default of payment of fine, to undergo Additional RI for 02 months. 2. Case of the prosecution, in brief, is that, informant Lurika Thakur went to the police station and registered the merg intimation to the effect that the deceased Poonam Mishra was posted as a Security Guard in Dimrapal Medical College. On 12.08.2023, her duty was from 08:30 pm to 07:00 am on 13.08.2023. Around 12:00 pm, the boyfriend of the deceased Poonam Mishra i.e. Manish Gawale/appellant reached the medical college Dimrapal and an argument started between them and the deceased left with her boyfriend in anger, she was tried to stop by other staff members but she did not stop and went away. After some time, the deceased's boyfriend Manish Gawale and the house owner Kanchan Nag brought Poonam to the hospital for treatment, during which Poonam's boyfriend Manish Gawale told him that Poonam had hanged herself, the doctor checked her and told that Poonam Mishra was dead. 3. On 13/08/2023, Sub-Inspector Smt. Shail Pawar (PW-13), posted at Police Station Frejarpur (Parapa), proceeded to Chowki Dimrapal and registered Merg No. 99/2023 under Section 174 of CrPC vide Ex.P- 06. A complaint was issued and sent to the Head of Department, Forensic Medicine Department, Dimrapal, Jagdalpur, for the formation of a team of doctors to conduct the post-mortem examination of the deceased, Poonam Mishra. The carbon copy of the complaint is Ex.P-13. A notice, Ex. P-01, was issued to witnesses for preparing the Naksha Panchayatnama under Section 175 CrPC. The map of the 3 deceased's body was prepared in the presence of witnesses vide Ex.P-02. The body of the deceased was sent to Medical College Dimrapal, Jagdalpur, along with a written complaint. A duty certificate, Ex. P-14, was issued in favor of Female Head Constable Nupur Bharti (No. 1071) and sent to Medical College Dimrapal. Dr. Jitesh Kumar Soni and Dr. Mrs. Pankaja Bhagat conducted the post-mortem examination and submitted their report vide Ex. P-09, which stated that the cause of death was "hanging" and the nature of death was suicide. Sub-Inspector Smt. Shail Pawar (PW-13) handed over the body to the brother of the deceased for the last rites vide Ex.P-15. During the inquest, statements of witnesses Vijay Mishra, Mrs. Rameshwari Nag, and Lurika Thakur were recorded. On 14/08/2023, Sub-Inspector Smt. Shail Pawar (PW-13) registered Crime No. 211/2023 against the accused, Manish Gawale and filed an FIR vide Ex.P-16. The accused was taken into custody and his memorandum statement vide Ex.P-03, was recorded. An ATM card and cash amounting to Rs. 3,450 were seized from the accused and a seizure memo, Ex.P-04 was prepared. On 15/08/2023 Sub-Inspector Smt. Shail Pawar (PW-13) visited the scene of the incident and prepared a site plan, Ex. P-10. The Tehsildar, Tokapal, was sent a letter, Ex.P-18 and the Patwari, Dinesh Singh, prepared the site plan and panchanama vide Ex.P-11, along with his report, Ex.P-12. 4. After completing the investigation, the final report was submitted to the Judicial Magistrate First Class, Jagdalpur, on 11/10/2023. A charge sheet was filed against the accused, Manish Gawale, under Section 306 of the Indian Penal Code. 4 5. In order to bring home the offence, the prosecution examined as many as 13 witnesses. Statement of the appellant under Section 313 of the Cr.P.C. was recorded, wherein he pleaded innocence and false implication. 6. After completion of the trial, the trial Court convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal. 7. Learned counsel appearing for the appellant contended that the trial Court has wrongly convicted the appellant without there being any sufficient evidence available on record against him. He further contended that the trial court ought to have come on determined conclusion whether any offence u/s 306 of I.P.C. is made out against the appellant or not. As a matter of fact all the requisite ingredients are found missing to constitute an offence u/s. 306 of I.P.C. He further contended that there is no evidence available on the record to suggest that the suicide committed by the deceased Poonam Mishra was due to any abetment by the appellant. He further contended that the trial court should have considered the fact and circumstances present in this case in which it is clearly found that there was neither any torture or cruelty done by the appellant. He would further submit that Nikita Mishra (PW-1) who is bhabhi of the deceased, she stated in her cross- examination that from her mother-in-law she came to know the fact that the accused/appellant abused the deceased, beat her and demanded money from her. He would submit that the appellant is in jail more than 1 ½ years. He would submit that there is no ingredients of 107 IPC. On the basis of these grounds, the appellant may be acquitted from the 5 charge levelled against him and judgment of conviction and order of sentence is liable to be set aside. 8. On the other hand, learned Counsel appearing for the State opposed the argument advanced by learned Counsel for the appellant and submitted that on appreciation of the evidence available on record, the trial Court has rightly convicted and sentenced the appellant. Hence, the judgment passed by the learned trial Court needs no interference. 9. I have heard learned Counsel appearing for the parties, perused the impugned judgment, statement of witnesses including the evidence adduced by the prosecution before the trial Court with utmost circumspection. 10. The question in the present case is whether on considering the entire available material to be correct a prima facie case for alleged commission of offence under Section 306 of the Indian Penal Code is made out against the applicant/accused or not? 11. At this juncture, it is appropriate to look into the provisions of Sections 306 and 107 of the Indian Penal Code, which run 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. 107. Abetment of a thing.- A person abets the doing of a thing, who - First.- Instigates any person to do that thing; 6 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 willful misrepresentation, or by willful 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. 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 facilitate the commission thereof, is said to aid the doing of that act.” 12. As per the definition given in Chapter-V of Section 107 of the Indian Penal Code, and abetment is constituted by any one of the following three ingredients: I. it is necessary for the prosecution to prove that the accused aided, abetted, counselled or procured the commission of the principal offence; II. that the principal offence was in fact committed; and III. that he had the intent to aid or encourage its commission. 13. A person is said to “instigate” another to an act, when he actively suggests or stimulates him to the act by any means of language direct or 7 indirect whether it takes the form of express solicitation or of hints, insinuation or encouragement. The word “instigate” means to goad, urge forward, provoke, incite or encourage to do an act. 14. As Section 306 of the Indian Penal Code makes abetment of commission of suicide punishable, therefore, for making liable for an offence punishable under Section 306 of the Indian Penal Code, it is the duty of the prosecution to establish that such person has abetted the commission of suicide and for the purpose of determining the act of the accused, it is necessary to see that his act must fall in any of the three ingredients as enumerated under Section 107 of the Indian Penal Code and, therefore, it is necessary to prove that said accused has instigated the person to commit suicide or must have engaged with one or more persons in any conspiracy for seeking that the deceased commits suicide or he must intentionally aid by any act or illegal commission of the suicide by the deceased. 15. In the case of Ramesh Kumar vs. State of Chhattisgarh reported in (2001) 9 SCC 618, it has been observed by the Supreme Court as under: “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 8 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. 21. In State of W.B. v. Orilal Jaiswal, (1994) 1 SCC 73, this court has cautioned that the court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for purpose of finding whether the cruelty meted out to the victim had in fact induced her end her life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.” 16. Dealing with the issue it has been observed by Hon’ble Supreme Court in the case of Gangula Mohan Reddy v. State of Andhra Pradesh reported in 2010 CRI. L.J 2110 that : “18. In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day-to-day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation. 19. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) 2009 (11) SCALE 24, had an occasion to 9 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 self esteem and self respect. Therefore, it is impossible to lay down any straightjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances. 20. 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.” 17. In the case of M. Mohan vs. State represented by Deputy Superintendent of Police reported in (2011) 3 SCC 626, the Supreme Court, by the following observation, has clearly held that in order to convict a person under Section 306 of the Indian Penal Code there has to be a clear mens rea to commit the offence: “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.” 18. In the light of aforesaid enunciation of law, the facts of the present case are to be examined. 10 19. It is not in dispute that the accused/appellant was the lover of the deceased and used to stay in the rented house of the deceased. 20. With regard to the incident, the prosecution has examined Smt. Nikita Mishra (PW-1) bhabhi of the deceased, Smt. Pramila Mishra (PW-2) mother of the deceased, Sonu Mishra (PW-3), Vijay Mishra (PW-4), Rameshwari Sethiya, Security Guard (PW-5), Female Constable Nupur Bharti (PW-6), Dr. Jitesh Kumar Soni (PW-7), Smt. Kanchan Nag (PW- 8), Dinesh Singh, Patwari (PW-9), Smt. Vandana Singh (PW-10), Lurika Thakur (PW-11), Dr. Smt. Pankaja Bhagat, PGMO (PW-12) & Smt. Shail Pawar, Sub Inspector (PW-13). 21. Smt. Nikita Mishra (PW-1) stated that her female friend Kiran, who works at Dimrapal, informed her that the accused would frequently visit the deceased, Poonam, and abuse her with filthy language, physically assault her, and take her ATM card. The accused would also demand money from Poonam and consume liquor, and if she refused, he would assault her. The witness further stated that the owner of the house where Poonam lived on rent had also informed her about the accused's violent behavior towards Poonam. The witness's mother-in-law had informed her about the accused's abuse, physical assaults, and financial demands from Poonam. 22. Smt. Pramila Mishra (PW-2) the mother of the deceased, stated that her daughter, Poonam Mishra, lived with the accused. She had advised the accused and his parents to leave Poonam alone, as she was a widow with a child. However, the accused and his family responded by saying, "Do whatever you want." Although this witness claimed that the 11 accused strangulated her daughter to death, there is no other evidence to support this claim. In cross-examination, the witness stated that the accused had taken Poonam's mobile phone, ATM card, and money before the incident. However, she failed to explain why she did not mention this to the police earlier. Furthermore, the witness acknowledged that she had not personally witnessed any disputes or physical altercations between her daughter and the accused. 23. Rameshwari Sethiya (PW-5) used to work as a security guard with the deceased. She has stated that the accused was the lover of the deceased and used to stay in the rented house of the deceased. She has also accepted that even before the incident, there was a dispute between the accused and the deceased in a mobile conversation which she had heard. This witness has further accepted that on the date of the incident, she was on duty with the deceased in Dimrapal Medical College. She has also admitted that at 12:30 a.m. on the night of the incident, the accused came to the deceased near the labour room and started quarreling with her. This witness has also admitted that the deceased asked the accused to leave the place and also said that if he does not leave, she will lose her job. This witness has also admitted that when the accused did not leave the place, the deceased got angry and threw her mobile phone on the floor and brought her bag from the staff room and slapped the accused and also said to the accused that "You will ruin my life", saying this she started coming down the stairs from the fourth floor to the ground floor. This witness has also accepted that during that time the deceased's foot hit the accused's foot and she fell on the floor and she got up and started going towards her house, the 12 accused also started following her, then the Medical College Supervisor and the staff present on duty stopped the deceased from leaving the duty, but she went home alone. This witness has also accepted that at 02:13 in the night, Deepika called her and told that Poonam has been brought to the casualty in an unconscious state by her boyfriend, the accused and the landlady. When she went to see, Poonam was being treated, after some time she got the information that Poonam had died. 24. The two doctors, Dr. Jitesh Kumar Soni (PW-7) and Dr. Pankaja Bhagat (PW-12), who conducted the post-mortem examination of the deceased, have stated that the body was brought to the medical college at Dimrapal on 13th August 2023. After identification by the relatives, the post-mortem examination was conducted at 1:40 pm on the same day. Both doctors have provided detailed statements regarding the post- mortem examination. They have stated that there were ligature marks on the neck of the deceased, which were oblique and upward, with a base that was pale in color. The surface of the mark was hard and layered, measuring 9 x 1.5 cm. The mark was located 6 cm below the chin and 10 cm above the sternal notch, and 4 cm below the lower edge of the right ear. Additionally, there were scratches on the neck, which were reddish-brown in color, and a triangular-shaped scratch on the chest, which was also reddish-brown. There was also a contusion on the right forearm, which was reddish-blue in color, and multiple scratches on the inner side of the left forearm. Both doctors have stated that they conducted an internal examination of the body and collected various samples, including nail clippings, blood-stained gauze, and viscera, which were sealed and sent to the FSL for analysis. The opinion of both 13 doctors was that the cause of death was hanging, and the nature of death was suicidal. Their post-mortem examination report is exhibited as Ex.P-9, which bears their signatures. They opined that the reason for death of the deceased is hanging. The nature of death is suicide. 25. Considering the statements of Nikita Mishra (PW-1) bhabhi of the deceased, Smt. Pramila Mishra (PW-2) the mother of the deceased & Rameshwari Sethiya (PW-5) who used to work as a security guard with the deceased and other material available on record, in the considered view of this Court, this particular reason cannot be constituted for the offence punishable under Section 306 of the IPC against the appellant for his guilt. The act and conduct of the appellant as stated by the above mentioned witnesses does not fall within the manner of instigation or abetment as defined under Section 107 of the IPC. 26. In case of Kumar @ Shiva Kumar Vs. State of Karnataka reported in 2024 SCC Online SC 216, the Hon’ble Supreme Court reiterated that to convict the accused for committing the offence of abetment to suicide under Section 306 of the IPC, it must be proved by the prosecution that the accused, by his acts or omission or by a continued course of conduct, created situation that the deceased was left with no other option except to commit suicide. 27. Hon’ble Supreme Court in the case of Jayedeepsinh Pravinsinh Chavda and others Vs. State of Gujarat reported in (2025) 2 SCC 116 held that prosecution must establish that the accused contributed to the act of suicide by the deceased and the prosecution also must 14 satisfy one of the three conditions outlined in section 107 IPC. 28. In this case, prosecution has failed to satisfy the conditions outlined in Section 107 IPC i.e. prosecution has failed to prove the instigation which encouraged the deceased to commit suicide. For offence under Section 306 of IPC there should be clear mens-rea to commit the abetment, mere harassment by itself is not sufficient and the prosecution must demonstrate an active or direct action by the accused that lead the deceased to take his/her own life. Intentionally aiding a person to do a thing also includes in abetment, but from the record it cannot be inferred that the appellant instigated or intentionally aided the deceased to commit suicide. 29. Thus, it is clear from the evidence of relevant witnesses that the prosecution has failed to prove this fact that any type of abetment was caused by the appellant under Section 107 of IPC and without positive act on the part of the accused to instigate at in committing suicide, conviction cannot be sustained. 30. It is very important fact that there is nothing to show that any type of instigation made by the appellant to the deceased. It also transpires from the record that there is nothing to show that the appellant intentionally adduced, by any act or illegal omission of doing that thing. 31. For the foregoing reasons, judgment of conviction and order of sentence dated 07/08/2024 passed by the Sessions Judge, Bastar at Jagdalpur (C.G.) in Sessions Case No.77/2023 is set aside. 32. Accordingly, the appeal is allowed and the appellant is acquitted of the 15 charge under Section 306 of the IPC. 33. It is stated that the appellant is in jail. He shall be released forthwith, if not required in any other case. 34. Let a copy of this judgment be sent to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Arvind Kumar Verma) Judge gouri