( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 154 OF 1998 Ravindra Kondaji Gadge, R/o Borban, Tq. Sangamner, District Ahmednagar APPELLANT VERSUS The State of Maharashtra RESPONDENT .... Mr. I.S. Thorat, advocate holding for Mr. S.K. Shinde, advocate for the appellant. Mr. D.V. Tele, A.P.P. for the respondent/State. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 2nd December, 2010] ORAL JUDGEMENT : 1. This appeal is directed against judgement rendered by the learned Additional Sessions Judge, Shrirampur, in Sessions Case No. 364 of 1995. By that judgement, the appellant alongwith original accused No. 1 Sulbha came to be ( 2 ) convicted for the offence punishable under section 306 read with section 34 of the I.P. Code. Both of them were sentenced to suffer rigorous imprisonment for one (1) year and to pay fine of Rs. 100/- each, in default to suffer rigorous imprisonment for seven (7) days more. 2. Learned advocate Mr. Thorat, holding for Mr. S.K. Shinde, states that original accused No. 1 - Sulbha did not prefer any appeal against the judgement of conviction and sentence. 3. It is not necessary to elaborately set out all the facts leading to the prosecution. Suffice it to state that the appellant is cousin of PW2 Eknath and cousin brother-in- law of original accused No. 1 Sulbha and thus, cousin uncle of deceased Sheetal. It is alleged that the appellant and original accused No. 1 Sulbha had developed extramarital relations. The appellant resides separately in the backside portion of the house occupied by PW2 Eknath. It appears that PW2 Eknath was employed as a school-teacher in a village situated in Raigad district. His wife i.e. original accused No. 1 Sulbha used to run a grocery shop in the native village i.e. Borban (District Ahmednagar). ( 3 ) 4. The prosecution alleges that PW Eknath used to visit village Borban during holidays and on some occasions, he visited the native village during the summer vacation of 1995. He was informed by deceased Sheetal, who was his daughter, that before he had returned to the native village, one day, she noticed physical relation between the appellant and her mother. She informed him that from that evening onwards, the mother and the appellant were troubling her. The appellant had threatened her to keep silence and not to disclose about such sexual relations to anyone else. IN the night of 2nd August, 1995, PW2 Eknath was present in his residential house. He heard voices of the wife and daughter. At about midnight, his wife informed him that the school-going daughter i.e. Sheetal had run away towards Mula river in the darkness outside the house. Though searched, Sheetal was not found. Her dead-body was found lateron and was recovered from backwater of Mula river on 5th August, 1995. It was revealed that she died due to drowning in the river. ON basis of material collected during course of investigation, the mother of deceased Sheetal i.e. original accused No. 1 Sulbha and the present appellant were together chargesheeted for commission of offence punishable under section 306 read with section 34 ( 4 ) of the I.P. Code. 5. The appellant denied truth into the accusations. His defence was one of total denial. 6. Heard learned advocate for the appellant and learned A.P.P. for the State and with their assistance, I have gone through the record and proceedings. 7. The core question to be determined is : "Whether, in the facts and circumstances of the present case, it is proved that the appellant intentionally aided, instigated or goaded deceased Sheetal to commit the suicide and thereby abetted her such act ?" 8. It is well settled that in order to bring home guilt to an accused for the offence punishable under section 306 of the I.P. Code, his acts ought to be proved to be of such nature that intentional assistance by omission or commission or intentional instigation to the suicide could be established. It is well settled that for the purpose of the ( 5 ) abetment under section 306 of the I.P. Code, the expression "abetment" as used in section 107 of the I.P. Code is most relevant and applicable. 9. Perusal of the record and proceedings goes to show that initially, the missing report was lodged by mother of the deceased on 3rd August, 1995. Her mother gave the report to the effect that she had slapped deceased Sheetal for the reason that she could not find out stone roller (-------). She scolded her. The missing report shows that Sheetal was not ready to take the evening meals. The missing report further shows that Sheetal was in angry mood in the relevant evening. The missing report shows that Sheetal left the house in the nighttime. Therefore, her parents searched here and there. She was not found inspite of hectic search. It is pertinent to notice that at the first available opportunity, PW Eknath did not file any report about his suspicion against the appellant and original accused No. 1 Sulbha. He did not immediately narrate to the police that the appellant had threatened deceased Sheetal and, therefore, she was under duress. He lodged the FIR (Exh-15). Subsequently, after the dead-body of Sheetal was recovered from the backwater of Mula river, the FIR was registered on 12th August, 1995. Thus, ( 6 ) there was delay of about ten (10) days in revelation of the story put forth by PW Eknath. 10. Now, assuming that version of PW Eknath and some of the other witnesses such as PW3 Rathin, PW6 Rangubhai and PW7 Nirmala is true one, then also, it is difficult to say that the appellant instigated deceased Sheetal to commit the suicide by jumping in the river. It is vaguely stated that the appellant's illicit relations with the mother (Sulabha) were disapproved by deceased Sheetal. It has come on record that deceased Sheetal was a school-going girl. She was taking education in 10th standard at the relevant time. It is but natural that due to adolescence, she was mentally unprepared to accept the ground-reality about the illicit relations developed between her mother and the cousin uncle i.e. the appellant. It has come on the record that mother of deceased Sheetal was managing the grocery business with the help of the appellant. She is a good looking woman and was residing without company of her husband. The mere fact that the appellant had kept extramarital sexual relations with mother of deceased Sheetal, by itself, would not be a sufficient reason to infer any instigation on his part to commission of her suicide. It cannot be said that he intentionally aided ( 7 ) the commission of suicide of Sheetal by his conduct of keeping illicit sexual relations with her mother. There appears no over tact on his part to trigger the suicide of the school- going girl i.e. Sheetal. The learned Sessions Judge seems to have failed to appreciate the missing linkage between act of the appellant and his sexual relations with mother of deceased Sheetal and the suicide committed by Sheetal. Unless it is duly proved that the appellant intended to propel the suicide of Sheetal due to his acts, the conviction for offence punishable under section 306 of the I.P. Code is unsustainable. The learned Sessions Judge seems to have overlooked the fact that the ingredients of section 107 of the I.P. Code are not duly established and as such, the appellant could not be held criminally liable for the offence of abetment to the suicide of deceased Sheetal. Under the circumstances, the impugned judgement of conviction and sentence is unsustainable and will have to be interfered with. 11. In the result, the appeal is allowed. The impugned judgement of conviction and sentence is set aside, to the extent of the appellant - Ravindra. He stands acquitted of the offence punishable under section 306 read with section 34 of the I.P. Code. The fine amount, if has been deposited by ( 8 ) him, be refunded to him. The bail bonds executed by the appellant be deemed as cancelled. [V.R. KINGAONKAR] JUDGE NPJ/criapl154-98