Sukumaran vs State Of Kerala
2021 Latest Caselaw 22548 Ker

CRL.A NO. 602 OF 2008                1




             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
          THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
 FRIDAY, THE 19TH DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943
                          CRL.A NO. 602 OF 2008
  AGAINST THE JUDGMENT IN SC 281/2007 OF ADDITIONAL SESSIONS
                        COURT (ADHOC I), KOTTAYAM
APPELLANTS/ACCUSED 1 AND 2:

     1     SUKUMARAN
           S/O KELAN, KIZHATTUKALAYIL VEEDU, AYARKUNNAM
           VILLAGE, NJERIKADU KARA.

     2     MANOJ, S/O.SUKUMARAN,
           KIZHATTUKALAYIL VEEDU, AYARKUNNAM VILLAGE,
           NJERIKADU KARA.

           BY ADV SRI.LIJI.J.VADAKEDOM


RESPONDENT/STATE:

           STATE OF KERALA
           REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
           ERNAKULAM.



             SRI SANAL P RAJ,PP


      THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
19.11.2021,     THE     COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 CRL.A NO. 602 OF 2008             2




                                                              "C.R."

                                JUDGMENT

This appeal has been filed by the 1 st and 2nd accused in

S.C.No.281/2007 on the file of the Addl. Sessions Court (Adhoc)-I,

Kottayam challenging the judgment dated 6.3.2008 convicting them

under Section 306 r/w 34 IPC.

2. One Mr.Madhavan, a 73 year old agriculturist, committed

suicide on 29.9.2006 by consuming poison. The police registered the

crime initially under Section 174 of Cr.P.C on the basis of a statement

given by PW1, the grandson of the deceased, at 8 am. on 30.9.2006.

Ext.P10 is the FIR. It was registered by PW8, the Sub Inspector of

Police, Ayarkunnam Police Station. He conducted initial part of the

investigation. Admittedly, the 1st accused had borrowed a sum of

Rs.25,000/- from the deceased in the year 2001. When PW8

questioned the witnesses as part of the investigation, it was disclosed

that in spite of repeated demands, the accused did not repay the

amount borrowed, instead they consistently humiliated, harassed and

threatened the deceased and on account of the said constant threat,

harassment and humiliation, he committed suicide. Accordingly,

Section 306 r/w. 34 IPC was added and the appellants were arrayed as

accused. PW7, the Sub Inspector of Police, Ayarkunnam Police

Station, took up the investigation from PW8 on 30.10.2006. He

arrested the accused. PW9, the Sub Inspector of Police, Ayarkunnam

Police Station, verified the case records and filed final report before the

Magistrate. The learned Magistrate after complying with the statutory

formalities committed the case to stand trial at the Court of Sessions.

3. On receipt of summons, the accused appeared at the court

below. After hearing both sides, the charge under Section 306 r/w 34

of IPC was framed against the accused. The charge was read over

and explained to the accused who pleaded not guilty.

4. The prosecution examined PWs 1 to 9 and marked Exts.P1

to P12. MOs 1 and 2 were identified. On the side of the defence, Exts.

D1 to D5 were examined.

5. Considering the evidence on record, the court below found

the accused guilty for the offence punishable under Section 306 r/w 34

of IPC and they were convicted for the said offence. They were

sentenced to undergo rigorous imprisonment for a period of three years

and to pay a fine of Rs.30,000/- each, in default to suffer rigorous

imprisonment for a period of one year. Challenging the conviction and

sentence, the accused preferred this appeal.

6. I have heard Sri.Muraleekrishnan, the learned counsel for

the appellants and Sri.Sanal P.Raj, the learned Public Prosecutor.

7. The learned counsel for the appellants impeached the

findings of the court below on appreciation of evidence and resultant

finding as to the guilt. The learned counsel submitted that even if the

entire prosecution case is believed in toto, still on the basis of the

material brought on record by the prosecution, offence under S.306,

IPC is not made out against the appellants. The counsel further

submitted that there is no cogent and reliable evidence to establish the

abetment of suicide by the appellants and hence the conviction under

Section 306 r/w 34 IPC cannot be sustained. Reliance was placed on

the decisions of the Apex Court in Amalendu Pal @ Jhantu vs. State

of West Bengal (AIR 2010 SC 512), Velladurai vs. State,

represented by Inspector of Police (MANU/SC/0644/2021) and Geo

Varghese vs. State of Rajastan and Ors (MANU/SC/0785/2021).

The learned Public Prosecutor, on the other hand, supported the

findings and the verdict handed down by the court below and argued

that necessary ingredients of Section 306 of IPC had been established

and the prosecution has succeeded in proving the case beyond

reasonable doubt.

8. The 1st accused is the father of the 2 nd accused. The

deceased is stated to be a relative of the 1 st accused. It is not in

dispute that the deceased committed suicide on 29.9.2006. It is also

not in dispute that the 1st accused borrowed a sum of Rs.25,000/- from

the deceased in the year 2001. The prosecution adduced evidence to

show that the deceased demanded back the said amount from the

accused on several occasions. PW1 is the grandson of the deceased.

PW2 is the neighbour of the deceased. PW4 is the person from whom

the deceased collected money in order to lend to the accused. PW6 is

the son of the deceased. The evidence of PWs1, 2, 4 and 6, of course,

would show that on several occasions, when the deceased demanded

for return of the money borrowed, the accused insulted and humiliated

him by using abusive language and to a certain extent, even

threatened him. Ext. P3 is the suicide note allegedly written by the

deceased. According to PWs1 and 6, it was found kept in the hand of

the deceased when they saw the deceased lying in his own property. It

was produced by PW1 to the police after two days. The learned

counsel for the appellants seriously challenged the genuineness of Ext.

P3. I am of the view that the genuineness of Ext. P3 need not be gone

into for the purpose of this case for the simple reason that even if the

contents therein are taken as written by the deceased, the question

whether it would help the prosecution to establish its case, is doubtful.

In Ext. P3 it is stated that the accused had borrowed a sum of

Rs.25,000/- from him and when he demanded it back, he was

humiliated and threatened. It is also stated in Ext. P3 that the accused

was responsible for his death. The crucial question is even if the

evidence tendered by PWs.1, 2, 4 and 6 as well as the recital in Ext.

P3 are believed, whether an offence under Section 306 IPC is made

out or not.

9. Before analysing the evidence, let me advert to the law on

the point. The legal position as regards Section 306 of IPC is well

settled. It says that 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. The essential ingredients of the offence under

S.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 offence of

abetment is a separate and distinct offence in IPC. Section 107 of IPC

defines abetment of a thing. A person, abets the doing of a thing, when

(i) he instigates any person to do that thing; or (ii) engages with one or

more other person or persons in any conspiracy for the doing of that

thing; (iii) intentionally aids, by any act or illegal omission, the doing of

that thing. The word "instigate" literally means to provoke, incite, urge

on or bring about by persuasion to do anything. The abetment may be

by instigation, conspiracy or intentional aid as provided in Clause (3) of

Section 107 IPC. Under all the three situations, active or direct act

which lead to the deceased to commit suicide is essential to bring the

offence under Section 306 IPC. The Apex Court has consistently taken

the view that in order to bring a case within the purview of Section 306

IPC, there must be a case of suicide and the accused must have

played an active role in the commission of suicide by an act of

instigation or doing certain act to facilitate the commission of suicide

[See: Kishori Lal v. State of MP (2007) 10 SCC 797, Kishangiri

Mangalgiri Goswami v. State of Gujarat (2009) 4 SCC 52,

Amalendu Pal (supra) and Velladurai (supra)]. In Amalendu Pal

(supra), it was specifically held by the Apex Court that mere

harassment without any positive action on the part of the accused

proximate to the time of occurrence which lead to the suicide would not

amount to an offence under Section 306 of IPC. In Ude Singh and

Ors. vs. State of Haryana {(2019) 17 SCC 301} and in Geo

Varghese (supra), it was held that in the case of abetment of suicide,

mere allegation of harassment of the deceased by the accused would

not suffice unless there be such action on his part which compels the

deceased to commit suicide. In Randhir Singh v. State of Punjab

[2004 (13) SCC 129], it was held that "Abetment involves a mental

process of instigating a person or intentionally aiding that person in

doing of a thing. In cases of conspiracy also, it would involve that

mental process of entering into conspiracy for the doing of that thing.

More active role which can be described as instigating or aiding the

doing of a thing is required before a person can be said to be abetting

the commission of offence under S.306 IPC". In State of W.B. v.

Orilal Jaiswal and Another (AIR 1994 SC 1418), the Apex Court has

observed that the Courts should be extremely careful in assessing the

facts and circumstances of each case and the evidence adduced in the

trial for the purpose of finding whether the cruelty meted out to the

victim had in fact induced her to end the life by committing suicide.

Thus, the law is clear that to constitute an offence of abetment of

suicide under Section 306 IPC, there must be proof of either any

instigation or conspiracy or intentionally aiding or direct or indirect act

of incitement to the commission of offence of suicide. A mere allegation

of humiliation, harassment or threat unaccompanied by any incitement

or instigation is not at all sufficient to attract the offence.

10. Now, let me examine the evidence on record to find out

whether the ingredients of Section 306 IPC are attracted or not. Ext.

P1 is the first information statement. It was given by PW1 on the next

day of the incident. What is stated in Ext. P1 is that the deceased had

lent money to one of his relatives (probably the accused) which he did

not repay and the deceased committed suicide on account of the

same. PWs 1, 2, 4 and 6 who gave evidence in support of the

prosecution case only deposed that since the deceased demanded

back the money borrowed, the accused humiliated, harassed and

threatened the deceased constantly and even insulted him by using

abusive language in public road in front of others and on account of the

said constant threat, harassment and humiliation, the deceased

committed suicide. They did not state that the accused played any

active role either in instigating or intentionally aiding the commission of

suicide. The prosecution has no case that the said humiliation,

harassment and threat were exercised by the accused with an intention

to drive the accused to commit suicide. No witness spoke so. In

Arjunan vs. State Rep. by its Inspector of Police (AIR 2019 SC 43),

the Apex Court held that the act of the accused, however, insulting the

deceased by using abusive language will not, by itself, constitute the

abetment of suicide unless there is evidence capable of suggesting

that the accused intended by such act to instigate the deceased to

commit suicide.

11. Even in Ext. P3, suicide note, there is no reference of any

act or incidence whereby the accused have committed any wilful act or

omission or intentionally aided or instigated the deceased in committing

the act of suicide. On a plain reading of the same, it is difficult to hold

that there has been any abetment by the accused. It only says that the

1st accused borrowed money from him and was responsible for his

death. A general statement in the suicide note that the accused was

responsible for the death of the deceased is not sufficient to attract the

offence under section 306 of IPC unless any positive act on the part of

the accused for instigating or intentionally aiding the deceased to

commit suicide is established. In Netai Dutta vs. State of West

Bengal (AIR 2005 SC 1775), the Apex Court, while dealing with the

concept of abetment under S.107 IPC and, especially, in the context of

suicide note, said thus:

"In the suicide note, except referring to the name of the appellant at two places, there is no reference of any act or incidence whereby the appellant herein is alleged to have committed any wilful act or omission or intentionally aided or instigated the deceased Pranab Kumar Nag in committing the act of suicide. There is no case that the appellant has played any part or any role in any conspiracy, which ultimately instigated or resulted in the commission of suicide by deceased Pranab Kumar Nag. Apart from the suicide note, there is no allegation made by the complainant that the appellant herein in any way was harassing his brother, Pranab Kumar Nag. The case registered against the appellant is without any factual foundation. The contents of the alleged suicide note do not in any way make out the offence against the appellant. The prosecution initiated against the appellant would only result in sheer harassment to the appellant without any fruitful result. In our opinion, the learned Single Judge seriously erred in holding that the First Information Report against the appellant disclosed the elements of a cognizable offence. There was absolutely no ground to proceed against the appellant herein. We find that this is a fit case where the extraordinary power under S.482 of the Code of Criminal Procedure is to be invoked. We quash the criminal proceedings initiated against the appellant and accordingly allow the appeal."

12. The court below after finding that there is evidence to show

that the accused had harassed and humiliated the deceased and

uttered insulting words even in the public against him, inferred that

such an act would irritate the mind of a person like the deceased and

accordingly he committed suicide. One of the cardinal principles which

has always to be kept in view in our system of administration of justice

of criminal cases is that a person arraigned as the accused is

presumed to be innocent unless that presumption is rebutted by the

prosecution by production of evidence as may show him to be guilty of

the offence with which he is charged. The burden of proving the guilt

of the accused is upon the prosecution and unless it relieves itself of

that burden, the court cannot record a finding of the guilt of the

accused. The court cannot infer things and find a person guilty based

on probabilities. Another golden thread which runs through the web of

the administration of justice in criminal cases is that if two views are

possible on the evidence adduced in the case, one pointing to the guilt

of the accused and the other to his innocence, the view which is

favourable to the accused should be adopted. It is also an accepted

rule that in case the court entertains reasonable doubt regarding the

guilt of the accused, the accused must have the benefit of doubt.

When a person borrows money from another and the former does not

repay the same contrary to the promise, instead threatens and

humiliates the latter when demand for return of money was made and

eventually the latter commits suicide for the said reason, still, the

conviction in terms of S.306 IPC is not sustainable without there being

any positive action of incitement or instigation to commit suicide on the

part of the former. Moreover, it is settled that the incitement or

instigation, as the case may be, on the part of the accused must be

proximate to the time of commission of suicide so as to attract Section

306 IPC. In this case, the amount was borrowed in the year 2001. The

incident was in the year 2006. According to the prosecution, during

this period, the deceased had been making demand and the accused

was retaliating by threatening and harassing him. A specific question

was put to PW1 when exactly prior to the death, the accused

threatened the deceased. The answer was two weeks before. Thus,

even according to the prosecution, the alleged threatening, harassment

and humiliation etc. were done two weeks prior to the incident. There

is no other material also on record which indicates abetment. Hence,

the court below went wrong in convicting the accused.

13. In the absence of evidence to show that the accused made

an active role by an act of instigating or intentionally aiding the

deceased to facilitate the commission of suicide, the impugned

conviction and sentence cannot be sustained. The prosecution has

failed to prove the basic ingredients to attract the offence under Section

306 IPC. The conviction and sentence of the accused passed by the

court below are, accordingly, set aside. The accused are found not

guilty of the offences charged against them and they are acquitted.

The Criminal Appeal is allowed as above.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE ab