AKSHAYARAJ v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 5[TH] DAY OF JUNE 2024 / 15TH JYAISHTA, 1946 ``` ``` BAIL APPL.NO.4570 OF 2024 ``` ``` CRIME NO.1564/2023 OF ARUVIKKARA POLICE STATION, ``` ## **`Thiruvananthapuram`** ## **`--------------`** ## **`PETITIONER/ACCUSED :-`** ``` AKSHAYARAJ, AGED 24 YEARS S/O.RAJ KUMAR, SOPANAM, TRA 18, MULLILAVINMOODU, ARUVIKKARA, THIRUVANANTHAPURAM, PIN - 695 543 ``` ``` BY ADV V.VINAY ``` ## **`RESPONDENT/STATE :-`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031 ``` ``` SRI.C.S.HRITHWIK, SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL.NO.4570 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R** ## **Dated this the 5 th day of June, 2024** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.1564/2023 of the Aruvikkara Police Station, Thiruvananthapuram, registered against him for allegedly committing the offences punishable under Sections 498A and 306 of the Indian Penal Code (in short, 'IPC'). The petitioner was arrested on 10.04.2024. 2. The crux of the prosecution case is that; the accused was married to a lady named Reshma (deceased). It is alleged that the accused had subjected the deceased to matrimonial cruelty. Thereafter, the accused fell in love with a lady named Gayathri, who was already married and a mother. When the deceased discovered the above relationship, she intervened in the matter and requested the accused not to continue with the relationship. However, the accused continued the relationship, which ``` BAIL APPL.NO.4570 OF 2024 ``` ``` -: 3 :- ``` was discovered by the deceased from the mobile phone. When the accused was confronted with the mobile phone, he confessed about his feelings to the lady and requested the deceased to accept the relationship. Unable to tolerate the relationship of the accused with the lady, the deceased expressed her distress. At that point of time, the accused told the deceased to go and end her life. This caused immense mental anxiety to the deceased. Consequently, on 26.08.2023, at around 20 hrs., when the deceased’s parents and brother visited the matrimonial home, she informed the above matter to them. Then the family members all requested the accused to end his relationship. However, he did not do the same and the deceased committed suicide after executing a suicide note stating that she was ending her life due to the harassment of the accused. Thus, the accused has committed the above offences. ``` BAIL APPL.NO.4570 OF 2024 ``` ``` -: 4 :- ``` 3. Heard; Sri.V.Vinay, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. A reading of Annexure AI FIR would substantiate that the offence under Section 306 would not be attracted. Moreover, there is nothing to accentuate that the petitioner instigated the deceased to end her life. It was only because the hypersensitive nature of the deceased that she committed suicide. The learned counsel for the petitioner relied on the decision of this Court in **Harikrishnan and another** v. **State of Kerala and another** [2019 (3) KHC 437], to fortify his contention that even if the accused had told the deceased to go and ``` BAIL APPL.NO.4570 OF 2024 ``` ``` -: 5 :- ``` commit suicide, that is not a ground to attract the offence Section 306 of the IPC. There should be clear material to establish that the accused had instigated the death of the deceased. The petitioner has been in judicial custody since 10.04.2024, the investigation is practically complete and recovery has been effected. Therefore, the petitioner’s further detention is unnecessary. 5. The learned Public Prosecutor opposed the application. He submitted that there are incriminating materials to prove the petitioner’s involvement in the crime. The petitioner had mentally and physically harassed the deceased. The suicide note undoubtedly reveals that the petitioner had told the deceased to go and end her life. The investigation is in progress. If the petitioner is released on bail at this stage, he would ``` BAIL APPL.NO.4570 OF 2024 ``` ``` -: 6 :- ``` certainly hamper with the investigation. Moreover, considering the nature, seriousness and gravity of the accusations levelled against the petitioner, the petitioner may not be released on bail. Hence, the application may be dismissed. 6. The prosecution allegation against the accused is that; he had mentally and physically harassed the deceased with cruelty. Subsequently, he had told the deceased to go and end her life. Thereupon, the deceased executed a suicide note and committed suicide. The law with regard to Section 306 mandates that there should be material to show that the accused had abetted the deceased to commit suicide. It is profitable to refer to Section 306 of the IPC, which reads as under :- “306.Abetment of suicide. — If any person commits suicide, whoever abets the commission of such suicide, shall be ``` BAIL APPL.NO.4570 OF 2024 ``` ``` -: 7 :- ``` punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 7. The necessary ingredients to bring an act or omission by a person charged with the offence under Section 306 are well-settled in a catena of decisions by the Hon’ble Supreme Court and this Court. In a recent decision in **Geo Varghese** v. **State of Rajasthan** [(2021) 19 SCC 144 ], the Honourable Supreme Court has explained the above provision in the following lines :- “12. In our country, while suicide in itself is not an offence as a person committing suicide goes beyond the reach of law but an attempt to commit suicide is considered to be an offence under Section 309IPC. The abetment of suicide by anybody is also an offence under Section 306 IPC. 13. Though, IPC does not define the word “suicide” but the ordinary dictionary meaning of suicide is “self-killing”. The word is derived from a modern Latin word “suicidium”, “sui” means “oneself” and “cidium” means “killing”. Thus, the word suicide implies an act of “self-killing”. In other words, act of death must be committed by the deceased himself, irrespective of the means adopted by him in achieving the object of killing himself. 14. Section 306 IPC makes abetment of suicide a criminal offence and prescribes punishment for the same. Abetment is defined under Section 107IPC which reads as under: “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 with one or more other person or persons in any ``` BAIL APPL.NO.4570 OF 2024 ``` ``` -: 8 :- ``` 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 wilful misrepresentation, or by wilful 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 facilitates the commission thereof, is said to aid the doing of that act.” 15. The ordinary dictionary meaning of the word “instigate” is to bring about or initiate, incite someone to do something. This Court in Ramesh Kumar v. State of Chhattisgarh [Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618, has defined the word “instigate” as under : “20. Instigation is to goad, urge forward, provoke, incite or encourage to do “an act”.” 16. The scope and ambit of Section 107 IPC and its co-relation with Section 306 IPC has been discussed repeatedly by this Court. In S.S. Chheena v. Vijay Kumar Mahajan [S.S. Chheena v. Vijay Kumar Mahajan, (2010) 12 SCC 190, it was observed as under : **25. 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. The intention of the legislature and the ratio of the cases decided by the Supreme Court is clear that in order to convict a person under Section 306IPC 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 that act must have been intended to push the deceased into such a position that he committed suicide.** ” (emphasis given) ``` BAIL APPL.NO.4570 OF 2024 ``` ``` -: 9 :- ``` 8. v. Again, in **M. Arjunan State, represented by the Inspector of Police** [(2019) 3 SCC 315] the Honourable Supreme Court has held thus: “7. The essential ingredients of the offence under Section 306 IPC are : (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied the accused cannot be convicted under Section 306 IPC”. (emphasis supplied) 9. In **Chitresh Kumar Chopra** v. **State (Govt. of NCT of Delhi)** [(2009) 16 SCC 605], the Hon’ble Supreme Court while dealing with the aspect of abetment has observed that, to attract abetment, there should be an intention to provoke, incite or encourage doing of an act by the latter. Each person’s suicidable pattern is different from others. Each person has his own idea of self–esteem and self-respect. Therefore, it is impossible to lay down any straight jacket formula in dealing with such cases. ``` BAIL APPL.NO.4570 OF 2024 ``` ``` -: 10 :- ``` Each case has to be decided on its own facts and circumstances. 10. On an evaluation of the materials on record, it can be seen that there is a specific overt act attributed against the petitioner that he had subjected the deceased to mental and physical cruelty. Subsequently, he had also told the deceased to go and end her life. Consequently, it is allged that the deceased had executed a suicide note and she ended her life. Whether the said allegations attracts the offence under Section 306 of the IPC is a matter to be investigated and decided finally at the time of trial. 11. In **Prasanta Kumar Sarkar** v. **Ashis Chatterjee** [(2010) 14 SCC 496], the Honourable Supreme Court has laid down the broad parameters for Courts while dealing with bail applications by holding as follows :- > “9.xxx xxx xxx However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors ``` BAIL APPL.NO.4570 OF 2024 ``` ``` -: 11 :- ``` to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail”. ## 12. v. Similarly, in **Kalyan Chandra Sarkar Rajesh** ## **Ranjan** [(2004) 7 SCC 528], the Honourable Supreme Court observed thus: “11.The law regarding grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court ``` BAIL APPL.NO.4570 OF 2024 ``` ``` -: 12 :- ``` granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. ( _See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598_ ] and _uran v. Rambilas [(2001) 6 SCC 338.)_ 13. The law has thus crystalised that while deciding an application for bail under Section 439, the courts are obliged to look into the nature, gravity and seriousness of the crime, the potential severity of the punishment that is likely to be imposed, the character, behaviour and standing of the accused, the prosecution’s legitimate apprehension regarding the tampering of evidence, the flight risk that is involved and whether releasing the accused on bail would have a deleterious impact on the society. 14. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record, and on _prima facie_ being ``` BAIL APPL.NO.4570 OF 2024 ``` ``` -: 13 :- ``` satisfied that there is a specific overt act alleged against the petitioner, that he subjected the deceased to matrimonial cruelty, and further that he instigated her to kill herself and further that she had executed a suicide note stating that it was at the instance of the petitioner that she had committed suicide, I am not inclined to release the petitioner on bail at this stage since there is danger of justice being thwarted. Hence, I hold that the petitioner is not entitled to be released on bail. However, I make it clear that the observations made in this order are only for the purpose of considering the bail application and nothing has been expressed on the merits of the case. Resultantly, the application is dismissed. **Sd/C.S. DIAS, JUDGE** Jvt/7.6.2024 ``` BAIL APPL.NO.4570 OF 2024 ``` ``` -: 14 :- ``` ## **`APPENDIX OF BAIL APPL. 4570/2024`** ``` PETITIONER ANNEXURES :- ``` ``` Annexure-ITHE TRUE COPY OF THE FIR IN CRIME 1564/2024 OF ARUVIKKARA POLICE STATION Annexure-IITHE TRUE COPY OF THE ORDER DATED 23.05.2024 IN CR.M.C NO.1312/2024 OF THE ADDITIONAL SESSIONS COURT-V, THIRUVANANTHAPURAM ```