Aleyamma Mathew and Others v. State of Kerala and Sindhu Lalji

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY, THE 21[ST] DAY OF DECEMBER 2021 / 30TH AGRAHAYANA, 1943 ``` ``` CRL.MC NO. 7239 OF 2016 ``` ``` CRIME NO.1256/2013 OF Mavelikkara Police Station, Alappuzha AGAINST SC 321/2016 OF ADDITIONAL DISTRICT COURT – I, ALAPPUZHA. ``` ## **`PETITIONERS/ACCUSED NOS.1 TO 3:`** ``` 1ALEYAMMA MATHEW AGED 59 YEARS W/O. MATHEW UMMAN, AMBURETH HOUSE,NEAR P.M.HOSPITAL, MANAIKKAD MURI, MAVELIKKARA VILLAGE,WORKING AS PRINCIPAL, BISHOP MOOR, VIDYAPEEDAM SCHOOL, MAVELIKKARA. ``` ``` 2SUSHA AGED 40 YEARS, W/O. SATHEESH, PUTHENVEETTIL, KOMALLOOR MURI, CHUNAKKARA VILLAGE, WORKING AS TEACHER AT BISHOP MOOR, VIDYAPEEDAM SCHOOL,MAVELIKKARA. ``` ``` 3ELIZABETH JOHN AGED 51 YEARS, W/O. JACOB MATHEW, ST.THOPPIL HOUSE, KOTTARKKAVU MURI, MAVELIKKARA VILLAGE, WORKING AS VICE PRINCIPAL AT BISHOP MOOR, VIDYAPEEDAM SCHOOL, MAVELIKKARA. ``` ``` BY ADVS. ``` ``` SRI.P.VIJAYA BHANU (SR.) SRI.C.JAYAKIRAN SRI.M.REVIKRISHNAN ``` ## **`RESPONDENTS/DEFACTO COMPLAINANT & STATE:`** ``` 1SINDHU LALJI AGED 41 YEARS, W/O. LALJI, SOUPARNIKA HOUSE, AAKKANATTUKARA MURI, THAZHAKKARA VILLAGE, PIN-690 102. ``` ``` CRL.MC NO. 7239 OF 2016 ``` ``` 2 ``` ``` 2STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. ``` ``` BY ADVS. SRI.E.NARAYANAN SMT.K.K.PREETHA SRI.ARAVIND V.MATHEW ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ``` ``` ON 06.12.2021, THE COURT ON 21.12.2021 PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 7239 OF 2016 ``` ``` 3 ``` ## **`ORDER`** The petitioners are the accused Nos.1 to 3 in SC No.321/2016 on the files of the Additional Sessions Court I, Alappuzha. The aforesaid Sessions case arises from Crime No.1256/2013 of Mavelikkara Police Station and the offences alleged against the petitioners are under Section 341, 323, 506(i), 305 read with Section 34 of IPC. 2. This Crl.MC. is filed by the petitioners seeking for an order to quash all further proceedings in the above Sessions Case, on the ground that none of the offences alleged against them are made out, even if the entire allegations contained in Annexure B final report are accepted for its face value. 3. The facts of the case reveal an unfortunate event of suicide of a girl aged just 12 years. The prosecution case is that, the deceased student was studying at Bishop Moor Vidyapeedam School at Mavelikkara in VIIth standard, where the petitioners are the teachers. The 1[st] petitioner is the Principal, the 2[nd] petitioner is the teacher and the 3[rd] petitioner is the Vice Principal of the said school. On 09.09.2013 while quarterly examination was being conducted at the school, the deceased child secretly communicated the answer of one the questions to ``` CRL.MC NO. 7239 OF 2016 ``` ``` 4 ``` another student (CW2). When this came to the notice of the 4[th] accused, who was the invigilator, she had taken the deceased student along with other three students who are CWs 2,3 and 4 to the office room of the 3[rd] accused. While so, the 3[rd] accused told the students that those who were caught for copying will be given zero marks. The children were directed by the 3[rd] accused to meet the Principal/1[st] accused on the next day and informed that they will be permitted to attend examination only thereafter. The next examination was on 11.09.2013 and when the students went to meet the Principal she was on leave that day. The students were permitted to write examination on that day and they again came to meet the Principal on the next day; on 12.09.2013. When they met the Principal, she forcibly removed the hair band of the deceased child and compelled her to tie her hair by using a ribbon. She has also said that all of the students will be issued with Transfer Certificate (T.C.) and in the report the fact of copying will be mentioned so that none of the students will get admission in any of the schools. They were all asked to bring their parents to the school on the next day. Unfortunately, the deceased child who got frightened due to the aforesaid incidents committed suicide immediately after reaching her house by setting ``` CRL.MC NO. 7239 OF 2016 ``` ``` 5 ``` herself fire by pouring kerosene. A dying declaration of the deceased student was also recorded, wherein the aforesaid incidents are mentioned. It is also stated by the deceased student that she attempted to commit suicide, as she was called to bring her parents. She also stated that the Principal threatened to hit her. 4. The aforesaid crime was registered on the basis of the same and after completing the investigation, Police filed Annexure B charge sheet. Now the matter is pending as S.C.No.321/2016 before the Additional Sessions Court I, Alappuzha. 5. Heard Sri.M.Revikrishnan, learned counsel for the petitioners, Ms.Digna David, learned counsel for the 1[st] respondent/the de facto complainant/mother of the deceased child and Sri.Aravind V. Mathew, learned Public Prosecutor for the State. 6. Learned counsel for the petitioners contends that the none of the offences alleged against them are attracted. As regard to the offence under Section 305 of IPC is concerned, under no circumstance the acts alleged against the petitioners herein would indicate mens rea on their part which is one of the most necessary ingredients for attracting the offence. The petitioners were responsible teachers and were performing ``` CRL.MC NO. 7239 OF 2016 ``` ``` 6 ``` their duties while dealing with the situation which arose on account of the breach of discipline committed by some of the students. It was pointed out that even according to the statements of CWs 2 to 4 (the students who were present along with the deceased child on all the occasions), the entire issue commenced from an act of copying by certain students during the course of examination. The attempts on the part of the petitioners were to maintain discipline and under no circumstances, the said acts, even if it is assumed to be an excessive action, the same cannot be treated at par with an act committed with mens rea. Being responsible teachers, it was their duty to correct the students who are committing mistakes and all the said actions were with the above objectives. Unfortunately, the student who was not having the mental capacity to withstand such mild actions, committed suicide for which the petitioners cannot be implicated for such a serious offence of Section 305 of IPC. Reliance was also placed on The judgment rendered by the hon’ble Supreme Court in **Geo Varghese v. State of** ## **Rajasthan and Others. [AIR 2021 SC 4764].** 7. On the other hand, learned counsel for the 1[st] respondent would contend that, the Crl.M.C. is liable to be dismissed in view of the ``` CRL.MC NO. 7239 OF 2016 ``` ``` 7 ``` fact that, suicide of the deceased child was on account of the continuous harassment of the petitioners herein. It was pointed out that, if the petitioners reacted in a responsible manner taking into account the tender mindset of a young child of 12 years, no such incident would have occurred. It was also pointed out that, the existence of mens rea is a question of fact which can be adjudicated only on the basis of evidence to be let, in during the course of trial. 8. The learned Public Prosecutor also would seriously oppose the contentions put forward by the petitioner. The learned Public Prosecutor relies on the judgment in **Ude Singh and Others v. State of** . **Haryana [(2019) 17 SCC 301]** 9. The only question that arises is as to whether an offence of Section 305 and the other offences alleged against the petitioners are made out from the allegations contained in Annexure B final report. The aforesaid provision reads as follows: ## _**“305. Abetment of suicide of child or insane person**_ _If any person under eighteen years of age, any insane person, any delirious person, any idiot, or any person in a state of intoxication, commits suicide, whoever abets the commission of such suicide, shall be punished with death or imprisonment for life, or imprisonment for a term not exceeding ten years, and shall also be liable to fine.”_ The expression abetment is explained in Section 107 of IPC which reads ``` CRL.MC NO. 7239 OF 2016 ``` ``` 8 ``` as follows: ## _**“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 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.”_ Section 108 defines the abettor as a person who abets either the commission of an offence or the commission of an act which would be an offence if committed by a person capable by law of committing an offence with the same intention or all knowledge as that of the abettor. A joint reading of the aforesaid provisions would clearly indicate that an intention to persuade the victim to commit suicide must be in existence for the purpose of attracting the offence of Section 305. 10. In **M.Arjunan v. State, represented by its Inspector of Police [2019 (3) SCC 315]** the hon’ble Supreme Court considered the requirements for attracting the offence under Section 306 of Indian Penal Code and observed as follows: _“The essential ingredients of the offence under Section 306 Indian_ ``` CRL.MC NO. 7239 OF 2016 ``` ``` 9 ``` _Penal Code 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, Accused cannot be convicted under Section 306 Indian Penal Code.”_ 11. In the case of **Geo Varghese** (supra) which was relied upon by the learned counsel for the petitioners, the Supreme Court considered the question as to the requirements for attracting the offence of Section 306, in a similar factual back ground of this case. It is to be noted that the case dealt with by the Supreme Court was that of a 9[th] standard student aged 17 years who was found hanging in his house. The suicide note recovered from the scene of occurrence indicated that it was due to the harassment meted out to him by the accused therein who as the physical training instructor. In the said case, the child was found bunking classes and the student was instructed to bring the parents on 26.04.2018. The deceased committed suicide on previous day i.e. on 25.04.2018. In the said judgment after elaborately considering the principles laid down by the hon’ble Supreme Court in various judgments it was observed as follows: > _“27. It is a solemn duty of a teacher to instil discipline in the students. It is not uncommon that teachers reprimand a student for not being attentive or not being upto the mark in studies or_ ``` CRL.MC NO. 7239 OF 2016 ``` ``` 10 ``` _for bunking classes or not attending the school. The disciplinary measures adopted by a teacher or other authorities of a school, reprimanding a student for his indiscipline, in our considered opinion, would not tantamount to provoking a student to commit suicide, unless there are repeated specific allegations of harassment and insult deliberately without any justifiable cause or reason. A simple act of reprimand of a student for his behaviour or indiscipline by a teacher, who is under moral obligations to inculcate the good qualities of a human being in a student would definitely not amount to instigation or intentionally aid to the commission of a suicide by a student._ _28. ‘Spare the rod and spoil the child’ an old saying may have lost its relevance in present days and Corporal punishment to the child is not recognised by law but that does not mean that a teacher or school authorities have to shut their eyes to any indiscipline act of a student. It is not only a moral duty of a teacher but one of the legally assigned duty under Section 24 (e) of the Right of Children to Free and Compulsory Education Act, 2009 to hold regular meetings with the parents and guardians and apprise them about the regularity in attendance, ability to learn, progress made in learning and any other act or relevant information about the child._ _29. Thus, the appellant having found the deceased boy regularly bunking classes, first reprimanded him but on account of repeated acts, brought this fact to the knowledge of the Principal, who called the parents on telephone to come to the school. No further overt act has been attributed to the appellant either in the First Information Report or in the statement of the complainant, nor anything in this regard has been stated in the alleged suicide note. The alleged suicide note only records insofar as, the appellant is concerned, ‘THANKS GEO (PTI) OF MY SCHOOL’. Thus, even the suicide note does not attribute any act or instigation on the part of the appellant to connect him with the offence for which he is being charged._ _30. If, a student is simply reprimanded by a teacher for an act of indiscipline and bringing the continued act of indiscipline to the notice of Principal of the institution who conveyed to the parents of the student for the purposes of school discipline and correcting a child, any student who is very emotional or sentimental commits suicide, can the said teacher be held liable for the same and charged and tried for the offence of abetment of suicide under section 306 Indian Penal Code._ ``` CRL.MC NO. 7239 OF 2016 ``` ``` 11 ``` _31. Our answer to the said question is 'No'._ _32. Considering the facts that the appellant holds a post of a teacher and any act done in discharge of his moral or legal duty without their being any circumstances to even remotely indicate that there was any intention on his part to abet the commission of suicide by one of his own pupil, no mens rea can be attributed. Thus, the very element of abetment is conspicuously missing from the allegations levelled in the FIR. In the absence of the element of abetment missing from the allegations, the essential ingredients of offence under section 306 Indian Penal Code do not exist.”_ On the other hand, the learned Public Prosecutor brought my attention to the observations made by the hon’ble Supreme Court in **Ude Singh** ’s Case which is extracted in the judgment of **Geo Varghese’s** case itself. The relevant paragraph relied on by the learned Public Prosecutor reads as follows: _“16. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act/s of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behaviour and responses/reactions. In the case of accusation for abetment of suicide, the Court would be looking for cogent and convincing proof of the act/s of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case._ _16.1 For the purpose of finding out if a person has abetted commission of suicide by another, the consideration would be if the accused is guilty of the act of instigation of the act of suicide. As explained and reiterated by this Court in the decisions above-referred, instigation means to goad, urge forward, provoke, incite or encourage to do an_ ``` CRL.MC NO. 7239 OF 2016 ``` ``` 12 ``` _act. If the persons who committed suicide had been hypersensitive and the action of accused is otherwise not ordinarily expected to induce a similarly circumstanced person to commit suicide, it may not be safe to hold the accused guilty of abetment of suicide. But, on the other hand, if the accused by his acts and by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to commit suicide, the case may fall within the four-corners of Section 306 Indian Penal Code. If the accused plays an active role in tarnishing the self-esteem and self-respect of the victim, which eventually draws the victim to commit suicide, the accused may be held guilty of abetment of suicide. The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. Such being the matter of delicate analysis of human behaviour, each case is required to be examined on its own facts, while taking note of all the surrounding factors having bearing on the actions and psyche of the accused and the deceased.”_ The reliance of the learned Public prosecutor was on the observation that “but on the other hand if the accused by his acts and his continues course of conduct creates a situation which needs the deceased pursuing no other option except to commit suicide, the case may fall within the four corners of Section 306 of Indian Penal Code. If the accused placed an active role in tarnishing the self esteem and self respect of the victim, which eventually draws the victim to commit suicide the accused may be held guilty of abetment of suicide.” By placing reliance upon the observations, the learned Public Prosecutor contends that this is a case in which repeated acts of harassments were committed upon the child and ``` CRL.MC NO. 7239 OF 2016 ``` ``` 13 ``` being unable to withstand to the same she committed suicide. In such circumstances, it was pointed out that the offences are attracted against the petitioners herein. 12. A careful scrutiny of the materials available on record and the allegations contained in Annexure B would reveal a different story. It is true that the sequence of events which ultimately lead to the suicide of the deceased student, spreads over three days namely 09.09.2013, 11.09.2013 and 12.09.2013. On 09.09.2013 the incident of copying occurred and the students were caught. Consequent to the same, they were asked to meet the Principal on the next working day. Accordingly on 11.09.2013 they went to the office of the Principal but she was not there, they met the Vice Principal, the 3[rd] petitioner/3[rd] accused. During the course of the interaction the 3[rd] respondent alleged to have informed the children that those students who copied will be given zero marks. On the next day that is on 12.09.2013 the children met the Principal in the presence of Vice Principal. During the course of interaction, the hair band was removed by the Principal and the deceased student was forced to tie her hair using ribbon. The explanation offered by the petitioners is that it was the ribbon which formed part of the uniform of the school. It ``` CRL.MC NO. 7239 OF 2016 ``` ``` 14 ``` is also alleged that the Principal had threatened to issue T.C. with certain remarks so that they will not get admission in any schools. There is also an allegation that she threatened to hit the students. 13. When we examine all these incidents, it can be seen that all the same are interconnected and it forms part of the same transaction. All the aforesaid acts allegedly committed by the petitioners herein, who were Principal, Vice Principal and teacher were apparently intended to maintain discipline in the school. Under no circumstances the aforesaid acts can be treated as an act intended to pursue the victim to take a harsh decision of committing suicide. It is also a relevant aspect to notice even though all these acts were allegedly committed against all the four students, it had a disastrous impact only on the deceased student. As observed by the hon’ble Supreme Court in **Geo Varghese** ’s case (supra) it is the solemn duty of the Teacher to instill discipline in the students. The disciplinary measures adopted by the Teacher cannot be treated as an act intended to provoke a student to commit suicide, unless there exists any exceptional circumstances providing clear indication of any such intention on the part of the teacher. Even though the learned Public Prosecutor would contend that there were repeated acts of harassment, in ``` CRL.MC NO. 7239 OF 2016 ``` ``` 15 ``` this case I have already observed by specifically referring to the incidents as revealed from the contents of Annexure B that all said acts were intrinsically connected with each other. Therefore, it cannot be contended that there were repeated acts of harassment. 14. In **State of Haryana and Ors. v. Bhajan Lal [(1992) Supp** **(1) SCC 335]** , the hon’ble Supreme Court framed guidelines with regard to the circumstances under which the power of the High Court under Section 482 is to be exercised. 15. Out of the said guidelines 5[th] guideline reads as follows: “Where allegations made in the FIR or complaint are absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against accused.” In this case it is discernible from the allegations contained in Annexure B and also from the statements of CWs 2 to 4 that all the actions of the petitioners were in connection with a breach of discipline on the part of the students. Even if it is assumed for arguments sake that the action taken by the petitioners were excessive, that by itself is not sufficient to constitute an offence under Section 305. This is particularly because of the reason that, under no stretch of ``` CRL.MC NO. 7239 OF 2016 ``` ``` 16 ``` imagination it can be concluded that the aforesaid acts were done with the intention to persuade the deceased student to commit suicide. Attributing such an allegation against the Teachers is not possible by a prudent mind and therefore, the allegation cannot be treated as one constituting the offence of Section 305. 16. The other offences alleged against the petitioners are under Section 341, 323 and 506 (i) of IPC. As regard to Section 341, there is absolutely no allegation to show that the deceased student was put in a wrongful restraint. Even according to the allegations, the children were brought to the office of the Principal as part of disciplinary proceedings. Similarly, the offence under Section 323 also would not be attracted from the allegations raised. Even though the statement of CW2 indicates that, while removing the hair band of the deceased student, it caused pain to her, the suicide note of the deceased does not contain any allegation of commission of such act. Similarly, the allegations would not also attract the offence under Section 506(i) IPC. The aforesaid provision would get attracted only if there is criminal intimidation on the part of the accused persons. In this case it is true that the 1[st] accused allegedly threatened to hit the deceased student and also threatened them ``` CRL.MC NO. 7239 OF 2016 ``` ``` 17 ``` to issue T.C. to them. However, considering the fact that the accused and the deceased were under a relationship of Teacher-student, and the aforesaid interactions which are the subject matter of the offence, have occurred during the course of a disciplinary proceeding, the same cannot be treated as acts with criminal intention. As mentioned above, the element of mens rea is clearly lacking in all the said actions. In such circumstances, I am of the view that, none of the offences alleged against the petitioners are attracted, even if the entire allegations contained in Annexure B are accepted for its face value. Accordingly, this Crl.M.C. is allowed and all further proceedings in SC No.321/2016 on the files of Additional Sessions Court I, Alappuzha which arises from Crime No.1256 of 2013 of Mavelikkara Police Station are hereby quashed as against the petitioners herein. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` ## **`scs`** ``` CRL.MC NO. 7239 OF 2016 ``` ``` 18 ``` ## **`APPENDIX OF CRL.MC 7239/2016`** ``` PETITIONER ANNEXURE ANNEXURE A ``` ``` COPY OF THE FIRST INFORMATION REPORT ALONG WITH THE FIRST INFORMATION STATEMENT IN CRIME NO.1256/2013 OF MAVELIKKARA POLICE STATION, ALAPPUZHA DISTRICT. ``` ``` ANNEXURE BCOPY OF THE FINAL REPORT IN CRIME NO.1256/2013 OF MAVELIKKARA POLICE STATION, ALAPPUZHA DISTRICT. ANNEXURE CCOPY OF THE DYING DECLARATION OF THE DECEASED RECORDED BY THE JUDICIAL MAGISTRATE OF THE FIRST CLASS-I, CHERTHALA FROM ERNAKULAM MEDICAL CENTRE HOSPITAL ON 22.9.2013. ```