Bail Application No. 4978 of 2018 v. State of Kerala (Crime No. 949/2018, Thodupuzha Police Station)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 8TH DAY OF AUGUST 2018 / 17TH SRAVANA, 1940** **Bail Appl..No. 4978 of 2018 ------------CRIME NO. 949/2018 OF THODUPUZHA POLICE STATION, IDUKKI DISTRICT** ## **PETITIONER/ACCUSED:** **AGED 18 YEARS, S/O. NISHAD A.E, ANIMOOTTIL HOUSE, VENGALLOOR P.O, THODUPUZHA, IDUKKI DISTRICT,PIN 685 608.** ## **BY ADV.SRI.PEEYUS A.KOTTAM** ## **RESPONDENTS/STATE/COMPLAINANT:** **1. STATE OF KERALA,** - **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,COCHIN 682 031** **2. CIRCLE INSPECTOR OF POLICE, THODUPUZHA POLICE STATION, IDUKKI DISTRICT, PIN 685 584.** **3. SUB INSPECTOR OF POLICE, THODUPUZHA POLICE STATION, IDUKKI DISTRICT, PIN 685 584 (INVESTINGATING OFFICER IN CRIME NO. 949/2018 OF THODUPUZHA POLICE STATION)** - **BY PUBLIC PROSECUTOR MR. AJITH MURALI** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08-08-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **KRJ** ## **“CR”** ## **RAJA VIJAYARAGHAVAN V., J.** -------------------------------------- **B.A. No.4978 of 2018** -------------------------------------- **Dated this the 8[th] day of August, 2018** ## **O R D E R ~~~~~~~** The applicant is a teenager. He is 18 years old to be exact. He has rushed to this Court seeking an order of pre-arrest bail. According to him, he is hounded by the police on the allegation that he has abetted the suicide of the love of his life. His contention is that he is innocent and registration of the Crime is on frivolous and vexatious allegations. 2. To understand the contentions of the applicant, one may have to look at the prosecution allegations. A girl aged about 18 years committed suicide by hanging on 7.7.2018 at her residential home at Karumpallichira. The deceased and the applicant were deeply in love and this fact was known to the parents of the deceased. The boy was from a different community and the parents strongly believed that her relationship with the applicant would mess up her future. They gave her the ultimatum to sever her relationship with the B.A.No.4978 of 2018 : 2 : applicant. Her mobile phone was confiscated and numerous restrictions were placed. Her mother inflicted some minor punishment to discipline her daughter. The parents contacted the applicant herein and warned him from continuing with the relationship. However, the deceased ignored the warning of her parents and continued to contact him using a mobile phone, which was stealthily handed over to her by the applicant. The girl suspected that the applicant was showing diffidence and was traumatized. After professing her love to the applicant, she decided to take her own life and hanged herself. 3. The Crime was initially registered under Section 174 of the Cr.P.C. In the course of investigation, the mobile phone, which was allegedly handed over by the applicant to the victim, was seized. On examination of the messages and the call details, it was revealed that the applicant and the girl had been contacting till the moment prior to her death. Both had exchanged messages that one could not live with the other. When the girl asserted that she would take her life, the boy responded in the same manner. After scanning the messages, on the allegation that the applicant herein had abetted the girl to B.A.No.4978 of 2018 : 3 : commit suicide, he was roped in as the accused. 4. The learned counsel appearing for the applicant submitted that the applicant herein and the deceased were in love. The parents of the deceased were not happy with the relationship. They restricted the freedom and movements of the deceased. The applicant was also threatened by the parents and relatives of the girl and he was asked to refrain from contacting the girl. He had no other go but to impose self restrictions. This had pained the deceased. It is contended that the messages sent to the phone of the applicant by the deceased girl would show that the girl was traumatized by the restrictions placed on her and she apprehended that she would not be able to continue with the relationship with the applicant. According to the learned counsel, these aspects would not show that the applicant herein had instigated or abetted the suicide of the deceased. 5. The learned Public Prosecutor, while opposing the prayer, submitted that the applicant herein had sent numerous messages to the deceased on the date of occurrence, which incited and encouraged the deceased to take her own life. B.A.No.4978 of 2018 : 4 : 6. I have considered the submissions advanced and have anxiously scrutinized the case diary. Since the entire prosecution case revolves around the phone call details and messages exchanged by the applicant and the deceased, for the limited purpose of deciding this bail application, I have perused the same. 7. It is by now settled that abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Abetment necessarily means some active suggestion or support to the commission of the offence. “Instigation” is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of "instigation", it is not necessary that actual words must be used to that effect. It is also not necessary to that in order to constitute "instigation", the incitement must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. In order to proceed against a person under Section 306 of the IPC, there has to be a clear mens rea to commit the offence. It also requires an active act or a direct act which led B.A.No.4978 of 2018 : 5 : the deceased to commit suicide seeing no option. That act must have been intended to push the deceased into such a position that she had no other go but to take the ultimate step. Thus, the offence of “abetment by instigation” depends upon the intention of the person who abets and not upon the act which is done by the person who was abetted to commit the act. The abetment may be by instigation, conspiracy or intentional aid as provided under S.107 IPC. (See **Chitresh Kumar Chopra v. State (Government of NCT of Delhi** [(2009) 16 SCC 605]; **Ramesh Kumar v. State of Chhattisgarh** [(2001) 9 SCC 618] : **Madan Mohan Singh v. State of Gujarat and Another** [(2010) 8 SCC 628]; **Sanju @ Sanjay Singh Sengar v. State of M.P** [(2002) 5 SCC 371]; **Swamy Prahaladdas v. State of M.P. and Another** [1995 Supp (3) SCC 438)]. 8. In the instant case, the facts would reveal that deceased and the applicant were in love. Their relationship was strongly disapproved by the parents of the deceased. The direct act, which the applicant, has allegedly committed in the instant case, is falling in love with the deceased and sending her messages professing his love towards her. It appears that the deceased B.A.No.4978 of 2018 : 6 : was a very sensitive girl and she was not able to withstand the obstacles placed by her family. It is evident from the materials in the case diary that the deceased was tormented as she felt that she would not be able to continue with her relationship with the applicant due to various factors. It appears that the deceased felt that the applicant was acting in a diffident manner. I am of the view that it would be difficult to come to even a prima facie view that the applicant had the requisite mens rea when he sent messages to the deceased girl and contacted her. He was blinded by love and the girl also has responded in the same manner. The messages exchanged between two love struck teenagers cannot be interpreted to mean that the applicant had instigated the girl to commit suicide. The act of the applicant does not reflect the requisite mens rea on the assumption that the pain of parting would have led the deceased to take her own life. As held by the Apex Court in **Praveen Pradhan v. State of Uttranchal** [(2012) 9 SCC 743] instigation has to be gathered from the circumstances of a particular case. No straight - jacket formula can be laid down to find out as to whether in a particular case there has been instigation which forced the person to commit suicide. It cannot be said at this stage that falling in love with the B.A.No.4978 of 2018 : 7 : deceased was a circumstance that was created by him to frustrate the deceased and to lead her to commit suicide. 9. After having considered the nature and gravity of the accusations, the role assigned to the applicant, his antecedents and age, the possibility of him indulging in similar offenses and also the requirement of arrest and detention of the applicant in the facts and circumstances, I am inclined to allow this application on conditions. It is made clear that the prima facie observations made above are for the sole purpose of deciding this application and the courts before which the matter may come up at a later stage shall proceed with the case untrammeled by the observations made above. 10. In the result, this application will stand allowed. The applicant shall be released on bail in the event of his arrest in Crime No. 949 of 2018 of the Thodupuzha Police Station, on his executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction. The above order shall be subject to the following conditions: B.A.No.4978 of 2018 : 8 : 1). The applicant shall cooperate with the investigaion and shall appear before the Investigating Officer on all Saturdays between 10 a.m. and 11.00 a.m., for a period of two months or till final report is filed, whichever is earlier. 2). He shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the court or to any police officer. 3). He shall not commit any offence while on bail. In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law. Sd/- **RAJA VIJAYARAGHAVAN V., JUDGE** ps/8/8/18 //True copy// PS to Judge