Biminith Kumar A. v. The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 22ND DAY OF OCTOBER 2019 / 30TH ASWINA, 1941** ## **Bail Appl..No.6705 OF 2019** **CRIME NO.271/2018 OF Chandera Police Station , Kasargod** ## **PETITIONER/ACCUSED:** **BIMINITH KUMAR A., AGED 36 YEARS S/O. THAMBAN A, RESIDING AT AERATH HOUSE, CHERUVATHOOR, THIMIRI P.O, HOSDURG TALUK, KASARAGOD DISTRICT.** **BY ADVS. SRI.T.MADHU SMT.C.R.SARADAMANI** ## **RESPONDENT/STATE:** **THE STATE OF KERALA, THROUGH THE STATION HOUSE OFFICER, CHANDERA POLICE STATION, KASARAGOD DISTRICT, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.10.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.6705/2019 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------B.A.No.6705 of 2019 ---------------------------------------------Dated this the 22[nd] day of October, 2019 ## **ORDER** The subject crime in this case is Crime No.271/2018 of Chandera Police Station, Kasaragod, which has been initially registered for offences punishable under Section 174 of the Cr.P.C. on account of the unnatural death/suicide committed by one Syama, the lady victim involved in this case on 16.5.2018 at 9.45 a.m. Later, the Police, after investigation, has altered the offence as per Section 306 of the IPC and the petitioner herein has been arrayed as the sole accused. 2. The prosecution case now in short is that the deceased lady victim in this case is a married woman having a minor son, aged 9 years and who is having an illicit affair with the petitioner/accused, who was then an unmarried man and that he had assured her that he would marry her and that he had also told that he cannot live without her and that he would commit suicide if she does not marry him and that later the petitioner had abandoned his interest in her and had married another woman and that the lady victim got extremely B.A.No.6705/2019 3 depressed on account of that and she committed suicide on 16.5.2018 at about 9.45 a.m. 3. The Investigating Officer has filed a statement dated 4.10.2019 in this case and stated that the petitioner has repeatedly given the lady victim the promise that he would marry her and that the petitioner was well aware that the emotional bondage between the victim and him was very close and that it is only on account of the petitioner’s withdrawal in the said relationship that she has committed suicide. In paragraph 6 of the said statement, it is averred that a statement has been taken from one Vijayan, who is the friend of the petitioner, wherein he has been stated that he has come to know that Syama has told the petitioner that she cannot live without him and that she told that if the petitioner does not marry her, she would commit suicide and that Syama used to frequently contact the petitioner over phone, even after the marriage of the petitioner and that he (Vijayan) had told Syama to stop telephoning the petitioner as he has already married and that he had so informed the victim through the phone of the petitioner/accused. Further in paragraph 7 of the said statement, it is stated that another friend and classmate of the petitioner has stated that he had met the petitioner after he had come down from Gulf for the marriage of the petitioner B.A.No.6705/2019 4 and that he was knowing that the lady victim has extramarital relationship with the petitioner and that Syama, the lady victim used to say that she cannot live without the petitioner and that Syama continues to have the relationship with the petitioner even after his marriage and that the petitioner had told his friend to persuade the lady to withdraw from the said relationship etc. Further paragraph 9 of the said statement says that a suicide note of the victim has been obtained, which reveals that the petitioner had told her that if she goes with her husband and son, then he (petitioner) will not live any longer and that she should secure divorce from her husband and that believing that, she had demanded her husband to take steps for divorce and that inspite of her request, her husband is not taking any interest for initiating divorce proceedings. 4. The learned counsel for the petitioner would point out that the main allegations so as to connect the petitioner with the offence of abetment to commit suicide as per Section 306 are those made in reference to paragraphs 6 and 7 of the above said statement filed by the Investigating Officer and that by a reading of the said statement, it can be seen that no reasonable person can conclude that petitioner/accused has abeted and instigated the lady victim to commit suicide. Further it is argued by Sri.T.Madhu, learned counsel B.A.No.6705/2019 5 appearing for the petitioner that the mention about the alleged suicide note as made out in paragraph 9 of the above said statement of the Investigating Officer would also show that all what is stated is that the petitioner told her that he may commit suicide, if she chooses to live with her husband and son and that she had requested her husband to initiate divorce proceedings and that her husband is not yielding to her demand for initiating divorce proceedings and that these factual materials cannot even connect an accused with the serious offence of instigating and goading the victim to commit suicide as envisaged in Section 306 of the IPC. The learned counsel for the petitioner would also urge that admittedly, the lady victim was a married woman, having a child and the petitioner was earlier unmarried and the alleged promise said to have been made by an unmarried man to a married woman that he would marry the latter, is not enforceable in law. Sri. T. Madhu, learned counsel appearing for the petitioner has taken this Court’s attention to the judgment of the Apex Court _**in Chithresh Kumar Chopra**_ v. _**State**_ [AIR 2010 SC 1446], wherein it has been held that the act of investigation is to goad, urge forward, provoke, incite or encourage to do an act. The learned counsel has also taken this Court’s attention to the decision of this Court in _**Harikrishnan and another**_ v. _**State of Kerala**_ [2019 B.A.No.6705/2019 6 (3) KHC 437] which in turn has relied on the judgment of the Apex Court in _**Chithresh Kumar Chopra’s**_ case (supra), wherein it has been held as follows:- (See KHC report) _“Para 15: to constitute instigation, a person who instigates another has to provoke, incite, urge or encourage doing of an act by the other by goading or urging forward. The dictionary meaning of the word goad is a thing that stimulates someone into action, provoke to action or reaction, to keep irritating or annoying somebody until he reacts. Similarly urge means to advice or try hard to persuade somebody to do something or to make a person move more quickly and or in a particular direction, especially by pushing or forcing such person. Therefore, a person who instigates another has to goad or urge forward the later with intention to provoke, incite or encourage the doing of an act by the later. Where the accused by his acts or by a continued course of conduct, creates such circumstances that the deceased was left with no other option except to commit suicide instigation may be inferred. In other words, in order to prove that the accused committed commission of suicide by a person, it has to be established that; (i) the accused kept on irritating or annoying the deceased by word, deeds, or willful omission or conduct which may even be a willful silence until the deceased reacted; or pushed or forced the deceased by his deeds, words or willful omission or conduct to make the deceased move forward more quickly in a forward direction and (ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the matter noted above. Presence of mens rea is the necessary concomitant of instigation.”_ 5. The learned counsel for the petitioner would also point out that it is now well established by series of rulings as in _**Sindhu Paul and another**_ v. _**State of Kerala**_ [2017(4) KLT 985] that whereas the clear mens rea to commit the offence and there ought to be an active or direct act, whereby the deceased is instigated to commit suicide being left with no option. The learned counsel for the petitioner has B.A.No.6705/2019 7 also taken this Court’s attention to various other rulings of the Apex Court and this Court in cases as in **Sanju @ Sanjay Singh Sengar** v. **State of M.P.** [ 2002 SCC (Crl.) 1141], **Krishnadas** v **State of Kerala** [2017 (2) KLT 579], **Gurucharan Singh** v **State of Punjab** [2016 (12) SCALE 414], **Harikrishnan & Anr.** v **State of Kerala and Anr.** [2019 (3) KHC 437] and has argued that the parameters and legal ingredients for the offence of abetment as per Section 107 of the IPC and offence of abetment to commit suicide as per Section 307 of the IPC are not made out in the instant case. The learned counsel for the petitioner would thus urge that this Court may grant anticipatory bail to the petitioner subject to any stringent conditions. 6. The learned Public Prosecutor has seriously opposed the plea for anticipatory bail. 7. After hearing both sides and after carefully testing the facts of this case, more particularly, the averments made in the statement filed by the Investigating Officer and the avements made in the reply statement of the petitioner etc., in the light of the above said judicial precedents, this Court is inclined to take the view that the custodial interrogation of the petitioner may not be necessary for effectuating the smooth and effective conduct of the investigation in this case. However, the petitioner will have to immediately appear B.A.No.6705/2019 8 before the Investigating Officer for interrogation purposes. Accordingly, the following directions and orders are passed: _1) The petitioner will immediately personally appear before the Investigating Officer in relation to the above said crime for interrogation purposes without any further delay, at any rate, by 10 a.m. on any day on or before 8.11.2019 or within such time limit that may be extended by the Investigating Officer as he deems fit and proper._ _2) The petitioner will fully co-operate with the Investigating Officer in the above interrogation process._ _3) After the interrogation process is over, if the Investigating Officer arrests the petitioner in relation to the above said crime, then he shall be released on bail on his executing a bond for Rs.40,000/- (Rupees forty thousand only) and on his furnishing two solvent sureties each to the satisfaction of the Investigating Officer concerned. However, the grant of bail will be subject to the following conditions:_ _i) The petitioner will report before the investigating officer in relation to the present crime at any time between 9 a.m. and 1 p.m on all 2[nd] and 4[th] Saturdays for next three months and thereafter he will appear before the investigating officer, as and when directed by the said officer._ - _(ii) The petitioner shall not involve in any criminal offences of similar nature._ - _(iii) The petitioner shall fully co-operate with the investigation._ B.A.No.6705/2019 9 - _(iv) The petitioner shall report before the Investigating Officer as and when required in that connection._ - _(v) The petitioner shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ If there is any violation of the abovesaid conditions by the petitioner, then the jurisdictional court concerned will stand hereby empowered to consider the plea for cancellation of bail at the appropriate time. With these observations and directions, the above Bail Application stands disposed of. sd/- **ALEXANDER THOMAS, JUDGE.** acd