Dr. Susan Mathew M.D.S. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **THURSDAY ,THE 08TH DAY OF NOVEMBER 2018 / 17TH KARTHIKA, 1940** ## **Crl.MC.No. 4687 of 2014** **AGAINST THE ORDER/JUDGMENT IN SC 41/2011 of ASSISTANT SESSIONS COURT, NEDUMANGAD** ## **PETITIONER/ACCUSED:** **DR.SUSAN MATHEW M.D.S AGED 37 YEARS M.D.S, D/O.LEELAMMA, RESIDING AT P.1. BUNGALOW, T.B.JUNCTION, KOTTARAKKARA, KOLLAM DISTRICT.** **BY ADVS. SRI.V.AJAKUMAR SRI.T.M.CHANDRAN** ## **- RESPONDENTS/COMPLAINANT DEFACTO COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE DETECTIVE INSPECTOR, CBCID, HHW1, SUB UNIT, THIRUVANANTHAPURAM.** **2 SANJITH S/O.SADASIVAN, SUKRUTHAM, CRA-51, GOUREESAPATTOM, PATTOM, THIRUVANANTHAPURAM.** ## **OTHER PRESENT:** ## **PP RAMESH CHAND** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29.10.2018, THE COURT ON 08.11.2018 PASSED THE FOLLOWING:** Crl.M.C.4687/14 2 ## **ORDER** Petitioner stands indicted as the sole accused in S.C.No.41 of 2011 pending before the Assistant Sessions Judge, Nedumangad, for offence punishable under section 306 of the Indian Penal Code. 2. On 11.01.2009, a final year B.D.S student committed suicide by jumping from the 4[th] floor of P.M.S College of Dental Science and Research, Vattappara, Thiruvananthapuram. The second respondent is the father of the deceased girl. Crime No.183 of 2009 was registered. In the course of investigation, petitioner herein was arrayed as accused, on an allegation that the petitioner herein being the teacher of the victim girl, had scolded her, harassed her and excluded her from laboratory works and from all clinical lab works. Her friends were assigned the works originally allotted to her. She was threatened that, she was likely to fail in the examination. This led to the suicide of the victim, it was alleged. After investigation, final report was laid arraying the petitioner as the sole accused. 3. Petitioner has approached this Court challenging the prosecution. It was contended by the petitioner herein that, she joined the institution on 01.08.2004 and was working as a Reader in Department of Prosthodontics. The deceased girl was her student. Petitioner was on leave during the period May 2009 and she joined on the date of incident. As a Crl.M.C.4687/14 3 part of curriculum, victim was given a patient for making and providing a complete artificial denture. The victim who was a final year B.D.S student could not complete the assignment. She represented that the above patient had permanently left the place and she did not come back. Later, the patient returned and complained that the victim girl had called her through telephone and told that the college had no facility to do the balance clinical works on her and she should approach other hospitals. On getting to know about this, victim girl was called to the department and was got clarified. She admitted her mistake and submitted an apology in writing, along with the OP card of the patient. She was warned not to repeat such practices. Thereafter, she was allotted treatment of another patient, which was to be completed in 5 sittings. The victim did not satisfactorily work in accordance with the prescribed procedure. The victim was called and she was asked to improve herself. She was directed to do clinical work on inanimate models in the clinical labs, along with other junior students. It was thereafter, she committed suicide. It was stated by the petitioner that, she was absolutely innocent of the crime and has only taken necessary action to ensure discipline in the institution and for the betterment of the students. There was an allegation that the petitioner had declared that, she will not allow the victim to sit for the examination. There was also an allegation that, when the victim came to her chamber to tender apology, she was asked to get out of the chamber. Petitioner denied both the allegations. Petitioner Crl.M.C.4687/14 4 sought to quash the proceedings on the premise that, legally the offence under section 306IPC was not sustainable against her and there was no requisite mens rea to commit the offence. She never intended that the victim should commit suicide, it was argued. 4. The prosecution has arrayed 54 witnesses to be examined. The prosecution has attributed three specific reasons for the suicide. All the three were attributed to the petitioner herein. First allegation was that, petitioner told the victim that, she had not completed a dental work and she was directed to complete the teeth fabrication work in 26 days and warned that, in case of failure, patients will not be assigned to her for the examination. Further allegation was that, she scolded the victim in the presence of the teachers and the students and when the victim went to the petitioner to tender apology, she shouted at her and asked to get out of the room. Lastly, work done by the victim was withdrawn from her and assigned to another student and she was asked to do work in the pre-clinical lab along with junior students. 5. To substantiate the allegations, prosecution essentially relied on the evidence of CW2, CW3 and CW4 who are mother and sister of the victim. They had stated that the petitioner was tough towards the victim. They have no direct knowledge as to what transpired in the college on the relevant day. CWs.6, 7, 8, 9, 10, 11, 12 and 13 are the classmates of the victim. They have almost uniformly referred to the above three reasons Crl.M.C.4687/14 5 mentioned. In fact, none of them have indicated that the conduct of the petitioner herein was to instigate the victim to commit suicide. None of them have also a case that the conduct of the petitioner herein was intentional or purposeful or was meant to harass the victim. 6. CW15 is the patient, who was allotted to the victim. She deposed that the victim did not complete the denture work on her. Since the victim did not inform about her about the future course of action, she came to the college and underwent further treatment. 7. Records clearly show that the petitioner herein had warned the student for some latches on her part in completing the works assigned to her. Most of the witnesses who are the college mates of the victim have spoken about this. The question is whether the act alleged against the petitioner herein was sufficient to drive her to commit suicide and whether it was done with malice or with requisite mens rea to instigate her to commit suicide. The statements of some of the victims throw some light on this aspect. It is seen that, witness No.10 had stated that the petitioner had warned the victim that, if she works honestly, she will pass the examination and if she showed laxity, she will loose the examination. CW8 in her statement had stated that, petitioner had told the victim that if she commit any malpractice in work, she will fail in the examination and if she completes the work, she will pass the examination. This indicates that the teacher was only warning for her improvement and whenever mistake was Crl.M.C.4687/14 6 committed by the student, victim was cautioned which appears to be the part of enforcement of discipline in the college. It cannot straight away be held that scolding and rectification measures was with a malafide intention and it cannot be said that petitioner had requisite mens rea to drive victim to suicide. 8. In **Sanju @ Sanju Singh Sengar v. State of Madhya Pradesh (LAWS(SC) 2002 555)** , it was held that the words 'to go and die' uttered by the accused does not constitute ingredient of instigation. Suicide committed after two days of quarrel show that deceased was in a great stress and depression and hence charge under section 306 IPC was not sustainable. In an unreported decision in Crl.M.C.1264/2005 of this Court, in **Alex Sam Chrismas v. Prabhakaran and others** , it was held by this Court that an offence under section 306IPC would stand only if there is an abetment for the commission of the crime. The parameters of the 'abetment' have been stated in Section 107 of the Indian Penal Code. Section 107 says that a person abets the doing of a thing, who instigates any person to do that thing; or 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, or the person should have intentionally aided any act or illegal omission. The explanation to section 107IPC says that any willful misrepresentation or willful concealment of a material fact which he is bound to disclose, may also come Crl.M.C.4687/14 7 within the contours of 'abetment'. 9. In **Netai Dutta v. State of West Bengal (LAWS (SC) 2005 275)** had held that even in a case where in the suicide note, there was a reference of the name of the accused, still, the Court went to the extent of saying that there was no reference of any act or incidence whereby the appellant is alleged to have committed any willful act or instigated the deceased to commit suicide. In **Pinakin Mahipatray Rawal v. State of Gujarat (2013(3) KHC 810),** it was held that, to constitute an offence under section 306IPC, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. Prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. 10. In **Mohandas @Mohan P. v. State of Kerala (2013 KHC 330)** it was held that there should be a clear abetment and there should be an intentional act on the part of the accused directly or indirectly, driving the victim to commit suicide. 11. Evidently, the evaluation of the facts involved in this case in the light of the judicial precedent definitely indicate that, even if the entire prosecution case is accepted in its entirety, there is absolutely no material to show that the petitioner herein, by willful conduct or negligence, instigated the victim to commit suicide, to invite offence under section 306 IPC. Hence, no purpose will be served by prosecuting the petitioner herein. Crl.M.C.4687/14 8 In the result, Crl.M.C is allowed. All further proceedings in S.C.No.41 of 2011 pending before the Assistant Sessions Judge, Nedumangad will stand quashed. **Sd/-** **SUNIL THOMAS JUDGE** Sbna/ Crl.M.C.4687/14 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE P1 CERTIFIED COPY OF THE FINAL REPORT SUPPLIED TO THE ACCUSED IN CRIME NO.129/CR/09/TVM ANNEXURE P2 TRUE COPY OF THE CRL.MP NO.1295/2012 IN SC NO.41/2011 FILED BY THE PETITIONER BEFORE THE ASSISTANT SESSIONS COURT, NEDUMANGAD. ANNEXURE P3 TRUE COPY OF THE OBJECTION TO CRL.MP NO.1295/2012 FILED BY THE RESPONDENT BEFORE THE ASSISTANT SESSIONS COURT, NEDUMANGAD ANNEXURE P4 TRUE COPY OF THE ORDER DATED 27/6/2014 IN CRL.MP NO.1295/2012IN S.C.NO.41/2011 ON THE FILE OF THE ASSISTANT SESSIONS COURT, NEDUMANGAD**