Gopakumar @ Saji v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **TUESDAY, THE 26TH DAY OF JULY 2016/4TH SRAVANA, 1938** **Crl.MC.No. 2590 of 2016 () ---------------------------** **AGAINST THE ORDER/JUDGMENT IN AIR 20/2015 of J.M.F.C.-I, MAVELIKKARA CRIME NO. 1531/2013 OF MAVELIKKARA POLICE STATION , ALAPPUZHA** **PETITIONER(S)/ACCUSED:** **---------------------** **GOPAKUMAR @ SAJI** **AGED 45 YERS, S/O.GOPI, PALLIYUDE KIZHAZKETHIL VEEDU, AKKANATTUKARA MURI, THZHAKKARA VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT.** **BY ADV. SRI.DINESH THANKAPPAN** **RESPONDENT(S):** **--------------** **1. TEH STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.`** **2. MANI, AGED 65 YEARS,M S/O.LATE NEEAKANTGAN, VIYUSHNAVUM VEETIL, UBERNADU MURI, THEKKEKKARA VILAGE, MAVELIKKARA, ALAPUZHA DISTRICT.** **3. ANANDAVALLY AGED 60 YEARS, W/O.MANI, VIYUSHNAVUM VEETIL, UBERNADU MURI, THEKKEKKARA VILAGE,** **R2,3 BY ADV. SRI.AJITH MURALI R BY PUBLIC PROSECUTOR JUSTIN JACOB** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 2306-2016, THE COURT ON 26/07/2016 PASSED THE FOLLOWING:** **Crl.MC.No. 2590 of 2016 () ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **-----------------------** **A1. THE PHOTOCOPY OF THE CHARGE SHEET IN CRIME NO.1531/2013 OF MAVELIKKARA POLICE STATION** **A2 THE TRUE COPY OF THE AFFIDAVIT FILED BY THE 2ND RESPONDENT** **A3 THE TRUE COPY OF THE AFFIDAVIT FILED BY THE 3RD RESPONDENT** **RESPONDENT(S)' EXHIBITS** **----------------------NIL** **/TRUE COPY/ PS TO JUDGE.** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.M.C. No.2590 of 2016** - - - - - - - - - - - - - - - - - - Dated this the 26[th] day of July, 2016 ## **O R D E R** This petition under Section 482 of Cr.P.C. is preferred by the sole accused in Crime No.1531/2013 of Mavelikkra police station for offences punishable under section 498(A) and section 306 IPC. Respondents 2 and 3, who are the defacto complainants are the father-in-law and mother-in-law of the accused. 2. The marriage between the petitioner and the daughter of respondents 2 and 3 was solemnized on 18/10/2002 and thereafter they have been living together as husband and wife. Children were born in the above matrimonial relationship. On 1/12/2013, the wife committed suicide. The police registered a crime under Section 174 Cr.P.C for unnatural death. Thereafter, respondents 2 and 3 filed a complaint before the police alleging that she had committed suicide due to the physical and mental torture of the husband and that he had abetted her to commit suicide. On the basis of the above, investigation was conducted and final report was laid for offence punishable under Section 498A and Section 306 IPC Crl.M.C.No.2590/2016 2 against the accused. Annexure A is the final report. The case is now pending as C.P.No.20/2015 before the Judicial First Class Magistrate Court-I, Mavelikkara. While so, the petitioner/accused has approached this Court contending that there was a dispute between the petitioner and in-laws, which led to an unfortunate incident in the family. After registering the crime both families have discussed the issued and settled the matter. The children and the second and third respondents are living with the petitioner for the last so many months. Hence, it was contended that the affidavits have been filed by the second and third respondents as Annexures B & C stating that they have no grievance against the petitioner herein and offered their consent to quash the proceedings. It was further contended that even if the entire prosecution case is allowed to proceed, there was no chance of conviction and it could only be a waste of time. Hence, he sought to quash the entire proceedings. 3. In an offence under Section 306 IPC, the really aggrieved person who is the deceased is not before the court. Hence, the courts have to be extra cautious while considering a request for quashing the proceedings. The actual reason leading to the death is seldom directly available to the court Crl.M.C.No.2590/2016 3 and has to be gathered from the available materials. Hence, the petitioner was directed to argue the matter on merits. 4. The learned counsel for the petitioner, relying on authorities contended that there is absolutely nothing on record to show that the accused had abetted the suicide. It was contended that the abettment must be so proximate direct and the suicide must be the direct result and it must be so intended by a person abetting. It was further contended that though a suicide note was left behind, there was absolutely nothing in that note, pointing the finger at the husband, even by implication, suggesting that the husband had treated her cruely or that any of his conduct was directly responsible for her suicide. A copy of the suicide note was made available by the petitioner at the time of hearing. It is true that the suicide note allegedly written by the deceased specifically does not attribute anything adverse against the husband. In fact, she has written that nobody is responsible for her death. At the same time, her desperation is patent from the letter and that she was a problem to all. She has given several instructions to few named persons. Though there is no direct reference to the conduct of any person as responsible for her death, there are certain references which Crl.M.C.No.2590/2016 4 shows her state of mind and that she was in a disturbed state of mind. Hence, a mere perusal of the letter cannot be lead to a direct conclusion as to what prompted her to commit suicide. In other words, the purport of the above letter has to be explained and evaluated on the basis of the oral evidence. 4.The learned counsel for the petitioner relying on decision in **Cyriac v. S.I. of Police (2005 (3) KLT 673)** contended that it was not enough if the acts of the accused caused persuasion in the mind of the deceased to commit suicide. It is not what the deceased felt, but what the accused 'intended' by his act which is more important. In **Sonti Rama Krishna v. Sonti Shanti Sree and Anr.(2009 (1) KLT Suppl. 912(SC)** words uttered in a fit of anger or emotion without any intention cannot be termed as instigation. The same view was expressed in **Kishori Lal v. State of M.P.(2007 (3) KLT 259 (SC),** The same trend of view is seen to have taken in the later decisions in **Madan Mohan Singh v.State of Gujarat (2010 (4) KLT Suppl. 15 ( SC) and Mankamma v State of Kerala (2009 (4) KLT Suppl. 874 (SC).** **5.** It is true that the law is almost settled regarding the above point. However, it is to be evaluated whether the Crl.M.C.No.2590/2016 5 materials on record lead to such a conclusion at this juncture when the court is called upon to quash the proceedings on the basis of the available materials. Final report shows that the prosecution has produced ten witnesses for the purpose of proving the physical and mental harassment meted out to the deceased. There were allegations that he used to drink , that the husband used to allege illicit relationship with others against the wife and there are allegations of mental and physical cruelty. Those were sought to be proved through the above ten witnesses. Whether they will support the prosecution case at trial is a matter which will be clear at the time of trial. Hence, there are other materials than the suicide note which are relied on by the prosecution. Whether sufficient evidence can be marshalled by the prosecution and whether they are available at the time of trial cannot be decided at this point of time. 6. Having regard to this, I feel that on the basis of the available materials alone it will not be safe to quash the proceedings. Hence, Crl.M.C. is dismissed with a specific direction that whatever observations made are only for the purpose of this petition and shall not affect the final trial. Petitioner herein will also free to move the court below to seek Crl.M.C.No.2590/2016 6 discharge untramelled by any of the observations made above at the appropriate stage. ## **Sd/-** **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge