Jayasree, Omana and Vijayakumari v. State of Kerala, Devadas, Arya and Adhithya

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 26[TH] DAY OF MAY 2022 / 5TH JYAISHTA, 1944 CRL.MC NO. 5547 OF 2019** **CP 43/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I,** ## **HARIPAD** ## **PETITIONERS/ACCUSED:** 1 JAYASREE AGED 42 YEARS W/O UDAYAN, AJAYA BHAVANAM, PUTHIYAVILA P.O., KANDALLOOR. 2 OMANA, AGED 50 YEARS W/O SUJATHAN, VADAKKALASSERIYIL, MUTHUKULAM NORTH, CHOOLATHERUVU P.O. 3 VIJAYAKUMARI, AGED 47 YEARS W/O RAMESAN, VISHNU NIVAS, MALAMEL BHAGAM, KAREELAKULANGARA P.O., ALAPPUZHA DISTRICT. BY ADVS. SRI.S.SANAL KUMAR SMT.BHAVANA V. SMT.T.J.SEEMA ## **RESPONDENTS/STATE & DE FACTO COMPLAINANT:** 1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 DEVADAS, AGED 54 YEARS S/O JANARDHANAN, URUVADAKKATHIL PEEDIKAYIL, PUTHIYAVILAMURI, KANDALLOOR VILLAGE, KAYAMKULAM, ALAPPUZHA DISTRICT-690 535. Crl.M.C.No.5547 of 2019 ..2.. *ADDL R3 ARYA, W/O.SHIJU RAJAN, CHAKKANSERIL VEEDU, NEAR SAKTHIKULANGARA DEVI TEMPLE, ADINADU VILLAGE, KOLLAM DISTRICT, PIN 690528. *ADDL R4 ADHITHYA, KOOTTIL THEKKETHIL VEEDU, PUTHIYAVILA MURI, ARATTUPUZHA EAST, ALAPPUZHA DISTRICT, PIN 690535. *(ADDL.R3 AND R4 ARE IMPLEADED AS PER ORDER DTD.27.10.2021 IN CRL.M.A.3/21 IN CRL.M.C.5547/2019). R1 BY SMT T V NEEMA -SR.Public Prosecutor THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26.05.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.5547 of 2019 ..3.. ## **ORDER** This Crl.M.C. has been filed to quash all further proceedings in Crime No.793/2017 of Kanakakkunnu Police Station now pending as S.C.No.630/2019 on the file of the Additional Sessions Court-I, Alappuzha. 2. The petitioners are the accused Nos.1 to 3. The 2[nd] respondent was the de facto complainant. He died during the pendency of the proceedings. Hence, additional respondents 3 and 4 were impleaded. 3. The offence alleged against the petitioners is punishable under Section 306 read with Section 34 of the IPC. The crime was registered on the basis of the statement given by the 2[nd] respondent. The wife of the brother of the 2[nd] respondent committed suicide on 03.07.2017 at about 4 pm. at her residence. The First Information Statement was laid by the 2[nd] respondent before Kanakakkunnu Police Station stating that the deceased borrowed money from numerous persons and since she was unable to pay off the debts, she committed Crl.M.C.No.5547 of 2019 **==> picture [22 x 8] intentionally omitted <==** suicide. The said statement was given on the date of her death, i.e., on 03.07.2017. Subsequently, an additional statement was given by the 2[nd] respondent on 06.07.2017 stating that it was on account of the petitioners demanding back the amounts that verbal abuse was poured on the deceased and she committed suicide. On the basis of the said statement, the petitioners were arrayed as accused and Section 306 read with Section 34 of the IPC was incorporated. 4. The prosecution allegations are as follows:- The deceased borrowed an amount of Rs.1,00,000/from the 1[st] accused for the purpose of meeting the expenses of her elder daughter on interest at the rate of 4% per annum. But the deceased could not pay the monthly interest fixed at the rate of Rs.4,000/-. Hence, the 1[st] accused asked for return of money. Specific demands were made over telephone many a time. On 03.07.2017 at 4 pm., the 1[st] accused along with the 2[nd] and 3[rd] accused went to the house of the deceased and demanded back the amount borrowed by her. It is alleged that the accused intimidated the deceased and subjected her Crl.M.C.No.5547 of 2019 **==> picture [22 x 8] intentionally omitted <==** to verbal abuse and on account of the same the deceased committed suicide by hanging. 5. After the investigation, the police filed final report against the petitioners under Section 306 read with Section 34 of the IPC. 6. I have heard Sri.Sanal Kumar, the learned counsel for the petitioners and Smt.T.V.Neema, the learned Senior Public Prosecutor for the 1[st] respondent. 7. The learned counsel for the petitioners submitted that, even if the entire allegations in the FIS together with the materials collected during the investigation are taken at their face value, no offence punishable under Section 306 of the IPC is made out. On the other hand, the learned Public Prosecutor submitted that there are sufficient materials on record to attract the ingredients of Section 306 of the IPC. 8. It is not in dispute that the deceased borrowed a sum of Rs.1,00,000/- from the 1[st] accused to meet the marriage expenses of her elder daughter. It is also not in dispute that the said amount could not be repaid in time. The Crl.M.C.No.5547 of 2019 ..6.. petitioners fairly conceded that on the date of the incident they went to the house of the deceased to demand back the money. But, according to them, they could not find the deceased there and hence they could not meet her. According to the prosecution, the accused persons met the deceased, intimidated her and subjected her to verbal abuse. It was on account of the same, she committed suicide. 9. Annexure-A1 is the FIR. It contains the FIS given by the 2[nd] respondent. In the FIS what was stated by the 2[nd] respondent was that the deceased borrowed money from numerous persons and since she was unable to pay off the debt, she voluntarily committed suicide. It is the very case of the petitioners also. But, later on, after three days, the 2[nd] respondent further stated that, it was on account of the petitioners' demanding back the amount lend and the verbal abuse poured on the deceased, she committed suicide. 10. Section 306 of the IPC states that, if any person commits suicide, whoever abets the commission of such suicide, shall be punishable with imprisonment of either Crl.M.C.No.5547 of 2019 **==> picture [22 x 8] intentionally omitted <==** description for a term which may extend to ten years, and shall also be liable to fine. Thus, the essential ingredients of the offence under Section 306 of the IPC are:- - (i) the abetment; - (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. 11. The offence of abetment is a separate and distinct offence in IPC. Section 107 of IPC defines abetment of a thing. A person, abets the doing of a thing, when (i) he instigates any person to do that thing; or (ii) engages with one or more other person or persons in any conspiracy for the doing of that thing; (iii) intentionally aids, by any act or illegal omission, the doing of that thing. The word “instigate” literally means to provoke, incite, urge on or bring about by persuasion to do anything. The Apex Court has consistently taken the view that in order to bring a case within the purview of Section 306 of the IPC, there must be a case of suicide and the accused must have played an active role in the commission of suicide by an act of instigation or doing certain act to facilitate the Crl.M.C.No.5547 of 2019 **==> picture [22 x 8] intentionally omitted <==** commission of suicide (See **Kishori Lal v. State of MP** [AIR 2007 SC 2457]). In **Amalendu Pal @ Jhantu v. State of West Bengal** [AIR 2010 SC 512] it was specifically held by the Apex Court that mere harassment without any positive action on the part of the accused proximate to the time of occurrence which lead to the suicide would not amount to an offence under Section 306 of IPC. In **Ude Singh and Others v. State of Haryana** [2019 KHC 6714] it was held that in the case of abetment of suicide, mere allegation of harassment of the deceased by the accused would not suffice unless there be such action on his part which compels the deceased to commit suicide. In **State of W.B. v. Orilal Jaiswal and another** [AIR 1994 SC 1418], the Apex Court observed that the Courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial court for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. Thus, the law is well settled that to constitute an offence of abetment of suicide under Section 306 Crl.M.C.No.5547 of 2019 ..9.. of the IPC, there must be proof of either any instigation or conspiracy or intentionally aiding or direct or indirect act of incitement to the commission of offence of suicide. A mere allegation of humiliation, harassment or threat unaccompanied by any incitement or instigation is not at all sufficient to attract the offence. 12. I went through the statement of the witnesses recorded by the Investigation Agency and the entire case diary. None of the witnessses have any case that the humiliation, harassment and threat were exercised by the petitioners with intention to drive the accused to commit suicide. The case records only show that, on the date of the incident, in the evening, the petitioners went to the house of the deceased and demanded back the money. Even the de facto complainant has admitted that the deceased has borrowed money from the petitioners. Thus, the petitioners have every right to demand back the same. In the absence of any materials to show that the petitioners made an active role by an act of instigating or intentionally aiding the deceased to Crl.M.C.No.5547 of 2019 **==> picture [28 x 8] intentionally omitted <==** facilitate the commission of suicide, no purpose will be served in proceeding further against the petitioners. Accordingly, all further proceedings against the petitioners in S.C.No.630/2019 on the file of the Additional Sessions Court-I, Alappuzha hereby stand quashed. The Crl.M.C. is allowed. Sd/- **DR.KAUSER EDAPPAGATH, JUDGE** skj Crl.M.C.No.5547 of 2019 ..11.. ## **APPENDIX OF CRL.MC 5547/2019** PETITIONERS' ANNEXURES ANNEXURE A1 A TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO 793/2017 OF KANAKAKKUNNU POLICE STATION, ALAPPUZHA, LAID BY THE 2ND RESPONDENT ON 3.7.2017. ANNEXURE A2 CERTIFIED COPY OF THE FINAL REPORT FILED BY THE KANAKAKUNNU POLICE STATION IN CRIME NO.793/2017.