K.V. Santosh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941** **BAIL APPL.NO.5538 OF 2019** **CRIME NO.339/2019 OF PARIYARAM POLICE STATION, KANNUR** ## **PETITIONER/ACCUSED:** **K.V.SANTHOSH, AGED 42 YEARS, SON OF K.V. NARAYANAN, KANNARATH VALAPPIL HOUSE, KEEZHARA P.O, VIA CHERUKUNNU, KANNUR, PIN-670 301** **BY ADV. SRI.V.R.REKESH** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SRI.AMJAD ALI, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 04.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. -------------------------------------------B.A. No. 5538 of 2019 -------------------------------------------Dated this the 4[th] day of September, 2019 ## O R D E R The subject crime in this case in Anx.I Crime No.339/2019 of Pariyaram Medical College Police Station, which was initially registered on 23.6.2019 at 12 noon under Sec.174 of the Cr.P.C., in relation to the unnatural death of the deceased lady concerned, pursuant to the FIS given by her husband's brother. The Police after investigation has altered the case to the one in which the petitioner herein has been arrayed as the sole accused for the offence punishable under Sec.306 of the IPC (abetment to commit suicide). 2. The prosecution case in short is that, the 2[nd] son of the aforementioned deceased lady had seen on 19.6.2019 in the afternoon that she was found hanging on a rope attached to the pipe appurtenant to the roof sheet in the work area attached to the kitchen in the house, and he had immediately called out other persons in the locality and she was taken to three hospitals and ultimately she succumbed to death on 23.6.2019. B.A. No. 5538 of 2019 ..3.. 3. Presumably on account of the death of the lady and rites to be conducted thereafter, it was the deceased lady's husband's brother who has given the instant Anx.I FIS on 23.6.2019 at 12 noon stating that, according to the information he could collect, that initially the 2[nd] son of the aforementioned deceased lady had found her hanging on a rope attached to the pipe appurtenant to the roof sheet in the work area on 19.6.2019 at about 3.15 pm, and that she was taken to the hospital, and that her husband and 2[nd] son had interacted with her, and according to the information that the 1[st] informant has, she has not told either her husband or 2[nd] son anything about the incident relating to her attempt to commit suicide, and that later she succumbed to death on 23.6.2019. It is on the basis of said FIS that the instant Anx.I Crime No.339/2019 of Pariyaram Medical College Police Station has been registered under Sec.174 of the Cr.P.C. as afore stated. Further the Police after investigation has collected statements from about 24 witnesses including the husband of the deceased lady, her two sons, relatives, neighbours, doctors as well as the Madai Co-operative Bank officials, Panchayat Secretary, Village Officer, etc. B.A. No. 5538 of 2019 ..4.. 4. The Investigating Officer in this case has filed a statement dated 3.9.2019 through the learned Prosecutor. From the Sec.161 Cr.P.C. Statement given by K.A.Nikhil, the younger son of the deceased lady, it is revealed that on 19.6.2019 when he reached back home from college at 3 pm, he found that his mother was in a mental disturbance and he had taken his mother's mobile phone to search in his Facebook wall, and in the midst of that at about 3.23 pm on that day a Whatsapp message had come from Mobile Cell bearing No. _“9961421397”_ and opened the message and he had seen naked and obscene pictures of a male. When he enquired about it to his mother, she cried and replied that the sender has been used to send this like pictures several times, and whenever she given warning to him to stop sending, he threatened her by saying that he had saved screen shots of the Whatsapp wall which shows the _“delivered”_ and _“seen”_ buttons indicating that she enjoyed all these pictures for a long time and the same will be published among others, and that if she denied to open these Whatsapp messages, then he used to remind her and threaten to open through voice calls from the Mobile Cell bearing B.A. No. 5538 of 2019 ..5.. No. _“8075003279”_ . While she tried to stop him from these activities by saying that she would commit suicide, the sender told her that _“go and commit”._ The abovesaid 2[nd] son had requested her to reveal the identity of the sender and she told that it was one _“Santhosh, an employee of Madai Bank, Edakkom Branch”_ . Thereupon he had gone out from house to Edakkom Branch of Madai Co-operative Bank to ask Santhosh about these matters, but when Nikhil had reached there the said Santhosh had left the Bank. Thereafter Nikhil had immediately come home along with his father Ajikumar, and there at 3.50 pm he had found his mother hanging on a rope attached to the pipe appurtenant to the roof sheet in the work area attached to the kitchen in the house, and he had immediately called out other persons in the locality and she was taken to three hospitals and ultimately she succumbed to death on 23.6.2019. Her husband Ajikumar and elder son Akhil have also given statements in accordance with version given by the younger son Nikhil, it is pointed out by the Prosecution. 5. Further it is stated in the abovesaid statement that from the investigation conducted so far with the help of Cyber Cell B.A. No. 5538 of 2019 ..6.. of, Police, it has been found that the owner of both the above referred Mobile cell numbers is “ _Santhosh K.V., S/o.Narayanan K.V., 42/19, Kannarath Valappil, Keezhara, Cherukunnu”,_ who is none other than the petitioner herein. On the request, the Cyber Cell has also provided CD including photo of Whatsapp wall showing five messages came from the cell of Santhosh were deleted by him at 3.23 pm on 19.6.2019 just before the incident of hanging. From the abovesaid aspects, it is urged by learned Prosecutor on the basis of instructions of the Investigating Officer that it is manifestly clear that the petitioner has involvement in the abetment and instigation of commission of suicide by the deceased lady. 6. Further it is stated in the abovesaid statement by the Investigating Officer that pursuant to the preliminary enquiry conducted by bank officials of Madai Co-operative Bank, Edakkom Branch, against the petitioner who is an employee of the said Bank, they have suspended him from service on account of his involvement in the above incident. Further that the Mobile Cell used by the deceased lady was sent to Regional Forensic Science B.A. No. 5538 of 2019 ..7.. Lab, Kannur, for retrieving obscene picture messages send by petitioner accused to deceased lady through Whatsapp. Accordingly it is submitted by the Investigating Officer that the investigation so far conducted including the statements of about 24 witnesses and cross checking all the call details of the deceased lady, it is revealed that the petitioner accused who is an employee of the said Bank used to frequently send obscene Whatsapp messages to her despite a clear stand taken by her that he should stop it, and that he had taken screen shots of such messages and intimidated her that he would show these messages to others, and that he used to threaten her and compel through phone to engage in Whatsapp chatting, and that this clearly indicates that it is due to the unbearable mental agony of such repeated action done by the petitioner accused that she was constrained to take the extreme step of ending her life which led to her attempt of commit suicide on 19.6.2019 at 3.50 pm by hanging, and her death in the hospital on 23.6.2019. Hence it is urged by the Prosecutor that it is on this basis that reports have been duly submitted by the competent criminal court concerned for deleting the provision of Sec.174 of B.A. No. 5538 of 2019 ..8.. the Cr.P.C. and to add the offence under Sec.306 of the IPC, and to add the name of the petitioner herein as accused in the accused array of Anx.I FIR. Further it is pointed out by the learned Prosecutor on the basis of instructions of the Investigating Officer that the mobile cells used by accused person have been seized and some more witnesses have to be questioned and recorded, and that on the basis of these materials, learned Prosecutor would urge that, if the investigation has to be proceed fruitfully, it is highly imperative that the custodial interrogation of the petitioner is obtained. 7. Counsel for the petitioner would point out that there are no materials to connect the petitioner with the alleged offences of abetment and instigation to commit suicide. Further the counsel would rely on various rulings of the Apex Court and this Court which had dealt with the parameters of legal ingredients to be satisfied in respect of offences under Sec.107 of the IPC (abetment) and Sec.306 of the IPC (abetment to commit suicide) in various decisions as in _**Sanju Alias Sanjay Singh Sengar v. State of M.P. [2002 SCC (Cri) 1141 =(2002) 5 SCC 371],**_ B.A. No. 5538 of 2019 ..9.. _**Krishnadas P. (Dr.) (Adv.) v. State of Kerala and Another [2017 (2) KLT 579], Gurcharan Singh v. State of Punjab [2016 (12) SCALE 414] and Harikrishnan and Another v. State of Kerala and Another [2019 (3) KHC 437].**_ On the basis of principles laid down in the abovesaid rulings, the counsel for the petitioner would strongly urge that none of the vital requirements of abetment under Sec.107 of the IPC and abetment to commit suicide under Sec.306 of the IPC are established in this case. 8. Whereas the learned Prosecutor would point out that the abovesaid crucial aspects which have been revealed from the investigation so far would clearly and unerringly point that, it was the frequent sending of dirty and obscene pictures from the Whatsapp account of the petitioner accused through his Mobile cell to the deceased lady and his constant threat and intimidation that he would reveal the details of receipt of Whatsapp messages by her,etc which has put great amount of pressure on the lady, and that in these circumstances the investigation is proceeding in right and proper lines, and that the implication of the petitioner in the B.A. No. 5538 of 2019 ..10.. above crime as an accused for the offence as per Sec.306 of the IPC cannot be legally faulted with any manner, given the factual elements disclosed in the investigation so far. 9. Further the learned Prosecutor would point out that the FIS was in fact given by the deceased lady's husband's brother on 23.6.2019 at 12 noon, at a time immediately after her death when the immediate family members like her husband and sons were involved with other responsibilities for rites and rituals of her death, and the information given by the lady's husband's brother was primarily hearsay which he gather from others, and his version that the 2[nd] son had seen the lady found hanging in the work area of the house at 3.15 pm is not fully correct, and investigation has revealed based on the statement given by none other than the son who had directly witnessed the scene is that, he had seen the lady hanging on the pipe attached to the work area's roof sheet on 19.6.2019 at about 3.50 pm, and the incongruity in that regard all are quite natural in a case where a suicide has happened in a family, and information is conveyed not by an immediate member of the family but by a person like the first informant in the instant case. B.A. No. 5538 of 2019 **==> picture [22 x 7] intentionally omitted <==** 10. After hearing both sides and after careful evaluation of the facts and circumstances of the case, this Court is not in a position to hold that the investigation so far conducted so as to implicate the petitioner for the offence as per Sec.306 of the IPC is to be faulted with in serious manner or that the investigation has proceeded in the wrong and improper lines, etc. So also, this Court is now not equipped with any objective materials so as to over rule the considered stand of the Investigating Officer that the custodial interrogation of the petitioner is highly imperative for the further progress of investigation. Taking into consideration the abovesaid factual aspects, more so particularly, some of the facts highlighted by the Prosecutor on the basis of the averments in the statement dated 3.9.2019 filed by the Investigating Officer (copy of which has also been served to the petitioner's counsel), this Court is not in a position to accede to the plea of the petitioner for grant of anticipatory bail. 11. Sri.V.R.Rekesh, learned counsel appearing for the petitioner accused would then submit on the basis of instructions of his party that the petitioner would immediately surrender before B.A. No. 5538 of 2019 ..12.. the Investigating Officer in relation to the abovesaid crime for interrogation purposes, so that his bail application could be considered on the same day of his production by the jurisdictional Magistrate Court concerned, etc. 12. As regards the above submission made on behalf of the petitioner, it is only to be noted that nothing in this order will preclude the petitioner from seeking his other appropriate remedies in the manner known to law. Moreover the learned Prosecutor has not serious objection that the petitioner would surrender before the Investigating Officer, etc. Taking note of the abovesaid submission made by the petitioner, the following directions and orders are passed. - _i. The petitioner will immediately surrender before the Investigating Officer in relation to the instant crime for interrogation purposes at any rate by 9 am on any day on or before 11.9.2019, or within such time limit that may be extended by the Investigating Officer as he deems fit and proper._ - _ii. The petitioner will fully co-operate with the Investigating Officer in the conduct of the above interrogation process._ - _iii. The petitioner should surrender his mobile cell phones to the Investigating Officer_ - _iv. After the interrogation process is over, the Investigating Officer_ B.A. No. 5538 of 2019 ..13.. _will produce the petitioner before the jurisdictional Magistrate Court concerned in relation to this crime, and thereupon the learned Magistrate will consider and pass orders on the bail application of the petitioner on the same day of his production, and after affording reasonable opportunity of being heard to the petitioner's counsel and the learned Prosecutor, and after taking into account the facts and circumstances of the case._ 13. It is made clear that the abovesaid directions are issued only on the basis of voluntary submission made on behalf of the petitioner and it is for the learned Magistrate to independently consider the plea for bail on merits, after hearing both sides and after taking into account all the facts and attendant circumstances of this case. With these observations and directions the above Bail Application will stand dismissed. Sd/- ALEXANDER THOMAS, JUDGE MMG