Lagesh @ Kannan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **WEDNESDAY, THE 12[TH] DAY OF OCTOBER 2022 / 20TH ASWINA, 1944 CRL.REV.PET NO. 1399 OF 2017** **CRIME NO.1054/2011 OF VAIKOM POLICE STATION, KOTTAYAM SC 141/2014 OF THE ASSISTANT SESSIONS COURT, KOTTAYAM** ## **REVISION PETITIONER/ACCUSED:** **LAGESH @ KANNAN AGED 36 YEARS, S/O. MOHANAN, PUTHENKULANGARA HOUSE, KARIKKODY KARA, MULAKKULAM VILLAGE, KOTTAYAM.** **BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.NANDAGOPAL S.KURUP SRI.A.N.SINOJ** ## **RESPONDENTS/COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.** **ADDL.R2 *GOPI, S/O. KUMARAN, MATTAVATHATHARA HOUSE, THALAYAZHAM VILLAGE,ULLALA P.O, VAIKOM, KOTTAYAM IMPLEADED AS ADDITIONAL R2 AS PER ORDER DATED 8.3.2012 IN CRL M A 1377/18 IN CRL R P 1399/17** **BY ADV SRI.NIRMAL V. NAIR SRI SANGEETHA RAJ-PP** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.REV.PET NO. 1399 OF 2017** 2 ## **O R D E R** This Crl.R.P has been filed challenging the charge framed by the Assistant Sessions Court, Kottayam (for short 'the court below') in S.C.No.141 of 2014 as per the order dated 22/06/2017. 2. The petitioner is the accused. The 2nd respondent is the defacto complainant. The offence alleged against the petitioner is punishable under Section 306 of the Indian Penal Code. The prosecution case in short is as follows: The petitioner was engaged in a love affair with the deceased, a young lady named Ragi. While so, he married another lady. Suppressing the very factum of his marriage, he continued his love affair with the deceased. On 13.11.2011, the petitioner called Ragi at 6.23 P.M and thereafter Ragi called the petitioner at 6.45 P.M., but did not pick the call. As the petitioner married another lady while he was in love affair with Ragi and as he did not attend her phone call, the same caused her mental **CRL.REV.PET NO. 1399 OF 2017** 3 agony which forced her to commit suicide. Thus, it is alleged that the petitioner committed the offence under Section 306 of IPC. 3. The petitioner filed an application for discharge before the court below as CMP No.186/2015 under Section 227 of Cr.P.C. The court below dismissed the said application as per Annexure A3. Thereafter, the court below framed the charge. Challenging the same, this Revision Petition has been preferred. 4. I have heard Sri.Nandagopal S. Kurup, the learned counsel for the petitioner and Sri.Nirmal V Nair, the learned counsel appearing for the 2nd respondent who reported no instruction. The 2nd respondent is absent. I have perused the records. 5. The learned counsel for the petitioner submitted that even if the entire allegations in the FIS together with the materials collected during investigation are believed in _toto_ , no offence under Section 306 of IPC is **CRL.REV.PET NO. 1399 OF 2017** 4 attracted. The learned counsel further submitted that since there is no sufficient ground for proceeding against the accused, the court below ought to have discharged him. 6. The perusal of the case record would show that the deceased was in love with the petitioner and the petitioner later on, married another lady but still he continued the relationship with the deceased and finally when she came to know of the same, she committed suicide. It is alleged that on 13/11/2011, the deceased contacted the petitioner over phone and after few hours, she committed suicide. The copy of the FI statement as well as true copies of the 161 statement of CWs.2 to 6 have been produced. Their statements would only show that they all knew that the deceased was in love with the petitioner. CW6 further stated that the deceased had told her that she was in love with the petitioner and that she did not believe the marriage of the petitioner with another lady that took place about an year back and that **CRL.REV.PET NO. 1399 OF 2017** 5 she showed the wedding card and thereafter, the deceased believed the same. She further stated that, since then, she was very upset. She also stated that the deceased committed suicide because of the fact that the petitioner cheated her by marrying another lady. 7. Section 306 of IPC says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. The essential ingredients of the offence under Section 306 IPC are (i) abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. Section 107 of IPC defines abetment of a thing. It says that 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 abetment may be by **CRL.REV.PET NO. 1399 OF 2017** 6 instigation, conspiracy or intentional aid as provided under Clause (iii) of Section 107 of IPC. Under all these situations, active or direct act which lead to the deceased to commit suicide is essential to bring the offence under Section 306 of IPC. 8. The Apex Court has consistently taken the view that in order to bring a case within the purview of Section 306 of 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 commission of suicide {See **Kishori Lal v. State of M.P** [(2007) KHC 3745], **Kishangiri Mangalgiri Goswami v. State of Gujarat** [(2009) KHC 157], **Amalendu Pal @ Jhantu v. State of West Bengal** [(2010) KHC 6052] and **Velladurai v. State, represented by Inspector of Police** [(2021) KHC 6460]}. Thus, the law is clear that to constitute an offence of abetment of suicide under Section 306 of IPC, there must be proof of either any instigation or conspiracy or intentionally aiding or **CRL.REV.PET NO. 1399 OF 2017** **==> picture [7 x 9] intentionally omitted <==** direct or indirect act of incitement to the commission of offence of the suicide. 9. Now, let me examine the materials on record to find out whether the ingredients of Section 306 of IPC are attracted. The prosecution does not have a case at all nor could it be inferred from the final report that the petitioner in any way instigated or intentionally aided the act of incitement to the commission of the offence nor does it have a case that the petitioner conspired with any other person. The prosecution also does not have a case that the petitioner willfully suppressed or willfully concealed the factum of his marriage with another lady so as to see that the deceased commits suicide. As the act of suppressing the marriage could never be inferred or assumed to be one with the intention to drive or compel the deceased to commit suicide, it can never be presumed that the petitioner intended to abet the deceased to commit suicide. 10. The learned counsel for the petitioner has also **CRL.REV.PET NO. 1399 OF 2017** 8 invited my attention to the writings of the personal diary of the deceased as described in Annexure A4 Scene Mahazar. It shows that the deceased was mentally disturbed and she had a tendency to end her life even before 02/12/2010, the date of marriage of the petitioner with another lady. The statement of the mother of the deceased as well as the writings in her diary would show that the deceased had depression. In short, in the absence of _prima facie_ materials to show that the petitioner made an active role by the act of instigation or intentionally aiding the deceased to facilitate the commission of suicide, it cannot be said that the ingredients of the offence under Section 306 of IPC are attracted. 11. The court below in Annexure A3 order held that the materials placed by the prosecution would _prima facie_ reveal that the petitioner put the deceased in a circumstance leading to commit suicide being left with no option. Even that would not attract Section 306 of IPC **CRL.REV.PET NO. 1399 OF 2017** 9 unless abetment, instigation or conspiracy are alleged and proved. For these reasons, I hold that there is no sufficient materials to proceed against the petitioner under Section 306 of IPC. Hence, the order framing charge against the petitioner by the court below is hereby set aside. All further proceedings against the petitioner in S.C.No.141 of 2014 on the file of the Assistant Sessions Court, Kottayam, are hereby quashed. Crl.R.P is allowed as above. Sd/- **DR.KAUSER EDAPPAGATH, JUDGE** AS **CRL.REV.PET NO. 1399 OF 2017** 10 ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** |**ANNEXURE A1**|**COPY OF THE FIRST INFORMATION REPORT IN**| |---|---| ||**CRIME NO.1054/2011 OF VAIKOM POLICE**| ||**STATION, KOTTAYAM.**| |**ANNEXURE A2**|**TRUE COPY OF THE FINAL REPORT IN**| ||**S.C.NO.141/2014 ON THE FILES OF THE**| ||**PRINCIPLE ASSISTANT SESSIONS COURT,**| ||**KOTTAYAM.**| |**ANNEXURE A3**|**COPY OF THE ORDER DATED 22.06.2017 IN CMP**| ||**NO.186/2015 IN SC.NO.141/2014 PASSED BY**| ||**THE PRINCIPLE ASSISTANT SESSIONS COURT,**| ||**KOTTAYAM**| |**ANNEXURE A4**|**TRUE COPY OF THE SCENE MAHASSER DATED**| ||**14.11.2011 IN S.C.NO141/2014 PASSED BY**| ||**THE PRINCIPLE ASSISTANT SESSIONS COURT,**| ||**KOTTAYAM.**| |**ANNEXURE A5**|**COPY OF THE 161 STATEMENT OF CW2**| |**ANNEXURE A6**|**COPY OF THE 161 STATEMENT OF CW3**| |**ANNEXURE A7**|**COPY OF THE 161 STATEMENT OF CW4**| |**ANNEXURE A8**|**COPY OF THE 161 STATEMENT OF CW5**| |**ANNEXURE A9**|**COPY OF THE 161 STATEMENT OF CW6**|