Murukan P.S. and G. Vivak v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **MONDAY, THE 7TH DAY OF JULY 2014/16TH ASHADHA, 1936** **Crl.MC.No. 1937 of 2012 () ---------------------------** **AGAINST THE ORDER/JUDGMENT IN CP 2/2010 of J.M.F.C.-I,THRISSUR CRIME NO. 401/2009 OF VIYYUR POLICE STATION , TRISSUR.** **PETITIONER(S)/ACCUSED A1-A2:** **---------------------------** **1. MURUKAN P.S, AGED 46 YEARS, S/O. LATE MANI, ALANKKAR VILLAGE, MANGALAM MURI, CHENGANNUR TALUK, ALAPPUZHA DISTRICT.** **2. G. VIVAK, AGED 40 YEARS, S/O. V.K.G.NAIR, MANIMANGALAM VEEDU, CHEYANADU.P.O., CHENGANNUR TALUK, ALAPPUZHA DISTRICT.** **BY ADV. SRI.AJITH MURALI.** **RESPONDENT(S)/COMPLAINANT: -------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.JUSTIN JACOB.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 1937 of 2012 ()** ## **APPENDIX** **PETITIONER(S) EXHIBITS :** **ANX.A A TRUE COPY OF THE CHARGE SHEET IN CRIME NO. 401/2008 OF VIYOOR POLICE STATION.** **ANX.B A PHOTOCOPY OF THE ORDER IN B.A. NO. 4142/2009 DATED 11-8-2009 OF THIS COURT.** **RESPONDENTS' EXHIBITS : NIL.** **//TRUE COPY//** **P.A TO JUDGE** **amk** ## **A.HARIPRASAD, J.** **-----------------------------------------------Crl.M.C No.1937 of 2012 -----------------------------------------------Dated this the 7[th] day of July, 2014.** ## **O R D E R** Accused persons in Crime No.401/2009 of Viyoor Police Station registered under Sections 306 r/w 34 I.P.C have come up under Section 482 Cr.P.C. 2. Heard Sri.Ajith Murali, appearing for the learned counsel for the petitioner and Sri.Justin Jacob, learned Public Prosecutor. 3. Facts in brief, are as follows : Dr.Asokan, who was working as Orthopaedic Surgeon in Medical College, Thrissur committed suicide on 29-06-2009. The first petitioner is a Jeweller. Second petitioner is a friend and associate of the first petitioner. Case of the petitioners is that while the deceased was working at Medical College, Kottayam, he had purchased gold ornaments and birth stones to a tune of Rs.2,50,000/-. Thereafter, the deceased happened to get involved in some vigilance cases. Later, he was **Crl.M.C No.1937 of 2012 2** shifted from Medical College, Kottayam to Thrissur. In spite of repeated demands made by the first petitioner, the deceased did not pay off the liability. It is an admitted case that the petitioners had to the residence of the deceased at gone Mulankunnathukavu, Thrissur for demanding money. However, he committed suicide on 29-06-2009. Prosecution alleges that the accused persons intimidated him and abetted his suicide. 4. Learned counsel for the petitioners submitted that Annexure A final report and the materials in the case diary will not go to show that the petitioners ever abetted suicide of Dr.Asokan. Abetment is defined in Section 107 I.P.C, which reads as follows : _“_ _**107. Abetment of a thing** .- A person abets the doing of a thing, whoFirst.- Instigates any person to do that thin; or Secondly.- Engages with one or more other person or persons in any conspiracy for the_ **Crl.M.C No.1937 of 2012 3** _doing of that thin, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or_ _Thirdly.- Intentionally aids, by any act or illegal_ _omission, the doing of that thing._ _Explanation 1.- A person who, by wilful or misrepresentation, by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing._ _Illustration_ _A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C._ **Crl.M.C No.1937 of 2012 4** _Explanation 2.- Whoever, either prior to or at the time_ _of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.”_ 5. Section 108 I.P.C defines 'Abettor' as a person who abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor. 6. Section 306 I.P.C reads as follows : “ _Abetment of suicide_ .- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with death or imprisonment for a term not exceeding ten years, and shall also be liable to fine.” 7. Learned counsel for the petitioners submitted that the **Crl.M.C No.1937 of 2012 5** first petitioner has every right to demand his money back from the deceased. Second petitioner was only accompanying him when he went to the house of the deceased. Therefore, it cannot be stated that they played any role in the suicide committed by Dr.Asokan, much less commission of any offence. 8. Learned Public Prosecutor submitted that the materials in the case diary would show that the accused persons repeatedly threatened the deceased that they would not allow him to live peacefully in Thrissur. A suicide note purported to be written and signed by deceased Dr.Asokan is also produced as part of the case diary. I have carefully gone through the case diary. It is seen that the deceased had prepared a suicide note on 22-06-2009. It is mentioned therein that on the said day two calls were received from a particular mobile number which was found to be that of the second petitioner. The caller threatened the deceased that the latter would not get peace of mind at **Crl.M.C No.1937 of 2012 6** Thrissur and a political party would create problems. Therefore, the deceased allegedly scribbled that he intended to commit suicide. Interesting fact is that the suicide note was prepared on 22-06-2009 at 2.15 p.m and he died only on 29-06-2009. It is highly improbable to think that the threat and intimidation must have persisted for seven days and that too on a person who is a qualified medical practitioner, with educational background and worldly experience. 9. Learned counsel for the petitioners placed reliance on the following decisions : Learned Single Judge of this Court in _**Unnikrishnan Nair v. State of Kerala**_ ( _**2013(1) K.L.T 30)**_ considered the scope and effect of leaving a suicide note by the deceased. It has been held that mere mentioning of certain names in the suicide note alone would not attract an offence under Section 306 I.P.C In another decision relied on by the learned Single Judge in _**Sudhakaran**_ **Crl.M.C No.1937 of 2012 7** _**and Others v. State of Kerala (2013(4) K.H.C 354)**_ held that in order to attract the offence under Section 306 I.P.C, the mens rea has to be clearly established and in the absence of existence of mens rea, the offence cannot be said to have been committed. 10. In _**Mohandas @ Mohan P v. State of Kerala (2013 K.H.C 330)**_ , a Division Bench of this Court while considering a case involving the allegation of rape and abetment of suicide held as follows : _“ We are satisfied that the chain of circumstances relied upon by the prosecution are so weak to connect the accused with the commission of the offences alleged. It cannot lead to the only hypothesis of the guilt of the accused. Going by the evidence, the foetus was more than 36 weeks old, viz. 9 months and more. Therefore, the alleged rape would have been committed 9 months prior to the death of deceased Bharathan, his wife and daughter. There is no evidence worth in_ **Crl.M.C No.1937 of 2012 8** _support of the prosecution case regarding the rape committed at that point of time. As we have already discussed, the prosecution did not attempt any DNA test of the foetus with the blood samples of the accused. Therefore, no evidence worthwhile regarding that is available to connect the accused. When the ingredients under S.107 are not made out and there is lack of evidence to prove the offence under S.376 I.P.C., naturally the allegation of commission of offence under S.305 and S.306 also falls to the ground.”_ 11. Considering the entire facts and circumstances as borne out from the case diary, it is deducible that the commission of suicide by the deceased was not on account of any reckonable threat, intimidation, inducement or abetment. Therefore, I am of the view that in the facts and circumstances of the case, the prosecution is an abuse of process of the court **Crl.M.C No.1937 of 2012 9** and the petitioners are entitled to get relief claimed in the petition. In the result, Crl.M.C is allowed. Annexure A charge sheet in Crime No.401/2009 of Viyoor Police Station against the petitioners and all subsequent proceedings on the file of the Judicial First Class Magistrate Court – I, Thrissur which is pending as C.P. No.2/2010 is hereby quashed. All pending interlocutory applications will stand dismissed. **Sd/-** **A.HARIPRASAD, JUDGE.** amk //True Copy// P.A to Judge **Crl.M.C No.1937 of 2012 10**