P. Mohanakrishnan and Sundaran @ Narayanankutty v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930** **CRL.REV.PET.NO. 74 OF 2001()** **----------------------------------------** **SC.80/2000 OF ASSISTANT SESSIONS COURT, OTTAPPALAM** **....................** ## **REVN. PETITIONER(S) - ACCUSED:** **--------------------------------------------** **1. P. MOHANAKRISHNAN, S/O. KRISHNAN NAIR, HARISREE NIVAS, KULAPPULLI, SHORNUR - 2.** **2. SUNDARAN @ NARAYANANKUTTY, S/O. NARAYANAN NAIR, KARTHIKA NIVAS, KULAPPULLY, SHORNUR - 2.** **BY ADV. SRI.RAJIT** ## **RESPONDENT(S) - COMPLAINAT:** **------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 3.10.2008, THE COURT 13/11/2008 PASSED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** = = = = = = = = = = = = = = = = = = = = = = = = ## **CRL.R.P. No.74 of 2001** = = = = = = = = = = = = = == = = = = = = = = = = = **Dated this the 13[th] day of November, 2008** ## **O R D E R** -------------- Revision Petitioners are aggrieved by the order dated 24.11.2000 in S.C. No.80 of 2000 on the file of the Subordinate Judge's Court, Ottapalam rejecting the request of revision petitioners to discharge them under Section 227 of the Criminal Procedure Code (for short, “Cr.P.C.”). 2. Heard both sides. 3. Revision petitioners were office bearers of Kulappully Thrippattakavu Temple Committee (for short, “the Committee”). Deceased Mohandas, S/o.Appukuttan Nair (for short “the deceased”) was traditionally engaged in reciting songs in that temple. It is alleged that in order to widen the way to his house, the deceased demolished a portion of the basement around a banyan tree situated near the temple and which was being worshiped by the devotees. Committee resolved to direct the deceased to restore the basement to its original position to facilitate worship by the devotees. They also wanted the deceased to allow the public to use the water tank situated in the property belonging to him. Deceased was ## **CRL. R.P. No.74 of 2001** ## **-: 2 :-** further directed to relinquish his reciting songs in the temple. Committee resolved as above in its meeting held on 1.2.1999. It is the case of the prosecution that the Committee published and circulated a notice among the public stating the above. Deceased felt annoyed, insulted and humiliated by the said action of the Committee, fell into a depressed state of mind and committed suicide by hanging on the branch of the very same banyan tree. Police registered a case against the revision petitioners as Crime No.40 of 1999 and after investigation, charge-sheeted them for the offence punishable under Section 306 of the Indian Penal Code (for short “the Code”). Learned Judicial First Class Magistrate committed the case for trial to the Sessions Court, Palakkad. Learned Sessions Judge made over the case for trial and disposal to the Assistant Sessions Court, Ottapalam where the impugned order was passed. 4. Learned counsel for revision petitioners contended that even if it is assumed that whatever stated by the prosecution are true, no offence under Section 306 of the Code is made out. Counsel contended that learned Sessions Judge should have found that there is no sufficient ground to proceed against the revision petitioners and accordingly discharged them under Section 227 Cr.P.C. Counsel placed reliance on the decisions in **Krishna Pillai v. State of** ## **CRL. R.P. No.74 of 2001** **-: 3 :-** **Kerala** (1988 (2) KLT 629), **State of West Bengal v. Orilal Jaiswal** (1994) 1 SCC 73), **Sanju v. State of Madhya Pradesh** (AIR 2002 SC 1998), **Kunjumon v. State of Kerala** (2004 (3) KLT 684), **Hans Raj v. State of Haryana** (2004) 12 SCC 257) and **Netai Dutta v. State of West Bengal** (2005 Crl.L.J. 1737). 5. Section 227, Cr.P.C. states that “if upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing”. This being a revision preferred under Sections 397 and 401, Cr.P.C. directed against the refusal of the learned Assistant Sessions Judge to discharge the revision petitioners under Section 227, Cr.P.C. one must proceed on the basis that the allegations made by the prosecution in the records produced by it are true and correct. Learned counsel for the revision petitioners also did not dispute this proposition. His contention is that learned Assistant Sessions Judge did not consider the records produced by the prosecution as regards the contention raised by the petitioners and instead, merely referring to the decision of the Honourable Supreme ## **CRL. R.P. No.74 of 2001** ## **-: 4 :-** Court in **State of Maharashtra v. Som Nath Thapa** (AIR 1996 SC 1744) to the effect that at the stage of framing charge probative value of the materials on record cannot be gone into and that the materials brought on record by the prosecution has to be accepted as true at that stage, rejected the request to discharge the revision petitioners. 6. Charge against revision petitioners is under Section 306 of the Code for abeting the commission of suicide by the deceased. “Abetment” is defined in Section 107 of the Code. It states that “a person abets the doing of a thing who:- (1) instigates any person to do that thing; or (2) engages with one or more other person or persons in any conspiracy for the doing of that thing if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing; or (3) intentionally aids, by any act or illegal omission the doing of that thing”. Explanation II states that “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 thing”. In this case there is no application of clause secondly of Section 107 of the Code. Also, there is no application of Explanation I. What therefore, is required to be considered is whether the case of the prosecution would ## **CRL. R.P. No.74 of 2001** ## **-: 5 :-** come within the mischief of clauses 1 and 3 and Explanation II of Section 107 of the Code. 7. To 'instigate' means to goad, urge, forward, provoke, invite or encourage to do an act. A person is said to 'instigate' another when he actively suggests or stimulates him to the act by any means or language direct or indirect whether it takes the form of express solicitation or encouragement. So far as the third clause is concerned, any facility afforded to the doing of an act is equivalent to aiding the doing of the act and act or omission which constitutes the aid must have been done intentionally. Intention to facilitate the commission of the offence is necessary to constitute the offence of abetment. An act which merely amounts to aiding the commission of an offence is not abetment. The aiding must snowball into intentionally aiding. Commission of the act must be the dominent intention of the person who aids it. In other words, there must be community of interest between abetter and the accused. 8. In **Krishna Pillai's case** it was held that active complicity with the required intention is the gist of the offence under Sections 107 and 306 of the Code. In order to amount to abetment, there must be mens rea or community of intention. Without knowledge or intention there can be no abetment and the knowledge ## **CRL. R.P. No.74 of 2001** ## **-: 6 :-** and intention must relate to the crime. In **Orilal Jaiswal's case** a married woman committed suicide in her in-law's house within ten months of her marriage. Prosecution alleged cruelty by her husband and mother-in-law. It was alleged that mother-in-law told her that she was a woman of evil luck, had swallowed her baby and therefore she should commit suicide. On facts it was found that the deceased was subjected to abuses, humiliation and mental torture, but that was not sufficient to attract the offence under Section 306 of the Code. In Sanju's case reliance was placed on **Mahendra Singh v. State** **of M.P.** (1995) Suppl.(3) SCC 731) where the appellant was charged for an offence under Section 306 of the Code based on a dying declaration of the deceased therein where it was stated that her mother-in-law, husband and sister-in-law harassed, beat and abused her. Her husband wanted to marry a second time and was having illicit connection with her sister-in-law. Because of those reasons and on account of harassment, she stated in the dying declaration that she wanted to die by burning. Apex Court considered the definition of the word, 'abetment' in Section 107 of the Code and held that the charge and conviction of the appellant for the offence under Section 306 of the Code is not sustainable merely on the allegation of harassment to the wife. It was found that neither of the ingredients ## **CRL. R.P. No.74 of 2001** ## **-: 7 :-** of abetment were attracted on the statement of the wife. Reliance was placed on the decision in **Ramesh Kumar v. State of Chhattisgarh** (2001) 9 SCC 610) where charge under Section 306 of the Code was based on a dying declaration where the wife had stated that previously there had been quarrel between her and her husband who had said that she could go wherever she wanted to go and that thereafter she attempted to commit suicide. Acquitting the accused, Apex Court observed that a word uttered in anger or emotion without intending the consequences to actually follow cannot be said to be instigation. In **Kunjumon's case** the finding was that merely because the accused had been cruel towards the deceased, it cannot be taken that he had intended the victim committing suicide or that he had instigated suicide. In **Hans Raj's case** the only fact established by the prosecution was that there were frequent quarrels between husband and wife sometimes involving physical assault on wife. There was no direct evidence to establish that the husband either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. Conviction under Section 306 of the Code was set aside though accused was found liable for the offence under Section 498A of the Code. 9. That being the legal position, I shall advert to the case of ## **CRL. R.P. No.74 of 2001** ## **-: 8 :-** the prosecution in this case. Allegation is that the Committee of which revision petitioners are office bearers resolved on 1.2.1999 to ask the deceased to restore the basement around the banyan tree to its original position, to permit the public to take bath in the pond situated in the land in his possession, he should stop reciting songs in the temple which he was doing traditionally and to engage another person for the said purpose. A notice was also published among the public in that line. Deceased left behind a death note which was taken into to custody by the Sub Inspector of Shornur Police Station at the time of inquest. In that death note it was stated that revision petitioners are mainly responsible for his committing the suicide and that since a few days revision petitioners had been mentally harassing him, last incident being what happened on the evening of 1.2.1999 near the banyan tree (meeting of the Committee). What is stated by the first informant is that there was a dispute between the deceased and members of the Committee and in that situation the Committee published notice (which was seized by the police in the course of investigation) and on the previous day of the incident (i.e on 1.2.199) the Committee met and due to the agony on account of the meeting of the Committee and public notice, the deceased committed suicide. In the notice dated 29.1.1999 (on behalf of the Committee and seized by the police) which is addressed to the devotees it is stated that ## **CRL. R.P. No.74 of 2001** ## **-: 9 :-** deceased for his personal interest demolished the basement of the banyan tree which is considered as “Moolasthanam” of the deity of the Temple, the Committee members inspected the place and found the allegation to be true. Committee members summoned the deceased who undertook to restore the basement but the deceased was acting contrary to that undertaking and hence the meeting of the Committee held near the Temple on 1.2.1999 at 6.00 p.m. 10. I went through the statement of witnesses recorded at the time of inquest. Witness stated that the meeting of the Committee was held near the banyan tree (on the evening of 1.2.1999) and directed the deceased to restore the basement around the banyan tree and may be on account of that mental agony, deceased committed suicide. In the course of investigation prosecution witnesses stated that the deceased was very sad about the discussion that took place in the meeting of the Committee. The wife and relatives of the deceased stated that on account of the above developments, deceased was in a very depressed state of mind on the night of 1.2.1999 and when the relatives advised him to go to bed, he commented that it is better for him to end his life on a piece of rope and later he was found hanging on the banyan tree. 11. The above being the case of the prosecution, the question is whether even if the entire allegations are accepted as true, it could ## **CRL. R.P. No.74 of 2001** ## **-: 10 :-** be stated that revision petitioners instigated the deceased to commit suicide, intentionally aiding his said act or, did any act in order to facilitate the commission of that act. Reading the decisions supra and Section 107 of the Code it is clear that the revision petitioners must have had the intention that by their act or omission the persons abetted would commit suicide. In other words intention on the part of the revision petitioners is essential. Going through the entire prosecution records, I was not able to find anything which indicated that the revision petitioners by their act intended that the deceased should commit suicide. Convening of the meeting, direction issued to the deceased to restore the basement, directing the deceased to permit the devotees to take bath in the pond in the land in his possession or even the direction to stop singing of songs in the Temple cannot be understood as acts by which the revision petitioners instigated the deceased to commit suicide, or that by their said acts they intentionally aided the deceased to commit suicide or even that said acts were done by them with the knowledge or in order to facilitate the deceased committing suicide. Intention of revision petitioners must have been to achieve the object of the deceased committing suicide. That is conspicuously absent in this case. If on account of the mental depression suffered due to the resolution taken by the Committee of which revision petitioners were office bearers the ## **CRL. R.P. No.74 of 2001** ## **-: 11 :-** deceased committed suicide, that cannot be brought within the mischief of Section 107 of the Code and consequently no charge could be sustained under Section 306 of the Code. On going through the order challenge I find that the learned Assistant Sessions Judge has not taken into consideration any of these facts and instead, referred to the scope of the enquiry under Section 227, Cr.P.C. and decided to proceed further in the matter. On the facts of the case I accept the contention of the revision petitioners that the records submitted by the prosecution do not show that there is sufficient ground to proceed against them. Consequently they are entitled to a discharge. Resultantly, revision petition is allowed. Revision petitioners are discharged under Section 227, Cr.P.C. Regarding disposal of material objects if any, appropriate orders shall be passed by the learned Assistant Sessions Judge after a period of three months from the date of receipt of a copy of this order. Criminal Miscellaneous Petition No.305 of 2001 shall stand dismissed. ## **THOMAS P.JOSEPH, JUDGE.** vsv **THOMAS P.JOSEPH, J. =================== CRL.R.P. NO.74 OF 2001 ===================** **O R D E R** **NOVEMBER, 2008**