Rahul Chandran, Hareesh K.H., and Umesh Unnikrishnan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942** ## **Bail Appl..No.1224 OF 2021** **CRIME NO.1001/2020 OF Mulanthuruthy Police Station , Ernakulam** ## **PETITIONER/S:** |**1**||**RAHUL CHANDRAN**| |---|---|---| |||**AGED 23 YEARS**| |||**KOLLAMPARAMBIL HOUSE, MAMPUZHA, KULAYITTIKKARA P.O.,**| |||**KANJIRAMATTOM, ERNAKULAM**| |||**682315**| |**2**||**HAREESH K.H.**| |||**AGED 22 YEARS**| |||**S/O HARIDAS, KOLLAMPARAMBIL HOUSE, MAMPUZHA,**| |||**KULAYITTIKKARA P.O., KANJIRAMATTOM, ERNAKULAM**| |||**682315**| |**3**||**UMESH UNNIKRISHNAN**| |||**AGED 21 YEARS**| |||**S/O UNNIKRISHNAN, KIZHAKKE MANKUZHY HOUSE,**| |||**MAMPUZHA, AMBALLUR, ERNAKULAM**| |||**682315**| |||**BY ADV. SRI.K.V.SABU**| |**ENT/S**|**:**|| |||**STATE OF KERALA**| |||**REPRESENTED BY PUBLIC PROSECUTOR,**| |||**HIGH COURT OF KERALA**| |||**682031**| |||**R1 BY PUBLIC PROSECUTOR**| ## **RESPONDENT/S:** ## **OTHER PRESENT:** ## **SMT.V.SREEJA -PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Bail Appl..No.1224 OF 2021 2** ## **O R D E R** ## **Dated this the 12th day of March 2021** Application for anticipatory bail under Section 438 of Cr.P.C. Applicants are accused Nos.1 to 3 in Crime No.1001/2020 of Mulanthuruthy Police Station, Ernakulam for having allegedly committed offences punishable under Sections 323, 325, 341 and 306 r/w Section 34 of IPC. 2. The prosecution case, in brief, is that the applicants' neighbour and distant relative one Nandakumar committed suicide during some time on the night of 30.09.2020 by hanging himself in his house. It is alleged that the applicants had assaulted him the previous day and caused hurt including a grievous injury to him and, thus abetted commission of such suicide. 3. The applicants state that the allegations are not true and that the deceased was a habitual drunkard, and used to frequently pick up a quarrel with everyone, including the applicants, who are his neighbours and relatives. His own mother staying with him, had after a quarrel left the house to stay with his brother. Such was **Bail Appl..No.1224 OF 2021 3** his behaviour. Because of his drinking habits, he often fell down in an inebriated condition and sustained injuries due to that. Merely because the postmortem report revealed certain antemortem injuries on his body by itself would not indicate that the applicants were responsible for his suicide and had abetted him to commit suicide. There is no suicide note recovered. The applicants state that they do not have any criminal antecedents. They are willing to cooperate with the investigation and hence seek pre-arrest bail. 4. Heard the learned counsel for the applicants and the learned Public Prosecutor. 5. 'Abetment' in Section 306 I.P.C. has to be understood with reference to its definition given in Section 107 I.P.C. Considering the scope of Section 107 I.P.C. the Supreme Court in _**C.B.I. v. V.**_ ## _**C. Shukla [AIR 1998 SC 1406]**_ observed thus: _". . .a person abets the doing of a thing when he does any of the acts mentioned in the following three clauses._ _(i) instigates that person to do that thing._ _(ii) engages with one or more other person or persons in any conspiracy for the doing of those things._ ## **Bail Appl..No.1224 OF 2021 4** _(iii) Intentionally aids, by any act or illegal omission, the doing of that thing._ _So far as the first two clauses are concerned it is not necessary that the offence instigated should have been committed. For understanding the word 'aid' in the third clause it would be advantageous to see Explanation 2 in S. 107, I.P.C., which reads thus :_ _"Whoever, either prior to or at the time of the commission of the act, does anything in order to facilitate the commission thereof, is said to aid the doing of that act."_ _It is thus clear that under the third clause when a person abets by aiding, the act so aided should have been committed in order to make such aiding an offence.. . ."_ ## 6. In _**Sia Ram v. State of U.P. [AIR 1975 SC 175]**_ , the Supreme Court held that in order to constitute abetment, the abettor must be shown to have intentionally aided the commission of the crime. It is clearly held that mere proof that the crime could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirement of S. 107, I.P.C. Various High Courts have taken a view that merely because a person committed suicide by feeling insulted or humiliated, due to the comments or utterances made by the accused, the accused ## **Bail Appl..No.1224 OF 2021 5** cannot be said to be guilty of an offence under S. 306, I.P.C. In _**Devraj v. State of H. P. [1991 (3) Crimes 383]**_ , if a partner in a firm committed suicide due to the other partners (accused) taking away large sums of money out of partnership fund for various purposes and their not rendering an account to the deceased, and for not permitting the deceased utilizing the profits, the other partners in the firm who are accused of an offence under S. 306, I.P.C. for the suicide of the deceased, were held to be not guilty of such offence. ## 7. In _**Amalendu Pal v. State of West Bengal [(2010) 1**_ _**SCC 707]**_ , the Supreme Court, having adverted to the earlier decisions, observed: _“_ _**12.** ..It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the Accused which led or compelled the person to commit suicide, conviction in terms of Section 306 Indian Penal Code is not sustainable.”_ The Court noted that before a person may be said to have **Bail Appl..No.1224 OF 2021 6** abetted the commission of suicide, they "must have played an active role by an act of instigation or by doing a certain act to facilitate the commission of suicide". ## 8. In _**S.S. Chheena v. Vijay Kumar Mahajan [(2010) 12**_ ## _**SCC 190]**_ , the Hon'ble Supreme Court observed thus: _“_ _**25.** Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the Accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person Under Section 306 Indian Penal Code there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.”_ ## 9. Recently, in _**M. Arjunan v. State (represented by its**_ ## _**Inspector of Police)[(2019) 3 SCC 315]**_ , the Hon'ble Supreme Court elucidated the essential ingredients of the offence under Section 306 of the Indian Penal Code and held thus: _“_ _**7.** The essential ingredients of the offence Under Section 306 Indian Penal Code are: (i) the abetment; (ii) the intention of the Accused to aid or instigate or abet the deceased to commit suicide. The act of the Accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There_ ## **Bail Appl..No.1224 OF 2021 7** _should be evidence capable of suggesting that the Accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied the Accused cannot be convicted Under Section 306 Indian Penal Code.”_ 10. Again, in _**Ude Singh and Ors. v. State of Haryana [2019 KHC 6714 : AIR 2019 SC 4570]**_ , the Supreme Court expounded on the ingredients of Section 306 of the Indian Penal Code, and the factors to be considered in determining whether a case falls within the ken of the aforesaid provision, as follows: _“_ _**38.** In cases of alleged abetment of suicide, there must be a proof of direct or indirect act/s of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behaviour and responses/reactions. In the case of accusation for abetment of suicide, the Court would be looking for cogent and convincing proof of the act/s of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the Accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case._ _**39.** For the purpose of finding out if a person has abetted commission of suicide by another, the consideration would be if the Accused is guilty of the act of instigation of the act_ ## **Bail Appl..No.1224 OF 2021 8** _of suicide. As explained and reiterated by this Court in the decisions above-referred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed suicide had been hypersensitive and the action of Accused is otherwise not ordinarily expected to induce a similarly circumstanced person to commit suicide, it may not be safe to hold the Accused guilty of abetment of suicide. perceiving no other option except to commit suicide, the case may fall within the fourcorners of Section 306 Indian Penal Code. If the Accused plays an active role in tarnishing the self-esteem and selfrespect of the victim, which eventually draws the victim to commit suicide, the Accused may be held guilty of abetment of suicide. The question of mens rea on the part of the Accused in such cases would be examined with reference to the actual acts and deeds of the Accused and if the acts and deeds are only of such nature where the Accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the Accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. Such being the matter of delicate analysis of human behaviour, each case is required to be examined on its own facts, while taking note of all the surrounding factors having bearing on the actions and psyche of the Accused and the deceased.”_ ## 11. Similarly, in _**Rajesh v. State of Haryana [2019 SCC OnLine SC 44]**_ , The Supreme Court held as follows: _“_ _**9.** Conviction Under Section 306 Indian Penal Code is not sustainable on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the Accused, which led or compelled the person to commit suicide. In order to bring a case within the purview of Section 306 Indian Penal Code,_ ## **Bail Appl..No.1224 OF 2021 9** _there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 Indian Penal Code.”_ ## 12. In a recent decision of the Hon'ble Supreme Court in _**Gurcharan Singh v. State of Punjab [(2020) 10 SCC 200]**_ , it was held thus: _“_ _**15.** As in all crimes, mens rea has to be established. To prove the offence of abetment, as specified Under Section 107 of the Indian Penal Code, the state of mind to commit a particular crime must be visible, to determine the culpability. In order to prove mensrea, there has to be something on record to establish or show that the Appellant herein had a guilty mind and in furtherance of that state of mind, abetted the suicide of the deceased.”_ 13. The fact that a person commits suicide and previous to that he was assaulted by someone may not automatically lead to a conclusion that they had abetted the commission of suicide. It depends on the mental state of the person who committed suicide. **Bail Appl..No.1224 OF 2021 10** For committing an abetment, the person must do something more than merely assaulting him. Therefore, prima facie there does not appear to be sufficient evidence at this point in time to indicate that the assault by the applicants on the previous night alone was the reason for the deceased to commit suicide. I also rely on the decision of the Apex Court in _**Arnab Manoranjan Goswamy V. State of Maharashtra [MANU/SC 0902/2020]**_ and another decision of the Supreme Court in _**Ankitha Kailash Khandelwal v. State of Maharashtra[ AIR 2020 SC 4875]**_ in support of the aforesaid view. 14. Hence the applicants are entitled to pre-arrest bail. The applicants are directed to surrender before the investigating officer within two weeks. In the event of their arrest, after interrogation and recovery if any, they shall be released on bail on the execution of a bond for Rs.50,000/- (Rupees fifty thousand only) each with two solvent sureties each for the like amount to the satisfaction of the investigating officer and on following conditions: - (i) They shall appear before the investigating officer as and - when called for. **Bail Appl..No.1224 OF 2021 11** (ii) They shall not also attempt to influence the witnesses or tamper with evidence. (iii) They shall not get involved in any other similar crimes during the currency of the bail. In case of violation of any bail condition, the prosecution is at liberty to apply for cancellation of the bail before the jurisdictional court. SD/- ASHOK MENON JUDGE rmm