Rejith V.S. v. State of Kerala and Simon

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 24[TH] DAY OF MARCH 2022 / 3RD CHAITHRA, 1944 ``` ## `CRL.MC NO. 8882 OF 2019` ``` [TO QUASH PROCEEDINGS IN S.C.NO.188/2013 ON THE FILE OF THE 2ND ADDITIONAL ASSISTANT SESSIONS COURT, THIRUVANANTHAPURAM] [CRIME NO.336/2012 OF VALIYATHURA POLICE STATION] ``` ## `PETITIONER/ACCUSED:` ``` REJITH V.S., AGED 41 YEARS S/O.SASIKUMAR, TC 80/801-1 (C-29), SREELAKEM VEEDU, THIRUMALA WARD, THIRUVANANTHAPURAM. ``` ``` BY ADV SASTHAMANGALAM S. AJITHKUMAR ``` ## `RESPONDENTS/STATE AND DEFACTO COMPLAINANT:` ``` 1STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031, THROUGH THE ADDL. SUB INSPECTOR, VALIYATHURA POLICE STATION, THIRUVANANTHAPURAM. 2SIMON, S/O.VIKTOR, TC34/1418, RIKS HOUSE, (RENT HOUSE OF MOLI), PETTAH VILLAGE, VALIYATHURA WARD, THIRUVANANTHAPURAM. ``` ``` FOR R2 BY ADV. SRI.ABDUL RAOOF PALLIPATH ``` ## `OTHER PRESENT:` ``` FOR R1 BY ADV SUDHEER GOPALAKRISHNAN, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24.03.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` CRL.MC No.8882 of 2019 2 ## `O R D E R` ``` The petitioner is the sole accused in Crime ``` ``` No.336/2012 of Valiyathura Police Station which is now pending as S.C.No.188/2013 before the 2[nd] AdditionalAssistantSessionsCourt, ``` ``` Thiruvananthapuram. The aforesaid crime was registered against the petitioner for the offence punishable under Section 306 of the Indian Penal Code (IPC). ``` ``` 2.The prosecution case is that, the deceased named Prameela, aged 28 years was in love with the petitioner, and she committed suicide on 17.3.2012 by hanging, allegedly due to the reason that the petitioner refused to marry her and thereby the ``` ``` petitioner committed the offence punishable under ``` ``` Section 306 IPC. Initially, the crime was ``` ``` registered under Section 174 of Cr.P.C, and later the Police submitted a further report ``` CRL.MC No.8882 of 2019 3 ``` incorporating the offence under Section 306 IPC, ``` ``` and after completing the investigation thereon, a final report was submitted. Annexure-A is the ``` ``` F.I.R and Annexure-B is the final report. This Crl.M.C. is filed for quashing all further ``` ``` proceedings pursuant to Annexures A and B against the petitioner. ``` ``` 3.Heard Sri.Sasthamangalam S. Ajithkumar, ``` ``` the learned counsel for the petitioner, Sri. Sudheer Gopalakrishnan, the learned Public ``` ``` Prosecutor for the State and Sri.Abdul Raoof Pallipath, the learned counsel for the 2[nd] ``` ``` respondent, who is the father of the deceased. ``` ``` 4.The specific contention put forward by the learned counsel for the petitioner is that the allegations contained in Annexure-B final report ``` ``` and the materials produced along with the same do ``` ``` not make out the offence under Section 306 IPC. To attract the offence under Section 306 IPC, it is pointed out that there must be some materials ``` CRL.MC No.8882 of 2019 4 ``` indicating mens rea on the part of the petitioner, ``` ``` and there must also be allegations and materials suggesting some positive act committed by the accused by which he induced the victim to commit suicide. According to the learned counsel, in this ``` ``` case, there are absolutely no materials disclosing the above factors and the allegations themselves were made based on mere assumptions without any materials to support the same. Thus, the learned counsel prays for allowing the Crl.M.C by quashing Annexures A and B. ``` ``` 5.On the other hand, the learned Public ``` ``` Prosecutor and the learned counsel for the 2[nd] ``` ``` respondent would seriously oppose the aforesaid contentions. The learned counsel for the 2[nd] ``` ``` respondent vehemently contended that, the question whether the petitioner had committed the offence or not by inducing the deceased to commit suicide is essentially a question of fact which cannot be considered in a proceeding under Section 482 ``` CRL.MC No.8882 of 2019 5 ``` Cr.PC. It is also contended that, the prayer ``` ``` sought for by the petitioner is premature, and unless and until the aforesaid contentions are ``` ``` considered by the trial court based on the ``` ``` materials adduced by the prosecution during the ``` ``` course of the trial, the dispute in this case ``` ``` cannot be resolved. Therefore, the learned counsel ``` ``` for the 2[nd] respondent and the learned Public Prosecutor prays for the dismissal of this Crl.M.C. ``` ``` 6.I have gone through the materials placed on record and also considered the rival contentions raised before this Court. It is to be ``` ``` noted that in Annexure-A F.I.R, the petitioner was not named and the same was registered under ``` ``` Section 174 of Cr.PC. The incident occurred on 17.03.2012 when the deceased was found hanging in her room in the residence where the 2[nd] respondent, the father of the deceased, was residing along with the deceased, her mother, her sister and her ``` CRL.MC No.8882 of 2019 6 ``` brother-in-law. The gist of the contents of F.I.S ``` ``` given by the father of the deceased is as follows. The deceased was aged 28 years and had been working as a nurse in S.P. Port hospital for the past five years. On 16.03.2012, she was on night duty and reached home after finishing her work by 9.30 a.m. Usually, she used to sleep up to 3 p.m. after she reached home, and after that, she would get ready and leave for her duty for the next day's shift. On 17.03.2012, the sister of the deceased Praveena found the deceased hanging in her room at 4 p.m. and thereafter, the persons gathered there took her to the hospital. The doctor after examining her, informed that the ``` ``` deceased was brought dead to the hospital. The deceased was unmarried, and even though several proposals were coming for marriage, she was not prepared to accept such proposals. Later, she informed her parents and relatives that she was in a love affair with the person working with her in ``` CRL.MC No.8882 of 2019 7 ``` the hospital. Earlier, about eight months before ``` ``` the incident, she left her home for about 20 days, and when inquired, she informed her parents that she had left the house to live along with the person with whom she was in love. It is also stated in Annexure-A that, on the date of her death and hours before the death, the sister of the deceased found the deceased crying after receiving a phone call. ``` ``` 7.During the course of the investigation, a ``` ``` further statement of the 2[nd] respondent/defacto complainant was also recorded. In the said statement, he mentioned the name of the lover of ``` ``` the deceased as Rejith V.S., the petitioner ``` ``` herein. It is mentioned that, after she left the ``` ``` house along with the petitioner during the month of January, 2012 to live with him, the defacto complainant and all other relatives agreed to conduct the marriage of the deceased with the petitioner. However, at that juncture, the ``` CRL.MC No.8882 of 2019 8 ``` deceased told them that the petitioner was already ``` ``` married and having a child. She also conveyed that the first marriage of the petitioner was on the ``` ``` verge of termination and proceedings for divorce ``` ``` were pending before a court of law. It was also ``` ``` informed that they were awaiting the order from ``` ``` the court granting divorce to the petitioner to ``` ``` have a marital relationship between the petitioner and the deceased. It is further stated in the ``` ``` additional statement of the defacto complainant that he and his family members were willing to conduct the marriage of the deceased with the ``` ``` petitioner once the order of divorce of the ``` ``` petitioner was received. However, the petitioner ``` ``` could not get a decree of divorce terminating his ``` ``` subsisting marriage, and this is the reason which prompted the deceased to commit suicide. ``` ``` 8.Apart from the statement of the defacto complainant, the Police recorded the statements of CWs.2 to 4 who are the brother-in-law of the ``` CRL.MC No.8882 of 2019 9 ``` deceased, the sister of the deceased and her ``` ``` mother. On examining the contents of statements of CWs. 2 to 4 recorded under Section 161 Cr.PC, it can be seen that all those statements are perfectly in tune with the statements given by the defacto complainant/CW1. The crucial aspect to be noticed is that, in this case, no suicide note specifically referring to the name of the petitioner or any act alleged to have been committed by the petitioner which prompted the deceased to commit suicide is received. The ``` ``` contention raised by the learned counsel for the ``` ``` petitioner is that in the absence of any specific act committedbythepetitioner,hecannot ``` ``` be prosecuted for the offence under Section 306 IPC. The learned counsel for the petitioner ``` ``` places reliance upon the decisions rendered by the Hon’ble Supreme Court inState of West Bengal v. ``` ``` Indrajit Kundu and Others[(2019) 10 SCC 188], Velladurai v. State represented by the Inspector of Police[2021(2) KLD 603] andM. Mohan v. State ``` CRL.MC No.8882 of 2019 10 ## `Represented by the Deputy Superintendent of Police` ``` [AIR 2011 SC 1238]. ``` ``` 9.As rightly pointed out by the learned counsel for the petitioner, the circumstances under which a person can be said to have committed the offence under Section 306 IPC are specifically dealt with in all these judgments. The ingredients for attracting the offence under Section 306 are also mentioned in detail in those judgments. The relevant paragraphs of the decision inIndrajit ``` ``` Kundu’scase (supra)are extracted hereunder: ``` “11. From the material placed on record, it is clear that respondents are sought to be proceeded for charge under S.306/34 mainly relying on the suicide letters written by the deceased girl and the statements recorded during the investigation. Even according to the case of de facto complainant, respondent Nos. 2 and 3 who are parents of first respondent shouted at the deceased girl calling her a call-girl. This happened on 05.03.2004 and the deceased girl committed suicide on 06.03.2004. By considering the material placed on record, we are also of the view that the present case does not present any picture of abetment allegedly committed by respondents. The suicide committed by the victim cannot be said to be the result of any action on part of respondents nor can it be said that commission of suicide by the victim was the only course open to her due to action of the respondents. There was no goading or solicitation or insinuation by any of the respondents to the victim to commit suicide. In the case of Swamy Prahaladdas vs. State of M.P. and Another, 1995 Supp (3) SCC 438 this Court while considering utterances like “to go and die” during the quarrel CRL.MC No.8882 of 2019 11 between husband and wife, uttered by husband held that utterances of such words are not direct cause for committing suicide. In such circumstances, in the aforesaid judgment this Court held that Sessions Judge erred in summoning the appellant to face the trial and quashed the proceedings. 12. In the judgment in the case of Ramesh Kumar vs. State of Chhattisgarh (2002 KHC 346: 2001(9) SCC 618: 2002(1) KLJ NOC 19: AIR 2001 SC 3837 : 2001 CriLJ 4724) this Court has considered the scope of Section 306 and the ingredients which are essential for abetment as set out in Section 107 IPC. While interpreting the word “instigation”, it is held in paragraph 20 as under: “20. Instigation is to goad, urge forward, provoke, incite or encourage to do “an act”. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.” ``` Similarly, in M.Mohan’scase (supra), it was observed by the Hon’ble Supreme Court that the abetment involves a mental process of instigating a person or intentionally aiding a person in doing a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, a conviction cannot be sustained. In paragraph 46 of the said decision, the necessity of mens rea as ``` CRL.MC No.8882 of 2019 12 ``` one of the ingredients for attracting the offence ``` ``` under Section 306 IPC was also clearly mentioned. It was specifically observed that, the materials should contain an active act or direct act which led the deceased to commit suicide seeing no other option and this act must have been intended to push the deceased into such a position that he/she committed suicide. In Velladurai’s case (supra) in paragraph 9, it was observed as follows: ``` “9. Now so far as the offence under Section 306 IPC is concerned, in a case where if any person instigates other person to commit suicide and as a result of such instigation the other person commits suicide, the person causing the instigation is liable to be punished for the offence under Section 306 IPC for abetting the commission of suicide. Therefore, in order to bring a case within the provision of Section 306 IPC, 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 instigating or by doing a certain act to facilitate the commission of suicide. As observed and held by this Court in the case of Amalendu Pal (supra), mere harassment without any positive action on the part of the accused proximate to the time of occurrence which led to the suicide would not amount to an offence under Section 306 IPC. 9.1 Abetment by a person is when a person instigates another to do something. Instigation can be inferred where the accused had, by his acts or omission created such circumstances that the deceased was left with no other option except to commit suicide. In the instant case, the allegation against the appellant is that there was a quarrel on the day of occurrence. There is no other material on record which indicates CRL.MC No.8882 of 2019 13 abetment. There is no material on record that the appellant-accused played an active role by an act of instigating the deceased to facilitate the commission of suicide. On the contrary, in the present case, even the appellant-accused also tried to commit suicide and consumed pesticide. Under the circumstances and in the facts and circumstances of the case and there is no other material on record which indicates abetment, both the High Court as well as the learned trial Court have committed an error in convicting the accused for the offence under Section 306 IPC.” ``` 10.Thus, on applying the principles laid down by the Hon’ble Supreme Court in the above decisions, it can be seen that, the materials ``` ``` placed on record in this case are inadequate to ``` ``` make out an offence against the petitioner under ``` ``` Section 306 IPC. One of the essential ingredients ``` ``` is the existence of mens rea and specific acts ``` ``` committed by the accused that prompted/induced the ``` ``` deceased to commit suicide. It is also the ``` ``` requirement for attracting the offence that such ``` ``` act must be of such gravity that it leaves the ``` ``` accused no other option than to commit suicide. ``` ``` When the test as stipulated in the above decisions ``` ``` is applied in this case, the following aspects can be seen. Even as per the prosecution case, there ``` ## CRL.MC No.8882 of 2019 14 ``` is no specific reference to any act allegedly committed by the petitioner are seen revealed. The only common factor stated by all the witnesses namely CWs.1 to 4, is that the deceased was in love with the petitioner and she left her house along with the petitioner during the month of January, 2012 for a period of 20 days. It is also the common version of all the said witnesses that, the petitioner was a married man and the ``` ``` proceedings for terminating his marriage with his wife were pending before the court and all the parties concerned were awaiting the decision of the court for conducting the marriage between the petitioner and the deceased, which the petitioner could not procure. Thus, the sum and substance of the prosecution case is that the deceased committed suicide because of the reason that the petitioner could not obtain an order from the court terminating his marriage with the first wife. This created an impression in the mind of ``` ## CRL.MC No.8882 of 2019 15 ``` the deceased that he would not be marrying her. ``` ``` There is absolutely nothing on record as to why the petitioner could not obtain an order of ``` ``` divorce of his first marriage. No materials are placed on record showing that the petitioner refused to marry the deceased. Therefore, when analysing the entire allegations and the supporting materials, it can be seen that there is absolutely nothing to indicate any specific act on ``` ``` the part of the petitioner which prompted or goaded the deceased to commit suicide. Merely because of the reason that, the petitioner was in a love affair with the deceased, that by itself cannot be a reason to implicate him for the offence under Section 306 IPC. The fact that the ``` ``` petitioner was a married man even at the time when ``` ``` the relationship with the deceased started, cannot ``` ``` also be a reason indicating the culpability of the petitioner/accused, in the facts and circumstances of this case. This is because, even going by the ``` CRL.MC No.8882 of 2019 16 ``` statements of witnesses, it was the deceased who ``` ``` revealed the factum of subsisting marriage of the petitioner to them and it was also conveyed by her that, the proceedings for terminating the marriage are pending before the court and they are awaiting the outcome thereof. Therefore, the relationship the deceased maintained with the petitioner was conscious, with the full knowledge that the petitioner was already married. Thus, under no circumstances an element of cheating or dishonestlyinducingthedeceasedto ``` ``` commit suicide could be seen in the allegations raised and the materials produced in support of the same. Therefore, I am of the view that this is not a case in which prosecution can be successfully continued based on the materials placed on record. ``` ``` In the result, this Crl.M.C. is allowed and all further proceedings in Crime No.336/2012 of Valiyathura Police Station, including the ``` CRL.MC No.8882 of 2019 17 ``` proceedings in S.C.No.188/2013 on the file of the ``` ``` 2[nd]Additional Assistant Sessions’ Court, ``` ``` Thiruvananthapuram are hereby quashed. ``` ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. ``` ``` JUDGE ``` ``` pkk ``` CRL.MC No.8882 of 2019 18 ## `APPENDIX OF CRL.MC 8882/2019` ``` PETITIONER’S ANNEXURES: ``` ``` ANNEXURE AA TRUE COPY OF THE FIR REGISTERED AS CRIME NO.336/2012 OF VALIYATHURA POLICE STATION PUNISHABLE U/S 306 IPC. ANNEXURE BCERTIFIED COPY OF THE FINAL REPORT FILED BY THE SUB INSPECTOR OF POLICE VALIYATHURA POLICE STATION IN CRIME NO.336/2012 PENDING AS SC NO.188/13 ON THE FILE OF THE 2ND ADDL.ASST.SESSIONS JUDGE, THIRUVANANTHAPURAM. ```