Saseendra Babu v. State of Kerala and Sri. SHA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 14[TH] DAY OF MARCH 2022 / 23RD PHALGUNA, 1943 CRL.MC NO. 4801 OF 2019 ``` ``` CRIME NO.29/2002 OF ANCHALUMMOOD POLICE STATION, KOLLAM SC 559/2018 OF DISTRICT COURT & SESSIONS COURT,KOLLAM ``` ## **`PETITIONER/ACCUSED:`** ``` SASEENDRA BABU AGED 59 YEARS S/O. VELU PILLAI, SANDHYA BHAVAN, MUNDAKKAL WEST WARD, MUNDAKKAL VILLAGE, KOLLAM BY ADV B.MOHANLAL ``` ## **`RESPONDENTS/COMPLAINANT:`** ``` 1STATEOF KERALA REPRESENTED BY THE STATION HOUSE OFFICER, ANCHALUMMOOD POLICE STATION, KOLLAM DISTRICT, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2SRI.SHA S/O. SIVANANDAN, PRANAVAM, ASRAMOM CHERRY, ASRAMOM P.O., KOLLAM-6981 002 BY ADV. ADV. RANJIT GEORGE – SR. PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14.03.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 4801 OF 2019 ``` ``` 2 ``` ## **`ORDER`** The petitioner is the sole accused in Crime No.29/2002 of Anchalumood Police Station, which is now pending as S.C. No.559/2018 before the Sessions Court, Kollam. The aforesaid case was registered against the petitioner herein for the offences punishable under Section 306 of the Indian Penal Code. 2. The said case was about the suicide of a person named Sasidharan. He was found dead in his residence on 02.02.2002 at 12.45 p.m. Pursuant to the said incident, initially, a case was registered for unnatural death. Later, the petitioner was implicated as an accused, alleging an offence under Section 306 of the Indian Penal Code. The main allegation against the petitioner is that on 01.02.2002 at 9.30 hours, the petitioner came to the residence of the deceased and insisted for the return of the amounts payable by the deceased to him. During the course of the conversation, he used the following words: "പണം വാങ്ങിയാൽ തിരിച്ചു ക ൊടുക്കാതെ നാണവും മാനവും ഇങ്ങനെ ജീവിക്കുന്നതിനെക്കാൾ നല്ലത് വല്ല വിഷമോ മറ്റോ വാങ്ങിച്ചു തിനന തുലഞ്ഞു കൂടെ.” ``` CRL.MC NO. 4801 OF 2019 ``` ``` 3 ``` On account of the mental agony sustained due to the aforesaid words, he committed suicide by consuming Furidan on 02.02.2002 3. This Crl. M.C. is filed by the petitioner praying for quashing all further proceedings pursuant to the same. 4. Heard Sri.B.Mohanlal, learned counsel appearing for the petitioner and Sri. Ranjit George, learned Public Prosecutor appearing for the State. Even though notice was issued to the 2[nd] respondent/de facto complainant, the deceased's son-in-law, there is no appearance for him. 5. The main contention put forward by the learned counsel for the petitioner is that the ingredients for attracting offence under Section 306 are not there from the materials produced along with Annexure A1 final report. According to him, the verbal exchange occurred when the petitioner herein demanded the amount legally due from the deceased to him. It is pointed out that even if the words used by the petitioner is treated as abusive, the same will not attract the offence alleged against him unless it is shown that he had the intention to instigate the deceased to commit suicide. The ``` CRL.MC NO. 4801 OF 2019 ``` ``` 4 ``` learned counsel also places reliance upon decisions of the Hon’ble Supreme Court in **M.Arjunan v. State [AIR 2019 SC 43]** and **Vedprakash Bhaiji v. State of Madhya Pradesh** which was **1995 Cri. LJ. 893** . rendered by the Madhya Pradesh High Court in 6. On the other hand, the learned Public Prosecutor would contend that the contentions put forward by the learned counsel for the petitioner are in relation to the factual matters, and the same cannot be considered in a proceeding of this nature. According to the learned Public Prosecutor, the words allegedly used by the petitioner, as mentioned in the final report, are sufficient to attract a prima facie case against the petitioner herein, and no interference is warranted. 7. When the materials available on record are examined, it is discernible that the prosecution has no dispute that there were amounts due to the petitioner herein from the deceased. The aforesaid aspect is evident from the statements of the witness recorded by the investigating officer under Section 161 of Cr.P.C. All the witnesses have clearly mentioned about the financial commitments ``` CRL.MC NO. 4801 OF 2019 ``` ``` 5 ``` towards the petitioner and several other persons. It is evident from the records that the deceased was initially engaged in conducting an arrack shop. Consequent to the prohibition of arrack, he sustained a massive loss in his business and became indebted to several persons. The petitioner herein was one among the debtors. It is true that going by the allegations in Annexure A1 final report; the petitioner has used abusive words which might have adversely affected the sentiments of the deceased. However, the question arises whether that is sufficient to attract an offence under Section 306 or not. In my view, to attract the aforesaid offences, it must be shown that the words used by the petitioner herein were with the intention to prompt or instigate the deceased to commit suicide. Mere using of words even suggesting suicide during the course of heated arguments, particularly in connection with the discharge of the financial liability by itself, cannot be treated as sufficient for indicating mens rea. The Hon’ble Supreme Court considered a similar situation in **M.Arjunan’s** case (supra), and in paragraphs 8 ``` CRL.MC NO. 4801 OF 2019 ``` ``` 6 ``` ## and 9, it was observed as follows: _“(8) The essential ingredients of the offence under Section 306 I.P.C. 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 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, accused cannot be convicted under Section 306 I.P.C._ _(9) In our considered view, in the case at hand, M.O.1letter and the oral evidence of PW-1 to PW-5, would not be sufficient to establish that the suicide by the deceased was directly linked to the instigation or abetment by the appellant- deceased. Having advanced the money to the deceased, the appellant-accused might have uttered some abusive words; but that by itself is not sufficient to constitute the offence under Section 306 I.P.C. From the evidence brought on record and in the facts and circumstances of the case, in our view the ingredients of Section 306 I.P.C. are not established and the conviction of the appellant-accused under Section 306 I.P.C. cannot be sustained.”_ ## Similarly in Vedprakash’s case (supra) also, a similar situation was ## considered and it was observed in paragraph 11 as follows: “ _11. A person is said to 'instigate' another to an Act, when he actively suggests or stimulates him to the act by any means of language, direct or indirect, whether it takes the form of express solicitation, or of hints, insinuation or encouragement. The word 'instigate' means to goad or urge forward or to provoke, incite, urge or encourage to do an act. In the present case none of the accused goaded or urged forward provoked, incited or urged or encouraged the deceased to commit suicide. They merely goaded him to_ ``` CRL.MC NO. 4801 OF 2019 ``` ``` 7 ``` _refund or repay the amount advanced by them to him. They never intended that the deceased should commit suicide. On the other hand they wanted the loan advanced by them to the deceased to be repaid by him. For the said purpose, it was at least needed, if not essential, that deceased Sadholia should live.”_ When the aforesaid principles are considered in the factual background of this case, I am of the view that the issue at hand comes within the said principles. Even though the words used by the petitioner herein was abusive and suggestive of suicide, that by itself is not sufficient to conclude that the petitioner has used the aforesaid words with the intention to lead the de facto complainant to death by suicide. Admittedly he was debt-ridden at the relevant time, and the petitioner herein was only one among the creditors. The words allegedly used by the petitioner, though it refers to suicide, are common usage during the exchange of words amidst heated debates. The same can only be treated as passive comments during the course of such exchanges. Under no stretch of the imagination, said words can be treated as words intended to instigate the deceased to commit suicide. The deceased was under much mental stress owing to his poor financial status, which ``` CRL.MC NO. 4801 OF 2019 ``` ``` 8 ``` occurred due to heavy losses in the business. This must have contributed to the decision he had taken to commit suicide. 8. Therefore, in the absence of any other materials _mens rea_ indicating on the part of the petitioner, such words by itself cannot make out the offence of section 306 of IPC. In this case, apart from the allegation of making such a statement, no such materials are available. In such circumstances, I am of the view that the registration of the case against the petitioner herein and continuation thereof are not legally sustainable and clear abuse of the process of law. Thus, I find merits in this Crl. M.C. In the result, this Crl. M.C. is allowed. Annexure A1 final report submitted in Crime No.29/2002 of Anchalumood Police Station and all further proceedings in S.C. No.559/2018 on the file of the District and Sessions Court, Kollam are hereby quashed. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` ``` SCS ``` ``` 9 ``` ## **`CRL.MC NO. 4801 OF 2019`** ## **`APPENDIX OF CRL.MC 4801/2019`** ``` PETITIONER ANNEXURES ANNEXURE-A1THE TRUE CERTIFIED COPY OF FIR, FINAL REPORT AND OFFICIAL MEMORANDUM OBTAINED BY THE PETITIONER IN CRIME NO.29/2002 OF ANCHALUMMOOD POLICE STATION IN KOLLAM DISTRICT OBTAINED FROM THE SESSIONS COURT, KOLLAM ```