Shyam Kumar v. State of Kerala and Das

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE GOPINATH P. ``` ``` MONDAY, THE 11[TH] DAY OF DECEMBER 2023 / 20TH AGRAHAYANA, 1945 ``` ## `BAIL APPL. NO. 5873 OF 2023` ``` CRIME NO.1247/2021 OF Munnar Police Station, Idukki ``` ## `PETITIONER:` ``` SHYAM KUMAR, AGED 35 YEARS S/O. MADHAVAN, PAMBANIKATTU HOUSE, KOMBADINJAL KARA, KONNATHADY P.O., KONNATHADY, IDUKKI DISTRICT, PIN: 685 571 BY ADVS. K.R.VINOD M.S.LETHA NABIL KHADER RAHUL.S ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2DAS, S/O CHELLAYYA, MOONNUMURIYIL HOUSE, NALLATHANNI ROAD, MUNNAR, DEVIKULAM TALUK, IDUKKI DISTRICT IS IMPLEADED QAS ADDITIONAL R2 AS PER ORDER DATED 21-9-23 IN CRL MA 1/23 BY ADVS. B.R.MURALEEDHARAN K.V.SANOSH K.V.SURESH NEETHU NALINAKSHAN SRI VIPIN NARAYAN (SR PP) ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` B.A.No.5873 of 2023 ``` 2 ## **ORDER** Petitioner is the sole accused in Crime No.1247 of 2021 of Munnar Police Station, Idukki District, alleging commission of offences under Sections 376, 406, 420 and 306 of the IPC. Allegation against the petitioner is that the petitioner befriended one Sheeba and after promising to marry her, took her to various places and had sexual relationships with her and thereafter, he promised to leave his family and live with the deceased Sheeba. It is alleged that he had asked the deceased Sheeba to come to Adimaly on 29.12.2021, promising to take her along with him and to live with her. When he failed to turn up, the deceased Sheeba realized that she was being cheated by the petitioner and she committed suicide on ``` B.A.No.5873 of 2023 ``` 3 ## 31.12.2021. 2. Learned counsel for the petitioner would submit that the petitioner is absolutely innocent in the matter. It is submitted that the deceased Sheeba had entered into a relationship with the petitioner knowing fully well that the petitioner was a married man, having two children in the relationship with his wife. It is submitted that a reading of the Annexure A4 complaint given by the father of the deceased to the Superintendent of the Police, Idukki will indicate that the petitioner and the deceased Sheeba were in a long standing relationship. It is submitted that since the deceased Sheeba was a major, it cannot be alleged that the petitioner had committed the offence under Section 376 of the Indian Penal Code. It is submitted that the offence under Section 306 of the IPC will also not lie against the petitioner, as there has been no instigation by the petitioner leading to the death of Sheeba by suicide. It is submitted that if it can be ``` B.A.No.5873 of 2023 ``` 4 ensured that the petitioner will co-operate with the investigation, there is no reason, whatsoever, to deny anticipatory bail to the petitioner, in the facts and circumstances of the case. It is also submitted that owing to the registration of the crime against the petitioner, the petitioner who was working as a Driver in the Police Department, has already been removed from service following disciplinary proceedings. 3. The learned Public Prosecutor and the learned counsel appearing for the defacto complainant would vehemently oppose the grant of bail. It is pointed out that the conversations between the deceased Sheeba and her friend Beula will indicate that the deceased Sheeba was driven to suicide owing to the fact that the petitioner had not kept his promise to marry and live with her. It is submitted that this is not a case where the petitioner can be granted anticipatory bail, considering the nature of the allegations. The learned Public Prosecutor would submit that the ``` B.A.No.5873 of 2023 ``` 5 deceased was holding MSW qualification and she was working as a counsellor and she used to help the Police Department in interacting with the victims of sexual offences including offences under the POCSO Act and the petitioner had come into contact with the victim as he was working in the Police Department as a driver. It is submitted that there are clear indications which would show that the refusal of the petitioner to accept the deceased as his wife was the sole reason for her suicide. It is also pointed out that the immediate reason for the suicide committed by the deceased is the fact that the petitioner failed to turn up on 29.12.2021, despite promising the deceased that he would accept her and they could start living together as husband and wife. 4. Learned counsel for the defacto complainant has placed reliance on the judgment of the Supreme Court in **M.Mohan v. The State represented by the Dy.Superintendent of Police** [AIR 2011 SC 1238] ``` B.A.No.5873 of 2023 ``` 6 where the Supreme Court has considered as to what to constitute abetment. Specific reference is made on paragraph Nos.40 to 45 of the aforesaid judgment which reads as follows: “40. ‘Abetment of a thing’ has been defined under section 107 of the Code. We deem it appropriate to reproduce section 107, which reads as under: 107. Abetment of a thing - A person abets the doing of a thing, who - First - Instigates any person to do that thing or Secondly - 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 places in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly - Intentionally aides, by any act or illegal omission, the doing of that thing. Explanation 2 which has been inserted along with section 107 reads as under: "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." 41. Learned counsel also placed reliance on yet another judgment of this court in Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618, in which a three-Judge Bench of this court had an occasion to deal with the case of a similar nature. In a dispute between the ``` B.A.No.5873 of 2023 ``` 7 husband and wife, the appellant husband uttered "you are free to do whatever you wish and go wherever you like". Thereafter, the wife of the appellant Ramesh Kumar committed suicide. This Court in paragraph 20 has examined different shades of the meaning of "instigation'. Para 20 reads 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." 42. In the said case this court came to the conclusion that there is no evidence and material available on record wherefrom an inference of the accusedappellant having abetted commission of suicide by Seema (appellant's wife therein) may necessarily be drawn. 43. In State of West Bengal v. Orilal Jaiswal & Another (1994) 1 SCC 73, this Court has cautioned that the ``` B.A.No.5873 of 2023 ``` 8 Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life, quite common to the society, to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty. 44. This court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) 2009 (16) SCC 605, had an occasion to deal with this aspect of abetment. The court dealt with the dictionary meaning of the word "instigation" and "goading". The court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances. 45. 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 ``` B.A.No.5873 of 2023 ``` 9 to instigate or aid in committing suicide, conviction cannot be sustained.” Learned counsel for the defacto complainant has also placed reliance on the judgment of the Supreme Court in **Pratibha Manchanda & Another v. The State of Haryana & Another** (2023 INSC 612), to contend that while considering applications for anticipatory bail, the court should be reluctant to grant bail anticipatory bail, in cases of large magnitude affecting a large number of people. It is submitted that the statement recorded from the friend of the deceased, clearly shows that the petitioner has committed the offences under Sections 376 as well as under 306 of the IPC. It is submitted that the deceased was also forced to give huge sums of money to the petitioner on the promise that he would marry her and therefore, the petitioner has also committed the offence under Section 420 IPC. It is submitted that since the petitioner never had any intention of marrying the deceased, the offence under Section 406 IPC is also attracted. ``` B.A.No.5873 of 2023 ``` 10 6. The allegations against the petitioner are as noticed above. Annexure A4 complaint given by the father of the deceased to the Superintendent of Police itself indicates that the petitioner and the deceased Sheeba were in a relationship for some time. It is true that the statements given by the friend of the deceased indicate that the deceased was upset on account of the fact that the petitioner had not kept his promise of accepting her as his wife as also his promise to marry her and to live together with her. The Whatsapp chats between the deceased and her friend also indicate that the deceased had also informed her friend that if the petitioner does not accept her she might be forced to commit suicide. Having heard the learned counsel for the petitioner and the learned Public Prosecutor, I am of the view that the petitioner can be granted bail subject to conditions. 7. In a recent decision in **Mohit Singhal v. State of Uttarakhand** [2023 KHC Online 7246] , the ``` B.A.No.5873 of 2023 ``` 11 Supreme Court had occasion to consider as to what would constitute the offence under Section 306 of the IPC. There, after considering the provisions of Section 107 of the IPC, it was held as follows: “9. In the facts of the case, secondly and thirdly in S.107, will have no application. Hence, the question is whether the appellants instigated the deceased to commit suicide. To attract the first clause, there must be instigation in some form on the part of the accused to cause the deceased to commit suicide. Hence, the accused must have mens rea to instigate the deceased to commit suicide. The act of instigation must be of such intensity that it is intended to push the deceased to such a position under which he or she has no choice but to commit suicide. Such instigation must be in close proximity to the act of committing suicide.” The question as to whether the petitioner had actually instigated the deceased to commit suicide in the facts of the present case is a matter to be ascertained at trial. The offence punishable under Section 376 of the Indian Penal Code, is not attracted (primafacie). The relationship between the petitioner and the deceased appears to be consensual, though ``` B.A.No.5873 of 2023 ``` 12 there is an allegation that the consent of the victim was obtained on the false promise of marriage. The statement of the friend of the deceased clearly indicates that the deceased had entered into relationship with the petitioner knowing fully well that he was a married man. The petitioner has already been removed from service of the Police Department. Therefore, there cannot be any apprehension that the petitioner will interfere with the investigation in any manner. The learned Public Prosecutor has also informed me that the investigation is being conducted by an Officer in the rank of Dy.S.P. Therefore, though the allegations against the petitioner are serious, I am inclined to grant anticipatory bail to the petitioner subject to strict conditions. Therefore, it is directed that the petitioner shall be released on bail, in the event of arrest in connection with Crime No.1247 of 2021 of Munnar Police Station subject to the following conditions: ``` B.A.No.5873 of 2023 ``` 13 (i) Petitioner shall execute bond for a sum of Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the arresting officer; (ii) Petitioner shall appear before the investigating officer in Crime No.1247 of 2021 of Munnar Police Station at 11.00 am on 18.12.2023, 19.12.2023 and 20.12.2023 and thereafter as and when called upon to do so until further orders; (iii) Petitioner shall not attempt to interfere with the investigation or to influence or intimidate any witness in Crime No.1247 of 2021 of Munnar Police Station. (iv) Petitioner shall not involve in any other crime while on bail. If any of the aforesaid conditions are violated, it is open to the Investigating officer in Crime No.1247 of 2021 of Munnar Police Station or the defacto complainant to approach this Court for ``` B.A.No.5873 of 2023 ``` 14 cancellation of bail. Any observation in this order is only for the purposes of considering the entitlement of the petitioner for bail and shall not be treated as a finding by this Court on any point. **Sd/GOPINATH P. JUDGE** SSK/11/12 ``` B.A.No.5873 of 2023 ``` 15 ## `APPENDIX OF BAIL APPL. 5873/2023` ## `PETITIONER ANNEXURES` ``` Annexure A1THE COPY OF THE FI STATEMENT GIVEN BY THE DE FACTO COMPLAINANT DATED 31.12.2021 Annexure A2THE COPY OF THE F.I.R.NO.1247/2021 OF MUNNAR POLICE STATION, IDUKKI DATED 31.12.2021 Annexure A3THE COPY OF THE INQUEST PREPARED BY THE SUB INSPECTOR OF POLICE, MUNNAR POLICE STATION DATED 01.01.2022 ``` ``` Annexure A4THE COPY OF THE WRITTEN COMPLAINT FILED BY THE DE FACTO COMPLAINANT BEFORE THE SUPERINTENDENT OF POLICE, IDUKKI, DATED 07.01.2022 ``` ``` Annexure A5THE COPY OF THE REPORT SUBMITTED BY THE REVENUE DIVISIONAL OFFICER, DEVIKULAM DATED 02.05.2023 Annexure A6THE COPY OF THE ORDER OF THE SESSIONS COURT, THODUPUZHA IDUKKI IN CRL.M.C.NO.559/2023 DATED 06.07.2023 ``` ## `RESPONDENT ANNEXURES` ``` Annexure R2WhatsApp chat of the victim Sheeba and Byoola Nil Adated Annexure R2True copy of the Post Mortem Certificate Dated B01.01.2022 of the victim Sheeba Angel Rani Annexure R2Statement of Byoola to the Deputy Supt. of Police CDCRB Idukki ```