S.Biju vs State Of Kerala

Gopinath P, J

This is an application for regular bail.

Petitioner is the accused in Crime No.2302 of 2021 of Nemom Police Station, Thiruvananthapuram District, alleging commission of offences under Sections 107 and 306 of the Indian Penal Code.

The allegation against the petitioner is that owing to the cruelty meted out by the petitioner, the wife of the petitioner committed suicide by setting herself of fire on 05.12.2021.

The learned counsel appearing for the petitioner would submit that the petitioner was married to the deceased on 21.08.2003 and in the year 2005 a child was born out of the wedlock. It is submitted that the petitioner was serving in the Indian Army and that he has been discharged from service recently. It is submitted that the petitioner had no occasion to instigate his wife or abet the commission of suicide by her. It is submitted that the petitioner is innocent in the matter. It is pointed out that going by the information given by the father of the deceased at the hospital, where she was taken for treatment, she had sustained injuries while she was burning some waste in the compound of her house. It is submitted that the petitioner is absolutely innocent in the matter and the petitioner had suffered serious injuries while trying to save the deceased.

The learned Public Prosecutor opposes the grant of bail. It is submitted that the statement of the minor daughter of the petitioner has been recorded which suggests that the deceased had committed suicide owing to the continuous harassment by the petitioner. It is submitted that even on the fateful day, the petitioner had told the deceased to go and commit suicide, if she feels so. The petitioner is not entitled to be released on bail, at this stage, is the submission.

Having regard to the facts and circumstances of the case and the considering the fact that the petitioner has been in custody for 26 days and also taking note of the fact that the continued detention of the petitioner is not necessary for the purpose of any investigation into the matter, I am inclined to grant bail to the petitioner.

In a recent judgment in Sukumaran and Another v. State of Kerala [2022(1)KHC 427], this Court after a detailed analysis of the earlier judgments, held as follows:

“9. Before analysing the evidence, let me advert to the law on the point. The legal position as regards Section 306 of IPC is well settled. It says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. The essential ingredients of the offence under S.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 offence of abetment is a separate and distinct offence in IPC. Section 107 of IPC defines abetment of a thing. A person, abets the doing of a thing, when (i) he instigates any person to do that thing; or (ii) engages with one or more other person or persons in any conspiracy for the doing of that thing; (iii) intentionally aids, by any act or illegal omission, the doing of that thing. The word “instigate” literally means to provoke, incite, urge on or bring about by persuasion to do anything. The abetment may be by instigation, conspiracy or intentional aid as provided in Clause (3) of Section 107 IPC. Under all the three situations, active or direct act which lead to the deceased to commit suicide is essential to bring the offence under Section 306 IPC. The Apex Court has consistently taken the view that in order to bring a case within the purview of Section 306 IPC, there must be a case of suicide and the accused must have played an active role in the commission of suicide by an act of instigation or doing certain act to facilitate the commission of suicide [See: Kishori Lal v. State of MP (2007) 10 SCC 797, Kishangiri Mangalgiri Goswami v. State of Gujarat (2009) 4 SCC 52, Amalendu Pal (supra) and Velladurai (supra)]. In Amalendu Pal (supra), it was specifically held by the Apex Court that mere harassment without any positive action on the part of the accused proximate to the time of occurrence which lead to the suicide would not amount to an offence under Section 306 of IPC. In Ude Singh and Ors. vs. State of Haryana {(2019) 17 SCC 301} and in Geo Varghese (supra), it was held that in the case of abetment of suicide, mere allegation of harassment of the deceased by the accused would not suffice unless there be such action on his part which compels the deceased to commit suicide. In Randhir Singh v. State of Punjab [2004 (13) SCC 129], it was held that "Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also, it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under S.306 IPC”. In State of W.B. v. Orilal Jaiswal and Another (AIR 1994 SC 1418), the Apex Court has observed that the Courts 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. Thus, the law is clear that to constitute an offence of abetment of suicide under Section 306 IPC, there must be proof of either any instigation or conspiracy or intentionally aiding or direct or indirect act of incitement to the commission of offence of suicide. A mere allegation of humiliation, harassment or threat unaccompanied by any incitement or instigation is not at all sufficient to attract the offence”

Though the aforesaid judgment of this Court was rendered in a Criminal Appeal challenging the conviction and sentence under Section 306 of the Indian Penal Code, the principles laid down in that judgment regarding the offence of abetment of suicide can be taken into account while deciding this bail application.

In the result, this bail application is allowed and it is directed that the petitioner shall be released on bail subject to the following conditions:

(1) The petitioner shall execute a bond for a sum of Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties for the like sum to the satisfaction of the Jurisdictional Court;

(2) Petitioner shall report before the investigating officer in Crime No.2302 of 2021 of Nemom Police Station, Thiruvananthapuram District, on every Saturday at 11.00AM until further orders;

(3) The petitioner shall not attempt to interfere with the investigation or to influence or intimidate any witness in Crime No.2302 of 2021 of Nemom Police Station, Thiruvananthapuram District;

(4) The petitioner shall not involve in any other crime while on bail.

If any of the aforesaid conditions are violated, the investigating officer in Crime No.2302 of 2021 of Nemom Police Station, Thiruvananthapuram District, may file an application before the Jurisdictional Court for cancellation of bail.