Shani.C vs State Of Kerala

A. Badharudeen, J

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, to quash Annexure-III Final Report in S.C. No.539/2021 on the files of the District and Sessions Court, Thalassery. The petitioner herein is the 4th accused in the above case.

Heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel appearing for the additional 2nd respondent, in detail. Perused the relevant materials available.

In this matter, the prosecution alleges commission of offences punishable under Sections 498(A), 306 read with 34 of the Indian Penal Code, by accused Nos. 1 to 4.

Precisely, the allegation is that, the 6th witness (though initially made an accused, but subsequently removed) married the victim, who is the daughter of witness Nos.1 and 2 on 31.03.2016, after an affair. Thereafter, the couple started to reside at the matrimonial home in Muzhappilangad. As per the prosecution allegation, accused Nos.1 to 4, who are the parents and siblings of the 6th witness were not amenable for the marriage and accordingly they had shown dislike to the victim during the initial period of the marriage itself. Later, on 05.08.2018, the elder sister of the mother of the victim died. Though, the same was informed to the family of the petitioner, nobody attended the funeral and the victim reached there along with her child, having 1.5 years of age. The specific allegation of the prosecution is that, the victim was later subjected to cruelty by accused Nos. 1 to 4, in continuation of their dislike for the marriage, which arose out of an affair between the 6th witness and the victim. Thereby, they instigated the victim to commit suicide in between 10.56 pm on 06.08.2018 and 07.00 am on 07.08.2018.

While seeking quashment of the crime against the petitioner, who is the 4th accused, the learned counsel for the petitioner argued that, the petitioner has been settled in Saudi Arabia along with her husband and she is not a permanent resident of the matrimonial home of the victim. According to the learned counsel for the petitioner, though two weeks before the occurrence, the petitioner also came to the family house and stayed along with the victim and others, there is no specific allegation to be discernible from the prosecution records to hold that neither the petitioner persecuted the victim in any manner nor the petitioner instigated the victim to commit suicide. According to the learned counsel for the petitioner, the prosecution records would suggest, abuse, assault etc. at the instance of the other accused, but no such allegation could be seen from the records as against the petitioner herein. Therefore, the petitioner is innocent and the prayer for quashment is liable to be allowed, is the submission of the learned counsel for the petitioner.

The learned counsel for the petitioner placed decision of this Court reported in Radhika Kapahtia v. State of Kerala and Others [MANU/KE/1012/2024 : ILR 2024 (2) Kerala 158 : 2024/KER/21953 : 2024 (2) KLT 635] with reference to paragraph Nos.11 and 13 of the decision. Paragraph Nos.11 and 13 are as under:

In order to attract the offence under Section 306 IPC, the abetment must be for committing suicide and not for doing some other act. Unless the instigation is done with the intention to prod the other person to commit suicide, the offence under section 306 IPC read along with clause 'First’ of section 107 IPC will not be attracted. The crucial ingredient of the offence of abetment of suicide is the element of mens rea in prompting the deceased to commit suicide. In other words, the act alleged as instigation must have been done with the intention that the deceased had to commit suicide. Hence the essence of the offence of abetment of suicide is not what the deceased felt, but what the accused intended.

In a recent decision in Mohit Singal and Another v. State of Uttarakhand and Others (MANU/SC/1291/2023 : 2023:INSC: 1035), the Supreme Court held that to attract the first clause under section 107 IPC, there must be mens rea to instigate the deceased to commit suicide and that the act of instigation must be of such intensity and in close proximity that it is intended to push the deceased to such a position under which he or she has no choice but to commit suicide. Further, in the absence of an active or direct act committed by the accused leading the deceased to commit suicide, the offence cannot be attracted as held by the Supreme Court in S.S. Chheena v. Vijay Kumar Mahajan and Another [MANU/SC/0585/2010 : 2010: INSC: 506: (2010) 12 SCC 190].

Another decision of this Court reported in Sanal T. and Others v. State of Kerala and Others [MANU/KE/3453/2024] also has been placed by the learned counsel for the petitioner with reference to paragraph Nos. 6, 16 and 20 of the decision. Paragraph Nos. 6, 16 and 20 are as under:

This Court considered the above allegation in the light of the principle laid down by this Court and the Apex Court in different decisions. In Krishnadas v. State of Kerala [MANU/KE/0549/2017 : 2017:KER:20424: 2017 (2) KLT 579], this Court held that, when a person can be said to have abetted a thing under Section 107 r/w Section 306 IPC. It will be beneficial to extract the relevant portion of the above said judgment:

“12. Now the question is whether the general allegation that the college authorities including the petitioner used to subject the students to cruelty if they resisted any attempt of the authorities to enforce discipline has any significance. In the statement filed by the investigating officer it is stated that the college authorities used to maintain a ‘torture room’ in the college where the students whom they wanted to be disciplined were brought and tortured. It is in this room Shoukathali was allegedly tortured by the petitioner. The prosecution has also a case that there were blood stains in that room and it was claimed before the investigation started. But these general allegations are not sufficient to attract S.107 IPC or S.306 I.P.C. so far as the petitioner is concerned. As held by the Supreme Court there should be material to show that the petitioner suggested to the deceased to commit suicide. The instigation allegedly made by the accused and the commission of suicide by the deceased must be proximate. I have perused the case diary and the statements relied on by the learned Special Public Prosecutor. The prosecution has not been able to collect any evidence to show that the petitioner by his words or conduct suggested to the deceased to commit suicide or that he did something which was proximate to the commission of suicide by the deceased.

To sum up, there is no material available in the case diary to show that the petitioner had instigated the deceased to commit suicide. I have no doubt that the case of the Vice Principal, the Invigilator and other officers stands on a different footing. I have already mentioned that there is evidence to show that they had subjected the deceased to cruelty. But there is no material indicating that the petitioner also was involved in it. Even assuming that the college authorities wanted to suppress any attempt on the part of the students to form a union in the college as submitted by the learned Special Public Prosecutor and the authorities wanted to nip in the bud resistance on the part of the students against the illegal or irregular attempts of the college authorities to discipline the students is true, that cannot be a material that can be taken into account in this case. A general allegation is not sufficient to attract S.107 I.P.C, or 306 I.P.C. As held by the Honourable Supreme Court there must be direct evidence that the petitioner was actively involved in instigating the deceased. There must be also evidence to show that he wanted the consequence to follow, it being commission of suicide by the deceased. The prosecution has no such case. Now the question is whether the course of conduct of the college authorities was such that a person like the deceased would have committed suicide. The prosecution case is that it is the false allegation that the deceased was guilty of malpractice at the examination was the cause of his committing suicide. It has no case that it was the general atmosphere in the college that was the proximate cause for his committing suicide.”

Speaking for the three Judge Bench in Ramesh Kumar case, R. C. Lahoti, J. (as His Lordship then was) said that 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. 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 to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation.

In the background of this legal position, we may advert to the case at hand. The question as to what is the cause of a suicide has no easy answers because suicidal ideation and behaviours in human beings are complex and multifaceted. Different individuals in the same situation react and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. Each individual's suicidability pattern depends on his inner subjective experience of mental pain, fear and loss of self respect. Each of these factors are crucial and exacerbating contributor to an individual's vulnerability to end his own life, which may either be an attempt for self protection or an escapism from intolerable self.

The learned counsel for the petitioner also has placed another decision of the Madhya Pradesh High Court reported in Sulabh Agarwal v. State of Madhya Pradesh [2024 KHC OnLine 2979 : 2024 KHC 2979 : AIROnLine 2023 MP 713 : 2024 CriLJ NOC 227], supporting the same view.

The learned counsel appearing for the defacto complainant opposed quashment of the proceedings and submitted that there is allegation as against the petitioner also, warranting trial of the matter. It is also submitted that the victim was forced to commit suicide after the arrival of the petitioner at the matrimonial home. Hence her role in this crime is prima facie made out.

According to the learned Public Prosecutor the statements given by the mother as well as the sister of the victim would suggest that some untoward incident happened on the previous day and the same was intimated to 6th witness/husband of the victim on the same day. According to the learned Public Prosecutor, the said incident which was communicated to the husband, involving all the accused including the petitioner. The said untoward incident with elements of instigation led to commission of suicide by the victim. It is also submitted that in view of the said evidence, the 6th witness, who is the husband of the victim, initially made an accused, subsequently removed from the array of accused. Accordingly, Final Report filed against the parents and siblings of the 6th witness.

The crucial question herein is whether the 4th accused also along with other accused instigated the victim to commit suicide? As pointed out by the learned Public Prosecutor, right from the very beginning the accused persons including the 4th accused/petitioner herein showed dislike and hesitation, when the 6th witness proposed to marry the victim. However, the marriage was solemnized despite their dislike. It is discernible that, some untoward incident happened on the previous day of the occurrence and the same was communicated by the victim to her husband. The dislike and verbal rivalry could be gathered from the fact that, as on 05.08.2018, when the elder sister of the mother of the victim died, though the same was informed to the family of the petitioner, nobody attended the funeral and the victim reached there along with her child having 1.5 years of age alone. Thus, the prosecution case would suggest that there are certain overtures happened just before commission of suicide by the victim and the dislike of the accused persons against the victim precipitated and reached high level just before commission of suicide by the victim, after arrival of the 4th accused, two weeks before the occurrence. In such a case, it is difficult to hold that the petitioner has no role in this occurrence or she did not instigate the victim to commit suicide, at the pre-trial stage, since this aspect would require consideration after adducing evidence by examining the witnesses by the trial court. Therefore, arresting examination of witnesses and adducing evidence against the petitioner, the quashment sought for at the pre-trial stage by invoking power under Section 482 of Cr.P.C. would not succeed.

Accordingly, this Crl.M.C. stands dismissed. Interim order in this matter stands vacated.

Registry is directed to forward a copy of this order to the trial court, within three days, for information and further steps.