Vishnu vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the second accused in Crime No.233/2024 of the Paramangalam Police Station, Thrissur, which is registered against the accused (five in number) for allegedly committing the offences punishable under Sections 341, 323 & 306 read with Section 34 of the Indian Penal Code, 1860 (in short, ‘IPC’). The petitioner was arrested on 14.04.2024.

The gist of the prosecution case is that: the accused, in furtherance of their common intention and out of the previous animosity towards ‘Arundas’ (deceased), on 15.03.2024, at around 23.30 hours, had brutally manhandled the deceased. Due to the said assault, the deceased committed suicide by hanging in the bedroom of his rented house. The accused had abetted and instigated the deceased to commit suicide. Thus, the accused have committed the above offences.

Heard; Sri. M.R. Sasith, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Senior Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. In fact, the accused Nos.1, 3 to 5 have been granted an order of pre-arrest bail by the Court of Session, Thrissur, as per its order dated 16.05.2024 in Crl.M.C.No.440/2024. The petitioner seeks parity with the above accused. The offence under Section 306 of the IPC is not attracted to the facts of the case. In any given case, the petitioner has been in judicial custody for the last 52 days, the investigation in the case is complete, and recovery has been effected. Therefore, the petitioner’s further detention is unnecessary. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated that, if the petitioner is released on bail, there is a likelihood of him interfering with the investigation. Merely because the other accused have been enlarged on bail, that is not a ground to release the petitioner on bail. Hence, the application may be dismissed.

The prosecution allegation against the accused is that, they, in furtherance of their common intention, had assaulted the deceased, who committed suicide due to the assault. The predicate offence alleged against the accused is under Section 306 of the IPC. It is profitable to refer to Section 306 of the IPC, which reads as follows:

“306.Abetment of  suicide.  —  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 necessary ingredients to bring an act or omission by a person charged with the offence under Section 306 are well-settled in a catena of decisions by the Hon’ble Supreme Court and this Court. In a recent decision in Geo Varghese v. State of Rajasthan [(2021) 19 SCC 144 ], the Honourable Supreme Court has explained the above provision in the following lines:

“12. In our country, while suicide in itself is not an offence as a person committing suicide goes beyond the reach of law but an attempt to commit suicide is considered to be an offence under Section 309IPC. The abetment of suicide by anybody is also an offence under Section 306 IPC.

Though, IPC does not define the word “suicide” but the ordinary dictionary meaning of suicide is “self-killing”. The word is derived from a modern Latin word “suicidium”, “sui” means “oneself” and “cidium” means “killing”. Thus, the word suicide implies an act of “self-killing”. In other words, act of death must be committed by the deceased himself, irrespective of the means adopted by him in achieving the object of killing himself.

Section 306 IPC makes abetment of suicide a criminal offence and prescribes punishment for the same. Abetment is defined under Section 107IPC 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 place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly .—Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

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 facilitates the commission thereof, is said to aid the doing of that act.”

The ordinary dictionary meaning of the word “instigate” is to bring about or initiate, incite someone to do something.

This Court in Ramesh Kumar v. State of Chhattisgarh [Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618, has defined the word “instigate” as under :

“20. Instigation is to goad, urge forward, provoke, incite or encourage to do “an act”.”

The scope and ambit of Section 107 IPC and its co-relation with Section 306 IPC has been discussed repeatedly by this Court. In S.S. Chheena v. Vijay Kumar Mahajan [S.S. Chheena v. Vijay Kumar Mahajan, (2010) 12 SCC 190, it was observed as under :

“25. 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 to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by the Supreme Court is clear that in order to convict a person under Section 306IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.”

(emphasis given)

Again, in M. Arjunan v. State, represented by the Inspector of Police [(2019) 3 SCC 315] the Honourable Supreme Court has held thus:

“7. The essential ingredients of the offence under Section 306 IPC 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 the accused cannot be convicted under Section 306 IPC”.

(emphasis supplied)

In Chitresh Kumar Chopra vs State (Govt. of NCT of Delhi) [(2009) 16 SCC 605], the Hon’ble Supreme Court while dealing with the aspect of abetment has observed that, to attract abetment, there should be an intention to provoke, incite or encourage doing of an act by the latter. Each person’s suicidable pattern is different from 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 its own facts and circumstances.

On an overall consideration of the law referred to above, the facts of the case, the rival submissions made across the Bar, and the materials placed on record, especially considering the fact that the petitioner has been in judicial custody for the last 52 days, that the investigation in the case is practically complete and recovery has been effected, and furthermore, the other accused have been granted an order of pre-arrest bail by the Court of Session, Thrissur, I am of the view that the petitioner’s further detention is unnecessary. Hence, I am inclined to allow the application

In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions:

(i) The petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is laid. He shall also appear before the Investigating Officer as and when required;

(ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;

(iii) The petitioner shall not commit any offence while he is on bail;

(iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond;

(v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law.

(vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below.

(vii)Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State  (NCT of Delhi) and Another [2020 (1) KHC 663].