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————————– vs By Advs.Sri.Babu S. Nair

Kerala High Court ————————– vs By Advs.Sri.Babu S. Nair

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MRS.JUSTICE K.HEMA

FRIDAY, THE 28TH DAY OF AUGUST 2009/6TH BHADRA 1931 CRL.A.No. 1724 of 2003

————————–

SC.233/1998 of ADDL. SESSIONS COURT (FAST TRACK-I), MANJERI CP.17/1998 of JFCM-I, MANJERI

………

APPELLANT/ACCUSED:

KEERAN, S/O CHELLI,

ANAPRACHALIL VEEDU,

VAKKALOOR,

MALAPPURAM DISTRICT.

BY ADVS.SRI.BABU S. NAIR

SRI.JIJO PAUL

SMT.SMITHA BABU

SMT.SWAPNA HASSAN

RESPONDENT/STATE:

THE STATE OF KERALA REP. BY THE

SUB INSPECTOR OF POLICE, ARECODE

POLICE STATION-THROUGH THE PUBLIC

PROSECUTOR, HIGH COURT OF KERALA,

ERNAKULAM, KOCHI-31.

BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28-08-2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.Hema, J.

———————————–

Crl.A.No.1724 of 2003

————————————

Dated this the 28th day of August, 2009

JUDGMENT

Does the definition of “abetment” laid down in Section 107 of Indian Penal Code (‘IPC’, for short) have any application to offence under Section 306 IPC? Is it necessary for the prosecution to prove the ingredients of Section 107 IPC to establish offence under Section 306 IPC? What is meant by ‘abets’ in Section 306 IPC? These few questions arise for consideration in this appeal.

2. The appellant was charge sheeted for offence under Section 306 and he was convicted and sentenced by Additional District Court to undergo rigorous imprisonment for five hears and to pay a fine of Rs.10,000/- and in default, to undergo simple imprisonment for six months. Set off was also allowed under Section 428 of Code of Criminal Procedure (‘the Code’, for short) and if fine is paid, it was ordered to be paid to PW2. The said conviction and sentence are challenged in this appeal. CRA 1724/03 2

3. According to prosecution, accused and deceased are neighbours. They were in love. But, the accused used to harass the deceased by making certain demands which were not to her liking. The harassment ended up in quarrels. He continued to harass her, with the intention that she puts an end to her life. On 05.12.1997 at about 6 a.m., he went to the road situated on the eastern side of the house of the deceased and picked up a quarrel and uttered certain abusive words against the deceased. This was heard by the near relatives of the deceased. The deceased went inside the house, closed the room and committed suicide by poisoning, between 6 a.m. and 8 a.m. on the same day. She died at 12.45 p.m. on the same day from the hospital. The prosecution alleges that accused abetted commission of suicide on the deceased.

4. Prosecution examined PW1 to PW8 and marked Exts.P1 to P9 series and MO1. PW1 was examined on the side of the accused. On an analysis of the evidence in detail, the court below held that intention of the accused was not to allow her to live peacefully, unless she met his illegal demands. It was also held that accused facilitated the offence by his harassment and mental CRA 1724/03 3

torture, by which the victim was constrained to take extreme steps in her life to avoid the persisting harassment.

5. Heard both sides. Perused the records. Learned defence counsel strongly argued that court below proceeded (as seen from paragraph 8) on the assumption that as an integral part of Section 306 IPC it must be proved that accused “instigated” the deceased to commit suicide. But, the court below did not even consider whether there was “instigation” by the accused.

6. It was pointed out that a reading of Section 107 IPC would show that to constitute abetment, there must be either instigation or intentional aiding. In the case at hand, evidence will not disclose that there was intentional aid from the side of the accused and therefore, accused cannot be convicted for offence under Section 306 IPC. In the light of the decision referred to in Rajan Vs. State of Kerala, 1994(1) KLT 179, it was vehementally contended that evidence is lacking regarding the intentional aid given by the accused in this case to the victim to commit suicide. Therefore, conviction of the accused under Section 306 IPC is not sustainable, it is argued. It is held in the above decision as follows:

CRA 1724/03 4

“In order to constitute the offence under Section 306 of the Penal Code there should have been abetment of commission of suicide. Section 107 of the Penal Code says that a person abets the doing of a thing who either instigates any person to do that thing or engages in a conspiracy for the doing of that thing or intentionally aids the doing of that thing. An accused against whom the

offence under Section 498-A IPC is alleged with reference to Clause (a) of the Explanation would not automatically become guilty under Section 306 of the Penal Code merely because the victim committed suicide even assuming that she did so under the stress of such cruelty. The person who subjected her to cruelty cannot be deemed to have intentionally”.

7. It is also submitted that in Cyriac v. S.I. Of Police (2005 (3) KLT 673) (which is rendered by me), similar view was taken. Learned defence counsel also relied upon the said decision to argue that what is relevant is whether accused intended that deceased must commit suicide or not. Such an intention is not clear from the evidence adduced in this case, it is submitted. The mere statement that she may die may not be sufficient to hold that a person is guilty of offence under Section 306 IPC, in the light of the dictum laid down in the above decision, it is submitted.

8. The courts below, however, concluded that facts of the case involved in the reported decision are not similar to the facts CRA 1724/03 5

of the case at hand and such finding is wrong, it is submitted. A person can be convicted for offence under Section 306 IPC only if requirements under Section 107 IPC regarding instigation or intentional aiding is proved when the case falls under Section 306 IPC, it is further submitted. Even if the entire prosecution is accepted, it can only be said that accused harassed the victim, which led her to commit suicide.

9. But, such infliction of harassment cannot be equated with intentional aiding, as required under Section 107 IPC and hence accused is entitled for an acquittal, it is argued. It is also submitted that even though as per the Explanation to Section 107 IPC, it is sufficient that there is proof for facilitating the offence and court below found that accused was facilitating the offence, such finding is not supported by any reason. In such circumstances, conviction entered for offence under Section 306 IPC is unsustainable.

10. Learned Public Prosecutor vehemently argued that it is not necessary for the prosecution to prove that there is instigation or intentional aiding to prove offence under Section 306 IPC. He pointed out that there are several reported decisions CRA 1724/03 6

in which Supreme Court convicted the accused for offence under Section 306 IPC, in the absence of proof of “instigation” or “intentional aiding”. Therefore, it is not necessary to prove such facts to convict a person for offence under Sect 306 IPC, it is vehemently argued.

11. It is also submitted that the decisions cited by learned defence counsel has no application to the facts of this case, as rightly held by the lower court. It is argued that there is ample evidence to show that accused was harassing the deceased even on the fateful day, just before consumption of poison by her. There can be no other reason for the deceased to commit suicide except the act of the accused, it is submitted. As per evidence adduced in this case, accused harassed the deceased and by such act and words, he facilitated commission of suicide, it is strongly argued by learned Public Prosecutor.

12. It is also pointed out that the fact that he intended the deceased to end up her life is clear from the words spoken to by her immediately prior to commission of suicide, as revealed from the evidence of PWs 2 and 6. The letter written by the deceased also refers to the circumstances under which she committed CRA 1724/03 7

suicide. It is very clear from a reading of Ext.P4-suicide note that accused committed various acts which actually facilitated commission of suicide, it is argued.

13. The harassment from the side of the accused was such that it facilitated commission of suicide. What is to be looked into is whether accused intended that deceased should end up her life by committing suicide and there is sufficient evidence to establish that accused wanted the deceased to end up her life, it is argued. In such circumstances, there is no reason to interfere with the conviction, it is submitted.

14. On hearing both sides at length, I find that what is to be looked into in this case mainly is a very important question of law: Does definition of “abetment” under Section 107 IPC apply to offence under Section 306 IPC? A reading of the decisions cited by learned defence counsel reveals that in the two cases, in Rajan and Cyriac, this Court applied definition of ‘abetment’ under Section 107 IPC to offence under Section 306 IPC. By doing so, it is held that that ingredients of Section 107 IPC have to be proved to constitute offence under Section 306 IPC. CRA 1724/03 8

15. It is hence, laid down that ‘intentional aiding’ is to be proved. The scope of the expression ‘instigation’ is also considered. In both the cases referred above, the question whether definition of “abetment” under Section 107 IPC will apply to offence under Section 306 IPC is not considered. Therefore, the dictum laid down in the said decisions will apply to cases in which Section 107 IPC has application. But, the querstion here is whether Section 107 IPC has any application to offence under Section 306 IPC.

16. If definition of “abetment” under Section 107 IPC can be applied to offence under Section 306 IPC also, all what is stated in Rajan and Cyriac will apply to this case also. But if Section 107 IPC will not apply, it is not necessary for the prosecution to prove “instigation” and “intentional aiding”, as referred to in Section 107 IPC. The offence under Section 306 IPC 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”.

CRA 1724/03 9

17. A reading of Section 306 IPC shows that if a person “abets” commission of suicide, he is liable for offence under the said section. That means, accused will be “abettor” of commission of suicide. Who is an “abettor”. “Abettor” is defined under Section 108 IPC, excluding illustrations, reads as follows: “108-Abettor: A person abets an offence,

who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable of law of committing an offence with the same

intention or knowledge as that of the abettor. Explanation 1: – The abetment of the

illegal omission of an act may amount to an offence although the abettor may not himself be bound to be that act.

Explanation 2: – To constitute the offence

of abetment it is not necessary that the act abetted should be committed, or that effect requisite to constitute the offence should be caused”.

18. Section 108 IPC lays down that if a person abets commission of “offence” by another, he can be said to be an “abettor”. But, in the case of offence under Section 306 IPC, the accused does not abet commission of any offence. What he abets is commission of suicide. Commission of suicide is not an offence, though attempt to commit suicide is an offence. Once, the victim dies, no offence will lie. Hence, accused who commits offence CRA 1724/03 10

under Section 306 IPC cannot be said to be an “abettor” as defined in Section 108 IPC.

19. For Section 108 to apply, the accused who abets and the person who is abetted, both have to be offenders. But, the person who is abetted to commit suicide is not an offender, but, he/she is only a victim of offence under Section 306 IPC. Therefore, accused cannot be termed to be an “abettor”, as defined under Section 108 IPC, if he commits offence under Section 306 IPC. Consequently, he is not committing any “abetment” as stated in Section 107 IPC. It is also relevant to note that what is defined in Section 107 IPC is the word, “abetment”, but, the word used in Section 306 IPC is only “abets” and not abetment.

20. It is also to be noted that Section 107 is in Chapter V whereas Section 306 lies in Chapter XVI. The definitions of an offence in IPC is ordinarily given at the commencement of every Chapter. But, “abet” is not defined in Chapter XIV. Therefore, the definition of “abetment” in Section 107 IPC cannot be applied to Section 306 IPC. In my view, the case at hand cannot be treated as one falling under Chapter V in which ‘abetment’ is defined. CRA 1724/03 11

Therefore, it is not necessary for the prosecution to establish instigation or intentional aiding which are ingredients of abetment in Section 107 IPC.

21. So, the next task is to find what exactly “abet” means for purpose of Section 306 IPC. Learned Public Prosecutor argued that in many cases involving offence under Section 306 IPC, as seen from various decisions, accused was convicted without referring to Section 107 or the ingredients therein. According to him, in a case of this nature, a pragmatic approach is to be taken, it is submitted. I find some force in the above argument.

22. The word used in Section 306 IPC is “abets”. As per New Oxford Advanced Learner’s Dictionary, ‘abet’ means to help or encourage somebody to do something wrong. In the absence of definition of ‘abet’ in IPC, the dictionary meaning can be applied. So, to constitute ‘abet’ in Section 306 IPC, it is enough if accused encouraged or helped the victim to commit suicide. A person can be helped or encouraged by his acts, deeds or words.

23. So, if a person harasses another by words or deeds or in any other manner including any omission, and by such act or omission he drives the other to commit suicide, he can be said to CRA 1724/03 12

have abetted commission of suicide. A person may drive another person to suicide by harassing the other. Suicide may be the direct consequence of harassment inflicted by the accused. But, harassment must be of such nature that it could drive the other person to commit suicide. In this context, a look at Section 498A IPC will be beneficial. As per the said provision, if harassment by a person is of the nature, which would be sufficient to drive the victim to commit suicide, he can be said to have committed offence under Section 498A IPC.

24. Learned defence counsel submitted that even if Section 107 IPC is not attracted, evidence will not establish that accused is guilty of such harassment which would have driven the victim to commit suicide or that the accused intended commission of such suicide by the victim. I have gone through the evidence, particularly in the light of the submissions made. PW2 is the mother of the victim. She stated that deceased was unmarried and she used to stitch at home to look after her parents, since they were dependent solely on her.

25. PW2 also stated that accused is residing on the eastern side of her house and both the victim and the accused used to CRA 1724/03 13

talk to each other and he used to harass her quite often. There was also a mediation because of the harassment. On the previous day of the incident, deceased had gone to the Bank for depositing money towards a loan, while one Kuttiyali gave a letter to the deceased from the bus stating that it was a letter sent by the accused to her. She opened the letter and returned the same. This episode was stated to PW2 by her daughter, PW2 deposed.

26. It is also stated by PW2 that her daughter told her that only the words of the accused would be honoured since he is a ‘Harijan’ and also that if the victim did not act as stated by him, he would continue to harass her. On the date of occurrence, at about 5.30 a.m., accused came to the road by the side of their house on the eastern side and referring PW2, he said that if she did not act as stated by him, the harassment will not be stopped. PW2 was at that time sweeping the front side of the house. Then, the victim asked him why he was harassing her and the accused told her that it was to see that she killed herself and let her die by taking poison. But whatever be the case, he was not bothered and that he would teach her a lesson.

CRA 1724/03 14

27. At that time, the victim told him that if he acted in that manner, she would end her life. It has also come out from the evidence of PW2 that the victim went to her room and her father went to the market and by 6.30 a.m. The room was locked from inside. The victim was called, but she did not wake up. At 8 O’clock also an attempt was made to wake her, but she did not. PW6 (who is the victim’s sister’s daughter) climbed over the wall and got inside the room and opened the room. PW2 then got into the room and called the deceased, but there was no response.

28. PW2 deposed that deceased was smelling medicine. Poison and a glass was found nearby. A letter was also seen written by her. She was taken to Arecode Hospital by one Suresh and later to Medical College Hospital and later, she received information that she was no more. PW2 was cross-examined at length. But there is nothing to show that the version given by her (that the accused used to harass her and that he intended that she should die because of the ill-treatment, etc) is false. There is no reason to disbelieve PW2 on this aspect. CRA 1724/03 15

29. PW2 also stated in cross-examination that except the harassment meted out from the accused, the deceased did not have any other difficulty. It was argued by learned defence counsel that though as per the prosecution case there was mediation, no mediator was examined. It is also not clear from the prosecution evidence that why the accused harassed the deceased, it is submitted. According to her, it may appear that accused and deceased were in love with each other but this fact was denied by PW2.

30. On a close reading of the evidence and from the answers given by her, it will be clear that she was not denying any love affair between the two, it is submitted. This submission cannot be brushed aside lightly. To a question in chief examination itself whether they were in love, PW2 did not say anything about the same but stated that they used to talk each other. To a question whether they were talking in cordial terms, she replied that they were not in cordial terms. But, in my view, on the facts of this case, why accused was harassing her is not quite relevant. Whether it was due to love failure or because of any money dealings cannot be conclusively stated. CRA 1724/03 16

31. But the fact remains that as per the evidence adduced in this case coupled with the contents of the letter, which is proved to be written by the victim and marked as Ext.P4, it is quite evident that accused was harassing the deceased and she had found the harassment unbearable. It is also clear from the evidence of PWs 2 and 6 and Ext.P4 that deceased had, even on the date of occurrence, told the accused that she would end her life if he continued the harassment and also that the accused intended that she should commit suicide. PW6 identified the handwriting of the deceased in Ext.P4.

32. Learned defence counsel argued that there is some doubt regarding Ext.P4 letter and the circumstances under which it is brought to light. It is pointed out that PW6 gave evidence that three letters were found on the cot and beneath the bed when the police came and inspected. It is also submitted that as per the evidence of PW8, the Sub Inspector, letters were seized on 07.12.1997. The scene mahazar-Ext.P5 was prepared at 10.45 a.m. on 07.12.1997. The incident occurred on 05.12.1997 in the morning and recovery was effected only on the third day of the incident.

CRA 1724/03 17

33. On going through the evidence of PWs 6 and 8, it is difficult to hold that Ext.P4 is fabricated. PW6 has not stated anything to indicate that such letter was not available at the time of death. She did not state that letter was not there. It may be a case where it would have missed her notice until those were shown to her by the police. PW6 was aged only 12 years and evidence was given on 13.07.2006, after nine years. Relevance of suicide suo motu would not have occurred to PW6 because of the age at which she was at the time of incident, unlike PW2.

34. A reading of the evidence as a whole, it cannot be said that Ext.P4 letter was not written by the deceased. PW6 was cross-examined with reference to identification of handwriting but she clearly stated that she had come across with the handwriting of the deceased when she used to give some chits to be handed over and that deceased used to give her some writings while stitched clothes had to be returned, etc.

35. PW2 stated that Ext.P4 letter was found at the time when deceased was found having taken poison. It is clear from a reading of Ext.P4 that there was some dealing between the accused and deceased and that accused was harassing her and CRA 1724/03 18

deceased was not able to withstand the same any more. It also appears that she never wanted to commit suicide or leave her parents alone in their old age and as per Ext.P4, she made a request to the people of the locality to look after them.

36. The deceased stated in Ext.P4 that she could not live any more since she was in the trap of the accused and that he was cheating her. Reference was also made to the effect that if she had not conceded to his request to accompany him, he would even murder her. The evidence of PW6 tallies with the contents of Ext.P4. She stated that accused used to ask the deceased to follow him and go with him to and she used to refuse. The the accused used to say that he would not allow her to live.

37. It is submitted by learned counsel for appellant that there are some contradictions in the evidence of PWs 2 and 6 regarding the words uttered by the accused on the date of incident. It would appear from the evidence of PW2 that the statements made by the accused that he is a Harijan, etc. are on the basis of an hear say, whereas, PW6 would state that accused had made such statements on the date of occurrence itself. It is also submitted that as per the evidence of PW6, she came to the CRA 1724/03 19

spot only after deceased had fainted and fallen down but as per the evidence of PW2, it happened only after exchange of words between the accused and deceased. Therefore, it is argued that it is not probable that PW6 would have heard the conversation, it is submitted.

38. On going through the evidence of PWs 2 and 6, I am unable to accept the above arguments. PW6 has been referring to various previous incidents also and she had also referred to some exchange of words which happened on the date of incident. It is true that PW2 stated in her chief examination that deceased had fallen down after climbing two steps and on hearing the sound, her husband came running and took her to the veranda and made her lie there and after some time deceased had gone inside her room.

39. However, for the mere reason that husband (DW1) and PW6 came to the front portion of the house only when the deceased fell down, it cannot be said that they were not hearing what happened in the house. Their presence in the house at the time of occurrence is not disputed. As per evidence, when there was exchange of words early in the morning at about 6.30 a.m., CRA 1724/03 20

it is only natural that it would attract the attention of the inmates of the house and they would listen to whatever was going on.

40. It is clear from the entire evidence that accused had harassed the deceased and harassment was of such grave nature that it had driven the victim to commit suicide. It is also clear from the evidence that accused had intended that deceased must die by suicide. Therefore, from the evidence in this case, it can be inferred that the accused by his acts and words, harassed the deceased to such extent that it had driven her to commit suicide. It is also clear that he intended that she must commit suicide. The evidence shows that he had spoken in clear terms that she should kill herself and he did not bother.

41 Hence, the prosecution proved that accused abetted commission of suicide by the victim and evidence under Section 306 IPC and there is no reason to interfere in the conviction can be taken as proved. The sentence passed is to undergo rigorous imprisonment for five years and to pay a fine of Rs.10,000/-. Learned defence counsel submitted that leniency may be shown in the question of sentence. It is submitted that accused is married and he is having four children, who are all very young. CRA 1724/03 21

He is the sole bread winner of the family and because of his act, the sufferers will be the innocent wife and four children.

42. It is also submitted that accused is prepared to pay compensation to the parents, who were being supported by the deceased and hence, some reduction may be made in the sentence of imprisonment. On consideration of the facts and circumstances, I find that what is lost because of the act of the accused is not only the life of the deceased but the sole support to her aged parents. PW2 stated that they were under the care and protection of deceased and she had not even got married for the sole purpose of looking after them.

43. The fact that the deceased alone was supporting the parents is evident from Ext.P4 letter and even at the time of death, she had called upon the people of locality (as per Ext.P4 suicide note) to take care of the parents. However, on hearing both sides, balancing the injury caused to both sides and keeping in mind the various facts and circumstances pointed out, I find that the sentence can be reduced to certain extent and it can be modified. Hence, the following order is passed: CRA 1724/03 22

i. The conviction passed against the appellant under Section 306 IPC is confirmed.

ii. The sentence is modified as follows: The appellant shall undergo rigorous imprisonment for four years and to pay a

fine of Rs.25,000/- and in default of

payment of fine,, he shall also undergo

simple imprisonment for eight months. If

the fine is realised, it shall be paid to the parents of the deceased.

This appeal is partly allowed.

(Sd/-K.Hema, Judge)

krs/vgs.

/True copy/

P.S to Judge

CRA 1724/03 23

In Cyriac’s case (supra), argument raised was whether accused had instigated the deceased by his acts. This Court was only considering what is meant by “instigation” and was answering only the mooted question as to what was “instigation” as required under Section 107 IPC. Whether Section 107 IPC will be attracted in a case falling under Section 306 IPC was not considered in Cyriac’s case. The questions being considered in this case are what is the scope of the expression “abet” coming under Section 306 IPC and whether Section 107 IPC will be attracted to offence under Section 306 IPC. This question is not considered in Cyriac’s case but this Court proceeded on the admitted contentions that Section 107 IPC was attracted. Therefore, Cyriac’s case is not applicable to the facts of this case, since the question being considered in this case is totally different from what is considered in Cyriac’s case.

There are various judgments of the Supreme Court wherein a conviction is entered for offence under Section 306 IPC in which the question whether the case falls under first or thirdly o Section 107 is not considered. It was even held in more than one decision CRA 1724/03 24

that in cases where harassment on the deceased by the accused, which was sufficient to drive the deceased to commit suicide, was sufficient to convict a person under Section 306 IPC. One of such decisions can be extracted herein.

From the above facts, it is clear that even in cases where there was not even a charge under Section 306 IPC, on the facts, if it is proved that there was harassment, it was held that it was sufficient to prove that a person abetted to commit suicide. The Supreme Court was of the view that a person can be convicted for offence under Section 306 IPC even in the absence of a charge for the said Section. Therefore, it is clear that it is not necessary that in all cases the court must consider whether the case falls under Section 306 IPC or whether firstly or thirdly in Section 107 IPC. I am supported by the above decisions also to hold that the abettor, who commits offence under Section 306 IPC is different from the abettor falling under Section 107 IPC and the requirements under Section 306 IPC are different and rigid meaning cannot be applied to the word “abets” falling under Section 306 IPC.

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