Appellant appealed against conviction u/s.309 r/w.109 IPC for abetting suicide. High Court held prosecution failed to prove instigation, conspiracy, or intentional aid. Acquitted appellant and set aside conviction.
Conviction and sentence under S.309 r/w.109 IPC set aside; appellant acquitted and set at liberty.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
MONDAY, THE 3RD DAY OF AUGUST 2015/12TH SRAVANA, 1937
CRL.A.No. 277 of 2006 ( )
AGAINST THE JUDGMENT IN SC 618/2004 of ADDL.SESSIONS COURT (ADHOC)-II, THODUPUZHA DATED 05-01-2006 CP 20/2004 of J.M.F.C,THODUPUZHA
APPELLANT(S)/ACCUSED::
RATHEESH, S/O. PRASAD, PARAYAKUNNEL VEETTIL, EDAMARUKU KARA, UDUMBANNOOR VILLAGE THODUPUZHA.
BY ADVS.SRI.C.M.TOMY SRI.MATHEW SKARIA
RESPONDENT(S)/COMPLAINANT::
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-08-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
acd
'C.R.'
P.D. RAJAN, J.
Crl.Appeal No.277 of 2006
Dated this the 3th day of August, 2015
JUDGMENT
The appellant, who is the accused in S.C.No.618/2004 of
Additional Sessions Judge, Thodupuzha, (Adhoc)-II, challenges the judgment of conviction u/s.309 r/w 109 IPC. He was sentenced to simple imprisonment for one year and
fine of 5,000/-, in default of payment of fine, simple₹ imprisonment for three months, being aggrieved by that, he
preferred this appeal.
abetted Bajitha to commit suicide and on 9.11.2003 at 11 a.m.
she consumed poison entrusted by the appellant, as a result,
she became unconscious, immediately, she was taken to Taluk
Crl. Appeal No.277/2006 2
hospital, Thodupuzha and thereafter at Holy Family hospital, Muthalakodam where she had undergone
treatment. Karimannoor Police registered crime No.200/2003 and after investigation, the Sub Inspector of Police, Karimannoor laid charge u/s.306 IPC before Judicial First Class Magistrate Court, Thodupuzha., from there it was committed to Sessions Court.
to PW12 and marked Exts.P1 to P9 as documentary evidence. MO1 series were marked as material objects and
Exts.D1 to D5 were marked during examination of witnesses. The incriminating circumstances brought out in evidence were denied by the accused while questioning him, and he was heard u/s.232 Cr.P.C, but he did not adduce any
defence evidence. The trial Court convicted the accused.
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Crl. Appeal No.277/2006
contended that there is no evidence to prove abetment.
Moreover, no crime was registered against the persons who attempted to commit suicide. There is no medical evidence
to show that appellant entrusted poison and she had consumed that poison. Mere oral evidence of PW1 and PW2
is not sufficient, when there is no evidence of abetment.
firstly he instigates any person to do that thing or secondly engages with one or more persons in a conspiracy
for committing an offence or thirdly intentionally aids, a
person by any act or illegal omission to commit an offence or illegally omits the doing of an act which would prevent the commission of the offence. While determining the law of abetment, the Court has to consider what act he had abetted and secondly, with what intention and, as per that
intention, what act was committed. Therefore, the
4
Crl. Appeal No.277/2006
identity of the intention of the abettor and the actor is
relevant. The act was committed by the actor only with the instigation of the abetted person. Therefore, the liability of the abettor and the actor is equal. Moreover, such abetment and act have to be proved by the prosecution. A person is said to instigate another to do an act, when he actively suggests or stimulates him to the act by any means or language, direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement. Here, the allegation is that the revision petitioner instigated PW2 to attempt to commit suicide. Therefore, the prosecution has to prove that PW2 had attempted to commit suicide or she did any act towards the commission of such offence. A person who abets the commission of offence be punished, provided for the offence. Here, the person, who attempted to commit
Crl. Appeal No.277/2006
5
suicide, was not charge sheeted by the Police, on the other
hand, the abettor alone was charge sheeted.
had intentionally aided PW2 to commit suicide in this case. For ascertaining this, I have examined the oral evidence of PW2, which shows that the appellant was her lover for the
last four years and she had physical relationship with him. One Shaji once saw their physical relationship and thereafter he threatened her. After this incident, appellant demanded her to commit suicide, but she refused that demand and after two-three days, he disturbed her several times. On 8.11.2003, at 2 p.m. they again met in her property, the appellant reminded her to commit suicide, but she denied that request. Appellant offered a job at Ernakulam, which was refused by PW2, in
the circumstances, he demanded either to commit suicide
Crl. Appeal No.277/2006
6
or accompany him to Ernakulam and entrusted a poison
packet. He told her to consume poison on the next day and she agreed.
and subsequently treated at Holy Family Hospital,
Crl. Appeal No.277/2006
7
Muthalakodam for eight days. For this, she gave Ext.P1 statement to the Police. But, PW1 has no direct knowledge
about the incident and no medical evidence to connect the appellant with the alleged offence. A close scrutiny of evidence of PW2, it is clear that there is no instigation, conspiracy or intentional aid by the appellant for committing any illegal act.
observed in Praveen Pradhan v. State of Uttaranchal & Anr.
[2012 (10) JT 478] that the offence of abetment by instigation depends upon the intention of the person, who abets and not on the person who acted on getting instigated by the accused. It is specific that an act on
the part of the alleged abettor happens to facilitate the commission of the crime is not enough but has to prove the
intentional aiding. Apex Court in Sri Ram v. State of U.P.
Crl. Appeal No.277/2006 8
[AIR 1975 SC 175] observed that mere knowledge on the part of a person that his act would facilitate the
commission of the offence does not make him an abettor. When there is no action as per the instigation, no offence
will attract in such situation.
there is any medical evidence in this case. PW6 deposed
that on 9.11.2003 at 2 p.m., PW2 was admitted in his hospital as a case of Organo Phosphorus poisoning and issued Ext.P4 certificate. She was treated from 9.11.2003 to 18.11.2003 with organo phosphorus antidote, along with other medicines. It is very interesting that the Police did not question the doctor, who treated PW2. But, they conducted a potency test with the help of PW7 and
obtained Ext.P5 certificate.
Crl. Appeal No.277/2006 9
the place of occurrence and prepared Ext.P3 mahazar. On 24.11.2003, the appellant was arrested and produced before PW7 for conducting potency test. After completing investigation PW12 laid charge before Court. PW8 issued Ext.P6 extract of school admission register and her date of birth is 25.5.1987. PW9, the Village Officer, Udumbannoor prepared Ext.P6 scene plan. PW10 had given counselling to PW2. PW11 and PW12 had only hearsay information with regard to the incident. Analysing the evidence of PW2, PW1 and PW11, it is clear that their evidence is not sufficient to prove the offence of abetment. Suicide as such is not a crime under IPC, however attempt to commit suicide is an offence against the person, who commit such act. When there is no evidence to show that the consumed article is poison and it was entrusted by the appellant, it is difficult to believe
Crl. Appeal No.277/2006
10
that she attempted to commit suicide.
Court in Swamy Prahalad das v. State of MP & another [1995 (Supp 3) SCC 438], in which two persons quarrelled each other, one of them told the other to “go and die”. Apex Court observed that it cannot be held that the suicide by the deceased was the direct result of the words used by
the accused. In Praveen Pradhan v. State of Uttaranchal &
Anr. [JT 2012 (10) SC 478] held as follows:
“14. The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the person who has abetted. The abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 IPC. However, the words uttered in a fit of anger or omission without any intention cannot be termed as instigation. (Vide: State of Punjab v. Iqbal Singh, AIR 1991 SC 1532; Surender v. State of Hayana, (2006) 12 SCC 375; Kishori Lal v. State of M.P., AIR 2007 SC 2457; and Sonti Rama Krishna v. Sonti Shanti Sree, AIR 2009 SC 923.)
No offence has been charge sheeted against the person,
Crl. Appeal No.277/2006
11
who attempted to commit suicide, since mens rea is one of
the essential ingredients of the offence. When there is no instigation proved against the appellant, it is presumed that no abetment as alleged.
Analysing the evidence, it is found that there is no active and intentional assistance by the appellant to
commit any offence, it is presumed that prosecution failed
to prove the case against the appellant. Accordingly, the conviction and sentence passed by the trial Court u/s.309
r/w.109 IPC are set aside and the appellant is acquitted
and set at liberty.
Crl.Appeal is allowed as above.
P.D. RAJAN, JUDGE.
acd
3 issues framed by the court
Whether the evidence proves that the appellant abetted the victim to commit suicide by instigation, conspiracy, or intentional aid.
Whether mere knowledge that an act might facilitate an offence constitutes abetment.
Whether the prosecution successfully discharged its burden to prove mens rea and active assistance in the alleged abetment.
Colour shows how this judgement treated each authority
Praveen Pradhan v. State of Uttaranchal & Anr.Explained¶70
[2012 (10) JT 478] · Who else cites this
Sri Ram v. State of U.P.Explained¶74
[AIR 1975 SC 175] · Who else cites this
Swamy Prahalad das v. State of MP & anotherExplained¶89
[1995 (Supp 3) SCC 438] · Who else cites this
2 provisions across 2 enactments
RATEESH
STATE OF KERALA
P.D. RAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
