Abetment Involves a Mental Process of Instigating a Person or Intentionally Aiding a Person in Doing of a Thing [ORDER]

Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. In other words, 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.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

RAJA VIJAYARAGHAVAN V, J.

B.A.Nos.3912 & 3999 of 2018

Dated this the 10th day of July, 2018 

CRIME NO. 588/2018 OF OCHIRA POLICE STATION , KOLLAM 

PETITIONER(S)/ACCUSED.

RAJESH AND 2 OTHERS

BY ADV.SRI.ANCHAL C.VIJAYAN 

RESPONDENT(S): 

STATE OF KERALA THROUGH THE SUB INSPECTOR OF POLICE, OCHIRA POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.

BY SENIOR PUBLIC PROSECUTOR SMT.REKHA C.NAIR 

O R D E R 

These applications are filed under §438 of the Cr.P.C.

2. The applicants herein are the accused Nos.1 to 4 in Crime No.588 of 2018 registered at the Ochira Police Station.

3. The 2nd applicant is an octogenarian. The 1st applicant is his son and applicants 3 and 4 are his daughter and daughterin- law respectively.

4. The wife of the 1st applicant was found dead near a railway track after being hit by a train. From her scooter parked nearby, the police obtained a note written by her. In the said note, she mentioned about a suicide note which she had prepared and kept in her home. The suicide note was traced out. She had written that her husband was responsible for her death. Her greatest wish was to have a child. Due to the indifference of her husband, she was not able to conceive. She used to love her husband. Other than considering her as a wife, the 1st applicant had not treated her as a woman. Her feelings were not properly appreciated by her husband. She further stated that she was not desirous of continuing with her life. Rest of the pages in the suicide note were dedicated to her parents and her sister. In the course of investigation, the parents of the deceased were questioned who disclosed that the deceased used to be mentally harassed by the applicants due to her failure to conceive. They further stated that the life of the deceased in the house of the applicants was not very happy.

5. Though the Crime was initially registered under §174 of the Cr.P.C., later the section was deleted and §§406, 498A, 306, r/w §34 of the IPC and §4 of the Dowry Prohibition Act were added.

6. The learned counsel appearing for the applicants submitted that the marriage between the deceased and the 1st applicant was solemnized in the year 2005. The 1st applicant was working abroad and the deceased was a pre-primary school teacher. The 1st applicant is still working abroad and from his earnings, a house was constructed in the year 2016, where the deceased was residing with the 2nd applicant, who is aged and ailing. The deceased was not able to conceive in spite of all efforts and she was undergoing treatment. She was dejected owing to the said reason. The 1st applicant and the deceased used to contact over phone regularly and the 1st applicant was asked to terminate his employment abroad and return back to India. This was not agreeable to the 1st applicant as he had to effect repayment of a loan availed from the bank. However, he had assured the deceased that he would come to visit her in the month of July. According to the learned counsel, it was while the 1st applicant was abroad that he was told about the death of his wife. He had come to India on the next day to attend her funeral rites. According to the learned counsel, though it is alleged that the 1st applicant was responsible for the death of the deceased, a reading of the note would reveal that her grievance is that he was not very caring towards her and nothing more. The deceased wanted the 1st applicant to come down to India, but due to his work exigencies, he was not able to do so.

7. According to the learned counsel, there is nothing to show that the deceased was subjected to cruelty or harassment, in connection with any demand for dowry, or that the applicants had the necessary mens rea to instigate the woman to commit suicide. The 2nd applicant is an aged man and applicant Nos.3 and 4 are residing elsewhere with their family. The allegation against them is that they had taunted the deceased for not bearing a child. According to the learned counsel, there is no direct act of instigation by the applicants and no intentional act has been committed by them. There has to be a clear mens rea to commit an offence and that there ought to be an active or direct act leading the deceased to commit suicide. The learned counsel refers to the case reported in Sanju @ Sanjay Singh Sengar v. State of M.P. [2002 SCC (Crl) 1141], Dr.Krishnadas.P (Dr.) (Adv) v. State of Kerala and Another (2017 (2) KLT 579), Gurcharan Singh v. State of Punjab (2016 (12) SCALE 414) to buttress his submissions.

8. The learned Public Prosecutor has opposed the prayer. It is submitted that the suicide note left by the deceased will leave no doubt that the deceased had been subjected to mental cruelty by the applicants thus, forcing her to take her own life. It is further submitted that the investigation is in the preliminary stages and unless the applicants are interrogated in custody, the prosecution will be handicapped from obtaining enough materials to prove the facts leading to the death of the deceased.

9. I have considered the submissions advanced. It is by now settled that abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. In other words, 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.

10. Having considered the materials on record, I am of the considered view that no purpose would be served in forcing the applicants to undergo custodial interrogation. The witnesses have been questioned and the suicide note has been recovered. The applicants are not persons with criminal antecedents and there is no reason to suspect that they would not be available for trial if they are granted pre arrest bail.

In the result, these applications will stand allowed. The applicants shall appear before the investigating officer within ten days from today and shall undergo interrogation. Thereafter, if they are proposed to be arrested, they shall be released on bail on their executing a bond for a sum of Rs.50,000/- (Rupees Fifty thousand only) each with two solvent sureties each for the like sum. The above order shall be subject to the following conditions: 

(i) The applicants shall co-operate with the investigation and the 1st applicant shall appear before the Investigating Officer on every Saturdays between 10 am and 1 pm for a period of two months. The applicant Nos. 2 to 4 shall appear as and when directed to do so.

ii) They shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the court or to any police officer.

iii) They shall not commit any similar offence while on bail.

iv) The 1st applicant shall surrender his passport before the court below. Application for release of the passport, if any, shall be considered by the jurisdictional court at the appropriate stage.

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law.