Kerala High Court
Santha vs Unknown
Author: N.K. Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
THURSDAY, THE 8TH DAY OF NOVEMBER 2012/17TH KARTHIKA 1934
Crl.Rev.Pet.No. 2244 of 2006 (A)
--------------------------------
SC.413/2004 of ADDL. DISTRICT JUDGE FAST TRACK - I, (ADHOC),
ERNAKULAM
REVISION PETITIONER(S):
----------------------
1. SANTHA, W/O.JIMMY, AGED
PARAMBATH VEEDU, EZHAKKARAYEARS, MANEED VILLAGE.
NADU,
2. ELIAS @ JIMMY, S/O.ITTIAVIRA,
AGED YEARS, PARAMBATH VEEDU, EZHAKKARA NADU
MANEED VILLAGE.
BY ADV. SRI.SHAJI P.CHALY
COMPLAINANT(S)/COMPLAINANT:
---------------------------
1. STATE OF KERALA, REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM.
ADDL. R2: RAMAN, S/O. UNNI, AGED 72 YEARS,
CHERSAKKASMUKALATH VEEDU,
EZHAKKARANADU MANNED VILLAGE, (IMPLEADED AS
PER ORDER DATED 17-7-2006 IN CRL. M.A. 6420/06)
PUBLIC PROSECUTOR SMT. SHEEBA .M.T.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 08-11-2012, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
N.K. Balakrishnan, J.
.............................................
Crl.R.P. No. 2244 of 2006
.............................................
Dated: 8-11-2012
ORDER
This petition is filed by the 3rd and 4th accused in Sessions Case No. 413 of 2004 of Addl. Sessions Judge - Fast Track Court - I, Ernakulam, for offence under Sec. 306 read with Sec. 34 I.P.C. A private complaint was filed by the husband of deceased Karthiyayani. She committed suicide by consuming poison/pesticide.
2. She has been described by the witnesses as "Panikkathi". In the private complaint, the sworn statements of CW1 to CW10 were recorded by the learned Magistrate.
3. The consistent case is that on 01-09-2000 deceased Karthiyayani had been to the compound of the Accused as she saw accused Nos. 1 and 2 plucking areaca Crl.R.P. No. 2244 of 2006 -:2:- nuts from the property of A3 and A4. A4 is the wife of A3. The deceased left that compound after some time. The shirt belonging to one of those two accused (A1 and A2) which contained Rs. 5,000/- in the pocket of the shirt was missing. They suspected that it was deceased Karthiyayani who took away the same. According to the prosecution, as instigated or as directed by the petitioners herein, A1 and A2 went to the house of the deceased. She was forcibly dragged out from her house telling her that she is a thief; she has committed theft of an amount of Rs. 5,000/- which was kept in the pocket of the shirt, and that unless the shirt with the amount is taken out and handed over to them she would be handed over to the police. The deceased was thus forcibly taken to the house of A3 and A4. From there also accused made imputations stating that she is a thief who committed theft of the money which was kept in the pocket. In the early morning, deceased Kathiyayani was found in the rubber estate having consumed pesticide. Somebody who reached there wanted Crl.R.P. No. 2244 of 2006 -:3:- to give her water. She said that she does not want water and that she should not be taken to the hospital and that she wanted to die because she had been told that she is a thief.
4. Based on the complaint filed by the husband of deceased Karthiyayani, enquiry was conducted by the learned Magistrate under Sec. 202 of Cr.P.C. and cognizance was taken. That order was challenged by the petitioners herein before this Court in Crl.M.C. 6096 of 2002. All these contentions were advanced by the petitioners before this Court. Ultimately, that petition was dismissed but with a liberty to the petitioners to raise all the contentions and to plead for discharge.
5. Petitioners contended that though they pleaded for discharge, the court below framed charge against all the four accused persons. Hence, this petition is filed to set aside the charge framed as against the petitioners herein (A3 and A4).
6. The learned counsel for the petitioners submits Crl.R.P. No. 2244 of 2006 -:4:- that on going through the sworn statements of CW1 to CW9 it can only be found that there are allegations, if at all, only against A1 and A2 and no such allegations were raised against A3 and A4. The learned counsel further submits that A3 and A4 were only present in the house or compound when deceased Karthiyayani was brought to that place by accused Nos. 1 and 2 and so it cannot be said that the petitioners had instigated the deceased to commit suicide. It is on that premise the argument has been addressed by the learned counsel. But this contention is found to be factually incorrect. Though it was A1 and A2 who went to the house of the deceased and forcibly dragged and took her to the house of A3 and A4, A3 and A4 were there and both of them threatened the deceased stating that unless she takes out and hands over the shirt and the money mentioned above, she would be handed over to the police. The consistent version is to the effect that from there accused Nos. 3 and 4 also threatened that she should be handed over to the police unless she hands over Crl.R.P. No. 2244 of 2006 -:5:- the money; namely Rs. 5,000/- and the shirt. From the sworn statements of CWs 1 to 9 it is also clear that on the alleged day of incident, in fact, the deceased or somebody else who were there had told the accused persons that the shirt in which the money was kept might be in the gunny bag in which the areaca nuts were filled and packed. But in spite of the request made or apprehension they expressed, the accused persons did not bother to untie the sack containing the areaca nuts to find whether the shirt and money were inside. It was subsequently realised that in fact the sack which was tied after putting areaca nuts did contain the shirt and the amount. Therefore, it was stated by CW10 that in fact the life of Karthiyayani could have been saved had the accused been prepared to untie the sack and examine it to find whether the money and shirt were inside it.
7. It can be seen from the sworn statements of CWs 1 to 10 that in spite of the fact that the deceased implored that she is innocent and did not commit theft and that she Crl.R.P. No. 2244 of 2006 -:6:- does not know where the shirt or the money was kept, the accused persons were bent upon telling that she is a thief and that unless the shirt with money is given back she would be handed over to the police. This created sufficient mental agony and pain which prompted and instigated her to commit suicide since she did not want to be known as a thief when in fact, she had not committed theft. Therefore, according to the prosecution, there was sufficient instigation to commit suicide on the part of the accused who told the deceased that she is a thief and that she would be handed over to the police unless she hands over the shirt and the money.
8. The learned counsel for the petitioners has argued vehemently that there is no evidence connecting the petitioners herein who are A3 and A4. The sworn statements of CW6 and CW7 were not at all adverted to by the petitioners. There is specific allegation that when CW6 reached the compound of A3 and A4 he saw A1 to A4 there and that all of them told that deceased Crl.R.P. No. 2244 of 2006 -:7:- Karthiyayani (Panikkathi) had committed theft of Rs. 5,000/- and the shirt. A4 was very adamant in her statement that the deceased should be handed over to the police unless the deceased hands over the sum of Rs. 5,000/- and the shirt. The statements would show that even at that time the deceased was imploring like anything that she has not committed theft and that she is not a thief. The accused turned deaf ear to the cry and imploring made by the deceased. There is also a statement that A4 had actually caught hold of the deceased and shook her stating that she had committed theft. CW6 and CW7 deposed that A3 and A4 had made such imputations and also threatened that she (deceased Karthiyayini) should be taken to the police station. It prima facie shows the instigation made by the accused persons to commit suicide, for, according to the prosecution no person having that much self respect can bear such imputation. A poor lady belonging to a Scheduled Case was imputed with that sort of cruel and untrue statements and was treated in a most inhuman Crl.R.P. No. 2244 of 2006 -:8:- manner and so according to the prosecution there is sufficient material to show that the accused persons had instigated the deceased to commit suicide. The credibility or acceptability of the statements made by the witnesses is not something to be gone into at the stage of framing charge.
9. The learned counsel for the petitioners submits that mere utterance of certain words alone will not amount to instigation to commit suicide. The decision of the Apex Court in Swamy Prahladdas v. State of M.P. and Another - 1995 Supp. (3) Supreme Court Cases 438 has been relied upon by the learned counsel. That was a case where the husband was charged for an offence under Sec. 306 of I.P.C. for abetting his wife to commit suicide. It was alleged that there was a quarrel between the husband and wife and during that course the husband was stated to have remarked that the deceased wife can go and die. She went home in a dejected mood and, thereafter, she committed suicide. It was found by the apex Court that Crl.R.P. No. 2244 of 2006 -:9:- the word uttered by the husband was not enough to instigate the wife to commit suicide and that the said act does not reflect the requisite mens rea. There, it was also held that the suicide by the wife was not the direct result of the words uttered by the husband.
10. The decision in Sanju @ Sanjay Singh Sengar v. State of Madhya Pradesh - AIR 2002 SC 1998 has also been relied on by the learned counsel for the petitioners. There also the dispute arose in a matrimonial home. The marriage between the sister of the appellants and the deceased had taken place in 1993. Immediately after the marriage the deceased was subjected to continuous ill-treatment by the family members. There it was held :
"The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional. Secondly, the alleged abusive words, said to have been told to the deceased were on 25th July, Crl.R.P. No. 2244 of 2006 -:10:- 1998 ensued by quarrel. The deceased was found hanging on 27th July 1998. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to thin over and reflect and, therefore, it cannot be said that the abusive language, which had been used by the appellant on 25th July, 1998 drived the deceased to commit suicide. Suicide by the deceased on 27th July, 1998 is not proximate to the abusive language uttered by the appellant on 25th July, 1998. The fact that the deceased committed suicide on 27th July, 1998 would itself clearly pointed out that it is not the direct result of the quarrel taken place on 25th July, 1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. This fact had escaped notice of the courts below".
Here, the parties are not relatives. The deceased was a woman belonging to a Scheduled Caste. An unfounded imputation was made against her that she stole away Rs. 5,000/- and the shirt. The accused persons did not even bother to verify that the shirt and the amount was in the sack in which areca nuts were stored and packed. The statement given by the deceased to her own son and the other persons that the accused persons made her a thief and so she does not want to live and, therefore, she should Crl.R.P. No. 2244 of 2006 -:11:- not be taken to the doctor would sufficiently depict the mental torture she had to suffer at the hands of the accused. It is not a case of physical torture alone. The physical torture and the cruel and unbearable words hurled out against her were sufficient to instigate that helpless woman to commit suicide. It is not physical torture alone. That can instigate a person to commit suicide. It is not a word uttered in a fit of anger or emotion without intending the consequences to actually follow. The contention that the deceased might be hyper hypersensitive to such words is inapplicable to the facts of this case. Hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance, discord and difference cannot be expected to induce a similarly circumstanced individual in a given society to commit suicide. But, so far as the case on hand is concerned it has to be distinguished on facts. Here, a poor woman who was residing far away from the house of the accused was Crl.R.P. No. 2244 of 2006 -:12:- forcibly dragged to that compound alleging that she had committed theft of money as stated above. Even when she implored that she did not commit theft, they were bent upon accusing her as a thief and threatened that she would be handed over to the police. The subsequent statements given by her to her own sons as could be seen from the statement given by CW3 and CW5 would show that suicide by the deceased on the early morning of the next day was so proximate that prima facie it can be seen that deceased Karthiyayini committed suicide because of the unbearable and cruel treatment meted out to her by the accused persons.
11. The learned counsel has also relied upon the decision in Cyriac v. S.I. of Police - 2005 (3) KLT 673, there it was held that to constitute 'instigation', a person who instigates another has to provoke, incite, urge or encourage doing of an act by the other, by goading or urging forward. Instigation involves not only a physical act or omission but also a mental act.
Crl.R.P. No. 2244 of 2006 -:13:-
12. In Ramesh Kumar v. State of Chattisgarh, JT 2001 (8) SC 569, it was held:
"Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". As per another decision cited by counsel for petitioners in Vedprakash v. State of M.P. (1995 Crl.L.J. 893) the word 'instigate' means "to goad or urge forward to provoke, incite, urge, encourage to do an act".
13. The learned counsel for the petitioners submits that the accused are not the persons affected by the alleged theft of money. The money belongs to the persons who had taken the right of plucking and removal of areca nuts. Therefore, it is argued that the petitioners could never have had the intention to provoke, incite, or urge, encourage doing of an act by the other and as such it can never be said the petitioners have instigated deceased Karthiyayani to commit suicide. A person may be said to have instigated the deceased to commit suicide by words, deeds or willful omission or conduct which may even be a willful silence in order to irritate or annoy the deceased. Here, the act of A1 and A2 dragging the deceased to the house compound of A3 and A4 and the further fact that Crl.R.P. No. 2244 of 2006 -:14:- after she was brought to that place, A3 and A4 (the petitioners herein) also asserted that the deceased was the person who stole away the money and the shirt and that she (the deceased) should take out and handover the same immediately and if she fails to do so she should be handed over to the police are clear indications of the state of mind of the accused. One of the witnesses has stated in clear terms that the 3rd accused (Santha) actually shook the deceased by her shoulders and told her in a most angry and irritated tone that she had stollen away the money and that she should take out and handover the same. It was made in the presence of other persons . Prima facie, the said act, conduct and words of the accused were sufficient to instigate the deceased to commit suicide. The contention that if at all the deceased might have been so hypersensitive, is a plea too early to be countenanced. Specific allegations were made against these petitioners also by C.W.6 and CW4 etc. Acceptability or otherwise of those statements are to be done at the time of trial. Crl.R.P. No. 2244 of 2006 -:15:-
14. The Court below was satisfied that there are sufficient materials to frame charge against the accused. I find no illegality, irregularity or impropriety in the order passed by the Addl. Sessions Judge framing charge against the petitioners. The fact that the police had referred the case cannot be a reason to ignore the sworn statements of the witnesses. The request to set aside the charge framed against the petitioners is thus found to be unmerited. The petitioners can advance all their contentions at the time of trial.
In the result, this petition is dismissed. Dated this the 8th day of November, 2012.
Sd/-N.K. Balakrishnan,
ani/ /truecopy/ Judge.
P.S.toJudge
Crl.R.P. No. 2244 of 2006 -:16:-