'Suspicion, However Grave, Cannot Take Place Of Proof': Kerala HC Acquits Accused Charged With Abetment Of Suicide

The Kerala High Court recently held that in order to constitute an offence under Section 306 of the IPC the prosecution must establish firstly that a suicide has been committed, and secondly that the person who is said to have abetted the commission of suicide, has played an active role in the same with such a mens rea.

The Single Judge Bench of  Justice P.G. Ajithkumar observed that even if circumstantial evidence is being relied upon to prove the same in the absence of direct evidence, the chain of evidence must be complete and the conclusion which is arrived after examining the chain of evidence must point towards the culpability of the accused and not to any other conclusion. The bench reiterated the settled position of law that in a case of circumstantial evidence, the court has to scrutinize each and every circumstantial possibility, which is placed before it in the form of evidence and the evidence must point towards only one conclusion, which is the guilt of the accused. 

Accordingly, the Court found in the instant case that although the death of the deceased herein was an unnatural death, 

"...those are not reasons for finding a person guilty, unless the prosecution is able to prove beyond doubt that he is responsible for the death. It is the settled law that suspicion, however, grave it may be; cannot take the place of proof".

As per the factual circumstances, a 28 year old woman who had been engaged to be married to a man named Ansal, was lured by the appellant herein, with whom she had been intimate with earlier, with the connivance of two others. The appellant, with the help of the two other accused persons, took the lady to Mysore, where they stayed in Room No.6 of Chirag Hotel. It was alleged that due to the torment and torture inflicted by the appellant to continue the relationship and her anxiety on spoiling the prospects of her proposed marriage pushed her to commit suicide by hanging herself in the said room on 1st September 1990. 

The appellant and the co-accused were accordingly, arraigned by the police in connection with the suicide, pursuant to their investigation. The matter before the Chief Judicial Magistrate, Kalpetta was committed to the Sessions Court which in turn made the case to the Additional Sessions Judge (Adhoc-II), Kalpetta who held trial in the matter. The Additional Sessions Judge perused the the diary and death note written by the deceased, as well as 4 letters allegedly written by the appellant. It thus found that the appellant had put in all effort to continue his relationship with the deceased and in that attempt he sent letters to the man she had been engaged to, and thereby instigated the deceased to commit suicide. The trial culminated in conviction of the appellant for the offence under Section 306 of the I.P.C. On 15.03.2006, the appeal was admitted. The sentence was suspended and the appellant was released on bail on conditions.

It is the case of the appellant that in order to establish an offence of abetment to commit suicide, the prosecution is bound to prove the death was a suicide and the accused had instigated the deceased to commit suicide with sufficient mens rea, none of which could be found to have been proved by the prosecution herein. It was further contended that the aforementioned writings, the sample and specimen writings could not be proved to be that of the deceased and the appellant and thus, cannot be acted upon. 

The Public Prosecutor on the other hand, contended that the contents of the death note, the diary, and the letters allegedly written by the appellant would clearly indicate that the appellant had a definite plan to see that the deceased committed suicide, and that he did everything to sabotage the hope of the deceased to have a happy married life. 

The Court perused the decisions in a plethora of case laws such as Wazir Chand v. State of Haryana (1989), S.S.Chheena v. Vijay Kumar Mahajan & Anr. (2010), Rajesh v. State of Haryana (2020), and Satbir Singh & Anr. v. State of Haryana (2021) in order to ascertain the ingredients for constituting offence under Section 306 IPC. 

It noted that in the absence of direct evidence in the instant case, the following circumstances were relied upon by the prosecution to prove the charge against the appellant, namely the deceased committing suicide, the appellant having an illicit relationship with the deceased, her marriage proposal being spoilt by the appellant, the stay in Chirag Hotel, and the scribblings in the diary and death note being that of the deceased. The Court, relying upon precedents, noted that, 

"the evidence on record should prove beyond doubt that the proven circumstances lead to the only inference that the appellant had the intention to instigate (the deceased) to commit suicide and in consequence thereof, she had committed suicide". 

The Court observed that it is the fundamental principle of criminal law that the guilt of the accused has to be proved beyond a reasonable doubt. It added that the corollary to the same was that the proved circumstances should establish beyond doubt that the accused is guilty.

Although the prosecution cited and examined both the father and fiance of the deceased, they did not support the prosecution averment that the appellant with the help and connivance of the 2nd and 3rd accused, made all efforts to continue his relationship with the deceased and spoil her proposed marriage. 

The Court further noted that the doctor who had conducted the post mortem examination was not examined as a witness in court; on the other hand, the Forensic Surgeon had given his opinion on the cause of death in the capacity of an expert in the subject. The Court relied upon the decision in Sahebrao Mohan Berad v. State of Maharashtra, wherein the Apex Court had held that the Doctor, who examined the deceased and conducted the postmortem is the only person who can depose about the nature of injuries and give opinion about the cause of death. Thus, in the instant case, since the said doctor was not examined, the opinion given by the Forensic Surgeon could not be used as evidence and the opinion given therein could not be acted upon. "On the basis of the fact that (the deceased) was found hanging from the fan using saree alone; it cannot be concluded that her death was a suicide", the Court ascertained. 

The Court further noted that the handwriting expert had determined the diary and death note to have been written by the deceased on the basis of comparison with the writing samples produced. However, it added that there was a total lack of evidence as to whether the specimen writings supplied for comparison were hers in the first place. The father and fiance of the deceased who were the witnesses competent to identify the letters used for comparison also failed to identify it as hers. The Court noted that it was the Circle inspector of Police, Sri. M.Shaik Anavarudheen who had forwarded the documents to the handwriting expert for comparison, but he was not examined in Court. 

"Therefore, the irresistable conclusion is that the prosecution failed to prove even by a preponderance of probability that the writings in Exts.P4 and P5 were written by (the deceased)", it observed. 

It thus found that since the said materials were not proved to be in the handwriting of the deceased, there remained no evidence to prove that her death was a suicide. 

The Court also noted that there was no evidence not only regarding the specimen writings purported to have been obtained from the appellant, but also the custody from where letters dated 04.07.1990 and 27.06.1990 came on record. Accordingly, the Court found that the opinion of the handwriting expert ascertaining the handwriting in the aforesaid letters as that of the appellant also could not be acted upon. 

The Court additionally noted that none of the contents of the proceedings in the inquest report, postmortem report or the report of the handwriting expert were put to the appellant. 

"In a criminal trial, it is essential that all the incriminating circumstances appeared in evidence are put to the accused so as to enable him to offer his explanation. The purpose of examining the accused under Section 313 of the Cr.P.C. is to meet the requirements of principles of natural justice....Merely mentioning to the accused that such a document is admitted in evidence without explaining what incriminating evidence or circumstance it contains does not satisfy the requirements of Section 313 of the Code. The incriminating circumstances contained in Ext.P9, P10 or P11 were not put to the appellant during his examination under Section 313(1)(b) of the Code, and therefore the same cannot be used against him", the Court determined. 

It is also noted that the inquest report was prepared in Kannada, and the copy of the documents were furnished to the appellant in compliance of Section 209 of the Code, but no translation either English or Malayalam was made available, thus clearly violating the mandate under Section 279 Cr.P.C. which insists that whenever any evidence is given in a language not understood by the accused, it shall be interpreted to him in a language understood by him. 

Resultantly, the Court observed, 

"the evidence tendered by the prosecution does not prove none of the circumstances proposed to be proved for establishing the guilt of the appellant. The learned Sessions Judge did not consider the evidence in its proper perspective. Instead, on a peremptory consideration of the evidence, a conclusion that the appellant had instigated the deceased to commit suicide was arrived at". 

Finding that there was a total lack of proof in establishing the the guilt of the appellant, the court set aside his conviction and sentence and acquitted him. 

Case Title: Memana Baby v. State of Kerala 

Citation: 2022 LiveLaw (Ker) 620 

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