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Faisal Vs. State of Kerala, Rep. by Public Prosecutor - Court Judgment

LegalCrystal Citation
CourtKerala High Court
Decided On
Case NumberCRL.A. No. 1741 of 2006
Judge
AppellantFaisal
RespondentState of Kerala, Rep. by Public Prosecutor
Excerpt:
.....306 ipc, it will have to be proved by the prosecution that there is nexus between the act of the accused alleged, and the commission of suicide. the alleged commission of suicide must be the proximate result of the alleged acts of the accused constituting abetment. in short the alleged acts or words of the accused constituting abetment must have the force and effect, in ordinary circumstances, and in the ordinary course of thinking, that it would drive the victim to the commission of suicide. in this case saranya was molested and humiliated by the accused on 17.6.2005, and she committed suicide on 19.6.2005. it is alleged that saranya committed suicide due to the humiliation, insult and mental pain caused by the act of the accused. but this by itself will not make him liable under.....
Judgment:

1. The appellant herein challenges the conviction and sentence against him under Sections 354 and 306 of the Indian Penal Code in S.C No.526/2005 of the Court of Session, Kozhikode. One Saranya aged 19 years was outraged and molested by the appellant herein at about 5.45 pm on 17.6.2005 on the public road at Villyappally in the presence of her friends and others. Due to the mental agony and humiliation caused by the said incident, Saranya committed suicide on 19.6.2005 at her residence. Nothing was suspected initially regarding the cause of commission of suicide, but when Saranya's father came to know of the incident that happened on 17.6.2005, he made a complaint before the police. The police registered a crime and proceeded for investigation. The accused was arrested as part of investigation, and after completing the investigation the police submitted final report in court. On committal, as provided under the law, the case came up before the learned Additional Sessions Judge, for trial.

2. The accused pleaded not guilty to the charge framed against him by the trial court under Sections 354 and 306 IPC. The prosecution examined 14 witnesses and proved Exts.P1 to P14 documents and also identified MO1 to MO3 material objects. When examined under Section 313 Cr.P.C the accused maintained a stand of total denial. He did not adduce any evidence in defence inspite of opportunities granted by the trial court.

3. On an appreciation of the evidence the trial court found the accused guilty under Sections 354 and 306 IPC. On conviction he was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of 25,000/- under Section 306 IPC, and to undergo another period of simple imprisonment for two years and to pay a fine of Rs.2,000/- under Section 354 of IPC, by judgment dated 28.8.2006. Aggrieved by the said judgment of conviction, the accused has come up in appeal.

4. When this appeal came up for hearing, the learned counsel for the appellant made arguments mainly on the legal aspect, that even if the whole allegations are admitted, it will not come under Section 306 IPC as a case of abetment of suicide. As regards the other offence alleged under Section 354 of IPC and the evidence given by the material witnesses on facts much was not argued by the learned counsel, thereby practically conceding that the incident proved by the material evidence will make out the offence punishable under Section 354 IPC. Thus the important question for decision in this appeal is whether the conviction against the appellant under Section 306 IPC is legally sustainable.

5. Of the 14 witnesses examined by the prosecution only PW1 to PW3 are the material witnesses. PW4 is the father of the deceased who made complaint on 19.6.2005. PW5 to PW8 do not have any direct knowledge about the alleged incident. They all have only hearsay information, and all are consistent that the deceased was a good girl. PW6 and PW8 are the attestors to the Exts.P3 and P4 scene mahazars. PW10 is the doctor who conducted postmortem examination on the body of the Saranya, PW11 is a close relative of the deceased, examined to prove that the Saranya was found depressed and dejected after the alleged incident, keeping herself away from everything including her studies, PW12 is the Police Head Constable, who registered Ext.P7 FIR, PW13 is the Police Constable who handed over the body of Saranya after postmortem examination, and PW14 is the Sub Inspector, who investigated the case and submitted final report. There is nothing to show that there was any flaw or irregularity or illegality in the investigation conducted by PW14. The accused does not have any dispute onthese aspects.

6. PW1 to PW3 have given definite and consistent evidence proving the alleged incident. Of them PW2 is a friend and neighbour of deceased Saranya, PW4 is a social worker who happened to witness the incident while he was standing in front of the stationary shop of his friend Venu, at the place of incident, and PW3 is the said Venu, who also witnessed the incident. The evidence of PW2 is that while she, deceased Saranya, and Keerthana were returning from the temple, the accused herein came from the opposite direction, and immediately on reaching near Saranya, the accused assaulted her, caught her by force on her right hand with his left hand, and pressed on her left breast with is right hand. Saranya was stunned, and she started weeping. Then the accused escaped, leaving Saranya. But he was caught by some people within no time. This evidence given by PW2 stands not in any manner discredited. Thus a clear act of outrage of modesty by the accused, on deceased Saranya is well proved by the evidence of PW2. Her evidence does not create any sort of suspicion, and there is absolutely no reason why this evidence should be rejected. PW1 and PW3 are also consistent that at about 5.45 pm, they happened to witness a person assaulting Saranya and molesting her by pressing on her breast. When Saranya wept he left her and tried to escape. They and some others immediately caught him within no time, but they did not pursue the matter further for fear that a complaint or other action will affect or spoil the innocent girl. After two days they came to know of the commission of suicide by Saranya at her house. In court, both the witnesses well identified the accusedas the person who molested Saranya. I find no reason to disbelieve the evidence of PW1 and PW3 on the material aspects. They have no reason to give any false evidence against the accused, and there is absolutely no reason why their evidence should be rejected. Their evidence stands not discredited in any manner in cross examination.

7. The learned counsel, even while practically conceding on 354 IPC, submitted that there is no proper identification of the assailant in this case. The learned counsel submitted that the police should have conducted a test identification parade to prove the identity of the accused. In fact I find no substance in this argument. The evidence of PW1 to PW3 well convinces this Court that they had sufficient time to see the assailant and identify who he was. The Hon'ble Supreme Court has held consistently that in a case where the victim or witnesses had sufficient time to see the accused or the assailant, and to have his face and physical features imprinted in their mind, it is of little consequence that test identification parade was not conducted during investigation. Here all the witnesses had sufficient time to see and identify the accused, and to have his face and features imprinted in their mind. This is not a case where everybody had only glimpse of the accused. I find that identification of the accused made by the witnesses during trial in court is well acceptable, and this evidence cannot be rejected on the ground that a test identification parade was not conducted during investigation.

8. On an appreciation of the evidence given by the material witnesses I find that a clear case of outrage of modesty punishable under Section 354 of IPC stands well proved in this case. Thus the conviction under Section 354 IPC and the sentence thereon is liable to be confirmed.

9. Now the important question is whether the proved facts will constitute the offence punishable under Section 306 IPC. The learned counsel for the appellant cited a decision of the Hon'ble Supreme Court in Sanju @ Sanjay Singh Sengar v. State of M.P (2002 KHC 1270 : AIR 2002 SC 1998), a case where the accused asked the deceased in fury to go and die . Provoked by this, the deceased committed suicide. The police brought a prosecution under Section 306 IPC. In the given factual situation, the Hon'ble Supreme Court held in the said case that the conviction under Section 306 IPC cannot be sustained. The Hon'ble Supreme Court found that commission of suicide was not the proximate result of the acts of the accused, or that there was no culpable nexus between the acts of the accused and commission of suicide.

10. The learned counsel also cited a decision of the Karnataka High Court in Suryakanth v. State of Karnataka (2003 KHC 2729 : 2003 Crl.L.J 3562) to substantiate his contention that the proved facts in this case will not come under Section 306 IPC. Suryakanth's case was a case where the accused outraged the modesty of a girl, and due to this, the girl committed suicide. In the said case the Karnataka High Court found that such a factual situation will not come under Section 306 IPC because the intention of the accused was only to outrage the modesty of a girl, and nothing else, or that he did not have even the knowledge that such an act will drive the girl to the commission of suicide. In the said case the Karnataka High Court set aside the conviction under Section 306 IPC but sustained the conviction under Section 354 of IPC. The facts here are exactly identical. I am fully in agreement with the view expressed by the learned Single Judge of the Karnataka High Court in Suryakanth's case.

11. What is punishable under Section 306 IPC is abetment of commission of suicide. The term abetment is defined under Section 107 IPC. Abetment can be made in so many ways, and in the case of commission of suicide such abetment can be by any act or conduct on the part of the accused, causing the commission of suicide. It is well settled that in a prosecution brought under Section 306 IPC, it will have to be proved by the prosecution that there is nexus between the act of the accused alleged, and the commission of suicide. The alleged commission of suicide must be the proximate result of the alleged acts of the accused constituting abetment. In short the alleged acts or words of the accused constituting abetment must have the force and effect, in ordinary circumstances, and in the ordinary course of thinking, that it would drive the victim to the commission of suicide. In this case Saranya was molested and humiliated by the accused on 17.6.2005, and she committed suicide on 19.6.2005. It is alleged that Saranya committed suicide due to the humiliation, insult and mental pain caused by the act of the accused. But this by itself will not make him liable under Section 306 IPC. To punish the accused under Section 306 IPC there must be a situation where the act of the accused would, in ordinary circumstances, drive the victim to the commission of suicide. In certain circumstances even knowledge of the consequence can be imputed that the accused had good knowledge of the consequence that his act would in the particular circumstance drive the victim to the commission of suicide, or make the victim commit suicide. Here is no such factual situation. True, it is, that the accused should be appropriately dealt with, and should be given the maximum sentence for the sexual advancements and outrage committed by him. His intention was only to outrage the modesty of a girl, and he could not have thought of any consequence that the girl would commit suicide due to his act. The victim committed suicide after two days. It appears that some thought of some humiliation developed in her mind gradually, and thinking that others would look down upon her, she decided to put an end to her life. This decision taken by the deceased cannot have direct nexus with the alleged acts of the accused, and so it cannot be said that the commission of suicide of by Saranya after two days was the proximate result of the outrageous acts committed by the accused. I find that the essentials of the offence under Section 306 IPC, constituting abetment in the real sense, are not there in this case. Accordingly, I find that the conviction in this case under Section 306 IPC is liable to be set aside.

In the result, this appeal is allowed in part. The conviction and sentence against the appellant under Section 306 IPC imposed by the court below in S.C No.526/2005 will stand set aside, but the conviction and sentence under Section 354 IPC is confirmed. However, I find the necessity of modification of sentence under Section 354 IPC in exercise of powers under Section 386(b)(iii) Cr.P.C, in the particular facts and circumstances of the case including the nature of the offence committed by the accused. Accordingly, while maintaining the sentence for two years under Section 354 IPC, it is ordered that the said sentence shall be rigorous imprisonment for two years. The fine sentence imposed by the court below is also maintained. The court below will immediately take steps to enforce the sentence under Section 354 IPC.


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