The distinction between suicide and euthanasia, and the provisions of S.306 and S.305 of the Indian Penal Code were central to the court's decision.

Petitioner is the accused in S.C.No.165 of 1993 of the Principal Assistant Sessions Court, Irinjalakuda, and in this revision the order passed on Crl.M.P.No.31 of 1994 is under challenge.

2. The offence alleged against him is one punishable under S.306 of the Indian Penal Code. The allegation is that he had some grudge and illwill towards one Noushad, son of Alimuhammed, who was cited as CW-2. On 6-12-1992 at about 1.00 p.m., he trespassed into the verandah of the house of Noushad and incessantly sounded the calling bell to strike terror and to intimidate him. He was also alleged to have repeatedly kicked the door and to have warned Noushad that he will be done away with if he dared to come out of the house. By about 2.00 a.m. Noushad committed suicide by hanging. Allegedly the accused abetted the commission of offence.

3. Charge was framed by the court on 20-12-1993. Petitioner filed the above Crl.M.P. under S.227 of the Code of Criminal Procedure for discharge. It was submitted that the material on which the prosecution is rested its case would not make out the offence alleged Neither suicide nor an attempt to do so is an offence and therefore the prosecution under S.306 of the Indian Penal Code is unsustainable. The court failed to note that abetment of an act which is not an offence cannot also be made an offence, and that the person who has allegedly abetted the act cannot be prosecuted as an abettor. Commission of an offence is the sine qua non to bring home a charge of abetment. The statements of witnesses did not show any circumstance where the petitioner had incited, instigated, induced or exploited the innocent mind of the victim so as to drive or force him to commit suicide. The distinction sought to be drawn by the court below between Ss.107 and 306 I.P.C. "is fundamentally wrong because of the basic principle that the same words in a statute must be deemed to have the same meaning wherever expressed in the statute". The trial and proceedings in the case are illegal and have to be set aside.

4. Heard.

5. The submissions made on behalf of the petitioner are no doubt attractive. But I am not presently inclined to agree with the same. No doubt, it was held by the Supreme Court in Rathinam Nagbhusan ftnaikv. Union of India, JT 1994(3) SC 392 that S.309 is violative of Art.21 of the Constitution and has been declared void. In the words of the Supreme Court, -

"S.309 of the Penal Code deserves to be effaced from the Statute Book to humanise our penal laws. It is a cruel and irrational provision, and if niky result in punishing a person again (doubly) who has suffered agony and would be undergoing ignominy because of his failure to commit suicide. Then an act of suicide cannot be said to be against religion, morality or public policy, and an act of attempted suicide has no baneful effect on society. Further, suicide or attempt to commit it causes no harm to others, because of which State's interference with the personal liberty of the concerned persons is not called for." But then a distinction was made between punishing a man for attempt to commit suicide and euthanasia and observed, that

"a third person is either actively or passively involved about whom it may be said that he aids or abets the killing of another person. We propose to make a distinction between an attempt ui a person to take his life and action of some others to bring to an end the life of a third person. Such a distinction can be made on principle and is conceptually permissible".

A charge for abetment independently would stick, even though the person who had been abetted to commit the offence is found not guilty. Suicide assistance coming within Ss.305 and 306 I.P.C. is punishable, despite effacement of S.309 I.P.C. from the statute by the above decision of the Supreme Court, in the light of which perhaps and in tune with certain legislations elsewhere, particularly in the United States- where there are statutes against aiding/ causing suicide,