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2018 Supreme(Ker) 488

IN THE HIGH COURT OF KERALA AT ERNAKULAM
RAJA VIJAYARAGHAVAN V., J.
Badusha Nishad, S/o. Nishad A.E - Appellant
Versus
State of Kerala, represented by public prosecutor - Respondent
B.A. No.4978 of 2018
Decided on : 08-08-2018

Advocates:
Advocate Appeared:
For the Appellant : Sri.Peeyus A.Kottam
For the Respondent: Mr. Ajith Murali

Headnote:Indian Penal Code, 1860, Sections 306 and 107 - Criminal Procedure Code, 1973, S.438 - For constituting the offence of the abetment the same should be depended upon the knowledge of the persons who abets and not upon the acts as under the act.

ORDER :

1. The applicant is a teenager. He is 18 years old to be exact. He has rushed to this Court seeking an order of pre-arrest bail. According to him, he is hounded by the police on the allegation that he has abetted the suicide of the love of his life. His contention is that he is innocent and registration of the Crime is on frivolous and vexatious allegations.

2. To understand the contentions of the applicant, one may have to look at the prosecution allegations. A girl aged about 18 years committed suicide by hanging on 7.7.2018 at her residential home at Karumpallichira. The deceased and the applicant were deeply in love and this fact was known to the parents of the deceased. The boy was from a different community and the parents strongly believed that her relationship with the applicant would mess up her future. They gave her the ultimatum to sever her relationship with the applicant. Her mobile phone was confiscated and numerous restrictions were placed. Her mother inflicted some minor punishment to discipline her daughter. The parents contacted the applicant herein and warned him from continuing with the relationship. However, the deceased ignored the warning of her parents and continued to contact him using a mobile phone, which was stealthily handed over to her by the applicant. The girl suspected that the applicant was showing diffidence and was traumatized. After professing her love to the applicant, she decided to take her own life and hanged herself.

3. The Crime was initially registered under Section 174 of the Cr.P.C. In the course of investigation, the mobile phone, which was allegedly handed over by the applicant to the victim, was seized. On examination of the messages and the call details, it was revealed that the applicant and the girl had been contacting till the moment prior to her death. Both had exchanged messages that one could not live with the other. When the girl asserted that she would take her life, the boy responded in the same manner. After scanning the messages, on the allegation that the applicant herein had abetted the girl to commit suicide, he was roped in as the accused.

4. The learned counsel appearing for the applicant submitted that the applicant herein and the deceased were in love. The parents of the deceased were not happy with the relationship. They restricted the freedom and movements of the deceased. The applicant was also threatened by the parents and relatives of the girl and he was asked to refrain from contacting the girl. He had no other go but to impose self restrictions. This had pained the deceased. It is contended that the messages sent to the phone of the applicant by the deceased girl would show that the girl was traumatized by the restrictions placed on her and she apprehended that she would not be able to continue with the relationship with the applicant. According to the learned counsel, these aspects would not show that the applicant herein had instigated or abetted the suicide of the deceased.

5. The learned Public Prosecutor, while opposing the prayer, submitted that the applicant herein had sent numerous messages to the deceased on the date of occurrence, which incited and encouraged the deceased to take her own life.

6. I have considered the submissions advanced and have anxiously scrutinized the case diary. Since the entire prosecution case revolves around the phone call details and messages exchanged by the applicant and the deceased, for the limited purpose of deciding this bail application, I have perused the same.

7. 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. Abetment necessarily means some active suggestion or support to the commission of the offence. “Instigation” is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of "instigation", it is not necessary that actual words must be used to that effect. It is also not necess









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