SUBENDRAN Vs. STATE OF KERALA

JUDGEMENT

(1.) 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.MP.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 ill will 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 29-12-1993. 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 S.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.