SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Dinesh Kumar vs State on 8 January, 2019

$~R-2

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 08th January, 2019

+ CRL.A. 18/2012
DINESH KUMAR ….. Appellant
versus

STATE ….. Respondent
Advocates who appeared in this case:
For the Petitioners: Mr. L.K.Verma, Adv.

For the Respondents: Mr. Hirein Sharma, APP for the State.

CORAM:-
HON’BLE MR JUSTICE SANJEEV SACHDEVA

JUDGMENT

SANJEEV SACHDEVA, J. (ORAL)

1. Subject appeal impugns judgment on conviction dated
05.12.2011 and order on sentence dated 17.12.2011 whereby the
appellant has been convicted of an offence under Section 306 Indian
Penal Code (IPC for short) and sentenced to undergo 5 years Rigorous
Imprisonment besides payment of fine of Rs.2000/-.

2. Learned counsel for the appellant submits that a charge was
framed against the appellant under
Section 304B/498A/34 of the IPC.
While the appellant stood acquitted of all the charges, the Trial Court
has convicted the appellant of an offence under
Section 306 IPC.
Learned counsel submits that the Trial Court erred in not appreciating

CRL.A.18/2012 Page 1 of 23
that no charge under
Section 306 IPC was framed and the appellant
was not given any opportunity to defend himself with regard to the
offence under
Section 306 IPC and as such the appellant could not
have been convicted for an offence for which he was not charged.

3. Learned counsel for the appellant further submits that even if
assuming the appellant could have been punished for an offence under
Section 306 IPC, even though not specifically charged, the evidence
on record does not substantiate the offence under
Section 306 IPC and
as such the conviction of the appellant cannot be sustained even on
merits of the matter.

4. Learned APP appearing for the State submits that the Trial
Court has rightly convicted the appellant for an offence under
Section
306 IPC, even though the appellant was not charged for the said
offence, as there is sufficient evidence available to sustain the charge
under
Section 306 IPC. He further submits that the Trial Court has
referred to the judgment of the Supreme Court in
Narwinder Singh
vs. State of Punjab, 2011(1) SCR 110 wherein the Supreme Court has
held that conviction under
Section 306 IPC can be sustained even
when it is found that evidence is insufficient to convict the accused
under
Section 304B, 498A IPC even though no specific charge has
been framed. Learned APP further submits that the evidence on record
warranted a conviction under
Section 306 IPC.

5. Without getting into the controversy as to whether the appellant

CRL.A.18/2012 Page 2 of 23
could have been convicted for an offence under
Section 306 IPC
though not specifically charged for the said offence, I have in the first
instance consider the case on merits to ascertain as to whether the
conviction of the appellant under
Section 306 IPC could be sustained.

6. The case of the prosecution is that on 22.10.2009 at about 2
AM information was received regarding death by hanging of a
woman. Subsequently, statement of the father of the deceased was
recorded wherein he had stated that the deceased had married the
appellant on 06.05.2009 according to Hindu rites and ceremonies.

7. The complainant, father of the deceased, had stated that he had
given dowry beyond his means and after a few days of marriage there
were further demands of dowry from the appellant that he wanted to
open an electrical shop. It is the case of the prosecution that the
deceased had repeatedly informed them that there were further
demands for dowry.

8. As per the prosecution, the complainant had stated that the
sister-in-law (jethani i.e. elder brother’s wife) of the appellant had
poured spirit over the deceased and she had escaped by jumping on a
nearby roof. Thereafter a panchayat was held in which the matter was
sorted out. The in-laws admitted their mistake and it was agreed that
they shall not repeat their conduct.

9. It is further the case of the prosecution that the deceased
committed suicide as she was suspicious that there was an illicit

CRL.A.18/2012 Page 3 of 23
relation between the appellant and his sister-in-law.

10. Since the death had taken place between seven years of
marriage, inquest proceedings under
Section 176 Cr.P.C were
conducted and subsequently case under
Section 304B/498A/34 of the
IPC was registered. After final report was filed, following charges
were framed against the accused:-

CHARGE
I, S.K. Sarvaria, Additional Sessions Judge-01,
South do hereby charge you (1) Dinesh S/o Rajender
Prasad (2) Sumitra @ Santra w/o Rajender Prasad (3)
Sukhbir s/o Rajender Prasad and (4) Smt. Sushila wife of
Sukhbir as under:

That on 21-22/10/09 at about 2.00 AM at House
No. 424 Maidan Garhi Road Chattarpur New Delhi
within the jurisdiction of PS Mehrauli death of Smt. Priti
wife of Dinesh Kumar occurred within seven years of her
marriage with Dinesh Kumr on 06.05.09 under the
circumstances other than under normal circumstances
i.e. by hanging and it is shown that soon before her death
she was subjected to cruelty or harassment for fulfilment
of illegal demand of dowry by all of you being husband,
mother of the husband, brother of the husband and
Bhabhi of the husband (sister in law) respectively for or

CRL.A.18/2012 Page 4 of 23
in connection with demand of dowry and thereby
committed her dowry death offence punishable under
Sections 304-B/34 IPC and within my cognizance.

Secondly during 06.05.09 till 21-22/10/09 at house
No. 424 Maidan Garhi Road Chattarpur New Delhi you
all in furtherance of your common intention subjected
Smt. Priti legally wedded wife of accsued Dinesh with
cruelty on account of dowry demands and thereby
committed an offence punishable under
Section 498A/34
IPC and within my cognizance.

And I hereby directed that you all to be tried by
this Court for the aforesaid charges”

11. Apart from the appellant, his mother, brother and sister-in-law
were arraigned as accused. Prosecution led evidence and examined 13
witnesses.

12. The Trial Court after perusal of the testimony of the witnesses
held as under:-

“25. In the present case it is not disputed that the
deceased Preeti has died otherwise than under normal
circumstances. Statement of PWl Dr Sushil Sharma
proves that the deceased Preeti has died due to asphyxia
due to ante-mortem hanging. It is not the case of the
prosecution that it was a homicidal death. The statement
of PW1 coupled with the statement of other witnesses

CRL.A.18/2012 Page 5 of 23
shall prove that the deceased Preeti has committed
suicide by hanging. Thus, the first ingredient stands
proved that the death of deceased Preeti has been caused
otherwise than under normal circumstances.

26. The prosecution case also stands proved that the
death has taken place within seven years of her marriage.
The statement of PW2 Sh Balli Tanwar and PW-3 Sheela
who are father and mother of the deceased Preeti will
prove this fact. They deposed that deceased Preeti was
got married with accused Dinesh on 6.05.2009. The
death of the deceased Preeti has taken place on
22.10.2009. The postmortem report Ex. PW1/Aproves
this fact. So the death has taken place within seven years
of marriage.

27. Now the prosecution has to prove further that the
deceased was subjected to cruelty or harassment by the
husband or his relatives; that the cruelty or the
harassment had nexus with the demand for dowry and
such cruelty or harassment has been caused soon before
her death.

28. A scrutiny of the various depositions is required to
be done to know the answer of this question. PW-2 Balli
Tanwar, father of the deceased stated that his daughter
Preeti had informed him about demand of Rs.3 Lakhs for
opening of an electric shop. However, there is no such
mention in the statement of this witness recorded U/S 161
Cr PC regarding any such demand. He also stated that
prior to the incident, he had never made any complaint
regarding dowry demand and beatings PW-3 Sheela,
mother of deceased deposed that on third visit of her
daughter to her house, she informed her about her
harassment and beatings at the matrimonial house and
that the accused persons were demanding Rs. 3 Lacs for
opening a cycle shop. However, there is no mention
about this demand in her statement recorded U/S 161 Cr

CRL.A.18/2012 Page 6 of 23
P.C. She further stated that this demand was raised after
two months of her marriage. She admitted that there was
no dowry demand from the accused persons at the time of
marriage. She further stated that in the Panchayat the
discussion was regarding demands of the accused and of
giving beatings to deceased. There are contradictions
about the alleged demands. While the father says that the
demand was for opening electric shop, mother says that
the demand was for opening cycle shop. PW-5 Jitender
Kumar, a neighbour of father of deceased stated that he
came to know that in-laws of deceased were demanding
money for starting of shop. From whom he came to know
about this demand, is not known. PW-9 Pappan, Tau of
deceased Preeti deposed that after two months of
marriage, the accused persons started harassing her for
dowry and were demanding dowry i.e. money and
motorcycle. How and from whom he came to know about
these alleged demands is not clear. No other witness has
stated about demand of motorcycle. He further stated in
his cross examination that Preeti never told me about any
specific amount of money being demanded by the accused
persons. He stated that he gave Rs. 25,000/- to Preeti for
opening electrical shop for Dinesh but this is not
mentioned in the statement recorded U/S 161 Cr PC. PW-
10 Sarwan Kumar, a neighbour of the father of the
deceased Preeti stated he had called Preeti at his house,
when she had come to her parents’ house and on being
asked about the reason of her sadness, she replied that
she was being maltreated and beaten by her husband,
jethani and jeth. He stated in his cross examination that
in-laws of Preeti were demanding Rs.3 Lakhs from her
but this is not mentioned in his statement recorded uls
161 Cr PC.

29. A close perusal of all the aforesaid depositions of
the public witnesses show that there is no unanimity
regarding demand of dowry by the accused persons from

CRL.A.18/2012 Page 7 of 23
the deceased or from her family members. All the five
public witnesses though speak about dowry demand but
there is no consistency and corroboration. When the
accused persons demanded money and from whom the
money was demanded, how it was communicated, who
communicated the demand of money, to whom the
demand was communicated – nothing is clear. The
purpose of recording statement uls 161 Cr PC is to rule
out the possibility of improvements and tutoring as the
same is recorded at the earliest opportunity after the
incident. Most of the witnesses who deposed in the Court
stated about demand of dowry by the accused persons but
they had not so stated in their statements recorded U/S
161 Cr PC. In the absence of mention of dowry demand
in the statement u/s 161
CrPC, the statements/depositions
recorded in the Court to this effect, cannot be relied
upon. It is one of the basic ingredient of the offence uls
304-B
IPC that there must be harassment of the deceased
for ‘dowry’. Prosecution has failed to prove the
allegations against the accused persons beyond
reasonable doubt as there is no evidence of any
harassment to deceased on account of demand of dowry;
there is no evidence that she was subjected to any cruelty
so as to drive her to commit suicide or any injury to her
life, limb and health and there is no evidence on the
record to show that “soon before her death” she has been
subjected to any cruelty or harassment ‘on account of
demand of dowry’. Therefore, the prosecution not only
failed to prove the offence under
section 304B IPC but
also failed to prove the necessary ingredient of offence
under
section 498A IPC.”

(underlining supplied)

13. The Trial Court after perusal of the evidence has categorically
returned a finding that prosecution has failed to prove the allegations
against the accused beyond reasonable doubt. The Trial Court was of

CRL.A.18/2012 Page 8 of 23
the view that there is no evidence of any harassment of the deceased
on account of demand of dowry and further there is no evidence that
she was subjected to any cruelty so as to drive her to commit suicide
or cause any injury to her life, limb and health and there is no
evidence on record to show that soon before her death she was
subjected to any cruelty or harassment on account of demand of
dowry.

14. Trial Court, while acquitting the accused of the offences under
Section 498A/304B/34 of the IPC, went on to hold that since death
has taken place by committing suicide, it examined as to whether
there was any abetment on account of the accused persons for driving
the deceased to commit suicide so as to make them liable under
Section 306 IPC.

15. The finding returned by the Trial Court for the offence under
section 306 IPC is as under:-

“36. Ingredients of the offence uls 306 IPC are that
there should be suicide of a person and that it should
have been committed in consequence of abetment by the
accused.

37. PW-l Dr. Sushil Sharma in his evidence has opined
that generally death due to asphyxia due to hanging is
indicative of suicide unless proved otherwise. No
evidence has come on record that the death of the
deceased Preeti was homicidal in nature. As such, the
death was suicidal in nature.

CRL.A.18/2012 Page 9 of 23

38. PW-2 Balli Tanwar, father of the deceased had
stated in his deposition that Panchayat had taken place
in the house of the accused persons where it was
discussed as to why spirit was thrown on his daughter
and why she was being beaten regularly. PW-3 Sheela,
mother of deceased deposed that after about 2½ – 3
months of marriage, Sushila poured spirit on deceased.
Pw-5 Jitender Kumar, a neighbour of the father of the
deceased stated that he had attended the Panchayat in
which the issue of pouring spirit upon Preeti by the
family members of Dinesh was discussed. He further
stated that Preeti had jumped on the roof of her
neighbour when spirit was attempted to be put on her by
her in-laws. PW-9 Pappan, Tau of deceased Preeti stated
that in August 2009 spirit was poured upon Preeti by her
sister in law Sushila. This issue was also discussed in
Panchayat. PW-10 Sarwan Kumar, a neighbour of the
father of the deceased Preeti stated that Preeti also told
him that once she saved her life by jumping on the roof of
her neighbour while spirit was poured upon her by her
jethani. He further stated that in the Panchayat issue of
pouring of spirit on Preeti was discussed. Another issue
which was discussed was about illicit relations between
Dinesh and Sushila, although it was not the main issue as
the main issue was about pouring of spirit by Sushila
upon her.

39. From scrutiny of aforesaid depositions, it becomes
clear that spirit was poured on deceased Preeti which
was discussed in Panchayat. An issue of illicit relations
between Dinesh and Sushila was also discussed in
Panchayat as has been deposed by the witnesses. No
other reason has come on record which could throw any
light on the mystery as to why the deceased Preeti
committed suicide. In their separate statements u/s 313
Cr.PC, accused Dinesh, husband of the deceased and
Sushila, jethani of deceased stated that Preeti suspected

CRL.A.18/2012 Page 10 of 23
that Dinesh was having illicit relations with Sushila. To a
question as to why the witnesses deposed against the
accused persons, they replied that the witnesses wanted
to take revenge. What revenge the witnesses wanted to
take and why the witnesses wanted to take revenge from
the accused persons has not been brought on record. As
such, the defence is sham. The defence witnesses DW-l
Laxmi Narain stated that illicit relations between Dinesh
and Sushila was an issue which was discussed in
Panchayat. DW-2 Rati Ram stated that the issue of
pouring of spirit and illicit relations were discussed in
Panchayat. It thus appears that the deceased was feeling
harassed at the hands of the accused persons as she was
physically tortured by putting spirit on her, and mentally
due to the illicit relations between Dinesh /and Sushila.
Dinesh and Sushila were having illicit relations and the
other accused persons failed to ensure a healthy and
peaceful matrimonial atmosphere for the deceased
Preeti. The issue was discussed in Panchayat but to no
avail. Thus, left with no option, Preeti committed suicide
and the accused persons Dinesh and Sushila jointly and
severally abetted the same.”

16. Section 306 IPC reads as under:-

“306. Abetment of suicide.- If any person commits
suicide, whoever abets the commission of such suicide,
shall be punished with imprisonment of either description
for a term which may extend to ten years, and shall also
be liable to fine.”

17. Under Section 306 IPC, whoever abets commission of suicide
is held liable for abetment of suicide.

18. Section 107 IPC defines abetment as under:-

CRL.A.18/2012 Page 11 of 23

“107. Abetment of a thing – A person abets the doing of a

thing, who-

(First) – Instigates any person to do that thing; or

(Secondly) – Engages with one or more other person or
persons in any conspiracy for the doing of that thing, if an
act or illegal omission takes place in pursuance of that
conspiracy, and in order to the doing of that thing; or

(Thirdly) – Intentionally aids, by any act or illegal
omission, the doing of that thing.

Explanation 1.- A person who, by willful misrepresentation,
or by willful concealment of a material fact which is bound
to disclose, voluntarily causes or procures, or attempts to
cause or procure, a thing to be done, is said to instigate the
doing of that thing.

Illustration A, a public officer, is authorized by a warrant
from a Court of Justice to apprehend Z. B, knowing that
fact and also that C is not Z, willfully represents to A that C
is Z, and thereby intentionally causes A to apprehend C.
Here B abets by instigation the apprehension of C.

Explanation 2. – Whoever, either prior to or at the time of
the commission of an act, does anything in order to
facilitate the commission of that act, and thereby facilitate
the commission thereof, is said to aid the doing of that
act.”

19. In the case of suicide, a person is liable for abetment if the
person has inter alia instigated the deceased for committing suicide or
has engaged in any conspiracy for committing suicide or intentionally
aided the commission of suicide.

CRL.A.18/2012 Page 12 of 23

20. Reference may be had to the judgment of the Supreme Court in
Ramesh Kumar vs. State of Chhattisgarh: (2001) 9 SCC 618, wherein,
the Supreme Court laid down as to what conduct would amount to
incitement or instigation:-

“20. Instigation is to goad, urge forward, provoke,
incite or encourage to do “an act”. To satisfy the
requirement of instigation though it is not necessary that
actual words must be used to that effect or what
constitutes instigation must necessarily and specifically
be suggestive of the consequence. Yet a reasonable
certainty to incite the consequence must be capable of
being spelt out. The present one is not a case where the
accused had by his acts or omission or by a continued
course of conduct created such circumstances that the
deceased was left with no other option except to commit
suicide in which case an instigation may have been
inferred. A word uttered in the fit of anger or emotion
without intending the consequences to actually follow
cannot be said to be instigation.

21. In State of W.B. v. Orilal Jaiswal [(1994) 1 SCC
73 : 1994 SCC (Cri) 107] this Court has cautioned that
the court should be extremely careful in assessing the
facts and circumstances of each case and the evidence
adduced in the trial for the purpose of finding whether
the cruelty meted out to the victim had in fact induced her
to end her life by committing suicide. If it transpires to
the court that a victim committing suicide was
hypersensitive to ordinary petulance, discord and
differences in domestic life quite common to the society
to which the victim belonged and such petulance, discord
and differences were not expected to induce a similarly

CRL.A.18/2012 Page 13 of 23
circumstanced individual in a given society to commit
suicide, the conscience of the court should not be
satisfied for basing a finding that the accused charged of
abetting the offence of suicide should be found guilty.”

(underlining supplied)

21. Reference may also be had to the judgment of the Supreme
Court in
Pawan Kumar vs. State of H.P.: (2017) 7 SCC 780, wherein,
the Supreme Court elaborated upon the expression abetment as
under:-

“34. The word “abetment” has not been explained in
Section 306 IPC. In this context, the definition of
abetment as provided under
Section 107 IPC is pertinent.
Section 306 IPC seeks to punish those who abet the
commission of suicide of other. Whether the person has
abetted the commission of suicide of another or not is to
be gathered from facts and circumstances of each case
and to be found out by continuous conduct of the
accused, involving his mental element. Such a
requirement can be perceived from the reading of
Section
107 IPC.
Section 107 IPC reads as under:

“107. Abetment of a thing.*********

“Abetment”, thus, means certain amount of active
suggestion or support to do the act.

35. Analysing the concept of “abetment”, as found in
Section 107 IPC, a two-Judge Bench in Chitresh Kumar
Chopra v. State (Govt. of NCT of Delhi) [Chitresh Kumar
Chopra v. State (Govt. of NCT of Delhi), (2009) 16 SCC
605 : (2010) 3 SCC (Cri) 367] has held: (SCC p. 610,

CRL.A.18/2012 Page 14 of 23
paras 13 15)
“13. As per the section, a person can be said to have
abetted in doing a thing, if he, firstly, instigates
any person to do that thing; or secondly, engages
with one or more other person or persons in any
conspiracy for the doing of that thing, if an act or
illegal omission takes place in pursuance of that
conspiracy, and in order to the doing of that thing;
or thirdly, intentionally aids, by any act or illegal
omission, the doing of that thing. Explanation to
Section 107 states that any wilful
misrepresentation or wilful concealment of
material fact which he is bound to disclose, may
also come within the contours of “abetment”. It is
manifest that under all the three situations, direct
involvement of the person or persons concerned in
the commission of offence of suicide is essential to
bring home the offence under
Section 306 IPC.

***

15. As per clause Firstly in the said section, a person
can be said to have abetted in doing of a thing,
who “instigates” any person to do that thing. The
word “instigate” is not defined in
IPC. The
meaning of the said word was considered by this
Court in
Ramesh Kumar v. State of
Chhattisgarh [Ramesh Kumar v. State of
Chhattisgarh, (2001) 9 SCC 618 : 2002 SCC (Cri)
1088] .”

In the said authority, the learned Judges have referred to
the pronouncement in
Ramesh Kumar v. State of
Chhattisgarh [Ramesh Kumar v. State of Chhattisgarh,
(2001) 9 SCC 618 : 2002 SCC (Cri) 1088] .

CRL.A.18/2012 Page 15 of 23

36. The word “instigate” literally means to goad, urge
forward, provoke, incite or encourage to do an act. A
person is said to instigate another person when he
actively suggests or stimulates him to an act by any
means or language, direct or indirect, whether it takes
the form of express solicitation or of hints, insinuation or
encouragement. Instigation may be in (express) words or
may be by (implied) conduct.

37. The word “urge forward” means to advise or try
hard to persuade somebody to do something, to make a
person to move more quickly in the particular direction,
specially by pushing or forcing such person. Therefore, a
person instigating another has to “goad” or “urge
forward” the latter with the intention to provoke, incite
or encourage the doing of an act by the latter. In order to
prove abetment, it must be shown that the accused kept
on urging or annoying the deceased by words, taunts
until the deceased reacted. A casual remark or something
said in routine or usual conversation should not be
construed or misunderstood as “abetment”.

38. Analysing further, in Randhir Singh v. State of
Punjab [Randhir Singh v. State of Punjab, (2004) 13
SCC 129 : 2005 SCC (Cri) 56] , the Court has observed
thus: (SCC p. 134, para 12)
“12. Abetment involves a mental process of instigating
a person or intentionally aiding that person in
doing of a thing. In cases of conspiracy also it
would involve that mental process of entering
into conspiracy for the doing of that thing. More
active role which can be described as instigating
or aiding the doing of a thing is required before a
person can be said to be abetting the commission

CRL.A.18/2012 Page 16 of 23
of offence under
Section 306 IPC.”

(emphasis supplied)
39. In Praveen Pradhan v. State of

Uttaranchal [Praveen Pradhan v. State of Uttaranchal,
(2012) 9 SCC 734 : (2013) 1 SCC (Cri) 146] , it has been
ruled: (SCC p. 741, para 18)
“18. In fact, from the above discussion it is apparent
that instigation has to be gathered from the
circumstances of a particular case. No straitjacket
formula can be laid down to find out as to whether
in a particular case there has been instigation
which forced the person to commit suicide. In a
particular case, there may not be direct evidence
in regard to instigation which may have direct
nexus to suicide. Therefore, in such a case, an
inference has to be drawn from the circumstances
and it is to be determined whether circumstances
had been such which in fact had created the
situation that a person felt totally frustrated and
committed suicide. …”

(emphasis supplied)

40. In Amalendu Pal v. State of W.B. [Amalendu
Pal v. State of W.B., (2010) 1 SCC 707 : (2010) 1 SCC
(Cri) 896] , the Court, after referring to the authorities
in
Randhir Singh [Randhir Singh v. State of Punjab,
(2004) 13 SCC 129 : 2005 SCC (Cri) 56] ,
Kishori
Lal v. State of M.P. [Kishori Lal v. State of M.P., (2007)
10 SCC 797 : (2007) 3 SCC (Cri) 701] and Kishangiri
Mangalgiri Goswami v. State of Gujarat [Kishangiri
Mangalgiri Goswami v. State of Gujarat, (2009) 4 SCC
52 : (2009) 2 SCC (Cri) 62] , has held: (Amalendu Pal
case [
Amalendu Pal v. State of W.B., (2010) 1 SCC 707 :

CRL.A.18/2012 Page 17 of 23

(2010) 1 SCC (Cri) 896] , SCC p. 712, para 12)
“12. Thus, this Court has consistently taken the view
that before holding an accused guilty of an offence
under
Section 306 IPC, the court must
scrupulously examine the facts and circumstances
of the case and also assess the evidence adduced
before it in order to find out whether the cruelty
and harassment meted out to the victim had left the
victim with no other alternative but to put an end
to her life. It is also to be borne in mind that in
cases of alleged abetment of suicide there must be
proof of direct or indirect acts of incitement to the
commission of suicide. Merely on the allegation of
harassment without there being any positive action
proximate to the time of occurrence on the part of
the accused which led or compelled the person to
commit suicide, conviction in terms of
Section 306
IPC is not sustainable.”

41. A two-Judge Bench in Netai Dutta v. State of
W.B. [Netai Dutta v. State of W.B., (2005) 2 SCC 659 :
2005 SCC (Cri) 543] , while dwelling on the concept of
abetment under
Section 107 IPC especially in the context
of suicide note, observed: (SCC p. 661, paras 6-7)
“6. In the suicide note, except referring to the name of
the appellant at two places, there is no reference of
any act or incidence whereby the appellant herein
is alleged to have committed any wilful act or
omission or intentionally aided or instigated the
deceased Pranab Kumar Nag in committing the
act of suicide. There is no case that the appellant
has played any part or any role in any conspiracy,
which ultimately instigated or resulted in the

CRL.A.18/2012 Page 18 of 23
commission of suicide by deceased Pranab Kumar
Nag.

7. Apart from the suicide note, there is no allegation
made by the complainant that the appellant herein
in any way was harassing his brother, Pranab
Kumar Nag. The case registered against the
appellant is without any factual foundation. The
contents of the alleged suicide note do not in any
way make out the offence against the appellant.
The prosecution initiated against the appellant
would only result in sheer harassment to the
appellant without any fruitful result. In our
opinion, the learned Single Judge seriously erred
in holding that the first information report against
the appellant disclosed the elements of a
cognizable offence. There was absolutely no
ground to proceed against the appellant herein.
We find that this is a fit case where the
extraordinary power under
Section 482 of the
Code of Criminal Procedure is to be invoked. We
quash the criminal proceedings initiated against
the appellant and accordingly allow the appeal.”

42. At this juncture, we think it appropriate to
reproduce two paragraphs from Chitresh Kumar
Chopra [Chitresh Kumar Chopra v. State (Govt. of NCT
of Delhi), (2009) 16 SCC 605 : (2010) 3 SCC (Cri) 367] .
They are: (SCC p. 611, paras 16 19)
“16. Speaking for the three-Judge Bench in Ramesh
Kumar case [
Ramesh Kumar v. State of
Chhattisgarh, (2001) 9 SCC 618 : 2002 SCC (Cri)
1088] , R.C. Lahoti, J. (as his Lordship then was)
said that instigation is to goad, urge forward,

CRL.A.18/2012 Page 19 of 23
provoke, incite or encourage to do “an act”. To
satisfy the requirement of “instigation”, though it
is not necessary that actual words must be used to
that effect or what constitutes “instigation” must
necessarily and specifically be suggestive of the
consequence. Yet a reasonable certainty to incite
the consequence must be capable of being spelt
out. Where the accused had, by his acts or
omission or by a continued course of conduct,
created such circumstances that the deceased was
left with no other option except to commit suicide,
in which case, an “instigation” may have to be
inferred. A word uttered in a fit of anger or
emotion without intending the consequences to
actually follow, cannot be said to be instigation.

***
19. As observed in Ramesh Kumar [Ramesh

Kumar v. State of Chhattisgarh, (2001) 9 SCC 618
: 2002 SCC (Cri) 1088] , where the accused by his
acts or by a continued course of conduct creates
such circumstances that the deceased was left with
no other option except to commit suicide, an
“instigation” may be inferred. In other words, in
order to prove that the accused abetted
commission of suicide by a person, it has to be
established that:

(i) the accused kept on irritating or annoying
the deceased by words, deeds or wilful
omission or conduct which may even be a
wilful silence until the deceased reacted or
pushed or forced the deceased by his deeds,
words or wilful omission or conduct to make

CRL.A.18/2012 Page 20 of 23
the deceased move forward more quickly in
a forward direction; and

(ii) that the accused had the intention to
provoke, urge or encourage the deceased to
commit suicide while acting in the manner
noted above. Undoubtedly, presence of mens
rea is the necessary concomitant of
instigation.”

(emphasis in original)
This Court again observed: (SCC pp. 611-12, para 20)

20. … The question as to what is the cause of a suicide
has no easy answers because suicidal ideation and
behaviours in human beings are complex and
multifaceted. Different individuals in the same situation
react and behave differently because of the personal
meaning they add to each event, thus accounting for
individual vulnerability to suicide. Each individual’s
suicidability pattern depends on his inner subjective
experience of mental pain, fear and loss of self-respect.
Each of these factors are crucial and exacerbating
contributor to an individual’s vulnerability to end his
own life, which may either be an attempt for self-
protection or an escapism from intolerable self.”

(emphasis in original)”

(underlining supplied)

22. Clearly in terms of the law laid down something more than
mere apprehension of the deceased was necessary. There is no
conduct attributable to the appellant to show that the appellant by his
action instigated the deceased to commit suicide. Further perusal of

CRL.A.18/2012 Page 21 of 23
the evidence shows that apart from mere allegation no material had
come to record that appellant was having any illicit relation with his
sister-in-law.

23. The reasoning given by the Trial Court for convicting the
appellant under
Section 306 IPC is that the deceased was feeling
harassed at the hands of the accused persons as she was physically
tortured by putting spirit on her and mentally tortured due to the illicit
relation between the appellant and his sister-in-law. The Trial Court
was of the view that the appellant and his sister-in-law were having
illicit relations and further the accused persons failed to ensure a
healthy and peaceful matrimonial atmosphere for the deceased and
accordingly deceased was left without any option but to commit
suicide. The Trial Court was of the view that the appellant jointly with
the sister-in-law and severally abetted the offence of suicide.

24. Once the Trial Court has come to a conclusion that there was no
evidence that the deceased was subjected to any cruelty so as to drive
her to commit suicide or to cause any injury to her life, limb and
health, the Trial Court could not have in the facts of the case held the
petitioner guilty sole on account of the fact that the deceased had
committed suicide within seven years of her marriage. The testimony
of the witnesses do not substantiate the commission of an offence
under
Section 306 by the appellant.

25. I am of the view that the finding of the Trial Court, with regard

CRL.A.18/2012 Page 22 of 23
to the offence under
Section 306 IPC is concerned, cannot be
sustained from the evidence. The judgment of the Trial Court in so far
as the offence under
Section 306 IPC is concerned is clearly perverse.

26. In view of the above, the appeal is allowed. The appellant is
acquitted of the offence under
Section 306 IPC.

27. The bail bond furnished by the appellant is accordingly
discharged and the surety released.

28. Since this Court has examined the contention of the appellant
on merits and found that no offence under
Section 306 IPC is made
out, the technical plea raised by learned counsel for the appellant that
the appellant could not have been convicted under
Section 306 IPC as
he was not charge sheeted for the same has not been considered and is
left open.

29. Order dasti under the signature of the Court Master.

SANJEEV SACHDEVA, J
JANUARY 08, 2019
rk

CRL.A.18/2012 Page 23 of 23

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2019 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

Web Design BangladeshWeb Design BangladeshMymensingh