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Suniti Biswas vs The State Of West Bengal on 27 February, 2019

IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
APPELLATE SIDE

Before:-
THE HON’BLE JUSTICE RAJASEKHAR MANTHA

C.R.A. 708 of 2008
SUNITI BISWAS
VERSUS
THE STATE OF WEST BENGAL

For the Appellant : Mr. Soumya Nag, Advocate

For the State : Bidyut Kumar Roy, Advocate

Rita Dutta, Advocate

Judgment On : 27th February, 2019.

Rajasekhar Mantha, J.:-
1.

The instant appeal has been filed against a judgment and order dated 18th

September, 2008, passed by the Additional Sessions Judge, Fast Track

Court-I, Krishnanagar, Nadia in sessions Trial No.61(2) of 2007. The

appellant has been convicted under Section 306 of the Indian Penal Code

and was sentenced to suffer 5 years imprisonment and was fined

Rs.1000/-.

2. The facts of the case found by the Court below are inter alia, that on

Sunday 24th of December, 2006 at about 9.30 A.M. the victim Siuli Dutta

aged 13 years had committed suicide by hanging herself in her room in her

house. The appellant resides one house after that of the residence of the

victim. The F.I.R. was, however, registered 4 days later on the 28th

December, 2006 on a complaint filed by the brother of the deceased, Sushil

Dutta.

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3. An inquest was conducted under Section 174 of the Cr.P.C. by the PW No.4

on 24th of December, 2006. The postmortem report indicated that the

death was due to asphyxia by hanging that was ante mortem and suicidal

in nature.

4. It has transpired from the evidence that on the said date i.e. 24.12.2006

and many occasions prior thereto the appellant often taunted and

insinuated against the victim that she was of a bad character and that she

had a love affair with one Gautam Mondal. It has also emerged from the

evidence that the appellant on the fateful day accused the victim of

indulging in prostitution and that her family survived on such income.

There was bad blood between the family of the victim and that of the

appellant.

5. In connection with the taunting accusation and insulting remarks stated to

have been made by the appellant, the complainant, brother of the victim,

PW4, is also admitted to have physically assaulted the appellant for which

he was arrested and enlarged on bail.

6. On the 24th of December, 2006 the comments and/or insulting remarks

made by the appellant to the victim are stated to have led to a huge quarrel

around 9.00 am. At the relevant point of time about 50-60 persons stated

to have assembled near the house of the victim where the quarrel was going

on. At about 9.30 am after the quarrel the victim is stated to have

committed suicide by hanging herself with the help of a saree tied to the

bamboo roof in a room of her father’s house.

7. It is alleged by the complainant PW4 that he had wanted to lodge the

complaint on the date of the incident but the same was declined by the
3

police. He thereafter went again 4 days later when the complaint was

registered as an F.I.R.

8. The investigation was started and the chargesheet was filed against the

appellant with offence punishable under Section 306 of the IPC for abetting

the commission of suicide by the victim for making bad comments about

her character. The chargesheet was filed on 28th March, 2007. The

prosecution examined as many as 10 witnesses who are as follows:

PW1- Rita Bala, neighbour.

PW2- Shipra Dutta, older sister of the victim.

PW3- Dr. Anupam Samanta, the post-mortem surgeon.

PW4- Sushil Dutta, complainant and the brother of the

deceased victim.

PW5- Suryakanta Dutta, father of the victim.

PW6- Sabitri Dutta, mother of the victim.

PW7- Subodh Biswas, independent witness and resident

turned hostile.

PW8- Suroth Basu Mallick, retired Sub-Inspector who

conducted the inquest.

PW9- A.S.I. Dinesh Chandra Mondal, the Police Officer

who filled in and registered an F.I.R.

PW10- S.I. Paritosh Sarkar, Investigating Officer.

9. PW1 had stated that the victim had a love affair with a boy who had ‘spoilt’

her. PW1 resides adjacent to the house of the victim. She was not,

however, examined under Section 161 of the Cr.P.C.
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10. PW2 is the older sister of the victim. She deposed that the appellant

often quarrelled with the victim and called her a prostitute and that the

victim and her family earned their livelihood by the prostitution of the

victim. Strangely despite such quarrel between the victim and the

appellant. PW2 often visited the house of the appellant to watch television.

PW2 also stated that about 50-60 persons assembled near the house of the

victim at the time of the quarrel on the fateful day. She was also not

examined u/s 161 of the Cr. P.C.

11. PW3 had deposed that the death was due to asphyxia by hanging

and suicidal in nature.

12. PW4, the brother of the deceased, first deposed that his sister was

murdered and hanged in her room by the appellant. At the time of quarrel

on the 24th of December, 2006 stated to have been in the market and

returned to the house after hearing about the altercation. He saw the

appellant go away to the house. After entering into his house he found the

dead body of his sister hanging in the room. He initially admitted in cross-

examination that the victim had a love affair with one Gautam Mondal of

the same village but immediately retracted and stated that there was no

such love affair.

13. PW5 the father of the victim stated that the appellant murdered the

victim and hanged her in her room. He was not present at the time when

the incident occurred. Since admittedly he is a daily labourer and leaves

his house early in the morning and does not return until noon. He,

therefore, could not have personal knowledge of the incident. He also did
5

not depose or state that there was any quarrel between the victim and the

appellant past or present.

14. PW6, mother of the victim, deposed that the appellant often

quarrelled with her daughter and used filthy language against her. She

also deposed that the appellant often accused the victim of bad character

and informed one and all about it. On the 24th of December, 2006 the

appellant had used abusive language against the victim. The said PW6

specifically stated that the appellant told the victim on the 24th December,

2006 “you live with different men and a bad woman like you can’t be

found”. She also deposed that the appellant accused the victim that she

was living with different men and was of bad character. She also deposed

that her daughter committed suicide after listening to such abusive words

from the appellant.

15. PW7, a neighbour turned hostile.

16. PW10 is stated to have examined, available witnesses, under Section

161 of the Cr.P.C. But none of such persons was brought as witnesses in

the proceedings. In cross-examination PW10 admitted that some of the

persons who were present in the place and time of occurance namely

Rabindranath Majumdar, Dipak kumar Biswas, Gobinda Biswas or

Costable Milan Bhattachariya were neither examined under Section 161 of

the Cr.P.C. not produced as witnesses.

17. Based on the above evidence the Additional Sessions Judge found

that the evidence on the record was enough to indicate the appellant was

directly responsible for the victim committing suicide. What is, however,

surprising that the Court below found that a mere non-challenge to post-
6

mortem and inquest report has proved the prosecution case beyond

reasonable doubt.

18. It was argued by Counsel Mr. Soumya Nag that there are loopholes in

the prosecution case and the manner in which it was conducted. He first

submitted that although 50-60 persons were admittedly present at the time

of quarrel none of them were examined as witnesses. The older sister of the

victim visiting the house of the appellant for watching television appeared

contradictory to the factum of enmity between the families. The second

independent witness turned hostile and first one’s evidence was not enough

to drive home of ingredients of Section 306 of the Penal Code.

19. This Court notes that the factum of the appellant using abusive

language and insulting the victim are proved. On the fateful day the insult

and accusation insinuation of the character of the victim and accusation of

her being a prostitute are equally established. However, what needs to be

examined is whether these circumstances and facts proved are enough to

drive home the commission of an offence under Section 306 of IPC.

20. The first of the cases relied upon by Mr. Nag for the appellant is the

case of State of West Bengal vs. Orilal Jaiswal and another reported in

(1994) 1 SCC Page73 at Paragraph 17. The Hon’ble Supreme Court has

laid down as follows:

“17. In the instant case, the learned Sessions Judge has come to the finding that
the charges levelled against the accused have been proved by indicating cogent
reasons therefor. We have already indicated that the learned Judge of the High
Court have entertained a grave doubt about the correctness of the prosecution
story for the circumstances indicated hereinbefore. We have analysed those
circumstances and in our view the said grounds do not stand scrutiny and they
are against the weight of the evidence. We may add here 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 the 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
7

society to which the victim belonged and such petulance discord and differences
were not expected to induce a similarly 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. But in the facts and circumstances of the case, there is no
material worthy of credence to hold that Usha was hyper-sensitive and that for
other reasons and not on account of cruelty she had lost normal frame of mind
and being overcome by unusual psychic imbalance, decided to end her life by
committing suicide. The evidence adduced in the case has clearly established that
Usha was subjected to abuses, humiliation and mental torture from the very
beginning of her married life. Within a few days after the marriage when a newly
married bride would reasonably expects love and affection from the in-laws, she
was abused by the mother-in-law, the accused No. 2 by saying that the deceased
was a woman of evil luck only because an elderly member in the family has died
after her marriage. According to the evidence given by the mother of the deceased,
the accused No. 2 even suggested that being a woman of evil luck (alakshmi) the
deceased, should not live and end her life. When Usha conceived for the first time
she had the misfortune of abortion. When the unfortunate daughter-in-law would
reasonably expect sympathy and consolation from the mother-in-law, the evidence
in this case is that the mother-in-law abused the deceased in the hospital by
telling that she was a woman of evil luck. The evidence in the case reveals an act
of extreme form of cruelty by telling the unfortunate mother that she was vile
enough to swallow her own baby and she should commit suicide. There is also
evidence in the case that the husband used to come home drunk and abuse her
and also used to assault her on occasions. The bridal presents brought by her
were branded as goods of inferior quality and she was asked to take the said
articles back to her parental home. Such acts, to say the least, were very unkind
and newly married woman is bound to suffer a great mental pain and humiliation.
Even if we do not take into consideration the demand for further dowry gifts since
the case of such demand had not been indicated in the earlier statement made by
the mother which was treated as F.I.R., there is no manner of doubt that the
evidence of the mother which has been accepted by the learned Sessions Judge
and in our view there is no reason to discard the same, clearly establishes that
the deceased had been subjected to physical and mental torture all throughout. It
is only unfortunate that the accused No. 1, the husband, instead of giving her
solace against the humiliation and abuses hurled by the mother-in-law, either
kept silent or expressed his inability to give good counselling to the mother and to
protest against act of mental torture and humiliation. On the contrary, he also
treated the wife with cruelty by telling her to take the bridal gifts back to her
parental home and also by physically assaulting her. Such acts, in our view, were
quite likely to destroy the normal frame of mind of the deceased and to drive her
to frustration and mental agony and to end her life by committing suicide. Under
explanation (a) of Section 498A I.P.C., “cruelty” means – “any wilful conduct which
is of such nature as is likely to drive the woman to commit suicide or to cause
grave injury or danger to life, limb or health (whether mental or physical) of the
woman.”

21. He next relied upon the case of Mahendra Singh and another vs.

State of Madhya Pradesh reported in 1995 Supp (3) Page731. At

Paragraph 2,the Supreme Court held as follows:

“2. Learned Counsel for the appellant rightly submitted that but for the statement
of the deceased there is no other pointed evidence from which it could be inferred
that there was any abetment so as to bring the acts of the appellants within
Section 306 I.P.C. under which the appellants have been punished. The dying
declaration, per se, could not involve the appellants in offence punishable under
Section 306 I.P.C., because it provides for abetment of suicide. Whoever abets the
8

commission of suicide, and if any person commits suicide due to that reason, he
shall be punished with imprisonment of either description for a term which may
extend to ten years and shall also be liable to fine. Abetment has been defined
in Section 107 I.P.C. to mean that a person abets the doing of a thing who firstly
instigates any person to do a 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. Neither of the ingredients of abetment are attracted on the
statement of the deceased. The conviction of the appellants under Section
306 I.P.C. merely on the allegation of harassment to the deceased is not
sustainable. The appellants deserve to be acquitted of the charge.”

22. He next relied upon the case of Ramesh Kumar vs. State of

Chhattisgarh reported in (2009) 9 SCC Page 618 wherein a 3-Judge

Bench of the Hon’ble Supreme Court at Paragraph 20, held as follows:

“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 consequence to actually follow cannot be said to be instigation.”

23. Lastly, Mr. Nag relied upon the case Gangula Mohan Reddy vs.

State of Andhra Pradesh reported in (2010) 1 SCC Page 750 at

Paragraph 17 the Hon’ble Supreme Court has laid down as follows:

“Abetment involves a mental process of instigating a person or intentionally aiding
a person in doing of a thing. Without a positive act on the part of the accused to
instigate or aid in committing suicide, conviction cannot be sustained. The
intention of the Legislature and the ratio of the cases decided by this Court is
clear that in order to convict a person under Section 306 IPC there has to be a
clear mens rea to commit the offence. It also requires an active act or direct act
which led the deceased to commit suicide seeing no option and this act must have
been intended to push the deceased into such a position that he committed
suicide.”

24. The requirement of degree of proof and the ingredients of Section 306

read with the definition of the word “abetment” in the light of the dicta laid

down by the Hon’ble Supreme Court in the aforesaid decisions is

summarised as follows:

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(a) For an act to constitute instigation to commit suicide there must be

goading and actual instigation and or a direct provocation,

incitement or actual encouragement to commit suicide.

(b) While actual words may not be required but the instigation must

clearly and specifically be suggestive of the consequence.

(c) Words uttered out of fit of anger even if repeated on some occasions

may not amount to abetment.

(d) A mere harassment of the deceased or use of abusive language in a

quarrel including an insult does not constitute an instigation to

commit suicide.

(e) In some cases victims can be hypersensitive to ordinary petulance,

discord and differences including belligerent accusation and

insinuation but the same cannot be expected to induce a normal

person to commit suicide.

25. The Court concerned must be satisfied before coming to a conclusion

of abetment that there must be something more than a mere common

discord which a person with normal sensitivity would be forced to commit

suicide. Abetment involves a mental process and direct goading and or

aiding a person to actually commit suicide which requires a positive act in

this regard.

26. Applying the aforesaid propositions to the facts of the instant case I

do not find any of the aforesaid criteria having been met from the facts

proved against the appellant that she may have actually abetted the victim

to commit suicide. Admittedly there is abuse and insult to the extent of

calling victim a prostitute by which her family is making a living. The truth
10

or otherwise of the same is irrelevant. However, there is no direct

instigation or evidence available on record that the appellant had actually

instigated the victim to commit suicide or had any intention or aided her to

do so.

27. In the facts in some of the cases cited herein above on the behalf of

the appellant it is found from that while the accused in some cases was

convicted under Section 498A of the IPC, they were found not guilty of

offence under Section 306.

28. It was also noted that the mother, brother and sister of the victim

had gone to the extent of stating that victim was murdered and then

hanged. There are only two independent witnesses one of whom turned

hostile. None of the 50-60 persons who assembled outside the place of

quarrel, had been examined under Section 161 of the Cr.P.C. and produced

as witnesses for the prosecution.

29. For the reasons stated herein above the impugned judgment and

sentence cannot be sustained and are hereby set aside.

30. The report filed by the Public Prosecutor indicates that the appellant

has suffered her term of imprisonment and is now free. The appellant

shall not have this stigma of any conviction under Section 306 of the IPC.

31. No order as to costs.

32. Urgent Photostat Certified server copy of this judgment, if applied for,

be supplied to the parties on urgent basis.

(Rajasekhar Mantha, J.)

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