Pal @ Jhantu Vs. State of West Bengal  INSC 1722 (11 November 2009)
APPELLATE JURISDICTION CRIMINAL APPEAL NO.2091 OF 2009 (Arising out of S.L.P.
(Crl.) No. 9483 of 2008) Amalendu Pal @ Jhantu .... Appellant Versus State of
West Bengal .... Respondent
MUKUNDAKAM SHARMA, J.
In the present appeal, the appellant has challenged the legality
of the judgment and order dated 24.07.2008 passed by the Calcutta High Court.
The appellant is aggrieved by the aforesaid judgment and order as by the said
judgment, the High Court has upheld the order of conviction and sentence passed
by the trial Court whereby the appellant was sentenced to undergo rigorous
imprisonment for three years for the offence punishable under Section 498-A of
the Indian Penal Code (in short "the IPC") and for eight years together
with a fine of Rs 1000/- for the offence punishable under Section 306 of the
IPC with a default stipulation. The sentences awarded to the appellant were
directed to run concurrently.
The facts necessary for the disposal of the present appeal and as
presented by the prosecution may be set out at this stage. The appellant -
Amalendu Pal @ Jhantu and the deceased - Dipika were married in the year 1977.
Out of the said wedlock, two sons were born. The appellant was residing in
Calcutta in connection with his work and earning. During his stay in Calcutta,
the appellant developed an extra-marital relationship with one Jyotsna @ Anita.
The relationship between the appellant and said Anita became known to the
deceased and the deceased objected to such illegal relationship. The appellant
sought permission of the deceased to marry said Anita, which was also refused
by the deceased. Consequently, the appellant started torturing the deceased
both physically and mentally.
After a few days, the appellant again tried to take the consent of
the deceased for marrying said Anita and on refusal of the deceased, physical
and mental torture was perpetrated on the deceased. It was alleged that the
deceased was provoked by the appellant to end her life by consuming poison or
by hanging herself. It was also the case that three months prior to the date of
death of the deceased, the appellant brought said Anita to his house.
sporting a vermillion mark on her forehead and was wearing conch bangles on her
wrist to indicate that 2 she is married to the accused. It was also stated that
in the evening prior to the date of the death of the deceased, the deceased was
assaulted by Anita, the appellant and his family members. On the morning of
27.09.1991, the deceased was found hanging from the ceiling of the house of the
Ashoka Kumar Maity (PW-7) intimated Supriyo Das, brother of the
deceased (PW-2) about the death of the deceased.
receipt of the aforesaid information, PW-2 arrived at the house of the
appellant where he learnt about the entire incident from the villagers who had
assembled at the scene of occurrence. Thereafter, PW-2 proceeded to the Contai
Police Station and got a complaint registered. On the strength of the
complaint, First Information Report (in short "the FIR") under
Sections 498-A and 306 IPC was lodged on 28.09.1991 at 20.30 hrs.
After completion of the investigation, the police filed a charge
sheet against the appellant and seven other accused persons. On the basis of
the aforesaid charge sheet, the trial Court framed charges under Section 498A
read with Section 34 IPC and Section 306 read with Section 34 IPC against the
appellant and seven other accused persons to which all of them pleaded not
guilty and claimed to be tried.
During the trial, a number of prosecution witnesses were 3
examined. The defence produced two witnesses in support of its case. On
conclusion of the trial, the trial Court by its judgment and order dated
25.11.1997 convicted the appellant under Sections 498A and 306 IPC and
sentenced the appellant to undergo rigorous imprisonment for three years and
for eight years together with a fine of Rs 1000/- respectively. All the other
seven accused persons were acquitted of the above stated charges framed against
Aggrieved by the aforesaid order of conviction and sentence passed
by the trial Court, the appellant herein preferred an appeal before the High
Court. The State, however, did not prefer any appeal before the High Court
against the order of acquittal recorded by the trial Court with regard to the
seven accused persons who were also charged with the appellant for the
aforesaid offences. The High Court entertained the said appeal and heard the
counsel appearing for the parties. On conclusion of the arguments, the High
Court passed a judgment and order upholding the order of conviction and
affirming the sentence awarded to the appellant by the trial Court. The said
order of conviction upheld by the High Court is under challenge in this appeal.
Mr. Pradip K. Ghosh, learned senior counsel appearing on behalf of
the appellant, very painstakingly argued the 4 appeal before us. He submitted
that in the absence of cogent and reliable evidence to establish abetment of
suicide by the appellant, the conviction of the appellant under Section 306
could not be sustained and was bad in law. He further submitted that the High
Court erred in convicting the appellant under Section 306 IPC as the High Court
failed to properly appreciate the evidence on record. He further strenuously
submitted before us that there was no evidence of infliction of torture upon
the deceased by the appellant immediately prior to the incident of suicide by
the deceased and as such it could not be said that the appellant had incited
the deceased to commit suicide.
On the other hand, the learned counsel appearing on behalf of the
respondent State supported the judgments of the courts below.
We have carefully considered the submissions made before us by the
learned counsel appearing for the parties and perused the evidence available on
record before us. On a close and careful scrutiny of the oral evidence of the
prosecution witnesses namely, PW-2, PW-4, PW-6, PW-7 and PW-9, we find that the
appellant and the deceased had got married in the year 1977 and they had
enjoyed a happy married life for 5-6 years from the date of their marriage. The
aforesaid prosecution witnesses have also 5 categorically stated in their
testimony before the trial Court that the problems between the appellant and
the deceased cropped up and their matrimonial life got strained only after the
appellant developed an extra- marital relationship with one Jyotsna @ Anita
during his stay in Calcutta and the said liaison between the appellant and the
said Anita became known to the deceased.
only when the appellant was denied permission by the deceased to marry said
Anita that the appellant started torturing the deceased both mentally as well
At the outset, we intend to address the issue regarding the
applicability of Section 306 IPC in the facts of the present case. Section 306
deals with abetment of suicide and Section 107 deals with abetment of a thing.
They read as follows:
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
* * *
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.
1.--A person who, by wilful 6 misrepresentation, or by wilful concealment of a
material fact which he 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.
* * *
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 facilitates the commission thereof, is said to aid the doing of that
The legal position as regards Sections 306 IPC which is long
settled was recently reiterated by this Court in the case of Randhir Singh v.
State of Punjab (2004) 13 SCC 129 as follows in paras 12 and 13:
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 of offence under Section 306 IPC.
State of W.B. v. Orilal Jaiswal this Court has observed that the courts 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 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."
Further in the case of Kishori Lal v. State of M.P. 7 (2007) 10
SCC 797, this Court gave a clear exposition of Section 107 IPC when it observed
as follows in para 6:
Section 107 IPC defines abetment of a thing.
offence of abetment is a separate and distinct offence provided in IPC. A
person, abets the doing of a thing when (1) he instigates any person to do that
thing; or (2) engages with one or more other persons in any conspiracy for the
doing of that thing; or (3) intentionally aids, by act or illegal omission, the
doing of that thing. These things are essential to complete abetment as a
crime. The word "instigate" literally means to provoke, incite, urge
on or bring about by persuasion to do any thing. The abetment may be by instigation,
conspiracy or intentional aid, as provided in the three clauses of Section 107.
109 provides that if the act abetted is committed in consequence of abetment
and there is no provision for the punishment of such abetment, then the
offender is to be punished with the punishment provided for the original
in Section 109 means the specific offence abetted. Therefore, the offence for
the abetment of which a person is charged with the abetment is normally linked
with the proved offence."
Kishangiri Mangalgiri Swami v. State of Gujarat (2009) 4 SCC 52]
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 8 there must be proof of direct or
indirect acts of incitement to the commission of suicide. Merely on the
allegation of harassment without their 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
In order to bring a case within the purview of Section 306 of IPC
there must be a case of suicide and in the commission of the said offence, the
person who is said to have abetted the commission of suicide must have played
an active role by an act of instigation or by doing certain act to facilitate
the commission of suicide. Therefore, the act of abetment by the person charged
with the said offence must be proved and established by the prosecution before
he could be convicted under Section 306 IPC.
The expression `abetment' has been defined under Section 107 IPC
which we have already extracted above. A person is said to abet the commission
of suicide when a person instigates any person to do that thing as stated in
clause firstly or to do anything as stated in clauses secondly or thirdly of
Section 107 IPC. Section 109 IPC provides that if the act abetted is committed
pursuant to and in consequence of abetment then the offender is to be punished
with the punishment provided for the original offence.
Learned counsel for the respondent-State, however, 9 clearly
stated before us that it would be a case where clause `thirdly' of Section 107
IPC only would be attracted. According to him, a case of abetment of suicide is
made out as provided for under Section 107 IPC.
In view of the aforesaid situation and position, we have examined
the provision of clause thirdly which provides that a person would be held to
have abetted the doing of a thing when he intentionally does or omits to do
anything in order to aid the commission of that thing. The Act further gives an
idea as to who would be intentionally aiding by any act of doing of that thing
when in Explanation 2 it is provided as follows:
"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
Therefore, the issue that arises for our consideration is whether
any of the aforesaid clauses namely firstly alongwith explanation 1 or more particularly
thirdly with Explanation 2 to Section 107 is attracted in the facts and
circumstances of the present case so as to bring the present case within the
purview of Section 306 IPC.
We have already considered a number of decisions of this Court on
the aforesaid aspect and having done so we revert 10 back to the factual
position of the present case. The prosecution has specifically alleged that on
26.09.1991, the day prior to the date of commission of suicide by the deceased,
the deceased was tortured by the appellant, Anita and the other accused persons
present in the house of the appellant, as a result of which the deceased
committed suicide on the next day.
perusal of the record of the present case, we find that both the trial Court as
well as the High Court have disbelieved the said incident as, according to
them, the statement of the witnesses to establish the said fact are not
reliable and trustworthy. Those findings recorded by the trial Court and the
High Court have not been challenged before us. It is not the case of the
prosecution that the case in hand would fall within the ambit of clause firstly
of or Explanation 1 to Section 107 IPC.
The prosecution, however, heavily relies on the clause thirdly of
Section 107 IPC because, according to the prosecution, the appellant by way of
harassment and torturing the deceased at various point of time and by marrying
said Anita for the second time without the permission and against the will of
the deceased, intentionally aided the commission of suicide by the deceased.
In support of the aforesaid contention, learned counsel for the
prosecution relied upon Explanation 2 to Section 107.
submitted that prior to the commission of suicide by the 11 deceased, the
appellant had, by bringing said Anita as his second wife to his house
facilitated the commission of suicide by the deceased and thus, the appellant
intentionally aided the commission of suicide by the deceased. The evidence on
record, however, does not support such a case. It is pertinent to note that the
appellant had brought Anita to stay with him at his house three months prior to
the date of the death of the deceased. If the deceased had been so perturbed by
the act of the appellant in marrying the said Anita and in bringing her to his
house that she felt impelled to commit suicide then she could have done so on
the very day when Anita had come to stay with the appellant in his house as
naturally at that point of time her annoyance or dismay with life would have
been at its pinnacle. From the period of three months which elapsed in between
the incidents of the appellant bringing Anita to his house and the deceased
committing suicide, it can be clearly inferred that it was not the act of the
appellant which instigated or provoked the deceased to commit suicide.
The perpetration of physical torture on the deceased on the day
prior to the date of the incident which led the deceased to commit suicide is
the prosecution case all throughout. It is nowhere the case of the prosecution
that the appellant had played any active role either in instigating or aiding
the commission of suicide by the deceased for denying to accept Anita as the
wife of the appellant. Anita, the second wife of the appellant was brought by
the appellant to his house 12 about three months prior to the date of the
incident of suicide by the deceased and therefore, bringing of the second wife
to the house by the appellant cannot be said to have either incited or
facilitated the commission of suicide by the deceased. It is also not the case
of the prosecution as disclosed from the evidence led which we have scrutinised
very minutely. The aforesaid contention, in our considered opinion, is far
fetched and is not established by the facts of the present case. After carefully
assessing the evidence on record we find that there is no direct evidence to
show that the appellant had by his acts instigated or provoked the deceased to
commit suicide and has not done any act which could be said to have facilitated
the commission of suicide by the deceased.
We now intend to proceed to find out whether a case under Section
498A IPC is made out against the appellant or not. In the case of Girdhar
Shankar Tawade v. State of Maharashtra (2002) 5 SCC 177, this Court gave a
succinct enumeration of the object and ingredients of Section 498A IPC, when it
observed as follows in paras 3 and 17:
The basic purport of the statutory provision is to avoid "cruelty"
which stands defined by attributing a specific statutory meaning attached
thereto as noticed hereinbefore. Two specific instances have been taken note of
in order to ascribe a meaning to the word "cruelty" as is expressed
by the legislatures: whereas Explanation (a) involves three specific situations
viz. (i) to drive the woman to commit suicide or (ii) to cause grave injury or
(iii) danger to life, limb or health, both mental and physical, and thus
involving a physical torture or atrocity, in 13 Explanation (b) there is
absence of physical injury but the legislature thought it fit to include only
coercive harassment which obviously as the legislative intent expressed is
equally heinous to match the physical injury: whereas one is patent, the other
one is latent but equally serious in terms of the provisions of the statute since
the same would also embrace the attributes of "cruelty" in terms of
regards the core issue as to whether charges under Sections 306 and 498-A of
the Indian Penal Code are independent of each other and acquittal of one does
not lead to acquittal on the other, as noticed earlier, there appears to be a
long catena of cases in affirmation thereto and as such further dilation is not
necessary neither are we inclined to do so, but in order to justify a
conviction under the later provision there must be available on record some
material and cogent evidence. Presently, we have on record two inconsistent
versions of the brother and the cousin, as such no credence can be attributed
thereon -- the documentary evidence (namely, those three letters), in our view,
falls short of the requirement of the statute: even on an assumption of the
fact that there is no contradiction in the oral testimony available on record,
the cousin goes to the unfortunate girl's in-laws' place and requests the
husband to treat her well -- at best some torture and a request to treat her
well. This by itself would not bring home the charge under Section 498-A.
Demand for dowry has not seen the light of day."
From the evidence of record available before us, we find that the
prosecution witnesses have in their testimonies stated that the deceased was
tortured both physically and mentally by the appellant for the first time after
his marriage with the deceased when he was refused permission for marriage with
said Anita by the deceased. On having been refused the permission for his
second marriage with Anita, the appellant 14 again, after a few days requested
the deceased to accede to his request for marriage with Anita, which request
was again refused by the deceased. Consequent to the said position and due to
the adamant position taken by the deceased, cruelty was meted out to her by the
accused which fact is sufficiently proved from the evidence on record.
Therefore, we find no reason to take a different view than what has been taken
by the trial Court and the High Court as far as Section 498A IPC is concerned.
Accordingly, the present appeal is hereby partly allowed. We
hereby set aside the conviction of the appellant under Section 306 but uphold
the conviction of the appellant under section 498A. As the appellant is on
bail, his bail bonds stand cancelled. The appellant is directed to surrender
himself before the jail authorities within 15 days from today to serve out the
remaining sentence under Section 498A, failing which the concerned authority
shall proceed against the appellant in accordance with law.
.....................J. [Dr. Mukundakam Sharma]