Pinky Singh vs The State Of West Bengal
2022 Latest Caselaw 703 Cal

Form J(2)         IN THE HIGH COURT AT CALCUTTA
                     Criminal Appellate Jurisdiction
                             Appellate Side

Present :
The Hon'ble Justice Bibek Chaudhuri


                       C.R.A. 519 of 2017

                           Pinky Singh
                               Vs.
                    The State of West Bengal .




For the Appellant      :   Mr. Kallol Mondal, Adv
                           Mr. Krishan Ray, Adv.
                           Mr. Souvik Das,Adv.
                           Mr. Anamitra Banerjee, Adv.

For the State :            Mr. Saswata Gopal Mukherjee, Ld. P.P.
                           Mr. Sayati Datta, Adv.

Heard on                           : 18.02.2022 & 21.02.2022.

Judgment On                        : 21.02.2022.

Bibek Chaudhuri, J.

The instant appeal filed by the convict of Sessions Trial No.06(06)

2013 corresponding to Sessions Case No.126 of 2013 arising out of

Bizpur Police Station Case No.307 of 2012 dated 26 th September, 2012 is

against the order of conviction and sentence under Section 306 of the

Indian Penal Code, IPC for short. The appellant was sentenced to suffer

rigorous imprisonment for 5 years and also to pay fine of Rs.2,000/- with

default clause for the offence under Section 306 of the IPC. The said

judgment and order of conviction and sentence is assailed by the

appellant in the instant appeal.

Bizpur Police Station case No.307 of 2012 dated 26 th September,

2012 was registered on the basis of a written complaint submitted by

one Gopal Singh alleging, inter alia, that the appellant is his second wife.

He has one son and one daughter in the wedlock of his first marriage.

The first wife of Gopal left with another person and Gopal married to the

appellant when his daughter was aged about 8 years and the son was

about 5 years old. It is further alleged that the appellant being the

stepmother of her daughter Prerthana used to torture regularly on flimsy

ground. Prerthana complained of her stepmother to her father. On 26 th

September, 2012 at about 8 a.m. the appellant again tortured her, as a

result of which Prerthana could not bear such torture and committed

suicide on the verandah of their house. Thus, the appellant abetted

Prerthana to commit suicide by hanging.

Investigation culminated in filing of charge sheet against the

appellant under Section 306 IPC. In order to bring the charge,

prosecution examined 12 witnesses. Certain documents were marked

exhibits. The learned Trial Judge on consideration of the evidence on

record, both oral and documentary, convicted the appellant and

sentenced him accordingly. The instant appeal is assailing the order of

conviction and sentence.

Mr. Kallol Mondal, learned Advocate for the appellant at the outset

submits that in order to prove a charge under Section 306 of the IPC,

the prosecution is under obligation to prove the ingredients of Section

107 of the IPC. Section 107 runs thus:-

"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 wilful 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. 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, wilfully represents to A that C is Z, and

thereby intentionally causes A to apprehend C. Here B abets by

instigation the apprehension of .

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."

Plain reading of the above provision shows that abetment involves

a mental process of instigating a person or intentionally aiding a person

in doing of a thing. In case of conspiracy also it would involve that

mental process of entering into conspiracy for the doing of that thing is

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 of the IPC. A person

abates the doing of a thing when

(1) he instigates any person to do that thing;

(2) engages with one or more than other persons in any

conspiracy for doing of that thing or;

(3) intentionally aiding by act or illegal omission, doing of that

thing.

These things are essential to complete abatement as a crime.

It is submitted by Mr. Mondal that the witnesses on behalf of the

prosecution deposed that the deceased was subjected to torture by her

stepmother. She was not allowed to continue her studies and on the

contrary, she was compelled to household work during the whole day.

On the date of occurrence also, it is deposed by P.W.5 that he heard

Prerthana saying that she would not be able to do household work and

wanted to complete her studies. Immediately thereafter, the witnesses

either found or heard that the deceased committed suicide by hanging.

It is further pointed out by Mr. Mondal that even assuming that the

victim was tortured by her stepmother regularly. This does not bring

home the charge under Section 306 of the IPC. Something more is

required to be proved, viz, the accused committed some positive act for

other than mere torture aiding or abetting or committing of suicide.

Thus, the prosecution is under obligation to prove that the accused had

the mens rea to aid and abet commission of suicide by the deceased and

along with such mens rea, the actus reus must correspond to prove the

guilt of the accused. In support of his argument, Mr. Mondal refers to a

decision of this Court in the case of Annakali Dutta Vs. State, reported

in 1990 2 CHN 38. In the said report this Court relying on a Division

Bench judgment in Pratima Dutta v. State reported in 81 CWN 713

was pleased to hold that ill treatment or torture might produce a state of

mind favourable to suicide but evidence of such torture or ill-treatment

would not by itself be sufficient to sustain a charge under Section 306 of

the IPC, 1860 unless there is evidence of incitement to end his life.

According to the Division Bench, there must be some evidence from

which it can be said that the commission of suicide was the immediate

effect of incitement. Owing to occasional torture and ill-treatment,

someone may decide to take one's own life. In such a case, the persons

who meted out such torture and ill-treatment may not be said to have

abetted the commission of suicide. But if someone actively suggests or

goads another to the act by express solicitation, insinuation or

encouragement, it would certainly amount to abetment of the act. It is

of course true that it may be difficult to prove such element of abetment

of commission of suicide but then without proof no person can be

convicted. It is in that context that the legislature has enacted the

provisions of Section 113A of the Evidence Act but then as that section

has no manner of application in this case and as there is no material

whatsoever to prove abetment of the commission of suicide , the charge

under Section 306/34 of the IPC cannot be allowed to stand.

Mr. Mondal further refers to a decision of the Hon'ble Supreme

Court in the case of Sanju alias Sanjay Singh Sengar Kumar and

others Vs. State of M.P. reported in (2002)5 SCC. In this decision

also, the Hon'ble Supreme Court observed that presence of mens rea is

the necessary concomitant of instigation.

The word "instigate" denotes excitement or urging to do some

drastic or inadvisable action or to stimulate or incite. The words

uttered in a quarrel or on the spur of the moment cannot be taken to

be uttered with mens rea. It is in a fit of anger and emotion. The

Hon'ble Supreme Court relied on the following observation in

Ramesh Kumar vs. State of Chhattisgarh reported in (2001) 9

SCC 618. The said observation runs thus:-

"A word uttered in a fit of anger or emotion without intending

the consequences to actually follow cannot be said to be instigation.

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 similarity 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 for abetting the

offence of suicide should be found guilty."

Mr. Mondal also refers another decision of this Court reported in

(2006) 3 CHN 651 (Subha Narayan vs. State of West Bengal

and others). A Co-ordinate Bench of this Court while dealing with the

scope of Section 306 of the Indian Penal Code held that it cannot be

denied that to constitute an offence under Section 306 of the Indian

Penal Code, it is not enough that the victim was subjected to some

harassment or used to be criticized but something more than it is

necessary. It is necessary to establish that the instigation was the

proximate cause for commission of offence. On the same score Mr.

Mondal also refers to a decision of this Court in the case of Sridevi

Shil alias Mamoni vs. Bimal Sarkar and Anr. reported in 2015

SCC Online Cal 7506. The said report of this Court is in relation to

quashing of a proceeding under Section 306 of the Indian Penal Code.

However, while disposing of the said criminal revision the Court

reiterated the ingredients of offence under Section 306 of the Indian

Penal Code and the essential ingredients to be proved by adducing

evidence in such case. Same is the decision of this Court in Bishnu

Chakraborty vs. State of West Bengal reported in 2007 (3) CHN

754. Placing reliance on Madan Mohan Singh vs. State of Gujarat

and Anr. reported in (2010) 8 SCC 628 which is an appeal before

the Hon'ble Supreme Court against refusal of the prayer for quashing

of F.I.R. under Section 482 of the Code of Criminal Procedure it is

submitted by Mr. Mondal that the facts of the said report states that

the driver of the accused committed suicide leaving a suicidal note

making a specific allegation against the accused persons. The Hon'ble

Supreme Court on appreciation of the suicide note found that it was

an anguish expressed by the driver who felt that his boss had

wronged him. The suicide note and the F.I.R. did not impress the

Hon'ble Supreme Court at all. It was observed that they could not be

depicted as expressing anything intentional charge of the accused

that the deceased might commit suicide. If the prosecutions are

allowed to continue on such basis, it would be difficult for every

superior officer even to work. Mr. Mondal also refers to the decision

of the Hon'ble Supreme Court in M. Arjunan vs. State

(represented by its Inspector of Police) reported in (2019) 3

SCC 315 and Amalendu Pal alias Jhantu vs. State of West

Bengal reported in (2010) 1 SCC 707.

The learned Prosecutor, on the other hand, has supported the

impugned judgment and placing reliance on the decision of Chitresh

Kumar Chopra versus State (Government of NCT of Delhi)

reported in (2009) 16 SCC 605 submits that perpetration of torture

for a long period of time and denial of the accused to continue with

the studies of the deceased and forcibly engaging her in household

works for which she committed suicide are the instances of instigation

by the accused resulting in aiding or abetting the commission of

suicide.

In support of his contention he refers to paragraphs 17 to 19 of

the aforesaid decision which is reproduced below:-

"17. Thus, to constitute "instigation", a person who

instigates another has to provoke, incite, urge or

encourage the doing of an act by the other by "goading"

or "urging forward". The dictionary meaning of the word

"goad" is "a thing that stimulates someone into action;

provoke to action or reaction" (see Concise Oxford English

Dictionary); "to keep irritating or annoying somebody

until he reacts" (see Oxford Advanced Learner's

Dictionary, 7th (Edn.)

18. Similarly, "urge" means to advise or try hard to persuade

somebody to do something or to make a person to move

more quickly and or in a particular direction, especially by

pushing or forcing such person. Therefore, person who

instigates another has to "goad" or "urge forward" the

latter with intention to provoke, incite or encourage the

doing of an act by the latter.

19. As observed in Ramesh Kumar, 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 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."

It is not in dispute that in the F.I.R. the de facto complainant

alleged that the appellant used to torture his daughter Prerthana

regularly. On 26th September, 2012 she also tortured her and failing

to bear such torture she committed suicide. From the evidence of

P.W.1 Babul Mondal it is ascertained that she was taking bath under

the municipal tap water situated between the house of the de facto

complainant and him at about 8 A.M. At that time the deceased came

there to take water. After sometime she heard Prerthana shouting,

"Hum Khana Nehi Banaye Hume Padne Do" (I would not prepare food.

Let me have my studies.). Subsequently, after one and half hours

P.W.1 found that many people assembled in front of the house of

Gopal Singh. He then came to know that Prerthana committed

suicide. From the evidence of the de facto complainant (P.W.2) it is

ascertained that he was not present at the relevant point of time.

Immediately before and after commission of suicide of Prerthana

when he came to the house on the date of occurrence he found

Prerthana hanging on the veranda of his house with the help of a

scarf. She was taken to P.W.3 Dr. Abhijit Ghosal who declared her

dead. P.W.4, P.W.5, P.W.6, P.W.7 and P.W.8 are the neighbours of

Gopal Singh. All the witnesses stated that the deceased was subjected

to humiliation and torture by the appellant. She also did not allow her

to complete her studies. From the evidence of P.W.9, younger

brother of deceased, it is found that the appellant used to assault and

rebuke the deceased and forced her to do household work. On 26 th

September, 2012 she committed suicide due to torture by the

appellant. Other witnesses are of little importance except P.W.12 who

is the Investigating Officer of the case.

If the evidence on record is carefully scrutinized and scanned it

is found that the deceased was subjected to torture by the appellant.

It is also found that the appellant did not allow her to complete her

studies. There is, of course, no evidence that the appellant instigated

the deceased to commit suicide. If a girl commits suicide due to

torture by her stepmother who insisted upon her to do all household

works of the house and she commits suicide, it transpires to the Court

that the victim was hypersensitive to ordinary petulance, discord and

differences in domestic life. It is very common to the society that a

stepmother wants her stepdaughter to be engaged in household

works.

Instance of torture, assault etc. for non-performance of

household works is not directly associated with the commission of

suicide.

We get a picture as to what had happened on 26 th September,

2012 at 8 A.M. P.W.1 saw the deceased taking water from municipal

tap. After sometime she heard the deceased state that she would not

prepare food and she would complete her studies. Importantly

enough nobody heard the utterances of the appellant after the

deceased denied to prepare food. There is absolutely no evidence as

to whether the appellant then instigated her to commit suicide. It is

held by the Hon'ble Supreme Court that if an accused abuses the

victim out of anger to go and die, such utterances also do not

constitute instigation of offence to commit suicide because there was

no mens rea of the accused inducing the victim to commit suicide.

There are instances and occasions for torture or ill treatment by the

appellant to the deceased and it may lead the victim to decide to

terminate her life. But the person who meted out such torture and ill

treatment may not be said to have abetted the commission of suicide.

In Gangula Mohan Reddy vs. State of Andra Pradesh reported in

(2010) 1 SCC 750, the Hon'ble Supreme Court was pleased to hold

that 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.

In the instant case, the evidence of mens rea of the deceased

was absent. The learned trial Judge has committed an error in

holding that as the appellant used to torture the deceased both

physically and mentally, she aided and instigated the victim to commit

suicide.

For the reasons stated above, the impugned judgment and

order of conviction and sentence is liable to be set aside.

Accordingly, the appeal is allowed on contest.

The judgment and order of conviction and sentence passed in

Sessions Trial No.06(06) of 2013 arising out of Sessions Case No.126

of 2013 dated 21st August, 2017 and 22nd August, 2017 is set aside.

The appellant be discharged from his bail bond.

Let a copy of this judgment be sent down to the learned Court

below along with the lower Court record.

Urgent photostat certified copy of this judgement, if applied for,

be given to the learned advocates for the parties on usual

undertakings.

(Bibek Chaudhuri, J.)