Sisir Kumar Mal @ Sishir Mal vs The State Of West Bengal
2023 Latest Caselaw 1858 Cal

Form No.J(1)

                     IN THE HIGH COURT AT CALCUTTA
                    CRIMINAL APPELLATE JURISDICTION


Present:

The Hon'ble Justice Tirthankar Ghosh


                           C.R.A.(SB) 92 of 2022

                      Sisir Kumar Mal @ Sishir Mal
                                versus
                       The State of West Bengal


For the Appellant       : Mr. Sanjib Mitra,
                         Mr. Rajesh Kumar Shah.

For the State           : Mr. S. G. Mukherjee, Ld. P.P.,
                          Mr. Arijit Ganguly,
                          Mr. Avik Ghatak,


Heard On               :    27.02.2023, 20.03.2023 & 21.03.2023.

Judgement On           :    21.03.2023.



       Tirthankar Ghosh, J. :

        The present appeal has been preferred against the judgment and

order of conviction and sentence dated 14.06.2022 and 15.06.2022

passed by the learned Additional Sessions Judge, 2nd Court, Serampore,

Hooghly in connection with Sessions Trial No. 03(02) of 2018 arising out
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of Sessions Case No. 72 of 2017 wherein the learned trial court was

pleased to convict the appellant under Section 306 of the Indian Penal

Code and sentenced him to suffer rigorous imprisonment for a period of

three years and to pay fine of Rs. one lakh only in default to suffer

simple imprisonment for six months.

       The genesis of the present case relates to Uttarpara P. S. Case

No. 339 of 2016 dated 12.06.2016 under Section 306 of the Indian Penal

Code. The said case was initiated on the basis of letter of complaint

addressed to the Officer-in-Charge, Uttarpara Police station by one

Sujata Mal (hereinafter referred to as the complainant), widow of Late

Mintu Mal, resident of Makhla, Harisabha, P.O. Raghunathpur, P.S.

Uttarpara.

       The complainant alleged that her father-in-law had a firm house

(approximately measuring    about     one bigha   of   land)   which   was

partitioned and her family was occupying about one cottah of land for

residing therein, rest of the land was illegally occupied by her elder

brother-in-law, namely, Sishir Mal. For the last two years, the accused

Sishir Mal had been torturing the complainant's husband both

physically and mentally. Her other elder brother, Shibupada Mal and his

son Tarun Mal aided the accused, Sishir Mal. A diary was lodged at

Uttarpara Police Station over such incident on 5.5.2014. In the morning
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of 12.06.2016, Sishir Mal again started assaulting her husband with

regard to the landed property and on getting such news, the local

councilor namely, Khokan Mondal arrived and restrained Sishir Mal to

quarrel further. However, after the councilor left, Sishir Mal started

assaulting physically and mentally upon her husband, meanwhile

Priyanka Ghosh, who is pregnant want to save her father when Sishir

Mal pushed her.    Her husband could not tolerate such incident and

committed suicide by hanging after locking the gate. The complainant,

as such, requested for registration of FIR against Sishir Mal, Shibupada

Mal and Tarun Mal.

      On receipt of the letter of complaint relating to such cognizable

offence, the police authorities registered the aforesaid case and on

completion of investigation, submitted chargesheet under Section

306/34 of the Indian Penal Code before the learned A.C.J.M, Serampore,

Hooghly.

       The case was thereafter committed to the learned Additional

Sessions Judge, Serampore for disposal and consequently freshly

numbered as Sessions Case No. 72 of 2017 and thereafter transferred to

the learned Additional Sessions Judge, 2nd Court, Serampore.

       Charges were read over and explained to them to which they

pleaded not guilty and claimed to be tried.
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       The prosecution in order to prove its case relied upon eight

witnesses which included P.W.1, Sujata Mal, complainant and widow of

the deceased; P.W.2, Tapas Kumar Mal, brother of the deceased; P.W.3,

Asima Mal, sister-in-law of the deceased; P.W.4, Sushanta Ghosh,

witness who heard regarding the incident; P.W.5, Rima Majhi, sub-

inspector of police, who conducted inquest; P.W.6, Priyanka Ghosh,

daughter of the deceased; P.W.7 Sanjib Mal, nephew of the deceased;

P.W.8, Utpal Saha, Investigating Officer of the case.

       The prosecution in order to prove its case also relied upon

number of documents which included Ext.1- signature of Sujata Mal on

written complaint; Ext. 1/1 - receipt of endorsement on written

complaint; Ext.2 - signature of Sujata Mal on inquest report; Ext. 2/1 -

carbon copy of inquest report; Ext.3 - carbon copy of dead body challan;

Ext. 4 - formal FIR; Ext. 5 - rough sketch map with index; Ext. 6 - post

mortem report.

       On analysis of the evidence of the case, it would be worthwhile to

state that pursuant to the completion of the evidence of the prosecution

witnesses, the accused persons were examined under Section 313 of the

Code of Criminal Procedure and thereafter the defence was called upon

to tender its witnesses. However, the record reflects that the defence did

not examine any witness.
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       P.W 1, Sujata Mal who is the complainant and widow of the

deceased deposed that her father-in-law Patal Chandra Mal was the

original owner of the property where she resided. He was the owner of

one bigha landed property. In their possession, they had one cottah out

of one bigha of land. She narrated that the property was not partitioned

and the accused Sishir Mal used to torture her husband physically and

mentally in respect of the landed property and the other two accused

persons used to instigate the accused, Sishir Mal. The accused, Sishir

Mal used to abuse her husband with filthy words and assaulted him

physically. He often used to abuse him by saying "galai dori diye mor, ki

kore mukh dakhachhis". She informed the incident on 5.5.2014 to the

police station and a general diary entry was made. Her husband

informed the fact of physical and mental torture to the councilor on

12.06.2016

in her presence, the councilor told Sishir Mal to leave the

property of her husband in his favour. However, after the councilor left,

Sishir Mal again started abusing her husband with filthy words and also

assaulted her husband physically and when her daughter who was

pregnant want to rescue her father, Sishir Mal pushed her. Her husband

could not suffer such mental torture of Sishir Mal pushing her daughter

and as such he locked the main gate and committed suicide by hanging

in his room from the ceiling fan. She identified the three persons in

court. She lodged complaint at the police station. She identified her

signature in the written complaint which was marked as Ext. 1. Police

also interrogated her when she narrated the incident to the police. She

also identified her signature in the carbon copy on the inquest report

prepared by the police which was marked as Ext. 2.

P. W. 2 is Tapas Kumar Mal who is the younger brother of the

deceased. He deposed that the deceased committed suicide by hanging.

He identified the three accused persons in court and deposed that

deceased Mintu Mal and Sishir Mal were residing in their ancestral

house and often picked up quarrel over the demarcation of the boundary

wall and also on issues relating to ingress and egress. On the date of the

incident fighting took place between Sishir Mal and Mintu Mal. Sishir

Mal pushed the pregnant daughter of Mintu Mal and abused Mintu Mal

in filthy languages and told him "tui morte paris na, galai dori diye mor".

Thereafter, Mintu Mal rushed inside the room, closed the door and

committed suicide by hanging.

P.W 3 is Asima Mal who is sister-in-law of the deceased and

deposed that Sishir Mal is her younger brother-in-law. Mintu Mal was

also her another younger brother-in-law. This witness deposed that

Mintu Mal committed suicide and she had seen and also heard that

quarrel used to take place between Sishir Mal and Mintu Mal. She

additionally narrated that Sishir Mal and Mintu Mal had been residing in

the ancestral home and Sishir Mal pushed Priyanka Ghosh, daughter of

Mintu Mal who fell on the ground and became unconscious. At that time

she was pregnant. After she heard about the unconsciousness of

Priyanka she had been there and at that time, the deceased Mintu Mal

was standing near his daughter, Priyanka. In the meantime, Mintu Mal

entered the room and committed suicide by hanging. She identified all

the three accused persons in court.

P.W. 4 is Sushanta Ghosh who is a witness residing at Makhla,

Uttarpara and committed suicide by hanging and he had heard Sishir

Mal instigated Mintu Mal for commission of suicide. He identified the

accused Sishir Mal in court.

P.W. 5 is Rima Majhi, Sub-Inspector of police who deposed that

on 12.06.2016 she was posted at Uttarpara Police Station as LSI of

Police. She deposed that on 12.06.2022 she held inquest over the dead

body of Mintu Mal in presence of witnesses and prepared inquest report.

The original inquest report was sent to the hospital along with the dead

body and dead body challan for post mortem examination. The carbon

copy of the inquest report was prepared in the same process. She

deposed that inquest was prepared in her own handwriting and she

signed the same. The carbon copy of the inquest report was marked as

Ext. 2/1. She also identified the original dead body challan, the carbon

copy of the dead body challan was marked as Ext. 3.

P.W. 6 is Priyanka Ghosh, daughter of the deceased. She

deposed that Sishir Mal is her elder uncle and Mintu Mal was her father.

She deposed that her parental house was situated at 2 No. Makhla,

Harisabha, P.S. Uttarpara, District - Hooghly. She narrated that the

incident took place on 12th June, 2016 and on the date of the incident

she was present in her parental house and her father at that time

committed suicide by hanging. According to her, on 12th June, 2016,

quarrel took place between her father and Sishir Mal over landed

property. Originally such land belonged to Patal Chandra Mal, her grand

father. During the quarrel, she went to save her father when Sishir Mal

pushed her and she fell down on the ground and thereafter her father

entered inside the house and committed suicide. She deposed that Sishir

Mall always used to abuse her father by saying "galay dori dite parisna"

and "Mukh dekhas kano". As she fell on the ground, her father was

mentally hurt. She identified Sishir Mal in court.

P.W. 7, Sanjib Mal is the nephew of the deceased. He deposed

that the deceased committed suicide by hanging in the year 2016 as

quarrel used to take place between Sishir Mal and Mintu Mal over

landed property. According to the witness, Sishir Mal and Mintu Mal

used to fight over landed property and Sishir Mal used filthy words by

saying "kabe galay dori diye morbi". He identified Sishir Mal in court.

P.W. 8 is Utpal Saha who is the Investigating Officer of the

case. He narrated before the court, the manner in which he conducted

the investigation relating to the examination of the witnesses, collection

of the documents and other materials and thereafter on conclusion of

investigation submitted chargesheet before the learned Additional Chief

Judicial Magistrate, Serampore, Hooghly.

Mr. Sanjib Mitra, learned advocate appearing for the appellant

submitted that except PW-1 and PW-6, none of the witnesses were

present at the time when the incident took place. According to the

learned advocate, even if the evidence of PW-1 and PW-6 are accepted in

its entirety, the facts centre around division of landed property which

was inherited by both the brothers and disputes relating to the same as

a result of which there was quarrel, scuffle and abuses being held.

Learned advocate submits that if the accusations made by PW-1 are

accepted to be correct, then also what surfaces in evidence is that the

accused Sishir Mal abused Mintu Mal with filthy languages such as

"galai dori diye mor, ki kore mukh dakhachhis". There is allegation of

physical assault also. So far as PW-6 is concerned, she also narrated in

the same tune regarding she being pushed when she interfered at the

time of quarrel between Sishir Mal and the deceased Mintu Mal, she was

pushed by Sishir Mal when she fell down. There is also contention that

Sishir Mal used to utter "galay dori dite parisna" and "mukh dekhas

kano". It has been reiterated by the learned counsel that even if such

accusations are accepted, then also no offence under Section 306 of the

Indian Penal Code is made out as many similarly placed persons could

not behave in the same manner under such circumstances. Further the

conduct of the deceased does not reflect that there was no other option

left to the deceased under the circumstances prevailing except to commit

suicide. Learned advocate in order to fortify his argument relied upon a

decision of the Hon'ble Supreme Court in Gurcharan Singh Vs. State of

Punjab reported in (2017) 1 Supreme Court Cases 433. Learned advocate

drew the attention of the Court to paragraph 21 of the said judgement

which is set out as follows :

"21. It is thus manifest that the offence punishable is one of abetment of the commission of suicide by any person, predicating existence of a live link or nexus between the two, abetment being the propelling causative factor. The basic ingredients of this provision are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of this constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention

of the accused to actualize the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. Section 306 IPC, thus criminalises the sustained incitement for suicide."

Learned advocate for the appellant also drew the attention of the

Court to a decision of the Hon'ble Supreme Court in S.S. Chheena Vs.

Vijay Kumar Mahajan reported in (2010) 12 Supreme Court Cases 190.

Reference was made to paragraph 25 of the said judgement which is set

out as follows :

"25. 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 that act must have been intended to push the deceased into such a position that he committed suicide."

Lastly, the learned advocate for the appellant submitted that

having considered the totality of the circumstances prevailing on the

basis of the principles set out, the accused/appellant is entitled to

acquittal.

Mr. Ghatak, learned advocate appearing for the State draws the

attention of the Court to the statement of the witnesses particularly,

with reference to the abuses which have been held by the appellant and

insisted that two witnesses particularly, PW-1 and PW-6 corroborated

the facts with regard to what happened on 12.06.2016. It has been

pointed out that there has been consistency in the version of the

witnesses so far as physical assault and abuse are concerned and PW-1

and PW-6 being eye-witnesses not only their version incorporates facts

relating to the date of the incident, but also the regular happenings

which took place and which led to the deceased committing suicide by

hanging. Learned advocate submits that the prosecution has been able

to prove the case beyond reasonable doubt and as such, there should

not be any interference in respect of the order of conviction and sentence

so imposed by the learned trial court.

I have considered the submissions advanced by the learned

advocate for the appellant as well as that of the State and I have also

taken into account the decisions of the Hon'ble Supreme Court

particularly with regard to the abuses which were discussed in

Amalendu Pal Vs. State of West Bengal reported in (2010) 1 SCC 707.

Paragraphs 12 and 13 of the said judgement are relevant which are set

out as follows :

"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."

"13. In order to bring a case within the purview of Section 306 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."

Further in Mangat Ram Vs. State of Haryana reported in (2014)

12 Supreme Court Cases 595 which was a case of wife's unnatural death,

the Hon'ble Supreme Court interfered with regard to the observations

made by the High Court therein that no prudent man is to commit

suicide unless abetted to do so on the premise that a woman may

attempt to commit suicide due to various reasons, such as, depression,

financial difficulties, disappointment in love, tired of domestic worries,

acute or chronic ailments etc. and the same need not be due to

abetment.

Mere harrassment or a fight/dispute between brothers may not

be ethically or morally correct, but to hold a person responsible for being

culpable in respect of commission of offence are two different concepts.

It would not be out of place to state that different persons have separate

set of reactions in respect of an incident. The duty of the court, as such,

under such circumstances is to assess as to whether there were other

options left with the deceased or not and to draw up a delicate balance

as to whether the act of the accused expresses such culpable act by

which the deceased had no other option except to take a decision for

terminating his own life.

Considering the settled principles of law, I am of the opinion that

mere abuses referred to particularly "galai dori diye mor, ki kore mukh

dakhachhis" or "tui morte parisna", "galai dori diye mor" and pushing

the daughter of the deceased i.e. P.W.-6 are not sufficient enough to

bring the accused/appellant within the parameters/ingredients of

Section 107 of the Indian Penal Code so as to attract the offences

relating to abetment to commit suicide. As such, the judgement dated

14.06.2022 and the order of conviction and sentence dated 15.06.2022

so passed by the learned Additional Sessions Judge, 2nd Court,

Serampore, Hooghly calls for interference by this Court and the same as

such is set aside.

The appellant is acquitted from the charges levelled against him.

If the appellant is on bail, he is discharged from the bail bonds.

With the aforesaid observations, the appeal being CRA (SB) 92 of

2022 is allowed.

Pending application, if any, is consequently disposed of.

Department is directed to send back the lower court records

immediately and communicate this order to the learned trial court.

All parties shall act on the server copy of this judgement duly

downloaded from the official website of this Court.

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

be given to the parties upon compliance with all requisite formalities.

(Tirthankar Ghosh, J.)