STATE OF WEST BENGAL versus INDRAJIT KUNDU & ORS.

[2019] 13 S.C.R. 489

STATE OF WEST BENGAL

INDRAJIT KUNDU & ORS.

(Criminal Appeal No. 2181 of 2009)

OCTOBER 18, 2019

[INDU MALHOTRA AND R. SUBHASH REDDY, JJ.]

Penal Code, 1860 – s.306 r/w s.34 – Abetment of suicide –When not – Victim, daughter of the de-facto complainant was painterand artist – To improve her proficiency in English, first respondentwas appointed as her English teacher – Respondent nos.2 & 3 areparents of the first respondent – Intimacy developed between thevictim and the first respondent – Allegation of the complainant thatas the victim and first respondent had decided to marry, the victimhad gone to the house of first respondent on 05.03.04 to finalisethe proposal of marriage – Allegedly when she went to his house,respondent nos.2 & 3 came out and shouted, addressing the victimas call-girl – On 06.03.04, the victim committed suicide – Charge-sheet filed against respondent nos.1-3 – Respondents filedapplication for discharge – Rejected – Thereafter, respondents filedapplication u/s.482, Cr.P.C. – High Court directed the respondentsto raise all the points before the Trial Court – At the stage of framingof charges respondents raised objections claiming no case is madeout against them to frame any charges – Additional District &Sessions Judge overruled the objections observing that as there isprobability of accused being convicted, charges can be framed –High Court allowed the application filed by the respondents – Onappeal, held: Respondents are sought to be proceeded for chargesu/ss.306/34, mainly relying on the suicide letters written by thedeceased girl and the statements recorded during the investigation–Even according to the case of the de-facto complainant, respondentnos.2 & 3, parents of the first respondent shouted at the deceasedgirl calling her call-girl – Such material is not sufficient to proceedwith the trial by framing charge of offence u/ss.306/34 – Instantcase does not present any picture of abetment allegedly committedby respondents – Suicide committed by the victim cannot be said tobe the result of any action on part of the respondents nor can it be

Asaid that commission of suicide by the victim was the only courseopen to her due to action of the respondents – There was no goadingor solicitation or insinuation by any of the respondents to the victimto commit suicide – No merit in the appeal warranting interferencewith the well reasoned judgment of the High Court – Code of Criminal

Procedure, 1973 – ss.401, 482.B

Dismissing the appeal, the Court

HELD: 1. Respondents are sought to be proceeded forcharge under Section 306/34, IPC mainly relying on the suicideletters written by the deceased girl and the statements recordedCduring the investigation. Even according to the case of de factocomplainant, respondent Nos. 2 and 3 who are parents of firstrespondent shouted at the deceased girl calling her call-girl.This happened on 05.03.2004 and the deceased girl committedsuicide on 06.03.2004. By considering the material placed onrecord, the present case does not present any picture of abetmentDallegedly committed by respondents. The suicide committed bythe victim cannot be said to be the result of any action on part ofrespondents nor can it be said that commission of suicide by thevictim was the only course open to her due to action of therespondents. There was no goading or solicitation or insinuationEby any of the respondents to the victim to commit suicide. On05.03.2004 when the deceased went to the premises of firstrespondent, his parents who are respondent Nos. 2 and 3addressed her as call-girl. Such material is not sufficient toproceed with the trial by framing charge of offence under Section306/34 IPC. There was no goading or solicitation or insinuationFby any of the respondents to the victim to commit suicide. Todraw the inference of instigation it all depends on facts andcircumstances of the case, whether the acts committed by theaccused will constitute direct or indirect act of incitement to thecommission of suicide is matter which is required to beGconsidered in facts and circumstances of each case. No merit isfound in this appeal so as to interfere with the well reasonedjudgment of the High Court. [Paras 11, 13, 16 and 17] [494-E-G;495-G; 496-A; E-G]

Soma Chakravarty v. State(2007) 5 SCC 403 : [2007]6 SCR 324 ;Union of India v. Prafulla Kumar Samal(1979) 3 SCC 4 : [1979] 2 SCR 229 ;Chitresh KumarChopra v. State (NCT) of Delhi (2009) 16 SCC 605 :[2009] 13 SCR 230 – held inapplicable.

Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC618 : [2001] 4 Suppl. SCR 247 ;Sanju Alias SanjaySingh Sengar v. State of M.P. (2002) 5 SCC 371 : [2002]3 SCR 668 ;Swamy Prahaladdas v. State of M.P.andAnr. 1995 Supp (3) SCC 438– relied on.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 2181 of 2009.

From the Judgment and Order dated 30.07.2009 of the High Courtat Calcutta in C.R.R. No. 3473 of 2008.

Suhaan Mukerji, Ms. Astha Sharma, Prastut M. Dalvi, Amit Verma,Abhishek Manchanda, Ms. Kajal Dalal, Naveen Kumar (for M/S. PlrChambers And Co.), Advs. for the Appellant.

Pijush Roy, Mrs. Kakali Roy, Bishnu Prasad Tiwary, MithileshKumar Singh, Advs. for the Respondents.

The Judgment of the Court was delivered by

R. SUBHASH REDDY, J.

1. This appeal is preferred by the State of West Bengal throughPrincipal Secretary, Home Department, aggrieved by the judgment andorder dated 30.07.2019 passed by the High Court at Calcutta inC.R.R.No.3473 of 2008.

A2. By the impugned order, the respondents-accused weredischarged of the charge framed against them under Section 306 readwith Section 34 of Indian Penal Code. The victim, daughter of the defacto complainant was painter and artist. To improve her proficiencyin English, first respondent was appointed as her English teacher.Respondent Nos. 2 and 3 are his parents. There developed intimacyBbetween the victim and first respondent – Indrajit in course of coaching.It is the allegation of the complainant that as the deceased victim andfirst respondent had decided to marry, to finalise the proposal of marriagethe victim had gone to the house of first respondent on 05.03.2004. It isalleged that when the victim went to the house of first respondent,Crespondent Nos. 2 and 3 who are the parents of the first respondentcame out to raise shouts and addressed the victim as call-girl. Thewords uttered by respondent Nos. 2 and 3, as per the de facto complainantare “you are call-girl, why my son would marry you, we would giveour son in marriage elsewhere”. It is alleged in the complaint that at that

time, first respondent did not protest against the version of his parentsDand his daughter returned home and became mentally perturbed. On06.03.2004 at about 1.00 p.m. the victim had committed suicide.

3. On the complaint of the de facto complainant, case wasregistered in Jorabagan Police Station against respondents under Section306 IPC and thereafter charge-sheet was filed.E

4. There were two suicide notes. In one suicide note, the deceasedhas stated that parents of first respondent abused her in silly words bycalling her call-girl. In another note, which was addressed to the firstrespondent, has stated that the father of first respondent stigmatized heras call-girl and first respondent has not responded to such utterances.FFurther it is stated that first respondent is coward. After conductinginvestigation, charge-sheet was filed under Section 306/34 IPC againstall the three accused. Case was committed to the 7[th] Fast Track Court,Sessions Court, Calcutta, numbered as Sessions Case No.11 of 2006.

5. Accused-respondents earlier filed application for discharge, theGsame was rejected by the Trial Court by order dated 19.04.2007.Thereafter, respondents have filed an application under Section 482Cr.P.C. before the High Court in C.R.R.No.1817 of 2007 which wasdisposed of with the direction to respondents-accused to raise all thepoints before the learned Trial Court. At the stage of framing of chargesHrespondents have raised objections claiming that no case is made out

against them to frame charge for the alleged offence under Section 306/34 IPC. The learned Additional District and Sessions Judge by orderdated 04.09.2008 overruled the objections of the respondents observingthat as there is probability of accused being convicted, charge can beframed. It is observed in the order that there is reasonable likelihoodfor accused persons to be convicted under Section 306 IPC. Againstthe said order, respondents have approached the High Court again underSection 401/482 Cr.P.C. in C.R.R.No.3473 of 2008.6. By the impugned order, the High Court by recording findingthat terming the deceased as call-girl, there was no utterance whichcan be interpreted to be an act of instigating, goading or solicitation orinsinuation, the deceased to commit suicide. By referring to the caselaw decided by this Court wherein similar utterances like, “to go anddie” does not constitute an offence for abetment, allowed the applicationfiled by the respondents. It is observed in the order that the act orconduct of the accused, however insulting and abusive, will not bythemselves suffice to constitute abetmentof commission of suicide, unlessthose are reasonably capable of suggesting that the accused intendedby such acts, the consequence of suicide. By discussing the case lawon the subject, the High Court allowed the application by setting asidethe order of the Trial Court and discharged the respondents-accusedfrom the charge.

7. We have heard Sri Suhaan Mukerji, learned counsel appearingfor the State of West Bengal and Sri Pijush Roy, learned counsel appearingfor respondents.

8. In this appeal mainly it is contended by the learned counsel forthe appellant-State that the de facto complainant has appointed firstrespondent as an English teacher to improve the English of the deceasedvictim. The victim used to visit the house of accused No.1 and developedintimacy and relationship. It is submitted that on 05.03.2004, when thevictim visited the accused for finalizing the date of marriage, respondentNos. 2 and 3 who are parents of accused No.1 have shouted and calledthe victim call-girl. The victim was disturbed and she returned homeand her sister tried to console her by telling her that they will speak tothe accused so that their marriage would take place. It is submitted thaton next day i.e. 06.03.2004, she committed suicide by hanging. It issubmitted that from suicide notes, it is clear that respondents who arethe accused are responsible for suicide of the victim girl. It is submitted

Athat by their conduct and utterances they have abetted the crime, assuch they were rightly charged for the offence under Section 306/34IPC. It is submitted that there is sufficient material to frame chargeagainst the respondents. In spite of the same, without considering thematerial on record, the High Court has allowed the application filed bythe respondents. The learned counsel for the State in support of hisBarguments placed reliance on the judgment in the cases of SomaChakravarty vs. State[1] and Union of India vs. Prafulla KumarSamal[2].

9. On the other hand, in response, learned counsel appearing forthe accused-respondents submitted that during the pendency of this appeal,Cthe second respondent passed away, as such appeal stands abated sofar as he is concerned. Further, it is stated that as there is no material toframe charge against the respondents for offence under Section 306/34IPC, the High Court by well-reasoned order has allowed their applicationand no grounds to interfere with the same.D10. Having heard learned counsel on both the sides, we haveperused the impugned order passed by the High Court and other materialplaced on record.11. From the material placed on record, it is clear that respondentsare sought to be proceeded for charge under Section 306/34 mainlyErelying on the suicide letters written by the deceased girl and thestatements recorded during the investigation. Even according to thecase of de facto complainant, respondent Nos. 2 and 3 who are parentsof first respondent shouted at the deceased girl calling her call-girl.This happened on 05.03.2004 and the deceased girl committed suicideFon 06.03.2004. By considering the material placed on record, we arealso of the view that the present case does not present any picture ofabetment allegedly committed by respondents. The suicide committedby the victim cannot be said to be the result of any action on part ofrespondents nor can it be said that commission of suicide by the victimwas the only course open to her due to action of the respondents. ThereGwas no goading or solicitation or insinuation by any of the respondents tothe victim to commit suicide. In the case of Swamy Prahaladdas vs.State of M.P.and Anr.[3] this Court while considering utterances like “to

1 (2007) 5 SCC 403

2 (1979) 3 SCC 4.

H3 1995 Supp (3) SCC 438

go and die” during the quarrel between husband and wife, uttered byhusband held that utterances of such words are not direct cause forcommitting suicide. In such circumstances, in the aforesaid judgmentthis Court held that Sessions Judge erred in summoning the appellant toface the trial and quashed the proceedings.

12. In the judgment in the case of Ramesh Kumar vs. State ofChhattisgarh[4] this Court has considered the scope of Section 306 andthe ingredients which are essential for abetment as set out in Section107 IPC. While interpreting the word “instigation”, it is held in paragraph20 as under:

“20. Instigation is to goad, urge forward, provoke, incite orencourage to do “an act”. To satisfy the requirement of instigationthough it is not necessary that actual words must be used to thateffect or what constitutes instigation must necessarily andspecifically be suggestive of the consequence. Yet reasonablecertainty to incite the consequence must be capable of being speltout. The present one is not case where the accused had by hisacts or omission or by continued course of conduct createdsuch circumstances that the deceased was left with no other optionexcept to commit suicide in which case an instigation may havebeen inferred. word uttered in the fit of anger or emotion withoutintending the consequences to actually follow cannot be said tobe instigation.”

13. Similarly in the judgment in the case of Sanju Alias SanjaySingh Sengar vs. State of M.P.[5] when any quarrel which has takenplace between husband and wife in which husband has stated to havetold the deceased “to go and die”, this Court has held that the suicidecommitted two days thereafter was not proximate to the quarrel thoughthe deceased was named in the suicide note and that the suicide was notthe direct result of quarrel when the appellant used abusive languageand told the deceased to go and die. Judgments referred above supportthe case of respondents, except stating that on 05.03.2004 when thedeceased went to the premises of first respondent, his parents who arerespondent Nos. 2 and 3 addressed her as call-girl. At the same timeby applying the judgments referred above we are of the view that suchmaterial is not sufficient to proceed with the trial by framing charge of

4 (2001) 9 SCC 618

5 (2002) 5 SCC 371

CDE

Aoffence under Section 306/34 IPC. It is also clear from the material thatthere was no goading or solicitation or insinuation by any of therespondents to the victim to commit suicide.

14. Learned counsel appearing for the appellant-State has placedreliance on the judgment in the case of Soma Chakravarty (supra),Bwherein this Court has held that when there is material to show thataccused might have committed offence it can frame charge and theprobative value of the material on record cannot be gone into at thestage, before the Trial Court.

15. Reliance is placed on the judgment in the case of Union ofCIndia vs Prafulla Kumar Samal (supra), where this Court has heldthat the Judge while considering the question of framing the charges hasthe undoubted power to sift and weigh the evidence for the limited purposeof finding out whether or not primafacie case against the accusedhas been made out.

D16. The judgment relied on by learned counsel for the State in thecase of Chitresh Kumar Chopra vs. State (NCT) of Delhi[6], thisCourt has held that where the accused by his acts or by continuedcourse of conduct creates such circumstances that the deceased wasleft with no other option except to commit suicide, an “instigation” maybe inferred. To draw the inference of instigation it all depends on factsEand circumstances of the case, whether the acts committed by theaccused will constitute direct or indirect act of incitement to thecommission of suicide is matter which is required to be considered infacts and circumstances of each case. As such we are of the view thatthe judgments relied on by the learned counsel for the State would notFassist in supporting his arguments.

17. For the aforesaid reasons, we do not find any merit in thisappeal so as to interfere with the well reasoned judgment of the HighCourt. Accordingly, this appeal is dismissed.

GDivya Pandey

Appeal dismissed.