AMALENDU PAL @ JHANTU v. STATE OF WEST BENGAL

Citation: [2009] 15 S.C.R. 836

Court: Supreme Court of India

Bench: MUKUNDAKAM SHARMA, RAJENDRA MAL LODHA

Case summary

AMALENDU PAL @ JHANTU v. STATE OF WEST BENGAL.pdf

Judgment text

[2009] 15 (ADDL. ) S. CR. 836 AMALENDU PAL @ JHANTU v. STATE OF WEST BENGAL (Criminal Appeal No. 2091 of 2009) NOVEMBER 11, 2009 [DR. MUKUNDAKAM SHARMA AND R. M. LODHA, JJ. ] Penal Code, 1860: s. 306 - Applicability of - Held: For applicability of s. 306, there must be a case of suicide and in the commission of suicide, person said to have abetted it must have played active role by an act of instigation or by doing certain act to facilitate the commission of suicide - On facts, appellant brought another woman to his house - Allegations of mental and physical torture on deceased-wife - After about three months. o of second marriage by the appellant, deceased committed suicide - Conviction of appellant by courts below under s.

306 not maintainable as from the period of three months which elapsed in between the incidents of the appellant bringing the other woman and deceased committing suicide, it can be inferred that it was not the act of the appellant which instigated or provoked deceased to commit suicide - s. 107. s. 498A - Conviction by courts below - Held: Justified as there was sufficient evidence to prove that cruelty was meted out to the deceased by her husband- Crime against woman. Prosecution case was that appellant-husband was married to deceased in 1977. He developed extra marital · relationship with a woman. When deceased came to know about such relationship, she objected. The appellant sought permission of deceased to marry th~ other woman. When she refused, appellant started torturing her both physically and mentally. Three months prior to the date of incident, appellant allegedly married the other woman and brought her to his house.

A day prior to incident, deceased was tortured by appellant, the other woman and other BENGAL accused persons. On the fateful day, deceased was found hanging from the ceiling of the house of appellant. :t 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. Trial Court convicted the a·ppellant under Sections 498A and 306 IPC and sentenced him 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. High Court upheld the order of conviction and affirmed the sentence. Hence the present appeal. Partly allowing the appeal, the Court HELD: 1.

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. In cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide. The conviction in terms of Section 306 IPC is not sustainable 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 COl)lpelled the person to commit 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.

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. [Paras 15, J 16 and 17] [845-G-H; 846-A-E] 2. 1. A close and careful scrutiny of the oral evidence of the prosecution witnesses showed that the appellant . and the deceased enjoyed a happy married life for 5-6 years from the date of their marriage and that the problems . ' between the appellant and the ~eceased cropped up and their matrimonial life got strained only after the appellant developed an extra-marital relationship during his stay in Calcutta and the ·said liaison became known to the ) deceased. Jt was only when the appellant was denied permission by the deceased to marry the other woman that ;... he started torturing the deceased both mentally as well as physically.

The prosecution specifically alleged that the t day prior to the date of commission of suicide by the deceased, she was tortured by appellant, the other woman and the other accused persons present in the house of the app~llant, as a result of which the deceased committed suicide on the next day. The perusal of the record shows , that both the trial Court as well as the High Court ~disbelieved the said incident as, according to them, the statements of the witnesses to establish the said fact were not reliable and trustworthy. Those findings recorded by 'l'~ the trial Court and the High Court were not challenged r before this Court. It was not the case of the prosecution that the case in hand fell within the ambit of clause firstly of or Explanation 1 to Section 107 IPC. [Paras 11 and 21] [838-A-D; 847-C-F] Randhir Singh v. State of Punjab (2004) 13 SCC 129;· Kishori Lal v. State of M. P. (2007) 10 SCC 797; Kishangiri Mangalgiri Swami v. State of Gujarat (2009) 4 SCC 52, relied 4 ~ on.

2. 2. If the deceased was so perturbed by the act of the appellant in marrying the other woman and in bringing her , to his house that she felt impelled to commit suicide tllen ... she could have done so on the very day when the other woman came to stay with the appellant in his ilouse as I naturally at that point oftime her annoyance or dismay with 'r life would have been at its pinnacle. From the period of ' ! - tthree months which elapsed in between the incidents of the appellant bringing the other woman to his house and • BENGAL 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. [Para 23) [848- B-0] 2. 3. 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 the other woman as the wife of the l .. { appellant.

The second wife of the appellant was brought by the appellant to his house 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. The contention is far fetched and is not established by the facts of the present case. [Para 24] [848-E~G] Girdhar Shankar Tawade v. State of Maharashtra (2002) 5 sec 177, relied on. 3. The prosecution witnesses 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 second marriage. The appellant again, after few days requested the deceased to accede to his request for second marriage 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 was sufficiently proved from the evidence on record. Therefore, there is 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. [Para 26] [850-C-E] J Case Law Reference : (2004) 13 sec 129 relied on Para 13 (2007) 1osec 797 relied on Para 14 (2009) 4 sec 52 relied on Para 14 -r - (2002) 5 sec 111 relied on Para 25 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 2091 of 2009. From the Judgment & Order dated 24. 07. 2008 of the High Court at Calcutta in Cr. A. No. 359 of 1997. Pradip K. Ghosh, Soumya Chakraborty, Dharam Bir Raj Vohra, for the Appellant. { Tara Chandra Sharma, Neelam Sharma, Ajay Sharma for the Respondent. The Judgment of the Court was delivered by DR. MUKUNDAKAM SHARMA, J. 1. Leave granted. 2.

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. 3. 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 anrl Lile deceased - Dipika were married in the year 1977. Out of the said wedlock, two sons were born.

The appellant \11iC:ts 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 1" I 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. 4. 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 co,nsuming 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.

Anita was sporting a vermillion mark on her forehead and was wearing conch bangles on herwrist to indicate that 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 appellant. "' 5. Ashoka Kumar Maity (PW-7) intimated Supr! yo Das, brother of the deceased (PW-2) about the death ofthe deceased. Upon 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 ofoccurrence. Thereafter, PW,-2 proceeded to the Contai Police Station and got a complaint registered. On the strength of the complaint, First lnfo_rmation Report (in short "the FIR") under Sections 498-A and ? 306 IPC was lodged on 28. 09. 1991 at 20. 30 hrs. 6.

'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. J 7. During the trial, a number of prosecution witnesses were 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 them. 8.

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 seyen 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 ,1_ order of conviction upheld by the High Court is under challenge '"P-• in this appeal. 9. Mr. Pradip K. Ghosh, learned senior counsel appearing on behalf of the appellant, very painstakingly argued the appeal before us. He submitted that in the absence ofcogent and reliable.

evid~nce 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 conv:cting the appellant under Section 306 IPC ~ as the High Court ta:1ed to properly appreciate the evidence on record. He further strenuously submitted before us that there was no evidence of inflictir. 11 of torture upon the deceased by the } appellant immediately prior to the incident of s;. iicide by the " deceased ahd as such it could not be said that the appellant had incited the deceased to commit suicide. 10. On the other hand, the learned counsel appearing on • behalf of the respondent State supported the judgments of the + courts below. 11. We have carefully considered the submissions made l 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 8 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 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. It was 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 0 1. as physically. 12.

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: "306. Abetment ofsuicide. -lf 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 to fine. *** 107. Abetment of a thing. -A person abets the doing of a thing, who- First. -lnstigates any person to do that thing; or Secondly. -Engages with one or more other person or -~ ' ~ 26. 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 ref. used the "' permission for his second marriage with Anita, the appellant 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 ·1 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 ha~ been taken by the trial Court and the High Court as far as Section :498A IPC is concerned. 27. 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 daysJrom today to serve out the remaining sentence under Section 498A, failing which the concerned authority shall proceed against the appeMant in accordance with law. • -f:- D. G. Appeal partly allowed. . .