STATE OF WEST BENGALversusINDRAJIT KUNDU & ORS.

                           [2019] 13 S.C.R. 489                             489


                     STATE OF WEST BENGAL                                   A
                                   v.
                    INDRAJIT KUNDU & ORS.
                 (Criminal Appeal No. 2181 of 2009)
                         OCTOBER 18, 2019                                   B
    [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 painter
and artist – To improve her proficiency in English, first respondent
                                                                            C
was appointed as her English teacher – Respondent nos.2 & 3 are
parents of the first respondent – Intimacy developed between the
victim and the first respondent – Allegation of the complainant that
as the victim and first respondent had decided to marry, the victim
had gone to the house of first respondent on 05.03.04 to finalise
the proposal of marriage – Allegedly when she went to his house,            D
respondent nos.2 & 3 came out and shouted, addressing the victim
as call-girl – On 06.03.04, the victim committed suicide – Charge-
sheet filed against respondent nos.1-3 – Respondents filed
application for discharge – Rejected – Thereafter, respondents filed
application u/s.482, Cr.P.C. – High Court directed the respondents
                                                                            E
to raise all the points before the Trial Court – At the stage of framing
of charges respondents raised objections claiming no case is made
out against them to frame any charges – Additional District &
Sessions Judge overruled the objections observing that as there is
probability of accused being convicted, charges can be framed –
High Court allowed the application filed by the respondents – On            F
appeal, held: Respondents are sought to be proceeded for charges
u/ss.306/34, mainly relying on the suicide letters written by the
deceased girl and the statements recorded during the investigation
–Even according to the case of the de-facto complainant, respondent
nos.2 & 3, parents of the first respondent shouted at the deceased
                                                                            G
girl calling her a call-girl – Such material is not sufficient to proceed
with the trial by framing charge of offence u/ss.306/34 – Instant
case does not present any picture of abetment allegedly committed
by respondents – Suicide committed by the victim cannot be said to
be the result of any action on part of the respondents nor can it be
                                                                            H
                                  489
490            SUPREME COURT REPORTS                      [2019] 13 S.C.R.


A     said that commission of suicide by the victim was the only course
      open to her due to action of the respondents – There was no goading
      or solicitation or insinuation by any of the respondents to the victim
      to commit suicide – No merit in the appeal warranting interference
      with 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 for
      charge under Section 306/34, IPC mainly relying on the suicide
      letters written by the deceased girl and the statements recorded
C     during the investigation. Even according to the case of de facto
      complainant, respondent Nos. 2 and 3 who are parents of first
      respondent shouted at the deceased girl calling her a call-girl.
      This happened on 05.03.2004 and the deceased girl committed
      suicide on 06.03.2004. By considering the material placed on
      record, the present case does not present any picture of abetment
D     allegedly committed by respondents. The suicide committed by
      the victim cannot be said to be the result of any action on part of
      respondents nor can it be said that commission of suicide by the
      victim was the only course open to her due to action of the
      respondents. There was no goading or solicitation or insinuation
E     by any of the respondents to the victim to commit suicide. On
      05.03.2004 when the deceased went to the premises of first
      respondent, his parents who are respondent Nos. 2 and 3
      addressed her as a call-girl. Such material is not sufficient to
      proceed with the trial by framing charge of offence under Section
      306/34 IPC. There was no goading or solicitation or insinuation
F     by any of the respondents to the victim to commit suicide. To
      draw the inference of instigation it all depends on facts and
      circumstances of the case, whether the acts committed by the
      accused will constitute direct or indirect act of incitement to the
      commission of suicide is a matter which is required to be
G     considered in facts and circumstances of each case. No merit is
      found in this appeal so as to interfere with the well reasoned
      judgment of the High Court. [Paras 11, 13, 16 and 17] [494-E-G;
      495-G; 496-A; E-G]


H
   STATE OF WEST BENGAL v. INDRAJIT KUNDU & ORS.                        491


      Soma Chakravarty v. State (2007) 5 SCC 403 : [2007]               A
      6 SCR 324 ; Union of India v. Prafulla Kumar Samal
      (1979) 3 SCC 4 : [1979] 2 SCR 229 ; Chitresh Kumar
      Chopra v. State (NCT) of Delhi (2009) 16 SCC 605 :
      [2009] 13 SCR 230 – held inapplicable.
      Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC                B
      618 : [2001] 4 Suppl. SCR 247 ; Sanju Alias Sanjay
      Singh Sengar v. State of M.P. (2002) 5 SCC 371 : [2002]
      3 SCR 668 ; Swamy Prahaladdas v. State of M.P. and
      Anr. 1995 Supp (3) SCC 438– relied on.
                       Case Law Reference                               C
[2007] 6 SCR 324               held inapplicable       Para 8
[1979] 2 SCR 229               held inapplicable       Para 8
(1995) Supp. (3) SCC 438       relied on               Para 10
[2001] 4 Suppl. SCR 247        relied on               Para 12          D
[2002] 3 SCR 668               relied on               Para 13
[2009] 13 SCR 230              held inapplicable       Para 16
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2181 of 2009.                                                       E
      From the Judgment and Order dated 30.07.2009 of the High Court
at 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. Plr
Chambers And Co.), Advs. for the Appellant.                             F
    Pijush Roy, Mrs. Kakali Roy, Bishnu Prasad Tiwary, Mithilesh
Kumar Singh, Advs. for the Respondents.
      The Judgment of the Court was delivered by
      R. SUBHASH REDDY, J.                                              G
      1. This appeal is preferred by the State of West Bengal through
Principal Secretary, Home Department, aggrieved by the judgment and
order dated 30.07.2019 passed by the High Court at Calcutta in
C.R.R.No.3473 of 2008.
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492            SUPREME COURT REPORTS                          [2019] 13 S.C.R.


A             2. By the impugned order, the respondents-accused were
      discharged of the charge framed against them under Section 306 read
      with Section 34 of Indian Penal Code. The victim, daughter of the de
      facto complainant was a painter and artist. To improve her proficiency
      in English, first respondent was appointed as her English teacher.
      Respondent Nos. 2 and 3 are his parents. There developed intimacy
B
      between the victim and first respondent – Indrajit in course of coaching.
      It is the allegation of the complainant that as the deceased victim and
      first respondent had decided to marry, to finalise the proposal of marriage
      the victim had gone to the house of first respondent on 05.03.2004. It is
      alleged that when the victim went to the house of first respondent,
C     respondent Nos. 2 and 3 who are the parents of the first respondent
      came out to raise shouts and addressed the victim as a call-girl. The
      words uttered by respondent Nos. 2 and 3, as per the de facto complainant
      are “you are a call-girl, why my son would marry you, we would give
      our son in marriage elsewhere”. It is alleged in the complaint that at that
      time, first respondent did not protest against the version of his parents
D
      and his daughter returned home and became mentally perturbed. On
      06.03.2004 at about 1.00 p.m. the victim had committed suicide.
             3. On the complaint of the de facto complainant, a case was
      registered in Jorabagan Police Station against respondents under Section
      306 IPC and thereafter charge-sheet was filed.
E
             4. There were two suicide notes. In one suicide note, the deceased
      has stated that parents of first respondent abused her in silly words by
      calling her a call-girl. In another note, which was addressed to the first
      respondent, has stated that the father of first respondent stigmatized her
      as a call-girl and first respondent has not responded to such utterances.
F     Further it is stated that first respondent is a coward. After conducting
      investigation, charge-sheet was filed under Section 306/34 IPC against
      all the three accused. Case was committed to the 7th Fast Track Court,
      Sessions Court, Calcutta, numbered as Sessions Case No.11 of 2006.
             5. Accused-respondents earlier filed application for discharge, the
G     same was rejected by the Trial Court by order dated 19.04.2007.
      Thereafter, respondents have filed an application under Section 482
      Cr.P.C. before the High Court in C.R.R.No.1817 of 2007 which was
      disposed of with the direction to respondents-accused to raise all the
      points before the learned Trial Court. At the stage of framing of charges
H     respondents have raised objections claiming that no case is made out
   STATE OF WEST BENGAL v. INDRAJIT KUNDU & ORS.                              493
               [R. SUBHASH REDDY, J. ]

against them to frame charge for the alleged offence under Section 306/       A
34 IPC. The learned Additional District and Sessions Judge by order
dated 04.09.2008 overruled the objections of the respondents observing
that as there is a probability of accused being convicted, charge can be
framed. It is observed in the order that there is a reasonable likelihood
for accused persons to be convicted under Section 306 IPC. Against
                                                                              B
the said order, respondents have approached the High Court again under
Section 401/482 Cr.P.C. in C.R.R.No.3473 of 2008.
       6. By the impugned order, the High Court by recording a finding
that terming the deceased as a call-girl, there was no utterance which
can be interpreted to be an act of instigating, goading or solicitation or
insinuation, the deceased to commit suicide. By referring to the case         C
law decided by this Court wherein similar utterances like, “to go and
die” does not constitute an offence for abetment, allowed the application
filed by the respondents. It is observed in the order that the act or
conduct of the accused, however insulting and abusive, will not by
themselves suffice to constitute abetment of commission of suicide, unless    D
those are reasonably capable of suggesting that the accused intended
by such acts, the consequence of suicide. By discussing the case law
on the subject, the High Court allowed the application by setting aside
the order of the Trial Court and discharged the respondents-accused
from the charge.
                                                                              E
       7. We have heard Sri Suhaan Mukerji, learned counsel appearing
for the State of West Bengal and Sri Pijush Roy, learned counsel appearing
for respondents.
       8. In this appeal mainly it is contended by the learned counsel for
the appellant-State that the de facto complainant has appointed first         F
respondent as an English teacher to improve the English of the deceased
victim. The victim used to visit the house of accused No.1 and developed
intimacy and relationship. It is submitted that on 05.03.2004, when the
victim visited the accused for finalizing the date of marriage, respondent
Nos. 2 and 3 who are parents of accused No.1 have shouted and called
the victim a call-girl. The victim was disturbed and she returned home        G
and her sister tried to console her by telling her that they will speak to
the accused so that their marriage would take place. It is submitted that
on next day i.e. 06.03.2004, she committed suicide by hanging. It is
submitted that from suicide notes, it is clear that respondents who are
the accused are responsible for suicide of the victim girl. It is submitted   H
494             SUPREME COURT REPORTS                          [2019] 13 S.C.R.


A     that by their conduct and utterances they have abetted the crime, as
      such they were rightly charged for the offence under Section 306/34
      IPC. It is submitted that there is sufficient material to frame charge
      against the respondents. In spite of the same, without considering the
      material on record, the High Court has allowed the application filed by
      the respondents. The learned counsel for the State in support of his
B
      arguments placed reliance on the judgment in the cases of Soma
      Chakravarty vs. State1 and Union of India vs. Prafulla Kumar
      Samal2.
             9. On the other hand, in response, learned counsel appearing for
      the accused-respondents submitted that during the pendency of this appeal,
C     the second respondent passed away, as such appeal stands abated so
      far as he is concerned. Further, it is stated that as there is no material to
      frame charge against the respondents for offence under Section 306/34
      IPC, the High Court by well-reasoned order has allowed their application
      and no grounds to interfere with the same.
D           10. Having heard learned counsel on both the sides, we have
      perused the impugned order passed by the High Court and other material
      placed on record.
             11. From the material placed on record, it is clear that respondents
      are sought to be proceeded for charge under Section 306/34 mainly
E     relying on the suicide letters written by the deceased girl and the
      statements recorded during the investigation. Even according to the
      case of de facto complainant, respondent Nos. 2 and 3 who are parents
      of first respondent shouted at the deceased girl calling her a call-girl.
      This happened on 05.03.2004 and the deceased girl committed suicide
F     on 06.03.2004. By considering the material placed on record, we are
      also of the view that the present case does not present any picture of
      abetment allegedly committed by respondents. The suicide committed
      by the victim cannot be said to be the result of any action on part of
      respondents nor can it be said that commission of suicide by the victim
      was the only course open to her due to action of the respondents. There
G     was no goading or solicitation or insinuation by any of the respondents to
      the 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.
      3
H       1995 Supp (3) SCC 438
      STATE OF WEST BENGAL v. INDRAJIT KUNDU & ORS.                             495
                  [R. SUBHASH REDDY, J. ]

go and die” during the quarrel between husband and wife, uttered by             A
husband held that utterances of such words are not direct cause for
committing suicide. In such circumstances, in the aforesaid judgment
this Court held that Sessions Judge erred in summoning the appellant to
face the trial and quashed the proceedings.
       12. In the judgment in the case of Ramesh Kumar vs. State of             B
Chhattisgarh4 this Court has considered the scope of Section 306 and
the ingredients which are essential for abetment as set out in Section
107 IPC. While interpreting the word “instigation”, it is held in paragraph
20 as under:
         “20. Instigation is to goad, urge forward, provoke, incite or          C
         encourage to do “an act”. To satisfy the requirement of instigation
         though it is not necessary that actual words must be used to that
         effect or what constitutes instigation must necessarily and
         specifically be suggestive of the consequence. Yet a reasonable
         certainty to incite the consequence must be capable of being spelt
         out. The present one is not a case where the accused had by his        D
         acts or omission or by a continued course of conduct created
         such circumstances that the deceased was left with no other option
         except to commit suicide in which case an instigation may have
         been inferred. A word uttered in the fit of anger or emotion without
         intending the consequences to actually follow cannot be said to        E
         be instigation.”
       13. Similarly in the judgment in the case of Sanju Alias Sanjay
Singh Sengar vs. State of M.P.5 when any quarrel which has taken
place between husband and wife in which husband has stated to have
told the deceased “to go and die”, this Court has held that the suicide         F
committed two days thereafter was not proximate to the quarrel though
the deceased was named in the suicide note and that the suicide was not
the direct result of quarrel when the appellant used abusive language
and told the deceased to go and die. Judgments referred above support
the case of respondents, except stating that on 05.03.2004 when the
deceased went to the premises of first respondent, his parents who are          G
respondent Nos. 2 and 3 addressed her as a call-girl. At the same time
by applying the judgments referred above we are of the view that such
material is not sufficient to proceed with the trial by framing charge of
4
    (2001) 9 SCC 618
5
    (2002) 5 SCC 371                                                            H
496               SUPREME COURT REPORTS                      [2019] 13 S.C.R.


A     offence under Section 306/34 IPC. It is also clear from the material that
      there was no goading or solicitation or insinuation by any of the
      respondents to the victim to commit suicide.
             14. Learned counsel appearing for the appellant-State has placed
      reliance on the judgment in the case of Soma Chakravarty (supra),
B     wherein this Court has held that when there is material to show that
      accused might have committed offence it can frame charge and the
      probative value of the material on record cannot be gone into at the
      stage, before the Trial Court.
             15. Reliance is placed on the judgment in the case of Union of
C     India vs Prafulla Kumar Samal (supra), where this Court has held
      that the Judge while considering the question of framing the charges has
      the undoubted power to sift and weigh the evidence for the limited purpose
      of finding out whether or not a prima facie case against the accused
      has been made out.

D             16. The judgment relied on by learned counsel for the State in the
      case of Chitresh Kumar Chopra vs. State (NCT) of Delhi6, this
      Court has held that 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. To draw the inference of instigation it all depends on facts
E     and circumstances of the case, whether the acts committed by the
      accused will constitute direct or indirect act of incitement to the
      commission of suicide is a matter which is required to be considered in
      facts and circumstances of each case. As such we are of the view that
      the judgments relied on by the learned counsel for the State would not
F     assist in supporting his arguments.
            17. For the aforesaid reasons, we do not find any merit in this
      appeal so as to interfere with the well reasoned judgment of the High
      Court. Accordingly, this appeal is dismissed.

G     Divya Pandey                                               Appeal dismissed.




      6
H         (2009) 16 SCC 605