IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2091 OF  2009 (Arising out of S.L.P. (Crl.) No. 9483 of 2008)

Amalendu Pal @ Jhantu           …. Appellant

Versus

State of West Bengal                …. Respondent

JUDGMENT

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.

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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 and the  

deceased – Dipika were married in the year 1977. Out of  

the said wedlock, two sons were born. The appellant was  

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  

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  

consuming 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 her wrist to indicate that  

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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 Supriyo Das, brother  

of the deceased (PW-2) about the death of the 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 of occurrence. Thereafter, PW-2 proceeded to the  

Contai Police Station and got a complaint registered. On  

the strength of the complaint, First Information 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.

7. During the trial, a number of prosecution witnesses were  

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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 seven 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 order of conviction upheld by the High Court is under  

challenge in this appeal.  

9. Mr. Pradip K. Ghosh, learned senior counsel appearing on  

behalf  of  the  appellant,  very  painstakingly  argued  the  

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appeal before us. He submitted that in the absence of  

cogent  and  reliable  evidence  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  

convicting the appellant under Section 306 IPC as the High  

Court  failed  to  properly  appreciate  the  evidence  on  

record. He further strenuously submitted before us that  

there was no evidence of infliction of torture upon the  

deceased  by  the  appellant  immediately  prior  to  the  

incident of suicide by the deceased and 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 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 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  

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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 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 of suicide.—If 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.—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  

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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.

* * *

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  facilitates  the  commission  thereof, is said to aid the doing of that act.”

13. The legal position as regards Sections 306 IPC which is  

long settled was recently reiterated by this Court in the case  

of  Randhir  Singh  v.  State  of  Punjab  (2004)  13  SCC  129 as  

follows in paras 12 and 13:  

“12.  Abetment  involves  a  mental  process  of  instigating a person or intentionally aiding that  person in doing of a thing. In cases of conspiracy  also  it  would  involve  that  mental  process  of  entering  into  conspiracy  for  the  doing  of  that  thing. 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 IPC.

13. In State of W.B. v. Orilal Jaiswal this Court  has observed that the courts should be extremely  careful in assessing the facts and circumstances  of each case and the evidence adduced in the trial  for  the  purpose  of  finding  whether  the  cruelty  meted out to the victim had in fact induced her to  end  the  life  by  committing  suicide.  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 similarly 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 of abetting the offence of suicide should  be found guilty.”

14. Further in the case of  Kishori Lal v. State of M.P.  

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(2007)  10  SCC  797, this  Court  gave  a  clear  exposition  of  

Section 107 IPC when it observed as follows in para 6:

“6. Section 107 IPC defines abetment of a thing.  The offence of abetment is a separate and distinct  offence provided in IPC. A person, abets the doing  of a thing when (1) he instigates any person to do  that thing; or (2) engages with one or more other  persons in any conspiracy for the doing of that  thing;  or  (3)  intentionally  aids,  by  act  or  illegal omission, the doing of that thing. These  things are essential to complete abetment as a  crime.  The  word  “instigate”  literally  means  to  provoke,  incite,  urge  on  or  bring  about  by  persuasion to do any thing. The abetment may be by  instigation,  conspiracy  or  intentional  aid,  as  provided  in  the  three  clauses  of  Section  107.  Section 109 provides that if the act abetted is  committed in consequence of abetment and there is  no provision for the punishment of such abetment,  then  the  offender  is  to  be  punished  with  the  punishment  provided  for  the  original  offence.  “Abetted”  in  Section  109  means  the  specific  offence abetted. Therefore, the offence for the  abetment of which a person is charged with the  abetment  is  normally  linked  with  the  proved  offence.”

[See also  Kishangiri Mangalgiri Swami v. State of Gujarat  

(2009) 4 SCC 52]

15. 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  

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there must be proof of direct or indirect acts of incitement to  

the  commission  of  suicide.  Merely  on  the  allegation  of  

harassment without their 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.  

16. In order to bring a case within the purview of Section  

306  of  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.   

17. The  expression  ‘abetment’  has  been  defined  under  

Section  107  IPC  which  we  have  already  extracted  above.   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.  Section 109 IPC provides that if  

the act abetted is committed pursuant to and in consequence of  

abetment  then  the  offender  is  to  be  punished  with  the  

punishment provided for the original offence.   

18. Learned  counsel  for  the  respondent-State,  however,  

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clearly stated before us that it would be a case where clause  

‘thirdly’ of Section 107 IPC only would be attracted. According  

to him, a case of abetment of suicide is made out as provided  

for under Section 107 IPC.   

19. In view of the aforesaid situation and position, we  

have examined the provision of clause thirdly which provides  

that a person would be held to have abetted the doing of a  

thing when he intentionally does or omits to do anything in  

order to aid the commission of that thing.  The Act further  

gives an idea as to who would be intentionally aiding by any  

act of doing of that thing when in Explanation 2 it is provided  

as follows:

“ xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

“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.”

20. Therefore, the issue that arises for our consideration  

is  whether  any  of  the  aforesaid  clauses  namely  firstly  

alongwith  explanation  1  or  more  particularly  thirdly  with  

Explanation 2 to Section 107 is attracted in the facts and  

circumstances of the present case so as to bring the present  

case within the purview of Section 306 IPC.

 21. We have already considered a number of decisions of  

this Court on the aforesaid aspect and having done so we revert  

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back  to  the  factual  position  of  the  present  case.  The  

prosecution has specifically alleged that on 26.09.1991, the  

day prior to the date of commission of suicide by the deceased,  

the deceased was tortured by the appellant, Anita and the other  

accused persons present in the house of the appellant, as a  

result of which the deceased committed suicide on the next day.  

On a perusal of the record of the present case, we find that  

both the trial Court as well as the High Court have disbelieved  

the said incident as, according to them, the statement of the  

witnesses  to  establish  the  said  fact  are  not  reliable  and  

trustworthy. Those findings recorded by the trial Court and the  

High Court have not been challenged before us. It is not the  

case of the prosecution that the case in hand would fall within  

the ambit of clause firstly of or Explanation 1 to Section 107  

IPC.    

22. The prosecution, however, heavily relies on the clause  

thirdly  of  Section  107  IPC  because,  according  to  the  

prosecution, the appellant by way of harassment and torturing  

the deceased at various point of time and by marrying said  

Anita for the second time without the permission and against  

the will of the deceased, intentionally aided the commission of  

suicide by the deceased.   

23. In support of the aforesaid contention, learned counsel  

for the prosecution relied upon Explanation 2 to Section 107.  

He submitted that prior to the commission of suicide by the  

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deceased, the appellant had, by bringing said Anita as his  

second wife to his house facilitated the commission of suicide  

by the deceased and thus, the appellant intentionally aided the  

commission of suicide by the deceased.  The evidence on record,  

however, does not support such a case. It is pertinent to note  

that the appellant had brought Anita to stay with him at his  

house  three  months  prior  to  the  date  of  the  death  of  the  

deceased. If the deceased had been so perturbed by the act of  

the appellant in marrying the said Anita and in bringing her to  

his house that she felt impelled to commit suicide then she  

could have done so on the very day when Anita had come to stay  

with the appellant in his house as naturally at that point of  

time her annoyance or dismay with life would have been at its  

pinnacle. From the period of three months which elapsed in  

between the incidents of the appellant bringing Anita to his  

house and 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.  

24. The perpetration of physical torture on the deceased on  

the  day  prior  to  the  date  of  the  incident  which  led  the  

deceased  to  commit  suicide  is  the  prosecution  case  all  

throughout. 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 Anita as the wife of the appellant.  Anita, the second  

wife of the appellant was brought by the appellant to his house  

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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.   It is also not the case of the prosecution as  

disclosed from the evidence led which we have scrutinised very  

minutely.  The aforesaid contention, in our considered opinion,  

is far fetched and is not established by the facts of the  

present case.  After carefully assessing the evidence on record  

we find that there is no direct evidence to show that the  

appellant had by his acts instigated or provoked the deceased  

to commit suicide and has not done any act which could be said  

to have facilitated the commission of suicide by the deceased.  

25. We now intend to proceed to find out whether a case  

under Section 498A IPC is made out against the appellant or  

not.  In  the  case  of  Girdhar  Shankar  Tawade  v.  State  of  

Maharashtra  (2002)  5  SCC  177,  this  Court  gave  a  succinct  

enumeration of the object and ingredients of Section 498A IPC,  

when it observed as follows in paras 3 and 17:

“3. The basic purport of the statutory provision  is  to  avoid  “cruelty”  which  stands  defined  by  attributing a specific statutory meaning attached  thereto  as  noticed  hereinbefore.  Two  specific  instances  have  been  taken  note  of  in  order  to  ascribe  a  meaning  to  the  word  “cruelty”  as  is  expressed by the legislatures: whereas Explanation  (a) involves three specific situations viz. (i) to  drive the woman to commit suicide or (ii) to cause  grave  injury  or  (iii)  danger  to  life,  limb  or  health,  both  mental  and  physical,  and  thus  involving  a  physical  torture  or  atrocity,  in  

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Explanation  (b)  there  is  absence  of  physical  injury  but  the  legislature  thought  it  fit  to  include only coercive harassment which obviously  as  the  legislative  intent  expressed  is  equally  heinous to match the physical injury: whereas one  is patent, the other one is latent but equally  serious in terms of the provisions of the statute  since the same would also embrace the attributes  of “cruelty” in terms of Section 498-A.

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17.  As  regards  the  core  issue  as  to  whether  charges under Sections 306 and 498-A of the Indian  Penal  Code  are  independent  of  each  other  and  acquittal of one does not lead to acquittal on the  other, as noticed earlier, there appears to be a  long catena of cases in affirmation thereto and as  such further dilation is not necessary neither are  we inclined to do so, but in order to justify a  conviction under the later provision there must be  available  on  record  some  material  and  cogent  evidence.  Presently,  we  have  on  record  two  inconsistent  versions  of  the  brother  and  the  cousin,  as  such  no  credence  can  be  attributed  thereon — the documentary evidence (namely, those  three letters), in our view, falls short of the  requirement of the statute: even on an assumption  of the fact that there is no contradiction in the  oral  testimony  available  on  record,  the  cousin  goes to the unfortunate girl’s in-laws’ place and  requests the husband to treat her well — at best  some torture and a request to treat her well. This  by itself would not bring home the charge under  Section 498-A. Demand for dowry has not seen the  light of day.”

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 refused the  

permission for his second marriage with Anita, the appellant  

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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  

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 has 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 days from today  

to serve out the remaining sentence under Section 498A, failing  

which  the  concerned  authority  shall  proceed  against  the  

appellant in accordance with law.  

  .....................J.

        [Dr. Mukundakam Sharma]

  .....................J.

         [R.M. Lodha] New Delhi                                                    November 11, 2009

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