Himangshu Das v. Sessions Judge, Goalpara

2]. The prosecution case, in brief, is that the accused Himangshu Das kidnap ped Kausalya Das. After kidnapping, keeping the victim here and there for about three months, the accused came back to his parent’s house along with the victim. His father Harish Das (Appellant No.2) did not allow the accused to keep the v ictim in his house. The victim was then kept in the house of his uncle Sabin Da s (PW-4). Thereafter, the father and brother of the victim along with other vil lagers approached Harish Das to discuss about the marriage of victim with accuse d Himangshu. Appellant No.2 demanded furniture, gold ornaments and cash amount o f Rs.15,000/-. Although victim’s father agreed to give furniture and gold orname nts but could not agree to pay cash amount of Rs.15,000/-. The appellant no.2 re fused to solemnize the marriage, whereupon, victim Kaushlya Devi, committed suic ide by hanging herself with a mango tree. It was alleged that the victim commit ted the suicide due to mental shock. Jiten Das, the brother of the deceased lod ged the FIR with Rangjuli Police Station. Police registered a case and on comple tion of investigation, submitted the charge sheet against both the accused. 3]. I have heard Dr. G. Lal, learned counsel appearing on behalf of the appe llants and Ms. B. Saikia, learned Addl. P.P. appearing on behalf of the responde nt-State. 4]. The accused persons pleaded not guilty to the charge framed against them under Section 306/34 IPC and claimed to be tried. 5]. P.W.1, Jiten Das, brother of the deceased, in his evidence, alleged that the accused Himangshu kidnapped his sister and after three months, he came back with the victim and keeping her in her parental house went out and then did not return. The victim Kaushlya went to the house of Sabin Das to enquire about he r husband but she did not get any information. Next day, PW-1 along with others went to the house of Harish Das and requested him to keep the deceased but Haris h Das refused to accept her, as he had no room. He also demanded some items and cash amount of Rs.15,000/-. The demand placed by Harish was disclosed to the v ictim. Next day morning Kaushlya remained untraced and on search, she was found hanging in the courtyard of Sabin Das. PW-1 stated that probably the victim co mmitted suicide as the accused refused to accept her and also because of demand of money. He, in his cross-examination, denied that the victim committed suicid e because she was abused by him and his family members. 6]. PW-2, Jatin Das is the father of the victim. He deposed that accused k idnapped the victim and after elapse of two months, they came back but the fathe r of Himangshu did not allow them to stay in his house and hence, they stayed in the house of Sabin Das. On 01-01-2003, Himangshu and the victim came to the ho use of PW-2. Himangshu left the victim in the house of PW-4 and went away in th e pretext of bringing money but did not return. In the afternoon, Kaushlya (vic tim) went to the house of Sabin Das but she did not find Himangshu there. Next d ay, PW-2 along with others visited the house of the accused and requested the ac cused Harish to celebrate the marriage of Himangshu with the victim but Harish e xpressed that he has no house to keep them. Then PW-2 offered to give him some items and then the accused Himangshu demanded cash amount of Rs.15,000/-. PW-2 p leaded his inability to pay. They could not arrive at any settlement and returne d home. He narrated all the happenings to his wife, which Kaushlya also heard. Following morning the victim remained untraced and on search her dead body was r ecovered hanging in the courtyard of Sabin Das. PW-2 also denied that he and his son assaulted Kaushlya on previous night leading her to commit suicide. He sta ted that he visited the house of accused along with 16 persons. 7] PW-3, Charu Mohan Das, corroborating the evidence of PWs1 and 2 stated in the same line. PW-4 Sabin Das stated that Kaushlya was in the house o f PW-2 and one day she committed suicide in the courtyard of his house. Her body was found hanging with a mango tree. On the fateful day of incident, PW-2 came to the house of PW-4 in search of his daughter. On search by PW-2, the dead bo dy was recovered. PW-4 stated that he did not know why she committed suicide. H e also stated that he did not know about any relation between Himangshu and Kaus hlya. Inquest on the dead body was held in his presence. He was not cross-exami ned. Thus evidence of PWs 1, 2 and 3 is not corroborated by PW-4. PW-5, Naren Ch. Bainikya, PW-6, Anand Kr. Das, PW-7, Haren Banikya have 8]. not added anything in support of prosecution case. PW-6 and PW-7 simply heard th at Kaushlya committed suicide. PW-10, Niranjan Sarma simply saw the dead body of victim hanging with the mango tree. He also could not say how she died. PW-8, Madhu Sudan Nath was then posted as Circle Officer and Executive Magistrate at R angjuli Circle. He held inquest on the dead body of the deceased in presence of witnesses. In his inquest report, he has mentioned that dead body was found han ging with a mango tree with the help of jute rope. Her left foot was found slig htly touching the ground and her right foot was touching the branch of a small l emon tree. The tongue was inside but seen little coming up to the side of lips. He also found a new jute rope fastened around the waist of the dead body. The mango tree was 20’ feet tall but the branch from which the dead body was hangin g was only 8’ feet tall. 9]. lya found as follows: - Dr. Nilmoni Dutta (PW-9) who performed autopsy on the dead body of Kaush (cid:28)A female dead body of about 19 years of age with no any sign of external injur y in her whole body except a non-continuous, oblique, linear ligature mark up ab ove the neck with sigh of knot in the back of her right ear. Perchamtisation of tissue underneath the mark present. Mouth half open, eyes half open, tongue pro truded (cid:29). The doctor opined that the injury was ante mortem and the death was due to asphesea following hanging. PW-9 was not cross-examined. 10]. PW-1, S.I. Kamal Ch. Bora investigated the case. He seized two pieces of new jute ropes; one of which was tied with neck and another with waist of the d eceased. He was not cross-examined In the case of Gangula Mohan Reddy Vs. State of A.P., (2010) 1 S 11]. CC 750, it was held that abetment involves a mental process of instigating a per son or intentionally aiding a person in doing of a thing and without a positive act on the part of the accused to instigate or aid in committing suicide, there cannot be any convictions. To attract Section 306 IPC, there has to be a clear mens rea to commit the offence. The same principle was reiterated in the case o f M. Kohan Vs. State represented by the Deputy Superintendent of Police, (2011) 3 SCC 626. 12]. e is punishable under Section 306 IPC. If any person commits suicide and whoever abets the commission of suicid Abetment is defined in Section 107 IPC, which read as under: (cid:28)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 th ing. Explanation 1- A person who, by wilful misrepresentation, or by wilful concealme nt of a material fact which he is bound to disclose, voluntarily causes or procu res, or attempts to cause or procure, a thing to be done, is aid to instigate th e doing of that thing. (cid:29) 13]. In the case of Ramesh Kumar Vs. State of Chhattisgarh, (2001) 9 SCC 618, the meaning of instigation was interpreted as under: (cid:28)Instigation is to good, urge forward, provoke, incite or encourage to do ’an ac t’ to satisfy the requirement of instigation though it is not necessary that act ual words must be used to that effect or what constitute instigation must necess arily and specifically be suggestive of the consequence. Yet a reasonable certa inly to invite the consequence must be capable of being spelt out. (cid:29) 14]. In the present case, the accused Himangshu left the victim in her parental house and remained untraced. He initially brought her to his house bu t his father Harish Das did not allow them to stay in the house for want of spac e. When father and brother of the victim along with others requested Harish Das to solemnize the marriage of the victim with Himangshu and accept her, Harish a gain refused the proposal to keep them in his house, for want of space. He deman ded Rs.15,000/-,which was not acceptable for the poor father of the victim. 15]. It is in the evidence that Himangshu was not present when PWs- 1, 2 & 3 visited the house of the accused. There is absolutely no evidence that at a ny point of time Himangshu demanded any cash amount. Even if the evidence of PW s 1, 2 and 3 is believed in toto, the accused Harish pleaded his inability to ke ep the victim in his house for want of house/space. The demand for Rs.15,000/- might be with intention to rehabilitating the duo (victim and accused) and to ce lebrate their marriage. 16]. The inquest report also casts doubt as to suicide committed by the vic tim herself. At the site of occurrence there was no tool or chair to help the v ictim to hang herself with the mango tree. Why she weared a rope around her wais t was not explained. Wherefrom she managed the ropes was not enquired by the inv estigating officer. The defence suggestions that the father and victim condemned her for eloping with the accused, which compelled her to commit suicide, cannot also be ruled out. 17]. In the case of M. Mohan (Supra), it was held- (cid:28)Abetment involves a mental process of instigating a person or intentionally aid ing a person in doing of a thing. Without positive act on the part of the accuse d to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by t his Court are clear that in order to convict a person under Section 306 IPC, the re has to be clear mens rea to commit the offence. It also requires an active a ct or direct act which led the deceased to commit suicide seeing no option and t his act must have been intended to push the deceased into such a position that h e/she committed suicide. (cid:29) 18]. In the present case, there was no such circumstances or from which it ca n be inferred that the deceased was left with no other option except to commit s uicide. There was no such act done by the accused or word spoken by the accused wherefrom their mens rea to commit the offence under Section 306 IPC can be gat hered. 19]. In view of the above, the impugned judgment and order passed by the learned trial Court against the accused appellants is liable to be set aside . Accordingly, the judgment and order dated 08-07-2005 passed by the learned S essions Judge, Goalpara, in Sessions Case No.1/04 is set aside. The appeal is a llowed. The accused appellants are acquitted and set at liberty forthwith. 20]. urt below. Send down the LCR along with a copy of this judgment and order to the co