Delhi District Court
State vs . Saikat Chanda on 26 September, 2011
State Vs. Saikat Chanda
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 70/2011 TIME BOUND CASE
State Vs. : Saikat Chanda
S/o Sh S.M Chanda
R/o Village Gunjabari,
P.O, P.S and District
Coochbehar,
West Bengal736101
Present address :
204, Kala Bhairav Apartments,
New Thippansandra Road,
Bangalore
FIR No. 284/05
P.S. Defence Colony
U/s 306 IPC
Date of Institution : 21/12/2006
Date when arguments
were heard : 19/09/2011
SC No. 70/2011 1/35
State Vs. Saikat Chanda
Date of Judgment : 26/09/2011
JUDGMENT
BRIEF FACTS:
Adumbrated in brief the facts of the prosecution case are as follows:
Ms. Jayatri (herein after called deceased) was student of Phd in Molecular Medicine at JNU, was intelligent as well as meritorious, was residing with her parents and family at T19, HUDCO Place, Andrews Ganj, New Delhi. The deceased developed love affair with Saikat Chanda, the accused. The accused was then working at HUGHES Software System, Gurgaon. In the month of September, 2004 accused resigned from his said job, joined XIUS (I) Ltd Reliance Classic, Hyderabad. Before going to Hyderabad, accused came to the house of deceased, met her and her parents and family, promised to marry Jayatri after his elder sister's marriage and also kept some of his belongings in the house of Jayatri. Photographs of Jayatri were also shown by the accused to his parents who agreed with the said proposal of marriage. The family of deceased could not SC No. 70/2011 2/35 State Vs. Saikat Chanda imagine that the accused could be the cause of death of Jayatri. Unfortunately, Jayatri committed suicide on 14/11/2004 in the evening by hanging in the bathroom. When the door of the bathroom was found bolted, the brother of deceased namely PW2 Jayabrat, forced open the door of the bathroom, even breaking the kundi and Jayatri was found hanging with the aid of ligature chunni tied to the pipe. Deceased Jayatri was brought down by her brother PW2 and mother PW4 Sunita Chandra. Telephone call was made to the police. Pursuant to receipt of DD No. 14 A on 14/11/2004 at police station Defence Colony, PW9 SI Balbir Singh with PW6 Ct Devender Singh reached the said house of deceased, found the deceased lying dead opposite bathroom in the quarter. SI Balbir Singh, PW9 recorded the statements of the parents of the girl including that of her father Ex PW1/DA. Initially in Ex PW1/DA and the statement of the mother of the deceased, the parents of deceased stated to police that on account of having failed in NET Examination deceased had committed suicide and none else was at fault. In the postmortem on body of deceased, the doctor gave his opinion that cause of death of the deceased was asphyxia due to ante mortem hanging. On 04/12/2004 PW1, J.K SC No. 70/2011 3/35 State Vs. Saikat Chanda Chandra, father of deceased gave written complaint Ex PW1/A to the SHO police station Defence Colony alleging that after verifying everything, they came to know that the accused had relations with another girl and in this connection accused and deceased had some heated exchanges of words in the afternoon of 14/11/2004 which instigated the deceased to commit suicide, which can only be proved if mobile conversations are checked. The said complaint was kept pending since long. Only on 01/06/05 case was registered in FIR No. 284/05 at police station Defence Colony. Matter was investigated. From the father and brother of deceased the print outs of the E mail conversation of the deceased and the accused; SMSs and CD were obtained. A letter of deceased in Bangla from her bedroom was seized; its translation from father of deceased was got done; call detail records of mobile phone of accused were obtained. Upon completion of investigation, charge sheet was filed for offence under Section 306 IPC.
2. On completing the requirements of Section 207 Cr.P.C, the case was committed to the Court of Sessions. SC No. 70/2011 4/35
State Vs. Saikat Chanda CHARGE:
3. On 12/03/2008 charge for offence under Section 306 IPC was framed against accused by my Ld. Predecessor to which he pleaded not guilty and claimed trial.
WITNESSES:
4. To connect the accused with the offence charged, the prosecution has examined in all 11 witnesses namely PW1 Sh J.K Chandra; PW2 Sh Jayabrat Chandra; PW3 HC Ajay Kumar; PW4 Smt Sunita Chandra; PW5 Smt Paromita Dass; PW6 Ct Devender Singh; PW7 Dr. A. Dey; PW8 SI Kumar Rajiv; PW9 SI Balbir Singh; PW10 Dr Sanjeev Lalwani and PW11 Ct Girish Chander.
STATEMENT OF ACCUSED:
5. Thereafter accused was examined under Section 313 Cr.P.C. All incriminating material in evidence was put to the accused. Accused pleaded innocence and false implication.
6. Accused admitted that he had developed friendship with SC No. 70/2011 5/35 State Vs. Saikat Chanda deceased; also that he was having love affair with the deceased; had gone to the house of deceased twice; even given proposal of marriage to the deceased. Accused submitted that as per his information deceased had not cleared her NET UGC Examination on account of which 4/5 days prior to the occurrence, deceased became quite depressed while at that time she was staying at hostel nearby her parental home. Accused submitted that he then requested the deceased to go to her home nearby the hostel. Also accused submitted that on 14/11/04 he had talked with deceased on phone and at that time he was at his native place at West Bengal. Accused submitted that he had the talk with Jayatri two times on phone on the day of occurrence and even one or two hours prior to occurrence he may have talked with deceased on phone and she sounded depressed but the deceased did not mention to him that she did not want to live. Accused further narrated that deceased was depressed mainly because of her failure in the examination while her parents were not happy with their relationship and proposed marriage because of which she might have taken the step of moving to hostel nearby from her home. Accused denied of having any hot exchange of words with the SC No. 70/2011 6/35 State Vs. Saikat Chanda deceased on the day of occurrence. Accused also denied of having told the deceased to commit suicide or in any manner instigated her to commit suicide. Accused clarified that on the day of occurrence no SMS of deceased reached him and the stated SMS containing matter, "if you do not call me again, I am going to commit suicide"
purportedly of deceased, having not reached him.
7. Accused entered upon in his defence and examined himself under Section 315 Cr.P.C as DW, the sole defence witness.
8. As DW1, accused testified that he met deceased in January, 2004 on an Internet chat site (Yahoo) and later thereto developed loving relations with the deceased. DW1 went to place of Jayatri for the first time in August, 2004, met her parents, brother and deceased there, had normal discussion. Again in September, 2004 accused DW1 went to place of deceased, had a discussion about their marriage, promised deceased Jayatri to marry her after the marriage of his elder sister. DW1 testified that he left his job from HUGHES Software at Gurgaon on 11/09/2004 and for better opportunity joined SC No. 70/2011 7/35 State Vs. Saikat Chanda XIUS India Ltd at Hyderabad on 14/09/2004. Even before going there DW 1 put his belongings at the house of Jayatri since he had no other relations in Delhi. DW1 stated that he was in constant touch with deceased Jayatri even when he was in Hyderabad, used to talk to her on telephone. DW1 stated that on no occasion he had heated arguments with deceased during the telephonic conversation. Prior to 4/5 days of the occurrence DW1 and Jayatri came to know about failure of deceased Jayatri in UGC NET Examination after which the deceased was really depressed as she was having a very good academic record and had never failed in any examination. DW1 stated that at no point of time Jayatri had said that she did not want to live or she wanted to end her life. On the day of occurrence when deceased committed suicide, accused DW1 had reached his home town at West Bengal after travelling for one and half days and on reaching his home called deceased by using phone of his father, found deceased upset on account of her failure in UGC Examination. DW1 stated that he did not remember the exact time when last time he had talked with deceased but it was late after lunch and there were no heated discussion between him and the deceased. DW1 SC No. 70/2011 8/35 State Vs. Saikat Chanda further stated that after 5.30 or 6 pm on the day of occurrence when he again tried to contact deceased, he found phone of deceased switched off even till next day and when he called her parents , the parents of deceased did not pick the call of DW1 on mobile phone and they disconnected his call on landline telephone and did not talk to DW1. On 17/11/2004 finding number of friend of Jayatri in his SIM, called her and then came to know of the occurrence and even after that DW1 kept calling the parents of deceased for few days but could not talk to them. DW1 stated that from STD booth he called the mother of deceased and that day he first time talked to her after the incident but she was really rude to him. DW1 stated that thereafter he remained regularly in touch with the mother of the deceased and had talked to her on 10/08/2005 having told her that he may have to go home for sister's marriage purpose on 15/08/2005 but the mother of deceased did not tell DW1 of any police complaint. DW1 stated that when he was in Delhi and had previously left his job in Hyderabad, joined ALCATEL at Gurgaon he was apprehended and falsely implicated in this case. SC No. 70/2011 9/35
State Vs. Saikat Chanda FINAL ARGUMENTS:
9. I have heard the arguments of Ld. Addl. PP for the State , Ld. Counsel for the accused and have perused the record including the evidence and given my thoughts to the rival contentions put forth.
10. Ld. Addl. PP argued that it is not mandatory for the prosecution to prove the instigation on part of accused by any direct evidence which can be deduced from the attending circumstances. It was argued that the deceased was panicked, restless after conversation with the accused, was coming and going to the roof of her house and text of the SMS sent by the deceased to the accused on mobile phone suggested that all was not right. Ld. Addl. PP also argued that PW5 testified of accused having visited house of PW5 in February, 2005 and admitted that he was responsible for the death of the deceased. Ld. Addl. PP also argued that mental status of the deceased before the occurrence was vivid and clear of having panicked, being restless on account of relation of accused with another girl and due to which SC No. 70/2011 10/35 State Vs. Saikat Chanda bitterness she was unable to bear the agony, committed suicide for which even on phone accused told her," Jaa Suicide Kar Le". It was also argued by Ld. Addl. PP that the six page letter of deceased in Bengali language was found in her house which shows mental condition of the deceased how she came under depression; even the mother of deceased, PW4 testified that on account of refusal to marry the deceased, the deceased took extreme step of suicide and accused instigated her for committing suicide.
11. Ld. Defence Counsel argued that prosecution has miserably failed to prove any act or conduct of the accused showing his action of abetment or instigation as defined in Section 107 IPC driving deceased to point of desperation where she had no other alternative than to commit suicide so as to make the conduct of the accused amounting to instigation as defined under Section 107 IPC. It was also argued that when the parents and the brother of deceased were examined by the police officials on the day of occurrence and their statements were so recorded then they merely averred of the deceased having committed suicide on account of failure in UGC SC No. 70/2011 11/35 State Vs. Saikat Chanda NET Examination; no where there to police any member of the family of deceased alleged of any heated conversation between the accused and the deceased on the day of occurrence or elicited any act of accused aiding/instigating or in any manner abetting the suicide of the deceased. It has been argued that neither the mobile phones of accused, deceased or any computer including its hard disk were seized, examined as electronic evidence in the course of investigation nor even the SIM card of mobile phones of deceased and accused were seized, nor any requisite certificate under Section 65 B of Evidence Act was procured from the service provider of the mobile phones of deceased and accused to prove any call details record of the mobile phones of the deceased or accused. The question mark has been raised on the genuineness of the stated SMSs and the E Mails since for proving genuineness of these, nothing at all had been done in the investigation and the first information report was lodged belatedly as a creature of after thought with the coloured version, exaggerated account and a concocted story as a result of deliberation and the consultation with the sole motive to settle scores with the accused whose love relationship with the deceased did not find SC No. 70/2011 12/35 State Vs. Saikat Chanda favour with the family of the deceased. It was also argued that though the case of prosecution is not admitted at all yet even for the sake of arguments if the evidence of prosecution witnesses is taken on their face value then also no case is made out against the accused for the offence under Section 306 of IPC. It was also argued that the referred letter of deceased by the prosecution was running into six pages in Bengali language while the translation of the same was in one and half pages and only a part of the purported text of said letter, was even not accompanied by a certificate of true translation by any competent translator and it is also not borne out of record as to when said letter was delivered to the investigating agency and the genuineness and authenticity of said letter and its purported translation has been questioned by the defence with the submissions that on this count also the investigation was shoddy and no credence can be placed on such material.
RELEVANT LAWS:
12. Section 306 IPC deals with the abetment of suicide and SC No. 70/2011 13/35 State Vs. Saikat Chanda Section 107 IPC 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 my 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 Firstly Instigate 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 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 facilitate the commission thereof, is said to aid the doing of that act."
13. Of late, in the case of Amalendu Pal @ Jhantu vs. State SC No. 70/2011 14/35 State Vs. Saikat Chanda of West Bengal, AIR 2010 SC 512, Hon'ble Supreme Court held that 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:
(2004 AIR SCW 5832) 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 (1994 AIR SCW 844), 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 infact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive or 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 SC No. 70/2011 15/35 State Vs. Saikat Chanda 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."
Also was held that "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 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."
APPRECIATION OF EVIDENCE:
14. Following are the admitted facts:
SC No. 70/2011 16/35
State Vs. Saikat Chanda That deceased Jayatri initially developed friendship and later love relationship with accused Saikat Chanda. Twice accused visited the house of deceased at T19, Hudco Place, Andrews Ganj, New Delhi when she was alive and promised her and her family that he will marry the deceased after his elder sister's marriage. The accused had left the employment of his employer HUGHES Software in Gurgaon in September, 2004 and moved to Hyderabad and joined XIUS India Ltd. Before leaving Hyderabad, accused gifted one mobile phone to deceased and was regularly in touch with her from Hyderabad. Ms. Jayatri, deceased, committed suicide by hanging in the bathroom since her postmortem report Ex PW10/A scribed by Dr. Partha Sarthi, proved by PW10 Dr. Sanjeev Lalwani found mention of the following external antemortem injuries:
'A ligature mark was present in the upper third of the neck in the anterior aspect. It extends on both sides upwards and backwards and was absent in the back of neck. It was 15 cm in length and 0.5 cm in breath. It was 4 cm away from chin and 8.5 cm from sternal notch. It was 3 cm from left mastoid and 4 cm right mastoid process.
SC No. 70/2011 17/35
State Vs. Saikat Chanda On cut section there was no extravasation seen in the under line sub cutaneious tissue. Thyrohyoid intact. Great vessels of the neck were intact. Salivary glands and lymph nodes were congested.' Therein the cause of death was opined as asphyxia due to antemortem hanging. PW10 also furnished his opinion that the death was suicidal and not homicidal.
15. On 14/11/2004 PW9 SI Balbir Singh alongwith PW6 Ct Devender Singh reached the spot i.e. T19, Hudco Place pursuant to receipt of DD No. 14A, found the girl Jayatri lying dead opposite bathroom in the quarter. Therein PW9 recorded the statements of parents of the girl including statement of Sh J.K Chandra, father of deceased as Ex PW1/DA and even the statement of PW2 Sh Jayabrat Chandra, brother of deceased. In Ex PW1/DA, statement of PW1 given to PW9 on the day of occurrence; statements of PW2 and PW4(mother of deceased) given to PW9 also on day of occurrence nowhere they found mention of any name of the accused in them nor there is even a whisper of any act or conduct attributed to accused so SC No. 70/2011 18/35 State Vs. Saikat Chanda as to presume any abetment or instigation on part of the accused as defined under Section 107 IPC driving deceased to point of desperation leaving with no alternative other than to commit suicide. Aforesaid statements find mention of the UGC NET examination result having come that day; Jayatri could not pass in said examination due to which she remained quiet all day through and at 5.30 pm in the bathroom after putting latch from inside with the help of ligature chunni, she hanged herself with the shower rod and the door of the bathroom was forced open by PW2 and PW4, Jayatri was brought down. In all these statements PW1, PW2 and PW4 attributed the suicide of Jayatri on account of failure in her said UGC NET examination and none else to be responsible for her suicide and death.
16. The twist in the version of the parents of the deceased started with the typed letter/complaint addressed by PW1, Ex PW1/A, dated 04/12/2004 to the SHO police station Defence Colony. It is mentioned there that the parents of the deceased were under the impression that Jayatri, deceased, had committed suicide for her SC No. 70/2011 19/35 State Vs. Saikat Chanda failure in the said UGC NET examination, but after few days of her death, they had searched her papers, notes, Email ID, mobile etc. upon which they understood that the examination was not the exact cause of her death; actually their daughter had some love affair with the accused who even before going to Hyderabad in September, 2004 had come to their house, met them and promised to marry Jayatri after his elder sister's marriage, even kept his belongings in their house; said accused had such intimacy with the deceased that they could not imagine that he may be the cause of her death while after verifying they came to know that accused had other relations with another girl and accused and deceased had heated exchange of words in the afternoon of 14/11/2004 which instigated her to commit suicide which can be proved if mobile conversation are checked.
17. On 04/12/2004, as aforesaid for the first time amongst the parents of deceased, PW1 attributed heated exchange of words between accused and deceased on 14/11/2004 which had allegedly instigated her to commit suicide.
SC No. 70/2011 20/35
State Vs. Saikat Chanda
18. PW1 admitted that he was not at his home when the occurrence took place in the evening of 14/11/2004. PW1 had gone to market and on return finding crowd in front of his house, on enquiry came to know that her daughter had committed suicide. Also PW1 testified that then he examined the mobile phone of deceased, found that the deceased had sent a message to accused that, "if you will not call me within two minutes, I will commit suicide". PW1 testified that pursuant to that police came to their residence and shifted the body of deceased to AIIMS hospital. Had PW1 examined the mobile phone of deceased at his house before arrival of the police, as testified by him, what were those circumstances which took place due to which such facts were not mentioned by PW1 in Ex PW1/DA to PW9, it has not been clarified by PW1 or by the prosecution. Also if such SMS was seen in mobile phone of deceased by PW1 then how could there be mentioned in Ex PW1/A, dated 04/12/2004, that after few days of the death of deceased on search of mobile phone etc. PW1 and others came to know of such fact. The version of PW1 in Ex PW1/A and as testified in court are accordingly inter se contradictory. SC No. 70/2011 21/35
State Vs. Saikat Chanda
19. Neither PW2 nor PW4, the brother and mother of deceased respectively, in their statements to PW9 on 14/11/2004 elicited herein above narrated of any exchange of heated arguments between deceased and accused in the afternoon/evening of the day of occurrence but when examined in court, they tell of such version in their examination in chief. In the course of his cross examination PW2 candidly admitted that he was not present when such alleged hot arguments between accused and deceased took place at the terrace of his house in the evening of day of occurrence but added upon to say that he had seen his sister going and coming back from the terrace repeatedly. Even such fact is not borne out from the statement of PW2 given to PW9 on 14/11/2004. PW2 also admitted in the course of cross examination that in his presence accused never asked nor told deceased to commit suicide.
20. PW4 further improved upon the version saying that on having told by PW2 that the deceased was talking on the terrace and weeping, she went on the terrace, found the deceased weeping loudly and on asking deceased told her that accused had cheated her and had SC No. 70/2011 22/35 State Vs. Saikat Chanda told her that he will not marry her. PW4 also testified that thereafter deceased told PW4 that when the deceased told the accused that she will commit suicide, at that point of time accused said that, "Jaa Suicide Kar Le", upon which deceased kept weeping while PW4 tried to make deceased understand but after talking to the accused, deceased went to bathroom, committed suicide and when thereafter PW4 checked the mobile phone of deceased, she found many SMSs in the phone and last SMS sent by deceased to accused was, "If you do not call me again, I am going to commit suicide". As per PW4 , deceased committed suicide as she was compelled to do so because the accused was living with another girl in Hyderabad. All this narration of sequence of occurrence by PW4 in the court as to what took place in the evening of 14/11/2004, the day of occurrence, at the house of PW4 and at her terrace finds no mention in the statement of PW4 given to PW9 on 14/11/2004. Even such facts are in considerable improvements and exaggeration in the version embodied in Ex PW1/A as well as what is testified by PW1 and PW2 in the court, elicited above.
SC No. 70/2011 23/35
State Vs. Saikat Chanda
21. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain earlier information regarding the circumstances in which the crime was committed, the names of the actual culprits and part played by them as well as names of the eye witnesses present at the scene of crime.
22. None amongst PW1, PW2 or PW4 were prompt in reporting the sequence of occurrence regarding the alleged hot exchange of words on telephone amongst deceased and accused in the evening of the occurrence to PW9 who reached their house pursuant to receipt of information of suicide of deceased that evening. Had such events took place, then it was foremost duty of PW1, PW2 and PW4 to inform PW9 immediately on first possible opportunity for the suspected crime. Admittedly, PW1, PW2 and PW4 joined the inquest proceedings, gave statements to PW9 including Ex PW1/DA, dated 14/11/2004, embodying only the fact that none else was responsible for suicide of deceased and on account of failure in UGC NET examination , deceased had committed suicide. These SC No. 70/2011 24/35 State Vs. Saikat Chanda PWs 1,2 and 4 changed their version and colour, time and again as and when the enquiry, investigation and the trial progressed.
23. In the case of Thulia Kali v. State of T.N., A.I.R 1973 SC 501, it was held that ''First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained.''
24. In the case of Ramesh Baburao Devaskar vs State of Maharashtra, 2008 CRI.L. J. 372 it was held that ''In a case of this nature, enmity between two groups is accepted. In SC No. 70/2011 25/35 State Vs. Saikat Chanda a situation of this nature, whether the First Information Report was antetimed or not also requires serious consideration. First Information Report, in a case of this nature, provides for a valuable piece of evidence although it may not be a substantial evidence. The reason for insisting of lodging of First Information Report without undue delay is to obtain the earlier information in regard to the circumstances in which the crime had been committed, the name of the accused, the parts played by them, the weapons which had been used as also the names of eyewitnesses. Where the parties are at loggerheads and there had been instances which resulted in death of one or the other, lodging of a First Information Report is always considered to be vital.'' ''Proof of motive by itself may not be a ground to hold the accused guilty. Enmity, as is wellknown, is a double edged weapon. Whereas existence of a motive on the part of an accused may be held to be the reason for committing crime, the same may also lead to false implication. Suspicion against the accused on the basis of their motive to commit the crime cannot by itself lead to a judgment of conviction.''
25. Neither the mobile phone, computer including its hard disk at residence of deceased was made available by PW1, PW2 or PW4 to the investigating agency nor the investigating agency seized them. Despite the fact that in Ex PW1/A there is clear averment of PW1 that the call detail record of conversation of accused and deceased in the evening of day of occurrence could be checked, it SC No. 70/2011 26/35 State Vs. Saikat Chanda was found not necessary by the officers of the investigating agency to seize the mobile phone of deceased, to verify the call detail records and SMSs from the instrument and also to obtain the requisite certificate under Section 65 B of the Indian Evidence Act in order to prove the electronic record in accordance with law. In this factual matrix, there is every likelihood of tampering of the record of SMSs and the call details as brought in the evidence in the form of CDs Exts PW1/D and PW1/E, the mobile SMS messages Ex PW2/A. Also PW1 alleges of having located the alleged letter of deceased, copy Ex PW1/B running into six sheets in Bengali language finding only some words in English whose translation done in English by PW1 himself in one and half pages as Ex PW1/C. It is not borne out of record as to when said document Ex PW1/B was located by PW1 or as to when it was handed over by him or any other family member to the officers of investigating agency and for that no seizure memo had been prepared but the same is annexure to the charge sheet. Even in the course of investigation said six pages letter, whose copy Ex PW1/B is in Bengali language, has not been got translated by any competent translator of Bengali language nor there is any version of any SC No. 70/2011 27/35 State Vs. Saikat Chanda competent translator on record to testify Ex PW1/C to be the true and correct version of Ex PW1/B. Fact remains six page Bengali document Ex PW1/B per se could not be translated in only one and half pages of English as Ex PW1/C. Accordingly, it is apparent on the face of record that whether true or false, Ex PW1/C could only be the part translation and not a complete translation of Ex PW1/B. Reading part of the document against the accused would be extremely hazardous when it is not accompanied with the certificate of true translation and in absence of such evidence on record. Even the letter Ex PW1/B or its alleged part translation Ex PW1/C do not bear any date so as to presume of the time or period when it was so scribed. The admitted writing of the deceased alongwith Ex PW1/B have not been sent for obtaining the opinion of handwriting expert to prove the fact of the letter Ex PW1/B having been scribed by the deceased. For the sake of arguments also even if Ex PW1/C is adverted to then also it projects the agony of the scribe, a lover towards the counter part for the believing some wrong information of fraud given to understand by student of lover to the elder sister of lover, also believed that the lover had some wrong relation with one SC No. 70/2011 28/35 State Vs. Saikat Chanda Tuk and saying to the scribe of the letter to be aggressive or having blamed the scribe to have misbehaved with relative, saying everything was over, it was too late for scribe to understand.
26. The maternal aunt (Mausi) of deceased, PW5 in her testimony stated that in the month of February, 2005 accused visited her house at Kolkata, stated to her for being responsible for death of Jayatri while weeping. PW5 admitted that she gave her statement to police in summer of year 2005. PW5 had also testified that on the day of occurrence, she had talked with the deceased on phone when the deceased told her that accused was cheating her and accused was having affair with some other girl and PW5 found the deceased sad while telling such fact to her. PW5 also stated that she had adviced deceased several times to not to think about the accused and she should concentrate on her studies and PW5 estimated that the accused had done some magic on the deceased. Such version of PW5 was not promptly reported to the investigating agency nor even told to PW1, PW2 or PW4 on the day of suicide of deceased or even few days later. Being close relative of the deceased and her parents, SC No. 70/2011 29/35 State Vs. Saikat Chanda there was every likelihood of such version of PW5 having come on record belatedly as a creature of after thought with the coloured version, as so put forth by PW1, PW2 and PW4 in their testimonies as exaggerated account and a concocted story as a result of deliberation and the consultation with the sole object to falsely implicate the accused.
27. PW7 Dr. A. Dey was the neighbor of family of the deceased and had testified to the extent that in September, 2004 deceased had introduced the accused to him saying after completing her Phd, she may marry the accused. PW7 did not knew the cause of suicide of deceased.
28. In the case of, " Sonti Ramakrishna vs. Sonti Shanti Sree," AIR 2009 SC 923, it was held that words uttered in fit of anger or emotion without any intention do not amount to instigation.
29. In the case of , "Sanju @ Sanjay Singh Sengar vs State of M.P" AIR 2002 SC 1198, it was held that SC No. 70/2011 30/35 State Vs. Saikat Chanda "Even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional".
30. In the case of , "K.Ramakrishnappa vs. State of Karnataka" 2006 Crl.L.J 4314, it was held that "In the instant case also the accused in a fit of anger during the quarrel told the deceased to go and die. The utterance of these words by the accused allegedly made the deceased to take the extreme step of suicide. This incident cannot be construed as the accused having abetted the deceased to commit suicide".
31. Though on the face of record the version of heated exchange of words telephonically amongst deceased and accused as deposed by PW1, PW2 and PW4 per se appears to be creature of after thought on belated lodging of report with the coloured version, exaggerated account and a concocted story as a result of deliberation and the consultation, but yet for sake of arguments, if it is considered true, yet then also the act or conduct of accused however insulting or SC No. 70/2011 31/35 State Vs. Saikat Chanda in anger may be, will not by itself suffice to constitute abetment of commission of suicide as there was no fact capable of suggesting that the accused sitting in his home place at West Bengal intended by such telephonic conversation with deceased that deceased should commit suicide. Accused had not entered into the wed lock nor contracted any ceremonies prior to wed lock with the deceased. The Constitution of India guarantees freedom to every individual. Two individuals can marry with own wishes, consent and free will without any undue pressure, coercion, influence or fraud. Even if the words allegedly uttered by the accused or his conduct was sufficient to demean or humiliate the deceased then by such acts of the accused or his conduct it could not be established/proved that the deceased was not left with any other alternative except to commit suicide. It so transpires that the deceased/victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which she belonged and such petulance, discord and differences were not expected to induce similarly circumstanced individual in the given society to commit suicide. It is not uncommon in love relation that either of the parties SC No. 70/2011 32/35 State Vs. Saikat Chanda breaks his/her promise at some point of time and expresses desire to not to marry the other. Infact such instances are happening day in and day out to which eyes cannot be shut. By merely not responding to the SMS of deceased, asking accused to call her within two minutes, otherwise she will commit suicide, though not admitted by accused who says he had not received such SMS, yet the same fact even if presumed to be correct for sake of arguments, would not suffice to base a finding that accused abetted suicide as defined in under Section 107 IPC, discussed herein above. Though not admitted by accused, even if it is presumed for sake of arguments only, that accused had told deceased in heated exchange of words as, "Jaa Suicide Kar Le" then also in terms of the law embodied in pronouncements in cases of Sonti Ramakrishna (Supra), Sanju @ Sanjay Singh (Supra) and K.Ramakrishnappa (Supra), it cannot be construed by any figment of imagination that accused had mens rea, wanting the deceased to infact die or in any manner having abetted the deceased to commit suicide. A fatal impulse or ill fated thought of the deceased, however unfortunate and touchy it may be, cannot unfortunately touch the issue. Those cannot fray the fabric of the SC No. 70/2011 33/35 State Vs. Saikat Chanda provision contained in Section 306 IPC. In short, it is not what the deceased 'felt', but what the accused 'intended' by his act which is more important in this context. Of course, the deceased's frail psychology may have forced her to suicide which may become relevant but it is only after establishing the requisite intention of the accused. It is not borne out of record by any cogent evidence that while insulting the deceased in the heated exchange of conversation, accused had any intention to provoke, incite, urge or encourage the deceased to commit suicide. Reliance placed upon the cases of (1) Ramesh Kumar vs. State of Chattisgarh , AIR 2001 SC 3837 and (2) M. Mohan vs. State, (2011) 3 SCC 626. Even if the entire allegations made by the prosecution in this case are accepted as true, no such intention on part of accused to provoke, incite, urge or encourage the deceased to commit suicide can be inferred or held proved from the record.
32. Aforesaid discussion leads me to the solitary conclusion that the prosecution has miserably failed to prove its case against the accused beyond reasonable doubt. Accused is accordingly held not SC No. 70/2011 34/35 State Vs. Saikat Chanda guilty and acquitted for the offence charged. Surety shall be deemed to be discharged after expiry of period envisaged under Section 437A of Cr.P.C, till which period accused and surety shall comply the bonds under Section 437A of Cr.P.C. File be consigned to the record room.
Announced in the open court (GURVINDER PAL SINGH)
on date 26/09/2011 ASJ (FTC)/SD/ NEW DELHI.
SC No. 70/2011 35/35