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2018 DIGILAW 551 (BOM)

Prabhawatibai v. Milind alias Goldi

2018-02-24

ROHIT B.DEO

body2018
JUDGMENT : 1. The appellant, who is the mother of the deceased Suprema is assailing the judgment and order dated 4.9.2009 rendered by the District Judge – 9 & Assistant Sessions Judge, Nagpur in Special Criminal Case 21 of 2007, by and under which the respondent 1 – accused is acquitted of offence punishable under section 306 of the Indian Penal Code (IPC) and 3(1)(xi) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Atrocities Act). 2. This Court heard the learned counsel Shri R.R. Srivastava (appointed) for the appellant and Shri E.W. Nawab, the learned counsel for respondent 1 and Ms. Ritu Kalia, the learned Additional Public Prosecutor for respondent 2 at length on 20.11.2017 and reserved the judgment. However on 23.11.2017 Shri R.R. Srivastava mentioned the matter and brought to the notice of the Court that the appellant was not satisfied with the manner in which the hearing was conducted. Shri Srivastava requested, while admitting that the request was unusual, that in order to allay any apprehension in the mind of the appellant he may be discharged and the appeal may be reheard by appointing some other counsel to represent the appellant. In view of the said submission, the learned counsel Shri R.R. Srivastava was discharged and the appeal was again listed for final hearing. The note of the Registry reveals that in view of the order of discharge dated 24.11.2017, Shri Sachin Zoting was appointed to represent the appellant. 3. I have heard the appointed counsel Shri Sachin Zoting and Shri E.W. Nawab the learned counsel for respondent 1 – accused at length. Shri Sachin Zoting has placed on record a precepie which reads thus: “That the appellant most humbly and respectfully submits as under: That, the appellant is hereby filing the suicide note of the deceased Suprema Mahendra Dupare dated 16.7.2006 duly written by the deceased thereby stating the name of the present respondent No. 1 responsible for her death. That, the said suicide note was duly handed over by the complainant to the IO and the xerox copy of the same was retain by her. Shockingly the said suicide note was not referred/relied/brought on record by the respondent No. 2 for the reason best known to the respondents. The copy of suicide note dated 16.7.2006 is attached herewith as Annexure No.1”. Shri Sachin Zoting has also placed on record written submissions. 4. Shockingly the said suicide note was not referred/relied/brought on record by the respondent No. 2 for the reason best known to the respondents. The copy of suicide note dated 16.7.2006 is attached herewith as Annexure No.1”. Shri Sachin Zoting has also placed on record written submissions. 4. Photocopy which purports to be a suicide note is apparently dated 16.7.2006. The allegation is that the original was handed over to the Investigating Officer who did not produce the same on record. Perusal of the memo of appeal which is preferred in January 2010, reveals that there is absolutely no whisper in the entire memo of appeal that a suicide note dated 16.7.2006 was handed over to the Investigating Officer who did not produce the same on record. The evidence of appellant (PW 1) makes no reference whatsoever to a suicide note dated 16.7.2006. Significantly, PW 1 does prove a letter written by Suprema Exh 43. PW 1 states that the said letter Exh. 43 was discovered 2½ months after the death of Suprema. There is absolutely no material on record to suggest that any grievance was made at any point in time that documentary evidence made available to the Investigating Officer was not produced alongwith the charge sheet or otherwise. Nothing is brought to my notice to suggest that before filing on record the precepie dated 20.2.2018 such a grievance was made before any authority or Court. I am not inclined to take into consideration the photocopy of the alleged suicide note dated 16.7.2006 produced alongwith the precepie dated 20.2.2018 much less to set aside the judgment of acquittal and to order a retrial or to permit the appellant to adduce additional evidence, as is the submission. It is indeed important that the rights and aspirations of the victim are protected. Equally important is the right of the accused to fair and speedy trial. Since the photocopy of the suicide note is brought in public domain more than 11 years after the purported execution of the note and after this Court heard the appeal and reserved the judgment for the second time, the prayer for permission to adduce additional evidence or in the alternate to remand or remit the matter to the trial Court, is rejected. 5. 5. I have given my anxious consideration to the evidence on record in the light of the submissions of the learned counsel for the appellant, which are as follows: (i) The findings recorded by the learned trial Court are perverse; (ii) Rajkamal Lokhande who heard the conversation between the deceased and the accused at his telephone booth ought to have been summoned as a Court witness; (iii) The learned Sessions Judge committed a serious error in not examining shopkeeper Kashyap and the owner of Saibaba shop as a Court witness. The Court witnesses would have proved that the deceased attempted to procure poison on 16.7.2006 from Kashyap who refused to oblige and the poison was ultimately procured from Saibaba shop. (iv) The abetment to commit suicide is successfully established; (v) Exh. 44 is also a suicide note which is proved to be in the handwriting of the deceased and persons responsible for the death are named therein. 6. Let me first consider the submission that Exh. 44 is a suicide note which names the persons responsible for the death of Suprema. I must observe, that the submission is strange, to be charitable. Exh. 44 is a letter dated 5.3.2006 (more than 4 months prior to the suicide) addressed by Suprema to one Rahul profusely expressing her affection and passion, which ends poetically with words borrowed from a popular Hindi song. The letter Exh. 44 is not a suicide note. The letter gives no indication whatsoever that Suprema was contemplating suicide. Au contraire, the letter Exh. 44 is an expression of emotions and passion and love for Rahul to whom the letter is addressed. The submission, which is recorded in the written submissions, that Exh. 44 is a suicide note and names the persons responsible for death is inexplicable and unintelligible. 7. The submission that the owner of the STD booth who heard the conversation between Suprema and the accused on 15.7.2006 ought to have been summoned as a Court witness is noted only for rejection. Even if it is accepted arguendo that Suprema did indeed make a call from the telephone booth owned by Rajkamal Lokhande, it is difficult to appreciate the submission that Ramkrushna Lokhande was privi to the conversation between Suprema and the person whom she called. Even if it is accepted arguendo that Suprema did indeed make a call from the telephone booth owned by Rajkamal Lokhande, it is difficult to appreciate the submission that Ramkrushna Lokhande was privi to the conversation between Suprema and the person whom she called. He, at the most, could have deposed, if at all, about what was said by Suprema while conversing with the person whom she called. 8. The submission that the two shopkeepers, Kashyap and Saibaba shop who refused to provide the poison and the owner of Saibaba shop who did, ought to have examined as Court witnesses, is equally fallacious. The fact that Suprema committed suicide on 16.7.2006 is irrefutable. That she committed suicide by consumption of poison is again not in serious dispute. Again, I have failed to comprehend the logic of the submission. What is the prejudice to the prosecution due to the non-examination of two shopkeepers, one who refused to sell poison and the other who did sell poison to Suprema, is left to speculation, which exercise, I am not inclined to undertake. 9. The submission of the learned counsel for the appellant is that the findings recorded by the learned Sessions Judge are perverse and that the prosecution has established beyond reasonable doubt offence punishable under section 306 of the IPC and 3(1)(xi) of the Atrocities Act. 10. The incident occurred on 16.7.2006. The report is lodged by PW 1 on 20.1.2007 six months after the incident. No attempt is made to explain the gross delay in lodging the oral report. The unexplained delay of more than six months dents the credibility of the prosecution version, is the submission of Shri Nawab, the learned counsel for the accused, which submission is well merited. 11. The material witnesses from the perspective of the prosecution are PW 1 Prabhawati Dupare, the mother of the deceased and PW 2 Manojit Dupare the brother of the deceased. The only other witness examined is PW 3 Vijay Rudey the Investigating Officer. The gist of the deposition of PW 1 is that the accused developed relationship with Suprema despite PW 1 having cautioned him that he should marry Suprema and not deceive her. Suprema left her house in April 2006 and the accused brought her to the parental house on 14.7.2006, is the deposition. The gist of the deposition of PW 1 is that the accused developed relationship with Suprema despite PW 1 having cautioned him that he should marry Suprema and not deceive her. Suprema left her house in April 2006 and the accused brought her to the parental house on 14.7.2006, is the deposition. The accused went to his village, Surima was weeping and when PW 1 inquired she revealed that the accused refused to marry her. On 15.7.2006 Suprema went Devlapar to meet the accused. The accused told Suprema that since she belonged to Mahar caste he could not marry her. The accused told Suprema that she is free to die. Suprema procured poison while returning from the residence of the accused and consumed the same on 16.7.2006, is the deposition. PW 1 has proved Exh. 44 which is the letter to which I have already made a reference supra. In the cross examination, several significant omissions vis a vis reports Exh. 40 and 41 are brought on record. It is brought on record that immediately after the death PW1 did lodge a police report in which she clearly stated that she did not have any suspicion against anybody. The statement that the accused brought Suprema to her house on 14.7.2006 and then went to village, is an omission. It is extracted in the cross examination that Suprema was to marry one Balkrishna Bangre, however, the engagement was called off three months prior to her death. PW 1 denies the suggestion that Suprema was in a relationship with one Rahul @ Sumit and that the engagement was called off due to her relationship with Rahul @ Sumit. PW 1 denies the suggestion that she is blackmailing the accused with the active assistance of one Mukesh Tiwari. 12. I have scrutinized the reasoning of the learned Sessions Judge. The evidence of PW 1 is not implicitly reliable. She has lodged the oral report six months after the death of Suprema. The evidence is marred by improvements, contradictions and embellishments. However, even if the evidence of PW 1 is taken at face value, it is difficult to record a finding that the accused abetted the suicide. The evidence of PW 1 is not implicitly reliable. She has lodged the oral report six months after the death of Suprema. The evidence is marred by improvements, contradictions and embellishments. However, even if the evidence of PW 1 is taken at face value, it is difficult to record a finding that the accused abetted the suicide. That the accused and the deceased were in relationship and that the accused refused to marry the deceased since she belonged to Mahar community is not evidence of mens rea or intention to drive the deceased to commit suicide. Moreover, the evidence is inconsistent with the admission that Suprema's marriage was proposed to be solemnized with one Balkrishna Bangre and the engagement was called off three months prior to her death. 13. The only other witness examined to prove abetment is PW 2 Manojit. He has deposed that the accused and Suprema were in a relationship that on 27.4.2006 Suprema left the house and returned only after three months. PW 2 states that the next day she went to the STD booth. PW 2 learnt from the STD booth owner that Suprema called Rahul @ Milind Jaiswal. Suprema went to Ramtek on 15.7.2006 and returned in the evening and she was tense, is the deposition. PW then states that Suprema again went to the STD booth of Rajkamal Lokhande and when she returned, she was weeping. Suprema’s mother inquired and the response was a general observation that it is dangerous to love anybody. PW 2 states that after observing thus Suprema asked her mother (PW 1) to leave her alone. PW 2 then states that on 16.7.2006 Suprema had gone to the house of the accused at Devlapar and when she returned she informed her mother (PW 1) that the accused and his mother beat her and drove her out of the house. PW 2 then states that Suprema disclosed that the accused told her that she can commit suicide and that he could not marry Suprema in view of her caste. In the cross examination it is brought on record that the evidence that the STD booth owner disclosed to PW 2 that Suprema called Rahul @ Milind Jaiswal, is an omission. PW 2 then states that Suprema disclosed that the accused told her that she can commit suicide and that he could not marry Suprema in view of her caste. In the cross examination it is brought on record that the evidence that the STD booth owner disclosed to PW 2 that Suprema called Rahul @ Milind Jaiswal, is an omission. The statement that after dinner again Suprema went to the STD booth of Rajkamal Lokhande, when she returned she was weeping and when her mother asked her the reason for weeping she observed that it is dangerous to love anybody, is an omission. The statement that on 16.7.2006 Suprema went to the shop of Kashyap who refused to provide poison, is an omission. The statement that when Suprema returned from Devlapar on 16.7.2006, she told her mother PW 1 that the accused and his mother beat her and drove her out, is again an omission. The statement that Suprema told PW 1 that the accused refused to marry her since she did not belong to his caste is an omission. The omissions are duly proved in the cross-examination of Investigating Officer PW 3. 14. Be it noted, that in report Exh. 40 lodged immediately on 16.7.2006, there is no whisper about abetment of suicide or to any relationship between the accused and the deceased. What is stated in the report Exh. 40 is that Suprema was obstinate and because of some tension, she consumed poison. Report Exh. 40 categorically states that PW 1 did not nurture any suspicion about any person. In view of the contents of Exh. 40 which is the report lodged on 16.07.2006, the credibility of report lodged six months after the incident is extremely suspect. The unexplained delay in lodging the report apart, even if the evidence of PW 1 and PW 2 is taken at face value, the prosecution has failed to establish the ingredients of section 306 of IPC. No instigation is proved. The evidence on record does not bring to the fore any mensrea. The evidence is insufficient to hold that the accused willfully acted in a manner as would drive Suprema to commit suicide. The view taken by the Sessions Judge is a possible view and is certainly not perverse. No compelling reason is demonstrated to interfere with the judgment and order of acquittal. The evidence is insufficient to hold that the accused willfully acted in a manner as would drive Suprema to commit suicide. The view taken by the Sessions Judge is a possible view and is certainly not perverse. No compelling reason is demonstrated to interfere with the judgment and order of acquittal. (i) The appeal is sans merit and is rejected. (ii) Fees of the appointed counsel are quantified at Rs. 5000/-.