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2021 DIGILAW 861 (KAR)

STATE OF KARNATAKA v. RAHUL DILIP PAWAR

2021-09-14

RAJENDRA BADAMIKAR

body2021
JUDGMENT : Rajendra Badamikar, J. 1. The State has filed this appeal against the judgment of acquittal dated 29.11.2012 passed by the Fast Track Court-IV, Belagavi in S.C.No. 163/2012 and prayed for setting aside the judgment of acquittal and sought for convicting the accused/respondent for the offences punishable under Sections 420, 465, 306 r/w Section 34 of IPC. 2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial court. 3. Brief facts leading to the case are that, one Shankar G.Chavan is an agriculturist and resident of Chikalwal village in Chikodi Taluka. He has two sons by name Amit and Shivadatt. Shivadatt is married and is working in Military. Complainant is living with his family members and he is financially sound. The son of complainant, i.e., deceased Amit passed B.A. 2nd year and he had no interest to do agriculture. As such, he intended to go for job and was in search of a job. It is alleged that accused No. 1 induced him to pay Rs.2,00,000/- so that they would provide him an employment in Mercantile Navy and taken him to Mumbai, Chennai and also sent him one month training in Kolkata. But however, the deceased could not get any job and accused failed to repay the amount of Rs.2,00,000/- also. 4. It is alleged that on 02.06.2011 at 9.00 a.m. complainant's son committed suicide in the cattle shed situated in R.S.No. 25/2 belonging to the complainant by hanging himself to the roof and left a suicide note disclosing that accused have abetted in committing the suicide. The complainant lodged a written complaint in this regard in Basaveshwar Chowk police station, Nippani on 02.06.2011 at about 12.00 p.m. The investigating officer registered it in crime No. 37/2011 against accused No. 1/respondent and absconding accused No. 2 for the offences punishable under Sections 465, 420, 306 r/w Section 34 of IPC by issuing FIR. Subsequently, he visited the spot and inquest was done on the dead body. He sent the dead body for postmortem and later he recorded the statement of the witnesses and also collected material documents and found that accused have committed the offences punishable under Section 465, 420, 306 r/w Section 34 of IPC and submitted charge sheet. Subsequently, he visited the spot and inquest was done on the dead body. He sent the dead body for postmortem and later he recorded the statement of the witnesses and also collected material documents and found that accused have committed the offences punishable under Section 465, 420, 306 r/w Section 34 of IPC and submitted charge sheet. After submission of the charge sheet, the learned Magistrate has taken cognizance and committed the matter to the sessions court. Then this matter came to be placed before the FTC-IV, Belagavi and the learned Sessions Judge secured the presence of the accused. The accusation framed was read over and explained to the accused and he pleaded not guilty. Then to prove the guilt of the accused, the prosecution has examined in all 12 witnesses and also placed reliance on 38 documents and 4 material objects. After conclusion of the evidence of the prosecution, the statement of the accused under Section 313 of Cr.P.C. is recorded to enable the accused to explain incriminating evidence appearing against him in the case of the prosecution. The case of the accused is of total denial. However, he got examined himself as D.W.1 and he also placed reliance on Exs.D1 to D7. 5. After hearing the arguments and after perusing the material evidence placed on record, the learned Sessions Judge has acquitted the accused/respondent for the offences punishable under Sections 465, 420, 306 r/w Section 34 of IPC. Being aggrieved by this judgment of acquittal, the State has filed this appeal under Section 378(1) and (3) of Cr.P.C. 6. Heard the arguments advanced by the learned High Court Government Pleader for the appellant/State and learned counsel for the respondent/accused. Perused the trial court records. 7. Learned HCGP would contend that the judgment of the trial court is not maintainable on facts and the same is passed without considering the material evidence on record. That the trial court has failed to appreciate the evidence of P.Ws.2, 3, 4 and 6 who have been cheated by the accused. He would contend that the trial court has failed to appreciate the death note as per Ex.P7 holding that it is not properly proved ignoring the fact that handwriting has been identified by the complainant. That the trial court has failed to appreciate the evidence of P.Ws.2, 3, 4 and 6 who have been cheated by the accused. He would contend that the trial court has failed to appreciate the death note as per Ex.P7 holding that it is not properly proved ignoring the fact that handwriting has been identified by the complainant. That the trial court has also failed to consider that P.Ws.3 and 6 have admitted repayment of certain amount by the accused which conclusively establish the receipt of the amount by the accused. That the trial court has failed to take note of the fact that accused under false promise of getting employment to the deceased has cheated by receiving Rs.2,00,000/- and also cheated his friends and forged the documents regarding appointment letter and thereby abetted the deceased in committing the suicide. Hence, for these amongst other grounds, he prayed for setting aside the impugned judgment of acquittal and prayed for allowing the appeal by convicting the respondent/accused. 8. Per contra, learned counsel for the respondent/accused has disputed the very transaction as alleged by the complainant. He would invite the attention of the court to the inconsistent evidence of P.W.1 and other witnesses regarding payment of amount and withdrawal from the ATM, which does not corroborate the case of the prosecution. He would also contend that though allegations were regarding payment of Rs.2,00,000/- by the complainant, but the evidence discloses that only Rs.90,000/- and Rs.85,000/- said to have been paid by the complainant to the deceased for payment in Mumbai. Further, he would also invite the attention that there is no evidence to show that accused met the deceased prior to his death and the complainant has no personal knowledge regarding financial transaction and the evidence of P.Ws.2, 3, 4 and 6 is inconsistent and they have not lodged any complaint regarding alleged cheating to them by the accused. The alleged repayment simply discloses that there was a loan transaction, but not the transaction as alleged. He has also disputed Ex.P17 claiming that there is no seal of the bank and question of the deceased getting employment does not arise at all, as he had not even a graduate. He would also contend that two days prior to death the deceased has demanded Rs.50,000/- from the complainant to enable him to go to Switzerland which was denied by the complainant. He would also contend that two days prior to death the deceased has demanded Rs.50,000/- from the complainant to enable him to go to Switzerland which was denied by the complainant. Hence, what has transpired between the father and the son is not at all forthcoming and the accused has been made as a scape-goat. Hence, he would contend that the evidence does not establish the ingredients of Section 107 of IPC to show that accused has instigated the deceased in committing suicide. Hence, he would contend that the trial court is justified in acquitting the accused after appreciating oral and documentary evidence. Hence, he would seek for dismissal of the appeal. 9. Having heard the arguments and perusing the records, now the following point would arise for my consideration: "Whether the trial court has erred in acquitting the accused/respondent and the judgment of acquittal is perverse, capricious and suffers from any infirmity so as to call for any interference by this court?" 10. The allegations of the prosecution is that accused No. 1 has induced the deceased to pay him Rs.2,00,000/- under the guise of getting him an employment in Mercantile Navy. However, it is alleged that he could not get the said employment and he received an employment letter, but the said company was found to be non-existing and hence, he being depressed committed suicide by leaving a suicide note. It is alleged that act of the accused is in the form of instigating, abating as well as aiding the deceased in committing the suicide. It is also the case of the prosecution that C.Ws.6 to 9 were also cheated by the accused in this regard. The accused has been prosecuted for the offences punishable under Section 465, 420, 306 and Section 34 of IPC. For proving the offence under Section 420 of IPC, the fraudulent and dishonest intention of the accused in inducing the person deceived to deliver any property is required to be proved. For the offence under Section 306 of IPC, the prosecution is required to prove mental process of instigating a person in committing the suicide. Further, to prove the offence under Section 465 of IPC, the prosecution is required to prove that a false document has been created by the accused with an intention to cause damage or injury to public or any person. Further, to prove the offence under Section 465 of IPC, the prosecution is required to prove that a false document has been created by the accused with an intention to cause damage or injury to public or any person. Hence, the prosecution is required to prove that accused fraudulently, dishonestly induced the deceased Amit to deliver cash of Rs.2,00,000/- for the purpose of getting employment to him. 11. P.W.1 is the complainant and father of the deceased. P.Ws.2, 3, 4 and 6 are the friends of the deceased who also claim that they have also paid certain amount to the accused. Admittedly, there is no serious dispute of the fact that deceased committed suicide in the cattle shed on 02.06.2011. The medical evidence in the form of postmortem report as per Ex.P33 establishes this aspect and there is no serious dispute about this aspect. Further, the evidence of P.W.9 also supports that death is due to asphyxia because of hanging. The prosecution is alleged that deceased has left a death note marked at Ex.P7. Ex.P8 is the note book paper sheets and the entire case is based on these two documents. 12. It is evident from the records that complainant while proceeding for a function has seen the accused attending cattle in the cattle shed and that itself discloses that he was in normal state of mind. The evidence also discloses that two days prior to death, the deceased has demanded Rs.50,000/- from the complainant so as to go to Switzerland and the same is denied by the complainant. There is no evidence to show that in between this period, the deceased met the accused. When the deceased was demanding the amount in order to go to Switzerland, it is hard to accept the contention of the prosecution that he was under depressed state of mind. 13. The entire case of the prosecution is based on the evidence of P.Ws.1 to 4, 6 and 12. P.W.1 is the father of the deceased and complainant. He claimed that deceased son demanded Rs.2,00,000/- from him for getting employment in Mercantile Navy and he paid Rs.2,00,000/-. His evidence also discloses that accused took his son to Mumbai and other places and he was also sent for training to Kolkata for one month. P.W.1 is the father of the deceased and complainant. He claimed that deceased son demanded Rs.2,00,000/- from him for getting employment in Mercantile Navy and he paid Rs.2,00,000/-. His evidence also discloses that accused took his son to Mumbai and other places and he was also sent for training to Kolkata for one month. But his evidence discloses that at the time of payment of the amount he did not enquired the requirement and to whom his son is going to pay this amount. His evidence discloses that on the date of the incident at 8.15 a.m. he met his son who was working in the cattle shed and he was mentally proper. His evidence further discloses that he has not paid cash of Rs.2,00,000/- in one lumpsum, but he claims that, at first instance he paid Rs.90,000/- and another instance he paid Rs.85,000/-, but he did not disclose the date of payment. He pleaded ignorance as to whom the amount of Rs.85,000/- was paid by his son and his son said at the time of payment of second installment of Rs.90,000/- that he is required to pay it in Mumbai. He never enquired his son as to whom he has paid the amount in Mumbai. He claims that his son received appointment letter from Goutam Shipping Corporation, Karwar, but when his son went there for joining, no such corporation was found and then his son got information that he was cheated. But there is no evidence to show that this appointment letter of Goutam Shipping Corporation is issued by the accused. Further, it does not bear the signature of the accused. According to the complainant, he paid the amount in February, 2011, but the suicide was on 02.06.2011 and in between what has happened is not at all forthcoming. He has pleaded ignorance regarding one Ranjit Patil staying in the village and the deceased was in love with his daughter by name Ashwini Patil. Chikalwal village itself is a small village having population of 5000, but he claims that he did not know such a person, but other witnesses admit that Ranjit Patil is staying in the village. P.W.1 is not an eye-witness to the transaction and his entire case is based on Ex.P7. 14. Chikalwal village itself is a small village having population of 5000, but he claims that he did not know such a person, but other witnesses admit that Ranjit Patil is staying in the village. P.W.1 is not an eye-witness to the transaction and his entire case is based on Ex.P7. 14. However, it is pertinent to note here that investigating officer has not made any efforts to get the admitted handwriting of the deceased from the college or the admitted handwriting available in the house so as to verify the handwriting in Ex.P7 is that of the deceased through an expert. This is a material lapse committed by the investigating officer and when the model handwriting of the deceased was available in the college that could have been secured and even he was a member of Basaveshwar mandal, but no documents have been secured by the investigating officer. Except Ex.P8 which is secured by the complainant, they are only certain papers from the note book, but other documents were not secured. 15. P.W.2 claims that deceased has paid Rs.50,000/- in his presence to the accused and he paid Rs.20,700/- along with his friends. When he was not closely aquatinted with the accused, question of he paying the amount does not arise at all. He has not lodged any complaint in this regard. His evidence discloses that only Rs.50,000/- is paid by the deceased to the accused, but it does not establish payment of Rs.2,00,000/- as alleged by the prosecution. Further, he has claimed that he paid the amount to the accused in the second meeting which creates doubt regarding his version. 16. P.W.3 claims that he was working in Singapore Merchant Navy for nine months and he claims that he paid Rs.15,000/- to the accused for Visa and Rs.20,000/- for air ticket. He has deposited Rs.10,000/- to the bank account of the accused. When a meager amount of Rs.10,000/- is being deposited to the bank account, why the other amount is paid by cash is not at all forthcoming. His evidence discloses that on 13.09.2010 he deposited Rs.10,000/- to the bank account, but simultaneously it is also evident that the same is refunded by the accused and it may be because of the money transactions. But it does not establish that it was pertaining to the offer towards a job. His evidence discloses that on 13.09.2010 he deposited Rs.10,000/- to the bank account, but simultaneously it is also evident that the same is refunded by the accused and it may be because of the money transactions. But it does not establish that it was pertaining to the offer towards a job. He admits that he had received Rs.20,000/- from the accused, but claims that still Rs.5,000/- is due. His cross- examination reveals that he had gone to Singapore through Bompay agent by paying cash of Rs.1,00,000/- and as such, it is evident that he knew visa and air process and as such, question of he paying the amount of Rs.35,000/- to the accused does not arise at all. 17. P.W.4 is another friend of the deceased and he has also deposed regarding he witnessed payment of Rs.50,000/-. He claims that cash was paid in Mumbai to the tune of Rs.1,50,000/-. Further, he claims that he has paid certain amount to the accused by availing loan of Rs.70,000/-, but the documents speaks a different story. His evidence discloses that he was not present while amount of Rs.50,000/- was paid to the accused by his uncle Raosaheb Natkole. The said person is also not examined regarding alleged payment by this witness. Further, P.W.4 has stated that deceased withdrawn Rs.1,50,000/- from ATM and the same was paid to the accused, but it is not the case of the prosecution and the complainant himself claimed that he paid the amount in installments. Hence, his evidence does not inspire confidence of the court. 18. The evidence also discloses that he has undergone training in Kolkata along with the deceased. He cannot undergo training free of cost in Kolkata and certain amount should have been spent by the deceased and they had regularly visiting Mumbai. Hence, these expenses cannot be ignored. Further, they have not handed over their certificates and their contention that accused assured them of getting an employment without certificates creates doubt. 19. P.W.6 is another witness who claims that Rs.50,000/- was paid in his presence and he also claims that he has paid Rs.20,700/-. Ex.P26 bank slip shows that this witness deposited Rs.10,000/- on 18.09.2010 to the bank account of the accused. Ex.D3 discloses that on 04.11.2010 a sum of Rs.9,000/- is deposited to his bank account by the accused. 19. P.W.6 is another witness who claims that Rs.50,000/- was paid in his presence and he also claims that he has paid Rs.20,700/-. Ex.P26 bank slip shows that this witness deposited Rs.10,000/- on 18.09.2010 to the bank account of the accused. Ex.D3 discloses that on 04.11.2010 a sum of Rs.9,000/- is deposited to his bank account by the accused. Hence, it appears that there were certain loan transactions between the parties, but now it is being given the colour of different employment transaction. 20. P.W.12 investigating officer deposed that, when he visited the spot, Ex.P7 death note was found on the cot by the side of the dead body, but the evidence of the complainant and other witnesses is completely inconsistent and contrary in this regard. P.Ws.2 to 4 and 6 have not lodged any complaint regarding alleged cheating to them. The evidence of P.W.7 does not establish the case of the prosecution in any way. 21. Under Section 420 of IPC, the prosecution is required to establish that the deceased and other witnesses were cheated by the accused with dishonest intention, but no such evidence is forthcoming. There is no evidence to show that accused has received Rs.2,00,000/- from the complainant. When the meager amount is deposited to the bank account of accused by the witnesses P.Ws.2 to 4 and 6, it is hard to accept that deceased has paid it by cash. As regards offence under Section 465 of IPC is concerned, there is absolutely no evidence and the prosecution has relied on appointment letter Ex.P14, but it bears the signature of the deceased, but not the signature of the accused. Further, the evidence discloses that deceased went to Karwar to join the work, but he came to know that no such company as Goutam Shipping Corporation existed and he returned and realized that he was cheated. This incident has taken place in March, 2011, but immediately no complaint has been lodged and no explanation is forthcoming in this regard. Ex.P14 does not bear the signature of the accused, but it bears the signature of the deceased and under what context the deceased has signed on this letter is not at all forthcoming. Further, how the deceased has received this appointment letter is not disclosed by the prosecution. 22. Apart from that, the evidence discloses that deceased and other witnesses underwent training in Kolkata for almost one month. Further, how the deceased has received this appointment letter is not disclosed by the prosecution. 22. Apart from that, the evidence discloses that deceased and other witnesses underwent training in Kolkata for almost one month. Exs.P9 to 12 are the certificates issued by the Marine Academy of Kolkata, while Ex.P13 is the certificate issued by Star Maritime Private Limited of Bombay. The investigating officer has not made any attempts to ascertain the genuineness of these certificates. But however, it is admitted that deceased underwent training in Kolkata for one month. There is no evidence that Exs.P9 to 13 are concocted and Ex.P14 is concocted by the accused and this material evidence is missing. As observed above, as regard Ex.P7, there is no material evidence to show that it is in the handwriting of the deceased and the investigating officer has not collected any material evidence in the form of admitted handwriting of the deceased. The investigating officer has also not made any attempts in this regard. 23. The ingredients of Section 107 of IPC are not established that the accused has abetted or instigated the deceased in committing suicide. Further, the ingredients of Sections 420 and 465 are also not established and the prosecution has completely failed to substantiate the contention as alleged. The evidence regarding payment is also inconsistent and contrary. Regarding payment of Rs.2,00,000/- also no documents are forthcoming and there is no evidence that prior to the death of the deceased, accused met him and there was any altercations between them. Hence, it is evident that prosecution has miserably failed to bring home the guilt of the accused beyond all reasonable doubt. The learned Sessions Judge has considered all these aspects in proper perspective and she has analyzed oral and documentary evidence in detail and arrived at a just decision. The judgment of acquittal is neither perverse nor erroneous so as to call for any interference by this court. Under these circumstances, question of interfering with the said judgment does not arise at all. Accordingly, I answer the point under consideration in the negative and proceed to pass the following: ORDER: The criminal appeal is dismissed.