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Judgment
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).
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 re-heard 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.
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.
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 2? 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 re-trial 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.
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.
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.
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. He, at the most, could have deposed, if at all,
about what was said by Suprema while conversing with the person
whom she called.
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.
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.
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.
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 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.
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. 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.
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 2
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. 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.
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 mens-
rea. 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/-.