The aforesaid material is consistent with the contents of the suicide note/dying declaration. This Court has no hesitation to hold that the evidence of other material and suicide note is sufficient to prove that the deceased was left with no other alternative then to commit suicide. This was done only due to the conduct of the blackmailing of the deceased by the accused. The deceased was not in a position to meet more demands and so he took the decision. The only courage the deceased could show was to leave behind suicide note and blame the accused for his suicide.
In view of the aforesaid position of law discussed by the Apex Court and the facts and circumstances of the case, this Court holds that the material is sufficient for proving both the offences viz. offence punishable under Section 306 and 386 of the Indian Penal Code. The conduct of the accused amounts to abetement as defined under Section 107 of Indian Penal Code. This Court holds that there is no reason to interfere in the decision given by Sessions Judge.
Miss Rashika @ Rishigandha Shetye Vs. The State of Goa
Court : Mumbai - Goa
Judge : T.V. NALAWADE
Decided On : Jan-10-2014
Case Number : Criminal Appeal No. 32 of 2012
Citation; 2014 ALL MR(cri) 1635
1. The appeal is filed against judgment and order dated 04/10/2011 of Sessions Case No.41/2010, which was pending in the Court of Sessions Judge, Panaji. The learned Sessions Judge has convicted and sentenced the appellant for offences punishable under Sections 306 and 386 of the Indian Penal Code. The amount of Rs.1,50,000/- found in the account of the appellant-accused is held to be extortion money and direction is given by the learned Trial Judge to pay this amount to the widow of the deceased. Both the sides are heard.
2. In short, the facts leading to the institution of the appeal can be as follows:
The deceased Prakash was the husband of the informant Smt. Prajwalita Gadgil. He was aged about 56 years. He has left behind two sons aged about 21 and 13 years. He was working as the Post Master of Valpoi Post Office.
3. The accused is a resident of Betkekarwada, Valpoi. At the relevant time, the accused was aged about 23 years and she was unmarried. The accused was acquainted with the deceased and there is allegation that she developed illicit relation with the deceased with the intention to extract money from him. On 2/11/2009, the accused took three photographs of the deceased when he was in nude condition by using her mobile handset.
4. By keeping the relationship with the deceased, the accused collected documents like the record of the deceased like pay slip, voter ID card, passport, etc. After collecting such record, the accused started making demand of money from the deceased. On first two occasions she demanded Rs.30,000/- and Rs.5,000/- and these demands were met with by the deceased. The accused then started giving threats of making complaints to the police in respect of the relationship and to defame him by using the photographs which she had taken on 2/11/2009. Due to these threats, the deceased gave the amount of Rs.1,50,000/- by depositing this amount in account of the accused in the bank. This amount was collected by the deceased by withdrawing the amount from his GPF account and savings account. This amount was deposited on 12/12/2009. Inspite of making the aforesaid payment, the accused was not satisfied. She then started demanding one car from the deceased. She collected the quotation from one company in respect of Maruti car and gave it to the deceased for purchasing the car.
5. Till the date of the incident of the suicide of the deceased, he had paid the amount of Rs.1,85,000/- to the accused. The accused continued to blackmail the deceased and she continued to give threats either directly or through her friends by contacting the deceased on mobile phone. She created fear in the mind of the deceased as she wanted to extract more money from the deceased. On 17/04/2010, accused visited the office of the deceased and made demand of Rs.80,000/-. Due to this harassment and as the deceased was not in a position to meet this demand, deceased took the decision of committing suicide.
6. On 18/04/2010, the deceased sent his wife and younger son to the brother of his wife and asked them to stay there during the summer vacation. On the night between 18/04/2010 and 19/04/2010 the deceased and his elder son were at home. On 19/04/2010, in the early morning hours deceased committed suicide by hanging himself in the back portion of his house. He left behind suicide note containing description of the aforesaid incidents and he blamed the accused for his suicide. Along with the suicide note the accused had kept record like counter foil of slip of the bank in respect of depositing of amount of Rs.1,50,000/- in the account of accused. He also kept a quotation in respect of the Maruti car which was in the name of the accused. This suicide note was addressed to police and he had requested police to take action against the accused.7. Bhaskar, the brother of the deceased gave UD report after seeing the dead body. On 19/04/2014, police prepared inquest panchanama and spot panchanama. During inquest panchanama police recovered one envelope containing aforesaid documents from the pocket of short pant of deceased. These documents came to be seized under separate panchanama. Dead body was referred for post mortem examination. Doctor gave report that the death took place due to hanging. On 24/04/2010, police recovered statement of account of the accused from her bank. On 22/04/2010 police collected call details record (in short CDR) in respect of the mobile numbers mentioned in suicide note by the deceased. Then one Vijay Joshi, friend of accused came forward and his statement came to be recorded on 21/04/2010. The widow of deceased gave report on 9/06/2010. The crime at serial no.31/2010 came to be registered for aforesaid offences and offence punishable under Section 201 of the Indian Penal Code in Valpoi police station. The statements of more witnesses including another friend of accused, Prashant Joshi came to be recorded. Prashant Joshi had given his sim card to the accused and this sim card was used by the accused for giving threats to the accused. The record like copies of pass book of GPF account, extract of the savings account of the deceased came to be collected. The slip with which the amount of Rs.1,50,000/- was deposited in the account of the accused came to be seized. The statements of employees of both the offices came to be recorded. After completion of investigation police sub-inspector Narayan Parwar filed charge sheet. The charge came to be framed for aforesaid offences. The accused pleaded not guilty. The prosecution examined in all 13 witnesses. Most of the witnesses supported the case of prosecution. The defence admitted all panchanamas. The accused took the defence of total denial. No defence evidence is given. The trial Court has believed the prosecution witnesses. The trial Court has passed the conviction on suicide note and the circumstances proved in the evidence of other witnesses.
8. The inquest panchanama at exhibit 34 and post mortem report at exhibit 68 are admitted documents and they show that the death took place due to asphyxia due to hanging. The spot panchanama at exhibit 33 is consistent with the case of prosecution that deceased committed suicide by hanging.
9. The case of the prosecution rests mainly on the suicide note. The inquest panchanama at exhibit 34 shows that one envelope containing some documents was recovered from the pocket of short pant which was present on the dead body. Panchanama in respect of the seizure of the documents was carried out and it is at exhibit 35. This record shows that documents like suicide note, quotation of Maruti car obtained in the name of the accused and the xerox copy of counterfoil slip of depositing Rs.1,50,000/- dated 12/12/2009 were found with the dead body. These panchanamas were prepared on 19/04/2010 between 11.35 hours and 13.05 hours. The sum and substance of contents of these documents is mentioned in the panchanama also.
10. Prajwalita/PW1, widow of the deceased has given evidence that during investigation, Marathi, Devnagri handwriting of deceased was collected from her. She has deposed that deceased had written a recipe of the vegetable which was supplied on TV show in her presence. Her evidence shows that she was also conversant with the handwriting of the deceased. The panchanama of seizure of the recipe, sample handwriting of the deceased which is at exhibit 41 is admitted by the defence. During her evidence, PW1 identified handwriting appearing on exhibit 16, the recipe. Bhaskar/PW4 elder brother of deceased has also identified handwriting of deceased appearing on exhibit 16. The handwriting of deceased on suicide note (exhibit 15) is proved in the evidence of these close relatives.11. Bhaskar/PW4 was residing at different place at the relevant time and his evidence shows that outsider gave information to him about the incident and then he rushed to the house of the deceased, after 8.30 hours on 19/04/2010. He gave UD report. The evidence of PW1 and the UD report show that at the relevant time the widow of deceased was not at home. This evidence shows that there was no room for PW1 and PW4 to create false record against the accused. Further the evidence of widow does not show that she had any information about the relationship between her husband and the accused. The circumstance that the widow gave report against the accused on 19/06/2010 is not against the prosecution, but it is in support of the case of the prosecution that there was no reason for the prosecution witnesses to falsely implicate the accused. As commission of cognizable offence was disclosed in the suicide note, police ought to have taken steps for registration of crime on 19/04/2010, itself.
12. Narayan Parwar/PW13, the Investigating Officer has given evidence that he forwarded the suicide note and the recipe (exhibit 15 and 16) to handwriting expert for comparison. The office copy of the covering letter shows that one more document like the letter written by the deceased in English in his office was also sent to handwriting expert. At exhibit 51 there is opinion of handwriting expert. This opinion is also not disputed by the defence. It shows that Devnagri handwriting appearing on the suicide note (exhibit 15) is tallying with the Devnagri script appearing on recipe (at exhibit 16). The handwriting expert has given opinion that it was not possible for him to compare English handwriting appearing on exhibit 15, though the document from the office of the deceased which was in English handwriting was also sent to the handwriting expert. In view of the evidence given by PW1 and PW4 and the opinion in respect of Devnagri handwriting given by the expert this Court holds that not much can be made out in favour of the defence, due to the absence of the opinion in respect of English portion appearing on exhibit 15. This evidence is sufficient to prove that the deceased left behind the suicide note at exhibit 15 and it is the handwriting of the deceased.
13. The suicide note at Exhibit 15 contains the following information:
(i) The accused was known to the deceased and accused had developed relations with the deceased,
(ii) The deceased had deposited the amount of Rs.1,50,000/- in the account of accused on 12/12/2009 and this amount was collected by the deceased by making withdrawals from his GPF account and savings account,
(iii) The accused had created fear in the mind of the deceased by giving him threats of defamation and she was blackmailing him,
(iv) Even after giving money on many occasions the accused was harassing the deceased by contacting the deceased on his mobile phone and so the deceased had taken decision to commit suicide,
(v) The deceased wanted to see that action is taken against the accused for her conduct.
14. The evidence of Prashant Joshi/PW2, a friend of the accused shows that he had an affair with the accused. The evidence shows that this witness had given his sim card to accused for use. He has deposed that when he learnt about suicide and that his sim card was used by the accused, he collected it from the accused and produced it before police. The production of the sim card is also admitted by defence. This evidence shows that sim card having no.9404454374 was given by this witness to the accused. Record from mobile company is collected by Investigating Agency and it shows that this card was issued to PW2 and it was activated on 22/01/2010. There is more record of the same mobile company showing that the accused had also collected sim card and it was having no.9421157732.
15. Prassana/PW6 the son of the deceased has given evidence that sim card no.9881626168 was in his name but it was being used by the deceased. At exhibit 45 there is a record of the mobile company that this sim card was issued to PW6.
16. The CDR record shows that from February, 2009 the accused was in touch with the deceased by using mobile no.919421157732. The CDR record shows that the accused started contacting the deceased on his mobile no.919881626168 and she contacted the deceased many times on 2/11/2009. On that day the duration of the calls was455, 492, 75 and 370 seconds. She made two calls on 3/11/2009, three calls on 4/11/2009, one call on 6/11/2009, three calls on 7/11/2009, one call on 10/11/2009, three calls on 11/11/2009, two calls on 12/11/2009, three calls on 13/11/2009 and so on. The other relevant date is 12/12/2009 and on this date there were three calls from the accused to the deceased between 9.21 hours and 10.17 hours. On this date, the amount of Rs.1,50,000/- was deposited in the account of the accused.
17. Subsequent to the aforesaid dates also there were calls from the accused to the deceased. There were calls on 6/01/2010, 23/03/2010, 5/04/2010, 6/04/2010 and so on. The last call was on 19/04/2010, the date on which the deceased committed suicide. The duration of this call was 43 seconds. Though no time of calling is mentioned in CDR record there is no subsequent call. The call was received and the evidence of the son of the deceased shows that the mobile was in the use of deceased and so this circumstance has not created any doubt about the case of the prosecution. After this date, there was no call from the accused to the deceased and the evidence shows that her friend then collected the sim card from her. No explanation is given by the accused in respect of the aforesaid circumstances.
18. Mohan Chopde/PW12, Senior Superintendent of Post Offices has given evidence and the prosecution has proved the documents like copy of GPF passbook, account extract and also letter. There was saving account in post office also. This evidence shows that on 12/12/2009, the account of Rs.1,40,000/- was withdrawn from GPF account and amount of Rs.7,000/- was withdrawn from the savings account (exhibit 46, 65 and 66). Copy of account statement of the account of the accused (30701278387) shows that on 12/12/2009 the amount of Rs.1,50,000/- was deposited in this account. This statement shows that prior to this date and even after this date at no time the amount of more than Rs.10,000/- was deposited in this account. The amount at credit was also never more than Rs.10,000/-. The counterfoil, bank slip with which this amount was deposited in the bank was found on the dead body. The slip is taken from the bank. This record is also found consistent with the contents of the suicide note.
19. Vijay/PW3 a friend of accused has given evidence that he knew that Prashant/PW2 had an affair with the accused. He had a talk with the mother of Prashant in that regard. The evidence of Prashant/PW2 shows that his family was against the marriage of Prashant with the accused as accused is from different caste. Inspite of that, the accused continued her relationship with Prashant. She was using sim card of Prashant and she was moving with these two persons and taking all kind of help from these two persons. They are the friends of the accused and their evidence is relevant and material as their evidence shows the general conduct and approach of the accused.
20. Vijay/PW3 has given evidence that he had seen the deceased standing in front of the shop of the accused many times after office hours and he used to virtually face the shop run by the accused. His evidence shows that on 2/11/2009, the deceased had approached him and he had informed that he was threatened by accused. According to him the deceased had informed that the accused had given threat of lodging complaint to police and making public the aforesaid photographs of the deceased taken by her. His evidence shows that he had contacted the accused in the presence of the deceased and he had requested both of them to settle the matter amicably. His evidence shows that when he learnt about the suicide committed by the deceased, he went to the house of the deceased and approached police. This evidence is also material as it is in corroboration with the contents of suicide note. The statements of both PW2 and PW3 were recorded under Section 164 of the Criminal Procedure Code and those statements are proved by examination of the Magistrate. They are consistent with oral evidence of PW2 and PW3 on material points.
21. One witness Lawrence Ferrao/PW8 is examined to show that the accused had tried to create record of having money after the incident of suicide. He has given the evidence that the accused had approached him in November, 2009 and then in May 2010. He has given evidence that there was agreement between him and the accused and under the agreement he was supposed to pay some amount to the accused but that was to be done only after his work like shooting of the film was over. As the money was accepted from deceased in the month of December, 2009 and as there is no record whatsoever in support of the evidence of this witness, his evidence need not be considered more. His evidence cannot help the case of the prosecution.
22. The aforesaid material is consistent with the contents of the suicide note/dying declaration. This Court has no hesitation to hold that the evidence of other material and suicide note is sufficient to prove that the deceased was left with no other alternative then to commit suicide. This was done only due to the conduct of the blackmailing of the deceased by the accused. The deceased was not in a position to meet more demands and so he took the decision. The only courage the deceased could show was to leave behind suicide note and blame the accused for his suicide.
23. The learned Additional Public Prosecutor placed reliance on the judgment of the Apex Court in the case of ChitreshKumar Chopra V/s. State (Govt. of NCT of Delhi) reported in 2010 ALL MR (Cri) 1331 (S.C.). Apex Court has observed in paras 10,11 and 14 thus:
10. Section 306 of the IPC reads as under:
œ306. 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 may extend to ten years, and shall also be liable to fine.?
11. From a bare reading of the provision, it is clear that to constitute an offence under Section 306 IPC, the prosecution has to establish: (i) that a person committed suicide, and (ii) that such suicide was abetted by the accused. In other words, an offence under Section 306 would stand only if there is an œabetment? for the commission of the crime. The parameters of œabetment? have been stated in Section 107 of the IPC, which defines abetment of a thing as follows:
œ107. Abetment of a thing
A person abets the doing of a thing, who “
First- Instigates any person to do that thing; or
Secondly- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or
Thirdly- Intentionally aids, by any act or illegal omission, the doing of that 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.?
14. As per clause firstly in the said Section, a person can be said to have abetted in doing of a thing, who œinstigates? any person to do that thing. The word œinstigate? is not defined in the IPC. The meaning of the said word was considered by this Court in Ramesh Kumar Vs. State of Chhattisgarh, (2001) 9 SCC 618. Speaking for the three-Judge Bench, R.C. Lahoti, J. (as His Lordship then was) said that instigation is to goad, urge forward, provoke, incite or encourage to do œan act?. To satisfy the requirement of œinstigation?, though it is not necessary that actual words must be used to that effect or what constitutes œinstigation? must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. Where the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, an œinstigation? may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation.
24. In view of the aforesaid position of law discussed by the Apex Court and the facts and circumstances of the case, this Court holds that the material is sufficient for proving both the offences viz. offence punishable under Section 306 and 386 of the Indian Penal Code. The conduct of the accused amounts to abetement as defined under Section 107 ofIndian Penal Code. This Court holds that there is no reason to interfere in the decision given by Sessions Judge.
25. The learned Sessions Judge has given imprisonment of 5 years and penalty is on lower side. This Court holds that there is no reason to interfere on the point of penalty. Such incidents are increasing day by day. Some fear needs to be created in the minds of similar minded persons. In the result, the appeal stands dismissed. The order made in favour of the widow of the deceased also stands confirmed.
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