Delhi District Court
State vs 1. Gopal Goyal Kanda on 10 May, 2013
1
IN THE COURT OF SH. S. K. SARVARIA, DISTRICT & SESSIONS JUDGE
(NORTH WEST) DISTRICT COURTS ROHINI, DELHI
State Vs 1. Gopal Goyal Kanda
S/o Late Sh. Murli Dhar Goyal
R/o 436/16, Civil Lines, Gurgaon, Haryana.
2. Aruna Chadha
S/o Sh. Amrit Parkash Chadha
R/o C-904, BPTP Park Life, Sector-57,
Gurgaon, Haryana.
FIR NO. 178/2012
P.S Bharat Nagar
ORDER ON CHARGE
1.By this order, I shall decide whether any charge should be framed or not against accused persons in this case. The challan/case bearing FIR no. 178/12 P.S Bharat Nagar has been committed to this court by Ld ACMM (N/W). The name of victim is being withheld from this order in the light of the provisions of Section 228 (A) IPC and the dicta of the Hon'ble Supreme Court in State of Karnataka Vs. Puttraja (2004 (1) SCC 475) and Om Prakash Vs. State of Uttar Pradesh 2006 Cri.L.J. 2913.
2. The basic fact is that one deceased victim allegedly committed suicide in the night intervening 4/5.08.2012 at her residence Flat No. 4C Block No.1 Pocket B Ashok Vihar, Phase-III, Delhi leaving suicide note naming the two accused persons Gopal Goyal Kanda and Aruna Chadha as persons responsible for her death. Both the accused are in judicial custody. After investigation, the investigating agency has recommended the case for trial of the accused persons for the offences u/S 120-B read with Sections 306/506/201/466/467/468/469/471/34 IPC. At the time charge sheet was filed State Vs Gopal Goyal Kanda and others 2 the electronic evidence were yet to be received by the investigating agency. It is also pertinent to note that there is one supplementary challan filed by the investigating agency against one more accused namely Chanshivroop Singh in which committal proceedings are pending before Ld ACMM (N/W). Present two accused persons were also connected with the said supplementary challan and copies of incriminating material in supplementary challan has been supplied to them by the court of Ld ACMM (N/W). The said file of supplementary challan was also summoned from time to time by this court during the course of arguments and also for the purpose of present order.
ARGUMENTS OF LEARNED SPECIAL PUBLIC PROSECUTOR SH. RAJIV MOHAN
3. On behalf of State, it is argued that for framing charge by the court, prima facie view of the matter is to be taken on the basis of material produced by the prosecution. If opinion can be formed that accused might have committed offences, charges can be framed. Meticulous examination of evidence is not required. Strong suspicion is sufficient for framing of charges. It is argued that only sufficiency of evidence is to be seen and not probity of evidence. Reliance is placed upon State of Orissa Vs Debendra Nath Padhi AIR 2005 SC 359; Satish Mehra Vs Delhi Administration (1996) 9 SCC 766; Vinay Tyagi Vs Irshad Ali @ Deepak and ors 2013 I AD (S.C) 157.
4. It is argued that the two suicide notes of deceased victim are admissible in evidence as dying declaration within the meaning of Section 32 (1) of Indian Evidence Act. The suicide notes fall within the phrase "circumstances of the transaction" of this legal provision dealing with dying declaration. Reliance is placed upon Pakala Narayana Swami Vs The King Emperor AIR 1939 PC 47; Patel Hiralal Joitaram Vs State Appeal (Civil) 427 of 2001 (Supreme Court) decided on 18th October 2001.
State Vs Gopal Goyal Kanda and others 3
5. Further argument is that suicide note was treated as dying declaration in Amit Kapoor Vs Ramesh Chander and anr (2012) 9 SCC 460; Chitresh Kumar Chopra Vs State (Govt. of NCT of Delhi) AIR 2010 SC 1446.
6. It is argued that u/S 158 of Evidence Act, suicide note of the deceased can be corroborated by the statement of her family members and other persons. Even if the mother of deceased has also subsequently died, her statement u/S 164 Cr.P.C and in FIR are admissible u/S 32 (8) Illustration (n).
7. It is argued that mindset of the deceased is shown in the two suicide notes as also the role of the two accused persons. The FSL report has confirmed handwriting of deceased in the two suicide notes. There are statements of mother, father and brother of deceased recorded u/S 164 Cr.P.C which have corroborated with the facts stated in the dying declaration of the deceased. It is argued that even after death of the mother of the deceased who has subsequently committed suicide, her statement u/S 164 Cr.P.C and her complaint which resulted into FIR can be read for the purpose of charges to be framed by the court.
8. It is argued that Chanshivroop Singh moved application before Ld ACMM (North West) for recording his confessional statement seeking pardon u/S 306 Cr.P.C. It is argued that the confessional statement of accused Chanshivroop Singh is admissible against the present accused persons under Section 30 of Indian Evidence Act. Reliance is placed upon Mohd. Khalid Vs State of West Bengal 2002 SCC (Cri.) 1734.
9. It is further argued that the date of birth of deceased victim is 13.12.1988 as per her High School Certificate. She was below 18 years of age when she was appointed as Cabin Crew in the MDLR Airlines Private Limited (in short MDLR) of which accused Gopal Goyal Kanda is Chairman cum Managing Director. She joined MDLR on 18.10.2006 as Trainee Cabin State Vs Gopal Goyal Kanda and others 4 Crew and was appointed Cabin Crew on 29.05.2007. Several benefits were given to her from time to time by way of promotion, increase in salary, appreciation letters etc during this period to keep her in MDLR. She was promoted as Senior Cabin Crew on 28.08.2008. On 30.06.2009 she was transferred to the Hotel business of MDLR Group. Thereafter, she had left the job and on 26.04.2010, she joined Emirates Airlines. After she joined the services with Emirates Airlines, accused persons hatched conspiracy to bring her back to MDLR. They had got issued 'No Dues Certificate' from MDLR to deceased victim signed by one Rajeev Prashar while he was not in the services of MDLR at the time of signing of No Dues Certificate. Subsequently, Chanshivroop Singh was authorized to represent MDLR in the inquiry which was initiated against deceased victim by Emirates Airlines. It is argued that five 'no objection certificates' in the name of deceased victim issued by MDLR were recovered by investigating agency from the house of deceased victim during investigation. These are no objection certificates dated 30.06.2009, 22.05.2010, 30.05.2010 and two such certificates are undated. It is argued that the accused Gopal Goyal Kanda visited thrice Dubai to pressurize the deceased to return to India and out of these three visits co-accused Aruna Chadha once accompanied him to pressurize deceased victim to leave the job with Emirates Airlines and rejoin MDLR, but when they were unsuccessful, inquiry was got initiated against deceased victim in the Emirates Airlines by making complaint to it and also by sending copy of complaint shown to be made to the SHO Police Station Civil Lines District Gurgaon, Haryana against deceased victim. This led to inquiry being conducted against deceased victim by Emirates Airlines and eventually she resigned from Emirates Airlines on 11.08.2010 and returned to India.
10. It is argued that when deceased victim after returning India still did not join MDLR, e-mail account was opened by accused Chanshivroop Singh in the name of Sheikh Bhasir Al Bhoram, Director Emirates Group being e-mail account, [email protected] in conspiracy with the present two State Vs Gopal Goyal Kanda and others 5 accused persons. From this e-mail account, one extradition letter dated 13.09.2010 allegedly issued by Justice Hassan Abdelaziz Musand to Mr. Sanjay Verma (The Consul General of India) Consulate General of India, P.O Box 737, Dubai, United Arab Emirates was transmitted to the e-mail account of deceased victim. The co-accused Chanshivroop Singh in his confessional statement u/S 164 Cr.P.C has confessed that this e-mail account was opened by him under threat from the present two accused persons so his confessional statement can be read against the present two accused persons by virtue of Section 30 read with Section 10 of the Indian Evidence Act. It is argued that deceased victim contacted one S.S. Katyal Advocate and his statement was recorded by investigating officer in which he has stated that he has drafted a letter at the instruction of deceased victim to one Sanjay Verma for ascertaining genuineness of the extradition letter received by her from Dubai by way of e-mail dated 01.10.2010 from said account [email protected] from Sheikh Bhasir Al Bhoram, Director Emirates Group. Therefore, deceased victim rejoining MDLR in January 2011 after her resignation from Emirates was under compulsion and pressure tactics were played by accused persons.
11. It is also argued that salary of deceased victim was doubled when she rejoined MDLR as Director. In the new appointment letter she was directed to report daily to the Chairman cum Managing Director of MDLR i.e accused Gopal Goyal Kanda. Her salary was increased to Rs. 50,000/- per month. She again resigned from MDLR on 25.12.2011. Therefore, all kinds of allurements and pressures were exerted by the accused persons in conspiracy with each other to compel deceased victim to rejoin MDLR against her wishes. These pressure tactics led her to commit suicide so charge u/S 306 read with Section 120-B IPC should be framed against these two accused persons. Reliance is placed upon Chitresh Kumar Chopra Vs State (Govt. of NCT of Delhi) AIR 2010 SC 1446 and Praveen Pradhan Vs State of Uttranchal & Anr Criminal Appeal No. 1589 of 2012 arising out of State Vs Gopal Goyal Kanda and others 6 SLP (Crl.) No. 2027 of 2012 decided by Hon'ble Supreme Court on 04th October 2012.
12. It is further argued that there is statement of Dr. Vishaka Munjal that deceased victim contacted her for abortion on 09.03.2012 and she was accompanied by accused Aruna Chadha. It is pointed out that the postmortem report of deceased victim shows that she was habituated to vaginal and anal penetration but during the course of arguments, Ld Special Public Prosecutor has stated that there is no direct allegation of sexual abuse of deceased by accused Gopal Goyal Kanda or her suicide was due to this sexual abuse.
13. It is argued that these two accused persons along with co-accused Chanshivroop Singh have hatched conspiracy and false documents were created to bring deceased victim back to India from Dubai by forcing her to resign from Emirates Airlines. The forged e-mail ID was prepared by Chanshivroop Singh in conspiracy with other two accused persons and forged extradition documents were prepared for which the charges u/S 120-B read with Section 466/471 IPC should be framed against them besides charge u/S 66 I.T. Act. It is also argued that for possession of forged affidavits, the accused persons can be charged u/S 120-B read with 474 IPC and for forgery of the complaint against deceased victim to SHO Civil Lines, District Gurgaon, Haryana which in fact was never received in the said police station which was used in the inquiry of Emirates Airlines against deceased victim, offences u/Ss. 120-B/466/468/469/471 IPC are attracted against the accused persons. The argument is that for issuance of forged no objection certificate of MDLR, the accused persons should be charged u/S 466/468/469/471 read with Section 120-B IPC. It is also argued that for destroying two mobile phones, the accused Gopal Goyal has committed offence u/S 201 IPC as these two mobile phones were not recovered despite police remand of accused taken by the investigating agency.
State Vs Gopal Goyal Kanda and others 7 ARGUMENTS ON BEHALF OF ACCUSED GOPAL GOYAL KANDA BY SH. RAMESH GUPTA SENIOR ADVOCATE ASSISTED BY SH. K.D. TYAGI ADVOCATE
14. The arguments on behalf of accused Gopal Goyal Kanda are that the complainant, the mother of the deceased had died so her statement u/S 164 Cr.P.C and the FIR got recorded by her cannot be used as substantive evidence and these should be discarded for the purpose of charges and also for other purposes. Even otherwise statement u/S 164 Cr.P.C are not substantive piece of evidence.
15. It is argued that there is no material on record to suggest that the object of alleged conspiracy between the two accused was that the victim should commit suicide. Had victim been unsuccessful in attempt to commit suicide then no offence could be alleged to have been committed by accused persons. There was no intentional aiding or abetting by accused persons for the commission of suicide by deceased victim. It is argued that when victim was offered job being minor her family members also knew that she was minor so on the same analogy, the family members of deceased victim are also abettors in her suicide. It is argued that in fact the father of deceased victim had booked a flat in Gurgaon. The installments were not paid leading to cancellation of its allotment so deceased was disturbed due to this fact. When deceased victim had left the job and joined MBA course, she was sponsored by MDLR. The family of deceased victim might have been annoyed as she left the job.
16. Some technical questions are also raised. It is argued that Section 120-B (1) IPC deals with cases of death penalty, imprisonment for life or rigorous imprisonment for a term of 2 years or upward. The offences alleged against accused persons are punishable with rigorous imprisonment or State Vs Gopal Goyal Kanda and others 8 simple imprisonment of the prescribed term of imprisonment so Sub Section (1) of Section 120-B IPC does not apply. For Section 120-B (2) IPC, there is no consent/sanction obtained u/S 196 (2) Cr.P.C. Thus, no charge u/S 120-B IPC can be framed.
17. Another technical question raised is that the alleged false/forged documents were found/recovered by investigating agency from District Gurgaon, Haryana and not in Delhi. The alleged extradition documents were also prepared in Gurgaon by co-accused Chanshivroop Singh with alleged conspiracy of present two accused persons at Gurgaon so this court has no jurisdiction to entertain the offences based on the documents recovered or prepared in District Gurgaon, Haryana. It is also argued that no case was pending in Dubai against deceased victim so offence u/S 466 IPC is not made out. The other technical ground is that due to the bar of Section 195(1)(b)(ii) and Section 196 (ii), the charges for the offence u/S 463 IPC or its aggravated forms cannot be framed against the accused person. Reliance is placed upon Dinanath Vs Hans Raj and anr 1974 Cr.L.J 198 J & K.
18. It is argued that Praveen Pradhan's case (Supra), Amit Kapoor's case (Supra) and Chitresh Chopra's case (Supra) relied upon on behalf of State are inapplicable to the present case. Instead Siddharth Vs State of Maharashtra (2011 2 AIR BOM R 658); Sanju @ Sanjay Singh Sengar Vs State of MP {2002 (2) RCR 687}; Ramesh Kumar Vs State of Chattisgarh (2002 SCC CRI. 1088); Madan Mohan Singh Vs State of Gujrat and anr {2010 (3) SCC (CRI.) 1048}; Ram Sarup Vs Ravi and others (2012 RCR (criminal) P & H 594); Bansi Lal Vs State of J & K {2001 (2) CCJ 592}; S S Chheena Vs Vijay Kumar Mahajan and anr. [2010 (12) SCC 190]; Ashok Rai @ Amit Vs State [2010 (3) RCR (CRIMINAL) 148 Delhi (DB)]; Avinash J. Mahale and ors Vs State of Maharashtra [2006 CRILJ 3123 BOM]; Deepak Vs State of M.P [1994 CRILJ 767 MP]; M.Mohan Vs The State represented by The DSP [2011 (2) JCC 1078 SC]; Roop Kishore Madan State Vs Gopal Goyal Kanda and others 9 Vs State [2001 CRILJ 1219 Delhi]; Gangula Mohan Reddy Vs State of AP [2010 (1) JCC 493]; Cyriac and anr. Vs The SI of Police [2005 (4) RCR (CRI) 525] apply to the present case.
19. It is argued that Section 32 of Indian Evidence Act is not applicable nor, Pakala Narayan Swami's case (Supra) and Patel Hiralal Joitaram's case (Supra) applicable due to different facts. The statement of absconder accused Chanshivroop Singh cannot be read u/S 30 of Evidence Act. When accused Chanshivroop Singh has himself fled, how it is his voluntary confession to be read against the present two accused persons. It is argued that in order that Section 30 of Evidence Act applies, the confession of one of the accused persons should be voluntary and he should be jointly tried with the co-accused persons. In the present case, accused Chanshivroop Singh has absconded so he cannot be said to be jointly tried with the accused persons, therefore, Section 30 of Evidence Act does not apply. Reliance is placed upon Hardeep Singh Sohal Vs State of Punjab through CBI 2004 (4) RCR (Cri) 688 SC and Mohd. Khalid Vs State of West Bengal 2002 SCC (Cri) 1734. It is argued that Section 10 of Indian Evidence Act also does not apply.
20. It is further argued that the affidavits were unsigned so these were only draft affidavits which were to be signed by respective deponent. The mere fact that these affidavits were attested by the Notary Public does not make these forged documents. The possession of the same does not attract Section 474 IPC. These unsigned affidavits cannot be used for any purpose so no offence can be alleged to have been committed by accused persons on the basis of these affidavits.
21. With regard to the alleged false/forged complaint to SHO P.S Civil Line, Gurgaon, the statement of ASI Sunder Singh only shows that this complaint was not entered in the receipt register but he has not stated that the stamp on State Vs Gopal Goyal Kanda and others 10 it or signatures of receipt on it are forged so no offence is committed with regard to the alleged complaint made to the SHO P.S Civil Lines, Gurgaon. Reliance is placed upon Dr. Vimla Vs The Delhi Administration AIR 1963 SC 1572 and Sheo Nandan Paswan Vs State of Bihar and others AIR 1987 SC 877.
22. It is argued that for framing charge the court is required to evaluate material and documents on record with a view to find out existence of all ingredients constituting the alleged offences. Reliance is placed upon Niranjan Singh Karam Singh Punjabi Advocate Vs Jitendra Bhimraj Bijja and others AIR 1990 SC 1962. It is argued that no case for framing charges against accused persons is made out. The broad test to be applied is whether the materials on record if unrebutted, make a conviction reasonably possible. Reliance is placed upon Yogesh @ Sachin Jagdish Joshi Vs State of Maharashtra (2009) 1 SCC (Cri.) 51. It is argued that on the question of framing of charge if two versions are equally possible then the view which supports the accused should be accepted by the court. Reliance is placed upon Ashok Kumar Nayyar Vs The State 2007 (2) JCC 1489 Delhi and Dilawar Balu Kurane Vs State of Maharashtra AIR 2002 SC 564. It is argued that at the stage of framing of charge, the court is not to see whether there is sufficient ground for conviction of accused nor mere suspicion is sufficient to frame charge. Only strong suspicion against accused may lead the court to think of framing charges against the accused. Reliance is placed upon State of Bihar Vs Ramesh Singh 1977 SCC (Cri.) 533. It is argued that criminal trial cannot be fishing or roving inquiry. The prosecution should not be allowed to make the accused face trial on the hope and expectation that some material may be found to implicate the accused. The criminal trial should be based on definite allegations, prima facie establishing commission of an offence by the accused which fact has to be proved by leading unimpeachable and acceptable evidence in the course of trial against the accused. Reliance is placed upon Satish Mehra Vs State of NCT of Delhi State Vs Gopal Goyal Kanda and others 11 and anr 2013 (1) Crimes 59. It is also argued that there cannot be any presumption in favour of prosecution in a criminal trial. The only presumption of criminal jurisprudence is with regard to innocence of the accused. The onus of proof the guilt of accused beyond any shadow of doubt is on the prosecution. Reliance is placed upon L.K. Advani Vs CBI 1997 I AD (Cr.) Delhi 684.
23. It is argued that allegations of forged documents are not related or connected to Section 306 IPC so it is a case of misjoinder of charges u/S 218 Cr.P.C. There is no material to attract charge u/S 201 IPC. Simply because recovery of mobile phones is not effected does not mean that accused persons have committed offence u/S 201 IPC. Even otherwise, accused cannot be charged for screening himself u/S 201 IPC. Reliance is placed upon Kudaon Vs. Emperor AIR 1924 Nag. 407 and State of Karnataka Vs Madesha and ors 2007 (3) JCC 2351. It is also argued that accused Aruna Chadha had also resigned on 30.08.2008 and rejoined the services with MDLR on 08.07.2010. There is insufficient material on record to frame any of the charges against the accused persons.
24. It is argued that accused Gopal Goyal Kanda is a religious person. When deceased victim joined MDLR it started earning profit so accused persons finding her a lucky employee wanted that she should remain with MDLR Group. There was no intention of accused persons that deceased victim should commit suicide. In the statement of Shirish Thorat of Emirates Airlines, he has stated that accused Gopal Goyal asked him not to cause any loss to deceased victim as she was child and had come after raising dispute with MDLR so the intention was only that deceased victim should rejoin MDLR. It is argued that before a document can be said to be forged document, the commission of forgery should be proved. There is difference between forged document and a document having false statement. No dishonest or fraudulent intention of accused persons is shown by the State Vs Gopal Goyal Kanda and others 12 prosecution for the purpose of framing charges u/S 463 or its aggravated forms. The affidavits relied upon by prosecution are rough drafts. These do not come within the definition of document u/S 29 of the Indian Evidence Act. It is argued that accused Gopal Goyal has purchased flat in the name of his daughter. The affidavit from the seller Anjuna Nagpal was not yet signed regarding use of the flat so this affidavit does not attract any offence of Section 463 IPC or its aggravated forms.
ARGUMENTS ON BEHALF OF ACCUSED ARUNA CHADHA BY SH. P.K. SANDHIR ADVOCATE
25. The arguments on behalf of accused Aruna Chadha are that it is a case of only one suicide note. The suicide note is on one page written on both sides of the paper which was found in the spiral diary of the deceased. The deceased took admission in MBA in IILM on 25.06.2012 so the date 04.05.2012 is wrong. It is either due to the deceased was writing suicide note on the night intervening 4/5.08.2012 and has forgotten to write month or because of accidental slip instead of "8" she has written "5" so there are no two suicide notes of two different dates but it is only one suicide note written by the deceased on both sides of the same page. It is argued that Dubai incident of joining Emirates and leaving it is of 2010 and has no connection with the suicide of the deceased. In 2009 deceased victim was transferred to Goa. She had dispute with one Ankita and Nupur the employees of MDLR working in the hotel there. Joint compromise application had already been filed by Ankita and Nupur and deceased victim in the criminal court in Goa but it was rejected thereafter a joint petition for quashing of proceedings was filed before Hon'ble High Court of Bombay and was pending there so there cannot be any pressure on the deceased victim on account of said criminal case. The direction for daily reporting to Chairman and Managing Director is part of the duty in such cases. Accused Gopal Goyal Kanda was Minister in State of Haryana so he needed appointment of a co-ordinator and for daily reporting State Vs Gopal Goyal Kanda and others 13 of the affairs of the company. In the FIR role of Aruna Chadha comes only when deceased victim rejoined in January 2011 after leaving Emirates Airlines. Aruna Chadha's lone visit to Dubai with co-accused Gopal Goyal is not strong evidence. The Dubai incident even otherwise is not relevant for suicide. The family of victim does not consist of rustic villagers and is educated family which knows pros and cons of every act. Both families of accused Gopal Goyal and that of victim used to meet each other and in January 2011 deceased victim joined MDLR as Director. Every time there was rejoining by deceased victim, her pay package was enhanced by MDLR. Both families went to Shirdi, Goa and on foreign trip together.
26. It is argued that the deceased victim continued visiting the office of MDLR upto June 2012 as per statement of prosecution witnesses Rajeev Prashar, mother of victim and 2 or 3 other witnesses. The father of victim has also stated that her daughter has joined MBA in June 2012 and left going to the office. From January 2011 to June 2012 there was no threat to the victim from either of the accused persons. There was also a deal of school regarding opening of school and purchase of Sandel Society. Deceased victim visited Singapore along with accused Gopal Goyal and Aruna Chadha for sponsorship and collaboration in April/May 2012. Deceased victim also visited Bombay with Aruna Chadha for this purpose. Upto May 2012, not only families exchanged visits with each other but deals were also being finalized with active participation of the victim. The deal of school was in April/May 2012 and abortion of deceased victim was in March 2012 in which accused Aruna helped her so accused Aruna was Saviour of deceased victim and from March to May 2012 victim kept visiting Dr. Vishaka. At that time, she was pregnant and still did not go for suicide.
27. It is argued that something wrong took place in July 2012. 15-20 days prior to incident, accused Aruna Chadha and victim had heated exchange of words and they stopped talking to each other. Accused Aruna Chadha had State Vs Gopal Goyal Kanda and others 14 telephonic conversation on 03.08.2012 with mother of the deceased and made some allegations regarding character of deceased victim. When mother of deceased confronted the deceased with the allegations against her character made by Aruna Chadha, according to statement of mother of deceased, deceased victim was taken aback and kept quiet. She has also stated in suicide note that her trust was betrayed indicating the allegations made by Aruna Chadha to the mother of the deceased. On account of the fact that in the meeting between the two families to be held two days afterwards, the allegations of Aruna Chadha would prove to be true and story of her abortion will be brought to the knowledge of the family of deceased, she committed suicide. She has also stated in her suicide note that she loves her mother, father and brother so she did not want to listen any allegation against her character in presence of her family members in forthcoming meeting which was reason for her committing suicide. The accused Aruna Chadha cannot be blamed for that. None of the two accused intended that deceased victim should commit suicide so they are entitled to be discharged.
REBUTTAL ARGUMENTS ON BEHALF OF STATE BY LEARNED SPECIAL PUBLIC PROSECUTOR SH. RAJIV MOHAN
28. In reply to the arguments on behalf of accused persons, Ld Special Public Prosecutor has argued that Hardeep Singh's case (Supra) relied upon by Ld counsel for accused is not applicable as it deals with Section 15 TADA. There is difference between Section 15 TADA and Section 30 of Indian Evidence Act. It is argued that Section 30 of Evidence Act comes amongst Sections 6 to 55 of Indian Evidence Act which deal with relevancy of evidence. It is argued that accused Chanshivroop is absconding now-a-days and he can be brought to face trial with the present two accused persons so his confessional statement can be taken into account by this court for the purpose of charges. It is argued that the probative value of confession of co- accused cannot be seen at the stage of charge.
State Vs Gopal Goyal Kanda and others 15
29. It is also argued that the fact that accused Chanshivroop is absconding does not mean that his confession is not voluntary. In the supplementary charge sheet, the investigating officer has indicated that the father of accused Chanshivroop helped him to leave the country. The CDR details of father of Chanshivroop and other family members show that the family members of accused Chanshivroop Singh and his father as well as surety were in constant touch with Vishnu Tantiya who is relative/close aid of accused Gopal Goyal Kanda and head of purchase/sale department of MDLR Group. It is also argued that from absconding of accused Chanshivroop, no benefit arises to prosecution or Chanshivroop. It is only the accused persons who are benefited and aided through their associates in leaving accused Chanshivroop from India. It may be that Chanshivroop was compelled to leave India on behalf of accused persons. The father of accused Chanshivroop filed a writ petition in the Hon'ble High Court of Delhi and crime branch investigation is directed by Hon'ble High Court in the said writ petition.
30. On the argument challenging jurisdiction of this court raised on behalf of accused persons, the contention of Ld SPP is that Section 179 Cr.P.C deals with offences triable by any court where the act is done or consequences have ensued. Even if some acts of preparing forged documents were done in District Gurgaon, Haryana, the consequence of suicide of deceased victim has followed in Delhi, therefore, the offences may be inquired into or tried by the court having local jurisdiction in Delhi.
31. On the question of bar of Section 195 (1)(b)(ii) Cr.P.C raised on behalf of accused persons, it is argued that since the alleged forgery regarding extradition documents and connected documents was not conducted after the documents were filed in the court, the said bar u/S 195 (1)(b)(ii) Cr.P.C is not attracted. Reliance is placed upon Iqbal Singh Marwah & anr Vs. Meenakshi Marwah & anr 2005 II AD (Cr.) S.C. 12.
State Vs Gopal Goyal Kanda and others 16
32. On the question of whether Sub Section (1) of Sub Section (2) of Section 120-B IPC is attracted, the argument is that the words "rigorous imprisonment for a term of two years or upwards" should be interpreted that besides the offences punishable with the capital punishment, life imprisonment, rigorous imprisonment or simple imprisonment of two years and above where the accused persons indulged in conspiracy of such offences, Sub Section (1) of Section 120-B IPC shall apply. Sub Section (2) according to Ld SPP would be attracted only in cases in which simple imprisonment upto 2 years is provided as punishment. It is argued that out of 511 Sections of Indian Penal Code, only 12 Sections speak about rigorous imprisonment which are S.194, S.376, S.376A, S.376C, S.382, S.392, S.393, S.397, S.398, S.399, S.401 and S.402, therefore, it cannot be said that scope of the important provision of conspiracy u/S 120-B IPC is limited to the offences punishable with death penalty, life imprisonment or rigorous imprisonment of two years and above in aforesaid twelve Sections of IPC.
33. It is argued that the statements of deceased Smt. Anuradha Sharma, the complainant, u/S 164 Cr.P.C, in FIR and her supplementary statements u/S 161 Cr.P.C are admissible u/S 80 of Indian Evidence Act so also u/S 32 (8) of Indian Evidence Act. It is argued that the conspiracy in itself is a substantive offence so separate charge u/S 120-B IPC should be framed against the accused persons. It is argued that since direct evidence in cases of conspiracy is generally not available, the hearsay evidence is also admissible to prove the conspiracy. The statement of family members of deceased is, therefore, admissible in evidence. Reliance is placed upon Kashmira Singh Vs State of Madhya Pradesh AIR 1952 SC 159, Firozuddin Basheeruddin and ors Vs State of Kerala (2001) 7 SCC 596. It is also argued that statements of Ms. Anuradha Sharma recorded during investigation of the case are admissible u/S 10 of Indian Evidence Act.
State Vs Gopal Goyal Kanda and others 17
34. It is argued that for the forgery of extradition document, offences u/S 466/471 IPC are attracted. For false and forged complaints to SHO P.S Civil Lines, Gurgaon which was never received in the said police station, the offences u/S 466 and 471 IPC are attracted and the presumption u/S 114 Illustration (a) of Evidence Act shall also apply here. For the forged affidavits of Anjuna Nagpal and deceased victim recovered from the office of accused persons, the offence u/S 474 IPC is attracted. The argument is that for issuance of forged no objection certificate of MDLR, the accused persons should be charged under Sections 466/468/469/471 read with Section 120-B IPC.
35. I have heard Ld Special Public Prosecutor Sh. Rajiv Mohan on behalf of State and Sh. Ramesh Gupta, Senior Advocate assisted by Sh. K.D. Tyagi Advocate, Kapil Sankhla Advocate and Sh. Rajiv Sirohi Advocate for accused Gopal Goyal Kanda, Sh. P.K. Sandhir Advocate for accused Aruna Chadha. I have also gone through the authorities cited from both sides, record of the case and also supplementary challan filed mainly against co-accused Chanshivroop Singh.
LEGAL POSITION FOR CONSIDERATION OF CHARGE
36. In Vinay Tyagi's case (Supra) relied upon by Ld Special Public Prosecutor decided recently by Hon'ble Supreme Court, it is held that expression "presuming" used in Section 228 Cr.P.C must be read ejusdem generis to the opinion that there is a ground. The ground must exist for forming the opinion that accused had committed an offence. Such opinion has to be formed on the basis of record of the case and the documents submitted therewith. The expression "presuming" in Section 228 Cr.P.C emphasizes that the court may believe that accused had committed an offence, if its ingredients are satisfied with reference to the record before the court. It was also observed that presumption is of a very weak and mild nature. It would State Vs Gopal Goyal Kanda and others 18 cover the cases where some lacunae has been left out and is capable of being supplied and proved during the course of trial. For instance, it is not necessary that at that stage each ingredient of an offence should be linguistically reproduced in the report and backed with meticulous facts. Suffice would be substantial compliance to the requirement of provisions.
37. The law on framing of charge can be cull out from Devender Nath Padhi's case (Supra), Satish Mehra's case (Supra), Vinay Tyagi's case (Supra) relied upon on behalf of State and Niranjan Singh Karam Singh's case (Supra), Yogesh's case (Supra), Ashok Kumar Nayyar's case (Supra), Dilawar Balu Kurane's case (Supra), L.K. Advani's case (Supra) and Ramesh Singh's case (Supra) relied on behalf of accused persons that the meticulous examination or fishing or roving inquiry into the incriminating material produced by the prosecution is not required for framing of charges against accused persons. The incriminating material produced, if unrebutted, attracts the ingredients of offences and such evidence if unrebutted would lead to conviction of the accused persons, the charges should be framed for the said offences. Even if strong suspicion that accused has committed the offences alleged against him arises from the material collected by investigating agency during investigation of the case then also charge should be framed against the accused. The probity of evidence cannot be judged at the stage of charge. If two views, one in favour of the accused and other in favour of prosecution are equally possible on the basis of material collected by investigating agency against accused persons during investigation of the case, benefit should go to the accused and the version in favour of the accused should be accepted in such cases.
LEGAL QUESTIONS RAISED
38. Some technical questions have been raised on behalf of accused persons touching Section 120-B (1)(2) IPC, Sections 196(2) and Section State Vs Gopal Goyal Kanda and others 19 195(1)(b)(ii) Cr.P.C, Section 164 Cr.P.C, Section 32 of the Indian Evidence Act besides challenging jurisdiction of this court. I take these technical questions one by one.
SUB SECTION (1) OR SUB SECTION (2) IPC READ WITH BAR UNDER SECTION 196 (2) CR.P.C APPLIES
39. The argument on behalf of accused persons is that Section 120-B (1) IPC deals with the criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards. In all other cases of conspiracy, Sub Section (2) will apply which is a minor offence punishable with imprisonment for a term not exceeding six months or fine or both. Since in the present case, the offences alleged against the accused persons are punishable either with rigorous or simple imprisonment and not essentially with rigorous imprisonment, the Sub Section (2) of Section 120-B IPC shall apply. In cases falling under Section 120B (2) IPC, there is bar for taking cognizance by the court under Section 196 (2) Cr.P.C without the consent in writing of State Government or District Magistrate for initiation of proceedings. In the present case, no such consent was obtained by the prosecution/investigating agency, therefore, no charge u/S 120-B IPC or of any other offence read with Section 120-B IPC can be framed against the accused persons.
40. On the question of whether Sub Section (1) of Sub Section (2) of Section 120-B IPC is attracted, the argument of Ld Special Public Prosecutor (in short SPP) is that the words "rigorous imprisonment for a term of two years or upward" should be interpreted that besides the offences punishable with the capital punishment, life imprisonment, rigorous imprisonment or simple imprisonment of two years and above, where the accused persons have indulged in conspiracy of such offences, Sub Section (1) of Section 120-B IPC shall apply. Sub Section (2) according to Ld SPP would be State Vs Gopal Goyal Kanda and others 20 attracted only in cases in which simple imprisonment upto 2 years is provided as punishment. It is argued that out of 511 Sections of Indian Penal Code, only 12 Sections speak about rigorous imprisonment which are S.194, S.376, S.376A, S.376C, S.382, S.392, S.393, S.397, S.398, S.399, S.401 and S.402, therefore, it cannot be said that scope of the important provision of conspiracy u/S 120-B IPC is limited to the offences punishable with death penalty, life imprisonment or rigorous imprisonment of two years and above. Reliance is placed upon Yash Pal Mital Vs. The State of Punjab AIR 1977 SC 2433.
41. The first question is whether Sub Section (1) or Sub Section (2) of Section 120-B IPC applies to the present case? It may be that only 12 Sections of Indian Penal Code speak about rigorous imprisonment as argued by Ld Special Public Prosecutor but I am unable to agree with him that the phrase "rigorous imprisonment for a term of two years or upward" should be interpreted that rigorous or simple imprisonment of two years or upward under Sub Section (1) of Section 120-B IPC and Sub Section (2) would apply to the cases in which simple imprisonment upto 2 years is prescribed. This interpretation on behalf of State does not seem to be proper. In Yash Pal Mital's case (Supra) the Hon'ble Supreme Court has held that since the object of the criminal conspiracy is cheating by personation under S. 419 I.P.C punishable with imprisonment which may extend to three years, S. 196- A (2) is no bar to the trial in absence of a sanction. It is to be noted that the offence Section 419 IPC is punishable with imprisonment of either description for a term which may extend to three years. This offence is not punishable for simple imprisonment alone and rigorous imprisonment upto 3 years can also be awarded to the accused found guilty under Section 419 IPC. Sub Section (1) of Section 120-B IPC would, therefore, not apply to an offence which is punishable with simple imprisonment only. Yash Pal Mital's case (Supra), therefore, does not support the arguments of Ld Special Public Prosecutor.
42. It is true, as argued by Ld counsel for accused Gopal Goyal Kanda, State Vs Gopal Goyal Kanda and others 21 the offences alleged against accused persons u/S 306/506/201/466/467/ 468/469/471/34 IPC except offence u/S 467 IPC are punishable with different terms of imprisonment of either description as indicated in these Sections. The offence u/S 467 IPC is punishable either with imprisonment for life or imprisonment of either description for a term which may extend to 10 years and fine. The words "imprisonment of either description" mean either rigorous imprisonment or simple imprisonment. Therefore, it cannot be said that rigorous imprisonment of two years or above cannot be awarded to the accused persons for the said offences, though, the option is there for awarding simple imprisonment in these Sections of IPC in case, the charges for the said offences are found to be made out against the accused persons and are proved by the prosecution in the trial. Yash Pal Mital's case (Supra) also supports this reasoning. Hence, Sub Section (1) of Section 120-B IPC, in my view, applies with full force to the above offences alleged against the accused persons in this case.
43. Obviously, Sub Section (2) of Section 120-B IPC is inapplicable so there is no hindrance for taking cognizance by the court of the present case without consent in writing of State Government or District Magistrate concerned as indicated in Section 196 (2) Cr.P.C for the simple reason that Section 196(2) Cr.P.C applies to Sub Section (2) of Section 120-B IPC while the present case pertains to Section 120-B (1) IPC.
BAR OF SECTION 195 (1)(b)(ii)
44. The next question raised is regarding bar of Section 195(1)(b)(ii) Cr.P.C with regard to alleged offences pertaining to documents/e-mail account [email protected] created by co-accused Chanshivroop in the alleged conspiracy with the present two accused persons for forging extradition documents of deceased victim pretended to be sent by Sheikh Bhasir Al Bhoram, Director Emirates Group along with extradition letter issued State Vs Gopal Goyal Kanda and others 22 by Justice Hassan Abdelaziz Musand to Mr. Sanjay Verma the (The Consul General of India) Consulate General of India, P.O Box 737, Dubai, United Arab Emirates and sending it to her by e-mail to pressurize her to join MDLR. Section 195(1)(b)(ii) Cr.P.C bars the court to take cognizance of any offence prescribed in Section 463 or punishable u/Ss. 471/475/476 IPC when such offences are alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court except on the complaint in writing of that court or authorized officer of the court or of any court of which the said court is subordinate. The contention of Ld Special Public Prosecutor that bar of Section 195 (1)(b) Cr.P.C would be attracted only against those documents which are forged in or during the proceedings before the court. This contention being supported by Iqbal Singh Marwah's case (Supra) needs to be accepted, therefore, the bar of Section 195(1)(b)
(ii) Cr.P.C, in my view, would not apply in the present case.
DYING DECLARATION
45. The next legal question on behalf of accused persons is that the suicide notes of deceased cannot be read as dying declaration u/S 32 (1) of the Indian Evidence Act, while according to Ld Special Public Prosecutor these are to be treated as such on account of the phrase in Sub Section 1 of Section 32 of Indian Evidence Act "circumstances of transaction". Reliance is placed upon Amit Kapoor's case (Supra) and Chitresh Chopra's case (Supra) wherein suicide notes were treated as dying declarations.
46. Reading two dying declarations of victim dated 04.05.2012 and 04.08.2012 relied upon by prosecution, it is clear that the reasons for committing suicide or putting herself to death by the deceased victim are indicated in it. Although, the facts of the present case are distinguishable with Pakala Narayana Swami's case (Supra) and Patel Hiralal Joitaram's case (Supra) as argued by Ld Senior Counsel for accused and it may not directly State Vs Gopal Goyal Kanda and others 23 apply to the present question but since Hon'ble Supreme Court in Amit Kapoor's case (Supra) and Chitresh Chopra's case (Supra) has treated the suicide notes as dying declarations of the deceased persons, the same view has to be followed in the present case. In the two suicide notes dated 04.05.2012 and 04.08.2012, the deceased had indicated the reasons/causes/circumstances due to which she was putting end to her life. There is no need for me for a detailed discussion on these circumstances mentioned in the suicide notes as the same shall be dealt with in the following relevant part of this order. But, in the light of Amit Kapoor's case (Supra) and Chitresh Chopra's case (Supra) and the reasons/ circumstances indicated in the two suicide notes, the same in my view should be treated as dying declaration under Section 32 (1) of Indian Evidence Act. Such dying declarations are treated as valuable piece of evidence in criminal trial where the cause of death of a deceased is fact in issue. Section 158 of Indian Evidence Act allows the production of evidence to prove all matters to contradict or corroborate the dying declaration. The prosecution has relied upon the statement of brother, mother and father of the deceased and also other evidence to corroborate with the dying declaration of deceased victim.
EFFECT OF DEATH OF COMPLAINANT
47. During the course of arguments, the admissibility of the statement of mother of the deceased victim namely Ms. Anuradha Sharma on the basis of which FIR was recorded in this case and her statement u/S 164 Cr.P.C are questioned on behalf of accused persons on the ground that Smt. Anuradha Sharma has unfortunately also allegedly committed suicide and is no more alive. The argument is that the only purpose for which the FIR and statement u/S 164 Cr.P.C of decesed Anuradha Sharma could be used in the trial is corroboration and contradiction and these statements are not substantive piece of evidence. Therefore, when she cannot step in the witness box and State Vs Gopal Goyal Kanda and others 24 accused persons will be deprived of to the opportunity to cross-examine her, her statement u/S 164 Cr.P.C and FIR recorded by her should be discarded for the purpose of consideration of charges against accused persons.
48. Ld Special Public Prosecutor, on the other hand, has argued that question of cross-examination will come at the stage of trial. For the purpose of charges, whatever material is collected by the investigating agency during investigation is to be looked into by this court. it is stated that her statement u/S 164 Cr.P.C, in FIR and supplementary statement u/S 161 Cr.P.C are admissible u/S 80 of Indian Evidence Act so also u/S 32 (8) of Evidence Act. It is argued whether the witness would appear in the witness box during trial and whether the prosecution is able to produce all witnesses or not in the court is a question which is to be looked into at the stage of trial and not at the stage of charge. Therefore, her statement u/S 164 Cr.P.C and FIR recorded by her can be looked upon and analyzed by the court for the purpose of determination of charges.
49. It is true as argued on behalf of accused persons that the statement u/S 164 Cr.P.C or the FIR based on the statement of a witness can be used for the purpose of corroboration or contradiction when the witness steps into the witness box. Section 80 of Indian Evidence Act makes the statement of Anuradha Sharma u/S 164 Cr.P.C or in the FIR entitled to the presumption that the said document containing her statements are genuine documents and the said documents may be admissible in evidence u/S 32 (8) of Evidence Act and can be proved by the prosecution. But, these documents suffer from the infirmity that accused shall not be afforded opportunity to cross-examine the witness on whose statement these documents are recorded. Technically speaking the argument of Ld Special Public Prosecutor that question of cross-examination is relevant to the stage of trial seems correct. At the stage of framing charge, the cross-examination of the witness which is yet to come in the trial, is immaterial. What is to be seen is the State Vs Gopal Goyal Kanda and others 25 statement of witnesses recorded u/S 161 Cr.P.C or 164 Cr.P.C during investigation of the case for the purpose of framing of charges besides other material collected during investigation. However, there can be no denial to the fact that the statement of a witness recorded by investigating officer or judicial authority during investigation of the case would lose much of the shine during trial for want of vital opportunity to cross-examine the witness in a case when the witness is already dead. Such a statement can only be proved to establish the fact that the deceased witness has given his/her statement and this statement as argued on behalf of accused persons cannot be used as substantive piece of evidence. However, the relevancy of the statement of witness in the FIR or before Metropolitan Magistrate u/S 164 Cr.P.C on the question of charges to be framed against accused persons cannot be disputed.
CONFESSION OF CO-ACCUSED
50. The next legal objection on behalf of accused persons is to the alleged confessional statement made by one of the co-accused Chanshivroop who sought pardon from the court of Ld ACMM (N/W) and gave confessional statement before Ld M.M. It is argued that the said confessional statement cannot be read as its maker Chanshivroop has absconded and has left the country. Therefore, the confessional statement was not voluntary. It is also argued that since Chanshivroop has absconded and would not be charged and tried together with the present two accused persons, this essential requirement of Section 30 of Indian Evidence Act is missing and the alleged confessional statement of accused Chanshivroop cannot be read against the present two accused persons. Reliance is placed upon Hardeep Singh Sohal's case (Supra) and Mohd. Khalid's case (Supra).
51. Ld Special Public Prosecutor, on the other hand, has argued that confessional statement of accused Chanshivroop is made before Ld State Vs Gopal Goyal Kanda and others 26 Metropolitan Magistrate and is a voluntary confessional statement as certified by Ld Metropolitan Magistrate so it should be taken into account for the purpose of allegation of conspiracy, forgery of documents and framing of relevant charges against accused persons on these counts. It is argued that Hardeep Singh's case (Supra) relied upon by Ld counsel for accused is not applicable as it deals with Section 15 TADA. There is difference between Section 15 TADA and Section 30 of Indian Evidence Act. It is argued that Section 30 of Evidence Act comes amongst Sections 6 to 55 of Indian Evidence Act which deal with relevancy of evidence. It is argued that accused Chanshivroop is absconding now-a-days and he can be brought to face trial with the present two accused persons so his confessional statement can be taken into account by this court for the purpose of charges. It is argued that the probative value of confession of co-accused cannot be seen at the stage of charge.
52. It is also argued that the fact that accused Chanshivroop is absconding does not mean that his confession is not voluntary. In the supplementary charge sheet, the investigating officer has indicated that the father of accused Chanshivroop helped him to leave the country. The CDR details of father of Chanshivroop and other family members show that the family members of accused Chanshivroop Singh and his father as well as surety were in constant touch with Vishnu Tantiya who is relative/close aid of accused Gopal Goyal Kanda and head of purchase/sale department of MDLR Group. It is also argued that from absconding of accused Chanshivroop, no benefit arises to prosecution or Chanshivroop. It is only the accused persons who are benefited and aided through their associates in leaving accused Chanshivroop from India. It may be that Chanshivroop was compelled to leave India on behalf of accused persons. The father of accused Chanshivroop filed a writ petition in the Hon'ble High Court of Delhi and crime branch investigation is directed by Hon'ble High Court in the said writ petition.
State Vs Gopal Goyal Kanda and others 27
53. In Hardeep Singh Sohal's case (Supra), the Hon'ble Supreme Court was dealing with the extra judicial confession of one of the accused persons. The case was under Terrorist and Deceptive Activities (Prevention) Act 1987 (in short TADA). In that case it was held that two conditions should be fulfilled before a confession of one accused can be relied upon against another accused. One of the conditions indicated in that judgment is that co-accused should have been charged in the same case along with the confessing accused and the second condition is that he should have been tried together with the confessing accused in the same case. It is also pertinent to note that the confession u/S 15 of the said Act can be made before a police officer and is admissible under TADA. Unlike the proviso to Sub Section (1) of Section 15 of TADA which requires that the confessor accused should be charged with and tried in the same case against the non confessing accused, the requirement u/S 30 of the Indian Evidence Act is only for the joint trial of the confessing and non confessing accused. Therefore, the accused in Hardeep Singh Sohal's case (Supra) was being tried for the offences u/S 302 IPC and offences under TADA and not for offences alleged against the accused persons in this case. The two essential conditions by virtue of proviso to Sub Section (1) of Section 15 of the TADA makes Hardeep Singh Sohal's case (Supra) distinguishable on the facts and law. In the present case, there is no requirement that the charges against the confessing and non confessing accused should be framed together before the confessional statement of the accused should be taken into consideration. Therefore, the essential requirement is only one i.e the joint trial of the accused persons. If the confessing accused is declared proclaimed offender or has absconded then assuming the charges are framed against the present two accused persons in which co-accused Chanshivroop has also a role due to conspiracy and the said accused is not present then by virtue of he being abscondor, the trial shall be deemed to be common as evidence/examination-in-chief to be recorded in this case against the present two accused persons can be specified to be read against absconding accused Chanshivroop u/S 299 State Vs Gopal Goyal Kanda and others 28 Cr.P.C and the latter accused shall be deemed to be tried together in the present case with the present two accused persons. Further, trial in this case is yet to begin. There is force in the arguments of Ld Special Public Prosecutor that accused Chanshivroop who presently has absconded can be brought to face trial with present two accused persons.
54. In Mohd. Khalid's case (Supra), the Hon'ble Supreme Court has emphasized upon the double test for deciding the acceptability of a confession i.e (i) whether the confession was perfectly voluntary and (ii) if so whether it is true and trustworthy. It was also held that the confessional statement of accused should affect himself and co-accused to attract Section 30 of Evidence Act. But, in Mohd. Khalid's case (Supra) the confession of co-accused or applicability of Section 30 Evidence Act was not under consideration of the Apex Court for the purpose of framing of charge. In the present case, the fact that confessional statement of co-accused Chanshivroop is recorded by Judicial Officer, the Metropolitan Magistrate concerned giving certificate at the foot of the confessional statement that it was a voluntary confession is prima facie sufficient to presume, for the purposes of question of charges, as voluntary confessional statement of co- accused Chanshivroop. The essentialites of voluntary confession can be looked in detail at the time of trial. The confessional statement of Chanshivroop by and large implicates himself as well as present two accused persons and shows conspiracy between them of making accused Chanshivroop as representative of MDLR at the behest of present two accused persons going to Dubai to appear in the inquiry against deceased victim which was conducted by Emirates Airlines against her on account of alleged false no objection certificate from MDLR produced by her. Accused Chanshivroop in his confessional statement has also admitted that he under pressure from the present two accused persons opened an e-mail account [email protected] in the name of Sheikh Bhasir Al Bhoram, Director Emirates Group and prepared extradition papers against deceased State Vs Gopal Goyal Kanda and others 29 victim and sent her e-mail about these forged documents. Therefore, the confessional statement of accused Chanshivroop, in my view, can be read against accused persons under Section 30 of the Indian Evidence Act and Mohd. Khalid's case (Supra) does not help the accused persons at the stage of charge.
JURISDICTION
55. The contention on behalf of accused persons is that the alleged forgery if any was committed in District Gurgaon, Haryana. The alleged recovery of alleged forged affidavits in this case was done in the office of accused persons in District Gurgaon and the alleged false e-mail account was opened by co-accused Chanshivroop in District Gurgaon and the e-mail regarding extradition documents was also sent by accused Chanshivroop from District Gurgaon to deceased victim in her e-mail account. The alleged forged complaint was made to SHO P.S Civil Lines, Gurgaon and was used in Dubai in Emirates Airlines inquiry. The alleged No Objection Certificate was issued in Gurgaon, office of MDLR and was used in said inquiry in Dubai so no charge on account of these alleged forged documents/e-mail account can be framed in Delhi Courts for want of jurisdiction.
56. Ld Special Public Prosecutor, on the other hand, has argued that Section 179 Cr.P.C deals with offences triable by any court where the act is done or consequences have ensued. Even if some acts of preparing forged documents were done in District Gurgaon, Haryana, the consequence of suicide of deceased victim has followed in Delhi, therefore, the offences may be inquired into or tried by the court having local jurisdiction in Delhi.
57. The question of jurisdiction is seen more by the act constituting offence(s) rather than the offence which is committed. In a case where prosecution relies upon number of acts, some of the acts constituting offence State Vs Gopal Goyal Kanda and others 30 may be done within the jurisdiction of one court and the other in the jurisdiction of another court. It may also be that out of the series of acts, some offences are committed within jurisdiction of one court in one District and others within the jurisdiction of another court in another District. In the present case the prosecution has come up with the allegations that the alleged forged documents/e-mail account were prepared in District Gurgaon for the purpose of pressurizing the deceased victim to rejoin duties with MDLR and these documents were used for this purpose in the inquiry by her another employer Emirates Airlines in Dubai also and the pressure exerted by accused persons on deceased victim by preparing these documents/e-mail account is one of the main circumstance which led to her committing suicide in Delhi. The provision of Section 179 Cr.P.C deals with such situation where act is done by accused persons within the jurisdiction of one Sessions Court and consequence ensued within the jurisdiction of another Sessions Court. The provisions of Section 179 Cr.P.C, therefore, indicates that in the present set of fact, though, the alleged forged documents/e-mail account were/was prepared/opened within the jurisdiction of Sessions Court in Gurgaon but some of these documents were used in Dubai in the inquiry against deceased victim by Emirates Airlines and the forged extradition documents etc were sent to deceased victim in her e-mail account when she was in Delhi and consequence of these documents and acts of accused persons led to her suicide which ensued in Delhi, therefore, both Sessions Court at Gurgaon and this Sessions Court in Delhi have concurrent jurisdiction to entertain and try the present case by virtue of Section 179 Cr.P.C. Hence, the jurisdiction of this court is not barred. The charges if framed also would not suffer by the infirmity of misjoinder of charges. Rather, since the present accused persons are involved in all the alleged charges, it would be convenient both for prosecution, investigating agency and accused persons that these charges are entertained by the same court having jurisdiction.
State Vs Gopal Goyal Kanda and others
31
THE OFFENCES OF FORGERY/MAKING FALSE DOCUMENTS/
ELECTRONIC RECORD
58. For the purpose of framing of charges under Sections 466/467/468/ 469/471 read with Sections 34/120-B IPC read with Section 66 I.T. Act, the prosecution has alleged that the accused persons made a false complaint to the police station Civil Lines and manipulated the stamp and signature in token of receipt on the copy of complaint made against deceased victim to be used against her in the inquiry by Emirates Airlines in Dubai. The two unsigned affidavits, one showing Anjuna Nagpal and other deceased victim as deponents were prepared with false attestation of the Notary Public Ms. Sushma Gupta which on confirmation from the said Notary Public were found to be forged documents which were recovered from accused persons. The accused persons in conspiracy with co-accused Chanshivroop have persuaded the opening of forged e-mail account Bhasir.emirates@ hotmail.com and sent forged extradition papers from court in Dubai to deceased victim. The other alleged forged document is the No Objection Certificate got issued by accused persons to deceased victim when she resigned from the job to join Emirates Airlines. The alleged No Objection Certificate was got issued by accused persons through employee of MDLR Monal Sachdeva and was shown to be signed by Sh. Rajeev Prashar while the said Rajeev Prashar was not in service of MDLR at the relevant time and this is alleged to have been done to make complaint with the new employer of deceased Emirates Airlines for pressurizing her to leave the job and join MDLR again.
59. The contention of Ld Special Public Prosecutor is that for the forgery of extradition documents, offences u/S 466/471 IPC are attracted. For false and forged complaints to SHO P.S Civil Lines, Gurgaon which was never received in the said police station, the offences u/S 466 and 471 IPC are attracted. For the forged unsigned affidavits of Anjuna Nagpal and deceased State Vs Gopal Goyal Kanda and others 32 victim recovered from the office of accused persons, the offence u/S 474 IPC is attracted. The argument is that for issuance of forged no objection certificate of MDLR, the accused persons should be charged u/S 466/468/469/471 read with Section 120-B IPC.
60. The arguments on behalf of accused persons are that the affidavits are unsigned and were draft affidavits. These do not come within the definition of document or valuable security so offence u/S 474 IPC is not attracted. It is argued that in the complaint to SHO P.S Civil Lines, it is not established that the stamp or signature of receipt of complaint are not genuine so the said complaint is not a forged document. The opening of false e-mail account by co-accused Chanshivroop and transmitting fake extradition documents to deceased victim do not attract any offence against accused persons as there is no incriminating evidence against accused persons except the confession of Chanshivroop in proceedings of pardon to him under Section 306 Cr.P.C. Regarding No Objection Certificate signed by one Rajeev Prashar, it is argued that deceased victim was found guilty by Emirates Airlines of using fake NOC so no charge can be framed against the present two accused persons or forging any document or using any forged document. Reliance is placed upon Dr. Vimla Vs The Delhi Administration AIR 1963 SC 1572 wherein it was indicated that "defraud" involved two elements - deceit and injury to the person deceived. When no injury is caused to the person deceived, the accused cannot be held guilty under Sections 467 and 468 IPC. Reliance is also placed upon Sheo Nandan Paswan Vs State of Bihar and others AIR 1987 SC 877 wherein the Chief Minister of a State anti-dated an order by overwriting but the concerned file did not leave his office, there was no evidence that anyone was unduly favoured or anyone secured undue advantage by use of overwriting, it was held that said Chief Minister was not guilty of offence as defined in Section 463 and punishable under Section 466 IPC.
State Vs Gopal Goyal Kanda and others 33
61. Reliance is also placed upon Ram Narayan Popli Vs CBI 2003 SCC (Cri.) 869 wherein following observations were made:-
"In order to constitute an offence of forgery the documents must be made dishonestly or fraudulently. But dishonest or fraudulent are not tautological. Fraudulent does not imply the deprivation of property or an element of injury. In order to be fraudulent, there must be some advantage on the one side with a corresponding loss on the other. Every forgery postulates a false document either in whole or in part, however small."
62. The two affidavits relied upon by the prosecution are unsigned by the respective deponents. The stamp and signature of Notary Public on it are alleged to be false. However, unless these two affidavits are signed, these cannot be used for the desired purpose. The prosecution has relied upon these affidavits to show that one of the affidavits was to be signed by deceased victim for which she was pressurized to come to the office to sign it. However, no wrongful gain is alleged to have been derived by the accused persons nor any wrongful loss is alleged to have been caused to any person by drafting these two unsigned affidavits. Therefore, in the light of Sheo Nandan Paswan's case (Supra) no offence prima facie can be said to have been committed in respect of these two affidavits which were to be signed by deceased victim and Anjuna Nagpal. These two affidavits also are not covered amongst the category of documents indicated u/S 466 and 467 IPC which is essential requirement of Section 474 IPC. Therefore, on the basis of these two unsigned affidavits, no prima facie offence u/S 474 IPC is made out against accused persons.
63. As regards the complaint made to SHO P.S Civil Line, although, the State Vs Gopal Goyal Kanda and others 34 statement of ASI Surender Singh from P.S Civil Line recorded u/S 161 Cr.P.C shows that the said complaint made against deceased victim was not entered in the receipt register of P.S Civil Lines. But, it is not stated by this witness that the stamp on the copy of complaint or the signature in token of receipt of the complaint were not of the police station Civil Line or any police official posted in the P.S Civil Line respectively. Therefore, it is not prima facie established that the seal of police station or signature of any police official/receipt clerk from the P.S Civil Line were forged by accused persons. The presumption under Illustration (a) of Section 114 of Evidence Act, in my view, does not apply here. The possibility of the accused making complaint to the police station and inaction on the part of concerned police official in entering the complaint in the receipt register cannot be ruled out. In the absence of any incriminating material collected during investigation either by way of FSL report or statement of any police official from P.S Civil Lines that the seal on the complaint dated 07.08.2010 is not of P.S Civil Lines or signatures in token of receipt of complaint are not of any police official from P.S Civil Lines, the charge of forgery is not prima facie made out against accused persons on the basis of said complaint, though, this complaint can still be used by the prosecution in support of the allegations that deceased deceased victim was pressurized to leave the job in Emirates Airlines to join the services in MDLR.
64. Regarding the false e-mail in the name of Sheikh Bhasir Al Bhoram, Director Emirates Group being e-mail account, [email protected] in conspiracy with the present two accused persons. From this e-mail account, one extradition letter dated 13.09.2010 allegedly issued by Justice Hassan Abdelaziz Musand to Mr. Sanjay Verma (The Consul General of India) Consulate General of India, P.O Box 737, Dubai, United Arab Emirates was transmitted to the e-mail account of deceased victim. The confessional statement of co-accused Chanshivroop which is admissible under Section 30 of Indian Evidence Act against the present two accused persons suggests State Vs Gopal Goyal Kanda and others 35 that all these three accused persons in conspiracy with each other have prepared the above forged e-mail account and the e-mail of extradition documents was sent to deceased victim to pressurize her to join services with MDLR. Not only forged extradition letter pertaining to court of Dubai was created but this along with other forged documents was sent to deceased victim by accused Chanshivroop. Therefore, both offences u/Ss. 466 and 471 read with Section 120-B IPC are attracted against the two accused persons. In addition computer related offence for dishonestly or fraudulently doing the act referred in Section 43 of The Information Technology Act, 2000 is also committed by accused persons in conspiracy with each other.
65. Regarding the No Objection Certificate dated 22.05.2010 alleged signed by Sh. Rajeev Prashar which was issued to deceased victim through one Monal Sachdeva, an employee of MDLR and was got prepared by the present two accused persons. This No Objection Certificate bore signatures of one Rajeev Prashar who was not in the pay roll of MDLR during the period from 07.11.2009 to 14.06.2010. Therefore, according to prosecution, this No Objection Certificate was issued with malafide intention so that in future accused Gopal Goyal Kanda could easily disown the No Objection Certificate and blame deceased victim for the forgery. This No Objection Certificate is typed on the letter head of MDLR. Deceased victim used this No Objection Certificate for getting employment in Emirates Airlines believing it to be genuine document. During the investigation of the case, the investigating officer has recorded the statement of Sh. Rajeev Prashar who has denied having signed the No Objection Certificate and has stated that his signature on No Objection Certificate was forged. He and Monal Sachdeva had given their specimen signatures to the investigating officer for comparison with the signatures on No Objection Certificate. This No Objection Certificate eventually led to an inquiry against deceased victim by Emirates Airlines on the complaint of accused Gopal Goyal Kanda and deceased victim had to resign from the Emirates Airlines. Therefore, this No Objection Certificate State Vs Gopal Goyal Kanda and others 36 was got prepared by the two accused persons through the employee Monal Sachdeva in pursuance of conspiracy to make complaint against the employer of deceased victim so that she may leave the job and rejoin MDLR and also for harming her reputation. Therefore, prima facie offences under Sections 468/469 read with Section 120B IPC are attracted against the accused persons.
SCREENING THE OFFENDER-SECTION 201 IPC
66. Based on Kuadon's case (Supra) and Madesha's case (Supra), the argument of Ld senior counsel for accused Gopal Goyal Kanda is that for non recovery of mobile phones being used by the accused and their SIM cards, no charge under Section 201 IPC can be framed against the accused persons. It is argued that Section 201 IPC does not apply to the screening of the accused himself and it applies to a case where the screening of another known or unknown person is done by the accused. The argument has force in the light of Kuadon's case (Supra) and Madesha's case (Supra) relied upon by ld counsel for accused. Even otherwise non recovery of mobile phones or other articles from accused Gopal Goyal Kanda, in my view, does not lead to framing of charge under Section 201 IPC against him, as sought by the prosecution.
ABETMENT OF SUICIDE
67. Ld. Special Public Prosecutor has argued that the accused persons in conspiracy with each other have either pressurized and forced the deceased victim to rejoin duties with MDLR whenever she has left the job or accused Gopal Goyal Kanda has also showered monetary benefits and promotions to the deceased victim from time to time so that she remains with MDLR. The arguments on behalf of State are already given before and on the basis of the same, Ld Special Public Prosecutor wants charge under Section 306 IPC State Vs Gopal Goyal Kanda and others 37 read with Section 120B IPC should be framed against the accused persons. Reliance is placed upon Chitresh Kumar Chopra's case (supra), Praveen Pardhan's case (supra).
68. The contention on behalf of accused persons is already recorded before, separately, under two different headings and they have relied upon Siddharth's case (Supra), Sanju @ Sanjay Singh Sengar's case (Supra), Ramesh Kumar's case (Supra), Madan Mohan Singh's case (Supra), Ram Sarup's case (Supra), Bansi Lal's case (Supra), S.S Chheena's case (Supra), Ashok Rai @ Amit's case (Supra), Avinash J. Mahale's case (Supra), Deepak's case (Supra), M Mohan's case (Supra), Roop Kishore Madan's case (Supra), Gangula Mohan Reddy's case (Supra) and Cyriac's case (Supra).
69. I have carefully heard the respective arguments and have perused the authorities cited from both the sides.
In Roop Kishore Madan's case (Supra) the alleged suicide note of a sexual exploited woman by a married man (accused) was in question. In that suicide note the victim woman was a consenting party to her sexual exploitation by a married man and ultimately out of frustration she committed suicide. In the present facts and situation of the present case it cannot be said that victim was a consenting party so due to this distinction the Roop Madan's case (Supra) does not fit to the present facts and circumstances of the case to help the accused persons.
70. In Sanju's case (Supra) the quarrel took place between the accused and deceased and accused has told the deceased "to go and die" and deceased committed suicide leaving suicide note. But, in the present case, there is no material that the victim was asked to go and die by the accused so this authority also does not directly apply to the present application.
State Vs Gopal Goyal Kanda and others 38
71. In Ramesh Kumar's case (Supra) the allegations were against the husband that he abetted and instigated the suicide by his wife. In her dying declaration to the Executive Magistrate the deceased woman has stated that there was quarrel with her husband accused who had said that she could go wherever she wanted to go so this statement of accused husband that she may go wherever she wanted to go was not considered to be sufficient as instigation or abetment of committing suicide by the wife. There is no such similar facts and circumstances in the present case so Ramesh Kumar's case (Supra) is also not applicable.
72. In Bansi Lal's case (Supra), the deceased committed suicide on account of the male and female members of accused's family used to describe her as an ill character lady and this alleged character assassination was not found sufficient to attract Section 306 IPC. But, it is to be seen that in Bansi Lal's case (Supra), the only allegation against accused persons in the suicide note was character assassination of the deceased by the accused and his family while in the present case a number of circumstances have been relied upon by the prosecution to show that deceased was either motivated by giving her out of turn promotions and financial benefits and also whenever she left the job she was pressurized by accused persons to return to MDLR, therefore, Bansi Lal's case (Supra), is distinguishable on facts. Similarly, the other authorities relied upon on behalf of accused persons are entirely distinguishable on facts of this case and some of them even do not deal with the question of framing of charge. Therefore, the same do not help the accused persons. The same is the position of the authorities relied upon on behalf of State, therefore, the facts and circumstances of the case needs to be analyzed with close scrutiny to know whether any prima facie case under Section 306 IPC made out against the accused persons.
73. The prosecution has relied upon the following circumstances to show that deceased victim was given undue favour by her appointment and given State Vs Gopal Goyal Kanda and others 39 monetary benefits and out of turn promotion from time to time so that she may remain in the employment of MDLR Airlines and whenever she left the job she was forced to join MDLR Airlines. These circumstances are given below:
a). In the suicide notes dated 04.05.2012 and 04.08.2012, deceased victim has specifically named accused Gopal Goyal Kanda and Aruna Chadha as the persons responsible for driving her to commit suicide.
b). She joined as Trainee Cabin Crew in MDLR Airlines vide appointment letter dated 18.10.2006 when she was below 18 years of age.
c). Vide letter dated 28.08.2008 she was promoted as Senior Cabin Crew after she received an appointment letter from Kingfisher Airlines. The purpose of her promotion was that she should not leave MDLR to join Kingfisher Airlines.
d). Vide letter dated 31.03.2009 her services were re-designated and duties were relocated and she was made coordinator of MDLR Group and was asked to report on daily basis to accused Gopal Goyal Kanda, Chairman and Managing Director of MDLR Group.
e). She resigned from MDLR Group on 22.05.2010 and joined Emirates Airlines on 29.06.2010 and worked there upto 12.08.2010.
f). The accused Gopal goyal Kanda made complaint to Shirish Thorat of Emirates Airlines on 10.08.2010 by e-mail stating that deceased victim has produced fake documents of clearance from MDLR for obtaining employment in Emirates Airlines.
g). Co-accused Chanshivroop was sent to Dubai to represent MDLR in an State Vs Gopal Goyal Kanda and others 40 inquiry against deceased victim. He besides informing that deceased victim had taken employment on the basis of fake NOC from MDLR has also made allegations that she has obtained loan of Rs.5 lakhs from MDLR Airlines while no complaint about this loan was made to the police or any civil proceedings initiated by MDLR against deceased victim on this count.
h). In the inquiry deceased victim was asked by Emirates Airlines to obtain fresh NOC. She was informed by MDLR that fresh NOC can be issued in one or two hours if she resigns from her job in Emirates Airlines.
deceased victim resigned from the job of Emirates Airlines and returned to Delhi on 11.08.2010.
i). Even after her return to Delhi in 2010 she did not join MDLR.
Therefore, accused persons hatched the conspiracy and accused Chanshivroop opened a fake email account in the name of Sheikh Bhasir Al Bhoram, Director Emirates Group being e-mail account, Bhasir.emirates @hotmail.com. From this e-mail account, one extradition letter dated 13.09.2010 allegedly issued by Justice Hassan Abdelaziz Musand to Mr. Sanjay Verma (The Consul General of India) Consulate General of India, P.O Box 737, Dubai, United Arab Emirates was transmitted to the e-mail account of deceased victim.
j). Deceased victim tried to get verification of the extradition documents from Dubai by sending e-mail dated 07.10.2010 to one Mr. Bhatti of Emirates Airlines. Another e-mail was sent by her to Ms. Hanan Yusuf seeking authenticity of Sheikh Bhasir Al Bhoram claiming to be Director of Emirates Group on 06.10.2010. She also approached Sh.S.S. Katyal, Advocate and had shown him the said extradition letter addressed to one Sanjay Verma and on her instructions Sh. S.S. Katyal, Advocate drafted the reply for verification of genuineness of State Vs Gopal Goyal Kanda and others 41 said extradition documents which is saved in the computer of Sh. S.S. Katyal, Advocate.
k). As per statement of mother of deceased victim and as per statement of other family members accused Gopal Goyal Kanda came with his wife to the house of deceased victim. He apologized and touched the feet of her mother for making a false complaint against deceased victim in PS Civil Lines, Gurgaon and offered the job of Director with higher salary of Rs. 60,000/- per month in MDLR.
l). Vide appointment letter dated 13.01.2011, deceased victim was appointed as Director at Corporate Office of MDLR. She was to report daily to Gopal Goyal Kanda being Chairman cum Managing Director of MDLR.
m). Deceased victim again resigned from the job in 25.12.2011. Even after she resigned from the job, she had to attend the office of MDLR at Gurgaon upto June 2012 as per statement of some of the prosecution witnesses including Anuradha Sharma, Dinesh Kumar Sharma, Ankit Sharma and Rajeev Prashar.
n). She joined MBA class on 25.6.12 in ILLM. Sponsorship of Rs. 9 lakhs was given by MDLR to her for this purpose.
o). She was offered the job of President of Sundale Educational Society with accused Aruna Chadda as its Secretary to run a school. She was telephonically pressurized by the accused persons to sign the documents/ affidavit pertaining to this society but she did not want to do it. According to the statement of her family members she did not want to sign the documents of this society as she apprehended that accused persons would do some violations of law and she would be State Vs Gopal Goyal Kanda and others 42 held responsible for the same later on.
p). The mother of the deceased in the FIR has stated that whenever the telephone of accused Gopal Goyal Kanda was received in the house, deceased victim used to become very much disturbed. She used to tell repeatedly to her mother that Gopal Goyal Kanda is not a good person and he used to mentally harass her telephonically.
q). When deceased victim was working in Emirates Airlines accused Gopal Goyal Kanda used to telephonically call her mother seeking return of deceased victim from Dubai by alleging that Dubai is not a good country and Mohammedans live there.
r). The complainant mother of the deceased has stated in the FIR that accused Gopal Goyal Kanda himself and through accused Aruna Chadha used to pressurize deceased victim to join office of MDLR. After listening to the telephone, her daughter deceased victim used to become much tensed. She also has stated that her daughter was compelled to commit suicide due to continuous mental pressure exerted by Gopal Goyal Kanda and Aruna Chadha on her.
s). Accused Gopal Goyal Kanda went to Dubai twice to pressurize deceased victim to return to India. Third time he on 14.7.2012 went to Dubai with co-accused Aruna Chadha to pressurize deceased victim to returned to India.
t). The accused pressurized to compromise the theft case lodged by her against two co-employees Nupur Mehta and Ankita but the compromise was not accepted by Ld. Magistrate in Goa where the case is pending. Thereafter, the deceased victim was pressurized by accused persons to file joint petition for quashing of proceedings State Vs Gopal Goyal Kanda and others 43 before Bombay High Court.
u). Accused Gopal Goyal Kanda pressurized builder company M/s Universal Builders for cancellation of allotment of flat and got issued cancellation letter dated 03.08.12 informing the cancellation of the booking of the deceased victim's father's flat despite the fact that deceased victim's father had already paid a total amount of Rs.18 lakhs on different dates from his account to the said builder. The influence of accused Gopal Goyal Kanda over Universal Builders is prima facie established by investigating police by seizure of Memorandum of Understanding from the Farm House at Gurgaon.
v). The accused Aruna Chadha had a talk with the mother of deceased victim, the complainant, for 999 seconds on 03.08.2012 to pressurize her to send deceased victim to the office of MDLR to sign documents. Accused Aruna Chadha also levelled allegations against character of deceased victim.
w). On 04.08.12 accused Gopal Goyal Kanda had a telephonic talk with Anuradha Sharma, mother of the deceased for 980 seconds and he also pressurized her to send deceased victim to the office to sign documents and misbehaved with her on phone and confirmed the allegations made by co-accused Aruna Chadha against deceased victim. He threatened to lodge FIR in Gurgaon police station against deceased victim regarding fabricated allegations against deceased victim . if she did not join back MDLR Airlines.
x). Anuradha Sharma, the mother of deceased victim informed her about allegations made by Aruna Chadha and Gopal Goyal Kanda against her character and on listening the same, deceased victim became extremely distressed and depressed.
State Vs Gopal Goyal Kanda and others 44 y). The deceased victim was asked to return the sponsorship amount of Rs.9 lakhs given by MDLR for her joining MBA classes in IILM with the purpose of exerting pressure on her to return to MDLR.
74. The contention on behalf of State is that above listed circumstances pertaining to giving monetary benefits, promotions and pressurizing deceased victim to join duties with MDLR and allegations against her character made to her mother by accused persons have led her to commit suicide. The arguments on behalf of accused persons are that giving of promotions or alleged pressures exerted on deceased victim cannot be said to be done by accused persons with the motive that deceased victim should commit suicide. Therefore, no prima facie case under Section 306 IPC is made out.
75. The facts and circumstances of the case needs to properly scrutinized to come to a truthful prima facie conclusion about the real cause of commission of suicide by the deceased victim. The above circumstances regarding showering benefits of promotions or monetary benefits to deceased victim cannot be said to be a reason for her to commit suicide as argued by Ld Counsel for accused persons nor the pressure exerted on her to join duties with MDLR if considered in isolation or in combination with the benefits showered to her looks to be sufficient to conclude that she committed suicide due to this reason.
76. The arguments of Ld counsel for accused Aruna Chadha are a bit eye opener and he has, in my view, touched partially the correct reason for deceased committing suicide when he argued that when deceased victim did not want that her family should know about her abortion and correctness of allegations on her character made by accused persons to her mother telephonically, when families of both accused Gopal and deceased victim were to meet shortly a day after to sort out the problems. It needs to be State Vs Gopal Goyal Kanda and others 45 ascertained from the material collected during investigation of the case as to what was the reason that despite the benefits of different kinds being showered on deceased victim, she did not want to join MDLR or was leaving it again and again and was pressurized again and again by accused persons to return. I have carefully gone through the suicide note, evidence collected during investigation of the case by the police, the medical record, statements of witnesses to prima facie gather the truth. The circumstances 'a' to 'y' above relied upon by prosecution look to be part of the story and half hearted revelation of true facts. These are unable to justify findings of Medical Board in postmortem report and statement of gynecologist Dr. Vishaka Munjal. The facts of the case need proper scrutiny to know whether prima facie case for sexual exploitation of deceased exists. Therefore, the question whether prima facie case exists or not against the two accused persons for framing charge under Section 306 IPC in this case can only be ascertained after forming opinion as to whether or not accused persons were sexually exploiting the deceased. The facts in this regard, available on record, need to be seen to prima facie form opinion in this regard.
SEXUAL EXPLOITATION
77. The postmortem report of deceased victim conducted by Medical Board consisting of Dr. Sreenivas M., Associate Professor, Forensic Medicine, Maulana Azad Medical College (Chairman), Dr. Mumtaz Khan, Senior Specialist, Obstetrics & Gynecology, Lok Nayak Hospital (Member), Dr. Vijay Dhankar, Junior Specialist, Forensic Medicine, Dr. BSA Hospital (Member) and Dr. Bhim Singh, Junior Specialist, Forensic Medicine, BJRM Hospital (Member), though shows that the cause of death of deceased victim was hanging, a commendable job is done by the Medical Board consisting of eminent doctors of four different reputed government hospitals situated at different places in Delhi. The scanned copy of the postmortem report is as follows:-
State Vs Gopal Goyal Kanda and others 46 State Vs Gopal Goyal Kanda and others 47 State Vs Gopal Goyal Kanda and others 48 State Vs Gopal Goyal Kanda and others 49 State Vs Gopal Goyal Kanda and others 50 State Vs Gopal Goyal Kanda and others 51 State Vs Gopal Goyal Kanda and others 52 State Vs Gopal Goyal Kanda and others 53 State Vs Gopal Goyal Kanda and others 54 State Vs Gopal Goyal Kanda and others 55 State Vs Gopal Goyal Kanda and others 56 State Vs Gopal Goyal Kanda and others 57 The gynecological examination of the body of deceased victim by Medical Board is as under:-
"Gynecological examination:
Vaginal orifice: Remnants of hymen present as tags of epithelialisation at the rim of a vaginal orifice, signs of old hymen rupture with healing. Recent mucosal excoriations with reddened base in an area of 0.3 cm x 0.4 cm were present at the vaginal introitus posteriorly at 6'o clock position. Swabs were taken from the vagina, slides were prepared and air dried. The slides and swabs were sealed and handed over to the I.O. Slight amount of mucoid discharge was present in the vaginal canal near the orifice. Two fingers could be passed easily into the vagina. No fresh injuries could be appreciated.
The body was put in left lateral position and the thighs flexed at the hips to examine the anal orifice and canal.
Anal orifice: Brownish stool present in and around the anal canal. The anal orifice appears dilated and patulous with keratinisation of the mucosal wal beyond the anal verge. A healing mucosal tear sized about 0.6 cm x 0.4 cm with areas showing grayish white fibrosis admixed with area of reddening were present at the posterior part of anal orifice at 12'o clock position.
The anal canal is visible on applying lateral traction at the orifice; inside of anal canal shows absence of radial folds (rugae), with smooth and pale appearance of anal mucosa. No fresh injuries could be appreciated. Swabs were taken from the anal canal, slides were prepared and air dried. The slides and swabs were sealed and handed over to the I.O. The findings suggest that the deceased was habituated to vaginal and anal penetration."
78. The medical board returned the finding on 06.08.2012 that deceased was habituated to vaginal and anal penetration. The supplementary statement of accused Aruna Chadha was recorded by SHO P.S Bharat Nagar on 10.08.2012. In this supplementary disclosure statement accused Aruna Chadha has indicated that deceased victim had multiple pregnancies from accused Gopal Goyal Kanda and these pregnancies were got terminated. Scanned copy of disclosure statement of accused Aruna Chadha is given as follows:-
State Vs Gopal Goyal Kanda and others 58 State Vs Gopal Goyal Kanda and others 59 State Vs Gopal Goyal Kanda and others 60
79. There is also statement of Dr. Vishaka Munjal of Medi Clinic E-16 (Basement) Lajpat Nagar-III, New Delhi. She has stated to the investigating officer on 12.08.2012 that deceased victim was brought before her by accused Aruna Chadha on 09.03.2012. She had early pregnancy and wanted to get it terminated by taking pills as she was unmarried. She aborted successfully with pills. She again visited her on 14.05.2012 for her routine gynecological check up for the symptoms of lower abdominal pain and burning in urine. She (Dr. Vishaka Munjal) gave her symptomatic treatment for that. She lastly visited her on 19.06.2012.
80. It appears that taking cue from the postmortem report dated 06.08.2012 the investigation progressed towards ascertaining sexual exploitation of the deceased. The disclosure statement of accused Aruna Chadha was recorded on 10.08.2012. The statement of Dr. Vishaka Munjal was also recorded on 12.08.2012. Thereafter, it appears that for the reasons best known to investigating agency further investigation in this direction has not been conducted to collect further evidence. On the bail application of accused Gopal Goyal Kanda, the report of above private gynecologist came to notice of this court that the deceased visited the clinic of the said doctor on 09.03.2012 when she was pregnant and postmortem report also indicated that deceased was habituated to vaginal and anal penetration so it was indicated in the order dated 20.09.2012 by this court by dismissing the bail application of accused Gopal Goyal Kanda that the matter requires investigation whether victim declined to join the services with the accused or was being pressurized to join it for the purpose of her sexual abuse or not.
Still, the investigating agency has chosen not to unearth further circumstantial or other credible evidence on this aspect to reach the truth. The investigation on this aspect of the case looks tainted and stinking.
81. Ld Special Public Prosecutor during the course of arguments has stated that there were no evidence to link the suicide of deceased victim with State Vs Gopal Goyal Kanda and others 61 sexual exploitation by accused Gopal Goyal Kanda. His statement may be partially true on account of the fact that there is no eye witness account or direct statement of any witness alleging sexual exploitation of deceased by accused Gopal Goyal Kanda. On account of above statement of Ld Special Public Prosecutor, there is no argument on this point from the side of accused persons also except the contention of Ld Counsel for accused Aruna Chadha who has partially touched in the arguments this aspect, as stated before.
82. The reality is that it is the State who is playing three important roles in the criminal justice system. It plays the executive role of police to investigate the criminal cases then it acts as prosecutor to prosecute the offenders and it also acts as court being impartial arbiter to bring the offenders to justice. The impartiality is inherent attribute of the courts. In the light of the findings of the above postmortem report that deceased was habituated to vaginal and anal penetration and the evidence of private gynecologist Dr. Vishaka Munjal regarding termination of early pregnancy of the deceased, the judicial conscience of this court does not permit to shut its eyes to this important aspect of this case, so the facts and circumstances, in my view, needs to be evaluated to come to a truthful prima facie opinion about this most important circumstance of the case notwithstanding the fact that State as investigating officer/police has abruptly stopped investigation on this important aspect of sexual exploitation of deceased after some above stated initial efforts and State as prosecutor also did not help this court by addressing arguments on this aspect and thereby compounded the lapse on the part of investigating police. In such a situation, State as impartial arbiter/court must act sensibly to instill credibility and avoid erosion of public faith in the criminal justice delivery system of State.
83. I find the following incriminating material against accused persons in this case which has been collected during investigation:-
(i). Finding in the postmortem report that deceased victim was habituated State Vs Gopal Goyal Kanda and others 62 to vaginal and anal penetration. In her suicide note dated 04.08.2012 indicating about the accused Gopal Goyal Kanda and Aruna Chadha, deceased victim has stated that "they have made my life abnormal". This sentence used by her possibly explains the above finding of the medical board in the postmortem report and directly links her sexual abuse to the accused persons.
(ii). Accused Aruna Chadha took deceased victim to Dr. Vishaka Munjal on 09.03.2012 and she was pregnant at that time for termination of her pregnancy of about 5-6 weeks. This circumstance attributes knowledge of accused Aruna Chadha of sexual assault/ exploitation of deceased victim.
(iii). In the supplementary disclosure statement dated 10.08.2012 of accused Aruna Chadha, she has alleged that accused Gopal Goyal Kanda had illicit relationship with deceased victim. As a result of said relationship, deceased victim had multiple pregnancies. She had undergone medical termination of such pregnancies on different occasions on the instance of Gopal Goyal Kanda. She has also stated that deceased victim was asking for solemnization of marriage which was avoided by Gopal Goyal Kanda on one pretext or the other and since the marriage was not solemnized deceased victim was not willing to meet Gopal Goyal Kanda and Gopal Goyal Kanda was pressurizing her to return. She (Aruna Chadha) could point out the places where pregnancies were medically terminated.
(iv) In suicide note dated 04.05.2012, deceased victim has indicated that accused Gopal Goyal Kanda always keeps his bad intentions towards girls. He is a man of no shame and no guilt. He has illegal relationship with a woman named 'Ankita' and a girl child also with her.
State Vs Gopal Goyal Kanda and others 63 Still he keeps on hitting on girls. He is shameless and worst man I have ever seen in my life. In the name of relationships, trust, God, he cheats people and harasses. He always lies, he lies to his family, kids, people around everyone. Now this time Aruna is also helping him to hurt her (deceased victim), harass her, sabotage her family. It is to be noted that deceased victim has not talked about her pregnancy from accused Gopal Goyal Kanda and about termination of her pregnancies in her suicide note. The statements of her family members are silent about this aspect. Obviously, since she committed suicide at her home she did not want to embarrass her family members even after her death by disclosing true facts as to how she was habituated to vaginal and anal penetration. The argument of Ld counsel for accused Aruna Chadha that she committed suicide as she did not want that her family members should know about termination of pregnancies seems to be partially correct and itself runs against the accused persons.
(v) In the finding of the inquiry officer conducted by Emirates Airlines on the complaint of accused Gopal Goyal Kanda about deceased victim using fake No Objection Certificate of MDLR to get employment with Emirates Airlines, in the final report of investigating unit by Joss D'Silva dated 12.08.2010, it is indicated in para no. 3.2 that deceased has attempted to justify her deception by quoting personal harassment by her former CMD MDLR (i.e accused Gopal Goyal Kanda). In her letter dated 11.08.2010 to the DSVP Group Security, Emirates Airlines, she has indicated that she had gone there (Dubai) to build her career but she felt like she was being framed. She spoke to her ex-company people of MDLR and they said they will send No Objection Certificate in one hour or two hour but she will have to resign from Emirates Airlines and come back.
State Vs Gopal Goyal Kanda and others 64
84. Though, the evidenciary value of disclosure statement in the trial is only limited to the 'discovery of fact' within the meaning of Section 27 of the Indian Evidence Act, but, the disclosure statement of an accused is an important tool for the investigating officer to unearth important incriminating evidence against the accused. In this case, on the basis of disclosure statement the investigating officer, with the help of accused Aruna Chadha, should have located the places where multiple pregnancies of deceased victim were terminated but this valuable piece of evidence has not been collected during investigation. The investigating officers should also have gathered information as to at which places and on which dates the deceased victim was sexually exploited. It is not that the investigating agency skipped notice of this aspect of sexual exploitation of deceased victim as unlike the main challan already filed against the two accused persons, the supplementary challan which is mainly against co-accused Chanshivroop there is specific observation of the investigating officer that Gopal Goyal Kanda along with Aruna Chadha tried to get back deceased victim from Emirates Airlines with ulterior motive of sexually exploiting her. Even now the investigation into this aspect can be carried out by investigating agency under Section 173 (8) Cr.P.C. Will it do it?
85. Now, from the above facts and circumstances and the circumstances relied upon on behalf of prosecution listed in the previous heading from Sl. No. 'a' to 'y', it is to be ascertained what prima facie offences are committed by accused persons but before that the facts situation should be properly analyzed. The question arises what was the reason for the deceased victim for refusing to join MDLR despite benefits and promotions being offered there by accused Gopal Goyal Kanda? Why the Chairman and Managing Director had to go to Dubai thrice including in one visit with co-accused Aruna Chadha to bring back deceased victim from Dubai when she was employed for a short span of about 1 ½ months w.e.f 29.06.2010 to 12.08.2010 with Emirates Airlines? In those days and even now there is no dearth of unemployment in State Vs Gopal Goyal Kanda and others 65 India. The seekers of employment are in abundance while the number of jobs and employers are few. The deceased victim was only an undergraduate when she was initially appointed with MDLR in 2006. She completed graduation during her employment and became a graduate. Then where was the need for Chairman and Managing Director of the company MDLR to go thrice to Dubai to call her back when she did not possess any specialized skill or educational qualification? Such visits incur expenses and time which do not look to be reasonable for a CMD to spend for bringing an ordinary employee of the stature of deceased victim from Dubai. Where was the need for making complaint against deceased victim or giving her out of turn promotions or pressurizing her by cancelling the flat allotted to father of deceased victim and recalling the amount of Rs. 9 lakhs given as sponsorship to deceased victim for joining MBA classes and other pressure tactics and allurements as listed at Sl No. 'a' to 'y' in the last heading? The answer to these, in my view, lies in the postmortem report of the deceased and the statement of gynecologist Dr. Vishaka Munjal and indication given/discovery of facts in the disclosure statement of co-accused Aruna Chadha. All the activities of showering benefits on deceased victim and also pressurizing her to return to MDLR were prima facie made with the sole purpose to give her inhuman treatment of sexually exploiting her, as indicated in postmortem report, by accused Gopal Goyal Kanda against her wishes which fact is reflected from her unwillingness to return to MDLR or returning to join it after pressures applied on her and her family and also getting forgiveness from her family by apologizing before family by accused Gopal Goyal Kanda and giving her promotions/financial benefits.
86. It is a matter of common knowledge that sexual intercourse between husband and wife, man and woman, sexual exploitation or commission of rape, unnatural offences are all closed door affairs. These acts are not done in public view or in presence of witnesses. Only the prosecutrix/victim in a case of rape, unnatural offence or sexual exploitation and the accused are State Vs Gopal Goyal Kanda and others 66 generally the eye witnesses of such incidents. The reason is not far to see. The act of forcible or consensual sexual intercourse is in the nature of something peculiar, the facts of which are pre-eminently or exceptionally within the knowledge of the victim or the wrong doer leading to the irresistible inference that the facts about such wrongful acts are especially either within the knowledge of the prosecutrix/victim and the accused being the wrong doer and the abettor of such an act. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him by virtue of Section 106 of Indian Evidence Act. In criminal cases, the burden to prove the offence against the accused lies entirely on the prosecution who has to stand on its own legs and in such cases also where the burden of proof lies on accused by virtue of Section 106 of Indian Evidence Act, the prosecution may first be required to prima facie establish its case against the accused persons to make the accused discharge the burden of proving his case about the facts and circumstances within special knowledge of the accused. The burden of proof of the circumstances like general exceptions under Sections 76 to 106 of the IPC or in murder cases, the exception no.1 to 4 of Section 300 IPC lies on the accused and is a lighter burden of proving his case on preponderance of probabilities like in civil case than the burden of proof upon the prosecution of proving the case beyond reasonable doubt. But, in a case where peculiar facts and circumstances are especially within the knowledge of the accused, the prosecution can discharge its initial burden by establishing and bringing before the court the circumstances to discharge its general or primary burden at the level of prima facie case against the accused. But, this legal position seems to primarily apply when the case is at the trial and appreciation of evidence led by parties is to be done by court at the time of passing the judgment. On the question of charge, in a case where the predominant facts of a particular case in respect of particular offence are within special knowledge of the accused, the test of strong suspicion, in my view, should be diluted to the level of mere suspicion for framing charge against the accused persons.
State Vs Gopal Goyal Kanda and others 67
87. In the backdrop of the above legal position discussed in respect of cases where the important essential facts disclosing the particular offence are within special knowledge of the accused when in the present case, deceased victim who could throw light on the findings of postmortem report or statement of private gynecologist Dr. Vishaka Munjal has already died and cannot come to the witness box to throw light on these aspects, the facts and circumstances of the case in totality are to be seen to judge whether any offence on this count can be prima facie said to have committed by accused persons. As already discussed, besides the allegations and incriminating material produced by the prosecution amongst 'a' to 'y' under the heading "Abetment Of Suicide" pertaining to showering benefits of promotions, increase in salary or compelling deceased victim to join duties together with the incriminating circumstances mentioned in (i) to (v) above, the prosecution, in my view, has prima facie established that accused Gopal Goyal Kanda has repeatedly committed rape upon deceased victim from time to time during the period of her employment with MDLR without her consent which fact is reflected by her behaviour of leaving MDLR again and again to escape from clutches of the inhuman sexual exploitation by the accused. Since she was pressurized to come to the office of MDLR again and again against her wishes, the presumption is that her sexual exploitation was possibly done by accused Gopal Goyal Kanda in the office of MDLR and/or any other place within his especial knowledge. Therefore, the offence of rape as defined under Section 375 IPC and made punishable under Section 376 IPC is prima facie attracted against accused Gopal Goyal Kanda. In addition, the postmortem report along with other facts and circumstances of the case, including statement of deceased in the suicide note dated 04.08.2012 that accused persons had made her life abnormal shows that accused Gopal Goyal Kanda has also repeatedly indulged in commission of unnatural offence with deceased victim during the period of her employment with MDLR which offence is punishable under Section 377 IPC.
State Vs Gopal Goyal Kanda and others 68
88. This court is aware of the fact that a legal argument may be raised on behalf of the accused that the deceased victim was consensually indulging into sexual relations with the accused. But from the material as adduced on record, this court has found nothing attributing consent of the deceased victim to sexual assaults and vaginal and anal intercourse on her. Even if the accused may raise a defence that there was initial consent given to the sexual acts of the accused with the deceased victim, there are prima facie strong reasons to believe that such so called consent was induced by threats or promises of the accused persons and were done 'against her will' and with improper consent. Even if the court assumes that the initial consent was proper and sexual acts were not committed against her will, the said consent cannot be deemed to be continued in view of the fact that the deceased victim had left the MDLR again and again and was forced by the accused persons to join back by creation of unfavourable circumstances. The accused cannot claim monopoly over the body of the deceased victim for future against her wishes even if it is assumed that there was any consent in the beginning of her joining the services of MDLR.
89. The co-accused Aruna Chadha who took deceased victim to private gynecologist Dr. Vishaka Munjal for terminating her pregnancy and has given her supplementary disclosure statement dated 10.08.2012 to SHO P.S Bharat Nagar indicating that accused Gopal Goyal Kanda has repeatedly made deceased victim pregnant and repeatedly her pregnancies were terminated from the places which she can point out to investigating agency and the act of this accused Aruna Chadha in pressurizing deceased victim and her family telephonically or otherwise for return of deceased victim to join MDLR to come to the fold of co-accused Gopal Goyal Kanda for commission of said offences makes her prima facie liable to be charged for the abetment of the said offences under Sections 376 and 377 IPC. Besides the sexual exploitation of the deceased victim in the manner indicated in the her State Vs Gopal Goyal Kanda and others 69 postmortem report and repeated efforts on the part of the accused persons to pressurize her to join duties while she wanted to escape from the clutches of accused Gopal Goyal Kanda again and again, a day before her death on 03.08.2012, the allotment of flat was got cancelled by accused Gopal Goyal Kanda from the builder to whom father of deceased had already paid Rs. 18 lakhs from time to time in installments. Also, the sponsorship amount of Rs. 9 lakhs which was given to deceased victim for MBA classes in IILM was demanded back. The purpose of accused persons was to financially cripple the deceased victim and her family to pressurize her to return to MDLR with the purpose of continuation of her sexual exploitation against her wishes. The poor victim who wanted to escape from the clutches of accused persons and MDLR but was finding it difficult due to her continuous harassment during her employment in MDLR as referred before, committed suicide blaming the two accused persons against which the question of framing of charges is being considered by this court. Therefore, it is a case of abetment of suicide by accused persons and they shall be deemed to have the knowledge that by creating such circumstances for deceased victim, to return to their fold in MDLR so that she may be compelled to commit suicide. Therefore, charge under Section 306 read with Section 120-B IPC is also made out against the two accused persons.
90. At this stage, this Court finds it apt to discuss the offence of 'abetment of suicide' punishable under Section 306 of the IPC. The said offence is oft stated to be a unique phenomenon in the Indian Penal Code for the reason that it punishes abetment of a thing (suicide) which by itself is not an offence. I would find one more reason to call it an unparallaled phenomenon which goes to the nature and manner of committing this kind of abetment. The nature of the offence of abetment of suicide is different from the abetment of other offences punishable under the IPC. While the victim of abetment of other offences is a person other than the person who commits the thing (offence) abetted, in cases of abetment of suicide the victim is essentially the State Vs Gopal Goyal Kanda and others 70 person who commits the thing abetted. Therefore, in cases of abetment of suicide what has to be seen is that the abettor created such circumstances as would compel the person so abetted to commit suicide. In abetment of other offences, the abettor need not necessarily create any such circumstance for the person so abetted to commit the offence against the victim of the offence so abetted. Ultimately, it is the test of a prudent man whether the accused had created circumstances to compel the person so abetted to commit suicide. I find the prima facie test to be satisfied for framing of charge under Section 306 read with Section 120-B IPC against the accused persons in the present case. There is no need to go into the other insignificant arguments raised from the both the sides which would not materially alter the findings in the present order.
CONCLUSION
91. In the light of above discussion, I hold that prima facie case for the offences under Sections 120-B IPC, 466/471 IPC read with Section 120-B IPC against the two accused persons. The prima facie case for framing charge under Section 66 I.T. Act 2000 read with Section 120-B IPC is also made out besides prima facie case for framing charge for offences under Section 468/469 IPC read with Section 120-B IPC. Prima facie case for the offences under Sections 306 read with 120-B IPC is also made out against the accused persons. Further, prima facie case for framing the charges under Sections 376 and 377 IPC is also made out against accused Gopal Goyal Kanda while that of charges under Sections 376 read with Section 109 IPC and Section 377 read with Section 109 IPC is also made out against co- accused Aruna Chadha.
92. Before concluding, it would be desirable to note that the mother of deceased victim who is complainant in this case has died unnatural death in mysterious circumstances and the investigation of that case has not yet State Vs Gopal Goyal Kanda and others 71 gathered pace in that case. This court would like to make an observation in relation to the manner in which the present case has been proceeded by the State agencies. The accused is an influential political person. He was Home Minister of State with affairs of State police under him. Not only the investigation of the case has been tainted and stinking, the manner in which the confession of the other co-accused Chanshivroop was recorded under Section 164 of Cr PC and the fact that the said co-accused Chanshivroop who was on police bail has run away to the United States and the investigating agency is not making any serious efforts to extradite him suggest the inference that the accused Gopal Goyal Kanda is still influencing the criminal justice administration by employing various indirect means and in my view, such a person will keep influencing the criminal process till the time the co-accused Chanshivroop is apprehended and brought back to India. Copy of this order be sent to the Commissioner of Police forthwith for information and necessary action. Let the charges be framed against accused persons accordingly. The order on charge be sent to the server (www.delhidistrictcourts.nic.in).
Announced in the open court on 10th May 2013 (S. K. SARVARIA) DISTRICT & SESSIONS JUDGE (N/W) ROHINI DISTRICT COURTS, DELHI State Vs Gopal Goyal Kanda and others