Delhi District Court
State vs . 1. B.K.Gupta S/O Sh. Mangat Ram Gupta on 16 November, 2009
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
SC No.33/09
FIR No.412/99
U/s 348/306/34 IPC
PS Kalkaji
State Vs. 1. B.K.Gupta s/o Sh. Mangat Ram Gupta
2. Neeraj Singhal s/o Sh. BB Singhal
3. Sanjay Singhal s/o Sh. BB Singhal
Challan filed on : 25.01.01
Received by Fast Track Court on:20.04.09
Reserved for Order on : 04.11.09
Judgement delivered on : 16.11.09
JUDGMENT
Briefly stated the facts of the prosecution case are that in the intervening night of 16/17.6.99, on receipt of DD no.39 copy of which is Ex.PW6/A HC Shripal (now ASI) alongwith Ct.Babu Lal reached in AIIMS Hospital and found injured Deepak Garg admitted in the hospital vide MLC no. 49937/99 and he was declared unfit for statement. The brother of injured named Umesh Garg met them in the hospital and got recorded his statement Ex.PW6/C. As per the statement of the complainant Umesh Garg, his deceased brother Deepak Garg was employed as a senior State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 1 Manager (Marketing) in the company of accused Sanjay Singhal and Neeraj Singhal. The complainant was the General Manager (Commercial) in the same company. It is alleged that deceased Deepak Garg was called by the accused persons on 16.06.99 at about 4 p.m in their office at Sahibabad to enquire into the allegations of deceased having taken commission from some party on the sale of goods. It is further alleged that deceased was given beatings and was interrogated and grilled till 9 p.m. Even the deceased was stripped naked and chillies were put in his anus. Thereafter, the accused persons brought deceased and complainant to their Nehru Place Office. The beatings and interrogation continued despite deceased admitting that he received commission of Rs.2.00 lacs. However, accused persons were insisting that deceased had received Rs.20.00 lacs and made deceased sign some documents to that effect. The accused Sanjay Singhal and Neeraj Singhal, however, left their Nehru Place Office at about 2-2.30 a.m with instructions to accused B.K.Gupta and other officials to keep deceased and complainant in their office and that they would join again at 5 a.m. Thereafter, too interrogation State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 2 continued by accused B.K.Gupta. At about 5 a.m deceased jumped from the window of the Conference Hall of the Nehru Place Office. The deceased was taken to AIIMS Hospital where he succumbed to his injuries. On this statement Investigating Officer made his endorsement Ex.PW6/D on the basis of which the present case was registered vide FIR no.412/99. The investigation was done and accused persons were arrested. After completing the investigation the accused persons were challaned to the court.
2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 30.01.02.
3. The charge against the accused B.K.Gupta, Neeraj Singhal and Sanjay Singhal were framed u/s 348/306/34 IPC on 08.08.02 by Sh Yogesh Khanna, Ld. ASJ to which the accused persons pleaded not guilty and claimed trial.
4. The prosecution to prove its case, in all has State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 3 examined as many as 19 witnesses. PW1 Dr.DD Bhardwaj, PW2 Insp.Neeraj, PW3 Lalit Mohan, PW4 Retired SI Dhan Singh, PW5 Brijesh Kumar Mishra, PW6 ASI Sripal, PW7 Dr.Millo Tabin, PW8 HC Ramesh Chand, PW9 Ct.Hardev, PW10 Umesh Garg, PW11 Harish Chander, PW12 Ct.Tejpal, PW13Ct.Umed Singh, PW14 Sh PK Agarwal, PW15 hardev Chand Verma, PW16 Vidya Rattan Sharma, PW17 Ct.Babu Lal, PW18 HC Ishwar Dass and PW19 SI Kuldeep.
5. The evidence against the accused persons were put to them in their statements recorded u/s 313 Cr.P.C in which they have pleaded their innocence and deposed that they have been falsely implicated in this case. They have neither intentionally nor otherwise aided or abetted the deceased Deepak Garg to take his life by committing suicide. Accused B.K.Gupta had opted to lead defence evidence but he has not examined any witness in this case since they were not traceable. Thereafter the case was fixed for final arguments.
6. I have heard the Sh Inder Kumar Ld.APP for the State as well as Sh. Ramesh Gupta Sr. Advocate for accused State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 4 Neeraj Singhal and Sanjay Singhal and Sh. LK Upadhyay Adv for accused B.K.Gupta and perused the testimonies of all the PWS and exhibited documents carefully.
7. In view of the arguments advanced by the Ld.APP for the State and Ld.Counsels on behalf of the accused persons, I have perused the testimonies of all the PWS.
8. PW1 Dr.D.N.Bhardwaj is the witness who has been examined by the prosecution in place of Dr. Alpana who has prepared the MLC of Deepak Garg. He proved the same as Ex.PW1/A. He has deposed that the patient was having a history of fall from 5th floor at about 5 a.m on 17.6.99. Patient sustained severe head injury alongwith multiple fractures of upper and lower ribs.
9 PW2 Insp. Neeraj is the FIR recorder and he proved the copy of FIR Ex.PW2/A. State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 5
10. PW3 Lalit Mohan is the father-in-law of deceased Deepak Garg and he identified the dead body vide memo Ex.PW3/A.
11. PW4 Retired SI Dhan Singh has deposed in his testimony that on 17.06.09 at about 12.15 p.m, a call was received from PP Nehru Place regarding jumping of a man from multi storey building at Nehru Place and then he alongwith SI KN Singh, Finger Print Expert reached at the spot i.e first floor of M/s Bhushan Steel. They inspected the window from where the deceased was reported to have jumped. No chance print were found at the window. They came to the ground where the accused had fallen and found lot of blood and broken glass pieces. SI Kuldeep Singh alongwith his staff was already present at the spot. He seized the earth control, blood sample and broken pieces of glass as per their directions. He proved his report Ex.PW4/A. In cross examination he has stated and suggested that elder brother of deceased be interrogated because he was with him at the time of incident and they were sitting together. The height of first floor was 35/40 feet from the ground floor. ACP State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 6 of the area has also visited the place of incident. He denied the suggestion that there is overwriting on Ex.PW4/A at sr.no.10. He admitted that there is overwriting in date which is written as 16.6.99 and then he converted the same to 17.6.99 with his pen.
12. PW5 Brijesh Kumar Mishra he is the witness who was posted as security supervisor at International Trade Tower on 16.6.99 and was on night duty with five guards. He has deposed that in the morning at about 5 am they heard a loud sound of falling of something near gate no.2. On reaching at that place, they found a man lying on the floor in injured condition. They informed their security officer MR. Ronald Gurandy. He cannot say as to from where the said person had fallen. The office of Bhushan Steel was open till late night on the said day. The said person was still alive. NO blood was lying on the floor. The said person was shifted to Sukhda Nursing Home at Pamposh Enclave in the vehicle of Intercontinental Hotel by him and Security Officer but the doctor refused to admit him and therefore they came out of the said nursing home and in the meantime some persons State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 7 from Bhushan Steel came there alongwith Umesh Garg brother of the injured and thereafter injured was taken to AIIMS. Later on he came to know that injured Deepak Garg had fallen from the office of Bhushan Steel. In cross examination he has stated that he knew the owner of Bhushan Steels and therefore he can identify them. He used to identify their vehicles also. Vol. There were 12 parking spaces reserved for Bhushan Steels. As a routine, the office of Bhushan Steels used to remain opened till late night. He has seen the owners of Bhushan Steels namely Sanjay Singhal and Neeraj Singhal and their father Sh. BB Singhal. On the date of incident none of them was present in the office and their vehicles had also not come to the building.
13. PW6 ASI Sripal has deposed that on 17.06.99 at about 5.55 a.m on receipt of DD no.39 Ex.PW6/A he alongwith Ct.Babu Lal reached in AIIMS Hospital and moved an application Ex.PW6/B for recording the statement of injured but he was unfit for statement. He met Umesh Garg and recorded his statement Ex.PW6/C on which he prepared rukka Ex.PW6/D and got the case registered. After State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 8 registration of the case, further investigation was handed over to SI Kuldeep. He has further deposed that Ct. Babu Lal was left in the mortuary and he alongwith SI Kuldeep and Ct.Tejbir came to the spot where crime team had already reached. At the instance of SI Kuldeep prepared the site plan Ex.PW6/E and took some photographs. Thereafter, post mortem was got done and doctor handed over two test tubes in his presence to SI Kuldeep which were taken into possession vide memo Ex.PW6/F. He further deposed that accused BK Gupta was arrested vide memo Ex.PW6/G and his personal search was conducted vide memo Ex.PW6/H. He further deposed that accused Neeraj Singhal and Sanjay Singhal were formally arrested on 5.7.99 vide arrest memo mark A & B and their personal search were conducted vide memo mark C&D. He identified the accused persons. In cross examination he has stated that it is correct that mark A,B,C&D does not bear his signatures. He denied the suggestion that his signatures are not available because he was not present at that place. Both of his statements were recorded by SI Kuldeep but he cannot identify his handwriting on Ex.PW6/DX2 and DX2. He has made State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 9 improvement regarding coming to the spot from the hospital where IO recorded the statements of chowkidar and security guard. Ex.PW6/C & D are not in his hand Vol. but he got prepared the same through his constable. He denied the suggestion that there is different ink in the endorsement of rukka Ex.PW6/D as well as at point B&C. He cannot deny or admit whether there is overwriting at point E in Ex.PW6/D.He admitted that he does not know the exact time when the site plan was prepared by the IO. He has not signed the site plan. He denied other suggestions put by the Ld. defence counsel regarding time. He cannot say whether writing of Ex.PW6/C is of Ct.Babu Lal or not. He further stated that at the time of preparing rukka in the hospital Ct. Babu Lal and one more Police Constable who was already present in the hospital for some work were with him. It is correct that neither the said constable was from PS Kalkaji nor he was present there in the investigation of this case. He could not get the rukka prepared from Ct. Babu Lal because his writing was not good and clear.
14. PW7 Dr. Millo Tabin has deposed that he conducted State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 10 the post mortem on the dead body of deceased Deepak Garg and proved the Post mortem report as Ex.PW7/A. He opined the cause of death was shock as a result of multiple injuries caused by blunt force which is possible in fall from height. He has proved opinion Ex.PW7/B. He further stated that as per FSL report, the presence of chilly powder in anus swab could not be ascertained.
15. Pw8 HC Ramesh Chand has deposed that he was working as DD writing on 17.6.99 and he received telephonic message from Ct. Narender from AIIMS regarding admission of Ct.Narender in AIIMS Hospital which he recorded vide DD no.39. He further deposed that the said DD register has been destroyed and he proved the copy of order dt.6.3.09 in this respect.
16. PW9 Ct. Hardev is also the DD writer who reduced in writing DD no.7 Ex.PW9/A (since destroyed) regarding death of injured admitted in the hospital vide DD no.38.
17. PW10 Umesh Garg has deposed that on 16.6.99 he State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 11 was working as General Manager (commercial) in Bhushan Steel and his younger brother Deepak Garg was also working as Sr.Manager (Marketing). He received call in his room that Sh Sanjay Singhal has called him. He went there where one purchaser party was present alongwith his brother Deepak Garg where it was disclosed to him that his brother has received commission from them. Again said at that time his brother was not in the room but called thereafter. At that time Sanjay Singhal, Neeraj Singhal (M.Ds) and Sh BR Sharma (President) were present in the said room. He further deposed that after asking 2-3 things they all started beating his brother Deepak Garg particularly Sh BK Gupta and Sh Sanjay Singhal has also slapped twice or thrice. He has further stated that accused BK Gupta kept on beating his brother Deepak Garg and then his brother has accepted that he has received the commission. Those people told his brother that he has not received the commission of Rs.2.50 lacs but he has received Rs.20.00 lac. During the said period he was under beating of the said people. He has further deposed that accused BK Gupta got written from his brother on one paper that he has received Rs.20,00,000/- as commission and also obtained State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 12 signatures of his brother on some blank papers and some vouchers on which revenue stamps were affixed. They kept on beating his brother but his brother did not accept anything else. He has further deposed that accused BK Gupta was busy in giving beating to his brother in the entire episode and the other people were coming and going from that room at that time again said these people were coming and going out of the said room. He has further deposed that accused BK Gupta asked other people to get his brother naked and put chilly powder in his anus and then he will disclose each and every thing. He does not know who put chilly powder in the anus of his brother but he had seen him in troubled condition. He is sure that the said chilly powder was put in the anus of his brother by accused BK Gupta. He has further deposed that accused BK Gupta told him that he has some more evidence against his brother in Nehru Place office. His brother was taken by accused BK Gupta to Nehru Place. He alongwith BR Sharma also reached in Nehru Place Office where accused BK Gupta again started beating his brother. Sh PK Agarwal has also reached there. Thereafter they also started giving severe beatings to his brother and he State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 13 requested them not to beat his brother with folded hand and he also touched the feet of BK Gupta particular because he was taking active part in beating. He made request to BK Gupta to free his brother but he did not do so and stated to him that that the owners will come in the morning at about 5 a.m. He has further deposed that accused BK Gupta and BR Sharma were also talking with his brother sometime separately and some time together. He also asked his brother on putting his hand on his head to tell the truth but his brother remained firm on his words. He further deposed that he sat at the reception and once his brother came outside from the conference room for urinating. In the entire episode the conduct of BR Sharma was normal. He further deposed that at about 4 or 4.30 a.m accused BK Gupta went inside the conference room and came out after a while and told him that his brother is not inside the conference room. He further deposed that BR Sharma and PK Agarwal went down stairs in running condition and when he tried to go down stairs BK Gupta apprehended him. In the meantime he talked on phone somewhere and then opened the door and they came downstairs. In the meantime his brother was already State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 14 taken to nearby nursing home by the guard of the building alongwith BR Sharma and PK Agarwal. Since the doctor was not available he got his brother admitted in AIIMS hospital in injured condition who expired at about 8 or 8.30 a.m on 17.6.99. He further deposed that police reached in the hospital recorded his statement Ex.PW6/C. Thereafter he accompanied the police to Nehru Place office and at his instance site plan was prepared by the police. He identified the dead body of his brother vide statement Ex.PW10/A and dead body was handed over to him vide memo Ex.PW10/B. He identified the accused present in the court. He was declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein he has stated that it is incorrect that Sanjay Singhal and Neeraj Singhal were present in the office at Nehru Place VOL. BK Gupta told me that they have left. It is incorrect that to save Neeraj Singhal and Sanjay Singhal I am deposing falsely. He can identify both the accused Neeraj Singhal and Sanjay Singhal but their identity is not disputed and both are exempted through counsel. In cross examination he has stated that he joined M/s Bhushan Steel as accounts officer in the year 1985. From State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 15 1985 till 1999 he got four promotions from the rank of accounts officer to General Manager (Commercial). It is correct that his brother was appointed on my recommendation. His brother was also promoted as Sr.Manager(Marketing). He used to look after the accounts and auditing job as well as part of logistics & Taxations etc. I used to supervise all the accounts of the firm. His brother was appointed one or one and half year prior to the incident. The sale of the firm was about 300 to 400 hundred crores in the year 1999. They used to supply the goods to about 100 to 150 parties. His deceased brother used to deal with 5 to 10 parties. Accused BK Gupta was the boss of his deceased brother. He did not settle his accounts with the firm. A sum of Rs.3 to 4 lacs stands in his account. He does not know regarding the dues of his deceased brother but certainly there are some dues. He has further stated that each and every right of ancestral property devolved during the life time of his deceased brother Deepak Garg and after his death the wife of his brother filed a suit for obtaining succession certificate from the court regarding assets of deceased Deepak VOL. they had ancestral house in village Sisroli State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 16 Haryana where his parents and two brothers were residing with their families. He does not know whether his sister in law/wife of the deceased brother Nidhi Garg obtained entire settled amount from Bhushan Steel or that she has executed an affidavit in favour of Bhushan Steel. After few months of death of his brother he has have no contact with his sister in law Nidhi Garg. He has further stated that on 16.6.99 when he entered in the office of Sanjay Singhal; BK Gupta, Neeraj Singhal and BR Sharma were already present with one party and his brother was called later on after the party disclosed to him that his brother had taken commission from him. Since he has forgotton certain facts due to lapse of time therefore he has stated in his examination in chief that he went to the office the Vice Chairman where purchase party was also present with his brother and in his presence the purchaser party told him that Deepak has received commission from them. He used to have a cell phone with him during those days. When he was called in the cabin of Vice Chairman Sanjay Singhal was sitting on his chair and they were sitting on their chairs offered by him which were opposite him beyond table. Sh BK Gupta took his brother to a corner of a State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 17 room and Sanjay Singhal followed him after two minutes. He have stated to the police that Sanjay Singhal has also slapped twice and thrice to his brother. He was confronted with the statement Ex.PW6/C where it is not so recorded as such. His brother started raising hue and cry when they started beating him. There was no apparent visible mark of injury on the person of his brother and no blood oozed out from anywhere. He has stated to the police that Sh BK Gupta kept on beating his brother Deepak Garg. He was confronted with the statement Ex.PW6/C where it is not so recorded as such. He had stated to the police that BK Gupta was busy in giving beating to his brother and other people were coming and going from that room. He was confronted with the statement Ex.PW6/C where it is not so recorded. He had also stated to the police that thereafter BK Gupta asked other people to get his brother naked and put some chilly powder in his anus and then he will disclosed each and every thing. He was confronted with the statement Ex.PW6/C where it is no so recorded as such. He had stated to the police that then BK Gupta told him that he had some more evidence against his brother in the office at Nehru Place. He State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 18 was confronted with the statement Ex.PW6/C where it is not so recorded. He had stated to the police in his statement that BK Gupta took his brother to Nehru Place office. He was confronted with the statement Ex.PW6/C where it is not so recorded. He has further stated that Sh BR Sharma had a cell phone when he accompanied him in his car to Nehru Place office but he refused to give his cell phone to him so, that he could have called police or their relatives. However, he was free to move. When he reached in the office with BR Sharma, Chowkidar, my brother and BK Gupta were present. PK Agarwal came after some time, may be half an hour. His brother was not tied with any material. He has further stated that the toilet was on the left side of the reception and conference room was on the right side. He had not taken any food through out till morning. However, he cannot say if others took food including his brother. He admitted that telephones were available in the office. He had not made any telephone call anywhere from the telephones available in the office VOL. Since he thought matter would be resolved and he never wanted to take confrontation with the management. He has further stated that his deceased State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 19 brother accepted about receiving Rs.2.5 lacs as commission. He has stated to the police that his brother was given severe beating at Nehru Place. He was confronted with the statement Ex.PW6/C where it is not so recorded as such. He has stated to the police in his statement Ex.PW6/C that he requested them not to beat his brother with folded hands and also touched feet of Mr. B.K.Gupta as he was most active in beating but he did not pay any heed to his request. He was confronted with the same where it is not so recorded. He has also stated to the police that he made request to Mr. B.K.Gupta to free his brother but he did not free his brother on the pretext that the owners will come in the morning at 5:00 AM and so he will not release his brother at that time. He was confronted with his statement Ex.PW6/C where it is not so recorded. He did not state to the police in his statement Ex.PW6/C that after around 11/12PM he, B.R.Sharma, B.K.Gupta some time together some time separately making enquiries from the deceased. He was confronted with Ex.PW6/C where it is not so recorded. He has further stated that most of the time while Deepak was being interrogated he used to remain out from the conference room and used State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 20 to sit at the reception and sometime he used to be present inside the conference room. During the whole night he has not slept however, he can not tell about others again said nobody slept whole the night. His brother had not raised any hue and cry at Nehru Place office. While his brother went to toilet at about 2 or 2.30 a.m, he was sitting at the reception along with Mr. BK Gupta and BR Sharma. After his brother used the toilet he had not gone to conference room. He has not heard any voice. On asking by the doctor he informed him that his brother has fallen from fifth floor at about 5 a.m. He does not remember whether his brother was still alive when Investigating Officer reached in the hospital or not. He had taken loan from the company VOL. It was not more than Rs.50,000/-. He denied the suggestion that the loan which he had to repay to the company was more than his dues and therefore he had not pursued the matter of his dues from the company. He denied the suggestion that he used to share the commission taken by his brother. Whatever assets he had, he had earned during his service with M/s Bhushan Steel. His salary was Rs.40,000/-. He has two sons aged about 9 years and 12 years. He was residing in a State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 21 rented premises. He was paying rent of Rs.8000/- pm. His income tax deductions was Rs.4000/-pm. He denied the suggestion that he started business by investigating huge sum of money with his brother. He further denied the suggestion that apart from his salary he earned unauthorised money from Bhushan Steel. It is wrong to says that his brother Deepak told others who were present at that time that the main culprit is his brother Umesh Garg. It is wrong to suggest as soon as his brother disclosed this fact he asked others to go out of conference room by saying that let him interrogate his brother as he was telling lie. It is wrong to suggest that after sometime he came out and informed others that Deepak has jumped from window. It is wrong that since Deepak was his brother, police believed his story which was false and registered a false case. He denied the suggestion that Sanjay Singhal has not slapped Deepak in his office. He has not stated to the police in his statement Ex.PW6/C that BK Gupta stopped him from going downstairs and apprehended him. He is not aware if one of the employees Mr. Rajeev Mishra informed BK Gupta being Head of the Deptt that Deepak Garg was taking commission from some State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 22 parties and after being satisfied he informed Mr. Sanjay Singhal about this fact. It is wrong to says that because since B K Gupta was responsible for exposing them for taking commission from the parties, he decided to take revenge and therefore made a false statement to the police.
18. PW11 Harish Chander was working as chowkidar in Bhushan Steel and he has stated that in the month of June BK Gupta, SC Verma, BR Sharma and Umesh Garg alongwith Deepak Garg came to Nehru Place office and they entered in the conference room. At 10.35 p.m Sh PK Aggarwal also came over there. At 12 midnight they directed him to arrange tea and he prepared tea, bread and butter for them. He further stated that they informed him that Deepak Garg has jumped from the window and he alongwith them went to ground floor and saw some blood lying on the bricks. He was declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein he has stated that he has not stated to the police that on that day Sanjay Singhal and Neeraj Singhal have also come there. He denied that he has heard the noise of beating and threatening from State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 23 inside the conference room. He denied that his statement mark A from point A to A was recorded by the police. He admitted that accused BK Gupta is still working in the said company. In cross examination he has admitted that when he entered in the conference room he saw Deepak Garg and Umesh Garg busy in checking the files and records.
19. PW12 Ct. Tejpal has deposed that on receipt of DD no.7 by SI Kuldeep he alongwith him went to AIIMS where Ct. Babu Lal handed over copy of FIR and original rukka to SI Kuldeep. From there they went to the office of Bhushan Steel at Nehru Place and SI Kuldeep took some photographs. The post mortem was got done and dead body was handed over to relatives of deceased. He further stated that accused BK Gupta was arrested vide memo Ex.PW6/G and his personal search was conducted vide memo Ex.PW6/H.
20. PW13 Ct. Umed Singh is the witness who received two tubes from MHCM and deposited the same in CFSL, Malviya Nagar.
State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 24
21. PW14 P.K.Aggarwal has deposed that on 16.6.99 he was working as Dy.General Manager in Bhushan Steel. He received call at about 9.30 p.m from General Manager to reach Nehru Place at about 11.30 p.m and he reached there and on enquiry from his boss Umesh Garg he told him that his brother has lowered his prestige in the eyes of other officials and directed him to sit in the office and if need he will call him. He further deposed that at about 4.30 a.m Umesh Garg again came to him and stated that his brother is not in the room and asked him to accompany him to downstairs where Deepak Garg was lying on the road in pool of blood. He was also declared hostile by the prosecution wherein he has stated that his statement was not recorded by the IO in his presence. He has not stated to the police that when he reached in Nehru Place office Neeraj and Sanjay Singhal were also present. He had not stated to the police that Deepak Garg was in bad shape and was trembling but BK Gupta was not showing any mercy. He had not stated to the police that Umesh Garg also gave slap to Deepak Garg during interrogation. He denied the suggestion that Sanjay Singhal and Neeraj Singhal were present in the Nehru Place State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 25 office and they instigated BK Gupta to torture Deepak Garg so that he may tell the truth regarding taking of commission. He denied his statement recorded by the police. In cross examination he has stated that when he reached in the conference room and had talk with Umesh Garg, Deepak Garg was also sitting on the sofa in the conference room. There was none else except both of them. Deepak was busy in searching some documents. He has not heard any sound of cries etc. Deepak Garg was also normal and used toilet twice or thrice as he saw him from his cabin. Deepak Garg was unconscious while they took him to hospital.
22. PW15 Sh Hardev Chand Verma has deposed that on 16.6.09 he was informed that Deepak Garg had taken some commission from some party and in his presence the party told the M.D about this fact to which Umesh Garg was summoned and the said party narrated the same in the presence of Umesh Garg. Managing Director directed Umesh to enquire the matter and on great pursuation Deepak Garg admitted that he is taking commission from some parties off and on and he admitted about taking State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 26 commission of Rs.2.00 lacs details of which he does not know. Thereafter it was decided to go to Nehru Place office and then he went to his office. AT about 10.30 p.m he also reached Nehru Place office where Umesh Garg, Deepak Garg and BK Gupta and BR Sharma were present and they were taking tea. He was also declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein he has stated that police did not record his statement. He denied the suggestion about giving beatings to Deepak Garg by accused BK Gupta.
23. PW16 Sh Vidya Rattan Sharma has deposed that he was posted as President Technical on 16.6.99 in Bhushan Steel and when on that day he was called by MD Sh Neeraj Singhal he came to know that Deepak has taken commission of Rs.2.00 lac. He has further stated that Umesh Garg had tried to made understand the reputation of his family and of him and after holding the shoulder of Deepak, he scolded him two - three times and slapped him. He further stated that Deepak Garg stated that he cannot say the exact amount taken by him. He has further stated that Managing Director State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 27 asked Umesh Garg to sort out the matter and if required they can got to Nehru Place office. He did not see any person giving beating to Deepak Garg in Sahibabad or in Nehru place office. He was declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein he has stated that police did not record his statement at any time. He denied having made any statement to the police. He did not state to the police that Neeraj Singhal, Sanjay Singhal and BK Gupta gave beatings to Deepak Garg. He has not stated to the police that on the instigation of Sanjay Singhal and Neeraj Singhal, BK Gupta put chilly powder in the anus of Deepak Garg because of which Deepak Garg started shivering with pain. He had reached in office at Nehru place around 10 p.m and found Umesh Garg, Deepak Garg and BK Gupta sitting in the conference room. He denied the suggestion that Neeraj Singhal and Sanjay Singhal were also there and they went away at about 2 or 2.30 a.m. He denied the suggestion that before leaving the Nehru Place office Neeraj Singhal and Sanjay Singhal told BK Gupta that they will come again at 5 a.m till that time Deepak Garg be kept in a locked room. He admitted that he and Umesh Garg tried State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 28 hard to pursuade Deepak Garg to tell the truth. He has not stated to the police that Deepak Garg came out from the conference room and used the toilet and then returned to conference hall and thereafter BK Gupta went to conference room and after a while he came out and inform them that Deepak Garg was not in the conference room. he admitted that he alongwith PK Agarwal rushed immediately towards ground floor and found that some driver and security guard were collected there where Deepak was lying in injured condition. He denied that BK Gupta has informed the owner of the factory about the incident. He has not stated to the police that Deepak Garg expired due to beating, cruelty, torture and harassment given by BK Gupta on the instigation of Sanjay and Neeraj Singhal. In cross examination he has stated that he does not know as to how Umesh Garg and Deepak Garg reached the office at Nehru Place.He came to know regarding absence of Deepak Garg in the conference room when he heard Umesh Garg saying so.
24. PW17 Ct.Babu Lal is the witness who reached at the State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 29 AIIMS Hospital alongwith PW6 HC Shripal where on the statement of Umesh Garg, PW6 prepared rukka and got the case registered through PW17. He has further deposed that dead body was kept in the mortuary and post mortem was got done. In cross examination he has stated that he has not stated to the IO in his statement that the statement of complainant was got recorded by some other police officials as HC Shripal was having injury in his hand.
25. PW18 HC Ishwar Dass is the MHCM and he produced register no.19 in the court. He proved entry no. 2319 and stated that the exhibits were sent to FSL Malviya Nagar through Ct. Umed and result was received on 25.04.2000. He proved copy of the same as Ex.PW18/A.
26. PW19 SI Kuldeep Singh has deposed that on 17.6.99 on receipt of DD no.7 Ex.PW9/A he alongwith Ct.Tejpal reached in AIIMS Hospital where HC Shripal handed over MLC Ex.PW1/A. Ct. Babu Lal reached in the hospital and handed over copy of FIR and rukka to him. He alongwith other staff reached at Nehru Place where site plan Ex.PW6/B State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 30 was prepared. He took 16 photographs which are Ex.PW19/A1 to A16. He further deposed about reaching of crime team and preparing report Ex.PW4/A. He prepared the inquest paper and got the post mortem conducted which is Ex.PW19/B. He proved form no.25.35 as Ex.PW9/C. He recorded the statements for identification of dead body and after post mortem the dead body was handed over to the relatives of the deceased. He seized test tubes handed over by the doctor in AIIMS Hospital vide memo ex.Pw6/F. He has further stated that accused BK Gupta was arrested vide memo Ex.PW6/G and his personal search was conducted vide memo ex.PW6/H. He received post mortem report on 19.06.99 which is Ex.PW7/A. He formally arrested accused Sanjay and Neeraj Singhal vide memo Ex.PW19/D and 19/E and conducted their personal search vide memo Ex.PW19/F and G. He received the FSL report Ex.PW19/G and again took the opinion on the post mortem report which is Ex.PW7/B. In cross examination he has stated that he did not make any enquiry from the duty officer whether the copy of FIR was already sent to the concerned magistrate and higher police officials or not. He admitted that as per judicial file the State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 31 copy of FIR was received by the Ld. MM at 10 a.m on 24.06.99 which is Ex.PW19/DX. As per statement of Umesh Garg he went to Sahibabad Factory to look for some evidence specially for chilly powder but he found nothing. He did not record disclosure statement of accused BK Gupta after his arrest. He admitted that on the next day of his arrest he was produced in the court with the application for sending in JC but he was ordered to be released on bail. He came to know the name of one proprietor of Malik Traders who made complaint regarding commission against Deepak Garg but he did not record his statement during his investigation. He admitted that in the case history he has mentioned that at about 4.30 a.m when deceased was alone in conference hall, he probably fall from the window as told to him by Umesh Garg.
27. I have also given my thoughtful consideration on the case laws relied upon by the Ld. defence counsel. In case Law Sanju @ Sanjay Singh Vs. state of M.P, 2002 (2) PCR Criminal 687 it is stated in para 9 that :-
'In Swamy Prahaladdu Vs State of M.P & Anr., 1995 Supp.(3) SCC 438 the appellant was charged for an State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 32 offence u/s 306 IPC on the ground that the appellant during the quarrel is said to have remarked the deceased 'to go and die'. This court was of the view that mere words uttered by the accused to the deceased 'to go and die' were not even prima facie enough to instigate the deceased to commit suicide'.
In this case Law it is further stated that in case titled Ramesh Kumar Vs. State of Chhattisgarh, (2001) 9 SCC 618:
2001(4) RCR (Crl.) 537 (SC) it was stated that :-
'This court while considering the charge framed and the conviction for an offence under section 306 IPC on the basis of dying declaration recorded by an Executive Magistrate, in which she had stated that previously there had been quarrel between the deceased and her husband and on the day of occurrence she had a quarrel with her husband who had said that she could go wherever she wanted to go and that thereafter she had poured kerosene on herself and had set fire. Court held that 'a word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation'.
In case law Hira Lal Jain Vs. State, 87 (2000) Delhi Law Times 265 it is stated in head note that :-
'Sec.306, 107 - Quashing of order : Abetment of suicide: No material on record for framing charge - from contents of suicide note recovered, it certainly cannot be said that petitioner had goaded, provoked incited, urged or encouraged deceased to commit suicide - No material on record to show that ingredients of offence of abetment satisfied - Framing of charge u/s 306 IPC against petitioner bad in law - Order quashed'.
In case Kali Ram Vs. State of Himachal Pradesh it is stated in para 25 that :-
State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 33 'Leaving aside the cases of statutory presumptions, the onus is upon the prosecution to prove the different ingredients of the offence and unless it discharges that onus, the prosecution cannot succeed. The court, of course, may presume, as mentioned in Section 114 of the Indian Evidence Act, the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The illustrations mentioned in that section, though taken from different spheres of human activity, are not exhaustive. They are based upon human experience and have to be applied in the context of the facts of each case. The illustrations are merely examples of circumstances in which certain presumptions may be made. It is further stated in para 28 that it is no doubt true and wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilized society.
In para 29 it is stated that the fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilty was stressed by this court in the case of Shivaji Sahabrao Bodade and Anr (Supra) as is clear from the observation that certainly it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations'.
In case Law Brij Lal and Anr Vs. State (Delhi Admn.), 1985 CCC HC 130 it is stated in head note that :
'Sec.306/34 Abetment - office u/s 306 IPC - Ingredients of abetment in cases of suicide - Charge framed - Petition against u/s 482 Cr.P.C- Victim was the mother in law - Two dying declarations of the deceased against her son and his wife - Allegations of ill treatment, neglect and humiliation by her son State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 34 and his wife - Held: none of the allegations justify a charge of abetment even at the insinuations in the dying declarations - Charge framed and even the prosecution set aside. I have also gone through para 10 of the said judgment'.
In case law Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116 it is stated in para 48 that :-
'In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have stated unconsciously by the witnesses in order to see that the offender is punished. I have also gone through para 157 of the said judgment'.
In case law Ramesh Baburao Devaskar & Ors. Vs. State of Mahrashtra, 2007 V AD (Cr.) (SC) 349 it is stated in headnote that :-
'There cannot be any reason whatsoever as to why the FIR was sent after four days - Proof of motive by itself may not be a ground to hold the accused guilty
-Enmity as is well know, is a double edged weapon - Whereas existence of a motive on the part of an accused may be held to be the reason for committing crime, the same may also lead to false implication- Suspicion against the accused on the State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 35 basis of their motive to commit crime cannot by itself lead to a judgment of conviction'.
In case law State of Punjab Vs. Sukhchain Singh & Anr 2009 (1) JCC 420 it is stated in para 38 that :-
'A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to 'proof' is an exercise particular to each case. I have also gone through para 39 & 40 of the said judgment'.
In case law Ramesh Chander Sibbal VS. State, 2009(4) LRC 119 (Del) it is stated in head note that :-
'Section 306 -Abetment of suicide - Revision against framing of charge - Accused alleged to forcible occupied house of deceased which led her to take extreme step of committing suicide - Action of accused would not bring his act within definition of abetment as there is no material or evidence placed by prosecution to show that he intended or had necessary mens rea that deceased should take extreme step of committing suicide - As long as there is absence of material and/or evidence on record to show that abettor has intended to aid or encourage commission of principal offence, accused cannot be charged with offence of abetment - Mere harassment will not bring the act of accused within the ambit of section 306 r/w sec 107 of IPC.'
28. Ld. counsel has also relied upon case law Roop Kishan Madan Vs. State, 2001 Cr.LJ 1219, MANU/DE/1295/2000, Laxmi & Anr Vs. State, 95(2000) DLT 319, State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 36 (1999) 7 SCC 467, Narender Singh and Anr Vs. State of MP, 2004 CRI. LJ 2842 which are similar to the above discussed case laws.
29. Analyzing the testimonies of all the PWS, it is revealed that PW5 Brijesh Kr Mishra who was working as security officer at the time of incident in Nehru Place office of the accused, PW10 Umesh who is the complainant and brother of deceased, PW11 Harish Chander, Chowkidar, PW14 P.K.Aggarwal worker, PW15 Hardev Chand Verma, PW16 Vidya Rattan Sharma who are the employees of accused and witnesses to the incident are the main star witnesses of the prosecution and the case of the prosecution rests upon their testimonies. Infact they are the backbone of the prosecution case.
30. In this case the charge has been framed u/s 306/348/34 IPC. Section 306 contemplates 'Abetment of suicide' and section 348 IPC contemplates 'wrongful confinement'. Abetment of suicide is made punishable by Section 306 which provides that "if any person commits State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 37 suicide, whoever abets the commission of such suicide, shall be punished". The section does not define the expression 'abet', nor is the expression defined in chapter II of the code which deals with the general explanations'. However, chapter V of the Code incorporates an elaborate treatment of 'abetment'. Section 107 in this chapter defines 'abetment of things', while section 108 defines the expression 'abettor' which is reproduced hereunder:-
Section 107 - Abetment of a thing:
A person abets the doing of a thing, who -
First - Instigates any person to do that thing; or Secondly - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly - Intentionally aids, by an act or illegal omission, the doing of that thing.
Explanation 1- A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation 2- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.' State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 38 Section 108 - Abettor:
"A person abets an offence, who abets either the commission of an offence or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor".
Explanation 1- The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do do that act.
Explanation 2 - To constitute the offence of abetment it is not necessary that the act abetted should be committed or that the effect requisite to constitute the offence should be caused.
Explanation 3 - It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge.
Explanation 4- The abetment of an offence being an offence, the abetment also an offence.
Explanation 5 - IT is not necessary to the commission of the offnece of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed'
31. In Oxford Dictionary the meaning of word 'Instigation' is 'Cause to happen or begin, encourage to do, In Prabhat English-Hindi Dictionary the meaning of word 'instigation' is 'goad or incite, to cause by inciting, to make someone begin or happen, the act of instigating. In State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 39 Chamber Concise Dictionary the meaning is defined as 'to urge on, incite, to initiate, bring about the act of inciting; impulse. So, the word 'instigation' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. From reading of the clause 'first' of section 107 of IPC, it is clear that a person who instigates another to do a thing, abets him to do that thing. A person is said to instigate another when he goads, provokes, incites, urges forward or encourage another to commit a crime. A serious question that has arisen in this case is whether there is any material suggesting that the accused persons had incited the deceased to commit suicide? Admittedly, there is no suicide note available on file. The prosecution has examined PW10 Umesh Garg who the complainant, eyewitness and brother of the deceased as well as other PW5, PW11, PW14, PW15 and PW16 who are the eye witnesses in this case. Firstly discussing the testimonies of eye witnesses it is revealed that all the eyewitnesses PW5,11,14,15 & 16 have corroborated the version of each other regarding falling of deceased from International Trade State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 40 Tower, Ist floor, Nehru Place and when they reached downstairs they found deceased lying in injured condition. PW5 has stated that he knew the owners of Bhushan Steels and he can identify them. He has further stated that Sanjay Singhal,Neeraj Singhal and their father Sh. BB Singhal were not present in the building and none of them was even present in the office and their vehicles had not come to the building. PW11 Harish Chander was declared hostile by the prosecution and cross examined by the Ld. APP for the State but in vain,. Even he has stated that police made enquiry from him on the next day evening when he came again on duty and he told to the police whatever he deposed in the court. He denied having made any statement mark A from point A to A to the police mark. In cross he has admitted that when he entered in the conference room he saw Deepak Garg and Umesh Garg busy in checking the files and record. PW14 PK Aggarwal, PW15 HC Verma and PW16 VR Sharma has corroborated the version of each other as well of prosecution about taking the commission by deceased Deepak Garg and interrogation being made by Umesh Garg and BK Gupta. They have also stated about State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 41 going to Nehru Place Office and searching the record. All these three witnesses were declared hostile by the prosecution as they did not support the case of the prosecution. They were cross examined by the Ld. APP for the State but no fruitful has come out. PW14 in cross examination has stated that there was none else except Umesh Garg and Deepak Garg in the conference room and Deepak was busy in searching some documents. He has not heard any sound of cries etc. and everything was normal. Deepak Garg was also normal as he used the toilet twice or thrice. PW16 has stated that he did not see any person giving beating to Deepak Garg. He denied having made any statement before the police. In cross examination conducted by the Ld. APP for the State he has admitted that he and Umesh Garg tried hard to pursuade Deepak Garg to tell the truth. From the entire deposition of these witnesses it is revealed that they have not made any allegations against the accused persons for instigating the deceased to commit suicide or for wrongful confinement of the deceased. What has come out from the testimonies of these eye witnesses, is that deceased Deepak Garg alongwith others were available in the office State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 42 of Bhushan Steel in International Trade Tower, Ist floor, Nehru Place, New Delhi where they were searching some documents. It is the case of the prosecution that deceased Deepak Garg had taken commission of Rs.2.00 lacs and he was interrogated by the officials of the company at Sahibabad office. It seems that he was brought to Nehru Place Office just to check the record of the company and to know as to from which parties he had taken the commission. The eyewitnesses have not made any allegations against the accused persons for giving beating by the accused persons. So, nothing incriminating has come on record against the accused persons from the testimonies of these witnesses. Now I will come to the testimony of main star witness of the prosecution PW10 Umesh Garg who is the brother of the deceased.
32. Admittedly both PW10 and deceased Deepak Garg were brothers and both were working together with M/s Bhushan Steel at Sahibabad as General Manager(commercial) and Sr.Manager (Marketing) respectively. PW10 being the star witness of the prosecution State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 43 has stated about disclosing to him by the Vice Chairman about receiving of commission by his brother and that Sanjay Singhal, Neeraj Singhal and VR Sharma after asking 2-3 things started beating his brother Deepak Garg and particularly by Sh BK Gupta and Sanjay Singhal also slapped twice or thrice. He has further stated that Sh BK Gupta was busy in giving beatings to his brother in the entire episode and other people were coming and going out of the said room. He further stated that accused BK Gupta asked other people to get his brother naked and put some chilly powder in his anus and then he will disclose each and every thing. As per the prosecution case and deposition of PW10, this had happened in Sahibabad office of accused persons. In his statement PW10 has made allegations against the accused about giving beatings in Sahibabad office and putting of chilly powder in his anus. On perusal of his cross examination it is revealed that entire portion regarding giving beatings to his brother as well as putting chilly powder in the anus of his brother has come under improvement. As per testimony of PW7 Dr. Millo Tabin and FSL report no. 99/B-1165 dated 29.02.2000, the presence of chilly power in anus swab of State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 44 deceased could not be ascertained. This clearly suggest that no chilly powder was put in the anus of deceased by the accused BK Gupta. So, the version of PW10 in respect of putting chilly powder in the anus of his brother is doubtful. Further PW10 has stated that his brother was taken to Nehru Place at about 10.30 p.m by accused B.K.Gupta and Sanjay Singhal and Neeraj Singhal told accused BK Gupta that they are also coming over there. PW10 alongwith BR Sharma also reached there. He further stated that they also started giving sever beatings to his brother and he requested them not to beat his brother with folded hand and he also touched the feet of accused BK Gupta particularly because he was taking active part in beating. He made request to BK Gupta to free his brother but he did not free him on the pretext that owners will come in the morning at about 5 a.m and he will not release his brother. Perusal of his cross examination revealed that he has again made improvement in this respect. In this case allegedly the beatings started at 4 p.m and continued upto 5 a.m in the morning. From 4 p.m to 10/10.30 p.m the beatings were given to deceased at Sahibabad office and then at Nehru Place Office. PW10 has State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 45 also reached Nehru Place Office in the car of Sh BR Sharma. When such a beatings were being meted to deceased it is not understandable as to why PW10 who is the brother of deceased, has not informed the police or any of his relative. He has taken the plea that he had left his cell phone in his chamber. But when he reached in Nehru Place office, it is admitted by him that there were telephones available and in Nehru Place office, as alleged severe beatings were given. But from there also, PW10 has not tried to make any phone call to the police and inform the matter while it has been admitted by him that he was free to move. PW10 is a well qualified person being the General Manager of the company. So, the conduct and behaviour of PW10 is not good and it seems to be a conduct of inhuman. PW10 was also declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein he has specifically denied the suggestion that accused Sanjay Singhal and Neeraj Singhal were present in Nehru Place office. From the testimony of PW10 as well as eye witnesses PW5, PW11, PW14, PW15 and PW16 it is crystal clear that both the accused Sanjay Singhal and Neeraj Singhal were not present in Nehru State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 46 Place office. So, there is no question of their being given beatings to deceased or to instigate him to commit suicide. Whatever allegations has been alleged by him against accused B.K. Gupta has come under improvement. Perusal of his cross examination revealed that he had made glaring improvement in his testimony. In cross examination he has stated that he never demanded Rs.3.00 lacs to Rs.4.00 lacs standing in his account from the company. When he had worked in the company it is not understandable as to why he has not claimed his full and final settlement from the company and it seems that Ld. counsel has rightly pointed out that he had taken the loan from the company. However, in this respect, no document has been proved. But this shows the conduct of the witness. It is further stated by him that when he was called in the cabin of Vice Chairman Sanjay Singhal was sitting on his chair and they were sitting on their chairs offered by him which were opposite him. It is clear that the Vice Chairman of the company had offered the chairs to the staff when called to discuss the issue and this shows the conduct of him who is an accused in this case. It has been further admitted by Pw10 that there was no visible mark State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 47 on the person of his brother. The beatings started at 4 p.m and continued upto 10/10.30 p.m and then beatings were continued in Nehru Place Office as alleged by the prosecution. When the beatings were given for such a long time, it is not understandable as to how there was no visible mark on the person of his brother. He has further stated in examination in chief that he sat on the reception and once his brother came outside from the conference room for urinating. At about 4/4.30 p.m BK Gupta has gone inside the conference hall and come out and told that his brother is not available there. From this deposition it is revealed that before 4/4.30 a.m accused BK Gupta was not in the conference hall and before that he was outside the hall because PW10 has further admitted that when his brother has gone out for toilet, he alongwith accused BK Gupta and VR Sharma were sitting at the reception. In cross examination he has stated that when he reached in office at Nehru Place, his brother, accused BK Gupta and chowkidar were present. His brother was not tied with any material. After his brother used toilet, he has not gone to conference room. It is clear from this deposition that his deceased brother was free to move and State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 48 he was not tied with any material. It suggests that he was not wrongfully confined by the accused persons. PW10 has also admitted that he had not heard any voice. He was very well present at both the spots. When he was present there and if such beatings were being given, he should have heard some voice of maltreatment meted to the deceased. But he has clearly stated that he has not heard any voice and it creates doubt in the mind. From the overall deposition of these witnesses it seems that deceased Deepak Garg was taken to Nehru Place to scrutinize the documents of the company just to know as to how much commission he has received and he was not maltreated by accused persons because PW10 has made glaring improvement in his testimony and the prosecution could not establish the presence of accused Sanjay Singhal and Neeraj Singhal at Nehru Place office.
33. I have also given my thoughtful consideration on the testimonies of official witnesses. PW1 Dr.DN Bhardwaj has proved the MLC of deceased Ex.PW1/A. As Per MLC alleged history of fall from 5th floor is mentioned. PW2 Insp.Neeraj has State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 49 proved the copy of FIR Ex.PW2/B. He was not cross examined by the Ld. defence counsel. His testimony in this respect has been corroborated by PW6 ASI Sripal who sent the rukka and PW17 Ct. Babu Lal who brought the rukka. So, copy of FIR Ex.PW2/B has successfully been proved by the prosecution. However, copy of FIR is not a substantive piece of evidence to convict the the accused. PW3 Lalit Mohan is a formal witness who identified the dead body of deceased. PW4 Retired SI Dhan Singh is the witness from crime team but as per his testimony and report Ex.PW4/A no chance prints were found. PW6 ASI Sripal is the first IO who recorded the statement of PW10 and got registered the case. He handed over the further investigation to SI Kuldeep who prepared site plan Ex.PW6/E. PW19 SI Kuldeep has also stated that he prepared the site plan at the instance of PW6. So, site plan Ex.PW6/E is proved on record. He further proved arrest memo of accused BK Gupta Ex. PW6/G and personal search memo Ex.PW6/H. PW19 has also stated about arrest of accused Sanjay Singhal and Neeraj Singhal vide memo Ex.PW19/D and E and personal search vide memo Ex.PW19/F&G. Their testimonies in this respect could not be shattered. So, arrest State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 50 and personal search of all the accused have been proved by the prosecution. It has come in evidence that the statement of complainant was got recorded by ASI Shripal from some other police officials. However, it cannot be denied that PW10 has not given any statement. So, recording of statement by some other police official will not affect the case of the prosecution. PW7 Dr. Millo Tabin has conducted the post mortem on the dead body of Deepak Garg and he prepared his report Ex.PW7/A. As per his report the cause of death was shock as a result of multiple injuries caused by blunt force and which is possible in fall from height. PW8 HC Ramesh and PW9 Ct.Hardev are formal witnesses who recorded DD entries. Pw12 Ct. Tejpal was with IO PW19 SI Kuldeep and both the witnesses have corroborated the version of each other regarding investigation. PW19 has proved FSL report Ex.PW19/G. In this case prosecution has failed to examine the witness who delivered the copy of FIR to the Ld. MM or Sr. Police officials. However, the copy of FIR is available one file which was delivered to Ld. MM on 24.6.99. The present case incident is of 16/17.6.99. It is clear that there is delay in submission of copy of FIR to the Ld. MM. State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 51 PW19 has further admitted in cross examination that as per the statement of Umesh Garg he went to Sahibabad Factory to look for some evidence specially for chilly powder but he found nothing. He did not record any disclosure statement of accused BK Gupta after his arrest. He admitted that on the next day of his arrest he was produced in the court with an application for sending in JC. IO has also not found any incriminating evidence for the presence of chilly powder. There is no explanation from the prosecution side as to why the disclosure statement of accused BK Gupta was not recorded. Pw19 has stated that he came to know the name of one proprietor of Malik Traders who made complaint regarding commission against Deepak Garg. In this case the said proprietor of Malik Trader has not been made witness nor the IO has recorded his statement. PW19 wrote short summary Ex.Pw19/B and in the case history he has mentioned that at about 4.30 a.m when deceased was alone in conference hall probably fall from the window as told to him by Umesh Garg. So, in this short summary told by PW10 to IO, he has not made any allegation against the accused persons for instigating him to commit suicide. PW13 State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 52 & PW18 Ct. Umed & HC Ishwar Dass are formal witnesses who are MHCM and constable who took the exhibits to FSL .
34. In the present case in hand; from the testimony of PW10 as well as other witnesses, it has come in evidence that the deceased has taken commission of Rs.2.00 lacs from the suppliers and when it came in the knowledge of accused B.K Gupta he informed the owner of the company accused Sanjay Singhal and Neeraj Singhal. PW10 has stated that the deceased was given beatings in Sahibabad as well as Nehru Place Office. But his deposition in this respect has come under improvement. Even the version of PW10 regarding putting chilly powder in the anus of his brother has come under improvement and as per FSL result the presence of chilly powder could not be established. It has come in evidence that at the time of beatings PW10 was even with the accused persons from 4.30 p.m to 5.00 a.m. But he did not try to inform the police while the deceased was his brother. This is against the human behaviour. The beatings continued entire night in this case but PW10 has admitted that he did not notice any mark on the person of deceased. State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 53 This version of PW10 also create doubt in the mind and it seems that beatings to such an extend were not given to the deceased. From the testimony of eye witnesses it has come in the evidence that deceased and others were searching some documents in Nehru Place office. It seems that deceased was taken to Nehru Place office to know as to from which parties he had taken the commission and so they were searching the documents over there. All the witnesses including PW10 have stated that accused Neeraj Singhal and Sanjay Singhal were not available in Nehru Place Office. The presence of accused B.K Gupta has been established by the prosecution in Nehru Place office but PW10 has stated that his brother has come outside from the conference room for urinating and at about 4/4.30 a.m accused B.K.Gupta has gone inside the conference hall and come that told that his brother is not available there. His brother was not tied with any material. When his brother has gone out fro toilet he alongwith BK Gupta and BR Sharma were sitting at the reception. All the above deposition of PW10 revealed that his deceased brother was not confined and he was moving in the office freely. From section 107 IPC clause 'First' it is clear State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 54 that a person who instigates other to do a thing, abets him to do that thing. A person is said to instigate another when he incites or otherwise encourages another to commit a crime. The abettor must be shown to have 'intentionally aided the commission of crime and mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirement of section 107. Abetment involves active complicity on the part of the abettor at a point of time prior to the actual commission of the offence and it is the essence of the crime of abetment that the abettor should substantially assist towards the commission of the offence. It is necessary to connect the abettor with those steps which are criminal. PW10 has not stated in his testimony as to what steps the accused persons have taken to encourage the deceased to commit suicide. On the other hand beatings is also doubtful since PW10 has stated that he has not heard any voice. He has not deposed even a single word as to what accused persons have told to deceased and how they instigated him to commit suicide. From the evidence on record it is crystal clear that at the time of jumping from the State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 55 Ist floor of the office, the deceased was alone in the conference hall and before that accused BK Gupta was sitting with PW10 at the reception. From the testimony of PW10 it seems that being brother of deceased he added or exaggerated the facts which may not have been known to him since he has improved his statement a lot in the court.
35. It is well settled principle of law in AIR 2003 SC 3609, State of Punjab Vs.Karnail Singh that :-
"Golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the views which is favourable to the accused should be adopted.The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is not less than from the conviction of an innocent"
36. In view of the above case laws cited by the Ld. defence counsel as well as my discussions above, I am of the view that the prosecution has miserably failed to prove its case beyond any reasonable doubt and therefore the accused persons are entitled to be given the benefit of doubt. I therefore give the benefit of doubt to all the three accused persons in this case. All the three accused Sanjay State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 56 Singhal, Neeraj Singhal and B.K.Gupta are acquitted from the charges levelled against them u/s 306/348/34 IPC. All the accused persons are on bail. So, their bail bonds are cancelled and sureties are discharged. File be consigned to record room.
Announced in the open Court on 16.11.09.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track Court-New Delhi and South East District) NEW DELHI State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 57 State Vs.B.K.Gupta Etc FIR no.412/99 Page No. 58