Delhi District Court
Fir No. 271/05; State vs . Uday Singh Page 1 Of 36 on 25 March, 2014
IN THE COURT OF SH. YASHWANT KUMAR : ADDL.
SESSIONS JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 15/12
FIR No. 271/05
P.S. Mukherji Nagar
U/S: 306 IPC
STATE
Versus
UDAY SINGH
s/o Sh. Inder Singh
r/o H. No. 193,
Vill. Sarai Pipal Thala,
Adarsh Nagar, Delhi
Date of Institution: 11062009
Date of arguments: 25032014
Date of judgement: 25032014
JUDGMENT
1. The case of the Prosecution, in brief, is that on 20042005 on receipt of DD no. 29A, ASI Rajinder Singh along with Ct. Sunil Kumar reached at the spot at quarter no. 6, Maternity Centre, Bhai Parmanand Colony where Allen Victor was found dead and his wife Elizabeth produced three suicide notes to ASI FIR No. 271/05; State Vs. Uday Singh Page 1 of 36 Rajinder who conducted the proceedings u/s 174 Cr.P.C. The postmortem on the dead body of deceased was conducted and viscera and blood of deceased were taken into possession by the police. Investigation regarding suicide notes were conducted by SI Rakesh Kumar. The suicide notes were sent to Kolkata for opinion and when on 27062005 opinion was received, the case was registered. In the suicide note dated 20042005 addressed to SHO PS Mukherjee Nagar, Allen Victor wrote that he was writing in complete sense and given the details and reasons for doing the suicide. His life was going smoothly but suddenly in 1997, everything went against him and Udai Singh r/o 193, Sarai Pipal Thala was responsible for this. In 1997, Udai Singh cheated him for a sum of Rs. 30,000/ and thereafter, he could not get out of his tangle. In the year 1999, Udai Singh sold a Tata Sumo which he borrowed from his friend Naveen Kumar r/o Rohtak for 23 days and he had to pay Naveen Kumar from his own money. In 2002, Udai Singh told him to get Tata 407 in Rs. 63,000/ from Kotak Mahindra Bank, Azadpur office and guarantee of his along with his wife was given. He gave Rs. 63,000/ to Udai Singh for the vehicle. And when he demanded his money back from Udai Singh, he returned the money in peace meal manner. Rs. 22,000/ was due FIR No. 271/05; State Vs. Uday Singh Page 2 of 36 out of this money towards Udai Singh. In August 2002, Udai Singh took authority letter from him by saying that he would deposit the instalments and took the delivery of Tata 407. Udai Singh deposited only seven instalments and Kotak Mahindra company filed case of 138 N.I. Act as his cheques got bounced. In 2003, Udai Singh sold the said vehicle to Sanjay Singh. They gave threats to him and Kotak Mahindra filed a suit for Rs. 5,30,3531/ upon him and he was unable to pay the amount and thought that he would be sent to jail and recovery would be made from his family. He was forced to commit suicide and Udai Singh would be responsible for this. He gave the phone numbers of Udai Singh as 55483489 and 9313970241. FIR u/s 306 IPC was registered and further investigation was handed over to SI Rakesh Kumar who prepared the site plan at the instance of ASI Rajinder Singh and Smt. Elizabeth. Statements of witnesses were recorded u/s 161 Cr.P.C. Accused Udai Singh was searched. Further investigation was handed over to ASI Rohtash Singh. On 27102006, accused Udai Singh was arrested u/s 41.1 (C) Cr.P.C. as he was PO in this case. He gave disclosure statement. Tempo no. HR55B0690 which was in the name of Allen Victor Dass was not found with Sanjay Singh. The details of payments made by accused was FIR No. 271/05; State Vs. Uday Singh Page 3 of 36 obtained from Kotak Mahindra Bank. After completion of investigation, chargesheet u/s 306 IPC was filed against accused Udai Singh.
2. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 306 IPC and 174A IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to prove its case, Prosecution examined 15 witnesses. The statement of the accused was recorded u/s 313 Cr.P.C. wherein he denied all the allegations made against him. The accused opted not to lead defence evidence.
4. I have heard the Ld. defence counsel for accused and Ld. APP for the State and have perused the entire records.
5. The Ld. counsel for the accused argued that deceased was suffering from heart ailments. The suicide notes were neither written by the deceased nor these were seized by the police. The suicide notes and the application for leave dated 14062004 were in the handwriting of wife of the deceased and the same were written by her to extract money from the accused. Even, DD entry was only of one suicide note. There is no evidence regarding case u/s 138 N.I. Act. The deceased sold the vehicle to one Sanjay. FIR No. 271/05; State Vs. Uday Singh Page 4 of 36 The deceased used to live luxurious way of life i.e. using heavy dose of alcohol. The accused never extended threats to the deceased since there is no date, complaint or evidence of threats made to the deceased. There was no complaint to police and even to Kotak Mahindra Bank as to why the vehicle was not given to deceased. Public witnesses improved from the previous statements. There were criminal cases pending against the deceased at the time of his death. PW2/ doctor also admitted that there was possibility of cause of death due to heavy alcohol dose. The accused did not make any disclosure statement. The police officials obtained signatures of the family members of the deceased on blank papers. All the memos were signed while sitting in the PS. The proceedings u/s 82/83 Cr.P.C. were also conducted while sitting in the PS and no evidence has been proved in this regard. The deceased died due to heart ailment, PW1 (wife of the deceased) and his son used to quarrel with him and heavy dose of alcohol. The IO did not conduct the investigation fairly and the accused has been falsely implicated in this case.
6. The Ld. APP for State argued that the wife of deceased and accused were guarantors in the hypothecation of one Tata tempo but accused cleverly took the delivery of the said Tata FIR No. 271/05; State Vs. Uday Singh Page 5 of 36 tempo. The accused used to give threats to the deceased. Suicide notes were recovered in which deceased blamed the accused for cheating and creating such situation that he was compelled to commit suicide. The accused cannot take benefit of faulty investigation, if any. The prosecution has proved its case beyond reasonable doubts. Ld. APP for the State, in support of his arguments, relied upon the judgements reported in the cases of Paramjeet Singh @ Pamma Vs. State of Uttarakhana, AIR 2011 SC 200; State of UP Vs. Krishna Master & ors, 2010 CRI. L. J. 3889; Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR 2004 SC 1920; and Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J. 2653(1).
7. In view of the above arguments of Ld. counsel for the accused, let us discuss the evidence led by the prosecution as to whether he has been falsely implicated or committed the offence as charged in this case. PW1 Smt. Elizabeth Dass in her examinationinchief deposed that her husband L.N. Victor Dass had committed suicide by consuming poison on 20.04.2005. They had been very disturbed about 1-1½ month prior to his death. Her husband had told her and her kids that he was very disturbed due to the act of Uday Singh i.e. the accused. Accused Uday Singh FIR No. 271/05; State Vs. Uday Singh Page 6 of 36 used to threat her husband. PW1 further stated that she and Uday Singh both were guarantor in the hypothecation of one Tata Tempo vehicle which was to be delivered to her husband, but cleverly the accused had taken the delivery of said Tata Tempo vehicle and got the same disappeared. He had not been making the payment of the instalment amount. The cheques of her husband continued to get bounced. The accused Uday Singh had told her husband that he would be depositing the required amount in his bank account, but he did not do the same. Accused extended threats to her husband that PW1 was in government service and she will repay the loan amount or otherwise she (PW1) would loose her job and her husband would have to go to jail. PW1 had gone to the house of accused Uday Singh many times, but he met her on certain occasions. He used to assure her that he will deposit the money on next time, but he did not make the payment of the instalment nor returned the aforesaid vehicle. PW1 also stated that due to that threatening given by the accused Uday Singh, her husband committed suicide. Accused had visited her house several times and extended above threats. PW1 also stated that she can identify the hand writing of her deceased husband being familiar with the same. PW1 had seen three suicide notes placed on file, one FIR No. 271/05; State Vs. Uday Singh Page 7 of 36 addressed to SHO, Mukherjee Nagar, Delhi, another to her and third one to her daughters. PW1 further stated that all the suicide notes were in the handwriting of her husband and bears his signatures also. PW1 proved the suicide note addressed to SHO, P.S. Mukherjee Nagar as Ex.PW1/A, suicide note addressed to her as Ex.PW1/B and the suicide note addressed to her daughters as Ex.PW1/C. PW1 identified the the photographs marked as PW1/X1 to X3 to be her late husband. PW1 also stated that accused had abetted and compelled her husband to commit suicide by consuming poison, which he had described in his suicide note also. PW1 further stated that on 27.10.2006, she had gone to P.S. Mukherjee Nagar after knowing about the arrest of the accused. Her husband had also prayed to the accused several times either to make the payment of the loan instalment or return the vehicle, but he had not done either of anything.
8. PW1, in her crossexamination by Ld. defence counsel, did not remember the date of getting the aforesaid vehicle financed, but stated that it might be 45 months prior to his death. PW1 again said that it was not 45 months, but one year prior to his death. PW1 again said that she did not remember the time of the finance. PW1 did not tell the registration of that vehicle. PW1 also FIR No. 271/05; State Vs. Uday Singh Page 8 of 36 stated that her husband never had possession over the said vehicle. PW1 did not tell the exact date of extending threat to her husband by the accused, but whenever they had been to the house of accused for making prayer to make the payment of the instalment or to return the vehicle or whenever the accused had come to their house, he had extended threat. PW1 again said that the accused had extended threat to her husband prior to 15 days of his death. PW1 also stated that she did not make any complaint to the police in this regard nor her husband. PW1 had not given any statement to the police that on 20.04.2005, her husband was having heart ailment and he died due to that or she was not having suspicion towards anyone. PW1 admitted that the statement Ex.PW1/DA bears her signatures at pointA. PW1 volunteered that police officials had obtained her signatures on blank papers. PW1 denied that her husband committed suicide due to her and not because of Uday Singh's acts. PW1 could not tell the dates of her visits to the house of accused Uday Singh. PW1 also stated that she did not know as to who had made the payment of the arrears of the aforesaid loan. PW1 could not tell on which dates her husband had written the aforesaid suicide notes Ex.PW1/A to Ex.PW1/C. PW1 admitted that she had not signed the arrest memo of the FIR No. 271/05; State Vs. Uday Singh Page 9 of 36 accused. PW1 further stated in her crossexamination that she had stated to the IO in her statement u/s 161 CrPC that they had been very disturbed about 11½ month prior to his death. PW1 was confronted with statement u/s 161 CrPC, Ex.PW1/DA where it was not so recorded. PW1 did not recall if the vehicle was hypothecated or got financed. PW1 also stated that she had stated to the IO in her statement u/s 161 Cr.P.C. that the accused Uday Singh had told her husband that he would be depositing the required amount in his bank account, but he did not do the same. PW1 was confronted with statement u/s 161 CrPC Ex. PW1/DA where it was not so recorded. PW1 further stated that she had stated to the IO in her statement u/s 161 CrPC that she had gone to the house of the accused Uday Singh many times, but he met her on certain occasions. PW1 was confronted with statement u/s 161 CrPC, Ex.PW1/DA where it was not so recorded.
9. PW1 further stated in her crossexamination that at the time when her husband expired, only one qualified MBBS Doctor was posted / available in the hospital. PW1 herself had not seen any paper, diary and other things around her husband at the time of removing him to the Hospital. PW1 volunteered that he had already handed over the suicidal note to her daughter. During the FIR No. 271/05; State Vs. Uday Singh Page 10 of 36 visit to the hospital, her daughter had not disclosed her regarding handing over any suicidal note to her by her husband. Her husband had expired prior to taking him inside the hospital but he was checked by Doctor in the casualty. PW1 also stated that when the attending Doctor declared her husband as "dead', they took his body at their house. PW1 further stated that they did not inform the police immediately after taking the dead body of her husband to her house. PW1 volunteered that police was informed after about three / four hours. None of her relative reached to the hospital or informed the police. PW1 herself had not gone through the suicidal notes of her husband but her relatives as well as her daughter had gone through the same prior to making call. PW1 also stated that in suicidal note Ex.PW1/C addressed to the daughter that she should not believe on her brother. PW1 further stated that at the time of death of her husband, there were two cases against him to the best of her knowledge and she had stood surety for him in those two cases. One case was pending against him at Kaithal, Haryana and he used to go there to attend the court proceedings. PW1 was not aware if the case at Kathal was pertaining to offence of theft. PW1 also stated that she is not aware if the cases qua theft / cheating were pending against her husband beside case of Kotak FIR No. 271/05; State Vs. Uday Singh Page 11 of 36 Mahendra. PW1 also stated that in her presence, police had not recorded the statement of ANM Urmila. There was no dispute between her deceased husband and her son. PW1 stated that she had never paid any installment towards the loan of the Tata 407 from her personal bank account. PW1 volunteered that only Rs. 30,000/ out of the total amount of Rs. 60,000/ which was deposited initially was provided by her but PW1 did not recall whether she had disclosed this fact of payment of Rs. 30,000/ to the police or not in her statement recorded by the police. PW1 stated that she had withdrawn said Rs. 30,000/ from her bank account. Her husband was not having any business or jobs prior to his death. PW1 did not make any complaint against the Kotak Mahendra Bank/company for not delivering the vehicle to her husband.
10. PW2 Dr. Rajesh Gupta, CMO, Sardar Vallabh Bhai Patel Hospital, Patel Nagar, Delhi in his examinationinchief stated that on 21.04.2005, he conducted the postmortem on the body of deceased Allen Victor Dass, male 53 years, identified by the police officials and relatives. Body was brought in the mortuary on 20.04.2005 at about 10.30 pm. Inquest paper and request for conducting postmortem was received on 21.04.05 at about 11.00 FIR No. 271/05; State Vs. Uday Singh Page 12 of 36 am. PW2 commenced the postmortem on the dead body at about 02.00 pm and concluded by 05.00 pm. PW2 stated that in general description, the deceased was wearing shirt, payjama, banyan and underwear and he was well built, rigor mortis was found present over the dead body. On examination, PW2 found the following external injuries on the dead body:
1. Linear half circular mark of DC shock on the left chest just below nipple of diameter 9 cm On internal examination, PW2 found no abnormality in head, neck, chest or spinal column. In the abdomen and pelvis , liver gall bladder, spleen, kidney, pancreas were found to be congested and intact. On opening of stomach , 2/3 ounces silverish colour fluid was found. PW2 further stated that cause of the death could not be given on that day due to nonavailability of chemical analysis report of viscera. As per his report, the time since death was 22 to 23 hours. Viscera was preserved and was handed over to the police officials in sealed condition for chemical examination. PW2 proved the postmortem as Ex.PW2/A. PW2 further deposed that on 25.9.2013, IO produced FSL result and after going through the FSL result, he gave his subsequent opinion that in view of the PM and FSL reports, no definite opinion regarding the cause of death FIR No. 271/05; State Vs. Uday Singh Page 13 of 36 could be given. However, presence of Ethyl Alcohol in viscera was suggestive of that the deceased had consumed alcohol prior to his death. PW2 proved his subsequent opinion as Ex. PW2/B. PW2 during his crossexamination stated that injury found on external examination was due to treatment given prior to him (patient) in Hindu Rao Hospital. PW2 admitted that the possibility of cause of death of deceased, under his report Ex.PW2/B, due to the heavy alcohol dose cannot be ruled out.
11. PW3 HC Satyawan in his examinationinchief stated that on 27062005, he was on duty from 05.00 pm to 01.00 am as duty officer. On that day at about 10.00 pm, the then SHO Inspector PC Maan handed him one complaint after endorsement for registration of FIR u/s 306 IPC. On the basis of same, PW3 registered the present FIR u/s 306 IPC which was in his handwriting and signatures. PW3 proved the copy of FIR as Ex.PW3/A. He made his endorsement on complaint Ex.PW1/A. PW3 also stated that after registration of FIR, as per directions of SHO, investigation of this case was marked to SI Rakesh Kumar.
PW3 during his crossexamination stated that no complainant or public person had come to him with this complaint. PW3 volunteered that SHO had handed him this complaint with direction FIR No. 271/05; State Vs. Uday Singh Page 14 of 36 to register the FIR and he followed the instructions. PW3 had never joined investigation during entire investigation of this case nor met any public witness concerned with this case.
12. PW4 Ct. Rakesh Kumar in his examinationinchief stated that on 28.09.2005, as per directions of IO of this case, he took the two sealed envelopes with the seal of RK in sealed condition for depositing the same at CFSL, Kolkata with forwarding letter. PW4 went to office of the CFSL, Kolkata, deposited the sealed envelopes and forwarding letter there. Till the envelopes and forwarding letter remained in his possession, nothing was tampered with in any manner. PW4 had received the envelopes from the MHC(M) through road certificate. PW4 in his cross examination stated that the road certificate no. was not mentioned in his statement but orally he recalled the RC no. was 97/21/05.
13. PW5 HC Raj Kumar in his examinationinchief stated that on 27102006, he along with ASI Rohtash Singh and Ct. Mehandi Hassan were present at main road, Sarai Pipalthala in search of proclaimed offender Uday Singh. There, IO received a secret information that Uday Singh will come at his residence at house No. 193, Sarai Pipalthala to meet his family members. Thereafter, they all reached in front of house No. 193, Sarai FIR No. 271/05; State Vs. Uday Singh Page 15 of 36 Pipalthala and made nakabandi there and at about 11.15 am, accused Uday Singh, came there who was apprehended by them on the pointing out of informer and thereafter, he was arrested. IO recorded his disclosure statement. PW5 proved the arrest memo and personal search memo of accused u/s 41.1 CrPC Ex.PW5/A & Ex.PW5/B respectively. PW5 also proved the arrest memo and personal search memo of accused in the present case as Ex.PW5/C & Ex.PW5/D respectively. PW5 also proved the disclosure statement of accused as Ex.PW5/E.
14. PW6 Ms. Preeti Dass in her examinationinchief stated that prior to her marriage, she used to reside at quarter No. 6, maternity centre, Bhai Parmanand colony along with her mother namely Ms. Elizabeth Dass, her father Allen Victor Dass (since expired) and her younger brother and sister. Her mother was working in maternity centre, Parmanand colony as ANM (auxiliary nurse and midwife). PW6 further stated that on 20.04.2005 her father committed suicide. Her father had purchased a TATA tempo 407 after taking a loan from Kotak Mahendra Bank and for that loan her mother was the first guarantor and accused Uday Singh was the second guarantor. Accused Uday Singh took the said tempo Tata 407 from her father and promised her father that the bank FIR No. 271/05; State Vs. Uday Singh Page 16 of 36 instalments will be paid by him regularly. Accused had paid seven or eight monthly instalments to the bank against the said loan and thereafter he discontinued to make the payments to the bank. Then the Kotak Mahendra bank sent notices to her father. The Kotak Mahendra bank also filed cases against her father for dishonour of cheques which were given by her father to the bank for the payment of monthly instalments of said loan. Once he had also been arrested in said case of dishonour of cheque and accused Uday Singh had managed his bail. PW6 further stated that her father and her mother visited the residence of the accused i.e. H. No. 193, Sarai peepal thala and requested him to make the payments to the bank regularly or to return the tempo to her father. Initially, accused said that he would make the payment regularly but he did not make any payment and later on he started threatening her father that neither he will make the payment to the bank nor he will return the tempo to him and further said "jo karna hai karle. Jail to teri biwi jayegee kyonki first guarantor to teri biwi hai". PW6 also stated that when her father had committed the suicide i.e. on 20.04.2005, the judgment in the said case of dishonour of cheque against him was about to come and he was apprehending that the judgment would surely be against him as the FIR No. 271/05; State Vs. Uday Singh Page 17 of 36 payment to the bank was not made. During that period he also came to know that the accused had sold the said Tata 407 to Sanjay Transport company. Accused also used to come to her said residence and used to threaten her father to send him to jail. PW6 also stated that for about last 1½ year prior to the commission of suicide by her father, her father was under immense pressure which was caused by the accused by not making the payment to the bank as promised by him and also by not returning the said tempo to her father and also due to the threats which he used to extend to her father and only because of this reason her father had committed suicide. PW6 further stated that whenever she used to talk with her father on this issue, he issued to tell me "koi baat nahi beta, mein teri maa par aanch nahi aane doonga". PW6 stated that her mother was the sole earning member at that time in her family. PW6 identified the signatures of her late father Allen Victor Dass on Ex.PW1/A, Ex.PW1/B and Ex.PW1/C stating that she had seen her father writing and signing since her childhood till the death of her father.
15. PW6 in her crossexamination was shown her statement dated 20.04.2005 Ex. PW6/DA and questioned that whether the said statement was in her handwriting to which PW6 FIR No. 271/05; State Vs. Uday Singh Page 18 of 36 answered in negative and stated that it was not in her handwriting but it bears her signature at point A. PW6 stated that Ex. PW6/DA was written by the police official who had reached her house after making a call at number 100 by them. PW6 also stated that she had not stated anything to that police official and he on his own had written the statement and obtained her signature as on that day she was very nervous as they had brought the dead body of her father from Hindu Rao hospital. PW3 further stated that she did not know whether the facts stated by her to the police were recorded by the police in writing or not. Sometimes the police officials/IO recorded her statement whenever she used to state them but PW6 stated that her no statement except Ex. PW6/DA was available on the file. PW6 also stated that she was not having any knowledge if the police had given any receipt, acknowledgement, copy of seizure memo when the said suicide note along with other documents were handed over to the police. On a question that why the words, "isme kuch dosh to mera hi hai aur kuch aapki mummy wa uske ladke (yani apke bhai) ka, sab par vishwash karna parantu apne bhai par nahi. Jo yah kehta hai ki hamne usay paida kyo kiya. Baki mujhe kisi se koi shikva shikayat nahi hai." were mentioned in Ex. PW1/C, PW6 answered that Ex. PW1/C was addressed to her FIR No. 271/05; State Vs. Uday Singh Page 19 of 36 younger sister and she could only say that her brother was not in good company and he used to quarrel with her father as to why he (her father) had created this problem of bank loan and purchase of Tata 407 etc. as he also used to visit residence of accused along with her father and used to see the disturbed mental condition of her father and her father used to say to him "tum abhi chote ho in baton mein mat pado, mein apne aap settle karloonga" and then her brother used to say, "to mujhe paida hi kyo kiya". PW6 further answered that in the year 2005, her brother had completed his XII and he was in a bad company so her father used to advise him. PW6 in her crossexamination further stated that her father was not having any business in the year 2005. In her knowledge, her father did not make any complaint to the police against accused Uday Singh. PW6 denied that since her father was not earning and was habitual of alcohol so her mother and brother used to quarrel with him or that he was facing trial in cheating and theft cases at Delhi and Haryana or that the suicide notes have been written by her mother after the death of her father to falsely implicate the accused with intent to extort money from him. PW6 further denied that her father died due to overdose of alcohol.
16. PW7 Dr. Neelam Singh, Medical Officer Incharge, FIR No. 271/05; State Vs. Uday Singh Page 20 of 36 Bhai Parmanand Colony Maternity Home, MCD, North in her examinationinchief stated that on 01082005, she was working as Medical Officer Incharge Maternity Home (MCD) Bhai Parmanand Colony, Delhi9. On that day on the request of SI Rakesh Kumar of PS Mukherjee Nagar, she handed over one casual leave application dated 14604 of Mrs. Elizabeth Dass, who was working as Auxillary Nurse Mid Wife at said maternity home, in connection with FIR no.271/05, u/s 306 IPC, PS Mukherjee Nagar after taking the same from the record of her office. PW7 proved the certificate in this regard issued by her dated 1805 as Ex.PW7/A. PW7 after seeing the application Ex. PW1/DX available on judicial file stated that it was the same application which was handed over by her to SI Rakesh Kumar, bearing signatures of Mrs. Elizabeth Dass at point A and signatures of other Auxillary Nurse Mid Wife, namely, Urmila at point B, who had performed the duty of Mrs. Elizabeth Dass on 15604 and 16604 due to her absence from the duty being on casual leave.
17. PW8 Ct. Mehandi Hassan in his examinationinchief deposed on the same lines of PW5 and deposed about the arrest and personal search of accused. In addition, PW8 also stated that on 20122006, he again joined the investigation of the present FIR No. 271/05; State Vs. Uday Singh Page 21 of 36 case with ASI Rohtash Singh and on that day, he handed over him one written document to verify the name of the registered owner of vehicle No. HR 55 B 0690, as such, along with the said written request of the IO, PW8 reached at the Transport Authority, Gurgaon, Haryana and where PW8 met with the dealing clerk and verified from the record that the registered owner of HR 55 B 0690 was Allan Victor Dass s/o Wilson Dass, r/o Flat No. 6, Maternity Home, Bhai Parmanand Colony. PW8 submitted his report Ex.PW8/A to this effect to ASI Rohtash. PW8 in his cross examination stated that arrest memo already Ex. PW5/A and personal search memo Ex. PW5/B bears his signatures. PW8 further stated in his crossexamination that verification report taken from the transport authority did not bear either any signature or seal of the concerned official of the authority. PW8 denied that he did not join the investigation with the IO or that he had signed the documents at the instance of IO at PS being his subordinate. PW8 further denied that accused did not make any disclosure statement or the same was recorded by the IO on his own.
18. PW9 SI Rohtash Singh in his examinationinchief also stated on the same lines as stated by PW5 and PW8. However, PW9 further stated that on 20.12.2006, he handed over to Ct. FIR No. 271/05; State Vs. Uday Singh Page 22 of 36 Mehandi Hassan one written document to verify the name of the registered owner of vehicle No. HR 55 B 0690, as such, along with the his said written request, he went to the Transport Authority, Gurgaon, Haryana for verification and he came back to PS and submitted his report Ex. PW8/A to this effect to him. PW9 also stated that after verification from Mahendra Kotak Bank, it was revealed that loan in the name of deceased Allan Victor in which the accused being the guarantor deposited the money, got cleared the account of deceased Allan Victor. After completion of investigation, PW9 filed the chargesheet before the Court. PW9 in his crossexamination stated that he had annexed the opinion sought from the Chief Prosecutor, NW, Delhi from the then SHO, PS Moti Nagar vide diary No. 42 dt. 28.06.2005 Ex. PW9/DA.29.
19. PW10 Sh. L. Loganathan, Assistant Government Examiner of Questioned Documents, presently posted at CFSL, Guwahati, (Assam) in his examinationinchief stated that on 30.09.2005, he was posted at GEQD, Kolkatta, West Bengal as Assistant Government Examiner. One case with four sheets was endorsed to him for examination and opinion. The said documents were forwarded by Addl. DCP (NW), Delhi vide memo No. 5544/SOADCPI/NWD dt. 27.09.2005. The documents were FIR No. 271/05; State Vs. Uday Singh Page 23 of 36 marked as Q1 to Q5 and A1 by him. The documents were already exhibited as Ex.PW1/A, 1/B, 1/C and 1/DX which he identified from the judicial file. PW10 further stated that the documents were examined by him and it was opined by him that the red enclosed writing stamped and marked Q 1 to Q 5 and A1 were all written by one and the same person. He proved his detailed report as Ex. PW10/A. PW10 further stated that all the handwriting characteristics found to agree inter se in the documents marked Q1 to Q5 and A1. PW10 in his crossexamination stated that he, after examination of the documents, tallied the result and process adopted by them. PW10 admitted that only the report Ex.PW10/A was forwarded to Addl. DCP (NW), Delhi. PW10 further stated that each and every letter / figure and their combinations containing in the documents were considered by them in arriving at the conclusion.
20. PW11 ACP P.C. Mann in his examinationinchief stated that he was posted as SHO PS Mukherjee Nagar from January 2004 to March 2006. On 20.04.2005, ASI Rajender Singh posted in PS Mukherjee Nagar received a suicide call vide DD no. 29A. He conducted inquest proceedings in the death of deceased Allan Victor Dass. PW11 stated that in this case three separate FIR No. 271/05; State Vs. Uday Singh Page 24 of 36 pages of suicide notes were recovered written by the deceased Allan Victor Dass. On 27.06.2005, he made his endorsement Ex. PW11/A on the suicide note Ex.PW1/A and ordered that after registration of the FIR further investigation of the case be handed over to SI Rakesh Kumar. PW11 in his crossexamination stated that the opinion was sought from the department of prosecution on his application dt. 24.06.2005 Ex. PW9/DA. PW11 also stated that as per the opinion of the prosecution vide Ex.PW9/DA, no definite opinion could be given with the remarks that, "in the absence of viscera report".
21. PW12 Sh. Suyash Naaraayan, Legal Manager, Kotak Mahindra Bank, Pitampura Branch, Delhi in his examinationin chief stated that he was deputed by the Branch Manager, Kotak Mahindra Bank as the then dealing clerk Sh. Prem Kumar Gupta had already left the services of the Bank and his present whereabouts were not know. PW12, after seeing the record from judicial file, stated that as per the record on 20.12.2006, the dealing clerk Mr. Prem Kumar Gupta had furnished the letter to SHO PS Mukherji Nagar in which the loan no. CV413230 taken by Sh. Allan Victor Dass (deceased) had been settled for a sum of Rs. 01.20 lacs on 23.02.2006 as the same was deposited by his guarantor FIR No. 271/05; State Vs. Uday Singh Page 25 of 36 Uday Singh. PW12 proved the said letter as Ex.PW12/A and he identified the signatures of Sh. Prem Kumar Gupta at point A. PW12 also proved the computer generated copy of statements of account running into 17 pages collectively as Ex. PW12/B. PW12 in his crossexamination stated that as per the terms of the loan agreement only the main borrower is entitled to receive the delivery of the vehicle. PW12 admitted that till the dues of the loan were due upon the borrower, he was not authorised to sell the vehicle and if it was sold and then it was an offence as per the terms of the Bank. PW12 further stated that till the loan account was finally settled on 23.02.2006, the vehicle was not transferred in the name of any person as per their record.
22. PW13 SI Rajender Singh, stated in his examination in chief that on 20.04.2005, on receiving the DD No. 29A Ex.PW1/DB, he along with Ct. Sunil Kumar reached at Maternity Centre, Quarter No. D6, Mukherji Nagar, Paramanand Colony, Delhi. In the said house, dead body of one male was lying. PW13 called the Crime Team and the Crime Team inspected the spot and took photographs from different angles. One Ms. Allizabeth w/o deceased L.N. Victor produced three suicide notes Ex.PW1/A, Ex.PW1/B and Ex.PW1/C. PW13 recorded the statement of Smt. FIR No. 271/05; State Vs. Uday Singh Page 26 of 36 Allizabeth and her daughter Kumari Preeti Dass. PW13 also recorded the statement of brother of deceased. The dead body was sent to Mortuary, Subzi Mandi through Ct. Sunil. PW13 also stated that on the next day, he conducted the inquest proceedings. PW13 proved the request for postmortem as Ex.PW13/A. PW13 filled the form No. 25.35 Ex.PW13/B. PW13 proved the brief facts of the case as Ex.PW13/C. PW13 also proved the statement of Smt. Allizabeth as Ex.PW1/DA, the statement of Kumari Preeti Dass as Ex.PW6/DA and the statement of Aric Wilson as Ex.PW13/D. The dead body was identified by Aric Wilson and Sanjay vide identification memos Ex.PW13/E and Ex.PW13/F respectively. PW13 got conducted the postmortem on the dead body of deceased. After the postmortem, Doctor handed over Viscera and sample seal sealed with the hospital and same was taken into possession vide seizure memo Ex.PW13/G. After the postmortem, dead body of deceased was released to the relatives of deceased. PW13 in his crossexamination stated that he did not inquire as to when the dead body was brought to the house from the hospital. All the three alleged suicide notes were handed over to PW13 by the wife of the deceased which were separately folded. PW13 did not inquire from the wife of the deceased as to when and FIR No. 271/05; State Vs. Uday Singh Page 27 of 36 where the aforesaid suicide notes were found to her. PW13 also did not inquire as to when the said suicide notes were found to her either prior of taking her husband to the hospital or after taking the dead body of her husband to the house and till the investigation of this case remained with PW13, he did not verify the alleged suicide notes.
23. PW14 ASI Suresh Kumar in his examination in chief stated that on 21.04.2005, ASI Rajeev had deposited one viscera box and sample seal sealed with the seal of hospital and he took the same and relevant entries were made in the register no. 19 vide sr. no. 1651. PW14 also stated that on 22.03.2006, the exhibits in the present case were sent to FSL, Rohini through Ct. Ram Krishan vide RC No. 18/21/06 in a sealed condition. After depositing the seal, he handed over PW14 a receipt. As per the record on 26.02.2010, FSL result was received and handed over to SI Pradeep Kumar to deposit the same in the court. PW14 proved the photocopies of the relevant entry of register no. 19 and RC as Ex.PW14/A and Ex. PW14/B respectively. The Ld. APP tendered FSL result as Ex. PX1.
24. PW15 Inspector Rakesh Kumar Tyagi, in his examination in chief stated that on 27062005 after registration of FIR No. 271/05; State Vs. Uday Singh Page 28 of 36 FIR the present case file was handed over to him for further investigation. On 01.08.2005, he collected the leave application Ex.PW1/DX of deceased from Maternity Centre, Permanand Colony which was signed by wife of deceased. Thereafter the said application for leave and suicide note were sent to FSL, Calcutta. On 22.03.2006 the exhibits i.e. Viscera box and sample seals in a sealed condition were sent to FSL, Rohini in a sealed condition through Ct. Ram Krishan vide RC No. 18/21/06. During the investigation, PW15 made efforts to search/arrest the accused Uday Singh but all in vain. PW15 obtained the NBW against the Accused Uday Singh on 27.05.2006. PW15 recorded the statement of witnesses and thereafter he was promoted and handed over the case file to MHC(R) PS, Mukherjee Nagar. PW15 in his crossexamination stated that the leave application of the deceased was not seized vide seizure memo. No statement of any staff of the hospital was recorded. During the investigation except the leave application, PW15 did not collect any other admitted hand writing of deceased from bank, courts and note books etc. as it was not required when the leave application was available.
25. It is evident from the testimonies of PWs discussed above that PW1 wife of the deceased was not aware when the FIR No. 271/05; State Vs. Uday Singh Page 29 of 36 vehicle in question was financed. PW1 also did not know as to who paid the amount of arrears of the vehicle. PW1 admitted that she did not make any complaint against the Kotak Mahendra Bank/Company for not delivering the vehicle to her husband. PW12 Legal Manager, Kotak Mahindra Bank admitted that as per the terms of the loan agreement, only main borrower was entitled to receive delivery of the vehicle. PW12 further admitted that till the loan amount was finally settled on 23022006, the vehicle was not transferred in the name of any person as per their record. PW1 also admitted that her husband (since deceased) was not having business or job prior to his death. PW1 further admitted that at the time of death of her husband, there were two cases against him and she had stood surety for him. PW6 also admitted that her father was not having any business in the year 2005. PW1 could not tell that the accused extended threats to her husband. Even, no complaint was made by her or her husband to the police in this regard. PW6 also admitted that her father did not make any complaint to the police against the accused. PW1 admitted that at the time when her husband expired, only one qualified MBBS doctor was available in the hospital. PW1 also admitted that her husband had expired prior to taking him inside the hospital but he FIR No. 271/05; State Vs. Uday Singh Page 30 of 36 was checked by the doctor in the casualty and the attending doctor declared her husband as dead. Thereafter, they took his body at their house but they did not inform the police immediately after taking the dead body. However, police was informed after about 3/ 4 hours. PW13 SI Ravinder Singh admitted that he did not inquire as to when the dead body was brought to the house from the hospital. PW2 Dr. Rajesh Gupta who conducted the postmortem of deceased admitted that possibility of cause of death of deceased, due to heavy alcohol dose, could not be ruled out.
26. PW1 could not tell on which dates her husband had written the suicide notes Ex. PW1/A to Ex. PW1/C. PW1 admitted that she herself had not seen any paper, diary and other things around her husband at the time of removing him to the hospital. PW1 also admitted that during the visit to the hospital, her daughter had not disclosed her regarding handing over any suicide note to her by her husband. PW1 further admitted that in suicidal note Ex. PW1/C addressed to the daughter that she should not believe her brother. PW1 stated that there was no dispute between her deceased husband and her son. Whereas, PW6 daughter of the deceased stated that her brother was not in a good company and he used to quarrel with his father. PW6 could not tell if police had FIR No. 271/05; State Vs. Uday Singh Page 31 of 36 given any receipt, acknowledgement or copy of seizure memo when the suicide note along with other documents were handed over to the police. PW13 stated that all the three suicide notes were handed over to him by the wife of the deceased which were separately folded but he did not inquire from the wife of the deceased as to when and where the said suicide notes were found by her. Even, till the investigation of the case remained with him, PW13 did not verify the alleged suicide notes. PW15 Inspector Rakesh Kumar Tyagi admitted that during investigation except the leave application, he did not collect any other admitted writing of deceased from Bank, courts, and note books etc. as it was not required.
27. PW1 improved from her previous statement u/s 161 Cr.P.C. PW6 daughter of the deceased admitted that her statement dated 20042005 Ex. PW6/DA was not in her handwriting but it bears her signature at point A. The said statement was written by the police official but she had not stated anything to that police official. PW6 stated that sometimes the police officials/ IO recorded her statement whenever she used to state them but no statement of PW6 except Ex. PW6/DA was available on the file.
FIR No. 271/05; State Vs. Uday Singh Page 32 of 36
28. Let us further examine whether arrest, personal search, recovery and seizure of the documents have been proved by the prosecution. PW1 in her crossexamination volunteered that police officials obtained her signatures on blank papers. PW1 admitted that she had not signed the arrest memo of the accused. PW15/ IO admitted that the leave application of the deceased (on behalf of his wife) was not seized vide seizure memo. In Ajay @ Chotu Vs. The State, 2012 [2] JCC 1261, it was held by the Hon'ble High Court of Delhi that three conflicting versions undermine the prosecution's versions about arrest of the accused. Principle laid down by the Hon'ble Apex Court has been followed that the circumstances surrounding arrest of the accused and doubts emerging from the prosecution's case can be a ground for acquittal.
29. In the present case, there is no public or independent witness to the arrest, personal search, disclosure statement and seizure memos. The police officials are only interested in the success of their story and therefore the testimonies of police officials cannot be believed without corroboration. In my considered opinion, statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness imparts FIR No. 271/05; State Vs. Uday Singh Page 33 of 36 much more authenticity and credit worthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search and seizure.
30. In the circumstances of the present case, the accused not giving any explanation in his examination u/s 313 Cr.P.C. could not be taken to be a circumstance pointing towards irresistible conclusion that he is involved in the commission of the crime. Therefore, a finding of guilt cannot be based on a presumption. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. The Prosecution has failed to prove any of the circumstances relied upon by them. The case of the prosecution is only based on suspicion and it is a settled law that suspicion however strong, cannot take place of proof. In Ashish Batham Vs. State of M.P. 2002 (3) JCC 1883, it was held that realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does FIR No. 271/05; State Vs. Uday Singh Page 34 of 36 not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between may be true "and must be true" and this basic and golden rule only helps to maintain the vital distinction between conjectures and "sure conclusions" to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record. In the present case, the prosecution has also not been able to prove the offences u/s 306 and 174A IPC qua the accused. In Sadhu Singh Vs. State of Punjab, 1997 (3) Crimes 55, the Hon'ble Punjab & Haryana High Court held that in a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbably or lacks 'credibility', benefits of doubt necessarily has to FIR No. 271/05; State Vs. Uday Singh Page 35 of 36 go to accused. In Vikramjit Singh @ Vicky Vs. State of Punjab, 2007 (1) CC Cases (SC) 35, it was held by the Hon'ble Supreme Court that where two views of a story appeared to be probable, the one that was contended by the accused should be accepted.
31. Thus, in view of my aforesaid discussion, I am of the considered opinion that Prosecution has not been able to prove its case against the accused beyond reasonable doubt. Accordingly, the accused is acquitted. His bail bonds are extended for a period of six months u/s 437A Cr.P.C. File be consigned to Record Room.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT on 25032014 FIR No. 271/05; State Vs. Uday Singh Page 36 of 36