Delhi District Court
State vs . 1. Shyam Gupta on 1 October, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 1233/2010
Unique Case ID: 02404R0793402007
State Vs. 1. Shyam Gupta
S/o Chander Parkash
R/o A87, Second Floor,
Saraswati Vhiar, Delhi.
(Acquitted)
2. Umesh Gupta
S/o Chander Parkash
R/o 3380, Sita Ram Bazar, Delhi.
(Acquitted)
FIR No. : 624/2004
Under Section : 306/34 Indian penal Code.
Police Station : Jahangirpuri
Date of committal to Sessions Court: 13.9.2010
Judgment reserved on : 22.9.2011
Judgment pronounced on : 1.10.2011
JUDGMENT
Brief Facts:
As per the allegations, on 1.9.2004 between 12:30 PM to 2:30 PM at House No. A35, Gali No. 21, Mahendra Park, Delhi, the accused Shyam Gupta and Umesh Gupta, in furtherance of their common intention, abetted the suicide of deceased Jajpal. State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 1 of 52 Case of prosecution in brief:
The case of the prosecution in brief is that on 1.9.2004 on the receipt of DD No. 20 , SI Sanjay Dahiya along with Ct. Amit Kumar reached at H. No. A35, Gali No. 21, Mahendra Park, Delhi, and found a dead body hanging in the corner of kitchen tied with a white cloth, which was tied from one side with an angle of the water tank and the name of the deceased was known as Jajpal and the foot of the body were found touching the ground with the knees slightly bend. SI Sanjay Dahiya called the crime team which inspected the scene of crime. SI Rajesh Kumar prepared the crime team report and photographs of the body were taken. On formal search of the dead body one pocket diary and one pen was recovered from the pocket of the shirt which pocket diary was having a suicide note. The complainant Gulshan Lal, the landlord of the house and who was Jija of deceased Jajpal was also present there. SI Sanjay Dahiya recorded his statement wherein Gulshan Lal told him that he was running a perchoon shop at E156, Jahagir Puri and that on 1.9.2004 at about 12 Noon, his brotherinlaw (Jajpal) came to his house who was in depression and when he (Gulshan) asked him as to what happened, Jajpal told him that Shyam Gupta and Umesh Gupta have cheated him and have disowned him from the ready made garments shop situated at Tank Road and have also registered a false FIR against him in Police Station Prasad Nagar. The complainant Gulshan State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 2 of 52 further told the police that the deceased has also informed him that the accused were not returning his money which he had invested in the garments business whereas his children were in starvation.
Gulshan Lal further told the Investigating Officer that he consoled Jajpal and thereafter he went to his room but at about 2:30 PM when he called Jajpal for lunch, he did not respond on which he came down and found the door closed from inside on which he got suspicious and call the brother of Jajpal namely Mahender who reached there at about 3:15 PM and thereafter Mahender peeped inside after climbing the ladder and entered the room where he found Jajpal hanging with a Chadar. Thereafter they called the police and police came there along with crime team. On the basis of statement of Gulshan Lal, the case was registered and investigation was initiated. During investigations, the accused were arrested and after completing the investigations, charge sheet was filed in the court. CHARGE:
Charges under Section 306 read with Section 34 Indian Penal Code were settled against both the accused Shyam Gupta and Umesh Gupta to which they pleaded not guilty and claimed trial. EVIDENCE:
In order to discharge the onus upon it, the prosecution has examined as many as eleven witnesses:
State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 3 of 52 Public witnesses:
PW5 Gulshan Lal is the complainant who has deposed that he is running a Parchoon shop at E156, Jahangirpuri and on 01.09.2004 he was present at his house at that time his brotherinlaw Jajpal had come to met him. According to him, Jajpal was in a state of depression (gumsum) at that time and when he (witness) asked him as to what had happened, he (deceased) told him that he had some problem in the business and was in some business dispute with Shyam Gupta and Umesh Gupta. Witness has further deposed that his brotherinlaw thereafter went to the room on the ground floor and at about 22:30 PM he called him for the lunch but he (deceased) did not respond and they found that he had shut the door and tied kundi from inside on which he (witness) made a telephonic call to his brother Mahender Batra who came. According to the witness, they are having an iron net on the first floor as they used to reside at first floor. Witness has further deposed that Mahender Batra thereafter peeped inside on climbing the ladder and found Jajpal hanging with a chaddar when he made a telephonic call to the police on which police along with the crime team came there and conducted a casual search of the dead body and one suicide note, one pen and one dairy were recovered from his pocket. According to the witness, the police took the body of Jajpal to the BJRM Hospital and his statement was recorded by the Investigating Officer which is Ex.PW5/A and the State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 4 of 52 dairy, suicide note and pen were sealed by the IO who took the same into possession vide seizure memo Ex.PW5/B. Witness has correctly identified one pocket dairy having the suicide note already marked as Q1 to Q4 and having the seal of FSL, Govt. of NCTD Document Division, as recovered from the pocket of his brotherinlaw/ deceased which is Ex.P1. Witness has also correctly identified one pen as recovered by the police from the spot which is Ex.P2.
In his cross examination by Ld. APP for the state witness has admitted that his brotherinlaw had told him that Shyam Gupta and Umesh Gupta had cheated him and that deceased had also told him that he was got implicated in a false case at Police Station Parshad Nagar to get the ready made garment shop vacated. The witness also admitted that the deceased had told him that the aforesaid two persons were not returning his amount which he invested in the business of garments in the aforesaid shop and also admits that he had told the aforesaid facts to the police in his statement Ex.PW5/A. He further admits that after being harassed by accused Umesh Gupta and Shyam Gupta he (deceased) committed suicide.
In his crossexamination by Ld. Defence counsel witness has deposed that he was residing in the aforesaid house for the last about 1820 years and deceased was in the business for last about 34 years prior to his death. According to him the deceased was having a State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 5 of 52 shop in the market but he had no knowledge whether because of the losses of the business he had sold the shop in the year 2003. Witness has admitted that on the day when he (deceased) committed suicide he had no shop in the market. Witness has further deposed that he does not know whether persons in the market had to take money from the deceased. Witness has denied the suggestion that the deceased had joined as an employee with the accused persons just 2025 days prior to the incident and he states that he had no knowledge if whether during these days deceased had started committing thefts of the goods lying at the shop or that on one occasion he was apprehended by Shyam Gupta. He also has no knowledge whether the services of the deceased were terminated by accused persons. Witness has denied the suggestion that the deceased had joined the service with accused persons on 01st week of July, 2004. Witness has further deposed that it is not within his knowledge that on 18.08.2004 the deceased had gone in the godown of the accused persons carrying petrol in the plastic container and the same was sprinkle in the godown of Shyam Gupta when Shyam Gupta was also present in the godown. He is also not aware whether the deceased has set ablaze the shop of the accused persons and it is also not within his knowledge whether FIR No. 210/2004 U/S 436/307 IPC was registered against the deceased. According to him it was not in his knowledge whether on 20.08.2004 the anticipatory bail State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 6 of 52 application of the deceased was dismissed by the Sessions Judge, Tis Hazari Court and he also had no knowledge if thereafter the family of deceased approached the market association of ready made garments and cloth dealers welfare association where the accused persons were called by the association. Witness has further deposed it is also not within his knowledge whether the ready made garments Cloth Dealers Welfare Association intervened and Jajpal deceased tendered an unconditional apology to Shyam Gupta. It is also not within his knowledge if an unconditional apology was given in writing on 24.08.2004 which unconditional apology is MarkA. Witness has admitted that deceased was hypersensitive and used to remain under depression and that he (deceased) was in financial losses and his family was starving as there was no source of income for the deceased. Witness has further deposed that he had no financial dealing with deceased. He has denied the suggestion that he had no personal knowledge about the business dealings of deceased with accused persons. According to him he cannot tell any specific date, day, month or year when the deceased was harassed by the accused persons. He admits that he did not tell the police about the recovery of the pen since the pen was recovered by the police themselves from the spot. Witness has admitted that one can go to the ground floor from the first floor after removing the iron grill and states that his brotherinlaw Mahender had entered the ground floor by removing State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 7 of 52 the jal/iron grill. Witness has denied the suggestion that the present case is after thought since a case had already been registered against his brotherinlaw/deceased by the accused persons. He has further denied the suggestion that he being an interested witness deposed falsely in this case being the brotherinlaw of the deceased. He has denied the suggestion that because of heavy losses in the business his brotherinlaw had committed suicide. He has also denied that the pen Ex.P2 was planted by the police later on and it is for this reason that he did not mention this fact in his statement.
PW6 Mahender Pal Batra has deposed that on 1.9.2004 he received a call on his mobile phone made by his Jija Gulshan Lal Pruthi who informed him that his brother Jajpal had come to his house at A35, Gali No. 21, Mahender Park, and informed him that Jajpal was inside the room at ground floor and was not opening the door on which he came at the house of his jija Gulshan Lal and called out to Jajpal but he did not open the door. According to him they removed the iron net which was fixed on the roof and fixed the ladder and got down inside the house and found his brother Jajpal hanging in the kitchen with a white coloured bed sheet tied on the iron angle on which the water tank was kept. Witness has further deposed that Jajpal was disturbed in view of the problem of his shop and money transaction with the persons with whom he was working at Tank Road and he had told him about the same. According to him State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 8 of 52 one pocket diary was recovered from the casual search of the deceased in which he has mentioned the cause of his death and the said diary was taken into possession by the IO vide memo Ex.PW5/B. Witness has further deposed that the police was called at the spot and after they came, the dead body was taken to nearby hospital where the postmortem of dead body was got conducted and he identified the dead body of his brother, his statement to this effect was recorded vide Ex.PW6/A. According to the witness the accused Shyam was arrested in his presence vide memo Ex.PW6/B and he was personally searched vide memo Ex.PW6/C. Witness has also correctly identified both the accused persons who were present in the court and also the case property i.e. the pocket diary Ex.P1 and the Pen Ex.P2.
In his cross examination by Ld. Defence Counsel witness has deposed that he does not know since how long his brother Jajpal now deceased was into business but states that he had a shop in the market in the year 2003. Witness has admitted that deceased had suffered losses in business in the year 2003 and had sold his shop in th year 2003. He has also admitted that the persons from the market had to take lot of money from his deceased brother Jajpal. He has also admitted that most of the time his brother used to be away from his house and also and also because of the financial losses in the business his wife and children were at the verge of starvation. He has State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 9 of 52 also admitted that about 2025 days before the incident his deceased brother Jajpal had joined as an employee with the accused persons and during this period his deceased brother starting committing theft in the godown of accused persons and on one occasion the accused Shyam apprehended the deceased and the services of his deceased brother was terminated by the accused persons. He has further admitted that on 18.08.2004 deceased had gone to the godown of accused persons having petrol in plastic container and the same was sprinkled in the godown of Shyam Gupta and at that time Shyam Gupta was also present. He has admitted that his deceased brother had set ablaze the godown of accused persons and a case under Section 436/307 IPC was registered against his deceased brother and that on 20.08.2004 the anticipatory bail application of his deceased Jajpal was dismissed by Hon'ble Sessions Judge, Tis Hazari Delhi. He has further admitted that they had approached the Ready Made Garments and Cloth Dealers Welfare Association where his deceased brother tendered an unconditional apology to Shyam Gupta which apology is Ex.PW6/DA.
Witness has further admitted that his brother Jajpal was hypersensitive and that because of losses in the business he used to remain under depression. He has also admitted that his deceased brother had no source of income. Witness has however deposed that he had no knowledge about the dealings of his deceased brother in State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 10 of 52 the market and also has no knowledge if his deceased brother had any dealings with the accused persons. Witness has further admitted that the place of occurrence was accessible to all and one could easily go after removing the iron grill. Witness has denied the suggestion that the present case is after thought since a case had already been registered against his deceased brother by the accused persons or that he being interested witness deposed falsely in this case. According to the witness he did not tell the police in his statement under Section 161 Cr. P.C. that a pen was also recovered from the spot and has voluntarily added that he did not pay attention to this. Witness has denied the suggestion that the said pen was planted later on by the police.
Medical Evidence:
PW7 Dr. Anil Shandilya has deposed that on 02.09.2004 he was posted as Senior Resident, Babu Jagjeevan Ram Memorial hospital. Dr. L. C. Gupta, Specialist, Forensic Medicine and he himself had conducted postmortem examination on the body of Jajpal aged about 45 years, male, PS Jahangir Puri brought by Sub Inspector Sanjay Dahiya with alleged history of dead body recovered at 3.40PM dated 01.09.2004 from open door kitech with bed sheet around his neck in a hanging stage, both foot touching the ground with bending at knee joints and was last seen alive at 12.30 PM dated State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 11 of 52 01.09.2004. According to him, two suicide notes in a diary had been recovered by the Investigating Officer, dead body presented with ligature material, white cotton bed sheet around the neck with a fixed noose at nape of neck just at the occipital protuberance had been removed preserved sealed and handed over to the IO who was also requested to submit the photographs of the scene and if possible to arrange for a visit to place of occurrence. According to him time since death was about 24 hours prior to postmortem examination and as per record final opinion about cause of death and further mode of death, whether it is a suicidal cause of death or a homicidal cause of death could not be given as viscera report and report of chemical examination of blood could not received till then. The postmortem report is Ex.PW7/A .
Police / Official Witnesses:
PW1 Ct. Krishan Kumar has proved the entry in register No. 21 i.e. R/C No. 282/21/04 dated 30/11/2004. PW2 HC Rajender has proved the DD No. 15A and copy of FIR Ex.PW2/A and the rukka which is Ex.PW2/B. These witnesses have not been crossexamined on behalf of the accused despite opportunity and their testimonies have gone uncontroverted.
PW3 ASI Pritpal Singh has deposed that on 02.09.2004 he was posted at Police Station Jahangirpuri as MHC (M) and on that State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 12 of 52 day SI Sanjay Dahiya had deposited one box containing viscera duly sealed with the seal of BJRM hospital and blood sample, one polythene containing Chadar duly sealed with the seal of hospital and he received the same vide entry No. 3278 of register No. 19. Witness has further deposed that on 30.12.2004 he send the exhibits/viscera peti to FSL, Rohini through Ct. Arvind vide RC No. 309/21. The copy of entry is Ex.PW3/A and as per record the viscera peti along with the record had come on 03.08.2007. According to him on that day he was not the MHC(M). The copy of RC is Ex.PW3/B. Witness has further deposed that on 01.09.2004 he was working as MHC (M) and on that SI Sanjay Dahiya had deposited one pullanda containing one dairy and one pen duly sealed with the seal of SD which was received by him vide serial No. 3273 of register NO. 19. According to him, copy of this entry is Ex.PW3/C and he does not tamper the aforesaid articles during the period same remained in his possession.
Witness has not been crossexamined on behalf of the accused despite opportunity and his testimony has gone uncontroverted.
PW4 HC Arvind Kumar has deposed that on 01.09.2004 he was posted at PS Jahangirpuri and was working as DD writer and on that day he received a call from wireless set that one person has committed suicide at A35, Gali NO. 2, Mahendra Park. According State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 13 of 52 to him he recorded this information vide DD No. 20 PP and he handed over the copy of DD to I/C PP SI Sanjay Dhaiya for necessary action which DD is Ex.PW4/A. Witness has further deposed that on 30.12.2004 HC Preet Pal, MHC (M), Police Station Jahangirpuri handed over to him a wooden box containing the viscera of the deceased duly sealed with the seal of BJRM hospital, which he took to FSL Rohini vide road No. 309/21/04 on the instructions of the IO and deposited the same there and after depositing the exhibits in the FSL Rohini he took the receipt which he handed over to MHC(M) Jahangirpuri on the same day. Witness has further deposed that till the time the exhibits remained in his possession the same were not tampered. He has not been crossexamined on behalf of the accused despite opportunity.
PW8 Insp. Ashok Kumar has deposed that on 01.06.2005 he was posted at PP DDA Flats, PS Jahangirpuri as I/C Police post and on that day further investigations of this case was handed over to him after which he received the case file from MHC (R) and perused the same. He has deposed that during the course of investigations on 04.03.2006 the accused Umesh Gupta was formally arrested in this case vide memo Ex.PW8/A. Thereafter he was transferred from police post therefore further investigations was handed over to some other IO and he handed over case file to MHC(R). He has correctly identified accused Umesh Gupta in court. State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 14 of 52
In his cross examination by Ld. Defence counsels witness has deposed that no effective investigations was conducted from 01.06.2005 to 03.03.2006 and he recorded case diaries in respect of investigations during this period. Witness has denied the suggestion that he did not conduct the investigations between 01.06.2005 to 03.03.2006.
PW9 Ct. Amit Kumar has deposed that on 01.9.2004 he was posted at PS Jahangirpuri and on that day on the receipt of DD No. 20 Police Post DDA Flats, Jahangirpuri he along with SI Sanjay Dahiya reached at house No. A35, gali No. 21, Mahendra Park, Jahangirpuri where they found a dead body hanging with a white cloth around his neck in the kitchen and the foot of the body was found touching the floor and the knees were found folded. The body was formally searched. According to him one pocket dairy having the suicide note and one pen was recovered from the pocket of the shirt of the dead body after which the IO called the crime team and got the photographs of the dead body taken by the photographer. He has deposed that the land lord was also present there whose statement was recorded by IO SI Sanjay Dahiya and thereafter the IO prepared the rukka and handed over the same to him. Witness has deposed that he took the rukka to the police station and got the case registered and thereafter he came back to the spot with copy of FIR and original rukka and same were handed over to SI Sanjay Dahiya. Witness has State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 15 of 52 further deposed that the dead body was taken to mortuary BJRM Hospital for getting the postmortem conducted and the dead body was got preserved while he guarded the dead body. According to him on the next day i.e. on 02.09.2004 the IO came to the mortuary and the relatives of the deceased had also come in the hospital and after getting the dead body duly identified and the postmortem conducted the same was handed over to the relatives of the deceased vide receipt Ex.PW9/A. Thereafter, the accused Shyam Gupta was taken to Tis Hazari Courts and sent to judicial custody pursuant to which his statement was recorded. The witness has correctly identified the accused Shyam Gupta and also the case property i.e. pocket diary/suicide note which is Ex.P1, pen make Reynolds Gel, racer and same is exhibited as P2.
In his cross examination by Ld. Defence counsel witness has deposed that his statement was recorded on 02.09.2004 at about 56 PM only once. According to him they reached the spot at about 3:40 PM on 01.09.2004 where they found that a crowd had assembled and people from the locality had also gathered. Witness has further deposed that after reaching the spot IO inspected the dead body after taking its search and also took out a pocket dairy and the pen from the pocket of the shirt which was within a period of five minutes after reaching at the spot. Thereafter, the Crime Team reached the spot after about 3045 minutes of their reaching the spot. State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 16 of 52 According to him, he is not aware of the numbers of official present in the Crime Team and he also does not not know whether the IO had recorded the statement of crime team officials or not. Witness has further deposed that he had left the spot after taking rukka at about 5:45 PM and the IO had also recorded the statement of the land lord of the house from where the dead body was recovered on the basis of which the rukka was prepared but he cannot tell the exact time. According to him the statement of the land lord was recorded within a period of 20 minutes starting from 5:25 PM. He has deposed that the IO did not record any other statement of any relative of the deceased who were present at that time at the spot and the relatives of the deceased also did not offer themselves to make their statement. He is unable to recollect whether the IO had prepared any seizure memo till 5:45 PM. Witness has further deposed that dead body was taken out from the angle where it was hanging after leaving of the crime team but he does not recollect when the crime team left the spot and states that the crime team had left the spot in his presence and the pullandas of the recovered articles i.e. pen and pocket dairy were also prepared. According to him the pullanda of the pen was of cloth but he does not recollect about the pullanda of the pocket dairy and also does not recollect how many documents or which document was prepared by the IO when he left the spot after taking the rukka. Witness is unable to tell whether the IO also seized the bed sheet State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 17 of 52 with which the deceased was hanging and states that he had came back to the spot after the registration of the FIR at about 8:00 PM.
Witness has further deposed that he had reached at the spot along with the dead body at about 8:30 PM and thereafter IO did not go to the hospital i.e. on 01.09.2004 but states that he had met the IO on 01.09.2004 at the police post but the IO did not record his statement on 01.09.2004 at the police post. He is not aware if the IO had recorded the statement of any relatives of the deceased and is also not aware as to how Shyam Gupta was arrested or at what time he was arrested and from where he was arrested and has explained that he only accompanied the accused to the court when he was produced before the court on 02.09.2004. Witness has further deposed that the IO had inspected the kitchen from where the dead body was recovered but he is unable to tell whether there was a window in the kitchen or not and he was not aware whether the latches of the door was broken or not. According to him in his presence nobody had made any statement to the effect that after opening the grill he went inside the kitchen. Witness has denied the suggestion that he did not join the investigations or that no pocket dairy or pen were recovered from the dead body in his presence or that he did not take the rukka from the spot to the police station for the registration of the FIR or that he had deposed falsely. State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 18 of 52
PW10 SI Sanjay Dahiya has deposed that on 01.09.2004 he was posted at Police Post DDA Flats, Jahangir Puri as Incharge and on that day on the receipt of DD No. 20, PP DDA Flats vide Ex.PW4/A he along with Ct. Amit Kumar reached at H. No. A35, Gali No.21, Mahendra Park, Delhi where they found a dead body hanging in a corner of kitchen tied with the white cloth which was tied from one side with angle of the water tank and the name of the deceased came to known as Jajpal. According to him the foot of the dead was found touching the ground and the knees were slightly bend when he called the crime team who inspected the scene of crime and the photographer of the crime team took the photographs of the dead body and also of the scene of crime which photographs are ExPW10/A1 to Ex.PW10/A5. According to him a formal search of the body was conducted and one pocket diary and one pen were recovered from the pocket of his shirt and the pocket diary was having a suicide note and he thereafter sealed the aforesaid articles with the seal of SD after which the said parcel was taken into possession vide seizure memo Ex.PW5/B. Witness has further deposed that one Gulshan Lal, the landlord of the house, who was the Jija of Jajpal was also present there and he recorded his statement which is Ex.PW5/A and prepared the rukka Ex.PW10/B which he handed over to Ct. Amit who took the same to the police station and got the case registered. According to him he had prepared the site State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 19 of 52 plan vide Ex.PW10/C and Ct. Amit Kumar brought the copy of FIR which is Ex.PW2/A and original rukka and handed over the same to him after which he left HC Ranjeet and Ct. Dharambir to guard the spot and the dead body was sent to the mortuary of Babu Jagjeevan Ram Memorial hospital through Ct. Amit, while he also went to the hospital where the dead body was got preserved. Witness has further deposed that he came back to the spot and recorded the statement of brothers of the deceased namely Harish Batra and Mahendra Pal and the other witnesses and the white cloth with which the dead body was found hanging was also sent to mortuary with the dead body.
According to him on the same day he took Mahendra Pal, HC Ranjeet and Ct. Dharambir and reached at H. No. A87, Saraswati Vihar in search of the accused persons. The accused Shyam Gupta met them and at the instance of Mahendra Pal, he was apprehended and arrested in this case vide memo Ex.PW6/B and he was personally searched vide memo Ex.PW6/C after which he was brought to the police station and was kept in lock up. The case property was deposited in the Malkhana and he recorded the statement of witnesses. Witness has further deposed that on the next day i.e. on 02.09.2004 he went to the mortuary of Babu Jagjeevan Ram Memorial Hospital and the dead body was shown to the relatives of the deceased who identified the same as of Jajpal on which the statement of one Mahendra Pal Batra and Harish Batra State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 20 of 52 regarding identification of dead body was recorded vide Ex.PW6/A and Ex.PW10/D. According to him he had prepared the brief facts vide Ex.PW10/E, death report Ex.PW10/F and thereafter he moved an application vide Ex.PW10/G for getting the postmortem conducted and thereafter the postmortem on the dead body was conducted vide PM report Ex.PW7/A which he collected from the hospital and the dead body was handed over to the relatives of deceased vide Ex.PW9/A and the doctor handed over the box containing viscera and blood sample, one polythene containing "Chadar" and sample seal duly sealed with the seal of hospital then he seized the same vide memo Ex.PW10/H. Witness has further deposed that he took the admitted handwriting of deceased Jajpal from the house of the deceased and he got sent the admitted handwriting and suicide note to FSL, Rohini. On 30.12.2004 he sent the exhibits / viscera to FSL Rohini through some constable after which he collected the result from FSL, Rohini regarding handwriting of the deceased and the same is Ex.PW10/I (running into two pages) alongwith the forwarding letter vide Ex.PW10/J. According to him further investigation of this case were handed over to some other IO and he handed over the case file to the MHC(R). The witness has correctly identified the accused Shyam Gupta and also the case property i.e. pocket diary / suicide same as that taken State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 21 of 52 from the pocket of deceased Jajpal which are Ex.P1 (pocket diary) and Ex.P2 (pen) recovered from the pocket of deceased Jajpal.
In his crossexamination witness has deposed that he was posted at PP DDA Flats Jahangir Puri since the year 2003 but he does not remember where he was present when he received DD No.20 and states that probably he was at the Police Post. According to him in the DD No.20, there is no mention the fact regarding suicide note. He has deposed that he reached the spot at about 3.55 or 4.00PM and at that time Mahendra Pal was present at the spot. Witness has further deposed that other family members of the deceased Jajpal were also present and he recorded the statement of Gulshan Lal at the first instance at about 5.45 - 6.00 PM and crime team reached the spot at about 4.45 or 5.00 PM. Witness has further deposed that he recorded the statements of the relatives of the deceased after 7.00 PM at the spot and when he reached the spot there were family members as well as people from the locality who were present but he did not record the statement of any neighbourer. Witness has admitted that the spot of incident is situated at a very thickly populated area and after noticing the police, people normally gathered there. He has stated that he did not prepare the site plan till 5.00 PM and states that the same was prepared after sending the rukka but he did not get the signatures of any witness on the rough site plan. Witness is unable to recollect whether he had shown the window in the site plan prepared State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 22 of 52 by him. According to him House No. A35 was constructed upto the first floor and on the ground floor, there was a drawing room, one big room, one varandah and a kitchen but he did not notice any toilet or bath room on the ground floor and also does not remember whether there was any lobby on the ground floor. Witness has further stated that there was a slab in the kitchen and states that when he noticed the dead body, its feet were touching the floor and knees were bend and the angle with which the deceased hanged himself was at a height of 78 feet. He has stated that he had shown the angle in the site plan prepared by him but did not mention the height of the angle. Witness has further deposed that the crime team was comprising of only two officials but he does not remember when the crime team handed over its report to him and is unable to tell whether it was handed over to him on 01.09.2004, 02.09.2004 or thereafter. Witness has denied the suggestion that no crime team was called at the spot. He is however, unable to tell whether he collected the crime team report himself or it was by some other IO. Witness has admitted that whenever crime team visited at the scene of crime they prepare the inspection report which is handed over to the IO at the spot. Witness has denied the suggestion that no crime team was called at the spot as such and admits that there is no report on the record.
Witness has further deposed that the suicide note was not converted into pulanda however the pen was converted into a State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 23 of 52 pulanda after its seizure but he does not remember to whom he handed the seal after using the same at the pullanda. Witness has denied the suggestion that he did not hand over the seal to any independent witness or any other police official. He also does not remember whether he had mentioned the fact about handing over of seal after using the same to a witness in the seizure memo. Witness has denied the suggestion that since the pulandas were not sealed at the spot or no pulanda was prepared at the spot, as such this fact is not mentioned in the seizure memo. Witness has further deposed that the crime team did not recover the suicide note and the pen which was recovered by him after the crime team left at about 5.00PM and Ct. Amit Kumar left the spot after taking the rukka at about 6.45PM and he came back to the spot after registration of FIR at about 7.45 PM. According to him, he himself had prepared the rukka and when the rukka was prepared, he had already taken out the suicide note and the pen but the recovery memo was prepared after registration of the case and states that probably he had mentioned regarding the recovery of pen in the rukka. Witness has denied the suggestion that since no pen was recovered as such this fact is not mentioned in the rukka or that no suicide note was recovered and the same has been planted with the connivance of the complainant party. Witness has further deposed that the accused Shyam Gupta was arrested from Saraswati Vihar at about 10.30PM on 01.09.2004 but no disclosure State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 24 of 52 statement of accused Shyam Gupta was recorded and the cloth with which the deceased hanged himself was not seized by him and the same was sent along with the dead body to the hospital. According to him the said cloth was seized by the doctor who conducted the postmortem but he did not prepare any document mentioning the fact that the cloth with which the deceased hanged himself was sent along with the dead body to the hospital. He has admitted that he did not seek any opinion from the doctor whether the deceased could commit the suicide with the cloth recovered and found tied with the neck of the deceased. Witness has further deposed that he does not remember the date on which he collected the Postmortem Report but states that he had collected the report after about 10 days of the incident and after collecting the postmortem report he read the same. Witness has admitted that in the postmortem report the doctor had advised the IO to submit the photographs and if possible to arrange for visit to place of crime. Witness has further deposed that he submitted the photographs to Dr. L. C. Gupta but he did not move any application at the time of submitting the photographs to the doctor and the doctor had not visited the spot. Witness has further deposed that the opinion regarding cause of death was not the final one and the same might have taken by the subsequent IO and has explained that he remained IO of this case only till 23.05.2005 during which time he did not collect the report of the viscera after he had send the viscera on State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 25 of 52 30.12.2004 to the FSL. On being questioned by the court as to why did he sent the viscera to the FSL after more than three months of the incident, the witness has explained that since the priority letter was to be taken from the DCP Head Quarter, it was for this reason that the viscera was sent in the month of December 2004. Witness is not aware if the suicide note was written by the same pen which was recovered from the dead body. On being questioned if he had sent the pen along with the suicide note to the FSL to check out whether the suicide note was written from the same pen or not, he has deposed that he has not done so. Witness has further deposed that he did not make any inquiries from Mahendra Pal or Gulshan Lal about the hand writing of the deceased and admits that he did not conduct any investigations qua the fact if deceased Jajpal Batra was having any bank account. On being questioned if he made any query from the family members of the deceased regarding the bank account of the deceased for taking his admitted signatures he has replied that he did not do so. Witness has further deposed that he did not verify the document i.e. the report cards of the children from the school concerned and also did not conduct any investigation qua the losses which had occurred in the business of Jajpal or if the deceased had taken a large amount of money from the market. According to the witness it did not come in the investigation that the deceased started committing theft in the godown of the accused persons though he State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 26 of 52 admits that it had come on the record that a case U/s 436 IPC with PS Prasad Nagar vide FIR No. 210/04 was registered against the deceased at the basis of the complaint made by the accused Shyam Gupta vide FIR 210/2004 of PS Prasad Nagar is Ex.PW10/DA came to his knowledge during the investigation as this FIR found a mention in the suicide note. According to the witness he was not aware if the deceased had moved any application for grant of anticipatory bail in case FIR No. 210/2004 and states that he did not make any investigation to this effect and only collected the aforesaid FIR but did not participate in the investigation of the same. Witness has further deposed that he did not know as to when the accused and the deceased met for the last time before the death of the deceased. Witness has denied the suggestion that he did not conduct the investigations fairly and properly or that he did not record the statement of the witnesses properly and correctly or that accused persons had been falsely implicated in this case. Witness has admitted that he does not get prepared any scaled site plan and has voluntarily stated that there was no requirement. Witness has denied the suggestion that since he had prepared an incorrect rough site plan it is for this reason that he does not got prepared the scaled plan or that he was deposing falsely.
PW11 SI Rajesh Kumar has deposed that on 01.09.2004 he was posted as Incharge Mobile Crime Team North West District State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 27 of 52 and on that day on the receipt of information from control room he along with Ct. Sanjay Kumar, finger print proficient and Ct. Chuni Lal the photographer reached at A35 first floor Thekawala road, Mahindra Park, Jahangirpuri at about 4:30 PM. According to him he inspected the spot and prepared crime team report which is Ex.PW11/A and Ct. Chuni Lal took the five photographs of the body which are Ex.PW10/A1 to Ex.PW10/A5. In his cross examination witness has denied the suggestion that he does not went to the spot or that photographs were not taken in his presence or that he had prepared the report at the instance of the investigating officer. STATEMENT OF ACCUSED & DEFENCE EVIDENCE:
After completing the prosecution evidence, statements of the accused were recorded under Section 313 Code of Criminal Procedure wherein all the incriminating evidence / material was put to them which they have denied. However, the accused have not examined any witness in defence despite opportunity in this regard.
The accused Shyam Gupta and Umesh Gupta have stated that the deceased Jajpal Batra was suffering loss in his business and was having very heavy dues in the market which he was not able to pay and was having financial losses as such his family was starving. Both accused have stated that 2025 days of the incident deceased had joined as employment of accused Shyam Gupta and started State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 28 of 52 committing theft in the godown and while he was apprehended, his service was terminated. The accused Shyam Gupta has stated that on 18.08.2004 at 11.00 a.m. when he was in his godown when the deceased Jajpal came to his godown and asked some advance for supply of goods while he refused the same on which the deceased took out one blue plastic container and threw the inflammable liquid on his stock of clothes and ignited the same in respect of which FIR No. 210/2004 was lodged at Police Station Prasad Nagar under Section 436 IPC and thereafter the anticipatory bail application moved by deceased was dismissed by the Session Court. The accused has further stated that the deceased along with his family members thereafter tendered an unconditional apology to him which was in writing dated 24.08.2004 which is Ex.PW6/DA and with the intervention of Market Welfare Association it was agreed not to oppose the anticipatory bail application filed by the deceased which anticipatory bail application was listed before Session Court on 26.08.2004 and was thereafter adjourned to 01.09.2004 and thereafter matter was listed for 02.09.2004 but in the mean while, Jajpal committed suicide on 01.09.2004. Both the accused have stated that they are innocent and falsely implicated. State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 29 of 52
FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel appearing on behalf of the accused. I have also considered the testimonies of witnesses examined by prosecution and written synopsis of arguments placed on record.
Identity of the accused:
In so far as the identity of the accused is concerned, the same is not disputed. Both the accused Shyam Gupta and Umesh Gupta were previously known to the deceased and his family persons and have been specifically named in the suicide note written by the deceased and also identified in the court. In this background, I hold that the identity of both the accused has been established. Cause of death:
The case of the prosecution is that the deceased Jajpal was carrying a business with the accused persons and the accused had cheated him and were not returning the money which the deceased had invested in the ready made garments shop which he was running with the accused persons. It is also alleged that later instead of returning his money, the accused filed a false criminal case against the deceased at Police Station Prasad Nagar, due to which reason the deceased faced extreme financial hardships and State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 30 of 52 harassment so much so that his family was at the verge of starvation causing him depression due to which reason the deceased had committed suicide by hanging himself. In this regard the postmortem report Ex.PW7/A has been duly proved by PW7 Dr. Anil Sandilya who has proved that Dr. L. C. Gupta, Specialist, Forensic Medicine, and he himself had conducted postmortem examination on the body of Jajpal aged about 45 years, male, brought to the hospital by Sub Inspector Sanjay Dahiya with alleged history of dead body recovered at 3.40 PM dated 01.09.2004 from open door kitchen with bed sheet around his neck in hanging stage, both foot were touching the ground with bending at knee joints. He has further proved that final opinion about cause of death and further mode of death, whether it is a suicidal cause of death or a homicidal cause of death, could not be given as viscera report and report of chemical examination of blood could not received till then. It is therefore evident that the medical evidence is inclusive with regard to the cause of death i.e. whether it was homicidal or suicidal since the report of the viscera was awaited but it certainly stand established that the death was due to hanging. Here, I may observe that the report of the viscera has also been filed showing absence of any poison. Therefore, under these circumstances, all the injuries are compatible to death by way of hanging which was suicidal.
State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 31 of 52 Forensic Evidence:
The case of the prosecution is that a pocket diary which is Ex.P1 was recovered from the personal search of the body of the deceased wherein at two places, the deceased had specifically written about the reasons for his committing suicide. In this regard, I may observe that in both the notes the deceased has specifically named both the accused Shyam Gupta and Umesh Gupta responsible for his committing suicide. Both the suicide notes were sent to FSL for examination and as per the report Ex.PW10/I the admitted writings and signatures and questioned writings and signatures were all written by one and the same person, which conclusively proved that both the suicide notes had been written by the deceased Jajpal. During the course of trial, the viscera report was received which has not been disputed by the accused and is admissible in evidence as per provisions of Section 293 Cr.PC, which report shows the absence of any chemical and thin layer chromatography and CGMS examination, metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and insecticides. This, therefore, conclusively rules out any foul play and establishes that the death was due to hanging.
Allegations against the accused:
The allegations against the accused are the deceased was State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 32 of 52 doing a business of ready made garments with the accused wherein he had made huge investments and Shyam Gupta and Umesh Gupta had cheated him and were not returning the amount which he had invested in the garments shop but rather got a false criminal case foisted on him at Police Station Prasad Nagar in which his anticipatory bail application was also dismissed by the Sessions Court due to which reason the deceased was in heavy depression and therefore he ended his life. In this regard, the Addl. PP for the State, has placed his reliance on the suicide notes found from the dead body of the deceased in which he has specifically named both the accused responsible for his committing suicide. The prosecution has examined the complainant Gulshan Lal as PW5 and Mahender Pal as PW6.
It is argued by Ld. defence counsel that according to the suicide notes and the evidence adduced on record, the offence under Section 306 Indian Penal Code is not made out against the accused persons as it does not cover the ingredients of abetment as provided under Section 107 IPC. He has also argued that a serious questions arise as to whether there is any material suggesting that the accused had abetted the suicide of the deceased as it certainly cannot be said that the accused had goaded, provoked, incited, urged or encouraged the deceased to commit suicide. In this regard the Ld. defence counsel has placed his reliance on the following judgment : State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 33 of 52
(1) Gangula Mohan Reddy Vs. State of Andhra Pradesh 2010 (1) JCC Page 493.
(2) Sanju @ Sanjay Singh Sengar Vs. State of M. P. 2002 (Criminal Law J.) Page 2796.
(3) Hira Lal Jain Vs. State, 2001 (CLJ) Page 1212. (4) Roop Krishore Madaan Vs. State 89 (2001) DLT Page 265.
(5) Brij Lal Vs. State, 27 (1985) DLT Page 356.
(6) Ashok Kumar Goel Vs. The State 2011 (3) Apex Decision (Crl.) Page 185, Delhi High Court.
I have considered the rival contentions. Before coming to the facts of the case it is necessary to briefly discuss the relevant provisions of law and also the law settled by the high courts. As per the provisions of Section 306 Indian Penal Code if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Conviction of an accused under Section 306 IPC merely on basis of allegation of harassment of deceased is unsustainable in law. No evidence and material available on record where from an inference of accused having abetted commission of offence may be drawn. Deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in day to day life. State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 34 of 52 Different people behave differently in same situation - Conviction of appellant unsustainable and set aside.
The word 'Suicide' in itself is nowhere defined in the Indian Penal Code, however its meaning and import is well known and required no explanation. 'Sui' means 'self' and 'cide' means 'killing', thus implying an act of self killing. In short a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself.
Suicide by itself is not an offence under either English or Indian criminal Law, though at one time it was a felony in England. In England, the former law was of the nature of being a deterrent to people as it provided penalties of two types.
• Degradation of corpse of deceased by burying it on the highway with a stake through its chest.
• Forfeiture of property of deceased by the State. This penalty was later distilled down to merely not providing a full Christian burial, unless the deceased could be proved to be of unsound mind. However, currently there is no punishment for suicide after the enactment of the Suicide Act, 1961 which proclaims that the rule of law whereby it was a crime for a person to commit suicide had been abrogated.
In our country, while suicide in itself is not an offence, considering that the successful offence is beyond to the reach of law, State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 35 of 52 attempt to suicide is an offence under section 309 of IPC.
'Abetment' has been defined under Section 107 of the Indian Penal Code which provides that:
"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 places in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly - Intentionally aides, by any act or illegal omission, the doing of that thing."
Explanation 2 which has been inserted alongwith Section 107 reads as under :
"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 facilitate the commission thereof, is said to be and the doing of that act."
The Hon'ble Supreme Court in the case of Ramesh Kumar vs. State of Chhattisgarh, reported in VII (2001)SLT 356 has in paragraph 20 has examined different shades of the meaning of State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 36 of 52 "instigation" as under:
"20. Instigation is to goad, urge forwards, provoke, incite of encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out the present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been interred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."
In State of West Bengal Vs. Orilal Jaiswal & Another, reported in IV(1993) CCR392 (SC) = (1994) DMC 138 (SC)= (1994) SCC 73 the Hon'ble Apex Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trail for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance, discord and difference State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 37 of 52 were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.
Further, in the case of Chitresh Kumar Chopra Vs. State (Govt. of NCT of Delhi) reported in VI (2009) SLT 584 = III(2009)DLT (Crl.)1011 (SC) = IV (2009)CCR 1 (SC) = 162(2009)DLT 257 (SC) = 2009(11) SCALE 24 the Hon'ble Supreme Court had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the word "instigation" and "goading". The Court opined that there should be in tension to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others. Each person has his own idea of self esteem and self respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.
Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.
The intention of the Legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 38 of 52 Section 306 IPC there has to be a clear mens rea to commit the offence. It is also required an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide.
Also in the case of Mamta Sahu (Smt.) Vs. State of Delhi reported in 124 (2005) DLT 300 the Hon'ble Supreme Court has highlighted the ingredients of Section 306 of the Indian Penal Code i.e. the offence of abetment of suicide in the following words:
"When Section 107 of the Indian Penal Code is read carefully, it is clear that for constituting abetment, the accused should either instigate any person to do the thing or engages with one or more other person or persons in any conspiracy for the doing of that thing of intentionally aid by any act of omission the doing of that thing. There are two explanations to this Section. A person who by willful misrepresentation, or by willful concealment of a material fact can be said to have instigated the thing which is done on account of such concealment or misrepresentation. Explanation 2 prescribes that an abetment can be done either prior to or at the time of the commission of that act. In the present case, there is nothing to suggest that the accused had instigated or aided the deceased in commission of suicide. Nor is there any evidence to show that she had engaged with some other person or persons for State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 39 of 52 doing any act. There is no evidence that any concealment or misrepresentation on her part had led the deceased to commit suicide. There is no evident hat she in any way did anything to facilitate the commission of suicide by the deceased."
Of late, in the case of Amalendu Pal @ Jhantu vs State of West Bengal, reported in AIR 2010 SC 512, the Hon'ble Supreme Court has held that:
".....The legal position as regards Sections 306 IPC which is long settled was recently reiterated by this Court in the case of Randhir Singh v. State of Punjab (2004) 13 SCC 129: (2004 AIR SCW 5832) as follows in paras 12 and 13:
12.Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing.
More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC.
13. In State of W.B v. Orilal Jaiswal (1994 AIR SCW 844), this Court has observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 40 of 52 infact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive or ordinary petulance,discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty."
Also was held that:
"Thus this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable."
In the case of Sonti Ramakrishna vs Sonti Shanti Sree State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 41 of 52 reported in AIR 2009 SC 923, it was observed by the Hon'ble Apex Court that the words uttered in fit of anger or emotion without any intention do not amount to instigation.
Further, the Hon'ble Supreme Court in the case of Sanju @ Sanjay Singh Sengar vs State of M.P reported in AIR 2002 SC 1198, has observed as under:
"...... Even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word 'instigate' 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. It is common knowledge that the words uttered in a quarrel or in a spur of moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional....."
Also in the case of K. Ramakrishnappa vs State of Karnataka reported in 2006 Crl.L.J 4314, it was observed by the Hon'ble Apex Court that:
"In the instant case also the accused in a fit of anger during the quarrel told the deceased to go and die. The utterance of these words by the accused allegedly made the deceased to take the extreme step of suicide. This incident cannot be construed as the accused having abetted the deceased to commit suicide".
Coming now to the facts of the present case, it is State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 42 of 52 necessary to examine first the suicide notes which are hereby reproduced as under:
The contents of the first suicide note are reproduced as under:
"Priya Soma Batra, main atma hatya kar raha hun. Meri maut ka karan Umesh Gupta aur Shyam Gupta hain, H16/9293, Tank Road, Gali NO. 3. in dono ne mera sab kuch chheen liya hai.
Shyam Gupta agar tumhari atma ki awwaj kahe to mere bachon ko mera hak de dena.
Jaipal"
Further, contents of the second suicide note are reproduced as under:
"Meri maut ke jimmedar Umesh Gupta aur Shyam Gupta hain H/16/9293 Tank Road, Gali No. 3. Main in dono ki wajah se atma hatya kar raha hoon. In dono ne mera sab kuch chheen liya hai. Mere marne ke bad mera hak jo rupe maine Shyam Gupta aur Umesh Gupta se mange hain mere bibi bachon ko dilaye jayen" Jaipal"
Now applying these settled principles of law to the facts of our present case, undisputedly the above suicide notes have been written by the deceased Jajpal which facts stands confirmed from the FSL report. At the very outset, I may observe that the wife of the State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 43 of 52 deceased who was the most important witness of the prosecution and could have brought before the court the mental and physical condition of the deceased has neither been cited as witness nor examined in the court by the prosecution.
What is it that the deceased had undergone so as to leave him with no option but to finish his life is an aspect which only his immediate family i.e. his wife and children could have disclosed who unfortunately have neither been cited as witnesses nor examined in the court. It is not sufficient to merely allege that the accused had mischievously abused the legal machinery to falsely implicate the deceased leaving him with no maneuvering space. It was more important to prove the said allegations which has not been done. The Investigating Officer has not conducted any investigations to establish that the case so instituted against the deceased by the accused was false and fabricated nor there is any finding in this regard by any competent court of law. By the operation of the law of the land, the Anticipatory Bail application of the deceased was dismissed by the competent court which cannot by any stretch of imagination be treated as an instigation, incitement or abetment since all persons living in this country are governed by rule of law and in case if any person is so aggrieved by any order passed by any court of law, higher forums where they can seek redressal of their grievances are available to them for seeking redressal of their State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 44 of 52 grievances.
The only two witnesses examined by the prosecution are the brotherinlaw of the deceased namely Gulshan Lal (PW5) and his brother Mahender Pal. The death of deceased had taken place in the house of his brotherinlaw Gulshan Lal PW5 who has proved that on 01.09.2004 the deceased Jajpal come to his house and he was in depression (gumsum) and when he asked him as to what happened Jajpal told him that he has some business problem and dispute with Shyam Gupta and Umesh Gupta and thereafter Jajpal went to ground floor in the room and locked himself there from inside and when they called out to him, he did not respond and the door of the room was found closed and tied kundi from inside on which he (Gulshan Lal) called his (deceased) brother Mahender Batra who came there and entered the room by climbing the ladder from the first floor and found Jajpal hanging with a Chaddar on which they called the police. On refreshing the memory, PW5 Gulshan Lal has further deposed that the deceased Jajpal had hold him that both the accused had cheated him and got a false case registered against him at Police Station Prasad Nagar and got his shop vacated. He has further deposed that the accused were also not returning his money which the deceased had invested in the garment business. In his cross examination, PW5 Gulshan Lal has denied having any knowledge to the effect that the deceased had suffered losses in business and had State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 45 of 52 sold his shop in 2003 but has admitted that on the day when deceased committed suicide he had no shop in the market. He is also not aware whether persons in the market had to take money from the deceased. He has however denied the deceased had joined as a employee with the accused persons 2025 days prior to the incident and has no knowledge if the deceased was apprehended by the accused Shyam Gupta while committing thefts of the goods lying at the shop. He is also not aware if on 18.08.2004 the deceased had gone in the godown of the accused with petrol in a plastic container and sprinkled the same in the godown and the accused Shyam Gupta got an FIR bearing No. 210/2004 under Section 436/307 IPC registered against the deceased in respect of which the anticipatory bail application of the deceased was dismissed by Sessions Judge, Tis Hazari Court. He is further not aware if the family of deceased had approached the market association of ready made garments and Cloth Dealers Welfare Association where the accused were called and the deceased Jajpal had tendered an unconditional apology to Shyam Gupta.
Similarly, PW6 Mahender Pal Batra who is the real brother of the deceased has corroborated the testimonies of PW5 Gulshan Lal with regard to the death of the deceased but has rather supported the defence version of the deceased being under heavy debt and also being depressed on account of the same. According to State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 46 of 52 him on 1.9.2004 he received a telephone call from his Jija Gulshan Lal and thereafter he came to the house of Gulshan Lal and came to know about the incident after which they removed the iron net which was fixed on the roof and fixed the ladder and went inside the house and found his brother Jajpal hanging in the kitchen with white coloured bed sheet tied on the iron angle on which the water tank was kept. He has further deposed that Jajpal was doing the business of ready made garments at Tank Road and was having some dispute with the accused with regard to the business transactions. He is not aware since how long his brother Jajpal was in the business but has admitted that he had a shop in the market in the year 2003. He has admitted that Jajpal had suffered losses in the business and had sold his shop in th year 2003 and persons in the market had to take lot of money from Jajpal. He has further admitted that most of the time the deceased used to be away from his house and because of the financial losses in the business, his wife and children were at the verge of starvation. He has also admitted that about 2025 days prior to the incident, Jajpal had joined the employment of accused and during this period Jajpal starting committing theft in the godown of accused and on one occasion the accused Shyam Gupta apprehended the deceased Jajpal after which his services were terminated by the accused persons. This witness has further admitted that on 18.08.2004 deceased Jajpal had gone to the godown of accused State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 47 of 52 having petrol in plastic container and sprinkled the same in the godown of Shaym Gupta when Shyam Gupta apprehended him in respect of which a case under Section 436/307 IPC was registered against his deceased brother Jajpal and on 20.08.2004 the anticipatory bail application deceased Jajpal was dismissed by Sessions Judge, Tis Hazari Delhi. He has further admitted that when they approached the Ready Made Garments and Cloth Dealers Welfare Association, the deceased Jajpal tendered an unconditional apology to Shyam Gupta vide Ex.PW6/DA. This witness further admits that his brother Jajpal was hypersensitive and because of losses in the business used to remain under depression having no source of income.
This being the background, it is evident that the deceased had suffered enormous financial losses in the business. No doubt the possibility of the accused having cheated the deceased in the business where he had invested money, cannot be ruled out and even the entire allegations made by the prosecution are accepted as true, the intention on the part of both the accused to have provoked, incited, urged or encouraged the deceased to commit suicide, are not proved from the record. It is not borne out from the record by any cogent evidence that there was any heated exchange of conversation, accused had any intention to provoke, incite, urge or encourage the deceased to commit suicide. (Ref.: Ramesh Kumar Vs. State of State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 48 of 52 Chattisgarh, AIR 2001 SC 3837 and M. Mohan Vs. State, (2011) 3 SCC 626. It is unfortunate that the deceased had suffered a series of financial losses and his family was at the verge of starvation but that in itself does not make the accused liable under Section 306 Indian Penal Code. What is important is not what "deceased had felt" but what the accused had intended by their act. A fatal impulse or ill fated thought of the deceased, however unfortunate and touchy it may be, cannot unfortunate touch the issue and it cannot establish the intention of the accused so as to make them liable under the provisions of Section 306 IPC. The deceased had suffered a series of financial losses. Coupled with the fact that a criminal case was against him, the dismissal of his anticipatory bail application, it appears was the final shock which ignited the impulsive act of the deceased. However, under the given circumstances, whether the deceased was unable to secure the refuge under law or assuming that the accused had misused and abused the process of law, it cannot under either circumstances be conclusively held that the accused had in any manner intentionally aided or abetted the commission of the suicide of the deceased. The mensrea on the part of the accused appears to be missing. The accused therefore deserve an acquittal. FINAL CONCLUSION:
In the case of Sharad Birdhichand Sarda Vs. State of State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 49 of 52 Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Applying the above principles of law to the facts of present case, it is evident that the investigation conducted including State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 50 of 52 the documents prepared in the present case have been substantially proved by the police witnesses including the investigating officer. The identity of both the accused stand established. It has been proved that the deceased was carrying on a business of ready made garments with the accused persons. It has been proved that on account of some financial transactions, there was some dispute between the accused and the deceased so much so that an FIR had been got registered by the accused against the deceased. It further stands established that on account of severe monitory losses the family of the deceased was passing through hard times but it does not stand established and proved beyond doubt that the accused had, abetted, incited, instigated and aided the suicide of the deceased. Merely, because the accused have sought recourse to law and the anticipatory bail application of the deceased had been dismissed, cannot be a ground to presume abetment, instigation or incitement as contemplated under Section 306 Indian Penal Code.
In view of the above, I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused persons. The materials brought on record by the prosecution are insufficient to hold that State Vs. Shyam Gupta, FIR No. 624/04, PS Jahangirpuri Page 51 of 52 each of the accused Shyam Gupta and Umesh Gupta were guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused namely Shyam Gupta and Umesh Gupta. Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a court to cross, while finding the guilty of an accused, particularly in cases based on circumstances evidence. Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Shyam Gupta and Umesh Gupta beyond reasonable doubt and hence, benefit of doubt is being given to them who are acquitted of the charges under Section 306 read with Section 34 Indian Penal Code. The sureties be discharged as per rules.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 1.10.2011 ASJ (NW)II: ROHINI
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