Delhi District Court
Court Of India & (Ii) 'Atambir Singh & Ors vs State Of Delhi' on 28 August, 2021
:1:
IN THE COURT OF SH. NAVEEN KUMAR KASHYAP AD-
DITIONAL SESSIONS JUDGE-04: CENTRAL: TIS HAZ-
ARI COURTS: DELHI
Sessions Case No.:287/2019
CNR NO.-.:DLCT01-003824-2019
STATE
Vs.
1.Sanjay Tiwari s/o Shyam Lal Tiwari, Age- 29 yrs, R/o H.No. 54, Gali No.5, Jharoda Part-II, Surender Colony, Burari Delhi
2. Amar Nath S/o Shyam Lal Tiwari Age-24 yrs,H.No. 54, Gali No.5, Jharoda Part-II, Surender Colony, Burari Delhi
3. Shyam Lal Tiwari, age-60 yrs, H.No. 54, Gali No.5, Jharoda Part-II, Surender Colony, Burari Delhi
4. Khushboo D/o Shyam Lal Tiwari, Age- 27 years, H.No. 54, Gali No.5, Jharoda Part-II, Surender Colony, Burari Delhi Case arising out of:-
FIR No. : 478/2018 Police Station : Burari Under Section : 452, 306, 506, 324, 427, 34 IPC Date of Committal to Session court : 19/03/2019 Date on which arguments concluded : 21/08/2021 Date of Judgment : 28/08/2021 SC No. 478/2018 State V Sanjay Tiwari & others Page no.1 of 49 :2: FINAL J U D G M E N T The Facts:-
1. In nutshell, the case of the prosecution is that in the evening of 21.10.2018 Accused No.-1, Mr. Sanjay Tiwari, Ac- cused No.-2, Mr. Amarnath and Accused No.-3, Mr. Shyam Lal Tiwari entered into the house of Mrs. Prem Kumari ,the com- plainant and wrongfully restraint and caused hurt to Ms. Shilpa, daughter of complainant/PW-6 as well as caused damage to the window glass. It is further the case of the prosecution that on the next date i.e. 22.10.2018 such Ms. Shilpa committed suicide be- cause of harassment and acts of all the four accused, including Accused No.-4, Ms. Khushboo.
It is further the case of the prosecution that on 21.10.2018, DD NO.63A was registered and when ASI Surender Narain went to attend such call, it was informed that Mrs. Prem Kumari ,the complainant and her daughter Ms. Shilpa already reached the police station and there were scratches over hand and neck of such Ms. Shilpa on that day. But such complainant and Ms. Shilpa did not give their formal statement to the police stating that Shilpa is not feeling well and is disturbed and they further stated that they will come next day again to give their statement. That later, on next day i.e. 22.10.2018 vide DD entry SC No. 478/2018 State V Sanjay Tiwari & others Page no.2 of 49 :3: no. 14A, a call regarding suicide received and ASI Mr. Rood Mal went to the spot/house of the complainant and it was found that Ms. Shilpa D/o Dayashankar Sharma/PW-7 has committed sui- cide by hanging herself from the fan. Ms. Shilpa dead body was sent for postmortem and statement of complainant/PW-6/Mrs. Prem Kumari Sharma/mother of deceased Shilpa was recorded by ASI Mr. Surender. In the statement given to the police, such complainant Mrs. Prem Kumari Sharma made allegations against all the four accused of the present case for various offences in- cluding abatement of suicide. Initially, the main chargesheet was filed against accused no.1,2 and 4 under section 452, 306, 506, 324, 427 r/w 34 IPC, but not against accused no.3 Mr. Shyam Lal Tiwari. Later on, as per record, a supplementary chargesheet was filed qua accused no.3 Mr. Shyam Lal Tiwari.
2. Charge under section 306 IPC for abetment of sui- cide read with section 34 IPC was framed against all the four ac- cused.
Further, additional charges were framed against ac- cused no. 1, 2 and 3 under section 452 r/w 34 IPC, 341 r/w 34, 324 r/w 34, 427 r/w 34 and 506(Part II) r/w 34 IPC.
All the accused pleaded not guilty and claimed trial for such offences alleged against them.
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3. In order to establish the guilt of accused persons, the prosecution examined as many as 20 witnesses, including the complainant/PW-6 Mrs. Prem Kumari (who is the mother of de- ceased Ms. Shilpa) and her husband / PW7/Mr. Daya Shankar Sharma (who is the father of deceased Ms. Shilpa) as well as an- other public witnesses, PW11, Mr. Javed Khan. Apart from such witnesses, Prosecution examined Investigating officers/IOs of the case; the police officials, who accompanied the various IO's during investigation, who recorded the FIR i.e. PW1, PW2, PW8, PW9, PW10, PW12, PW13, PW14, PW15, PW17, PW18, PW19 and PW20. Apart from this, prosecution also examined PW3, Dr. Ms.Preeti Jaya and PW5 Dr.Mr.Kuldeep Valvi regard- ing the alleged injuries upon deceased Shilpa relating to the inci- dent dated 21/10/2018 as well as PW16 Dr. Mr. Arun Kumar S., who conducted the postmortem on the dead body of deceased Ms. Shilpa Sharma on 22/10/2018 after she allegedly committed suicide. Further prosecution also examined PW4 , Mr. Pawan Singh, Nodal Officer, Vodafone Idea Ltd. to prove the ownership of the mobile No. 9540866235 which was issued in the name of PW11. Their relevant evidence is dealt at appropriate stage later on .
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4. Statements of all the four accused persons under section 313 Cr.PC were recorded. In nutshell, it is the defence of all such accused persons that they have not committed any of- fence and they are falsely implicated in the present case. It is fur- ther claimed that they do not know how Shilpa allegedly re- ceived injuries on 21/10/2018. Accused No.1,2 & 3 further claimed that they never entered inside the house of complainant nor they restrained anybody nor caused any injury to deceased nor they broke any glass of window nor they extended any threat to the deceased. It is further claimed that they never abated the committal of suicide by the deceased in any manner. It is further stated by accused No.2 Amar Nath Tiwari that he was in love af- fair with deceased and he and Shilpa (deceased) were ready to marry each other but their family members were not agree to the same. He further stated that on the date of incident he alongwith deceased was seen by complainant/PW6 / mother of deceased at Pushta Jharoda and thereafter PW6 started beating the deceased and took her away from there. Accused No.1, 3 & 4 further de- posed that witnesses have falsely deposed against him as they were annoyed with accused No.1, 3 & 4 due to love affair of ac- cused No.2 Amar Nath Tiwari and deceased Shilpa. All the four accused persons further stated that they have not made any dis- SC No. 478/2018 State V Sanjay Tiwari & others Page no.5 of 49 :6: closure statement to the police. Further accused No.4 Khushboo further stated that she was not even living with her family mem- ber for the last four years and she was living and working in Gurgaon and she never abated the committal of suicide by the deceased in any manner. Further, all the accused stated in their statement u/s 313 Cr.P.C. that they wanted to lead evidence in defence.
5. Accused persons ultimately examined only one wit- ness in defence, Mr. Rizwan who was working as manager in ho- tel Suvidha Delux in Pahar Ganj area ,Delhi. Such witness was examined regarding the register relating to the customers hiring the rooms in that hotel between 14/05/2018 till 08/01/2019. But as per the record brought, a copy of which is placed on record as DW1/A (original seen and returned), no guest in the name of Amar Nath Tiwari / accused No.2 and/or Shilpa (deceased) stayed in such hotel on 04/10/2018.
6. It is argued by learned Addl.PP for the State that in- gredients of all the offences for which such accused No.1 to 4 are charged with are proved beyond reasonable doubt. It is fur- ther argued that it is clear from the evidence of PW6 & PW7 coupled with medical evidence on record that accused No.1,2 & 3 caused injury to the deceased after entering the house of de- SC No. 478/2018 State V Sanjay Tiwari & others Page no.6 of 49 :7: ceased and they further threatened the deceased and even broke the window glass. It is further argued that there is sufficient evi- dence on record which can be considered u/s 32(1) Indian Evi- dence Act relating to the circumstances in which deceased Shilpa committed suicide due to abetment of Accused No.1 to 4. It is further argued that role of each of the accused is sufficiently ex- plained by public witness PW6 & PW7 and same is consistence with medical evidence proved on record. Further, learned Ad- dl.PP also relied on the judgments i.e. (i) 'Pattipati Venkaiah Vs State of Andhra Pradesh' dated 16/08/1985 of Hon'ble Supreme Court of India & (ii) 'Atambir Singh & ors vs State of Delhi' dated 29/07/2015 in Crl.No. 392, 399/1998 and 439/2013 of Hon'ble High Court of Delhi.
7. On the other hand, it is argued on behalf of all the four accused that they are falsely implicated in the present case. It is further argued that although, it is unfortunate that a young life is lost, but there is no evidence at all which is proved on record to implicate any of the accused in abetment of suicide by deceased Shilpa. In fact, after going through deeply the evidence on record,particularly the medical evidence as deposed by PW- 16, the doctor who conducted the postmortem of deceased Shilpa, it is argued that death did not occur due to committal of SC No. 478/2018 State V Sanjay Tiwari & others Page no.7 of 49 :8: suicide by the deceased Shilpa by hanging herself with the help of 'Saari'.In fact, it is argued that it is a case of honour killing by the family members of the deceased themselves. It is further ar- gued that family of the deceased was not happy regarding the love affair of accused No.2 and deceased Shilpa and on a bare reading the evidence on record it is clear that mother /PW-6 and father/PW-7 of deceased Ms. Shilpa were hiding this aspect. It is further argued that in any case having regard to the settled case law relating to offence u/s 306 IPC there is not incriminating evi- dence on record at all against any of accused, to prove such of- fence against them. It is argued that in any case there is no insti- gation of such a magnitude as required to satisfy the ingredients of section 306 IPC. The alleged instigation / threat by the ac- cused side cannot amount to create such circumstances that de- ceased was left with no option except to commit suicide.
It is further argued that the evidence of PW6 & 7 who are the family members of deceased is full of inconsistency and improvements and also falls under the category of hearsay evidence. There is a mismatch in the timings of offence commit- ted by accused No.1,2 & 3 relating to alleged house trespass, threat, injury and damage on 21/10/2018. It is further argued that Ms. Priyanka, daughter of the complainant / PW6 is not exam- SC No. 478/2018 State V Sanjay Tiwari & others Page no.8 of 49 :9: ined as a witness, although as per the case of prosecution it was such Priyanka who saw for the first time deceased Shilpa hang- ing after committing the suicide. It is further argued that infact, accused No.4 Khushboo was living and working at Gurgaon and was not even present at the place of incident. It is further argued that even from the evidence PW11, who is a public witness cited and examined by prosecution only, it is clear that there was friendship and love affairs between accused No.2 and deceased Shilpa and still a contrary stands is taken by family members mother and father, PW6 & PW7, of the deceased Shilpa in this regard. It is further argued that from looking at the photographs and the table, it is clear that weight of such table was as such that deceased Shilpa could not have moved the same herself. It is fur- ther argued that even the medical jurisprudence relating to cases of suicide by hanging oneself do not match with the nature of findings of the postmortem reports. It is further argued that in any case, under these circumstances, as per the cardinal settled principle of law, benefit of doubt must be given to accused No.1 to 4 regarding the charge of section 306 r/w 34 IPC. It is further argued that in order to hide the misdeeds of family members of deceased, even Mrs. Neelu, daughter in law of complainant is not examined as prosecution witness, although, she was present SC No. 478/2018 State V Sanjay Tiwari & others Page no.9 of 49 : 10 : at the place of incident during such incident period. It is further argued that PW6 & 7 who are the only witnesses to the facts / merits of the case have clear motive to falsely implicate the ac- cused persons as they were not happy with the alleged affairs be- tween accused No.2 and their daughter Ms. Shilpa. Learned counsel for accused relied upon the various judgments, relating to appreciation of evidence in case of alleged death by suicide and the ingredients which are to be satisfied in case of offence u/s 306 IPC i.e. (i) case titled as 'Javed Abdul Rajjaq Shaikh vs State of Maharashtra' Crl.No. 1181/2011, (2019) 10 Supreme Court Cases 778; (ii) 'Bhajan Singh @ Harbhajan Singh & oth- ers Vs State of Haryana' Crl.No. 562/2007 dated 04/07/2011 (2011) 7 Supreme Court Cases 421; (iii) Crl.No. 386/1997 titled as 'Mehraj Singh (L/Nk.) Vs State of UP' with Crl.No. 288/1994 titled as 'Kalu Vs State of UP & others' dated 21/04/1994 (1994) 5 Supreme Court Cases 188; (iv) 'Ramesh Baburao Devaskar & others Vs State of Maharashtra' Crl.No. 844-46/2005 with 837, 843 & 847/2005, (2007) 13 Supreme Court Cases 501 dated 12/10/2007; (v) 'Sudarshan & another Vs State of Maharashtra' Crl.No. 1118/2014 dated 23/05/2014, (2014) 12 Supreme Court Cases 312; (vi) 'Chitresh Kumar Chopra Vs State (Government of NCT of Delhi)' Crl.No. 1473/2009 dated 10/08/2009, (2009) SC No. 478/2018 State V Sanjay Tiwari & others Page no.10 of 49 : 11 : 16 Supreme Court Cases 605; (vii) 'Amalendu Pal Jhantu Vs State of West Bengal' Crl.No. 2091/2009 dated 11/11/2009, (2010) 1 Supreme Court cases 707; (viii) 'Shabbir Hussain Vs The State of Madhya Pradesh & Ors' Appeal No.7284/2017.
As such, it is argued that all the accused be acquitted from all the charges alleged against them.
8. Certain oral submissions were also made by PW-7, father of deceased. In nutshell, he submitted that because of acts of omission and commission by all the accused persons and the harassment by them, their daughter deceased Shilpa committed suicide. It is further argued that conduct of the accused persons was always hostile towards his family and as such, such accused persons be given appropriate punishment.
The Findings:-
9. Before proceeding further, as per mandate laid down under Section 354 (1) (b)Cr.P.C following are the points of deter- mination which are necessary to consider in order to arrive at a conclusion:
(i) Whether accused No.1 to 4 in furtherance of their common intension abated committing of suicide by deceased Ms. Shilpa on 22/10/2018?
(ii) Whether accused No. 1 to 3 in furtherance of their common intension committed offence u/s 452 SC No. 478/2018 State V Sanjay Tiwari & others Page no.11 of 49 : 12 : r/w 34 IPC by trespassing into the house of com- plainant and caused hurt to the deceased Shilpa?
(iii) Whether accused No. 1 to 3 in furtherance of their common intension committed offence u/s 341 r/w 34 IPC by wrongfully restraining deceased Shilpa?
(iv) Whether accused No. 1 to 3 in furtherance of their common intension committed offence u/s 324 r/w 34 IPC by causing injury to the deceased Shilpa with some sharp edged object?
(v) Whether accused No. 1 to 3 in furtherance of their common intension committed offence u/s 427 r/w 34 IPC by breaking the glass of window of the complainant?
(vi) Whether accused No. 1 to 3 in furtherance of their common intension committed offence u/s 506 (Part-II) r/w 34 IPC by criminally incriminating Ms. Shilpa to kill her?
10. At this stage before proceeding further it may be noted that it is a settled proposition of criminal law that prosecu- tion is supposed to prove its case on judicial file beyond reason- able doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it SC No. 478/2018 State V Sanjay Tiwari & others Page no.12 of 49 : 13 : is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused.
Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the pros- ecution story and such reasonable doubt entitles the accused to acquittal.
"Whether accused No.1 to 4 in furtherance of their common intension abated committing of suicide by de- ceased Ms. Shilpa on 22/10/2018"
11. The provision of section 107 was interpreted in Kishori Lal v. State of M.P (2007) 10 SCC 797 : (AIR 2007 SC 2457) by a two-Judge Bench and the discussion therein is to the following effect:
"Section 107, IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in IPC. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence.
SC No. 478/2018 State V Sanjay Tiwari & others Page no.13 of 49 : 14 : "Abetted" in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence."
12. Further in M. Mohan Vs. State (2011) 3 SCC 626 :
AIR 2011 SC 1238) while dealing with the abetment, the Hon'ble SC has observed thus:
"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 are clear that in order to convict a person under section 306, IPC there has to be a clear mens rea to commit the offence. It also requires 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/she committed suicide."
13. At this stgae it would be very pertinent to refer and rely on the judgment in Gurcharan Singh vs The State Of Punjab AIR 2017 SC 74 decided by the three judges bench of Hon'ble SC where it was observed and held as follows:-
".....6. The Trial Court then posed a question to itself as to why a young lady with two small children would commit suicide unless she has been pushed to do so, by the circumstances in the matrimonial home. It was then observed that the expectation of a married woman will be love and affection and financial security at the hands of her husband and if her hopes are frustrated by the act or by wilful negligence of the husband, it would constitute abetment within the SC No. 478/2018 State V Sanjay Tiwari & others Page no.14 of 49 : 15 : meaning of section 107 IPC, warranting conviction under section 306 IPC. With such reasoning, the Trial Court concluded that Shinder Kaur committed suicide when her hopes were frustrated by the act of her husband or alternatively, by his wilful neglect. Thus, the Court itself was uncertain on the nature of the act to be attributed to the appellant. Moreover, even while noting that no direct evidence of cruelty against the husband and the in-laws is available, the learned Court assumed that section 306 IPC can be applied against the appellant. With such conjecture, while acquitting all three accused of the charged crime under section 304B and 498A of IPC, the husband was convicted under section 306 IPC.
7. In the resultant Criminal Appeal, the appellant contended that the conviction cannot be justified unless evidence disclosed some positive act or conduct of the accused, which might have compelled the deceased to commit suicide.................."
10. In order to give the finding of abetment under section 107 IPC, the accused should instigate a person either by act of omission or commission and only then, a case of abetment is made out.
12.Section 107 IPC defines "abetment" and in this case, the following part of the section will bear consideration: -
"107. Abetment of a thing - A person abets the doing of a thing, who - First-Instigates any person to do that thing; or **** **** **** **** **** Thirdly - Intentionally aids, by any act or illegal omission, the doing of that thing."
14. The definition quoted above makes it clear that whenever a person instigates or intentionally aids by any act or illegal omission, the doing of a thing, a person can be said to have abetted in doing that thing.
15. As in all crimes, mens rea has to be established. To prove the offence of abetment, as specified under Sec 107 of the IPC, the state of mind to commit a particular crime must be visible, to determine the culpability. In order to prove mens rea, there has to be something on SC No. 478/2018 State V Sanjay Tiwari & others Page no.15 of 49 : 16 : record to establish or show that the appellant herein had a guilty mind and in furtherance of that state of mind, abetted the suicide of the deceased. The ingredient of mens rea cannot be assumed to be ostensibly present but has to be visible and conspicuous. However, what transpires in the present matter is that both the Trial Court as well as the High Court never examined whether appellant had the mens rea for the crime, he is held to have committed. The conviction of Appellant by the Trial Court as well as the High Court on the theory that the woman with two young kids might have committed suicide, possibly because of the harassment faced by her in the matrimonial house, is not at all borne out by the evidence in the case. Testimonies of the PWs do not show that the wife was unhappy because of the appellant and she was forced to take such a step on his account.
16. The necessary ingredients for the offence under section 306 IPC was considered in the case SS Chheena Vs. Vijay Kumar Mahajanon decided on 12 August, 2010 in Criminal Appeal No. 1503 OF 2010 arising out of SLP (Crl) No.6811 of 2009 where explaining the concept of abetment, Justice Dalveer Bhandari wrote as under:-
"25. Abetment involves a mental process of instigating a person or intentionally aiding a 1 (2010) 12 SCC 190 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 Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide."
SC No. 478/2018 State V Sanjay Tiwari & others Page no.16 of 49 : 17 :
17. While dealing with a case of abetment of suicide in Amalendu Pal alias Jhantu vs. State of West Bengal2, Dr. Justice M.K. Sharma writing for the Division Bench explained the parameters of Section 306 IPC in the following terms:
"12. 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 there being any positive action proximate to the 2 (2010) 1 SCC 707 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.
13. In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC.
18. In the case Mangat Ram Vs. State of Haryana decided on 27 March, 2014 in Criminal Appeal No. 696 Of 2009, which again was a case of wife's unnatural death, speaking for the SC No. 478/2018 State V Sanjay Tiwari & others Page no.17 of 49 : 18 : Division Bench, Justice K.S.P. Radhakrishnanan rightly observed as under:-
"24. We find it difficult to comprehend the reasoning of the High Court that "no prudent man is to commit suicide unless abetted to do so". A woman may attempt to commit suicide due to various reasons, such as, depression, financial difficulties, disappointment in love, tired of domestic worries, acute or chronic ailments and so on and need not be due to abetment. The reasoning of the High Court that no prudent man will commit suicide unless abetted to do so by someone else, is a perverse reasoning." 3 (2014) 12 SCC 595
19. Proceeding with the above understanding of the law and applying the ratios to the facts in the present case, what is apparent is that no overt act or illegal omission is seen from the appellant's side, in taking due care of his deceased wife. The evidence also does not indicate that the deceased faced persistent harassment from her husband. Nothing to this effect is testified by the parents or any of the other prosecution witnesses. The Trial Court and the High Court speculated on the unnatural death and without any evidence concluded only through conjectures, that the appellant is guilty of abetting the suicide of his wife.
20. In such circumstances, we have no hesitation in declaring that the Trial Court and the High Court erred in concluding that the deceased was driven to commit suicide, by the circumstances or atmosphere in the matrimonial home. This is nothing more than an inference, without any material support. Therefore, the same cannot be the basis for sustaining conviction of the appellant, under section 306 of the IPC.....".
14. Thus in this recent 3 judges bench judgment passed in Gurcharan Singh (supra) ,the Hon'ble Apex Court held that SC No. 478/2018 State V Sanjay Tiwari & others Page no.18 of 49 : 19 : the basic ingredients about provision of Section 306 of IPC relating to suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of these constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualize the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. Section 306 IPC, thus criminalizes the sustained incitement for suicide. If there is no reference or disclosure of any specific incident in support thereof, the materials on record do not suggest even remotely any act of instigation etc. so as to persistently provoke or compel the deceased to resort to self-extinction being left with no other alternative and no such continuous and proximate conduct of the accused with the required provocative culpability or lethal instigative content is discernible to even infer that the deceased had been pushed to such a distressed state, physical or mental that she elected to liquidate herself as if to seek a practical SC No. 478/2018 State V Sanjay Tiwari & others Page no.19 of 49 : 20 : alleviation from her unbearable earthly miseries, it could be said that the ingredients of the offence of Section 306 of IPC have remained unproved and thus, the accused persons deserves to be acquitted.
15. With this background of the laws, reverting back to the case in hand, this court has gone through the the evidence particularly of PW6 and 7. It is deposed by PW6 that on 21 st day of the month of the year 2018 whose month she did not remember, at about 5:00 / 5:30 PM, accused No.2 Amar Nath Tiwari came to their house in inebriated condition and started abusing them. Accused No.2 was residing adjacent to her house.It is further deposed that when PW6 objected accused No.2 not to abuse and go to his home, such accused No.2 became furious and took out a stone which was lying near the sewer and threatened to throw the same on PW6. As such, PW6 called accused No.3 Shyam Lal Tiwari, father of accused No.2 by shouting and accused No.3 as well as accused No.1 Sanjay Tiwari came there and took back accused No.2 to their home.
It is further deposed by PW6 that her daughter Shilpa told her that accused No.1,2 & 3 came at about 6:15 PM when Shilpa was alone and accused No.1,2 & 3 started beating her after SC No. 478/2018 State V Sanjay Tiwari & others Page no.20 of 49 : 21 : entering her house causing several injuries to Shilpa upon her hand, head, neck and face and accused No.1 also broke the glass of window and the cooler. It is further deposed by PW6 and even by PW7 that Shilpa was in injured condition when PW6 came back home after fetching milk after about 15-20 minutes. It is further deposed by PW6 that when they were in the process of returning from Police Station, accused No.2 threatened them that what is done with Shilpa would be done to PW7 and as well as to the son of PW6. It is further deposed that even accused No.4 Khushboo was also present in Police Post / Station she also threatened Shilpa by saying "अभभ तत महहरह कयह कयह हहल करतभ हह । बयहन मत दद ददयय" (see what I will do to you. Do not dare to give your statement). It is further deposed by PW6 & 7 that after coming back to the home they tried to make understand / cool down Shilpa and thereafter she went to sleep and other family members also went to sleep. It is further deposed by PW6 & 7 that on the next day their daughter Shilpa woke up and went to the roof of their house. But accused No.1,2 & 4 were also on the roof of their house and all three of them threatened their daughter. As a result, it is deposed by PW6 & PW7, that Shilpa came down and went inside her room at first floor and hanged herself in her room with 'Saari' with the ceiling fan ,because of SC No. 478/2018 State V Sanjay Tiwari & others Page no.21 of 49 : 22 : such harassments by accused No.1 to 4. It is further deposed that their daughter Priyanka who is younger to Shilpa, went inside the room of Shilpa and found Shilpa hanging. As such, such daughter Priyanka shouted and family members of PW6 & 7 went inside the room of Shilpa and somehow brought down Shilpa from ceiling fan and found her dead .As such, they called the police and PW6 got registered her complaint Ex.PW6/A bearing her signature at point A. She also shown the place of occurrence to the police, same is Ex.PW6/B. It is further deposed that photographs were also taken by the police in this regard. PW6 & 7 correctly identified all the 4 accused persons in Court.
During her cross examination PW6 deposed that she has no knowledge if there was any kind of friendship between accused No.2 Amar Nath and deceased Shilpa. She further denied the suggestion that on 21/10/2018 PW6 found accused No.2 and Shilpa sitting at 'Pushta'. She further denied the suggestion that both her daughter Priyanka and Vidhi were present at the house at the time of incident on 21/10/2018. It is further deposed by PW6 as well as PW7 during their cross examination by learned counsel for accused that in the intervening night of 21/10/2018 and 22/10/2018 their deceased SC No. 478/2018 State V Sanjay Tiwari & others Page no.22 of 49 : 23 : daughter was telling them that police has done nothing and the accused persons would kill her and the family. That PW6 & 7 tried to make her understand that accused persons would do nothing and they will see in the morning what action is required to be taken. PW6 even denied the suggestion that deceased Shilpa did not tell them so.
At this stage ,it is to be noted that PW6 deposed that her daughter Shilpa made a complaint regarding incident of 21/10/2018 to police, but no such complaint is placed or proved on record by the prosecution. In fact it is stated by SI Jagdish / IO that he did not come across any such complaint / statement during investigation. As such, same is not on record.
In the present case death of Ms. Shilpa has taken place. Broadly speaking, same can be as a result of accident, murder or suicide. Having regard to the evidence on record and the postmortem report and the deposition of PW16 / doctor who conducted the PM, it is clear ,and it is also not the case of prosecution nor even the defence of accused side ,that it is not a case of accidental death nor the same appear so from the evidence on record. As such, it is held that it is not a case of accidental death. Further, defence of murder / honour killing by SC No. 478/2018 State V Sanjay Tiwari & others Page no.23 of 49 : 24 : the family member of deceased is also raised by the learned counsel for accused, including based on nature of injury found in the postmortem report and the interpretation on the medical jurisprudence explained by Ld. Counsel for accused. But it is also clear from the cross examination of such expert witness / doctor / PW16, as also argued by learned Addl.PP for the State, that nature of injury and the condition of the dead body do suggest that such death was by suicide only and in any case there was no foul play found during investigation pointing to the theory of murder. In fact , in this case, there is no charge of murder either on the present accused or on any other person, nor such evidence collected. Therefore, the theory of murder do not found support from the evidence placed on record. In fact, in the present case it is established that death was result of suicide having regard to the evidence of ocular witnesses PW6 & 7, r/w expert witness PW16 r/w and the police officials who immediately attended the dead body after the death.
Therefore, the moot question is whether the suicide was abated by the accused persons, that too based on the criteria of section 306 IPC in the light of case laws discussed above. SC No. 478/2018 State V Sanjay Tiwari & others Page no.24 of 49 : 25 : Except the deposition by PW7 in his examination in chief that her daughter Shilpa came down and informed him about such incident and thereafter, she went at the first floor ,there is no direct proof in support of the allegations that when deceased Shilpa went to the roof of their house, then accused No.1, 2 & 4 threatened her. Further, what was the threat, what was the role played by accused No-1 ,2 and 4 in extending such alleged threat , out of accused No.1,2 & 4 which of the accused extended what kind and nature of threat is also vague. Furthermore, even on the last day i.e. 21/10/2021 evening, it is the case of prosecution witnesses themselves that deceased Shilpa was alone when accused No.1,2 & 3 entered to their house and wrongfully restrained her.
In any case , in the considered view of this Court having regard to the case law just discussed above, even if such evidence qua offence u/s 306 IPC brought on record by the prosecution is accepted till same is short of and do not meet the criteria laid down for abetment of suicide. It is deposed by PW6 & 7 that due to continuous taunting and harassment by accused persons and also because of beating incident with her dated 21/10/2018, their daughter was depressed and as such committed SC No. 478/2018 State V Sanjay Tiwari & others Page no.25 of 49 : 26 : suicide as a result thereof. In the considered view of the Court the incident of 21/10/2018 is not proved on record by direct oral evidence or by any other documentary / scientific evidence cctv footage etc. As such, no weightage to the same can be given particularly when the accused side do not have the opportunity to cross examine the witness / Shilpa who was the sole alleged witness of the incident of 21/10/2018 in the evening. Even if evidence proved on record is taken in toto even then they do not constitute offence of abetment to commit suicide. No evidence is there to show that the intention of any of the accused was to instigate the deceased to commit suicide. On going through the evidence proved on record ,neither there is any evidence of persistent pressure, harassment or torture from the accused side nor, apart from alleged bald oral threat to mother /PW-6 by Accused No-2 and later by Accused No-4 ,no other evidence is legally proved on record that they have ever harassed the the deceased in such a manner that one may apprehend that they will kill Shilpa or will harm her in such a manner that to avoid such condition a common prudent person take a decision to self extinction. There is no cogent evidence that either by words or by any action, the accused persons have forced the deceased to SC No. 478/2018 State V Sanjay Tiwari & others Page no.26 of 49 : 27 : commit suicide. For proving charge under Section 306 of IPC there has to be a mens-rea to impel or incite the subject to commit suicide. It also requires an active or direct act, which lead the deceased to commit suicide and this act must push the deceased into such a position that she sees no option except to annihilate her own life.
16. On a plain reading of the statement of the witnesses, particularly PW-6 and PW-7 it is difficult to hold that there had been any abetment by the accused Persons. Having regard to the law which has been reiterated several times by the Hon'ble Higher Courts in various pronouncement and in view of the legal provisions,and having regard to entire evidence proved on record ,this court holds that same do not constitute the offence u/s 306 IPC charged against the any of the accused persons. The prosecution fails to prove the charge by adducing clear and sufficient evidence to hold the any of the accused persons guilty. As such this court finds that there is not sufficient evidence on record to indicate that the accused persons abetted suicide.
Further, it is admitted by PW6 during her cross examination that there were some dispute between her family member and family member of accused side before the present SC No. 478/2018 State V Sanjay Tiwari & others Page no.27 of 49 : 28 : incident and it is claimed by PW6 that the same was relating to erecting the building. Further, PW7 also during his cross examination admitted that there was minor dispute between the two sides before the present incident. Further, on analysis of the evidence of PW6, it can be seen that there are improvements in the deposition in Court by such witness PW6 Further , such witness/PW-6 otherwise cannot even remember the month of incident, name of hospital where her daughter Shilpa was medically treated on 21/10/2018.She further do not remember whether Yogesh and Rakesh were present when her statement was recorded by police on 22/10/2018. Further, she does not remember the name of police officials who met her in the Police Post on 21/10/2018.
Further, no plausible explanation given by the prosecution why Priyanka who saw deceased Shilpa for the first time is not examined as a witness in the present case nor daughter in law of complainant Neelu was examined as a prosecution witness. Further, it is not even the case of prosecution that deceased Shilpa left behind any suicide note naming anyone.
SC No. 478/2018 State V Sanjay Tiwari & others Page no.28 of 49 : 29 : Further on the contrary there is a evidence of PW11 Javed read with evidence of PW4 ,Nodal Officer ,M/s Vodafone company, who is examined by prosecution side only that on 19/10/2018 accused No.2 Amar Nath demanded PW11's mobile to make a call and on further talks between such PW11 and accused No.2, accused No.2 disclosed that deceased Shilpa was his girlfriend. He further deposed that in the evening of 21/10/2018 a quarrel took place between the family of accused No.2 and family of Shilpa , as such PW11 even got blocked the above mobile number 9540866235 by calling on customer care at about 10:00 - 10:30 PM itself. Further, it can further be seen from evidence on record that as per customer application form Ex.PW4/A it is the name of PW11 Javed Khan and his Aadhaar copy Ex.PW4/B which is there. As such, it is clear that mobile number 9540866235 was being used by deceased Shilpa and same was issued in the name of PW11 who is friend of accused No.2. But during cross examination PW7 / father of Shilpa deposed to the contrary and claimed that such mobile number was given by him to his daughter Shilpa. In fact during his cross examination PW11 further deposed that earlier he had seen on some occasions accused Amar Nath and Shilpa together and accused Amar Nath has dropped Shilpa to her college on his SC No. 478/2018 State V Sanjay Tiwari & others Page no.29 of 49 : 30 : bike. It is further deposed by PW11 that on some occasions accused No.2 Amar Nath told PW11 that he wanted to marry deceased Shilpa. But contrary to such categorical evidence by public witness of the prosecution side itself, it appears that mother /PW6 and father / PW7 of deceased Shilpa did not come forward with complete facts regarding the relationship between deceased Shilpa and accused No.2. In this background, and the case law regarding interpretation of offence u/s 306 IPC this Court draw the inference and conclusion that the nature of harassment alleged and claimed by PW6 & PW7 are not found sufficient to amount to abetment of suicide by any of the accused persons. The alleged taunting, harassment are not sufficient in any case to drive the deceased Shilpa to commit suicide. As it is the cardinal principle of criminal law that benefit of reasonable doubt should go in favour of accused and the case is to be proved by the prosecution beyond reasonable doubt ,as such, all the accused persons are given benefit of doubt. As such, all the four accused are acquitted of the charge u/s 306 IPC.
"Whether accused No. 1 to 3 in furtherance of their common intension committed offence u/s 452 r/w 34 IPC by trespassing into the house of complainant and caused hurt to the deceased Shilpa"
SC No. 478/2018 State V Sanjay Tiwari & others Page no.30 of 49 : 31 :
17. Now coming to the charge u/s 452 IPC r/w 34 IPC ,the essential ingredients of house-trespass are that (a) the ac- cused must commit criminal-trespass that by unlawfully entering into or (b) by remaining on the property unlawfully after initial lawful entry; (c) that such trespass was in respect of a building, tent or vessel; and (d) that such building, tent or vessel was used as a human dwelling or as a place of worship or as a place for storing property.
18. As house-trespass is an aggravated form of criminal- trespass, which has been defined under Section 441 of the IPC and which is punishable under Section 447 of the IPC,it is, therefore, obvious that before a person is held to be guilty of an offence punishable under Section 452 of the IPC, it must be shown that in the alleged trespass, all the elements of 'criminal- trespass' or 'house-trespass' were present.
19. Further to constitute an offence under this section the property must be possessed by another person and not the trespasser himself. The law intends to protect the interest of the possessors and not the person who are owners. The law does not require the possession to be legal or lawful, all that is required to be proved is that the possession is actual and exclusive. The SC No. 478/2018 State V Sanjay Tiwari & others Page no.31 of 49 : 32 : complainant may file a case of criminal trespass as possessors of a property even though the trespasser is the owner itself. Further, it is not mandatory for that person to be present at the time of criminal trespass, if the entry is made by the accused with the intention as mentioned in the section.
20. For conviction under this section, the intent of the accused is essential. As the trespass may not be criminal if the accused do not possess the intention to 'commit an offence or to intimidate, insult or annoy any person in possession of such property'. Thus the objective of the act done by the accused must be driven by his criminal intention. Further the prosecution is required to prove this intention of the accused in the court of law, the absence of which, conviction is impossible under this section. The above intention to intimidate or insult or annoy the person in possession of that property as claimed by the prosecution must be actual. The intention of the accused can be proved by circumstantial evidence in which the accused expresses his intention or by the series of acts undertaken by the accused.
21. In the present case, it is deposed by PW6 / complainant in her examination in chief that on 21/10/2018 at SC No. 478/2018 State V Sanjay Tiwari & others Page no.32 of 49 : 33 : about 6:15 PM, she went to fetch milk after leaving behind her daughter Shilpa alone at their house. It is further deposed that when PW6 came back, her daughter Shilpa told PW6 that when PW6 had gone to fetch milk, accused No.3 came to their house. As such, at this stage, it can be noted that whatever is deposed by PW6 in this regard is not directly witnessed by PW6 but she deposed as told to her, as per claim of PW6 herself, by her daughter, deceased Shilpa. As such, all such deposition is not the direct evidence about such incident of 21/10/2018 around 6:15 PM relating to offence u/s 452 IPC and others. It is further deposed by PW6 that at that time accused No.3 Shyam Lal Tiwari caught hold of Shilpa's hand and asked his both sons i.e. accused No.1 & 2 to beat Shilpa because Shilpa speaks too much against them. It is further deposed by PW6 that Shilpa told her that all the three accused No.1,2 & 3 started beating her and they were having some sharp object by which they caused several injuries to Shilpa upon her head, hand, neck and face and accused No.1 also broke glass of window of the house of the complainant.
22. It can be noted that during her cross examination PW6 admitted that such incident of accused No.1, 2 & 3 SC No. 478/2018 State V Sanjay Tiwari & others Page no.33 of 49 : 34 : allegedly entering into the house of complainant and beating etc by them is not seen by PW6, but when she returned back then her deceased daughter told her about the same. Thus it can be seen that such alleged offence of trespassing was not in the presence of any of the witness examined by the prosecution, including PW6 & 7. In fact PW7 also admitted during his cross examination by accused side that alleged beating and house trespass by accused persons was not committed in his presence and the same was only told to him by his daughter Shilpa. In fact it is the case of the prosecution witness that Shilpa was alone at home and not even another daughter Priyanka or daughter in law Neelu was present at home when such alleged incident of trespassing etc took place. Further, the alleged incident relating to trespassing etc at about 6:15 PM on 21/10/2021 is not a statement by deceased Shilpa regarding her cause of death or any of the circumstances of the transaction which resulted into her death. In fact, it relates to offences other than 306 IPC with which accused No.1,2 & 3 are charged in present case. As such, the Court is bound to look into and give findings regarding the guilty of accused persons based on evidence proved on record ,that too of the nature and level as required by particular offence ingredients in law. In the present case, it can be safely concluded SC No. 478/2018 State V Sanjay Tiwari & others Page no.34 of 49 : 35 : that prosecution has failed to prove on record cogent and legally admissible evidence on record that any of the accused No.1,2, & 3 committed the offence u/s 452 IPC. As such, all the accused persons are given benefit of doubt as it is the cardinal principle of criminal law that benefit of doubt should go in favour of accused and the case is to be proved by the prosecution beyond reasonable doubt. Accordingly ,Accused No,1 to 3 are acquitted of the charge u/s 452 IPC.
"Whether accused No. 1 to 3 in furtherance of their common intension committed offence u/s 341 r/w 34 IPC by wrongfully restraining deceased Shilpa"
23. Wrongful restraint is defined in Section 33 9of the Indian Penal Code. It states that whoever on purpose obstructs any person with the intent to prevent him from moving in any direction in which he has a right to move or to proceed is said to wrongfully restrain that person. In a more simpler language it means intentionally blocking someone's right to move from one place to another. It is important to note that restraining someone's right physically is not the only factor which constitutes restraint. As soon as the freedom or a right of a person to proceed in a way is obstructed, wrongful restraint takes place.
SC No. 478/2018 State V Sanjay Tiwari & others Page no.35 of 49 : 36 : Thus the preconditions for the offence punishable u/s 341 IPC are :
i)Purposefully or voluntarily obstructing a person,
ii)To prevent him to move in any direction,
iii)Where the person has a right to move or proceed,
iv) An obstruction was in bad faith.
24. In the present case , inter alia, it is deposed by PW6 & 7 that when their daughter Shilpa was alone at home on 21/10/2018 at about 6:00 - 6:15 PM, accused No.1,2 & 3 entered their house and when Shilpa opened the door of the house , accused No.3 caught hold of her from behind and asked his both sons ,accused No.1 & 2, to beat her. In this way, it is alleged by prosecution that among other offences accused No.1, 2 & 3 committed the offence of wrongful restrain. But it is again noted that there is no direct evidence / witness to such allegation. Further, there is no other documentary evidence like cctv footage or the like or sufficient circumstantial evidence warranting the conviction of such accused No.1,2 & 3 for such offence u/s 341 IPC r/w 34 IPC. Prosecution has failed to prove on record as per settled law, including the provisions of Indian Evidence Act, that such incident took place at all by leading cogent or sufficient SC No. 478/2018 State V Sanjay Tiwari & others Page no.36 of 49 : 37 : evidence in this regard. As such, the accused 1,2 and 3 are given benefit of reasonable doubt and accordingly ,Accused No,1 , 2 and 3 are acquitted of the charge u/s 452 IPC.
"Whether accused No. 1 to 3 in furtherance of their common intension committed offence u/s 324 r/w 34 IPC by causing injury to the deceased Shilpa with some sharp edged object"
25. An offence under section 324 IPC needs to meet the following requirements :
i)That the accused voluntarily caused hurt to another person;
ii)That such hurt was in exception to cases provided under Section 334;
iii)That such hurt was caused:
(a) by means of any instrument for shooting, stabbing or cutting, or any instrument which used as a weapon of offence is likely to cause death;
or
(b) by means of five or any heated substance; or (c ) by means of any poison or any corrosive substance; or
(d) by means of any explosive substance; or
(e) by means of any substance which is deleterious to the human body to inhale, to swallow, or receive into the blood; or
(f) by means of any animal.
SC No. 478/2018 State V Sanjay Tiwari & others Page no.37 of 49 : 38 :
26. A lot of different things can be used as lethal weapons . The law has a wide scope for interpretation for this offence so that legal loopholes do not result in injustice. PW5 is the Dr. Kuldeep Valvi who was posted as casualty medical officer in Aruna Asaf Ali hospital on 21/10/2018. He deposed that on that day at about 8:37 PM patient Shilpa Sharma daughter of Daya Shankar was brought by her mother Mrs. Prem Kumari Sharma and Constable Anil with request for medical examination with alleged history of assault by three known male persons at around 6:30 PM at home. Such, history was told by patient herself. It was further deposed that patient was complaining pain on her neck bilateral upper limb and during local examination scratch abrasions were found over her right arm, upper arm right forearm, left arm, over front neck, left forehead and a superficial cut over front left elbow and upper forearm. It was further opined by PW5 that injury No.4 was caused by sharp edged weapon and rest of the injury were most probably caused by blunt object. Such, injuries were simple in nature as per PW5's opinion. During his cross examination PW5 admitted that he cannot say that if all the injuries except injury no. 4 were self inflicted injury and only forensic expert can tell about the same. He further admitted that injury no.4 was caused SC No. 478/2018 State V Sanjay Tiwari & others Page no.38 of 49 : 39 : by sharp object , but he cannot tell about the nature of object. He further admitted that he did not inquire from the patient about the object by which such injuries were sustained by the patient. Further in the present case as already noted above while discussing the offence u/s 452 IPC, it is the case of prosecution that during the said transaction, at about 6:15 PM on 21/10/2018 accused No.1,2 & 3 also caused injury by some sharp object to Shilpa upon her hand, neck, head and face as deposed by PW6 &
7. But PW-6 and & 7 admitted that such incident did not take place in their presence. As such, from the evidence of ocular witnesses PW6 & 7 read with evidence of expert witness PW5 Doctor who examined Shilpa, it is clear that she sustained injury including injury no.4 which was caused by sharp weapon. But having noted so again prosecution has not brought on record any cogent and convincing direct oral evidence, who saw any of the accused causing such injury upon the Shilpa nor there is any other documentary / scientific evidence like CCTV footage etc. to prove on record that such injuries were caused by present accused persons No.1,2 & 3 only. Further, there is only one sharp injury and it is not proved at all as to which of the accused out of accused No. 1,2 & 3 caused such injury ,if so at all. In fact, it is not even proved that rest of five injuries as mentioned by PW5 SC No. 478/2018 State V Sanjay Tiwari & others Page no.39 of 49 : 40 : are caused by the accused No.1,2 and/or 3 and none else. As such the evidence proved on record is not found sufficient to give a finding of conviction against the accused persons. As such, the accused 1,2 and 3 are given benefit of reasonable doubt and accordingly ,Accused No,1 to 3 are acquitted of the charge u/s 324 IPC.
"Whether accused No. 1 to 3 in furtherance of their common intension committed offence u/s 427 r/w 34 IPC by breaking the glass of window of the complainant"
27. The definition of mischief is mentioned under Section 425 of IPC & the punishment is prescribed under Section 426 of IPC. Further Section 427 to 440 lays down the specific punishment prescribed for aggravated forms of mischief depending upon the nature & the value of the property damage. The Law of Mischief under IPC is specifically drafted with an objective to provide protection against the destruction of the property causing any wrongful loss or damage to the public or an individual. Mischief under Section 425 of IPC covers all those acts that cause any damage or destruction to the property resulting in any wrongful loss or damage. The scope of this section is wide and it applies in the case of both public as well as SC No. 478/2018 State V Sanjay Tiwari & others Page no.40 of 49 : 41 : private damages. However, the most important point is that it will not have any application in the cases where the element of intention is absent .Thus "mens rea" is required to be present in order to establish the offence of Mischief. It is also not essential that the person accused had some valid motive behind or must have been benefited from the act of "mischief".
28. Essentially there are three key elements to establish Mischief as per the definition laid down in section 425 of IPC which are as follows:
(i) Intention or the knowledge of the act (mens rea);
(ii) The act resulting in destruction, damage or change in the property or situation thereof; and (actus rea)
(iii) The change must lead to diminishing the value or utility.
29. Further according to section 427 of Indian Penal Code, whenever a person commits mischief and causes loss or damage to another person which amounts to rupees 50 or more, such person shall be held liable for punishment under this section. The act of mischief under section 427 IPC is similar to that under section 425 IPC. The only difference is the extent of SC No. 478/2018 State V Sanjay Tiwari & others Page no.41 of 49 : 42 : damage to the amount of 50 rupees. The term of punishment also differs on the basis of the same. When the damage caused by the act of mischief is more than 50 rupees, then only accused will be liable under this section.
30. In this background of law, the next point for determination is whether the accused No-1 , 2 and 3 or any of them on 21/10/2018 at about 6:15 pm at the house of complainant , committed mischief and thereby causing loss or damage to the house of complainant to the amount of 50/- Rupees or upwards, and thereby committed offence under section 427 of IPC?
As discussed above, to hold a person guilty under Section 427 IPC, it has to be proved by the prosecution that the accused had the intent to cause or knowing that he is likely to cause wrongful loss or damage to the complainant and thereby causes destruction or any other change to the property of the complainant and in the instant case. None of the witnesses, including PW6 & 7, as already noted above also is the eye witness nor their evidences, even otherwise, establish ingredients of mischief against the accused person. The prosecution has SC No. 478/2018 State V Sanjay Tiwari & others Page no.42 of 49 : 43 : failed even to collect the pieces of broken glass or water cooler. Further, there is no photographs / documentary evidence in this regard. In fact during his cross examination ASI Roodmal / PW15 deposed that he had not noticed if any window glass or cooler were found broken at the spot and he only saw deceased Shilpa while lying on the bed. It is further deposed by him during his cross examination that none of the family member of deceased complained to him about breaking of window glass or cooler. Further, PW-20 SI Jagdish Singh also admitted during his cross examination that he did not make any inquiry regarding factum of broken glass. As such, the prosecution has failed in establishing the guilt of the accused persons No.1,2 or 3 under Section 427 of IPC beyond reasonable doubts, thereby making them not guilty under the said Section. As such, accused No,1 to 3 are acquitted of the charge u/s 427 IPC.
"Whether accused No. 1 to 3 in furtherance of their common intension committed offence u/s 506 (Part-II) r/w 34 IPC by criminally incriminating Ms. Shilpa to kill her"
31. Section 506 IPC prescribes punishment for the offence of criminal intimidation. "Criminal intimidation" as defined in Section 503 IPC is as under:-
SC No. 478/2018 State V Sanjay Tiwari & others Page no.43 of 49 : 44 : "503. Criminal Intimidation.- Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation.- A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section."
32. For making an offence under section 506 IPC , it is essential that the requirements of section 503 IPC are fulfilled. The requirements of section 503 are as follows:-
(a) A person threatens another with injury.
(b) The injury is to-
(i) his person, reputation or property, or
(ii) to the person or reputation of any one in whom that person is interested.
(c) The intention is:-
(i) to cause harm to that person, or
(ii)to cause that person to do any act which he is not legally bound to do, as means of avoiding, execution of such threats, or
(iii)to cause that person to omit to do any act which that person is legally entitled to do, as the means of avoiding execution of such threat.
33. A reading of the definition of "Criminal intimidation" would indicate that there must be an act of threatening to another person, of causing an injury to the person, SC No. 478/2018 State V Sanjay Tiwari & others Page no.44 of 49 : 45 : reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do.
34. In judgment titled Amitabh Vs. NCT of Delhi 2000 CRI. L.J.4772 the Hon'ble Delhi High Court observed as follows:-
"The averments made in the FIR and in the case diary statement of the complainant against the petitioners also do not satisfy the essential ingredients of the offences punishable under section 506/509 IPC. The threats alleged to have been given to the complainant Ms. Bharti by the petitioners do not fall within the definition of criminal intimidation in as much as the complainant has nowhere stated that the threats given by the petitioners caused an alarm to her. It is well settled that mere threat is no offence".
35. In Kanshi Ram Vs. State [86 (2000) DLT 609, 2000 (54) DRJ 112] it was observed:
".........10. So far as the offence under Section 506 IPC is concerned, the complainant Isran Ahmed stated in his case diary statement that at the relevant time the petitioner had exhorted his security personnel to thrash the journalists. According to Isran Ahmed, the exact words used by the petitioner were "Maro Salon Ko".Strangely enough, Isran Ahmed has nowhere stated in his statement that the alleged threat had caused an alarm to him. On the contrary the circumstances of the case clearly go to show that even after the alleged threat, the complainant SC No. 478/2018 State V Sanjay Tiwari & others Page no.45 of 49 : 46 : or other media persons did not retrace their steps. It is well settled that more threat is no offence. That being so the threat alleged to have been given by the petitioner does not fall within the mischief of Section 506 IPC. Consequently, no charge under Section 506 IPC can be framed against the petitioner on the basis of the said evidence. ..."
36. In the case of Surinder Suri v. State of Haryana, 1996 SCC OnLine P&H 582 : (1996) 2 RCR (Cri) 701 (P&H), it was held by the Punjab and Haryana High Court that the gist of the offence (under Section 503 IPC, which is punishable under Section 506 IPC) is the effect which the threat is intended to have upon the mind of the person threatened. The threat must be one which can be put into execution by the person threatening. A threat, in order to be indictable must be made with intent to cause alarm to the complainant. As for instance mere vague allegation by the accused that he is going to take revenge by false complaints cannot amount to criminal intimidation.
37. In the instant case, it is categorical deposed by PW6 / complainant that on 21 st at about 5:00 - 5:30 PM accused No.2 came to their house inebriated condition and started abusing them. When PW-6 objected to accused No.2 not to abuse and go home, accused No.2 became furious and took out a stone which was lying near the sewer and threatened to throw the same SC No. 478/2018 State V Sanjay Tiwari & others Page no.46 of 49 : 47 : upon PW6 on which she called accused No.2, her father by shouting. Accused No.3 who is father of accused No.2 alongwith accused No.1 came there and took back to the accused. On analysis of such evidence,it is clear that deposition of PW6 is categorical and consistent. PW -6 herself is a witness to such incident. Further it also shows that it raise alarm in the mind of PW6 and that is why she had to call by shouting the father of accused No.2 to intervene. Further, accused No.2 who was advancing such threat / abuses was in a position to execute the same also and towards such execution, he even took out a stone and as such, it was natural for PW6 to get alarmed. Accordingly, it is held that as far as offence u/s 506, part-I IPC, and not part-II IPC, is made out as far as accused No.2 is concerned. Further, even going through the cross examination of such witness, such witness denied suggestion that no such incident took place. Accordingly, accused No.2 is found guilty of committing offence u/s 506, Part-I, IPC.
But as far as extension of threat and intimidation by accused No.1,2 & 3 at 6:15 PM incident of 21st October is concerned ,and for that matter incident which is allegedly took place by which on roof accused No.1, 2 & 4 allegedly SC No. 478/2018 State V Sanjay Tiwari & others Page no.47 of 49 : 48 : intimidated and threatened and harassed Shilpa, it is reiterated that there is no direct evidence by any of the prosecution witness in this regard including by PW6 & 7. Further, although, it is deposed by PW7 that deceased Shilpa told him when she came back from roof that accused No.1,2 & 4 were threatening her , but as already noted above, such threats appears to be vague and insufficient in any case in order to amounts to offence u/s 506 IPC on the criteria as noted above including as there was no means except the alleged oral words to execute such threats. Further, in any case accused did not have the opportunity to cross examine the witness in whose present such alleged threats were actually extended. Further, as far as threat by accused No.4 at the Police Station is concerned, it is noted that accused No.4 is not even charged for offence u/s 506 IPC at all. As such, there is no occasion to give any findings about the same. Even otherwise going by the same reasoning apart from such alleged oral threat at Police Station, such accused No.4 did not make any attempt then or thereafter to execute the same. As such, no offence u/s 506 IPC is made out against accused No. 4 who even otherwise stated to be living and working separately at Gurgaon. SC No. 478/2018 State V Sanjay Tiwari & others Page no.48 of 49 : 49 : In nutshell, as such, accused No.2 Amar Nath Tiwari is convicted for offence u/s 506, Part-I IPC. But, accused No.1 & 3 are acquitted for the offence U/s 506 IPC giving them benefit of doubt.
38. Thus it is concluded :
(i) Accused No.1, 2 3 and 4 i.e. Mr. Sanjay Tiwari, Mr. Amar Nath, Mr. Shyam Lal Tiwari and Ms. Khushboo are acquitted of the charges of offence u/s 306 r/w 34 IPC.
(ii) Accused No.1, 2 and 3 i.e. Mr. Sanjay Tiwari, Mr. Amar Nath, and Mr. Shyam Lal Tiwari are acquitted of the charges of offence u/s 452 r/w 34 IPC, 341 r/w 34 IPC, 324 r/w 34 IPC, 427 r/w 34 IPC.
(iii) Accused No.1 & 3 i.e. Mr. Sanjay Tiwari, and Mr. Shyam Lal Tiwari are acquitted of charges of offence u/s 506, part-II r/w 34 IPC.
(iv) Accused No.2 , Mr Amar Nath is convicted for offence u/s 506, part-I IPC. NAVEEN Digitally signed by NAVEEN KUMAR KUMAR KASHYAP Date: KASHYAP 2021.09.01 13:13:33 +0300 Announced in the open (NAVEEN KUMAR KASHYAP) Court on 28/08/2021 ASJ-04(Central)/DELHI SC No. 478/2018 State V Sanjay Tiwari & others Page no.49 of 49