Delhi District Court
State vs . (1). Dilawar Singh on 31 March, 2016
FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 163/14 Unique Case ID No. 02404R0255402006 State Vs. (1). Dilawar Singh S/o Sh. Attar Singh R/o Village Khera Khurd, Delhi. (2) Dinesh @ Rajeev Kumar @ Happy S/o Sh. Vijay Kumar Wadhwa R/o B6/37, Sector17, Rohini, Delhi. FIR No. : 214/06 Police Station : Narela Under Sections : 306/34 IPC Date of committal to Sessions Court : 12.07.2006 Date on which judgment was reserved: 31.03.2016 Date on which Judgment pronounced : 31.03.2016 JUDGMENT
BRIEF FACTS OF THE CASE
1. The case of the prosecution as born out from the record is as under under:
(i) That on 26.03.2006 at about 2.40 pm, intimation was received in PS Narela regarding admission of one person State Vs Dilawar Singh etc. ("Acquitted") Page 1 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 namely Rajesh R/o H. No. 137, Naya Bans, Delhi in Saroj Hospital after consuming poisonous substance. Said intimation was recoded vide DD no. 8 (Ex.PW6/A) and was entrusted to HC Mahender Singh (PW6) for necessary action. On receipt of DD no. 8, SI Mohd. Yakub (since died) alongwith Ct. Rajesh Kumar (PW13) and HC Mahender Singh went to Saroj hospital, where they collected MLC of Radhey Shyam S/o Sh. Jai Narain who was declared unfit for statement. At about 7.30 pm, patient was declared dead by concerned doctor and accordingly, his dead body was shifted from Saroj hospital to Mortuary of BJRM hospital through Ct. Rajesh;
(ii) It is further the case of prosecution that on 27.03.2006, postmortem on the dead body of deceased Radhey Shyam was got conducted at BJRM Hospital. At that time, concerned doctor recovered one suicide note (Ex.PW2/A) from the pocket of the wearing shirt of deceased. Same was handed over to ASI Virender Singh (PW5) after being signed by the concerned doctor, alongwith postmortem report. Copy of said suicide note was also handed over to son namely Rahul (PW4) of deceased;
(iii) It is further the case of prosecution that Rahul (PW4) visited PS Narela and made statement to the effect that on State Vs Dilawar Singh etc. ("Acquitted") Page 2 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 26.03.2006 at about 1.45 pm, his father Radhey Shyam had consumed poison. When said fact came to his notice, he took Radhey Shyam alongwith his uncle Purshottam Sharma (PW12) to Saroj Hospital and got him admitted there. As per gist of said statement, two persons namely Dulara & Happy had visited the house of deceased on 26.03.2006 at about 12.30 pm and had exchanged hot words with deceased and thereafter, deceased had consumed some poisonous substance;
(iv) On the basis of aforesaid statement, SI Mohd. Yakub got the FIR in question registered and investigation was entrusted to him. During investigation, he prepared rough side plan and also recorded statements U/s 161 Cr.P.C. of relevant witnesses. Both the accused herein were also arrested by him and the viscera of deceased was got deposited in CFSL for opinion. Suicide Note alongwith other relevant documents were also got deposited in FSL for opinion of handwriting expert. After completion of investigation, charge sheet was prepared and same was filed before the Court through concerned SHO.
(v) After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
State Vs Dilawar Singh etc. ("Acquitted") Page 3 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 CHARGES FRAMED AGAINST THE ACCUSED PERSONS
2. After hearing arguments on the point of charge, Ld. Predecessor of this Court framed the charge for the offence punishable U/s 306/34 IPC against both the accused persons namely Dilawar Singh and Dinesh Rajeev Kumar @ Happy vide order dated 24.09.09, to which they pleaded not guilty and claimed trial.
3. In support of its case, prosecution has examined thirteen witnesses namely PW1 Dr. Rajesh Rana, PW2 Dr. Anil Shandil, PW3 Parul Sharma, PW4 Sh. Rahul Sharma, PW5 SI Virender Singh, PW6 ASI Mahender Singh, PW7 HC Shamsher Singh, PW8 ASI Jogender Singh, PW9 Inspector Jitender Singh, PW10 Sh. Pawan, PW11 Sh. Subodh Kumar, PW12 Sh. Purshottam Sharma and PW13 Ct. Rajesh during trial.
4. It is pertinent to note that testimony of PW3 Parul Sharma could not be completed as said witness did not enter into witness box after 28.03.2011. The prosecution failed to produce the said witness despite grant of numerous opportunities. Summons were repeatedly issued to said witness not only through concerned SHO but also through concerned DCP (OD) but same had been received back unserved with consistent reports that he was not traceable. Ultimately, Court closed the opportunity to produce the said witness vide order dated 20.04.2015. State Vs Dilawar Singh etc. ("Acquitted") Page 4 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016
5. It may also be mentioned here that both the accused persons made joint statement during trial on 05.11.2014 that they were not disputing the contents of FSL report dated 20.12.2006 and FSL report dt. 10.04.2007 and thus, both the said two FSL reports were given exhibit marks as Ex. PY and Ex.PW2/C respectively.
6. Thereafter, statements U/s 313 Cr.P.C. of both the accused persons namely Dilawar Singh and Dinesh Rajeev Kumar @ Happy were recorded during which all the incriminating evidence which came on record, were put to them. However, they denied the same. Both the accused persons claimed that they are innocent and have been falsely implicated in this case. Both the accused persons opted to lead evidence in their defence. They also examined two witnesses namely D2W1 Sh. Sanjeev Kumar Wadhwa and D2W2 Sh. Vikrant Wadhwa in their defence and closed their evidence on 05.01.2016.
7. I have heard Sh. Pankaj Bhatia, Ld. Additional PP on behalf of State and Ld. counsel Sh. Mukesh Kalia, Adv. on behalf of both the accused persons. I have also gone through the material available on record. I have also gone through the written synopsis filed on behalf of accused persons and the authorities cited at the bar.
8. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The said testimonies are detailed as under: State Vs Dilawar Singh etc. ("Acquitted") Page 5 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 PUBLIC WITNESSES
9. PW3 Parul Sharma: He is son of deceased Radhey Shyam who allegedly committed suicide, as per the case of prosecution. He deposed that both the accused were partners in their partnership business of garments which was being run through shop situated at Chandni Chowk. He used to remain in Surat wherefrom clothes were being purchased and his elder brother Rahul used to sit with his father at the shop situated at Chandni Chowk. On 26.03.2006, he received telephone call from accused persons that he should come to Delhi by bus and not by train. After sometime thereof, he received phone call from his father who was nervous at that time. His father asked him to come by train and not by bus as the accused persons wanted to kill him. When he was on the way, he came to know that his father had committed suicide. He also came to know that his father had left a Suicide Note in which names of both the accused persons were mentioned to be responsible for death of his father. He could not tell the exact reason why his father held accused responsible for his suicide as he was in Surat at the relevant time. He identified handwriting of his father i.e. deceased Radhey Shyam in Suicide Note (Ex.PW2/A) and also identified specimen handwriting of Radhey Shyam appearing in Ledger Book (Ex.PW3/A), Note Book (Ex.PW3/B) as also on the cheque (Ex.PW3/C).
As already noted above, the aforesaid witness did not enter State Vs Dilawar Singh etc. ("Acquitted") Page 6 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 into witness box after 28.03.2011 and his testimony could not be completed during trial.
10. PW4 Sh. Rahul Sharma: He is another son of deceased Radhey Shyam. He is also complainant in this case as FIR in question is shown to have been registered on the basis of his statement (Ex.PW4/G) made before SI Mohd. Yakub. He deposed that on 26.03.2006 at about 1.00 pm, he was present at his house and had noticed that his father Sh. Radhey Shyam had started vomiting. On enquiry, his father had told him that he had consumed poison and asked him to take him to the hospital. He alongwith his uncle Purshottam Sharma got his father admitted at Saroj Hospital. However, his father expired on the same day at about 7.00 pm during treatment. Thereafter, body of his father was shifted to government hospital for postmortem. At the time of postmortem, suicide note (Ex.PW2/A) was recovered from the pocket of shirt of his father. Same was seized by IO vide memo Ex.PW4/A in his presence.
He further deposed that before consuming poison by his father, both the accused had visited their residence and started talking to his father in very loud voice due to which his father had become very quite and scared. On enquiry, his father did not tell him anything but after sometime, his father started vomiting due to consumption of poison.
He also deposed that accused Dilawar and Dinesh @ Happy had entered into partnership with his father in his wholesale business of ladies suits at Chandni Chowk. All three of them were equally sharing State Vs Dilawar Singh etc. ("Acquitted") Page 7 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 their profits. The accused persons started avoiding to give money for purchasing the goods and started talking to his father in different tone, due to which his father became financially pressurized. On 26.03.2006, accused Dilawar had threatened his father by showing him revolver and had also called his brother Parul to come by bus as his father was threatened by accused that they would kill Parul.
He also deposed that he had identified dead body of his father vide his statement Ex.PW4/B. After cremation of his father, he had taken copy of suicide note to Police Station and had narrated the entire facts before concerned SHO. His statement Ex.PW4/C was recorded by police. He had handed over ledger book (Ex.PW3/A), Note Book (Ex.PW3/B) and cheque (Ex.PW3/C) signed by his father to police and same were seized vide memos Ex.PW4/D and Ex.PW4/D1. Police had prepared site plan Ex.PW4/E at his instance. On 26.03.2006, he also gave his written statement Ex.PW4/G to the police and had received dead body of his father vide receipt Ex.PW4/H. This witness has been cross examined at length on behalf of accused persons.
11. PW10 Sh. Pawan: He deposed that in the year 2006, he was working with Radhey Shyam in his cloth business at Chandni Chowk. He had been looking after the sale and purchase of clothes in the premises of Sh. Radhey Shyam. During the course of his employment with Radhey Shyam, accused Rajeev used to visit Surat for placing orders for supply of clothes. Radhey Shyam occasionally used to visit the shop. His sons State Vs Dilawar Singh etc. ("Acquitted") Page 8 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 namely Rahul and Parul used to come to the shop at that time. He further deposed that Radhey Shyam had consumed poison, due to which he had expired. He had gone to attend his cremation ceremony.
This witness was subjected to detailed cross examination by Ld. Additional PP as he was not supporting the case of prosecution. During said cross examination, he deposed that police had recorded his statement. The name of the firm of Radhey Shyam was M/s. Radha Kishan Trading Company. He had attended the cremation ceremony of Radhey Shyam. Radhey Shyam had left behind suicide note. In the said suicide note, deceased Radhey Shyam had named Happy and Dulara responsible for compelling him to commit the suicide.
During cross examination on behalf of accused, he deposed that Radhey Shyam had undergone heart surgery and he used to remain unwell, due to which he was not regularly coming to the shop. Rajeev and Parul had been looking after the accounts of the business of said firm.
12. PW12 Sh Purshottam Sharma: He is the brother of deceased Radhey Shyam. He deposed that on 26.03.2006, his nephew Rahul came to his house and informed that his elder brother Radhey Shyam had consumed poison. He alongwith Rahul reached to the house of his elder brother Radhey Shyam and found that his brother was in semi conscious condition. He was immediately taken to Saroj Hospital and after about 1½ hours, Radhey Shyam had expired in the hospital during treatment. The body of his brother was taken to BJRM Hospital, where State Vs Dilawar Singh etc. ("Acquitted") Page 9 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 body was preserved in the Mortuary of said hospital.
He further deposed that on 27.03.2006, after conducting postmortem of dead body, doctor of BJRM hospital had informed that suicide note was recovered during search of body of Radhey Shyam and said note was handed over to IO by the said doctor and statement of his nephew was recorded by IO. On the basis of statement made by his nephew Rahul and contents of suicide note, IO had got the case registered. After registration of FIR, IO had arrested accused Dilawar Singh and Dinesh @ Rajeev @ Happy.
He further deposed that he had identified accused in PS Narela, to be the persons who were partners of his deceased brother Radhey Shyam in garment business. He had also informed the IO that deceased had mentioned the names of both the accused persons in the suicide note as responsible for his death. This witness has been cross examined at length on behalf of accused persons.
POLICE WITNESSES
13. PW5 SI Virender Singh: He deposed that on 27.03.2006, on the instructions of Incharge of PP Metro Vihar, he alongwith SI Mohd. Yakub went to BJRM hospital Mortuary for getting the postmortem examination conducted on the dead body of one Radhey Shyam. He further deposed that after conducting postmortem, doctor had handed over one sealed box and one sample seal of hospital to him. The doctor State Vs Dilawar Singh etc. ("Acquitted") Page 10 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 had also handed over photocopy of suicide note Ex.PW5/B. He came back to PS and deposited viscera and sample seal with MHC(M) and handed over copy of suicide note to IO.
It may be mentioned here that this witness was again recalled for giving secondary evidence on behalf of IO SI Mohd. Yakub who had expired during pendency of trial. At that point of time, he identified handwriting and signatures of IO SI Mohd Yakub on rukka Ex.PW4/C, seizure memo Ex.PW4/A of suicide note, the documents Ex.PW6/B pertaining to inquest proceedings, disclosure statements Ex.PW5/B1 and Ex.PW5/B of both the accused, seizure memos Ex.PW4/D and Ex.PW4/D1 of ledger book, cheque book and note book, arrest memos Ex.PW5/B8 and Ex.PW5/B9 and personal search memos Ex.PW5/B10 and Ex.PW5/D11 of the accused persons as well as on receipt Ex.PW4/H regarding handing over dead body of deceased. He has been cross examined at length on behalf of accused persons.
14. PW6 ASI Mahender Singh: He deposed that on 26.03.2006, he was posted at PP Metro Vihar and was on emergency duty from 8 am to 8 pm. At about 2.40 pm, on receipt of DD no. 8 Ex.PW6/A, he alongwith Ct. Rajesh Kumar and SI Mohd. Yakub Incharge of PP Metro Vihar went to Saroj Hospital, where he had collected MLC of patient Radhey Shyam who was declared unfit for making statement. SI Mohd. Yakub had taken into possession one small bottle containing gastric lavage of the patient and one sample seal of hospital, vide seizure State Vs Dilawar Singh etc. ("Acquitted") Page 11 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 memo Ex.PW6/B. This witness has not been cross examined by accused persons despite grant of opportunity.
15. PW7 HC Shamsher Singh: This witness was working as Duty Officer in PS Narela on the intervening night of 27/28.03.2006. He deposed about the factum regarding registration of FIR in question by him on the basis of rukka produced by SI Mohd. Yakoob at about 10.15 pm on that day. He proved copy of said FIR as Ex.PW7/A and his endorsement as Ex.PW4/C made on the rukka. He has not been cross examined on behalf of accused persons despite grant of opportunity.
16. PW8 ASI Jogender Singh: This witness was working as MHC(M) in PS Narela during the relevant period. He deposed that on 26.03.2006, SI Mohd. Yakub Khan had deposited two sealed parcels alongwith sample seal of SH in Malkhana, vide entry at serial no. 2610 of Register no. 19. He proved copy of said entry as Ex.PW8/A. He further deposed that on 27.03.2006, ASI Virender Singh had deposited articles recovered during personal search of accused Dinesh and accused Dilawar Singh in Malkhana, vide entry at serial no. 2616 of Register no. 19. He proved copy of said entry as Ex.PW8/B. He further deposed that on 27.03.2006, ASI Virender Singh had deposited one sealed pullanda sealed with the seal of FMT BJRM Hospital, Delhi in malkhana, vide entry at serial no. 2627 of Register no.
19. He proved copy of said entry as Ex.PW8/C. He further deposed that on 17.08.2006, two sealed parcels State Vs Dilawar Singh etc. ("Acquitted") Page 12 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 and two sample seal sealed with the seal of SH and FMT Hospital, were sent to CFSL, Hyderabad through Ct. V. Narayan vide Road Certificate no. 199/21/06. He had made entry at point A against entry Ex.PW8/C. He also exhibited copy of RC No. 199/21/06 as Ex.PW8/D and also copy of acknowledgment of receipt of pullandas given by CFSL, Hyderabad as Ex.PW8/E. He further deposed that CFSL result was received from Hyderabad on 17.07.2007 and same was deposited in the Court on 20.04.2009.
During cross examination, he deposed that ASI Virender Singh had deposited the relevant exhibits vide entry numbers 2616, 2617, 2610 and 2253.
17. PW9 Inspector Jitender Singh: This witness also appeared to lead secondary evidence in place of IO SI Mohd Yakub who expired during pendency of trial. He also identified the signatures of SI Mohd Yakub on statement Ex.PW4/C of PW Rahul, on endorsement Ex.PW9/A made by IO, on site plan Ex.PW4/E, on seizure memo Ex.PW4/A of photocopy of suicide note, on seizure memo Ex.PW6/B of sealed parcel and sample seal, on disclosure statements Ex.PW5/B and Ex.PW5/B2 of accused persons, on seizure memo Ex.PW4/D and Ex.PW4/D1 of ledger book, cheque book and note book and on brief facts Ex.PW5/B3 etc and on arrest memos Ex.PW5/B8 and Ex.PW5/B9 and personal search memos Ex.PW5/B10 and Ex.PW5/B11 of accused persons.
State Vs Dilawar Singh etc. ("Acquitted") Page 13 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 In his cross examination, he admitted that he did not have personal knowledge of the case and he did not remain associated during investigation of this case at any point of time. He also admitted that the documents on which he had identified the signatures of SI Mohd. Yakub, were neither prepared in his presence nor same were counter signed by him as SHO.
18. PW13 Ct. Rajesh : This witness accompanied HC Mahender Singh on 26.03.2006 to Saroj Hospital on receipt of DD no. 8 PP Metro Vihar. He deposed that Radhey Shyam was declared not fit for statement in the hospital and therefore, they came back to PP Metro Vihar. In the evening, intimation was received regarding death of Radhey Shyam. Accordingly, he accompanied SI Mohd. Yakub Khan to Saroj Hospital, whereafter he took dead body of deceased Radhey Shyam to Mortuary of BJRM hospital. On 27.03.2006, ASI Virender Singh had visited Mortuary of BJRM hospital and got conducted postmortem on dead body of deceased during which one suicide note was recovered by concerned doctor who handed over copy of said suicide note to ASI Virender Singh. Doctor also handed over another copy thereof to Rahul who was son of deceased. The copy of said suicide note which was produced by Rahul before IO, was seized vide memo Ex.PW4/A. Concerned doctor had also handed over sealed box containing viscera besides sample seal to IO, who seized the same vide memo Ex.PW5/A. He further deposed that both the accused were arrested by IO from the State Vs Dilawar Singh etc. ("Acquitted") Page 14 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 house of deceased Radhey Shyam, vide memos Ex.PW5/B8 and Ex.PW5/B9 and the accused had made disclosure statements Ex.PW5/B1 and Ex.PW5/B2. He has been cross examined at length on behalf of accused persons.
FORMAL WITNESS:
19. PW11 Sh. Subodh Kumar Tiwari: This witness was working as Branch Manager in HDFC Bank, Sector9, Rohini Delhi. He claimed to have verified the signature of Radhey Shyam on cheque no. 252340 dated 29.08.2005, after verifying the same from bank record. His verification appears at point B on the cheque Ex.PW3/C. In his cross examination, he could not tell as to when the relevant account was opened and through which bank official. He admitted that signature at pointA on cheque Ex.PW3/C was not put up by Radhey Shyam in his presence and said cheque was never presented before the bank. He admitted not to have mentioned on the said cheque that he had verified the signature of Radhey Shyam only after checking the bank account. He also did not state so in his statement U/s 161 Cr.P.C. He did not hand over any specimen signature card or other cheques issued by Radhey Shyam during his life time, to IO during investigation. DEFENCE WITNESSES:
20. D2W1 Sh. Sanjeev Kumar Wadhwa : This witness is the younger brother of accused Dinesh @ Rajiv. He deposed that Radhey State Vs Dilawar Singh etc. ("Acquitted") Page 15 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 Shyam had requested accused Dinesh @ Rajiv to carry out joint business of clothes and accordingly, partnership business was started by them at Chandni Chowk. Subsequent thereto, they also opened another shop at Chandni Chowk. Since accused Dinesh @ Rajiv was in need of money, he had paid a sum of Rs. 6,00,000/ in cash to him. Thereafter, accused Dinesh @ Rajiv also opened office at Surat and Radhey Shyam sent his son Parul to Surat. Accused Dinesh @ Rajiv had to receive some payment from Radhey Shyam and on his demand, Radhey Shyam had told accused Dinesh @ Rajiv that they shall be going to Surat for payment on 26.03.2006 and accordingly, rail tickets were got booked. On 26.03.2006, he received call from his nephew Vikrant Wadhwa that Radhey Shyam had been admitted in Saroj Hospital and had expired. Accordingly, he went to Saroj hospital, where accused Dinesh @ Rajiv had made entire payment of medical bills amounting between Rs. 7000 - 8000/ of said hospital. They had also attended the cremation proceedings of Radhey Shyam.
He further deposed that accused Dinesh @ Rajiv was never known by 'Happy' since his birth. On 27.03.2006, when accused Dinesh was present in the house of deceased Radhey Shyam for offering condolence, he was arrested by the police. Entire stock available in both the shops were taken by family members of deceased and they did not return back the stock till date.
In his cross examination, he deposed that he was running State Vs Dilawar Singh etc. ("Acquitted") Page 16 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 shop of hardware in Gurgaon, where he was living for the last 12 years or so. In the year 2006 also, he was residing at Gurgoan. He could not produce any documentary proof to show that he had given cash amount of Rs. 6,00,000/ to accused Dinesh at the time of opening of second shop. He did not show the said amount in his account or in income tax record. He was not present in Delhi as on 26.03.2006 and he was told about the conversation by his nephew Vikrant.
21. D2W2 Sh. Vikrant Wadhwa: This witness is the son of accused Dinesh @ Rajiv. He deposed on identical lines as deposed by D2W1 whose testimony has already been discussed herein above. He also produced railway tickets showing booking of four persons in Paschim Express from Delhi to Surat for 26.03.2006. The said ticket was exhibited as Ex.D2W2/D1.
In his cross examination, he could not produce any documentary proof to show that his uncle Sanjeev Kumar (D2W1) had given cash amount of Rs. 6,00,000/ to accused Dinesh @ Rajiv at the time of opening of second shop. He expressed ignorance of the fact if accused Dinesh @ Rajiv was maintaining any account showing that he was running his office at Surat or he had to receive any amount from Radhey Shyam.
ARGUMENTS ADVANCED AND CASE LAW CITED
22. While opening the arguments, Ld. Additional PP vehemently relied upon the testimonies of public witnesses namely PW4 Rahul State Vs Dilawar Singh etc. ("Acquitted") Page 17 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 Sharma (son of deceased) and PW12 Purshottam Sharma (brother of deceased), in support of his contention that both the said witnesses have supported the case of prosecution on material points. He also relied upon suicide note (Ex.PW2/A) left by deceased, in order to bring home his point that deceased has held both the accused as responsible for committing suicide. He fairly conceded that since testimony of PW3 Parul could not be completed during trial, same cannot be considered in the eyes of law. However, he vehemently argued that prosecution has been successful in bringing home the guilt of both the accused in respect of offence punishable U/s 306 IPC as both the accused had forced deceased Radhey Shyam to commit suicide, in the light of fact that they had been threatening him to kill his son Parul and had also not been paying the amount due from them. Ld. Additional PP also relied upon FSL result in support of his submission that handwriting appearing in suicide note (Ex.PW2/A) is opined to be in the handwriting of deceased Radhey Shyam after being compared with his admitted specimen handwriting appearing in ledger book Ex.PW3/A, note book Ex.PW3/B and cheque Ex.PW3/C by Handwriting Expert. On the basis of ocular evidence and the documentary evidence as discussed above, Ld. Additional PP submitted that accused persons are liable to be convicted in this case.
23. On the other hand, Ld defence counsel vehemently argued that the prosecution has miserably failed to prove its case against any of State Vs Dilawar Singh etc. ("Acquitted") Page 18 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 the accused persons beyond pales of reasonable doubt. Therefore, accused persons are entitled to be acquitted in this case. His submissions were three fold. Firstly, he argued that main essential ingredient for proving the offence punishable U/s 306 IPC that the death was suicidal in nature, has not been proved in this case. Secondly, he argued that there are material contradictions appearing in the testimonies of relevant prosecution witnesses. Thirdly, he argued that offence punishable U/s 306 IPC is not proved even if the allegations made in the charge sheet are considered to be true on their face value. He therefore, urged that the accused persons may be acquitted in this case.
24. Before proceeding further, it may be noted that the testimony of PW3 Parul remain incomplete during trial and since same could not be purified by an ordeal of cross examination, same cannot be read in evidence. While saying so, I am also fortified by the judgment reported at AIR 1989 SC 1141.
25. Now, I shall discuss the submissions made on behalf of both the sides in the light of evidence, oral as well as documentary, available on record. The relevant submissions made on behalf of both the sides can be discussed in separate heads as under: WHETHER DEATH OF RADHEY SHYAM WAS SUICIDAL IN NATURE OR NOT
26. A bare perusal of the provision contained in Section 306 IPC would leave no scope of doubt that the death of a person has to be suicidal State Vs Dilawar Singh etc. ("Acquitted") Page 19 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 in nature in order to attract the said offence. In other words, commission of suicide is sinequanon for invoking the offence of abetment to commit suicide, which is made punishable U/s 306 IPC.
27. In the present case, prosecution has examined PW2 Dr. Anil Shandil during trial. He is the Autopsy Surgeon who had conducted postmortem examination on dead body of deceased Radhey Shyam. He categorically deposed during his chief examination itself that opinion with regard to cause of death of Radhey Shyam was deferred by him till receipt of viscera chemical analysis result. After going through viscera chemical analysis result (Ex.PW2/C), he had given subsequent opinion (Ex.PW2/D) on back side of autopsy report (Ex.PW2/B) on 29.05.2009 to the effect that no definite opinion regarding cause of death could be given.
28. At this juncture, it would also be relevant to refer to the viscera chemical analysis report dated 10.04.2007 (Ex.PW2/C). Dr. Mohd Afzal SSO, (Toxicologist) of CFSL, Hyderabad has opined therein that no common poison could be detected in the contents of the exhibits i.e. viscera sent to laboratory for its examination.
29. In view of the testimony of Autopsy Surgeon (PW2) and the relevant documents i.e. viscera result (Ex.PW2/C) and subsequent opinion (Ex.PW2/D), there is no iota of doubt that prosecution has miserably failed to establish on record that death of Radhey Shyam was suicidal in nature.
State Vs Dilawar Singh etc. ("Acquitted") Page 20 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016
30. It is also pertinent to refer to the relevant portions of the testimonies of PW4 Rahul Sharma and PW12 Sh. Purshottam Sharma. Both the said witnesses have admitted during their respective testimonies that deceased Radhey Shyam had history of heart ailment and deceased had previously undergone heart surgery about 67 years prior to 26.03.2006. Not only this, both of them have also testified that Radhey Shyam had been undergoing treatment for heart ailment on regular basis and had been taking the medicines prescribed by concerned doctor in respect of treatment being received from Maharaja Agarsain Hospital.
31. At this juncture, relevant portion of cross examination of PW4 is also relevant on the point in issue. PW4 has admitted in his cross examination that he did not enquire from his father as to which poison was consumed by him, despite the fact that his father was in a position to speak when he was talking to him. He neither made any enquiry about the container or wrapper of the poison consumed by him nor residue of any poisonous substance was found present in the house. He also deposed that normally no poison was being kept at their residence. Likewise, PW12 also admitted in his cross examination that he did not make any effort to carry out search either of wearing clothes of Radhey Shyam or in the house of Radhey Shyam to find out as to what substance had been consumed by Radhey Shyam, even after being informed by his nephew Rahul that Radhey Shyam had consumed poison. The said conduct on the part of PW12 is quite unnatural and does not appeal to the reasoning State Vs Dilawar Singh etc. ("Acquitted") Page 21 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 while applying the test of reasonable and prudent person.
32. Be that as it may, the aforesaid fact that Radhey Shyam has had the history of undergoing byepass surgery coupled with the fact that no poisonous substance whatsoever is shown to have been recovered either from the possession of deceased or from or near the place of occurrence i.e. house of deceased, it cannot be ruled out that Radhey Shyam may have died as natural death.
RECOVERY OF SUICIDE NOTE
33. The prosecution has heavily relied upon one suicide note (Ex.PW2/A) claimed to have been recovered from the wearing shirt of deceased Radhey Shyam by Autopsy Surgeon on 27.03.2006. As per submission made by Ld. Additional PP, said suicide note is very material piece of evidence which in itself is sufficient to prove the offence against the accused persons in the present case.
34. On the other hand, Ld. defence counsel vehemently assailed the relevancy as well as the recovery of said document by submitting that recovery of said document is totally doubtful and it does not indict any of the accused persons herein.
35. In order to appreciate the rival submissions made on behalf of both the sides, it may be noted that PW2 Dr. Anil Shandil (Autopsy Surgeon) testified that suicide note recovered at the time of conducting autopsy, was initialed by IO and by him. Said suicide note in original is also identified by PW2 during trial. However, PW5 SI Virender Singh to State Vs Dilawar Singh etc. ("Acquitted") Page 22 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 whom said suicide note was handed over by autopsy surgeon, deposed during trial that autopsy surgeon had handed over photocopy of suicide note recovered from the shirt of deceased, to him and he had handed over copy of said suicide note to IO. The perusal of document (Ex.PW2/A) would reveal that same is signed by PW2 and PW5 but not by IO SI Mohd Yakub, whereas PW2 has deposed that said document was also initialed by IO. It is pertinent to note that in case autopsy surgeon had recovered original of document Ex.PW2/A, then how it was converted into photocopy when same was handed over to PW5. PW5 nowhere claimed in his testimony that original suicide note was handed over to him by the autopsy surgeon or by any other doctor. What he has deposed is that concerned doctor had handed over photocopy of suicide note recovered from the shirt of deceased, to him and he, in turn, handed over the same to IO, after returning back to PS. In case the testimony of PW5 is to be believed that it was photocopy which was handed over to him. It is not explained then as to how PW2 identified document (Ex.PW2/A) which is original and not a photocopy, during trial in case he had handed over merely copy thereof to PW5.
36. Apart from above, PW5 has admitted during cross examination that whenever dead body is handed over to any person or to any agency by private hospital or government hospital, an inventory is prepared regarding personal belongings or wearing apparels, jewellery ornaments, etc. of deceased but in the present case, no such inventory of State Vs Dilawar Singh etc. ("Acquitted") Page 23 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 deceased Radhey Shyam was prepared in Saroj Hospital. Same creates reasonable doubt in the case of prosecution regarding recovery of suicide note only at the time of conducting postmortem examination on the dead body of deceased Radhey Shyam in the Mortuary of BJRM hospital for the first time in the morning hours of next day i.e. 27.03.2006.
37. There is one more reason which creates reasonable doubt about factum of recovery of document (Ex.PW2/A) in the manner as claimed by prosecution witnesses. PW5 admitted during cross examination that he had reached BJRM hospital on 27.03.2006 at about 10.00 am. He deposed that he had met the concerned doctor just after reaching to said hospital. The so called suicide note was handed over to him at 11.00 am and his statement U/s 161 Cr.P.C. was recorded in the evening hours on 27.03.2006 at Police Post. He claimed to have told IO in his statement U/s 161 Cr.P.C. (Ex.PW5/DA) that it was a photocopy of suicide note but when confronted with the said statement, the word that 'photocopy' was found missing therein. It is also important to note that PW5 admitted during cross examination not to have informed about recovery of suicide note, either to Incharge of Police Post on telephone. He also did not lodge any DD entry either at PP or even in the PS concerned regarding recovery of said suicide note. He simply claimed to have handed over suicide note to IO SI Mohd. Yakub at Police Post at 3.30 pm. So much so, even no recovery memo whatsoever is shown to have been prepared with regard to original suicide note even at the time State Vs Dilawar Singh etc. ("Acquitted") Page 24 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 when same was handed over by PW5 to IO SI Mohd. Yakub. At this juncture, it may be noted that seizure memo (Ex.PW4/A) as available on record, speaks of seizure of photocopy of suicide note and said recovery memo is probably in respect of seizure of photocopy of suicide note produced by PW4 Rahul before IO SI Mohd. Yakub in the presence of PW13 Ct. Rajesh on 27.03.2006 and not of the original so called suicide note (Ex.PW2/A).
38. The aforesaid fact coupled with the relevant portion of cross examination of PW12 Purshottam Sharma, whereby he has deposed that none of the police officials was sitting in the vehicle in which dead body of Radhey Shyam was removed from Saroj Hospital to the Mortuary of BJRM hospital and it were only family members including himself and PW4 Rahul who were present alongwith the dead body in the said vehicle, affords every opportunity to plant any document inside the dead body of deceased during the intervening period of travelling between Saroj Hospital to the Mortuary of BJRM hospital.
39. Now, I shall discuss the relevancy of so called suicide note heavily relied on behalf of prosecution. The entire prosecution story is revolving around the recovery of said suicide note from wearing shirt of deceased Radhey Shyam at the time when autopsy was being carried out in the Mortuary of BJRM Hospital. It is claimed by prosecution that deceased Radhey Shyam left behind said suicide note while consuming poisonous substance on 26.03.2006. However, perusal of said document State Vs Dilawar Singh etc. ("Acquitted") Page 25 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 (Ex.PW2/A) would reveal that no particular date, month or year has been mentioned therein, so as to show as to when it was inscribed. The said document mentions the names of two persons as 'Dulara' and 'Happy' to be the persons who had been creating pressure upon Radhey Shyam. However, the parentage of said two persons are not mentioned therein. Although, the prosecution alleged in the chargesheet that accused Dilawar Singh is known as Dulara and accused Dinesh Rajiv Kumar is also known as Happy, but the prosecution has miserably failed to lead any cogent evidence to prove this fact. There is no iota of evidence available on record on the basis of which it can be established or even inferred that accused Dilawar Singh and Dinesh Rajiv Kumar were also known as Dulara and Happy respectively. Despite the fact that both these accused were running partnership business with deceased Radhey Shyam and thus, they were well known to him, deceased did not mention their actual names in the so called suicide note. Same is beyond the comprehension of the Court. The defence witnesses namely Sh. Sanjeev Kumar Wadhwa and D2W2 Sh. Vikrant Wadhwa have categorically deposed that accused Dinesh Rajiv Kumar was never known as Happy since his birth. Both the accused persons in their respective statements U/s 313 Cr.P.C. have categorically denied the claim of prosecution that they were ever known or called by the names of Dulara and Happy respectively. That being so, it cannot be said that deceased was referring to these two accused persons in so called suicide note Ex.PW2/A. In other words, the prosecution has State Vs Dilawar Singh etc. ("Acquitted") Page 26 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 failed to connect the identity of persons referred to in document Ex.PW2/A with either of the accused herein.
40. Now, I proceed further. PW4 although testified during trial that accused Dilawar was carrying revolver in his hand when he alongwith coaccused had visited his house on 26.03.2006 and had extended threat to his father i.e. deceased Radhey Shyam that they would kill his younger brother Parul, but no such revolver has been recovered in this case despite the fact that both the accused are shown to have been arrested from none other than the house of deceased Radhey Shyam on 27.03.2006 itself.
41. Not only this, it is quite unnnatural that PW4 (who is son of deceased Radhey Shyam) made no effort to enquire from his father as to which poison he had consumed while he was talking to his father. It is also not understandable that PW4 made no effort to enquire from his father about the container or wrapper which may be containing ramnants of the poison consumed by his father. This fact coupled with the fact that there is no recovery of any such container or wrapper having residue of any poisonous substance, assumes great importance.
42. Moreover, there are several contradictions appearing in the testimonies of relevant prosecution witnesses. Firstly, PW4 deposed that he was informed by doctor in Saroj Hospital that there was no chance of survival of his father and accordingly, he went to ICU, but his father was not in a position to speak. In latter part of his deposition, he deposed that State Vs Dilawar Singh etc. ("Acquitted") Page 27 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 entry inside ICU was restricted and thus, he was not allowed to go inside it. Secondly, PW12 deposed in his cross examination that police had recorded his statement in the hospital on 26.03.2006 itself. The record, however, shows otherwise. FIR in question in this case was registered on 27.03.2006 and the statement U/s 161 Cr.P.C. of PW12 is also shown to have been recorded on 27.03.2006. Thirdly, PW4 deposed that after cremation of dead body of his father, he had taken copy of suicide note to the police station and had narrated the entire facts to concerned SHO, who had called accused Happy to the Police Station, where said accused admitted handwriting of Radhey Shyam on said suicide note. Same is nowhere the case of prosecution as propounded in the chargesheet. Fourthly, PW5 SI Virender deposed that dead body of Radhey Shyam remained under the custody of SI Mohd. Yakub and Ct. Rajesh from the time it was shifted from Saroj Hospital till the time it reached in BJRM Hospital. As contrary thereto, PW12 Purshottam Sharma deposed during his cross examination that no police official was sitting in the vehicle in which dead body of Radhey Shyam was removed from Saroj Hospital to BJRM Hospital.
43. Furthermore, the entire case of prosecution was based upon the testimonies of four public witnesses i.e. PW3 Parul Sharma, PW4 Rahul Sharma, PW10 Pawan (employee of deceased Radhey Shyam) and PW12 Purshottam Sharma. As already observed above, PW3 did not enter into witness box to face the cross examination. Thus, his testimony State Vs Dilawar Singh etc. ("Acquitted") Page 28 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 cannot be relied by the prosecution. PW10 Pawan has not supported the case of prosecution during trial. Rather, he has demolished the case of prosecution by deposing that Radhey Shyam occasionally used to visit the shop and his sons namely Rahul and Parul used to come to the shop. He also deposed that Radhey Shyam had undergone heart surgery and that is why, he used to remain unwell and was not regular visitor to the shop. The other two public witnesses are none else but son and real brother of deceased Radhey Shyam. It has come on record in the testimonies of said two witnesses that deceased was running partnership business of garments with both these accused in Chandni Chowk. Accused Dilawar Singh has stated in his statement U/s 313 Cr.P.C. that he had advanced loan of Rs. 3,50,000/ to deceased Radhey Shyam, but said loan was never repaid by family members of deceased despite his repeated demands. Both the defence witnesses have also testified that entire stock lying in the shops of partnership business, was misappropriated by family member of deceased after arrest of accused persons in this case. It has been admitted by PW4 during cross examination that no recovery proceeding was instituted either by him or by any other family member for recovery of outstanding amount from the accused persons despite his claim that accused persons had to pay considerable amount to his father concerning partnership business being run by them. The fact that PW4 also could not disclose as to when and who had handed over possession of tenanted shops to landlord after death of his father, further lends credence to the State Vs Dilawar Singh etc. ("Acquitted") Page 29 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 aforesaid defence raised by the accused persons. Although, PW4 claimed that goods lying in the tenanted shops were removed by accused persons and he had lodged police complaint in that regard but no such police complaint saw the light of the day till date. PW4 gave evasive reply to the specific question put by defence in his cross examination that deceased was facing prosecution in cases instituted U/s 138 N.I. Act as he had borrowed money from several persons and deceased was having monetary transactions with number of persons during his life time. In this backdrop, it cannot be ruled out that PW4 and PW12 made depositions during trial as interested witnesses in order to avoid liability to repay the amount due towards them or out of illmotive to falsely implicate the accused persons in the present case.
44. This brings me down to the last bone of contention raised on behalf of accused persons. Ld. defence counsel vehemently argued that even if the entire prosecution story as mentioned in the chargesheet to the effect that there was money dispute in the partnership business being run by deceased, alongwith accused persons or accused giving threat to deceased is presumed to be correct for the sake of arguments, even then the said alleged acts on the part of accused, would not fall within the ambit of term 'abetment to commit suicide' so as to hold them guilty for the offence punishable U/s 306 IPC. In support of said contention, he also placed reliance upon the following judgments: i. Roop Kishore Madan Vs. State, 2001(1) JCC (Delhi) 75; State Vs Dilawar Singh etc. ("Acquitted") Page 30 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 ii. Kulwant Singh Vs. State, 2001(1) JCC (Delhi) 80; iii. Hardev Singh & Anr. Vs. The State of Punjab, AIR 1975 SC 175;
iv. Hira Lal Jain Vs. State, 87 (2000) DLT 265;
v. Sandeep Sharma Vs. State, 87 (2000) DLT 268;
vi. Gangula Mohan Reddy Vs. State of Andhra Pradesh, 2010 (1) JCC 493; and vii. M. Mohan Vs. The State represented by The Deputy Superintendent of Police, 2011(1) ACR 965 (SC);
45. Ld. Additional PP although did not dispute the ratio of law laid down / discussed in the aforesaid authorities, but he submitted that said judgments are not applicable to the facts of the present case.
46. The ratio of law discussed and elaborated by our own High Court as well as by Hon'ble Apex Court in the above mentioned judgments is that in order to constitute abetment, the abettor must be shown to have "intentionally" aided to the commission of the crime and mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirement of Section 107 IPC.
47. In the present case, the reading of so called suicide note (Ex.PW2/A) does not even remotely suggest that the accused persons had incited the deceased to commit suicide. In other words, there is nothing on record to show that the ingredients of the offence of abetment are State Vs Dilawar Singh etc. ("Acquitted") Page 31 of 32 FIR No. 214/06; U/s 306/34 IPC ; PS Narela D.O.D. 31.03.2016 satisfied. Thus, the offence U/s 306 IPC cannot be said to have been established by the prosecution against them beyond shadow of doubt. Consequently, I hereby acquit both the accused persons namely Dilawar Singh and Dinesh Rajiv Kumar of the offence charged against them. File be consigned to Record Room after compliance of Section 437A Cr.P.C.
Announced in open Court today
On 31.03.2016 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State Vs Dilawar Singh etc. ("Acquitted") Page 32 of 32