Delhi District Court
State vs Raju Jain on 9 August, 2018
IN THE COURT OF O. P. SAINI: ADDL. SESSIONS JUDGE/SPL.
JUDGE (CBI04), PATIALA HOUSE COURT, NEW DELHI
Old SC No. 1091/2 & 17/18
New SC No. 01/2018
State Vs Raju Jain
FIR No. 192/2010
U/s: 328/379/411 IPC
PS: Mandir Marg
1. Date of Institution : 29.03.2011
2. Date of Commencement
of Final Arguments : 27.07.2018
3. Date of Conclusion of
Final Arguments : 27.07.2018
4. Date of Reserving Order : 27.07.2018
5. Date of Pronouncement : 09.08.2018
6. Whether Acquitted or
Convicted? : Convicted u/s 411 IPC
Present: Sh. Pradeep Kumar, Addl. PP for the State.
Accused in JC with Sh. Vaibhav Mishra, Advocate.
JUDGMENT
Brief Facts of the Case Brief facts of the case are that on 31.10.2010, information was received vide DD No. 5A in Police Station Mandir ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 1 of 37 Marg that two persons, namely, Sh. Meva Lal and Sh. Abhimanyu Sharma @ Manu Sharma were admitted in Lady Harding Medical College and Hospital in a case of administration of unknown poison. Investigating Officer ASI Suraj Bhan reached the spot and found both the above said persons admitted in the hospital. However, both were unfit for statement. No eyewitness was available in the hospital. Accordingly, as per the contents of the MLC, the instant case was got registered under Section 328 IPC.
During investigation, the statements of Sh. Meva Lal and Sh. Abhimanyu Sharma were recorded in which they disclosed that an unknown person had befriended them in Lady Harding Medical College and Hospital and successively offered them tea, laced with some intoxicating substance, on consumption of which they became unconscious. On regaining consciousness, Sh. Meva Lal found his mobile phone and Rs.1000/ stolen. Similarly, Sh. Abhimanyu Sharma also found his mobile phone and Rs.4000/ stolen. Accused Raju Jain was identified by them through CCTV footage as the person who had befriended them at different times on that day.
On 02.02.2010, information was received in the Police Station that accused Raju Jain was arrested by Special Staff, New Delhi and had disclosed about his involvement in the instant case. Accordingly, he was arrested in this case also and a Test Identification Parade (TIP) was arranged for his identification but ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 2 of 37 he refused to join the same. The mobile phone of Sh. Meva Lal was also recovered from the possession of the accused and its TIP was also got conducted, in which he had correctly identified the mobile phone. During the course of investigation, statements of witnesses were recorded and on completion of the investigation, the instant charge sheet was filed under Section 328 read with Sections 379/411 IPC.
Committal of the Case and Framing of Charge
2. On completion of the committal proceedings, the case was committed to the Sessions Court on 06.09.2011.
3. After hearing arguments on charge, my learned Predecessor was pleased to frame charge under Section 379 IPC alternatively under Section 411 IPC and also under Section 328 IPC. When the accused was arrested, three ATM Cards, some Gate Passes of different hospitals and three mobile phones were also recovered from him, the possession of which he could not account for and accordingly, charge under Section 103 Delhi Police Act was also framed. The accused pleaded not guilty to the charge and claimed trial.
Prosecution Evidence
4. In support of its case, the prosecution has examined eighteen witnesses in all.
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5. On 31.10.2010, PW1 HC Gyan Singh was posted as Duty Officer in Police Station Mandir Marg. On receipt of information regarding admission of Sh. Meva Lal and Sh. Abhimanyu Sharma in the hospital, he had recorded DD Entry 5A, Ex PW 1/B. On receipt of Rukka, Ex PW 17/A, from IO ASI Suraj Bhan, he had also recorded the FIR, Ex PW 1/A.
6. PW2 Ct. Naveen Kumar deposed that on 01.12.2010, he was posted in Special Staff, New Delhi and he alongwith HC Vijay Singh, HC Pramod, Ct. Arvind Kumar and Ct. Shishpal was on patrolling duty and were present near Gurudwara Banglasahib. Secret information was received by HC Vijay Singh that one person was going to sell fourfive mobile phones, which may be stolen. On the pointing out of secret informer, accused Raju Jain was apprehended and his cursory search was carried out during which four mobile phones, three ATM Cards, one Driving Licence, some pink coloured tablets kept in a Shikhar Gutkha pouch and some hospital passes were recovered from him. These articles were seized through three different seizure memos, Ex PW 2/A to 2/C. Accused Raju Jain was arrested and his arrest memo was prepared vide memo, Ex PW 2/D, and his personal search was carried out vide memo, Ex PW 2/E. He identified the recovered articles, Ex P1 to P10. He also identified the accused in the Court.
7. PW 3 is Sh. Meva Lal. He is one of the victims, who was administered intoxicating substance in the tea offered to him ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 4 of 37 by the accused. He deposed that in the intervening night of 30/31.10.2010, his wife was admitted in Lady Harding Medical College and Hospital for delivery. After delivery, he took food brought by his friend Santosh in the hospital. The relevant part of his testimony as to how he was administered intoxicating substance by the accused reads as under:
".......I was sitting under a tree in the hospital. Accused present in the court today met me there (The witness has correctly identified the accused). The accused talked to me for a longer period. Accused asked me that I should offer sweet to him for coming of a new baby to my wife. I told the accused that I will offer sweet to him in the morning. Accused asked me for cup of tea and thereafter, accused brought two cups of tea and accused offered one cup of tea to me and other cup of tea kept for himself. After taking that tea (consuming the tea) I became unconscious and when I got my consciousness, I found myself admitted in the same hospital. I was carrying a mobile phone Chinees Hi Fi 750 and some rupees about Rs.1000/. My said mobile phone and Rs.1000/ were missing from my pocket. I doubted that my mobile phone and Rs.1000/ must have been stolen by the accused, present in the Court today. Later on, I came to know from the police that my mobile Chinees Hi Fi 750 has been recovered from the accused, present in the court today........."
He has also identified his mobile phone Hi Fi 750, Ex ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 5 of 37 P1, which was recovered by the police from the possession of the accused.
8. PW 4 is HC Pramod. He was also on patrolling duty on 01.12.2010. He has deposed on the same lines as deposed to by PW 2 Ct. Naveen regarding arrest of accused Raju Jain and recovery effected from him. He also identified the case property as well as the accused.
9. PW 5 is Sh. Ashutosh Kumar, Technical Manager, Alkosta Security System India. His company had installed CCTV Cameras in Lady Harding Medical College. On 01.11.2010, when he was present in his office at Lady Harding Medical College, police officials alongwith two persons came and requested him to show them the video footage of that night. On seeing the video footage, the said two persons identified a person in the footage. He also gave a soft copy of the CCTV footage to the police, Ex PW 5/1 and the same was seized by the police vide seizure memo, Ex PW 5/A.
10. PW6 is Sh. Santosh Bhatnagar, who is friend of Sh. Meva Lal. He was also present in Lady Harding Medical College on 30.10.2010, when wife of Sh. Meva Lal was admitted for delivery. At about 07:30 PM, he had brought food for Sh. Meva Lal. During his presence in the hospital at about 08:30 PM, he had seen accused Raju Jain in the company of Sh. Meva Lal.
11. PW 7 is Sh. R. L. Meena, learned Metropolitan Magistrate, NorthEast District, Karkardooma Court. He deposed ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 6 of 37 that on 13.12.2010, he was posted as Metropolitan Magistrate at Patiala House Court. On that day, an application for TIP of one mobile phone was assigned to him and he conducted the TIP. Complainant Sh. Meva Lal had correctly identified his mobile phone Hi Fi 750 during TIP proceedings. The application for TIP is Ex PW 7/A, order for TIP is Ex PW 7/B, TIP proceedings are Ex PW 7/C and the application for a copy of TIP proceedings filed by the IO is Ex PW 7/D.
12. PW 8 ASI Suresh Babbar formally arrested the accused in this case vide arrest memo, Ex PW 8/A on 02.12.2010. He also conducted his personal search vide memo, Ex PW 8/B. He also moved an application for conducting TIP of the case property, Ex PW 8/C.
13. PW 9 is Dr. Sachin Santoshrao Jadhao of Lady Harding Medical College. He deposed that Dr. Shashank, who had prepared the MLCs of Sh. Manu Sharma and Sh. Meva Lal had since left the hospital. He further deposed that MLC of Sh. Manu Sharma bears signature of Dr. Shashank and is Ex PW 9/A and the patient was admitted in the hospital with history of unknown poisoning and was not oriented but conscious. He also deposed that MLC of Sh. Meva Lal also bears signature of Dr. Shashank and is Ex. PW 9/B. He deposed that this patient was also admitted with history of unknown poisoning and this patient was also not oriented but conscious.
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14. PW 10 is ASI Mahaveer Singh. On 01.12.2010, he was working as Duty Officer, Police Station Parliament Street. On that day, HC Pramod of Special Staff had brought accused Raju Jain to the police station along with case property. Accused Raju Jain was put in the lockup and the case property was deposited in the Malkhana. In this regard, he recorded DD Entry No. 51B, Ex PW 10/A.
15. PW 11 is Sh. Abhimanyu Sharma. He had also admitted his wife in Lady Harding Medical College on 30.10.2010 for delivery. At about 07:00 PM, he went out of the hospital to take tea and after taking tea he came to the hospital and sat in the ground of the hospital. He has narrated in detail as to how the accused befriended him and offered tea to him, on taking of which he became unconscious and lost his possessions. The relevant part of his testimony reads as under:
"........Accused Raju Jain present in the Court today met me in the hospital building. Witness has correctly identified the accused Raju Jain. Accused Raju Jain made friendship with me. Accused had accompanied with me outside building of the hospital for dinner. I alongwith accused ate dinner together. After taking dinner, I alongwith the accused came back to the hospital. I felt sleepy after dinner. Accused offered me one bed sheet. I talked with the accused in the ground. At around 11/11:30 PM, accused brought tea and he offered me tea. After consuming tea, I slept. When I got ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 8 of 37 awoke on the next day, I was semi unconscious. I found myself admitted in the Lady Harding Hospital. I got my full conscious on 01.11.2010. I was carrying a mobile phone NOKIA having number 9910323058 and Rs. 4000/ in my possession before taking tea with the accused and the said NOKIA phone having number 9910323058 and Rs.4000/ were missing from my possession. My NOKIA having number 9910323058 phone and Rs.4000/ might have been taken by the accused as I was administered some drugs. Police met me and inquired from me and recorded my statement. Police showed me the CCTV Camera footage of that day and I identified the accused Raju Jain in that footage that he was the person who had made friendship with me and he had administered some drug and robbed my NOKIA phone and Rs.4000/. Accused Raju Jain is present in the Court today."
16. PW 12 is Ct. Pradeep Kumar. On 04.11.2010, he was working as Duty Constable in Lady Harding Medical College. On that day, doctor in the Casualty handed over to him two pullindas sealed with the seal of Medical Officer. He handed over these pullindas to the IO and the same were seized vide Ex PW 12/A.
17. PW 13 is SI B. Lakra. On 02.12.2010, he was posted as Duty Officer in Police Station Mandir Marg. On that day, he had received information from HC Pramod regarding arrest of accused Raju Jain by Special Staff, New Delhi. He recorded the information vide DD Entry No. 9A, Ex PW 13/A, and handed over the same to ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 9 of 37 ASI Suresh Babbar for necessary action.
18. PW 14 is Ct. Sunder Kumar. On 02.12.2010, accused Raju Jain was formally arrested by PW 8 ASI Suresh Babbar in his presence.
19. PW 15 is HC Om Prakash. He deposed that on 01.12.2010, HC Pramod had deposited the case property seized in this case in the Malkhana of Police Station Parliament Street and an Entry No. 1095 was made in Register No. 19 in this regard. This case property was transfered to Police Station Mandir Marg on 15.12.2010 vide a Road Certificate. The copy of Entry No. 1095 and Road Certificate are Ex PW 15/A and 15/B respectively.
20. PW 16 is Sh. S. Sudhakar, Sr. Scientific Officer, CFSL, Kolkata, who had examined gastric lavage of the two victims and their blood sample and also the contents of a polythene sachet of Shikhar Gutkha recovered from accused Raju Jain. No finding could be given about the gastric lavage and blood sample but the contents of Shikhar Gutkha pouch were found to contain Lorzapam. His report is Ex PW 16/A.
21. PW 17 is IO ASI Suraj Bhan. He has narrated in detail as to how the case was registered on his Rukka, Ex PW 17/A. During investigation, he prepared the site plan, Ex PW 17/B, seized the case property in this case, got the TIP of the case property conducted, arranged TIP of the accused in which the accused refused to participate vide TIP proceedings, Ex PW 17/C, recorded ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 10 of 37 statements of witness and completed the investigation, leading to filing of the charge sheet.
22. PW 18 is HC Sandeep Kumar. He has deposed about the deposit of the case property in the Malkhana of Police Station Mandir Marg by ASI Suraj Bhan and Ct. Ranbir of Parliament Street Police Station. He had proved the relevant entry as Ex PW 18/A to 18/C.
23. Thereafter, the prosecution evidence was closed by learned Addl. PP for the State.
Statement of Accused and Defence Evidence
24. Statement of the accused was recorded under Section 313 CrPC, wherein he denied the allegations against him as incorrect and claimed innocence. He did not lead any evidnce in his defence.
25. I have heard the arguments at bar in detail and have carefully gone through the record.
Submissions of the Parties
26. It is submitted by learned Addl. PP for the State that in the intervening night of 30/31.10.2010, PW 3 Sh. Meva Lal had admitted his wife to Lady Harding Medical College for delivery. Similarly, PW 11 Sh. Abhimanyu Sharma had also admitted his wife in the same hospital for delivery. It is further submitted that ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 11 of 37 accused Raju Jain befriended these two persons in the hospital, offered them tea, mixed with some intoxicants, on two separate occasions, on consumption of which, both became unconscious and thereafter he stole mobile phone and cash from their possession. It is further submitted that the accused has been identified by the two victims and he also refused to join the judicial TIP. It is also submitted that the accused was identified by the victims in the CCTV footage also. It is further submitted that mobile phone of Sh. Meva Lal was recovered from the possession of accused Raju Jain and this shows that it is he who had committed the crime. The statements of PW 3 Sh. Meva Lal and PW 11 Sh. Abhimanyu Sharma have been read out at bar to show the involvement of the accused. Similarly, statements of PW 2 Ct. Naveen Kumar and PW 4 HC Pramod have been read at the bar for proving the recovery from the accused. It is repeatedly submitted that it was the accused who had offered tea to the victims, mixed with some intoxicants, stole their possessions and on arrest, the stolen property was recovered from the accused. It is further submitted that on the basis of material on record, prosecution has been able to establish its case beyond reasonable doubt against the accused under Sections 328 and 379 IPC. It is also submitted that the accused was also found in possession of three mobile phones, ATM Cards etc., possession of which he could not satisfactorily account for. Thus, the prosecution has also proved its case against him under Section ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 12 of 37 103 Delhi Police Act.
27. On the other hand, it is submitted by learned defence counsel that the identity of the accused has not been established properly. It is further submitted that he is not visible in the CCTV footage. It is submitted that when the identity of the accused has not been established as per law, there can be no case against him. It is further submitted that the accused did not mix up any intoxicating substance in tea, as he had no opportunity to do so, as he had gone to the hospital to get his daughter medically treated. It is further submitted that even he had no occasion to offer tea to the victims. It is further submitted that the offending substance might have been offered to the victims by PW 6 Sh. Santosh Bhatnagar. It is further submitted that even otherwise PW 16 Sh. S. Sudhakar, Sr. Scientific Officer, CFSL, Kolkata did not find any poison or stupefying substance in the gastric lavage and blood samples of the victims and as such there is no proof of any offence under Section 328 IPC. It is further submitted that no recovery was effected from the accused and the alleged recovery had been planted upon the accused by the police. It is further submitted that the accused belongs to poor strata of society and as such he has been falsely implicated in this case. It is repeatedly submitted that the accused is innocent. The relevant statements of the witnesses have been read out at the bar to show the innocence of the accused. My attention has also been invited to an authority ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 13 of 37 reported as Sanjay Singh and Another Vs. State, 2008 VII AD (Delhi) 151, submitting that in the absence of medical evidence, an accused cannot be held guilty under Section 328 IPC on the statement of victim alone.
28. In rebuttal, it is submitted by learned Addl. PP that in case victim becomes unconscious on account of administration of some substance to him by the accused, medical evidence is not required and the statement of the victim himself is sufficient to prove the case. My attention has been invited to an authority reported as Mohd. Zuber and Another Vs. State, 2015 SCC OnLine Del 8225.
Legal Provisions and Law
29. Section 328 IPC reads as under:
"Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
30. Section 379 IPC reads as under:
"Punishment for theft. Whoever commits theft shall be punished with imprisonment of ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 14 of 37 either description for a term which may extend to three years, or with fine, or with both."
31. Section 411 reads as under:
"Dishonestly receiving stolen property. Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
32. In an authority reported as Joseph Kurian Philip Jose Vs. State of Kerala, (1994) 6 SCC 535, Hon'ble Supreme Court while dealing with the question of proof of offence under Section 328 IPC observed in paragraph 10 as under:
"........In order to prove offence under Section 328 the prosecution is required to prove that the substance in question was a poison, or any stupefying, intoxicating or unwholesome drug, etc., that the accused administered the substance to the complainant or caused the complainant to take such substance, that he did so with intent to cause hurt or knowing it to be likely that he would thereby cause hurt, or with the intention to commit or facilitate the commission of an offence. It is, therefore, essential for the prosecution to prove that the accused was directly responsible for administering poison etc. or causing it to be taken by any person, through another. In other words, the accused may accomplish the act by ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 15 of 37 himself or by means of another. In either situation direct, reliable and cogent evidence is necessary........."
In the light of above facts and law, I proceed to deal with the submissions of the parties.
Identification of the Accused
33. It is submitted by learned defence counsel that the identify of the accused has not been properly established, as the accused was stranger to both the victims. It is further submitted that identification in Court is of no value in the eye of law. This has been countered by learned Addl. PP by submitting that the accused had refused to join the judicial TIP and as such an adverse inference may be drawn against him. It is also submitted that the accused was correctly identified by the victims in the Court.
In the instant case, PW 3 Sh. Meva Lal has identified the accused as the person who had offered him tea, on consumption of which he became unconscious. He also deposed that the accused talked to him for a long period. Similarly, PW 11 Sh. Abhimanyu Sharma has also deposed that accused Raju Jain had accompanied him outside the hospital building for dinner and they had dinner together. He also deposed that accused offered him a bed sheet. He also deposed that at about 11:30 PM, the accused offered him tea. This deposition of the two witnesses makes it clear that both ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 16 of 37 had ample opportunity to know him and get acquainted with the accused in such a manner that they would identify him at any point of time due to his features getting imprinted in their mind. The witnesses had spoken with the accused for sufficiently long time and as such there is no question of they identifying a wrong person. Moreover, they had no motive to identify a wrong person and to let the real culprit go scot free. In the crossexamination of these witnesses, there is nothing of any significance which could discredit their testimony on the point of identification. Not only this, the accused himself has admitted his presence in the hospital in the statement under Section 313 CrPC on the ground that he had gone to the hospital for getting medical treatment to his daughter. Furthermore, judicial TIP of the accused was arranged by PW 17 IO ASI Suraj Bhan and was conducted by PW 7 Sh. R. L. Meena, learned Metropolitan Magistrate but the accused refused to join the same. The proceedings conducted by learned Metropolitan Magistrate, New Delhi in this regard are Ex PW 17/C. In such a situation, an adverse inference is to be drawn against him.
34. In the end, in view of the opportunity which the victims had to see the accused properly and to recall his physical features later on and as such their identification of the accused in the Court, refusal of the accused to join the TIP proceedings on account of which an adverse inference is to be drawn against him, and the fact that the accused admitted his presence in the hospital at the ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 17 of 37 relevant time in his statement under Section 313 CrPC, I am satisfied that the identification of the accused has been established by the prosecution beyond reasonable doubt. Accordingly, I do not find any merit in the submission of learned defence counsel that identity of the accused has not been established as per law.
Presence or Absence of Poison in the Blood Samples and Gastric Lavage of Victims
35. It is vehemently submitted by learned defence counsel that PW 16 Sh. S. Sudhakar, Sr. Scientific Officer, CFLS, Kolkata, who had examined the gastric lavage and blood samples of the victims, did not find any poisonous substance therein. His report, Ex PW 16/A, has been read out at the bar to emphasize this point. It is repeatedly submitted by learned defence counsel that in the absence of medical evidence regarding presence of any poisonous, intoxicating, stupefying or unwholesome substance in the blood or vomit of the victims, no offence under Section 328 IPC is made out. Learned Addl. PP has countered this point submitting that such a positive finding by the doctor is not necessary.
Let me take note of the legal position in this regard. In Sanjay Singh (Supra), the stomach wash of the victim was not preserved but the accused was convicted by the learned Trial Court on the basis of statement of the victim that the accused had administered intoxicating material to him. However, the Hon'ble ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 18 of 37 High Court of Delhi set aside the conviction and observed in paragraphs 6 to 8 as under:
"6. The essential element of Section 328 is that the victim should be administered "poison or any stupefying, intoxicating or unwholesome drug, or other thing." The forensic examination of the stomach wash in order to determine the substance that administered was poison is therefore imperative for ascertaining the commission of the offence under Section 328 IPC. The opinion of the victim who is rendered unconscious after taking the substance may not be stated final as to whether the drug administered was either "poison or any stupefying, intoxicating or unwholesome drug." In this context the medical legal case sheets become relevant which were marked as Ex.PW6/A, PW3/A which contain endorsements that the victims were unfit for making a statement. In respect of each of the victims, the endorsement of Dr. Jyoti is to the effect that "the stomach wash could not be preserved so that the final report could not be given."
7. Admittedly Dr. Jyoti left the service of the hospital without leaving her present address and therefore, she could not be examined as a prosecution witness. In the present case in the absence of the evidence of the doctor who examined the victims after they were brought to the hospital and the stomach wash was not being able to be sent for examination, it was ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 19 of 37 extremely unsafe for the trial court to convict the Appellants here for the offence under Section 328 IPC. This Court cannot be determinative on whether what was administered was poisonous in order to attract the offence under Section 328 IPC.
8. In that view of the matter, the impugned th judgment dated 30 April 2005 and order on nd sentence dated 2 May 2005 passed by the learned ASJ are hereby set aside. The appellants are hereby acquitted for the offence under Section 328 IPC and they be released forthwith if they are not required in another case."
Similar view was taken by Hon'ble High Court of Delhi in a case titled Santosh Kumar Vs. State, Criminal Appeal No. 12/2000 decided on 07.11.2008, wherein in paragraph 10, it was observed as under:
"........Simply on the basis of statement of PW5 alone it could not be concluded that he had become unconscious because of eating the biscuit or drinking tea offered to him by the accused. There had to be medical evidence to the effect that PW5 had, in fact, become unconscious because of consuming any drug or intoxicating substance etc. mixed in tea or biscuit."
36. In another case reported as Mukesh Chand and Others Vs. State (Govt. of NCT of Delhi), 2010 (115) DRJ 216, while ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 20 of 37 setting aside the conviction under Section 328 IPC in the absence of stomach wash, Hon'ble High Court of Delhi observed in paragraph 21 as under:
"Surprisingly, no chemical report about the "stomach wash" has been proved on record. It is well settled that in order to prove Section 328 IPC, the prosecution is required to prove that the substance in question was poison."
In one more case reported as Mahinder Kumar and Another Vs. State, 2017 SCC OnLine Del 8327, Hon'ble High Court of Delhi set aside the conviction and observed in paragraph 20 as under:
"In view of aforesaid discussion, scrutiny of testimonies of prosecution as well as defence witnesses and the MLC of the victim, it is clear that the findings rendered by the learned Trial Court are based only on the testimony of injured witness. But in the absence of any medical evidence corroborating the allegation of the injured, convicting the appellants for the offence under Section 328 of IPC does not seem to be justified in the facts of the present case, especially when the prosecution has not seized any liquid/substance for taking expert opinion so as to know the substance was poisonous, stupefying, intoxicating or unwholesome drug........"
37. Thus, there is clear series of cases, in which Hon'ble High Court of Delhi has held that in the absence of medical ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 21 of 37 evidence, evidence of the victim alone that the accused administered him something on account of which he became unconscious and lost his belongings is not enough to convict an accused under Section 328 IPC.
38. However, learned Addl. PP has invited my attention to an authority reported as Mohd. Zuber (Supra), wherein gastric lavage of the victim was not taken but the accused was convicted by the learned Trial Court on the basis of the testimony of the victim alone. Hon'ble High Court of Delhi upheld the conviction and observed in paragraphs 18 to 22 as under:
"18. Section 328 of IPC to the extent it is relevant provides that whoever administers or causes to be taken by any person any stupefying drug, or other thing with intent to commit or to facilitate the commission of an offence shall be liable to be punished.
19. A perusal of the MLC goes to show that when the complainant was brought to the th hospital on 4 January, 2011 at 1:55 PM, he was in a state of unconsciousness at that time th and it was only on 5 November, 2011 that he became conscious and then his statement was recorded by PW15SI Murtaza.
20. It has come in the statement of complainant that he became unconscious on consuming tea offered to him, therefore, there can be no reasonable doubt that some stupefying drug or substance was mixed in the tea which the appellants made the ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 22 of 37 complainant to consume. This obviously was done with the intent of committing theft of the articles belonging to the complainant which he was having on his person and was carrying with him. A number of articles belonging to the complainant were thereafter actually stolen. The appellants, therefore, were rightly held guilty of the offence punishable under Section 328 and 379 of IPC r/w Section 34 thereof.
21. It was submitted by the learned counsel for the appellant that gastric lavage of the complainant was not taken and in the absence of the same, it cannot be said that any poison or any stupefying, intoxicating or unwholesome drug or other thing was administered to him. I, however, find no substance in this contention. The viscera would have been necessary had the complainant been administered poison or any poisonous substance. Nothing could have been found in the viscera on account of complainant taking a stupefying substance mixed in tea.
22. For the reasons stated hereinabove, the conviction of the appellant under Section 328 and 379 of IPC r/w Section 34 thereof is confirmed........."
39. I may also note that in one more case reported as Rijaul Karim Vs. State (GNCT of Delhi), (2014) SCC OnLine Del 374, Hon'ble High Court of Delhi took similar view and observed in paragraphs 19 to 21 as under:
___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 23 of 37 "19. Section 328 IPC to the extent it is relevant provides that whoever administers or causes to be taken by any person any stupefying drug or other things with an intent to commit or facilitate the commission of the offence shall be liable to be punished. A perusal of the MLC of the complainant would show that when he was brought to the hospital on 572010, he was in a drowsy condition. It has come in the deposition of the complainant that he became unconscious on consuming the cold drink offered to him. Therefore, there can be no reasonable doubt that some stupefying drug or substance was mixed in the cold drink which the appellants made the complainant to consume. This obviously was done with intent to commit theft of the articles belonging to the complainant, which he was having on his person and was carrying with him. A number of articles belonging to the complainant were thereafter actually stolen. The appellants, therefore, were rightly held guilty of the offence punishable under Sections 328 and 379 IPC read with Section 34 thereof.
20. It was submitted by the learned counsel for the appellants that no viscera of the complainant was taken and in the absence of any viscera report, it cannot be said that any poison or any stupefying, intoxicating or unwholesome drug or other thing was administered to him. I, however, find no merit in this contention. The viscera report would have been necessary had the complainant with administered poison or any poisonous ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 24 of 37 substance. Nothing could have been found in the viscera, on account of the complainant taking a stupefying substance such as Ativan tablets mixed in a cold drink. Therefore, taking the viscera of the complainant was not really necessary.
21. For the reasons stated hereinabove, the conviction of the appellants under Sections 328 and 379 IPC read with Section 34 thereof is confirmed."
40. In the instant case, gastric lavage was taken and the same was sent for chemical examination also but PW 16 Sh. S. Sudhakar, Sr. Scientific Officer, CFSL, Kolkata could not find any poison, tranquilizer etc. therein. However, in the deposition of victims, there is clear assertion that on account of tea offered by the accused, they became unconscious and lost their cash and mobile phone. In the MLC, Ex PW 9/A and 9/B, both victims were found to be disoriented with history of unknown poisoning.
41. Now the question is: In such a situation, which judgment is to be followed? For this, it is necessary to follow rule of precedent and per incuriam.
Rule of precedent and per incuriam
42. In an authority reported as Siddharam Satlingappa Mhetre Vs. State of Maharashtra, (2011) 1 SCC 694, Hon'ble Supreme Court, while dealing with rule of precedent, observed in ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 25 of 37 paragraph 138 as under:
"The analysis of English and Indian law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a coequal strength is also binding on a Bench of Judges of coequal strength. In the instant case, judgments mentioned in paras 124 and 125 are by two or three Judges of this Court. These judgments have clearly ignored the Constitution Bench judgment of this Court in Sibbia case [(1980) 2 SCC 565 : 1980 SCC (Cri) 465] which has comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 CrPC. Consequently, the judgments mentioned in paras 124 and 125 of this judgment are per incuriam."
Similarly, in an another authority reported as Sundeep Kumar Bafna Vs. State of Maharashtra, (2014) 16 SCC 623, Hon'ble Supreme Court observed in paragraph 19 as under:
"It cannot be overemphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the court. A decision or judgment can also be per incuriam if it is not ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 26 of 37 possible to reconcile its ratio with that of a previously pronounced judgment of a coequal or larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified incuriam rule that the per is strictly and correctly applicable to the ratio decidendi and not to obiter dicta . It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam ."
43. Perusal of the case law referred to above in Siddharam Satlingappa Mhetre (Supra) and Sundeep Kumar Bafna (Supra) make it obligatory for this Court to follow the earlier law, that is, the law laid down by the Hon'ble High Court in Sanjay Singh (Supra). As per this law, the statement of victim alone is not sufficient to convict an accused under Section 328 IPC. Medical evidence is also required to show the administration of poisonous, intoxicating, stupefying or unwholesome drug to the victim by the accused. This evidence is lacking in the instant case. Accordingly, I find merit in the submission of learned defence counsel that prosecution has not been successful in proving its case against the accused under Section 328 IPC.
Victims becoming Unconscious and Theft of their Possessions
44. It is submitted by learned defence counsel that there is ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 27 of 37 no evidence on record that mobile phone and cash of the victims were stolen by the accused. It is submitted that since there is no evidence that the accused stole the mobile phone and cash of the victims, no case of theft under Section 379 IPC is proved against the accused by the prosecution.
This has been countered by learned Addl. PP submitting that the mobile phone and cash of the victims were found missing immediately after the victims became unconscious after consuming the tea offered by the accused, it is logical to believe that he committed the theft of cash and mobile.
45. However, there is no evidence at all about the accused committing theft of mobile phone and cash of the victims. There is no direct or indirect evidence available on record in this regard, as the victims had become unconscious and they could not say as to who stole their mobile phone and cash. Moreover, the offence under Section 328 IPC is made out only when poisonous or intoxicating substance is administered with a view to commit a specific offence. The case of Joseph Kurian Philip Jose (Supra) applies with full force. In the instant case when the prosecution has failed to prove the administration of poisonous substance to the victims by the accused, the other offence of theft also fails. Accordingly, there is no evidence on record that the accused committed theft of mobile phone and cash of the victims and the prosecution has thus failed to prove the offence of theft against the ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 28 of 37 accused.
Recovery effected from the accused of mobile phone of Sh. Meva Lal
46. It is submitted by learned defence counsel that the mobile phone of Sh. Meva Lal was recovered from the possession of the accused on 01.12.2010. He has read out the testimony of PW 2 Ct. Naveen Kumar and others in this regard. It is submitted that nothing was recovered from the accused and the mobile phone was planted by the police.
This has been countered by learned Addl. PP submitting that there is clear and cogent evidence about the recovery of the stolen mobile phone of Sh. Meva Lal from the accused and Sh. Meva Lal also identified the same in the TIP proceedings.
47. PW 3 Sh. Meva Lal has deposed that when he became unconscious, his mobile phone Hi Fi 750, Ex P1, was found stolen. He has identified his mobile phone in TIP proceedings conducted by PW 7 Sh. R. L. Meena, the then learned Metropolitan Magistrate, New Delhi. PW 2 Ct. Naveen Kumar and PW 4 HC Pramod have deposed about the recovery of mobile phone, Ex P1, from the possession of the accused on 01.12.2010, when the accused was apprehended on the pointing of a secret informer. This phone is the stolen phone of PW 3 Sh. Meva Lal. In the cross examination of these two witnesses, there is nothing of any ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 29 of 37 significance which could discredit the evidentiary value of the testimony of these two witnesses regarding the recovery of mobile phone from the possession of the accused. In the cross examination of the two witnesses, nothing significant has emerged in favour of the accused. There is no material on record to indicate that the mobile phone was planted on the accused by the police party, as claimed by learned defence counsel. Accordingly, I am satisfied that the mobile phone, Ex P1, was stolen from PW 3 Sh. Meva Lal, and as such is a stolen property, which was recovered from the possession of the accused on 01.12.2010 near Gurudwara Banglasaheb, Jai Singh Road, New Delhi. Accordingly, the prosecution has been successful in proving its case against the accused beyond reasonable doubt, under Section 411 IPC.
Recovery of other stolen properties from the accused
48. It is submitted by learned defence counsel that the recovery of three ATM cards, one driving licence and three mobile phones shown from the accused does not constitute any offence under Section 103 Delhi Police Act, as the same were discarded things and of little value. It is submitted that for an offence under Section 103 Delhi Police Act, there must be reason to believe that the property was stolen one or fraudulently obtained by the accused. It is submitted that in the instant case, the things recovered, are of little or no significance and as such the ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 30 of 37 ingredients of Section 103 Delhi Police Act are not made out.
This has been countered by learned Addl. PP submitting that the accused has not given any satisfactory explanation as to the possession of these articles by him and as such it is presumed that these are stolen one and this is good enough to attract the provisions of Section 103 of Delhi Police Act.
49. Section 103 of Delhi Police Act reads as under:
"Whoever has in possession or conveys in any manner, or offers for sale or pawn, anything which there is reason to believe is stolen property or property fraudulently obtained, shall if he fails to account for such possession or act to the satisfaction of the Metropolitan Magistrate, on conviction, be punished with imprisonment for a term which may extend to three months or with fine which may extend to one hundred rupees, of with both."
(All underlinings by me for supplying emphasis).
50. A bare perusal of the aforesaid provision makes it clear that for attracting the provisions of this Section there must be some reason to believe that the property recovered was stolen one or fraudulently obtained by the accused. However, in the instant case, the property recovered is of little practical use and there is no reason to belief that it was stolen one or that it was fraudulently obtained by the accused. The ATM Cards and the mobile instruments may be discarded items also and as such of little ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 31 of 37 economic or monetary value. The prosecution must first indicate its reason for believing that the property was stolen one, which it has failed to do. Accordingly, I find myself in agreement with the submission of learned defence counsel that on the basis of material on record, prosecution has not been successful in proving any case against the accused under Section 103 Delhi Police Act.
51. In view of the above discussion, I am satisfied that the prosecution has failed to prove its case under Sections 328/379 IPC and 103 Delhi Police Act against the accused. Accordingly, the accused stands acquitted for the offences under these Sections.
52. However, prosecution has been successful in proving its case beyond reasonable doubt that the stolen mobile phone, Ex P1, of Sh. Meva Lal was recovered from his possession and as such he is convicted under Section 411 IPC.
53. Let the convict be heard on the point of the sentence.
Announced in open Court (O. P. Saini)
today on 09.08.2018 Addl. Sessions Judge/
Spl. Judge (CBI04)
New Delhi
___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 32 of 37 IN THE COURT OF O. P. SAINI: ADDL. SESSIONS JUDGE/SPL. JUDGE (CBI04), PATIALA HOUSE COURT, NEW DELHI Old SC No. 1091/2 & 17/18 New SC No. 01/2018 State Vs Raju Jain FIR No. 192/2010 U/s: 411 IPC PS: Mandir Marg 09.08.2018 Present: Sh. Pradeep Kumar, Addl. PP for the State.
Convict in JC with Sh. Vaibhav Mishra, Advocate.
ORDER ON SENTENCE Vide my separate judgment dated today, Raju Jain has been convicted under Section 411 IPC on the allegations that on 01.12.2010, he was found in possession of stolen mobile phone, Ex P1, of Sh. Meva Lal.
2. I have heard the arguments at the bar and have carefully gone through the file.
3. It is submitted by learned Addl. PP that the convict was found in possession of stolen mobile phone of Sh. Meva Lal, which was stolen, when he was unconscious in the intervening night of 30/31.10.2010 in Lady Harding Medical College. It is submitted that the convict may be sentenced to rigorous imprisonment to deter such incidents of theft and possession of stolen property.
___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 33 of 37
4. On the other hand, it is submitted by learned defence counsel for the convict that he belongs to a poor family and that he has no permanent residence and is a vagabond. It is submitted that the convict has no family support and that is why he got involved in such cases. It is further submitted that the convict has already been in custody for more than six months in the instant case. It is submitted that considering the poor background of the convict and the fact that he remained in custody for more than six months, a lenient view may kindly be taken and he may be sentenced to the imprisonment already undergone by him.
5. In an authority reported as B. G. Goswami Vs. Delhi Administration, (1974) 3 SCC 85, while dealing with the question of sentence, Hon'ble Supreme Court observed in paragraph 10 as under:
"........Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 34 of 37 preventing the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentence both lose their efficaciousness. One does not deter and the other may frustrate, thereby making the offender a hardened criminal........"
6. In the instant case, the convict belongs to an extremely poor family and stays in a Jhuggi. He has already been in custody for more than six months. As per the Court record, he has been in custody from 01.12.2010 to 07.01.2011 and also from 11.03.2018 to till date. The convict is aged about 52 years and harsh punishment would not serve any useful purpose. Considering these facts and the law quoted above, I am inclined to take lenient view and sentence him to imprisonment for the period already undergone by him in custody during the trial of the case.
7. The mobile phone of Sh. Meva Lal be released to him. Other case property recovered in the instant case from the accused is forfeited to the State and shall be disposed of as per law, after the time of filing of appeal is over.
___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 35 of 37
8. If the convict is not required in any other case, he be set at liberty at once.
9. A copy of the judgment and order on sentence be given to the convict free of cost immediately.
10. Since the convict is a vagabond and may not find a surety for him, he is directed to furnish a personal bond in the sum of Rs.10,000/ to appear before the Hon'ble Appellate Court as and when he receives a notice of appeal, as per the provisions of Section 437A CrPC.
11. File be consigned to Record Room.
Announced in open Court (O. P. Saini)
today on 09.08.2018 Addl. Sessions Judge/
Spl. Judge (CBI04)
New Delhi
___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 36 of 37 Old SC No. 1091/2 & 17/18 New SC No. 01/2018 State Vs Raju Jain FIR No. 192/2010 U/s: 328/379/411 IPC PS: Mandir Marg 09.08.2018 Present: Sh. Pradeep Kumar, Addl. PP for the State.
Accused in JC with Sh. Vaibhav Mishra, Advocate. Heard. Vide my separate judgment dated today, Raju Jain stands convicted under Section 411 IPC. However, he stands acquitted under Sections 328/379 IPC and 103 Delhi Police Act.
Vide my separate order on sentence dated today, he is sentenced to the imprisonment under Section 411 IPC for the period already undergone by him in custody during the trial.
Personal bond under Section 437A CrPC furnished and accepted. File be consigned to Record Room.
(O. P. Saini) Addl. Sessions Judge/ Spl. Judge (CBI04) New Delhi/09.08.2018 ___________________________________________________________________________ State Vs. Raju Jain FIR No. 192/2010, PS: Mandir Marg Page 37 of 37