Delhi District Court
State vs . (1) Makisu S/O Basir, on 22 May, 2008
IN THE COURT OF MS. I.K. KOCHHAR, ASJ,
NEW DELHI
SC NO. 168/05
FIR No. 458/2002
U/S 328/380 IPC
PS S.N. Puri
State Vs. (1) Makisu S/o Basir,
R/o Vill Asaladpur,
Farkh Nagar, P.S.
Sahibabad, UP
(2) Md. Isaf S/o Mulla
Mulla Ji Akhtar, R/o
Vill. Murad Nagar,
Distt. Ghaziabad
(3) Irfan Ali S/o Noora
R/o Sidhawali, P.S.
Kakar, Distt. Meerut,
U.P.
21.5.2008
JUDGMENT
(1) Smt. Ruchika had lodged a complaint on 09.11.02 that on 04.11.02 when she was crossing the ring road of Maharani Bagh she read a hoarding which read that " Baba Sahib - Sabhi Prakar Ki Samasyaon Ka Nirvan" ; since she was in trouble because of financial problems of her husband and other mental disturbances, she on 05.11.02 went to the said place i.e 149/1 Kilokari Ring Road, Maharani Bagh where one Baba was sitting in his aasan and everybody was addressing him as Baba whose name she later on came to know as Makisu alias Baba; he made her sit in front of him and told her that someone had done some " Jadu Tuna" on her he would heal her ailment. She paid Rs.51/- at his asking; he told her to bring gold for puja; at that time she was wearing gold earrings. Another person whose name she came to know as Mohd. Isaf took out three pieces of white paper and wrote something on them with orange colour; the third person present there whose name she later on came to know was Irfan Ali; these three pieces of paper were put in a glass of water by all the three accused persons and they made her forcibly drink that glass of water while one of them caught hold of her; at that time accused Makisu alias Baba came close to her and put his hand on her breast and threatened her that if she discloses this to anybody he would kill her and destroy her family; after drinking the water she went into a stupor; one person caught hold of her hand and the other person and Baba removed her gold jhumkas; she thereafter managed to run away from the spot and thereafter got herself treated in 2-3 places; for 2/3 days she did not disclose the incident to her husband but later on she revealed this story to him pursuant to which complaint dated 09.11.02 was filed. After completing the investigation, challan was filed against all the accused persons.
(2) In view of the aforestated allegations which were contained in the charge sheet, charge against all the accused persons was framed on 18.7.05 for offence under Section 328/34 IPC for having in furtherance of their common intention administered some poisnous substance to Ruchika with the intention to commit theft of her belongings. A second charge under Section 354/34 IPC was also framed against all the accused persons for having intended to outrage the modesty of Smt. Ruchika. Additional charge under Section 380/34 IPC was also framed against all the accused persons for having committed theft of a pair of jhumkas worn by her at the relevant time. Charge under Section 506/34 IPC was also framed against the accused persons for having criminally intimidated the complainant by giving threats to her life. A separate charge under Section 411 IPC was also framed against accused Makisu for having got recovered one pair of gold jhumkas which he received and retained having and knowing reasons to believe the same to be a stolen property. (3) Accused persons pleaded not guilty to the charges framed against them and claimed trial.
(4) The prosecution in support of its case cited as many as five witnesses of whom four witnesses have been examined by the prosecution of whom PW 2 Smt. Ruchika is the star witness being the complainant. The rukka was taken by PW 1 Ct. Dev Lagan pursuant to which the FIR was registered by HC Shambu Singh who has been examined as PW 3. The Investigating Officer of this case SI Jagmal Singh has been examined as PW 4.
(5) Statement of the accused persons was recorded under Section 313 Cr.P.C wherein they have stated that they are innocent and have been implicated falsely in the present case. Accused Irfan Ali has stated that at the time of arrest of accused Makisu and Mohd. Isaf he was with them, accused Makisu being his co brother and he had come to meet and talk to him as Makisu had left his sister; he has no concern with the incident and he has been falsely implicated in this case. (6) In defence one witness has been examined on behalf of accused Irfan Ali i.e DW 1 Chunwa. DW 1 has confirmed that accused Makisu is married to the sister of accused Irfan Ali. He has stated that it seems that the accused has been falsely implicated in the present case. (7) On behalf of the prosecution, arguments have been addressed by ld. Addl. PP Mohd. Zafar Khan. It is stated that the ingredients of Section 328/380/354/411/506/34 IPC stand clearly proved against the accused persons in view of the categorical version of the complainant Smt. Ruchika which is corroborated by the version of the Investigating Officer. He has stated that for all the aforesaid reasons the accused persons are liable to be convicted for the offences for which they have been charged.
(8) On behalf of accused persons namely Makisu and Mohd. Isaf arguments have been addressed by counsel Mr. Kuldeep Mansukhani. It is stated that the receipt of gold which is purported to have been produced by the prosecution in the version of the IO shows that it is dated 05.11.02 which is the date of the incident and it is difficult to imagine that if the husband of the complainant was suffering from financial crisis, how he had managed to purchase gold jhumkas for his wife is unexplained; the receipt is clearly a fabricated document. It is stated that apart from the statement of the prosecutrix, there is no other corroborative evidence with the prosecution; the version of the IO is also tainted as he himself had taken upon himself all the jobs and had even clicked the photographs himself; he did not remember as to from where these negatives had been got developed; there is no explanation as to why no public witness was joined at the time of the alleged recovery of the gold jhumkas at the instance of A-1; the ingredients of the offences for which the accused have been charged, are clearly not made out. It is stated that for all the aforestated reasons, the accused persons are clearly entitled to an acquittal.
(9) On behalf of A-3 Irfan Ali, arguments have been addressed by counsel Mr. Girish Sharma. It is stated that A-1 and A-3 are co brothers and A-3 had gone to meet A-1 at the relevant time; no recovery has been effected from the present accused. It is stated that the recovery is even otherwise demolished in view of the fact that no public witness was joined at the time of this recovery. It is stated that the receipt of gold jhumkas is dated 05.11.02 which is the date of the incident itself which throws great doubt on the credibility of the version of the prosecution qua this document.
(10) Arguments have been heard. Record has also been perused.
(11) Under Section 328 of the IPC the prosecution must prove (i) that the substance in question is a poison, or any stupefying, intoxicating or unwholesome drug etc.,(ii) that the accused administered the substance to the complainant or caused the complainant to take such substance, (iii) that he did as above with intent to cause hurt or knowing it to be likely that he would thereby cause hurt or that the accused intended to commit or facilitate the commission of an offence. (12) PW 2 Smt. Ruchika has on oath stated that on 05.11.02 she read a hoarding near Kilokari near the main cut of Kilokari wherein it was written that all your problems will be solved i.e Sabhi Samasyaon Ka Samadhan and name of Baba Sahil was also written; during that period she was having difficulty and her husband was facing financial problems in his business and as such after reading the hoarding she went there; she went upstairs to the room of the Baba; it was noon time; she went inside; several persons were sitting there; there she found one person sitting who is accused Makisu alias Baba; she related her problems to the Baba whose name she later on came to know as Makisu who told her that somebody has done some spell on her on which she became nervous; two other persons i.e accused Irfan Ali and Ishfaq whom the witness has correctly identified were called by accused Makisu; both those persons gave one paper on which something was written in saffron colour; thereafter the accused brought one glass of water and that piece of paper was dipped in that glass of water and thereafter they asked her to drink that water; she was hesitant in drinking that water but the accused persons forcibly made her drink that glass of water; her hands were caught by the accused and she was pressed near her breast and throat by all the accused persons and she was forced to drink that solution; they also threatened her that in case she did not drink this water, her family members would be liquidated; after drinking that water she started feeling giddy; the accused persons removed her earrings; she somehow managed to escape from there; thereafter she got her treatment from three places; she did not relate this incident to her family members at the first instance but thereafter after three days after she gathered courage, she told her husband about the same pursuant to which on 09.11.02 she lodged a complaint with the police which is Ex. PW2/A; accused persons were thereafter apprehended. PW 2 has categorically stated that she had pointed out the place of occurrence and thereafter from under the seat of accused Makisu her gold jhumkas were recovered which were taken into possession vide memo Ex. PW1/K; she had also handed over the receipt Ex. P-3 to the police which was seized vide memo Ex. PW2/B showing the purchase of her jhumkas; photographs Ex. P-1 and Ex. P-2 were got clicked by the IO SI Jagmal Singh of the place of occurrence. In her cross examination this witness has stated that she is a graduate and has also passed Commercial Arts and Fine Arts Exams and on the fateful day she was going to her mother's place when she saw the hoarding at Kilokari Modh; she has further stated that her husband was having some financial problems in the business pursuant to which there was a disturbance in her family. (13) PW 2 has not shifted from her stand and her complaint dated 09.11.02 is no different from her version on oath in court and infact no such confrontation has also been made by ld. defence counsel. PW 2 has further stated that she has never gone to such a place before but because of mental tensions she was tempted to visit Baba and accused assured her that he would be able to cure her ailment. She has further stated that accused told her that she has to feed several hungry persons or that she has to give gold to him for performing puja but she refused for both these options and she then was forced to drink a glass of water in which a piece of paper with something written in saffron colour had been dipped. She has further stated that the jhumkas were given to her by her husband at the time when he was not having financial problems. The submission of ld. defence counsel that the recovery is demolished and the testimony of this witness is tarnished as the receipt of the jhumka Ex. P-3 is dated 05.11.02 which is the date of the incident and admittedly on that day as per the version of PW 2 her husband was suffering from financial constraint and how he could purchase jhumkas for her, in my view, has little weight; this document shows that a pair of gold tops had been purchased on 05.11.02; the version of PW 2 is that her husband had business problems and tensions in that period but this by itself would not destroy the credibility of this document on which even otherwise no cross examination has been conducted by ld. defence counsels and no suggestion has also been given to PW 2 on this count that these jhumkas were not purchased by the husband of PW 2 or that she was not wearing any jhumkas on the fateful day or that the recovery has been falsely planted upon the accused.
(14) The seizure memo of the jhumkas is Ex. PW1/K dated 10.11.02 which has been attested by the complainant PW 2 Ruchika and Ct. Dev Lagan who has been examined as PW 1. This document clearly recites that on 10.11.02 pursuant to the disclosure statement of accused Makisu in the presence of the complainant PW 2 Ruchika a pair of gold jhumkas had been recovered from under the seat where accused Makisu was sitting of H. No. 149/1 Kilokari, Ring Road, 1st Floor of Maharani Bagh and which had been identified by the complainant PW 2 Smt. Ruchika. The argument of ld. defence counsels that no reliance can be placed upon this document Ex. PW1/K in view of the fact that it is attested only by the complainant who is an interested witness and by PW 1 Ct. Dev Lagan who is a police official and there is no explanation for not having this document having been attested by any other independent witness, is also in my view, worthy of little weight as the testimony of PW 2 inspires confidence and her version both in her statement recorded under Section 161 Cr.P.C Ex. PW2/A which was fully corroborated by her version on oath in court and merely because the said document is not attested by any other independent witness, it cannot be said that no reliance can be placed upon such a document. In 1993 3 SCC 377 and State Vs. Navjot Sandhu (2005) 11 SCC 600 it has been held that there is no inflexible proposition of law that in the absence of independent witnesses being associated with search, seizure cannot be relied upon; in the absence of independent witnesses during seizure operation investigating officers evidence would not always be disbelieved; closer scrutiny of evidence is what is required; the rider of caution is there and the court has to scrutinize this document with a greater caution which has been done so.
(15) This document is trustworthy. (16) The testimony of PW 2 inspires confidence; she is a
graduate, well educated and her version is coherent and cogent; it is natural for a person who is undergoing mental tensions to be tempted by reading such a hoarding as has been displayed in this case which had tempted her and hoping that some of her mental tensions would be alleviated and cured, she readily parted with Rs.51/- at the first asking of the accused persons but when she was forced to drink that glass of water, she became giddy whereupon her gold jhumkas had been robbed. It is also natural that this incident was not disclosed by her to her husband forthwith as she had apprehensions that her husband would be angry with her but thereafter she picked up courage and disclosed the same to him and within 3 days complaint was lodged with the police on 09.11.02 pursuant to which this case was registered. In view of this explanation, there appears to be no delay in lodging of the FIR.
(17) The testimony of PW 2 is fully fortified by the version of PW 4 Investigating Officer SI Jagmal Singh who had conducted the investigation in this case along with PW 1 Ct. Dev Lagan; PW 1 had also attested the recovery memo Ex. PW1/K pursuant to which the gold jhumkas had been seized. PW 4 has stated that it was at the pointing out of the complainant PW 2 that the accused persons were arrested. PW 2 being an educated lady has detailed the process and stated that she had pointed out the place of office of the accused from where the accused persons were arrested vide their arrest memos Ex.PW1/A, Ex. PW1/B and Ex. PW1/C. (18) PW 4 the IO had also recorded the disclosure statement of the accused persons; disclosure statement of accused Makisu is Ex. PW1/G and pursuant to this disclosure statement the gold jhumkas were recovered, which is a relevant fact and an admissible recovery under the provisions of Section 27 of the Evidence Act. In his cross examination, PW 4 has categorically stated that jhumkas were taken out from under the mattress in the office room of the accused; he has also admitted that he had clicked photographs of the room and it has been recorded in the version of PW 2 by ld. Predecessor of this court that ld. defence counsel had objected to the exhibition of the photographs Ex. P-1 and Ex. P-2 of the place of occurrence as they do not form a part of the documents filed along with the charge sheet. Admittedly no permission had been taken by ld. APP to place these photographs on record, in my view, even if the said photographs are discarded and over-looked, the version of PW 2 is fully credible and she having detailed the incident on oath in court in the manner in which she had first described it in her version in the complaint, even in the absence of the photographs which are only photographs of the scene of occurrence, stand of the prosecution under Section 328 IPC is proved. (19) In 31 (1987) DLT 245 it has been held by the Hon'ble High Court that where a stupefying drug mixed in Laddus had been offered to the victim which rendered them unconscious and the accused stripped the victim of their belongings which was subsequently recovered from the accused, it was a fit case for conviction under Section 328 IPC. In the instant case also by no stretch of imagination or reasoning can it be suggested that PW 2 was in any way inimical to the accused and wanted to implicate them; the victim had become dizzy and pursuant thereto her gold jhumkas had been removed. The testimony of PW 4 IO SI Jagmal Singh also cannot be disbelieved and it was on the identification of the victim that the accused persons had been arrested from their office situated at 149/1 Kilokari Ring Road, 1st Floor, Maharani Bagh, New Delhi and the gold jhumkas had also been recovered from under the gaddi of A-1. Further the accused were not known to the victim; accused has also not claimed the gold jhumkas as belonging to him; his simple plea of innocence is of no help to him; the recovery of the gold jhumkas from A-1 and belonging to the victim is an incriminating circumstance which connects the accused with the commission of the crime.
(20) The requirement of Section 328 of the IPC is not only that poison must be administered, even if a stupefying drug is administered with a view to facilitate the commission of the offence, the accused can be prosecuted under this provision of law. The receipt of the gold jhumkas Ex. P-3 also fortifies the version of the prosecution that this article infact belonged to the victim.
(21) In 1996 Crl. L.J. 1062 (Bombay) Madhukar Damu Patil it was held that where the accused had administered powder of dhatura to a woman and robbed her of her jewellery while she was senseless, this offence was held to have been committed. The word " Offence" denotes a thing punishable under Cr.P.C or under any special or local law as is evident from the reading of Section 40 of the Cr.P.C. (22) In 1993 Crl.L.J. 3506 it had been held by the Hon'ble High Court of Madras that where the victim had been made unconscious by offering poisonous fruit juice to drink pursuant to which their articles were robbed and the recovery of the stolen articles were made in pursuance of confessional statement made by the accused, there was no ground for interference with the order of conviction under Section 328 of the IPC.
(23) PW 1 Ct. Dev Lagan was a witness to the recovery of the gold jhumkas and had signed on the recovery memo Ex. PW1/K. (24) PW 3 HC Shambu Singh has got the present FIR registered Ex. PW3/A pursuant to the rukka which has been received by him through PW 1. It is also relevant to state that no suggestion has been given to the IO that the recovery has been planted upon the accused. (25) The prosecution in the instant case has been able to establish that all the accused persons had in furtherance of their common intention administered a stupefying substance to PW 2 Smt. Ruchika in a glass of water pursuant to which she became dizzy; she had been forced by the accused persons to drink this glass of water containing this stupefying substance and this was with the intention to rob her of her belongings which they had managed to do so by taking away her gold jhumkas and also a sum of Rs.51/- which had been given by PW 2 at the asking of the accused.
(26) There is no doubt that there is no medical evidence in this case and the stomach wash/viscera of the complainant had not been taken but this is clearly for the reason that the complaint had been filed after three days of the incident, the incident having occurred on 05.11.02 and the complaint having been registered on 09.11.02, but as already discussed Supra the version of PW 2 is trustworthy, credible and there is also no suggestion given to her that she would be deposing falsely for some ulterior purposes either for some enmity against the accused persons or for any other motive and in these circumstances this court is inclined to accept this version of PW 2. In my view, the ingredients of offence under Section 328 IPC are clearly made out. (27) Under Section 354 of the IPC, the prosecution must prove (i) that the person assaulted was a female, (ii) that the accused assaulted or used criminal force to her, (iii) that he intended thereby to outrage her modesty, or that he knew it to be likely that he would thereby outrage her modesty. In this context, version of PW 2 is again relevant. She has in her first complaint stated that the accused had put his hand on her breast and all the accused persons had forcibly made her drink that glass of water which is corroborated by her version on oath in court wherein also she has stated that all the accused persons had forcibly made her drink that glass of water and her hands were caught hold by the accused persons and she was pressed near her breast and throat by all the accused persons and she was forced to drink the solution of water. The culpable intention of the accused is the crux of the matter and the reaction of the woman is irrelevant; the essence of a woman's modesty is her sex; modesty in this section is an attribute associated with the female human beings as a class; it is a virtue which attaches to a female owing to her sex. AIR 2004 SC 1497 Aman Kumar Vs. State of Haryana is relied upon.
(28) In a judgment of the Hon'ble Apex Court reported in Tarkeshwar Sahu (2006) 8 SCC 560. In 1999 Cr. L.J. 2820 Himachal Pradesh Vs. Ram Dass it has been held that where the accused forcefully held the breast of the prosecutrix and the act of the accused was described by prosecutrix immediately after the occurrence and corroborated by evidence of witnesses, the conviction was right under Section 354 of the IPC.
(29) In AIR 2004 SC 536 Vidyadharan Vs. State of Kerala it was held by the Hon'ble Apex Court that intention is not the sole criteria of the offence punishable under this Section and it can be committed by a person assaulting or using criminal force to any woman, if he knows that by such act the modesty of the woman is likely to be affected. (30) In this case, in my view, the ingredients of the offence under Section 354 IPC are clearly made out against all the accused persons.
(31) Under Section 380 of the IPC there must be theft in any building, tent or vessel which is used as a human dwelling. The argument of ld. defence counsel that the ingredients of Section 380 IPC are not made out as the theft had not occurred in a dwelling house, is not a cogent argument; the offence had occurred in H. No. 149/1 Kilokari Ring Road, 1st Floor, Maharani Bagh, New Delhi which was the office maintained by the Baba from where the subsequent recovery of the gold jhumkas had also been effected from A-1; the victim PW 2 had been robbed of her gold jhumkas in this human dwelling. In my view, the ingredients of Section 380 IPC are also established against all the accused persons. (32) Under Section 506 of the IPC if the accused persons criminally intimidated the victim threatening her with death or grievous hurt, the ingredients of Section 506 Part II IPC are made out. In this context, the version of PW 2 is categorical in her first complaint wherein she has stated that the accused persons had told her that if she discloses the incident to anybody they would kill her and destroy her family; if she did not drink that glass of water, her family would be wiped out. This has been reiterated by PW 2 in her version on oath in court and she has not shifted her stand. In my view, the ingredients of Section 506 IPC are also clearly made out against all the accused persons.
(33) Accused No. 1 Makisu has also been separately charged for offence under Section 411 of the IPC i.e for having found in possession of stolen article and dishonestly retaining the same. In this case it was accused Makisu along with other co accused persons who had robbed the complainant of her gold jhumkas and accused Makisu was fully aware of the fact that it was a stolen article and he had retained the same pursuant to which this stolen article was recovered on 10.11.02 from under the seat of A-1 in the presence of PW 2 by PW 4 the IO and PW 1 and taken into possession vide recovery memo Ex. PW1/K. Ingredients of Section 411 IPC are also made out against accused Makisu. (34) Testimony of DW 1 is neither here nor there; it does not in any manner come to the aid of the accused persons. (35) In view of the aforesaid discussion, in my view, prosecution has been able to prove its case against the accused persons beyond reasonable doubt.
(36) All the accused persons are convicted under Section 328/354/380/506/34 IPC. Accused Makisu is also convicted under Section 411 IPC.
(37) For arguments on the point of sentence, to come up on 22.5.08.
Announced in the open court 21.5.08 (INDERMEET K. KOCHHAR) ADDL. SESSIONS JUDGE, NEW DELHI IN THE COURT OF MS. I.K. KOCHHAR, ASJ, NEW DELHI SC NO. 168/05 FIR No. 458/2002 U/S 328/380 IPC PS S.N. Puri State Vs. (1) Makisu S/o Basir, R/o Vill Asaladpur, Farkh Nagar, P.S. Sahibabad, UP (2) Md. Isaf S/o Mulla Mulla Ji Akhtar, R/o Vill. Murad Nagar, Distt. Ghaziabad (3) Irfan Ali S/o Noora R/o Sidhawali, P.S. Kakar, Distt. Meerut, U.P. 22.5.2008 Pr: APP for the State All convicts are produced in JC Cl. Sh. Kuldeep Mansukhani for Convict No. 1 & 2 Cl. Sh. Girish Sharma for convict No. 3 ORDER ON SENTENCE Vide judgment dated 21.5.08 all the accused persons have been convicted under Section 328/354/380/506/34 IPC. Accused Makisu has also been convicted under Section 411 IPC.
Under Section 328 IPC the punishment prescribed is imprisonment for 10 years and fine.
Under Section 354 IPC the punishment prescribed is imprisonment for 2 years or fine or both.
Under Section 380 IPC the punishment prescribed is imprisonment for seven years and fine.
Under Section 506 IPC the punishment prescribed is imprisonment for two years or fine or both and if threat be to cause death or grievous hurt, it is punishable with imprisonment of either description for a term which may extend to seven years or with fine or both.
Under Section 411 IPC the punishment prescribed is imprisonment for three years or fine or both.
On behalf of convict No. 1 Makisu and convict No. 2 Mohd. Isaf arguments have been addressed by counsel Mr. Kuldeep Mansukhani. It is argued that both the convicts are religious leaders and infact they have been practicing Kuran Sharif and they have both large families to support and they are the only male members in their families, convict Makisu having 7 children and convict Mohd. Isaf having 5 children and keeping in view the fact that they have already suffered trauma of a long protracted trial of six years, a lenient view be taken at the time of awarding the sentence.
On behalf of convict No. 3 Irfan Ali arguments have been addressed by counsel Mr. Girish Sharma. It is argued that he is 26 years of age and there is no other person to look after the family; he is the only male member in the family; he is innocent victim of circumstances and he has already remained in jail for about two and a half months and keeping in view the fact that he has already suffered trauma of a long protracted trial of six years, a lenient view be taken in the award of sentence.
On behalf of the prosecution, it is stated that the accused persons have been guilty for the offence for which they have been convicted and keeping in view the serious nature of the offence and such like crimes being on rise, the sentence awarded to the convicts should be sufficient to meet the ends of justice.
Arguments have been heard on the point of sentence. In this background, I sentence all the convicts as follows:
Under Section 328/34 IPC, all the convicts are sentenced to undergo RI for four years and to pay a fine of Rs.500/- each. In default of payment of fine, the defaulter shall undergo SI for one year.
Under Section 354/34 IPC, all the convicts are sentenced to undergo RI for one year.
Under Section 380/34 IPC, all the convicts are sentenced to undergo RI for two years and to pay a fine of Rs.300/- each. In default of payment of fine, the defaulter shall undergo SI for six months.
Under Section 506 part II/34 IPC, all the convicts are sentenced to undergo RI for three years.
Convict Makisu is also sentenced to undergo RI for 18 months under Section 411 IPC.
All the sentences shall run concurrently. Benefit under Section 428 Cr.P.C be given to all the convicts. File be consigned to record room.
Announced in the open court 22.5.08 (INDERMEET K. KOCHHAR) ADDL. SESSIONS JUDGE, NEW DELHI