Delhi District Court
State vs Pankaj Rana S/O Dharambir Rana, on 14 September, 2010
IN THE COURT OF MS. NISHA SAXENA: ADDL. SESSIONS
JUDGE05(NE): KARKARDOOMA COURTS: DELHI.
SC No.171/10
Date of institution:06.8.2007
Date of transfer:12.3.2010
Date on which reserved for orders:13.9.2010
Date of delivery of order:14.9.2010
State vs Pankaj Rana s/o Dharambir Rana,
R/o B262, Gali No.9, Phase10,
Shiv Vihar, Karawal Nagar, Delhi94.
FIR No. 234/07
PS Bhajan Pura
U/s 328/379/411 IPC
JUDGEMENT:
1. The instant case is based on the complaint lodged by one Surya Kant Ruhela dated 31.5.2007, wherein he stated that he was employed as a Sales Executive with ING Vaishya Bank, C1, Yamuna Vihar. That on 29.5.2007, at about 4.45 P.M., the accused who is living in the neighbourhood of the complainant, called him up on telephone and asked him to come out of the bank as he wanted to speak to him. He informed his colleague Naresh Kumar and told him that he would be back soon. He alongwith his bag came out of the bank and met Pankaj Rana who asked him to start his motorcycle. When they reached C4 Yamuna Vihar, at about 5.15 P.M. near Jet King Computer Institute, accused Pankaj Rana asked him to park his motorcycle and when he was parking his motorcycle, he made him smell something and as soon as he smelled the same, he fell unconscious. When he regained his consciousness, he found that the accused had taken away his mobile phone bearing FIR No.234/07 1/16 No.9868383450, his motorcycle bearing No.DL7SAG5735 and a black bag which contained valuable documents, two diaries, his identity card, a bank file, a cheque of Rs.6000/ issued by a customer and Rs.5000/ cash. He tried to trace him out. He went to the house of accused and enquired from his family members despite which the accused could not be traced. He urged for taking legal action against the accused. The investigation was marked to one H.C. Vijender Tomar who took the complainant to the spot and at his instance prepared site plan. He tried to trace out the accused and the articles stolen but could not find the same. However, on 4.6.2007, at the instance of the complainant, the accused was apprehended from a place near Nanaksar bus stand, Wazirabad Road. On his search, from the right pocket of his pants, the mobile phone belonging to the complainant make Samsung was recovered. He also disclosed that he had parked the motorcycle belonging to the complainant on the Wazirabad road leading to Pantoon Pull and got recovered the motorcycle as also a black bag hidden near bushes. The bag was containing few documents, two diaries of black and blue colour, a cheque of Rs.6000/ and an identity card. He also disclosed that he had spent Rs.5000/. He pointed out the place of occurrence. The recovered articles were given to complainant on superdari and after completing necessary formalities, chargesheet was filed against accused u/s 328/379/411 IPC.
2. Necessary copies were supplied to the accused in compliance of the provision u/s 207 Cr PC. On finding a prima facie case, charge u/s 328/379/411 IPC was framed against the accused to which he pleaded innocence and claimed trial.
3. To bring home the guilt of the accused, prosecution has examined FIR No.234/07 2/16 five witnesses.
PW1 is Sh.Surya Kant Ruhela, the complainant, who stated that on 31.5.2010, he alongwith his parents went to Police Station Bhajan Pura and lodged the FIR Ex.PW1/1. He accompanied the IO to the spot where IO prepared site plan Ex.PW1/2 on his pointing out bearing his signatures at point A. On 4.6.2007, he again joined the investigation. On his pointing out, the accused was apprehended. On the search of the accused, his mobile phone was recovered and was taken into possession by the IO vide memo Ex.PW1/3. Accused was interrogated and during the course of interrogation, he made disclosure statement vide Ex.PW1/4. The accused also got recovered his motorcycle which was taken into possession vide memo Ex.PW1/5 bearing his signatures at point A. The bag was also recovered from near the bushes and was seized vide seizure memo Ex.PW1/6 bearing his signatures at point A. The accused was arrested vide arrest memo Ex.PW1/7 and his personal search was conducted vide memo Ex.PW1/8. The accused pointed out the place of occurrence and the pointing out memo was prepared vide Ex.PW1/9. He proved the mobile phone, motorcycle, I Card and a diary recovered from the accused as Ex.P1 to P4. He also proved the cheque amounting to Rs.6000/ as Ex.P5 and office bag of black colour and diaries numbering two as Ex.P6 collectively.
PW2 is H.C. Sita Ram. He joined the investigation on 4.6.2007. PW3 is H. C. Vijender Tomar, IO of the case.
PW4 is ASI Krishan Dutt who recorded the FIR Ex.PW1/1. PW5 is H.C. Yashvir . He produced a register No.19 showing the entries in respect of deposition of case property in malkhana on 4.6.2007. The photo copy of the entry running into three pages is proved as Ex.PW5/A. FIR No.234/07 3/16
4. Statement of accused was recorded u/s 313 Cr.P.C. in which he denied the prosecution case and pleaded innocence. He stated that he has been falsely implicated in the case. Police visited his home without any reasonable cause and when he went to enquire why they had visited his house, he was detained by the IO in Police Station for two days. He further stated that he has been falsely implicated in the present case.
5. In defence two witnesses have been examined.
DW1 is Ratna Devi, mother of the accused, who has also stated that police reached their residence in the absence of accused 2 / 3 times. When the accused went to enquire about the same from Police Station he was detained in the Police Station and thereafter the police demanded Rs.25,000/ which they refused to pay.
DW2 is Neeraj Rana, brother of the accused. He has also corroborated his mother and stated that when they went to enquire from the police as to why the police was visiting their residence, Pankaj Rana was detained by the police and thereafter a sum of Rs.25,000/ was demanded.
6. I have heard Addl. PP for the state and counsel Mr.Mahesh Kumar Sharma for the accused and gone through the entire record.
7. The testimony of PW1 Surya Kant Ruhela is very significant. He stated that he was doing the job in ING Vaishya Bank, situated at C 1/19A, Yamuna Vihar. On 29.5.2007, at about 4 P.M., he was present in the said bank when he received a call from accused Pankaj Rana who asked him to come out of the bank premises. He disclosed the fact to his colleague Naresh Kumar and thereafter came out of the bank. At that time, he was carrying his office bag containing some documents. Accused told him that, "motorcycle lekar chalo, koi jaruri baat karni hai." Thereafter, he started his motorcycle and accused sat on the pillion seat FIR No.234/07 4/16 of the motorcycle. When they reached C4 Yamuna Vihar, near Jetking Computer Institute, accused asked him to park his motorcycle in the side on service lane. As soon as he was parking his motorcycle, accused put handkerchief on his nose and on smelling it, he became unconscious. Counsel for the accused has contended that the testimony of PW1 Surya Kant Ruhela is not inspiring any confidence as in his examination in chief he stated that as soon as he was parking his motorcycle, accused put handkerchief on his nose and on smelling it, he became unconscious while in his cross examination he has stated that when he reached the spot, he parked the motorcycle in the service lane and talked to the accused for 2/3 minutes prior to the occurrence. He saw the accused taking out handkerchief from his pocket. The colour of the handkerchief was of dark cream colour and as soon as the accused took out the handkerchief from his right side pocket of the pant and raised hand towards him, he became unconscious.
8. In his cross examination he has not stated that the handkerchief was put on his nose while in his examination in chief he has stated that accused put his handkerchief on his nose. It has been contended by Counsel for the accused that there is no medical evidence on record to show that any poison intoxicating or unwholesome drug was found to be administered to the complainant. That there is no medical evidence on record and IO of the case has categorically stated in his cross examination that the complainant refused for medical examination and therefore, the accused has been falsely implicated by the complainant in connivance with the IO. To demand conviction for an offence u/s 328 IPC, prosecution needs to prove: FIR No.234/07 5/16 (1)That the substance in question is a poison or any intoxicating or unwholesome drug;
(2)That the accused administered the substance to the complainant (3)That he did the above act 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.
9. I find force in the contention of the counsel for the accused. There is contradiction on the point as to in what manner the accused made the complainant unconscious. There is no substantial evidence on record to suggest that any such thing was administered to the complainant. There is no medical evidence and there is no effort on the part of IO to trace out the handkerchief. Otherwise also the incident happened in a broad day light around 4 P.M. and it is not possible that people would not have noticed such an incident, had it happened. Therefore, I am of the view that the accused deserves to be acquitted for the offence u/s 328 IPC.
10. PW1 Surya Kant Ruhela has also stated that when he regained his consciousness ,he found that his mobile phone No.9868383459 make Samsung which was in the pocket of his shirt, his motorcycle, his office bag containing two diaries, I card, one cheque of Rs.6000/, cash amount of Rs.5000/ and some documents were missing. Thereafter he went to his house on cycle rickshaw. Since he was not fully conscious and was feeling giddiness, he went to sleep. In the morning, he disclosed all the facts to his parents. Thereafter, he alongwith his parents went to the house of accused, but accused was not found there, however, his mother met them and she told that accused was not coming to the house for the last two days. They tried to trace the accused but could not trace him out. On 31.5.2007, he alongwith his parents went to Police Station Bhajan FIR No.234/07 6/16 Pura and lodged the FIR. It has been contended on behalf of the defence that there has been a delay of two days in reporting the incident to the police. The incident took place on 29.5.2007 and FIR has been lodged on 31.5.2007 without any explanation of delay in lodging of the FIR. Ld. Defence Counsel has contended that it not believable that after the complainant regained consciousness he did not inform the police and rather went straight to his house without disclosing the incident to anyone including his family members which clearly raises a doubt in the mind that no such incident took place and the accused has been falsely implicated. He has also contended that though the complainant stated that on 31.5.2007, he alongwith his parents went to Police Station Bhajan Pura and lodged the FIR but the prosecution has not cited the parents of the complainant as the witnesses which raises a doubt about the prosecution story.
11. On behalf of the prosecution it has been contended that delay in lodging in FIR has duly been explained by the prosecution. The incident took place on 29.5.2007 around 4 P.M. and due to some intoxicating substance the complainant fell unconscious and after he regained consciousness he went home on a rickshaw. As he was feeling giddy, he did not disclose the matter to his family members and went to sleep. In the morning he disclosed all the facts to his parents. Thereafter, he alongwith his parents went to trace out the accused. Since the accused was known to him prior to the incident, he did not think it fit to immediately lodge a complaint against him for the aforesaid offences. She has also contended that it is not quantity of the witnesses but quality of the witnesses that matters and even if the prosecution has not examined the parents of the complainant, the conviction can be based on FIR No.234/07 7/16 the solitary evidence if found reliable. She has relied upon 2004 I AD (Cr.) S.C. 337. However, with due deference, the facts in the above noted case are totally different and are not applicable to the present facts and circumstances.
12. Further it is stated by PW1 Surya Kant Ruhela that on 4.6.2007, he again joined investigation of the case with the IO and went towards Sonia Vihar from Police Station Bhajanpura and reached Nanaksar bus stop. They saw accused standing there. He told the IO about this and on his pointing out, accused was overpowered. Search of the accused was taken by the IO and from his search, his mobile phone was recovered from the right back side pocket of his pants. Counsel for the accused has contended that before conducting search of the accused, IO did not offer his search and no public witness was joined in which raise doubt about the prosecution story. The accused on 4.6.2007, is stated to have been apprehended from a place near Nanaksar bus stop and it cannot be said that there was no public witness at the bus stop and the prosecution has come out with a routine type of excuse that the witnesses were asked to join in but they refused.
13. It is further testified by PW1 that thereafter the accused was interrogated and during the course of interrogation, he made disclosure statement. He led the police party towards Pantoon Pull, kacha raasta from Wazirabad Road and got recovered his motorcycle from there. Accused also got recovered his office bag from the bushes near the place of recovery of motorcycle. The bag was checked and it was found containing his I card, two diaries, one cheque of Rs.6000/ and other documents. The accused was arrested by the IO. It has also been contended that PW1 has stated that prior to the incident, he had no FIR No.234/07 8/16 quarrel or any enmity with the accused. Accused used to reside in his neighbourhood and he met the accused in the marriage of his friend and he met the accused about 1012 days prior to the date of incident. Ld. Counsel for the accused has pointed out to the testimony of the defence witnesses. DW1 mother of the accused and DW2 his brother have stated that there was a dispute between the accused and the complainant on the issue of an amount of Rs.5000/ taken by the complainant for getting sanctioned a loan in favour of the accused and his family members. The police officials visited their house in absence of accused and when he went to inquire to the Police Station he was detained in Police Station and police officials demanded Rs.25,000/ and when they refused accused was falsely implicated in the present case. The defence witnesses are to be treated on the same pedestal as the prosecution witnesses. No doubt the defence witnesses often lie but so do the prosecution witnesses and therefore, each witness has to be judged on the basis of his deposition. It is stated that these charges have been falsely foisted on the accused due to dispute between the complainant and the accused on an amount of Rs.5000/ and since there was a motive to falsely implicate the accused, the prosecution cannot be believed.
14. PW1 Surya Kant Ruhela has also stated that on the date of incident when he reached the spot, no person or vehicle was passing through the spot at that time. There was a bank at some distance from the spot. Residential houses were also near the spot. It is not possible that at 5.15 P.M. at a place where the residences are located, where there is a bank nearby, no person or vehicle would be seen. He has stated that he remained unconscious for about 1/2 hour and he himself got up. When he regained consciousness, rickshaw pullers were standing at some FIR No.234/07 9/16 distance. He talked to them but they disclosed nothing to him. It is absolutely unbelievable that a person would lie on a road unconscious for about 1/2 an hour and a crowd would not gather there or not even a single person would come to help him, it raises a serious doubt in the prosecution story. He has further stated that first thing which he did after regaining consciousness was to give a ring on his mobile phone from a PCO booth at a distance of 300400 meters but he did not remember the name and style of the said PCO booth. He made a call from the landline but he did not remember the exact time of the call made by him. IO has not even bothered to procure the record of the calls of the mobile phone to substantiate the prosecution case. The person at the PCO booth has also not been made a witness. PW1 has stated that he made a call on his mobile phone. the bell rang and it was received but none replied and after sometime the phone went switched off. After the incident on the next day, the complainant did not go to the office and after waking up in the morning he narrated the incident to his family members and then to his boss Mr. Ramesh Sinha, but he has also not been made as a witness to the case nor his colleague Naresh Kumar whom he had informed before leaving ING Vaishya Bank has been made a witness.
15. The witness PW1 Surya Kant Ruhela has also stated that he went to Police Station. alongwith his father on 31.5.2007 in the morning. He gave application in writing to the police and thereafter police registered the FIR. They remained at the Police Station for the whole day. Police obtained his signatures on the documents prepared by the police but he did not remember the number of papers upon which he had appended his signatures. Though PW1 has said that he went to Police Station alongwith his father on 31.5.2007 in the morning and got the FIR FIR No.234/07 10/16 registered, however, the testimony of the witness who recorded the FIR is completely different. PW4 ASI Krishan Dutt has stated that complainant was alone at the time of lodging the FIR. Therefore, he has not corroborated PW1 that he was accompanied by his father when he went to Police Station to lodge FIR. PW4 ASI Krishan Dutt further stated that the complainant furnished the reason for delay in lodging the FIR as mentioned in the FIR . It took him one hour in recording the FIR. He has also stated that at 8.10 P.M., he recorded the FIR No.234/07 on the basis of the statement given by complainant Surya Kant Ruhela. Though PW1 says that it was morning. It had taken him one hour in recording the FIR. He recorded the statement of complainant in his hand and thereafter the same was reduced to FIR through computer. The complainant had not given any hand written statement which is in contrast to the statement of PW1 Surya Kant Ruhela wherein he stated that he made an application in writing to the police and thereafter police registered the FIR.
16. PW1 Surya Kant Ruhela has stated that he went with the police on 4.6.2007 to the Nanaksar bus stop. They reached there at about 6 P.M. He admitted that at that time public persons were passing from there on their vehicles. He alongwith two other police officials was on motorcycle. They reached at Nanaksar bus stop where he saw the accused and told the police officials about the same. Accused was standing alone at some distance from the Nanaksar bus stand and passengers were also standing at the said bus stand. Police officials dropped him opposite the Nanaksar bus stop and they reached the Nanaksar bus stop after taking U turn. He reached Nanaksar bus stand when the police officials had apprehended the accused. Though the accused was apprehended at a public place, however, no public witness was joined in at the time of arrest which is a FIR No.234/07 11/16 serious flaw in the prosecution story.
17. He has further stated that the accused was having injury on his hand tied with a handkerchief and blood was oozing out of the same when he was apprehended by the police. Accused was under the influence of liquor at that time. It has also been contended that prosecution has not explained the injuries found on the person of the accused and the prosecution has no where mentioned in the entire story about this fact and concealed the same which is fatal for the prosecution case as there are number of judgments on the point that non disclosure of injuries on the person of accused is fatal for the case of the prosecution. I find myself in agreement with the contention that non disclosure of injury on the person of accused creates a suspicion in the prosecution story.
18. PW1 Surya Kant Ruhela has further stated that police recovered his mobile phone from the pocket of the accused and did the writing work at the spot. Seizure memo of mobile phone was prepared by the police at the spot. The mobile phone was recovered from the right side back pocket of the pants of the accused. The police officials interrogated the accused at the spot. Accused led the police party to the Pantoon Bridge from where motorcycle and bag were recovered at the instance of the accused. One police official prepared the documents and the other police officials namely Sita Ram put his signatures thereon. Police officials asked 2/3 persons standing at the bus stand to join the proceedings but they refused. He has categorically stated that police officials did not offer their search to the accused prior to searching the accused and he also did not offer his search to the accused prior to the search of the accused. He further stated that he cannot tell the exact distance between Nanaksar bus stand and Pantoon Bridge. It took about 5/6 minutes to FIR No.234/07 12/16 reach Pantoon Bridge from Nanaksar bus stand. He admitted that public persons were passing through there. The motorcycle was parked by the side of the bushes by the side of the road of Pantoon Bridge. The said Pantoon Bridge was used by the cyclists. When he reached the spot, he saw his motorcycle and identified the same. The motorcycle was in damaged condition. The bag was taken out from the bushes in his presence from a distance of 40 ft. from the place where the motorcycle was recovered. At one place he has stated that public persons were passing from there. However, in his further cross examination he has stated that IO of the case did not ask any cyclists to join the proceedings. To improve upon his case, he further stated that no one was passing from there.
19. Counsel for the accused has contended that the recovery was effected from the public place near Pantoon Bridge Wazirabad Road and the place of recovery is a wide open place and the people freely come and go from the place and the place from where the recovery has been alleged is visible from the bridge and from the road. All the witnesses PW1, PW2 and PW3 have admitted that people were coming and going at the place where the recovery was effected and as per law the recovery from open place which is not in exclusive possession of the accused, is no recovery in eyes of law.
20. PW1 Surya Kant Ruhela has also stated that petrol was put in his motorcycle with the help of a plastic bottle. Accused was having a plastic bottle at that time. While other PWs have given a different version. PW2 H.C. Sita Ram has categorically stated in his testimony that there was no petrol in the motorcycle which was got recovered by the accused and after its recovery, some petrol was taken out from the FIR No.234/07 13/16 motorcycle of the I.O. with the help of the pipe and same was filled up in the tank of the motorcycle got recovered by the accused. There was a pipe and a plastic bottle in the dickey of the motorcycle of the I.O. and he cannot tell the size of the plastic bottle. Therefore, this witness has improved that the plastic bottle was with the IO while PW1 has stated that the accused was having a plastic bottle. On the other hand, IO of the case PW3 has come out with a totally new stand wherein he stated that there was no petrol in the motorcycle of the complainant and some of the petrol of his motorcycle was put in his motorcycle. They found one empty plastic bottle lying on one side and with the help of this bottle, the petrol from his bike was poured into the motorcycle of the complainant and he did not seize the said bottle. Therefore, there are different versions as to how the petrol was put into the motorcycle of the complainant.
21. During his cross examination, IO of the case stated that from the spot where the accused was arrested to the Pantoon Bridge, he was on motorcycle and complainant, accused and Const. Sita Ram were on foot. On the other hand PW H.C. Sita Ram has stated that from Nanaksar bus stand to the spot i.e. near Pantoon Bridge, Wazirabad Road, complainant Surya Kant went on the motorcycle and he and IO alongwith the accused reached there on foot which clearly indicates that neither IO nor PW2 visited the spot or joined the investigation at any point of time.
22. PW3 H.C.Bijender Tomar , IO of the case, has also categorically stated that the motorcycle which was recovered at the instance of accused was found in locked condition . Keys of the motorcycle were recovered from the personal search of the accused at Nanak Sar but he had not made any seizure memo of the keys at Nanaksar bus stand. The keys alongwith FIR No.234/07 14/16 the motorcycle were seized by him. He has not mentioned regarding the seizure of the keys in Ex.PW5/1. He stated that he had deposited the said keys in malkhana in Police Station Bhajan Pura. No where in the entire prosecution story, the keys of the motorcycle have come into picture even no seizure memo at any point of time was prepared by the IO and there is no explanation from the prosecution as to where did the keys come from. The keys were not deposited by the IO separately or with the motorcycle. It has been contended by the Ld. Counsel for the accused that motorcycle has been planted upon the accused by the IO at the instance of the complainant and the key as also the motorcycle was within the possession of the complainant and the same have been foisted on the accused by the complainant with the connivance of the police. Moreover, no signatures have been taken by the malkhana moharar at the time of receiving the case property which further creates a doubt whether the case property had been deposited or released to the complainant. PW5 H.C. Yashvir has categorically stated that in the instant case there are no signatures of superdar in register No.19 when the case property was released to him on superdari. He has also stated that generally the signatures of superdar are obtained in register No.19 when the case property is released on superdari to superdar. It has been contended that by Addl. PP that though there are defects in investigation but that cannot be made a ground for acquittal of the accused. She has relied upon AIR 2001 SC 142, wherein the court observed that the defective investigation cannot be made a basis for acquittal of the accused if despite such defects and failures of the investigation, a case is made out against all the accused or anyone of them.
23. On the other hand, the defence demands acquittal of the accused on FIR No.234/07 15/16 the ground that the prosecution has miserably failed to prove the case against the accused and the evidence on record does not establish the guilt of the accused and therefore, accused is entitled to have benefit of doubt.
24. In view of the above stated discussion, I am of the opinion that there is no credible evidence on record to show that the accused committed any of the aforesaid offences. There are too many unexplained inconsistencies in the evidence and it would be wholly unsafe to rely upon the said evidence of witnesses. There is considerable doubt not only about the presence of the accused at the place of occurrence but about the recoveries. With the prosecution story being riddled with inconsistencies and contradictions, it would be unsafe to convict the accused. Accordingly, accused is acquitted of the charges u/s 328/379/411 IPC. His previous bail bond cancelled and surety discharged. File be consigned to record room.
Announced in open court (Nisha Saxena)
Dated: 14.9.2010 Addl. Sessions Judge05(NE)
Karkardooma Courts: Delhi.
FIR No.234/07 16/16