Delhi District Court
State vs . 1. Naresh Gupta on 17 May, 2013
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 54/2013
Unique Case ID: 02404R0278292010
State Vs. 1. Naresh Gupta
S/o Bhagwan Swaroop
R/o E51, Indra Enclave
PhaseII Nangloi, Delhi.
(Convicted)
2. Suresh Sharma
S/o Dev Nandan Sharma
R/o E Block, Indira
Enclave, PhaseII,
Nangloi, Delhi.
(Acquitted)
FIR No. : 198/2010
Police Station : Adarsh Nagar
Under Section : 328/394/411/34 IPC
Date of committal to Sessions Court : 8.12.2010
Date on which orders were reserved : 29.4.2013
Date on which judgment pronounced : 15.5.2013
JUDGMENT
Brief Facts:
(1) As per the allegations on 6.8.2010 at about 2:30 PM near MCD Colony, Road No. 51, Adarsh Nagar, Delhi, the accused State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 1 of 55 Naresh Gupta and Suresh Sharma in furtherance of their common intention administered Lorajepan (a stupefying material) to Mohd.
Israr and thereafter robbed him of a cash amount of Rs.50,680/, some documents and mobile phone and while doing so voluntarily caused injury to Mohd. Israr by administering the aforesaid stupefying substance.
Case of prosecution in brief:
(2) The present case was registered on the statement of HC Ramesh Kumar wherein he reported that on 06.08.2010 he along with Ct. Raj Kumar were on patrolling duty and at about 1.00 PM while patrolling when they were passing through MCD Colony, Road No. 51, there was one person whose name they came to know Israr who after seeing them raised an alarm 'bachaobachao' on which they reached there and saw that two persons were standing near said Israr but one out of them ran away on seeing them and the other person whose name later on revealed to be Naresh Gupta remained standing there. HC Ramesh further told the Investigating Officer that the said Israr told him that Naresh who was present there along with his one associate who had ran away after seeing the police, had administered him some intoxicating substance in a cold drink Maaza and thereafter had removed his money and some documents. HC Ramesh Kumar further informed that thereafter he apprehended the State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 2 of 55 accused Naresh Gupta and his formal search was conducted and he was found in possession of 100 notes of denomination of Rs. 500/ each, 6 notes of denomination of Rs. 100/ each, one note of Rs. 20/ and 6 notes of denomination of Rs. 10/ i.e. total amount of Rs.
50,680/ and was also found in possession of bills, one railway ticket and other documents while the victim Ishrar was semi conscious. Thereafter, HC Ramesh Kumar made a call to the Duty Officer of Police Station Adarsh Nagar and after some time SI Lalit Kumar along with Ct. Vikram reached the spot and after some time, HC Ram Bharose also arrived on the spot who removed Ishrar to BJRM Hospital in a TSR.
(3) On the basis of the statement made by HC Ramesh Kumar, present FIR was registered. During investigations pursuant to the disclosure statement of accused Naresh Gupta the coaccused Suresh Sharma was arrested. After completing the investigations, the charge sheet was filed in the court.
CHARGE:
(4) Charge under Section 328/392/394/34 Indian Penal Code was settled against the accused to Naresh Gupta and Suresh Sharma to which they pleaded not guilty and claimed trial. State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 3 of 55
EVIDENCE:
(5) In order to discharge the onus upon it the prosecution has examined as many as twelve witnesses:
Public Witnesses:
(6) PW1 Madan Mohan has deposed that he is running the shop of Commission Agent at Subzi Mandi, Azad Pur. According to him he receives vegetables from outside Delhi and he received coriander from some traders of Bhopal Mandi and he made cash payments for the goods received by him to the traders. According to the witness on 06.08.2010, at about 11.00 AM, he made a payment of Rs.50,000/ to Mohd. Ahmed, a trader of Bhopal Mandi. He has further deposed that in the evening, he received telephone from Bhopal and they informed him that the said Mohd. Ahmed, who had received payment from him is lying unconscious in some hospital and they asked him to verify about the condition of Mohd. Ahmed. (7) Ld. Addl. PP for the State with permission of the court put a leading question to the witness regarding the name of trader wherein the witness has conceded that the name of said trader from Bhopal was Israr and has explained that he had forgotten his name because there are number of traders, with whom he is having business dealings.
(8) In his cross examination by Ld. Defence Counsel the witness has deposed that he is not having any direct dealing with State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 4 of 55 Israr. He has deposed that basically, Israr was the man sent by trader namely Azad from Bhopal to receive the payment. He has further deposed that prior to 06.08.2010, Israr had never come to receive the payment on behalf of Azad. According to the witness he had not seen any ID proof etc. of Israr, prior to making payment to him and has explained that he had made a call to Azad before handing over the payment to Isar and it was on confirmation by Azad that he is the same person, that he handed over the amount to him (Israr). The witness has deposed that he can tell the number of Azad on which he spoke with him from his mobile phone as that number is stored in the memory of his mobile phone. The witness has further deposed that he obtained the signature of Israr while making payment to him and he keep the photocopy of the same. According to the witness on 06.08.2010 in the morning when he reached his shop at about 6.00 or 7.00 AM, Israr was already there. He has deposed that he gave him a total amount of Rs.51,678/ and there was one bundle of 100 currency notes of denomination of Rs.500/ currency notes each and he does not remember the detail of the remaining amount and this payment was against two bills however does not remember the number of those bills. The witness has deposed that his employees were there on the shop, when he made the payment to Israr.
According to him after receiving telephonic call from Bhopal, he sent his employee Dharampal to a hospital situated at Jahangir Puri and State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 5 of 55 has voluntarily explained that after returning from the hospital, Dharampal reported to him that Israr was lying in the hospital unconscious. He has deposed that he received a call from Bhopal in the evening which may be around 7.00 or 8.00 PM but did not inform the police that Israr was admitted in the hospital. (9) PW3 Mohd. Israr is the victim. He has deposed that on 6.8.2010 as usual he had gone to Azadpur Subji Mandi fro collecting the payment and thereafter when he was coming out from the Mandi at about 11 AM one person has asked him as to where he was going on which he responded that he was going to Nizamuddin for offering prayers in a Masjid and from there he would go to Bhopal. The witness has deposed that the said person stated to him that he was also going to Nizamuddin on which he followed him but in the meantime the said person told him that it was very hot and told him to have a cold drink "Mazza". According to the witness one more person was also accompanying the said person and he gave him (witness) a Mazza cold drink as well as he (first person) along with his associate also took cold drinks. The witness has deposed that after cosuming the cold drink, he felt giddy (Chakkar so aane laga) on which he raised an alarm and called to police persons who were coming on a motorcycle and thereafter he became unconscious after which he does not know what had happened. According to him, he regained his consciousness in the hospital when his family members State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 6 of 55 were taken him out from the hospital. The witness has deposed that at the time of incident he was carrying Rs.50,680/, one mobile phone and some documents i.e. bills etc. According to him outside the hospital, police persons met him along with a person, who had offered him the cold drinks and he identified him. The witness has deposed that he also stated to the police that the other person was also roaming in the area, who was accompanying the accused Naresh. The witness has deposed that the accused Naresh Gupta is the same person who had offered cold drink to him and was accompanying the police persons outside the hospital. According to the witness police had seized the articles recovered from the possession of accused Naresh Gupta after sealing the same in a pullanda and said articles belongs to him. The witness has deposed that later on, he got released the cash and mobile phone from the court on superdari. He has further deposed that the said currency notes were got photocopied by the police and photocopies were kept by the police which photocopies are shown to the witness in the court who has correctly identified the same which are Ex.PW3/A. According to him on the day of incident he had collected the payment of Rs.50,000/ from Madan Mohan where coriander (Dhania) of his owner used to deliver to him on commission basis. The witness has correctly identified the bills and tickets Ex.P1. The witness has deposed that he is not sure whether the other accused State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 7 of 55 (i.e. Suresh Sharma) was the same person who was accompanying the accused Naresh Gupta at the time of incident. (10) With due permission of the court Addl. PP for the State put leading questions to the witness on the identity of the accused Suresh Sharma and the attention of the witness was drawn towards accused Suresh Sharma in the court and asked if he was the same person who was accompanying the accused Naresh on which the witness has stated that he may be the same person and has explained that because of lapse of time, he cannot identify Suresh with surety.
(11) In his cross examination by Ld. Defence Counsel the witness has deposed that he had not made any complaint to the police or any other authority about the loss of his mobile phone which he took on Supardari as it was an old mobile. According to him the police recorded his statement twice, first outside the hospital and thereafter in the police station on the next date of his discharge from the hospital. He has deposed that he remained in the hospital for about two hours. The witness has deposed that he worked with Azad Bhai at Bhopal Subzi Mandi and he reached Delhi at about 7 to 8 PM from Sampark Kranti and stayed in the Subzi Mandi in the night on the shop where he had to collect the payment. According to him he collected the payment in the morning at about 9 or 10 AM State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 8 of 55 and he left the shop at about 10:30 AM. He has deposed that Azad Bhai had not given him any slip for collecting the payment and has voluntarily explained that they had already talked with each other on telephone. He has further deposed that he signed some documents regarding receipt of payment. He has deposed that he consumed Mazza after about 30 minutes of leaving the shop and has clarified that the accused persons met him outside the main gate of Mandi and they were not known to him. He has explained that he along with both the accused moved ahead on the road while talking and after about 10 to 15 minutes, they gave him a Mazza after purchasing from a shop on the pretext that it was very hot and said Mazza was drunk by him. According to the witness while moving with him, the accused persons told him that their vehicle was coming and whatever fare, he had to pay in the bus and he may give it to them. The witness has deposed that the payment of Mazza to the shopkeeper was made by the accused persons. According to him within 2 to 4 minutes of consuming Mazza, the witness started feeling giddiness, he saw the police, he raised the alarm and police came there. The witness has deposed that the shop from where the Mazza was purchased, was situated in a street behind the bus stand on the opposite side of main gate of Subzi Mandi, Azadpur. According to him he was keeping the cash and documents in his bag which he was holding on his right hand. The witness has deposed that he regained State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 9 of 55 consciousness on the second day, but he is not sure, it was 7th August, when he regained the consciousness. According to the witness he had not noticed if any proceedings were recorded on the spot by the police. He has deposed that after the incident he visited the police station in the month of August. He has deposed that he had not pointed out the shop to the police from where the accused persons had purchased the Mazza however he had orally told the said place to them. The witness has denied the suggestion that the accused Naresh had not given him any intoxicating substance in Mazza or that he had not removed cash and mobile phone from his possession. According to him the witness has deposed that three police officials met him along with the accused outside the hospital after he was discharged. He has denied the suggestion that only one person was there who gave him the Mazza. The witness has explained that there were two persons, but one left away on seeing the police.
Medical Evidence:
(12) PW4 Dr. R. K. Singh has deposed that on 06.08.2010 he was posted as S.R. Medicine at BJRM Hospital, Delhi and on that day one unknown person aged about 55 years brought by HC Ram Bharose was medically examined by the Casualty Medical Officer Dr. Paliya with alleged history of unknown poisoning. According to him he examined the patient vide MLC No. 13451 and his notes on State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 10 of 55 the MLC Ex.PW4/A are encircled at point A bearing his signatures at point B. He has not been cross examined on behalf of the accused despite opportunity in this regard.
Police / Official Witnesses:
(13) PW2 HC Ramesh Kumar has deposed that on 06.08.2010 he was posted in Police Station Adarsh Nagar and on that day he along with Ct. Raj Kumar was on patrolling duty from 8.00 am to 8.00 pm on the govt. motorcycle bearing no. DL1SN4132 and at about 1.00 pm, during patrolling when they were passing through MCD Colony, Road no. 51, there one person whose name, he came to know Israr, raised alarm 'bachaobachao' after seeing them on which they reached there and saw that two persons were standing near the said Israr. According to the witness one, out of them, ran away on seeing the police and the other man, whose name later on revealed to be Naresh Gupta was standing there. The witness has deposed the said Israr told him that Naresh, who was present there along with his one associate who had ran away after seeing the police, had administered him some intoxicating substance in a cold drink Maaza and they had removed his money and some documents. According to the witness the accused Naresh was apprehended and his formal search was conducted and he was found in possession of 100 notes of denomination of Rs. 500/ each, 6 notes State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 11 of 55 of denomination of Rs. 100/ each, one note of Rs. 20/ and 6 notes of denomination of Rs. 10/ total Rs. 50,680/. The witness has deposed that Naresh Gupta was also found in possession of bills, one railway ticket and other documents. According to the witness the currency notes and documents except ticket were found in a yellow coloured envelop. The witness has deposed that the complainant Ishrar was under intoxication. The witness has deposed that he made a call to the duty officer of Police Station Adarsh Nagar from his mobile phone and after his call, SI Lalit Kumar along with Ct. Vikram reached the spot and after some time, HC Ram Bharose also arrived on the spot who along with Ct. Raj Kumar of Delhi Home Guard removed Israr to BJRM Hospital in a TSR. The witness has further deposed that SI Lalit Kumar made inquiries from Naresh Gupta as well as from him (witness) and recorded his statement Ex.PW2/A bearing his signatures at point A on the basis of which a rukka was prepared by SI Lalit Kumar which rukka was sent to the police station for registration of FIR through Ct. Vikram. The witness has also stated that the accused Naresh Gupta was arrested by SI Lalit Kumar vide arrest memo Ex.PW2/B and his personal search was conducted vide memo Ex.PW2/C. According to the witness SI Lalit Kumar put the currency notes and the documents along with the yellow envelop in a parcel of cloth, sealed it with the seal of LK and seized it vide memo Ex.PW2/D after which SI Lalit State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 12 of 55 Kumar prepared the site plan at his (witness) instance same is marked as Mark A. (14) Ld. Addl. PP for the State with permission of the court put some leading questions to the witness regarding mobile phone of Ishrar. The witness has admitted that Naresh Gupta also removed the mobile phone of Ishrar, which was also recovered from the possession of Naresh and SI Lalit Kumar put that mobile phone in the said pullanda, in which the currency notes and documents were put and same was seized vide seizure memo Ex. PW2/D. The witness has identified the accused as well as the case property in the court.
(15) In his cross examination by Ld. Defence Counsel, the witness has deposed that Ct. Raj Kumar was driving the motorcycle and they were coming at the spot after taking a U turn from the MCD Colony towards service road and they were crossing MCD Colony Road No. 51, it was about 1.00 pm. The witness has deposed that when they heard the voice of Israr, they were about 15 paces away from him and were both in Uniform. According to the witness he was carrying a service pistol with him, but Ct. Raj Kumar did not have any weapon. The witness has deposed that he chased the accused, who fled away from the spot, but could not apprehend him and that Naresh Gupta did not try to flee on seeing them and he along with Ct. Raj Kumar apprehended accused Naresh Gupta. The witness State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 13 of 55 has also deposed that no bottle of Maaza was found on the spot, though they searched for the bottle nearby. He has deposed that he made a call in the police station at about 1.10 pm and the Investigating Officer along with Ct. Vikram reached the spot within 10 minutes on his own motorcycle. The witness has deposed that about 60 to 70 public persons gathered at the spot and the Investigating Officer asked some of those public persons to join the proceeding, but none agreed but no notice in writing was given to those public persons asking them to join the investigation. The witness has deposed that Israr was removed from the spot at about 1.30 pm for the hospital and after recording his statement the Investigating Officer went to the hospital and thereafter he (Investigating Officer) prepared the site plan after he returned to the spot from the hospital at about 2.15 pm. The witness has deposed that he signed the seizure memo as witness, but he is not aware if any body also signed the seizure memo as witness. The witness has deposed that the accused Naresh was arrested at about 1.40 pm but he does not remember, if the Investigating Officer took the accused to the hospital along with him. He has deposed that he along with Ct. Vikram, Ct. Raj KumarDHG and SI Lalit Kumar were present, when the accused Naresh was arrested and he left the spot at about 1.45 pm. He has denied the suggestion that accused was not arrested in this case or that all the proceedings were recorded while sitting in State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 14 of 55 the police station. According to the witness after 06.08.2010, Investigating Officer never called him in the investigation of this case. He has denied the suggestion that disclosure statement of accused Naresh Gupta was not recorded at the spot in his presence or that nothing was recovered from the possession of the accused. (16) HC Ramesh Kumar further deposed that his statement was recorded only once and Investigating Officer started recording his statement at 1.10 pm and he took 15 minutes in recording his statement. According to him the Investigating Officer did not call anybody from the MCD Colony to join the investigation. He has deposed that Israr was shifted to the hospital from the spot at about 1.30 pm. According to him Israr became unconscious after about 20 minutes of their reaching at the spot however, he was under the intoxication. Witness has denied that the accused Naresh has been falsely implicated in this case at the instance of the Investigating Officer or that nothing was recovered from the possession of accused Naresh or that the accused was lifted from Azadpur, while he was purchasing tirpal.
(17) PW5 W/ASI Saroj Devi has deposed that on 06.08.2010 she was working as Duty Officer at Police Station Adarsh Nagar from 8.00 AM to 4.00 PM and at about 12.40 PM, HC Ramesh informed through telephone that at Road No.51, near MCD Colony and Ganda Naala that, "Ek Aadmi Ko Nashili Cheez Khila Rakhi Hai, State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 15 of 55 Jo Ek Vyakti Ko Maine Mauke Par Pakad Rakha Hai". According to the witness she got recorded DD No. 29A and the same was assigned to SI Lalit and information also furnished to HC Ram Bharose through telephone attested copy of the said DD No. 29A is Ex.PW5/A. The witness has deposed that on the same day Ct. Vikram brought a rukka, sent by SI Lalit for registration of FIR on which she got recorded the FIR through Computer Operator and it is a correct version of rukka copy of which FIR is Ex.PW5/B. She has also made endorsement on the rukka vide Ex.PW5/C. This witness has not been cross examined on behalf of the accused despite opportunity.
(18) PW6 HC Ram Bharose has deposed that on 06.08.2010 he was on emergency duty from 8.00 AM to 8.00 PM and at about 12.45 noon, Duty Officer telephoned him to reach Road No.51, as one person was lying there unconscious on which he immediately reached there and found that SI Lalit with staff i.e. Ct. Vikram, HC Ramesh and Ct. Rajkumar, DHG, already present there and SI Lalit directed him to removed the person lying unconscious there to the hospital and he immediately removed him to BJRM Hospital and got him admitted there. The witness has deposed that he tried to ask the name and address from the injured, but he was in semi conscious condition and could not tell. According to the witness he was got admitted with the name of unknown and the doctor handed over one State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 16 of 55 sealed parcel containing the gastric lavage of the injured along with sample seal. The witness has deposed that after some time SI Lalit also reached there and he (witness) handed over the sealed parcel and sample seal to him who seized the same vide memo Ex.PW6/A and thereafter he along with SI Lalit returned back to the spot. The witness has deposed that he joined the investigation of this case with SI Lalit and the accused Naresh Gupta was arrested vide memo Ex.PW2/G and his personal search was conducted vide memo Ex.PW2/C. The witness has further deposed that the Investigating Officer recorded disclosure statement of Naresh, which is Ex.PW6/B and also seized case property i.e. Rs.50680/, some papers and mobile phone by turned it into parcel and sealed it with the seal of LK, vide seizure memo Ex.PW2/D. The witness has correctly identified the accused Naresh in the Court.
(19) In his cross examination by Ld. Defence Counsel, the witness has deposed that his statement was recorded at the spot, but he does not remember the time and has clarified that it was recorded in the afternoon. According to the witness he immediately left the spot along with the injured in a TSR and one DHG and Ct. Vikram also accompanied him and it took him about 1015 minutes to reach BJRM Hospital and the injured was under pain and was unable to speak. The witness has denied that he signed all the documents, while sitting at police station or that he did not receive any call from the State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 17 of 55 Duty Officer, or that he had not visited the spot. (20) PW7 Ct. Gurjeet has deposed that on 08.08.2010 in the morning, accused Naresh was taken out from the lock up of the police station and he was fit and was under his custody and thereafter, he along with SI Lalit Kumar and the accused Naresh left the police station in search of coaccused Suresh. According to the witness first of all, they went to New Azad Pur Subzi Mandi at the instance of accused Naresh, but the accused Suresh was not traceable there and thereafter, accused Naresh took them to Jahangir Puri, near BJRM Hospital where Mohd. Israr, complainant met them who told that associate of accused Naresh Gupta is standing at the bus stand, near BJRM Hospital. The witness has deposed that they reached there at the instance of complainant and the accused Naresh and apprehended one person who disclosed his name as Suresh Sharma and he was arrested vide memo Ex.PW7/A his personal search was conducted vide memo Ex.PW7/B and he was interrogated and he made disclosure vide memo Ex.PW7/C. The witness has deposed that the investigating officer recorded his statement as well as statement of complainant. The witness has deposed that the complainant Mohd. Israr also signed the memos at point B in his presence. The witness has correctly identified the accused Naresh and Suresh in the Court.
State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 18 of 55 (21) In his cross examination by Ld. Defence Counsel, the witness has deposed that the accused Naresh was taken out from the lock up after 9.00 AM, but he does remember exact time due to lapse of time. He has deposed that they reached New Subzi Mandi Azad Pur within five to seven minutes and since the accused Naresh told that he can get arrested his coaccused Suresh, that's why, they left the police station in search of accused Suresh and remained at New Subzi Mandi, Azad Pur, for about two hours and tried to search the coaccused Suresh and thereafter went to BJRM Hospital, Jahangir Puri at about 11.45 AM and tried to search accused Suresh there. Witness has admtited that they left the police station in search of accused Ramu and has voluntarily added that Suresh is also called by the name of Ramu and they arrested accused Suresh @ Ramu. Witness has denied that accused Suresh was lifted from his house on 07.08.2010 or that he was not arrested from the bus stand. (22) In his further cross examination by Ld. Defence Counsel the witness (PW7) has deposed that while leaving the police station, the investigating officer made departure entry, but today he does not remember its number. He has deposed that the distance between police station and Azad Pur Subzi Mandi was less than ½ KM and the Gypsy was driven by Ct. Mrityunjay, Driver. According to the witness the complainant met them outside near the gate of BJRM Hospital and prior to meet complainant, he is not aware if the State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 19 of 55 Investigating Officer had already spoken to him. He has denied the suggestion that he never joined the investigations, or that accused Naresh was never taken out from the lock up, or that he never joined the investigation of this case.
(23) PW8 HC Laxmi Narain has deposed that on 06.08.2010, SI Lalit Kumar deposited Rs.50,680/, some documents and mobile phone along with sealed parcel of gastric lavage and sample seal along with personal search of the accused persons vide entry at Sl. No.3692A in Register No.19 copy of which is Ex.PW8/A. The witness has further deposed that on 27.09.2010 sealed parcel of gastric lavage along with one other parcel containing the tables, was sent to FSL through Ct. Manoj vide RC No.97/21 vide entry at point X on Ex.PW8/A. According to him on 01.02.2011, ASI Ompal deposited two sealed parcels along with FSL Result which result was handed over to the Investigating Officer and he made entry in this regard at point Y on Ex.PW8/A. The witness has deposed that on 12.08.2010, SI Lalit Kumar deposited sealed parcel, containing the tablets and he made entry in this regard at Sl. No.3701 in Register No.19 copy of which entry is Ex.PW8/B. The witness has brought the RC register to the court containing RC No.97/21 copy of which is Ex.PW8/C and the receipt of the FSL is Ex.PW8/D. He has not been cross examined on behalf of the accused persons despite opportunity.
State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 20 of 55 (24) PW9 Ct. Manoj Kumar has deposed that on 27.09.2010 he collected two sealed parcels and sample seal from the MHC (M) for depositing the same to the FSL, Rohini and after deposing the same at FSL Rohini vide RC No.97/21/10 he handed over the receipt to the MHCM which RC is Ex.PW8/C and receipt issued by FSL Ex.PW8/B. (25) In his cross examination by Ld. Defence Counsel the witness has deposed that his statement was recorded on 27.09.2010 in the police station and the DD entry was made regarding his departure and arrival by the duty officer, but he personally did not make his departure entry or arrival entry. According to him he did not sign Register No.19 at the time of receiving the case property. He has denied that he did not take the sealed pulandas along with him for depositing the same in the FSL.
(26) PW10 Ct. Krishan Kumar has deposed that on 12.08.2010 he along with SI Lalit Kumar reached Rohini Courts where the Investigating Officer moved an application before the Court for obtaining the Police Custody Remand of accused Suresh Sharma @ Ramu which was granted and thereafter accused Suresh Sharma was taken to BSA Hospital for his medical examination and there his medical examination was got conducted. The witness has deposed that thereafter the Investigating Officer interrogated the accused and accused led them to under Azad Pur Flyover, on the way State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 21 of 55 leading towards Azad Pur to Mukund Pur from where the accused lifted one plastic Panni of Dilbag Gutka, which was lying under brick and it was found containing one packet of ten tablets, having only six tablets in the same and four were empty and the accused informed them that four tablets were given to the victim after mixing the same in the Mazaa cold drink and thereafter, he along with his associate namely Naresh Gupta, committed theft of the money and mobile phone of the victim.
(27) The witness has further deposed that the accused Suresh Sharma also disclosed that Rs.50,680/ were stolen from the person of victim and his mobile phone was also stolen and the stolen articles had been handed over to coaccused Naresh Gupta. The witness has further deposed that the accused Suresh further disclosed that when the victim raised hue and cry, police came to the spot thereafter he (Suresh) succeeded in escaping while Naresh was apprehended by the police along with the robbed articles. The witness has deposed that Investigating Officer had prepared the pullanda of the recovered tablets and sealed with the seal of LK and thereafter the same were seized vide Memo Ex.PW10/A. The witness has correctly identified the tablets allegedly recovered from the accused Suresh which are Ex.P2.
(28) In his cross examination by Ld. Defence Counsel the witness has deposed that on 12.8.2010 he was on duty from 8 am to 8 State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 22 of 55 PM and he left the police station at about 9 to 9:30 AM and went to Rohini Court for obtaining the Police Custody remand of the accused. According to the witness the disclosure statement of accused was recorded under the Azadpur Flyover where the Investigating Officer made request to public persons to join the proceedings but none came forward and left the spot however none of the shopkeeper was called by the IO. According to the witness he did not notice the manufacturing date and expiry date over the blister pack at the time of recovery. He has deposed that the tablet was Larpose2 but he is unable to tell the name of company. He has denied the suggestion that he did not join any investigations as deposed by him or that the recovery has been planted upon the accused. He has further denied that the accused Suresh Sharma did not disclose about the accused Naresh Gupta.
(29) PW11 Ct. Vikram Singh has deposed that on 06.08.2010 he along with Ct. Sanjeev and SI Lalit on receiving DD No. 29A reached at MCD Colony, Road No.51, Adarsh Nagar, Delhi, there they heard the noise of "Bachao Bachao" and the person, who was raising the alarm, whose name came to know as Israr s/o. Hamid, met them and he was inquired by them. According to the witness two persons were standing near Israr, out of them, one was managed to flee and other was apprehended at the pointing of Israr whose name was revealed as Naresh Gupta S/o Bhagwan Swaroop State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 23 of 55 Gupta. The witness has deposed that Israr told SI Lalit that accused Naresh Gupta had removed Rs.50,680/ from his pocket, along with one railway ticket from Bhopal to New Delhi Junction and a slip. According to the witness Israr further told that accused Naresh Gupta and his associate had offered him cold drink Maaza, mixing with some stupefying substance, and after consuming the same, he became unconscious and thereafter, they robbed their said articles along with money. The witness has deposed that Israr further told that the railway ticket was with him in his pocket and Rs.50,680/ were in a yellow colour packet, which were in the right pocket of his pants and thereafter they took the search of the accused Naresh Gupta and one mobile phone and Rs.50,680/ along with said railway ticket and slip, were recovered from his right pocket of his pants. The witness has deposed the said amount was in the denomination of 100 notes of Rs. 500/ each, 6 notes of Rs.100/ each and note of Rs.20/ and six notes of Rs.10/. According to the witness thereafter, SI Lalit converted the currency notes into a white coloured pulanda and were sealed with the seal of LK and thereafter, the said currency notes and mobile phone, railway ticket and slip were taken into possession, vide memo Ex.PW2/D and thereafter SI Lalit recorded the statement of HC Ramesh Kumar and prepared rukka and handed over the same to him (witness) for registration of FIR. The witness has deposed that he went to Police Station and after registration of case he returned back State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 24 of 55 and handed over the copy of FIR and original rukka to SI Lalit and thereafter, the accused Naresh was arrested vide arrest memo Ex.PW2/B and his personal search was carried out vide memo Ex.PW2/C. The witness has deposed that thereafter the accused Naresh made disclosure statement vide Ex.PW6/B and thereafter they along with the accused and case property, returned to the police station and accused was put up in the lock up and case property was deposited in the Malkhana. The witness has deposed that when the accused was putting in the lock up, Rs.80/ were also recovered from his Jamatalshi. The witness has correctly identified the accused persons as well as the case property in the court. (30) In his cross examination by Ld. Defence Counsel the witness has deposed that his statement was recorded at about 12.30 PM at the spot and the statement of HC Ramesh and Israr were also recorded there. He has deposed that when they reached the spot, HC Ram Bharose, HC Ramesh Kumar and DHG Ct. Rajkumar, were already present at the spot however he does not know, if any DD entry was made, prior to their departure from the police station. He has further deposed that he is not aware whether any statement of the person, from whom the alleged Maaza was purchased, was recorded by the Investigating Officer or not and has clarified that they did not go to any shop. According to him they remained at the spot along with complainant for about 1½ hours. He has deposed that many State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 25 of 55 people gathered there, but they were asked to go but none of the public person was asked to join the investigations. He has further deposed that statement of complainant Israr was recorded prior to handing of Tehrir to him i.e. at about 1.45 PM at the spot and it took about half an hour in recording the same. He has also deposed that he left the spot at about 1.45 PM and returned to the spot at about 3.00 PM alone and when he returned to the spot, Israr was found present there. He has deposed that he came back to the police station alongwith accused at about 3.15 PM. He has further deposed that he had signed the Jamatalashi / personal search memo of accused Naresh however he does not remember whether bottle of Maaza was seized or not.
(31) PW12 SI Lalit Kumar has deposed that on 06.08.2010 he was on emergency duty from 8.00 AM to 8.00 PM when he received DD No. 29A Ex.PW5/A through Ct. Sanjeev Kumar after which he along with Ct. Vikram reached at Road No.51, near MCD Colony, where HC Ramesh Kumar along with DHG Ct. Rajkumar found present, in the meantime, HC Ram Bharose also came at the spot. According to the witness with HC Ramesh Kumar and DHG Ct. Rajkumar, one person, who was in semiconscious condition, was also with them and the accused Naresh Gupta was in their custody. The witness has deposed that the injured disclosed that he was robbed by accused Naresh Gupta along with his associate who had State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 26 of 55 fled from the spot, by giving some stupefying object in the cold drink Maaza. The witness has deposed that he thereafter sent the injured to BJRM Hospital through HC Ram Bharose and he himself also went to hospital and collected the gastric lavage and MLC of the victim Israr which was taken into possession vide memo Ex.PW6/A and thereafter he came to the spot. According to the witness HC Ramesh handed over the custody of Naresh Gupta to him and also handed over to him an yellow colour envelope, containing Rs.50,680/, which were in the denomination of 100 notes of Rs.500/, 6 notes of Rs.100/, 1 note of Rs.20/ and 6 notes of Rs.10/ each, also containing two receipts, having nos.780 and 808, one railway ticket from Bhopal to Delhi, one estimate slip and one mobile phone make Classic. The witness has deposed that he recorded the statement of HC Ramesh Kumar vide Ex.PW2/A and made his endorsement Ex.PW12/A upon it and sent the same to police station for registration of the FIR through Ct. Vikram. The witness has deposed that thereafter, the yellow colour envelope, containing Rs.50,680/, which were in the denomination of 100 notes of Rs.500/, 6 notes of Rs.100/, 1 note of Rs.20/ and 6 notes of Rs.10/ each, two receipts, having nos.780 and 808, one railway ticket from Bhopal to Delhi, one estimate slip and one mobile phone make Classic, were converted into pulandas and sealed with the seal of LK and taken into possession vide memo Ex. PW2/D. Thereafter, he prepared the site State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 27 of 55 plan vide Ex.PW12/B at the instance of HC Ramesh after which accused Naresh Gupta was interrogated in detail, who made disclosure statement Ex.PW6/B, he was arrested vide memo Ex.PW2/B and his personal search was carried out vide memo Ex.PW2/C. (32) According to SI Lalit Kumar, on the next day, the accused Naresh was produced in the Court and from there, his Police Custody Remand was granted by the Court. The witness has deposed that thereafter on 08.08.2010, while in the search of coaccused, they reached towards BJRM Hospital and when they were standing at the gate of hospital, incidentally injured, who was discharged from the hospital, saw them, as the accused Naresh was in their custody and he (victim) came to them and identified accused Naresh and further told that his coaccused had also seen by him, just before their reaching. The witness has further deposed that thereafter Israr was also joined in the investigation and he was inquired and he along with accused Naresh and victim Israr and other staff went in search of coaccused and when they reached Jahangir Puri Bus Stand, near BJRM Hospital, accused Suresh was found standing at the bus stand and victim Israr identified him and pointed out him (witness) that he is the coaccused and also the coaccused Naresh pointed out towards accused Suresh. The witness has deposed that the accused Suresh was apprehended and interrogated wherein he made his disclosure State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 28 of 55 statement vide Ex.PW7/C and thereafter, accused Suresh was also arrested vide memo Ex.PW7/A and his personal search was also carried vide memo Ex.PW7/B and thereafter both the accused were produced before the Court and they were remanded to Judicial Custody.
(33) According to the witness SI Lalit Kumar during police custody remand accused Suresh led them to Azad Pur flyover, towards Outer Ring Road and he got recovered a wrapper of Larpose2 tablets, under the brick, beneath the flyover and in the said wrapper, four tablets were used and six were remaining which wrapper was converted into pulanda and sealed with the seal of LK and then, taken into possession vide memo Ex.PW10/A. The witness has deposed that he also prepared the site plan of the place of recovery of wrapper at the instance of accused Suresh, which is Ex.PW12/C and thereafter, the accused Suresh was produced before concerned court and he was remanded to judicial custody and on that day, he recorded the statement of witnesses and the case property was deposited with MHC (M). According to him during the investigations, the tablets and gastric lavage of victim, were sent to FSL for chemical analysis and after the analysis, he collected the result of FSL, which is now Ex.PW12/D. The witness has correctly identified the accused Naresh and Suresh and also the case property State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 29 of 55 the bills and ticket are Ex.P1, the photocopies of the currency notes of the money which were recovered from the possession of accused Naresh which are Ex.PW3/A, the photographs of mobile phone along with currency notes available on the judicial file which are Ex.PW11/A1 to PW11/A3, two tablets Larpose2 and blister tablets Ex.P2.
(34) In his cross examination by Ld. Defence Counsel, the witness has deposed that they reached the spot at about 12.45 PM on private motorcycle and recorded the statement of HC Ramesh and HC Ram Bharose. According to him, he did not go to the shop from where the Maaza was purchased as the accused went on linger them here and there. He has deposed that the writing work was done, while sitting at the footpath on 06.08.2010. He has further deposed that he requested some public persons to join the investigation but they did not agree. He has also deposed that on 06.08.2010 he visited the MCD Colony and there some females met him but they refused to join the investigation. He has deposed that he recorded the statement Israr on 08.08.2010 at the place of arrest of accused Suresh and prepared the Tehrir at about 1.45 PM and then, sent it for registration of FIR through Ct. Vikram who returned to the spot within 1½ to two hours. The witness has deposed that Rs.70/ was recovered from accused Suresh were in the denomination of two currency notes of Rs.20/ and three currency notes of Rs.10/. He State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 30 of 55 has further deposed that from the accused Naresh also Rs.80/ were recovered from his personal search, at the spot which were in the denomination of one note each of Rs.50/ Rs.20/ and Rs.10/. (35) In his further cross examination the witness SI Lalit Kumar has deposed that statement of DHG Ct. Raj Kumar was not recorded by him, nor he is cited as witness of any document. The witness has deposed that on 08.08.2010, Ct. Gurjeet and Ct. Mrityunjay were with him. According to him he made departure entry on 08.08.2010, but he don't remember its time and its number. He has deposed that they went to Jahangir Puri in private vehicle and met Israr at about 11.00 AM. According to the witness, before the accused Suresh could notice them, they overpowered him after which the statement of Mohd. Israr was recorded at bus stand itself which took about 3035 minutes. The witness has deposed that information regarding the arrest of accused Suresh was given to his wife. Witness has denied that on 08.08.2010 they took accused Suresh to the residence of accused Naresh Gupta at E51, Indra Enclave, Nangloi, New Delhi. The witness has deposed that when they took the accused to the place of recovery of strip of tablets, he requested some public persons to join the investigation but none agreed. According to the witness he did not record the statement of Ct. Krishan at the place of recovery. He has deposed that the tablets Larpose2 is not easily available with the chemist and it can only be State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 31 of 55 purchased, on the prescription of physician only. He has denied that nothing was recovered at the instance of accused Suresh, or that the recovery is planted, or that he has deposed falsely. STATEMENT OF ACCUSED & DEFENCE EVIDENCE:
(36) After completion of the prosecution evidence, the statements of the accused was recorded under Section 313 Cr.P.C.
wherein all incriminating evidence was put to him which he has denied. According to him he has been falsely implicated by the police in connivance with complainant and Madan Mohan. He has stated that he is well off and belongs to good family and cannot think to attempt such act. According to him he was lifted by the Investigating Officer on 6.8.2010 at 12 noon from Azadpur while he was purchasing Tripal and the allegations made against him are incorrect. He has further stated that he did not administered any intoxicating substance to anybody and nothing incriminating as alleged was recovered from his possession. He has also stated that the police forcibly took his signatures on some blank papers and on some printed proformas in the police station.
FINDINGS:
(37) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsels. I have also State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 32 of 55 considered the testimonies of various witnesses examined by the prosecution and memorandum of arguments filed on behalf of the accused. My findings are as under:
Identity of the Accused:
(38) In so far as the accused Naresh Gupta is concerned he has been apprehended at the spot of incident itself and his name finds a specific mention in the FIR. He has been identified by the complainant in the court.
(39) In so far as the accused Sursh Sharma is concerned, he was apprehended later, on the disclosure statement of the accused Naresh. However, the victim / complainant does not conclusively identify the accused Suresh Sharma in the court as the other accused nor there is any judicial TIP wherein he has identified him earlier.
Hence, under the given circumstances I hold that the identity of the accused Naresh Gupta conclusively stands established but the identity of accused Suresh Sharma does not stand conclusively established beyond reasonable doubt.
Medical Evidence:
(40) Dr. R. K. Singh (PW4) has proved the MLC of victim Mohd. Israr who had been brought to the hospital by HC Ram State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 33 of 55 Bharose with allegedly history of poisoning. According to the MLC Ex.PW4/A when the victim was brought to the hospital he was in an unconscious condition and his gastric lavage had been preserved. It is writ large from the MLC that the victim was got admitted in the hospital by HC Ram Bharose as an unknown person because the victim was not in a position to give even his name to the doctor or to the police. On examination the victim was drowsy, semidiluted, sluggish reaction to light, disoriented, mild response to DPS. After examining the victim, Dr. R. K. Singh also diagnosed him for suspected sedative poisoning after which he was admitted in the casualty and administered immediate treatment. Dr. R. K. Singh has not been cross examined and the entire testimony has gone uncontroverted. I hold that the medical evidence supports and confirms the sedition of the victim on account of unknown poisoning and the FSL report confirms the poison in his gastric lavage (corroborating the medical evidence).
Forensic Evidence:
(41) The FSL report which is admissible under Section 293 Cr.PC and duly proved by the Investigating Officer / SI Lalit Kumar (PW12) vide Ex.PW12/D and has gone uncontroverted. It confirms that on chemical examination, TLC and HPTLC examination, Ex.1 (i.e. gastric lavage) and Ex.3 (i.e. Lorazepam tablet) were found to contain a benzodiazepine drug (Lorazepam). State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 34 of 55
Allegations against the accused Naresh Gupta:
(42) The entire case of the prosecution revolves around the testimony of the victim Mohd. Israr (PW3). The case of the prosecution is that the victim Mohd. Israr a original resident of Bhopal, Madhya Pradesh had come to Delhi in connection with some business dealings (i.e. collection of payment) and while he was going back to Nizamuddin to catch the train to Bhopal and was coming out from the Subzi Mandi at 11:00 AM, one person became friendly with him and told him that he would be going to Nizamuddin and on the way the said person offered him (victim) a cold drink (Mazza) and one another person was also accompanying him and all three of them enjoyed the cold drink but after some time the victim started feeling giddy and on hearing his alarm two police officials who were on patrolling came to the victim and apprehended one of the assailant at the spot itself. In the meanwhile, the victim became unconscious and later regained his consciousness in the hospital. The victim has correctly identified the accused Naresh Gupta as the same person who had offered him the cold drink. From the possession of the accused Naresh Gupta the articles belonging to the victim were recovered which includes the cash, bills, railway tickets and mobile phone which the victim has correctly identified. (43) The relevant portion of the testimony of victim Mohd.
Israr (PW3) is reproduced as under:
State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 35 of 55
"On 6.8.2010, as usual, I had gone to Azadpur Subzi Mandi for collecting the payment. After collecting the payment, when I was coming out from the Subzi Mandi at about 11:00 AM, one person has asked me as to where I was going, I responded that I was going to Nizamuddin for offering prayer in a masjid and from there, I went to Bhopal. That person stated to me that he was also going to Nizamuddin and I followed him. In the meantime, he told me that it was very hot and let us have took a cold drink Mazza. One person was also accompanying him. He gave me a Mazza cold drink as well as, he along with his associate also took cold drinks. After taking the cold drink, I felt giddiness (chakkar sa aane laga) and I raised voice and called two police persons, who was coming on a motorcycle and thereafter, I became unconscious. Thereafter, I do not now, what happens with me. When I regained consciousness, I saw that my family members were taking me out from the hospital. At that time, I was carrying Rs.50,680/, one mobile phone and some documents i.e. bills etc. Outside the hospital, police persons met me along with a person, who had offered me the cold drinks and I identified him. I also stated to the police that the other person was also roaming in the area, who was accompanying with this person. Accused Naresh Gupta is the same person, who is today present in the court (correctly identified), who offered cold State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 36 of 55 drink to me and was accompanying the police persons outside the hospital. Police had seized the articles recovered from the possession of accused Naresh Gupta after sealing the same in a pullanda and said articles belongs to me. Later on, I got released the cash and mobile phone from the court on superdari. Said currency notes were got photocopied by the police and photocopies were kept by the police. I have not brought the mobile phone today, as it was misplaced and I can not produce the same in future also. I also cannot produce the bill of said mobile phone as it was an old mobile phone. The photocopies of the money recovered from accused Naresh is shown to the witness, who correctly identified the same and same is now Ex.PW3/A. I had collected the payment of Rs.
50,000/ from Madan Mohan on that day, where coriander (Dhania) of my owner use to deliver to him on commission basis.
I can identify the bills and documents, if shown to me.
At this stage, an opened pullanda is produced from the MHCM (which was opened during the examination of PW2) and one railway ticket from Bhopal Junction to New Delhi dated 5.8.2010 and some bills are taken out and shown to the witness, who identifies that these are the same documents, which belongs to me. The bills and ticket are collectively Ex.P1."
State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 37 of 55
(44) The victim Mohd. Israr has been exhaustively cross examined at length by Ld. Defence Counsel / Amicus Curiae for the accused Naresh Gupta. He has explained that initially he did not make any complaint regarding loss of his mobile phone which he had taken on Superdari and has explained that it was recovered at the spot itself. He submits that he has made two statements to the police first at the hospital and second after his discharge from the hospital. He has explained that he is working at Bhopal Subzi Mandi with one Azad Bhai and had reached Delhi at about 7 to 8 PM by Sampark Kranti and stayed in the Subzi mandir in the night at the shop from where he had to collect the payment and on next morning after collecting the payment at about 9 or 10 AM he left the shop at about 10:30 AM. He has further explained that he had consumed the cold drink (Mazza) after about 30 minutes of leaving the shop and the accused met him outside the main gate of Mandi and he was not known to him previously. He has further explained that the accused had won his confidence and had told him that they were going to Nizamuddin and and their vehicle would be coming and whatever fare he had to pay in the bus he would pay to them.
(45) I may observe that the testimony of victim Mohd. Israr also finds due corroboration from the testimony of Madan Mohan (PW1) who has deposed that he is running the shop of Commission Agent at Subzi Mandi, Azad Pur and had received coriander from State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 38 of 55 one trader from Bhopal Mandi. He has stated that on 06.08.2010, at about 11.00 AM, he made a payment of around Rs.50,000/ to Mohd. Israr, a trader of Bhopal Mandi but in the evening, he received telephone from Bhopal and informing him that the said Mohd. Israr was lying unconscious in some hospital and they asked him to verify his condition.
(46) In his cross examination Madan Mohan (PW1) has explained that he was not dealing directly with Mohd. Israr but he was sent to collect the payment by a trader from Bhopal Mandi namely Azad. He has explained that before handing over the payment to Israr, he had confirmed his identity on telephone from Azad at Bhopal. He has further explained having spoken to Azad on telephone number stored in his mobile phone immediately and further conformed that he has given Rs.51,678/ to Mohd. Israr out of which one bundle of 100 currency notes of denomination of Rs.500/ each however he does not recollects the detail of remaining amount. He has explained that after receiving the telephone call from Bhopal he had sent his employee Dharampal to the hospital situated at Jahangirpuri where the Israr was found to in unconscious condition. (47) I may further observe that the testimony of victim Mohd. Israr found due corroboration from the testimony of HC Ramesh Kumar (PW2) who has stated that on 6.8.2010 he along with Ct. Raj Kumar was on patrolling duty and at about 1:00 PM when the were State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 39 of 55 passing through MCD Colony, Road No. 51, they Mohd. Israr raising alarm "BachaoBachao" on which they went to that person and saw two other persons were also standing near Mohd. Israr but one of them ran away after seeing them while one persons i.e. accused Naresh Gupta was apprehended and from his search the articles belonging to victim Israr were recovered at the spot. The relevant portion of the testimony of HC Ramesh (PW2) is reproduced as under:
"On 06.08.2010, I was posted in PS Adarsh Nagar as HC. On that day, I along with Ct.
Raj Kumar was on patrolling duty from 8.00 am to 8.00 pm on the govt. motorcycle bearing no. DL1SN4132. On that day, at about 1.00 pm, during patrolling when we were passing through MCD Colony, Road no. 51, there one man whose name, I came to know Israr, raised alarm 'bachao bachao' after seeing us. We reached there and saw that two persons were standing near said Israr. One, out of them, ran away on seeing the police. The other man, whose name later on revealed to be Naresh Gupta was standing there. Said Israr told me that Naresh, who was present there along with his one associate who had ran away after seeing the police, had administered him some intoxicating substance in a cold drink Maaza and they had removed his money and some documents. Accused Naresh State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 40 of 55 Gupta is not present in the court. Accused Naresh was apprehended and his formal search was conducted and he was found in possession of 100 notes of denomination of Rs. 500/ each, 6 notes of denomination of Rs. 100/ each, one note of Rs. 20/ and 6 notes of denomination of Rs. 10/ total Rs.
50,680/. He was also found in possession of bills, one railway ticket and other documents. The currency notes and documents except ticket were found in a yellow colour envelop. Complainant Ishrar was under intoxication. I made a call to the duty officer of PS Adarsh Nagar from my mobile phone and after my call, SI Lalit Kumar along with Ct. Vikram reached the spot. After some time, HC Ram Bharose also arrived on the spot. HC Ram Bharose along with Ct. Raj Kumar of Delhi Home Guard removed Ishrar to BJRM Hospital in a TSR. SI Lalit Kumar made inquiries from Naresh Gupta as well as from me. SI Lalit Kumar recorded my statement Ex. PW2/A having my signatures at point A. SI Lalit Kumar prepared a rukka and sent the same to PS through Ct. Vikram for registration of the case. Accused Naresh Gupta was arrested by SI Lalit Kumar vide arrest memo Ex.PW2/B having my signatures at point A and his personal search was conducted vide memo Ex. PW2/C having my signatures at point A. SI Lalit Kumar put the currency notes and the documents along with the State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 41 of 55 yellow envelop in a parcel of cloth, sealed it with the seal of LK and seized it vide memo Ex. PW2/D having my signatures at point A. SI Lalit Kumar prepared the site plan at my instance same is marked as Mark A. Thereafter, I was discharged and SI Lalit Kumar went to the hospital.
At this stage, ld. Addl. PP seeks permission to lead the witness on account of mobile phone of Ishrar. Heard. Request allowed.
It is correct that Naresh Gupta also removed the mobile phone of Ishrar, which was also recovered from the possession of Naresh. SI Lalit Kumar also put that mobile phone in the said pullanda, in which the currency notes and documents were put and same was seized vide seizure memo Ex.
PW2/D. ...."
(48) HC Ramesh Kumar (PW2) has also been exhaustively cross examined on behalf of the accused. He has admitted that on his apprehension the accused Naresh Gupa did not tried to flee. He has further explained that the bottle of Mazza was not found at the spot though they searched for the same. He admits that large number of persons had gathered at the spot but nobody agreed to join the proceedings despite his request.
(49) The combine reading of the testimonies of all the above three witnesses (i.e. PW1 Madan Mohan, PW2 HC Ramesh Kumar and PW3 Mohd. Israr) firstly confirms that Mohd. Israr came to State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 42 of 55 Delhi from Bhopal in connection with some business dealing and collected Rs.51,678/ from Madan Mohan. Secondly that while at the gate of the Subzi Mandi, he met two persons one was Naresh Gupta who won his confidence and convinced him that they were also going to Nizamuddin i.e. same place from where the victim had to offer his prayer and then catch a train to Bhopal. Thirdly that on the way the victim was offered a cold drink (Mazza) by the accused and after consuming the same he started becoming unconscious and raised an alarm while he was still semiconscious on which HC Ramesh (PW2) along with Ct. Raj Kumar rushed to the spot and apprehended one of the person i.e. accused Naresh Gupta. Fourthly that on formal search of accused Naresh Gupta the stolen amount of Rs.51,680/ was recovered from his possession which currency notes were in the denomination of 100 notes of Rs.500/ each, 6 notes of Rs.100/ each and note of Rs.20/ and six notes of Rs.10/. Fifthly that the victim Mohd. Israr was in a state of intoxication and HC Ramesh immediately informed the Duty Officer at Police Station Adarsh Nagar and after some time SI Lalit Kumar along with Ct.
Vikram and HC Ram Bharose arrived the spot and the victim was rushed to BJRM hospital through HC Ram Bharose for treatment. Sixthly that on a detailed search the mobile phone belonging to the victim was also recovered from the possession of accused Naresh Gupta which was identified the victim on regaining his State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 43 of 55 consciousness. Lastly the bills and tickets confirming the railway tickets of victim from Bhopal Junction to New Delhi dated 5.8.2010 and some bills had also been recovered from the possession of accused Naresh Gupta which were identified by the victim. (50) Ld. Counsel for the accused Naresh Gupta has argued that the provisions of Section 394 Indian Penal Code does not attract as there is no injury. In this regard, I may observe that the medical record of the victim confirms that due to sedative effect, the victim has suffered mentally and physically which stands covered in the definition of hurt as contemplated in the provisions of Section 394 Indian Penal Code.
(51) This being the background and in view of the fact that the victim has confirmed that it was the accused Naresh Gupta who had given him intoxicated cold drink (Mazza) and robbed his articles which were recovered from the possession of Naresh Gupta after his apprehension and arrest at the spot itself and the medical and forensic evidence confirming that on chemical examination, TLC and HPTLC examination, Ex.1 (i.e. gastric lavage) and Ex.3 (i.e. Lorazepam tablet) were found to contain a benzodiazepine drug (Lorazepam), I hereby hold that the accused Naresh Gupta is liable for the offence under Section 394 read with Section 328 Indian Penal Code. State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 44 of 55 Allegations against the accused Suresh Sharma:
(52) In so far as the accused Suresh Sharma is concerned, I may hold that the case of the prosecution is that he was the other person present along with the accused Naresh Gupta at the time when the intoxicated cold drink was offered to the victim. Pursuant to the arrest of the accused Naresh Gupta, he made a disclosure statement regarding identity of the accused Suresh Sharma on which the victim joined the police party in search of Suresh Sharma and initially he was not found but later it was on the pointing out of the victim that Suresh Sharma was apprehended from Bus Stand near BJRM Hospital Jahangirpuri who disclosed his name as Suresh Sharma and he led the police to Azadpur flyover towards Outer Ring road and got recovered a wrapper of Larpose2 tablets from under a brick and in the said wrapper four tablets were used and six were remaining and it was Suresh Sharma who disclosed that four tablets were given to the victim after mixing the same in cold drink (Mazza). (53) I may observe that in the court the victim Israr has failed to conclusively identify the accused Suresh Sharma as the other person who was accompanying Naresh Gupta. Though signatures of Israr are present on the arrest memo, personal search memo and disclosure statement of Suresh Sharma are present yet Israr has failed to specify that he had joined the investigations in search of Suresh Sharma or that anything was recovered from his possession. I may State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 45 of 55 further observe that only evidence on record against the accused Suresh Sharma is the alleged disclosure statement made by him and the alleged recovery of six tablets of Larpose2 got recovered by him and as per the FSL report the contents of the same were found in the gastric lavage of the victim. Admittedly no public person had been joined by the police at the time of the alleged recovery at the instance of accused Suresh Sharma despite opportunity in this regard and the tablets Larpose2 are freely and easily available in the market. The statement of the police officials particularly, keeping in view the fact that the complainant does not support the apprehension and arrest of Suresh Sharma and also the recovery at his instance, is liable to be read with caution and hence there being no independent corroboration to the testimonies of the police officials regarding apprehension, arrest and the alleged recovery at the instance of accused Suresh Sharma, I hold that benefit of doubt is liable to be given to him.
FINAL CONCLUSION:
(54) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 46 of 55
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(55) Applying the above settled principles of law to the facts of present case it is evident that the identity of the accused Naresh Gupta stands established but not the identity of accused Suresh Sharma.
State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 47 of 55 (56) It stands established that on 6.8.2010 the victim Mohd. Israr came to Delhi from Bhopal in connection with some business dealing and after collecting the payment from one Madan Mohan at Azadpur Subzi Mandi while he was coming out of the gate of the Subzi Mandi, he met two persons one was Naresh Gupta who became friendly with him and on the way they offered a cold drink (Mazza) to the victim. It stands established that after consuming the said cold drink, the victim started feeling giddy and raised an alarm and that on hearing the alarm raised by the victim, HC Ramesh and Ct. Raj Kumar who were on patrolling duty in the are, rushed to the spot and apprehended the accused Naresh Gupta. It stands established that on formal search of accused Naresh Gupta the stolen amount of Rs.51,680/ was recovered from his possession. The victim Mohd. Israr was in a state of intoxication at that time on account of consumption of sedative and was immediately rushed to the hospital for treatment by HC Ram Bharose. It stands established that on a detailed search the mobile phone belonging to the victim was also recovered from the possession of accused Naresh Gupta which was identified the victim on regaining his consciousness. It also stands established that the bills and tickets confirming the railway tickets of victim from Bhopal Junction to New Delhi dated 5.8.2010 and some bills had also been recovered from the possession of accused Naresh Gupta which were identified by the victim. State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 48 of 55 (57) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. The prosecution has proved the identity of the accused Naresh Gupta, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution in so far as the accused Naresh Gupta is concerned. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative in so far as the accused Naresh Gupta is concerned. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link in so far as the accused Naresh Gupta is concerned.
(58) In so far as the accused Suresh Sharma is concerned his identity has not been conclusively proved and established. In the State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 49 of 55 court the victim Israr has failed to conclusively identify the accused Suresh Sharma as the other person who was accompanying Naresh Gupta. The arrest and personal search of accused Suresh Shamra and also the recovery of six tablets Larpose2 at his instance has not been established and proved.
(59) In so far as the accused Suresh Sharma is concerned, I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused persons in so far the accused Suresh Sharma concerned. The materials brought on record by the prosecution is insufficient to hold that the accused Suresh Sharma was guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused namely Suresh Sharma. Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a court to see, while finding the guilty of an accused, particularly in cases based on circumstances evidence. Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 50 of 55 allegations against the accused Suresh Sharma, beyond reasonable doubt and hence, benefit of doubt is being given to the accused Suresh Sharma who is liable to be acquitted of the charges. (60) Hence, in view of the above discussion, I hereby acquit the accused Suresh Sharma of the charges under Section 328/392/394/34 Indian Penal Code. In so far as the accused Naresh Gupta is concerned he is hereby acquitted of the charge under Section 392 Indian Penal Code but is hereby held guilty for the offence under Section 394 read with Section 328 Indian Penal Code and accordingly convicted for the same.
Announced in the open Court (Dr. KAMINI LAU) Dated: 15.5.2013 ASJ (NW)II: ROHINI State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 51 of 55 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Sessions Case No. 54/2013 Unique Case ID: 02404R0278292010 State Vs. Naresh Gupta S/o Bhagwan Swaroop Gupta R/o E51, Indra Enclave PhaseII Nangloi, Delhi. (Convicted) FIR No. : 198/2010 Police Station : Adarsh Nagar Under Section : 328/394/411/34 IPC Date of conviction : 15.5.2013 Arguments heard on : 17.5.2013 Date of sentence : 17.5.2013 APPEARANCE: Present: Sh. Sukhbeer Singh, Addl. Public Prosecutor for State.
Convict Naresh Gupta in Judicial Custody with Sh. B. B. Dhingra, Advocate / Amicus Curiae.
ORDER ON SENTENCE:
(1) As per the allegations on 6.8.2010 at about 2:30 PM near MCD Colony, Road No. 51, Adarsh Nagar, Delhi, the accused Naresh Gupta along with his associate Suresh Sharma (acquitted) in furtherance of their common intention administered Lorajepan (stupefying material) State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 52 of 55 to the victim Mohd. Israr and thereafter they robbed his Rs.50,680/, mobile phone and some documents. It is also alleged that while committing the aforesaid robbery the accused persons voluntarily caused hurt on the person of victim Mohd. Israr by administering the aforesaid stupefying substance.
(2) On the basis of the testimonies of various witnesses examined by the prosecution particularly Madan Mohan (PW1), HC Ramesh Kumar (PW2) and Mohd. Israr (PW3) and also on the basis of other material on record, this court vide a detailed judgment dated 15.5.2013 has acquitted the accused Suresh Sharma of the charges under Section 328/392/394/34 Indian Penal Code. However, in so far as the accused Naresh Gupta is concerned he has been acquitted of the charge under Section 392 Indian Penal Code but has been held guilty for the offence under Section 394 read with Section 328 Indian Penal Code and accordingly convicted for the same.
(3) Heard arguments on the point of sentence. The convict is an old man aged about 62 years, married, totally illiterate, maintaining a Kiryana shop for his livelihood having a family comprising of aged mother, three sons and one daughter all of marriageable age. He is first time offender with clean antecedents and is not involved in any other case. He has already remained in Judicial Custody in the present case for a period of Two Years, Nine Months and Eleven Days. State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 53 of 55 (4) Ld. Defence Counsel / Amicus Curiae for the convict has vehemently argued that the convict is an old man suffering from old age ailment, sole bread earner of the family, a first time offender not involved in any other case. He requests that a lenient view be taken against the convict. On the other hand the Ld. Addl. Public Prosecutor has prayed for a stern view against the convict keeping in view the allegations involved.
(5) I have considered the rival contentions. The convict is an old man about 62 years of age having a family comprising of aged mother and four children of marriageable age including one daughter. He is the sole bread earner of his family with clean antecedents coming from a humble family. In view of the above, any harsh view taken against the convict would not only be detrimental against the convict by also to his entire family. Keeping in view the above, a lenient and compassionate view is taken against the convict Naresh Gupta who is hereby sentenced to Rigorous Imprisonment for the period already undergone by him in this case till date (i.e. Two Years Nine Months and Eleven Days) and fine for a sum of Rs.500/ for the offence under Section 394 read with Section 328 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of Two Days.
(6) Benefit of Section 428 Cr.P.C. shall be given to the convict State Vs. Naresh Gupta, FIR No. 198/10, PS Adarsh Nagar Page 54 of 55 for the period already undergone by him, as per rules. (7) The convict has been informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
(8) One copy of the judgment and order on sentence be given to the convict free of costs and one copy of order on sentence be attached with his jail warrant.
(9) File be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 17.5.2013 ASJ (NW)II: ROHINI
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