Delhi District Court
State vs Mazhar on 9 April, 2015
IN THE COURT OF SH. PARVEEN SINGH,
ADDITIONAL SESSIONS JUDGE03(NE), ROOM NO.53,
KARKARDOOMA COURTS, DELHI.
SC No. 177/10
Unique Case ID no. 02402R0718462008.
FIR No. 143/08
PS New Usmanpur.
U/s 328/379/411/34 IPC.
STATE
Versus
1. Mazhar
S/o Mohd. Haffizuddin,
R/o E73, Gali No. 11, E Block,
Shastri Park, Delhi.
Present address:
Village Chaholar,
PO & PS Azamnagar,
Distt. Khatihar, Bihar.
2. Mohd. Alam,
S/o Allauddin,
R/o House of Shabban,
FIR No. 143/08
PS New Usmanpur 1 of 15 (Parveen Singh)
ASJ03/NE/KKD: 09.04.2015.
E Block, Gali No. 11,
Chand Masjid,
Shastri Park, Delhi.
Present Address:
Village Bakadi,
PO Laakhanpalti Via Gadhpura,
Distt. Begusarai, Bihar.
3. Mohd. Raza,
S/o Mohd. Nasimullah,
R/o Hazi Ka Makan,
Gali No. 4, Near Ayesh Masjid,
3rd Pushta, Usmapur, Delhi.
Present Address:
Village Udaypur,
PO Laakhanpalti, Via Gadhpura,
Distt. Begusarai, Bihar. ......Accused.
Date of Committal: 27.10.2008.
Date of Arguments: 09.04.2015.
Date of Judgment: 09.04.2015.
JUDGMENT
The case of the prosecution is, that on 13.06.2008, complainant Gopal Sahu came at PS New Usmanpur and gave a statement that on 29.01.2008, when he was on his way to work and had reached at Gol FIR No. 143/08 PS New Usmanpur 2 of 15 (Parveen Singh) ASJ03/NE/KKD: 09.04.2015.
Chakkar, he saw a person namely Mazhar selling windsheeters. He purchased one windsheeter from Mazhar. On coming to know that the complainant was a LIC agent, Mazhar showed his interest in getting a LIC policy and gave him Rs.50/ as advance. He (Mazhar) also took the mobile number of the complainant and stated that he would make the payment of premium after returning from his native village. On 25.05.2008, Mazhar made a call to the complainant and informed him that he (Mazhar) wanted to get a LIC policy but the complainant asked him to contact after some days. On 02.06.2008, Mazhar called complainant and asked him to come at Pehla Pushta, Shastri Park. At about 01.15 p.m., complainant reached the aforesaid place on his motorcycle bearing no. DL 8SAC 1028. At that time, complainant was carrying his laptop of make ACER, cash of Rs.17,500/, Nokia mobile phone, original policy bonds, receipts, LIC documents, ATM card, his purse, credit cards, cheque book, original RC and insurance of the motorcycle. At pehla pushta, Shastri Park, complainant met Mohd. Alam, Raza and Mohd. Mazhar. They all asked the complainant to reach at DDA Park and Mohd. Alam sat on the motorcycle of the complainant while other two accused reached at DDA Park on foot. At DDA Park, after making inquiries regarding insurance policy, Raza offered a frooti to the complainant. After drinking the frooti, the complainant felt giddy and lost consciousness. When he (the complainant) regained consciousness, he found FIR No. 143/08 PS New Usmanpur 3 of 15 (Parveen Singh) ASJ03/NE/KKD: 09.04.2015.
himself at his house at Nangloi.
2. On the statement of the complainant, rukka Ex.PW5/A was prepared. On the basis of the rukka, FIR Ex.PW2/A was recorded and investigation was assigned to SI Nitin Kumar. SI Nitin Kumar (PW5) went at the place of occurrence and prepared site plan Ex.PW5/B. The complainant produced one original form of insurance policy of Mazhar to the police which was taken into possession vide memo Ex.PW1/5. On 14.06.2008, at the instance of the complainant, accused Mohd. Alam and Mohd. Raza were apprehended when they were going towards Pushta with motorcycle number DL8SAC1028. After interrogation, both the accused were arrested vide memos Ex.PW1/F and PW/G and their personal search was conducted vide memos Ex.PW1/H and Ex.PW1/J. Motorcycle was seized vide memo Ex.PW1/D. PW5 recorded disclosure of Mohd. Alam vide Ex.PW1/C and that of Mohd. Raza vide Ex.PW1/B. From the disclosure statements, PW5 came to know that the stolen laptop was in the possession of Mazhar. On 26.06.2008, further investigation was assigned to SI Girish. On 09.07.2008, at the instance of complainant, Mazhar was apprehended from Shastri Park red light. One laptop with charger was recovered from the possession of accused Mazhar. The said laptop with charger was seized vide memo Ex.PW1/P. Accused Mazhar was arrested vide memo Ex.PW1/M and his personal search was conducted vide memo Ex.PW1/N. After completion FIR No. 143/08 PS New Usmanpur 4 of 15 (Parveen Singh) ASJ03/NE/KKD: 09.04.2015.
of investigation, charge sheet u/s 328/379/34 IPC was filed against all the accused.
3. On 21.01.2009, charge u/s 328/379/34 IPC was framed against all the accused, to which they all pleaded not guilty and claimed trial.
4. Thereafter, prosecution examined nine witnesses to prove its case.
5. PW1 is Gopal Sahu, the complainant. His testimony shall be considered at later stage as and when required.
6. PW2 is HC Rashid Khan. He deposed that on 13.04.2008, being posted as duty officer at PS New Usmanpur, he recorded FIR Ex.PW2/A and made endorsement Ex.PW2/B on the rukka.
7. PW3 is Heera Singh. He deposed that in the year 2008, he was having a general merchant shop at Zero Pushta, New Usmanpur. He used to sell cold drinks. On 14.06.2008, he was not present at his shop and his brother told him that policemen had come to the shop in relation to some case in which a robbery was committed after administering Frooti drink. As this witness did not support the case of the prosecution, he was cross examined by the learned Addl. PP for the State. However, from his cross examination, nothing incriminating against the accused could be brought out.
FIR No. 143/08
PS New Usmanpur 5 of 15 (Parveen Singh)
ASJ03/NE/KKD: 09.04.2015.
8. PW4 is Sh. R.K. Singh, Nodal Officer from Bharti Airtel. He deposed that as per record, mobile number 9810404787 was issued to Gopal S/o Sahu Ram on 31.01.2005. He proved the subscription customer application form as Ex.PW4/A and the call detail records of mobile no. 9810404787 w.e.f 01.06.2008 to 02.06.2008 as Ex.PW4/B.
9. PW5 is SI Nitin Kumar, the first IO. His testimony shall be considered at later stage as and when required.
10. PW6 is Dr. Atul Gupta. He deposed that on 03.06.2008, patient Gopal came to his clinic with the complaint of giddiness. The patient had given history of loss of consciousness after intake of something in frooti. He prescribed medicine to the patient and called him for review after a day. He proved his prescriptions as Ex.PW6/A, Ex.PW6/B and Ex.PW6/C. He further deposed that on 01.09.2008, he received a notice u/s 91Cr.P.C from the police and he gave his reply Ex.PW6/D.
11. PW7 is HC Raj Kumar. He deposed that on 14.06.2008, SI Nitin Kumar had deposited in malkhana a motorcycle bearing no. DL 8SAC1028 having chassis number DFFBKL46798. On 23.07.2008, the motorcycle was released on superdari to Gopal Sahu. He proved entry in this regard as Ex.PW7/A. On 09.07.2008, SI Nitin Kumar again deposited in malkhana one laptop with charger and he made entry Ex.PW7/B in this FIR No. 143/08 PS New Usmanpur 6 of 15 (Parveen Singh) ASJ03/NE/KKD: 09.04.2015.
regard.
12. PW8 is SI Girish. He is the second IO of the case. His testimony shall be considered at later stage as and when required.
13. PW9 is Ct. Praveen Kumar. He deposed that on 13.06.2008, at about 10.00 a.m., HC Rashid Khan gave him a rukka and copy of FIR for handing them over to SI Nitin Kumar. He handed over those documents to SI Nitin Kumar. He further deposed that one document signed by Mazhar was handed over by the complainant to the IO which was seized vide memo Ex.PW1/E. On 14.06.2008, he again joined investigation with the IO. On that day, accused Mohd. Raza and Mohd. Alam were arrested by the IO from Zero Pushta, Usmanpur vide arrest memos Ex.PW1/G and Ex.PW1/F respectively and their personal search were conducted vide memos Ex.PW1/I and Ex.PW1/H respectively. IO interrogated them and recorded their disclosure Ex.PW1/B and Ex.PW1/C respectively. On 09.07.2008, he again joined investigation of the case. On that day, accused Mazhar was arrested vide memo Ex.PW1/M and his personal search was conducted vide memo Ex.PW1/N. From the possession of accused Mazhar, one laptop with a charger was found which was seized vide memo Ex.PW1/B. The witness identified all the accused persons.
14. Thereafter, statements u/s 313 Cr.P.C of all the accused were recorded on 05.03.2015. All the accused stated that they have been falsely FIR No. 143/08 PS New Usmanpur 7 of 15 (Parveen Singh) ASJ03/NE/KKD: 09.04.2015.
implicated in this case. Accused Raza and Alam preferred to lead evidence in their defence while accused Mazhar chose not to lead evidence. Smt. Yasmeen was examined as DW1 and Nasimullah was examined as DW2.
15. DW1 Yasmeen deposed that on 02.06.2008 at about 04.00 p.m., two police officials came in her room and took search of her room but nothing incriminating was found. She further deposed that police took her to nearby police post. He husband came at police post and then she was released by the police staff.
16. DW2 Nasimullah deposed that on 02.06.2008 when he returned his home in evening, he came to know that police had visited his house in search of his son Mohd. Raza. He produced his son Mohd. Raza before the police and police assured to release his son soon.
17. I have heard Ld. Addl. PP for the State as well as counsels for the accused.
18. Learned Addl. PP has contended that the prosecution has proved its case by way of testimony of the complainant, who is the injured and victim of crime.
19. On the contrary, learned counsels for the accused have contended that the story of the prosecution is false and the complainant who appeared as PW1 has falsely implicated the accused persons. The defence has further contended that there is a delay of 11 days in lodging the FIR and FIR No. 143/08 PS New Usmanpur 8 of 15 (Parveen Singh) ASJ03/NE/KKD: 09.04.2015.
this delay has not been sufficiently explained.
Findings
20. The case of the prosecution rests entirely on, (i) the testimony of PW1, who is the complainant and (ii) alleged recovery of motorcycle from accused Alam and Raza at the time of their arrest and laptop from accused Mazhar at the time of his arrest.
21. PW1 Gopal Sahu, who is the complainant has deposed that on 29.01.2008, at some gol chakkar, he met accused Mazhar, who was selling windsheeters. During conversation, he told accused Mazhar that he was working as LIC agent and Mazhar showed his interest in getting a policy, gave Rs.50/ as advance and took his mobile number stating that he (Mazhar) would make payment of the premium after returning from his native village. On 25.05.2008, he received a call from accused Mazhar who showed his interest in getting LIC policy but as his (complainant's) son was unwell, he asked accused Mazhar to contact after some days. On 02.06.2008, accused Mazhar again called him and asked him to reach at Shastri Park, Pehla Pushta. At that time, the complainant was carrying his laptop of make Acer, cash of Rs.17,500/, his Nokia mobile phone of model 2626, origial policy bonds, receipts, LIC documents, ATM card, his purse, credit cards, cheque books, original RC and insurance of his motorcycle. At about 01.15 FIR No. 143/08 PS New Usmanpur 9 of 15 (Parveen Singh) ASJ03/NE/KKD: 09.04.2015.
p.m., he reached the informed place on his motorcycle bearing no. DL 8SAC1028. There he met Mohd. Alam. Thereafter, accused Mazhar and Raza also reached there. They asked the complainant to reach at DDA Park. Accused Alam sat on his motorcycle while accused Mazhar and Raza went there on foot. All the three accused made inquiries about insurance policy. In the meantime, accused Raza brought three Frooti (soft drink) which were already open and having straws in them. He gave one Frooti to the complainant. On being pressurized by them, he consumed Frooti whereafter, he felt giddy and became unconscious. He regained consciousness on the next day and he found himself at his house at Nangloi. It took him a few days to fully recover whereafter, he informed about the incident at PS Nangloi. Officials at PS Nangloi advised him to approach PS Usmanpur as the incident happened in the area in jurisdiction of PS Usmanpur. On reaching PS Usmanpur, his statement Ex.PW1/A was recorded. Next day, he joined investigation and pointed to place of occurrence to the police and in this process, he saw that accused Mohd. Alam and Raza were taking away his motorcycle by dragging it. Both these accused were apprehended with motorcycle and were interrogated. Their disclosures Ex.PW1/B and Ex.PW1/C were recorded. Motorcycle was taken into police possession vide memo Ex.PW1/D. He also produced proposal document for insurance of accused Mazhar Alam which was seized vide memo Ex.PW1/E. The FIR No. 143/08 PS New Usmanpur 10 of 15 (Parveen Singh) ASJ03/NE/KKD: 09.04.2015.
proposal document Ex.P1 was having signatures of accused Mazhar at point A. Both the accused were arrested vide memos Ex.PW1/F and Ex.PW1/G and their personal search was conducted vide memos Ex.PW1/H and Ex.PW1/J. He also gave to the IO the invoice of his laptop, RC of his motorcycle and papers of medical treatment which he underwent due to the intoxicant given to him by the accused. All these documents were seized by the IO vide memo Ex.PW1/K. Thereafter, on 09.07.2008, he again joined investigation and got accused Mazhar arrested when he (Mazhar) was going (with) his laptop in the market. Accused Mazhar was arrested vide memo Ex.PW1/M and his personal search was conducted vide memo Ex.PW1/N. Thereafter, accused Mazhar got recovered laptop with charger which were seized vide memo Ex.PW1/P. He brought the motorcycle which was stolen by the accused and it was exhibited as Ex.PX. He also identified the laptop which was stolen from his possession and the laptop was exhibited as Ex.PY.
22. During the cross examination of this witness, a motive was imputed to this witness that he had taken Rs.3,000/ from accused Mazhar on the pretext of getting a life insurance cover for Mazhar but he wanted to usurp the money and thus, he falsely implicated accused Mazhar. However, the witness denied all suggestions to this motive.
23. The defence taken by the accused is that there is delay of 11 FIR No. 143/08 PS New Usmanpur 11 of 15 (Parveen Singh) ASJ03/NE/KKD: 09.04.2015.
days in lodging the FIR and the delay has not been sufficiently explained.
24. The witness PW1, during his examination in chief and cross examination, had deposed that he had initially gone to PS Nangloi but did not give any written complaint as the police of PS Nangloi told him that the jurisdiction of this case was with PS Usmanpur. Then 57 days thereafter, he went to PS Usmanpur and made a complaint of the incident.
25. I find that the delay in lodging the FIR in the peculiar facts and circumstances of the case has not been sufficiently explained. As per the witness, he regained consciousness at his house on the next day of incident i.e. on 03.06.2008. Then why did he take 56 days to approach the nearest police station, has not been explained. The witness has stated that his friend Abdul Khalique had given a call to PCR but no record of such call has been produced on record. Not only this, after approaching PS Nangloi and on being told that he had to go to PS Usmanpur as the offence was committed in the jurisdiction of PS Usmanpur, he took another 56 days to go to PS Usmanpur. Why he took so much time to reach PS Usmanpur has again not been explained by the witness. This delay becomes more important in view of the fact that as per the testimony of the doctor, who appeared as PW6, when he had examined the complainant on 03.06.2008, he had found the BP and pulse of the complainant to be normal. At that time, bilateral pupil of the complainant was reacting normal to light and his abdomen was soft and non FIR No. 143/08 PS New Usmanpur 12 of 15 (Parveen Singh) ASJ03/NE/KKD: 09.04.2015.
tender. Thus, PW6 gave symptomatic treatment to the complainant. During his cross examination, PW6 admitted that at that time the patient was conscious and oriented. That being the case, as the doctor did take any emergency measures and gave symptomatic treatment, it clearly shows that the complainant, because of the alleged intoxication of a drug, was not in such a condition that he could not have approached the police. Therefore, this long delay of 11 days in lodging the FIR raises suspicion about the story of the prosecution.
26. What also raises suspicion about the story of the prosecution is the fact, that according to the complainant, after he was administered some intoxicating substance, he lost consciousness and next day, when he regained his consciousness, he found himself at his house at Nangloi. Neither the complainant, the IO nor any other witness has explained that how the complainant reached his house at Nangloi? Who took him to his house at Nangloi and how the person, who had taken him in unconscious condition, could find out his address and take him to his house? This missing piece of story creates doubts whether in fact, the complainant was administered something intoxicating and had lost consciousness or not.
27. This stand of the complainant is further belied by the reply of the doctor which he had given to the police in response to notice u/s 91/160 Cr.P.C. The reply is Ex.PW6/D. As per that reply, the complainant had FIR No. 143/08 PS New Usmanpur 13 of 15 (Parveen Singh) ASJ03/NE/KKD: 09.04.2015.
informed the doctor that after consuming the intoxicating substance, he had lost his consciousness and 56 hours later, he regained his consciousness and was able to return home. Meaning thereby that the complainant regained consciousness at the same place where he was allegedly intoxicated and had lost consciousness. It also emerges that after 56 hours, the complainant was conscious enough to go back to his house. Still he did not report the matter to the police. This also creates suspicion about the story of the prosecution.
28. The story of the prosecution further becomes suspicious in view of the manner in which accused Mohd. Alam and Raza were arrested. It is an unbelievable coincidence that almost 12 days after the incident, the witness alongwith the police would be present at the place of incident and the accused from the same place would be seen pushing away the stolen motorcycle and would be arrested with the motorcycle. It is highly unbelievable that a person who had stolen an article almost 12 days ago, would allow that article to lie at the same place and exactly on the same day when the police is present on the spot and investigating the matter, he would try to remove that article from that place.
29. I also have to notice that the doctor, who had treated the complainant and had appeared as PW6, in his cross examination had categorically stated that there were no visible symptoms which may infer the intake of poison or intoxicant.
FIR No. 143/08
PS New Usmanpur 14 of 15 (Parveen Singh)
ASJ03/NE/KKD: 09.04.2015.
30. Therefore, firstly the entire story of the complainant that he was administered something by the accused is doubtful and secondly, there is no evidence that what was allegedly administered to the complainant was intoxicating.
31. In view of the shortcomings in the story of the prosecution and evidence led by the prosecution as noticed about, I find that the story of prosecution comes under clouds of suspicion. The accused are accordingly given the benefit of doubt. They are accordingly acquitted of charges framed against them. Their bail bonds stand cancelled. Sureties stand discharged. File be consigned to the record room.
Announced in open court (Parveen Singh) today on 09.04.2015. Additional Sessions Judge03 (This judgment contains 15 pages (NE): Karkardooma Courts, and each page bears my signatures.) Delhi.
FIR No. 143/08
PS New Usmanpur 15 of 15 (Parveen Singh)
ASJ03/NE/KKD: 09.04.2015.