Delhi District Court
Fir No. 270/04: State vs . Om Prakash Etc. Page 1 Of 37 on 8 June, 2012
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 116/08
FIR No. 270/04
P.S. Rajouri Garden
U/S: 380/328/34 IPC
STATE
Versus
(1) Om Prakash
s/o Shri Pal @ Gillan Singh
r/o village Mahesh Pura Thakran,
PS Subhash Nagar, Distt. Bareili, UP
(2) Ahmad Navi @ Patri
s/o Sh. Gulam Navi
r/o village Harrampur,
Distt. Bareili, UP
(3) Jamaluddin
s/o Nizamuddin
r/o village Harrampur,
Distt. Bareili, UP
(4) Navi Hussain
s/o Gulam Hussain
r/o village Harampur,
Distt. Bareili, UP
Date of Institution: 15072004
Date of arguments: 08062012
Date of judgement: 08062012
FIR No. 270/04: State Vs. Om Prakash Etc. Page 1 of 37
JUDGMENT
1. The case of the Prosecution, in brief, is that complainant Wahid Hussain was residing at B388, Raghubir Nagar, Delhi along with his cousin brother Jamaluddin, Sattar, brotherinlaw Sakuri, Sharafat, and Abdul Hamid and they all used to do the work of selling ladies suits. Sakuri, Sattar and Abdul Hamid had gone to their village since prior to many days. On 11042004, complainant along with Jamaluddin and Sharafat were present in the room and at about 9 pm two boys came and stated that they had been sent by Sakuri and they want to purchase clothes for marriage. They were served food and due to odd hours, those two boys were asked to stay there. At about 11 pm, Jamaluddin prepared tea and served tea to complainant, Sharafat and those two boys and after consuming tea, complainant, Jamaluddin and Sharafat became unconscious. On 12042004, they were shifted to DDU hospital. Jamaluddin had mixed some intoxicant substance in the tea served to complainant and Sharafat. Jamaluddin also consumed the tea. On 12042004, they regaining consciousness in DDU hospital and on 13042004, statements of complainant, Sharafat and Jamaluddin were recorded. After discharge from the hospital, they found their cash and bundle of clothes containing 126 ladies and FIR No. 270/04: State Vs. Om Prakash Etc. Page 2 of 37 gents suits missing from their room. DD no. 4 and 6 were recorded and later on FIR was registered. On 19052004, on the basis of secret information, the police team reached at P1/12, Mangolpuri where accused Om Prakash jumped in the gali from first floor but was apprehended by the police and also identified by complainant Wahid Hussain. Coaccused Jamaluddin, Ahmad Nabi and Navi Hassan were also apprehended from the abovesaid premises. At the instance of accused persons, 126 ladies and gents suits were recovered. After completion of investigation, chargesheet was filed u/s 380/328/34 IPC.
2. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 328/380/34 IPC & 411 IPC was framed against all the accused. All accused pleaded not guilty and claimed trial.
3. In order to prove its case, Prosecution examined 11 witnesses. Statements of the accused were recorded u/s 313 Cr. P. C. wherein they denied all the allegations made against them. The accused opted to lead evidence in their defence and examined 04 witnesses.
4. I have heard Ld. Defence counsel and the Ld. APP for State and have perused the entire records.
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5. The Ld. defence counsel has argued that the accused have been falsely implicated in this case since no such offence as charged have been committed by them. In the previous statement, only 126 suits were shown to be stolen whereas in examination in chief of PW1, the suits have been shown as 136. No gents suits mentioned in the charge. Whereas, in recovery, gents suits were mentioned. No receipts of the ownership of the suits have been found on record. Recovery was made after two months. No thumb impression were taken on any paper at the place of recovery. Therefore, all the papers were prepared while sitting in the PS. No arrest or personal search of the accused persons was conducted. There are major contradictions in the testimonies of PWs. There is no poison mentioned in the medical report. Whereas, the Ld. APP for State has argued that the accused persons administered the poisonous substance in the tea of complainant. Accused Jamaluddin gave tea to Wahid Hussain and Sarafat and after consuming the tea, they became unconscious and regained consciousness in DDU hospital. The accused persons committed theft of bundle of cloths consisting of 126 ladies and gents suits. The cloths of ladies suits were recovered from the accused persons. As per the FSL report, phenobarbitone was found in the gastric FIR No. 270/04: State Vs. Om Prakash Etc. Page 4 of 37 lavage which was collected from the hospital and sent to the FSL for examination. Further, there are no major contradictions in the testimony of PWs. If there are minor contradictions, they do not go to the root of the case. Even otherwise, the accused cannot take benefit of faulty or defective investigation. Ld. APP for the State, in support of his arguments, has relied upon the judgments reported in the case of Kalam @ Abdul Kalam (Md.) Vs. State of Rajasthan, 2008 IV AD (SC) 453; Paramjeet Singh @ Pamma Vs. State of Uttarakhanda, AIR 2011 SC 200; Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR 2004 SC 1920; Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J. 2653(1) and State of UP Vs. Krishna Master & Ors., 2010 CRI. L.J. 3889.
6. Let us firstly discuss the legal position under section 328 and 380 IPC. Section 328 IPC reads as under: "Causing hurt by means of poison, etc., with intent to commit an offence.Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating, or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term FIR No. 270/04: State Vs. Om Prakash Etc. Page 5 of 37 which may extend to ten years, and shall also be liable to fine." The literal meaning of 'stupefying' is 'making (someone) unable to think or feel properly'. Further, literal meaning of 'unwholesome' is 'not helping towards good health and physical or moral wellbeing'. Section 328 IPC is merely an extension of the provision of section 324 IPC. Under section 324 IPC actual causing of hurt is essential. The offence under this section is complete even if no hurt is caused to the person to whom the poison or any other stupefying, intoxicating, or unwholesome drug is administered. If a servant puts poison into a coffeepot and the mistress drinks the poisoned coffee, this will amount to 'administering' poison. In the case of Dharam Das Wadhwani AIR 1975 SC 241=1974 Cri.L.J. 1249 (SC), the accused, a compounder, in a hospital, bore a grudge towards a senior doctor, and when he was requested to bring aspirin, he brought two packs to the doctor, of which one contained strychnine pills and the other aspirin and the doctor having consumed the strychnine pills became sick immediately, it was held that the appellant was clearly guilty under section 328. Where a deleterious drug is administered, an offence is committed under this section although life is not endangered. Thus, where a man administered the juice of some leaves to some villagers by way of ordeal and FIR No. 270/04: State Vs. Om Prakash Etc. Page 6 of 37 some of them showed symptoms of poison, this offence was held to have been committed. Where the accused administered a drug to a female to excite her sexual passion and desire, in order that he may have sexual connection with her, it was held that he had administered an unwholesome drug. In the case of Ganga Das 2005 Cri.L.J. 2365 (Utt.), some poisonous substance was administered to copilgrims by serving the food when they all were staying in a hotel room, their conviction for offence was held proper. Where the accused mixed milk bush juice in his toddy pots, knowing that if drunk by a person it would cause injury, with the intention of detecting an unknown thief who was always in the habit of stealing his toddy, and the toddy was drunk by some soldiers, who purchased it from an unknown vendor, it was held that he was guilty under this section.
7. Section 380 IPC reads as under: "Theft in dwelling house, etc.Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Under this section, the prosecution must prove:
FIR No. 270/04: State Vs. Om Prakash Etc. Page 7 of 37
(i) that the property in question is movable property;
(ii) that such property was in the possession of a person;
(iii) that the accused moved such property whilst in the possession of that person;
(iv) that he did so without the consent of that person;
(v) that he did so in order to take the same out of the possession of that person;
(vi) that he did so with intent to cause wrongful loss to that person or wrongful gain to himself.
(vii) that property was at the time of the theft in a building, tent or vessel. All that is necessary is that the property should be under the protection of the building; it is not necessary to show unlawful entrance into the building.
(viii) that such building, tent or vessel, was then being used as a human dwelling or for the custody of property.
8. In view of the legal position under the aforesaid sections of IPC and also above arguments of the Ld. Defence counsel and the Ld. APP for the State as well as the judgements relied upon, let us examine the evidence led in this case as to whether the accused committed the offence or they have been falsely implicated in this case. PW1 Wahid Hussain deposed that he is doing business of FIR No. 270/04: State Vs. Om Prakash Etc. Page 8 of 37 selling clothes in a feri (selling clothes by going door to door) and he was residing at B388, Raghubir Nagar, Delhi on rent since two years prior to the incident. At the time of incident, he along with his brotherinlaw Sakur Ahmad, Abdul Hamid, Sharafat and Jamaluddin were residing in the abovementioned house. on 11042004, he along with Jamaluddin and Sharafat were present in their house and Abdul Hamid had gone to their village. At about 9 pm, two boys came to their room and they told that they were sent by his brotherinlaw Sakur Ahmad @ Sakuri to purchase clothes and they also told that they want to purchase the clothes for marriage. They provided food to those two boys and at about 11 pm, Jamaluddin prepared tea and they consumed tea and Jamaluddin gave tea to those two boys in glasses and Jamaluddin gave tea to PW1 as well as Sharafat. After consuming the tea, they became unconscious and on 12042004, they regained consciousness in DDU hospital. After discharge from the hospital, they found that their cash, bundle of clothes consisting of 126 ladies suits and gents suits missing from their room. PW1 deposed that out of those two boys, one was present in court and pointed towards accused Om Prakash by saying that he is one of those persons who came to his house. PW1 correctly identified accused Jamaluddin FIR No. 270/04: State Vs. Om Prakash Etc. Page 9 of 37 present in court who had prepared the tea and gave the same to him and Sharafat and those two boys. PW1 further deposed that accused Jamaluddin told him that accused Om Prakash and other boys were known to him. Accused Jamaluddin mixed some intoxicant/ poisonous substance in the tea provided to him and Sharafat and due to this reason, they became unconscious. On inquiry by him and Sharafat, accused Jamaluddin told that he told nothing about the whereabouts of the clothes. Police met him in the hospital on 13042004 and inquired him about the incident and he told the true facts to the police and police recorded his statement Ex. PW1/A bearing his left thumb impression at point A. After discharge from the hospital, he pointed out the place of incident to the police and police prepared the site plan of the place of occurrence at his instance. PW1 further deposed that accused Nabi Hasan, present in court, Om Prakash, present in court, Ahmad Nabi and Jamaluddin were arrested by the IO in his presence vide arrest memos Ex. PW1/B, PW1/C, PW1/D and PW1/E and all memos bear his thumb impression at point A. Their personal search memos Ex. PW1/F to PW1/I were also prepared which also bear his left thumb impression at point A. Accused were interrogated by the police and they made disclosure statement about their involvement in the FIR No. 270/04: State Vs. Om Prakash Etc. Page 10 of 37 present incident. Thereafter, accused persons led them to P1/12, Mangolpuri, Delhi and got recovered four bundles of ladies and gents clothes containing 126 suits and they were taken into possession vide memo Ex. PW1/K. Later on, these clothes were taken on supardari by him and Sharafat from the court. The witness identified the three bundles of clothes containing 136 ladies and gents suits unstitched as Ex. P1 which were stolen by the accused persons.
9. PW2 Sharafat Hussain @ Sharafat Ali deposed that he is doing the business of selling clothes on Pheri. In the year 2004, he was residing at B388, Raghubir Nagar along with Shakur Ahmad, Abdul Hamid, Wahid Hussain and Jamaluddin and they are also doing the business of selling clothes on Pheri. On 11.04.2004, PW2, Wahid Hussain and Jamaluddin were present at the house. At about 9.00 pm, two boys came and told that they were sent by Shakur Ahmad and wanted to purchase the clothes for marriage. They served them food. Jamaluddin prepared the tea which was served to those two boys as well as to them. After taking the tea, they became unconscious. They regained their senses at DDU Hospital after 36 hours. After discharge from the hospital, when they returned to the house, he found his Gathri i.e. bundle of clothes FIR No. 270/04: State Vs. Om Prakash Etc. Page 11 of 37 containing 137 ladies suits and pants and one bag containing Rs. 7000/ belonging to him missing. Total six gathris containing ladies and gents suits were missing from the house. PW2 pointed out towards accused Om Prakash, present in court and stated that he was one of those persons who had come at their house for the purchase of clothes for marriage and the other persons who had come were not present in court. PW2 identified the accused Jamaluddin correctly who had served tea. Jamaluddin had first served the tea to Om Prakash and other persons who had come for the purchase of the clothes and then brought two more glasses of tea and served them to PW2 and Wahid Hussain. On being asked, Jamaluddin brought tea for himself also. Since their goods were missing, they lodged an FIR with the police. They then went to their village where they felt suspicion about the involvement of Jamaluddin. Police recovered three gathris from the house of accused Nabi Hussain (correctly identified) from Mangol Puri. PW2 volunteered to say that he did not accompany the house of accused Nabi Hussain. PW2 identified his stolen goods at the PS. A total of 126 ladies suits/pants were recovered by the police. The witness identified the suits Ex. P1 out of them his gathri contained 42 suits which were produced as part of three gathris of clothes containing FIR No. 270/04: State Vs. Om Prakash Etc. Page 12 of 37 126 suits.
10. In his crossexamination by the Ld. APP for the State, PW2 deposed that Jamaluddin had put some intoxicating tablet in the tea due to which, he and Wahid Hussain became unconscious. PW2 further deposed that he had mentioned the H. No. P1/12, Mangol Puri to the police and informed about the names of other accused persons as Ahmad Nabi, Nabi Hasan, Om Prakash, Jamaluddin along with Kaptan who committed theft and kept the clothes in three Gaanths (bundles) at the aforesaid house. PW2 further deposed that on 19.05.2004, he joined the investigation with police and he along with Abdul Hamid and Wahid Hussain reached P1/12, Mangol Puri, Delhi and identified the accused Om Prakash being the person who came to their house on 11.04.2004. PW2 also deposed that accused Om Prakash on seeing the police party, started running away and took a jump from the room situated at the second floor at that premises but he was apprehended. PW2 further deposed that accused Jamaluddin, Ahmad Nabi and Nabi Hassan, were also apprehended who were also found sitting there. PW2 also deposed that three Gathris of clothes each containing 42 pieces of clothes were also found in the possession of the accused persons and they identified their Gathris containing clothes which FIR No. 270/04: State Vs. Om Prakash Etc. Page 13 of 37 were taken into possession vide seizure memo Exbt. PW1/K. All the four accused persons namely Om Prakash, Ahmad Nabi, Jamaluddin and Nabi Hassan were interrogated and their disclosure statements Exbt. PW2/A, PW2/B, PW2/C and Exbt. PW2/D were reduced into writing. All the accused persons were arrested and their personal search was carried out vide memos Exbt. PW1/B, PW1/C, PW1/D and PW1/E respectively and their personal search was carried out vide memos Exbt. PW1/F, PW1/G, PW1/H and Exbt. PW1/J. All the accused persons thereafter voluntarily led the police party to house No. D388, Raghubir Nagar, Delhi and pointed out the place of occurrence vide pointing out memo Ex. PW2/E from where they committed theft after making them unconscious. PW2 further deposed that he had forgotten the aforesaid fact regarding joining the investigation with police on 19.05.2004, regarding recovery, arrest of accused and other proceedings due to lapse of time.
11. PW3 HC Amit Kumar deposed that on 13.04.2004, he was posted at Police Post Raghubir Nagar, PS Rajouri Garden and on that day, he along with ASI Latif Khan went to DDU Hospital vide DD No. 8 where three persons were lying admitted in the hospital. They were declared fit for statement. ASI Latif Khan recorded the FIR No. 270/04: State Vs. Om Prakash Etc. Page 14 of 37 statement of Wahid Hussain. ASI Latif Khan had seized three sealed samples from the doctor at the hospital. PW3 was then sent to PS for registration of FIR and after registration of the FIR, he came back at B388, Raghubir Nagar and handed over the copy of FIR and Rukka to ASI Latif Khan. ASI Latif Khan prepared the site plan on the pointing out of Wahid Hussain. They went in search of the stolen goods of the complainant but they could not be recovered. On 02.07.2004, he was working as MHCM, PS Rajouri Garden. On that day, at the instructions of ASI Latif Khan, he handed over all the three sealed samples and FSL form to Ct. Virender vide RC No. 207/21 and was sent to CFSL. Constable Virender after depositing the samples at CFSL, returned back the copy of the RC at the Malkhana. PW4 Retired SI Om Prakash deposed that on 13.04.2004, he was posted at PS Rajouri Garden as Duty Officer between 5.00 pm to 1.00 am. On that day, HC Amit Kumar brought a Rukka sent by ASI Latif Khan on which basis, he registered the FIR Ex. PW4/A under Section 380/328/34 IPC (OSR). He also made endorsement Ex. PW4/B on the Rukka. PW5 Abdul Hamid deposed that he used to sell unstitched ladies suits and pantshirts in different areas as a hawker. About six years ago, he along with Shakur Ahmad, Wahid, Sharafat and Jamaluddin used to FIR No. 270/04: State Vs. Om Prakash Etc. Page 15 of 37 reside at house No. B388, Raghubir Nagar. They were also doing the same business. He left his 70 pieces of ladies and gents clothes in the said room and gone to his village for harvesting the crops. He along with Shakur Ahmad returned back from the village to Delhi after about 15 days and found his clothes missing from the said room. The clothes of Shakur Ahmad were also found missing. His 42 out of 70 pieces of missing clothes were recovered by the police and he got released the same from the court but the missing clothes of Shakur could not be recovered. The approximate amount of the missing clothes was around Rs. 20,000/. PW5 deposed that he knows only accused Jamaluddin who was also residing with them and doing the same job but at the time of incident, he was idle. PW5 identified 42 ladies and gents cloth pieces Exbt. P1 to Exbt. P42 which were released to him on superdari.
12. PW6 Shakur Ahmad deposed that he used to sell ladies suits in different areas of Raghubir Nagar as a hawker. At the time of incident, he along with Wahid, Abdul Hamid, Sharafat, Sattar and Jamaluddin used to reside at house No. B388, Raghubir Nagar. All the aforesaid persons were also doing the same business of selling suits. He along with Abdul Hamid had gone to village for harvesting season of wheat one week prior to the date of occurrence. They FIR No. 270/04: State Vs. Om Prakash Etc. Page 16 of 37 both returned back to Delhi after 2022 days and went to their room and noticed that their clothes were missing from the said room. PW6 enquired regarding his missing clothes from Wahid and Sharafat and they informed him that the same had been stolen. He along with Abdul Wahid, Hamid and Sharafat went to the police station to lodge report regarding theft. Police recorded their statements and registered the present case. PW6 further deposed that he knew accused Jamaluddin present in court, as he used to reside with them in the said room. Accused Jamaluddin was not doing any job and was idle at that time. His missing clothes i.e. ladies suits were 50 in number and their approximate value was Rs. 10,000/. His missing clothes were not recovered.
13. PW7 Ct. Dharambir Singh deposed that on 19.05.2004, he was posted as Constable at PP Raghubir Nagar, PS Rajouri Garden. He joined investigation of the present case with ASI Latif Khan. IO received a secret information that accused persons wanted in the present case were present in PBlock, Mangol Puri. He along with HC Amit and complainant Wahid Hussain and witness Sharafat Ali reached PBlock, Mangol Puri in search of accused persons. The police team reached at house No. P1/12, Mangol Puri on the first floor where four accused persons namely Om FIR No. 270/04: State Vs. Om Prakash Etc. Page 17 of 37 Prakash, Jamaluddin, Ahmad Nabi and Nabi Hassan (correctly identified) met them along with three bundles of clothes. Witnesses Wahid Hussain and Sharafat Ali identified accused Om Prakash who had visited them on 11.04.2004 at their room and informed the police that said Om Prakash took away the cloth bundles and some cash amount after administering some poisonous substance to them. Om Prakash jumped from the first floor on seeing the police team and received injury on his foot but all the four accused were nabbed by the police team. Wahid Hussain and Sharafat Ali identified the goods belonging to them which were stolen by the accused persons. Accused Om Prakash in his interrogation disclosed that other accused namely Jamaluddin and Ahmad Nabi were also involved in the incident of intoxication and theft. IO recorded the disclosure statement of all the accused persons separately already exhibited as Exbt. PW2/A to Exbt. PW2/D. IO also seized all the three bundles of clothes and each bundle was containing 42 pieces of clothes including ladies and gents vide seizure memo already Exbt. PW1/K. The arrest memos and personal search memos of accused persons were also prepared and he had signed all the memos. Thereafter, accused persons took the police party to the place of incident i.e. house No. B388, FIR No. 270/04: State Vs. Om Prakash Etc. Page 18 of 37 Raghubir Nagar, Delhi and pointed out the place of incident vide pointing out memo already Exbt. PW2/E. The witness identified the 126 unstitched ladies and gents suits as Ex. P1 (collectively).
14. PW8 Dr. Nishu Dhawan, CMO, DDU Hospital deposed that she was deputed by MS, DDU hospital to prove the MLC no. 8020. As per MLC no. 8020, one person Jamaluddin s/o Nizamuddin aged 25 years was brought by HC Sita Ram from PCR with the alleged history of taking unknown intoxicated substance given by someone at night as told by the patient. Dr. Renu Sehgal prepared the MLC Ex. PW8/A upon which she identified the signature of Dr. Renu Sehgal at point A as she had worked with her and she identified her writing and signature. PW9 Dr. M. Swami, CMO, DDU Hospital, Delhi deposed that he was deputed by the Medical Superintendent, DDU Hospital to depose in the present case to prove MLC No. 8020 and 8019 which were prepared by Dr. Renu Sehgal and Dr. Vishal Sehgal in respect of injured persons Jamaluddin and Wahid Hussain. He was conversant with the handwriting and signatures of both the doctors as they had worked under his supervision. The MLC of injured Jamaluddin already exhibited as Exbt. PW8/A prepared by Dr. Renu Sehgal and that of injured Wahid Hussain bearing No. 8019 Exbt. PW9/A was FIR No. 270/04: State Vs. Om Prakash Etc. Page 19 of 37 prepared by Dr. Vishal Sehgal. He identified the handwriting of both the doctors on the MLC and their signatures at point A on both the MLCs. After medical examination of both the injured persons, the sample of gastric Lavage was collected and handed over to the IO. PW9 also saw the MLC No. 7661 Ex. PW9/B in respect of Sharafat son of Mohd. Hussain which was prepared by him and bearing his signature at point A. He also collected sample of gastric lavage of the patient and handed over the same to the IO after sealing the same. The injured persons were referred to Department of Medicines for further treatment and management. PW10 Ct. Satish Kumar deposed that on 12042004 he was working as DD Writer in PP Raghubir Nagar, PS Rajouri Garden. On that day, at around 8:40 am on receipt of information from Control Room, West District regarding theft and intoxicating material given to the occupants of house no. B388, Raghubir Nagar, near Shivaji Enclave, Rajouri Garden, Delhi, he recorded DD no. 4 Ex. PW10/A (OSR). The said DD was marked to ASI Latif Khan for investigation who along with Ct. Shri Bhagwan went to investigate the matter.
15. PW11 Retd. ASI Latif Khan deposed that on 12042004, he was posted as ASI at PP Raghubir Nagar, PS Rajouri Garden. On that day, on receipt of said DD no. 4, he along FIR No. 270/04: State Vs. Om Prakash Etc. Page 20 of 37 with Ct. Shri Bhagwan went to the place of occurrence i.e. B388, Raghubir Nagar, Shivaji Enclave where he came to know that three persons were already shifted to hospital by PCR. Thereafter, he along with Ct. Shri Bhagwan reached at DDU hospital and collected MLC of all the three persons who were served some intoxicated material. All the three persons were declared unfit for statement by the doctor. He collected gastric lavage and one sample seal of CMO, DDU hospital vide seizure memo Ex. PW11/A. Thereafter, he came back to Police Chowki. PW11 again went to DDU hospital on 13042004 along with HC Amit and made a request Ex. PW11/A1 to the doctor for recording statement of persons admitted in the hospital on which doctor gave permission as admitted persons were fit for statement. He recorded statement of Wahid Hussain already Ex. PW1/A. On the basis of said statement, he made endorsement vide Ex. PW11/B and deputed HC Amit for registration of FIR at PS Rajouri Garden. Thereafter, he along with HC Amit and all the three injured persons came back to the place of occurrence. He prepared site plan Ex. PW11/C at the instance of Wahid Hussain and recorded statement of all the three injured persons. Complainant in his statement disclosed that all the three injured along with two other persons namely Abdul Hamid and one Shakuri were doing business FIR No. 270/04: State Vs. Om Prakash Etc. Page 21 of 37 of selling clothes in the market, used to reside on the given address. On 11042004, two boys came to them at around 9 pm and asked to meet Shakuri as they wanted to purchase clothes for the purpose of marriage. Jamaluddin informed them that both the persons namely Abdul Hamid and Shakuri had gone to the village and Jamaluddin requested them to stay with them in the night and they will arrange clothes for them. They were also known to Jamaluddin. After eating dinner, Jamaluddin prepared tea and served the same to Wahid Hussain, Sharafat Ali and also consumed the tea himself. Jamaluddin, Wahid Hussan and Sharafat Ali became intoxicated after taking tea. The names of persons who visited them to purchase the clothes came to be known as Om Prakash and Nabi Ahmad. They left in the night hours along with clothes of the complainant and his associates.
16. PW11 further deposed that on 17052004, the police team went to village Harampur, District Bareli, UP in search of accused persons but no accused could be traced out. They came back to Delhi. On 19052004, on the basis of secret information, the police party reached at P1/12, Mangolpuri and on seeing the police team, accused Om Prakash jumped in the gali from the first floor and he received injuries in his legs. He was apprehended by FIR No. 270/04: State Vs. Om Prakash Etc. Page 22 of 37 the police team and he was also identified by Wahid Hussain. After formal interrogation, accused Om Prakash was arrested vide arrest memo Ex. PW1/C and his personal search memo Ex. PW1/G was also prepared. PW11 recorded disclosure statement of accused Om Prakash (correctly identified) vide Ex. PW2/A. Other accused persons namely Jamaluddin, Nabi Hassan, and Ahmad Nabi were also apprehended from the aforesaid premises. All the other three accused persons namely Ahmad Nabi, Jamaluddin and Nabi Hussain (correctly identified) were also arrested in the present case vide arrest memos already Ex. PW1/B, PW1/D and PW1/E. Their personal search memos already Ex. PW1/F, PW1/H and PW1/J were also prepared. After interrogation, he recorded disclosure statement of all the three accused persons vide memo Ex. PW2/B, PW2/C and PW2/D. At the instance of accused persons, 126 ladies suits and gents clothes were recovered from the said premises in three bundles. Clothes were seized vide seizure memo already Ex. PW1/K. The case property was got photographed at the place of recovery through a private photographer which are marked P1 to P11. All the accused persons were got medically examined at DDU hospital and they were produced in court and sent to J/C. The case property was deposited in Malkhana. Later on, the case property FIR No. 270/04: State Vs. Om Prakash Etc. Page 23 of 37 was released to Supardars namely Wahid Hussain, Sharafat Ali and Abdul Hamid. During investigation, he collected photocopy of receipts Marked PX (collectively) regarding purchase of clothes by Wahid, Sharafat Hussain and Abdul Hamid. He sent the sample of gastric lavage to FSL Rohini. After completion of investigation, he prepared the challan and file was put up before SHO who forwarded the same in the court. The witness identified the three bundles of clothes including 126 ladies and gents suits as Ex. P1 collectively.
17. DW1 Jagbir deposed that accused Om Prakash is his neighbour in the village and he does not know anything about this case. However, he knows that Delhi Police had gone to his village and lifted the accused Om Prakash from his house in his presence on 18052004 at about 8--9 am. There were 3 or 4 police officials but he does not know their names. There were other persons present at the time of lifting the accused Om Prakash from his house by the Delhi Police. He did not enquire from the police officials as to why they were lifting the accused Om Prakash at that time. However, the family members of accused Om Prakash inquired about it from the police officials. At the time of lifting of the accused Om Prakash, the police officials did not pick up or collect any material i.e. clothes, gathri or any goods from the house of the FIR No. 270/04: State Vs. Om Prakash Etc. Page 24 of 37 accused Om Prakash. There were two other public persons along with the Delhi Police officials. There was no local police officials along with Delhi Police Officials. No statement of any kind was recorded by the Delhi Police officials at that time. The Delhi Police officials returned by 9 am on the same day i.e. 18052004. He has come upon the instance of accused Om Prakash. There is no criminal case pending against the accused Om Prakash in his village. Accused Om Prakash is agriculturist. DW2 Babu Ram Pal deposed that accused Ahmad Navi @ Nanhe, Jamaluddin and Navi Hasan belong to his village. On 18052004, all these three accused persons were lifted from their respective houses at Bareli, UP by Delhi Police at 6 pm. He was called by the Chowkidar of their village namely Sadhu Ram as DW2 was Pradhan of the village at that time. Besides these three accused, police officials met him, however, they did not disclose their names to him. On inquiry, the police officials told DW2 that they were taking the accused persons to make certain inquiries from them. Nothing else was told by the police. Nothing was recovered by the police from the house of accused persons. The police officials left the village at 7 am. He does not remember the number of the vehicle in which the police officials came. However, it was of white colour. No one was FIR No. 270/04: State Vs. Om Prakash Etc. Page 25 of 37 accompanying the police from public at that time. No local police officials was present. He came to know that accused persons were arrested and sent to jail in Delhi.
18. DW3 Mohd. Sattar deposed that he is a summoned witness. On 18052004, police reached their village Harampur in the morning at 6:30 am in private Jeep. There were three police officials in the said Jeep. The name of one of official was Mohd. Latif. They were accompanied with two other persons of their village namely Wahid Hussain and Sharafat. Police called Nabi Hassan, Ahmad Nabi and Jamaluddin. Police told them on inquiry that they were taking them to Delhi for interrogation. They were not accompanied by any local police. All the three persons were taken away by those police officials in their vehicle. The Pradhan of the village namely Babu Ram also made inquiry from the police official that where they were taking the aforesaid person and police officials replied that they were taking them to Delhi in connection with inquiry of some case. Nothing was recovered by the police from the said persons in the village. Police did not release the aforesaid persons and sent them to jail. DW3 did not make any complaint against those police officials who took away aforesaid persons from the village. The date of taking away was confirmed by him from FIR No. 270/04: State Vs. Om Prakash Etc. Page 26 of 37 Chowkidar of the village and told him orally. The aforesaid persons were got arrested by Sharafat and Wahid Hussain due to some old enmity on the election of village Pradhan. All the three accused persons mentioned above along with Sharafat and Wahid are doing work of selling clothes separately in Delhi. DW4 Alijan deposed that he is a summoned witness in this case. On 18052004, police came to their village in a long vehicle of white colour. There were three police officials and two public persons. One Wahid Hussain was of their village and other was of some other village. Police called Jamaluddin, Ahmad Nabi and Nabi Hassan. Many persons of the village gathered there including Pradhan Babu Pal, Sadhuram, Chowkidar. Police took aforesaid three persons of the village with them in the same vehicle. Police told them that they were taking aforesaid persons to Bhamora PS of UP. They were not accompanied by any other UP police official. They took the aforesaid persons to Delhi. No cloth bundle recovered at the instance of aforesaid persons from their house. Wahid Hussain got them arrested due to some enmity on account of local election of the village and got them falsely implicated in the above case.
19. During crossexamination, PW1 deposed that they used to purchase suits from Bareily and Chandni Chowk. PW1 further FIR No. 270/04: State Vs. Om Prakash Etc. Page 27 of 37 deposed that Jamaluddin prepared the tea at his own and Jamaluddin had not prepared the tea in his presence. PW1 admitted the suggestion that Jamaluddin brought the tea from the other room and served them. When PW1 regained senses, he found Jamaluddin also lying admitted in the hospital. IO recorded statement of PW1 in the hospital. PW1 further deposed in his cross examination that 4042 suits out of the recovered 126 suits belonged to him. PW1 denied the suggestion that total suits recovered were 136 and not 126. PW1 also deposed that he had seen only 126 suits on 18032008 which were on supardari with him and even he produced 126 suits. PW1 denied the suggestion that the bundle of suits does not belong to him and that is why he cannot tell how many suits were ladies and how many suits were gents exactly. PW1 further deposed that he produced the bundle in the court in the same condition in which he received it from the PS. PW1 also deposed that they had taken the police officials to H. no. P1/12, Mangolpuri and it was residence of accused Navi Jan (PW1 pointed out at Nabi Hussain as Navi Jan). PW1 further deposed in his crossexamination that they had come to know that their goods were lying at P1/12. PW1 further deposed that accused Om Prakash is not of their village while other three accused are from FIR No. 270/04: State Vs. Om Prakash Etc. Page 28 of 37 their village. All the four accused were found present at the first floor of P1/12, Mangolpuri and the suits were lying in gathris. PW1 identified the gathri from his suits. PW1 denied the suggestion that accused Jamaluddin, Navi Hussain and other two accused persons were apprehended and arrested from the village Harrampur. PW1 further denied the suggestion that accused persons were falsely implicated due to personal enmity or that no recovery was effected from the accused.
20. PW2 in his crossexamination deposed that accused Jamaluddin had put some intoxicating tablet in the tea due to which he and Wahid Hussain became unconscious. PW2 further deposed that accused Jamaluddin had prepared the tea in the veranda and he had brought the tea glasses in a plate. PW2 did not see Jamaluddin drinking the tea as he had become unconscious. Even Jamaluddin did not make the tea in his presence. PW2 in his cross examination categorically deposed that he became unconscious after taking the tea and therefore, he was sure that the accused Jamaluddin had mixed something in the tea. PW2 further deposed that it was possible that there was something mixed in the milk or tea leaves due to which he became unconscious. PW2 denied the suggestion that Jamaluddin had not mixed anything in their tea. FIR No. 270/04: State Vs. Om Prakash Etc. Page 29 of 37 PW2 further denied the suggestion that no theft took place at their house. PW2 also denied the suggestion that stolen property was not recovered from the accused persons. PW2 also denied the suggestion that he has got the accused falsely implicated because of previous enmity.
21. During examination, PW7 deposed that police team reached at H. No. P1/12, Mangolpuri on the first floor where four accused persons namely Om Prakash, Jamaluddin, Ahmad Nabi and Navi Hussain (correctly identified) met them along with three bundles of clothes. PW7 further deposed that witnesses Wahid Hussain and Sharafat Ali identified accused Om Prakash who had visited them on 11042004 at their room and informed the police that said Om Prakash took away the cloth bundles and some cash amount after administering some poisonous substance to them. The accused Om Prakash jumped from the first floor on seeing the police team and received injury on his foot but all the four accused present in the court were nabbed by the police team. PW7 denied the suggestion that accused Om Prakash was falsely implicated in this case at the instance of the complainant and was brought from village Mahesh Thakran. PW7 further denied the suggestion that neither the bundles of clothes nor the accused persons were found FIR No. 270/04: State Vs. Om Prakash Etc. Page 30 of 37 at P1/12, Mangolpuri. PW7 also denied the suggestion that he did not visit the aforesaid address or that nothing was recovered from there. PW7 further denied the suggestion that he did not join the investigation in the present case either at Delhi or at the villages as he was unable to tell the timings etc. PW9 Dr. M. Swami deposed in his crossexamination that all the patients were discharged from the hospital after two days. PW11/ IO deposed in his crossexamination that the fact regarding unfit for statement on the MLC of intoxicated persons was not mentioned on the MLC. However, PW11 volunteered that Dr. had mentioned this fact on his application and the doctor had made his initial on the aforesaid application. PW11 denied the suggestion that he had manipulated the signatures of the doctor at his own. PW11 further denied the suggestion that all the injured were conscious at the time of their admission. PW11 deposed that injured persons were discharged after recording their statements. PW11 also deposed in his crossexamination that he prepared site plan on the pointing out of Sharafat and Wahid.
22. DW1 in his crossexamination deposed that he is not a summoned witness and he has come to depose in the court at the request of accused Om Prakash. DW1 does not know anything about this case that accused Om Prakash along with his other co FIR No. 270/04: State Vs. Om Prakash Etc. Page 31 of 37 accused had stolen bundles of ladies suits and cash amount from H. No. B388, Raghubir Nagar belonging to the complainant and his other relatives after administering some intoxicating substance in their tea in the night of 11042004. During crossexamination, DW2 deposed that he was informed by Jamaluddin that summons was sent by court to him but the same was not received to him. He was informed about the date of proceedings in the court by accused Jamaluddin and he came to depose at the request of accused persons. DW2 does not know the nature of work of the accused at Delhi. DW2 admitted that being his covillager, he came to depose in the court otherwise, he did not know about the activities of accused persons in Delhi or otherwise. DW3 in his cross examination deposed that accused persons are in their blood relations but they are not in their immediate close family relation except Om Prakash. DW3 did not make any complaint to the Local Police when accused persons were being taken away by the Delhi Police. DW4 in his crossexamination admitted that he cannot admit or deny whether Delhi Police visited their village on 17052004.
23. It has been proved on record by oral testimonies of PWs supported with the documentary evidence that on 11042004, the accused Jamaluddin had prepared tea and gave it to PW1 and PW2 FIR No. 270/04: State Vs. Om Prakash Etc. Page 32 of 37 which they consumed and after consuming the tea, they became unconscious and later on regained consciousness in DDU hospital. After discharge from the Hospital, PW1 and PW2 found their cash, the bundle of cloths of 126 ladies and gents suits missing from their room. PW1 and PW2 correctly identified the accused Om Prakash and Jamaluddin in the court. PW1 pointed out the place of incident and police prepared the site plan Ex. PW11/C. The statement of PW1 was recorded as PW1/A. The accused were arrested in presence of PW1. The accused made disclosure statement about their involvement and led to P1/12, Mangolpuri, Delhi and got recovered four bundles of ladies and gents clothes containing 126 suits which were taken into possession vide memo Ex. PW1/K. PW1 and PW2 also identified all the said suits as Ex. P1 (colly). Accused Jamaluddin prepared the tea at his own. Though Jamaluddin was also found lying admitted in the hospital. PW4 proved the FIR Ex. PW4/A. PW7 Ct. Dharambir Singh is the witness to the investigation who also proved that PW1 and PW2 identified accused Om Prakash who had visited them on 11042004 at their room and Om Prakash took away the cloth bundles and some cash amount after administering some poisonous substance to them. Supardars Sharafat and Wahid Hussain produced three FIR No. 270/04: State Vs. Om Prakash Etc. Page 33 of 37 bundles of cloths i.e. ladies and gents suits unstitched which were 126 in number and the same were identified by PW7 at Ex. P1 collectively. PW9 also proved the MLC of Wahid Hussain as Ex. PW9/A and MLC of Sharafat as Ex. PW9/B. PW10 proved the DD no. 4 as Ex. PW10/A. PW11 proved the seizure memo of gastric lavage and one sample seal of CMO, DDU hospital as Ex. PW11/A, endorsement on the statement of Wahid Hussain as Ex. PW11/B and site plan as Ex. PW11/C. The Ld. APP for the State tendered the FSL report dated 29092005 as Ex. PA which is per se admissible u/s 293 Cr.P.C. Perusal of the FSL report Ex. PA reveals the results of examination of Ex. '1' that on chemical and Gas Chromatography examination, Ex. '1' was found to contain "phenobarbitone". The medical dictionary gives the meaning of it as a hypnotic, longacting sedative, and anticonvulsant. Used, often in combination with diphenylhydantoin sodium, in treatment of epilepsy because it has a depressive effect on motor areas of the cerebral cortex.
24. It reflects from the testimony of DWs that they have come and depose in the court at the instance of the accused persons. DWs are not aware about this case. If the accused persons were lifted by the police officials, what prevented them to FIR No. 270/04: State Vs. Om Prakash Etc. Page 34 of 37 lodge a complaint to the higher authorities of UP or Delhi against such act of Delhi Police. DW2 even does not know the nature of the work and the activities of the accused persons at Delhi. DW3 himself has admitted that the accused are in his blood relations. DW4 neither admitted nor denied whether the Delhi Police visited their village on 17052004. DW4 could not tell about the family members of accused persons. DWs being the interested witnesses have deposed to save the accused persons from the present case.
25. The Ld. Defence counsel argued that there are major contradictions in the testimonies of the aforesaid PWs which go to the root of the case and the case of the Prosecution falls on that basis itself. Whereas, the Ld. APP for the State argued that there are some minor contradictions in the testimony of PWs which do not go to the root of the case and the accused cannot take benefit of such minor contradictions. I have also found that there are some contradictions in the testimony of the said PWs yet these contradictions are minor contradictions and do not go to the root or core of this case. In this context, a reliance is placed upon the judgement reported as State of UP Vs. Krishna Master & ors. 2010 Cri. L. J. 3889, it was held by the Hon'ble Supreme Court that minor discrepancies, not touching core of case, cannot be ground FIR No. 270/04: State Vs. Om Prakash Etc. Page 35 of 37 for rejection of evidence in entirety.
26. PW1 and PW2 correctly identified the accused Jamaluddin who had prepared the tea and mixed intoxicated/ poisonous substance in the tea provided to them due to which they became unconscious. PW2 has specifically stated that on being asked, Jamaluddin brought tea for himself also. Meaning thereby, the accused Jamaluddin did not bring the tea for himself at the time when he served the tea to PW1 and PW2. Therefore, the act of taking tea by Jamaluddin later on creates doubt. PW1 and PW2 also identified the accused Om Prakash. PW1 and PW2 did not state that the coaccused Ahmad Navi and Navi Hussain were also present at the time of incident. Even otherwise, prosecution has not proved on record that the accused Ahmad Navi and Navi Hussain had committed theft of cash amount and three bundles of cloths of suits along with coaccused Jamaluddin and Om Prakash.
27. In view of my aforesaid discussion, I am of the considered opinion that Prosecution has not been able to prove its case against the accused Ahmad Navi and Navi Hussain. Therefore, accused Ahmad Navi and Navi Hussain are acquitted. Accused Ahmad Navi be released forthwith if not wanted in any other criminal case. The bail bonds of accused Navi Hussain are FIR No. 270/04: State Vs. Om Prakash Etc. Page 36 of 37 cancelled and surety is discharged. Documents of surety, if any, be released against proper acknowledgement. However, the Prosecution has been able to prove its case against the accused Om Prakash and Jamaluddin beyond reasonable doubt. I, therefore, hold accused Om Prakash and Jamaluddin guilty and convict them u/s 380/328/34 IPC.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT on 08062012 FIR No. 270/04: State Vs. Om Prakash Etc. Page 37 of 37