Delhi District Court
State vs 1. Ashok Kumar S/O Asha Ram R/O on 31 July, 2010
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL
SESSIONS JUDGE-1 (North-East): KARKARDOOMA COURTS:
DELHI
Case ID Number. 02402R0707052007
Sessions Case No. 22/2009
Assigned to Sessions. 18.10.2007
Arguments heard on 27.07.2010
Date of order. 31.07.2010
FIR No. 118/07
State Vs 1. Ashok Kumar s/o Asha Ram r/o
D-8/300, East Gokal Pur, Delhi.
2. Ajay @ Pushpender s/o
Rajender Kumar r/o House No.D-
8/300, East Gokalpur, Delhi.
Police Station M.S. Park
Under Section 328/34 IPC
JUDGEMENT
1. Briefly facts of the case are that on 11.12.05 at about 9.30 p.m. at 100 ft. road, Durgapuri, Shahdara, Delhi within the jurisdiction of police station M.S. Park, Delhi, accused persons namely Ajay @ Pushpender and Ashok Kumar in furtherance of their common intention got drunk water mixed with 'diazepam' (a posionous drug) with intention of causing injury to the complaint namely Raj Karan, who after consuming 2 or 3 sips of the said water became FIR no.118/07 U/s 328/34 IPC 1 / 19 unconscious. Accused persons committed the said act with the intention to commit or to facilitate the commission of an offence or knowing it to be likely that both accused persons would thereby cause hurt to the aforesaid complainant.
2. In this regard on the same day ASI Inder Singh received DD No.18 A vide mark X' for investigation. On receipt of the said DD I.O. along with Ct. Ashok (DHG) went to GTB Hospital and collected MLC of injured Raj Karan on which doctor had mentioned the injured 'unfit' for statement with the alleged history of unknown poisoning. Thereafter, I.O. collected exhibits as well as MLC of injured from the hospital and deposited the same in the malkhana.
3. On regaining consciousness of injured I.O. recorded statement of injured Raj Karan vide Ex.PW1/A. Thereafter, the exhibits and sample seal were sent to CFSL, Hyderabad after taking permission from DCP. After obtaining the result from CFSL Office to the effect that exhibits was containing Diazepam, i.e. a benzodiazepine group of drug, IO made endorsement on the statement of complainant for registration of FIR u/s 328/34 IPC vide Ex.PW9/A. As per the CFSL FIR no.118/07 U/s 328/34 IPC 2 / 19 report diazepam was found in the stomach wash. The present case FIR was got registered in the Police Station vide Ex.PW6/A. IO also recorded statement of witnesses.
4. Accused persons namely Ajay Kumar and Ashok were arrested in the present case vide their arrest memos Ex.PW9/B, Ex.PW9/C, Personal Search Memos Ex.PW9/D and Ex.PW9/E respectively. Accordingly, accused persons were booked for the offence u/s 328 / 34 IPC.
5. This case was committed to the Sessions Court on 04.03.2008. After hearing arguments on charge, the ld. Predecessor of this Court framed a charge for the offences u/s 328/ 34 IPC against accused persons to which they did not plead guilty and claimed trial vide court order dated 30.04.2008.
6. To prove and substantiate its case the prosecution has examined 09 witnesses namely PW1 Raj Karan - victim, PW2 Ct. Satpal, PW3 Dr. Banarasi, PW4 HC Gurnam Singh, PW5 Sonu, PW6 HC Siyanand, PW7 Ct. Som Pal, PW8 Dr. R.K. Sareen, Dy. Director and PW9 ASI Tara Dutt - I.O. of the case.
FIR no.118/07 U/s 328/34 IPC 3 / 19
7. PW1 Raj Karan, complainant appeared in the witness box and deposed that on 11.12.2005 he had attended the marriage of his neighbour Rajesh r/o Durgapuri and on that day at about 9:30 p.m. when he felt thirsty, he went out of procession to drink water and on the way accused persons namely Ajay and Ashok met him. They asked him as to where he was going he replied that he is going to drink water, then both of accused persons offered him water bottle which was having small quantity of water in the same. This witness drank the said water offered by them. After some time, complainant / victim felt dizziness and sick. One Sonu asked about his condition. This witness requested him to leave him at his house. Upon which complainant was taken to his house by Sonu. He further deposed that when he regained consciousness, he found himself in GTB Hospital. PW1 further deposed that police recorded his statement in this regard and also prepared site plan of the scene of occurrence at his instance. This witness got exhibited his statement as Ex.PW1/A, which was given to the police. This witness has been cross- examined at length. Having perused the same it has come on record that accused persons are the neighbours of victim. There are strained relations between accused persons and victim. In the cross- FIR no.118/07 U/s 328/34 IPC 4 / 19 examination it has also come on record that case FIR no.169/03 was registered against the victim by accused persons. Having gone through the same, if it is presumed that there were strained relations of victim with accused persons, even though, no one has a right to give poisonous water to any person.
8. PW2 Ct. Satpal deposed that on 11.12.2005 on receipt of DD No.18A he accompanied I.O./ ASI Inder Singh to GTB Hospital. IO collected MLC of injured. Injured was not well at that time. Doctor handed over one sealed slide containing gastric fluid along with sample seal to the IO who seized the same vide seizure memo Ex.PW2/A. This witness was not cross examined by Ld. defence counsel.
9. PW3 Dr. Banarasi came to the witness box and deposed that on 11.12.2005 he was posted as CMO in GTB Hospital. On that day at around 11.20 p.m. one patient Raj Karan was brought by his father with the alleged history of unknown poison. Patient was unconscious. He was examined by Dr. Gillay Bhutia vide MLC Ex.PW3/A. Patient was referred to Senior resident Medicine. His gastric lavage sample was collected and handed over to sister on duty. He identified FIR no.118/07 U/s 328/34 IPC 5 / 19 signature and handwriting of Dr. Gillay Bhutia who prepared MLC of injured as he had left the service from the hospital. This witness was cross examined by Ld. defence counsel at length. In his cross examination he admitted that Diazepam is a poisonous drug.
10.PW4 HC Gurnam Singh deposed that on 26.02.2006 he was posted as MHC(M) in Police Station M.S. Park. On that day, he sent one pullanda through Ct. Som Pal to CFSL Hyderabad which was seized in DD No.18A on 11.12.2005 vide RC No.17/21. He proved the acknowledgment of the pullanda in the malkhana vide Ex.PW4/B. This witness was not cross examined by Ld. defence counsel.
11.PW5 Sonu deposed that on 11.12.2005 there was a marriage of his friend Rajesh and he had gone to Durgapuri in the said marriage. He along with complainant Raj Karan was dancing in the barat. At around 8/8:30 p.m. complainant told him that he was going to drink water. He also followed him. This witness further testified that accused Ashok and Ajay were standing there. He testified that accused Ajay asked the complainant that as to where he was going, he told him he was going to drink water. Ajay told complainant that FIR no.118/07 U/s 328/34 IPC 6 / 19 he is having a bottle of water and after taking the said bottle from Ashok he offered to complainant. After drinking two-four sips of water from the bottle he along with complainant again went to the barat and started dancing. This witness affirmed that complainant was not feeling well. Therefore, he along with one Babloo took him to his house on his bike. This witness was cross examined by Ld. defence counsel at length. I have perused the same. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
12.PW6 HC Siyanand is a formal witness. He appeared in the witness box and deposed that on 08.03.2007 he was posted as HC at police station M.S. Park and was performing the job of Duty Officer. He further deposed that on the basis of rukka received from ASI Tara Dutt, he recorded FIR No.118/07 u/s 328/34 IPC. He proved the copy of same vide Ex.PW6/A. This witness was not cross examined by Ld. defence witness.
13.PW7 Ct. Som Pal appeared in the witness box and he deposed that he never joined investigation of the present case. He further deposed that one another Ct. by the name of Som Pal bearing No.930NE FIR no.118/07 U/s 328/34 IPC 7 / 19 remain posted in the police station M.S. Park during the year 2007 and he might have joined investigation in the present case.
14.PW8 Dr. R.K. Sareen, Deputy Director, Toxicology Division, CFSL, Hyderabad deposed that he was authorized by Director, CFSL, Hyderabad in the present case on behalf of G. Jayashankar (Jr. Scientific Officer, Toxicology Division) as he resigned from the job and settled out of India. He proved the CFSL report vide Ex.PW8/A prepared by aforesaid doctor and he also identified the signature of Dr. G. Jayashankar. He further deposed that as per the said report one sealed glass tube marked and labelled as Ex.1 i.e. gastric lavege. After examination of the aforesaid exhibits in the laboratory it was opined that diazepam, a benzodiazepine group of drug, was detected in the exhibit marked 1. He further deposed that he had identified the handwriting and signature of aforesaid doctor as he had worked under his supervision. This witness was not cross examined by Ld. defence counsel.
15.PW9 ASI Tara Dutt, I.O. deposed that on 08.03.2007 he was posted in Police Station M.S. Park. On that day he received DD No.18A FIR no.118/07 U/s 328/34 IPC 8 / 19 mark X for investigation along with CFSL report. He made an endorsement upon the statement of Raj Karan vide Ex.PW9/A and got registered FIR. He further deposed that on 10.04.2007 accused persons were formally arrested by him as both of them got anticipatory bail. He proved arrest memo and Personal Search Memo prepared by him. Thereafter, both accused persons were released on bail by him. On completion of investigation, the file was put before SHO who prepared the challan and submitted the same in the court. He also identified accused persons who were arrested by him in the present case. This witness has been cross examined at length by Ld. defence counsel. I have perused the same. I do not find any material contradiction which can suggest that this witness has not done any fair investigation.
16.After recording the prosecution evidence statements of accused person u/s 313 Cr.P.C. was recorded in which they denied all the allegations as alleged by the prosecution side. In defence expressed their willingness to produce defence witnesses but on 23.07.2010 they could not produce the defence witnesses. Their defence evidence was closed at the request of counsel. In this regard, Ld. counsel for accused Sh. Manish Srivastava gave his statement on FIR no.118/07 U/s 328/34 IPC 9 / 19 23.07.2010 that he does not want to lead defence evidence.
17.Final arguments were heard at length. During the course of arguments Ld. counsel for accused persons has filed written submissions in detail. He submitted that complainant and accused persons have enmity and already several cases are pending between them. Ld. counsel for accused persons further submitted that no site plan was prepared. Ld. counsel for accused persons further argued that accused persons were not present at the place of occurrence at the time of incident. In support of his contention, Ld. counsel for accused persons has relied upon the following citations :-
1. AIR1972 Supreme Court (CRI)258, Dr. S.L. Goswami Vs. State of Madhya Pradesh,
2. State of U.P.- Appellant, Vs. Awdesh-Respondent.
3. Premiya @ Prem Prakash- Appellant Vs. State of Rajasthan- Respondent.
4. State of Punjab - Appellant Vs. Kulwant Singh @ Kanta- Respondent.
5. Prabha Mathur and Anr. Appellant Vs. Pramod Aggarwal & Ors.- Respondent.
6. Jit Singh, Appellant Vs. State of Punjab, Respondent, AIR 1976 Supreme Court 1421
7. Mohan Singh Malhi, Appellant Vs. State of Punjab, Respondent, AIR 1976 Supreme Court1428.
8. Vijay Singh, Appellant Vs. State of M.P. , Respondent.
2005 CRI. L. J. 299.
9. Mohd. Yaseen, Appellant Vs. State, Respondent, 2005 FIR no.118/07 U/s 328/34 IPC 10 / 19 CRI. L.J. 307.
10.Tarun @ Gautam Mukherjee- Appellant Vs. State of West Bengal - Respondent, 2000(4) Crimes 260 (SC).
11.Vivek Kumar- Appellant Vs. State of U.P. - Respondent,2000(4) Crimes 261 (SC).
12.Anil Kumar -Appellant Vs. State of Punjab- Respondent, 2000(4) Crimes 283 (SC).
13.Murali- Appellant Vs. State of Tamil Nadu- Respondent,2000(4) Crimes 286 (SC).
14.State of Rajasthan- Appellant Vs. Rajendra Singh - Respondent,1998(3) C.C.Cases (SC) 93.
15.Mukesh Chand & Ors. - Appellant Vs. State (Govt. of NCT of Delhi)- Respondent, 2010(1) JCC 750.
16.Vinod - Appellant Vs. State - Respondent, 2010(1) JCC 754.
17. Sher Singh- Appellant Vs. State - Respondent, 1995 JCC 259.
18.Sqn. Ldr. J.S. Punia- Petitioner Vs. Union Bank of India & Ors. - Respondent, 1995 JCC 266.
19. Rishi Pal & Ors. - Petitioner Vs. State - Respondent, 1994(1) C.C. Cases 509 (HC).
20.Lance Dafedar Laxman Singh - Petitioner Vs. Union Bank of India & Ors. - Respondent, 1993 (1) C.C. Cases 316 (HC).
21.Ram Inder - Petitioner Vs. State - Respondent, 1993 (1) C.C. Cases 327 (HC).
The sum and substance of these citations is that burden to prove the case is upon the prosecution. If it was found that accused persons were inimical with victim, accused be acquitted. If two reasonable conclusions are possible on the basis of evidence on record, the court should not disturb the finding of acquittal recorded FIR no.118/07 U/s 328/34 IPC 11 / 19 by the trial court. However, the facts of the most of the cases referred above are entirely different from the case in hand, thus citations are not applicable squarely.
18.Contrary to the submissions of ld. counsel for accused persons, Ld. counsel for complainant through ld. APP submitted that in this case the most material witnesses are PW3 Dr. Banarasi and PW8 Sh. R.K. Sareen, Dy. Director, CFSL Expert. He further submitted that it has categorically come on record that substance was diazepam, during the examination of the chemical analysis of the CFSL. Ld. counsel for complainant again submitted that doctor who has seen the doctor concerned regarding medical examination of the complainant has also deposed in similar terms. Ld. APP for the state further submitted that it has come in cross examination of PW5 Sonu that accused were present at the place of occurrence near Durgapuri chowk. On these grounds, Ld. APP and Ld. counsel for complainant submitted that prosecution has proved its case beyond reasonable doubt against the accused persons. In support of his contentions, Ld. counsel for complainant and Ld. APP also relied upon the following citations:
FIR no.118/07
U/s 328/34 IPC 12 / 19
1. State of Haryana, Appellant Vs. Sher Singh and others, Respondents - AIR 1981 Supreme Court 1021.
2. Capt. Dushyant Somal, Appellant Vs. Smt. Sushma Somal and others, Respondents, AIR 1981 Supreme Court 1026.
2. Soma Bhai , Appellant Vs. State of Gujrat, Respondent.
AIR 1975 Supreme Court 1453.
3. Natabar Parida and others, Appellant Vs. State of Orissa. Respondent - AIR 1975 Supreme Court 1465. Balwinder Singh, Appellant Vs. State of Punjab, Respondent - AIR 1987 Supreme Court 350.
6. Kothi Satyanarayana, Appellant Vs. Galla Sithayya and others, Respondent, AIR 1987 Supreme Court 353.
7. Chandrika Prasad Singh and others. Appellant Vs. The State of Bihar, Respondent, AIR 1972 Supreme Court 109
8. Rahman, Appellant Vs. The State of U.P. Respondent
- AIR Supreme Court 110
9. Dudh Nath Pandey, Appellant Vs. State of U.P. Respondent - AIR 1981 Supreme Court 911
10.Superintendent and Remembrancer of Legal Affairs, West Bengal , Appellant Vs. Satyen Bhowmick and others, Respondent. AIR Supreme Court 917
11.Rajesh Kumar, Dharamvir and others Respondents with State of Haryana Appellant Vs. Dharamvir and others Respondent 1977 CRI. L.J. 2242.
12.State of Maharashtra, Appellant Vs. Priya Sharan Maharaj and others, Respondent - 1977 CRI. L.J 2248.
13.Mithilesh Upadhaya Appellant Vs. State of Bihar Respondent AIR 1997 Supreme Court 2457.
14.Harshad J. Shah and another, Appellant Vs. LIC of India and others, Respondent, AIR 1977 Supreme Court 2459.
15.State of Maharashtra, Appellant Vs. Narsinghrao Gangaram pimple, Respondent, AIR 1984 Supreme Court 63.
16.Dr. P. Nalla Thampy Thera, Petitioner Vs. Union Bank of India and others, Respondent, AIR 1984 Supreme FIR no.118/07 U/s 328/34 IPC 13 / 19 Court 74.
The Sum and substance of these citations is that when an accused pleads alibi, the burden is on him to prove it, under section 103 of the Evidence Act which provides. He must prove it. In the case in hand accused persons did not produce any defence witness despite giving opportunity. It is well settled that a plea of alibi must be proved with absolute certainty so far as to completely exclude the possibility of the presence of the person concerned at the place of occurrence.
19.Before reaching at any conclusion let the relevant section be re- produced verbatim which is as under:-
Section 328 IPC 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 which may extend to ten years, and shall also be liable to fine.
The essential ingredients of the offence u/s 328 IPC are as follows:-
The act must be done :
a) with the intention of causing hurt;
b) with knowledge that it is likely to cause hurt; and
c) to facilitate the commission of an offence.
FIR no.118/07
U/s 328/34 IPC
14 / 19
Sec.34 IPC
" When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
Careful perusal of the section 34 IPC reveals the following important ingredients:-
i. That there must be a criminal act.
ii. The act must have been done by several persons in furtherance of their common intention.
20.Having gone through the whole case file and material available on record, it can easily be inferred from the testimony of PW1 Victim Raj Kiran and PW5 Sonu that 11.12.2005 accused persons namely Ajay Kumar and Ashok offered the water to the victim, who after consuming the said water became unconscious. It has also come on record in the testimony of PW3 Dr. Banarasi that on 11.12.05 patient Raj Kiran was examined by Dr. Gillay Bhutia and his gastric lavage sample was collected. PW8 Dr. R. K. Sareen, Dy. Director, Toxicology Division that on examination of one sealed glass tube (Ex.1) i.e. gastric lavage that diazepam, a benzodiazepine group of drug, was detected in the exhibit marked 1, vide CFSL report Ex.PW8/A. As per the CFSL report diazepam was found in the stomach wash. In R Vharley (1830) 3 C & P 369; R V Dale (1852) 6 Cox CC 14 - it was observed that:-
FIR no.118/07
U/s 328/34 IPC 15 / 19 'A person is administered when it is left by the accused to be consumed by the victim.'
21.Further, it has been observed in 'Cadman 1825 Carrington's Supplement 237' that:-
'But it is not 'administered' until it is taken in to stomach.'
22.In another case 'Phino V State AIR 1975 SC 1327: 1975 Cr, L J1109' that:-
'In the absence of poison in the stomach or viscera on chemical examination, death from other causes cannot be ruled out.'
23.In the instant case, careful perusal of the case file reveals that most material witnesses in this case are PW5 Sonu and PW1 Raj Karan -
complainant being direct testimony to the alleged incident in question. It has come on record in the testimony of PW1 Raj Karan that there was enmity between accused persons and him and on this account several cases are pending between them. In the testimony of other witness PW5 Sonu it has also come on record that on 11.12.05 on the occasion of marriage of his friend namely Rajesh, he and victim were present there. In the testimony of PW5 Sonu it has also come on record that a water bottle containing some water was given to complainant/victim and he took 2 - 3 sips to quench his thrust but FIR no.118/07 U/s 328/34 IPC 16 / 19 after taking the sips he felt dizziness and asked PW Sonu to get him reached at his home as a result of which PW5 Sonu and his companion Babloo took the victim at his home. Having perused the case file, it is also found on record that victim was brought at hospital by his father for treatment vide MLC Ex.PW3/A.
24.It was opined in the MLC vide Ex.PW3/A that he was administered some unknown poisonous substance and this substance in the form of 'gastric fluid sample' which was sent to CFSL Hyderabad for examination. It was revealed in the CFSL result vide Ex.PW8/A that unknown poisonous found to be poisonous substance namely diazepam. To this effect PW8 Dr. R K Sareen, Dy. Director Toxicology Division, CFSL was examined and he got exhibited his report vide Ex.PW8/A. This sequence of event forms a complete chain with regard to the identification of poisonous substance i.e. diazepam. The crucial question in this case comes to stand that whether any pre or post act with regard to the giving water bottle to the victim, has been brought on record by the prosecution to establish the guilt of the accused persons for the offence punishable u/s 328 / 34 IPC. In this regard the pre act of the accused persons neither has been brought on record nor any material fact with regard to this FIR no.118/07 U/s 328/34 IPC 17 / 19 incident has been proved on record. So long as the post act of the accused persons is concerned, in this regard neither the recovery of the bottle nor the remaining water in the bottle has been brought on record by the prosecution side nor any recovery has been effected from the accused persons in this regard. If we determine the fate of this case in light of these observations we certainly reach to the conclusion that administration of water to the victim by the accused persons goes to indicate that motive is absent, which is very crucial to establish the premises of conviction against the accused persons for the offence u/s 328 / 34 IPC. Further, the prosecution has also failed to bring on record the preparatory measures with regard to the collection of bottle and the material substance contained in it which also goes to the root of this case. Besides, the person who could have been joined as a material witness in this case is Babloo who took the victim along with PW5 Sonu at the residence of victim. But unfortunately neither his statement was recorded by the investigating officer nor the prosecution felt necessity to examine him as witness in this case. Apart from this it is also on record that there was enmity between the accused persons and the victim. All these facts go to indicate something otherwise contrary to the establishment of the case against accused persons qua the victim. FIR no.118/07 U/s 328/34 IPC 18 / 19
25.So long as the plea of alibi as taken by accused persons is concerned, in this regard I am of the view that, presuming for the sake of argument that the accused persons were present at the place of occurrence, even then the offence u/s 328/ 34 IPC is not proved beyond reasonable doubt in light of my careful analysis and observations made in the preceding paras. The citations relied upon by the parties mentioned supra are not squarely applicable in this case. In view of these facts and circumstances of the case, the prosecution has failed to prove the offence punishable u/s 328/ 34 IPC against accused persons. Therefore, I acquit accused persons by giving them benefit of doubt. Accused persons are directed to file fresh bail bond in the sum of Rs.10,000/- each for six months and further subject to the condition that they will abide by the outcome of the case in future if any further proceeding, appeal, revision etc. is filed by the State or any other party. File be consigned to record room.
Accordingly, accused persons Ashok Kumar and Ajay @ Pushpender are acquitted for the offence punishable u/s 328/ 34 IPC in view the reasons as discussed in the foregoing paras.
ANNOUNCED IN THE OPEN COURT ON THIS 31.07.2010 (RAJ KAPOOR) ADDL. SESSIONS JUDGE-I/NORTH EAST KARKARDOOMA COURTS: DELHI FIR no.118/07 U/s 328/34 IPC 19 / 19