Delhi District Court
State vs Shabbhu Razak on 28 October, 2024
IN THE COURT OF SH. KUMAR RAJAT,
ADDL. SESSIONS JUDGE-07, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI
IN THE MATTER OF :
CNR No. DLSH01-007828-2019
SC No. 548/2019
FIR No. 0042/2019
PS Anand Vihar Railway Station
U/s 328 IPC
STATE
VS.
Shabbhu Razak @ Shambhu Razak,
S/o Sh. Antu Razak,
R/o H. No. B-154, Surat Vihar,
Mubrakpur Dabas, Delhi.
......Accused
Date of Institution of case 03.12.2019
Date of case reserved for 07.10.2024
Judgment
Judgment Pronounced on 28.10.2024
Decision Acquitted
JUDGMENT
BRIEF FACTS OF THE CASE
1. As per the case of prosecution, on 23.09.2019, ASI Anuj Tomar had made a complaint that on 23.09.2019, he was patrolling at the platform of Anand Vihar Railway Station, Delhi with ASI Om Prakash Tiwari and HC Shekhar and when they reached Platform no. 4 towards Delhi side, they saw that two State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 1 of 28 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.10.28 16:45:05 +0530 persons were sitting near pillar no. 33 and one of them started running and he was apprehended with the help of GRP HC Bhupender Singh, who called the PS Anand Vihar Railway Station, Delhi and when the IO reached platform no. 4, he saw one person lying unconscious on the bench and met HC Bhupender Singh (GRP) and the above police officials of RPF i.e. HC Shekhar, HC Sunil and ASI Om Prakash Tiwari, who handed over black colour bag to the IO. Injured was sent to Dr. Hedgewar Hospital for treatment and the apprehended person was Shabbhu Razak and on his search, some plain tablets were found in the bag, which was in possession of Shabbhu Razak and Doctor had opined about the injured that he was unfit for statement and there was unknown poisoning and it came out that the accused had given some intoxicating substance to the injured.
2. On the said complaint of the complainant, the FIR was registered vide FIR No. 0042/2019 dated 23.09.2019 in PS Anand Vihar Railway Station u/s 328 IPC. After investigation, charge sheet was filed against accused Shabbhu Razak u/s 328 IPC and after filing of charge sheet, cognizance of offence was taken against the accused.
CHARGE
3. Charge for the offence punishable u/s 328 IPC was framed against accused Shabbhu Razak by Ld. Predecessor on 06.09.2021. Accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. Prosecution examined 11 witnesses in its favour to prove the case.
Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.10.28 16:45:14 +0530 State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 2 of 28
5. PW-1 HC Sunil Kumar deposed that on 23.09.2019, he was posted at Anand Vihar Terminal Railway Station as HC and on that day, his duty hours were from 08:00 am to 04:00 pm. At about 12:00 pm, he along with ASI OP Tiwari and HC Shekhar were patrolling at platform no. 4 and when they reached near pole no. 33, they saw that one person all of sudden got up and started running away from him. Due to suspicion, they chased that man and in the meantime, HC Bhupender, GRP also reached there. They along with Ct. Bhupender apprehended that man and brought him to the same bench near pole no. 33, platform no. 4 on which he was sitting earlier. They saw that one another man was sitting on the same bench was in semi- conscious condition. When they moved that sitting man, he did not respond because he was not in his senses and he was sent to the hospital for medical treatment whereas the apprehended man was brought to GRP Thana Anand Vihar.
6. PW-1 further deposed that they handed over the custody of the apprehended man i.e. Shabbhu Razak to the police. He was carrying a bag pack (grey colour). On checking his bag, it was found containing one mobile phone with keypad, some cloths, one black colour polythene containing 151 orange colour tablets. Thereafter IO recorded his statement, Ex.PW1/A. Accused Shabbhu Razak was arrested and personally searched vide memos, Ex.PW1/B and Ex.PW1/C respectively. IO had also seized the recovered 151 tablets (on which no name or its company was mentioned) and sealed with the seal of BSP vide seizure memo, Ex.PW1/D and IO had also prepared site plan of State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 3 of 28 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.10.28 16:45:22 +0530 place of incident at his instance, Ex.PW1/E. Thereafter, PW1 came back to Anand Vihar Railway Station for the purpose of his duty. PW1 had correctly identified the recovered tablets, which were recovered from accused, Ex.P1 (Colly) and the plastic blue colour box containing the said exhibit is Ex.P2. PW-1 had correctly identified accused Shabbhu Razak in the court.
7. PW2 ASI Dinesh Kumar deposed that on 23.09.2019, he was posted at PS Anand Vihar Railway Station as duty officer from 05:00 pm to 09:00 pm and on that day, HC Bhupender brought rukka before him for registration of FIR at about 05:45 pm, prepared by HC Sunil Kumar (RPF) and sent by ASI Anuj Tomar and on its basis, he registered the present FIR, Ex.PW2/A (OSR). He also made endorsement on rukka, Ex.PW2/B. After registration of FIR, copy of FIR and original rukka was handed over to HC Bhupender for giving the same to the IO and he also issued certificate u/s 65B Indian Evidence Act pertaining to registration of FIR, Ex.PW2/C.
8. PW3 ASI Om Prakash Tiwari (RPF) deposed that on 23.09.2019, he was posted at Anand Vihar Terminal Railway Station and on that day, he was working as duty officer from 08:00 am to 04:00 pm. On that day at about 11:45 am, he along with HC Shekhar and HC Sunil Kumar, both officials of RPF were patrolling (train passing duty) on the platform no. 4 & 5, when they reached near pole no. 33, they saw that two persons were sitting on bench and were taking tea and all of them were in uniform and having seen them in uniform, one of them tried to run away from there and all of them chased that person and State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 4 of 28 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.10.28 16:45:28 +0530 caught hold of him. In the meantime, HC Bhupender also reached there and they brought that person to the same bench near pole no. 33. They noticed that the other person, who was sitting on the bench was not in his senses and he was sent to hospital for his treatment whereas apprehended person was brought to GRP Thana Anand Vihar.
9. PW3 further deposed that they handed over custody of apprehended person i.e. Shabbhu Razak to police and on his search, some tablets were recovered from the pocket of his wearing pant and the same were seized by the IO, vide seizure memo, Ex.PW1/D. IO had also prepared the site plan of the spot, Ex.PW1/E. Thereafter, accused Shabbhu Razak was arrested and personally searched vide memos, Ex.PW1/B and Ex.PW1/C. PW3 had correctly identified the recovered tablets, Ex.P1 (colly) and blue colour plastic container containing the same, Ex.P2.
10. PW3 admitted in his cross-examination by Ld. Addl.
PP that accused was carrying a black colour bag at that time and his custody was handed over to police along with said bag, which was searched and Aadhar card of accused, some clothes, one mobile phone of keypad and one black colour polythene containing orange (narangi) colour loose tablets were also found. PW-3 had correctly identified accused Shabbhu Razak in the court.
11. PW4 HC Shekhar deposed that on 23.09.2019, he was posted at RPF Post at Anand Vihar Railway Station and on the said date, he along with ASI Om Prakash Tiwari and HC Sunil Kumar were patrolling at platform no. 4 of Anand Vihar Railway State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 5 of 28 Digitally signed KUMAR by KUMAR RAJAT RAJAT 16:45:35 Date: 2024.10.28 +0530 Station. At about 12:15 pm, when they reached near pillar no. 33, they saw two persons were having tea and on seeing them, one of those two started running and on suspicion, they apprehended that person with the help of HC Bhupender of GRP Anand Vihar, who was also on patrolling duty at Railway Station. Thereafter, the said person, who was apprehended by them, was taken to the same place where he was having tea with one other person. When they reached there, they noticed that the said another person was under some intoxication. On seeing his condition, HC Bhupender informed GRP Police Station Anand Vihar and on receipt of information, ASI Anuj Tomar arrived at the spot and the person, who seemed to be under influence of intoxication was sent to the hospital with HC Bhupender and Ct. Pradeep.
12. PW4 further deposed that accused was apprehended by them and his bag was checked and his Aadhar card, 151 tablets wrapped in black colour polythene, cash of Rs. 1,500, his old clothes and one mobile phone make Lava having manual keypad, were recovered from his bag. After registration of FIR, the further investigation was assigned to ASI Bhupender Singh, who arrived at the spot and the recovered tablets were taken into police possession. After keeping it in a plastic container and sealed with the seal of BSP and the parcel was seized vide seizure memo, Ex.PW1/D. Accused was arrested vide arrest memo, Ex.PW1/B, personally searched vide memo, Ex.PW1/C and the site plan of place of incident was also prepared, Ex.PW1/E. PW4 also correctly identified the case property i.e. tablets, Ex.P1 (Colly) and plastic container containing the same, State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 6 of 28 Digitally signed by KUMAR KUMAR Date:
RAJAT RAJAT 2024.10.28 16:45:42 +0530 Ex.P2. PW4 had correctly identified accused Shabbhu Razak in the court.
13. PW5 Nagendra Kumar deposed that he was illiterate and working as worker i.e. packaging of apples. In September, 2019, he was working with a contractor at Shimla for doing the work of packaging apples and on 23.09.2019, he came to Delhi from Shimla on a bus and deboarded at Kashmiri Gate Bus Adda and from there, he went to Anand Vihar Railway Station via auto and he had to go to his village at Azamgarh, UP from Mau Express and at about 09:00 am, after purchasing the general ticket from the railway station, he went to platform no. 4 and sat on a bench. After some time, one person came and sat along with him and he started talking with PW5 and asked him where he was going and PW5 replied to him that he would go to Azamgarh, UP and he told PW5 that he would go to Bihar. After some time he went to buy tea and returned with two cups of tea and he gave PW5 a cup of tea and started drinking the other cup of tea and PW5 also drank the tea. PW5 further deposed that "Chai pine ke thodi der baad mujhe neend aane lagi aur jab mujhe hosh aya to maine apne aap ko hospital me paya". After getting the treatment, on 28.09.2019, PW5 went to the PS Anand Vihar Railway Station where IO recorded his statement in which he stated that he could identify the person, who gave him tea (nashili chai). PW5 had correctly identified the accused in the court as the person, who gave him the above said intoxicating tea.
State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 7 of 28 Digitally signed by KUMARKUMAR RAJAT RAJAT Date:
2024.10.28 16:45:49 +0530
14. PW6 Yogesh Chandra Pandey, Senior Scientific Officer (Chemistry), FSL, Rohini deposed that he was posted as Senior Scientific Officer at FSL Rohini, Delhi and on 07.10.2019, one sealed plastic container along with covering letter was received from SHO, PS Anand Vihar Railway Station through Ct. Anil and the same was marked to him for examination. On 19.11.2019, he opened the aforesaid sealed plastic container bearing 4 seals of BSP and it was given mark as Exhibit 1. After chemical, TLC and GC-MS examination, Exhibit 1 was found to contain 'lorazepam', a class of benzodiazepine drugs used as sedative/sleeping pills and after examination, the remnants of exhibits had been sealed with the seal of 'YCP FSL DELHI'. He gave his detailed report dt. 28.11.2019, Ex.PW6/A (running into 2 pages).
15. PW7 Dr. Ankit Jain deposed that on 23.09.2019, he was posted as Casualty Medical Officer at Hedgewar Hospital, Delhi and on that day, at about 01:02 pm, one patient namely Nagender was brought to the casualty of Hedgewar Hospital and he was examined by him and the patient was in a drowsy semi- conscious condition. After examination and primary treatment, the patient was referred to medicine department and his detailed examination was mentioned from point A to A1 on the MLC bearing no. 3966/19 prepared by him, Ex.PW7/A.
16. PW7 further deposed that on 24.09.2019, a request for preserving the gastric lavage of aforesaid patient was received in the hospital and on 30.09.2019, in response to the aforesaid request, he replied that as per MLC No. 3966/19 attached with, State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 8 of 28 Digitally signed by KUMAR KUMAR Date:
RAJAT RAJAT 2024.10.28 16:45:55 +0530 patient seemed to be in semi-conscious, drowsy state, hence, gastric lavage could not be taken and also it was stated that patient gave no history of intake of any food items/drink for past 3-4 hours and this render gastric lavage dangerous and not useful and patient was referred to medicine department for further evaluation and management and his reply from point B to B1, Ex.PW7/B. PW7 also deposed that due to consumption of 'lorazepam' a person could be in drowsy and semi-conscious condition and condition of the patient Nagender was same due to consumption of said drug.
17. PW8 ASI Bhupender deposed that on 23.09.2019, he was working as HC at PS Anand Vihar Railway Station and on that day, he was on duty from 09:00 am to 09:00 pm at platform of Anand Vihar Railway Station. At about 12:00 noon, he reached at platform no. 4, Delhi side of Anand Vihar Railway Station. RPF staff HC Sunil Kumar, HC Shekhar and ASI Om Prakash Tiwari were coming from the Ghaziabad side at platform no. 4, where near pillar no. 33, two persons were sitting on a bench and on seeing the police staff, one of those two persons started running, then he along with above said staff apprehended that person and took him to the above said bench where the other person was sitting. On seeing the person, who was sitting on the above said bench, he appeared to be unconscious and thereafter, he informed PS Anand Vihar Railway Station through mobile phone and after some time, IO/ASI Anuj Tomar along with Ct. Pradeep came there.
Digitally signed by KUMARKUMAR RAJAT RAJAT Date:
2024.10.28 16:46:02 +0530 State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 9 of 28
18. PW8 further deposed that he along with Ct. Pradeep took that unconscious person to Dr. Hedgewar Hospital for medical examination and from the MLC of above said injured person namely Nagender, who was unfit for the statement as per doctor and PW8 collected his MLC. Then, PW8 and Ct. Pradeep returned to the above said spot i.e. platform no. 4, Anand Vihar Railway Station and he handed over the MLC to ASI Anuj Tomar, who recorded the statement of HC Sunil (RPF) and then prepared a tehrir and handed over the same to him for registration of FIR and he went to the PS Anand Vihar Railway Station and got registered the present FIR. After registration of FIR, he returned to the spot and handed over the original rukka and copy of FIR to ASI Anuj Tomar. PW8 had correctly identified accused Shabbhu Razak in the court.
19. PW9 ASI Anuj Tomar deposed that on 23.09.2019, he was posted as ASI at PS Anand Vihar Railway Station, Delhi and on that day, on receiving DD No. 4A, Mark-Z1, at about 12:30 pm, he reached at platform no. 4, pillar no. 33, AVRS, Delhi where he met HC Bhupender (GRP), ASI Om Prakash, HC Shekhar and HC Sunil (all from RPF) and they produced accused and one black colour bag containing small plastic bag having pills in the same. Nagender was also present there in unconscious condition, who was sent to Dr. Hedgewar Hospital through HC Bhupender and Ct. Pradeep for medical examination. After sometime, HC Bhupender returned to the spot and handed over the MLC of injured Nagender, who was unfit for statement as per MLC, so he recorded the statement of HC Sunil (RPF), State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 10 of 28 Digitally signed by KUMAR KUMAR Date:
RAJAT RAJAT 2024.10.28 16:46:10 +0530 Ex.PW1/A and PW9 prepared the rukka, Ex.PW9/A and handed over the same to HC Bhupender for registration of FIR and he went to the PS and returned at the spot after sometime.
20. PW9 further deposed that 2nd IO ASI Bhupender Singh also reached at the spot and he handed over accused Shabbhu Razak and recovered pills/tablets to PW9. PW9 had correctly identified one small plastic container (dibbi), Ex.P2 and 146 orange colour tablets (in loose condition), which were recovered from the possession of accused, Ex.P1 (colly). PW9 had correctly identified accused Shabbhu Razak in the court.
21. PW10 ASI Bhupender Singh deposed that on 23.09.2019, he was posted as ASI at PS Anand Vihar Railway Station, Delhi and on that day, further investigation of the present case was marked to him and at about 06:00 pm, he went to the spot i.e. platform no. 4, pillar no. 33, AVRS, Delhi where he met ASI Om Prakash, HC Shekhar, HC Sunil (all from RPF) and ASI Anuj (1st IO), who produced accused and one black colour bag containing small plastic bag having pills in the same and one mobile phone and one Aadhar card, MLC of injured Nagender were also produced.
22. PW10 further deposed that on counting the above said tablets/pills, they were found 151 in number and he put the same in a small plastic container and wrapped the same with the doctor tape and sealed the same with the seal of BSP and he seized the same vide seizure memo, Ex.PW1/D and seal after use was handed over to HC Bhupender and he prepared the site plan, Ex.PW1/E. Accused Shabbhu Razak was arrested vide arrest State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 11 of 28 Digitally signed by KUMAR KUMAR RAJAT Date:
RAJAT 2024.10.28
16:46:17
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memo, Ex.PW1/B and his personal search was also conducted vide memo, Ex.PW1/C and information regarding his arrest was given to his son and he was sent to the lock-up after medical examination and PW10 returned to the PS and made DD No. 8A, Mark-Z2 and he deposited the case property in the malkhana of PS Anand Vihar Railway Station.
23. PW10 further deposed that after arrest of accused, his disclosure statement dt. 23.09.2019 was recorded, Ex.PW10/A and on 24.09.2019, one request letter for preservation of gastric lavage of victim Nagender was sent to CMO, Hedgewar Hospital by SHO, Ex.PW10/B. On 28.09.2019, victim Nagender came at the PS and he was examined by him and his statement was recorded u/s 161 Cr.PC by PW10. On 11.10.2019, PW10 moved an application for conducting judicial TIP of accused, Ex.PW10/C. On 22.10.2019, accused refused to participate in judicial TIP proceedings and copy of the same, Ex.PW10/D.
24. PW10 further deposed that he made request for collecting the CCTV footage of the spot to RPF, In-charge, Anand Vihar Terminal, Delhi, but on 14.11.2019, they replied that there was no CCTV camera at platform no. 4 i.e. spot at the time of incident and reply of the same, Ex.PW10/E and on 30.09.2019, reply from the concerned doctor of Hedgewar Hospital regarding not collecting the gastric lavage was received, Ex.PW10/F. In December, 2019, he collected the result regarding seized tablets from FSL, Rohini and placed the same on file. On 11.02.2020, result regarding the nature of injuries to the patient Nagender was obtained from Dr. Nitin Rastogi, Ex.PW10/G and State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 12 of 28 Digitally signed by KUMAR KUMAR Date:
RAJAT RAJAT 2024.10.28 16:46:24 +0530 the nature of injury was found to be simple in nature, which was mentioned from point A to A1. PW10 had correctly identified one plastic container (dibbi), Ex.P2 and 146 of orange colour tablets (in loose condition), which was recovered from the possession of accused and seized by PW10 vide seizure memo, Ex.PW1/D and the said tablets, Ex.P1(colly).
25. PW11 Dr. Niteesh, ILSS Hospital, Faridabad, Haryana deposed that on 11.02.2020, he was working as SR at Dr. Hedgewar Hospital, Delhi and on that day, he gave opinion on the photocopy of MLC bearing no. 3966/19 dt. 23.09.2019 of patient Nagender. As per his opinion and available records, the nature of injury was simple. As per the record, patient was suspected of sedative poisoning and the dose of which was unlikely to be fatal and the same is mentioned on the copy of aforesaid MLC at portion A to A1, Ex.PW10/G. STATEMENT OF ACCUSED U/S 313 Cr.P.C.
26. Statement of the accused Shabbhu Razak @ Shambhu Razak was recorded u/s 313 Cr.PC on 24.09.2024 and he denied all the incriminating evidence and stated that no public witness deposed against him as per the story of the prosecution and rest of the witnesses i.e. Doctors are the formal witnesses and other police witnesses deposed against him in a false manner as he was falsely implicated in the present case by the police officials on pressure of higher officials of police, on the basis of work out theory of the cases. Accused also stated that he was falsely implicated by the police officials in the present case without any fault on his part and he had nothing to do as alleged by the State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 13 of 28 Digitally signed by KUMAR KUMAR Date:
RAJAT RAJAT 2024.10.28 16:46:30 +0530 Investigating Officer/police and he is innocent person and he had nothing to do with the present case on the day of incident and he along with his relative was waiting at Anand Vihar Railway Station for train to go to his home town Bihar, while they were waiting for the train suddenly police came towards him and took him to the PS. APPRECIATION OF EVIDENCE, ANALYSIS OF WITNESSES AND FINDING ARGUMENTS OF LD. COUNSEL FOR ACCUSED
27. Ld. Counsel for the accused argued that he has been falsely implicated by the complainant in connivance with the police and he was present with his son/relative at the platform as he has to go to his home town Bihar and the police had caught hold of him all of a sudden due to some confusion and falsely implicated him at the behest of higher police officials. It is further submitted that the accused had not given any tea containing the intoxicating substance/sedative and no such tablets were recovered from his possession, rather they were planted by the police to make out a strong and false case against the accused and as per IO, there were 151 tablets, but in the Court only 146 tablets were shown to the witnesses, which shows that case property was tampered. It is also argued that the accused has no criminal history and on the pressure of higher police officials, he was framed and the victim was not known to him at all and there is no CCTV footage collected by the IO and even there is no CDR to show that both accused and the injured were sitting together on the alleged date and time at Platform no. 4 of Anand State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 14 of 28 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.10.28 16:46:38 +0530 Vihar Railway Station. It is further argued that there is no independent public witness examined by the IO despite the presence of several persons on the platform of railway station and PW11 has deposed that he did not know, which sedative was given to the victim, which shows that the prosecution case is doubtful. It is further argued that the drug lorazepam is used for treating anxiety, insomnia and sleeping disorder and it was not fatal for the deceased and no witness has deposed, if accused had taken any article of the victim and there is no reason explained by the prosecution as to why accused would give sedative laced tablets to victim and police had not seized the tea cups nor seized the tea sample. The prosecution could not prove its case beyond reasonable doubt against the accused as there is no independent witness or eye witness, who had seen the accused mixing any sedative/intoxicating substance in the tea and there are material inconsistencies in the deposition of police witnesses.
Ld. Counsel for the accused has filed the written arguments and relied upon certain judgments as under:
(i) Rajendra Prasad Vs. State of M.P. Criminal Appeal No. 406 of 2000 Cr. A. No. 406/2000 dated 05.03.2024 &
(ii) State Vs. Sunil Crl. Rev. P. No. 193/2017 dated 28.11.2023.
ARGUMENTS OF LD. ADDL. PP FOR THE STATE
28. Ld. Addl. PP for the State argued that prosecution has proved its case beyond reasonable doubt against the accused as 151 tablets of 'lorazepam' drug were recovered from the accused State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 15 of 28 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.10.28 16:46:46 +0530 by the police and GRP, which causes insomnia and anxiety and he had mixed the same in the tea and gave it to the injured, which made him unconscious and all the witnesses of the prosecution have supported the case and the police witnesses present at or near the spot have categorically stated that when the accused tried to run away, they apprehended him and the victim was lying unconscious and these police officials as well as the victim has correctly identified the accused, which proves his presence at the spot on the alleged date, time and place and even the victim has categorically stated that it was the accused, who gave him tea after which he became unconscious. The witnesses have correctly identified the said tablets and proved the recovery and accused failed to show as to why he ran away from the spot on seeing the policemen.
29. I have heard the rival contentions and perused the records.
30. The prosecution has examined 11 witnesses including PW1 complainant.
31. The charge against accused is u/s 328 IPC.
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.State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 16 of 28 Digitally signed by KUMAR
KUMAR RAJAT RAJAT Date:
2024.10.28 16:46:53 +0530
32. The present FIR was lodged on the complaint of complainant HC Sunil, RPF, Anand Vihar Terminal Delhi, who was examined as PW1 and he proved his complaint, Ex.PW1/A dated 23.09.2019 wherein he stated that on 23.09.2019, he along with ASI Om Prakash Tiwari and HC Shekhar were patrolling on the platform of Anand Vihar Railway Station and at Platform No. 4, near pillar no. 33, he saw two persons sitting on a bench and one of them tried to run away after seeing them and he was apprehended with the help of GRP HC Bhupender Singh, who informed DO of PS Anand Vihar Railway Station and the other person was found unconscious, who was sent to Dr. Hedgewar Hospital. The person caught was accused Shabbhu Razak and on search of his bag, some orange tablets without name and wrapper were found in one black colour polythene. During his deposition, PW1 reiterated the said facts and that on 23.09.2019, he was on duty from 8 AM to 4 PM at Anand Vihar Railway Station and at about 12 PM, he along with ASI O P Tiwari and HC Shekhar were patrolling on platform no. 4 and when they reached at pole no. 33, they saw one person running away and along with HC Bhupender, GRP the said person i.e. Shabbhu Razak was caught and 151 orange colour tablets contained in one black colour polythene were recovered from him and seized by IO vide seizure memo, Ex.PW1/D. The other person was semi conscious and not in his senses and he was sent to hospital. These facts were corroborated by PW3 Om Prakash Tiwari and he stated that he saw two persons taking tea, but PW1 has not deposed that he had seen any of the two persons or both of them taking tea at that State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 17 of 28 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.10.28 16:47:01 +0530 time. PW3 also deposed that they all were in uniform and that is why the accused tried to run away from the spot, but he was caught by them after chase and the victim PW5 Nagender was not in his senses. PW3 deposed that after accused was caught, HC Bhupender also reached there, but on the contrary PW1 deposed that the accused was apprehended with Ct. Bhupender and he also corroborated the recovery of said tablets and their seizure by IO vide Ex.PW1/D. PW3 had admitted in cross- examination by Ld. APP that accused was carrying a black colour bag and on its search Aadhar Card, cloths, one keypad mobile phone of accused and one black colour polythene having those orange lose tablets were found.
33. PW3 in his cross-examination deposed that CCTV cameras were installed on the platform, but as per the deposition of PW10 ASI Bhupender Singh, he had requested for CCTV footage to RPF Incharge, Anand Vihar Terminal, Delhi, but they replied that no CCTV camera was installed at Platform No. 4 at the time of incident, which is Ex.PW10/A and both these depositions are contrary to each other and either of them was lying.
34. PW4 deposed that apart from other articles like 151 tablets, mobile phone etc., cash of Rs. 1,500/- was also recovered from the accused, but the same is not stated by PW1 and PW3 that any cash was also recovered. PW3 in his cross-examination admitted that there were 50 persons on the platform where he was patrolling i.e. near the spot, but PW4 in his cross-
examination stated that there were only 4-5 people present near State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 18 of 28 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.10.28 16:47:07 +0530 the place of incident and PW5 stated that there were 100 people at platform no. 4, which are all different versions. PW1 deposed that IO prepared the site plan at his instance, but PW4 in his cross-examination stated that IO prepared the site plan of the spot himself and he has no knowledge at whose instance it was prepared and PW10, who prepared the site plan, Ex.PW1/E had not deposed at all that it was prepared at the instance of PW1.
35. During his examination in chief, PW5 deposed that on 23.09.2019, he came to Delhi from Shimla in a bus and deboarded at Kashmiri Gate, ISBT and from there he came to Anand Vihar Railway Station by auto as he had to catch Mau Express for his village at Azamgarh, UP. No ticket from Shimla to Delhi or from Delhi to Azamgarh has been produced by prosecution and PW5 deposed that he had purchased the general ticket at about 9 AM on the date of incident. PW5 in his cross-
examination stated that his train was scheduled to leave Anand Vihar Railway Station at 10.55 AM, but in the absence of ticket it is not proved that he had to board the said train. Even no train schedule chart when that train leaves Anand Vihar Railway Station has been proved and as per PW1 they saw the accused person running away at about 12 PM, but PW3 stated the time as 11.45 AM and PW4 stated the time as 12.15 PM though all of them were together and still different times of the incident have been deposed by the witnesses. Further, it has not been explained by the prosecution or PW5 as to what he was doing at the platform at about 12 noon when admittedly his train departure time was 10.55 AM and he had not deposed that he had missed State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 19 of 28 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.10.28 16:47:13 +0530 his train i.e. Mau Express.
36. The prosecution has tried to prove that the accused had administered intoxicating substance in a tea to the PW5/ Victim Nagender and proved the recovery of 151 tablets from the testimonies of PW1, PW3 and PW4 and as per the deposition of PW6 the said tablet was lorazepam, which is a sedative pill and he gave his detailed report, Ex.PW6/A, which proves that the tablets recovered from the accused were lorazepam, which was sedative pill.
37. From the testimonies of PW1, PW3 and PW4, the prosecution has shown the circumstances that on 23.09.2019 when these witnesses were on patrolling, they caught hold of accused when he tried to run away and PW5 was lying unconscious and both of them were taking tea. The prosecution has to prove that the said tablets or any other intoxicating substance was administered or caused to be taken by the victim at the instance of accused and for that scientific evidence was necessary and since the present case rests on circumstantial evidence as there is no eye witness to the adding of said tablet in the tea, the chain of circumstances has to be complete.
38. There is no witness examined by the prosecution, who has deposed that any such cup of tea of the victim or accused was seized by the IO and no reason has been given for non seizure of said tea cups in which both victim and accused were taking tea as they could have been sent to the FSL and might prove that the tea drank by the PW5 actually contained the tablet lorazepam or its contents, which made the victim unconscious. PW5 has deposed State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 20 of 28 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.10.28 16:47:20 +0530 that accused had offered tea and he became unconscious, but he had not deposed that accused had mixed any tablet or substance in the tea. For non seizure of tea or its remnants and tea cups and also for its non explanation, an adverse inference has to be drawn against the prosecution as per Section of 114(g) of Indian Evidence Act.
39. Section 114(g) Indian Evidence Act. Court may presume existence of certain facts: That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.
MEDICAL EVIDENCE
40. PW7 Dr. Ankit Jain has deposed that he had examined PW5 on 23.09.2019 at Dr. Hedgewar Hospital and he was in a drowsy semi-conscious condition and he prepared his report, Ex.PW7/A, but no injury is mentioned in the same. PW7 further deposed that the gastric lavage of the person could not be taken as patient was in semi-conscious drowsy condition and patient gave no history of intake of food items/drink for the past 3-4 hours, which renders gastric lavage dangerous and not useful and PW7 has duly replied vide his reply, Ex.PW7/B. PW10 sent a letter dated 24.09.2019 for preservation of gastric lavage of PW5 to CMO, Hedgewar, Ex.PW10/B, but as per reply, Ex.PW10/F dated 30.09.2019 from the concerned doctor it could not be preserved.
41. Gastric lavage was necessary as it is a procedure to empty the stomach and to take the sample from the stomach, which could have been sent to the FSL for the analysis if it was having any substance of said lorazepam tablets recovered from State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 21 of 28 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.10.28 16:47:27 +0530 the accused to connect him with the crime and this important link in the chain of circumstances is missing in the evidence led by the prosecution. Further, PW7 in his cross-examination admitted that the condition of PW5 Nagender could be caused by lorazepam durg as well as many other similar drugs, which shows that PW5 may have been administered any other drug also and the intoxication by lorazepam recovered from the accused and it being administered to PW5 by accused is doubtful.
42. PW11 deposed that nature of injury was simple in nature and patient was suspected of sedative poisoning and its doze was unlikely to be fatal and no physical/external injury has been mentioned in the opinion of PW11, which is Ex.PW10/G and in his cross-examination he admitted that he was not aware of exact sedative and he had not examined the patient and admitted that it would be difficult to determine the exact nature of sedative used without examining the gastric lavage. It established that prosecution has not proved that PW5 Nagender became unconscious by consuming the tea laced with sedative lorazepam tablet recovered from accused at the spot on the date of incident or it was mixed in tea by accused. Thus, the medical evidence is not conclusive to prove the charge u/s 328 IPC against the accused.
43. PW10 ASI Bhupender deposed that he recorded the disclosure of accused, Ex.PW10/A, but no recovery has been effected pursuant to said disclosure and the same is not admissible in view of the embargo u/s 25 & 26 Indian Evidence Act. The accused refused his TIP vide proceedings, Ex.PW10/D State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 22 of 28 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.10.28 16:47:33 +0530 and it is argued that accused was shown to the victim prior to TIP in the PS and that is why he refused the TIP. PW10 admitted in his cross-examination that the articles of the accused were recovered from his bag, but there was no independent witness to those proceedings and he had reached the spot at 6.15 PM and the bag was lying beside the accused and ASI Anuj Tomar handed over the case property i.e. said tablets to PW10, who conducted the personal search of accused. There is no explanation as to when the accused was caught at about 12 noon, what was he doing till 6.15 PM along with the bag at the spot and there is no reason mentioned for such a long gap in the personal search of accused, particularly when PW10 admitted that said bag was recovered from accused at the spot and as per the testimonies of PW1, PW3 and PW4, accused was apprehended at
12 noon which creates doubt on the case of the prosecution.
44. In Sunil (Supra), Hon'ble Delhi High Court upheld the order of discharge of accused u/s 328 IPC passed by the Ld. Trial Court and agreed with the finding therein that it is essential to prove the charge u/s 328 IPC that forensic examination of the stomach wash in order to determine that the substance that administered was poison and admittedly no stomach wash was taken.
Similarly in this case also, no gastric lavage/stomach wash was admittedly taken or proved by the prosecution.
45. In Rajender Prasad (Supra) also, same view was taken and in that case also there was no medical evidence that complainant got unconscious due to consumption of intoxicating State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 23 of 28 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2024.10.28 16:47:40 +0530 substance and he was acquitted.
DEFENCE OF THE ACCUSED
46. Accused Shabbhu Razak denied the incriminating evidence put to him and he stated that no public witness deposed against him as per the story of the prosecution and rest of the witnesses i.e. Doctors are the formal witnesses and other police witnesses deposed against him in a false manner as he was falsely implicated in the present case by the police officials on pressure of higher officials of police, on the basis of work out theory of the cases. Accused also stated that he was falsely implicated by the police officials in the present case without any fault on his part and he had nothing to do as alleged by the Investigating Officer/police and he is innocent person and he along with his relative was waiting at Anand Vihar Railway Station for train to go to his home town Bihar, while they were waiting for the train suddenly police came towards him and took him to the PS. Accused led defence evidence and examined one defence witness.
47. DW1 Sandeep deposed that on 23.09.2019, he and his father i.e. accused were waiting for train at Anand Vihar Railway Station for going to their home town at Saharsa, Bihar. While they were waiting for the train, two police officials came and asked them for their ticket and they showed them ticket. Thereafter, police officials told them about some process and they had to go to PS. Police officials asked them what he did for living, then he replied that he was a driver and his father replied that he was a vegetable vendor. They were kept on waiting for State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 24 of 28 Digitally signed KUMAR by KUMAR RAJAT RAJAT 16:47:46 Date: 2024.10.28 +0530 two hours and he was outside the PS. ' Uske baad usse bola ki tum yaha se chale jao, tab usne pucha ki kya baat hai, tab unhone bola ki uske papa sham tak vapas aa jayenge, par vo sham tak vapas nahi aaye.'
48. Thereafter on the next day in the morning, he went to the PS 'phir uske baad DW1 kuch samajh nahi aya ki kya ho raha hai, par police valo ne use PS se bahar nikal diya. Phir uske baad use pata chala ki papa ko jail le gaye the.' DW1 was cross- examined by Ld. APP.
49. DW1 is the witness of the fact that accused was lifted from Anand Vihar Railway Station by the police on 23.09.2019, but DW1 has admittedly not made any complaint to any authority against police officials nor made any 100 number call. The said witness is unreliable as his conduct is unnatural conduct and his evidence does not benefit the accused in any manner, but only shows that on 23.09.2019, the accused was present with DW1, who is his son at the Anand Vihar Railway Station, but he also failed to produce any ticket for the same and stated that police officials had taken ticket from him and he has not disclosed as to why police officials had taken his father to the PS.
50. The prosecution was bound to lay the foundational facts by showing that tea, which was given by the accused to PW5 was laced with sedative lorazepam, whose tablets were found in the possession of accused and that said sedative was found in the body of PW5, but prosecution failed to do so as no gastric lavage was taken nor any sample of tea was collected from the spot nor the said tea cup was seized nor any CCTV State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 25 of 28 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.10.28 16:47:52 +0530 footage showing the accused and victim together or the accused giving tea to the victim by mixing the said sedative has been brought on record and there is no independent public witness examined. The prosecution failed to lay these foundational facts and thus, the defence of the accused is not material as the present case is also based on circumstantial evidence for which entire chain of events has to be conclusively established to bring home the guilt of accused beyond reasonable doubt and prosecution has only laid the evidence that the accused had offered tea to the PW5 and he became unconscious and the police officials caught the accused and recovered the said tablets, but as discussed in the aforesaid paras there are several missing links in the case of prosecution to prove that it was only the accused, who had given the sedative laced tea to the victim/PW5 and because of the same he became unconscious. Further, none of the witnesses has deposed that the said sedative was given to PW5 to commit the offence, which is one of the ingredients of Section 328 IPC.
51. In Kailash Gour and Ors. Vs. State of Assam reported in MANU/SC/1505/2011, Apex Court has observed that an accused is presumed to be innocent till he is proved guilty beyond a reasonable doubt is a principle that cannot be sacrificed on the altar or inefficiency, inadequacy or inept handling of the investigation by the police. The benefit arising from any such faulty investigation ought to go to the accused and not to the prosecution.
52. In Subramanya Vs. State of Karnataka, dt. 13.10.2022, in Crl. Appeal No. 242/2022, Hon'ble Supreme State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 26 of 28 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.10.28 16:47:59 +0530 Court of India has held that it is settled principle of law that when two views are possible from the prosecution evidence, the one which is favourable to the accused shall have to be taken and the benefit of doubt shall have to be given to the accused.
53. The Hon'ble Supreme Court has time and again held that onus and duty to prove the case against the accused is upon the prosecution and prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the accused, the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may be made to the Judgments titled as 'Nallapati Sivaiah Vs. Sub Divisional Officer, Guntur', reported as VIII (2007) SLT 454 (SC) in this respect.
Reference may also be made to the Judgment titled as 'Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan', reported as (2013) 5 SCC 722, wherein it was held that the large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied and the Court must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused persons.
54. Prosecution could not prove that the accused had given the tea to PW5/victim by mixing the sedative lorazepam and there is no FSL report against the accused to connect him with crime as no gastric lavage of PW5 was taken. In the State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 27 of 28 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.10.28 16:48:05 +0530 testimonies of PW1, PW3 and PW4, there are material variations and contradictions as discussed in the preceding paras. Thus, prosecution could not prove all the ingredients of Section 328 IPC against the accused beyond reasonable doubt and as such accused is entitled to benefit of doubt.
CONCLUSION
55. In the totality of the circumstances brought on record by way of evidence, it is observed that the prosecution has failed to prove its case beyond reasonable doubt against the accused Shabbhu Razak @ Shambhu Razak qua offence punishable u/s 328 IPC, thus, a benefit of doubt is given to the accused on the basis of above-noted principles and facts established on record.
56. Consequently, the accused Shabbhu Razak @ Shambhu Razak is acquitted of the offence u/s 328 IPC.
Digitally
signed by
KUMAR
KUMAR RAJAT
PRONOUNCED IN OPEN COURT RAJAT Date:
2024.10.28
16:48:11
ON THIS 28th DAY OF OCTOBER 2024. +0530
(KUMAR RAJAT)
ASJ-07, Shahdara, KKD
Delhi/28.10.2024
State Vs. Shabbhu Razak FIR No. 0042/2019 PS Anand Vihar Railway Station Page 28 of 28