Delhi District Court
State vs . on 30 October, 2014
FIR No.43/11
IN THE COURT OF SH.PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
FIR No. : 43/11
Under Section : 328/379/411/407/34 IPC
Police Station : Jyoti Nagar
Sessions Case No : 57/14
Unique I.D. No. : 02402R0147052011
In the matter of :
STATE
Vs.
1. Mukesh Mishra
S/o. Sh. Chattarpal
R/o. Village-Rith., Post-Dharampur
District-Muradabad, U.P.
2. Raju Sharma
S/o Sh. Suresh Sharma
R/o. Village-Barkat Pur
District-Bulandshahar, U.P.
3. Rashid @ Makhi
S/o. Sh. Mustak
R/o. Village-Bachraun, PS-Bachraun
District-J.P. Nagar, U.P.
Date of Institution : 13.05.2011
Date of Committal : 30.06.2011
Date of receiving in this Court : 29.01.2014
Date of reserving judgment : 27.10.2014
Date of pronouncement : 30.10.2014
Decision : Acquitted.
Page no. 1 of 14
(Pulastya Pramachala)
Addl. Sessions Judge (Shahdara)
Karkardooma Courts / Delhi
FIR No.43/11
JUDGMENT
Case set up by the prosecution :-
1. On 10.02.2011, complainant Shubhi Lal S/o Sh. Raghubeer made his complaint at Police Station-Jyoti Nagar regarding missing of 200 monoblock pumps and 20 submersible pumps, which were loaded in Tempo bearing no. DL-1LE7393. On the basis of this complaint, case under Section 407 IPC was registered and investigation of this case was handed over to SI Prem Pal. After receiving the investigation of this case, S.I. Prem Pal along with Ct. Faiyaz went to the spot of incident i.e. G-26, East Gokalpur, Loni Road, Delhi-94, where, at the instance of complainant, he prepared the site plan. Thereafter, on 12.02.2011, one person namely Sh. Lokesh came to the police station along with his driver Sh. Charan Singh. Lokesh told SI Prem Pal that while searching the tempo, he reached at Bhopura Chowk, Ghaziabad, U.P, where driver Charan Singh met him in drunk condition, who narrated the entire incident to him. Thereafter, Lokesh took him to the police station. IO recorded the statement of Charan Singh, which is to the effect that he was working as a driver at Ganesh Tempo Transport, Amar Colony, Gokalpur, Delhi. On 10.02.2011, at about 11.00 AM, he had loaded certain goods on his vehicle No. DL-1LE-7393 (Tata 407), from Ujala Pvt. Ltd, Amar Colony, Gokalpur, Delhi and was moving towards A-15, East Gokalpur Nagar, Ghaziabad, U.P. When, he reached Bhopura Border, a person signaled to stop his vehicle and asked Sh. Charan Singh to carry a bed to Ghaziabad, as well. Charan Singh demanded Rs. 200/- for this job and the deal was struck to carry Page no. 2 of 14 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.43/11 the bed. The said person also joined Sh. Charan Singh in that vehicle and they went upto Bhopura Gol Chakkar, where the vehicle was stopped. The said person asked another person on telephone to bring the bed and he was joined by six other persons on that spot. One of those offered a cigarette to Sh. Charan Singh and another person brought a cold drink for Sh. Charan Singh. Sh. Charan Singh accepted cold drink as well as cigarette and after consuming cold drink, he became unconscious. Thereafter, he found himself in a field near Bhopura after regaining his consciousness. His purse was missing and when he came to Bhopura Chowk, he met Lokesh there and he told all such facts to him.
2. Police further investigated the case and arrested accused Mukesh from Bhopura, at the instance of Sh. Charan Singh. Mukesh allegedly gave confessional statement and on the basis of his disclosure statement, police team along with Charan Singh visited Village-Tigri, U.P. They were taken to a Mango Orchard by Mukesh, where they found other two accused namely Raju and Rashid, who were digging out the pumps from the field. Police seized 195 monoblock pumps and 20 submersible pumps, from that place. After completion of the investigation, charge-sheet under Section 328/379/411/407/34 IPC was filed against all the accused persons.
3. On 10.08.2011 charges were framed against accused persons namely Mukesh Mishra, Raju Sharma and Rashid Ali for offences under Section 328/34 IPC, 379/34 IPC and 411/34 IPC, to which they pleaded not guilty and claimed trial.
Page no. 3 of 14 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.43/11 Prosecution Evidence :-
Prosecution examined 13 witnesses in support of its case.
4. PW-1 Lokesh Kumar was the public witness, who met the complainant at Bhopura Chowk and took him to the PS-Jyoti Nagar.
5. PW-2 Sh. Shubhi Lal was the complainant. He got recorded his complaint Ex.PW2/A at the Police Station. He received the case property i.e. 20 pieces of submersible and 195 pieces of monoblock pumps on superdari vide superdarinama Ex.PW2/B. He proved the photocopy of builty as Mark P1 and photocopy of bill as Mark P2. He identified the above-said case property in the Court and proved the monoblock pumps as Ex.PW2/Article-1 (colly.) and submersible pumps as Ex.PW2/Article-2.
6. PW-3 ASI Veena had recorded FIR in the present case being Duty Officer. She proved the copy of FIR as Ex.PW3/A and her endorsement on rukka as Ex.PW3/B.
7. PW-4 Sh. Charan Singh was the victim in the present case. He was the driver of Tempo bearing No. DL-1LE-7393, which was robbed by the accused persons. He narrated the entire incident to the police and got his statement recorded. He was also the witness to arrest of accused Mukesh Mishra, Raju Sharma and Makhi @ Rashid. He was also the witness to the recovery effected in this case. He proved the arrest memo of accused Mukesh Mishra as Ex.PW4/A, his personal search memo as Ex.PW4/B and his disclosure statement as Ex.PW4/C. He proved the seizure memo of recovered articles as Ex.PW4/D. He also proved the arrest memos of accused Raju and Makhi @ Rashid as Page no. 4 of 14 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.43/11 Ex.PW4/E and Ex.PW4/F respectively, their personal search memos as Ex.PW4/G and Ex.PW4/H respectively and their disclosure statements as Ex.PW4/I and Ex.PW4/J respectively. He also proved the photographs of the case property as Ex.PW4/P1 and Ex.PW4/P4.
8. PW-5 H.C. Dilbag Singh, PW-6 Ct. Sanjay, PW-7 Ct. Dheeraj and PW-
11 Ct. Yogesh had joined the investigation of this case along with IO on 13.02.2011. They were witnesses to arrest of all accused persons. They were also witnesses to recovery effected from the accused persons. PW-5 also proved the site plan of place of recovery as Ex.PW5/A and recovery memo of four photographs as Ex.PW5/B. All these PWs also identified the case property during his evidence.
9. PW-8 Sh. Sunder Lal was running a transport business under the name and style of "Ganpati Tempo Transport". He had searched for PW-4 Sh. Charan Singh, who was his driver, after he did not return. On 11.02.2011, he along with salesman of Ujala Pump went to the PS- Jyoti Nagar and got the FIR registered.
10.PW-9 Dr. Ayush Singhal was Junior Resident at GTB Hospital. On 14.02.2011, he had medically examined PW-4 Charan Singh and prepared his MLC no. B-689/11 , which was proved as Ex.PW9/A.
11. PW-10 H.C. Sunil Kumar was the MHC(M), with whom case property was deposited in the malkhana by the IO on 13.02.2011. He proved the relevant entry in register no. 19 as Ex.PW10/A.
12.PW-12 Dr. Sandeep Mittal was Junior Resident at GTB Hospital. On 11.02.2011, he had medically examined PW-4 Charan Singh and prepared his MLC no. C-591/11, which was proved as Ex.PW12/A. Page no. 5 of 14 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.43/11
13.PW-13 SI Prem Pal Singh was the Investigating Officer. He proved site plan prepared at the instance of complainant Subey Lal as Ex.PW13/A, site plan prepared at the instance of Charan Singh as Ex.PW13/B, as well as other memos prepared by him. He also testified about investigation conducted by him.
Arguments of prosecution :-
14.Ld. Chief PP submitted that the prosecution has produced cogent evidence to prove its case. He further submitted that the minor contradictions regarding the date when PW-4 Charan Singh regained his senses, should be overlooked. He further argued that the robbed property was recovered on the basis of information given by accused Mukesh and remaining two accused persons were found with the case property, when they were digging out the same in a Mango Orchard. Therefore, there is sufficient evidence on the record to assume the guilt of all the accused persons.
Plea and arguments of defence :-
15.All three accused persons disputed the correctness of incriminating circumstances put to them U/s 313 Cr.P.C. They pleaded that they were falsely implicated by the IO in connivance with the complainant and nothing was recovered at their instance. Accused Rashid and Raju took further plea that they did not make any disclosure statement and their signature were obtained forcibly on several documents.
16. Ld. defence counsel submitted that the prosecution evidence is full of contradictions and all accused persons were made scape-goat by the IO. He made following arguments in respect of lacuna and Page no. 6 of 14 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.43/11 contradiction appearing in the prosecution evidence :-
(i) According to police witness, the disclosure statement of Mukesh was recovered at Bhopura, but as per PW-4 his disclosure was recovered at police station.
(ii) There were no public witnesses in the recovery proceedings or in the proceedings to arrest accused Mukesh, though, such persons could have been joined by the IO.
(iii) Accused Mukesh is shown as witness to site plan i.e. Ex.PW-5/A of recovery and PW-4 has not been shown as witness, which in itself is suspicious circumstance, as accused could not be a witness against him.
(iv) Two MLCs give different history of injury of PW-4. First MLC is dated 12.02.2011 and second MLC is dated 14.02.2011. In the first MLC, there is no mention of toxic material being given to PW-4. No further report of treatment after 12.02.2014 has been shown by the prosecution.
Findings :-
17.In this case, all accused persons have been charged with offences U/s 328/379/411/34 IPC. In order to prove the charge for offence U/s 328 IPC, prosecution was required to establish that PW-4 Charan Singh was given some stupefying or intoxicating or unwholesome drug either with the cigarette or with cold-drink, in order to steal the vehicle Tata 407 along with the goods. To prove charge for offence U/s 379 IPC, the prosecution was required to establish that accused persons dishonestly had taken away the vehicle with goods in the possession Page no. 7 of 14 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.43/11 of PW-4 Charan Singh without his consent. To prove charge for offence U/s 411 IPC, prosecution was supposed to establish that the accused persons knowingly were having the possession of pumps, which were stolen and accused persons had knowledge or reason to have knowledge that they were stolen.
18.Now I shall proceed further to appreciate the evidence produced by the prosecution, to see whether the ingredients of all the offences have been duly proved by way of reliable evidence or not.
19.From the side of prosecution, the star witness is PW-4, who was allegedly victim of intoxication and from whose possession, the vehicle with goods was allegedly stolen. However, his testimony is to be compared and analyzed by reading the testimony of PW-1, PW-2 and PW-8, on one hand and other witnesses to alleged arrest of accused Mukesh and recovery of stolen articles.
20.PW-4 deposed that on 10.02.2007 (wrong year mentioned), after drinking cold drink (maza), he became unconscious and he regained his consciousness next day at about 12.00-1.00 PM at Bhopura Chowk. But later on, he said that he regained sense after 2 days. In respect of the alleged incident taken place with him, he said that he reached Bhopura at around 12:00 PM and thereafter, he was stopped by Mukesh. They had conversation and then he again moved 100 meters to stop vehicle at the instance of Mukesh. On the other hand, PW-8 deposed that he tried to contact PW-4 on his mobile at 11:45 AM on 10.02.2011, but his mobile was switched off. Though, mobile of PW- 4 could not have been switched off due to alleged incident, by 11:45 Page no. 8 of 14 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.43/11 AM, as PW-4 Charan Singh was not intoxicated by that time. It is not so deposed by PW-4 Charan Singh that he had switched off his mobile phone. Therefore, even the chances of his mobile phone being switched off by the offenders could be possible only after he was intoxicated. Thus, the testimony of PW-8 Sh. Sunder Lal (employer of PW-4) read along with testimony of PW-4 Charan Singh does not inspire much confidence regarding the alleged facts of missing of PW- 4 Charan Singh, due to the alleged acts of offenders.
21.Furthermore, PW-8 Sh. Sunder was owner of Transport Company, who said that he visited police station on 11.12.11, when he could not trace PW-4 on 10.02.2011 and they lodged FIR. PW-2 Shubhi Lal said that on 10.02.2011 he lodged missing report Ex.PW-2/A and after recovery, they lodged FIR of theft and thereafter, investigation was converted into robbery. Neither PW-8 mentioned about PW-2, nor PW-2 mentioned about PW-8 as their companion to police station to lodge FIR. Only one FIR under Section 407 IPC was lodged on 11.02.2011 on the basis of PW-2/A. Thus, the missing link and inconsistency in their statement in respect of same fact casts doubt over the role of these witnesses.
22.PW-2 Shubhi Lal also deposed that he visited police station with PW-1 Lokesh, but PW-1 did not mention visit to police station with PW-2. PW-1 said that he visited police station with PW-4 on 12.02.2011, after finding PW-4 in Bhopura. Thus, once again, I find an unnatural gap in the testimony of both these witnesses.
23.Moreover, PW-1 testified that he did not take PW-4 to hospital on Page no. 9 of 14 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.43/11 12.02.2011, though, PW-4 was taken to GTB hospital on 12.02.2011 by police official. At that time, neither police nor PW-4 gave alleged history of administration of stupefying substance. Rather, they gave history of assault at Bhopura. PW-4 was again taken to GTB hospital on 14.02.2011 after alleged recovery of case properties on 13.02.2011 and this time, new history of intoxication was introduced for the first time. First of all, it is not probable and natural that PW-1 would not have accompanied PW-4 to hospital, if he actually found him in bad condition of intoxication. Thus, he could not have been oblivious of medical check-up of PW-4 on 12.02.2011. He could have clarified such facts in his testimony, but he did not, which casts a shadow of doubt over his contention that PW-4 Charan was actually found by him in bad/intoxicated condition. Secondly, it could not be a possible scenario that despite having a history of involuntary and deceptive administration of stupefying substance, PW-4 and his companions would not inform about it to the treating doctor on 12.02.2011 itself. Thirdly, it does not sound probable that a person would remain under influence of intoxicant for two days, without medical help and would also survive. If the dose was excessive, then PW-4 could not have survived in normal circumstances. Most importantly, IO/PW-13 did not bother to investigate about description and nature of such substance, which was allegedly given with cold drink to PW-4. He did not find out source of the same. Therefore, such allegations of PW-4 are not reliable.
24.Most importantly, in Santosh Kumar v. State, 2008 [4] JCC 2919, Page no. 10 of 14 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.43/11 Hon'ble High Court of Delhi laid down the essential ingredients of Offence under Section 328 IPC in the following manner:-
"A perusal of this Section would show that the following elements are essential to constitute an offence under Section 328 IPC:
(i) Some person or persons should administer or cause to be taken by any person any poison or stupefying, intoxicating or unwholesome drug, or other thing; and
(ii) The intention of the person or persons mentioned in (i) should be to cause hurt to the person concerned, or should be within knowledge on the part of the person or persons that the result of his act or their act was likely to cause hurt to the concerned persons.
Both these elements should exist conjunctively, then and then alone would the offence be complete and the person or persons, as the case may be, would be guilty of the offence contained in Section 328 IPC."
In the same case, the Court also held that there must be concrete medical evidence to establish administration of any drug or intoxicating substance, while making following observations:-
"Simply on the basis of the statement of PW-5 alone it could not be concluded that he had become unconscious because of eating the biscuit or drinking tea offered to him by the accused. There had to be medical evidence to the effect that PW-5 had, in fact, become unconscious because of consuming any drug or intoxicating substance etc. mixed in tea or biscuit."
25.In the present case, admittedly, IO did not obtain any medical evidence in support of such allegations. Hence, the charge for offence U/s 328 Page no. 11 of 14 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.43/11 IPC has to fail.
26.Furthermore, as far as, arrest of 1st accused Mukesh and consequent recovery of case properties are concerned, PW-13 SI Prem Pal has shown arrest of Mukesh on 13.02.2011, at around 04:30 PM from village Tigri, though in his testimony he said that he arrested him at Bhopura. PW-11 Ct. Yogesh also deposed that accused Mukesh was arrested at around 04:00-04:30 PM, but PW-5 H.C. Dilbag Singh said that Mukesh was arrested at around 11:30 AM. Thus, there is apparent contradiction in respect of the time and place of arrest of accused Mukesh, which goes on to show that probably these witnesses were giving artificial account of facts.
27. PW-6 Ct. Sanjay in contradiction to PW-7 Ct. Dheeraj, PW-11 and PW-
13/IO deposed that 4-5 police officials of Tigri police station had joined them, when they lodged their presence in Tigri police station. Though, according to IO and other witnesses, local police did not join them. PW-11 deposed that they did not go to local police station. But PW- 13/IO testified that he informed local police station Himpur/Hamid Pur. No DD entry of arrival was proved by prosecution. Police team had reached Bijnaur at around 08:00 PM. Even, PW-11 deposed that it was already dark, when they reached the Orchard. However, photographs taken by PW-13/IO show that it was day time. These photographs Ex.PW4/P1 and Ex.PW4/P4, were not proved in accordance with Section 65-B, Evidence Act. However, they can be used to see contradiction in the story of prosecution. So, once again, it is crystal clear that IO and his companion officials have given some artificial Page no. 12 of 14 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.43/11 account of facts in respect of arrest of accused Mukesh and time of reaching the Mango Orchard, where allegedly the stolen properties were recovered.
28.PW-10 H.C. Sunil MHC(M) said that IO/PW-13 deposited 20 submersible pumps and 15 mono-block pumps, though as per seizure memo Ex.PW-4/D, IO had packed the pumps in 24 sacks and had sealed them. Thus, PW-10 could not have said about number of pumps. He did not mention about the sacks, which shows that his statement was not based upon actual transaction.
29.Moreover, PW-4 mentioned that they went to Tigri village on 12.02.2011 and his employer also accompanied them. But all police officials except PW-7, did not whisper about such fact, in their testimonies. In fact, PW-13/IO has not shown the presence of employer of PW-4 i.e. PW-8 Sunder Lal in the recovery proceedings.
30.Thus, from my foregoing discussions on the evidence produced by the prosecution, I find that the allegations of intoxicating PW-4 Charan Singh for the purpose of taking away his vehicle with goods are neither reliable nor proved. The story of arrest of accused Mukesh and recovery of case property on the basis of disclosure statement given by accused Mukesh, also does not inspire confidence, due to artificial account of facts given by the members of police team in respect of material aspects of arrest and recovery. It is well apparent that there is something, which has been suppressed by IO from the Court. Such mysterious conduct of IO with mysterious conduct of PW-4, do not allow me to raise a presumption of guilt for alleged offence of theft or Page no. 13 of 14 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.43/11 possession of stolen properties against the accused persons. The absence of any clarification regarding any attempt to trace out Tata 407 is also a material lacuna in the case of prosecution. If it is assumed that the pumps were taken by accused persons to the Mango Orchard in the said vehicle and all the pumps were unloaded there, then it is worth to mention that this process would have taken good enough time and someone from the village must would have been a witness to the same. However, once again, mysteriously IO did not bother to find out any such witness from the concerned village in support of the story projected by him.
31.Therefore, I do not find it safe to rely upon the case projected by prosecution and to assume the guilt of accused persons for alleged offences. Accordingly, all the three accused persons are acquitted of all the charges.
Announced in the open court (PULASTYA PRAMACHALA) today on 30.10.2014 Additional Sessions Judge (Shahdara), (This judgment contains 14 pages) Karkardooma Courts, Delhi Page no. 14 of 14 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi