Delhi District Court
State vs . Sushil Kumar And Others (4) on 25 October, 2018
IN THE COURT OF O. P. SAINI: ADDL. SESSIONS JUDGE/SPL.
JUDGE (CBI04), PATIALA HOUSE COURT, NEW DELHI
Old SC No. 06/2016
New SC No. 30/2018
State Vs. Sushil Kumar and Others (4)
FIR No. 710/2015
U/s: 379/380/328/406 IPC
PS: Sagarpur
1. Date of Institution : 06.01.2016
2. Date of Commencement
of Final Arguments : 16.10.2018
3. Date of Conclusion of
Final Arguments : 22.10.2018
4. Date of Reserving Order : 22.10.2018
5. Date of Pronouncement : 25.10.2018
6. Whether Acquitted or
Convicted? : Acquitted.
Present: Sh. Pradeep Kumar, Addl. PP for the State.
Sh. Vaibhav Mishra, Advocate for accused Mithlesh
Mehto.
Sh. J. K. Mishra, Advocate for accused Sushil Kumar.
Sh. Rahul Kumar and Ms. Mamta Yadav, Advocates for
accused Mohan Kumar Sharaf.
Ms. Tabassum, Advocate for accused Radhey Shyam Lal.
JUDGMENT
___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 1 of 30 Brief Facts of the Case The instant case was registered on 10.09.2015 under Section 380/406/34 IPC on the allegations that on 09.09.2015, complainant Sh. Mahesh Kumar had gone to the house of his friend Sushil Kumar to ask him to return an amount of Rs.20,000/, which he had borrowed from him. However, at about 10:00 AM, Sushil Kumar took him to Naseerpur Village telling that he would obtain money from his friend and thereafter return the borrowed amount to him. Accordingly, they went to Naseerpur Village, where one Mithlesh Mehto, friend of Sushil Kumar, met them. There, Mithlesh Mehto brought food and all of them consumed the same and on consuming the food, Mahesh Kumar went to sleep. When he woke up at about 07:00 PM, he found Mithlesh Mehto and Sushil Kumar missing from the room. He also found that Rs.12,000/ in cash, a gold neck chain weighing about four tolas, a gold ring weighing about one tola and mobile phone were missing. His motorcycle bearing registration No. DL5SAJ8170 was also found missing. When Sushil Kumar and Mithlesh Mehto did not return for a long time, he became suspicious that these articles were stolen by them and got the instant case registered.
2. During the course of investigation, accused Sushil Kumar was arrested on 12.09.2015. On 05.10.2015, accused Mithlesh Mehto was arrested in FIR No. 1144/15, under Section 302 IPC, in Police Station Sarai Rohilla. In that case, he also made ___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 2 of 30 a disclosure about his involvement in the instant case. On his interrogation, Section 328 IPC was also added to the instant case. Accordingly, he was arrested in the instant case on 08.10.2015. As per his disclosure statement that he had sold the gold chain and ring to Radhey Shyam Lal and accordingly accused Radhey Shyam Lal was arrested on 14.10.2015 from Khagaria (Bihar). Radhey Shyam Lal led to the shop of Mohan Kumar Sharaf and got the gold chain recovered from the shop of Mohan Kumar Sharaf. Accordingly, Mohan Kumar Sharaf was also arrested.
3. During investigation, statements of the witnesses were recorded, recovery of ring was effected, motorcycle of the complainant was recovered as abandoned, accused were arrested as stated above, investigation was completed and charge sheet was filed.
4. The accused were summoned and on completion of formalities under Section 207 CrPC, the case was committed to the Court of Sessions on 28.02.2016.
5. Vide order dated 11.03.2016, my learned predecessor was pleased to frame charges under Section 328/34 and 379/34 IPC against accused Sushil Kumar and Mithlesh Mehto, to which both pleaded not guilty and claimed trial.
A separate charge under Section 411 IPC was also ordered to be framed against accused Radhey Shyam Lal and Mohan Kumar Sharaf, to which they also pleaded not guilty and ___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 3 of 30 claimed trial.
Evidence of the Prosecution
6. In support of its case, the prosecution has examined 15 witnesses in all.
7. PW 1 is HC Anil Kumar. He deposed that on 09.09.2015, he was working as Duty Officer in Police Station Sagarpur. At 08:15 PM, the Wireless Operator gave an information that a caller had informed that when they were drinking and eating in House No. B50, Gali No. 4, Naseerpur Colony, their belongings have been stolen. This information was recorded vide DD No. 52B, Ex PW 1/A, and was handed over to HC Niranjan for necessary action.
8. PW 2 is Sh. Mahesh Kumar, complainant in the case. In his deposition, he has narrated the facts as reported to the police. He also deposed that he made a statement, Ex PW 2/A, to the police. During the course of investigation, he also identified his gold ring, Ex PW 9/1, during TIP proceedings, Ex PW 2/D, in the Court. He has also identified the motorcycle, Ex PW 2/P1.
9. PW 3 is Sh. Kamal Singh, brother of complainant Mahesh Kumar. He deposed that he is the registered owner of the motorcycle bearing registration No. DL5SAJ8170, which was found missing from the possession of the complainant.
10. PW 4 is HC Niranjan Lal. He deposed that on ___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 4 of 30 09.09.2015, he was posted as Head Constable in Police Station Sagarpur, and was on emergency duty from 08:00 PM to 08:00 AM. On receipt of DD No. 52B, Ex PW 1/A, he along with Constable reached house No. B50, Gali No. 4, Naseerpur Colony, but the complainant was not found there and the report was kept pending inquiry. On 10.09.2015 at about 07:00 PM, complainant Mahesh Kumar came to the police station and made his statement, Ex PW 2/A, on which he prepared rukka, Ex PW 4/A, and got the instant case registered.
11. PW 5 is HC Dal Chand of Police Station Dabri. He deposed that on 15.09.2015, the motorcycle bearing registration No. DL5SAJ8170 was found abandoned in the area of Police Station Dabri and the same was later on transfered to Police Station Sagarpur.
12. PW 6 is Ct. Pawan Kumar. He deposed that on 13.10.2015, he along with Ct. Sanjeev, HC Shyam Lal and accused Mithlesh Mehto left of Khagaria and reached there on 14.10.2015. There, at the instance of accused Mithlesh Mehto, they went to the shop of Radhey Shyam Lal, Goldsmith, and arrested him. During interrogation, Radhey Shyam Lal made disclosure that he had sold the gold chain to the owners of Maa Jewellers owned by Mohan Kumar Sharaf. Thereafter, they returned to Police Station Khagaria and joined the local police in the investigation. They reached the shop of Mohan Kumar Sharaf and arrested and interrogated him.
___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 5 of 30 In pursuance to the disclosure, Mohan Kumar Sharaf took out a gold chain from his safe and the same was identified by Radhey Shyam Lal and Mithlesh Mehto. The gold chain was seized by the police. He has identified the gold chain, Ex PW 9/P1. He has proved the arrest memos, personal search memos and disclosure statements of the two accused, Ex PW 6/A to F. He has also proved seizure memo of the ring, Ex PW 6/G, and pointing out memos of the shops of Radhey Shyam Lal and Mohan Kumar Sharaf, Ex PW 6/H and I.
13. PW 7 is Inspector Saheb Singh. He deposed that he had arrested accused Mithlesh Mehto in FIR No. 1144/15, under Section 302 IPC, in Police Station Sarai Rohilla, wherein he had made his disclosure, Ex PW 7/A, about his involvement in this case and informed Police Station Sagarpur.
14. PW 8 is Sh. Loveleen, Metropolitan Magistrate, New Delhi. He deposed that on 03.11.2015, he had conducted TIP of a gold ring, during which the complainant had identified the ring correctly. He has proved the application for TIP, Ex PW 8/A, and the TIP proceedings, Ex PW 8/B.
15. PW 9 is Sh. Vikas Kumar of Muthoot Finance Company. He deposed that on 17.11.2015, a gold chain weighing about 32 gm., was pledged to his company by Kamal Singh against a sum of Rs.58,000/. He has identified the gold chain, Ex PW 9/P1. He has also proved the papers in relation to the pledge, Ex PW 9/A and B. ___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 6 of 30
16. PW 10 is SI Santosh Kumar of Police Station Khagaria (Bihar). He deposed that on 14.10.2015, the police party comprising HC Shyam Lal, Ct. Sanjeev and Ct. Pawan had come to his police station along with accused Mithlesh Mehto and accused Radhey Shaym. Accused Radhey Shyam Lal took them to Maa Jewellers, Thana Road, Khagaria, from where a gold chain, Ex PW 9/P1, was recovered from accused Mohan Kumar Sharaf.
17. PW 11 is Sh. Bharat Singh, landlord of accused Mithlesh Mehto. He deposed that on 05.09.2015, Mithlesh Mehto had taken a room on rent on first floor of his house on monthly rent of Rs.2000/. He also deposed that on 09.09.2015 at about 10:00 AM, two persons had come to meet Mithlesh Mehto and the room was locked from inside. He also deposed that at about 07:00 PM, he saw one of those two persons standing on the first floor and the staircase leading to the room was locked from outside. The said person requested him to open the door. He went to the first floor and opened the door. The person disclosed his name as Mahesh and told that Mithlesh Mehto and other persons had given him something to eat due to which he became unconscious and when he woke up, he found his gold chain, ring and purse with money missing. His motorcycle was also found missing. On asking of Mahesh, he dialed 100 number and police reached the spot. Police took Mahesh and him to the police station.
18. PW 12 is ASI Shyam Lal. He deposed that on ___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 7 of 30 10.09.2015, he was posted as Head Constable in Police Station Sagarpur. On that day, the investigation of the instant case was assigned to him. He along with the complainant went to the House No. B50, Gali No. 4, Naseerpur Colony and prepared site plan, Ex PW 2/B. On 12.09.2015, he along with Ct. Sanjeev arrested accused Sushil Kumar from his house in village Sabhapur vide memo, Ex PW 2/C, conducted his personal search vide memo, Ex PW 12/A, and recorded his disclosure, Ex PW 12/B, and also prepared a pointing out memo, Ex PW 12/C. He also arrested accused Mithlesh Mehto as per the information received from Police Station Sarai Rohilla, and prepared his arrest memo vide Ex PW 12/D, conducted his personal search vide memo, Ex PW 12/E, and recorded his disclosure, Ex PW 12/F. He also recovered a strip of intoxicating tablets of Ativan on pointing out of accused Mithlesh Mehto through a pointing outcumseizure memo, Ex PW 12/G, from the aforesaid house. He has identified the strip, Ex PW 12/P1. He also seized the motorcycle bearing registration No. DL5SAJ8170.
On the point of recovery from Khagaria and arrest of Radhey Shyam Lal and Mohan Kumar Sharaf, he has corroborated the version of PW 6 Ct. Pawan Kumar.
19. PW 13 is HC Sanjeev. He deposed that on 12.09.2015, he was posted as Constable at Police Station Sagarpur. He has corroborated the version of PW 12 ASI Shyam Lal.
___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 8 of 30
20. PW 14 is HC Mahabir Singh. He deposed that he was working as MHC(M) in Police Station Sagarpur and on 12.10.2015, 13.10.2015 and 17.10.2015, HC Shyam Lal had deposited the case property with him in the Malkhana. He also deposed that on 15.12.2015, he sent a parcel through Ct. Sanjeev to FSL, Rohini.
21. PW 15 is SI Birender. He deposed that on 19.12.2015, the investigation of the instant case was assigned to him. He perused the file, completed the investigation, prepared the charge sheet and filed the same in the Court.
22. Thereafter, prosecution evidence was closed.
Statement of the Accused and Defence Evidence
23. Statements of the accused were recorded under Section 313 CrPC, wherein they denied the allegations against them to be incorrect stating that they are innocent and have been falsely implicated in this case. None of them led any evidence in defence.
Submission of the Parties
24. It is submitted by learned Addl. PP that accused Sushil Kumar and Mithlesh Mehto administered some intoxicating drug to complainant Mahesh Kumar on 09.09.2015, in the rented room of accused Mithlesh Mehto, at village Naseerpur, New Delhi by mixing it in the food served by them to him and when he lost consciousness and went to sleep, they committed theft of Rs.
___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 9 of 30 12,000/, one gold ring, one gold chain weighing about 30 gm. and his mobile phone from his person. It is submitted that when the complainant woke up, he found both the accused missing from the spot as well as the aforesaid articles stolen from his person. It is further submitted that it is apparent from the evidence on record that these two accused had committed the theft, as nobody else was present on the spot nor there is evidence that anybody entered the house, as the staircase to the house was locked from outside by the accused. It is repeatedly submitted that the prosecution has been successful in proving the charge of theft under Section 379/34 IPC against the two accused beyond reasonable doubt. However, it is submitted that since no medical examination of complainant Mahesh Kumar was conducted regarding his consuming intoxicating or stupefying substance, he does not press the charge under Section 328 IPC.
It is also submitted that as the gold chain of the complainant was recovered from the possession of accused Mohan Kumar Sharaf on pointing out of accused Radhey Shyam Lal, the prosecution has also been successful in proving the charge of possession of stolen property under Section 411/34 IPC against both the accused. My attention has been invited to the evidence led on record.
25. On the other hand, it is submitted by learned counsel for all the four accused that the very origin of the incident is ___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 10 of 30 doubtful, as no such incident as alleged by the complainant took place. It is further submitted that the alleged incident of administration of intoxicating drug to the complainant by accused Sushil Kumar and Mithlesh Mehto took place on 09.09.2015 but the FIR was registered on the next day in the late evening, that is, on 10.09.2015 at 08:00 PM. It is further submitted that police had reached the spot on the same day but no action was taken. It is repeatedly submitted that in such a situation, manipulation of facts and false implication of the accused cannot be ruled out, as the complainant is a moneylender. It is further submitted that the complainant has completely disowned his statement, Ex PW 1/A, on the basis of which the instant case was registered and has introduced new facts in his deposition in the Court. It is further submitted that since no medical examination of the complainant was conducted, no offence under Section 328 IPC is made out against accused Sushil Kumar and Mithlesh Mehto. It is further submitted that the recovery of a gold chain was effected after a long time, that is, on 14.10.2015 from accused Mohan Kumar Sharaf and it cannot be said that accused Sushil Kumar and Mithlesh Mehto were involved in committing theft. It is further submitted that no recovery has been effected from these two accused.
It is further submitted that there is no evidence on record to the effect that accused Radhey Shyam Lal and Mohan ___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 11 of 30 Kumar Sharaf were in possession of gold chain, knowing that it was a stolen property. It is submitted that accused Mohan Kumar Sharaf had paid Rs.50,000/ for the gold chain and this was the value of the chain and as such it cannot be said that he obtained it knowing it to be stolen. It is also submitted that there is no evidence that accused Radhey Shyam Lal knew that it was stolen one. It is repeatedly submitted that nothing was recovered from accused Radhey Shyam Lal. It is repeatedly submitted that there is no evidence at all against any of the accused and they may be acquitted.
26. In rebuttal, it is submitted by learned Addl. PP that as per the material proved on record, offence under Section 379/34 IPC stands proved against accused Sushil Kumar and Mithlesh Mehto and an offence under Section 411/34 IPC stands proved against accused Radhey Shyam Lal and Mohan Kumar Sharaf beyond reasonable doubt.
27. I have carefully considered the submissions made at the bar in the light of material on record.
Origin of the Case: Whether doubtful?
28. It is the case of learned defence advocates that as per DD Entry No. 52B, Ex PW 1/A, the incident took place on 09.09.2015 and the information was received in the police station at about 08:12 PM. It is further submitted that police did not ___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 12 of 30 register any case on 09.09.2015 despite the police reaching the spot on the same day and complainant PW 2 Sh. Mahesh Kumar and his landlord PW 11 Sh. Bharat Singh also reaching the police station on the same day. It is submitted that instead the case was registered on 10.09.2015 at 08:00 PM after long delay. It is submitted that in such a situation, manipulation of facts and false implication cannot be ruled out. However, learned Addl. PP has submitted that the matter may be dealt with as per record, as indeed the case was registered on the next day. I proceed to examine the issue.
29. As per DD No. 52B, Ex PW 1/A, information about the incident was received in Police Station Sagarpur at 08:12 PM on 09.09.2015 and PW 4 HC Niranjan Lal was handed over the DD entry for necessary action. He has deposed in his examinationin chief that he went to the spot but the complainant was not found there. In his crossexamination also, he deposed that no public person was available on the spot. He has deposed that in such a situation the matter was kept pending inquiry and the case was registered on the next day, when complainant Sh. Makesh Kumar came to the police station and made his statement, Ex PW 2/A. However, complainant PW 2 Sh. Mahesh Kumar in his examinationinchief has deposed that he had asked a shopkeeper to call the police on 09.09.2015 itself at about 07:30 PM and the police reached over there and took him to Police Station Sagarpur, ___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 13 of 30 where his statement, Ex PW 2/A, was recorded. In his cross examination also, he conceded that the police had met him at 08:00 PM on 09.09.2015 in the police station. This version of the complainant does not match with the version given by PW 4 HC Niranjan Lal, wherein he deposed that he did not find the complainant on 09.09.2015.
Not only this, PW 11 Sh. Bharat Singh, landlord of accused Mithlesh Mehto, where the alleged incident took place, has also deposed that he had called PCR and police reached the spot, made inquiries and took Sh. Mahesh Kumar and him to the police station. In his crossexamination also, he conceded that he had gone to the police station with Sh. Mahesh Kumar on 09.09.2015. Here also, he has contradicted the version given by PW 4 HC Niranjan Lal to the effect that no public person met him on the spot, as this witness has deposed that police had reached the spot on 09.09.2015 itself and he along with Sh. Mahesh Kumar had gone to Police Station Sagarpur on that day itself. PW 4 HC Niranjan Lal in his rukka, Ex PW 4/A, has recorded that he did not find any aggrieved person on the spot or in the police station on 09.09.2015. This is contrary to the deposition of PW 2 Sh. Mahesh Kumar and PW 11 Sh. Bharat Singh. Thus, there is delay in registration of the FIR of about 24 hours, which has not been explained at all and is wholly unreasonable. Thus, a false explanation has been offered by PW 4 HC Niranjan Lal for delay in ___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 14 of 30 the registration of the FIR. In such a situation, I find myself in agreement with learned defence counsel that manipulation of facts, exaggeration and false implication cannot be ruled out. While dealing with the question of delay in registration of FIR, Hon'ble Supreme Court, in an authority reported as Jai Prakash Singh Vs. State of Bihar and Another, (2012) 4 SCC 379, observed in paragraph 12 as under:
"T he FIR in a criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of the eyewitnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it loses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question. (Vide Thulia Kali v. State of T.N. [(1972) 3 SCC 393 : 1972 SCC (Cri) 543 : AIR 1973 SC 501], State of Punjab v. Surja Ram [1995 Supp (3) SCC 419 : 1995 ___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 15 of 30 SCC (Cri) 937 : AIR 1995 SC 2413], Girish Yadav v. State of M.P. [(1996) 8 SCC 186 : 1996 SCC (Cri) 552] and Takdir Samsuddin Sheikh v.
State of Gujarat [(2011) 10 SCC 158 : (2012) 1 SCC (Cri) 218 : AIR 2012 SC 37].)"
This unexplained delay in registration of the FIR in the instant case is indicative of the fact that manipulation of facts cannot be ruled out.
30. This conclusion is further strengthened by the fact that PW 2 Sh. Mahesh Kumar has also introduced several new facts in his deposition before the Court. In his examinationinchief, he has introduced the fact that accused offered him Shahi Paneer and Rotis and they themselves ate Aaloo Baigan. He has also introduced a new fact that when he woke up, he found the door of the staircase, leading to the room where the incident took place, locked up from outside and a nearby shopkeeper had helped him to come out by crossing over a nearby roof. Furthermore, in his complaint, Ex PW 2/A, he stated that when he woke up and saw his pocket, he found Rs.12,000/ missing and also found a gold chain worn by him in his neck, a gold ring and a mobile phone missing. This is a natural reaction, as in such a situation, any person would find this type of articles missing immediately on waking up. However, in his examinationinchief, he deposed that when he came down after crossing over to an adjoining building only then he realized that ___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 16 of 30 these things were missing. This is not a natural deviation and points to the tendency of the complainant to twist facts. Not only this, he also refused to give his blood sample to the investigating officer for examination on the pretext that he was taking Ayurvedic medicines.
31. Considering the aforesaid facts and delay in registration of the FIR and the conduct of the complainant in adding and twisting facts, I am of the humble opinion that manipulation of facts by the complainant and police cannot be ruled out and the events as narrated to the police and on which the instant case was initiated, appear to be doubtful.
Whether accused Sushil Kumar and Mithlesh Mehto administered intoxicating/stupefying substance to the complainant?
32. It is submitted by learned counsel for the accused that since no medical examination of complainant Sh. Mahesh Kumar was conducted, it cannot be said that accused Sushil Kumar and Mithlesh Mehto had administered any intoxicating or stupefying substance to him. It is further submitted that he even did not give his blood sample to the police for examination. It is further submitted that on the basis of material available on record, no case under Section 328 IPC is made out against the accused.
On this, it is conceded by learned Addl. PP that since no ___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 17 of 30 medical examination of the complainant was conducted nor did he give his blood sample, he does not press the charge under Section 328 IPC.
33. I have carefully considered the submissions made at the bar in the light of material on record. Section 328 IPC, which deals with administration of poison etc. to a person with intent to cause hurt or to commit an offence, reads as under:
"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."
34. In an authority reported as Sanjay Singh and Another Vs. State, 2008 VII AD (Delhi) 151, the Hon'ble High Court of Delhi set aside the conviction in a case in which medical examination of the victim was not conducted and observed in paragraphs 6 to 8 as under:
"6. The essential element of Section 328 is that the victim should be administered "poison or any stupefying, intoxicating or unwholesome drug, or other thing." The forensic examination of the stomach wash in order to determine the substance that ___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 18 of 30 administered was poison is therefore imperative for ascertaining the commission of the offence under Section 328 IPC. The opinion of the victim who is rendered unconscious after taking the substance may not be stated final as to whether the drug administered was either "poison or any stupefying, intoxicating or unwholesome drug." In this context the medical legal case sheets become relevant which were marked as Ex.PW6/A, PW3/A which contain endorsements that the victims were unfit for making a statement. In respect of each of the victims, the endorsement of Dr. Jyoti is to the effect that "the stomach wash could not be preserved so that the final report could not be given."
7. Admittedly Dr. Jyoti left the service of the hospital without leaving her present address and therefore, she could not be examined as a prosecution witness. In the present case in the absence of the evidence of the doctor who examined the victims after they were brought to the hospital and the stomach wash was not being able to be sent for examination, it was extremely unsafe for the trial court to convict the Appellants here for the offence under Section 328 IPC. This Court cannot be determinative on whether what was administered was poisonous in order to attract the offence under Section 328 IPC.
8. In that view of the matter, the impugned th judgment dated 30 April 2005 and order on ___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 19 of 30 sentence dated 2 nd May 2005 passed by the learned ASJ are hereby set aside. The appellants are hereby acquitted for the offence under Section 328 IPC and they be released forthwith if they are not required in another case."
35. In view of the fact that no medical examination of the complainant was conducted, the law quoted above applies with full force and I find myself in agreement with learned defence counsel that the prosecution has failed to prove its case against the accused under Section 328/34 IPC against accused Sushil Kumar and Mithlesh Mehto.
Whether accused Sushil Kumar and Mithlesh Mehto committed theft of articles of the complainant?
36. It is submitted by learned Addl. PP that after complainant Sh. Mahesh Kumar and accused Sushil Kumar and Mithlesh Mehto consumed the food, complainant went to sleep at about 12:00 Noon and when he woke up at about 07:30 PM, he found his purse containing cash to Rs.12,000/, a gold ring, a gold chain and a mobile phone missing from his person. His motorcycle was also found missing. It is submitted that since no one else was present on the spot at that time, it is safe to presume that accused Sushil Kumar and Mithlesh Mehto committed the theft of the aforesaid articles.
___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 20 of 30 On the other hand, it is submitted by learned counsel for the accused that there is no evidence that the two accused committed theft of the articles of the complainant. It is further submitted that nothing has been recovered from them. It is further submitted that even PW 11 Sh. Bharat Singh did not depose that he saw accused Sushil Kumar and Mithlesh Mehto in his house. It is submitted that his deposition is that he saw two persons coming to meet Mithlesh Mehto and nothing else.
37. As per the evidence on record, the complainant consumed food at about 12:00 Noon and thereafter he went to sleep. When he woke up at about 07:30 PM, he found his articles, as noted above, missing. This is the only evidence on record on this point. On the face of it, it appears that if there was theft of the aforesaid articles belonging to Sh. Mahesh Kumar, when he was lying unconscious in the room of accused Mithlesh Mehto, the theft must have been committed by them alone and their conduct in escaping from the spot strengthens this view. However, there is time gap of about 07:30 Hrs. when the complainant went to sleep and when he found his articles missing. In FIR, he did not allege that when he woke up, the door was locked from outside but in the witness box, he added this fact. In such a situation, the entry of any other person to the house cannot be ruled out. Absence of accused Sushil Kumar and Mithlesh Mehto from the spot only raises grave suspicion that they might have committed the theft of the ___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 21 of 30 aforesaid articles. However, in the absence of any other evidence, this fact alone does not prove the case beyond reasonable doubt, more so, when considered in the light of delay in registration of the FIR, twisting of facts by the complainant and different versions of the complainant and police regarding availability of the complainant on the spot on 09.09.2015 and his visit to the police station. Mere suspicion cannot take the place of legal proof. In an authority reported as Ashish Batham Vs. State of MP, (2002) 7 SCC 317, Hon'ble Supreme Court observed about legally acceptable evidence in paragraph 8 as under:
"Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between "may be true"
and "must be true" and this basic and golden ___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 22 of 30 rule only helps to maintain the vital distinction between "conjectures" and "sure conclusions"
to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record."
38. In view of the above discussion, I find myself in agreement with learned defence counsel that there is no legally admissible evidence on record to conclusively prove that accused Sushil Kumar and Mithlesh Mehto had committed theft of the aforesaid articles of the complainant.
Whether gold chain was received or retained by accused Radhey Shyam Lal and Mohan Kumar Sharaf knowing it to be stolen one?
39. It is submitted by learned Addl. PP that accused Mithlesh Mehto pointed out the shop of accused Radhey Shyam Lal, where he had sold the gold ring stolen from complainant Sh. Mahesh Kumar. It is further submitted that accused Radhey Shyam Lal pointed out the shop of accused Mohan Kumar Sharaf, from where gold chain stolen from complainant Sh. Mahesh Kumar was recovered. It is further submitted that as the stolen gold chain was recovered at the instance of accused Radhey Shyam Lal from the shop of accused Mohan Kumar Sharaf, both of them are presumed to have received or retained the gold chain knowing it to be stolen ___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 23 of 30 one. It is further submitted that in view of the evidence on record, the prosecution has been successful in proving beyond reasonable doubt that the two accused were in possession of stolen gold chain.
On the other hand, the case of the defence is that no recovery was effected in the manner deposed to by the witnesses. It is further submitted that the witnesses have not deposed as to what information was given by the accused in their disclosure statements. It is further submitted that nothing was recovered from accused Radhey Shyam Lal and he has been falsely implicated in this case. It is submitted for accused Mohan Kumar Sharaf that he had accepted the gold chain in pawn and paid Rs.50,000/ in cash to accused Radhey Shyam Lal. It is the case of the defence that there is no material on record to indicate that the two accused knew that the gold chain was stolen one.
40. On perusal of the evidence of PW 12 ASI Shyam Lal, I find that accused Mithlesh Mehto had only pointed out the shop of accused Radhey Shyam Lal, where he had sold the gold chain. Similarly, accused Radhey Shyam Lal had also pointed out the shop of accused Mohan Kumar Sharaf, to whom he had given the gold chain. The requirement of law is that exact words spoken by the accused should be deposed to by the witness before such evidence can be accepted. However, in the deposition of PW 6 Ct. Pawan Kumar, PW 12 ASI Shyam Lal and PW 13 HC Sanjeev, there is nothing which could indicate as to what were the exact words ___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 24 of 30 spoken to by the three accused while disclosing about the gold chain. These facts assume significance as the recovery of gold chain was not effected soon after the incident, as incident of theft had taken place on on 09.09.2015 but the recovery was effected on 14.10.2015, that is, after more than a month of the incident and the conduct of the complainant in lodging the report has also been doubtful. The possibility of police knowing about the gold chain from other sources is not entirely ruled out. In this regard, it is instructive to quote an authority reported as Phusu Koiri Vs. State of Assam, 1985 SCC OnLine Gau 16, wherein a Division Bench of Hon'ble High Court of Assam, highlighted the importance as to why the exact words should be deposed to and made the following observation in paragraph 25:
".......We have no doubt that, the mere discovery of any object would not be accepted as an evidence against the accused unless the statement of the accused which led to the discovery was also proved. Indeed, this view was taken by this Court in Bhandagarh , 1984 Cri LJ 217 wherein the Court held that proof of seizurelist in respect of the object discovered pursuant to the information gathered from the statement of the accused will not render admissible evidence of seizure. We feel constrained to observe that the statement must, according to the language and also object of S. 27, "relate distinctly" to the object discovered and in connection therewith it can be proved conclusively if the exact ___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 25 of 30 statement or words used are proved. We are, therefore, inclined to take the view that as in the case of a dying declaration or a confession, the Court should insist even in the case of S. 27 the same requirement that the prosecution must prove the "statement" ipsissma verba. Because, it belongs to the same genus. We say so because in such cases also it is the statement of a person who cannot be called as a witness and the case would be covered by S. 32(3). In such cases a 'discovery' is made in the course of investigation (as envisaged u/s. 162(2) Cr. P.C.) as a result of information gathered by the police from accused's "statement" which will be hit by S. 162(1) except to the extent saved by the words "so much of such information" of S. 27. That apart the statement may partake the colour or character of a confession by the accused as indeed the section itself contemplates."
41. In any case the recovery of stolen gold chain was effected from the possession of accused Mohan Kumar Sharaf. In his statement under Section 313 CrPC, he stated that he accepted pawn of gold chain from accused Radhey Shyam Lal in the usual course of business and paid him Rs.50,000/ in cash. He also stated that had he knew that the gold chain was stolen one, he would have melted it or otherwise disposed of but he kept the chain in safe custody for returning it to Radhey Shyam Lal as and when the amount of Rs.50,000/ was repaid.
It has already been noted that accused Radhey Shyam ___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 26 of 30 Lal has denied any involvement in the incident and there is no evidence against him except pointing out the shop of Mohan Kumar Sharaf.
42. Section 411 IPC reads as under:
"Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
43. In an authority reported as Trimbak Vs. State of M.P., AIR 1954 SC 39, while dealing with the question of stolen property, Hon'ble Supreme Court observed in paragraph 5 as under:
"......It is the duty of the prosecution in order to bring home the guilt of a person under Section 411 IPC to prove, ( 1 ) that the stolen property was in the possession of the accused, ( 2 ) that some person other than the accused had possession of the property before the accused got possession of it, and ( 3 ) that the accused had knowledge that the property was stolen property. There is no reliable evidence to prove either of these facts."
44. Similarly, it is instructive to take note of the law laid down by the Hon'ble Supreme Court in an authority reported as M. S. Narayana Menon @ Mani Vs. State of Kerala and Another, (2006) 6 SCC 39, wherein while dealing with the ___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 27 of 30 defence/explanation of the accused, it was observed in paragraphs 46 and 47 as under:
"46. In Harbhajan Singh v. State of Punjab this Court while considering the nature and scope of onus of proof which the accused was required to discharge in seeking the protection of Exception 9 to Section 499 of the Penal Code, stated the law as under: (SCR pp. 242 H243 A) "In other words, the onus on an accused person may well be compared to the onus on a party in civil proceedings, and just as in civil proceedings the court trying an issue makes its decision by adopting the test of probabilities, so must a criminal court hold that the plea made by the accused is proved if a preponderance of probability is established by the evidence led by him."
47. In V. D. Jhingan v. State of Uttar Pradesh it was stated: (SCR p. 739 H) "It is well established that where the burden of an issue lies upon the accused he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt."
(See also State of Maharashtra v. Wasudeo Ramchandra Kaidalwar)."
(All underlinings by me for supplying emphasis).
45. In the instant case, the claim of accused Mohan Kumar Sharaf is that he took the gold chain as pawn and paid Rs.50,000/ for that. PW 9 is Sh. Vikas Kumar, an officer of Muthoot Finance ___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 28 of 30 Company. He deposed that the gold chain involved in the case was deposited with his company as a security/pledge and Rs.58,000/ was taken as a loan. Thus, an amount of Rs.50,000/ was almost a fair value of the gold chain in the open market. In any case, Rs. 50,000/ was not a paltry amount in 2015. Thus, the explanation given by accused Mohan Kumar Sharaf that he had paid Rs. 50,000/ to accused Radhey Shyam Lal, when he had pawned the gold chain to him and he kept the gold chain in safe custody, as it was to be returned after the amount was repaid, appears to be reasonable one and capable of being accepted. An accused has not to prove his case beyond reasonable doubt. He has only to give a reasonable explanation to create a doubt in the prosecution case.
46. In view of the above discussion, it is clear that there is no evidence on record to the effect that accused Radhey Shyam Lal and Mohan Kumar Sharaf kept the gold chain dishonestly knowing it to be stolen one.
47. In view of the above discussion, I am satisfied that the prosecution has failed to prove its case beyond reasonable doubt against any of the accused.
48. Accordingly, accused Sushil Kumar and Mithlesh Mehto are acquitted of the charge under Section 328/34 IPC. They are also given benefit of doubt for the offence under Section 379/34 IPC and are acquitted.
Accused Radhey Shyam Lal and Mohan Kumar Sharaf ___________________________________________________________________________ State Vs. Sushil Kumar and Others FIR No. 710/2015, PS: Sagarpur Page 29 of 30 are also given benefit of doubt and are acquitted of the charge under Section 411/34 IPC.
49. Case property, that is, motorcycle and gold chain stolen from the possession of the complainant and on Superdari, shall remain with the Superdar but the Superdari Bond stands cancelled.
50. Bail bonds of the accused are cancelled and their sureties are discharged. Endorsement, if any, be also cancelled. Documents, if any, be released against proper signatures of the sureties.
51. As per provisions of Section 437A CrPC, accused are directed to furnish personal bond in the sum of Rs.20,000/ respectively with one surety in the like amount to appear before Hon'ble Appellate Court, as and when they receive notice of appeal.
52. File be consigned to Record Room.
Announced in open Court (O. P. Saini)
today on 25.10.2018 Addl. Sessions Judge/
Spl. Judge (CBI04)
New Delhi
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