Delhi District Court
State vs . Raju Jain on 24 February, 2023
IN THE COURT OF ASJ (FTC)-02, SOUTH DISTRICT,
SAKET COURTS
PRESIDED OVER BY : SH. VISHAL PAHUJA
CNR No. DLST01-001466-2018
STATE VS. RAJU JAIN
FIR NO. 130/11
PS: SAFDURJUNG ENCLAVE
U/S: 328/379/411/174A IPC
State
Versus
Raju Jain,
s/o Late Sh. Subhash Jain,
r/o H.no. Jhuggi no. 13,
Near Railway Phatak,
Lucknow,
Also at : Vegabond, Ajmal Khan Park,
Karol Bagh, Delhi
.... Accused
DATE OF INSTITUTION : 05.08.2011
DATE OF RESERVING JUDGMENT : 15.02.2023
DATE OF JUDGMENT/ ORDER : 24.02.2023
FINAL ORDER : Acquitted
JUDGMENT
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. Succinctly, the facts of the case are that on 12.05.2011 a call vide DD no. 7A was received with respect to poisoning of a person admitted in Safdurjung Hospital. HC Hukum Singh attended the call and reached the hospital where as per the MLC report alleged history of unknown poisoning of a person was reported and the patient was found unfit for the statement. On 19.05.2011, the statement of the complainant/patient was recorded as Ex. PW2/A. As per the statement of complainant Arvind Pratap Singh, he got his wife Payal admitted in Safdarjung Hospital on 08.05.2011 for delivery. On 11.05.2011 at FIR No. 130/11, PS Safdurjung Enclave State v. Raju Jain Page 1/15 about 11.30 PM when complainant was sleeping in the park outside the ward, accused was also lying near him who claimed that his father was admitted in the hospital. Complainant and the accused developed a cordial relation during their chat. Accused felt hot temperature and therefore went to fetch cold drink. After sometime, accused brought 500 ML bottle of Maaza juice and two steel glasses and offered one glass to the complainant and had the other one himself. After sometime, complainant felt dizzy and fell unconscious. When the complainant regained consciousness, he found the accused missing.
He also found that his purse containing Rs. 5,000/-, driving license and other documents along with his mobile were also missing. It is alleged by the complainant that he got disturbed and was not in full consciousness so his mother got him admitted in the hospital. On the basis of the complaint, the present FIR was registered.
2. During the investigation accused was arrested, some medicines from his possession and the driving license of the complainant was recovered at the instance of the accused. Various proceedings were conducted by the Investigating Officer and after the conclusion of the investigation carried out in the present FIR, police filed the present charge sheet against the accused Raju Jain for commission of offence punishable u/s 328/379/411 Indian Penal Code (hereinafter referred to as IPC).
3. Vide Order dated 05.08.2011, Ld. Metropolitan Magistrate concerned took cognizance of the offence u/s 328/379/411 IPC qua accused Raju Jain and he was called to face the trial. Charge sheet and other relevant documents were supplied to the accused in compliance FIR No. 130/11, PS Safdurjung Enclave State v. Raju Jain Page 2/15 to section 207 Code of Criminal Procedure (hereinafter referred to as Cr.P.C.). Thereafter, the present matter was received by way of committal to the Court of Sessions on 08.09.2011.
4. During the trial accused Raju Jain absconded and was declared Proclaimed offender vide order dated 26.06.2013. After his arrest, supplementary charge sheet u/s 174A IPC was filed against the accused before the Ld. Metropolitan Magistrate. Same was also received by way of committal before the Court of Sessions.
CHARGE
5. Vide order dated 26.09.2011, charge for the offence punishable u/s 379/328/411 IPC and vide order dated 19.09.2018, charge for the offence punishable u/s 174A IPC was framed by the Ld. Predecessor of this Court against the accused who pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
6. The prosecution in order to prove its case has examined 10 (ten) prosecution witnesses (herein short referred to as PW).
7. PW1 HC Hukam Singh deposed qua the manner and his involvement in the investigation. As per PW-4, he received DD no. 7A dated 12.05.2011 at 06.00 AM. Ex. PW1/A regarding admission of one Arvind Pratap in Safdarjung hospital who was alleged to have been given poison by someone. The patient was not found to be in a position to give his statement so his statement was not recorded on FIR No. 130/11, PS Safdurjung Enclave State v. Raju Jain Page 3/15 that day. PW1 further deposed that on 19.05.2011 he along with Ct. Saleem, Ct. Chander Pal and other beat staff was present at Safdurjung Hospital and when they reached inside the OPD of the hospital they met complainant Arvind who told him that the person who gave him stupefying substance in Maaza/juice was standing outside the OPD of the hospital. Accordingly accused was apprehended at the instance of complainant and was handed over to SI S.S. Bisht. This witness identified the accused before the court during trial. This witness exhibited the disclosure statement of the accused as Ex. PW1/B. It is further deposed that on the search of accused two strip of medicine Lorazepam BP Activan 2 Mg (Total 15 tablets), one handkerchief of white colour and one plastic dibbi containing stupefying medicine was recovered. IO seized the said recovered articles vide seizure memo Ex. PW1/C. PW1 further deposed that accused lead the police team at Patri, Mahaveer Vatika, Darya Ganj and pointed out towards the bag which accused had concealed beneath the patri and from the said bag, one golden/gold chain, one driving license in the name of complainant/Arvind Pratap Singh was found. This witness exhibited on record pointing out memo as well as seizure memo, personal search memo and arrest memo as Ex. PW1/D, Ex.PW1/F and Ex. PW1/E respectively. This witness correctly identified the Driving License of complainant Arvind Pratap and exhibited as Ex. P1. This witness was cross examined on behalf of accused.
PW4 Ct. Saleem Khan deposed on the same lines as that of PW1. He was also cross examined of behalf of accused.
FIR No. 130/11, PS Safdurjung Enclave State v. Raju Jain Page 4/158. PW2 Arvind Pratap Singh is the complainant who deposed in view of his complaint that is exhibited as Ex. PW2/A. He exhibited on record superdginama as Ex. PW2/B vide which he obtained his driving license from court and also exhibited on record his driving license Ex. P1. This witness was cross examined on behalf of accused.
9. PW3/5 ASI Dalbir Singh, PW6 Dr. Anupam Agarwal, PW7 W/HC Laxmi and PW8 SI Rajendra Singh were the formal police witnesses and medical witness who proved and exhibited on record various documents pertaining to registration of FIR, preparation of medical reports and report regarding previous involvement of accused. None of the aforesaid witness was cross examined on behalf of the accused.
10. PW9 ASI Murli Singh deposed qua the proceedings conducted after declaration of the accused as Proclaimed offender. He exhibited on record the applications moved before the court as Ex. PW9/A and Mark A. He further exhibited and proved on record the arrest memo of the accused as Ex. PW9/B and filed the supplementary charge sheet. This witness was not cross examined on behalf of accused.
11. PW10 Insp. S.S. Bisht deposed qua the manner and his involvement in the investigation being investigating officer. PW10 deposed more or less on the same lines as that of PW1 Hukum Singh and PW4 Ct. Saleem. He exhibited and proved on record various documents such as rukka as Ex. PW10/A, site plan Ex. PW10/B, supplementary disclosure statement as Ex. PW10/C, case properties FIR No. 130/11, PS Safdurjung Enclave State v. Raju Jain Page 5/15 i.e. gold chain as Ex. PW10/P1, two strips of tablet Lorazapan as Ex. PW10/P2, handkerchief and container as Ex. PW10/P3 and Ex. PW10/P4, a small plastic container as Ex. PW10/P5. After completion of investigation, PW-10 filed the charge sheet before the court. This witness was cross examined on behalf of accused.
12. During trial accused admitted the genuiness of FSL Report no. FSL2011/C-3725 dated 21.12.2011 prepared by Dr. Adesh Kumar, Senior Scientific Officer (Chemistry) Forensic Science Laboratory vide his statement u/s 294 Cr.P.C. on 30.01.2023. Same is Ex. PA1.
13. No other PW was left to be examined, hence PE was closed.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
14. Statement of accused was recorded U/s 313 Cr.P.C in which all the incriminating circumstances appearing in evidence were put to him. The accused controverted and denied the allegations levelled against him.
It is stated by accused that he has been falsely implicated in case FIR no. 192/10 PS Mandir Marg u/s 328/379/411 IPC previously on the ground of having possession of allegedly stolen mobile phone. In search of modus operandi in case FIR No. 91/11 PS Safdarjang Enclave, he was picked up by police from his work place at Daryaganj, Delhi and was falsely implicated in present matter by police officials. Accused denied committing of any offence. He denied the recovery shown to have been made from his possession. It is stated that he was kept in illegal confinement for 2 days in PS RK Puram FIR No. 130/11, PS Safdurjung Enclave State v. Raju Jain Page 6/15 Lockup and compelled to sign 22 blank pages at once and 18 pages on subsequent day. He further stated that only because he has a previous involvement in case similar in nature in which he has been already acquitted, he was picked up by police and framed in this case. Accused opted not to lead any defence evidence.
ARGUMENTS:
15. Ld. Additional PP for State has argued that prosecution witnesses have supported the case of prosecution and their testimony has remained unrebutted. It is further argued that case property belonging to complainant was recovered from the possession of accused at his instance. Thus on a combined reading of testimony of prosecution witnesses, offences U/s 328/379/411/34 IPC and u/s 174A Cr.P.C. are proved against the accused beyond reasonable doubt.
16. On the other hand, Ld. Counsel for accused has stated that there is no legally sustainable evidence against the accused. It is further argued that there are material discrepancies and contradictions in the testimony of the complainant as well as the police witnesses which creates strong doubt in the prosecution story that entitles the accused to the benefit of doubt. Lastly, it is argued that the recovery shown to have been made from the accused is also planted and no public person has been made to join the recovery proceedings which also creates dent in the story of the prosecution. Thus on the above said grounds accused deserves acquittal.
FIR No. 130/11, PS Safdurjung Enclave State v. Raju Jain Page 7/15FINDINGS:
17. Arguments adduced by Ld. Additional PP for State and Ld. Defence Counsel for the accused has been heard. Evidences and documents on record perused carefully. I have bestowed my thoughtful consideration to the rival submissions made before me. Accused is indicted for the offences u/s 328/379/411/34 IPC and u/s 174A IPC. After appreciating the evidence and going through the testimony of the prosecution witnesses this Court finds the accused not guilty for any offence charged herein and he deserve acquittal for the following reasons:-
18. There are several material infirmities and contradictions in the testimony of the star witness Arvind Pratap Singh vis-a-vis the police witnesses that rendered their testimony highly unreliable.
First and foremost material infirmity that appeared in the case of the prosecution is that the incident in question happened on 12.05.2011 and was reported on the same very day vide DD no. 7A whereas the statement of the complainant and the FIR on the basis of the same was registered on 19.05.2011. The reason for delay in registration of FIR was given by the PW1 HC Hukum Singh who was assigned the aforesaid DD number that the patient Arvind Pratap was not in a position to give his statement whereas on the contradictory PW2 Arvind Pratap Singh in his examination in chief specifically stated that he was inquired by the police persons on 12.05.2011 and he had told them about the entire incident. Meaning thereby, the police was having the information on the same date of incident but they failed to record the statement of the complainant on the same very day.
FIR No. 130/11, PS Safdurjung Enclave State v. Raju Jain Page 8/15PW2 specifically stated that he regained his consciousness at about 06.00 AM on 12.05.2011 so the claim of PW1 HC Hukum Singh that the patient was not in a position to give his statement also found to be false. Even the MLC Ex. PW6/A do not reflect the opinion of doctor as to whether he was fit or unfit for recording of his statement that also falsifies the claim of PW1. Police witnesses or the complainant has apparently failed to explain or give plausible reason for filing the complaint or registration of the FIR after delay of five days after the incident. No efforts were made by police to trace complainant after its discharge from the hospital on 12.05.2011 nor the complainant bothered to visit PS for filing his compliant after his discharge on the same day on 12.05.2011. If there is any delay it has to be satisfactorily explained and delay of everyday has to be explained. The idea behind this is to prevent embellishment of true version as to the occurrence and false implication of innocent persons. Any unreasonable and unexplained delay on this account will affect the credibility and the quality of the evidence of prosecution witnesses, more particularly eye-witnesses and key-witnesses in a case. Reliance can be placed on judgment Kumar alias Thambi v. State by Inspector of Police 2013 III AD (Mad) 51.
In the instant case, no satisfactory explanation has been given by prosecution witnesses for delay in registration of FIR. Therefore, delay in filing of complaint or registration of FIR after unexplained delay cast doubt in the story of prosecution and therefore possibility of false implication cannot be ruled out.
19. Another material contradiction in the testimony of PWs is that PW1 HC Hukum Singh in his examination in chief deposed that on FIR No. 130/11, PS Safdurjung Enclave State v. Raju Jain Page 9/15 19.05.2011 he along with other police staff was present at Safdurjung hospital where complainant met them and at his instance accused who was also present outside the OPD of the hospital was apprehended and thereafter SI S.S. Bisht was informed in the PS who reached at the spot and took over his custody whereas as per the testimony of PW10 Insp. S.S. Bisht he along with the other police staff were on patrolling duty in the area of Safdurjung Hospital where he met complainant Arvind Pratap Singh and at his instance the accused who was standing outside the OPD was apprehended. There is complete contradiction in the stance of the police witnesses with respect to meeting of complainant and the accused at Safdurjung Hospital. Further, in his examination in chief PW1 stated that IO recorded the statement of complainant on 19.05.2011 but during his cross examination he claimed to have recorded the statement himself. Similarly, during his examination in chief PW1 stated that medicines, handkerchief and plastic dibbi was seized by IO whereas during his cross examination he claimed to have seized the above articles himself. This is another major contradiction in the testimony of PW1 HC Hukum Singh.
In the testimony of PW10 Insp. S.S. Bisht it has been stated that on 20.05.2011 accused was interrogated and disclosure statement was recorded. In pursuance of the disclosure statement, accused lead the police team to Mahavir Vatika Patri, Daryaganj and got recovered one bag which contained one gold chain and driving license of the complainant. Also it has not come on record in the testimony of PW10 that complainant accompanied the police on 20.05.2011 as well for the recovery of articles at the instance of accused. So he being the witness to seizure memo is also doubtful. On the contrary, as per PW1 Hukum Singh and Ct. Saleem the recovery was effected on the same date i.e. FIR No. 130/11, PS Safdurjung Enclave State v. Raju Jain Page 10/15 19.05.2011 at the instance of accused. All the above material contradictions and infirmities in testimony of police witnesses does give the impression that they are tutored witness and no such investigation proceedings have been conducted at spot.
20. PW2, the complainant in his complaint Ex. PW2/A stated that his first interaction with the accused happened at 11.30 PM on 11.05.2011 whereas during his examination in chief before the court he stated to have met the accused first at 02.30 PM on 11.05.2011. Similarly, in his complaint Ex. PW2/A, he stated that the accused brought 500 ml bottle of maaza juice along with two steel glasses whereas in his examination in chief he stated that accused brought two glasses full of maaza juice where he is silent about the bottle, both the aforesaid statements are completely contradictory. Further, PW2 in his testimony stated that he was visiting OPD ward on 19.05.2011 where he saw accused and he informed the police officials who were on patrolling duty and got the accused arrested. It is important to note that PW2 has not placed on record his OPD card to show that he had visited the OPD on 19.05.2011 or the OPD card that can reflect that he was called for the follow up on 19.05.2011 to show his presence in the hospital on the said relevant date. The presence of complainant in the hospital on date of arrest of accused is itself under doubt. This is again a major discrepancy which goes to the root of the case.
21. PW2 Complainant Arvind Pratap Singh claimed that he was given Maaza juice after having which he started feeling dizziness and became semi unconscious whereby his limbs were not in his control. The case of the prosecution is that the accused administered some FIR No. 130/11, PS Safdurjung Enclave State v. Raju Jain Page 11/15 stupefying substance to the complainant and committed theft of his belongings. During the medical examination, of the complainant it was found that his vitals were stable and he was advised for gastric lavage and was referred to the other ward accordingly as per the Dr. Anupam Agarwal, PW6. Admittedly, gastric lavage test was not conducted nor any blood sample of the complainant was taken to ascertain if he had any stupefying substance, in his body. The recovery of medicine or handkerchief having some substance on it and one dibbi having some cream was allegedly recovered from possession of accused on 19.05.2011 that is after 5-6 days of the incident which in no manner can be related to the incident in question, especially when nothing such sort of substance has come in medical examination of complainant. In absence of any such evidence on record, the offence u/s 328 IPC cannot be said to be made out.
22. Admittedly, no public witness was made to join the recovery proceedings nor any independent witness was made to join the proceeding at the time of arrest of accused which was also made at public place. During the cross examination, PW1 HC Hukum Singh stated that he did not think it proper to ask the passerby to join recovery of the articles though there were public persons present at the spot. Non joining of public witnesses also causes a dent in credibility of prosecution version. In this regard reliance is being placed on the case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC) in which High Court of Delhi had observed as under:
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it FIR No. 130/11, PS Safdurjung Enclave State v. Raju Jain Page 12/15 is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigors of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
23. Further, this court has failed to comprehend that why the accused would keep the driving license of the complainant with him for 5 days after the incident and till he gets apprehended whereas the cash allegedly stolen from complainant was not recovered from him nor the mobile allegedly stolen by accused from complainant has been recovered from him so possibility of planting of driving license upon accused cannot be ruled out. In the absence of independent public witness and the doubtful testimony of complainant, the recovery effected from the accused cannot be said to be established beyond reasonable doubt.
24. Another startling fact that hints towards the possibility of false implication of accused in this case is that in the testimony of PW10 Insp. S.S. Bisht it has come on record that the accused herein has made disclosure about the present case during the investigation of other case FIR no. 192/10 PS Mandir Marg and the police officials were patrolling to locate such person having same modus operandi in Safdurjung Hospital on the day of arrest of accused. The entire case of prosecution is found to be under the cloud of doubts. The FIR No. 130/11, PS Safdurjung Enclave State v. Raju Jain Page 13/15 discrepancies in the testimony of PWs as discussed in the preceeding paragraphs are material enough to disbelieve their version and thus they cannot be relied upon at all. In absence of any cogent piece of evidence, the accused cannot be held guilty for the offence u/s 379/411 IPC as well.
25. As far as offence charged against the accused u/s 174A IPC, this Court is of the view that the offence is not made out in view of the reports and the documents pertaining to the execution of the process u/s 82 Cr.P.C. Vide order dated 03.12.2012, the Court concerned ordered the issuance of process u/s 82 Cr.P.C. In the said order the court has not recorded its satisfaction to the effect that accused has concealed himself or has absconded so that warrant cannot be executed which is the basic requirement of provision 82 Cr.P.C. Further this court is of the view that process u/s 82 Cr.P.C. has not been duly executed at the address of accused at Lucknow which is his permanent address. Hence, it can be concluded that proper procedure has not been followed and the execution of process u/s 82 Cr.P.C. has not been duly effected, thus accused has been wrongly declared as proclaimed offender. Accordingly, the offence u/s 174A IPC is also not proved qua the accused.
CONCLUSION
26. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. The burden of proof of the version of the prosecution in a criminal trial throughout the trial FIR No. 130/11, PS Safdurjung Enclave State v. Raju Jain Page 14/15 is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt if any in the prosecution story and such reasonable doubt entitles the accused to acquittal.
27. In view of the material inconsistencies in the testimony of the prosecution witnesses, this Court is of the view that prosecution has miserably failed to prove its case beyond reasonable doubt. The evidence coming on record entitles the accused for the benefit of doubt. Therefore, the accused Raju Jain s/o Late Subhash Jain is hereby acquitted of the charges levelled against him in the present case.
Digitally signed
VISHAL by VISHAL
PAHUJA
PAHUJA Date: 2023.02.24
16:03:22 +0530
ANNOUNCED IN THE OPEN (VISHAL PAHUJA)
COURT ON 24.02.2023 ASJ (FTC) -02, South,
Saket Courts, Delhi
Containing 15 pages all signed by the presiding officer.
VISHAL Digitally signed by
VISHAL PAHUJA
PAHUJA Date: 2023.02.24
16:03:29 +0530
(VISHAL PAHUJA)
ASJ (FTC) -02, South,
Saket Courts, Delhi.
FIR No. 130/11, PS Safdurjung Enclave State v. Raju Jain Page 15/15