Delhi District Court
Sc No. 28711/2016 State vs . Nazia @ Najjo & Anr. Page No.1/25 on 19 March, 2018
IN THE COURT OF SH. PRASHANT KUMAR, ASJ (CENTRAL)
TIS HAZARI COURTS, DELHI
Sessions Case No:-28711/2016
Unique ID no.:-02401R0731582016
CNR No.DLCT01-007884-2016
State
Vs.
1. Nazia @ Najjo
W/o Aadil
Previously R/o House no.D-567,
Shastri Park near Buland Masjid,
Delhi.
Presently R/o Gali no.35, Jafrabad,
Delhi.
2. Sujeet
S/o Ajeet Kumar
R/o F-283, Nursary Jhuggi,
Geeta Colony, Delhi.
Case arising out of:-
FIR no. : 296/2016
Police Station : Kotwali
Under Section : 328/379/34 IPC
Date of Institution : 28.06.2016
Date on which arguments heard : 08.03.2018
Date of Decision : 19.03.2018
J U D G M E N T:-
1. Story of the prosecution in brief is as under:
That on 11.03.2016 one DD no.2 PP Red Fort was received by SC no. 28711/2016 State Vs. Nazia @ Najjo & Anr. Page no.1/25 HC Chander who proceeded to Aruna Asaf Ali Hospital and obtained the MLC of Guddu S/o Liyaqat Hussain who was unconscious at that time.
Statement of complainant Guddo was recorded on 17.03.2016 who stated that he used to ply e-rickshaw and on 10.03.2016 when he left his house with e-rickshaw at about 8:30 pm he met with a boy and a girl at Metro Bridge towards Gandhi Nagar, Delhi who hired the rickshaw and proceeded to Darya Ganj. When they reached at Pushta Cremation Ground another boy who was standing there, called the girl sitting in his e-rickshaw as Najjo and asked her where she was going. The girl sitting in e-rickshaw asked to halt the e-rickshaw and called that boy as Aas Mohd and said to him that they were going to Darya Ganj. She further asked that boy to join them who accompanied them in the e-rickshaw. The name of that girl came to be known as Najjo who had asked to go to Darya Ganj.
2. Complainant took them to Darya Ganj via Geeta Colony Flyover and at about 9 pm when they reached at Geeta Colony Flyover at loop near ISBT then those passengers asked to stop the rickshaw and began to talk amongst them. When complainant asked them to hurry up, they asked to wait for a while and began to have a cold drink. Aas Mohd offered the cold drink and cigarette to the complainant. Complainant took a sip of cold drink and cigarette and got unconscious after some time. He SC no. 28711/2016 State Vs. Nazia @ Najjo & Anr. Page no.2/25 regained consciousness on the next day at Aruna Asaf Ali hospital. His brother Babloo took him to his house where he was treated thereafter. Complainant also said that those persons had taken his e-rickshaw, mobile phone make Spice Company having SIM no.886030310 and cash of Rs.800/-. At the instance of complainant, Aas Mohd was arrested and upon his disclosure accused Nazia @ Najjo was arrested. She also made disclosure statement. Accused Nazia @ Najjo refused to join TIP. Both the accused persons stated that e-rickshaw was sold to Shan Mohd. @ Mama who could not be traced out, however. Another accused Sujeet was also arrested. Accused Aas Mohd was found to be minor therefore his trial has been separated from the present case.
3. After completion of investigation, final report under Section 173 Cr.PC was filed and Ld. MM after completion of formalities, committed the matter to the Sessions Court for trial after compliance of Section 207 Cr.PC.
4. After committal, charge under Section 328/379/34 IPC was framed against both the accused for which accused persons pleaded not guilty and claimed trial.
5. In order to establish the liability of accused persons, prosecution has examined 15 witnesses. Statements of both the accused SC no. 28711/2016 State Vs. Nazia @ Najjo & Anr. Page no.3/25 persons U/s 313 Cr.PC were recorded on 04.07.2017 and again on 16.02.2018. Accused Nazia @ Najjo stated that she is willing to lead evidence in her defence and thus, examined DW-1 Mst. Bano. However, accused Sujeet stated that he is not willing to lead evidence in his defence.
6. Before proceeding further, as per mandate laid down under Section 354 (1) (b) Cr.PC following are the points of determination which are necessary to consider in order to arrive at a conclusion:
(i) Whether both the accused persons along with accused Aas Mohd. (JCL) in furtherance of their common intension, administered some intoxicated substance in cold drink to complainant Guddo with an intent to facilitate the commission of theft and thus committed an offence punishable under Section 328 IPC?
(ii) Whether both the accused persons along with accused Aas Mohd (JCL) in furtherance of their common intention committed theft of e-rickshaw, mobile phone and cash of Rs.800/- from the complainant and thereby committed an offence under Section 379/34 IPC?
First Point of Determination:
(i) Whether both the accused persons along with accused Aas Mohd. (JCL) in furtherance of their common intension, SC no. 28711/2016 State Vs. Nazia @ Najjo & Anr. Page no.4/25 administered some intoxicated substance in cold drink to complainant Guddu with an intent to facilitate the commission of theft and thus committed an offence punishable under Section 328 IPC?
7. With regard to the first point of determination, it is mentioned that offence under this Section 328 IPC is complete even if no hurt is caused to the person to whom the poison or any other stupefying intoxicating or unwholesome drug is administered. In this regard, before proceeding further, it is necessary to lay down the relevant law pertaining to Section 328 IPC. Section 328 IPC reads as under:
Sec.328. Whoever administers to or causes to be taken by any person any poison of 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.
Essential ingredients of Section 328 IPC are:
(i) There must be an intent to cause hurt;
(ii) Such intent must be to commit an offence;
(iii) Accused must administer poison etc to the victim to facilitate the commission of a crime;
SC no. 28711/2016 State Vs. Nazia @ Najjo & Anr. Page no.5/25
(iv) Accused must know that in the process, the victim would be suffering from hurt.
In order to bring home an offence under Section 328 IPC, the prosecution is to establish (a) that the accused administered or caused the victim to take (swallow or inhale or get into touch of body or get into blood etc.) a substance (b) that substance was a poison, or any stupefying or intoxicating or unwholesome drug; (c) that the accused administered or caused the victim to take it with the intent to cause hurt, or with the knowledge that thereby hurt would be caused or that the accused intended to commit or facilitate the commission of an offence.
8. Thus, the most essential ingredient, required to be established by the prosecution is that some substance is administered. This element 'administered' can be further sub-divided into two parts:
(a) something is administered;
(b) such thing is intoxicating, stupefying or
unwholesome substance.
At the outset, it is mentioned that mere procuring or supplying SC no. 28711/2016 State Vs. Nazia @ Najjo & Anr. Page no.6/25 a poisonous drug as an instigation of the person who wishes to take it, is not administering it. Prior to all these things, the evidence pertaining to common intention and participation of accused persons is taken up. It is the story of the prosecution that both the accused persons along with other JCL, in furtherance of their common intention, by actively participating, had administered some intoxicating or stupefying or unwholesome substance in cold drink and gave it to the victim Guddu who became senseless after consuming it.
9. In this regard, PW-2 Guddu is the victim himself who has stated that on 10.03.2016 at about 8:30 pm, he was plying an e-rickshaw and when he reached at Metro Bridge, Shastri Park, both the accused person Sujeet and Nazia met him and hired his rickshaw to go to Darya Ganj. It is further alleged by PW-2 when they were on the way, accused Nazia call other person Aas Mohd. (JCL) who also joined them in the e- rickshaw and they all had proceeded to Darya Ganj. It is further alleged by PW-2 that when they reached near loop going towards ISBT, accused Nazia @ Najjo asked to stop e-rickshaw and started talking with Sujeet and Aas Mohd and in the meantime, Aas Mohd (JCL) and both the accused persons gave him the cold drink in a plastic glass and a cigarette and after consuming the same, he became unconscious and when he regained consciousness and Aruna Asaf Ali hospital, he found SC no. 28711/2016 State Vs. Nazia @ Najjo & Anr. Page no.7/25 that all those accused persons had robbed his e-rickshaw, cash Rs.800/- and his mobile phone.
10. From the cross-examination of this witness, to this extent, no material contradiction has emerged. Accused persons have been duly identified by PW-2 Guddu. With regard to the active participation of the accused persons, it is important to mention one suggestion given by the Ld. Counsel for accused persons during cross-examination of PW-2 dated 02.08.2016, which is mentioned as under:
"It is correct that it was night time when my rickshaw was hired by the accused and there was slight dark at that time."
This suggestion given by the counsel for accused persons itself suggests that they had not disputed the presence of accused persons at the relevant time and this fact has also not been disputed that they had hired the e-rickshaw of PW-2 during night time on 10.03.2016. Thus, it is considered that the presence of accused persons at the spot in question at the relevant time, is not disputed.
11. PW-2 Guddu, who is complainant / victim in the present case, is the only eye-witness. In his statement Ex.PW-2/A, he has categorically stated that it was both the accused persons along with one JCL who had offered cold drink in a plastic glass and a cigarette to him on 10.03.2016 SC no. 28711/2016 State Vs. Nazia @ Najjo & Anr. Page no.8/25 and after consuming the same, he became senseless and got unconscious. With regard to the facts pertaining to victim being unconscious, testimony of PW-4 HC Ashok and PW-3 HC Kundan Singh is relevant to mention here. PW-4 HC Ashok is the DD writer of DD no.2PP, copy of which is Ex.PW4/A. It is reflected that it is pertaining to receiving a call that one person is found lying unconscious at Geeta Colony flyover. This call was referred to PW-3 HC Kundan Singh who reached at Geeta colony flyover at about 1:30 am and found one person lying at the road side in unconscious state and another person was there named Babloo who alleged himself to be the brother of the person lying unconscious. No material contradiction has emerged from the cross-examination of both these witnesses as they have corroborated what they had stated in their examination-in-chief. This fact is further corroborated by PW-6 Babloo who is stated to be the brother of PW-2 Guddu. It is stated by him that his brother Guddu had gone with e-rickshaw on 10.03.2016 but he did not return and upon his search, he found his brother lying in unconscious condition at Geeta Colony Flyover and a call at 100 number was made. Thus, there are two prosecution witnesses i.e. PW-3 and PW-6 who had seen PW-2 lying in unconscious state at Geeta Colony flyover.
12. All these facts are reflecting certain chain of events that PW-2 Guddu had left his house on 10.03.2016 at about 8:30 pm and his e- SC no. 28711/2016 State Vs. Nazia @ Najjo & Anr. Page no.9/25 rickshaw was hired by both the accused persons and another JCL Aas Mohd. Joined them on the way and after some time, when they were going towards Darya Ganj, accused Nazia @ Najjo asked to stop the e- rickshaw and all the accused persons offered some cold drink and a cigarette to PW-2 Guddu. Upto this stage, in my considered opinion the prosecution has been able to establish this fact that all the accused persons had hired the e-rickshaw of PW-2 Guddu and while on their way to their destination, they offered cold drink and a cigarette to him.
13. Coming to the second aspect that such cold drink and cigarette was containing some substance by which Guddu became unconscious, has to be analyzed minutely in the light of the evidence available on record. It is the story of prosecution that PW-2 became unconscious thereafter. Whether it was due to the cold drink or cigarette or by some other thing, can only be construed from the material available on record. In this regard, it is alleged by PW-15 that when he had medically examined PW-2 Guddu on 11.03.2016, he had preserved two samples, one of them was the gastric lavage of Guddu. These samples are alleged to have been sent to FSL, however, the most important material piece of evidence i.e. the expert opinion in this regard is missing. In other words, it is reflected from the perusal of document Ex.PW14/F that the bottle containing the gastric lavage sample of Guddu SC no. 28711/2016 State Vs. Nazia @ Najjo & Anr. Page no.10/25 was found empty. Thus, there is no expert opinion with regard to anything found as intoxicating, stupefying or unwholesome substance in the body of PW-2 Guddu. Consequences of these facts are discussed further in subsequent paras.
14. It is further important to mention here that, there is no recovery of any case property i.e. e-rickshaw, mobile phone or cash of Rs.800/-. PW-2 Guddu had stated that when he regained consciousness at Aruna Asaf Ali hospital on the next day, he found that his e-rickshaw, mobile phone and cash of Rs.800/- was gone. Testimony of PW-15 Dr. Kuldeep Valvi corroborate and substantiate this fact. PW-15, as already stated above, is the person who had medically examined PW-2 Guddu during intervening night of 10.03.2016 and 11.03.2016 at about 1:35 am and it has been mentioned in MLC Ex.PW15/A that one patient Guddu S/o Liaqat was brought in casualty by PCR officials along with one Babloo with alleged history of "found at roadside lying in drowsy state at around half an hour back on 11.03.2016 at Geeta Colony Flyover, Delhi".
15. It is important to mention here that there is disclosure statement of both the accused persons to this effect that they had administered some intoxicating substance mixed in cold drink to Guddu and after consuming the same, he got unconscious. In this regard, it is SC no. 28711/2016 State Vs. Nazia @ Najjo & Anr. Page no.11/25 needless to say that such disclosure statements are not at all relevant and admissible as per Section 25 Indian Evidence Act unless until, they lead to any recovery or such fact is corroborated by other independent evidence.
16. Testimonies of all these above mentioned witnesses do not seems to inspire their confidence and the most relevant piece of evidence i.e. the expert opinion vide Ex.PW14/F is not providing any clue in this regard that any such intoxicating, stupefying or an unwholesome substance has been administered to PW-2 Guddu and Guddu got unconscious due to any such substance administered by the accused persons. It is argued by the counsel for the accused persons that there is no medical evidence available on record vide which it could be construed that some intoxicating, stupefying or unwholesome substance or drug has been administered to PW-2 Guddu. It is further argued that there is neither any recovery of any bottle from the spot nor the medical opinion of any expert has been obtained nor such opinion is reflected from the MLC of PW-2 Guddu. It is further alleged that there is no description of the alleged cold drink given to Guddu. Ld. Counsel for the accused persons has denied the incident as a whole and went on to say that both the accused persons were not present at the spot in question. SC no. 28711/2016 State Vs. Nazia @ Najjo & Anr. Page no.12/25
17. In this regard, Ld. Addl. PP for the State has relied upon the following judgments in support of his contentions:
(i) "Mohd. Zuber & Anr. Vs. State" 2015 (2) JCC 1229. In this case, victim became unconscious on consuming tea offered to him and this incident had taken place within the four corners of the house of the accused, therefore, there can be no other eye-
witness to the occurrence. No reasonable doubt that some stupefying drug or substance was mixed in the tea, gastric lavage could not be taken as patient was irritable. Intent of committing theft of the articles belonging to the complainant and a number of articles belonging to him were thereafter actually stolen. Conviction in this case was confirmed.
(ii) "Sadhu Saran Singh Vs. State of UP"
(2016) 4SCC 357. In this case, it has been held that for appreciation of evidence, where there is medical evidence vis-a-vis ocular evidence and there is inconsistency in between them, primacy has to be given to ocular evidence, particularly in case of minor discrepancies.
18. From the perusal of Mohd. Zuber (supra), it is reflected that the facts and circumstances of this case are different from the present case. In Mohd. Zuber (supra), the victim had gone to the house of the SC no. 28711/2016 State Vs. Nazia @ Najjo & Anr. Page no.13/25 accused. He was alleged to have administered some intoxicating substance in a cup of tea in that house and was also found there lying unconscious. Gastric lavage of victim could also not be sent to FSL for expert opinion due to the conduct of the victim himself as he was alleged to be highly irritating. There were other corroborating piece of evidence that his robbed articles like purse etc, were recovered from the place where accused was residing. Thus, in Mohd. Zuber (supra), there were other material and circumstances available vide which it could be concluded that it was done by the accused. However, in the present case, there is no recovery of any case property and gastric lavage of victim was not only collected but has been sent to FSL (Rohini) for expert opinion for which the report is negative as the bottle containing the gastric lavage (stomach wash) of victim Guddu was found empty. More so, no witness from FSL (Rohini) has been examined by the prosecution.
19. Thus, the second most important aspect, which is required to be established by the prosecution, is that such intoxicating, stupefying or unwholesome substance was administered by the accused persons. In this regard, after perusal of the entire prosecution story, it is reflected that there is no direct evidence available on record except the testimony of PW-2 Guddu that both the accused persons along with Aas Mohd. (JCL) had offered Guddu a cold drink which was mixed with some intoxicating SC no. 28711/2016 State Vs. Nazia @ Najjo & Anr. Page no.14/25 or unwholesome substance and made him to drink. In this regard, PW-2 has categorically stated that accused Nazia @ Najjo and Sujeet along with Aas Mohd. (JCL) had hired his e-rickshaw and in the meantime, on the way, they offered a cold drink in a plastic glass and a cigarette and after consuming the same, he got unconscious immediately and regained consciousness in Aruna Asaf Ali hospital. With this background, it is required to analyze again, the circumstantial evidence pertaining to the incident dated 10.03.2016. During the cross-examination of PW-2, the counsel for accused persons has given a suggestion which is mentioned here again as under:
"It is correct that it was night time when my rickshaw was hired by the accused and there was slight dark at that time."
20. The suggestion given by the counsel for the accused persons reflects that the counsel was suggesting that when e-rickshaw was hired by them, there was slight dark. This suggestion further means and implies that both the accused persons were present at the spot in question whereas it has been alleged that accused persons were not at all present at the scene of the crime. By this, it can be considered that both the accused persons have not disputed their presence at the spot in question. This fact, therefore, corroborate with the story of prosecution SC no. 28711/2016 State Vs. Nazia @ Najjo & Anr. Page no.15/25 and the testimony of PW-2 that on 10.03.2016 he had left his house with e-rickshaw and his e-rickshaw was hired by accused Nazia @ Najjo and accused Sujeet and it was slight dark at that time. PW-2 has stated in his statement that it was about 8:30 pm. All these circumstances, in my considered opinion, however, are not sufficient, as already stated above, to conclude that accused persons had administered some unwholesome substance to Guddu. Thus, in my considered opinion, the judgment of Mohd. Zuber (supra), is not applicable in the present facts and circumstances.
21. Other witnesses examined by the prosecution may also be discussed in the following paras as under:
PW-5 HC Chander Shekhar has stated that on the intervening night of 10/11-03-2016 at about 1:40 am, a call was received at PP Red Fort, vide DD no.2 that one person who was lying unconscious at Geeta Colony Flyover had been taken to Aruna Asaf Ali hospital. PW-5 reached at the hospital and found Guddu there who was admitted in the hospital but in unconscious state. MLC of Guddu was collected by PW-5. Doctor has opined that patient was unfit for statement. Doctor gave him two sealed parcels which were given to SI Prakash Chand. On 12.03.2016, Babloo, brother of injured/victim took him to his residence. On 17.03.2016 Guddu came at PP Red Fort and his statement Ex.PW2/A was SC no. 28711/2016 State Vs. Nazia @ Najjo & Anr. Page no.16/25 recorded on the basis of which case was registered and investigation was assigned to SI Prakash Chand.
No material contradiction has been emerged from the cross- examination of this witness as he has corroborated what he had stated in his examination-in-chief.
22. The next witness examined by the prosecution is PW-7 HC Vijay Kumar who was posted at PP Red Fort PS Kotwali on 17.03.2016. At about 5:30 PM Ct. Ramesh reached there and handed over original rukka and copy of FIR and the investigation was assigned to SI Prakash Chand. It is further stated by PW-7 that HC Chander Shekhar also reached PP Red Fort and handed over two sealed pullandas of bottle along with sample seal and MLC of the present case to IO SI Prakash Chand. IO seized the said pullandas vide seizure memo Ex.PW5/A. PW-7 along with Ct. Ramesh and IO reached at the spot i.e. Geeta Colony flyover and prepared site plan Ex.PW2/E at the instance of Guddu. At the instance of complainant, IO apprehended Aas Mohd. (JCL). He was arrested vide arrest memo Ex.PW7/A. Disclosure statement of Aas Mohd (JCL) Ex.PW7/B was recorded. On 18.03.2016 PW-7 along with Ct. Prabha went in search of another accused persons and accused Nazia was arrested vide memo Ex.PW7/D. Disclosure statement of accused Nazia Ex.PW7/F was recorded by the IO.
SC no. 28711/2016 State Vs. Nazia @ Najjo & Anr. Page no.17/25 No material contradiction has been emerged from the cross- examination of this witness as he has corroborated what he had stated in his examination-in-chief.
23. Next witness examined by the prosecution is PW-8 WHC Prabha. It is stated by PW-8 that on 18.03.2016 she joined investigation with IO Prakash Chand, HC Vijay and Ct. Mahesh and arrested accused Nazia vide arrest memo Ex.PW7/D. Disclosure statement of accused Nazia is Ex.PW7/F. No material contradiction has been emerged from the cross- examination of this witness as she has corroborated what she had stated in her examination-in-chief.
24. The next witness examined by the prosecution is PW-9 Ct. Amit who is instrumental in the arrest of accused Sujeet. PW-10 is Ct. Ramesh Chand who had registered the FIR in the present case on 17.03.2016. PW- 12 is HC Jitender who is the witness to the disclosure statement of accused Sujeet. PW-11 is Sh. Muneesh Garg, the then Ld. MM who had conducted the TIP of accused Nazia @ Najjo and as per record, accused Nazia @ Najjo had refused to participate in the TIP proceedings. Similarly, PW-13 is Ms. Ruby Neeraj Kumar, the then Ld. MM, Tis Hazari who conducted TIP proceedings of accused Sujeet who also refused to SC no. 28711/2016 State Vs. Nazia @ Najjo & Anr. Page no.18/25 participate in the TIP proceedings. PW-14 is SI Prakash Chand and he has narrated the entire story of prosecution as mentioned in the charge-sheet which is not repeated here for the sake of brevity.
25. Before proceedings further, it is important to mention here that one witness has been examined by accused Nazia in her defence. DW1 Ms. Bano has stated that on 17/03/2016, she was alongwith her daughter at her house when one Aas Mohd. came alongwith certain police officials on 18/03/2016 and accused Nazia @ Najjo was apprehended by police. It is a matter of record that there is no dispute regarding the arrest of any of accused persons. None of the accused persons or their counsels have raised any question with regard to their arrest by the IO. Thus, DW1 has not stated anything contrary to the record. Hence, no material contrary facts are brought or putforth by the accused Nazia @ Najjo.
26. From the careful perusal of testimony of the prosecution witnesses and the reasoning so give above, it is reflected that though, it has been established and corroborated that Guddu was going alongwith his e-rickshaw on the intervening night of 10-11/03/2016, when his e- rickshaw was hired by accused persons, however, there are certain compelling circumstances emerging from the story narrated in the charge-sheet and the evidence led by the prosecution in support of their SC no. 28711/2016 State Vs. Nazia @ Najjo & Anr. Page no.19/25 contention, which if considered, would lay its impact upon the merits of the case as a whole. These are as under:-
(i) There is no evidence pertaining to intoxicating, stupefying or unwholesome substance found in the stomach wash of the PW2 Guddu.
(ii) When PW2 Guddu was found lying unconscious over Geeta colony flyover by his brother Babloo and when he was taken to Aruna Ali Asaf hospital, the concerned doctor who had conducted his MLC vide Ex.PW15/A, had taken the blood sample and gastric lavage (stomach wash), sample seal, labeled and signed and handed over to IO. It is reflected that these samples as mentioned above were sent to FSL Rohini for which the report is Ex.PW14/F. It is reflected that the bottle in which gastric lavage sample of Guddu was kept, was found as empty, hence, no opinion with regard to any intoxicating, stupefying or unwholesome substance has been given. There is also no report for opinion with regard to the blood of Guddu whether containing any such substance or not.
PW14 has not stated or furnished any explanation in this regard. Thus, the entire story of prosecution is silent on this aspect.
(iii) Nothing has been stated from the side of prosecution with regard to the missing evidence SC no. 28711/2016 State Vs. Nazia @ Najjo & Anr. Page no.20/25 nor any explanation is furnished as to how the said bottle containing gastric lavage was found empty by the FSL Rohini. Two possibilities are emerging from these circumstance that either it was not at all collected by the concerned doctor who conducted the MLC of PW2 Guddu or when it was collected by the concerned doctor, it was not properly handelled by the IO and it resulted into leaking out such vital piece of evidence and nothing was found by the concerned expert at FSL Rohini.
(iv) There is no report pertaining to the blood sample of Guddu as well. It is very likely that if some intoxicating or unwholesome substance is administered to a person and it is so strong that such person remain unconscious for at least a day, then there are possibilities that components of such material or substance can also be found available in the blood of such person. There is no blood report available on record as well.
(v) In the absence of any such report, therefore, the only evidence available on record is that e-
rickshaw of Guddu was hired by accused persons and when they reached at Geeta Colony flyover, accused persons had halted for sometime and they not only had some cold drink but also offered the same and a cigarette to victim Guddu. In the SC no. 28711/2016 State Vs. Nazia @ Najjo & Anr. Page no.21/25 absence of the material piece of evidence as mentioned above, it cannot be presumed to the certainty and beyond reasonable doubt that Guddu got unconscious by consuming either cold drink or cigarette or by any other substance for which the prosecution story as well as PW2 Guddu is silent. In another words, the investigation has not been conducted properly.
(vi) Just because accused Nazia and Sujeet had refused to join TIP, they cannot be made accountable for all other acts, as alleged in the charge-sheet, unless until it is supported with corroborative piece of evidence. In other words, conviction of an accused cannot be solely based on the fact that he / she refused to join TIP.
27. In the light of these above mentioned circumstance, in my considered opinion, it cannot be concluded that it was the accused person who had administered some intoxicating, unwholesome or stupefying substance to victim Guddu and by consuming the same, he became senseless. Prosecution has failed to establish the entire chain of circumstances. Thus, all the essential ingredients of section 328 IPC are not established by the prosecution. Thus, charge u/s 328 / 34 IPC can not sustain against accused persons.
Second Point of Determination:
SC no. 28711/2016 State Vs. Nazia @ Najjo & Anr. Page no.22/25
(i) Whether both the accused persons along with accused Aas Mohd (JCL) in furtherance of their common intention committed theft of e-rickshaw, mobile phone and cash of Rs.800/- from the complainant and thereby committed an offence under Section 379/34 IPC?
28. With regard to the second point of determination, it is mentioned that prosecution has to establish beyond reasonable doubt that all the accused persons had committed theft of e-rickshaw, mobile phone and cash of Rs.800/-. The outcome of first point of determination is that the most important material piece of evidence is found missing from the story of prosecution. PW2 Guddu has stated that on the intervening night of 10-11/03/2016, his e-rickshaw was hired by accused persons and when they reached at Geeta Colony flyover, they gave something to drink and smoke and thereafter he got unconscious. PW2 has stated that he regained consciousness on the next day and found that his e-rickshaw, mobile phone and Rs.800/- were stolen. PW2 has raised his serious doubt and has deposed that it was the accused person who had stolen these articles.
29. From the perusal of entire investigation conducted by the IO, it is reflected that none of the articles have been recovered from the accused persons or from any other person. It is reflected that accused persons had disclosed that they had sold the e-rickshaw to one Shan SC no. 28711/2016 State Vs. Nazia @ Najjo & Anr. Page no.23/25 Mohd. @ Mama, however, such person called Shan Mohd. @ Mama could not be traced out. More so, there is no other evidence besides the disclosure statement of accused persons that they had stolen the e- rickshaw, mobile phone and Rs.800/- of Guddu and sold e-rickshaw to one Shan Mohd. @ Mama. It is needless to say that such disclosure statement of any of the accused persons is not admissible as evidence as per section 25 Indian Evidence Act unless and until it leads to the recovery of any case property. Thus, in the absence of any further evidence in this regard and considering the fact that, presuming for the sake of arguments the theft had taken place after Guddu got unconscious, it cannot be said with certainty that it was done by the accused persons. The possibilities that after Guddu got unconscious, it could be any other person besides the accused persons who could have stolen such article, cannot be ruled out. With these observations the prosecution has been miserably failed to establish the liability of the accused persons with regard to section 379 / 34 IPC.
30. In the light of above discussion, it is reflected that none of the point of determination have been established by the prosecution in their favour. The story of prosecution supported with the testimonies of witnesses, though reflects that PW2 Guddu had been going on his e- rickshaw on 10/03/2016 at about 8:30 pm and his e-rickshaw was hired SC no. 28711/2016 State Vs. Nazia @ Najjo & Anr. Page no.24/25 by accused persons and he was found lying unconscious by his brother Babloo at Geeta Colony flyover. However, prosecution has not been able to establish the entire chain of circumstance and has miserably failed to prove that accused persons had administered some intoxicating, stupefying or unwholesome substance to him and committed theft of his e-rickshaw, mobile and cash of Rs.800/-. It appears that investigation conducted in this case is not proper. Thus, benefit of doubt is given to the accused persons. Prosecution has not been able to establish the liability of the accused persons beyond reasonable doubts. Hence, both the accused persons namely Nazia @ Najjo and Sujeet are acquitted from the charge under Section 328/379/34 IPC framed against them. Previous sureties are discharged. Endorsement, if any, on documents is cancelled. File be consigned to Record Room after due compliance.
Digitally signed by
PRASHANT PRASHANT KUMAR
KUMAR Date: 2018.03.19 15:51:30
+0530
Announced in the open court (PRASHANT KUMAR)
on 19.03.2018 ASJ-04/Central District
Tis Hazari Court/Delhi
SC no. 28711/2016 State Vs. Nazia @ Najjo & Anr. Page no.25/25