Delhi District Court
State vs . Mohd. Rafique & Ors on 24 March, 2012
1
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
ID NO:02401R0113232011
SC NO:13/11
FIR NO: 03/11
PS HN Din Rly. Station
U/s 328/379/411/34 IPC
STATE vs. MOHD. RAFIQUE & ORS
JUDGMENT
1 Sl. No. of the Case SC 13/11
2 Date of Committal to Sessions 18.04.2011
3 Name of the complainant Smt. Manjusha Luwasha
4 Date of commission of offence 09/11/10
5 Name of accused, parentage and 1.Mohd. Rafique S/o Sh. Abdul Aziz R/o address Village Sarai Tarin PS Hayat Nagar, Distt.
Muradabad (UP), age : 40 yrs ( Handicraft worker)
2.Sikandar S/o Sh. Kafilludin R/o Vill Ambari, PS Dhinghal Bank, Distt.
Kishanganj, Bihar. Age: 31 yrs ( Labour)
3.Ompal @ Raju S/o Sh.Khacheru Saini R/o Village Salempurgosain, PS Gajrola, Distt. J.P.Nagar Amroha (UP) Age: 24 yrs (Rikshawpuller)
4.Devender Singh @ Pawa S/o Sh. Dori Singh R/o Village Maarpur, Post Sharif Nagar, PS Thakur Dwara, Distt. Muradabad (UP) , Age: 24 yrs (vegetable vendor) 6 Offence complained of U/s 328/379/411/34 IPC 7 Offence charged of U/s 328/379/411/34 IPC 8 Plea of guilty Pleaded not guilty 9 Final order Acquitted 10 Date on which order reserved 24.03.2012 11 Date on which order announced 24.03.2012 Page 1/12 of Judgment State Vs. Mohd.Rafique & Ors dt. 24.3.2012 2 BRIEF REASONS FOR DECISION
1. Case of the prosecution is that a zero FIR number 018/10 U/s 328/379 IPC Ex.PW1/A was registered at PS Kotwali, Mhow, MP on the complaint of Smt. Manjusha Luwasha dated 12.11.2010 to the effect that on 8.11.2010 her son Harsh was traveling from Indore to Delhi by Nizamuddin Intercity Train in General Compartment. He boarded train at 2.20pm from Indore . When the train stopped at Nizamuddin , Delhi and all the passengers left, her son could not wake up & was woken up by the people who found him drugged / poisoned . Her son was carrying VIP Suitcase containing clothes apart from a laptop. The laptop make Dell of black colour was purchased on 12.2.2009 from Indore. His two mobile phones having three phone numbers and his gold ring were also found missing. The complaint disclosed the product number of laptop as well as IMEI of phones . The zero FIR was received by PS Nizamuddin vide ruqqa Ex.PW7/B and FIR Ex.PW7/A was registered .
2. On 12.1.2011 GRP Ghaziabad telephonically informed vide Ex.PW4/A at PS Nijammudin about arrest of four accused in case FIR No.128/10 on 30.12.2010 & that they disclosed their involvement in the case in hand. IO Page 2/12 of Judgment State Vs. Mohd.Rafique & Ors dt. 24.3.2012 3 procured documents and got the laptop identified at Ghaziabad Police Station and seized vide memo Ex.PW6/A. Bill of laptop Ex.PW2/ C & K . General diary of PS Ghaziabad is Ex.PW4/A. All four accused persons were arrested on production warrants. Accused Rafique was arrested vide memo Ex.PW5/L and disclosure Ex.PW5/F. Accused Sikander was arrested vide memo Ex.PW5/A, disclosure Ex.PW5/E. Accused Ompal was arrested vide Ex.PW5/B, disclosure Ex.PW5/C and accused Devender was arrested vide Ex.PW5/D and his disclosure is Ex.PW5/H. All accused were produced for Test Identification Parade before Ld. MM but they all refused to participate in TIP as per proceedings Ex.PW10/A and B. The laptop was released on superdari on application Ex.PW2/A and Superdaginama Ex.PW2/B. Statements of witnesses were recorded and after conclusion of investigation, charge sheet U/s 328/379/411/34 IPC was filed.
3. After compliance of 207 Cr.P.C, case was committed to Sessions and accused was charged for commission of offence punishable U/s 328/379/411/34 IPC
4. In support of its case, prosecution examined 12 witnesses in all. It was Page 3/12 of Judgment State Vs. Mohd.Rafique & Ors dt. 24.3.2012 4 followed by recording of statements of the accused vide which accused denied allegations against them but they did not opt to lead evidence in their defence.
5. I have heard Ld. Addl. PP Sh. V.K.Negi for State and Ld. Counsel Sh. Abdul Ajij advocate for accused Mohd. Rafique and Sekander and Ld. Counsel Ms. Chitramal Advocate from Legal aid for accused Ompal and Devender. I have also carefully perused the entire judicial record.
6. At the onset it would be appropriate to have a glance at the gist of deposition made by PWs.
7. PW1 ASI S.R.Kanarae was Duty Officer at PS Gautam Pura, Distt. Indore, MP on 14.11.2010 and he has proved the registration of case FIR .
8. PW2 Harsh Duwasha is victim and he has narrated on the lines of the prosecution story that all four accused drugged him. Apart from identifying accused. PW2 also identified his laptop Ex P1.
9. PW3 HC Vijay Kumar was MHCM at PS GRP Ghaziabad on 30.12.10 and he has proved relevant entries of malkhana register.
10.PW4 Ct. Clerk Uday Bhan, DO of PS GRP Ghaziabad and he has proved Page 4/12 of Judgment State Vs. Mohd.Rafique & Ors dt. 24.3.2012 5 the registration of case FIR.
11.PW5 ASI Jai Kumar joined investigation on 21.1.2011 with IO ASI Kushal Pal and witnessed arrest of accused persons apart from identifying them.
12.PW6 Ct. Shahbir Singh took the case property i.e. sealed pulinda containing laptop from GRP Ghaziabad, UP.
13.PW7 HC Ram Niwas proved the registration of case FIR being posted as DO on 11.1.2011 at PS H.N.Din Rly Station.
14.PW8 ASI Kaushal Pal was entrusted with the further investigation of this case and he has narrated entire investigational steps taken by him apart from identifying accused persons .
15.PW9 HC Shakti Singh proved the relevant entry vide which laptop was deposited with Makhana on 3.2.2011 and released on superdari on 5.2.2011.
16.PW10 Sh.Vinay Singhal Ld.MM proved the TIP proceedings according to which accused persons refused to participate in Test Identification Parade.
17.PW11Sr.SI Pankaj Labania of PS GRP, Ghaziabad is IO and he has narrated on the lines of the prosecution case apart from identifying accused persons.
Page 5/12 of Judgment State Vs. Mohd.Rafique & Ors dt. 24.3.2012 6
18.PW12 SI Sunil Negi of PS GRP Ghaziabad joined investigation on 30.12.2010 with IO and supported the case of the prosecution .
19. Section 328 IPC runs as under :
Causing hurt by means of poison, etc., with intent to commit an offence Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
20.Ingredients of offence - The essential ingredients of the offence under Section 328 IPC are as follows:
Accused administered poison
(a) with the intention of causing hurt;
(b) with knowledge that it is likely to cause hurt ; and
(c) to facilitate the commission of an offence.
21.Perusal of record reveals that even though it is claimed that PW2 Harsh Duwasha was administered poisonous drug between Indore and Delhi but in the absence of any stomach wash or corresponding forensic report qua existence of any poisonous , intoxicating or stupefying drug in the body of Page 6/12 of Judgment State Vs. Mohd.Rafique & Ors dt. 24.3.2012 7 victim, no finding of commission of offence U/s 328 IPC can be passed.
22.In case titled, " Sanjay Singh Vs. State " 2007 (7) AD Delhi 151 Hon'ble High Court while dealing with 328 IPC matter observed, " The essential element of Section 328 is that the victim should be administered poison or any stupefying , intoxicating or unwholesome drug or thing the forensic examination of the stomach wash in order to determine whether the substance administered was poison is therefore imperative the commission of offence U/s 328 IPC. The opinion of the victim who is rendered unconscious after taking the substances may not be stated finally as to whether the drug administered was either poison or any stupefying , intoxicating or unwholesome drug... ......... The endorsement of the Doctor is to the effect that the stomach wash could not be preserved ... extremely unsafe for Trial Court to convict U/s 328 IPC. "
23.Not only no FSL report is there, not even any MLC of PW2 Harsh Duawasha is available on record so as to show that PW2 was administered any such drug by any person at any point of time. There is no explanation as to why his statement was not recorded by any RPF Officials when he reached Page 7/12 of Judgment State Vs. Mohd.Rafique & Ors dt. 24.3.2012 8 Nizammudin Railway Station at Delhi. There is absolutely no explanation as to why he did not report the matter to any police official at Delhi either orally or in writing. Hence offence of Section 328 IPC has remained unsubstantiated.
24.As far as offence of Section 379/411 IPC is concerned, after the claimed date of incident of 8.11.2010, the laptop is shown recovered by RPF Ghaziabad on 30.12.2010 i.e. after around one month and 21 days of the incident. It is shown that accused Sikander was caught carrying the laptop with him at Ghaziabad Railway Station. It is highly improbable that an accused would retain and carry a stolen laptop with him for that long so that police can show its recovery from him.
25.Another interesting aspect observed is that running seizure memo of the laptop prepared by Ghaziabad Police Ex.PW4/A does not contain the specific instrument number so as to connect it with the instrument number available in the complaint made by mother of PW2 or the bill Ex.PW2/C. The product no. 2FQT2BS does not find mention anywhere in the investigation file so as to relate it with the complaint or the bill. No document prepared by Ghaziabad Police or Delhi Police carry this number and same could not come on record Page 8/12 of Judgment State Vs. Mohd.Rafique & Ors dt. 24.3.2012 9 even during trial. Despite all this , record reveals, no attempt was made by either Ghaziabad Police or Delhi Police to get the recovered laptop identified in a formal TIP. It has come on record in the form of deposition of PW2 and PW11 Sr. SI Pankaj that the laptop was shown to PW2 in an open unsealed condition on 31.12.2010 at Ghaziabad Police Station. It is a settled legal proposition that no TIP can be held by the Police during investigation at the PS and it is only a Judicial Officer who can conduct a TIP U/s 9 of Evidence Act. As such there is nothing on record which can connect the recovered laptop to either Sikander or for that matter to any other accused.
26.Even though it is claimed that a site plan of place of recovery was prepared but the same was neither placed nor proved on record. It is evident that the FIR in hand i.e. 3/11 was registered by PS Hazrat Nizammudin on 11.1.2011 whereas according to the documents available, the entire case stood tracked and cracked on 30.12.2010 itself.
27.Record reveals that all the four accused were shown by Ghaziabad Police to PW2 at PS Ghaziabad itself on 31.12.2010. It has specifically come in the statement of PW2 and PW11 in so many words. In this backdrop the refusal of the accused to join TIP as per proceeding Ex.PW10/A is justified and is of Page 9/12 of Judgment State Vs. Mohd.Rafique & Ors dt. 24.3.2012 10 no avail to the prosecution and no adverse inference can be drawn against the accused. In this backdrop naming and identifying the accused by PW2 in the Court after more than 1½ year for the first time carry no evidentiary value.
28.As such I have no hesitation in concluding that prosecution has not only failed to bring home the charge U/s 328 IPC against the accused but also failed on record to prove an offence qua U/s 379/411 IPC. Story of the prosecution has failed to cross the bar of suspicion .
29.In case titled Sohan and Another Vs. State of Haryana and Another (2001) 3 SCC 620 it has been observed by Hon'ble Supreme Court that :
''An accused is presumed to be innocent until he is found guilty. The burden of proof that he is guilty, is on the prosecution and that the prosecution has to establish its case beyond all reasonable doubts. In other words , the innocence of an accused can be dispelled by the prosecution only on establishing his guilt beyond all reasonable doubts on the basis of evidence. In this case, if only the Sessions Judge had reminded himself of the above mentioned basic or fundamental principles of criminal jurisprudence, Page 10/12 of Judgment State Vs. Mohd.Rafique & Ors dt. 24.3.2012 11 direction of his approach and course of his appreciation of evidence would have been different and thereby perversity in appreciation of evidence could have been avoided.''
30.In case titled Sharad Birdhichand Sarda AIR 1984 SC 1622 it has been observed by Hon'ble Supreme Court that :
Where on the evidence two possibilities were available, one which went in the favour of the prosecution and the other which benefited the accused, the accused was undoubtedly entitled to the benefit of doubt. The principle had special relevance where the guilt of the accused was sought to be established by evidence.
31.In case titled Manzoor Vs. State of U.P. (1982) 2 SCC 72 while dealing with the acquittal of accused in benefit of doubts it has been observed by Hon'ble Supreme Court that :
Prosecution failing to prove the guilt of accused satisfactorily beyond all reasonable doubtHence, the accused must be acquitted.
32.In case titled Raj Kumar Vs. State , 2011 (2) JCC 796 while giving benefit of doubt to the accused, Hon'ble Delhi High Court held that:
Page 11/12 of Judgment State Vs. Mohd.Rafique & Ors dt. 24.3.2012 12 " Benefit of doubt - whenever a reasonable doubt arises in a judicial mind - Benefit hereof must be to the account of the accused."
33.In another case titled Rajneesh Vs. State , 2010 (2) JCC 1529 it has been observed by Hon'ble Delhi High Court that:
"Witness - Material witnesses - Non examination of - effect of failure to examine the best witness who could have thrown the light on the issues involved - Benefit has to be the credit of the accused and not to his debit."
34.As such all the accused are hereby given benefit of doubt and they stand acquitted of the offence charged with. They be released from J/c forthwith if not required in any other case subject to furnishing bond of Rs.10,000/ each which shall be deemed canceled after expiry of six months U/s 437 A Cr.P.C. File be consigned to RR.
ANNOUNCED AND DICTATED IN OPEN COURT ON : 24.3.2012 (SURINDER S. RATHI) Addl. Sessions Judge02 Central : Delhi Page 12/12 of Judgment State Vs. Mohd.Rafique & Ors dt. 24.3.2012