Delhi District Court
State vs Hanif Shaukat on 19 May, 2025
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
ADDITIONAL SESSIONS JUDGE (FAST TRACK COURT-01)
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
SC No. 28215/2016 CNR No. DLCT01-001585-2013
State Vs. Hanif @ Shaukat
FIR No. 184/2013
Under Section: 328/379/411/34 IPC
PS: Civil Lines
STATE VERSUS HANIF @ SHAUKAT & ORS.
(i) SC No. of the case : 28215/2016
(ii) Date of commission of offence : 23.07.2013
(iii) Name, parentage and address : 1. Hanif @ Shaukat
of accused S/o Sh. Islam
R/o Gali No. 14
Ambey Guzar Ka Makan
5th Pusta, Village Gamri
PS Bhajanpura, Delhi.
2. Anil Sharma
S/o Sh. Shiv Nandan
Sharma
Permanent Address:
Village Julahi, PO-
Umaga Furnadi
PS Madanpur, District
Aurangabad, Bihar.
Present Address: H.No. A-
50, Near Marriage Home,
Friday Bazar, Sahadat Pur
Delhi
3. Mohd. Latta
(Proclaimed Offender)
SC No. 28215/2016
FIR No. 184/2013
State Vs. Hanif @ Shaukat Page 1 of 29
S/o Mohd. Muslim
Permanent Address:
Village, Khari, PO-
Hafniya, PS Aamor
District Purniya, Bihar
Present Address: Mukhiya
Ji Ka Makaan near
Dispensary, Pakki Khajuri
Delhi-94.
4. Dheeraj @ Manoj
S/o Sh. Puttu Lal
Permanent Address:
Manku, Bajariya Pal
Mandir Mohalla, Chowki
Mohammad Hadab
PS Sadar Bazar
Sahahjahan Pur, U.P.
Present Address: H.No.
334, Gali No. 6, C-Block
Dayal Pur, Delhi.
(iv) Offence complained of : 328/379/411/34 IPC
(v) Plea of the accused : Pleaded not guilty
(vi) Final order : Accused no. 1, 2 and 4 are
Convicted u/Sec. 328/34
IPC and Acquitted
u/Sec.379/411 IPC.
Date of Institution : 08.10.2013
Date of Judgment reserved on : 29.04.2025
Date of Judgment : 19.05.2025
SC No. 28215/2016
FIR No. 184/2013
State Vs. Hanif @ Shaukat Page 2 of 29
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
1. FIR in the present matter was registered on the complaint of Sh.
Rajesh vide Ex.PW1/A dated 23.07.2013. DD No. 19PP dated 23.07.2013 was recorded in the matter at PS which is Ex.PW3/A at page no. 31 of case file. It was recorded at 3:07 PM that at M-68/461, Majnu ka Tila, some person had administered some substance to the victim boy. HC Satish was assigned the task with whom Ct. Brijesh had proceeded to the spot. It is alleged by the complainant that he is resident of the address M-68/461, Aruna Nagar, Majnu ka Tila, Delhi. His younger brother Sh. Rakesh/PW-2 aged about 30 years runs E-rickshaw who at about 2:30 PM had gave a mobile phone call to the complainant at mobile no. 9910723674. Sh. Rakesh had informed that he was coming from Timarpur in E-rickshaw when the passenger had offered him to drink a cold drink. After drinking the same he was feeling intoxicated/his head was spinning and he was becoming unconscious. Sh. Rakesh/PW-2 had informed the complainant that he is bringing the E-rickshaw towards Majnu ka Tila and asked his brother/PW-1 Sh. Rajesh to come towards children's home. On hearing this PW-1 had made a call at 100 number. HC Ajit Singh/PW-4 had met the PW-1 near petrol pump at Majnu ka Tila. PW-1 and HC Ajit Singh together reached in front of Mother Teresa building, Ring Road, Majnu ka Tila where 3-4 person were sitting in E-rickshaw of PW-2. One of the boy was driving the E-rickshaw and coming from the side of Wazirabad. PW-2 was sitting in semi-conscious condition in the E-rickshaw. The said E-rickshaw was stopped by HC Ajit Singh on seeing which the said boys started running. PW-1 and HC Ajit Singh together had caught one of the SC No. 28215/2016 FIR No. 184/2013 State Vs. Hanif @ Shaukat Page 3 of 29 boy/accused Hanif @ Shaukat Ali and rest of the accused had ran away from the spot. PCR had also reached at the spot who had taken PW-2 to hospital. The E-rickshaw was taken into possession. It is the case of the prosecution that the said accused person was committing theft of E- rickshaw by administering some intoxicating substance on PW-2. FIR was registered in the matter and the case was investigated. The PW-2 was found in drowsy and disoriented condition and the nature of poison was not known. Blood sample was also sent for examination of PW-2. At the instance of PW-1/complainant the site plan was prepared. Accused no. 1 Hanif had disclosed after obtaining one day PC remand of accused no. 1 Hanif that accused no. 2 Anil used to keep such tablets which cause intoxication. PW-2 had disclosed that he was carrying the accused person from Kingsway Camp to Majnu ka Tila on charges for Rs.80/- of all the accused and near Timarpur truck parking the accused person had asked to stopped E-rickshaw. They brought some cold drink. They gave one cold drink to PW-2 to drink after which PW-2 was feeling drowsy and disoriented. On this PW-2 rang his brother and in the "Sansi" language PW- 2 had gave information to PW-1 to reach near Mother Teresa building outer Ring Road near Majnu ka Tila. With great difficulty he took the rickshaw near children's home in front of Mother Teresa building. Since he was not able to control E-rickshaw one of the accused had asked other accused by name to drive E-rickshaw and they pulled PW-2 on the back seat of E- rickshaw. PW-2 regained conscious in the evening of 25.07.2013. His mobile phone of Bina Tone company containing SIM of idea company vide mobile number 9891785093 and Rs.600/- which were in front pocket of his shirt were missing. The other accused were arrested later on namely accused no. 2 Anil Sharma, accused no. 3 Mohd. Latta/PO, accused no. 4 SC No. 28215/2016 FIR No. 184/2013 State Vs. Hanif @ Shaukat Page 4 of 29 Dheeraj @ Manoj and brought to trial. Accused no. 2 had alleged that the intoxicated tablets were brought by accused no. 1 Hanif @ Shaukat. TIP proceeding was conducted. Accused Guddu could not be arrested despite efforts.
2. Charge was given to accused Hanif @ Shaukat under Section 328/34 IPC, under Section 379/34 IPC and Section 411 IPC on 28.10.2013 to which he has pleaded not guilty and claimed trial. Charge was given to accused Anil Sharma, accused Mohd. Latta and accused Dheeraj Pal under Section 328/34 IPC and Section 379/34 IPC on 15.05.2014 to which all of the accused have pleaded not guilty and claimed trial.
3. Prosecution has examined PW-1 to PW-15 as prosecution witness against the accused on trial. Statement of Accused under Section 313 Cr. PC was recorded. The Statement of Accused of accused no. 1 Hanif @ Shaukat and accused no. 2 Anil under Section 313 Cr. PC was recorded on 03.02.2025. Statement of Accused under Section 313 Cr. PC of accused Dheeraj @ Manoj was recorded on 03.03.2025. Accused no. 3 Mohd. Latta is Proclaimed Offender (PO) vide order dated 23.12.2022.
4. The main offence against which the accused are charged with is Section 328/34 IPC. The necessary ingredients of which are laid down in the citation titled as Sunil Mishi @ Silly vs. State of NCT of Delhi in CRL. A. 610/2013 & Harmeshlal s/o Ajit Singh vs. The State of Maharashtra 2016 ALL MR (Cri) 1980.
30. Section 328 I.P.C. reads thus :-
"Causing hurt by means of poison etc, with intent to commit an offence.SC No. 28215/2016 FIR No. 184/2013 State Vs. Hanif @ Shaukat Page 5 of 29
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 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."
31. A perusal of the aforesaid section would show that the following elements are essential to constitute an offence under Section 328 IPC:-
i) Some person or persons should administer or cause to be taken by any person any poison or stupefying, intoxicating or unwholesome drug, or other thing and;
ii) The intention of the person or persons mentioned in (i) should be to cause hurt to the person concerned, or should be to commit or to facilitate commission of an offence or there should be knowledge on the part of the person or persons that the result of his act or their act was likely to cause hurt to the concerned persons.
32. Both these elements should exist conjunctively, then and then alone would the offence be complete and the person or persons, as the case may be, would be guilty of the offence contained in this section.
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38. Dealing with the effect of non cross-examination, Supreme Court in Laxmibai (dead) Thr. LRs and Anr. v. Bhagwantbuva (dead) Thr. LRs and Ors., AIR 2013 SC 1204 observed as under:-
"40. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross- examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is SC No. 28215/2016 FIR No. 184/2013 State Vs. Hanif @ Shaukat Page 6 of 29 unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (See: Khem Chand v. State of Himachal Pradesh, AIR 1994 SC 226; State of U.P. v. Nahar Singh (dead) and Ors., AIR 1998 SC 1328; Rajinder Pershad (Dead) by L.Rs. v. Darshana Devi (Smt.) AIR 2001 SC 3207; and Sunil Kumar and Anr. v. State of Rajasthan, AIR 2005 SC 1096)."
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43. Hon'ble Supreme Court in Ganesh Lal v. State of Rajasthan, (2002) 1 SCC 731 elaborately discussed regarding the presumption laid down under Section 114 Evidence Act:
"12. Section 114 of the Evidence Act provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public private business, in their relation to facts of the particular case. Illustration (a) provides that a man who is in possession of stolen goods soon after the theft may be presumed by the Court to be either the thief or one who has received the goods knowing them to be stolen, unless he can account for his possession. The presumption so raised is one of fact rather than of law. In the facts and circumstances of a given case relying on the strength of the presumption the Court may dispense with direct proof of certain such facts as can be safely presumed to be necessarily existing by applying the logic and wisdom underlying Section 114. Where offences, more than one, have taken place as part of one transaction, recent and unexplained possession of property belonging to deceased may enable a presumption being raised against the accused that he is guilty not only of the offence of theft or dacoity but also of other offences forming part of that transaction."
xxxxxxx Harmeshlal
9. Once the presence of the appellant in the company of the complainant from Chandrapur through drinking of tea by complainant given to him by the appellant till the time the complainant woke up from his slumber only to find himself as left stranded by the appellant is established, a situation of drawing presumption by application of Section 114 of the Indian Evidence Act arises. Section 114 lays down that the Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Therefore, the presumption would be that only the appellant was SC No. 28215/2016 FIR No. 184/2013 State Vs. Hanif @ Shaukat Page 7 of 29 responsible for drowsiness of the complainant which led to his slipping into unconscious state and it was intentionally induced by the appellant by administering him some stupefying or unwholesome drug. This presumption could have been rebutted by the appellant by bringing on record some explanation or some circumstances showing a probability that there may have been some other person involved in the case, who may have been responsible for drowsiness and unconscious state of the complainant. But, there is neither any explanation nor any circumstance brought on record in order to probablise the defence of the appellant that he had got nothing to do with the complainant. In fact, the defence of the appellant is of total denial, but as stated earlier, he has failed to establish that he had no connection with the complainant whatsoever, rather his presence with the complainant all throughout from Chandrapur till the time the complainant regained his consciousness after being into state of unconsciousness has been established in a reasonable manner and the presumption arising therefrom has not been rebutted by him.
10. Administration of substance or drug had its own consequence in this case which was in the nature of rendering the appellant incapacitated thereby fulfilling the second ingredient of the offence punishable under Section 328 I.P.C. The second ingredient is about administering a poison or stupefying substance etc. with an intention to cause hurt or injury or commit an offence or facilitate commission of an offence or with the knowledge that the act is likely to result in causing of hurt. Hurt as defined in Section 319 IPC is bodily pain, disease or infirmity. Unconsciousness is a mental and physical condition of a person which incapacitates him completely in the sense that he is incapable of doing anything. Dictionary meaning of the term 'infirmity' is physical or mental weakness (See: Concise Oxford Dictionary, Indian Edn. p.729). If physical or mental weakness or both make a man infirm, his being in unconscious state will make him all the more infirm. Therefore, inducing unconsciousness of a person by means of a poison, stupefying substance etc. as contemplated under Section 328 IPC amounts to causing of hurt.
11. Learned Counsel for the appellant has strenuously argued that as there was no medical examination of the appellant, nothing can be said with any amount of certainty that the tea that was given to the complainant was mixed with any stupefying substance. It is true that no medical examination of the complainant has been carried out. But, we have to take into account the attending circumstances which rendered redundant the conduct of the medical examination of the complainant. According to the version of the complainant, the substance or drug administered to him in the evening of 01/01/2012 had its effect on his mind and body as a result of which he went into state of unconsciousness and came out of it only in the morning of 02/01/2012. As seen from the evidence of P.W.-7 A.P.I. Prakash Masal, who recorded the first information report, the complainant was in a dilemma as to whether the FIR should be lodged at Chandrapur or SC No. 28215/2016 FIR No. 184/2013 State Vs. Hanif @ Shaukat Page 8 of 29 at Nagpur and ultimately it was lodged in the night of 03/01/2012 at Nagpur. By this time it was too late in the day to refer the complainant for any medical examination. It was obvious that by that time whatever effect the substance or the drug had on the mind and body of the complainant may have been weaned away. In these circumstances the medical examination of the complainant had become redundant. Therefore, I find that circumstances of the case have offered reasonable justification for absence of medical examination of the complainant in this case, which must be appreciated. Then, what remains is the testimony of P.W.-1 Vasant and I have already found that the core part of his testimony is reliable. There is no reason for the complainant to falsely implicate the appellant in this case. No probable explanation has been given by the appellant for leaving the complainant in unconscious condition some time in the night of 01/01/2012 till early morning of 02/01/2012 and, therefore, by way of adverse inference, it has to be concluded that the appellant was responsible for drowsiness and unconsciousness state of the complainant, which was induced by some substance or drug administered through tea to the complainant by him.
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13. As regards the second offence punishable under Section 394 I.P.C., I am of the view that recovery of some incriminating article at the instance of the appellant was necessary in order to reasonably connect the appellant with the offence of robbery. The reason being that even though the appellant had been found to have left the complainant in unconscious state at a spot at Ajani square, Nagpur, the possibility of some other persons arriving at the said spot later on and robbing the complainant of his car, valuables, etc. cannot be ruled out. It is likely the appellant may be or may not be interested in taking away the car and other articles. It is also likely that he may have had some other motive in his mind. But, only because the appellant had done something criminal against the complainant, further inference that the appellant must also have robbed the complainant of valuable articles or car or cash and important documents, cannot be reasonably made till the time something belonging to complainant is recovered at appellant's instance and if not, the possibility of involvement of some other person cannot be said to be reasonably ruled out in this case. This possibility having not been ruled out in the instant case, there being no recovery whatsoever at appellant's instance, even the car was found in abandoned state on some road in State of Punjab, I find that learned Assistant Sessions Judge has committed illegality in recording a finding that the prosecution has also brought home to the appellant his guilt for an offence punishable under Section 394 I.P.C. The finding recorded by the Assistant Sessions Judge in this regard, therefore, needs to be quashed and set aside.
SC No. 28215/2016 FIR No. 184/2013 State Vs. Hanif @ Shaukat Page 9 of 295. The first ingredient the prosecution has to prove is that the accused person had administered or caused to be taken by Rakesh/PW-2 some intoxicating or stupefying or unwholesome drug or other thing. PW-2 had deposed that on 23.07.2013 when he was carrying 05 passengers in his E- rickshaw who are accused person in this case then the accused person got the E-rickshaw stopped near Timarpur parking. One of them had brought cold drink and offered one glass to PW-2. After consumption of the cold drink PW-2 felt giddiness. Suspecting something wrong PW-2 made a mobile phone call to PW-1/Rajesh and had a talk in 'Sansi' language so that accused person cannot understand it. PW-2 had regained consciousness in the evening of 25.07.2013 and his mobile phone and Rs.600/- were found missing. The E-rickshaw was not produced in evidence by the prosecution. PW-1 Mr. Rajesh has deposed that he had taken the E-rickshaw on superdari which he could not produce as the same was stolen. However the photograph of E-rickshaw were taken before its release on superdari and the said photographs are collectively Ex.P-1 on record. Cross-examination of PW-1 is nil after giving of opportunity. Hence existence of E-rickshaw and its taking on superdari by the PW-1/the owner is sufficiently proved on record by the prosecution. PW-15 Dr. Ruby Kumari, CCMO, Aruna Asaf Ali Government hospital has deposed that on 23.07.2013 at about 3:40 PM Rakesh/PW-2 was brought by PCR officials with history of ingestion of some unknown substance in cold drink. Patient was drowsy and disoriented. The patient was referred to SR Medicine. During treatment the gastric lavage was tried to be obtained from the patient/PW-2 but it could not be obtained due to uncooperative nature of the patient. Blood sample was taken and preserved. MLC Ex.PW15/A was prepared in handwriting that SC No. 28215/2016 FIR No. 184/2013 State Vs. Hanif @ Shaukat Page 10 of 29 the patient was unfit for statement. Cross-examination of this witness is nil after giving of opportunity.
6. Vide Ex.PW15/A the MLC in the category of history the ingestion of some unknown substance in cold drink is recorded. Blood sample was taken. Patient was unfit for statement till 24.07.2013. The name of the patient is Rakesh aged about 30 years, male who was admitted at 3:40 PM on 23.07.2013. PW-12 Sh. Sri Narain, Assistant Director, FSL has deposed that on 08.08.2013 he had received a parcel duly sealed with the seal of CMO, Aruna Asaf Ali hospital which was containing Ex.1 which is blood sample approx. 1.5 ml kept in a vial. On chemical, TLC and GC-HS examination of Ex.1 it was found containing Ethyl alcohol 40.6mg/100 ml of blood which was resealed after examination with the seal of 'SNFSL DELHI'. The FSL report is Ex.PW12/A and cross-examination is nil after granting of opportunity. Hence PW-12 has proved that there was presence of Ethyl alcohol in the body of PW-2. The human body also naturally produces small amount of ethanol during fermentation of food in the digestive tract or other metabolic processes. However its blood concentration is negligible. The concentration of Ethyl alcohol 40.6 mg/100 ml is at a very high level and it can be available in human body only when the intoxicating substance is administered externally. PW-1 Sh. Rajesh has deposed that on 23.07.2013 when he reached with one Head Constable at Mother Teresa building, Majnu ka Tila where he found 3-4 persons in E- rickshaw of his brother PW-2 Sh. Rakesh. One of the said 3-4 person was driving the E-rickshaw which was coming from the side of Wazirabad. PW- 2 was sitting under influence of intoxicating substance and unconscious.
SC No. 28215/2016 FIR No. 184/2013 State Vs. Hanif @ Shaukat Page 11 of 29PW-1 has correctly identified accused no. 1 Hanif who was driving the E- rickshaw. PW-1 alongwith HC Ajit were able to apprehend accused no. 1 at the spot. PCR van had reached at the spot who had taken PW-2 at the hospital. Cross-examination of this witness is nil after giving of opportunity. PW-2 has deposed that he was taking 05 passengers from Majnu ka Tila to Kingsway Camp. Half of those 05 persons 03 person present in the Court are correctly identified by PW-2. One of among them brought cold drink and offered it to PW-2 in a glass. After consuming the cold drink PW-2 felt giddiness. PW-2 had called his brother/PW-1 in 'Sansi' language which could not be under stood by the accused person. PW-2 asked PW-1 on phone to reach opposite Mother Teresa building outer ring road, Majnu ka Tila. PW-2 has deposed that anyhow he managed to drive the E-rickshaw till Children's Home/Jail near Mother Teresa building and thereafter PW-2 became unconscious. PW-2 heard one of the accused speaking that "Shaukat tum gaadi chalao". Accused Hanif @ Shaukat is accused no. 1 in this case. PW-2 regained consciousness in the hospital on 25.07.2013. PW-2 has deposed in cross-examination dated 04.10.2024 that after making call to his brother/PW-1 the accused person have snatched mobile phone of PW-2. It is deposed by PW-2 that IO had shown him the accused person first time after 10-12 days of recording of statement of PW- 2 under Section 161 Cr. P.C. It is admitted as correct name of accused Hanif @ Shaukat was told to him at the police station by the IO. PW-3 HC Satish has deposed that HC Ajit alongwith complainant Rajesh/PW-1 met him at the spot which is near Mother Teresa building, Ring road and produced accused no. 1 Hanif @ Shaukat alongwith one E-rickshaw. He had found PW-2 Rakesh admitted at Aruna Asaf Ali hospital who was unfit SC No. 28215/2016 FIR No. 184/2013 State Vs. Hanif @ Shaukat Page 12 of 29 for statement. PW-3 had taken MLC of injured Rakesh. After that PW-3 had returned at the spot and recorded the statement of complainant/PW-1 Ex.PW1/A which was endorsed by PW-3 vide endorsement Ex.PW3/C. The accused, E-rickshaw, copy of Rukka with sealed parcel alongwith sample seal were handed over to IO/SI Ramphal and the E-rickshaw was deposited in Malkhana. In cross-examination of PW-3 it is deposed that he had recorded the statement of PW-1 Rajesh around 4 PM where accused no. 1 Hanif was also present.
7. PW-4 ASI Ajit Singh reached with PW-1 at about 3:10 PM near Mother Teresa building where he saw E-rickshaw was coming from wrong side of Wazirabad driven by accused no. 1 Hanif. PW-2 Rakesh was sitting under influence of intoxication on the E-rickshaw. Four person were sitting in E-rickshaw. The accused started running away when signal to stop was given to them. E-rickshaw was seized vide memo Ex.PW1/D. Accused no. 1 Hanif was arrested vide memo Ex.PW1/B and his personal search was conducted vide Ex.PW1/C. His disclosure statement is Ex.PW4/A. PW-4 had seen four person getting down from E-rickshaw who ran away after being signal to stop. PW-4 has incorrectly identified accused no. 1 Hanif as accused no. 4 Dheeraj. PW-4 in cross-examination dated 10.02.2020 has deposed that he had apprehended the driver of E-rickshaw namely accused no. 1 Hanif. He cannot identify the accused person who ran away from the spot. In cross-examination dated 10.02.2020 it is further deposed by PW-4 that his examination-in-chief was recorded four years ago and due to lapse of time he could not identify the accused. However it is denied that he had not apprehended accused no. 1 Hanif. PW-8 HC Brijesh Kumar has deposed SC No. 28215/2016 FIR No. 184/2013 State Vs. Hanif @ Shaukat Page 13 of 29 that 10-12 persons were present at the spot however he could not record statement of any public person nor did he note down name of such public person. The personal search of three accused is Ex.PW9/D, Ex.PW9/E and Ex.PW9/F. The disclosure statement of all the three accused is Ex.PW9/G to Ex.PW9/I. The accused person were arrested in front of PW-10 and the personal search of accused was also conducted in front of PW-10. PW-13 Retd. SI Ramphal had prepared site plan at the instance of complainant Rajesh which is Ex.PW1/E. E-rickshaw is Ex.P-1 and the supplementary FSL report is Ex.PW12/A. In the TIP proceedings accused no. 2 Anil and accused no. 3 Mohd. Latta/PO and accused no. 4 Dheeraj were correctly identified by PW-1 and PW-2.
8. The FSL report is Ex.PW12/A and Ex.1 contain blood sample approx. 1.5 ml. The result of chemical TLC and GC-HS examination of Ex.1 which was found containing Ethyl alcohol 40.6mg/100 ml of blood which was resealed after examination with the seal of SNFSL, Delhi. In the TIP proceedings dated 23.04.2014 accused no. 2 Anil Sharma was correctly identified by PW-1, accused no. 4 Dheeraj @ Manoj was correctly identified by PW-1 and PW-2 vide separate TIP proceedings. Accused no. 3 Mohd. Latta/PO was correctly identified by PW-1 and PW-2. The accused no. 2, 3 and 4 were arrested on 21.03.2014 and within 03 days their TIP was conducted at the earliest. Hence deposition of PW-2 dated 04.10.2024 that IO had shown accused person to him at PS first after 10-12 days of recording of his statement does not affect the case of the prosecution as the TIP was conducted earlier. Hence incorrect identification by PW-4 of accused no. 1 as accused no. 4 does not materially effect the case of the SC No. 28215/2016 FIR No. 184/2013 State Vs. Hanif @ Shaukat Page 14 of 29 prosecution in view of consistent and unimpeached deposition of PW-1, PW-2 reading with other evidence of prosecution witness as discussed above. Hence the above evidence has sufficiently proved on record that the accused person had administered in a cold drink some intoxicating substance in the nature of Ethyl alcohol when the accused person were travelling in E-rickshaw. E-rickshaw was driven by PW-2 from Kingsway Camp towards Majnu ka Tila via Timarpur. Such intoxication was much in excess so much so that the intoxication was administered between 2:30-3:30 PM on 22.07.2013 and in the evening of 25.07.2013 only PW-2 could have regained consciousness. PW-2 was unfit for statement vide MLC Ex.PW15/A both on 23.07.2013 and 24.07.2013. Hence the prosecution has successfully proved that the accused person had administered stupefying, intoxicating or some unwholesome drug or other thing to PW-2 and the first ingredient of Section 328 IPC is proved on record.
9. The second ingredient is that there was intention with the accused person to cause hurt or to facilitate or commission of offence or there was such knowledge with the accused person about the result of their act. The case of the prosecution is that such administration of intoxicating substance on PW-2 was caused by the accused person with the intention to facilitate theft of articles belongs to the complainant/PW-1 and PW-2. E-rickshaw belongs to complainant/PW-1. Mobile phone of Veena Tone company having SIM/Mobile no. 9891785093 and a sum of Rs.600/- belonging to PW-2/Rakesh were stolen.
10. For completion of offence under Section 328 IPC the second SC No. 28215/2016 FIR No. 184/2013 State Vs. Hanif @ Shaukat Page 15 of 29 ingredient is required to be proved in that such administration of unwholesome substance/drug administered to the victim by the accused was so administered with the intention to cause hurt or knowing it to be likely that he would thereby cause hurt or with the intention to commit or to facilitate commission of an offence. In the present case under the first ingredient it is already proved that accused person have together administered unwholesome substance to the victim Sh. Rakesh/PW-2 on 23.07.2013. It is deposed by PW-2 that after 23.07.2013 he had regained consciousness in the evening of 25.07.2013 in the hospital. Hence after about two days PW-2 had regained consciousness in the hospital. PW-15 Dr. Ruby Kumari has deposed that the patient Rakesh was examined vide MLC Ex.PW15/A. The patient was unfit for statement at the time of examination. The MLC Ex.PW15/A is perused wherein it is recorded that PW-2 Rakesh was unfit for statement on 24.07.2013. There is no cross- examination to the aspect that PW-2 had regained consciousness on 25.07.2013 in the evening at the hospital and the said deposition of PW-2 has remained unrebutted and unimpeached during evidence. Such state of unfitness of body, health and unfit to give statement proves on record that hurt was caused to PW-2 Rakesh while the unwholesome substance was administered to PW-2 by accused person. All the accused person were together. They had together hired the E-rickshaw of PW-2 from Kingsway Camp and they had travelled together till they were caught at Mother Teresa building, outer Ring Road, Majnu ka Tila. Hence Section 34 IPC is found applicable in respect of all the accused in this case who are accused no. 1, 2 and 4. All the accused had sat together and hired E-rickshaw of PW-2. They had participated in administering the drink to PW-2 which was collected SC No. 28215/2016 FIR No. 184/2013 State Vs. Hanif @ Shaukat Page 16 of 29 from the shop after stopping E-rickshaw near Timarpur parking. They came there together. The drink was offered to PW-2 when all the accused person were together. This proves that there was prior plan or meeting of mind between all the accused person to commit the offence under Section 328 IPC upon PW-2. The plan was pre-mediated. Section 34 IPC is applicable even to meet a case where it is difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. Section 34 IPC is applicable even if no injury has been caused by the particular accused himself and it is not necessary to show that some overt act was committed by one of the accused. Hence Section 34 IPC is invoked against the accused person in the present case and they are held liable under this provision of law of Section 328 IPC. The relevant law as laid down in case titled Chaman and Ors. Vs. State of Uttaranchal is reproduced hereasunder:
Chaman and Ors. vs. State of Uttaranchal (01.12.2008 - SC) :
MANU/SC/8334/2008 from Hon'ble Supreme Court of India in Criminal Appeal No. 409 of 2007
6. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances.
In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre- arranged or on the spur of moment; but it must necessarily be before the SC No. 28215/2016 FIR No. 184/2013 State Vs. Hanif @ Shaukat Page 17 of 29 commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab MANU/SC/0089/1976 :
1977CriLJ164 , the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.
7. As it originally stood, Section 34 was in the following terms:
When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone.
8. In 1870, it was amended by the insertion of the words "in furtherance of the common intention of all" after the word "persons" and before the word "each", so as to make the object of Section 34 clear. This position was noted in Mahbub Shah v. Emperor MANU/PR/0013/1945.
9. The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh MANU/SC/0717/1993 : 1993CriLJ2246 , Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.
10. The above position was highlighted recently in Anil Sharma and Ors.
v. State of Jharkhand MANU/SC/0433/2004 : 2004CriLJ2527 ; in Harbans Kaur v. State of Haryana MANU/SC/0170/2005 : 2005CriLJ2199 and Amit Singh Bhikamsingh Thakur v. State of Maharashtra MANU/SC/7004/2007 : 2007CriLJ1168.
11. Hence the prosecution has successfully proved that hurt was caused by accused person on PW-2 by so administering unwholesome substance SC No. 28215/2016 FIR No. 184/2013 State Vs. Hanif @ Shaukat Page 18 of 29 with having common intention to facilitate the commission of offence of hurt on PW-2. Hence all the accused no. 1, 2 and 4 are held guilty and convicted under Section 328 IPC r/w Section 34 IPC.
12. Now it has to be seen that whether the accused person have committed theft of E-rickshaw belonging to complainant/PW-1 which was at that time in possession of PW-2. At about 2:30 PM PW-1 had received call of PW-2 that the passenger had administered some intoxicating substance in a cold drink due to which PW-2 was feeling drowsy. It was also informed to PW-1 by PW-2 that he was coming from Timarpur and he was reaching towards children's home at Majnu ka Tila. PW-2 asked PW-1 to reach opposite Mother Teresa building outer ring road, Majnu ka Tila. It is deposed by PW-2 that he had managed to drive E-rickshaw till Children's home near Mother Teresa building and thereafter he became unconscious. He heard the accused person speaking "Shaukat tum gaadi chalao". Hence as per deposition of PW-2 he had driven vehicle upto Mother Teresa building and then he felt unconscious. PW-1 has deposed that he found 3-4 person in E-rickshaw of his brother and the accused no. 1 Hanif was driving it. His brother was sitting under the influence of intoxicating substance and unconscious. At the time the accused no. 1 Hanif was caught all the person were in E-rickshaw including the PW-2. One of the accused Hanif was driving E-rickshaw and they were coming from the side of Wazirabad. One important fact is to be noted when the accused person had to commit the theft of E-rickshaw then why they continued to keep PW-2 sitting in E- rickshaw only till PW-1 came with police assistance. They could have conveniently get rid off PW-2 and ran away with E-rickshaw. The above fact SC No. 28215/2016 FIR No. 184/2013 State Vs. Hanif @ Shaukat Page 19 of 29 create doubt in the case of the prosecution that the accused person had intended to commit theft of the E-rickshaw.
13. At about 2:30 PM PW-1 had received call of PW-2 on mobile phone on which PW-1 had called at 100 number. PW-1 alongwith HC Ajit/PW-4 reached near Mother Teresa building at about 3:10 PM where they saw E- rickshaw coming from wrong side from the side of Wazirabad driven by accused no. 1. Hence for about 40 minutes the accused person were continue to be available in E-rickshaw with PW-2/victim though the distance between Timarpur to the Juvenile Home if to be covered by a running E-rickshaw is not of more than 20 minutes as the distance between Timarpur and Juvenile Home is about 2.1 km. Hence if the accused person were intending to commit theft then there was no reason with them to spend extra 20 minutes sitting with PW-2 in E-rickshaw. This creates doubt in the case of prosecution that accused person were intending to commit theft of E-rickshaw. Another fact to be noted is that all the accused person were sitting in the E-rickshaw till PW-1 reached with PW-4 at the spot.
14. PW-6 Sh. Pawan Singh, Nodal Officer from Idea Cellular Ltd. had provided CDR of mobile no. 9891785093 to the IO for the period from 23.07.2013 to 24.07.2013 vide CDR Ex.PW6/A. The CAF form with ID proof in the name of PW-2 is Ex.PW6/B and the certificate under Section 65B is Ex.PW6/C. A call was received on the said mobile on 23.07.2013 at about 4:09 PM from mobile no. 9910723674 for a duration of 83 second. Two calls were made from the said mobile 9891785093 to mobile no. 9910723674 on 23.07.2013. One of which was at about 2:36 PM for about SC No. 28215/2016 FIR No. 184/2013 State Vs. Hanif @ Shaukat Page 20 of 29 50 seconds and another was at about 3:20 PM for about 68 seconds. Hence till 3:20 PM the mobile phone had remained with PW-2 from which he had made call to his brother which is contrary to the deposition of PW-4 that at about 3:10 PM they had caught accused no. 1 with E-rickshaw. The CDR Ex.PW6/A is at page no. 81 of the document file which records last call to mobile no. 9910723674 at 4:09 PM. The call details pertains to mobile no. 9891785093. Hence mobile no. 9910723674 was in possession of PW-1 and mobile no. 9891785093 was in possession of PW-2. One call at mobile number of PW-1 was made at 2:36 PM and another call was made at 3:20 PM. The call at 4:09 PM was for about 83 seconds. Whereas as per claim of the prosecution the mobile phone was already snatched from PW-2 by the accused before their apprehension or when the remaining accused ran away from the spot at 3:10 PM. Hence if the mobile phone was already snatched away at 3:10 PM then there was no reason of PW-1 having a talk from his mobile phone on the mobile phone of PW-2 for 80 seconds at 4:09 PM. Hence it shows that the mobile phone was in possession of PW-2 only when the accused person were arrested at 3:10 PM and PW-2 continue to had talk with PW-1 even at 4:09 PM which is so in absence of explanation from PW- 2 regarding such talk of 80 second at 4:09 PM at the mobile phone of PW-2. Hence this creates doubt in the case of the prosecution that mobile phone was snatched away or stolen by the accused person from PW-2.
15. The last article which prosecution has alleged which is stolen from PW-2 by the accused person is a sum of Rs.600/-. According to PW-2 the said money was lying in his pocket. However the denomination of such money was not disclosed by PW-2 in his entire evidence nor this money SC No. 28215/2016 FIR No. 184/2013 State Vs. Hanif @ Shaukat Page 21 of 29 was recovered during investigation. It is not disclosed by PW-2 that which of the accused had taken that money from his pocket and which of the accused has snatched away mobile phone from PW-2. PW-2 does not know mobile number of his brother to whom he had made call regarding the incident. As per PW-2 after making call to his brother the accused person has snatched his mobile phone which is found inconsistent with the deposition of PW-6. PW-2 does not have bill/receipt of mobile phone to prove ownership of mobile phone with him. Hence above fact creates doubt in the case of prosecution that the accused person has snatched the mobile phone from the possession of PW-2.
16. PW-2 has deposed that he has no registration number of E-rickshaw which he had purchased in the year 2013 as the registration of E-rickshaw had started in the year 2016 onwards. There is no serial number of E- rickshaw. PW-1 has deposed on 21.08.2015 that he had taken the E- rickshaw on superdari claiming that he is owner of E-rickshaw which he could not produced for the reason that it had already been stolen. The photograph of E-rickshaw are Ex.P-1 on record. In the superdari order dated 30.07.2013 the ld. MM has mentioned the serial number of E- rickshaw. Hence the PW-2 has claimed ownership of E-rickshaw. The superdarinama is furnished by PW-2. Hence both PW-1 and PW-2 are claiming ownership of E-rickshaw and deposing contradictory on record regarding taking of E-rickshaw on superdari and furnishing of photographs.
17. The site plan is at page no. 29 of the case file which is Ex.PW1/E which was prepared at the instance of PW-1, point A is the place where the SC No. 28215/2016 FIR No. 184/2013 State Vs. Hanif @ Shaukat Page 22 of 29 E-rickshaw was seized by the police from the accused person which is in front of Mother Teresa building at the corner. PW-2 in his examination-in- chief dated 21.08.2015 at page 1 has deposed that he drove E-rickshaw till Children's home near Mother Teresa building when he became unconscious. Whereas PW-1 in his examination-in-chief dated 28.08.2014 at first page has deposed that 3-4 person were in E-rickshaw of his brother who were driving the E-rickshaw from the side of Wazirabad and they were found E-rickshaw so driven when they reached in front of Mother Teresa building, Majnu ka Tila. When PW-2 had already reached in front of Mother Teresa building driving E-rickshaw himself then it cannot be said that PW-1 could have seen the accused no. 1 Hanif driving E-rickshaw in front of Mother Teresa building only. Hence the E-rickshaw has not moved anywhere from the place upto where PW-2 has driven it. Therefore it cannot be said that the accused person had moved the E-rickshaw away in a direction for the purpose of stealing the E-rickshaw. Hence the above contradictory deposition of PW-1 and PW-2 creates doubt in the case of the prosecution that the accused person were driving the E-rickshaw or that they had stolen the E-rickshaw or that they had made an attempt to steal the E-rickshaw or that they had intention to steal E-rickshaw or to facilitate commission of offence.
18. The necessary ingredients regarding offence of theft are laid down u/Sec. 378 IPC and its punishment is prescribed under Section 379 IPC.
Section 378 IPC states that "Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft." The punishment is detailed under section SC No. 28215/2016 FIR No. 184/2013 State Vs. Hanif @ Shaukat Page 23 of 29 379 IPC. Following are the necessary ingredients to be satisfied beyond reasonable doubt before an accused is held guilty:
(a) The accused removed the movable property;
(b) He removed it out of the possession of another person without his consent; and
(c) He did so with a dishonest intention.
19. Since the facts discussed above are equally applicable to the facts and law applicable under Section 379 IPC therefore they are not repeated herein for the sake of brevity. It is already held above that prosecution has failed to prove that accused person had removed the movable property in possession of PW-1 and PW-2 which are E-rickshaw, mobile phone and sum of money Rs.600/-. The dishonest intention is also found absent as discussed above with the accused person. It is held that the prosecution has failed to prove the offence under Section 378/379 IPC. In such view of the matter accused no. 1, 2 and 4 are acquitted for the offence under Section 378/379 IPC.
20. The prosecution has also charged the accused no. 1 under Section 411 IPC. The necessary ingredients of which are detailed in the citation titled as Shiv Kumar vs. The State of Madhya Pradesh Criminal Appeal No.153 of 2022.
13. Section 411 IPC:
"411. Dishonestly receiving stolen property.- 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."
The penal Section extracted above can be broken down into four segments SC No. 28215/2016 FIR No. 184/2013 State Vs. Hanif @ Shaukat Page 24 of 29 namely: Whoever, I. Dishonestly; II. Receives or retains any stolen property; III. Knowing; or IV. 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.
14. "Dishonestly" is defined under Section 24 of the IPC as, "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly". The key ingredient for a crime is, of course, Mens Rea. This was nicely explained by Justice K. Subba Rao in the case of Dr. Vimla v. Delhi Administration4 in the following paragraphs: -
"9A. A Full Bench of the Madras High Court, in Kotamraju Venkatraadu v. Emperor [(1905)ILR 28 Mad 90, 96, 97] had to consider the case of a person obtaining admission to the matriculation examination of the Madras University as a private candidate producing to the Registrar a certificate purporting to have been signed by the headmaster of a recognized High School that he was of good character and had attained his 20th year. It was found in that case that the candidate had fabricated the signature of the headmaster. The court held that the accused was guilty of forgery. White, C.J., observed:
"Intending to defraud means, of course, something more than deceiving."
He illustrated this by the following example:
"A tells B a lie and B believes him. B is deceived but it does not follow that A intended to defraud B. But, as it seams to me, if A tells B a lie intending that B should do something which A conceives to be to his own benefit or advantage, and which, if done, would be to the loss or detriment of B, A intends to defraud B." The learned Chief Justice indicated his line of thought, which has some bearing on the question now raised, by the following observations:
"I may observe, however, in this connection that by Section 24 of the Code person does a thing dishonestly who does it with the intention of causing wrongful gain or wrongful loss. It is not necessary that there should be an intention to cause both. On the analogy of this definition, it might be said that either an intention to secure a benefit or advantage on the one hand, or to cause loss or detriment on the other, by means of deceit is an intent to defraud."
But, he found in that case that both the elements were present. Benson, J. pointed out at p. 114:
"I am of opinion that the act was fraudulent not merely by reason of the advantage which the accused intended to secure for himself by means of his deceit, but also by reason of the injury which must necessarily result to SC No. 28215/2016 FIR No. 184/2013 State Vs. Hanif @ Shaukat Page 25 of 29 the University, and through it to the public from such acts if unrepressed. The University is injured, if through the evasion of its bye-laws, it is induced to declare that certain persons have fulfilled the conditions prescribed for Matriculation and are entitled to the benefits of Matriculation, when in fact, they have not fulfilled those conditions for the value of its examinations is depreciated in the eyes of the public if it is found that the certificate of the University that they have passed its examinations is no longer a guarantee that they have in truth fulfilled the conditions on which alone the University professes to certify them as passed, and to admit them to the benefits of Matriculation."
Boddam, J., agreed with the learned Chief Justice and Benson, J. This decision accepts the principle laid down by Stephen, namely, that the intention to defraud is made up of two elements, first an intention to deceive and second the intention to expose some person either to actual injury or risk of possible injury; but the learned Judges were also inclined to hold on the analogy of the definition of "dishonestly" in Section 24 of the Code that intention to secure a benefit or advantage to the deceiver satisfies the second condition."
15. To establish that a person is dealing with stolen property, the "believe" factor of the person is of stellar import. For successful prosecution, it is not enough to prove that the accused was either negligent or that he had a cause to think that the property was stolen, or that he failed to make enough inquiries to comprehend the nature of the goods procured by him. The initial possession of the goods in question may not be illegal but retaining those with the knowledge that it was stolen property, makes it culpable.
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21. In Trimbak vs. State of Madhya Pradesh5, this Court discussed the essential ingredients for conviction under Section 411 of the IPC. Justice Mehr Chand Mahajan, in his erudite opinion rightly observed that in order to bring home the guilt under Section 411 IPC, the prosecution must prove, "5. (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. ..."
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23. That apart, the disclosure statement of one accused cannot be SC No. 28215/2016 FIR No. 184/2013 State Vs. Hanif @ Shaukat Page 26 of 29 accepted as a proof of the appellant having knowledge of utensils being stolen goods. The prosecution has also failed to establish any basis for the appellant to believe that the utensils seized from him were stolen articles. The factum of selling utensils at a lower price cannot, by itself, lead to the conclusion that the appellant was aware of the theft of those articles. The essential ingredient of mens Rea is clearly not established for the charge under Section 411 of IPC. The Prosecution's evidence on this aspect, as they would speak of the character Gratiano in Merchant of Venice, can be appropriately described as, "you speak an infinite deal of nothing."6
24. In a case like this, where the fundamental evidence is not available and the law leans in appellant's favour, notwithstanding the concurrent finding, the Court has to exercise corrective jurisdiction as the circumstances justify. As such, taking a cue from Haryana State Industrial Development Corporation vs. Cork Manufacturing Co7., the exercise of extraordinary jurisdiction under Article 136 is found to be merited to do justice to the appellant who was held to be guilty, without the requisite evidence to establish his mens rea in the crime.
21. Since the facts discussed above are equally held applicable to the facts and law applicable under Section 411 IPC therefore they are not repeated herein for the sake of brevity. It is already held above that prosecution has failed to prove that accused person had removed the movable property from possession of PW-1 and PW-2 which are E- rickshaw, mobile phone and sum of money Rs.600/-. The dishonest intention is also found absent as discussed above with the accused person. The mobile phone is not recovered nor any money was recovered from the accused person. It is not proved that which of the accused has removed the said mobile phone or of what denomination were the currency notes. The ownership of mobile phone is also not proved on record even after the arrest of the accused. The conversation between PW-1 and PW-2 on mobile phone has come on record which is allegedly stolen by the accused person. The E-rickshaw was found only at the place upto where it was lastly driven by PW-2. Hence it was not moved anywhere. PW-1 and PW-2 have claimed ownership of E-rickshaw against each other. Hence the case of the SC No. 28215/2016 FIR No. 184/2013 State Vs. Hanif @ Shaukat Page 27 of 29 prosecution is rendered with inherent improbability and inconsistencies. It is held that the prosecution has failed to prove the offence under Section 411 IPC. In such view of the matter accused no. 1 Hanif @ Shaukat is acquitted for the offence under Section 411 IPC.
22. The accused has relied on citation titled Takarappa @ Takappa Pujar Vs. Special Police of Excise Enforcement in Criminal Petition No. 11587 of 2011 dated 16.02.2012. The said citation is perused. The facts of the said case are different as in the said case it was found that even according to the case of the prosecution the alleged substance carried by the petitioner in that case was intercepted on the way. Therefore it was held in the said case that the petitioner has not administered the said substance to anyone nor he has cause any person to consume or take the said substance. The necessary intention to cause hurt was found absent. In the said case the certificate issued by the chemical examiner did not state that the alcohol to the extent of 17.59% V/V was poisonous or stupefying or intoxicating or unwholesome drug on which ground the accused was discharged. However in the present case the prosecution has successfully proved that accused has administered the intoxicating substance to the victim while mixing in a cold drink. It was also proved that the substance was intoxicating or unwholesome due to which the victim had remained hospitalized for about two days and remained unfit for statement. Hence it is held that the citation relied upon by the accused person is not applicable to the facts and circumstances of the case.
23. In view of above discussion, it is held that prosecution has successfully proved the necessary ingredients laid down under Section SC No. 28215/2016 FIR No. 184/2013 State Vs. Hanif @ Shaukat Page 28 of 29 328/34 IPC. Hence accused no. 1 Hanif @ Shaukat, accused no. 2 Anil Sharma, accused no. 4 Dheeraj @ Manoj are held guilty and convicted under Section 328 r/w Section 34 IPC. Further, accused no. 1 stands acquitted for the offence under Section 411 IPC and accused no. 1, 2 and 4 stands acquitted for the offence under Section 378/379 IPC.
Put up for arguments on the point of sentence on 02.06.2025.
Announced in the open Court JOGINDER Digitally
JOGINDER
signed by
on 19.05.2025. PRAKASH PRAKASH NAHAR
Date: 2025.05.19
NAHAR 15:10:09 +0530
(JOGINDER PRAKASH NAHAR)
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL/TIS HAZARI COURT
DELHI
SC No. 28215/2016
FIR No. 184/2013
State Vs. Hanif @ Shaukat Page 29 of 29