Delhi District Court
This Judgment Shall Dispose Of The Case ... vs Nitish Kumar & Ors.' Against The Accused ... on 13 January, 2010
IN THE COURT OF SH. SATINDER KUMAR GAUTAM, ADDITIONAL SESSIONS JUDGE (WEST-04), DELHI SC No. : 115/1/08 State Versus Nitish Kumar S/o Niranjan Rai R/o 1675/I, Gali No.I Govindpuri, Kalkaji, New Delhi. Sudama S/o Inderjeet R/o Jhuggi No.C-221 Bhumiheen Camp DDA Flats, Kalkaji, New Delhi. Gama S/o Kamal Ram R/o Flat No.73/B, Pocket A-3 DDA Flats, Kalkaji, New Delhi. P.O. on 16.06.2005. Case arising out of FIR No. : 171/03 U/s : 328/379/411/34 IPC P.S. : Sadar Bazar Date of FIR : 12.06.2003 Date of Institution : 13.08.2003 Date of Final Arguments : 07.01.2010 Judgment reserved on : 11.01.2010 Date of judgment : 13.01.2010 JUDGMENT
This judgment shall dispose of the case arising out of the FIR No.171/03, PS Sadar Bazar, U/s 328/379/411/34 IPC titled as 'State Vs Nitish Kumar & Ors.' against the accused Nitish Kumar and Sudama. The accused Gama is declared proclaimed offender on 16.06.2005.
The brief facts of the prosecution case are that on 01.05.2003 driver Dharambir Singh Meena loaded his truck no. MP074-0857 with goods and left for Delhi alongwith cleaner Beeru (aged about 14-15 years). On 02.05.2003 at Delhi-Mathura road near Ballabhgarh he alongwith cleaner stopped to take rest whereas accused Vicky, Vijay and Gama befriended with him and requested to leave them at Kashmere Gate. Since, the entry of heavy vehicles is barred during the day time, they started about 08:00 PM in the night alongwith the said accused. About 11:30 PM, the truck reached at Idgah Road, Sadar Bazar and the accused offered him and the cleaner an 'omlette' brought from a nearby vendor. Both the driver and the cleaner lost consciousness after consuming the same and the goods in the truck was removed by the accused persons. The empty truck alongwith driver and cleaner in unconsciousness state was found on 04.05.2003 at Sanjay Gandhi Transport Nagar. On 15.06.2003 accused Nitish Kumar was caught hold on the basis of secret information while attempting to sell the stolen raxine which was identified by PW Sh. Ajay Kumar. Accused Nitish Kumar further disclosed that the goods were delivered and kept in his house at Bogalpuri, Kalkaji by accused Vicky, Vijay, Gama, Sudhir and Sudama. 229 roles of PVC/Raxine roles were got recovered at the instance of accused Nitish Kumar. Accused Sudama and Gama were arrested on 15.06.2003 at the instance of accused Nitish Kumar. 60 roles of PVC were further recovered at the instance of accused Sudama. Accused Vicky, Vijay and Sudhir could not arrested. The challan was filed after investigation against the accused Nitish Kumar, Sudama and Gama.
The accused Nitish Kumar S/o Niranjan Rai was charged for the offence u/s 411 IPC for the allegations that on 15.06.2003 at House No. 1675/A, Gali No.1, Govind Puri Extn., Kalkaji, Delhi, he dishonestly received or retained 229 rolls of of raxine, stolen property belonging to Marwall Vinlays Ltd., Delhi, which were stolen from truck no. MP-07G 0857 on the intervening night of 02/03.05.2003 knowing or having reason to believe that such property was stolen property and committed an offence punishable u/s 411 IPC. Accused Sudama also charged for the allegations that on 15.06.2003 at H.No. D-4, Gali No.1, in front of Central Bank, New SeelamPur, Delhi, he got recovered 60 rolls of raxine and committed an offence punishable u/s 411 IPC.
Accused Sudama and Gama were facing charges for the offence u/s 379/328/120 B IPC on the allegations that on 02.05.2003, accused Sudama and Gama alongwith co-accused Vicky, Vijay and Sudhir agreed to administer poison, stupefying, intoxicating drugs to the driver and cleaner of truck no. MP-07G-0857 with intention to commit theft of 605 raxine rolls belonging to Marwal Vinlays Ltd., Delhi. For the aforesaid purpose accused Gama along with Vicky and Vijay boarded the truck no. MP-07G 0857 on the intervening night of 02/03.05.2003 at Punchvati Dhaba, Kela Village, Ballab Garh, Haryana and Sudhir and Sudama followed the truck and all the above said accused committed the offence punishable u/s 120 B IPC. On the same date at about 11:30 PM at Idgah Road, Sadar Bazar, Delhi in pursuance of criminal conspiracy administered poison or stupefying or intoxicating drug to driver Dharam Singh Meena and cleaner Beeru after mixing the same in Omlette and with intention to commit theft of goods from the above said truck and thereby committed an offence u/s 328 read with 120 B IPC and they also committed theft of 605 rolls of raxine by dishonestly taking out of the possession of the driver and cleaner of truck no. MP-07G 0857 without their consent and moved it in order to such taking and thereby committed an offence punishable u/s 379 read with 120B IPC. The accused persons did not plead guilty and wanted to contest the case as per the charges framed on 08.03.2004.
During the course of trial, the accused Gama was declared proclaimed offender vide order dt. 16.06.2005.
In order to establish the case against the accused, the prosecution examined 12 witnesses including PW-2 Parveen Singh, PW-3 Faimuddin, PW-4 Kuwar Pal, PW-5 Dharam Singh and PW-11 Veeru. After completion of the prosecution evidence the statement of accused Sudama and Nitish were recorded. Both the accused persons denied the prosecution evidence with the contentions that they are innocent and falsely implicated in the present case and they do not want to lead any defence evidence.
I have heard the submissions of Ld. APP for state and Ld. Counsel for the accused and also carefully gone through the material placed on record.
Ld. APP for state submitted while arguing finally that the prosecution case is established against the accused persons beyond all reasonable doubts. The testimony of prosecution witnesses completed the chain of evidence as per the deposition of the eye witnesses and the circumstantial evidence and also proved the guilt of the accused persons beyond all reasonable doubts. Ld. prosecutor for state further submitted that the accused persons hatched a conspiracy for committing the crime with each other. The testimony of all the prosecution witnesses is trustworthy, believable and reliable. There is no iota of evidence to disbelieve the oral and documentary evidence placed on record. The accused persons have not led any defence evidence to disprove the allegations of the prosecution except to simple denial of the prosecution story and deposition of the prosecution witnesses. Under these circumstances, the accused persons are liable to be convicted.
Ld. Counsel for the accused Nitish submitted that the accused is facing the charge for the offence u/s 411 IPC. PWs Parveen Singh and Veeru are hostile and did not support the case of the prosecution and did not identify the accused persons and the case property as shown to him. PW-2 Parveen Singh in his examination has stated that "....Today I cannot identify those boys who were living in the said room. I do not know the residential addresses of the native places of those boys. About 6-7 months ago police had reached the first floor and arrested one or two boys out of four boys. I cannot tell how many boys out of four had been arrested. I cannot identify the raxine rolls if shown to me."
Ld. Counsel for the accused further submitted that PW-3 Faimmuddin identified the raxine rolls and stated that he has purchased the same from accused Sudama and Gama and he did not name the accused Nitish Kumar since being stated that accused Nitish Kumar was sitting inside the police vehicle. PW-4 Kuwar Pal and PW-5 Dharam Singh are not connected the accused Nitish Kumar to the case property. PW-6 Ajay Kumar who brought the 229 rolls of raxine which were got recovered from the accused Nitish Kumar was deferred and he did not recall for his further examination. As such his testimony does not go against the accused Nitish Kumar. PW-7 Ct. Dinesh Kumar and PW-8 HC Ramesh Singh are police officials and witness of recovery. However, these witnesses are not the witnesses of facts and stolen articles any evidence if the accused Nitish Kumar was present in the premises in question where the alleged recovery has taken place but no public witness joined at the time of home search or recovery or arrest of the accused Nitish Kumar. PW-10 SI Saket Kumar in his cross examination stated that he cannot tell the address of the shop of Ravi Sehgal. No public witnesses was joined by the IO at the time of recovery of 12 pieces of raxine from accused Nitish Kumar. Under these circumstances, no ingredients of section 411 IPC is being fulfilled and the accused Nitish Kumar is liable to be acquitted.
Ld. Counsel for the accused Sudama submitted that for the purpose of attracting the charges u/s 328 IPC, there is no medical report of the PW-5 Dharam Singh and Veeru which revealed that there was any stupefying or poison administered nor any incriminating article was recovered from the accused Sudama. PW Veeru is hostile and did not identify the accused Sudama due to lapse of time. He even though cannot say whether the accused persons are the same same persons who gave the omlette. PW-5 Dhraram Singh identified the accused Gama at Tihar Jail initially and named the accused Sudama. However, later on rectified and again stated that he identified the accused Gama. There is no public witness joined at the time of arrest of the accused persons or recovery of raxine rolls. PW-7 Ct. Dinesh Kumar and PW-8 HC Ramesh Singh gave a different and contradictory story as such their testimony is not believable and create a dint. Ld. Counsel for the accused Sudama further submitted that accused Nitish was arrested initially and on his disclosure, accused Sudama was arrested. 60 rolls of raxine alleged were got recovered from the possession of the PW-3 Faimuddin at the instance of accused Sudama. The prosecution did not make as an accused to PW-3 Faimuddin as the recovery stolen of 60 raxine rolls was effected from his possession as selling and buying of stolen article is an offence. PW-3 Faimuddin had stated that he is doing the business of readymade garments, whereas the raxine which he has alleged to purchase from accused is not the readymade garments. PW-3 deposed in his cross examination that he is having a Kabari Shop but neither in his statement u/s 161 Cr.P.C. nor his examination in chief has any iota of evidence of Kabari Shop being run by him. PW-3 Faimuddin has deposed in his examination in chief that accused Sudama, Gama and Nitish came with samples of Raxine and he purchased 60 @ Rs.800/- per roll and he paid Rs.48,000/- to those three persons and after receiving the amount they handed over him 60 rolls, whereas, in his statement u/s 161 Cr.P.C. he has stated to the police that Sudama and one other person accompanying him came to his building to sell the raxine. In his examination in chief on 22.04.2004 PW-3 stated that Sudama, Gama and Nitish reached his shop to sell the Raxine and his further examination in chief recorded on 25.08.2005, where he stated that he purchased Raxine from Sudama and Gama. Ld. Counsel for the accused further stated that the version of PW-3 Faimuddin regarding the recovery of 60 Raxine rolls is also contradictory as he stated to the police that the 60 rolls were recovered from his shop, whereas in his cross examination he stated that the Raxine rolls were recovered from his godown. There is contradiction in the version of prosecution witnesses regarding the arrest of the accused. The PW-7 Ct. Dinesh Kumar stated in his cross examination that at the time of arrest, accused Sudama, 2-3 persons were present at his Jhuggi whereas, PW-8 HC Ramesh Singh stated in his cross examination that no one was present inside the jhuggi except accused Sudama. The very fact puts doubt on the arrest of accused Sudama.
Ld. Counsel for the accused further stated that the prosecution utterly failed to come out with any evidence to support the section 328 IPC. There is no evidence with regard to the medical examination of PW-5 driver Dharam Singh and PW-11 cleaner Veeru in support of administered poison or stupefying or intoxicated drugs by the accused persons. There is also no recovery of the remnants of omlette or any other intoxicating material from the spot nor any intoxicating substance was recovered from the possession of accused Sudama. PW-11 Veeru admitted that he could not identify the accused Sudama who has taken lift in the truck on the day of incident. The very fact does not support the version of the prosecution regarding the presence of the accused in the truck. Under these circumstances, the accused Sudama is also liable to be acquitted.
In view of the submissions, the deposition of the prosecution witnesses, material placed on record and the facts and circumstances of the case, the charge was framed against the accused Sudama and Gama for the offence u/s 328 IPC read with section 120 B IPC and 379 IPC read with 120 B IPC. The charge u/s 411 IPC was framed against the accused Nitish Kumar and Sudama.
PW-2 Praveen Kumar did not support the case of the prosecution and resiled from this statement by stating that "...Today I cannot identify those boys who were living in the said room. I do not know the residential addresses of the native places of those boys. About 6-7 months ago, police had reached the first floor and arrested one or two boys out of four boys. I cannot tell how many boys out of four had been arrested. I cannot identify the raxine rolls if shown to me." He also confronted from his statement Ex.PW2/A. Even in the cross examination of the Ld. APP for state it is denied that he is deposing falsely as he has been won over by accused Nitish.
PW-3 Faimuddin purchased 60 raxine rolls from the accused Sudama, Gama and Nitish and paid the due amount if Rs.48,000/- to the accused persons and the said rolls were recovered from his godown on the instance of accused persons. He has also identified the raxine roll Ex.P which is shown to him for identification whether it was the same which was sold to him by the accused persons. He further testified that on 15/16.06.2003, police officials had come to his shop in the evening time alongwith three accused persons when police took 60 rolls from his shop at that time only two persons namely Gama and Sudama had come at his shop alongwith police officials to take back 60 rolls at that time. Accused Nitish was inside the police vehicle. In the cross examination, it is denied that accused persons did not come to his shop or he did not purchase the 60 raxine rolls on 01.06.2003 against bill Ex.PW3/B for Rs.48,000/-. It is also denied that he has not been dealing in purchasing the raxine rolls etc. It is also denied that the accused Sudama has been falsely implicated in the present case.
PW-5 Dharam Singh truck driver who stated that three persons sat in his truck, saying that they have to go to Idgah near Sadar Bazar, Delhi. They brought two plates of omlette when they reached at Idgah, Sadar Bazar, which he and his cleaner have taken. After taking the same, after two minutes they became unconscious and regained consciousness at about 10:00 AM. His clothes were not there nor cleaner or the truck. The truck was found in a Nala at Sanjay Gandhi Transport Nagar, but the goods loaded therein was not in the said tuck at that time. In the cross examination it is denied that he was not aware of the names of the accused persons on the day of occurrence. He had seen the accused Gama at Tihar in judicial TIP and he had seen the accused Sudama on the day of occurrence and thereafter before the court when he was called for evidence. It is denied that he is deposing falsely at the instance of police or that he is disclosing the name of accused Sudama at the instance of police. It is also denied that the truck was not loaded in his presence. It is also denied that he had not eaten any omlette.
PW-6 Ajay Kumar joined the investigation alongwith SI Saket Kumar and gone to Sanjay Gandhi Transport Nagar. His statement was recorded by the IO. Cleaner Veeru was also present there. They reached at Singhara Chowk, Jhandewalan Chowk, where accused Nitish met them. He was having a plastic polythene in his right hand, which was checked by the IO and the said polythene contained 10 to 12 cutting of raxine rolls. He had identified the said 12 cutting rolls on the basis of embossing and told the IO that the same belongs to his company. The accused was interrogated and his disclosure statement was also recorded by the IO. The accused Nitish had disclosed that he alongwith co-accused Sudama, Vicky and Gama after administering the poisonous substance in omlette and give the same to the truck driver and they had looted the raxine rolls and he could get recovered the same. Thereafter, the accused Nitish got recovered 229 raxine rolls from Govind Puri at his house at First Floor from one room. Later on, 60 raxine rolls were got recovered on the instance of accused Sudama from the residence of one Faimuddin at Seelampur. In the cross examination, he denied the suggestions that the accused Nitish was lifted from his house and have been falsely implicated in the present case. There is no cross examination of PW-6 Ajay Kumar on behalf of accused Sudama.
PW-7 Ct. Dinesh Kumar & PW-8 HC Ramesh Singh are also witnesses of investigation and proved the investigation and recovery of raxine rolls from the possession of accused Nitish and Sudama. SI Rakeh Kumar proved the documents prepared during the course of investigation and also stated in the similar manner with regard to the arrest of accused and recovery of the case property from the possession of the accused Nitish and Sudama. PW-11 Veeru is the cleaner who also corroborated the testimony of PW-5 Dharam Singh and to the extent of given the stupefying omlette.
For the purpose of attracting the ingredients of section 328 IPC, the prosecution must prove :
(i) that the substance in question is a poison, or any stupefying, intoxicating, or unwholesome drug etc.
(ii) that the accused administered the substance to the complainant or caused the complainant to take such substance.
(iii) that he did as above with intent to cause hurt or knowing it to be likely that he would thereby cause hurt or that the accused intended to commit or facilitate the commission of an offence.
Every evidentiary circumstance is a probative link, strong or weak and must be made out with certainty. Link after link forged firmly by credible testimony may form a strong chain of sure guilt binding the accused. Each link taken separately may just suggest but when hooked on to the next and on again may manacle the accused inescapably. Only then a concatenation of incriminating facts suffice to convict a man. Short of that is unsufficient. The rule of benefit of reasonable doubt does not imply a frail willow bending to every whiff of hesitancy. Judges are made of sterner stuff and must take a practical view of legitimate inferences flowing from evidence, circumstantial or direct.
The language of the section clearly shows that the act of administering any stupefying, intoxicating or unwholesome drug or any other thing with the intention to cause hurt to a person or with the intention to commit or to facilitate commission of an offence or knowing it to be likely that hurt would be caused, will also fall within the mischief of this section. At the same time to constitute administering, it is not necessary that the poison should be delivered by the hand of the party. If a servant puts poison into a coffee-pot and the mistress drinks the poisoned coffee, this will amount to 'administering' poison. Where the accused, a compounder, in a hospital, bore a grudge towards a senior doctor, and then he was requested to bring aspirin, he brought two packs to the doctor,of which one contained strychnine pills and the other aspirin and the doctor having consumed the strychnine pills became sick immediately, it was held that the appellant was clearly guilty under section 328 IPC. This view was observed in case titled as Dharam Das Wadhwani AIR 1975 SC 241: 1974 Cri LJ 1249 (SC), 1974 SCC (Cri) 429.
In another case titled as Dale (1852) 6 Cox 14, it was observed that putting poison in a place where it is likely to be found and taken is an attempt to administer the poison. Where the accused purchased some "salts of sorrel" and put it in the complainant's sugar-basin, mixing it with the sugar and the complainant put some of the mixture into his tea but on tasting it, discovered that there was something wrong and on investigation poison was discovered, it was held that this constituted an attempt to administer a poison.
In case titled as E.K. Chandrasenan Vs State of Kerala AIR 1995 SC 1066, (1995) 2 SCC 99, 1995 SCC (Cri) 329, it was observed that the accused liquor to be adulterated with methyl alcohol, a poisonous substance and as a result of consumption of such poisonous liquor 70 persons died, 24 persons lost eye sight permanently and others received minor injuries. Apart from committing the offence of voluntarily causing grievous hurt punishable u/s 326 IPC, they are guilty of offence punishable under section 328 IPC.
The PW-5 Dharam Singh in his deposition has categorically deposed the names of three accused persons who have brought the stupefying omllette which was consumed by the driver Dharam Singh and cleaner Veeru resulted which they lost their consciousness and the goods lying in the truck were stolen by the accused persons. The deposition of PW-5 Dharam Singh is also supported with the statement of PW-4 Kuwar Pal. The driver Dharam Singh and cleaner Veeru were neither medically examined nor any stupefying substance was got recovered on the instance of the accused Sudama. The remnants of the omllette or any contents were not taken into possession nor got recovered on the instance of the driver Dharam Singh and cleaner Veeru. PW-4 Kuwar Pal also not alleged that the driver or cleaner had taken some intoxicated substance or the accused persons have adulterated the said substance in the omllette. PW-5 Dharam Singh in cross examination on behalf of accused Sudama stated that he had seen the accused Gama in Tihar Jail at the time of judicial TIP and had seen the accused Sudama on the day of occurrence and thereafter before the court when he was called for evidence. He did not give any description of the accused Sudama in his statement u/s 161 Cr.P.C. nor any judicial TIP was conducted. The accused Sudama was arrested on 15.06.2003. However, the alleged incident took place on 02.05.2003. There is a sufficient delay between the incident and the apprehension of the accused Sudama nor any supplementary statement with respect to the identification of the accused Sudama in the PS was recorded. Therefore, the link for which formula of credibility may not form the strong chain of sure guilt of the accused Sudama for the offence u/s 328 or 120 B IPC.
As regarding to the offence u/s 411/34 IPC, PW-3 Faimmuddin categorically stated in his examination that accused Sudama, Gama and Nitish reached his shop with sample of raxine with purpose to sell the raxine. He had purchased 60 rolls @ Rs.800/- per roll and he had paid Rs.48,000/- to the accused persons. Raxine rolls and bill were taken into possession vide memo Ex.PW3/A. PW-3 Faimmuddin identified the accused persons as the same persons who have sold the raxine rolls to PW-3. The raxine rolls were also identified by PW-3 which is Ex.P1. PW-5 Dharam Singh and PW-6 Ajay Kumar also corroborated the statement of PW-3 Faimmuddin.
There are minor contradictions here and there in the testimony of the prosecution witnesses but the same do not go to the root of the case and do not hamper the case of the prosecution. The minor discrepancies in the evidence of the eye witnesses are immaterial unless they demolished the basic case of the prosecution. Therefore, the contradictions before the court in the statement u/s 161 Cr.P.C. are not sufficient to discard the evidence of the prosecution witnesses. Even some improvements and exaggerations or some minor discrepancies do not hurt the prosecution case. This view has been observed in catena of judgments, Pandappa Vs State (1997) 10 SCC 197: 1997 Cr LJ 2493, Sashidhar Singh Vs State 1998 Cr LJ 2676 (MP), Meharban Singh Vs State (1996) 10 SCC 615, Hardev Singh Vs Harbhej Singh (1997) 1 SCC 80, 1997 SCC (Cri) 5.
Under section 114 of the Evidence Act, if there is other evidence to connect the accused with the crime itself, however small, the finding of stolen property with him is a piece of evidence against him. In such a case presumption under section 114 (a) of the Evidence Act cannot be invoked. It is only when the accused cannot be convicted with the crime with the other evidence, then the presumption of section 114 (a) of the Evidence is attracted. In case titled as Gulab Singh Vs State of U.P. 1994 SCC (Cri) 1783, it is observed that when the ring of the deceased was recovered from the accused about eight days of the murder, the accused can be convicted u/s 411 IPC when he failed to explain lawful possession as presumption u/s 114 (a) is attracted.
In the present case, the recovery of the raxine rolls on the instance of the accused connects the accused persons for attracting the ingredients of section 411 IPC. The presumption u/s 114 (a) can be raised to prove that the accused was having possession of stolen property and got recovered on their instance.
The accused persons made a confessional statement and on the basis of confessional statement, the article looted from the truck had not been recovered. The evidence of the recovery is firm, creditable and corroborated. The statement of the accused was to the effect that he had abandoned weapon of offence near the place of occurrence and recovery of such weapon was made on the basis of his statement. The evidence that the accused led the police party and pointed out a place from where incriminating article was recovered, is admissible u/s 8 of the Indian Evidence Act, this view is observed in case titled as Prakash Chand Vs State AIR 1979 SC 400.
In the present case, the articles of crime i.e. case property has been duly proved by its owner against its title as well as the receipts were also proved by the buyer PW-3 Faimmuddin. In view of the facts and circumstances of the case, I came to the definite conclusion that the prosecution has succeeded in proving the case against the accused Nitish and Sudama for the offence u/s 411/34 IPC as the testimony of prosecution witnesses are cogent, firm, believable, trustworthy and corroborated. The testimony of all the prosecution witnesses inspire confidence to prove the guilt of the accused Nitish and Sudama for the offence u/s 411 IPC. However, the evidence to prove the guilt of the accused persons for the offence u/s 328/379/120B IPC is insufficient, there is no direct corroboration and ocular evidence with respect to proving the ingredients of section 328/120B IPC. Therefore, the accused Sudama S/o Inderjeet and Nitish Kumar S/o Niranjan Rao are hereby convicted for the offence u/s 411 IPC.
Dictated & Announced (SATINDER KUMAR GAUTAM) in the open court today ADDITIONAL SESSIONS JUDGE i.e. on 13.01.2010 (WEST-04):DELHI