Delhi District Court
State vs . Phoolmani Topno on 18 September, 2013
State Vs. Phoolmani Topno
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 54/13
ID No. : 02401R0501592012
FIR No. 130/12
PS : Rajinder Nagar
U/s: 381/328/411 IPC
State
Versus
Phoolmani Topno
D/o Johan Topno
R/o H. No. 129, Hapu, PS-Kamdara
District- Gumla
Jharkhand
.........Accused
Date of Institution : 19.10.2012
Date of Committal : 06.12.2012
Date of judgment reserved on : 09.09.2013
Date of judgment : 16.09.2013
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Ms. Chitramal, Advocate from Legal Aid for accused.
SC No. 54/13 Page 1 of 12
State Vs. Phoolmani Topno
J U D G M E N T (ORAL) :-
1. Briefly stated facts of prosecution case are that on August 23, 2012, complainant Pankaj Sharma visited police station Rajinder Nagar and got recorded his statement Ex.PW1/A to S.I. Gautam Malik alleging that his daughter Kaya Sharma aged about 3 years was looking drowsy since morning and her condition became serious since 6 PM onward as she had vomiting. On checking, he found that there was a rat poison cake in the container of milk from which milk was feeded to baby Kaya Sharma. Accordingly, he took his daughter to Ganga Ram Hospital. It was alleged that he had suspicion over his maid Phoolmani Topno as she was also missing from his house since 10 AM and on checking he also noticed that one red colour sky bag, three pairs of cuffling, one hand purse containing ` 1800/-, visiting card, some clothes of his wife, one T-shirt and sport shoes of his wife, one pair of sleeper, two pair of suit-salwar were found missing. On his statement, an FIR for the offence punishable under Section 380/328 IPC was got registered.
2. It was alleged that during investigation a secret information was received that accused was at New Delhi Railway Station, accordingly, police party along with complainant reached there and at about 11 PM at the pointing out of complainant, accused Phoolmani Topno was apprehended. As per prosecution version, bag containing the above said articles were recovered from her possession.
3. After completing investigation challan was filed against the accused for the offence punishable under Section 381/328/411 IPC.
SC No. 54/13 Page 2 of 12State Vs. Phoolmani Topno
4. After complying with the provisions of Section 207 Cr. P.C. case was committed to the Court of Sessions on November 30, 2012. Accordingly, the case was assigned to the Court of Sh. Narinder Kumar, learned Additional Sessions Judge on December 06, 2012 Thereafter, file was transferred to this Court vide order dated March 16, 2013, Accordingly, case was registered as Sessions Case No. 54/13.
5. Vide order dated March 16, 2013, Court of Sh. Narinder Kumar, learned Additional Sessions Judge framed a charge against the accused Phoolmani Topno for the offence punishable under Section 328/381 IPC to which she pleaded not guilty and claimed trial.
6. In order to bring home the guilt of accused, prosecution has examined as many as following 7 witnesses:-
PW1 Pankaj Sharma, complainant.
PW2 Jyoti Sharma, wife of complainant.
PW3 Const. Vijay, formal witness.
PW4 HC Darshan Lal, MHC(M).
PW5 Dr. Utsav, proved the MLC of victim.
PW6 HC Satpal, duty officer.
PW7 SI Gautam Malik, investigating officer.
7. On culmination of prosecution evidence, accused was examined under Section 313 Cr. P.C. wherein she denied all the incriminating evidence advanced by prosecution and took the plea that she had left the service w.e.f. August 20, 2012 and thereafter she did not meet with the complainant and submitted that she had not given any poison to the daughter of PW1 nor she had committed any theft. It was submitted that SC No. 54/13 Page 3 of 12 State Vs. Phoolmani Topno she has been falsely implicated in this case. However, she refused to lead evidence in her defence.
8. Learned counsel appearing for accused sagaciously contended that there is no iota of evidence that accused had administered rat killing poison cake in the container of milk or that the said milk was found containing a stupefying substance. It was submitted that accused was not arrested from the railway station. Accused was falsely implicated in this case as she refused to work in the house of complainant. It was submitted that the old clothes were given to the accused by the wife of complainant and same has been shown as stolen articles.
9. Per contra, learned Additional Public Prosecutor contended that accused had committed the offence of theft as she was found in the possession of stolen articles and there is no reason to disbelieve the prosecution case to that extent. However, he candidly admitted that in the FSL report, no poison substance was found in the milk, thus prosecution failed to prove the case for the offence punishable under Section 328 IPC.
10. I have heard rival submissions made by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
11. To prove the guilt of accused for the offence punishable under Section 328 IPC, sample of the milk was taken during investigation from the container, from which the milk was feeded to baby Kaya Sharma. PW7 in his examination-in-chief deposed that he had also inspected the milk container i.e. Bhigona wherein he had found one Ticky i.e. cake, which was allegedly stated to be poisonous, accordingly he sealed the said cake in a SC No. 54/13 Page 4 of 12 State Vs. Phoolmani Topno separate pullanda. He had also taken the sample of the milk from said container and sealed in a plastic bottle. The said sample milk was sent to FSL for analysis to ascertain whether it is found containing any poisonous substance or not. As per FSL report Ex.P7/C, no poisonous substance was found in the milk sample. It means that no such poisonous milk was ever feeded to baby Kaya Sharma.
12. In this regard, the MLC of baby Kaya Sharma is also relevant and same is exhibited as Ex.PW5/A. Surprisingly, in the said MLC nothing is mentioned about the condition of baby Kaya Sharma. Even her BP/pulse rate are not mentioned therein. Though, as per MLC, it appears that baby Kaya Sharma was got admitted in the hospital. However, during trial PW1 deposed that his daughter was discharged from the hospital after 6-7 hours. There is no evidence on record which may shows that the condition of baby Kaya Sharma was due to any poisons substance. Admittedly, no sample of vomit was taken during investigation nor it was sent for analysis. Similarly, no stomach wash was taken. In these circumstances, there is no admissible evidence on record to establish that any poisonous substance was ever administered to baby Kaya Sharma.
13. Moreover PW1 and PW2 had not seen the accused to administer the rat killing cake in the said Bhigona. They presumed so as accused was missing from the house since morning. PW1 in his cross- examination deposed that the milk was boiled by his wife in the previous night and he had feeded the milk to his daughter from the said Bhigona in the night. In the morning, his wife had again taken milk from the said Bhigona and feeded to baby Kaya Sharma. PW2 also admitted that she had boiled the milk in the previous night and thereafter she did not boil the milk and feeded to her daughter after taking it from fridge. Neither of them SC No. 54/13 Page 5 of 12 State Vs. Phoolmani Topno deposed that accused either boiled the milk or dealt with the milk at any point of time.
14. PW2 in her cross-examination admitted that she had used the milk for the purpose of tea and PW1 and PW2 admitted in their cross- examination that they had not felt any difference in the taste of tea. PW2 also admitted that when she used the milk for the purpose of tea, it did not sour. It appears quite impossible that milk would not sour if rat killing cake be diluted in the milk. Since, PW1 and PW2 did not feel any difference in the taste of tea, it also proves that there was nothing poisonous or stupefying substance in the milk otherwise both the witnesses would have felt some difference in the taste of tea or the milk would have sour but it was not so.
15. As already held that during examination at FSL, no stupefying substance or poisonous substance was found in the sample milk, thus prosecution has failed to establish that there was any stupefying or poisonous substance in the milk which was allegedly served to baby Kaya Sharma.
16. It is undisputed fact that accused was working as domestic servant in the house of PW1 and PW2. Though this fact is categorically deposed by PW1 and PW2 in their deposition, yet this fact is also admitted by the accused in her statement recorded under Section 313 Cr. P.C. However, she took the plea that she had left the service w.e.f. August 20, 2012 but she failed to adduce any evidence in this regard. In the absence of any cogent evidence on record, the defence version to the extent that she had left from the service w.e.f. August 20, 2012 does not inspire any confidence.
SC No. 54/13 Page 6 of 12State Vs. Phoolmani Topno
17. From the testimony of PW1 and PW2, it is established that accused was working as domestic servant in their house on August 23, 2012 when the alleged incident had taken place. Both the witnesses categorically deposed that accused was missing from their house since 10/10.30 AM. They further deposed that earlier accused used to intimate them before going outside the house but on that day she did not inform any one before leaving the house. They further deposed that accused used to come back after 1-2 hours but on that day she did not return. PW1 and PW2 in their deposition deposed that when accused did not come back, they checked their belongings and found that one red colour sky bag, three pairs of cuffling, one hand purse containing ` 1800/-, visiting card, some clothes of PW2, T-shirt and one pair of shoes, one pair of sleeper, two pair of suit-salwar were found missing. From their testimony, it is established that some items were missing from their house. Since, domestic servant i.e. accused did not return, it was suspected that accused had committed the theft.
18. PW7 in his deposition deposed that he had received a secret information that accused was present at New Delhi Railway Station, accordingly he along with complainant and one lady constable left for New Delhi Railway Station and reached plat form No. 1 where accused was found sitting in the waiting hall and complainant had identified her. Accordingly, he apprehended the accused. This fact is also corroborated by PW1 in his deposition by deposing that police took him to New Delhi Railway Station and at his pointing out police arrested the accused from waiting hall between 11 PM to 11.30 PM. From the testimony of PW1 and PW7, it is also established that she was found carrying stolen items in red colour sky bag and all the items were seized by the police vide memo Ex.PW1/F. The said items were identified by the complainant at the time of SC No. 54/13 Page 7 of 12 State Vs. Phoolmani Topno recovery.
19. Once, it is established that the stolen articles were recovered from the possession of accused, onus is shifted upon the accused to explain under which circumstances she was in the possession of the said stolen items. During the course of arguments, counsel took the plea that the said items were given to the accused while she was working as domestic servant in their house. No doubt, it is common practice that persons used to give their used clothes to their servants but before taking the plea, accused was supposed to set up a case during trial. But during cross-examination of PW1 and PW2, no such suggestion was given to the witnesses that the alleged recovered items were ever given by PW1 and PW2 to the accused being domestic servant. On the contrary, during cross-examination of PW1 plea was taken that complainant had handed over the accused to the police on August 21, 2012. A suggestion was was given to PW1 that after 2 days PW1 called the accused on the pretext asking her to take her belongings and when she visited their house, she was apprehended and falsely implicated in this case. Another plea was taken that since PW1 and PW2 were not providing proper food to the accused, accused was not willing to work in their house whereas they intended to retain her and due to that reason they falsely implicated the accused. Needless to say that all the suggestions were denied by the witnesses. First time, during the course of arguments, counsel took the plea that the said items were given to the accused by PW1 and PW2 while she was working as domestic servant. In the absence of any cogent evidence on record, I do not find any substance in the plea taken by the learned defence counsel.
20. During trial accused failed to produce any evidence to establish that she had left the job on August 21, 2012 or she had visited the house of complainant on August 23, 2012 at the asking of PW1. Admittedly, SC No. 54/13 Page 8 of 12 State Vs. Phoolmani Topno PW1 was got employed through placement agency and during cross- examination of PW1 a suggestion was given that the Manager of the placement agency named Soma took the accused to the police station for the purpose of interrogation. However, during trial accused failed to examine the said Soma. In the absence of any evidence on record, defence version does not inspire any confidence.
21. Since the articles belonging to PW1 and PW2 were recovered from the possession of accused and accused failed to furnish any reasonable explanation and the fact that she left from their house without intimating them, all these facts establish beyond the shadow of all reasonable doubt that accused had committed theft of the said articles from the house of PW1 and PW2.
22. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has miserably failed to prove the guilt of accused for the offence punishable under Section 328 IPC, thus I hereby acquit the accused for the offence punishable under Section 328 IPC. However, prosecution has succeeded to establish the guilt of accused under Section 381 IPC beyond the shadow of all reasonable doubts, thus, I hereby hold accused Phoolmani Topno guilty for the offence punishable under Section 381 IPC.
Announced in the open court On 16th September, 2013. (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI.
SC No. 54/13 Page 9 of 12State Vs. Phoolmani Topno IN THE COURT OF SH. PAWAN KUMAR JAIN ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI SC No. 54/13 ID No. : 02401R0501592012 FIR No. 130/12 PS : Rajinder Nagar U/s: 381/328/411 IPC State Versus Phoolmani Topno D/o Johan Topno R/o H. No. 129, Hapu, PS-Kamdara District- Gumla Jharkhand .........Convict Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the State.
Ms. Chitramal, Advocate from Legal Aid for convict.
ORDER ON THE POINT OF SENTENCE : -
1. Vide separate judgment dated September 16, 2013, accused was held guilty for the offence punishable under Section 381 IPC.SC No. 54/13 Page 10 of 12
State Vs. Phoolmani Topno
2. Learned counsel appearing for convict request for a lenient view on the ground that convict is a young female of aged 24 years and she has no criminal antecedent. It is submitted that she is in custody from August 2012 and requests to release her for the period already undergone.
3. Per contra, learned Additional Public Prosecutor requests for substantial punishment.
4. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
5. Though accused was charge-sheeted for the offence punishable under Section 328/381 IPC, yet prosecution miserably failed to bring home the guilt of accused under Section 328 IPC. As per prosecution version only some used items and purse containing approximately ` 1800/- were stolen and recovered. Admittedly, the convict is in custody since August 23 2012 when she was arrested, thus more than a year has already been lapsed. There is no criminal antecedent on record. Considering the age, value of stolen property and the fact that convict has no criminal antecedent, I am of the opinion that ends of justice will be met if convict be sentenced for the period already undergone.
6. In view of the aforesaid discussion, I hereby sentence the convict Phoolmani Topno for the period already undergone for the offence punishable under Section 381 IPC. She be set at liberty forthwith if not required in any other cases.
SC No. 54/13 Page 11 of 12State Vs. Phoolmani Topno
7. Copy of judgment along with order on the point of sentence be provided to the convict free of cost.
8. File be consigned to record room.
Announced in the open court On 18th September, 2013. (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI.
SC No. 54/13 Page 12 of 12