Delhi District Court
State vs . 1. Nadeem S/O Mohd. Zaman, on 30 November, 2012
IN THE COURT OF SH. VIRENDER BHAT, A.S.J., DWARKA
COURTS, NEW DELHI.
SC No. 140/11
Unique Case ID No.02405R0287742011
State Vs. 1. Nadeem s/o Mohd. Zaman,
R/o House No. 260, Ward No.3,
Mohalla Kotwalan, District Rampur,
UP.
Date of Institution :29.09.2011.
FIR No. 102/11 dated 01.08.2011.
U/s. 328 IPC.
P.S. Dwarka Sector-23.
Date of reserving judgment/Order :23.11.2012.
Date of pronouncement :30.11.2012.
JUDGMENT
1. The above named accused has been charge sheeted by the Police for having committed offence punishable u/s 328 IPC.
2. The prosecution alleges that the accused had offered cold drink laced with some stupefying substance to three children namely Manish, Sonu and Kajal, who lived in his neighbourhood and on consuming the said cold drinks, all the three became unconscious and had to be hospitalised by their mother. The incident is alleged to have taken place in the evening of 31.7.2011. The information about the incident reached the police station Dwarka on 01.08.2011 at 9.40 a.m. and the same was recorded as DD No. 11A which was then entrusted to SI Ram SC No.140/11 Page 1 of 12 Pratap for suitable action. SI Ram Pratap with PSI Sanjay Pangal reached the spot of incident i.e. house No. 503, Gali No.2, Bijwasan Colony, New Delhi where he did not find the complainant and came to know that the injured have been taken to DDU hospital in PCR van. Thereafter they reached DDU Hospital where they found injured Bholu, Kajal and Sonu admitted vide MLC Nos. 15360/11, 10359/11 and 15422/11 respectively. SI Ram Pratap recorded the statement of Manish @ Bholu who stated that on 31.7.2011 when his mother had gone to the matrimonial house of his elder sister at Sonipat, accused Nadeem, who worked in the nearby farm house by the name Shubham Garden, came with three or four cold drinks bottles and packets of kurkure. He felt giddy on consuming the cold drinks and became unconscious. He regained consciousness in the hospital. He further stated that his younger brother Amit and younger sister Kajal had also become unconscious after consuming cold drink. On the basis of the aforesaid statement of Manish, FIR was registered and the investigation was entrusted to SI Rahul Kumar. The doctor handed over to SI Rahul Kumar, the gastric lavage of Kajal. He prepared the site plan of the spot of incident and also seized three cold drink bottles from the spot, which contained small amount of liquid. He recorded the statement of witnesses u/s 161 Cr.P.C. and also arrested the accused. The accused is stated to have made disclosure statement admitting his guilt. Exhibits were sent to FSL, Rohini for forensic examination.
3. After the completion of the investigation, charge sheet was laid before the concerned Magistrate, who then committed the case to the Court of Sessions.
SC No.140/11 Page 2 of 124. Upon committal of the case to the Court of Sessions, following charge was framed against the accused on 07.12.2011:-
"That on 31.7.2011 at about 8.00 p.m. at H-503, Gali No.2, Bijwasan Colony, New Delhi, within the jurisdiction of P.S. Sector-23, Dwarka, you accused had administered some poisonous substance mixed with cold drinks to the complainant Manish @ Bholu and his younger sister Kajal and younger brother Amit @ Sonu with intent to cause hurt to such persons for some ulterior motives and thereby committed an offence punishable u/s.328 IPC, and within jurisdiction of this Court."
5. The accused pleaded not guilty to the aforesaid charge and accordingly trial was held. The prosecution examined nine witnesses to prove the aforementioned charge against the accused. The accused was examined u/s 313 Cr.P.C. on 18.09.2012 wherein he admitted that he had gone to the house of the injured in the evening of 31.07.2011 and offered them cold drink as well as snacks but denied that the cold drink was laced with any poisonous substance. He stated that he also had consumed the same cold drink and denied that any of the children had become unconscious. According to him, the mother of the children was also present in the house at that time. The accused, however, did not lead any evidence in his defence.
SC No.140/11 Page 3 of 126. I have heard ld. APP for the State, ld. Counsel for the accused and have perused the entire material on record.
7. The three injured children, to whom the accused is alleged to have administered the poisonous cold drink have been examined as PW-2, PW-4 and PW-5. PW-2 deposed that accused was known to him before the incident and he used to come to his tea stall for taking tea. He did not remember the exact date, month and the year of incident. According to him, the incident had taken place about six months before the date, on which he was examined. He deposed that on that day at about 7 or 8 pm when he was sitting in his tenanted room alongwith brother Sonu and sister Kajal and was watching TV, accused made a call on his mobile phone No. 9990792731 saying that he would come to his room with some cold drinks. After about half an hour, accused came to his room alogwith three small pepsi bottles and offered the pepsi to him and his brother/sister. He had also brought three packets of Kurkure snacks. They consumed pepsi and kurkure. He stated that accused neither took pepsi nor took kurkure saying that he had already taken. Soon, all three of them became unconscious. He regained consciousness after about two days in the hospital in Delhi Cantt., the name of which he did not remember. He remained admitted in the hospital for about three days. He stated that the police never met him in connection with this case and his statement was not recorded. He was shown the statement mark A, on the basis of which FIR had been registered in this case and he denied that it contains his signatures. He stated that he only affixes thumb impression wherever necessary. He was declared hostile by the ld. APP on this point and in his SC No.140/11 Page 4 of 12 cross examination also he denied that signatures appearing at point X on mark A is his signatures. He deposed that he had studied upto IVth standard. He can write only Hindi numerical and not his name. In the cross examination conducted on behalf of accused, he deposed that accused was with them for about 15 minutes before he became unconscious.
8. PW-4 is Master Sonu, aged 12 years. Before recording his testimony, some questions were put to him to ascertain whether he understands the nature of questions put to him and is in a position to give clear and proper answers. After getting satisfaction on these counts, he was examined. He also did not remember the exact date and month of the incident and stated that it happened five/six months before the date on which he was examined. According to him on that date at about 8 pm he alongwith his sister Kajal and brother Manish was watching television in their house. Accused, whom he knew before the incident, came to their house with three bottles of pepsi cold drink and three packets of kurkure. He alongwith his sister and brother consumed pepsi as well as kurkure. Accused also took pepsi and kurkure. Then accused sent him to market for fetching eggs. He brought the eggs and his sister started boiling them and thereafter he felt giddy and slept. He woke up on the next day and found himself in the hospital. He remained admitted in the hospital for 2 to 3 days. He stated that his brother and sister had also been admitted in the same hospital i.e. DDU Hospital. In the cross examination, conducted on behalf of accused, he explained that he and his sister took pepsi directly from the bottle whereas his brother and the accused took pepsi in steel glasses.
SC No.140/11 Page 5 of 129. Kajal aged 12 years has been examined as PW-5. After getting satisfaction that she understands the nature of questions put to her and is able to give rational answers, she was examined. She also did not remember the exact date and month of the incident and stated that the incident took place about one month before the date, on which she was examined. On that date at about 7pm, when she was playing outside her house with her friend Pinki, she was called by her brother Sonu and she returned to her house. She saw accused also present there. She knew him before the incident. Her brother asked her to prepare roti for him. When she was mixing the flour and water in order to prepare meals for her brother, she took some water from the bucket of water lying nearby and thereafter became unconscious. She regained consciousness after about three days and found herself in a hospital near Delhi Cantt. Both of her brothers also had been admitted in the same hospital. She was declared hostile by the ld. APP and in her cross examination, she deposed that Police did not make any inquiry from her in the hospital. She, however, admitted that accused had brought some cold drink and when she and her brothers consumed the cold drink, they became unconscious. She did not know whether accused also had taken the cold drink. She also admitted that at that time her mother was not present in the house. In the cross examination on behalf of accused, she deposed that she had taken Pepsi straight from the bottle and her two brothers also took pepsi straight from the bottle. She became unconscious some time after taking the pepsi. Her brothers had also become unconscious and had fallen outside the house in the gali.
SC No.140/11 Page 6 of 1210. It is the case of the prosecution that the IO SI Ram Pratap got the FIR in this case registered on the basis of the statement Ex. PW8/A of injured Manish @ Golu. However, Manish appearing as PW-2 has categorically denied that his statement was recorded by the Police in this case. The statement Ex. PW8/A was shown to him and he denied that signatures appearing at point X on the same are his signatures. He went on to say that he only affixed his thumb impression wherever necessary and does not sign. Therefore, the very foundation of the prosecution case, is shaken. The prosecution has not been successful in proving the FIR. It gives an impression that the FIR is not a genuine one and, therefore, all the proceedings conducted subsequent to that also cannot be believed and relied upon.
11. Even otherwise, also there are material contradictions between the testimonies of aforesaid three star witnesses of the prosecution which bring the case of prosecution within the sphre of suspicion. The three witnesses have, however, remained consistent in deposing that accused had come to their house alognwith three pepsi and three packets of kurkure which they consumed and thereafter become unconscious. It is note worthy here that the accused in his statement u/s 313 Cr.P.C. has also admitted this fact. What needs mention is that PW-2 has stated that they become unconscious soon after taking pepsi and kurkure brought by the accused. He also stated that accused did not take either pepsi or kurkure. But PW-4 deposed that after he, his sister and brother consumed pepsi and kurkure, the accused also consumed the same and then accused sent him to market for SC No.140/11 Page 7 of 12 fetching eggs. He brought the eggs and his sister started boiling them and then he felt giddy and slept. There are two things to be noted from the testimony of this witness. First that according to him, he and his siblings did not become unconscious immediately after taking the pepsi and kurkure. It must have taken him considerable time in going to the market and fetching eggs therefrom, after which he felt giddy and slept. Next thing is that according to this witness, accused also consumed the pepsi and kurkure which he had brought. In the cross examination, he has explained this fact in detail by stating that he and his sister took pepsi directly from the bottle whereas, his brother and the accused took pepsi in steel glasses. If infact, the accused had mixed some stupefying or poisonous substance in the pepsi, he would not have consumed the same. Therefore, it can be said that either accused had not mixed any such susbtance in the pepsi or he was not aware of the same.
12. PW-5 has given a confusing statement before the court. In her examination in chief, she states that she become unconscious after taking water from the bucket of water which lying nereby her when she was preparing bread (roti) for her brother. In the cross examination conducted by the ld. APP after declaring her hostile, she admitted that the accused had brought cold drink alongwith him and she as well as her siblings become unconscious after taking cold drink. She does not say anything about the eggs brought by PW-4. However, she did not know whether accused also had taken the cold drink. She stated that she and her two brothers took pepsi straight from the bottle which is contrary to what PW-4 has deposed in this regard as noticed SC No.140/11 Page 8 of 12 herein above.
13. PW-6 is the mother of these three children. According to her when she returned from Panipat and reachd her house at about 9.30 pm, she found her daughter Kajal and son Sonu sleeping in the house. Her another son Golu was half awake and his eyes were totally red. She also deposed that three empty bottles of pepsi and three packets of kurkure were lying in the room and eggs were boiling in the room. This part of her deposition corroborates the version of PW-4 who had gone to market to fetch the eggs. She further goes on to say that accused Nadeem was also sleeping in the room. She woke him up, asked him how he was in the room but the accused immediately left the room without saying anything. It is manifest from her testimony that accused was present in her room even after three children had fallen unconscious after consuming pepsi and kurkure allegedly laced with some stupefying substance. This is against the natural conduct of a person. The accused would have definitely run away from the spot after poisoning the children. He would not have slept in the same room. This shows that accused himself had felt asleep after consuming some quantity of pepsi which he had brought. This again goes on to show that he did not knew that the pepsi is laced with some stupefying substance.
14. Even though the victims i.e. PW2, PW4 and PW5 have deposed that they remained unconscious for about two to three days after taking the pepsi offered to them by the accused and regained consciousness in the hospital but there is no evidence on record regarding the same. According to PW6, PCR officials had SC No.140/11 Page 9 of 12 removed her children to DDU Hospital. Ironically, those PCR officials have not been examined. They would have been the best witnesses to depose about the condition of the victims. Apart from that the MLCs of the children show that they were conscious & oriented when brought to hospital on 01.08.12 i.e. just 12 hours after the intake of pepsi. PW8 also has deposed in his cross examination that all the three injured were conscious and oriented when brought to hospital. He further stated that no medicine was administered to any of the injured in emergency department except normal saline IVF and injection Rantac. There is no evidence on record to show when the children were discharged from the hospital.
15. It was vehemently argued by Ld. APP that the forensic examination of the remains of pepsi in the bottles brought by accused shows that it contained 'phenobarbital' and hence prosecution case gets established that the accused offered stupefied pepsi to the children, as a result of which they became unconscious. According to him the accused cannot escape conviction. I am unable to countenance the submissions of Ld. APP. Firstly, for the reason that he has failed to explain what is the nature of this substance 'phenobarbital' and what is its impact on the human body, if consumed. No material has been produced before me to show that it is a poisonous substance, likely to cause death, if taken by a human being. It is definitely not a tranquilizer as the FSL report Ex.PA mentions that no tranquilizers were detected in the pepsi sent to it for examination.
16. Secondly, it is not clear whether or not this substance SC No.140/11 Page 10 of 12 'phenobarbital' is contained in all pepsi bottles and whether it is formed in a pepsi bottle after its expiry date. The investigating officer appearing as PW9 has admitted in his cross examination that he could not check the expiry date of pepsi bottles as no such date was mentioned on their labels. He did not interrogate the shop owner from whom the accused had purchased these pepsi bottles. So, it may be that the shopkeeper had sold expired cold drinks to accused regarding which he was unaware and which cause drowsiness to the children and accused himself.
17. The prosecution is bound to prove the guilt of the accused beyond reasonable doubt. Lack of credible evidence would always lead to acquittal of the accused. The half hearted approach of the prosecution is not only undesirable but would also create dents in its own case. The approach of the prosecution in this case, for sure, has been half hearted. Matters have been left to mere surmises and conjectures. Investigating Officer has shown utter negligence and lack of investigating technique. No effort has been made to ascertain the origin of cold drink bottles. Even after receipt of FSL result, no effort has been made to seek expert opinion regarding the nature of substance 'phenobarbital' and to prove the same before court.
18. The net result of the discussion is that there is no credible and unimpeachable evidence on record to show that accused had mixed some poisonous or stupefying substance in the cold drink and administered the same to their children. Lastly and importantly, the prosecution has failed to attribute any motive to the accused for indulging in such alleged criminal activity such as SC No.140/11 Page 11 of 12 theft, rape etc. He remained in the room of the children after they felt asleep but admittedly did not commit any illegal act. Therefore, it is very difficult to believe that he intended to poison the children or in fact, poisoned them, as alleged by the prosecution.
19. The accused is hereby acquitted of all the charges.
Announced in open (VIRENDER BHAT)
Court on 30.11.2012. A.S.J. :Dwarka Courts
New Delhi.
SC No.140/11 Page 12 of 12