Delhi District Court
State vs Bittoo @ Babloo P.O. 2 Ors on 30 October, 2023
IN THE COURT OF Ms. SHELLY ARORA
ADDITIONAL SESSIONS JUDGE05/EAST
KARKARDOOMA COURTS, DELHI
SC No.1072/2016
FIR No.295/2014
PS Geeta Colony
U/s 328/379/411/34 IPC
CNR No. DLET010022612014
State
VERSUS
1. Bittoo @ Babloo (PO)
S/o Kali Prashad
R/o H.No.332, Gali No.6, Sadatpur, Delhi
2. Kaptan Singh (now expired)
S/o Sh. Umrao Singh
R/o H.No.444, Gali No.4, Jagmal Garden
Wali Gali, Sadatpur, Delhi.
3. Sunil Kumar
S/o Sh. Dhirender Kumar
R/o H.No.39, Pehchan Patra Wali Gali,
Sadatpur, Krishna Nagar, Delhi
SC No.1072/2016 State vs Bittoo @ Babloo & Ors 1 of 38
Date of institution : 30.08.2014
Date of Reserving judgment : 26.10.2023
Date of Pronouncement : 30.10.2023
Decision : Acquitted
JUDGMENT
1. Accused Sunil Kumar has been facing trial on the allegations that he along with accused Bittoo (now PO) and Kaptan Singh (now expired) along with other associate and Rani (since not arrested) in furtherance of their common intention had administered to Firoz (e rickshaw driver) certain poisonous or stupefying substance and committed theft of his battery rickshaw as well as mobile phone and thereby committed offences punishable under Sections 328/379/34 IPC as well as under Section 411 IPC.
BRIEF FACTS OF THE CASE
2. Succinctly, the facts of the case are that on 08.05.2014, at about 14.10 hours, a PCR call was received regarding snatching of e rickshaw near Chacha Nehru Hospital, Geeta Colony, Delhi. The said information was reduced into DD No.12A dated 08.05.2014 and it was marked to ASI Devender. Thereafter, ASI Devender and Ct. Mahendra reached in front of Chacha Nehru Hospital. On inquiry, it was revealed that patient/injured has been shifted to LBS Hospital by SC No.1072/2016 State vs Bittoo @ Babloo & Ors 2 of 38 CAT Ambulance. Thereafter, they reached LBS Hospital, collected MLC No.7276/14 of victim Firoz S/o Mohd. Ali R/o B246, Gali No.8, Kardampur, Delhi. The victim was opined to be unfit for statement and it was revealed that victim was administered juice laced with some stupefying substance and his battery rickshaw and mobile phones were looted. Thereupon, case FIR No.295/2014 U/s 328/379/34 IPC was registered.
3. On 09.05.2014, ASI Devender Prasad recorded statement of Firoz and prepared site plan. On 28.05.2014, at the instance of Firoz, accused Bittoo and accused Kaptan Singh were apprehended near SDM office at Parking alongwtih stolen battery rickshaw which thereby was seized. Both accused persons were interrogated and their disclosure statements were recorded subsequent to their arrest. On the same day, at the instance of accused Kaptan Singh, accused Sunil Kumar was apprehended from his house and stolen mobile phone (Samsung Galaxy S20) was recovered from his possession. IO moved an application for TIP of accused Sunil Kumar who refused to participate in TIP proceedings. During investigation, accused persons disclosed about the involvement of other associates (since not arrested). After completion of investigation, chargesheet was filed against accused persons U/s 328/379/411/34 IPC.
SC No.1072/2016 State vs Bittoo @ Babloo & Ors 3 of 38 CHARGE
(a) On 16.10.2014, a common charge for the commission of offene U/s 328/379/34 IPC was framed against the accused Bittoo @ Babloo (now PO), Kaptan Singh (now expired) and Sunil Kumar.
(b) A separate charge U/s 411/34 IPC was framed against the accused Bittoo @ Babloo and Kaptan Singh (qua recovery of stolen battery rickshaw).
(c) A separate charge U/s 411 IPC was framed against the accused Sunil Kumar (qua recovery of stolen mobile phone). Accused persons pleaded not guilty and claimed trial.
4. During the course of trial, accused Bittoo stopped appearing and accordingly he was declared Proclaimed Offender vide order dated 14.01.2016.
5. During the course of trial, accused Kaptan Singh passed away and proceedings against him stand abated vide order dated 28.08.2021.
PROSECUTION EVIDENCE
6. In order to prove its case, the prosecution has examined as many as following 10 witnesses.
SC No.1072/2016 State vs Bittoo @ Babloo & Ors 4 of 38
7. PW1 is Santosh Kumar Lawaniyan, working with CATS as Ambulance Paramedic who took injured/complainant in CATS Eeco6 Ambulance to LBS Hospital.
8. PW2 HC Kadeer Ahmed is the Duty Officer who had got recorded present case FIR and proved copy of FIR as Ex.PW2/A, Kyami DD No.21 A as Ex.PW2/B and Certificate U/s 65B of Evidence Act as PW2/C.
9. PW3 Smt. Shahjahan is mother of Firoz who reached at Chacha Nehru Hospital upon receipt of call from Firoz, where Firoz was found in unconscious condition at the gate of the said hospital and thereafter, she made call at 100 number.
10. PW4 is injured/victim Firoz deposed that five male persons and one female hired his Rickshaw from Seelampur to Chacha Nehru Hospital and back and on way purchased Frooti and insisted him to drink. After dropping them at Chacha Nehru Hospital while he was waiting to take them back to Seelampur Metro Station, he felt giddiness and called his mother, fell unconscious and later found his erickshaw and mobile phones looted. Police was informed. FIR was registered on the basis of information recorded vide DD entry. He was rushed and admitted in LBS Hospital for treatment. He proved the arrest memos Ex.PW4/A and Ex.PW4/B of accused Bittoo and Kaptan Singh as well as seizure memo of battery rickshaw SC No.1072/2016 State vs Bittoo @ Babloo & Ors 5 of 38 asEx.PW4/C. He also proved Superdarinama of battery rickshaw as Ex.PW4/D and of mobile phone as Ex.PW4/E, receipt of purchase of erickshaw as Ex.PW4/F and that of mobile phone as Ex.PW4/G.
11. PW5 is ASI Subhash (then HC) who joined the investigation of the case with SI Devender, Ct. Hansraj, Ct. Shambhu and injured Firoz on 28.05.2014 and apprehended accused Bittoo and Kaptan near SDM Office at the instance of Firoz. He proved disclosure statements of accused Bittoo and Kaptan as Ex.PW5/B and Ex.PW5/C and pointing out memo as Ex.PW5/D.
12. PW6 Ct. Mahender Singh deposed that he accompanied IO ASI Devender to Chacha Nehru Hospital on receipt of DD No.12A dated 08.05.2014 and then to LBS Hospital where injured was found unconscious.
13. PW7 is ASI Hans Raj who joined the investigation of the case on 28.05.2014 with complainant, HC Subhash and Ct. Shambhu and apprehended accused Bittoo and Kaptan at the instance of Firoz. He proved the disclosure statements of accused Bittoo and Kaptan as Ex.PW7/A and Ex.PW7/B. PW7 further deposed that on 30.05.2014, he again joined investigation of the case with HC Subhash, Ct. Shambhu and ASI Devender and at the instance of accused Kaptan, accused Sunil was arrested. He proved the arrest memo and personal search memo of accused as Ex.PW7/C and Ex.PW7/D. SC No.1072/2016 State vs Bittoo @ Babloo & Ors 6 of 38
14. PW8 is Dr. Banarsi who was firstly examined on 08.10.2018 and proved the MLC of injured Firoz as Ex.PW8/A. He was again examined on 09.08.2023 and deposed that the patient was diagnosed of unknown substance poisoning and same is mentioned as part of discharge summary which is marked as Mark PW8/C.
15. PW9 is Deepak Gupta, Manager at Vaishno Electronics Pvt. Ltd.
Karola Bagh, Delhi, who deposed that mobile phone make Samsung Galaxy X2 having IMEI No.354505/05/373444/8 was purchased from his aforesaid shop and also identified signature of his employee namely Mr. Gaurav at point A on the copy of the bill/invoice Ex.PW4/G.
16. PW10 is Sh. Ashwani Sehgal, owner of 'Sai Som Automobiles' at 2/76, Ground Floor, Old Rajender Nagar, Delhi, who deposed that one tricycle erickshaw was sold from his shop to Firoz vide invoice Ex.PW4/F.
17. During evidence, Ld. LAC for accused Sunil Kumar admitted the TIP proceedings U/s 294 Cr.P.C and TIP application as well as TIP proceedings are exhibited as Ex.A1 and Ex.A2.
18.Thereafter, prosecution evidence was closed and matter was listed for recording statements of accused U/s 313 Cr.P.C.
SC No.1072/2016 State vs Bittoo @ Babloo & Ors 7 of 38 STATEMENT OF ACCUSED U/S 313 CR.P.C.
19.All incriminating material/evidence was put to accused Sunil Kumar in his statement of accused recorded u/s 313 Cr.P.C., wherein he pleaded his innocence and submitted that the recovered Samsung Galaxy Mobile phone was planted upon him by the police. He is innocent and has been falsely implicated in this case. He however, chose not to lead any evidence in his defence. Accordingly, DE was closed and matter was posted for final arguments.
FINAL ARGUMENTS
20.Arguments advanced on behalf of Ld. Addl. PP as well as Ld. Counsel for accused Sunil Kumar. Perused the record as well as relevant provisions of law.
21.Ld. Addl. PP submitted that there is ample evidence on record to prove that stupefying substance was administered in the Frooti after consuming which the victim became unconscious only to revive after two days. It is also argued that accused persons played a ploy to loot battery rickshaw as well as mobile phones of the victim. It is further submitted that at the instance of victim himself , accused Bittoo and Kaptan Singh were arrested and looted rickshaw was recovered from their possession while looted Samsung Mobile phone was recovered from the possession of accused Sunil who was arrested from his SC No.1072/2016 State vs Bittoo @ Babloo & Ors 8 of 38 house at the instance of accused Kaptan Singh. It is argued that recovery of looted articles amply proves their involvement in the crime. Thus, it is prayed that accused may be convicted for the offences alleged.
22.Per contra, Ld. Counsel for accused Sunil Kumar submitted that accused is innocent and has been falsely implicated in this case on the basis of disclosure statements of coaccused persons which is hit by Sections 25, 26 & 27 of Indian Evidence Act. It is further submitted that there is no eye witness of the alleged incident. It is further submitted that the testimony of victim/PW4 is not reliable as his testimony has not been corroborated either by ocular evidence or by medical evidence or by scientific evidence. There is no chemical examination or Forensic Serology report. Thus, it is submitted that the prosecution has failed to prove its case beyond reasonable doubt. In support of contentions, Ld. Counsel has relied upon the cases of Upendra Pradhan vs State of Orissa, Crl. Appeal No.2174 of 2009, Mukesh chand & Ors vs State NCT of Delhi Crl. Appeal No.20/2002, Joseph Kurian Philip Jose Vs. State of Kerala (AIR1995 SC 4), Ashok Narang Vs. State 2012 (1) JCC 482, Mangu Vs Dharamendra & Anr. 2016 (2) JCC 821, Nallabothu Ramulu @ Seetharamiah & Ors vs State of Andhra Pradesh 2014 (3) JCC 1818 and Upendra Padhan vs State of Orissa 2015 (3) JCC 1631.
SC No.1072/2016 State vs Bittoo @ Babloo & Ors 9 of 38 ANALYSIS :
23. I have heard the rival submissions and gone through the case file carefully.
24.The basic allegation against accused Sunil Kumar and coaccused persons Bittoo and Kaptan and other persons is that he administered some poisonous or intoxicating or some stupefying substance to Firoz who was hired as erickshaw driver on account of which he became unconscious and accused Sunil alongwith other coaccused persons fled away with his erickshaw and mobile phone.
25.It is to be ascertained by way of analysis of evidence led on record whether accused Sunil Kumar was one amongst those people who had hired the rickshaw and whether he administered any substance in the nature of poison or stupefying or intoxicant to Firoz and whether he had any role in causing theft of erickshaw as well as the mobile phone.
26.Accused has been charged with commission of offence punishable under Section 328 I.P.C., which makes administration of any substance delirious for human consumption, with the intention of causing hurt or any offence punishable. It reads as under : "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 SC No.1072/2016 State vs Bittoo @ Babloo & Ors 10 of 38 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."
27.The ingredients of offence punishable u/s 328 IPC were spelt out by Hon'ble Delhi High Court in the case of Santosh Kumar vs State, Criminal Appeal No. 12 of 2000, decided on 7 th November 2008, as under :
"(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.
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 Section 328 IPC."
28.Further in the case of Joseph Kurian Philip Jose vs State of Kerla (AIR 1995 SC 4), the Hon'ble Apex Court held that elements constituting offence punishable under Section 328 IPC are to be established by way of direct, reliable and cogent evidence and observed as under: "In order to prove offence under Section 328 IPC, the prosecution is required to prove that the substance in question was a poison, or any stupefying, intoxicating or unwholesome SC No.1072/2016 State vs Bittoo @ Babloo & Ors 11 of 38 drug, etc., that the accused administered the substance to the complainant or caused the complainant to take such substance, that he did so with intent to cause hurt or knowing it to be likely that he would thereby cause hurt, or with the intention to commit or facilitate the commission of an offence. It is, therefore, essential for the prosecution to prove that the accused was directly responsible for administering poison etc. or causing it to be taken by any person, through another. In other words, the accused may accomplish the act by himself or by means of another. In either situation direct, reliable and cogent evidence is necessary. ..."
29.The importance of medical evidence to establish guilt under Section 328 IPC has been emphasized in case of Santosh Kumar (supra), wherein His Lordship observed as under:
"Simply on the basis of the statement of PW5 alone it could not be concluded that he had become unconscious because of eating the biscuit or drinking tea offered to him by the accused. There had to be medical evidence to the effect that PW5 had, in fact, become unconscious because of consuming any drug or intoxicating substance etc. mixed in tea or biscuit. "
30.In Prashant Bharti vs. State (NCT of Delhi) : (2013) 9 SCC 293, the Hon'ble Apex Court had quashed the charge under Section 328 IPC with the observations that the allegations levelled by the prosecutrix were left unsubstantiated in absence of examination of blood sample and thus it was unsustainable in the eyes of law. Following observations are relevant in the context :
"Ninthly, as per the medical report recorded by the AIIMS dated 16.2.2007, the examination of the complainant did not evidence her having been poisoned. The instant allegation made by the complainant cannot now be established because SC No.1072/2016 State vs Bittoo @ Babloo & Ors 12 of 38 even in the medical report dated 16.2.2007 it was observed that blood samples could not be sent for examination because of the intervening delay. For the same reason even the allegations levelled by the accused of having been administered some intoxicant in a cold drink (Pepsi) cannot now be established by cogent evidence."
31.In Mahinder Kumar Vs. State, 2017 SCC OnLine Del 8327, Hon'ble Delhi High Court observed that sole testimony of injured witness without Medical Evidence is not sufficient to prove charge u/s 328 IPC, the relevant portion is extracted under :
"20. In view of the aforesaid discussion, scrutiny of testimonies of prosecution as well as defence witnesses and the MLC of the victim, it is clear that the findings rendered by the learned Trial Court are based only on the testimony of injured witness. But in the absence of any medical evidence corroborating the allegation of the injured, convicting the appellants for the offence under Section 328 of IPC does not seem to be justified in the facts of the present case, especially when the prosecution has not seized any liquid/substance for taking expert opinion so as to know the substance was poisonous, stupefying, intoxicating or unwholesome drug. Prosecution has also not produced any witness to rebut the plea of alibi on behalf of the appellants except that of the injured witness. However, the appellants have produced two witnesses in their defence and merely because they did not prove the presence of the appellants at the spot, therefore, they were declared hostile.
32.All the aforementioned judgments have been relied and discussed in a recent judgment titled as Krishna Kant Vs. State ; (2023) 04 DEL 0021. Following observations made therein are pertinent to note :
"22. Though the learned Trial Court before holding the appellant guilty under Section 328 IPC took note of the serious SC No.1072/2016 State vs Bittoo @ Babloo & Ors 13 of 38 lapses in the investigation, it did not hold that those serious lapses resulted in the prosecution failing to connect the appellant to the offence in question since there was nothing on record to prove that any stupefying substance was administered to the complaint in this case, except his sole testimony.
23. To sum up, in the present case, (i) there is no medical evidence to prove that complainant was administered any stupefying, intoxicatingor unwholesome drug; (ii) the statements of the wife and the mother of complainant were not recorded who had allegedly found the complainant vomiting outside the house at Ballabhgarh; (iii) the concerned doctor was not examined who had medically examined the complainant in Ballabhgarh as he was taken to the hospital for treatment since he was vomiting and he had thought that he had been administered some stupefying substance; (iv) the statement of the owner of juice shop was also not recorded; and
(v) it is also not proved as to how the complainant reached his house at Ballabhgarh from Delhi in state of unconsciousness.
In such circumstances, the case against the appellant cannot be said to have been proven beyond reasonable doubt."
33.What is drawn from aforementioned judgments that prosecution is under an obligation to show that substance administered was some poison or unwholesome drug or stupefying substance. The effect of any such substance upon consumption by victim need substantiation by medical/expert evidence that it was in fact a poison or in the nature of any stupefying substance. Mere unconsciousness or frothing or drowsy feeling without underlining the cause ascertained through relevant medical pathological/serological examination would not suffice the requirement of Section 328 IPC.
34.The star witness of this case is PW4 Firoz who is the victim himself. In his deposition, he has narrated how six people including a woman SC No.1072/2016 State vs Bittoo @ Babloo & Ors 14 of 38 hired his erickshaw to commute from Seelampur to Chacha Nehru Hospital and back, where on way they got the rickshaw halted to buy a Frooti near Seelampur Metro Station and later also insisted him to drink. Upon reaching hospital, they left rickshaw asking him to wait as they were to go back to Seelampur, in the meanwhile, after they left, he felt giddiness and made a call to his mother. PW4 has deposed that people who hired rickshaw and insisted him to drink Frooti are the ones who looted him and fled away with his rickshaw as well as his two mobile phones. He was taken to LBS hospital in CATS ambulance and was discharged the following day. His statement was recorded the day after on 10.05.2014. PW4 further deposed that on 28.05.2014, at about 3.00 pm, when he was passing through SDM Office, Seelampur, he saw his battery rickshaw parked there with two persons sitting therein who made him drink frooti purportedly laced with stupefying substance and robbed his rickshaw and mobiles. He rushed to PS Geeta Colony, informed ASI Devender about presence of accused persons near SDM office. Thereafter, IO along with some other police officials alongwith and Firoz reached near SDM office wherefrom accused Bittoo and Kaptan Singh were arrested and rickshaw was recovered from their possession. PW4 further deposed that on 26.07.2014, he visited Karkardoom Courts where ASI Devender Prasad met him with accused Sunil Kumar near Court No.79 where he identified him as one of the offenders.
SC No.1072/2016 State vs Bittoo @ Babloo & Ors 15 of 38
35.Before moving further, it is noted that in the call made to police by his mother recorded as DD entry, there is mention only of theft of e rickshaw and that the witness was in unconscious condition, on the basis of which, FIR was registered as the person was medically opined to be still unfit for statement. It is noted that for the first time in the statement recorded on 10.05.2014 that there came mention of mobile phones as also allegedly stolen. It is noteworthy that he testified to have given a call to his mother when he started feeling giddiness and also drank water on her advice. Subsequently, he became unconscious. So, the narration does not raise any doubt at all till the hirers of rickshaw left and asked him to wait as they had to return back to Seelampur. PW4 has not stated that he saw or felt or noticed or had any semblance at that point of time that any of those people were to steal his rickshaw or mobile phone. It is an assumption that he later supposedly made when he linked the story and could join pieces of puzzle only to conclude that the frooti had some intoxicating or stupefying substance which was delirious to the human body but there is nothing whereby he could directly point finger and make assertions. He has not indicated any suspicious activity or any untoward conduct on the part of those hirers prior to the halt at Chacha Nehru Hospital.
36.PW4 himself deposed that he called his mother when he felt he was not fine and by that time, those people who had hired his rickshaw SC No.1072/2016 State vs Bittoo @ Babloo & Ors 16 of 38 had already left. PW4 Firoz was not present at someone's house or at a private place or at a secluded area rather in front of hospital with so many public persons thronging almost at all times. Judicial notice is taken that it is an area buzzing with public activity. It is not the case that the hirers were with him when it happened, waiting for him to feel drowsy and watching him when he fell unconscious. PW4 Firoz was right in front of hospital as admitted by him, so, naturally, there must be so many vendors, security guards, other rickshaw pullers or even policemen around, however, as he himself clarified in cross examination that he did not seek help from any person while he started feeling unwell and was oriented enough to make a call to his mother.
37.PW3 Smt. Shahjahan stated that she found her son unconscious and called police and that he was taken to hospital in police gypsy. PW1 Sh. Santosh Kumar Lawaniyan (Ambulance Driver) stated that Firoz was accompanied by his brother Arshad and not mother and he was taken to hospital in ambulance. It is noted that statement of Arshad, brother of Firoz has not been recorded. In fact, presence of Arshad has not been projected as part of prosecution story. It is therefore not even clear as to who called the CATS Ambulance since mother of Firoz called police and as per PW6 Ct. Mahender Singh, Firoz was already taken to LBS hospital when he alongwith ASI Devender reached at spot, wheres as per PW3, police officials shifted Firoz to SC No.1072/2016 State vs Bittoo @ Babloo & Ors 17 of 38 LBS hospital in police Gypsy. It is thus evident that there are inconsistencies in the depositions about the turn of events post call made by Firoz but at the same time, it cannot be said to be glaring enough to negate the entire testimony of Firoz. PW4 has supported the prosecution version and has testified as to what he went through irrespective of whether accused can be held responsible for that. It is however important to judicially scrutinize the oral testimony and see whether it falls in sync and is corroborated with other circumstantial material particulars produced by prosecution.
38.It is noted at this stage that not all six people including one female as allegedly involved in the crime were apprehended but only three. PW4 Firoz has not testified that it was any particular accused who had given him Frooti to drink, who had purchased the bottle of Frooti near Metro Station. Although, we are concerned and are examining the case only qua accused Sunil Kumar, certainly, PW4 has not stated about any direct role attributed to accused Sunil Kumar as to where he was sitting in erickshaw, what was he talking, was he the one who purchased bottle of frooti, whether he was sitting next to him, whether he insisted him to drink Frooti. There is not even a whisper about any distinct role in the chain of events against accused Sunil Kumar. There is no distinguishing feature or any striking fact as he noticed about accused which gave him clarity that he was the one amongst all those hirers and allegedly looted him.
SC No.1072/2016 State vs Bittoo @ Babloo & Ors 18 of 38 There is no independent witness produced or joined by prosecution to reflect upon condition of victim at the time of incident or who noticed any untoward movement or any fiddling with his person or property when he fell unconscious.
39.What is alleged is the purchase of bottle of Frooti. So, it is evident that those persons were not carrying the said bottle as the same was purchased later in the presence of Firoz. Firoz has testified that those people were also drinking from the same Frooti bottle and upon their insistence, he also drank few sips. There is mention of a glass with the hirers in his statement u/s 161 Cr.P.C. recorded on 10.05.2014 but same does not find any mention in his testimony so as to separate their drinking content from that of accused. So, both Firoz and hirers evidently drank from the same bottle. Subsequently, as deposed by him, the offenders left upon reaching Chacha Nehru Hospital, whereas he felt giddiness after some time. In the eventuality, it is to be examined whether Frooti was in fact laced with some stupefying substance and whether said drink could only and exclusively be the cause of such giddiness and that he could not have felt uneasy or drowsy because of any other intervening factor. Obviously that Frooti bottle was subsequently could not have been proved or produced. So, there was no occasion for examination of contents of bottle. The question therefore is as to how else could the same be ascertained. The answer lies in medical examination of victim, who SC No.1072/2016 State vs Bittoo @ Babloo & Ors 19 of 38 was allegedly administered intoxicating or stupefying substance. Victim was rushed to LBS hospital in few minutes after he felt drowsy. His MLC has been proved as Ex. PW8/A which is a vital piece of evidence in this case as that remains singular testament to opine about use of any delirious substance to the prejudice of victim. His case was managed and finally diagnosed as "unknown substance poisoning". It is noteworthy that Dr. Himanshu who had examined and managed the victim could not be examined as his address/posting particulars were not available. Therefore, there is no explanation or record which possibly could have been extracted from his examination as to on what basis did he so opine and what certainty was there of impeccability of that opinion. There is no chemical examination report or biological/serological examination report upon testing the contents of his stomach or his blood to conclude with certainty that he was indeed administered some poison or stupefying or intoxicating substance irrespective of whether the exact nature of substance could be determined or not. The Doctor who had managed the condition of Firoz always knew that it was a Medico Legal Case, so, it was imperative for the Doctor to send Gastric Lavage/Stomach Contents for examination or atleast the blood sample reports to understand the actual reason of giddiness felt by the victim and whether it can not be explained by any other means in the available circumstance but possibly, only to the drink SC No.1072/2016 State vs Bittoo @ Babloo & Ors 20 of 38 offered to him by the hirers. Even, IO did not bother to obtain stomach wash for sending the same to FSL to obtain expert opinion to fortify his investigation. No explanation for any such omission has been given by prosecution either.
40.The established legal position therefore is that some laboratory/biological/ examination report with expert opinion to ascertain the nature of substance allegedly consumed is imperative to conclude whether such consumption would fall within the domain of Section 328 IPC to attract culpability. However, as discussed above, in this matter, prosecution has only proved MLC with opinion of the Doctor that it was case of unknown substance poison but it is evident that any laboratory examination of blood sample or examination of the gastric lavage to ascertain the nature of substance has not been done with no reason on record as to why this was not resorted to when both IO as well as the Doctor concerned were well aware of the importance of such examination to prove the offence in question. Moreover, nothing is mentioned in the MLC apart from the opinion on the basis of which this must have been/could have been ascertained by the concerned Doctor. The Doctor has also not been examined and the other Doctor had merely read out the contents of the MLC. So, there is no evidence of the basis on which this opinion was given by the Doctor and therefore, it just cannot be accepted merely on face value to the prejudice of accused person.
SC No.1072/2016 State vs Bittoo @ Babloo & Ors 21 of 38
41.Proceeding further, accused Sunil Kumar was not apprehended and arrested at the spot but at the instance of other two accused persons after about 22 days of incident.
42.Ld. Counsel for accused Sunil Kumar admitted TIP which is put on record as Ex.A1 & A2, whereby he refused to undergo TIP on the premise that he was shown to several people including a woman to identify him. Although refusal does give way to adverse inference but that only can be a cog in the machine and cannot become the basis for to record conviction of accused. The requirement that his identity is proved beyond all doubt as one who committed crime, moreso, when the offence under scanner is grave and carries heavy punishment, cannot be ignored and cannot be left unsubstantiated, more so, when there is no direct evidence implicating the accused for commission of crime. Prosecution story is that two accused persons were apprehended at instance of Firoz who in turn made disclosure statements and it was at their instance that accused Sunil Kumar was apprehended from his residence. In fact, police custody remand of accused Kaptan was taken for apprehension of accused Sunil but it is nowhere mentioned in the disclosure statement recorded on 30.05.2014 that he knows the whereabouts of Sunil and that he can get the mobile phone recovered from him. It is mentioned in Seizure Memo of mobile phone that the said phone was found in the hand of Sunil when he was apprehended at his house. No independent public SC No.1072/2016 State vs Bittoo @ Babloo & Ors 22 of 38 person or any family member or any neighbour or any respectable person of locality was joined in when accused Kaptan was brought in for recovery of the mobile phone as well as for apprehension of accused Sunil Kumar.
43.PW5 ASI Subhash Mavi who had apprehended accused Kaptan and Bittoo alongwith the stolen erickshaw, as per prosecution story, from parking lot of SDM office, at the pointing out of Firoz, could not even identify accused persons and started pointing towards other accused persons present in the Court Room in the other cases which were not at all connected with the present matter. Subsequently, upon examination by Ld. Addl. PP, he again failed to identify accused Kaptan despite being pointed at and rather identified accused Sunil as accused Kaptan.
44.Similarly, PW7 ASI Hans Raj who was recorded to have resiled from his statement u/s 161 Cr.P.C. and was crossexamined by Addl. PP as he did not mention about recovery of other battery rickshaws, not connected with this matter which were got recovered at the instance of accused Bittoo and Kaptan from the garage of accused Kaptan. He also stated during his examination by Ld. Addl. PP that he was not aware whether phone recovered from accused Sunil make Samsung Galaxy actually belonged to complainant Firoz or not and he was also unable to specify whether accused Sunil was produced in SC No.1072/2016 State vs Bittoo @ Babloo & Ors 23 of 38 the court upon his apprehension and arrest on 03.05.2014 in muffled face or not. ASI Devender was the IO of the case on 28.05.2014 and 30.05.2014 who unfortunately expired and therefore, did not appear in the witness box to testify about the facts of the matter. ASI Hans Raj (PW7) could identify the two accused persons Kaptan and Sunil present in the court only upon pointing out by the concerned Ld. Addl. PP as earlier in his deposition he pointed towards accused Sunil and identified him as accused Kaptan and then he pointed towards Kaptan and stated that he was accused Bittoo @ Babloo, whereas Bittoo @ Babloo was not present in the court on that day. He also deposed that it was Sunil who disclosed that rickshaws were lying in the garage of Kaptan, whereas it is mentioned in the disclosure statement of accused Kaptan that two other battery rickshaws were parked in his garage. In the seizure memo of mobile phone placed on record as Ex.PW7/E, as per which, phone was recovered from the immediate possession of accused Sunil who was found present at his residence, whereas PW7 testified that he did not know as to what was recovered from the person of accused Sunil. He also clarified that no public witness was called upon to join at the time of seizure of mobile phone. There is however no reason given as to why any independent witness was not joined by the investigating officer and other police officials when they had occasion as well as the opportunity to do so, to establish the sanctity SC No.1072/2016 State vs Bittoo @ Babloo & Ors 24 of 38 of what they have done. The abovenoted observations reflect upon the honest efforts put in by the police officials for thorough investigation in this case which might entail serious consequences for the accused persons.
45.In Pawan Kumar vs The Delhi Administration, 1989 Crl.LJ 127, it is held that at the time of arrest and recovery, no independent witness was joined and therefore, arrest memo and recovery were held to be doubtful. Relevant to the context is the following observations :
""Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
46.Incident happened on 08.05.2014 whereas phone was allegedly recovered on 30.05.2014. Mobile number of Firoz was mentioned in the statement u/s 161 Cr.P.C. of Firoz recorded on 10.05.2014. There is no indication as to whether any attempt was made to track that SC No.1072/2016 State vs Bittoo @ Babloo & Ors 25 of 38 number or to tap the activity of phone by any means. It is strange that after more than 20 days of incident one who actually stole phone would keep it with him or use the same when he very well know that the phone could become a medium and cause of his apprehension. It appears very stage managed to say that accused Sunil was found in his residence with phone in his hand when he was apprehended as if he was waiting for officials to come and catch him. It severally effects the credibility of prosecution version. In respect to the identity of accused Sunil, PW4 Firoz deposed that he saw him on 26.07.2014 in the court premises when he happened to visit the court for some work. It is strange that Firoz was able to reach at SDM office and spotted his erickshaw parked coincidentally with two offenders whom he identified also and got them arrested and then, again he was present at the right spot at the right time and identified accused Sunil in court premises. On that day, accused Sunil was produced in the court for extension of his custody remand as evident from the remand orders but presence of Firoz cannot be explained except that he was given an intimation by the police officials for this purpose as well as for recording statement qua his identification. Firoz has not substantiated as to why he happened to be present on that day in the court as there is no presence in the custody remand papers and he has not stated that there was some other matter pending for which he came to attend. It is obvious that when he SC No.1072/2016 State vs Bittoo @ Babloo & Ors 26 of 38 spotted the person alongwith police official ASI Devender and is presumably told that his phone was allegedly recovered from him, which he got released on superdari then the possibility of independent identification is watered. It is also noted that this event was also after about two and half months of incident. Practically speaking, accused was identified by Firoz for the first time in court after three years of the incident and said formal identification without clarifying the role of accused, whether there was something he noticed about the role of accused Sunil during commission of offence or that he indulged in some positive act which distinguished him from the rest and that is how, in all clarity, with no confusion, can he state with conviction that he was one amongst those people who had shared the same intention and participated in the commission of crime.
47.In the above context, observations made in case titled as "Lalit Kumar @ Sonu vs State of NCT of Delhi [CRL.A. 711/2009 ( decided on on 20 September, 2010)]", by Hon'ble High Court of Delhi are relevant to peruse : "17. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court.
SC No.1072/2016 State vs Bittoo @ Babloo & Ors 27 of 38 The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Admn. Vaikuntam Chandrappa V. State of A.P., Budhsen V. State of U.P. and Rameshwar Singh v. State of J&K)."
48. Similarly, in Anoop Singh vs State 1994 Crl.LJ 3442, the Hon'ble Delhi High Court held that the witness identified the accused after lapses of couple of year is not reliable.
49.In Mohd. Abdul Hafeez vs State of Andhra Pradesh, AIR 1983 SC 367, it was held that the victim gave no description and no TIP was held, accused was convicted on the basis of identification for the first time in the court. Held conviction was not sustainable.
50.In Govind & Ors vs State of Madhya Pradesh, 1994 Crl.LJ. 938 (Supreme Court), accused who was identified for the first time SC No.1072/2016 State vs Bittoo @ Babloo & Ors 28 of 38 before the court, was given benefit of doubt.
51.In Hasib vs The State of Bihar, AIR 1972 SC 283, in this case also similarly for the first time identification of the accused in the court was held to be weak type of evidence.
52.The above discussion shows that identification of accused Sunil Kumar by PW4 Firoz cannot be placed with unassailable reliability without independent material corroborations.
53.Accused Sunil has also been charged with for commission of theft of erickshaw and mobile phone for commission of offence punishable u/s 379 IPC. Section 378 IPC defines theft and Section 379 IPC prescribes the punishment therefor. Sections 378 and 379 IPC are reproduced hereunder for ready reference :
"378. Theft.--Whoever, intending to take dishonestly any movable 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.
379. Punishment for theft.--Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
54.Above stated discussion answers the charge of theft also inasmuch as there is no positive evidence to show the presence or participation of accused in the alleged offence, given the serious doubt about his role as well as basis and manner of his identity by only witness Firoz, SC No.1072/2016 State vs Bittoo @ Babloo & Ors 29 of 38 with absolutely no other plank to base the accusation against accused Sunil except his refusal to TIP. The reason given by accused Sunil cannot be totally thrown to winds and the possibility/truthfulness in his statement/reason to refuse participation in TIP, cannot be denied in totality.
55.It was alleged against accused Sunil that he acted in furtherance of commonality of intention alongwith the other coaccused persons to commit the offence in question. As presence of accused with others during the incident has not been proved, there is no further discussion liable to be held in that context. Whether or not accused Bittoo or accused Kaptan were liable cannot be brought under scrutiny within the scope of discussion here as matter already stands abated against accused Kaptan and accused Bittoo has been running Proclaimed Offender. There is no evidence produced by prosecution that there was any planning or that the accused persons knew each other or kept in touch or that they had sorted out their roles or that they committed similar offences previously or subsequently to adjudge from their act and conduct during commisson of offence that they were the ones who made a ploy and brought it into action. In this matter, it has not been proved that accused Sunil played some role or acted to help the other accused persons or participated in some manner or engaged with others or was even present at the time of commission of offence. Therefore, it cannot be said that he shared SC No.1072/2016 State vs Bittoo @ Babloo & Ors 30 of 38 any commonality of intent with any of the coaccused persons in order to successfully conclude the planned crime. There is nothing mentioned about Firoz in his testimony as to how those persons connected amongst each other and whether he could decipher by the displayed conduct of those accused persons that they knew what other was upto and that they acted in tandem with each other for the commission of offence. The prosecution has therefore, not been able to produce evidence to draw any positive conclusion in its favour and against the accused persons.
56.Alternatively, accused has been charged with commission of offence punishable u/s 411 IPC, which stipulates the punishment for receiving or retaining the stolen property. Section 410 IPC defines the stolen property. Section 410 and 411 are reproduced hereunder :
"410. Stolen property.--Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which 1[***] criminal breach of trust has been committed, is designated as "stolen property", 2[whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without 3[India]]. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.
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."
SC No.1072/2016 State vs Bittoo @ Babloo & Ors 31 of 38
57.The offence punishable u/s 411 IPC has to be read in conjunction with presumption u/s 114 of Indian Evidence Act. Section 114 of Indian Evidence is reproduced hereunder for ready reference :
"114. Court may presume existence of certain facts. --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."
58.Illustration (a) to Section 114 Indian Evidence Act is reproduced hereunder :
"that a man, who is in possession of stolen goods soon after the theft is either the thief or he has received the goods knowingly them to be stolen, unless he can account for his possession"
59.Illustration 'A' harps on common course of natural events and human conduct and provides that any person found in possession of proceeds of crime soon after its commission could either be a thief or intentional receiver of stolen property. Interpretation of expression "soon after" is very important and is explained by Hon'ble Supreme Court of India in Errabhadrappa Vs. State of Karnataka : AIR 1983 SC 446 that there cannot be any fixed duration or any straight jacket method and it depends upon the nature of stolen property to determine whether the possessor of property can be stated to have recent possession of the stolen proceeds.
SC No.1072/2016 State vs Bittoo @ Babloo & Ors 32 of 38
60.The prosecution story is that mobile phone of Firoz was recovered from the possession of accused Sunil who was apprehended at the instance and pointing out of accused Kaptan. There is absolutely to thread connecting these three accused persons except the story projected by the police officials, whereas in their respective testimonies, they have faltered not only with respect to the recovery attributable to accused person but also with respect to his identification. There is absolutely no independent corroboration to the role assigned to accused person apart from formal documentation qua recovery made by the police officials. There are too many happy coincidences in favour of complainant as well as investigation which give rise to serious doubt about the neutrality of the investigation. In this case, IMEI number of phone was mentioned in statement u/s 161 Cr.P.C. of Firoz recorded on 10.05.2014, although there is no whisper of any theft of mobile phone when the call was made to the police. Same however is explainable that his mother must not have even figured out at that point of time that his phone was missing as she herself received the call from her son few minutes back but as she stated he was unconscious and therefore, could not have been in a position to understand as to what was going on and whether someone had taken his phone but then the possibility of involvement of any other person to simply sneak out the mobile phone while he was unconscious cannot be ruled out in these SC No.1072/2016 State vs Bittoo @ Babloo & Ors 33 of 38 circumstances. Firoz has also placed on record the bill of mobile phone which was verified by Investigating Officer and which has been proved by PW9 Deepak Gupta.
61.As already mentioned, there are bald assertions on the part of police officials for theoretical recovery of mobile phone from the possession of accused Sunil after 22 days of incident which cannot be relied upon. The entire exercise smacks of a deliberation on the part of prosecution to get the facts right and put the pieces in place so as to conclude the investigation.
62.Investigating Officer ASI Devender who was a primary witness in the apprehension and arrest of all the accused persons as well as of the recovery is no more and therefore primary material witness with respect to recovery of stolen property from accused Sunil could not be substantiated, moreso, as the other witness neither could explain important material particulars about the stolen or recovered property nor did the disclosure statement of accused Kaptan found mention that he could get mobile phone recovered from accused Sunil or that he knew where accused Sunil lived and could reach out to him nor could identify accused Sunil while in the dock, which brings in serious doubt about the authentication and genuineness of the recovery proceedings undertaken without following any procedural protocol to sanctify the same.
SC No.1072/2016 State vs Bittoo @ Babloo & Ors 34 of 38
63.It is imperative for this offence to be made out against accused persons that the person not only is proved to be in possession of the stolen property from whom it was so recovered but also that he had intentionally received it or had the necessary knowledge that the said property received or retained by him was proceeds of a crime. In this case, there is absolutely no positive evidence first to show the recovery from the possession of accused Sunil and secondly, even for the sake of assumption, recovery of stolen mobile phone is taken to be true, even then, there is no evidence to show that he had the requisite knowledge of said mobile phone being a stolen property else, he would not have either taken it or continued to remain in possession of that phone in his house itself.
64.It is important for any recovery shown u/s 411 IPC to prove that the property had changed hands and therefore, the subsequent person became the receiver or retainer of stolen property and becomes liable as such.
65.Further, as already pointed out, that it depends upon the nature of property to hold as to whether person has been found soon after the commission of crime with the said stolen property. In the case at hand, it is about a mobile phone and gap duration is 22 days and therefore, it cannot be said that accused Sunil was found in possession of stolen mobile phone soon after the commission of SC No.1072/2016 State vs Bittoo @ Babloo & Ors 35 of 38 crime as nature of property is a mobile phone which can exchange hands in a matter of minutes and several times during course of even one day and therefore, it cannot be said that any person found in possession of mobile phone as stolen property after 22 days of incident could be termed as falling within domain of expression "soon after" and therefore would invoke presumption against accused person shifting the burden upon accused to explain otherwise. An innocent purchase or retention of property as mobile phone cannot be strictly ruled out considering the amount of duration passed between the commission of offence and the recovery.
66.As discussed above, the recovery is not proved, identification of accused is doubt, there is a long duration gap between the apprehension, formal arrest, recovery and the alleged commission of offence, the investigation appears to be lopsided and obscured without any independent substantiation. Witness Firoz is the star witness and has narrated the incident as he could figure out or understand and has also supported the prosecution version but many material details are missing therefrom and it cannot be stated with certainty that accused Sunil committed the offence. There is no cogent, convincing, unassailable evidence to conclude that any poisonous or intoxicating or stupefying substance was administered to Firoz, although, there is a medical opinion in this respect but there is no independent laboratory/toxilogical/forensic examination of SC No.1072/2016 State vs Bittoo @ Babloo & Ors 36 of 38 gastric lavage or his blood sample to ascertain the nature of substance, administered to him and also to draw link between his physiological characteristics/symptoms and the effect of these alleged delirious substance on his physical and mental equilibrium. Mere medical opinion without any test reports after thorough chemical examination or pathological determination, it is unsafe and unfair to hold accused guilty of intentionally, administering the poison or intoxicant in order to commit any offence. There is also no evidence to prove that accused has been identified to be one of the culprits who looted the victim in broad day light in a public area.
67.Prosecution is under a bounden duty to prove its case against accused beyond all reasonable doubt. The observation of Hon'ble Supreme Court of India in case of Rang Bahadur Singh Vs. State of U.P. 2000 II AD(S.C.) 103, are relevant in this context and are reproduced as under :
"Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction can not be passed on the accused. A criminal Court cannot afford to deprive liberty of the appellants, life long liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."
SC No.1072/2016 State vs Bittoo @ Babloo & Ors 37 of 38 CONCLUSION :
68.Summing up the abovesaid discussion, it is held that prosecution has failed to lead reliable evidence to hold and sustain the nature of charges levelled against accused Sunil Kumar. Consequently, accused Sunil Kumar is acquitted of the charge for commission of offence punishable under Sections 328/34 IPC, 379/34 IPC and 411 Digitally signed IPC. SHELLY ARORA by SHELLY ARORA Date:2023.10.30 16:48:26 +0530 (Shelly Arora) Additional Sessions Judge05 East/Karkardooma Courts/Delhi Announced in the open court on this 30th day of October, 2023 SC No.1072/2016 State vs Bittoo @ Babloo & Ors 38 of 38