Delhi District Court
State vs . Raju on 27 February, 2012
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IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 125/08)
Unique ID case No.02404R0656872007
State Vs. Raju
FIR No. : 592/07
U/s : 328/379/34 IPC
P.S. : Model Town
State Vs. Raju
S/o Sh. Suresh
R/o Village Varkatpur,
PS Chittari, Distt. Bulandshehar, UP
Present Address
Village Sherpur, Kirayewali Gali,
Khajuri Khas, Delhi.
Date of institution of case17.04.2008
Date on which, judgment have been reserved17.02.2012
Date of pronouncement of judgment 23.02.2012
S.C No. 125/08 State vs. Raju etc. 1/16
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JUDGMENT:
1. Case of the prosecution, as is borne out from report u/s 173 Cr.P.C, is that on 10.09.2007, Sh. Joginder was returning from Shakti Nagar after leaving some articles on his rickshaw and when he reached at G.T.K Road, Rana Pratap Bagh Gol Chakkar, accused Raju and Adil (not arrested) met him there and asked Joginder to hire his rehri as they had to take some goods to Azadpur, to which Joginder agreed. On the way, a bottle of Campa Cola, lacerated with intoxicating drug was given to Joginder by those boys and accused Raju himself drank a normal Campa Cola. After drinking the said Campa Cola, Joginder felt some headache and began to loose his consciousness. Accused Raju and Adil took the rickshaw/rehri and Rs. 1,000/ cash belonging to Jogender, on which he raised alarm and accused Raju was apprehended at spot by the public persons. In the meantime, Smt. Sarojmother of Joginder also reached there and she found her son Joginder lying in intoxicated condition. On asking by Smt. Saroj, Joginder told her all the facts and became unconscious. At that time, accused Raju was in custody of other two boys. ASI Suraj Bhan and Ct. Krishan Pal Malik, who were patrolling in the area also reached the spot, removed the injured to hospital, and arrested accused Raju. Statement of Smt. Saroj was recorded and on the basis of her statement, rukka was prepared and the present FIR was got registered at the PS Model Town. Investigation was carried out and after completion of investigation, the charge sheet was prepared and was filed in the court.
2. Accused Adil could not be apprehended and he was declared as proclaimed offender by the ld. Metropolitan Magistrate.
S.C No. 125/08 State vs. Raju etc. 2/16 3
3. Upon committal of this case to the court of Sessions, charge for the offence under Sections 328/379/34 IPC was framed against accused Raju. However, accused Raju pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
4. In order to prove its case the prosecution has examined the following witnesses.
The public witness/complainant Smt. Saroj was examined as PW2 and she fully supported her complaint Ex. PW2/A. She deposed that on 10.09.2007, when her son Jogender, who went to Shakti Nagar from Subzi Mandi, did not return after considerable time, she went towards Shakti Nagar in search of her son. She further stated that when she reached near Gol Chakkar of Rana Pratap Bagh, she found her son Jogender lying in an intoxicated condition and on asking, her son had told her that on his way back, when he reached at GT Road, two boys met him and asked him to load their articles in his rickshaw and they had also given him a bottle of Campa Cola and after consuming the same, he became unconscious and one of the boy took away his rickshaw and on his alarm, other boy was caught by two other boys. She further deposed that thereafter his son became unconscious and police reached there and recorded her statement and arrested the accused Raju. She has correctly identified the accused Raju in the court.
The another important witness of prosecution i.e. injured Joginder was examined as PW3 and he deposed on the same line as deposed by his mother Saroj. He further stated that he also found his cash amount of Rs. 1,000/ missing from his pocket as the same was taken away by the accused persons after giving him Campa Cola mixed with some intoxicant.
S.C No. 125/08 State vs. Raju etc. 3/16 4 PW1 Ct. Krishan Pal Malik deposed that on 10.09.2007, he along with PW9 HC Suraj Bhan was patrolling in the area of PS Model Town and on that day, at about 2.15 pm, when they reached at Rana Pratap Bagh near Gol Chakkar, they saw the accused Raju had been apprehended by two boys and a lady was standing besides them and one boy was sitting on the ground in semi conscious state. He further deposed that on inquiry, that boy i.e. Jogender told them that accused Raju and his associate asked him to take their luggage somewhere from Rana Pratap Bagh and gave him cold drink to drink and after consuming the said Coca Cola, he became semi unconscious and in the meantime, two friends of Jogender and his mother also came there and Jogender told them entire incident, on which the accused Raju was apprehended at the spot, but his other associate manged to escape with his cycle rickshaw. He further deposed that injured was removed to hospital and custody of accused Raju remained with him. He further deposed that thereafter, he took the rukka Ex. PW9/A to the PS and got the present case registered. He further deposed about arrest of accused Raju and disclosure statement made by him and proved arrest memo of accused as Ex. PW1/A, personal search memo as Ex. PW1/B and disclosure statement of accused as Ex. PW1/C. .
PW4 Ct. Govind Singh deposed that on 10.09.2007, he was posted as duty constable at Hindu Rao Hospital, when patient Joginder was admitted in hospital and after examination of patient, doctor handed over him a gastic libas with sample seal of HRH, which he handed over to the IO.
PW5 HC Om Prakash deposed that on 10.09.2007, he was working as duty officer at PS Model Town and on that day, he made endorsement Ex. PW5/B on the rukka and recorded the present FIR Ex. PW5/A. PW6 Dr. Ritu Kaushik has appeared on behalf of Dr. Kiran Gujre, who had examined the patient Joginder and proved the MLC of patient Joginder as Ex. PW6/A. S.C No. 125/08 State vs. Raju etc. 4/16 5 PW7 Sh. Jitender Kumar, Sr. Scientific Asstt. (Chemistry) deposed that he has examined the exhibit in present case and on examination, no common poison was detected in exhibits. He has proved his report as Ex. PW7/A. PW8 Ct. Sanjay Dahiya had taken the exhibits to the FSL, Rohini and deposited the same there vide different R.C.s and deposed regarding the same.
PW9 ASI Suraj Bhan along with PW1 Ct. Krishan Pal were patrolling in the area, when they found the injured Joginder in unconscious condition. The PW9 deposed on the same line as deposed by PW1 and also further deposed about the investigations carried by him and documents prepared by him during the course of investigation. He also proved rukka as Ex. PW9/A and the site plan as Ex. PW9/B and stated that after completion of investigation, he had filed the challan in the court.
PW10 HC Parmod Kumar, who was working as MHCM at PS Model Town at relevant time and deposed about deposit of exhibits with him and proved the entry Ex. PW10/A in this regard. He further deposed about sending of exhibits of the present case to FSL, Rohini vide RC no. 159/21/07, 164/21/07 through Ct. Sanjay and receiving of parcel along with FSL report. He proved the entry in register no. 19 as well as copy of RCs as Ex. PW10/B to Ex. PW10/G in this respect.
6. After recording of prosecution evidence, statement of accused Rajesh u/s 313 Cr.P.C was recorded, wherein all the incriminating evidence was put to the accused which he denied as incorrect. Accused Raju claimed to be innocent. He did not lead any evidence in his defence.
5. Arguments put forward by Ld. Addl. PP for State and Ld. defence counsel for the accused heard.
S.C No. 125/08 State vs. Raju etc. 5/16
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6. It has been submitted by Ld. Addl. PP that in view of the evidence
particularly of PW2 Smt. Saroj and PW3 Joginder, adduced on record, prosecution has succeeded in proving its case against accused Raju beyond reasonable doubt and it is prayed that he be held guilty for the offences punishable u/s 328/379/34 IPC and he be convicted accordingly.
7. Ld. Defence counsel has contended that accused is innocent and he has been falsely implicated in this case It is also contended that FSL result does not support the prosecution case and that nonrecovery of rickshaw rehri and failure to arrest the co accused Adil also are also fatal to the prosecution case and accordingly, it is prayed that accused be acquitted of charges u/s 328/379/34 IPC.
8. In the present case, accused Raju along with coaccused Adil (Proclaimed Offender) are alleged to have been acted in furtherance of their common intention and given cold drink laced with intoxicating drug to victim Jogender with intention to commit theft. After consuming the cold drink given to him by the accused persons, victim became unconscious and thereafter accused Raju along with his coaccused Adil committed theft of rickshaw and cash amount of Rs. 1,000/ from the possession of victim Jogender. Present case has been registered on the complaint made by Smt. Saroj, mother of victim Jogender, who stated that on the date of incident, her son Jogender had gone with his rickshaw (used to ferry goods) and when he did not return back for a long time, she went in search of him. She further stated that when she reached at Golchakkar of Rana Pratap Bagh at about 2.00 pm, she found her son in an intoxicated condition. On query, he told her that he had met two boys, who had engaged him to carry some S.C No. 125/08 State vs. Raju etc. 6/16 7 goods and on this pretext, brought him to golchakkar, where they gave him a Campa Cola to drink, as a result of which, he became intoxicated. One of the two boys thereafter took away rickshaw of her son Jogender, while the other was caught by two other boys at the spot. Thereafter, Jogender became unconscious. Complainant Saroj handed over the boy, who had been apprehended on the spot and whose name was later on revealed to be accused Raju, before the police persons. The complainant appeared before the court and deposed as PW2, wherein she has reiterated averments made by her in her complaint Ex. PW2/A. She has also identified accused Raju as the person, who was apprehended at the spot after the incident. She identified her signatures on personal search memo and arrest memo of accused, which was then exhibited as Ex. PW1/A and Ex. PW1/B, respectively.
9. It appears from the perusal of the record that victim/injured Jogender remained unfit for statement and ultimately his statement could be recorded by the IO only on 13.09.2007. Victim/Injured Jogender was examined as PW3 and he deposed with clarity regarding the manner in which accused Raju and his coaccused Adil engaged his services, on the day of incident, on the pretext that they wanted to hire his rickshaw for taking some goods to Azadpur and on reaching by the side of Golchakkar of Rana Pratap Bagh, they told him that it would take some time to bring the goods and in the meantime, they offered him Campa Cola. He identified accused Raju as the person, who had purchased the two bottles of Campa Cola, out of which, one was consumed by accused Raju and other was given by him to complainant to drink He also deposed that after drinking the said Campa Cola, he started having headache and became unconscious and that before he became unconscious, he saw one of the boys taking away his rickshaw rehri and further saw that accused Raju was also trying to S.C No. 125/08 State vs. Raju etc. 7/16 8 escape from the spot and that he raised alarm, on hearing which, accused Raju was overpowered at the spot itself by public persons and his mother had also reached the spot, after which he became unconscious. He further deposed that he regained consciousness on 11.09.2007, at Hindu Rao Hospital, he found that cash of Rs. 1,000/ was missing from his pocket. MLC of the victim has been proved as Ex. PW6/A by PW6 Dr. Ritu Kaushik, who identified handwriting and signatures of Dr. Kiran Gujre thereupon. MLC Ex. PW6/A reveals that victim Jogender was admitted in the hospital with history of consumption of liquid by some unknown person. His stomach wash was taken and sent to FSL. PW7 Sh. Jitender Kumar, Senior Scientific Assistant, FSL proved the report of chemistry examination of exhibit i.e. stomach wash of victim as Ex. PW7/A and he deposed that no common poison was detected in the exhibit examined by him. It is noteworthy that neither PW1 nor PW3 have been crossexamined on behalf of the accused despite opportunities having been given to him and thus, testimonies of PW2 complainant as well as PW3 victim have remained unrebutted and unchallenged. Identity of the accused Raju as one of the offenders stands firmly established from the testimonies of PW2 and PW3.
10. The first issue which arises for consideration is whether in absence of finding of poisonous substance in gastric lavage/stomach wash of victim is fatal for the prosecution case or not. To appreciate this, it is necessary to dwell upon the necessary ingredients of Section 328 IPC, which reads as under : Section 328 :Causing hurt by means of poison etc., with intent to commit an offence : Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it be S.C No. 125/08 State vs. Raju etc. 8/16 9 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.
11. A perusal of the aforesaid Section would show that the following elements are essential to constitute an offence under Section 328 I.P.C. :
(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 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 this Section.
12. Let us examine whether in the present case the prosecution, from the testimony of its witnesses and documents placed on record, has been able to bring out the essential ingredients required to constitute an offence U/S 328 IPC and successfully proved commission of an offence U/S 328 IPC by the accused.
13. The provisions of Section 328 IPC came up for consideration before the Hon'ble Bombay High Court in a case of Madhukar Damu Patil Vs. State of Maharashtra, 1996 CRI.L.J. 1062. The facts of the said case were that a simple, innocent lady, aged about 50 years, was administered some stupefying, intoxicating or unwholesome drug or any other thing mixed in sugarcane juice, by the accused, in S.C No. 125/08 State vs. Raju etc. 9/16 10 furtherance of his common intention with his coaccused, in a planned and calculated manner in a public place. Thereafter, ornaments which the lady was wearing were stolen by the accused persons. One of the grounds of challenge which came up for consideration before the court was whether offence committed by the appellant would not fall in ambit of section 328 IPC because the prosecution had failed to adduce evidence to the effect that any poison was administered by appellant or his companion.
After critical analysis of Section 328 IPC, it was observed in this judgment that : "... An analysis of the provisions contained in the Section exposes the fallacy of Mr. More's contention that in order to constitute an offence under Section 328 I.P.C., it is incumbent that some evidence should be led by the prosecution to prove that any poison was administered to the victim. The language of the Section clearly shows that the act of administering any stupefying intoxicating or unwholesome drug or any other think 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, would also fall within the mischief of the Section. ....."
It was further held that : "..... It needs to be emphasised that administering of poison of only one of the modes by which an act may fall within the mischief contemplated by this Section...."
14. Similar view has been taken by the Hon'ble Madras High Court in judgment titled as Xavier alias Thambi v. Inspector of Police cited as 1993 Crl.L.J. 3506 and by the Allahabad High Court in judgment titled as Gaya Prasad v. State of U.P., 1996 Crl. L.J. 1599.
S.C No. 125/08 State vs. Raju etc. 10/16 11
15. In the instant case also from the statement of victim, it stands established that some stupefying or intoxicating or unwholesome drug or some other thing was given to him with intention to commit theft of his rickshaw rehri and Rs. 1,000/ by the accused Raju in furtherance of his common intention with his coaccused Adil (who is P.O) and therefore, offence u/s 328 IPC read with Section 34 IPC is made out against accused Raju.
16. Ld. Counsel for accused Raju has contended that since the two boys from the public, who are stated to have been apprehended the accused Raju on the spot were not joined in the investigation, the prosecution case cannot be believed to be true. In this regard, no lacuna or lapse on the part of complainant or the victim is found and the responsibility, if any, in nonjoining the independent public witnesses, who could have been material eyewitnesses in investigations, lies squarely with the IO and victim cannot be penalized for such a lapse on the part of the IO.
17. The mandate of judicial decisions is that the omissions and serious lapses on the part of Investigating Officer would not effect the prosecution unless some prejudice is shown to have been caused to the accused. In case of Karnel Singh Vs. State of MP (1995) 5 SCC 518 conviction of accused U/S 376 IPC was challenged before Hon'ble Supreme Court and one of the grounds of challenge was defective investigations. The Investigating Officer of the case had not only failed to record statement of two material witnesses but had also drawn up a defective seizure memo. It was held in this case that in cases of defective investigation the court has to be circumspect in evaluating the S.C No. 125/08 State vs. Raju etc. 11/16 12 evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective.
18. In another case namely Baleshwar Mandal Vs. State of Bihar, 1997 AIR SC 3471, omission on the part of Investigating Officer in not sending the earth seized from place of occurrence for chemical examination and not entering the time of recording of statements of witnesses in diary was held not to have adversely effected the case of prosecution. The consistent testimony of eye witnesses was found to be trustworthy and sufficient to uphold the conviction of accused U/S 302 IPC notwithstanding the lapses on the part of the Investigating Officer.
19. The aspect of lapse on the part of prosecution also came up before Hon'ble Supreme Court in case of Sukhdev Yadav Vs. State of Bihar AIR (2001) SC 3678. In this case conviction of accused U/S 302 IPC and sentence of imprisonment for life to the appellants was challenged. The Hon'ble Supreme Court emphasized that the issue of lapse has to be considered from the point of view of credibility of witnesses and in the event of there being a credible evidence on record, a lapse pertaining to non production of seizure list does not really effect the prosecution case in any way the issue has to be dealt with from the point of view of prejudice to the accused.
20. In said case the court referred to its earlier judgment in case of Shiv Nath Singh and Another Vs. State of UP, 1994 (1) RCR (Crl.) 714 SC and held that True, as noticed above there are lapses, but the question that arises for consideration is S.C No. 125/08 State vs. Raju etc. 12/16 13 whether any prejudice has been caused by reason of such a lapse, if the answer thereto is in the affirmative obviously it will have a serious impact on to the trial but if in the event however, it is on the negative, no prejudice can be said to have been caused and correspondingly question of the trial being vitiated would not arise. The eye witnesses account as available on record cannot but be termed to be trustworthy and by reason therefor, the lapses stand overshadowed by the testimony of the eyewitnesses.
21. In the present case, testimonies of PW2 Smt. Saroj and PW3 Jogender is not only credible but is duly corroborated by the testimonies of other police officials i.e. PW1 Ct. Krishan Pal and PW9 ASI Suraj Bhan, who had reached the spot immediately after the incident and had arrested the accused from the spot. As such, the other witnesses examined by the prosecution have also provided important link in completion of the chain of events and lapse on the part of IO to join public witnesses in investigation cannot over shadow the testimonies of Victim Jogender and his mother Smt. Saroj.
22. The last contention raised by the learned counsel for the accused is that since, coaccused has not been arrested and recovery of stolen rickshaw has also not been effected, the prosecution has failed in proving its case against the accused. This contention of the learned defence counsel for accused is without any merits, since record reveals that despite efforts, Investigating Agency could not apprehend co accused Adil and necessary steps for procuring his presence through the court were taken and ultimately he was declared a proclaimed offender. It is clearly borne out from the statement of victim Jogender that his rickshaw rehri had been taken away by S.C No. 125/08 State vs. Raju etc. 13/16 14 accused Adil, who could not be apprehended in the case. In these circumstances, failure on the part of Investigating Agency to recover the stolen rickshaw rehri cannot be taken to be a circumstance against the prosecution case.
23. The victim has clearly stated that accused Raju along with his coaccused Adli had committed theft of his rickshaw rehri and cash amount of Rs. 1,000/ and none of the stolen articles have been recovered till date. As already observed hereinabove, it stands proved that accused Raju along with coaccused Adil (since P.O.) had administered some stupefying or intoxicating or unwholesome drug or some other thing to the victim with intention to commit theft of his rickshaw rehri and Rs. 1,000/ cash, therefore, besides offence u/s 328 read with Section 34 IPC, offence u/s 379 IPC read with Section 34 IPC is also made out against the accused Raju.
24. Thus, in view of the above discussion and observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that the prosecution has successfully proved the guilt of the accused on record, beyond any doubts. Accordingly, I hold the accusedRaju guilty for the offences punishable u/s 328/379/34 IPC. He is convicted accordingly.
(Announced in the open Court) (Illa Rawat) (Today on 23.02.2012) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi S.C No. 125/08 State vs. Raju etc. 14/16 15 IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE (NORTHWEST)01, ROHINI : DELHI (Sessions Case No. 125/08) Unique ID case No.02404R0656872007 State Vs. Raju FIR No. : 592/07 U/s : 328/379/34 IPC P.S. : Model Town State Vs. Raju S/o Sh. Suresh ORDER ON THE POINT OF SENTENCE 27.02.2012 Present: Ld. APP for the State.
Convict produced from J.C., with Sh. G.D. Gupta, Advocate. Arguments heard on the point of sentence. File perused.
Learned counsel for the convict submitted that he is of young age having wife and two small daughters with no one to look after them. It is also stated that father of convict has also expired about four/five months back and he is required to look after his widow mother and two unmarried sisters too. It is stated that convict is the sold bread earner of his family and that he belongs to a very poor family and that he is not having any previous criminal record and that he has already remained in custody for a period of about 131/2 months during the trial. It is prayed that a lenient view may S.C No. 125/08 State vs. Raju etc. 15/16 16 kindly be taken and he may be released on probation of good conduct and be given a chance to rehabilitate himself in the society. Ld. counsel further prayed that he may be sentenced for the period, he had already remained in J.C. Per contra, Ld. Addl. PP for the State submitted that convict has committed a serious offence of administering of some stupefying, intoxicating or some unwholesome drug to the complainant to facilitate himself and his coaccused Adli (since P.O.) to commit the offence of theft and later on, convict Raju in furtherance of the common intention with coaccused Adil had committed theft of his rickshaw rehri and Rs. 1,000/ belonging to the complainant Jogender. It is prayed that no leniency be shown to him and maximum punishment be awarded.
Keeping in view all the submissions, facts, circumstances of the case and the gravity of offence, I sentence convict Raju to rigorous imprisonment for four years along with a fine of Rs. 5,000/ for the offence punishable u/s 328 IPC, in default of payment of fine, to undergo S.I., for six months. Convict Raju is further sentenced to rigorous imprisonment for two years along with a fine of Rs. 1,000/ for the offence punishable u/s 379 IPC, in default of payment of fine, to undergo S.I., for one month. Both the sentences shall run concurrently.
Benefit of Section 428 Cr.P.C be given to him.
Copy of judgment and copy of order on the point of sentence be given to the convict, free of cost.
File be consigned to record room.
(Announced in the open Court) (Illa Rawat)
(Today on 27.02.2012) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
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