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18.PW8 SI Daya Chand appeared in the witness box and gave his examination in chief was recorded. His cross-examination was deferred. This witness did not return to the court for his cross-examination. Hence, testimony of this witness cannot be read in evidence. State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 15 / State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 16 /

19.Inadvertently, SI Hari Singh has been marked as PW8. He appeared in the witness box and deposed that on 15.02.2005 he received present case file from SI Yogesh Malhotra on the direction of SHO to investigate the present case as main I.O. SI Yogesh was out of station. He inspected the file and one of the accused namely Aziz @ Kabir, who was on police remand was interrogated by him also. His disclosure statement was earlier recorded by SI Yogesh. He further deposed that during interrogation, accused Aziz told him that he had sold out the tempo to one Debu r/o Distt. Nawan Shahar, Punjab, which was stolen from area of Police Station Nand Nagari in the present case. He further deposed that thereafter, he along with Ct. Vijay and Ct. Sukhdev took accused to Nawan Shahar, Punjab in a private vehicle for recovery of tempo. The investigation was also made there regarding one mobile phone number which was already mentioned in the FIR but it was revealed that the said mobile phone did not operate in the said area. It was revealed during investigation that said mobile phone was used in the area of Calcutta, West Bengal. He further deposed that he made search for recovery of tempo and the person namely Debu in Punjab in different districts as per disclosure of accused Aziz but neither State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 17 / tempo could be recovered nor Debu could be arrested. On 16.02.2005 the police team came back to Delhi. He further deposed that on 17.02.2005 accused Aziz was produced by him before the concerned court in Delhi. He further deposed that accused Aziz was released by the Ld. MM as there was no evidence against accused Aziz. He further deposed that on 04.03.2005 other accused persons namely Raju, Dharambir, Kamal and Paan Gopal who were already in the judicial custody in the present case were produced in the court and their JC remand was got extended from the court. All of them were identified by Monu, driver of the stolen tempo who were involved in the incident with him. He further deposed that he recorded his statement u/s 161 Cr.P.C. He identified the accused persons Raju, Dharambir and Kamal whose JC remand was got extended by him. This witness has not been cross examined by ld. defence counsel.

20.PW9 HC Yashpal appeared in the witness box and deposed that on 01.02.2005 he was posted as Ct. in Crime Branch, Dev Nagar, Delhi. On that day, he along with SI Ram Avtar, SI Daya Chand, ASI Tilak Raj, HC Vijay Pal, Ct. Virender and Inspector Mahesh Tholia left in a State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 18 / private TATA Sumo vide DD No.22 at around 9:00 p.m. for West District, Main Rohtak Road on secret information. At around 9:30 p.m. the police team reached at Manohar Park, Punjabi Bagh, one informer met HC Vijay Pal and he informed that at around 11:00 p.m. some criminals belonging to Aziz gang, who used to rob the drivers on the highways after serving them intoxicated material, would come from the side of Pira Gari and go towards Naraina Loha Mandi. He further deposed that Inspector also verified the said information from the informer. He further deposed that four/ five passersby were asked to join the raiding party but none agreed. At around 10:15p.m., a nakabandi was made by the police team on the road leading towards Punjabi Bagh from the side of Pira Gari. At around 11:25 p.m., at the instance of informer, one truck bearing No. UP- 14M-5547 LP Model, was signaled to stop. The speed of the truck was slow down by the driver and the boy who was sitting on the side of conductor jumped from the truck and started running towards left side. He further deposed that he was chased by him and apprehended and name of said boy revealed as Aziz @ Kabir. Other raiding team apprehended seven other boys who were sitting in the truck. The truck was being driven by Vijay Singh. SI Daya State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 19 / Chand interrogated those boys separately and they confessed that they had stolen said truck containing iron bars/saria from Vijay Nagar, Ghaziabad, U.P. area. They further told the police team that said truck was parked in the Mangolpuri Industrial area. They told the police team that they were going to sell the said iron bars/ saria in Naraina Loha Mandi. The names and addresses of those boys were verified by SI Daya Chand. Accused Aziz during his search was found possessing ten strips of intoxicated tablets. Each strip was containing ten tablets. He further deposed that IO prepared sealed pullanda of the intoxicated tablets and seized the same vide seizure memo already mark X-3 and seal of DCV was used upon the pullanda. He further deposed that SI Daya Chand asked him and ASI Tilak Raj to get weigh the goods of the truck. He along with ASI Tilak Raj went to Janta Dharam Kanta at Jakhira and goods were weighed there. It came to 16350 Kg. The slip of the Dharam Kanta was handed over to the IO by ASI Tilak Raj who seized the same vide seizure memo already mark X-4 which bears his signature at point A. Thereafter, IO prepared a rukka and FIR was got registered at Police Station Punjabi Bagh. He took rukka to Police Station for registration of FIR. FIR No.102/05 u/s 411/34 IPC was got registered there. He State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 20 / further deposed that he came back to the spot and handed over copy of FIR and rukka in original to the IO. Accused persons were arrested by the IO. He further deposed that IO interrogated accused Aziz and recorded his disclosure statement mark X-5 which bears his signature at point A. He further deposed that thereafter, IO SI Daya Chand made enquiries from Police Station Vijay Nagar, Ghaziabad, U.P. regarding truck No.UP-14M-5547 and it is informed that case FIR No.42/2005 u/s 406 IPC Police Station Vijay Nagar, Ghaziabad has been registered in the same Police Station. Thereafter, the case properties were deposited in the Police Station Punjabi Bagh Malkhana. Thereafter, disclosure statement of all accused persons were recorded. He further deposed that the disclosure statement of accused Pan Gopal Dass @ Sandeep is already mark - X5 which bears his signature at point A and disclosure statement of accused Kamal is already mark X-6 which bears his signature at point A-1. The disclosure statement of accused Raju @ Kalli is already mark X-7 which bears his signature at point A-2 and disclosure statement of accused Dharamveer is already mark X-8 which bears his signature at point A-3. He further deposed that in the course of disclosure statements, accused Dharamveer and Kamal disclosed that on 12.01.2005 on the direction of Aziz, they have hired one tempo TATA State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 21 / 407 from Chirag Delhi Tempo stand. After loading some articles from Sangam Vihar they proceeded to Seemapuri and after crossing Mandoli railway crossing, they got parked the said tempo on the side of road. Pan Gopal was left in the same tempo and rest of the four accused persons went to tea shop on the side of road for taking tea. They had taken tea. After that Kamal mixed a tablet in a cup of tea and went to the tempo which was parked on the side and gave the tea to PW2 Monu i.e. driver of the tempo. After some time the driver got intoxicated and they took away the tempo and threw the driver at Sunder Nagri, near kudadan (heap of dirt store). He further deposed that thereafter, IO made enquiries from Police Station Nand Nagri and came to know that case FIR No.63/2005 u/s 328/379/34 IPC Police Station Nand Nagri has been registered. Accused also disclosed that they had sold the aforesaid TATA 407 in the Punjab. He correctly identified the accused persons namely Raju @ Chotu, Dharamveer and Kamal. He further deposed that he can identify accused Pan Gopal but accused Pan Gopal is P.O. This witness was not cross examined by Ld. defence counsel.

27.Before reaching at any conclusion let the relevant section be re- produced verbatim which is as under:-

Section 328 IPC 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 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.

30.In the instant case, careful perusal of the case file reveals that most material witnesses in this case are PW2 Monu (victim) and PW1 Mahpal - complainant. It has come on record in the testimony of PW1 and PW2 that accused persons had hired the Tempo for Rs.1200/- on the pretext for transporting some goods from Sangam Vihar via Seemapuri. It has also categorically come on record in the testimony of PW2 Monu that accused persons in furtherance of their common intention gave a tea on 12.01.2005, which was mixed with State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 29 / some intoxicated substance and after consuming the said tea PW2 Monu lost his senses and became unconscious and regained his consciousness on 14.01.2005. Both these witnesses have categorically identified the accused persons. But, I am very surprised to note here that PW2 Monu has not been got medically checked up by the I.O. to ascertain the alleged intoxicated substance. The crucial question in this case comes to stand that whether any pre or post act with regard to the giving tea to the victim, has been brought on record by the prosecution to establish the guilt of the accused persons for the offence punishable u/s 328 / 34 IPC. In this regard the pre act of the accused persons neither has been brought on record nor any material fact with regard to this incident has been proved on record. So long as the post act of the accused persons is concerned, in this regard there is no recovery of the cup of tea has been brought on record by the prosecution side nor any recovery has been effected from the accused persons in this regard. If we determine the fate of this case in light of these observations we certainly reach to the conclusion that administration of tea to the victim by the accused persons, was intoxicated, which is very crucial to establish the premises of conviction of the accused persons for the offence u/s 328 / 34 IPC. Further, the prosecution has also failed to State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 30 / bring on record the preparatory measures with regard to the collection of cup of tea and material substance contained in it which also goes to the root of this case. Besides, the person who could have been joined as a material witness in this case is owner of Tea who prepared the tea. But unfortunately neither his statement was recorded by the investigating officer nor the prosecution felt necessity to examine him as witness in this case. All these facts go to indicate something otherwise contrary to the establishment of the case against accused persons qua the victim for the offence u/s 328 IPC. Therefore, I acquit accused persons for the offence u/s 328 / 34 IPC by giving them benefit of doubt.