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2013 DIGILAW 2035 (DEL)

Mohd. Shakir v. State (N. C. T. of Delhi)

2013-10-22

S.P.GARG

body2013
JUDGMENT : S.P. Garg, J. 1. Rustam and Mohd. Shakir (the appellant) were arrested in case FIR No. 618/92 PS S.N. Puri and sent for trial for committing offences punishable under Sections 328/379/411/34 IPC on the allegations that on 01.10.1992 at about 02.00 P.M. near Bus Stand Hari Nagar Ashram, they administered stupefying substance in a ‘fruity’ to Rajesh and deprived him of TSR No. DL-1R-1486, documents of the scooter and cash Rs. 170/-. Rajesh lodged First Information Report after he regained consciousness on 02.10.1992. TSR No. DL-1R-1486 was recovered lying abandoned on 03.10.1992. Both the accused persons were arrested and at appellant’s instance, stepney kept in the TSR was recovered from his house. During the course of investigation, statements of the witnesses conversant with the facts were recorded. The prosecution examined seven witnesses to substantiate the charges. In their 313 statements, the accused persons denied complicity in the offence and pleaded false implication. The trial resulted in Mohd. Shakir’s conviction under Section 328 IPC while Rustam was acquitted of the charges. It is apt to note that State did not challenge the judgment. 2. I have heard the learned counsel for the parties and have examined the record. The prosecution did not examine any witness to prove administration of stupefying substance to the complainant - Rajesh while he was driving TSR No. DL-1R-1486. The complainant was not taken for medical examination. The Investigating Officer did not send any material/contents of the stomach to Forensic Science Laboratory (FSL) to ascertain if it contained any poisonous substance. No attempt was made to investigate from which shop-keeper three ‘fruity’ were purchased. When Rustam and Mohd. Shakir had boarded the TSR, they did not have any poisonous substance/fruity with them. Only on the way they allegedly purchased three ‘fruity’ and all of them consumed the same. There was no gap in between purchase of ‘fruity’ and its consumption. It is unclear if ‘fruity’ given to the complainant was in open condition to infer mixing of poisonous substance on the way. There is delay in lodging First Information Report with the police. It is not believable that complainant - Rajesh would continue lying un-conscious on the road throughout the night and nobody would notice him. The TSR was found lying abandoned and was recovered by the police with all the documents intact. There is delay in lodging First Information Report with the police. It is not believable that complainant - Rajesh would continue lying un-conscious on the road throughout the night and nobody would notice him. The TSR was found lying abandoned and was recovered by the police with all the documents intact. Stepney of insignificant value was allegedly recovered after more than two months from the residence of the appellant. It is unexplained as to why the appellant would keep the stepney without any apparent purpose at his residence for so long and would not dispose it off. In fact, the accused persons were acquitted of the charges of committing theft. Complainant - Rajesh did not identify stepney (Ex.P1) allegedly stolen from the TSR. He was categorical to say that the stepney (Ex.P1) was unfit to be used in the TSR. He elaborated that the stepney was meant for use in two wheelers. The recovery of stepney itself is suspect. In the absence of worthwhile and cogent evidence, there was no material before the Trial Court to base conviction on the oral statement of the complainant. It is not clear as to why the accused persons whose intention was to deprive the complainant of his TSR would abandon it after committing its theft. On the same set of evidence Rustam was acquitted of the charges. The prosecution failed to establish that both of them shared common intention to administer poisonous substance to the complainant. 3. In the light of above discussion, the impugned judgment cannot be sustained and is set aside. The appeal is allowed and the appellant - Mohd. Shakir is acquitted. Bail bond and surety bond stand discharged. Trial Court record be sent back forthwith.