WASIM AHMED Vs. STATE

JUDGEMENT

(1.) Appellants - Wasim Ahmed, Mohd. Javed, Mohd Abid and Mohd. Shafiq were charged for the trial of the offences under Sections 328/379/34 IPC besides the offence under Sec. 411 IPC. Vide the impugned judgment dated 19.01.2016, all of them were convicted for the said offences and vide the impugned order on sentence dated 21.01.2016, all of them were sentenced to undergo 4 years RI for the offence under Sec. 328/34 IPC; 3 years RI for the offence under Sec. 379/34 IPC; and, 1 year RI for the offence under Sec. 411 Penal Code respectively. They were also sentenced to pay fine of Rs. 3,000.00 and Rs. 2000.00 respectively, for the offences under Sec. 328/379/34 IPC. In default, they were to undergo 3 months and 2 months SI respectively. All of them have assailed the impugned judgment and the order on sentence by filing separate appeals. All the four appeals are being dealt with by this common judgment.

(2.) According to the prosecution, one 'Nabi Ulla', aged about 22 years, who was a painter by profession and residing with his mausi's son at Ram Vihar, Nangloi, had left Ram Vihar, to go to his native place at Hardoi, UP in a bus on 18.08.2012 at about 12 noon. In the bus, he met two boys, one of whom was of heavy built and other of a medium built aged about 25/26 years. They developed friendship and got down at Peeragarhi to reach the railway station early and for that, hired an auto. On the way, auto driver calls a person by his name 'Wasim' and makes him sit in the auto to be also taken to the railway station. As per the description given by 'Nabi Ulla', said 'Wasim' was aged about 40 years and of thin built. Then, according to prosecution, when they reached Inderlok Metro Station, the auto was stopped and 'Wasim' purchased bottles of Maza from a shop nearby and they all drank Maza. On this, 'Nabi Ulla', started feeling intoxicated and sleepy. Thereafter, the accused-the appellants dropped 'Nabi Ulla' near Gurudwara, where 'Nabi Ulla' vomitted a lot. On regaining consciousness, 'Nabi Ulla' asked a passerby to call police and for the purpose, gave his mobile. Passerby called the police on number 100. PCR vehicle reached in sometime and took 'Nabi Ulla' to the Hindu Rao Hospital. In the process, a bag of orange colour containing some clothes, an election I-card and about Rs. 500.00 of Rs. 100.00 currency notes from the pocket of victim, went missing. On the receipt of information by PS Sarai Rohilla at 2:40 PM that a person was lying unconscious near Usha Mata Mandir, Shazada Bagh near Gurudwara, HC Naresh went to the spot and getting to know that the person lying unconscious was taken to Hindu Rao Hospital, went there along with his staff. On reaching the hospital, he collected the MLC, which recorded the alleged history of drinking of some liquid half an hour before. The doctor declared the patient fit for statement at 5.30 p.m. and gave a sealed gastric lavage sample, which was seized. On the statement of 'Nabi Ulla' recorded by HC Naresh Pal, an FIR No.218 dated 18.08.2012 came to be registered at PS Sarai Rohilla at 6:50 PM. Investigation thereof was assigned to SI G.N. Tiwari. On that very day i.e. 18.08.2012 at about 7 PM, on the receipt of a secret information by SI Ravinder Singh of AATS, in his office at Daya Basti, that a gang of 4/5 persons was involved in robbing of passengers administering poisonous substances and that, they had robbed a person in the similar fashion that day only, and, shall be again visiting Sarai Rohilla railway station between 10 PM to 12 midnight to commit a similar crime, SI Ravinder Singh recorded DD No.16 dated 18.08.2012 at 8:30 PM at AATS/North District, Delhi. SI Ravinder Singh, AATS then prepared a raiding team and left for apprehending such gang. There, the four appellants Wasim Ahmed, Mohd. Javed, Mohd Abid and Mohd. Shafiq, come to be apprehended by SI Ravinder Singh and his team, when they reach there in TSR DL-1RK-3024 at about 10:30. During the course of their interrogation, they make disclosure statement for having committed the crime in the earlier part of the day. Their personal search is conducted. From the personal search of 'Javed', stolen Rs. 100.00 currency note was recovered. On the personal search of 'Wasim', two packets containing white powder and stolen Rs. 200.00 were recovered. On the personal search of 'Mohd. Abid', stolen election I-card and Rs.100.00 were recovered. On the personal search of Mohd. Shafiq, three packets containing white power and stolen Rs.100.00 were recovered. All of them were arrested on 19.08.2012 at 12:30 AM. Case property was deposited with Malkhana of PS Sarai Rohilla. Next day i.e. 19.08.2012, new IO, namely, SI Parveen Maan came to be assigned the investigations. All of appellants are said to have refused T.I.P on 23.08.201 Case property however came to be identified by 'Nabi Ulla' on 03.09.201 Challan came to be filed on 08.11.2012 for the trial of offences under Sections 328/379/411/34 Penal Code citing 20 prosecution witnesses. Two sets of charges came to be framed against the four persons collectively. First charge was for the commission of the offences under Sections 328/379/34 Penal Code for having committed or facilitated the commission of theft of a bag belonging to 'Nabi Ulla' containing Rs.500.00 and other documents and clothes, having administered him some stupefying thing mixed in a cold drink i.e. Maza. The second charge was for the offence punishable under Sec. 411 Penal Code for having been found in possession of one bag belonging to 'Nabi Ulla' containing his clothes and other articles and retaining the same, knowing it to be stolen one. All the accused denied such charges. Prosecution examined 13 witnesses out of 20 and PE was closed. In the statements of the accused recorded under Sec. 313 of Crimial P.C. they denied all the incriminating material put to them. They did not lead any defence evidence. Vide the impugned judgment, they came to be convicted and handed over the similar punishment for all the offences vide the impugned order on sentence.

(3.) Ld. Legal Aid Counsel for the appellants strenuously contended that there were not only serious inconsistencies and contradictions in the depositions of the prosecution witnesses, the prosecution had equally failed to establish and prove the sequence of events by holding back the material available evidence and that, a new case was sought to be set up, which was distinct from the case, with which the prosecution approached the court. It came to be pointed out that the accused - appellants had come to be identified by the alleged victim 'Nabi Ulla' for their role and identity for the first time before the court only and that, his such deposition itself was contradictory inasmuch as in his examination-in-chief, in the first instance, he had deposed that Javed and Shafiq were the persons who had initially met him, but, in the same breath, he deposed for Javed driving the TSR, which they hired to go to railway station. According to the ld. Counsel for the appellants, if, Javed was one of the persons, who met 'Nabi Ulla' in the bus and with whom he got down from the bus at Peeragarhi, Javed could not be person driving auto/TSR. Another contradiction and inconsistency pointed out by them was with regard to the person, who purchased Maza bottles. It was pointed out that in his statement Ex-PW1/A, on which an FIR came to be registered, 'Nabi Ulla' had stated that the bottles of Maza were purchased by 'Wasim' getting down at Inderlok Metro Station, whereas, Nabi Ulla PW1, in his examination-in-chief before Court deposed for the Maza bottles somewhere near Peeragarhi, and, that, such place near Peeragarhi, by no means could be taken to be at Inderlok Metro Station. It was also contended that though the MLC of 'Nabi Ulla', which formed part of the charge sheet, was not proved, it could be read against and that, as per the said MLC, 'Nabi Ulla' was fit for recording of statement at 5:30 PM of 18.08.2012, but, in his deposition before Court, he has deposed for having regained consciousness at around 9 or 9:30 PM, and, therefore also, the deposition of the complainant Nabi Ulla - PW1 was not trustworthy and reliable. To discredit the trustworthiness of the deposition of PW1 'Nabi Ulla', it was also contended that it was not a natural human conduct that the four persons having administered stupefying substance, steal from his pocket some money and a bag containing articles including his election Id- card, but, do not choose to take away his mobile phone, from which, he got a call made to the police. In their submission therefore, it was a circumstance which created serious doubt on the veracity of the statement of 'Nabi Ulla' on which the FIR came to be registered. As a sequel to such suspicious circumstances, it was also contended that it was strange that Nabi Ulla noted only last 4 digit number of the TSR, which are stated in his statement Ex-PW1/A, there was no palpable reason to not to note down the complete registration number nor any explanation in that regard had come to be given. Assailing the impugned judgment, it was also strenuously contended that there was no evidence for any stupefying substance having been administered to Nabi Ulla inasmuch as, as per the FSL report, no drug or tranquilizer was detected in gastric lavage sample. Besides such contradictions, inconsistencies and the circumstances, which, according to the ld. counsel for the appellants, were sufficient to discredit the deposition of the prosecution witnesses and the prosecution story, the failure of the police to join any public witness in the entire process of apprehension and the recovery of the stolen articles and the other incriminating material, though, it happened at a public place, where the govt. residential quarters and the railway station were located nearby and thereby, the govt. officials were easily available for being joined, it casts a serious doubt about the alleged apprehension and the recovery of any stolen property from the appellants. More so, when, according to the prosecution, it was not a chance search, but, a planned raid. It also came to be pointed out that the prosecution, for the reasons unexplained, had not examined the Malkhana Mohrir {MHC(M)}, PS Sarai Rohilla and no relevant extracts of the Malkhana register have come to be proved. Then, it was also contended that the currency notes recovered from the four accused-appellants were never identified by Nabi Ulla PW1. Last, but, not the least, another circumstance to cast a shadow of doubt on the prosecution case was that there was no strict compliance of the mandate of section 157 Cr.P.C inasmuch as, though, the FIR is said to have been registered on 18.08.2012 at about 6:50 PM, the copy of the FIR came to be received by the MM only on 21.08.2012. In addition, for appellant Abid, it also came to be contended that there was no evidence for any role played by Abid in totality of the crime and the necessary ingredients to prove his common intention for commission of any offence, were missing not only in the prosecution case, but, even in the evidence led. It was thus contended that the impugned judgment and the order on sentence were not sustainable and liable to be quashed and set aside. In support of their contentions, reliance was placed upon 219 (2015) DLT 271 Mohd. Masoom Vs. State of NCT of Delhi; 2014 (146) DRJ 629 Ram Prakash Vs. State; 2009 (3) JCC 2399 Ikramuddin Vs. The State; and, 2004 (2) Crimes 101 Lalla alias Raj Kumar Singh Vs. State of UP.