Mohd. Shakir vs The State (N.C.T. Of Delhi)
2013 Latest Caselaw 4844 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                             RESERVED ON : 21st OCTOBER, 2013
                              DECIDED ON : 22nd OCTOBER, 2013

+                        CRL.A. 848/2001

       MOHD. SHAKIR                                 ....Appellant
               Through :       Mr.Imran Azeem, Advocate with
                               Mr.Arvind Patel, Advocate along with
                               appellant in person.


                               versus

       THE STATE (N.C.T. OF DELHI)              ....Respondent
                Through : Mr.Lovkesh Sawhney, APP.
                           SI Bijender, PS Sri Niwas Puri.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

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 ` 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. 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.

(S.P.GARG) JUDGE OCTOBER 22, 2013/tr