Criminal Appeal No.513 of 2014

3rd December, 2014.

Petitioner Counsel: Shri NITIN R. GANDHI
Respondent Counsel: Shri M.J. KHAN

JUDGMENT

JUDGMENT :- This is an appeal preferred against the judgment and order dated 08/10/2014 passed in Sessions Trial No. 507 of 2013 by Adhoc District Judge and Assistant Sessions Judge, Nagpur.

2. Briefly stated, the facts of the case are as under.:

The complainant in this case is one Vasant Bhaiyyaji Joshi. At about 7.05 p.m. on 01/01/2012 when the complainant was standing with his friend near Siddhant Hotel at Chandrapur, he was approached by one person, who was then wearing black coat and was of height of 5 ft. 8 inches. The stranger requested the complainant for a lift up to Dr. Paliwal's Hospital, where his friend was admitted, by Tata Indigo car belonging to the complainant. The complainant took him by his car to the hospital and dropped him there. It appears that complainant waited for the stranger to come back and when he did, the complainant was asked again by the stranger if the complainant would be interested in taking him by his car to Nagpur Airport. The complainant also had to go to Nagpur in connection with his work and, therefore, the complainant agreed for the same on condition that diesel charges of Rs.300/- would have to be borne by the stranger. The condition was accepted and both the complainant and the stranger left Chandrapur by car for Nagpur. On way, the stranger requested the complainant to take a brief halt for tea at Butibori. The complainant obliged. The complainant did not initially go along with the stranger for drinking tea to a nearby restaurant. After having tea, the stranger came back and once again requested the complainant to have the tea. This time, the complainant agreed and drank the tea. Thereafter, the complainant as well as the stranger began their onward journey by Tata Indigo car. But, some time after, complainant started feeling drowsy and, therefore, he stopped the vehicle and took it by the side of the road near a bridge on a culvert at Butibori as it was impossible for the complainant to drive the car any further. The stranger took over the charge of steering wheel and started driving the car. Meanwhile, the complainant fell into unconsciousness and would not know what happened thereafter. On the next day morning at about 6.00 a.m., the complainant woke up only to find himself as present near a nallah flowing by the side of Haldiram Sweets shop at Ajni square, Nagpur. The car of the complainant was missing and his identity card, R.C. Book of the car, Samsung mobile and cash amount which the complainant was then carrying were also missing. The complainant then after a passage of about one day lodged a report of the incident on 03/01/2012 at Police Station, Dhantoli, Nagpur.

The investigation was carried out after registering the offences punishable under Sections 328 and 394 of the Indian Penal Code against an unknown person. During the course of investigation, complainant got some important clues about involvement of the appellant in the crime and, therefore, he passed them over to Police Station, Dhantoli. Police Station, Dhantoli also got some information about the appellant, who was apprehended by other police station in relation to some other crime. Accordingly, the appellant was arrested for the crime committed in this case and further investigation was carried out. Tata Indigo car of the complainant was found in an abandoned state on some road in State of Punjab and it was seized. After completion of investigation, a charge-sheet was filed against the present appellant for his trial for the offences punishable under Sections 328 and 394 of the Indian Penal Code. The appellant was charged with the said offences and tried in accordance with law. On merits, learned Assistant Sessions Judge found that both the offences punishable under Sections 328 and 394 I.P.C. stood proved beyond reasonable doubt and accordingly by his judgment and order dated 08/10/2014 convicted the appellant for these offences by imposing identical sentences of two years and fine of Rs.250/- together with default sentence of 15 days. Being aggrieved by the same, the appellant has preferred the present appeal.

3. I have heard Shri Gandhi, learned Counsel for the appellant and Shri Khan, learned A.P.P. for the respondent-State. I have carefully gone through the impugned judgment and order and record of the case. Now, following points arise for my determination.

(1) Whether it was proved that on 01/01/2012 during night time at Butibori, Nagpur the appellant administered stupefying or unwholesome drug to the complainant with an intention or knowing it to be likely that the appellant will thereby cause hurt to the complainant?

(2) Whether it is proved that on 01/01/2012 during night time the appellant committed offence of robbery?

(3) What order?

4. In order to prove the offence punishable under Section 328 IPC, it is necessary for the prosecution to establish beyond reasonable doubt two essential ingredients, namely administration of poison or stupefying or unwholesome substance or drug and intention to cause hurt or knowledge that it is likely to cause hurt to a person to whom the substance or drug is administered. In the instant case, what we have before us is evidence which can be said to be in the nature of direct evidence establishing both these ingredients. This evidence has appeared on record through the testimony of the complainant-P.W.1 Vasant Bhaiyyaji Joshi (Exh.12). Let us, therefore, consider the evidence of P.W.-1 Vasant Joshi.

5. According to P.W.-1 Vasant Joshi, the appellant had given him a cup of tea with a request to consume it at Butibori where the complainant and the appellant had taken a brief halt to enable the appellant to refresh himself by having tea. The complainant states that after consuming tea at Butibori as he started driving the car, slowly he felt drowsiness engulfing him and soon after it became impossible for him to drive further the car and, therefore, he stopped the car near a bridge over a culvert at Butibori. He states that thereafter the appellant took charge of the wheels of Tata Indigo car and the complainant would not know what happened thereafter. The complainant also states that he woke up only the next day morning when he found that he was robbed of the car, the valuables and also important documents. The complainant, P.W.-1, has also identified the appellant in the Court as the same person who gave him the tea.

6. So far as this part of the evidence of P.W.-1 is concerned, I do not see any doubtful circumstances as having appeared anywhere in his cross-examination. Learned Counsel for appellant submits that evidence of P.W.-1 is not consistent with evidence of P.W.-4 Ramesh Haramkar. P.W.-4 Ramesh is a witness on some other part of the prosecution story. He came into picture only after he learnt from the newspaper reports about the present incident. He states that in the afternoon of 01/01/2012, a similar looking person had approached and had asked for a lift which he had given to that person and when he met the complainant and also the police it became clear that the person, who had asked for a lift from him, was the same person who had duped and robbed the complainant in this case. This witness does not know anything about what was done to the complainant by the appellant and, therefore, so far as the afore-stated version of P.W.-1 Vasant Joshi is concerned, the testimony of P.W.-4 Ramesh would be of no use and as such question of it being inconsistent with that of P.W.-1 Vasant on that part of his evidence which relates to giving of tea and what happened after drinking tea does not arise.

7. Insofar as inconsistencies between the testimony of P.W.-4 Ramesh and P.W.-1 Vasant are concerned, I find that they relate to taking of the appellant by the car of Ramesh to the residence of one Wakde, meeting Sunita, alleged wife of the appellant, obtaining of photograph from Sunita and so on, which really do not have impact on the facts stated by P.W.-1 Vasant, which make up the ingredients of offence of administering of stupefying substance with an intention to cause hurt. Therefore, these inconsistencies deserve to be ignored.

8. It is true that there is doubt about test identification parade held to identify the appellant by Naib Tahsildar, P.W.-6 Omprakash Kale as he admits that as there is an admission given by P.W.-1 Vasant Joshi that before conducting of the test identification parade, he was shown photograph of the appellant. But it must be remembered that if identifying of the accused in test identification parade is important, equally in law is important the identification of the accused by a witness in the Court. Therefore, it will also have to be seen if there is a serious doubt about the identification of the appellant made by P.W.-1 in the Court or not. From the evidence of P.W.-1 Vasant, we will find that P.W.-1 Vasant has identified the appellant during the course of his testimony before the Court. No dispute has been made to the identification by P.W.-1 of the appellant, as seen from his cross-examination. There is no suggestion given to P.W.-1 Vasant of either denial of identification or the identification being falsely made in Court by him. It is also not suggested that the identification was the result of showing of photograph or showing of the appellant well before commencing of testimony of P.W.-1 Vasant. Therefore, it would have to be now said that the identification of the appellant made by P.W.-1 Vasant is in accordance with law and it establishes the presence of the appellant with the complainant from the time of commencement of their journey from Chandrapur by car till the time the complainant was left in an unconscious state somewhere near the nallah near Ajni square, Nagpur. It would also establish connection of the appellant with the complainant.

9. Once the presence of the appellant in the company of the complainant from Chandrapur through drinking of tea by complainant given to him by the appellant till the time the complainant woke up from his slumber only to find himself as left stranded by the appellant is established, a situation of drawing presumption by application of Section 114 of the Indian Evidence Act arises. Section 114 lays down that the Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Therefore, the presumption would be that only the appellant was responsible for drowsiness of the complainant which led to his slipping into unconscious state and it was intentionally induced by the appellant by administering him some stupefying or unwholesome drug. This presumption could have been rebutted by the appellant by bringing on record some explanation or some circumstances showing a probability that there may have been some other person involved in the case, who may have been responsible for drowsiness and unconscious state of the complainant. But, there is neither any explanation nor any circumstance brought on record in order to probablise the defence of the appellant that he had got nothing to do with the complainant. In fact, the defence of the appellant is of total denial, but as stated earlier, he has failed to establish that he had no connection with the complainant whatsoever, rather his presence with the complainant all throughout from Chandrapur till the time the complainant regained his consciousness after being into state of unconsciousness has been established in a reasonable manner and the presumption arising therefrom has not been rebutted by him.

10. Administration of substance or drug had its own consequence in this case which was in the nature of rendering the appellant incapacitated thereby fulfilling the second ingredient of the offence punishable under Section 328 I.P.C. The second ingredient is about administering a poison or stupefying substance etc. with an intention to cause hurt or injury or commit an offence or facilitate commission of an offence or with the knowledge that the act is likely to result in causing of hurt. Hurt as defined in Section 319 IPC is bodily pain, disease or infirmity. Unconsciousness is a mental and physical condition of a person which incapacitates him completely in the sense that he is incapable of doing anything. Dictionary meaning of the term 'infirmity' is physical or mental weakness (See: Concise Oxford Dictionary, Indian Edn. p.729). If physical or mental weakness or both make a man infirm, his being in unconscious state will make him all the more infirm. Therefore, inducing unconsciousness of a person by means of a poison, stupefying substance etc. as contemplated under Section 328 IPC amounts to causing of hurt.

11. Learned Counsel for the appellant has strenuously argued that as there was no medical examination of the appellant, nothing can be said with any amount of certainty that the tea that was given to the complainant was mixed with any stupefying substance. It is true that no medical examination of the complainant has been carried out. But, we have to take into account the attending circumstances which rendered redundant the conduct of the medical examination of the complainant. According to the version of the complainant, the substance or drug administered to him in the evening of 01/01/2012 had its effect on his mind and body as a result of which he went into state of unconsciousness and came out of it only in the morning of 02/01/2012. As seen from the evidence of P.W.-7 A.P.I. Prakash Masal, who recorded the first information report, the complainant was in a dilemma as to whether the FIR should be lodged at Chandrapur or at Nagpur and ultimately it was lodged in the night of 03/01/2012 at Nagpur. By this time it was too late in the day to refer the complainant for any medical examination. It was obvious that by that time whatever effect the substance or the drug had on the mind and body of the complainant may have been weaned away. In these circumstances the medical examination of the complainant had become redundant. Therefore, I find that circumstances of the case have offered reasonable justification for absence of medical examination of the complainant in this case, which must be appreciated. Then, what remains is the testimony of P.W.-1 Vasant and I have already found that the core part of his testimony is reliable. There is no reason for the complainant to falsely implicate the appellant in this case. No probable explanation has been given by the appellant for leaving the complainant in unconscious condition some time in the night of 01/01/2012 till early morning of 02/01/2012 and, therefore, by way of adverse inference, it has to be concluded that the appellant was responsible for drowsiness and unconsciousness state of the complainant, which was induced by some substance or drug administered through tea to the complainant by him.

12. In the circumstances, I find that the prosecution has established beyond reasonable doubt the charge relating to the offence of administering of stupefying substance with a view to cause hurt to the complainant by the appellant, punishable under Section 328 I.P.C. Learned Assistant Sessions Judge has correctly found this offence to be reasonably proved against the appellant and I see no reason to make any interference with the findings recorded in this behalf by the Sessions Court.

13. As regards the second offence punishable under Section 394 I.P.C., I am of the view that recovery of some incriminating article at the instance of the appellant was necessary in order to reasonably connect the appellant with the offence of robbery. The reason being that even though the appellant had been found to have left the complainant in unconscious state at a spot at Ajani square, Nagpur, the possibility of some other persons arriving at the said spot later on and robbing the complainant of his car, valuables, etc. cannot be ruled out. It is likely the appellant may be or may not be interested in taking away the car and other articles. It is also likely that he may have had some other motive in his mind. But, only because the appellant had done something criminal against the complainant, further inference that the appellant must also have robbed the complainant of valuable articles or car or cash and important documents, cannot be reasonably made till the time something belonging to complainant is recovered at appellant's instance and if not, the possibility of involvement of some other person cannot be said to be reasonably ruled out in this case. This possibility having not been ruled out in the instant case, there being no recovery whatsoever at appellant's instance, even the car was found in abandoned state on some road in State of Punjab, I find that learned Assistant Sessions Judge has committed illegality in recording a finding that the prosecution has also brought home to the appellant his guilt for an offence punishable under Section 394 I.P.C. The finding recorded by the Assistant Sessions Judge in this regard, therefore, needs to be quashed and set aside.

14. At this point, I have heard learned Counsel for the appellant as well as learned A.P.P. for the respondentState on the question of sentence. Learned Counsel for the appellant has submitted that lenient view should be taken in this case as the appellant is sole bread earner in his family, his old mother is dependent upon him and as she is ailing, she requires urgent medical treatment, which cannot be given in the absence of the appellant. He, therefore, submits that leniency should be shown in this case and the appellant should be given punishment of imprisonment equivalent to the period of detention already undergone by him. Learned A.P.P. submits that appropriate sentence be awarded in this case.

15. Having regard to the facts and circumstances of the case in their entirety and also submission that old mother of the appellant is in need of urgent medical treatment, which is not possible due to absence of the appellant and also the fact that the appellant has not caused any further bodily harm to the complainant after he fell into unconscious state nor has been shown to have robbed the complainant of cash, car and valuable articles, I am of the view that leniency deserves to be shown to the appellant in this case.

16. The appeal is partly allowed.

I. The finding of conviction and order of sentence of imprisonment of an offence punishable under Section 394 of the Indian Penal Code are hereby quashed and set aside and the appellant is acquitted of the said offence.

II. However, the conviction of the appellant for an offence punishable under Section 328 of the Indian Penal Code is confirmed, but, the order of sentence of imprisonment of two years is modified and now it is directed that the appellant shall be awarded sentence of imprisonment equivalent to the period already undergone by him in detention till the date of this order.

III. Sentence of payment of fine amount Rs.250/- is confirmed.

IV. On payment of fine amount or expiry of the default sentence of fifteen days as imposed by the trial Court, whichever is earlier, the appellant be released from jail.

Ordered accordingly.