Delhi District Court
State vs . Ram Chander on 31 January, 2019
State Vs. Ram Chander
IN THE COURT OF PAWAN KUMAR MATTO,
SPECIAL JUDGE (NDPS), ADDITIONAL SESSIONS JUDGE,
NORTH WEST, ROHINI COURTS, DELHI
Sessions Case Number : 51911/16
State
versus
1) Ram Chander
S/o Sh. Bhagwati Parsad
R/o Village Sairiya,
PS Nain Para, Post Baber Puri,
District Bairech, U.P.
2) Rfid Mohammad (Rafiq Mohammad)
S/o Sh. Siruddin
R/o Village Sakin Kalkiyapur,
PS Choper, Post Suijalli
District North Dinaspur, West Bangal.
3) Rahimuddin @ Sunniballa (Proclaimed Offender)
S/o Sh. Kalikuddin
R/o Village Sakin Kalkiyapur,
PS Choper, Post Suijalli
District North Dinaspur, West Bangal.
First Information Report Number : 141/14
Police Station : Keshav Puram
Under section u/s. 120B/328 and 394 of IPC
Date of registration of the charge sheet
in this court : 05.05.2014
Final Arguments concluded on : 25.01.2019
Date of judgment : 31.01.2019
SC No. 51911/16 1/70
State Vs. Ram Chander
1.Brief facts of the case are that on receiving the DD 28PP dated 02.03.2014 HC Mohar Singh alongwith Ct. Jagjeet Singh arrived at the spot . Where, he recorded the statement of SI Ram Manohar Mishra, wherein SI Ram Manohar Mishra had deposed that on dated 02.03.2014, at about 6:25 P.M. he had departured from the Police Post Shanti Nagar for checking. In the meantime, a secret informer had informed that the persons, who are indulged in the activities of administering poisonous substance were taking a passenger after administering him some intoxicated substance in a TSR bearing registration no. DL -1RP-1104 and they would come from the side the Inderlok and would go towards Metro Station Kanhaiya Nagar. Accordingly, this SI Ram Manohar Mishra had beefed the checking and after some time, a TSR had come from the side of Inderlok and its stopped at the side of the road, prior to the little distance from them and one man was got deboarded from the said TSR by two persons and the said man was made to sit on the road side and they started moving after sitting in the said TSR and the said TSR was got stopped by this SI Ram Manohar Mishra with the help of his staff and two persons were found sitting on the rear seat of the said TSR and they were made to deboard from the said TSR and neither the driver nor the two persons sitting on the rear seat of the said TSR,could give satisfactory reply and he took these persons near the person, who was made to sit by them on a road side, who was looking in the inebriated condition , who was murmuring that he has been administered intoxicated substance and he has been looted and on inquiring, he fail to tell his name and address and taking into consideration the facts and circumstances, this SI Ram Manohar Mishra had enquired from all the three persons, who were sitting in the TSR, who had told that they had made to sit that person (who was in the inebriated condition) in the TSR from New Delhi Railway Station for Anand Vihar Bus Stand and also told that all those three persons had administered the cold drink to that person after mixing the intoxicated and Sedative tablets therein and after consuming the same, that said person started lossing his consciousness and they got SC No. 51911/16 2/70 State Vs. Ram Chander afraided from the police checking so, they made to sit that fellow on the road side and when, they were trying to flee away after stealing two bags of that fellow. Then, the police had apprehended and driver of the said TSR had told his name, as Ram Chander S/o. Bhagwati Prasad, whereas his accomplices had told their name Sunniballa @ Rahimuddin R/o. Village Almima Pur, Police Station Chopra District Uttar Dinash Pur , West Bengal and Rafiq Mohammad S/o. Shirabuddin R/o. Almima Pur, Police Station Chopra District Uttar Dinash Pur, West Bengal. After taking into consideration the facts and circumstances, Sh. Ram Manohar Mishra made to sit the said victim in the PCR Van and sent him to the BJRM Hospital through Ct. Lokender and he had sent the information to the Police Post in writing and prayed for taking legal action against the accused. Accordingly , HC Mohar Singh had carried out cursory search of all the accused and found one strip of 10 tablets of ATIVAN 02 M.G. from the possession of accused Ram Chander and five tablets of ATVAN 02 M. g. from accused Sunniballa @ Rhimuddin and found two black colour bags in the TSR no. DL 1R-1104 and same alongwith TSR were taken into possession of police by HC Mohar Singh and he left the accused persons in the custody of the picket staff and went to the BJRM Hospital alongwith Ct. Jagjit. He received the MLC of victim, on which, doctor had opined that alleged history found on road side conscious, but drowsy and advised for taking gastric lavage of victim. Accordingly, the FIR no. 141/14 u/s. 328/379/411/34 of IPC was registered at 10:15 PM and investigation was marked to this SI Kuldeep Singh and during the investigation, the statements of the witnesses u/s. 161 of Cr. P. C. were recorded and during interrogation it was alleged that accused Ram Chander is the driver of the TSR and he runs the TSR on rent and he alongwith his accomplice Rafiq Mohammad and Rahimuddin allured the passenger on Railway Station and ISBT quoting laser fare and on the way, the accused used to administer sedative pills after mixing in the cold drink or juice and on lossing of consciousness, they used to dump him and during the search Rs. 1500/- of the victim were recovered from the SC No. 51911/16 3/70 State Vs. Ram Chander possession of accused Ram Chander, same were seized and deposited in the malkhana accused were arrested at the spot. On dated 09.04.2014 sedative pills and gastric lavage of the victim were allegedly sent to the FSL and on completion of the investigation the chargesheet u/s. 328/379/392/394/411/34 of IPC was filed and copies thereof supplied to the accused and the case was committed to the Court of sessions and in turn it was assigned to this court.
2. On finding prima facie case charges u/s. 120B/328 and 394 of IPC were framed against all the accused, to which, all the accused pleaded not guilty and claimed trial.
3. During the pendency of the case, accused Sunniballa @ Rahimuddin absconded and he was declared proclaimed offender vide order dated 07.04.2017.
4. In order to prove its case, the Prosecution has examined 15 witnesses.
5. HC Manoj has been examined as PW-1. He was cross examined by the ld. Counsel for the accused.
6. Ct. Dharamraj has been examined as PW 2. He was cross examined by the ld. Counsel for the accused.
7. Mr. Chander Dev Dass has been examined as PW-3. He was cross examined by the ld. Counsel for the accused Ram Chander and Rafiq @ Rfid Mohammad. He was not cross examined by the ld. Counsel for the accused Rahimuddin @ Sonibulla. So, his opportunity to cross examine this witness was done nil.
8. Mr. Shiv Kumar has been examined as PW-4. He was cross examined by the ld. Counsel for the accused Ram Chander and Rafiq @ Rfid Mohammad. He was not cross examined by the ld. Counsel for the accused Rahimuddin @ Sonibulla. So, his opportunity to cross examine this witness was done nil.
SC No. 51911/16 4/709. Ct. Jagjeet has been examined as PW-5. He was cross examined by the ld. Counsels for the accused.
10. Ct. Surender has been examined as PW-6. He was cross examined by the ld. Counsels for the accused.
11. HC Mohar Singh has been examined as PW-7. He was cross examined by the ld. Counsels for the accused.
12. SI Kuldeep has been examined as PW-8. He was cross examined by the ld. Counsels for the accused.
13. HC Manoj Kumar has been examined as PW-9. He was cross examined by the ld. Counsels for the accused.
14. Dr. Mohit Tiwari has been examined as PW-10. He was cross examined by the ld. Counsel for the accused.
15. SI Ram Manohar Mishra has been examined as PW-11. He was cross examined by the ld. Counsel for the accused.
16. Ct. Mukesh has been examined as PW-12.He was not cross examined by the ld. Counsels for the accused. So, the opportunity of the accused to cross examine this witness was done nil.
17. Mr. Bishraman(victim) has been examined as PW 13. He was cross examined by ld. counsel for the accused.
18. Mr. Santosh Tripathy has been examined as PW 14. He was cross examined by ld. Counsel for the accused Rahimuddin @ Sunniballa. He was not cross examined by the ld. Counsel for the accused Ram Chander and Rfid Mohammad. So, the opportunity to cross examine this witness was done nil.
SC No. 51911/16 5/7019. Ct. Lokender has been examined as PW 15. He was cross examined by ld. Counsels for the accused.
20. On the completion of the evidence of the prosecution, the statements of the accused u/s 313 of Cr.PC were recorded, wherein, the accused had denied the correctness of evidence led against them and took the plea that they have been falsely implicated in this case.
21. I have heard the ld. Counsels for the parties.
22. Ld. APP for State has submitted that in the case in hand, FIR was registered on the statement of PW-11 Ram Manohar Mishra, which is Ex. PW-7/B and submitted that since, this SI Ram Mnohar Mishra had received the secret information that the accused who are indulged in Zehar Khurani are taking the passenger in an autorickshaw bearing registration no. DL-1RP- 1104 and they were coming from the side of Inderlok and would go towards Kanhaiya Nagar Metro Station and he had alerted to the police and in very shortwhile, as the same TSR was seen coming from the side of Inderlok and two persons had made to sit one person on the roadside from the said TSR and soon thereafter, two persons boarded in the said TSR and said TSR started moving and the said TSR was stopped by SI Ram Manohara Mishra with the help of the police personnels and both the persons sitting on the seat of passenger and TSR driver were interrogated, but, none of them had given any satisfactory reply and the person, who was made to sit on the roadside by these accused, was looking in unconscious condition and who was murmuring something that NASHA KHILA DIYA AUR MUJHE LOOT LIYA and on asking of his name and address, he could not tell the same. It is further submitted that on enquiry from all these three persons, who were found in the said TSR, it was revealed that the person, who was in an inebriated condition sitting on SC No. 51911/16 6/70 State Vs. Ram Chander the roadside, who was to go at Anand Vihar Bus Stand was administered stupefying substance / intoxicted tablet by mixing the same in cold drink by these three accused and he started lossing his consciousness, they got afraided from the police checking, so they made to sit the said fellow (victim) on the roadside and they were trying to flee away after committing theft of his bag and the driver of the said TSR has told his name as Ram Chander. Whereas his other accomplices had told their names as Sunniballa @ Rahimuddin and Rafiq @ Rfid Mohammad. It is also submitted that victim was admitted in BJRM Hospital in unconscious condition. Ld. APP for State has further submitted that this Ram Manohar Mishra has been examined as PW- 11, who has reiterated the same facts as mentioned in rukka Ex. PW-7/B and the testimony of this witness remained unconsistent. It is further submitted that victim Vishram has been examined as PW-13 who has identified all the three accused in the court and further submitted that from the testimony of PW-13, it is clear that Rafid Mohd. had come in the said TSR alongwith the bottle whereas, Rahimuddin who has been declared proclaimed offender was already sitting in TSR, when PW-13 Vishram had boarded in the said TSR. It is further submitted that since from the testimony of PW-11 Ram Manohar Mishra, it is clear that during the personal search of accused, ten tablets of ATIVAN were recovered from the driver of TSR namely Ram Chander and five tablets of ATIVAN were recovered from Sunniballa @ Rahimuddin who is declared proclaimed offender. It is further submitted that this PW-11 had dialed 100 number and PW-7 had come who had recorded the statement of this PW-11 and the further investigation was done by SI Kuldeep who is the IO of the present case. It is also submitted that after committing robbery of the bag of this victim Vishram, accused were trying to flee away, when, they were arrested by the police and further submitted that all the three accused were arrested from the spot and the bag of the victim was also recovered from the said TSR. It is further submitted that since, the victim was taken to the hospital. Where, he was medically examined vide MLC Ex. PW-10/A and the SC No. 51911/16 7/70 State Vs. Ram Chander gastric lavage of victim was also taken and sealed and was sent to FSL. It is further submitted that the ATIVAN tablets were recovered from the accused Sunniballa @ Rahimuddin (P.O.) and Ram Chander. He has further submitted that Mr. Santosh Tripathy, Forensic expert from FSL has been examined as PW-14, who has proved his report Ex. PW-14/A. Which reveals that the said tablets recovered from the accused and gastric lavage of victim contained Lorazepam (Benzodiazepine drug), so, the medical evidence also goes to prove that these accused in furtherance of their common intention have hatched a conspiracy and made to sit the victim Vishram in the TSR driven by accused Ram Chander. He has further submitted that this Ram Chander had taken his TSR bearing no. DL-1RP-1104 from PW-4 Sh. Shiv Kumar on rent. He has further submitted that since the accused had hatched the conspiracy and administered intoxicated substance and robbed away bag of victim. It has been proved on record that these accused have committed the offences punishable under section 120-B r/w section 328 and 394 of IPC, under section 328 of IPC r/w section 120-B of IPC and 394 of IPC r/w section 120-B IPC.
23. On the other hand, Ld. Counsel for accused Ram Chander and Rafid Mohammad has submitted that from the testimony of PW-13, it is clear that accused are not alleged to have been used any force for administering any intoxicated substance and submitted that the testimony of this witness is not reliable, as this witness has stated that he earlier used to come at Delhi and used to go at Anand Vihar Bus Stand and submitted that the place of apprehension of all the three accused is situated in different direction from the Anand Vihar Bus Stand. He has further submitted that as per the case of the prosecution, victim Vishram had boarded in the TSR from New Delhi Railway Station and he was to go in TSR at Anand Vihar Bus Stand. He has further submitted that since this Vishram earlier used to come at Delhi and used to board in the bus from the Anand Vihar Bus Stand for Satna, so he was acquainted with the route from New Delhi Railway Station to Anand Vihar Bus SC No. 51911/16 8/70 State Vs. Ram Chander Stand and since, the place of apprehension is near Metro Station Kanhaiya Nagar, which is about 10-12 kms from New Delhi Railway Station. He has submitted that if the version of the prosecution is taken to be true, then this victim Bishram is alleged to have boarded the said TSR from New Delhi Railway Station and the route from the New Delhi to the place of apprehension of accused is thickly populated area of Paharganj, Karol Bagh etc. He has further submitted that this Bishram could raise alarm, but admittedly, he did not raise any alarm and submitted that there are so many crossings between New Delhi Railway Station and the place of apprehension of accused and this Vishram had deposed that no police personnel came during the way and submitted that it is not even to be supposed that no police personnel was found on the crossing. He has further submitted that this witness was also cross examined by Ld Counsel for accused and during his cross examination, he has deposed that he did not ask about the fare for going to Anand Vihar Bus Stand from the driver of the TSR and submitted that such conduct of this witness is unnatural, as whenever a person would board in a TSR or Taxi, he would ask about the fare and submitted that since this witness has failed to tell the name of two accused and told only the name of accused Ram Chander and he has admitted that names of the accused were told to him by the police and further submitted that the accused are very poor persons and at the instance of one Mukhbir / secret informer of the police, this false case has been planted on them as accused Ram Chander was not on good terms with the secret informer of the police and ATIVAN tablets have been planted. He has further submitted that the testimony of PW-13 is found to be contradictory to his statement recorded under section 161 Cr. PC by the IO, as the statement of this PW-13 recorded by the IO during investigation reveals that he has stated therein that one of the boy went to take cold drink from a shop, but, no statement of any shopkeeper, who had sold the cold drink to the said boy / accused has been recorded. He has further submitted that the MLC of this witness Vishram reveals that this witness was conscious SC No. 51911/16 9/70 State Vs. Ram Chander at the time of his arrival in the BJRM Hospital and smell of alcohol in the breath of victim was also observed by the Doctor, as mentioned in MLC and further submitted that since this witness was conscious so, he could tell about the administration of the stupefying / intoxicated substance to the Doctor, but no such history was given by him to the Doctor, at the time of his arrival in the BJRM Hospital. He has further submitted that since this witness was found under the influence of alcohol by Doctor also submitted that no public witness has been made to join by the IO in the investigation and the testimony of police witnesses cannot be held to be reliable and further submitted that since, this witness has admitted during his evidence that he knew the name of only Ram Chander and the names of the other accused were told to him by the police and the statement of this witness was not recorded in police station on the same day of occurrence and the accused were falsely implicated in the present case and were shown to Bishram in the police station. He has further submitted that the prosecution has failed to prove its case beyond reasonable doubt and in the absence of any independent evidence, the testimony of the police witnesses is unreliable and further submitted that since the MLC of Vishram reveals that he was under the influence of alcohol, so it is clear that this witness was under the influence of alcohol at the time of his medical examination and further submitted that the testimony of this witness PW-13 is contradictory and full of inconsistencies and unreliable.
24. Ld. Counsel for the accused has submitted that Bishram is the alleged victim, in the case in hand and he has been examined as PW 12, he has further submitted that the accused have been falsely implicated in the present case and also submitted that in view of unnatural conduct of Bishram and his testimony is not reliable . He has further submitted that testimony of this witness is improved, so it cannot be relied upon. He has further submitted that this Bishram has admitted during his cross-examination that police had shown the accused in the police station and told him that the accused had committed SC No. 51911/16 10/70 State Vs. Ram Chander the offences and further submitted that since, the MLC Ex. PW 10/A of Bishram reveals that the doctor who had medically examined him, had opined that smell of alcohol was there in the breath of Bishram. So, it cannot be assumed or presumed that the Bishram was administered and intoxicant substance by the accused. He has further submitted that tablets ATIVAN have been planted on the accused. He has further submitted that since at the time of medical examination of this victim Bishram, the doctor had medically examined and had opined that smell of alcohol in the breath of Bishram, so,it is clear that this Bishram was under the influence of alcohol and both the accused have been falsely implicated in the case in hand at the instance of one secret informer of the police and prayed for acquitting both the accused Ram Chander and Rfid Mohammad (Rafiq Mohammad).
25. I have given thoughtful consideration to the submissions made by ld. Counsels for both the parties and perused the record.
26. The perusal of the record reveals that FIR has been registered on the complaint of SI Ram Manohar Mishra Ex. PW7/B wherein, he had deposed that on dated 02.03.2014, at about 6:25 P.M. he had departured from the Police Post Shanti Nagar for checking. In the meantime, a secret informer had informed that the persons, who are indulged in the activities of administring poisonous substansce were taking a passenger after administring him some intoxicated substance in a TSR bearing registration no. DL -1RP-1104 and they would come from the side the Inderlok and would go towards Metro Station Kanhaiya Nagar. Accordingly, this SI Ram Manohar Mishra had beefed the checking and after some time, a TSR had come from the side of Inderlok and it stopped at the side of the road, after a little distance from them and one man was got deboarded from the said TSR by two persons and the said man was made to sit on the road side and they started moving after sitting in the said TSR and the said TSR was got stopped by this SC No. 51911/16 11/70 State Vs. Ram Chander SI Ram Manohar Mishra with the help of his staff and two persons were found sitting on the rear seat of the said TSR and they were made to deboard from the said TSR and neither the driver nor the two persons sitting on the rear seat of the said TSR,could give satisfactory reply and he took these persons near the person, who was made to sit by them on a road side, who was looking in the inebriated condition , who was murmuring that he has been administered intoxicated substance and he has been looted and on inquiring he fail to tell his name and address and taking into consideration the facts and circumstances, this SI Ram Manohar Mishra had enquired from all the three persons, who were sitting in the TSR, who had told that they had made to sit that person (who was in the inebriated condition) in the TSR from New Delhi Railway Station for Anand Vihar Bus Stand and also told that all those three persons had administered the cold drink to that person after mixing the intoxicated and Sedative tablets and after consuming the same, that said person started lossing his consciousness and they got afraided from the police checking, so, they made to sit that fellow on the road side and when, they were trying to flee away after stealing two bags of that fellow. Then, the police had apprehended and driver of the said TSR had told his name as Ram Chander S/o. Bhagwati Prasad, whereas his accomplices had told their name Sunnybulla @ Rahimuddin R/o. Village Almima Pur, Police Station Chopra District Uttar Dinash Pur , West Bengal and Rafiq Mohammad S/o. Shirabuddin R/o. Almima Pur, Police Sttion Chopra District Uttar Dinash Pur, West Bengal.
27. Whereas, SI Ram Manohar Mishra has been examined as PW 11, who has deposed that on 02.03.2014, he was posted at PS Keshav Puram and was working as I/C Police Post Shanti Nagar. On that day, at about 6:25 pm vide DD No. 27 Ex. PW11/A PP Shanti Nagar he left for picket duty and vehicle checking on road no. 37 in the area of PS Keshav Puram. He was on foot. When, he reached at the picket, after about 5-7 minutes, secret informer SC No. 51911/16 12/70 State Vs. Ram Chander came there and gave information that the accused persons who are involved in the incident of "Zehar Khurani" would come in TSR no. DL 1RP 1104 with one passenger in the state of intoxication from Inderlok side and would go towards Kanhaiya Nagar Metro Station. He intensified the picket checking. After some time, he noticed that one TSR stopped at a little distance from police picket, which came from the side of Inderlok. He saw that two persons alighted from that TSR and they also took one more person from the passenger seat of the TSR and put that person on the pavement on the road side. Thereafter, those two persons, who had alighted from the TSR, sat in the same TSR and moved from there towards the side of police picket. They intercepted the TSR at the police picket and found that one person was on the driver seat and two more were sitting on the passenger seat of the TSR. All those three persons were taken out from the TSR. He made inquiries from those three persons about the person, who was removed by them from their TSR, but, they failed to reply satisfactorily. Those three persons who were stopped with the TSR were taken near the person, who was removed from the TSR. The person lying on the road was unconscious, but, he was speaking few words. That person said that "nasha khila diya aur mujhe loot liya". That person was not able to tell his name and address. He informed the PCR. He interrogated the three accused persons, who were stopped with the TSR. The driver of the TSR disclosed his name as Ram Chander S/o Bhagwati Parsad. Other two accused persons, who came out of the TSR and threw that passenger out from the TSR disclosed their names as Sannibullah @ Rahimuddin and Rafiq Md., He passed the information to the PP and also made request to send the IO. Victim was sent to BJRM Hospital in the PCR vehicle with Ct. Lokender, who was already on picket duty with Ct. Mahinder. HC Mohar Singh and Ct. Jagjeet from PS Keshav Puram reached at the spot. His statement Ex. PW 7/B was recorded by HC Mohar Singh. He also handed over the custody of all the three accused to HC Mohar Singh and search of the accused persons were conducted by HC Mohar Singh. From SC No. 51911/16 13/70 State Vs. Ram Chander the TSR two bags were recovered, out of which one bag was of accused person and it was containing bed sheet etc. Second bag was containing clothes and that bag was of victim and it also contained one slip of Chandigarh dental clinic. Both the bags were seized. Seizure memo of the bag of accused is Ex. PW6/A and seizure memo of bag of victim is Ex. PW6/B. From the possession of accused Ram Chander, 10 intoxicating tablets were recovered, same were kept in the polythene and then cloth pulanda was prepared and seal of MS was affixed and was taken into possession vide memo Ex. PW6/C. He has further deposed that from the possession of accused Sannibullah, 5 intoxicating tablets were recovered, same were kept in the polythene and then, cloth's pulanda was prepared and seal of MS was affixed and was taken into possession vide memo Ex. PW6/D and TSR no. DL 1RP 1104 was also seized vide memo Ex. PW6/F . He has further deposed that seal after the use was handed over to Ct. Surinder by HC Mohar Singh and all the sealed pulandas were given in his custody. Accused persons also remained at the spot with him and his staff. HC Mohar Singh went from there to the hospital and after some time, HC Mohar Singh returned to spot with MLC of victim. Rukka was prepared by HC Mohar Singh and was given to Ct. Jagjeet for being taken to PS for registration of FIR. After registration of FIR, Ct. Jagjeet and SI Kuldeep, as second IO reached the spot. He has further deposed that he handed over all the parcels of case property pulandas to SI Kuldeep. Custody of accused persons was also given to SI Kuldeep. All the accused persons were interrogated by SI Kuldeep. Accused persons were arrested in the present case and documents of their arrest were prepared. Arrest memo of accused Ramchander is Ex. PW6/G and personal search memo of accused Ram Chander is already Ex. PW6/H. Disclosure statement Ex. PW 1/I of accused Ram Chander was also recorded . He has further deposed that memo of arrest of accused Rahimuddin @ Sannibullah is Ex. PW6/J and personal search memo of accused Rahimuddin @ Sannibullah Ex. PW6/K. Disclosure statement Ex. PW6/L of accused SC No. 51911/16 14/70 State Vs. Ram Chander Rahimuddin @ Sannibullah was also recorded. He has further deposed that memo of arrest accused Rafiq Mohd. Ex. PW6/M and personal search memo of accused Rafiq Mohd. Ex. PW6/N were also prepared and disclosure statement of accused Rafiq Mohd. was also recorded, which is Ex. PW6/O. He has further deposed that from the search of accused Ram Chander Rs 1500/- (500 X 3) cash was recovered and currency was kept in the polythene and then cloth's pulanda was prepared and sealed with the seal of KS and was taken into possession vide memo Ex. PW6/E. They returned to the police station and his supplementary statement was recorded in the police station. This witness has correctly identified four photographs of TSR no. DL 1RP 1104 Ex PW3/B1 to B4 and TSR Ex. P5. He has also correctly identified one black colour travel bag of victim in unsealed condition Ex. P3 bearing particulars of the case on the piece of cloth, on the bag 'TM Fragrance' is written, which was recovered from the TSR and accused persons. He has also identified currency notes of Rs 1500/- (500 X 3) Ex. P.4 which were recovered from the possession of accused Ram Chander. He has also identified one unpacked strip Ex. P.6 containing 5 half pieces of tablets and on the strip, words 'RAZEPA, 2 mg WYETH' were legible thereon, which were recovered from accused Sannibullah @ Rahimuddin. He has also identified the polythene containing one unpacked strip Ex P.7. The strip is containing 10 half pieces of tablets and on the strip, 'ATIVAN 2 mg, WYETH' were written thereon, which was recovered from accused Ram Chander. He has also identified pitthu bag containing bed sheets and clothes Ex. P8, which was recovered from TSR and belonging to accused persons. Bag is already Ex. P8.
28. This witness was also cross examined by ld. counsel for the accused,during his cross examination, he has deposed that he did not remember, whether DD no. 27 PP Shanti Nagar was recorded by him or by the duty officer. When, he reached the police picket, at that time, Ct.
SC No. 51911/16 15/70State Vs. Ram Chander Mahender and Ct. Lokender were already present. Secret informer came to the police picket and passed information to him near the picket. The information was not passed in the hearing of Ct. Mahender and Ct. Lokender. Constables must have seen the informer talking to him. Picket was at the moving road and number of vehicles were passing from there. Secret informer also disclosed the registration no. of TSR of the accused persons. After receipt of the information, he had seen TSR within 10 minutes. The victim was dropped by the accused persons at a distance of 25-30 steps from the police picket. He was in police uniform at that time. They did not give chance to accused persons to run away from there. The victim did not disclose before him that he was made to drink some cold drink. He informed the PCR through wireless at about 6:40 pm. PCR reached within 5 minutes and within next 2-3 minutes victim was taken to hospital by the PCR. Immediately, after informing the PCR, he passed the information to the police station. He did not remember, whether, he passed the information to the police station after the removal of victim to the hospital by the PCR or prior to it. HC Mohar Singh reached within 10 minutes along with Ct. Jagjeet at the spot. He did not know, how, they commuted to the spot. His statement was recorded by HC Mohar Singh at the spot, while standing near the barricades on the pavement. HC Mohar Singh took about 20-25 minutes in recording his statement. All the seizure memos were prepared from top to bottom prior to registration of FIR. It took about 30 minutes in preparation of seizure memos Ex. PW6/A to Ex. PWPW6/D and Ex. PW6/F. All the seizure memos were prepared near the barricades on the pavement. HC Mohar Singh requested some passersby and asked them to join the proceedings. He did not remember the number of persons asked by IO. He did not remember the exact words, in which public persons replied and refused to join the proceedings. He has denied that no such recoveries has been effected from the spot at the instance of accused persons or that for this reason no one from the public has joined the proceedings. Search of the accused persons SC No. 51911/16 16/70 State Vs. Ram Chander was conducted by HC Mohar Singh, before he left for the hospital. HC Mohar Singh left for hospital at about 8:15 - 8:30 pm. He did not remember, vide which mode of transport HC Mohar Singh came to the spot. HC Mohar Singh returned to spot at about 9:30 pm. Rukka was sent at about 10 pm through Ct. Jagjeet. He did not remember, as to vide which mode of transport Ct. Jagjeet left with rukka. Till the return of Ct. Jagjeet with copy of FIR HC Mohar Singh, remained present at the spot, but, he was doing nothing. Ct. Jagjeet and SI Kuldeep came to spot at about 10:45 pm. He did not remember whether SI Kuldeep recorded statement of any police official at the spot or not. Disclosure statement of accused persons were recorded by SI Kuldeep, at the spot. Ex. PW6/I is in the handwriting of SI Kuldeep. Ex. PW6/L is in his handwriting and it was written on the dictation of IO SI Kuldeep as stated by accused. HC Mohar Singh took the cursory search of accused Ram Chander and recovered tablets. At that time, no cash was recovered from the search of Ram Chander. The bag of the victim was a travel bag and not the pitthu bag. He did not remember in sequence, in which, accused was arrested first in time. Personal search of accused persons was conducted by SI Kuldeep in his presence. SI Kuldeep took about one and a half hour in writing work, at the spot. He did not remember, whether at the time of writing work by SI Kuldeep, HC Mohar Singh was present or not. He finally left the spot between 12:00 -1:00 am. He has denied that accused persons were not apprehended in the manner as deposed by him or that recoveries were not effected from the accused persons or that Sannibullah was lifted from railway station on the pointing out of informer. He has denied that accused persons were brought to the police station or that they were shown to the victim or that they have been falsely implicated. He has denied that no tablets were recovered from the accused persons or that the same have been planted on them or that no search of accused persons was conducted or that all the case properties are planted upon them or that he has deposed falsely. He has admitted it to be correct SC No. 51911/16 17/70 State Vs. Ram Chander that no external injury was visible on the person of victim. He has admitted it to be correct that clothes of the victim were not in torn condition. He did not inquire from victim, as to where he was to go. He has admitted it to be correct that victim was drowsy and was able to murmuring only few words. He did not inquire from the victim, as to how many times he has visited Delhi. Victim did not make any written statement before him. He remained at the spot from 6:25 pm to 12:00-1:00 am. He did not inform his senior officers about receipt of secret information. It is not in his knowledge, if accused Rafiq and Ram Chander are facing trial any other criminal case of similar nature or not. He has denied that signatures of accused persons were obtained on blank papers or that same were later on converted into fabricated documents against them. He has denied that the victim did not tell him, "mujhe nasha khila diya, loot liya". He did not ask anything from the victim except his name. He has denied that their secret informers were Jamrul Haq and Ashfaq or that at their instance, the accused persons were falsely implicated in this case due to the old enmity of accused persons with said informers being natives of same village. He has denied that accused Md. Rafiq was lifted from his house. He did not join any independent witness in the proceedings and he was unaware whether SI Kuldeep had asked any independent person to join the proceedings or not. He has denied that no raid was conducted or that all the documentation was done while sitting at police station or that he has deposed falsely.
29. Thus, the testimony of PW11 is contradictory to the contents of his complaint Ex. PW7/B and in his complaint he has deposed that the accused were trying to flee away after stealing two bags of the victim. But, at the time of recording of his examination in chief he had deposed that one bag was of victim and another bag was of accused. This witness has relied upon the information allegedly received from the secret informer that the accused who are indulged in the administering poisonous substance would come in an SC No. 51911/16 18/70 State Vs. Ram Chander autorickshaw with a victim passenger and during his cross examination he had admitted that victim did not tell him that he was made to drink cold drink. Since, the prosecution has failed to prove on record that these accused were earlier indulged in any such occurrence (as allegedly told by the secret informer to the PW11). So, the information received from the secret informer is proved to be erroneous. This witness has admitted in his examination in chief that the victim was murmuring that " Nasha Khila Diya". But this witness appears to negligent person, who did not bother to enquire from the victim that how and in what manner intoxicated is made to eat this victim and who had made to eat the intoxicated substance and this witness had given the statement Ex. PW7/B to PW Mohar Singh and got lodge the FIR. This witness has deposed that victim was not able to tell his name. Whereas PW15 has deposed that the victim had told his name. So, testimony of this witness is also inconsistent to the testimony of PW15. Since, the victim met to this witness at 6:25 PM, but,this witness did not disclose that the smell of alcohol was there in the breath of victim. This PW11 is a police official and he would have felt the smell of alcohol in the breath of the victim. But, he did not disclose in the RUKKA and in his statement and this witness without verifying anything from the victim he had lodged the FIR. Since, this witness had relied upon the information of secret informer, which is also erroneous and the prosecution has failed to prove that any other case of similar nature was ever lodged against the accused. Despite of the fact that the place of alleged apprehension of the accused is a thoroughfare. But, no public witness is made to join. The testimony of this police witness appears to be doubtful and alleged recovery also appears to be doubtful. So, the testimony of this witness does not inspire any confidence.
30. Whereas, Mr. Bishraman (victim) has been examined as PW 13, who has deposed that he was working as operator in printing department of M/s Arienth, situated at Kishan Pura, Distt. Solan, Himachal Pradesh since four SC No. 51911/16 19/70 State Vs. Ram Chander months. He has further deposed that prior to working in above mentioned company, he worked in Super Multi Company at Himachal Pradesh for five years. He has further deposed that he boarded in the Kalka Express from Himachal Pradesh and reached New Delhi Railway Station at about 6 PM on 02.03.2014 and he came out from the Railway Station for going to Anand Vihar Bus Terminal, as, he had to take a bus for Satna, (MP). He has further deposed that there was traffic jam outside the Railway Station and he was waiting for the bus for going to Anand Vihar, but no bus came and in the meantime, one TSR came, in which, one passenger was already sitting and the person who was sitting on the passengers seat told him that he was also going to Anand Vihar and asked him to sit in the auto. He has further deposed that he boarded in the TSR and at that time, he was carrying one bag containing some clothes and cash of Rs.1500/- and on the way, they made enquiry from him, as to from where, he came and he told them that he came from Himachal Pradesh and was going to Satna. He has further deposed that the person sitting on the passengers seat stated that he was appearing tired and they asked him to take cold drink. He has further deposed that on the way, one more person also boarded in the said TSR and he was already having a bottle of cold drink. He has further deposed that they offered the cold drink bottle (Pepsi) to him and however, he refused to take the same, but, they insisted that they were like his brothers and then he consumed the cold drink. He has further deposed that after some time, he started feeling sleepy and they stopped the TSR on the road. He has further deposed that he was not completely unconscious and he noticed that his bag was missing. Then, he turned unconscious. He has further deposed that he regained consciousness and found himself in the hospital and police officials met him in the hospital. He has further deposed that police enquired from him and brought him to police chowki on the next day and his statement was recorded in police chowki. He has further deposed that those three persons, who were present in the TSR had offered him the cold drink, were also SC No. 51911/16 20/70 State Vs. Ram Chander present in the police chowki . He had identified them in police chowki and also told to the police, as to who was driving the TSR, and as to who were sitting on the passengers seat. He has correctly identified all the three accused in the court and stated that he knew the name of only one of the accused, who was driving the TSR and his name was Ram Chander. He had pointed out towards Rahimuddin, as the person who was who was sitting on the seat of the passengers, when the TSR had come to him . He has also pointed out towards Rafid Mohammad (Rafiq Mohammad), as the person who came in the TSR alongwith the bottle of cold drink. He has further deposed that his bag was also shown to him by police in the police chowki and same was seized by the police. He has correctly identified his bag Ex. P3. He has also deposed that the money which was carried by him on the date of occurrence was comprising of three currency notes in the denomination of Rs.500/-. He has correctly identified three currency notes Ex. P4 (colly.) and he has also deposed that he did not remember the names of other two accused persons, whose names were informed to him by the police in police chowki, when, he identified them. Then the Ld. Addl. PP for the State had sought permission to ask leading questions to this witness and after hearing the Ldl. Predecessor of this court was pleased to allow the Ld. APP for the State to ask leading question and on asking of the leading question by the Ld. APP for state this witness had admitted it to be correct that the police informed him the names of other two accused persons as Rafiq Mohammad and Rahimuddin.
31. This witness was cross examined by ld. Counsel for the accused. During his cross examination he has deposed that he de-boarded from the Kalka Express train at Platform no. 2 in New Delhi Railway Station at about 6:00 P.M. and he had come to Delhi several times before 02.03.2014 and thus, such admission of this witness makes it clear that he was well versed the area of Delhi. He has further deposed that he came out from the New Delhi Railway Station and he started searching the bus after coming out from the SC No. 51911/16 21/70 State Vs. Ram Chander railway station for going to Anand Vihar. He has further deposed that he did not know the registration number of the TSR in question and he was not under intoxication, when, he boarded in the TSR. Whereas, the MLC Ex. PW 10/A of this witness reveals that smell of alcohol was present in breath. If, this witness did not consumed any alcohol, then, how the smell of alcohol was observed by the doctor in the breath of this witness, when, he was medico legally examined. So, it may be inferred that this witness would have consumed the alcohol and in view of the same the smell of alcohol was observed by the doctor in the breath of this witness. This witness has also deposed that he did not inquire about the fare for going to Anand Vihar from the driver of the TSR either at starting point or on the way. So, it appears to be improbable that the passenger would not inquire about the fare while boarding in a TSR . So, the conduct of this witness is also not natural. This witness has also deposed that he had come to Delhi for going to Satna several times earlier also, but he did not know the way from New Delhi Railway Station to Anand Vihar, as the vehicles took different routes from New Delhi Railway Station to Anand Vihar. Since, this witness has admitted that he had come at Delhi number of times for going to Satna from Delhi. So, it is not probable that he would not have knowledge of the route from New Delhi Railway Station to Anand Vihar Bus Stand, as the accused are alleged to have been apprehended by the police at near Metro Station Kanhaiya Nagar and the area of Kanhaiya Nagar is situated in the opposite direction of the Anand Vihar Bus Stand and since, this witness had come at Delhi many times, so, it is not even to be supposed that he could not know about the route from New Delhi Railway Station to Anand Vihar. Had the accused taken TSR in opposite direction, he could raise alarm, but, he did not raise any alarm. This witness has also deposed that it generally took about 30 minutes to 1 hour in reaching at Anand Vihar from New Delhi Railway Station . He has further deposed that he had stated before the police in his statement that initially he refused to take the cold drink offered to him, but, the attention of SC No. 51911/16 22/70 State Vs. Ram Chander the witness was drawn towards his statement Ex. PW 13/DA recorded U/s.161 Cr.P.C. where it is not so recorded. He has further deposed that he was offered cold drink in plastic glass and he started feeling sleepy after about 5 minutes of consuming the Pepsi and he did not see any traffic police official on the way but there are so many crossing between New Delhi Railway Station to Metro Station Kanhaiya Nagar, from where, the accused are alleged to have been apprehended and this witness is alleged to have been found to the police in the inebriated condition and this is not the case of the prosecution that immediately after consuming the cold drink, (wherein, the stupefying substance is alleged to have been mixed by the accused). This witness lost his consciousness and since, the perusal of the MLC of this witness Ex. PW 10/A reveals that even at the time of the arrival of this witness in the Babu Jagjeevan Ram Memorial Hospital at 7:50 P. M. on dated 02.03.2014, this witness was conscious , this witness has further deposed that after about 25-30 minutes of his feeling sleepiness, accused persons continuously drove the auto and then stopped the TSR. He has further deposed that no police officials met him at the place, where, the accused persons stopped the TSR , thus, testimony of this witness is inconsistent to the testimony of PW 11 SI Ram Manohar Mishra . This witness has also deposed that after noticing that his bag was missing, he did not ask any of the accused about his bag. Such conduct of this witness is unnatural. Had the bags of this witness gone missing, he could ask to the accused about his bag. He has further deposed that he turned unconscious and police met him in the hospital, whereas, perusal of the MLC Ex. PW 10/A of this witness reveals that even at the time of arrival of this witness in the Babu Jag Jeevan Ram Memorial Hospital, Delhi this witness was conscious at 7:50 P. M. on 02.03.2014, as mentioned in his MLC. Since this witness was conscious at the time of the arrival in the hospital. So, he could tell to the doctor, who had medically examined this witness that he was administered some stupefying substance by the accused after mixing the same in the cold drink, but, this SC No. 51911/16 23/70 State Vs. Ram Chander witness did not tell to the doctor about administration of any stupefying substance to this witness in the alleged auto. Since the MLC Ex. PW 10/A of this witness reveals that the smell of alcohol in the breath was observed by the doctor , so it may be inferred that this witness would have consumed the alcohol in excessive quantity and he would be in the inebriated condition and deliberately he would not have told to the police and doctor that he had consumed the alcohol. This witness has further deposed that he did not know, as to who had taken him to hospital from the spot and he regained consciousness between 12 midnight to 2 AM in the hospital and police officials were also present at there, but such oral testimony of this witness is inconsistent to the contents of his MLC Ex. PW 10/A, as even at the time of his arrival in the said hospital at 7:50 P.M. he was conscious. He has further deposed that at that time, he did not know the name of any of the accused and police had informed him the names of all the three accused in police chowki at the time of recording of his statement. Since , the MLC Ex. PW 10/A reveals that this witness was conscious at the time of his medical examination in the Babu Jag Jeevan Ram Hospital on dated 02.03.2014 at 7:50 P. M. so, what has prevented him from giving statement to the police as his statement Ex. PW 13/DA u/s 161 of Cr. P. C. was recorded by the IO on dated 03.03.2014 and delay in recording the statement of this witness has not been explained by the prosecution and in view of such delay in recording of the statement of this witness by the IO, the possibility of introduction of an afterthought and colourful version cannot be ruled out. This witness has denied that he had consumed beer in the train or that he was under the influence of liquor. He has denied that three accused present in the court were not involved in the occurrence. He has admitted it to be correct that these three accused were shown to him by the police in the police chowki and the police told him that these three accused were involved. In view of such admission by this witness in the court it is probable that this witness would have identified to the accused at the instance of the police. This witness has SC No. 51911/16 24/70 State Vs. Ram Chander deposed that he was brought to the police chowki by police, but, he did not remember the time. He has denied that no incident took place with him or that under the influence of liquor he lost his bags. No doubt that this witness has denied that he had taken the intoxicating tablets in the train, he has also denied that he was found to the police under the influence of the drug at NDLS. But as the MLC Ex. PW10/A reveals that smell of alcohol in the breath of this witness was observed by the doctor, who had medically examined to this witness and this witness did not tell to the doctor about the consumption of any alcohol, so, it is probable that this witness would have consumed alcohol, as well as intoxicating tablets. This witness has denied that accused have been falsely implicated or that he has deposed falsely at the instance of police. He has denied that police officials asked him to leave his bag in the police chowki otherwise, they would implicate him in a case or Ativan tablets were recovered from the possession of this witness. He has denied that he has deposed falsely. Since, the testimony of this witness appears to be improved, embellished and inconsistent to the testimony of PW 11 SI Ram Manohar Mishra and since, this witness did not raise any alarm at the time the accused had deviated from the route of Anand Vihar and since the MLC of this witness reveals that this witness was conscious even at the time of his medical examination on dated 02.03.2014 at 7:50 P. M., but the statement of this witness Ex. PW 13/DA was recorded on dated 03.03.2014 since, the delay in recording of statement u/s. 161 of Cr. P. C. by the IO has not been explained by the prosecution and since this witness during his cross- examination has admitted it to be correct that the accused were shown to him by the police and police had told him that these accused were involved in the occurrence, so the possibility of false implication of the accused by the police cannot be ruled out and testimony of this witness also becomes doubtful, so, it does not inspire any confidence.
32. HC Manoj has been examined as PW 1, who has deposed that on SC No. 51911/16 25/70 State Vs. Ram Chander 02.03.2014 he was posted in PS Kesha Puram as Head Constable and was working as Duty Offier from 4 PM to 12 midnight. At 10:10 PM he received rukka brought by Ct. Jagjeet and which was sent by HC Mohar Singh. On the basis of said rukka, he got registered FIR NO., 141/14 on computer Ex. PW 1/A . After registration of FIR, he made endorsement on rukka which is in his handwriting Ex. PW 1/B. After registration of FIR, the original RUKKA and copy of FIR were handed over to Ct. Jagjeet for handing over to HC Mohar Singh, at the spot. This witness was cross examined by ld. Counsel for the accused. During his cross-examination he has denied that FIR of this case is ante-dated, ante timed and manipulated at the instance of the IO, the SHO, and Ram Manohar Mishra.
33. Whereas, Ct. Dharamraj has been examined as PW 2, who has deposed that on 03.03.2014, he was posted at PS Keshav Puram and on that day accused Ram Chander, Rafiq, Rahumuddin and all accused were taken out from the lock up and they were in his custody and custody of Ct. Surender. IO/SI Kuldeep Singh obtained one day police custody remand of all the three accused. He has further deposed that disclosure statement of accused Ram Chander is Ex. PW 2/A, disclosure statement of accused Rafiq Mohammad is Ex. PW 2/B and disclosure statement of accused Rahimuddin is Ex. PW 2/C. He has further deposed that pursuant to disclosure statements, he alongwith IO and all the three accused left the police station. All the three accused led them to the jhuggi area of Sonia Camp, Shastri Park and pointed out the jhuggi of accused Rahimuddin. He has further deposed that accused Rahimuddin got recovered one bag and one mobile phone form the jhuggi of accused Rahimuddin and bag was of black colour laptop/pitthu bag on which 'HP' was written and mobile phone was of Micromax company and was of black colour and Bag was taken into possession vide memo Ex. PW2/D and cloth pullanda of the mobile phone was prepared. He has further deposed that before preparing the Pullanda, mobile phone was checked and IMEIs SC No. 51911/16 26/70 State Vs. Ram Chander numbers were noted. He has further deposed that mobile phone was not containing any SIM card and memory card and pullanda of mobile phone was sealed with the seal of KS and was taken into possession vide memo Ex. PW 2/E. He has further deposed that when, accused were in Police Station in police custody, complainant Bishram also came to the police Station and identified all the three accused. This witness has correctly identified one mobile phone of Micromax company with IMEI Nos. 911326754279526 and 91132654279534 which accused Rahimuddin got recovered, mobile phone is Ex. P1, one black colour laptop/pitthu bag Ex. P2 in unsealed condition bearing particulars of the case.
34. This witness was cross examined by ld. Counsel for the accused. During his cross-examination, he has deposed that he did not remember if he had accompanied the IO and accused to the court for obtaining police custody remand for accused. Disclosure statements of accused were recorded at Sonia Camp, Shastri Park in the evening. He has further deposed that they went to Sonia Camp, Shastri Park in Private car. Disclosure statements were recorded while keeping the writing board on the bonnet of the car. They remained at Sonia Camp, Shastri Park for about one hour. He has admitted that at the spot, IO did not make inquiries to verify about the ownership of recovered laptop bag and mobile phone . He has further deposed that from Jhuggi camp, they directly went to BJRM hospital for medical examination of accused and he did not remember the time. He did not remember the time, when, they returned to police station with accused persons after 10 PM and he did not see Bishram, (complainant of the case), in the Police Station after their return. He has further deposed that he saw Bishram, who is the complainant of the case, in the Police Station, but, he did not remember the exact time. He has denied that no recovery of mobile phone and laptop bag was effected at the instance of accused from the jhuggi of Rahimuddin or the same were planted on the accused. He has denied that no disclosure SC No. 51911/16 27/70 State Vs. Ram Chander statements were made by accused or that signatures of accused were forcibly obtained on blank papers. He has denied that complainant Bishram did not come to Police Station or that he did not identify the accused or that he has deposed falsely. He has denied that no recovery was effected at the instance of accused and in his presence, IO did not call any public witness to join the proceedings. He has denied that he has deposed at the instance of the IO and complainant to falsely implicate the accused in this case. He has signed two documents at the spot, and he did not have knowledge if accused are wanted in any other case of their police station. He has denied that he has signed all the documents while sitting in the PS at the instance of the IO.
35. Whereas, Chander Dev Dass has been examined as PW 3, who has deposed that he is registered owner of auto no. DL 1RP 1104 and his friend Shiv Kumar S/o. Laxmi Yadav purchased the aforesaid auto rickshaw in his name. The aforesaid auto rickshaw is with his friend Shiv Kumar and he has obtained the aforesaid TSR No. DL 1RP 1104 on superdari from the court and superdarinama is Ex. PW 3/A. He has correctly identified four photographs of TSR No DL 1RP 1104 Ex. PW 3/B1 to B4 and CD is Ex. PW 3/B5.
36. This witness was cross examined by ld. counsel for the accused Ram Chander and Rafiq @ Rfid Mohammad, during his cross-examination he has deposed that at the time of superdari, he gave his address i.e. H. NO. 279, Gali No. 8, Lahore Colony, Shastri Nagar, Delhi 31 where he was residing on rent at that time. He was not cross examined by the ld. Counsel for the accused Rahimuddin @ Sonibulla. So, the opportunity of that accused to cross examine this witness was done nil.
37. Whereas, Shiv Kumar has been examined as PW 4, who has deposed that he had purchased TSR Auto No. DL 1RP 1104, but he purchased it in the name of his friend Chander Dev Dass and the registration of TSR is in the SC No. 51911/16 28/70 State Vs. Ram Chander name of Chander Dev. He has further deposed tht he purchased it two years ago and initially, he used to drive this TSR himself and in the January of last year, he met with an accident and thereafter he gave his TSR to accused Ram Chander present today in the court and thereafter, Ram Chander used to ply his TSR and Ram Chander had agreed to pay Rs. 30/- per day to him, but, he never paid any rent for plying his TSR. He has further deposed that after about one month or 1 ½ months, he came to know that his TSR has been seized by the police and the he got it released. Photographs of the TSR are Ex. PW 3/B1 to B4 .
38. This witness was cross examined by ld. Counsel for the accused Ram Chander and Rafiq @ Rafid Mohammad. During his cross-examination he has deposed that he did not remember, whether police recorded his statement during investigation of this case and he did not lodge any complaint against Ram Chander, when, he did not pay any rent for about 1 ½ months about missing of Ram Chander and his TSR. He has further deposed that to the police, he had given statement that accused Ram Chander used to take his TSR and bring it back everyday. He has denied that he has deposed at the instance of the police. He was not cross examined by the ld. Counsel for the accused Rahimuddin @ Sonibulla. So, the opportunity of that accused to cross examine this witness was done nil.
39. Whereas, Ct. Jagjeet has been examined as PW 5, who has deposed that on 02.03.2014 he was posted at PS Keshav Puram and he was on emergency duty and HC Mohar Singh was also present in the police station. He has further deposed that DD No.28/PP Shanti Nagar was marked to HC Mohar Singh for investigation and alongwith HC Mohar Singh, as per information, they reached at Road NO. 37, near Metro Station Kanhaiya Nagar and at the spot SI Ram Manohar, Ct. Surender, Ct. Lokender, Ct. Mahender were present with one TSR no. DL 1RP 1104 . He has further SC No. 51911/16 29/70 State Vs. Ram Chander deposed that one person was also found lying in unconscious condition on the PATRI near the police picket and PCR van was called at the spot and that unconscious person was sent to BJRM Hospital with Ct. Lokender and he remained at the spot with SI Ram Manohar and other police staff and all the three accused remained in their custody. He has further deposed that HC Mohar Singh left for the BJRM Hospital and after some time HC Mohar Singh came to spot and recorded statement of SI Ram Manohar and Rukka was prepared by HC Mohar Singh and was given to him for taking to Police Station for the registration of FIR and from the possession of accused Ram Chander, 10 tablets were recovered and on the wrapper of which ' ATIVAN' was written. He has further deposed that the same were sealed in pullanda with the seal of MS and was taken into possession. 5 tablets were recovered from Sanibulla @ Rahimuddin, on wrapper of which "ATIVAN" was written. The same were sealed in pullanda with the seal of MS and was taken into possession and seizure memo of the same was prepared. He has further deposed that the black colour bag of the victim Bishram was also taken into possession by the IO. He has further deposed that he left the spot with RUKKA and went to Police Station and after registration of the FIR, he returned to the spot with the copy of FIR and RUKKA and handed over the same to HC Mohar Singh and SI Kuldeep Singh also reached the spot for further investigation of the case. He has further deposed that SI Kuldeep prepared site plan of the place of incident of SI Ram Manohar and IO made inquiries from all the three accused and arrest them. He has further deposed that documents of their arrest were prepared and from the search of accused Ram Chander, Rs. 1500/- cash, which was robbed from complainant was recovered. He has further deposed that same was kept in polythene and cloth pullanda was prepared and was sealed with the seal of KS and was taken into possession and seizure memo was prepared. He has further deposed that disclosure statements of accused were also recorded by the IO and his statement was recorded by SI Kuldeep. He has correctly identified one black colour travel bag in unsealed condition SC No. 51911/16 30/70 State Vs. Ram Chander Ex. P.3 bearing particulars of the case on the piece of cloth, of the bag 'TM Fragrance' is written. He has also correctly identified the currency notes of Rs. 1500/- Ex. P.4 which were allegedly recovered from the accused Ram Chander. He has also correctly identified the of TSR No. DL 1RP 1104 Ex. P.5 in the photographs Ex. PW 3/B1 to B4 . He has also correctly identified the one unpacked strip containing 5 half pieces of tablets and on the strip Ex. P.6 whereon the words 'RAZEPA, 2 mg, WYETH' are legible, which was allegedly recovered from accused Sanibulla @ Rahimuddin, He has also correctly identified strip Ex. P.7 containing 10 half pieces of tablets whereon 'ATIVAN 2 mg, WYETH' are written which was allegedly recovered from accused Ram Chander.
40. This witness was cross examined by ld. Counsel for the accused. During his cross-examination he has deposed that information vide DD No. 28/PP Shanti Nagar was received at 6:25 PM and SHO PS Keshav Puram might have been informed by the I/C PP about the said DD and police picket was at a distance of about 200-250 meters from police post Shanti Nagar and he alongwith HC Mohar Singh was present in the area to attend some other call, when, they received telephonic information about the receiving of DD No. 2//PP Shanti Nagar from the DO. He has further deposed that they were on motorcycle, when, they reached at the spot and when, they reached at the spot, PCR van was already present at there and SI Ram Manohar Mishra was present at police picket and when, they reached at the spot they found that TSR was parked at the distance of 10 meters from the police picket. He has further deposed that when, they reached at the spot they found that TSR was parked at the distance of 10 meters from the police picket and when they reached at the spot, unconscious person was lying at a distance of 10-15 meters from the police picket and at that time that person was saying "INHONE MUJHE LOOT LIYA". At that time SI Ram Manohar Mishra also SC No. 51911/16 31/70 State Vs. Ram Chander standing nearby. He has further deposed that SI Ram Manohar tried to inquire name of that semi unconscious person but that person was not able to speak and he did not mentioned the name of Ct. Mahender in his statement about his presence at the police picket. He has denied that Ct. Mahender was not present at the spot. So he did not mention his name in his statement u/s. 161 Cr. P. C. He has also deposed that within 2-3 minutes, when, they reached at the spot and unconscious person was removed to hospital by the PCR staff and before leaving the spot for hospital, HC Mohar Singh recorded statement of SI Ram Manohar. He has further deposed that it took about 2-3 minutes in recording statement of SI Ram Manohar. He has denied that statement of SI Ram Manohar was recorded while sitting in the police station. He has further deposed that HC Mohar Singh returned to spot from hospital at about 8:30- 9:00PM and SI Kuldeep did not reach to spot by that time and he left the spot with RUKKA at 10 PM and he came back to the spot with copy of FIR and RUKKA at about 10:15 -10:30 PM and search of accused was conducted by HC Mohar Singh before he left with RUKKA. He has further deposed that HC Mohar Singh took the search of accused, even before, he left for hospital. He has denied that search of accused was not conducted in his presence or that no tables were recovered from the accused or that for this reason his signature does not appear on the seizure memos of tablets. He has further deposed that SI Kuldeep came to the spot at 8-8:30 PM before he left with RUKKA and SI Kuldeep recorded his statement and he did not know, if, SI Kuldeep recorded statement of any other witness at the spot and he left the spot alone finally at about 11 PM. He has further deposed that at the time of proceedings, public persons were passing from there and HC Mohar Singh requested passersby to join proceedings. But, they refused to join on one pretext or the other. He has further deposed that he did not mention this fact in his statement recorded u/s. 161 of Cr. P. C and IO did not take action against those public persons, who refused to join. He has denied that Rahimuddin, (rickshaw puller), was brought from railway station to the police SC No. 51911/16 32/70 State Vs. Ram Chander station or that he has been falsely implicated in the present case. He has denied that the recoveries are planted on the accused by the police. He has denied that he has deposed at the instance of SI Ram Manohar Mishra. He has denied that no such incident had happened or that accused Ram Chander was lifted from railway station alongwith victim Bishram or that victim Bishram was in drunken condition at that time or that false case has been planted on Ram Chander. He has denied that accused Rafiq was lifted from his house at the instance of SI Ram Manohar Mishra or that he is falsely implicated in the present case. He has denied that he has not put his signatures on any of the documents for the reason that he was not present at the spot or that he has not joined the investigation or he has deposed falsely.
41. Since, this witness has deposed during his cross examination that the victim victim Bishram was speaking that "INHONE MUJHE LOOT LIYA", meaning thereby the Bishram was conscious at that time and if the victim was saying so, then why the statement of the victim was not recorded at the spot, it is not explained. This witness has also admitted that the passersby were passing from there, but, no public is made to join by the IO. He has also deposed that IO had requested to the passersby to join the investigation, but, they refused. But, as the IO failed to serve notice to any public persons for non-joining in the investigation, and since the signature of this witness are not found on the recovery memos of alleged tablets Ex. PW6/C and PW6/D, so, the presence of this witness at the spot becomes doubtful and in the absence of the public witness it will be unsafe to rely upon the testimony of this police witness, whose presence at the spot is doubtful. So, the testimony of this witness does not inspire and confidence.
42. Whereas, Ct. Surender has been examined as PW 6, who has deposed that on 02.03.2014 he was posted at PP Shanti Nagar, PS Keshav Puram and he was present at Road no.37 on his duty at about 6.30 PM. He has further SC No. 51911/16 33/70 State Vs. Ram Chander deposed that SI Ram Manohar Mishra also met him and they came to police picket at road no.37, near Kanhaiya Nagar Metro Station and at about 7 PM one TSR No. DL1RP-1104 came from the side of Inderlok towards police picket and that TSR stopped 30-40 steps before police picket and from that TSR, one unconscious person was dropped on the side of the Road. He has further deposed that after dropping that person the occupants of TSR in TSR immediately moved towards the picket and the TSR was stopped and two persons were found sitting in the passenger seat and one person was driving the TSR. He has further deposed that SI Ram Manohar made inquiries from them about the person whom they had dropped at the little distance away therefrom, but, they could not give satisfactory reply. He has further deposed that then they took those three occupants of the TSR near the person who was dropped by them and that unconscious person was murmuring that, "Mujhe Nasha Kara Diya, Mera Kuch Samaan Chura Liya, Mujhe Kuch Khila Diya". He has further deposed that IO/SI Ram Manohar called the PCR and also gave information to the Police Post and HC Mohar Singh with Ct. Jagjeet came to spot and the semi-conscious person was sent to BJRM Hospital in PCR van with Ct. Lokender. HC Mohar Singh made inquiries from the three occupants of TSR and inquired their names, addresses and parentages. He has further deposed that name of the driver of TSR was Ram Chander and the other two occupants of rear seat were Sanibulla and Rafiq. He has further deposed that all the three accused remained in their custody and HC Mohar Singh left the spot for the hospital and at 8.30 PM SI Kuldeep also reached at the spot. He has further deposed that HC Mohar Singh came back to the spot from the hospital and statement of SI Ram Manohar was recorded by HC Mohar Singh and their statements were also recorded. He has further deposed that Rukka was prepared by HC Mohar Singh and was given to Ct. Jagjeet for taking the same to PS for the registration of FIR. He has further deposed that from the TSR, two bags were recovered and out of which, one bag was of accused persons and it was containing one bed sheet etc. He has SC No. 51911/16 34/70 State Vs. Ram Chander further deposed that second bag was containing clothes and that bag was of victim and in second bag, one slip of Chandigarh Dental Clinic was also found and both the bags were seized. He has further deposed that seizure memo of bag of accused persons is Ex. PW6/A . He has further deposed that seizure memo of bag of victim is Ex. PW6/B and From the possession of accused Ram Chander, 10 intoxicating tablets were recovered and same were kept in polythene and then parcel of cloth was prepared and seal of MS was affixed thereon and were taken into possession vide memo Ex. PW6/C. 5 intoxicating tablets were recovered from accused Sanibulla and same were kept in polythene and then, parcel of cloth was prepared and seal of MS was affixed thereon and the same were taken into possession vide memo Ex. PW6/D. Rs.1500/- (500x3) cash was recovered from accused Ram Chander. He has further deposed that notes were kept in polythene and then parcel of cloth was prepared and sealed with the seal of KS by SI Kuldeep and the same was taken into possession vide seizure memo Ex. PW6/E. He has further deposed that TSR was also seized by HC Mohar Singh vide seizure memo Ex. PW6/F . He has further deposed that Ct. Jagjeet brought the copy of FIR and rukka at the spot and handed over the same to SI Kuldeep at 10.30 PM and all the three accused persons were correctly identified by this witness in the court. He has further deposed that arrest memo Ex. PW6/C and personal search Ex. PW6/H of accused Ram Chander were prepared. He has further deposed that disclosure statement Ex. PW 6/I of accused Ram Chander was recorded. He has proved the memo of arrest Ex. PW6/J and memo of personal Ex. PW6/K and disclosure statement Ex. PW6/L of accused Rahimuddin @ Sunniballa. He has also proved the memo of arrest Ex. PW6/M and memo of personal search of accused Rafiq Mohammad Ex. PW6/N . He has also proved the disclosure statement Ex. PW 6/O of accused Rafiq Mohammad. His statement was recorded by IO/HC Mohar Singh. He has further deposed that on 03.03.2014, all the three accused persons were taken on one day police custody remand by SI Kuldeep and Ct. Dharamraj SC No. 51911/16 35/70 State Vs. Ram Chander was also with them. He has further deposed that IO made interrogation of accused persons and recorded their supplementary disclosure statement. He has further deposed that supplementary disclosure statement of accused Ram Chander is Ex. PW2/A and supplementary disclosure statement of accused Rafiq is Ex. PW2/B and supplementary disclosure statement of accused Rahimuddin @ Sanibulla is Ex. PW2/C. He has further deposed that accused persons led them to the jhuggies of Shastri Park and pointed out the jhuggi, in which, accused Rahimuddin @ Sanibulla and Rafiq used to reside. He has further deposed that that jhuggi was on the first floor of that jhuggi, accused person got recovered one black colour bag, on which, 'HP' was written and one mobile phone of Micromax of black & red colour. He has further deposed that bag was taken into possession vide memo Ex. PW2/D. He has further deposed that the parcel of cloth of the recovered mobile phone was prepared and was sealed with the seal of KS and was taken into possession vide memo Ex. PW2/E. He has further deposed that they returned to Police Station with accused persons and case property pullandas after medical examination of accused persons and his statement was recorded. When, the attention of this witness was drawn towards four photographs of TSR No. DL-1RP-1104 from the judicial record, then, he has correctly identified the same as Ex. PW3/B1 to B4. He has correctly identified one mobile phone of Micromax company with IMEI Nos. 911326754279526 and 911326754279534 Ex P.1 and one black colour laptop/pitthu bag Ex. P.2 which were allegedly recovered from the jhuggi of accused Rahimuddin and Rafiq . He has also correctly identified the bag Bag on which 'TM Fragrance' is written containing clothes of victim is Ex. P3. He has also correctly identified the currency notes Ex. P.4. He has also correctly identified one unpacked strip seized from accused Sanibulla @ Rahimuddin Ex. P.6 and also identified unpacked strip allegedly seized from accused Ram Chander, same was containing 10 half pieces of tablets and on the strip, 'ATIVAN 2 mg, WYETH' is written. The strip of tablets is already Ex. P7. He has also SC No. 51911/16 36/70 State Vs. Ram Chander correctly identified one black colour pitthu bag in unsealed condition and bag is containing bed sheets and clothes Ex. P.8 which was allegedly recovered from the TSR and belongs accused persons.
43. This witness was cross examined by ld. Counsel for the accused. During his cross examination he has deposed that his duty hours were from 8 AM to 8 PM. He has further deposed that he was on patrolling duty and he left the police post after making departure entry and he did not remember the DD number. He has further deposed that in the police picket, Ct. Lokender, Ct. Mahender were on duty, when, he reached in the police picket, SI Ram Manohar Mishra was already present at there and the place, where, the victim was removed from the TSR was at a distance of 30-40 steps from police picket. He has further deposed that SI Ram Manohar Mishra was having information with him to the effect that some persons, who used to give some intoxicants to the passengers would come in TSR. He has further deposed that they first made inquiries from the occupants of the TSR and then, they went to the victim. He has further deposed that victim was semi-conscious and SI Ram Manohar tried to inquire the name and address of victim. But, he was not able to speak properly. He has further deposed that occurrence took place at about 6.30 PM and PCR van reached at the spot within 5-7 minutes. He has further deposed that HC Mohar Singh reached at the spot after about 10 minutes, when PCR took the victim to the hospital and HC Mohar Singh first made inquiries from SI Ram Manohar. He did not remember, if IO also recorded his statement. HC Mohar Singh left the spot for hospital at about 7.15 PM and he returned to spot at about 9.30 PM. He has further deposed that Ct. Jagjeet remained with them after returning of HC Mohar Singh, Ct. Jagjeet left with rukka to Police Station and he did not know that 'ATIVAN' which was allegedly recovered from accused persons were intoxicants. He has further deposed that Ct. Jagjeet returned to the spot at about 10.30 PM with the copy of FIR and rukka and thereafter, HC Mohar Singh did not SC No. 51911/16 37/70 State Vs. Ram Chander conduct any investigation. He has further deposed that they left the spot finally after 12 midnight and HC Mohar Singh had already left. Ct. Jagjeet returned with them to the Police Station. He has further deposed that he did not remember, if, he accompanied the IO to the court for obtaining PC remand of accused persons, next day. He has further deposed that they went for investigation next day with accused persons in private car and he did not remember, the number and maker of said private car. He has further deposed that they left for investigation in the night and he did not remember the exact time. He has further deposed that writing work was done by SI Kuldeep in the jhuggi itself and no SIM card was recovered from the mobile phone, which was allegedly recovered from jhuggi. He has further deposed that he did not know if IO/SI Kuldeep conducted further investigation in respect of the recovered bag and mobile phone. He has further deposed that all the seizure memos were prepared by SI Kuldeep. He can identify the handwriting of SI Kuldeep. He has correctly identified the handwriting of SI Kuldeep on seizure memos Ex. PW2/D and Ex. PW2/E. He has denied that he did not join investigation of the present case or that no such occurrence had taken place or that false statement of SI Ram Manohar was recorded in the Police Station to implicate the accused persons in the present case. He has denied that at the instance of secret informer, accused Sanibulla was lifted from railway station by SI Ram Manohar or that accused were falsely implicated in the present case. He has denied that no tablets were recovered from accused Sanibulla or that no recovery was effected at his instance. He has denied that no search of accused was conducted or that all the case properties are planted on them or that he has deposed at the instance of SI Ram Manohar Mishra or that false case has been planted on accused persons at the instance of SI Ram Manohar Mishra and Bishram. He has denied that no recovery of mobile phone and bag were effected from the jhuggi of Rahimuddin and Rafiq at the instance of accused persons. He has denied that no disclosure statements were made by accused persons or that SC No. 51911/16 38/70 State Vs. Ram Chander signatures of accused were forcibly obtained on blank papers and later on those papers were converted into incriminating documents against the accused or that he has deposed falsely. He has further deposed that TSR was signaled to stop at Police Picket and it was clearly visible from the police picket that the occupants of TSR dropped the victim on the road. He has further deposed that nearby residents from the jhuggi of accused were asked to join the proceedings but he could not tell their names. He has further deposed that no notice was given to them or that he did not join investigation with SI Kuldeep on 04.03.2014 or that they did not go to the jhuggi of accused with accused persons or that accused did not make any disclosure statements. He has denied that recovery was not effected at the instance of accused persons from that jhuggi. He has denied that accused Rafiq was lifted from his house or that accused Ram Chander was picked up from railway station and or that accused Ram Chander and victim both were present at the railway station or that they were brought to Police Station from there. He has denied that that he has deposed falsely at the instance of SI Ram Manohar Mishra or that he has deposed falsely.
44. This witness also stated that the victim was speaking at the spot that "MUJHE NASHA KARA DIYA, MERA KUCHH SAMAN CHURA LIYA, MUJHE KUCHH KHILA DIYA". But if the victim was speaking so, then, why the statement of the victim was not recorded promptly, it is not explained. So, in the absence of any explanation, the story of the prosecution becomes doubtful. This witness has deposed that this occurrence has taken place at 6:30 PM. But, the FIR has been registered on 02.03.2014 at 10:15 PM, that too on the statement of SI Ram Manohar Mishar. Since, the victim was conscious ,as he was allegedly speaking, and he was conscious even at the time of his arrival in the BJRM Hospital. But, why the statement of victim was recorded on 03.03.2014, it is not explained and in the absence of any explanation, the delay in recording the statement of the victim and also in SC No. 51911/16 39/70 State Vs. Ram Chander lodging of FIR casts serious doubt on the case of the prosecution and in the absence of any public witness, the statement of this witness appears to be doubtful. As SI Ram Manohar Mishra has relied upon the information allegedly given by secret informer and lodged the FIR. IO also did not bother to record the statement of the victim promptly, as on the MLC of the victim Ex PW10/A, it is stated that the victim was conscious. It is not stated that he was not fit for making statement.
45. Whereas, HC Mohar Singh has been examined as PW 7, who has deposed that on 02.03.2014 he was posted at PP Shanti Nagar, PS Keshav Puram and at 6.45 PM he received information vide DD No.28/PP Ex. PW 7/A Shanti Nagar regarding present incident. He has further deposed that information was received from SI Ram Manohar Mishra and he alongwith Ct. Jagjeet reached at Road No.37, near Kanhaiya Nagar Metro Station, near the Police Picket. He has further deposed that he recorded statement of SI Ram Manohar Mishra. Statement of SI Ram Manohar Mishra is Ex.PW7/B and one TSR No. DL1RP-1104, two bags were also produced by SI Ram Manohar Mishra. He has further deposed that he made inquiries from accused and took their search and from the possession of accused Ram Chander, 10 tablets 'AVITAN' 2 mg were recovered and from the possession of accused Sanibulla, 5 tablets 'AVITAN' 2 mg were recovered. He has further deposed that Remaining 5 tablets, accused Sanibulla told that same were administered to the victim of the case. He has further deposed that he also learnt that victim of the case was sent to BJRM Hospital with Ct. Lokender in PCR Van and 10 tablets which were recovered from accused Ram Chander were kept in polythene. He has further deposed that then cloth pullanda was prepared and pullanda sealed with the seal of MS and was taken into possession vide memo Ex. PW6/C. He has further deposed that the 5 tablets which were recovered from accused Sanibulla were also kept in polythene and then cloth pullanda was prepared and then sealed with the seal of MS and was taken SC No. 51911/16 40/70 State Vs. Ram Chander into possession vide memo Ex. PW6/D. He has further deposed that regarding two bags which were recovered from accused persons, inquiries were made and with respect to one bag, accused persons told that same belonged to them and regarding other bag, it was told that it belonged to the victim of the case and bags were taken into possession. He has further deposed that seizure memo of the bag of accused is Ex. PW6/A and Seizure memo of the bag of victim is Ex. PW6/B . Seal after use was handed over to Ct. Surender after its use. He has further deposed that TSR No. DL1RP-1104 was also seized vide memo Ex. PW6/F and he kept all the seized pullandas, articles and accused in the custody of SI Ram Manohar Mishra and left for BJRM Hospital. He has further deposed that he collected MLC of victim Bisram from Ct. Lokender and also seized one sealed pullanda alongwith sample seal from Ct. Lokender vide seizure memo Ex. PW7/C and Victim Bisram was not in a condition to give statement. He has further deposed that he returned to spot with the case property pullanda and he prepared rukka Ex. PW7/D and SI Kuldeep also reached the spot. Further investigation was assigned to SI Kuldeep and he handed over all the accused, case property pullandas, case property and all the documents to SI Kuldeep. He has further deposed that during interrogation of accused Ram Chander by SI Kuldeep, from the possession of accused Ram Chander, Rs.1500/- cash were also recovered which were robbed from the victim of this case and his statement was recorded in the Police Station. Then the attention of the witness has drawn towards four photographs of TSR No. DL1RP-1104, he has correctly identified the same as Ex. PW3/B1 to B4 and TSR is Ex. P5.This witness has also correctly identified the bag containing the clothes of victim Ex. P.3, which was allegedly recovered from the TSR and accused persons. He has also correctly identified the bag containing bed sheets and clothes Ex. P8, which was recovered from the TSR and which belongs accused persons. He has also correctly identified the one unpacked strip containing 5 half pieces of tablets and on the strip Ex. P.6, whereon the words 'RAZEPA, 2 mg, WYETH' SC No. 51911/16 41/70 State Vs. Ram Chander are legible, which was allegedly recovered from accused Sanibulla @ Rahimuddin. He also correctly identified one unpacked strip Ex. P.7 which was containing 10 half pieces of tablets and on the strip, whereon 'ATIVAN 2 mg, WYETH' were written, which was allegedly recovered from accused Ram Chander. He has also correctly identified the currency notes of Rs.1500/- (500x3) Ex. P.4 which were allegedly recovered from accused Ram Chander.
46. This witness was cross examined by ld. Counsel for the accused. During his cross examination he has deposed that when, he received the information, he was present in PP Shanti Nagar with Ct. Jagjeet and they went on foot, at the spot. He has further deposed that they reached at spot at about 7 PM. He had recorded statement of SI Ram Manohar Mishra, while sitting on the PATRI. It took about 25-30 minutes in recording complete statement of SI Ram Manohar. When, he reached at the spot, SI Ram Manohar, Ct. Surender and two more constables were present with accused at there. No public persons was present at there. Public persons were passing from there. He requested passersby to join the proceedings, but, no one agreed to join. He did not serve any notice on them. He left the spot for hospital at 8.30 PM and he returned to the spot at about 9.30 PM. He prepared all the seizure memos at the spot and they are in his handwriting. It took about 30 minutes in preparing rukka. He has further deposed that Ct. Jagjeet left the spot at about 10 PM with rukka, on motorcycle and Police Station Keshav Puram is at a distance of about 1 km from the spot. SI Kuldeep reached at the spot with Ct. Jagjeet at about 10.30-10.40 PM. The strips which were recovered from accused Ram Chander and Sanibulla were containing intact tablets. Disclosure statements of accused persons were not recorded in his presence. He returned from spot at about 11.15 PM and he did not record statement of any other witness except complainant SI Ram Manohar. He did not know at what time accused persons were brought to Police Station. He has denied that he did not join investigation of the present case or that no such incident SC No. 51911/16 42/70 State Vs. Ram Chander happened or that false statement of SI Ram Manohar was recorded in the Police Station to implicate the accused persons in the present case. He has denied that at the instance of secret informer, accused Sanibulla was lifted from railway station by SI Ram Manohar or that accused was falsely implicated in the present case. He has denied that no tablets were recovered from accused Sanibulla or that no recovery was effected at his instance. He has also deposed that he took cursory search of accused persons and recovered tablet strips and he did not recover cash from accused Ram Chander. He has denied that no search of accused was conducted or that all the case properties are planted on them. His statement U/s.161 Cr.P.C. was read over to him . He has denied that he has deposed at the instance of SI Ram Manohar Mishra or that false case has been planted against accused persons at the instance of SI Ram Manohar Mishra and Bishram. He has also deposed that he has received telephonic information regarding receiving of DD No.28/PP and he did not make any separate departure entry at the time of leaving police post. He did not make inquiries from passersby, at the spot. He has denied that he met the victim for the first time, in the Police Station. He has also deposed that SI Kuldeep did not record statement of any witness at spot, in his presence and at the time of search of the accused, traffic was flowing. He has also deposed that no CCTV cameras were installed near the spot. He has further deposed that police picket was at a distance of 300-400 meters from the spot. He has denied that accused Rafiq was lifted from his house or that accused Ram Chander was picked up from railway station. He has further denied that accused Ram Chander and victim both were present at the railway station and from there they were brought to Police Station. He has denied he has deposed falsely at the behest of SI Ram Manohar Mishra.
47. This witness was first investigating officer to whom the DD no 28 PP Ex. PW7/A was marked. This witness in his examination in chief has disclosed the names of the tablets as "AVITAN" which was allegedly recovered from Ram SC No. 51911/16 43/70 State Vs. Ram Chander Chander and accused Sunniballa. Whereas, the seizure memos Ex. PW6/C and PW6/B reveals that the tablets "Ativan" are alleged to have been recovered from them. So, there are material contradictions in the testimony of this witness and seizure memos of the tablets. This witness has deposed that he requested to the public persons to join the investigation, but, no one agreed. But, as he did not serve notice to any of the such person, who refused to join the investigation, so, the testimony of this witness appears to be doubtful. This witness has deposed that victim was not in condition to give the statement. Whereas the testimony of victim reveals that the victim was conscious when he was taken to the BJRM Hospital and it is nowhere stated in the MLC of the victim that on 02.03.2014 the victim was unfit for making of statement. Since, the victim was conscious, so, this witness could record the statement of the victim promptly, but, he did not recorded the statement of the victim promptly, nor any cogent reason has been given. The testimony of this witness appears to be doubtful. So, it does not inspire any confidence.
48. Whereas, SI Kuldeep has been examined as PW8, who has deposed that on 02.03.2014 he was posted at Police post Shanti Nagar, PS Keshav Puram, Delhi and investigation of the present case after the registration of FIR was assigned to him. He got the copy of the FIR and rukka and reached at the spot. He has further deposed that at the spot HC Mohar Singh, SI Ram Manohar, Ct. Surender, Ct. Mahender were present with accused Ram Chander, Rafiq, Rahimuddin @ Sunniballa and Ct. Jagjit was with him. He took the custody of the accused persons and interrogated them and HC Mohar singh also handed over the parcel of case property and all documents including seizure memos and all the accused persons were arrested. He has further deposed that arrest memo of accused Ram chander is Ex. PW-6/G and Personal search of accused Ram Chander was also conducted vide memo Ex. PW-6/H . He has further deposed that disclosure statement Ex. PW6/I was made by accused Ram chander and proved memo of arrest of SC No. 51911/16 44/70 State Vs. Ram Chander accused Rahimuddin @ Sunniballa is Ex. PW-6/J, his personal search memo vide Ex. PW-6/K and disclosure statement Ex. PW 6/L made by accused Rahimuddin @ Sunniballa. He has further deposed that memo of arrest of accused Rafiq Mohammad is Ex. PW-6/M and personal search of accused Rafiq Mohammad was also conducted vide Ex. PW-6/N. He has further deposed that disclosure statement Ex. PW-6/Q was made by accused Rafiq Mohammad. He has further deposed that Rs. 1500/- cash (500X3) was recovered from accused Ram Chander and same was seized vide memo Ex. PW-6/E. He has further deposed that accused were sent for their medical examination and he had recorded statements of witnesses. Accused persons were produced before the court and their one day police custody remand was obtained. He has further deposed that supplementary disclosure statement of accused Ram Chander is Ex. PW-2/A and supplementary disclosure statement of accused Rafiq Mohammad is Ex. PW-2/B and supplementary disclosure statements of accused Rahimuddin is Ex. PW-2/C . In pursuance to supplementary disclosure statements accused Rahimuddin and Rafiq Mohammade they led them and pointed out a Jhuggi at Soniya Camp and from the Jhuggi got recovered one pitthu bag on which 'HP' was written. Pitthu bag was seized vide memo Ex. PW-2/D. Accused Rahimuddin from the second floor jhuggi of Soniya Vihar also got recovered one mobile phone of Dual Sim without any sim card and memory card. Pullanda of mobile phone was prepared and seal with the seal of 'KS' and was taken into possession vide seizure memo Ex. PW-2/E. They return to police station, case property was deposited in the malkhana and accused persons were sent in judicial custody. Exhibits of the present case were deposited at FSL during course of the investigation. He has correctly identified currency notes of Rs. 1500/- Ex, P.4 in a polythene, recovered from the possession of accused Ram Chander. He has also identified one mobile phone of Micromax company. IMEI No. match with the seizure memo Ex P.1, which was allegedly recovered from accused Rahmuddin. He has also identified one black colour pitthu bag, in SC No. 51911/16 45/70 State Vs. Ram Chander unsealed condition, Ex. P.2, which was allegedly recovered from accused Rahmuddin.
49. This witness was also cross examined by ld. Counsels for the accused. During his cross-examination he has deposed that he did not remember time exactly, when he reached at the spot. HC Mohar Singh was present at that time and HC Mohar Singh did not prepare any document, in his presence. At that time at the spot, he did not record statement of anybody u/s. 161 of Cr. P. C. he had recorded disclosure statements of the accused person, at the spot itself. He recorded disclosure of Ram Chander and Sanibulla in his handwriting, but, disclosure of third accused was noted down by SI Ram Manohar. Accused persons were arrested at the spot itself. He had personally searched the three accused at the spot. He did not remember, whether HC Mohar was present at the spot, when personal search of the accused was conducted. He did not remember the time when they finally left the picket and he also did not remember, as to where, he went from the picket. From the spot, accused persons were taken for their medical examination. Accused accompanied him to the police station and he also went for medical examination of the accused and he recorded statements of police constables in the police station, but, he did not remember their names. On the next day, they went to Soniya Vihar at night and they went by vehicle. Ct. Surender and ct. Dharamraj accompanied him. It was his car bearing no. HR 21H 2495. No independent witness was joined at Soniya Vihar. In the Jhuggi, no documentary proof could be recovered which could show that the jhuggi was occupied by Sanibulla. Documents were prepared at jhuggi also while sitting inside the jhuggi. He attempted to join independent witnesses but no one agreed. He has denied that none of the three accused made any disclosure statements or that their signatures were taken on blank papers under threat of beatings or that those blank papers were converted into disclosure statements and other documents of this case. He has denied that the accused SC No. 51911/16 46/70 State Vs. Ram Chander did not lead to any place of recovery or that no recovery was got effected by the accused persons or all the recoveries are planted upon the accused persons or since recoveries are planted, therefore, there are no independent witnesses. He has denied that all the three accused are falsely implicated in this case or that all the documents were prepared while sitting in the police station.
50. This prosecution witness no. 8 was the 2 nd investigating officer in the present case. Investigation of this case was assigned to this IO soon after the registration of the FIR. This witness has no where stated that he had recorded the statement of the victim Bishram. But, perusal of the statement of Bishram Ex. PW13/DA reveals that it was recorded by this IO, but on 03.03.2014. Thus, it is clear that soon after assigning of investigation to this witness, he did not bother to record the statement of this victim promptly. So, the approach of this IO also remained lackadaisical. Since,this witness also not make join any witness of the public, so, his testimony appears to be doubtful.
51. Whereas, HC Manoj Kumar has been examined as PW 9, who has deposed that he has brought original register no. 19 and RC register containing relevant entries.On 02.03.2014 he was posted at PS Keshav Puram and working as MHC (M). On that day SI Mohar Singh deposited in the malkhana, three pullandas out of which, one was having seal of 'MS. BJRM' and two were having seal of 'MS', along with sample seal of 'MS. BJRM' and two bags with copies of seizures memos. HC Mohar Singh also deposited one TSR no. DL1RP1104 along with copy of seizure memos. After deposit of the same he made relevant entry in register no. 19 at serial no. 2395. Copy of entry no. 2395 is Ex. PW-9/A. On the same day SI Kuldeep also deposited one pullanda with the seal of 'KS' along with copy of seizure memo. After deposit of the same in the malkhana, he made relevant entry in register no. 19 at serial no. 2395. Copy of entry no. 2395 is Ex. PW-9/B. SC No. 51911/16 47/70 State Vs. Ram Chander He has further deposed that on 04.03.2014 SI Kuldeep again deposited one sealed pullanda with the seal of 'KS' , one bag along with copy of seizure memos. After deposit of the same in the malkhana, he made relevant entry in register no. 19 at serial no. 2399. Copy of entry no. 2399 is Ex.PW-9/C (OSR). He has further deposed that on 09.04.2014 three sealed pullandas out of which two were having seal of 'MS' and one having seal of 'MSBJRM' along with sample seal of 'MSBJRM', were deposited in the FSL Rohini vide RC no.27/21/14 through constable Mukesh and after deposit Ct. Mukesh handed over to him copy of RC and receipt acknowledgment of the deposit. He has produced the copy of RC no. 27/21/14 Ex. PW-9/D and copy of receipt acknowledgment Ex. PW-9/D1. He has further deposed that on 27.06.2014 remnant of the exhibits along with FSL result was received in the malkhana and result was given to ASI Ashok. Entry was made in register no. 19 against the main entry 2395 at point Z to Z and all the entries were in his handwriting so long as case property remained in his custody, it was not tempered with. This witness was also cross examined by the ld. Counsel for the accused. During his cross-examination he has denied that case properties were tempered with, while remained in his custody.
52. Whereas, Ct. Mukesh has been examined as PW 12, who has deposed that on 09.04.2014 he was posted, as Constable at PS Keshav Puram and on that day, on the instructions of the IO/SI Kuldeep, he obtained three sealed exhibits from MHC(M) alongwith one sample seal with FSL Form and took the same to FSL Rohini vide RC No. 27/21/14. He has further deposed that two parcels were sealed with the seal of MS and one was sealed with the seal of BJRM. He has further deposed that he deposited the parcels in FSL Rohini and obtained the acknowledgment receipt and he returned to PS and handed over the acknowledgment receipt to MHC(M). He has further deposed that so long as the case property remained with me, nobody tampered with it.
SC No. 51911/16 48/7053. He was not cross examined by the ld. Counsels for all the accused Rahimuddin @ Sonibulla. So, the opportunity of the accused to cross examine this witness was done nil.
54. Since the occurrence had taken place on 02.03.2014. But, the exhibits were sent to the FSL on 09.04.2014. The delay in depositing the exhibits is not explained which also creates serious doubts about the case of the prosecution.
55. Whereas, Mr. Santosh Tripathy, Senior Scientific Officer (Chemistry) has been examined as PW 14, who has deposed that on 9.04.2014, three sealed parcels out of which two sealed with the seal of MS and one was sealed with the seal of MS BJRMS J Puri Delhi were received in their office from PS Keshav Puram in connection with the present case. He has further deposed that the seals of the parcels were found intact and tallied as per the forwarding authority's specimen seal and the exhibits were marked to him for examination. He has further deposed that all the three parcels were opened and the parcel no. 1 was containing one medicine strip make Ativan containing five light orange colour tablets. He has further deposed that the parcel no.2 was containing one medicine strip make Ativan containing 10 light orange colour tablets and the parcel no.3 was dried brown colour deposits sticking inside the plastic container. He has further deposed that on chemical and TLC examination, exhibits 1, 2 & 3 were found to contain Lorazepam (Benzodiazepine drug) and after examination, the remnants of exhibits have been sealed with the seal of STY FSL DELHI. He has further deposed that he prepared detailed report dtd. 28.05.2014 Ex. PW14/A. He has correctly identified one unpacked strip containing five half pieces of tablets of Ativan 2 mg Wyeth, Ex. P.6 and another one unpacked strip containing 10 half pieces of tablets of Ativan 2 mg Wyeth Ex. P. 7 which were examined by him.
SC No. 51911/16 49/7056. This witness was cross examined by ld. Counsel for the accused. During his cross examination who has deposed that Lorazepam would not be detected in the blood sample of a person, even if that person had consumed alcohol because alcohol does not contain lorazepam. He has further deposed that Lorazepam would not be detected even if the person had consumed smack and Smack is a different compound and lorazepam is a different compound. He was not cross examined by the ld. Counsel for the accused Ram Chander and Rfiq Mohammad. So, that opportunity of that accused to cross examine this witness was done nil.
57. This witness has nowhere stated in his report Ex. PW14/A that he had examined Gastric lavage of the victim nor he had stated so in the court, so, in the absence of any categorical opinion of Gastric Lavage of victim, it cannot be held that this victim was administered the stupefying substance by the accused. Since, the smell of alcohol in the breath of victim was observed by the doctor, who had medically examined the victim vide his MLC Ex. PW10/A and victim himself did not tell to the police that he had consumed liquor nor he told to the doctor that he had consumed liquor and it is not the case of the prosecution that liquor was administered to the victim by the accused. So, it is probable that victim would have consumed liquor of his own in the excessive quantity and became inebriated condition and in view of fear of police, he did not tell to the police and doctor and after passing of a considerable time he would have concocted the story at his own instance or at the instance of the police to support the case of the prosecution.
58. Whereas, Ct. Lokender has been examined as PW 15, who has deposed that on 2.3.2014, he was posted in police station Keshav Puram and was on duty on that day. He has further deposed that on that day, at about 6.45 PM while patrolling, he reached police picket at road no. 37 where Ct. Mahender and Ct. Surender were already present at the picket at that time and they SC No. 51911/16 50/70 State Vs. Ram Chander three started checking vehicles in routine and after 4-5 minutes, SI Ram Manohar chowki Incharge of police chowki Shanti Nagar also came at the picket. He has further deposed that SI Ram Manohar told them that he had received some secret information that some gang which administers stupefying substance and then loots public is about to come. He has further deposed that thereafter, they started checking the vehicles and at about 7 PM, one TSR no. DL 1 RP 1104 was seen coming and that TSR stopped 50 meters prior to their picket and they saw that two persons were putting one unconscious person outside the TSR from the said TSR, on the footpath. He has further deposed that thereafter, the TSR started approaching the picket and on suspicion, they signaled the TSR to stop at the picket and in the TSR, there were total three persons present. He has further deposed that one was driving and the other two were sitting on the passenger seat and these three accused were asked to come out of the TSR and then from them, enquiry was made by SI and that on enquiry, the three accused disclosed that they had drugged, who was put on the pavement before reaching at the picket and then, looted him and thereafter, these three accused were taken upto that person who was drugged, and who was made to sit on the pavement before the TSR reached at the picket. He has further deposed that he does not remember the name of the person, who was drugged and however, that person was not conscious and he was unable to tell anything and that person was completely disoriented and was saying that he has been looted. He has further deposed that SI telephoned/ informed police chowki, upon which, HC Mohar Singh came to the picket and meanwhile, PCR was also called and PCR reached at the spot. He has further deposed that he along with the PCR officials took the drugged person to BJRM hospital, where, MLC of that person was prepared and he was admitted for his treatment. He has further deposed that in the hospital, doctor gave him one sealed bottle along with one sample seal of hospital which he handed over to HC Mohar Singh in the hospital as Mohar Singh also came to the hospital later on. He has further deposed that SC No. 51911/16 51/70 State Vs. Ram Chander HC Mohar Singh took that parcel into possession vide seizure memo Ex.PW7/C and later on, his statement was recorded in the police station.
59. This witness was cross examined by ld. Counsel for the accused . During his cross examination he has deposed that at the time of departure for patrolling, DD entry was made in the morning at the time of going from the police station for patrolling and traffic was moving on the road, when, they saw the drugged person. He has further deposed that they did not take help of public in shifting the drugged person in the PCR Van. He has further deposed that he did not tell any public person about the incident, which was allegedly occurred with the complainant of this case. No CCTV camera was installed at the place, where the picket was made. He has admitted it to be correct that accused were not arrested in his presence and his statement was readover to him by the IO. He has denied that no such incident took place near the picket, on the date and time, as deposed by him or that he has deposed falsely at the instance of IO of this case. He has further deposed that SI Ram Manohar came to the picket on foot and all the constables present at the picket heard, when, SI told them about the secret information. He has further deposed that TSR arrived 10-15 minutes after arrival of SI. When, he left for hospital, HC Mohar Singh had arrived. He has further deposed that he returned to the police chowki from the hospital and not in police station and in the hospital, in his presence, the complainant did not regain consciousness and voluntarily stated that he had started speaking his name with difficulty. He has denied that SI had brought the three accused from New Delhi Railway Station with him or that no such TSR came to the picket or that the three accused were not apprehended at the police picket. He has further deposed that they had checked about 7-8 TSRs prior to stopping of the present TSR. He has further deposed that number of those TSRs which were checked earlier were not recorded. He has denied that no such incident had occurred at the picket or that he has deposed falsely. Thus, testimony of this witness is inconsistent to SC No. 51911/16 52/70 State Vs. Ram Chander the testimony of PW11.
60. Whereas, Dr. Mohit Tiwari has been examined as PW 10, who has deposed that he has seen MLC No. 74296, emergency no. 36791 of injured Vishram S/o Ram Karan, age 30 years dated 02.03.2014 and patient was brought to casualty by the PCR and was examined at 7:50 pm. He has further deposed that MLC was prepared by JR. Dr. Nitin Mukesh and as per MLC, patient brought with alleged history found on road side. Patient was conscious, but, drowsy and smell of alcohol was present in the breath. On examination, as per MLC, no external injury was seen. Gastric Lavage of the patient was kept and sealed as sample. Patient was referred to SR Medicine and Surgery for further management. He had identified his signature on the MLC Ex. PW10/A and deposed that MLC is in the handwriting of Dr. Nitin Mukesh. He has identified the handwriting and signature of Dr. Nitin on the MLC Ex. PW10/A. As, he has seen Dr. Nitin writing and signing when he has worked under him in the casualty of BJRM Hospital and he has also identified handwriting and signature of Dr. Ravinder, SR Medicine of BJRM Hospital on the MLC Ex. PW10/A. This witness was also cross examined by ld. Counsel for the accused. During his cross examination who has deposed that he had not examined the patient and he was examined by Dr. Nitin. He has deposed on the basis of MLC. Dr. Nitin and Dr. Ravinder did not put their signatures on the MLC in his presence. He has no personal knowledge about the condition of the victim.
61. Thus from the MLC Ex. PW10/A, it is clear that the victim (Bishram) was conscious on dated 02.03.2014 at 7:50 PM, when he was medically examined in the BJRM Hospital. Since, in the case in hand, this victim was conscious even at 7:50 PM and FIR has been lodged on 02.03.2014 at 10:15 PM, then, why the statement of victim was not recorded promptly soon after the occurrence, it is snot explained As the statement of victim Ex. PW13/DA was SC No. 51911/16 53/70 State Vs. Ram Chander recorded by the IO on 03.03.2014. It is worthwhile to mention that the MLC Ex. PW10/A of the victim reveals the smell of alcohol in the breath of the victim (Bishram) and the victim was conscious, when, allegedly found to the police at road side and he was also conscious, when, arrived in the BJRM Hospital. But, neither victim Bishram gave any statement to the police at the spot nor he disclosed about any such alleged occurrence to the Doctor who had medically examined to the victim. Had any such occurrence took place with the victim, he could tell to the police immediately. But, as he did not tell to the police promptly, so, it is probable that he would have consumed liquor in excessive quantity and when found to the police in the inebriated condition, he would have afraided after seeing the police personnels in uniform and he did not inform to the police that he had consumed liquor and similarly he did not tell to the doctor about the consumption of liquor by him. PW10 has also deposed Gastric Lavage of patient was kept even the copy of Road Certificate Ex. PW9/D reveals that parcels of bottle containing Gastric Lavage was sent to the FSL on dated 09.04.2014, but report of FSL Ex. PW14/A does not speak anything about examination of sample of Gastric Lavage. So, it becomes doubtful whether Gastric Lavage of this victim was examined.
62. Since, the charges against the accused were framed u/s 120B/328/394 of IPC. So, it was incumbent on the part of the prosecution to prove beyond reasonable doubt that the accused have committed such offences.
63. It is the case of the prosecution that on dated 02.03.2014 at 6:25 PM, secret information was received that a gang of persons who were indulged in administering the poisonous substance, would come in an auto bearing registration no. DL 1RD 1104 from the side of Inder Lok and would go towards Metro Station Kanhaya Nagar along with the victim and accordingly at about 7:00 PM, the said TSR had come and the accused along with victim Bishram had also come, but, the accused put the said victim Bishram down from the SC No. 51911/16 54/70 State Vs. Ram Chander said auto in an inebriated condition at a little distance prior to Police Picket, where, the complainant SI Ram Manohar Mishra was also present and when soon after the leaving of said victim Bishraman on the road side, all the three accused were coming towards the picket to go away from there and they were intercepted and on inquiry, they failed to give any satisfactory reply and they were taken near the victim Bishraman, where, he was allegedly murmuring the words that he was administered some intoxicated substance and looted.
64. It is also the case of the prosecution, the victim was semi-conscious, but, if the victim was semi-conscious, then, how could he utter any word? As, alleged by complainant SI Ram Manohar Mishra and other prosecution's witnesses. Since, the place of alleged occurrence is thoroughfare and admittedly the public persons were passing therefrom and if the statements of the prosecution witnesses are looked into, then, the IO had tried to join the public witnesses, but, none of the police personnel had disclosed the name of public persons to whom they had requested to join the investigation, who had refused to join the investigation. In the absence of any particulars of such persons, who allegedly refused to join the investigation, such statements of police witness do not inspire any confidence that the IO had made any sincere efforts for joining the public witnesses at the time of alleged recovery of ATVIN tablets from the accused and the bag of the victim from the auto are without any substance.
65. Since the case of the prosecution is that the victim Bishraman was semi- conscious at the time the police had apprehended to the accused and Bishraman, who is the victim of the crime was taken to the BJRM Hospital and if the MLC of this victim Bishraman Ex. PW10/A, is looked into, the name of this victim Bishraman is well mentioned in the MLC and it is also mentioned therein that the patient is conscious and smell of alcohol in the breath of SC No. 51911/16 55/70 State Vs. Ram Chander Bishraman was also observed by the doctor who had medically examined this victim (Bishraman) in the said hospital on dated 02.03.2014 at 7:50 PM. The MLC of this victim reveals that he was conscious, then, the victim could be the best witness to depose about the alleged commission of crime, soon after the alleged occurrence, but, the FIR has been lodged on the statement of SI Ram Manohar Mishra, who has been examined as PW-11. It is alleged by the prosecution that the accused were indulged in administering the stupefying substance to the public and also in looting to the public, but,the prosecution has failed to prove that these accused are either convicted or facing any trial in any criminal court u/s 328 of IPC or any trial for committing robbery in any court of law. So, the prosecution has miserably failed to prove that both of these accused namely Ram Chand and Rafid Mohammad were indulged in all such illegal activities and it goes to prove that the information given by secret informer to Ram Manohar Mishra was erroneous.
66. Since, the charge u/s 120B of IPC was also framed against them, so, it was incumbent on the part of the prosecution to prove that these accused had entered into any agreement to commit any illegal act and hatched conspiracy to commit the crime, but, no cogent evidence has been brought forth on the record that accused had ever entered into agreement or hatched any conspiracy to commit the crime. So, in the absence of any cogent evidence, the accused cannot be convicted u/s 120B of IPC.
67. Perusal of MLC Ex. PW10/A reveals that the doctor who had medically examined this witness Bishram had advised for gastric lavage and the PW10 has proved the MLC, but, he is not the same doctor, who had medically examined to the victim (Bishraman) and ld. APP for the State has submitted that the report of FSL reveals that on the chemical and TLC examination Benzodiazepine drug was detected in ATVIN tablet and also in the exhibit no.3, but, in the report of FSL Ex PW14/A, it is nowhere mentioned that Ex.-3 SC No. 51911/16 56/70 State Vs. Ram Chander was the gastric lavage of the victim wherein Benzodiazepine drug was detected. PW14 has also not deposed that he he had examined any Gastric Lavage of the victim and in the absence of any report regarding the Gastric Lavage, it will be unsafe to convict the accused u/s 328 of IPC.
68. No sincere efforts have been made by the IO to join the public witnesses at the time of alleged recovery of the ATVIN Tablet from the possession of both the accused persons. So, in the absence of any pubic witness, the said recovery also becomes doubtful. Even, otherwise, the testimony of the victim is also full of improvement and suspicious in nature and since the report of FSL Ex. PW14/A does not speak that it is the report regarding the gastric lavage. So, I am inclined to hold that the prosecution has failed to prove beyond reasonable doubt that the Benzodiazepine drug was detected in the Gastric lavage of victim. Since, the charge against this accused were framed u/s 328 of IPC, so, in the absence of any chemical report regarding the gastric lavage, the accused cannot be held guilty u/s 328 of IPC.
69. If the testimony of PW11 is looked into, his testimony is contradictory to the contents of his complaint Ex. PW7/B, as in his complaint he has deposed that the accused were apprehended. When, they were trying to flee away after stealing two bags of the victim. But, at the time of recording of his examination in chief he had deposed that the victim was unconscious. This PW11 has relied upon the information allegedly received from the secret informer that the accused who are indulged in the administering poisonous substance would come in the autorickshaw with a victim passenger and during his cross examination he had admitted that victim did not tell him that he was made to drink cold drink. Since, the prosecution has failed to prove on record that these accused were indulged in any such occurrence (as allegedly told by the secret informer to the PW11). So, the information received from the secret informer was erroneous. This witness (PW11) has admitted in his SC No. 51911/16 57/70 State Vs. Ram Chander examination in chief that the victim was murmuring that " Nasha Khila Diya". But this witness appears to negligent person who did not bother to enquire from the victim that how and in what manner intoxicated is made to eat this victim and who had made to eat the intoxicated substance and this witness had given the statement Ex. PW7/B and got lodge the FIR. This witness has deposed that victim was not able to tell his name. Whereas MLC Ex. PW10/A reveals the name of victim is mentioned therein. Then, who had told the name of victim to Doctor, who had prepared MLC. Since, the victim met to this witness at 6:25 PM, but, this witness (PW11) did not disclose that the smell of alcohol was there in the breath of victim. This PW11 is a senior police official and he would have felt the smell of alcohol in the breath of the victim. But, he suppressed this fact and without verifying anything from the victim he had lodged the FIR. Since, this witness had relied upon the testimony of secret informer, which is also erroneous and the prosecution has failed to prove that any other case of similar nature was ever lodged against the accused. Despite of the fact that the place of alleged apprehension of the accused is a thoroughfare. But, no public witness is made to join. The testimony of this police witness appears to be doubtful and alleged recovery also appears to be doubtful. So, the testimony of this witness does not inspire any confidence.
70. If the statement of Sh. Bishram, who is the victim of offence is looked into, it was recorded on dated 03.03.2014 and since the perusal of the MLC of this victim Bishram Ex. PW10/A is looked into, it is mentioned therein that he was found on road side and no proper history was given. Since Bishram was also conscious, when he was taken in the said hospital, at the time of his medical examination, he could narrate, about the administration of intoxicating substance to him, but he did not tell to the doctor, who had medically examined this witness soon after the alleged occurrence and since the doctor who had medically examined to this victim Bishram had observed the smell of alcohol, which manifests the conduct of the victim who chose to keep mum at SC No. 51911/16 58/70 State Vs. Ram Chander the time of his medical examination and did not raise any word about the alleged incident. If the testimony of this Bishram who has been examined as PW13 is looked into, it was recorded by IO on 03.03.2014.
71. Since, the victim Bishraman was conscious on dated 02.03.2014, as mentioned in his MLC, so, his statement could be recorded on the same day of occurrence, but, his statement is not recorded on the same day. It was recorded on 03.03.2014 and the prosecution has failed to explain any cogent reason for such delay in recording the statement of this witness .
72. As their Lordship of High Court Of Delhi in case Sonu Arora Vs. State. Crl. A. 241/1997 was pleased to observe "In his crossexamination, Lalu Prasad stated that he had put Zaheer in PCR van and blood stains had come on his shirt. He also stated that the blood stains were shown by him to the police but his clothes were not seized by the police. There is no explanation for not seizing the bloodstained clothes of Lalu Prasad despite his having shown them to the police. The failure of the Investigation Officer to seize the clothes of Lalu Prasad is an indication that, in fact, he had not witnessed the actual stabbing and had not put Zaheer in PCR van, as claimed by him. Had he done so, the Investigating Officer would definitely have seized his bloodstained shirt."
"It would also be pertinent to note here that though Lalu Prasad claims to be a friend of deceased Zaheer and also claims to have accompanied him to AIIMS in PCR van, his name does not find mention SC No. 51911/16 59/70 State Vs. Ram Chander in the MLC of the deceased against the name of relative/friend and it is name of HC Virender Singh which has been shown against the relative/friend column of the MLC. If Lalu Prasad had accompanied deceased Zaheer to the hospital, as claimed by him, his name and not the name of the police Official would have been recorded against the column of 'relative or friend' of the injured brought to the hospital. These facts and circumstances lead to a strong inference that either Lalu Prasad had not witnessed this incident at all or he had left when the quarrel intensified and that is why, he did not meet the police officer either on the spot or in the hospital and his shirt was not seized by the police."
"Also, had Lalu Prasad witnessed the stabbing of Zaheer and Nizam, there would have been no contradiction, in the statement given by him to the police on the one hand, and his deposition during trial on the other hand, with respect to the core part of his testimony i.e who had stabbed Zaheer and who had stabbed Nizam."
"According to the Investigating Officer, though Lalu Prasad had met him on the spot at about 1:30 am and he had also obtained signatures of the witness on the memos prepared on the spot, his statement under Section 161 Cr. P. C. was recorded by him only at 5:30 PM. There is absolutely no explanation from the prosecution for his abnormal delay n recording the statement of Lalu Prasad."
"Ex. PW 17/A is the site plan stated to have bee prepared by the IO in the nigh of 18/19 October, 1993 at the instance of Lalu Prasad. The site plan indicates point 'G' as the place where Lalu Prasad had SC No. 51911/16 60/70 State Vs. Ram Chander fight with accused persons and was beaten in front of Paan shop of Raj Karan by Mahmood and Anis @ Munna @ Nanhey. It has also been noted in the plan that Lalu Prasad and Raj Karan saw the incident from the rear point 'G'. These nothings on the site plan show that the Investigating Officer had already examined Lalu Prasad in respect of the incident in question. Without questioning him, the Investigating Officer could not have known the point where Lalu Prasad had fight with the accused persons and was beaten in front of the Paan Shop of Raj Karan. Similarly, without talking to him the Investigating Officer could not have known the place from where he had seen the incident taking place. No explanation, however, has been given by the prosecution for recording the statement of Lalu Prasad at 5:30 pm, i.e., after a gap of abut 16 hours from the time he met the Investigating Officer. The unexplained delay in recording the statement of Lalu Prasad need to be viewed in the light of the fact that he did not meet the police officer, SI Raj Singh, either on the spot when he reached there on receipt of information from Police Control Room or in the hospital, despite his claim that he had accompanied PCR Officials to the hospital in their van and had returned to spot with them in the same van and no official on duty in PCR van has been produced to prove that Lalu Prasad had met them on the spot, had accompanied them to AIIMS and then returned to spot with them in their van. The delay also needs to be viewed in the light of the fact that there is material contradiction in the statement given by Lalu Prasad to the police and his statement in the court as regards who stabbed whom Raj Karan."SC No. 51911/16 61/70
State Vs. Ram Chander "As held by the Supreme Court in State of UP V. Mundrika and Ors. MANU/SC/0786/2000: (2001) 9 SCC 346, the unexplained delay in recording of statement of material eyewitness throws a serious doubt as to whether he was really an eyewitness or not . If the delay in recording the statement of eyewitness remains unexplained, the inference is that either he was not an eye witness or the version of the incident given by him was a fabricated version. In Maruti Rama Naik v. State of Maharashtra MANU/SC/0684/2003:(2003) 10 SCC 670, a witness examined as PW 3 was examined by police after one day of the incident. The explanation given by the Investigating Officer with regard to the delay in recording his statement was that the witness was injured and had to be taken to Bombay and brought back to Panvel for treatment. Considering the nature of his injury and the opportunity available to the Investigating Officer to record his statement, Supreme Court rejected the explanation and disbelieved the witness."
"In the present case, no attempt at all has been made by the Investigating Officer to explain the abnormal delay of 16 hours in recording the statement of Lalu Prasad despite his being available to the police and his signatures having been taken on the memos alleged to have been prepared on the spot. The delay on the part of the Investigating Officer in recording the statement of Lalu Prasad when considered in the light of the fact that there is material contradiction in his statement to the police and his deposition in the court as to who had a stabbed whom, there was no visible injury on the person of Lalu Prasad despite the incident having started on account of an altercation SC No. 51911/16 62/70 State Vs. Ram Chander between him an accused Mahmood, the version of the incident given by him as regards the role attributed to the appellant Sonu is contradictory to the version recorded in the brief facts prepared by the Investigating Officer on 20th October, 1993. He did not meet the investigating Officer either in the hospital or at the spot, his clothes were not been seized despite his assertion that he had shown bloodstained clothes to the Investigating Officer and Raj Karan, Paanwala, has not supported his claim regarding his (Raj Karan's) being present at his sop creates, serious doubt on the truthfulness jof the deposition of this witness. There is a strong probability of Lalu Prasad having left the spot before the stabbing took place. That also explains his not having met the Investigating Officer either in the hospital or at the spot, no bloodstained clothes of this witness having been seized, contradiction being found in his statement, as to who had stabbed whom and absence of any role attributed to the appellant Sonu in the brief fats recorded by the Investigating Officer on 20th October, 1993".
73. Their Lordship of High Court of Delhi in case State of NCT of Delhi vs. Taj Mohd. @ Taju & Anr. MANU/DE/3448/2013 was pleased to observe "In our view, the circumstances of the recovery of the razor, the scooter and the bloodstains on the shirt of the accused Taj Mohd. also do not inspire confidence and the reasoning given by the Trial Court in paragraph 31 to 33 of the judgment is free from any perversity or illegality. The said paragraphs are reproduced for ready reference as SC No. 51911/16 63/70 State Vs. Ram Chander under: "Next are the circumstances of the recovery of the razor, the scooter and the bloodstained shirt of the accused Taj Mohd. The said recoveries were effected pursuant to the disclosure statement. The recording of the disclosure statement in the manner as deposed in the examination in chief by PW 14 and PW 15 and PW 21 becomes doubtful in view of the fact that there is a material contradiction with regard to recording of th disclosure statement in the respective deposition of said three witnesses. For PW 14, the disclosure statement was recorded by the IO i.e. PW21 while standing on the bonnet of the vehicle but for PW15, the disclosure statement of the accused was recorded by him at the dictation of the IO and sae was recorded while sitting at the Mangol Puri Bus Terminal whereas for PW 21, it was not in his memory as to whether the disclosure statement was recorded by him or at his dictation by some other staff member."
"The recovery of the shaving razor (ustra) is admittedly from an open place accessible to all and no public witness was joined in the investigation at the time of recovery of the said razor despite their admittedly availability by PW 14, PW15 and PW 21. For PW 15, it was recovered from kuccha ground, 20 to 25 Sq. yards away from the main road which was lying in a pit and for PW 21, there was no pit at the place from where the said having razor was recovered. NO site plan of the recovery of the shaving razor was prepared. The said razor was allegedly bloodstained but the blood detected on the same could not be linked with the blood group of the deceased which was of "B" group as SC No. 51911/16 64/70 State Vs. Ram Chander per FSL result Ex. PW 17/B."
"The recovery of the alleged bloodstained shirt of the accused Taj Mohd. which he was wearing at the time of the incident was again deposed with material contradiction by said three witnesses. For PW 14, the shirt was recovered by the IO when they started from the house of the accused and the same was seized at the time of reaching the PS. For PW 15, the said shirt of the accused was recovered from the house of the accused whereas for PW 21 the shirt of the accused was seized reaching the PS and its seizure memo was also prepared at the PS and he did not remember if other shirt was arranged for the accused or not. Further joit to the deposition with regard to said shirt having bloodstains is given by the FSL result Ex. PW 17/B which mentioned that no blood was detected on the said shirt. The recovery of the scooter is not very material because it is a thing having specific registration number and the accused has admitted the same to be in his name but it could not be linked otherwise by any other evidence on the record, as discussed above."
"It is a cardinal principle of criminal jurisprudence that every accused person is innocent unless proved guilty and this presumption of innocence gets strengthened when such an accused is acquitted by the Trial Court after passing a wellreasoned order. Finding no illegality or perversity in the impugned judgment dated 7th August 2010, the present petition deserves to be rejected being devoid of any merit. Therefore, the same stands dismissed. It is ordered accordingly."SC No. 51911/16 65/70
74. In the light of the abovesaid judgments, I inclined to hold that in view of the delay in recording the statement of this prosecution witness PW 13, the case of the prosecution becomes doubtful as the statement of this PW 13 is contradictory and inconsistent to the statement of PW11. Since, PW13, during his cross examination, has admitted that the accused were shown to him by the police and police told him that these accused were involved in the commission of the offences. So, it is probable that the victim Bishraman would have deposed against the accused at the instance of the police and since the conduct of this witness is also unnatural as observed by this court herein above and in view delay in recording the statement by the IO the possibility of introduction of an afterthought and colourful version cannot be ruled out.
75. Since, the disclosure statements of the accused Rafid Mohammad ( Rafiq Mohammad) and Ram Chander were recorded during the custody of the police and nothing incriminating has been recovered, so, the disclosure statements of these accused are inadmissible. Since, there are material contradictions in the statement of PW11, PW13 and the contents of MLC Ex. PW10/A as PW11 and PW13 have deposed that the victim was semi conscious whereas MLC Ex. PW10/A reveals that the victim was conscious and since there is no public witness to the alleged recovery of bag of the victim from the allegedly auto and alleged recovery of tablets from the accused, so, in the absence of any public witness, the possibility of planting of bag and SC No. 51911/16 66/70 State Vs. Ram Chander tablets on the accused cannot be ruled out.
76. Since there are many lacunae and infirmities in the case of the prosecution, from which the possibilities of false implication cannot be ruled out.
77. As their lordship of Supreme Court in case State of Rajasthan V. Raja Ram, V (2003) SLT 45III (2003) CCR 198 (SC)=(2003) 8 SCC 180 was pleased to hold that:
"There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case, where admissible evidence is ignored, a duty is cast upon the appellate Court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not (see Bhagwan Singh v. State of M.P., (2002) 4 SCC 85). The principle to be SC No. 51911/16 67/70 State Vs. Ram Chander followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Badade v. State of Maharashtra, (1973) 2 SCC 793; Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 and Jaswant Singh v. State of Haryana, (2000) 4 SCC 484."
78. Since, in the case of State of West Bengal v. Orilal Jaiswal and another (1994) 1 Supreme Court Cases 73, "it was held that Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law. In the case of Mohan Singh and anr. v. State of M.P. (1999) 1 Supreme Court Reports 276, it was held that the courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is onerous duty of the court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt SC No. 51911/16 68/70 State Vs. Ram Chander has to be credited to the accused."
79. Cumulative effect of the above discussion, is that since the testimonies of the PW11 SI Ram Chandra Mishra and PW13 Bishraman are found to be inconsistent, contradictory and suspicious, so they do not inspire any confidence and benefits of doubt are given to the accused.
80. In view of the above discussion, I am of the considered opinion that it will be unsafe to convict to the accused, as there are so many infirmities, holes and lacunae in the version of the prosecution as discussed hereinabove. Since doubts are also there in the version of witnesses of the prosecution and benefits of doubts are given to the accused. Therefore,I am inclined to hold that the prosecution has failed to prove it's case beyond reasonable doubt against the accused Ram Chander and Rafid Mohamman (Rafiq Mohammad). Accordingly, these accused are acquitted of the charges framed against them. They are directed to to furnish bail bond in the sum of Rs.10,000/ with one surety of like amount each for a period of six months to ensure their attendance and appearance before the Hon'ble Appellate Court, as per provision of Section 437A of Cr.PC.
SC No. 51911/16 69/7081. File be consigned to the Record Room on furnishing of the bail bonds / surety bonds under Section 437A of CrPC.
PAWAN Digitally signed
by PAWAN
KUMAR Date: 2019.01.31
KUMAR MATTO
Announced in the Open Court on MATTO 15:47:14 -0600
31st of January, 2019 (Pawan Kumar Matto)
Special Judge (NDPS),
Additional Sessions Judge, N/W
Rohini Courts, Delhi.
SC No. 51911/16 70/70