Delhi District Court
State vs . Ajay Tiwari on 8 October, 2013
State Vs. Ajay Tiwari
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL), THC: DELHI
SC No. 87 of 2012
ID No. 02401R0573862012
FIR No. : 121/12
Police Station : ODRS
Under Section : 328/392/394/411/75
IPC
State
Versus
Ajay Tiwari
S/o Rajdev Tiwari
R/o Village Goradi
PO & PS Lesi Ganju Distt.,
Palamu Jharkhand ..........Accused
Date of Institution : 01.12.2012
Date of Committal of case : 19.12.2012
Date of Judgment reserved on : 01.10.2013
Date of judgment : 05.10.2013
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. Dinesh Sharma, Advocate, Amicus Curiae for accused
SC No. 87/12 Page 1 of 22
State Vs. Ajay Tiwari
J U D G M E N T:
1. Briefly stated facts of prosecution case are that Inspector Gulshan Satija (PW2) got recorded his statement Ex.PW2/A to the investigating officer SI Rajendra Dabas stating that on September 5, 2012, he along with constable Anil Kumar and constable Agat Singh was on patrolling at Old Delhi Railway Station. At about 4.30 PM when they were alighting from the stairs of Foot Over Bridge (F.O.B) towards platform No. 14, one person who was climbing the stairs took turn after seeing them. On suspicion, he was apprehended after chasing about 20-25 paces. On his cursory search, one red colour old purse was recovered from his pant containing `6000/-(500X12), Voting Card in the name of Suresh s/o Ramyash along with some visiting cards; one light pink colour tablet was recovered from the pocket of his shirt and ` 6400 (100X61, 50X6) which was wrapped in lungi was recovered from his bag, which he was carrying. On inquiry, he disclosed his name as Ajay Tiwari. One mobile phone make Nokia E-63 was also recovered from the pocket of his pant. On enquiry, he disclosed that he had stolen the said items from one person after administering stupefying substance in tea and thereafter, he led the police party at plat form No.14 and pointed out the person to whom he had administered the stupefying substance. It was alleged that one person was found in semi-unconscious condition and he disclosed his name as Suresh Kumar. On being asked, he identified his mobile phone, purse and bag and also identified the accused. Thereafter, accused was brought to police station Old Delhi Railway Station and handed over to the investigating officer. Injured Suresh was sent to Aruna Asaf Ali hospital for medical examination. After medical examination, doctor handed over one bottle gastric lavage and one bottle of blood sample with the seal of CMO AAA SC No. 87/12 Page 2 of 22 State Vs. Ajay Tiwari Govt. hospital NCT of Delhi and one sample seal which were seized. Thereafter, on the statement of Insp. Gulshan Satija, an FIR was lodged for the offence punishable under Section 328/379/411 IPC. During investigation, it was revealed that accused Ajay Tiwari had already convicted in four other matters namely CC No. 1/12 under Section 3 RP (UP) Act; FIR No. 956/2000 under Section 411 IPC PS NDRS; FIR No. 283/2006 under Section 328/379 IPC PS NDRS and FIR No. 282/2010 under Section 328/379/411 IPC PS NDRS.
3. After completing investigation, challan was filed against the accused Ajay Tiwari for the offence punishable under Section 328/392/394/411/75 IPC.
4. After complying with the provisions of Section 207 Cr. P.C. case was committed to the Court of Sessions on December 12, 2012. Thereafter, case was assigned to this Court on December 19, 2012. Accordingly, case was registered as SC No. 87/12.
5. Vide order dated January 7, 2013, a charge for the offence punishable under Section 328/394 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
6. In order to bring home the guilt of accused, prosecution has examined as many as following eight witnesses:-
PW1 Sh. Suresh Kumar, victim
PW2 Inspector Gulshan Satija, complainant
PW3 SI Rajendra Dabas, investigating officer
PW4 Dr. Solomi, proved the MLC of injured
SC No. 87/12 Page 3 of 22
State Vs. Ajay Tiwari
PW5 HC Satya Kumar, duty officer, proved the FIR
PW6 Const. Surender Singh, formal witness
PW7 HC Jagdish Kumar, MHC(M)
PW8 Israr Babu, Nodal officer
7. Learned Additional Public Prosecutor tendered the FSL report in evidence and same is exhibited as Ex. PX.
8. On culmination of prosecution evidence, accused was examined under Section 313 Code of Criminal Procedure wherein he denied all the incriminating evidence led by the prosecution and submitted that he had been falsely implicated in this case. He took the plea that while he was coming from Panipat and going to Dabri from plat No. 1, one police informer met him who knew him previously and told that police had to interrogate him, accordingly, said informer took him to the police station. Thereafter, he had been falsely implicated in this case.
9. In order to prove his innocence, accused examined himself as DW1.
10. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
11. Learned counsel appearing for the accused sagaciously contended that there is no iota of evidence to prove the guilt of accused for the offence punishable under Section 328 IPC. It was submitted that even FSL report does not support the prosecution case as no poisonous substance was found in the gastric lavage and blood of the victim Suresh SC No. 87/12 Page 4 of 22 State Vs. Ajay Tiwari Kumar. It was further submitted that even PW4 Dr. Solomi also did not support the prosecution version that any poisonous substance was administered to the victim. It was submitted that since prosecution failed to establish that any poisonous substance was administered to the victim, prosecution failed to bring home the guilt of accused for the offence punishable under Section 328 IPC. In support of his contention, he relied upon the judgment Mukesh Chand and Others vs. State (Govt. of NCT of Delhi) 2010 (1) JCC 750.
12. Learned Additional Public Prosecutor fairly conceded that the FSL report did not support the prosecution case, however, he contended that PW1 categorically deposed that accused had administered some poisonous substance in his tea and due to that reason he felt giddiness and thereafter accused had robbed him. It was, thus, argued that the testimony of victim proves the prosecution case that some poisonous substance was administered to him.
13. First question emerges as to whether prosecution has adduced sufficient evidence to bring home the guilt of accused under Section 328 IPC or not?
14. To bring home the guilt of accused under Section 328 IPC, prosecution has to establish beyond doubt that:
(i) accused had administered or caused to be taken by any person
(ii) any poison; any stupefying; intoxicating; or unwholesome drug etc. SC No. 87/12 Page 5 of 22 State Vs. Ajay Tiwari
(iii) with an intention:-
(iv) to cause hurt to such person; or
(v) with intention to commit or to facilitate the commission of an offence; or
(vi) knowingly it to be likely that he will thereby cause hurt.
15. In order to establish that accused had administered any poisonous, stupefying, intoxicating or unwholesome drug to the victim (PW1), investigating officer had sent the blood sample and gastric lavage of the victim to the FSL to ascertain as to whether same were containing any such substance or not. FSL report was tendered in evidence by learned Additional Public Prosecutor and same is exhibited as Ex. PX. As per report, no metallic poison, ethyl and methyle alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers, lorazepam and pesticides could be detected either in gastric lavage or in blood sample of the victim.
16. Prosecution case is that when he was apprehended by PW2 and his team, a tablet of light pink colour was also recovered from his possession and the said tablet was containing Lorazepam. In other words, prosecution intended to establish that accused had administered Lorazepam in tea to the victim and when he became semi-unconscious, accused robbed him. But from the report Ex. PX it is clear that even no traces of Lorazepam were found in the biological samples of the victim. Thus, the FSL report does not support the prosecution version in any manner.
17. Prosecution has also strongly relied upon the testimony of PW4 Dr. Solomi, who in the MLC observed that it was a case of unknown SC No. 87/12 Page 6 of 22 State Vs. Ajay Tiwari sedative poisoning. But in her cross-examination she emphatically deposed that it was her provisional opinion on the basis of history given by the patient. She further clarified that she did not notice any abnormality in the patient except that he had drowsiness and further admitted that drowsiness is possible for numerous reasons. Thus, it can not be said that PW1 had drowsiness due to any poisonous, stupefying, intoxicating substance or unwholesome drug. PW4 further deposed that if any poisonous substance is administered to a person, his pulse rate, blood pressure would come down but swiftly added a caveat that the same is not necessary in all cases as it depends on many other factors such as whether patient had vomitted the poison or not. Admittedly, there is no evidence to establish that PW1 had any vomitting before going to the hospital. Nor investigating officer had taken any sample of any such vomit. In these circumstances, the testimony of PW4 is not helpful to the prosecution to establish that PW1 was administered any poisonous, stupefying, intoxicating substance or unwholesome drug etc.
18. Now coming to the testimony of PW1. No doubt PW1 in his deposition categorically deposed that accused had brought two cups of tea and chips and he had taken the said tea and chips. He further deposed that after about 30 minutes of taking the tea and chips he felt giddiness. In his cross-examination he deposed that he could not raise alarm when he felt giddiness as he became lazy after consuming tea. Admittedly, investigating officer failed to find out either the cup of tea or pouch of chips, accordingly, same could not be sent to FSL to find out as to whether the same were containing any poisonous, intoxicating, stupefying substance or unwholesome drug. As per the testimony of PW4 drowsiness could be due to numerous reasons. In other words, there is no cogent evidence to establish that PW1 had felt giddiness because of tea or chip which were SC No. 87/12 Page 7 of 22 State Vs. Ajay Tiwari given by the accused.
19. Now coming to the judgment Mukesh Chand & other (supra) relied upon by the learned counsel for the accused. In the said case also accused had offered some biscuits to the victim and after consuming the same, victim felt unconsciousness and thereafter accused robbed the victim as in the present case. Though in the said case stomach wash was taken and sent for chemical analysis but the report was not proved on record. Accordingly, it was held that prosecution had failed to establish that it contained any poisonous substance. The finding was based on the Apex Court judgment title Joseph Kurian Philip Jose v. State of Kerala, AIR 1995 SC 4 wherein it was held:
" In order to prove offence under Section 328 the prosecution is required to prove that the substance in question was poison, or any stupefying, intoxicating or unwholesome drug etc, that the accused administered the substance to the complainant or caused the complainant to take such substance, that he did so with intent to cause hurt or knowing it to be likely that he would thereby cause hurt, or with the intention to commit or facilitate the commission of an offence. It is, therefore, essential for the prosecution to prove that the accused was directly responsible for administering poison etc. or causing it to be taken by any person, through another. In order words, the accused may accomplish the act by himself or by means of another. In either situation direct, reliable and cogent evidence is necessary."
(emphasis supplied)
20. In the instant case also prosecution has failed to produce any cogent evidence to establish that the tea or chips given by the accused to SC No. 87/12 Page 8 of 22 State Vs. Ajay Tiwari PW1 were containing any poisonous, intoxicating, stupefying substance or unwholesome drug or that PW1 felt the giddiness due to the consumption of the said tea and chips.
21. In view of the above said discussion, I am of the opinion that prosecution has failed to bring home the guilt of accused beyond the shadow of reasonable doubt for the offence punishable under Section 328 IPC.
22. Now coming to the next contention raised by learned counsel for the accused that since prosecution has failed to establish that the tea and chips allegedly given by the accused were containing any poisonous, stupefying, intoxicating substance or unwholesome drugs, accused can not be held liable for robbery as the ingredient of 'hurt' is missing in the instant case.
23. Per contra, learned Additional Public Prosecutor vehemently refuted the said contention by arguing that PW1 categorically deposed in his testimony that he felt giddiness only when he had consumed the tea and chips given by the accused, which establishes that the 'hurt' was caused to the victim due to the act of the accused. It was contended that when victim became infirm, accused had removed his valuable belongings, thus, accused is liable for the offence of robbery. It was further contended that since accused caused hurt to the victim in the commission of robbery, accused is liable for the offence punishable under Section 394 IPC.
24. Crucial question emerges as to whether there are sufficient evidence to fulfill the ingredients of robbery as defined under Section 390 IPC or not?
SC No. 87/12 Page 9 of 2225. 'Robbery' is defined in two parts in Section 390 IPC. For the purpose of our discussion, first part is relevant and same runs as under:
When theft is robbery.- Theft is "robbery" if, in order to committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint."
(emphasis supplied)
26. Hurt is defined under Section 319 IPC and same runs as under:-
Hurt:- Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
27. In order to prove the fact that accused had committed robbery, prosecution has to establish beyond doubt that:-
(i) while committing the theft, accused had voluntarily caused or attempted to cause:-
(ii) the death of PW1; or
(iii) hurt (bodily pain, disease or infirmity) to PW1 or wrongful restraint to PW1; or
(iv) fear of instant death or of instant hurt to PW1 (bodily pain, disease or infirmity); or SC No. 87/12 Page 10 of 22 State Vs. Ajay Tiwari
(v) fear of instant wrongful restraint to PW1.
28. In order to establish the guilt of accused for the offence of robbery, prosecution has built up a case that accused had served tea and chips containing some poisonous, stupefying, intoxicating substance or unwholesome drugs to the victim and by consuming the same victim felt drowsiness and became semi-unconscious. And when victim became semi- unconscious, accused dishonestly removed his valuable belongings. Thus, prosecution intended to establish that victim had sustained bodily pain and infirmity due to the tea and chips offered by the accused as the same were containing some foul substance. As already discussed, during trial, prosecution has failed to establish that the said tea and chips were containing any foul substance. Once, prosecution failed to prove that the said tea and chips were containing any foul substance, it is difficult to cull out that PW1 had sustained any hurt due to the consumption of said tea and chips. During trial, prosecution has failed to attribute to any other act of the accused for the drowsiness, giddiness or semi-unconsciousness to PW1. In other words, prosecution has failed to establish that accused had either caused hurt or fear of instant hurt to the victim while committing theft of his belongings. It means that prosecution has failed to prove the essential ingredients of Section 390 IPC.
29. Since prosecution has failed to establish the essential ingredients of Section 390 IPC, accused can not be held guilty either for the offence punishable under Section 392 IPC or Section 394 IPC.
30. Learned counsel appearing for the accused further contended that no reliance can be placed on the testimony of PW1 as his version is SC No. 87/12 Page 11 of 22 State Vs. Ajay Tiwari not corroborated by any independent witness. It was further contended that since the alleged incident had taken place at railway platform, numerous persons were present at the spot. It was further argued that PW2 in his cross-examination admitted that CCTVs are installed at all the platforms of ODRS, but no effort was made to seize the footage of the same.
31. On the other hand, learned Additional Public Prosecutor contended that the testimony of PW1 can not be discarded mere on the ground that investigating officer failed to join any independent witness and seize the footage of CCTV.
32. PW1 in his examination-in-chief deposed that he was going to his village as his son was ill. Indisputably, victim had no enmity or acrimony with the accused. In fact accused was stranger to the victim, thus, victim had no reason to falsely implicate the accused in this case. It is seldom to believe that he would falsely implicate the accused by giving up his programme to see his ailing son mere at the instance of police. So far as the contention that testimony of PW1 is not corroborated by any independent witness is concerned, same has no substance as from the testimony of PW1 it appears that the incident had taken place sometime between 3:45 PM to 4:15 PM. Thereafter, PW2 along with his team reached there along with the accused at about 4:30 PM, then he was taken to the police station and from there he was taken to the hospital. PW1 in his cross-examination deposed that when accused was removing his belongings, public persons were at some distance. He also deposed that he could not raise alarm due to laziness/drowsiness. Further, it is also clear from his deposition that no other train was stationed at platform no. 14 at the time of incident except one empty train. Needless to say that co-motion starts on the railway platform when a train is placed at the platform. Further, SC No. 87/12 Page 12 of 22 State Vs. Ajay Tiwari it also appears from his testimony that where they were sitting, not much people were present there. In these circumstances there is every possibility that no public person had given any attention towards the accused and victim. Assuming for the sake of arguments that some public persons had witnessed the said incident but there is nothing on record, which may suggest that said persons were available at the spot either at the time of visit of PW2 or investigating officer. If no such person was present at that time, it was not possible for the investigating officer or PW2 to record their statement. At last but not least, PW1 is a victim in this case and he had no acrimony with the accused and his testimony appears to be trustworthy, thus, his testimony can not be discarded mere on the ground that investigating officer failed to get any independent witness, who may corroborate his version.
33. No doubt, PW2 in his cross-examination admitted that CCTVs are installed at all platform of ODRS. It is also admitted fact that during investigation, investigating officer failed to seize the footage of CCTVs to show that accused accompanied the victim from platform no.1 to 14 or that he had removed his valuable belongings. Admittedly, CCTV footage would render immense help to prove the culpability of the accused if there was no eyewitness. But in the instant case there is an eyewitness i.e. PW1 who vividly described the incident. Thus, the said lapse on the part of investigating officer is not sufficient to discard the testimony of PW1, which is otherwise trustworthy.
34. Learned counsel appearing for accused astutely contended that the entire prosecution case is based on the sole deposition of PW1 Suresh Kumar but no reliance can be placed on his testimony as there is delay in lodging the FIR.
SC No. 87/12 Page 13 of 2235. Per contra, learned Additional Public Prosecutor refuted the said contention by arguing sagaciously that there is no delay in lodging the FIR.
36. Now question arises as to whether there is any delay in lodging the FIR or not. In this regard, the testimony of PW1 & PW2 are relevant.
37. PW1 in his examination-in-chief deposed that when he was sitting at platform no. 1, one unknown person i.e. accused met him at about 2 PM. Thereafter, some interaction had taken place between them and thereafter, both of them went to platform no. 14 as accused told him that the train for Sultanpur would go from platform no. 14 and one train was stationed there. He further deposed that after 30 minutes of reaching platform no. 14, they had a cup of tea and chips and after about 30 minutes of tea & chips he started feeling giddiness and then the accused robbed him by removing his belongings. He further deposed that after about half an hour thereafter, three police officials came to him and thereafter he regained consciousness and identified his belongings as well as accused. As per the testimony of PW2 they had apprehended the accused at about 4.15 PM. From the testimony of PW1 it appears that he had spent some time with accused at platform no.1, thereafter he went from platform no. 1 to 14 along with accused and then spent some time with him at platform no. 14, then accused went to take tea and chips. Thereafter, they had cup of tea and chips and after about 30 minutes thereafter, he felt giddiness. In these circumstances, the testimony of PW2 that they had apprehended the accused at about approximately 4.15 PM corroborates the deposition of PW1. After apprehending the accused, PW2 firstly reached the place of occurrence along with the accused. Thereafter, efforts were made to bring the victim in his senses and then they took the victim to the SC No. 87/12 Page 14 of 22 State Vs. Ajay Tiwari police station at Old Delhi Railway station. From the police station, victim was sent to Aruna Asaf Ali hospital. As per the MLC, victim reached the hospital at about 5.50 PM. Thereafter, FIR was lodged on the statement of Insp. Gulshan Satija (PW2). From the testimony of PW1 and PW2 it becomes clear that the incident was surfaced when PW2 apprehended the accused at about 4.15 PM and thereafter he brought him to the police station. Considering the entire events, it becomes clear that there is no inordinate delay in lodging the FIR. Mere fact that FIR has been lodged after medical examination of the victim is not sufficient to hold that there was inordinate delay in lodging the FIR. To my mind, there is no inordinate delay in lodging the FIR, thus, I do not find any substance in the contention.
38. Learned counsel appearing for the accused further contended that there are substantial contradictions between the testimony of PW2 and PW3, which proves that it was a cooked up case. It was further contended that the prosecution version is not trustworthy as it is unbelievable that accused would keep the identity documents of victim with him. Learned Additional Public Prosecutor refuted the said contentions.
39. No doubt there is a contradiction between the testimony of PW2 and PW3 as PW2 deposed that SHO was not in the police station when he reached along with the accused and victim whereas PW3 deposed that SHO was present in the police station. But to my mind, said contradiction is not substantial in nature, thus, does not affect the core of prosecution case in any manner.
40. From the testimony of PW1 it is clear that accused met him first time at platform no.1 at 2:00 PM. Thereafter, they had some interaction between them and during interaction accused told PW1 that train for SC No. 87/12 Page 15 of 22 State Vs. Ajay Tiwari Sultanpur was stationed at platform no.14, consequently, they left for platform no. 14. During his cross-examination, he deposed that before taking tea, they were sitting there for about 30 minutes, thereafter accused brought two cups of tea and chips. They had tea and chips. After about 30 minutes of taking tea, he felt giddiness and then accused removed his valuable belongings. As per the deposition of PW2, accused was apprehended at about 4:15 PM. If PW1 and accused sat about 30-45 minutes at platform no. 1, then it means that the alleged incident had taken place between 3:45 PM to 4:15 PM. If it was so, it means that accused had not sufficient time to destroy the I.D. documents of the victim. In these circumstances, I do not find any substance in the contention raised by counsel.
41. Now coming the defence taken by the accused in his deposition. Accused in his deposition deposed that on September 5, 2012 one secret informer met him at the railway station and informed him that he was required for the purpose of investigation, accordingly, he took him to the police station where he was shown to one person but that person told the police that he (accused) was not the person who had stolen his articles but police official snubbed him by saying "Tuje jayada pata hai". During his cross-examination, he failed to disclose the name of said secret informer and told that he did not know him previously. He further deposed that the secret informer was accompanied with a police constable but he again failed to disclose the name of said constable. As contended by learned defence counsel that CCTVs are installed at platforms, but accused failed to summon the footage of CCTV in support of his version. Further, no suggestion was given to the victim that he was shown to him in the police station and he told the police that he had not stolen his articles. In these circumstances, defence version does not inspire any confidence, rather it SC No. 87/12 Page 16 of 22 State Vs. Ajay Tiwari appears to be the result of after thought.
42. Now question arises as to whether accused had committed any offence or not?
43. PW1 in his examination-in-chief categorically deposed that when he felt giddiness, accused had removed cash amount of ` 6400/- from his bag, which were wrapped in a lungi; accused also removed his red colour purse from his rear pocket of his pant containing ` 6000/- in cash; he also removed his Nokia phone make E-63 having connection no. 9899601932 from the pocket of his shirt. He also testified the denomination of said amount. PW2 in his testimony deposed that when he along with his team were coming down stairs from foot over bridge (FOB) towards platform no. 14, accused took U turn after seeing them, consequently, they apprehended him. On cursory search above said items were recovered from his possession. Thereafter, accused divulged before PW2 that he had stolen these articles from PW1 at platform no. 14 and led the police team there where PW1 met them. PW2 further testified that PW1 not only identified his belongings but also identified the accused. Thus, from the deposition of PW2 it is established that the stolen articles were recovered from the possession of accused. Since, the stolen articles were recovered from the possession of accused just after theft, presumption is that he had committed the said theft. Moreover, PW1 emphatically deposed that accused is the person who had removed the said items from his possession, thus, it is proved beyond doubt that accused is the person who had committed the theft of the belongings of the PW1. From the deposition of PW8, it is also established that the connection no. 9899601932 which was found in the recovered phone was issued in the name of PW1, this further proves that the said phone belonged to the victim.
SC No. 87/12 Page 17 of 2244. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has miserably failed to bring home the guilt of the accused Ajay Tiwari for the offence punishable under Section 328/394 IPC, thus, I hereby acquit him thereunder. However, prosecution has succeeded to bring home the guilt of accused Ajay Tiwari beyond the shadow of all reasonable doubts for the offence punishable under Section 379 IPC, thus, I hereby hold him guilty thereunder.
Announced in the open court on this 5th day of October, 2013 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI.
SC No. 87/12 Page 18 of 22State Vs. Ajay Tiwari IN THE COURT OF SH. PAWAN KUMAR JAIN ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL), THC: DELHI SC No. 87 of 2012 ID No. 02401R0573862012 FIR No. : 121/12 Police Station : ODRS Under Section : 328/392/394/411/75 IPC State Versus Ajay Tiwari S/o Rajdev Tiwari R/o Village Goradi PO & PS Lesi Ganju Distt., Palamu Jharkhand ..........Convict Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the State.
Sh. Dinesh Sharma, Advocate, Amicus Curiae for convict ORDER ON THE POINT OF SENTENCE (ORAL):
1. Vide separate judgment date October 5, 2013, accused Ajay SC No. 87/12 Page 19 of 22 State Vs. Ajay Tiwari Tiwari had been held guilty for the offence punishable under Section 379 IPC.
2. Learned counsel appearing for the convict requests for a lenient view on the ground that convict is a young person of 28 years and is the sole earning member of his family comprising of his old father. It is further submitted that convict is also an HIV patient. It is further submitted that though prosecution has filed a charge-sheet against him for the offence punishable under Section 328/392/394 IPC, but during trial prosecution failed to prove the guilt of accused for the above said charges and ultimately accused has been held guilty only for the offence punishable under Section 379 IPC.
3. Per contra, learned Additional Public Prosecutor requests for maximum sentence on the ground that convict is a habitual offender and he used to rob innocent passengers at railway stations. Convict had also been previously convicted in case FIR No. 956/2000 under Section 411 IPC, FIR No. 283/2006 under Section 328/379 IPC and FIR No. 282/2010 under Section 328/379/411 IPC. All the FIRs were registered at PS NDRS, which proves that convict used to rob/steal the belongings of innocent passengers at railway stations. It is submitted that considering the previous conduct of the convict, he does not deserve any leniency.
4 I have heard submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
5 No doubt, convict was charged for the offence punishable under Section 328/394 IPC, however, prosecution failed to prove the said charges SC No. 87/12 Page 20 of 22 State Vs. Ajay Tiwari and ultimately convict has been held guilty for the offence punishable under Section 379 IPC. However simultaneously, it is also proved that he had stolen the belongings of victim Suresh Kumar (PW1) when he became semi-unconscious. As per the deposition of PW1, initially convict developed interaction with him and when he became semi-unconscious, convict had stolen his belongings after leaving helpless PW1 in hapless condition. No doubt, prosecution failed to establish that convict had administered any poisonous, intoxicating stupefying substance to the victim but it cannot be denied that convict represented himself to the victim as co-passenger and he developed interaction and the feeling of co-passenger with PW1 and when PW1 became semi-unconscious, he had stolen his valuable belongings. Being the co-passenger, it was the duty of convict to provide him medical aid when he became semi-unconscious but instead of helping him, he had stolen his valuable belongings, thus, he had also betrayed the faith of PW1.
6. Further, it is undisputed fact that the incident had taken place at Old Delhi Railway station and PW1 was going to his village to see his ailing son. Such type of incidents at railway station create a feeling of insecurity among gullible and unwary passengers and also give a bad name to the city. Moreover, this is not the first case of the convict. From the charge-
sheet, it is clear that previously also convict had been held guilty in as many as 4 cases and three cases pertained to the theft of belongings of passengers at railway station. In my view, this is one of the most aggravating factors which cannot be overlooked at the time of determining the sentence. The previous conduct of the convict further shows that he failed to mend his ways during the period 2000-2012 as first time he was arrested in the year 2000 in case FIR No. 956/2000 and lastly in the present case in the year 2012.
SC No. 87/12 Page 21 of 227. Considering the aforesaid discussion, I am of the opinion that convict does not deserve any leniency, thus, I hereby sentence the convict Ajay Tiwari rigorous imprisonment for three years and a fine of ` 25,000/- in default further nine months simple imprisonment for the offence punishable under Section 379 IPC. If the fine amount is paid, a sum of ` 20,000/- be given as compensation to PW1 under Section 357 Cr.P.C. However, the amount of compensation shall not be released to him before the expiry of period of appeal or revision and if any appeal or revision is filed then after the decision of such appeal or revision. Intimation be sent to the victim (PW1) accordingly.
8. Benefit of Section 428 Cr.P.C be given to the convict.
9. Copy of judgment along with order on the point of sentence and copy of entire charge-sheet along with all depositions be given to the convict/his counsel free of cost.
10. File be consigned to record room.
Announced in the open court on this 8th day of October, 2013 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI.
SC No. 87/12 Page 22 of 22