Delhi District Court
Fir No. 76/18 State vs . Om Prakash Page No. 1 Of 19 on 19 July, 2022
IN THE COURT OF NAVEEN GUPTA,
ADDL. SESSIONS JUDGE - 05, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI
CNR No. DLSH01-003203-2018
SC No. 237/2018
FIR No. 76/18
PS Harsh Vihar
Under Sections 328/379/323/34 IPC and Section 411 IPC
In the matter of:
The State
Versus
Om Prakash
S/o Sh. Nand Ram,
R/o B-4/500, Nand Nagri,
Delhi - 110 093. ..... Accused
Date of institution : 11.05.2018
Date of reserving the judgment : 13.07.2022
Date of judgment : 19.07.2022
JUDGMENT
1. The case of prosecution is that on 01.02.2018 at about 7.00 a.m., SI Sanjay Kumar (PW-12) received a PCR call vide DD no. 11-B (Ex.PW-9/A) regarding taking out of a person, who was lying in the drain and was not responsive. PW-12 alongwith Ct. Pritam (PW-8) reached the spot i.e. Corner of Gali no. 5, Bank Colony, where he met a person, who was in semi-conscious condition and disclosed his name as Satinder Shahi (PW-3). He was apparently looking intoxicated. PW-12 took him to GTB FIR No. 76/18 State vs. Om Prakash Page No. 1 of 19 PS Harsh Vihar Hospital, where his MLC was prepared. PW-3 was declared unfit for statement by the doctor.
2. On 02.02.2018, PW-12 again went to the hospital, but he came to know that the said person had been discharged. He contacted the said victim on his mobile number provided to him on the previous day. On the same day, at about 6.00 p.m., PW-3 came to the PS and gave his statement (Ex.PW-3/A). PW-12 prepared a rukka (Ex.PW-12/A) and got the present FIR (Ex.PW-2/A) registered.
3. In his statement (Ex.PW-3/A), the complainant (PW-3) had stated that he used to drive e-rickshaw no. DL5ER-1351. On 31.01.2018 at about 6.30 - 7.00 p.m., he took two passengers from the area of Ram Nagar, M.S. Park, Mandoli Road. They asked him for the fare to Bank Colony, to which he replied that he would charge Rs.100/-. Thereafter, they sat in his e-rickshaw. When they reached near Tanga Stand, Nand Nagri, then both the said persons got the rickshaw stopped and went into a shop. They brought a large bottle of cold drink and a glass. They offered him to drink cold drink. Initially, PW-3 refused, but they asked him again. Then, PW-3 agreed to drink the cold drink. Thereafter, they gave him cold drink in glass. Just after taking it, the complainant felt a jolt. Subsequently, the complainant alongwith those two persons approached near Mandoli Jail, where they alighted from the rickshaw and asked him to wait for two minutes as they were bringing money from house. The complainant had further stated that after that he lost consciousness and did not remember anything. When he regained consciousness, he found himself admitted in FIR No. 76/18 State vs. Om Prakash Page No. 2 of 19 PS Harsh Vihar the hospital. He had alleged that those two persons had administered intoxicating substance to him in cold drink and stole his e-rickshaw, Rs.950/- kept in his pocket, DL and RC of e-rickshaw.
4. During further investigation, PW-12/Investigating Officer (for short 'IO') prepared site plan (Ex.PW-3/B) on pointing out of PW-3. He then took PW-3 to GTB hospital, where his blood sample was taken. The same was seized vide memo Ex.PW-8/A. On 03.02.2018, PW-12 received information from PS: Kanjhawala that one person had been arrested by them with a stolen e-rickshaw and proceedings had been initiated against him. During further investigation, on 05.02.2018, the said person i.e. Om Prakash (hereinafter referred as 'accused') was produced before the Court concerned of PS Harsh Vihar in muffled face. He was arrested in the present case and his disclosure statement (Ex.PW-12/A1) was also recorded.
5. Thereafter, PW-12 applied for TIP of the accused. The accused refused to participate in the TIP vide proceedings Ex.PW-12/B. On 09.02.2018, PW-12 sent blood sample of victim to the FSL through Ct. Subhash (PW-4). Later on, FSL result (Ex.PW-12/E) was obtained. After completion of investigation, challan was filed before the Court.
6. After compliance of provision under Section 207 Cr.P.C., Ld. MM-02, Shahdara, Karkardooma Courts, Delhi, committed the case to the Court of Sessions vide order dated 27.04.2018.
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PS Harsh Vihar
7. Vide order dated 26.09.2018, charge was framed against accused under Sections 328/379/323/34 of the Indian Penal Code (for short 'IPC') and Section 411 of the IPC to which he pleaded not guilty and claimed trial.
8. In support of its version, the prosecution examined twelve witnesses.
PW-1 is W/HC Yogita. She tendered copy of DD No. 30-B dated 03.02.2018, regarding information received from PS Kanjhawala about disclosure of accused in respect of commission of theft after administering intoxicating substance to a person, as Ex.PW-1/A. PW-2 is HC Duli Chand. He tendered copy of FIR as Ex.PW-2/A, endorsement on rukka as Ex.PW-2/B and certificate under Section 65-B of the Indian Evidence Act as Ex.PW-2/C.
9. PW-3 is Satinder Shahi/complainant. He submitted almost on the similar lines as stated by him in his statement given to the police. He tendered his statement as Ex.PW-3/A, site plan as Ex.PW-3/B, superdarinama of e-rickshaw as Ex.PW-3/C, copy of RC of e-rickshaw as Ex.PW-3/D, copy of aadhar card as Ex.PW-3/E, panchnama of e-rickshaw as Ex.PW-3/F and photographs of e-rickshaw as Ex.PW-3/G. He identified the accused as one of the passengers in his e-rickshaw. He further deposed that his e-rickshaw was again stolen on 15.12.2018 from his house. He lodged e-FIR (Ex.PW-3/H) in this regard. He was cross-examined on behalf of the accused.
10. PW-4 is Ct. Subhash. He deposed that on 09.02.2018, he had taken sealed pullanda alongwith the sample seal and deposited the same in FSL Rohini.
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PS Harsh Vihar
11. PW-5 is HC Parmod. He submitted that on 03.02.2018 at about 10.15 a.m., he was on patrolling duty alongwith HC Vikas (PW-6) in the area of Baldev Vihar near Karala Stadium. While on patrolling, he observed one e-rickshaw. Its driver, on seeing the police party, reversed his e-rickshaw and tried to escape. On having suspicion, he was stopped and he revealed his name as Om Prakash. He was asked to produce the ownership documents of e-rickshaw, but he could not do so. On sustained interrogation, he disclosed that he had robbed e-rickshaw from its driver from the area of PS Harsh Vihar. He (PW-5) made inquiries from PS Harsh Vihar and it was revealed that FIR no. 76/18 had already been registered in this regard. PW-5 tendered kalandara as Ex.PW-5/A, disclosure statement of accused as Ex.PW-5/B, arrest memo of accused as Ex.PW-5/C, his personal search memo as Ex.PW-5/C1 and arrival entry in PS Kanjhawala vide DD no. 8-A as Ex.PW-5/D. He identified the e-rickshaw from the photographs available on record.
12. PW-6 is HC Vikas. He submitted on the similar lines as deposed by PW-5. PW-7 is Ct. Virender. He submitted that on 19.02.2018, IO obtained one day PC remand of the accused from the Court. The accused was being interrogated in the police station. He (accused) suddenly got up and banged his head on the gate of room and sustained injuries. He was again taken to GTB hospital. PW-8 is Ct. Pritam. He submitted about the steps taken by IO during investigation conducted on 01.02.2018. He tendered seizure memo of the blood sample of complainant as Ex.PW-8/A. FIR No. 76/18 State vs. Om Prakash Page No. 5 of 19 PS Harsh Vihar
13. PW-9 is Ct. Vinod Pandey. He tendered DD no. 11-B dated 01.02.2018, regarding taking out of a person, who was lying in the drain and was not responsive, as Ex.PW-9/A. PW-10 is HC Manjeet/MHC(M), PS Kanjhawala. He stated that on 03.02.2018, HC Pramod deposited one battery rickshaw in malkhana vide DD no. 8-A. He tendered relevant entry of register no. 19 as Ex.PW-10/A. He further stated that on 15.02.2018, the said e-rickshaw was sent to PS Harsh Vihar. PW-11 is Ct. Vipin. He deposed that on 05.02.2018, IO formally arrested the accused with permission of the Court vide memo Ex.PW-11/A. Further, on 15.02.2018, on instructions of the IO, he brought e-rickshaw from MHC(M), PS Kanjhawala and deposited the same in the malkhana of PS Harsh Vihar. He tendered relevant entry in register no. 19 of PS Harsh Vihar as Ex.PW-11/B.
14. PW-12 is SI Sanjay Kumar/IO. He submitted about the steps taken during investigating conducted by him. He tendered rukka as Ex.PW-12/A, disclosure statement of accused as Ex.PW-12/A1, TIP proceedings of accused as Ex.PW-12/B, road certificate of sending sample to FSL as Ex.PW-12/C, acknowledgement as Ex.PW-12/D, FSL result as Ex.PW-12/E and order of the Court dated 22.02.2018 releasing e-rickshaw on superdari as Ex.PW-12/F.
15. During trial, formal proof of following documents was dispensed with i.e. MLC of complainant Ex.C-1, opinion regarding nature of injuries Ex.C-2 and opinion regarding nature of injuries after examining NCCT (Head) Ex.C-3.
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PS Harsh Vihar
16. After conclusion of the prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C., wherein accused has stated that he was falsely identified by PW-3 Satinder Shahi. He has further stated that he had been arrested in the Court itself as formal arrest and might have been seen by the witness in the Court itself. Hence, he did not participate in TIP proceedings. He has further stated that he used to work as labour. He did not remember the date, but on one day, he was drunk at night time. He was apprehended by police officials of PS Kanjhawala. After some inquiry, he was released. Thereafter, he came to Nand Nagri, where his house was situated. He was lying in the market area situated behind Gagan Cinema, Nand Nagri. He was semi-conscious at that time. There was some hue and cry. When he gained consciousness on the next day, he found himself in PS Kanjhawala. He has not committed any offence. Accused opted not to lead defence evidence.
17. I have heard final arguments from Ld. Addl. PP for the State and Ld. Counsel for accused.
18. Ld. Addl. PP for the State has argued that the complainant/PW-3 has categorically stated that two passengers, who had hired his e-rickshaw, gave him cold drink and after sometime, he lost consciousness. He has identified the accused as one of the passengers. Further, later on, the e-rickshaw of PW-3 was recovered from the possession of accused, just after three days of the incident. The blood sample of complainant had been taken and the same was sent to FSL for expert opinion. The FSL report shows that the sample was found to contain 'lorazepam' (a benzodiazepine FIR No. 76/18 State vs. Om Prakash Page No. 7 of 19 PS Harsh Vihar drug). This is a type of drug known as tranquilizers and it is a sedative. The accused has failed to explain the possession of e-rickshaw of complainant just after three days of theft of the same. Thus, the prosecution has proved its case against the accused beyond reasonable doubt.
19. Ld. Counsel for the accused has argued that firstly, PW-3/complainant did not level specific allegation against the accused. There is contradiction in the testimony of prosecution witnesses in respect of state of fitness of the complainant on 01.02.2018, when he was taken to the hospital. Further, there is also contradiction regarding the date when blood sample of the complainant was obtained. The investigating officer has admitted that he did not conduct inquiry regarding purchase of the alleged cold drink and glass from nearby locality. Furthermore, the case of prosecution is silent as to in what circumstances, the accused sustained injuries on 19.02.2018, when he was in police custody. Thus, the prosecution has failed to prove its case against the accused beyond reasonable doubt.
20. In the present case, the complainant/PW-3 is the star witness. He has categorically stated that on 31.01.2018, he used to drive e-rickshaw no. DL-5ER 1351. Two passengers hired his e-rickshaw. On the way, they brought a cold drink bottle and a glass. On their insistence, PW-3 agreed to take the cold drink. After sometime, they (two passengers) got down from e-rickshaw and told him (PW-3) to wait for two minutes. After that, PW-3 lost consciousness. When he regained consciousness, he found himself admitted in the hospital. PW-3 has identified the accused as one of FIR No. 76/18 State vs. Om Prakash Page No. 8 of 19 PS Harsh Vihar the passengers in the e-rickshaw. During his cross-examination conducted on behalf of the accused, nothing could be brought on record to create doubt on his testimony. In other words, he remained firm and consistent during his cross-examination.
21. From the abovesaid version of PW-3, it is made out that the accused was one of those two passengers who had hired e-rickshaw of complainant. Further, they had given him cold drink and after some time, he lost his consciousness. This leads to infer that accused and his associate had given him some intoxicating/stupefying substance due to which the complainant lost his consciousness.
22. At this stage, it is worth noting that the accused cannot be allowed to raise an objection that PW-3 has identified him as one of the accused persons, first time in the Court. During investigation of the present case, the accused had refused to participate in the TIP proceedings (Ex. PW-12/B). Thus, the identity of the accused as one of the offenders stands established.
23. The Court stands guided with the observation of the Hon'ble Delhi High Court in Sunil Mashi @ Silly v. State NCT of Delhi, Crl. A. 610/2013 decided on 14.10.2014, that:
28. What can be culled out from the aforesaid decision is that the identification of the accused by the complainant in Court coupled with his refusal to join TIP establishes the identity of the accused as the assailant of the crime.
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PS Harsh Vihar
24. The version of PW-3 regarding loss of consciousness is corroborated with DD no. 11-B dated 01.02.2018, PS Harsh Vihar (Ex.PW-9/A), whereby it was recorded that a person had been taken out, who was lying in the drain and was not responsive. The complainant was taken to GTB Hospital for medical examination. In his MLC Ex.C-1, alleged history has been recorded as 'patient found in drowsy state at around 7.30 a.m.'.
25. Ld. Counsel has raised a doubt that if complainant/PW-3 was not responsive, then how the IO/PW-12 or the doctor could come to know about the name of complainant and his parentage at the time of preparation of MLC. It is worth noting that during his cross-examination, PW-12 has categorically stated that the victim was only able to tell his name and address, while taking him to hospital from the spot. In his examination-in-chief too, PW-12 has deposed that when he reached the spot after receipt of DD no. 11-B, he met a person, who was in a semi-
conscious condition and he disclosed his name as Satender Shahi. He was apparently looking intoxicated. He was taken to GTB hospital. He was declared unfit for statement by the doctor. Thus, the Court is of the view that PW-12/IO has given sufficient explanation about the circumstances in which the name and parentage of complainant could be mentioned in his MLC.
26. The abovesaid version of PW-12 is corroborated with the observations made in the MLC of PW-3 that he was declared fit on 02.02.2018 (while the complainant had been admitted in the hospital on 01.02.2018). Thus, FIR No. 76/18 State vs. Om Prakash Page No. 10 of 19 PS Harsh Vihar the Court does not find any doubt on the case of prosecution on this aspect.
27. Ld. Counsel for accused has raised doubt about the date when the blood sample of complainant had been taken. It is true that the testimony of PW-3/complainant is silent about taking of his blood sample by the doctor. But, just because this aspect was not touched upon or put to him during his testimony, the same does not brush aside the proceedings conducted during investigation, or testimonies of other witnesses, in this regard.
28. PW-8/Ct. Pritam has stated that the doctor, who had conducted MLC, had also collected the blood sample. He handed over the blood sample and MLC to IO SI Sanjay Kumar. The blood sample was in a bottle having the seal of GTB hospital thereof. SI Sanjay Kumar prepared a seizure memo with respect to the said bottle, which was tendered as Ex.PW-8/A. It is true that PW-8 did not mention the specific date as to when the blood sample was collected by the doctor. However, it is pertinent to note that seizure memo Ex.PW-8/A was prepared on 02.02.2018.
29. At this stage, testimony of IO/PW-12 becomes relevant. He has deposed that on 02.02.2018, he took the complainant to GTB hospital where his blood sample was taken and the doctor handed over the same in sealed pullanda sealed with the seal of hospital. He seized it vide memo Ex.PW-8/A and deposited the same in the malkhana. It is worth noting that nothing could be brought on record during cross-examination of PW-8 as well as PW-12 creating doubt regarding collection of blood sample of complainant on 02.02.2018 and handing over of the same to IO.
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PS Harsh Vihar
30. It is worth noting that FSL report dated 26.03.2018 (Ex.PW-12/E) contains that parcel-1 bears one seal of MLC GTB Hospital, Shahdara and labeled as 'Satender Kumar, 44Yr/Male, CR No.28387, MLC A-507/04/18'. It was found to contain exhibit '1', which is blood sample volume 2 ml approx. The said sample had been deposited by PW-4 Ct. Subhash in the FSL on 09.02.2018. Thus, it has been made out that the blood sample of complainant had been taken on 02.02.2018 in a pullanda which bore the seal of MLC GTB Hospital and the same seal was found affixed on the sample when it was examined by FSL. The accused has not brought on record anything to suggest that the blood sample of the complainant had been tampered with prior to sending the same to FSL.
31. Now, the FSL report dated 26.03.2018 (Ex.PW-12/E) contains the result of examination and states that 'on chemical, TLC and GC-HS examination exhibit '1' was found to contain 'Lorazepam' (a benzodiazepine drug)'. The chemical found in blood sample of complainant is sedative in nature. Thus, it is made out that the accused and his associate had given intoxicating/stupefying substance to the complainant.
32. The Court stands guided with the observation of the Hon'ble Delhi High Court in the case of Sunil Mashi @ Silly (supra), that:
36. This Court in Rijaul Khan (supra) has observed that Lorazepam is a highly potent intermediate duration drug often used to treat the anxiety disorder. It is normally used for short term treatment of anxiety, insomnia, acute seizures and sedation of the hospitalized patients as well as sedation of aggressive patients. The effects of the medicine are of intermediate duration and it is known to be sometimes used for criminal purposes.
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PS Harsh Vihar
33. It had been alleged by the complainant in his statement (Ex.PW-3/A) that two passengers who had given him cold drink, had taken away his e-rickshaw, Rs.950/- kept in his pocket, DL and RC of e-rickshaw. In this regard, the testimonies of PW-5 and PW-6 are relevant. PW-5 has stated that on 03.02.2018 at about 10.15 a.m., he was on patrolling duty alongwith HC Vikas (PW-6) in the area of Baldev Vihar near Karala Stadium. While on patrolling, he observed one e-rickshaw. Its driver, on seeing the police party, reversed his e-rickshaw and tried to escape. On having suspicion, he was stopped and he revealed his name as Om Prakash. He was asked to produce the ownership documents of e-rickshaw, but he could not do so. On sustained interrogation, he disclosed that he had robbed e-rickshaw from its driver from the area of PS Harsh Vihar.
34. After apprehension of the accused by PW-5 and PW-6, a kalandra (Ex.PW-5/A) was prepared. Subsequently, an intimation was given to PS Harsh Vihar vide DD no. 13-B dated 03.02.2018 (Ex.PW-1/A), which was recorded by PW-1. Thereafter, the accused was produced before the concerned Court of PS Harsh Vihar on 05.02.2018 and formally arrested in the present case. Subsequently, on instruction of IO, PW-11/Ct. Vipin brought e-rickshaw from PS Kanjhawala to PS Harsh Vihar. The entry to this effect was made by PW-10/MHC(M), PS Kanjhawala and also in PS Harsh Vihar vide Ex.PW-11/B. Thereafter, the said e-rickshaw was released on superdari to PW-3 vide order of the concerned Court dated 22.02.2018 (Ex.PW-12/F). PW-3, during his examination before the Court, FIR No. 76/18 State vs. Om Prakash Page No. 13 of 19 PS Harsh Vihar identified the photographs of e-rickshaw i.e. Ex.PW-3/G. He tendered superdarinama as Ex.PW-3/C and RC of e-rickshaw as Ex.PW-3/D.
35. From the abovesaid, it is made out that after theft of e-rickshaw from the possession of PW-3 on 31.01.2018, the said e-rickshaw was found in the possession of accused on 03.02.2018. During his statement recorded under Section 313 Cr.P.C., the accused gave a vague and incoherent explanation as to in what condition and circumstances, he was apprehended by the police officials of PS Kanjhawala. Thus, the accused did not bring anything on record to create doubt regarding recovery of e-rickshaw from his possession on 03.02.2018. This further affirms that the accused and his associate had stolen the e-rickshaw of PW-3/complainant.
36. The Court again stands guided with the observations of the Hon'ble Delhi High Court in the case of Sunil Mashi @ Silly (supra), that:
42. Even as regards offence under Section 379 IPC, the appellant was rightly convicted inasmuch as he was found in possession of the stolen articles immediately after the commission of theft and, therefore, the presumption under Section 114A of Indian Evidence Act, 1872 arises against him.
43. Hon‟ble Supreme Court in Ganesh Lal v. State of Rajasthan, (2002) 1 SCC 731 elaborately discussed regarding the presumption laid down under Section 114 Evidence Act:
"12. Section 114 of the Evidence Act provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public private business, in their relation to facts of the particular case. Illustration (a) provides that a man who is in possession of stolen goods soon after the theft may be presumed by the Court to be either the thief or one who has received the goods knowing them to be stolen, unless he can account for his possession. The presumption so raised is one of fact rather than of law. In the facts and FIR No. 76/18 State vs. Om Prakash Page No. 14 of 19 PS Harsh Vihar circumstances of a given case relying on the strength of the presumption the Court may dispense with direct proof of certain such facts as can be safely presumed to be necessarily existing by applying the logic and wisdom underlying Section 114. Where offences, more than one, have taken place as part of one transaction, recent and unexplained possession of property belonging to deceased may enable a presumption being raised against the accused that he is guilty not only of the offence of theft or dacoity but also of other offences forming part of that transaction."
37. Now, the Court proceeds to take up other issues raised by Ld. Counsel for the accused. Ld. Counsel has argued that the investigating officer did not conduct inquiry regarding the purchase of alleged cold drink and glass from nearby locality. It is true that PW-12, during his cross-examination, has deposed that he did not conduct any such inquiry. But, it is pertinent to note that from the trustworthy and consistent testimony of PW-3 and report of FSL, it is made out that the accused and his associate had administered intoxicating substance to PW-3. In these circumstances, this aspect does not prove to be fatal to the case of prosecution. Even otherwise, it is trite law that lapses of the investigating officer should not affect the testimony of complainant.
38. In this regard, the Court stands guided with the precedent laid down by the Hon'ble Supreme Court in Ambika Prasad v. State (Delhi Administration), AIR 2000 SC 718, wherein the Court has held that:
Dealing with a case of negligence on the part of the investigating officer, this Court in Karnel Singh v. State of MP, 1995(5) SCC 518 observed that in a case of defective investigation it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of erring investigating officer. Similarly, in Ram Bihari FIR No. 76/18 State vs. Om Prakash Page No. 15 of 19 PS Harsh Vihar Yadav v. State of Bihar, 1998(2) RCR(Crl.) 403 : 1998(4) SCC 517 para 13 this Court observed :-
"....In such cases, the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law-enforcing agency but also in the administration of justice."
Further in Paras Yadav and others v. State of Bihar, 1999(1) RCR(Crl.) 628 : 1999(2) SCC 126 this Court held :-
"...It may be that such lapse is committed designedly or because of negligence. Hence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not....."
39. Ld. Counsel has pointed out that the accused had been beaten by the police officials of PS Harsh Vihar and thereafter, his confessional statement had been recorded. Further, PW-12, during his examination-in- chief, did not mention anything about the said injuries caused to the accused. It is true that PW-12 did not state anything regarding injuries sustained by the accused during investigation of the present case. However, it is worth noting that PW-7 has categorically stated that on 19.02.2018, accused was taken on one day PC remand. He was being interrogated in the police station. The accused suddenly got up and banged his head on the gate of room and sustained injuries. During cross- examination of PW-7, nothing was brought on record indicating that the accused had been beaten by the police. Moreover, it is not the case of accused that he has filed any complaint before the Court or senior police FIR No. 76/18 State vs. Om Prakash Page No. 16 of 19 PS Harsh Vihar officials alleging that he had been beaten by the police officials on 19.02.2018.
40. It is pertinent to note that the disclosure statement (Ex.PW-12/A1) of the accused had already been recorded in the present case on 05.02.2018. Further, TIP of the accused (Ex.PW-12/B) had already been conducted on 19.02.2018 i.e. before grant of PC (police custody) remand by the concerned Court on the same day. The accused had refused to participate in TIP proceedings. Thus, the argument advanced by Ld. Counsel for the accused does not find favour from the record that the accused had been beaten by police officials to extract a confessional statement of his involvement in the present case.
41. From the observations made in preceding paragraphs, the prosecution has proved that on 31.01.2018, accused and his associate hired e-rickshaw run by PW-3. They administered intoxicating/stupefying substance to PW-3. After some time, he lost consciousness. Thereafter, the accused and his associate stole his e-rickshaw. Subsequently, the accused was found in possession of the e-rickshaw of PW-3 by police officials of PS Kanjhawala on 03.02.2018. Thus, the prosecution has proved the ingredients of offence punishable under Section 328 IPC i.e. the accused and his associate had administered intoxicating/stupefying substance to PW-3 in order to commit theft of his e-rickshaw. From the circumstances and conduct of the accused and his associate as narrated by PW-3, it stands proved that the accused and his associate (whose identity could not be traced and established) had shared a common intention to administer FIR No. 76/18 State vs. Om Prakash Page No. 17 of 19 PS Harsh Vihar intoxicating/stupefying substance to PW-3 in order to commit theft of his e-rickshaw. Further, the ingredients of offence punishable under Section 379 IPC also stand proved as the accused and his associate had taken away e-rickshaw of PW-3, which was found in possession of the accused on 03.02.2018.
42. It is worth noting that charge under Section 323 IPC has also been framed against the accused. Though, MLC of PW-3 (Ex.C-1) shows 'abrasion on middle of forehead'. But, the testimony of PW-3 is silent on the aspect as to whether accused persons had caused any assault too upon PW-3. In these circumstances, the injury as shown in MLC of PW-3 cannot be attributed to the accused persons. Thus, no case is proved for commission of offence punishable under Section 323 IPC against the accused. The accused stands acquitted of the charge leveled against him under Section 323 IPC.
43. So far as charge under Section 411 IPC is concerned. Since the accused has already been held liable for committing theft of e-rickshaw, thus, it is not required to adjudicate the culpability of accused for commission of offence under Section 411 IPC too. The Court has relied upon the observations of the Hon'ble Delhi High Court in the case of Sunil Mashi @ Silly (supra), that:
44. As such, the appellant was rightly convicted under Section 379 IPC, however, the learned Trial Court has convicted the appellant for offence under Section 411 IPC as well. Keeping in view the fact that he has been convicted under Section 379 IPC, there was no justification for convicting him for offence under Section 411 IPC. As such, his conviction under Section 411 is set aside.
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44. The prosecution has proved the ingredients of offence punishable under Sections 328 and 379 IPC read with Section 34 IPC against the accused beyond reasonable doubt. Accordingly, the accused is held guilty for the offence punishable under Sections 328 and 379 read with Section 34 of the Indian Penal Code.
Announced in open Court (Naveen Gupta)
on 19th July, 2022 Addl. Sessions Judge-05
Shahdara District,
Karkardooma Courts, Delhi
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PS Harsh Vihar