Delhi District Court
State vs . (1) Raj Kumar @ Raju Mental, on 28 August, 2010
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSION
JUDGE-II (NORTH-WEST): ROHINI COURTS, DELHI
Session Case No. 687/05
Unique Case ID No. 02404R001752006
STATE Vs. (1) Raj Kumar @ Raju Mental,
S/o Sh. Satya Kumar,
R/o H.No.J-1668, Jahangir Puri,
Delhi.
(Convicted)
(2) Sushila,
W/o Raj Kumar @ Raju Mental,
R/o J-1668, Jahangir Puri,
Delhi.
(Convicted)
(3) Neeraj,
S/o Kulwant Singh,
R/o J-1812, Jahangir Puri,
Delhi.
(Acquitted)
FIR No. 687/05
Under Section: 420/411/380/379/328/120-B/34
Indian Penal Code
Police Station: Jahangir Puri
Date of Institution in sessions Court: 24.1.06
Date on which judgment reserved: 5.8.2010
Date on which judgment pronounced: 28.8.2010
St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 1
JUDGMENT
As per the allegations on 24th or 25th October, 2005 all accused persons namely Raj Kumar @ Raju Mental, Smt. Sushila and Neeraj cheated the complainant Srishitidhar Pardhan and dishonestly induced him to purchase house No. J-1668, Jahangir Puri, Delhi allegedly belonging to accused Raj Kumar @ Raju Mental for Rs.2,50,000/- and further inducted the complainant Srishitidhar Pardhan to deliver Rs.40,000/- as advance money and to deliver the balance amount of Rs.2,10,000/- on 27-10-2005. It is also alleged that all the accused persons entered into a conspiracy to cheat the complainant Srishitidhar Pardhan by falsely representing that they would sell House No. J-1668, Jahangir Puri belonging to accused Raj Kumar to the complainant Srishitidhar Pardhan for a sum of Rs.2,50,000/-. They further conspired to snatch this amount from the complainant without making any sale of the said house and pursuant to the aforesaid conspiracy on 27.7.05 at about 9 AM all the accused persons administered some poisonous substance to the complainant by mixing the same in his tea in order to commit theft of Rs.1,34,000/- kept by the complainant which he was to pay to them for making the remaining payment for purchase of house belonging to accused Raj Kumar. It is further alleged that the accused persons committed theft of Rs.1,34,000/-, mobile phone, golden chain and one purse containing ATM Card, visiting Card and other necessary papers belonging to complainant Srishitidhar Pardhan by making him unconsciousness after administering St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 2 poisonous substance in his tea and also committed theft of motor cycle bearing No. DL-4S-AE-3256 belonging to him which was parked outside the House No. J-1668, Jahangir Puri, Delhi. Further, as per the allegations the accused Raj Kumar and Sushila on 28.10.2005 were found in possession of stolen articles, cash of Rs.60,000/-, one ATM, UTI Bank Card No.46AA 051200468035 and papers of motor cycle and total amount of Rs.50,000/- and visiting cards and some other papers which they both got recovered from their house which they retained believing to be the stolen one.
BRIEF FACTS Case of the prosecution:
The case of the prosecution is that on 27.10.2005 DD No. 24-A was received in Police Station Jahangir Puri pursuant to which ASI Mangat Ram along with Ct. Mange Ram reached at House No. J-1668, Jahangir Puri where one Shrishtidhar Pradhan met them and got recorded his statement. In his statement said Shrishtidhar Pradhan had informed the police that he was working as an Orderly in Central Jail no.7, Tihar and he had to purchase a house and one Neeraj who was in Judicial Custody at Tihar Jail and was a Sewadar assured him to help him purchase a house at cheap/ reasonable price. Pursuant to this after his release Neeraj introduced him to his brother Raj Kumar. Thereafter Neeraj took him to the house of Raj Kumar at J-1668, Jahangir Puri where Raj Kumar offered him to sale the said house for a consideration of St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 3 Rs.2.5 lacs. On the next day he handed over the Bayana of Rs.40,000/- to the accused Raj Kumar in presence of Neeraj and the date of 27.10.2005 was fixed for payment of balance amount. On 27.10.2005 he took Rs.1,34,000/- to the house of accused Raj Kumar where all the three accused met him and told him to sit on the ground floor of the house and after some time accused Neeraj and Raj Kumar came at the ground floor and sat with him. In the meantime accused Sushila came along with three glass of tea out of which one glass was picked up and handed over to him by accused Sushila. After about 10 minutes he felt dizzy and lost his consciousness.
On the basis of the said statement of Shrishtidhar Pradhan the present case was registered and at the instance of the complainant Shrishtidhar Pradhan the accused persons were arrested. After their arrest the accused persons got recovered the total cash amount of Rs.2,20,000/-, motorcycle bearing no. DL- 4SAE-3256, one purse, ATM card and some documents belonging to the complainant Shrishtidhar Pradhan. Thereafter charge sheet was filed against all the accused persons.
CHARGE After hearing arguments from both the sides the Ld. Predecessor of this court has settled the charges under Section 402/34 Indian Penal Code, Section 120 read with Section 420 Indian Penal Code, 328/34 Indian Penal Code, 380 Indian Penal Code, 379/34 Indian Penal Code and 411/34 Indian Penal Code St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 4 against the accused Raj Kumar @ Raju Mental, Smt. Sushila and Neeraj court to which they all pleaded not guilty and claimed trial.
EVIDENCE In order to prove its case, prosecution has examined nine witnesses.
Complainant/ eye witnesses/ public witnesses:
PW1 Shristidhar Pradhan is the complainant in the present case who has deposed that accused Neeraj was in judicial custody at Tihar Jail and was a Sewadar. He has further deposed that he had to purchase a house and accused Neeraj told him that he would be released after 2-3 days and would get purchase a house for him at reasonable price. According to him, accused Neeraj contacted him after his release and took him to his rented house at Jahangir Puri where accused Neeraj introduced him to Raj Kumar. PW1 has deposed that accused Neeraj also told him that his brother Raj Kumar wanted to sell out the said house and took them to the house of Raj Kumar i.e. J-1668, Jahangir Puri, Delhi where Raj Kumar met them and accused Raj Kumar offered him to sell this house for consideration of Rs.2.5 lacs. According to PW1, accused Raj Kumar and Neeraj asked him to come on the next day along with 'bayana' and on the next day he handed over over 'bayana' i.e Rs.40,000/- to accused Raj Kumar in the presence of Neeraj after which accused Raj Kumar told him that he would prepare the documents regarding the sale of the house St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 5 and the date of 27.10.2005 was fixed for the balance payment upon which he took Rs.1,34,000/- to the accused's house on 27.10.2005 at about 9 am. The witness has further deposed that all accused persons namely Raj Kumar, Sushila and Neeraj met them at their house i.e J-1668, Jahangir Puri, Delhi at first floor and told him to sit at the ground floor of the said house and after some time accused Neeraj and Raj Kumar came at the ground floor room and sat with him. He has testified that accused Sushila came along with three glass of tea out which one glass was picked up and handed over to him by accused Sushila and after ten minutes he felt dizzy and lost his consciousness and when he regained his consciousness he was present in the police station and it was 28.10.2005 in the morning. The witness has further deposed that he had gone to the house of the accused persons on a motor cycle bearing registration no. DL-4S-AE-3256 and was also carrying a mobile phone of NOKIA-3310 and at that time he was waring a gold chain and carrying a purse, containing I-card, some visiting cards and some other papers and certain documents viz receipt of earnest money. PW1 has further deposed that at the police station on gaining consciousness he noticed that all the above mentioned articles were missing from his possession. The witness has proved that his statement was recorded by the police which is Ex.PW1/A and has deposed that police took him to BJRM Hospital for his medical examination where he again went off to deep sleep and when he got up he was on hospital bed and doctor was trying to insert a pipe in his mouth. PW1 has also St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 6 deposed that he asked the doctor as to why they were inserting a pipe in his mouth and he refused for the same, to which the doctors agreed. The witness has proved having pointed out the place of occurrence to the police after which the site plan was prepared at his instance by the investigating officer. He has further deposed that both accused persons namely Raj Kumar and Sushila were arrested from their house vide arrest memos Ex.PW1/B & Ex.PW1/C respectively and their personal search was conducted vide memos Ex.PW1/D & Ex.PW1/E. The witness has also deposed that statement of accused persons were recorded by the police and accused Raj Kumar got recovered Rs.1,10,000/- from his house and his purse, ATM Card, some documents were also got recovered by accused Raj Kumar and recovery was also effected on the pointing out of accused Sushila.
PW1 has proved the recovery memos which are Ex.PW1/F & Ex.PW1/G prepared in his presence. According to him, he handed over the photostate papers of power of attorney to the IO and same were taken into possession vide memo Ex.PW1/H. The witness has correctly identified all the accused persons in the court as well as the case property i.e. the motor cycle bearing No. DL-4SA-E-3256 which is Ex.P3; purse which is Ex.P4; give visiting cards which are Ex.P5/1 to P5/5; slip of Star Imaging and Technological Lab which is Ex.P-6; photocopies of the currency notes which are Ex.P-7 (collectively); photocopy of the original RC of motorcycle which St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 7 is Ex.P-8. He has also produced the ATM card in the name of Rojalia Tirkey which is Ex.P-2 and photocopy of which is Ex.P2/P. The said witness was found resiling from her earlier statement given to the police and hence he was cross-examined by the Ld. Addl. PP for the State wherein he has admitted that at the time of apprehending the accused Raju Mental he made disclosure statement which is Ex.PW1/J and accused Sushila also made a disclosure statement which is Ex.PW1/K. He has further admitted that accused Raj Kumar @ Raju Mental was arrested on the intervening night of 27/28.10.2005 at 12:30 am and that Sushila was arrested on 28.10.2005 at 11:00 am. The witness has further admitted that accused Raj Kumar got recovered Rs.60,000/- consisting of currency notes of Rs.500/- denomination, one ATM card and photocopy of RC & driving license from the room of his house at ground floor from the bed. PW1 has further admitted that the accused Sushila got recovered one black coloured rexin purse having Rs.50,000/- consisting of currency notes of Rs.500/- denomination, some documents and the visiting cards from the room of his house at first floor from a cloth bag. He has also admitted that the recoveries effected from the accused persons were put in a polythene and converted in to the pullandas and the same were duly sealed with the seal of MR.
In his cross-examination the witness has deposed that he had gone to the house of accused Raju Mental on 27.10.2005 alone in the morning and he had again gone to his house at about St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 8 11:30 pm. According to him, he was accompanied by ASI Mangat Ram and one Ct. Mange Ram who were both in uniform. The witness is unable to tell if there is a restriction in the Service Rule for Jail Staff to discuss personal deals with the convicts in their custody.
PW2 Smt. Rozalia is the wife of the complainant who has deposed that she was posted as constable in Delhi Police and she was issued UTI Bank Debit Card in her capacity as an employee of Delhi Police and her salary is credited in UTI Bank. She has further deposed that her husband used her Debit Card for withdrawing money from the amount for the purposes of purchasing a house and the amount was withdrawn in several transactions beginning 27.10.2005. PW2 has also deposed that in total a sum of Rs.1,34,000/- were withdrawn from her account.
The said witness was declared hostile as she was not supporting her previous statement recorded by the police officials under Section 161 Cr.PC. and during her cross-examination by Ld. Addl. PP she stated that her husband had told her that he wanted to withdraw some money from her account as consideration for purchase of a house in Jahangir Puri. She further deposed that the said card was in the possession of her husband and has admitted that her card no. is 4688051200468035 and her account no. is 1200010100453011.
In her cross-examination by the Ld. defence counsel the witness has deposed that the UTI Bank Account is exclusively a salary account. She is not aware if it is an offence to allow St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 9 some other person to use somebody else ATM card but has stated that it was used by her husband with her consent and no amount other than her salary was deposited in her account in October 2005.
Medical Evidence:
PW7 Dr. Sardaman Singh has deposed that he was deputed by Medical Superintendent, BJRM Hospital to depose on behalf of Dr. Nima and Dr. Parveen as both the above said doctors have left the services of the hospital and their whereabouts were not known. After seeing the MLC Ex.PW7/A he has deposed that the patient Shrishtidhar Pradhan was examined on 28.10.05 at 1.10 am with an alleged history of suspected poison. According to him, the patient was initially examined by Dr. Nima and was found conscious and oriented. He has further deposed that on local examination, no abrasion was seen and no external injury was seen and the patient was non cooperative for gastric lavage so, sample could not be taken. The witness has further proved the findings of Dr. Nima at point A and has deposed that Dr. Nima had referred the patient to S.R. Medicine pursuant to which Dr. Parveen examined the patient and recorded alleged history of ingestion of unknown substance in tea given by some person followed by drowsiness. He has deposed that on examination Dr. Praveen found the patient to be conscious, febrile, pulse rate 90, chest bilateral clear, per abdominal soft, CNS no focal deficit. He has proved the findings St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 10 of Dr. Parveen from portion C to C and has deposed that Dr. Praveen recorded the final result as suspected sedative poisoning which result of Dr. Praveen is at point D to D on the MLC.
Official Witness/ Police Witnesses:
PW3 Naresh LDC from Delhi Transport Authority, Janak Puri, Delhi has brought the file of motor cycle bearing no. DL-4S-AE-3256. According to him, initially the said motor cycle was in the name of Sh. Anand Prakash and later on the same was transferred in the name of Sh. S.D. Pradhan on 24.3.2004. He has also brought the original Form 30, in which the vehicle was transferred in the name of Sh. S.D. Pradhan, S/o Sh. N. Pradhan, R/o 502, Tihar Jail Complex, Vidya Marg, Janak Puri, New Delhi. The photocopy of the Form 29 and 30 is Ex.PW3/B, Ex.PW3/C and Ex.PW3/D respectively.
PW4 HC Rohtash Singh has deposed that on 27.10.2005 he was posted at PS Jahangir Puri and on that day he was working as duty officer from 4pm to 12 am (mid night).
According to him, at about 5.40 pm he received information through Ct. Mange Ram of PCR regarding quarrel at J-1686, Jahangir Puri, Delhi which information he recorded vide DD No.24A and sent to ASI Mangat Ram through Ct. Kailash for investigation. The DD No.24A Ex.PW4/A. He has further deposed that on 27.10.2005 at about 5.55 pm he also received information from Ct. Mange Ram regarding snatching of jewellery articles at the point of knife by one boy namely Raju St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 11 which information he recorded vide DD No.25A and sent to ASI Mangat Ram through some police officials, the DD entry is Ex.PW4/B. The witness has also deposed that on 27.10.05 at about 8.55 pm he received a rukka from Ct. Mange Ram which was sent by ASI Mangat Ram on the basis of which he recorded formal FIR No.687/05 which is in his handwriting, copy of which is Ex.PW4/C. He has also proved his endorsement on the rukka which is Ex.PW4/D. PW5 W.Ct. Geeta has deposed that on 28.10.2005 she was posted at PS Jahangir Puri and on that day at about 10 am she along with ASI Mangat Ram, Ct. Mange Ram and Shrishtidhar Pradhan went in search of the accused Neeraj at J- 1812, Jahangir Puri, Delhi but accused Neeraj could not found there. She has further deposed that she along with other police officials went to J-1668, Jahangir Puri where the investigating officer called the accused persons pursuant to which accused Sushila opened the door and the complainant Shrishtidhar pointed towards her as the lady who had given him some intoxicating substance in tea. According to the witness, accused Sushila was apprehended by her and on interrogation she made disclosure statement pursuant to which one cloth bag containing raxine bag, currency notes Rs.50,000/- of 500 denomination, some business cards and other documents were recovered which were sealed with the seal of MR and seized vide memo Ex.PW1/G. PW5 has further deposed that personal search of accused Sushila was conducted vide memo Ex.PW1/E and was arrested vide memo St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 12 Ex.PW1/C after which the accused Sushila was taken to BJRM Hospital for medical examination. She has duly identified the accused Sushila and the case property i.e. the currency notes of Rs.50,000/- photocopies of which are Ex.P-8 (collectively).
PW6 Ct. Mange Ram has deposed that on 27.10.2005 he was posted at PS Jahangir Puri and on that day on receipt of DD No.24, he along with ASI Mangat Ram went to J-1600, Jahangir Puri, Delhi and on the way they had also received one DD No.25A. He has further deposed that in the meantime complainant Shrishtidhar Pradhan met them and got recorded his statement with the investigating officer and after making the endorsement on the statement of Shrishtidhar Pradhan, the investigating officer gave the rukka to him for registration of the FIR. According to him, he went to the police station and got recorded the FIR and came back at the spot along with copy of FIR and original rukka which he handed over to the investigating officer. The witness has further deposed that thereafter he along with the investigating officer and complainant Shrishtidhar Pradhan reached at the house of accused Raj Kumar @ Raju Mental but they could not find them in the house. PW6 has further deposed that when they were returning back accused Raj Kumar was present at Main Market, I-J Block, Jahangir Puri, Delhi and he was arrested at the instance of complainant and his personal search was conducted vide memo Ex.PW1/D. The witness has further proved the arrest memo of accused Raj Kumar was prepared vide memo Ex.PW1/B after which the accused Raj St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 13 Kumar took them to his house and got recovered Rs.60,000/-, one ATM Card and some documents from the room of his house at ground floor in a polythene bag and got recovered the case property which was converted into a pullanda and sealed with the seal of MR and the same was taken into possession vide memo Ex.PW1/F. The witness has deposed that accused Raj Kumar was taken to BJRM Hospital for his medical examination after which they came back to the police station and accused Raj Kumar @ Raju Mental was put up in the lockup and case property was deposited in the malkhana. According to the witness, on 28.10.05 at about 10 am he along with investigating officer, lady Constable Geeta and the complainant went to the house of accused Neeraj but he was not found there. PW6 has also deposed that they went to the house of accused Raju at J-1668, Jahangir Puri, Delhi and accused Sushila had opened the door and on the pointing out of the complainant Shrishtidhar Pradhan accused Sushila was apprehended as accused Sushila had given him some intoxicating substance in the tea. He has further deposed that on interrogation she gave a disclosure statement Ex.PW1/K pursuant to which accused Sushila got recovered Rs.50,000/- in cash which were kept in a leather purse which currency notes were in the denomination of Rs.500/- and the leather purse was kept in the pullanda and sealed with the seal of MR and seized vide memo Ex.PW1/G. The witness has also deposed that accused Sushila was arrested and she was got medically examined at BJRM Hospital. He has identified the accused persons as well as the St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 14 case property.
PW8 ASI Ram Kishan has deposed that on 25.3.2006 he was posted at Police Station Adarsh Nagar and was working as duty officer from 5pm to 1 am (night). According to him, on the same day the rukka was sent by HC Dharam Pal through Ct. Sushil Kumar and on the basis of the rukka he recorded formal FIR No.177/06 and he proved the computerized print of the FIR i.e Ex.PW8/A. PW9 ASI Mangat Ram is the investigating officer who has deposed that on 27.10.05 on receipt of DD No.24A he along with Ct. Mange Ram reached in J Block, 1600 Wali Gali, Jahangir Puri. He has further deposed that the DD entry was in fact pertaining to some quarrel but, he did not find any quarrel taking place over there but one Shrishtidhar Pradhan met them at H. No. J-1668, Jahangir Puri and got recorded his statement regarding cheating having been committed with him and also regarding theft of his cash and other articles including jewellery by one Raju, Niraj and Sushila after administering him some intoxicating substance. PW9 has further deposed that he accordingly recorded the statement of Shristidhar Pradhan which is Ex.PW1/A. He has further deposed that complainant Shrishtidhar Pradhan was got medically examined at BJRM Hospital. The witness has further deposed that he prepared rukka Ex.PW9/A which was handed over to Ct. Mange Ram for getting the FIR registered and thereafter after registration of the FIR Ct. Mange Ram came back at the spot and he handed over to him St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 15 copy of FIR and original rukka. The witness has further deposed that he along with Ct. Mange Ram and complainant reached at the house of accused Raju but he was not found at his house. He has proved having prepared the site plan which is Ex.PW9/B and deposed that when they were searching the accused and when they reached at I Block, Jahangir Puri Market where at the instance of complainant Shrishtidhar Pradhan they apprehended accused Raj Kumar @ Raju. He has proved the arrest of accused Raj Kumar vide memo Ex.PW1/B; his personal search vide memo Ex.PW1/D and disclosure statement of accused Raj Kumar was recorded which is Ex.PW1/G. The witness has also deposed that accused Raj Kumar in pursuance of his disclosure statement took at his house bearing no.J-1668, Jahangir Puri and produced one polythene which was lying on the ground floor of his house and from the polythene Rs.60,000/-, one ATM of UTI Bank and photocopy of papers motor cycle bearing no. DL4SAE-3256 were recovered. He has also deposed that the same were taken into possession and put up in a pullanda and sealed with the seal of MR and seized vide memo Ex.PW1/F. The witness has corroborated the testimony of PW5 Lady Ct. Geeta and PW6 Mange Ram regarding the apprehension of accused Sushila in toto. The witness has also deposed deposed that on 29.11.05 he received an information from police station SP Badli that a motor cycle bearing no.DL4SA-3256 was found abandoned at GTK road in which they had seized vide Under Section 102 Cr.PC and in this regard DD No.21 has been St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 16 registered. According to him, he collected the copy of the same which is Ex.PW9/C and after completing the investigation, challan was prepared against the accused Raju and Sushila and filed in the court for trial.
The investigating officer has further deposed that on 13.4.2006 accused Niraj was produced in the court of Police Station Jahangir Puri on production warrant as he was already arrested in case of Police Station Adarsh Nagar. He has further deposed that after taking the permission from the court the accused was interrogated and arrested vide memo Ex.PW9/D after which his disclosure statement was recorded which is Ex.PW9/E. According to the witness, at that time Ct. Dalbir Singh was with him and SI Dharampal took one day police custody remand of accused Niraj after which the accused was handed over to him. The investigating officer has deposed that accused Niraj took them at Azadpur Mandi from whom he had procured the intoxicant tablets but no person with the name of Kishan was found after which the accused Niraj pointed out the place where he had left the motor cycle and place of occurrence vide pointing out memo Ex.PW9/F. The witness has further deposed that accused Niraj had refused to sign on the memo and after completing the investigation, he was sent to lockup. According to him, he recorded the statement of witnesses and later on supplementary challan was prepared by then SHO/ Inspt and filed in the court for trial. PW9 has further deposed that on 16.9.07 complainant Shrishtidhar Pradhan had produced the St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 17 photocopy of the GPA and other papers of H. No.J-1668 which was executed by accused Raju in the name of complainant, which were seized vide memo Ex.PW1/H and supplementary challan was filed. He has duly identified all the accused persons as well as the case property.
Statement of accused/ defence evidence:
After completion of prosecution evidence, the statement of the accused persons have been recorded under Section 313 Code of Criminal Procedure wherein all the incriminating evidence has been put to the accused persons which they have denied. According to the accused persons they are innocent and have been falsely implicated in the present case.
FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and also by the Ld. Legal Aid Counsel appearing on behalf of the all the three accused persons.
Evidence against the accused Raj Kumar @ Raju& Sushila:
The complainant has examined himself as PW1 and in his oral testimony he has proved the following aspects:
That at the time of incident he was employed as Nursery Orderly at Central Jail Tihar where the accused Neeraj was in jail/ in custody and was working as Sewadar.St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 18
That he wanted to purchase a house which fact he discussed with Neeraj who assured him that after his release he would help him in purchasing a house at reasonable price.
That the accused Neeraj took him to his rented house at Jahangir Puri where he was introduced to the co-accused Raj Kumar @ Mental who offered to sell the house bearing No. J-1668, Jahangir Puri, Delhi @ Rs.2.5 lacs.
That on the next date he handed over a sum of Rs.40,000/- to the accused Raj Kumar as Bayana and it was agreed that the remaining amount of Rs.1,34,000/- would be paid to the them on 27.10.2005.
That on 27.10.2005 at about 9 am he went to the house of Raj Kumar where he also met Neeraj and Sushila wife of Raj Kumar.
That while he was sitting with accused Raj Kumar and Neeraj, the accused Sushila offered him a glass of tea by picking up one glass and handed over the same to him and after 10 minutes he felt dizzy and lost consciousness.
That when he regained consciousness on 28.10.2005 morning he found himself in the police station.
That he had gone to the house of the accused persons on motorcycle bearing no. DL-4SAE-3256 and was also carrying mobile NOKIA-3310 and wearing a gold chain and was also having his identity card, a purse containing some visiting cards and other documents and was in possession of receipt of earnest money.St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 19
That when he regained consciousness he found that all the said articles were missing from his possession on which he got his statement recorded in the police station.
That he was taken to BJRM Hospital for medical examination and thereafter he went off to deep sleep and when he got up, he was on hospital bed and doctor was trying to insert a pipe in his mouth which is refused on which the doctor discharged him.
That on his pointing out the accused Raj Kumar @ Raju Mental and Sushila were arrested from their house where they got recovered Rs.1,10,000/-, his purse containing ATM Card and some documents.
The witness has identified his signatures on the various documents including the arrest memo, personal search memo and recover/ seizure memo prepared in his presence and has also identified the case property which include the copies of the currency notes, ATM card of Rojalia Tirkey, motorcycle bearing no. 3256, his purse containing visiting cards and other documents.
The wife of the complainant namely Rojalia Tirkey has also been examined as PW2 but she has not supported the case of the prosecution except to the extent of explaining that her husband Shrishtidhar Pradhan had been using the UTI Debit Card issued in her name which is her salaried account which amount was withdrawn in several transactions beginning 27.10.2005 and in all Rs.1,34,000/-. The said witness is a Constable in Delhi St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 20 Police. She has denied that her husband had shown her any receipt of earnest money but has stated that her husband had withdrawn the amount from her credit card bearing no. 4688051200468035 and that her account no. is 1200010100453011.
Apart from the aforesaid two witnesses, the only material witness examined by the prosecution is Dr. Sardaman Singh who has been examined as PW7 who has proved the MLC of the complainant which is Ex.PW7/A. Firstly it is evident that in so far as the identity of the accused persons Raju & Sushila are concerned, it is clearly established and there is no dispute as all the accused were known to the complainant even prior to the incident.
Secondly it is also not disputed that the complainant was working as Nursery Orderly at Central Jail Tihar where the accused Neeraj was in judicial custody and was working as Sewadar and hence there is existence of fiduciary relationship wherein the complainant was in an advantageous position to exercise influence over the accused Neeraj.
Thirdly asking for any kind of favour from a prisoner by any person employed in the services of the Prison is admittedly a violation of the present Rules for which the complainant is liable to be departmentally hauled-up.
Fourthly the wife of the complainant Rozalia Tirkey is a Constable in Delhi Police and the complainant himself is employed in the Tihar Jail and therefore, it is evident that both of St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 21 them are intelligent persons who cannot be easily fooled or cheated.
Fifthly the MLC of the complainant which is Ex.PW7/A reveals that the complainant was non cooperative for Gastric Lavage and therefore, no samples could be taken. The result/ findings given by Dr. Praveen as Suspected Sedative Poisoning, are based upon the symptoms expressed by the complainant himself. It is evident from the MLC that when the complainant was examined, he was fully conscious, his blood pressure and pulse was normal. There was no external injury or abrasion and he himself alleged the history of ingestion of unknown substance in tea given by some person followed by drowsiness. Therefore, the history of drowsiness was given to the doctor by the complainant himself though as per the observations of the doctor the complainant was fully conscious and oriented at the time of his examination on 28.10.2005 at 1:30 am (intervening night) and there is nothing on record except the oral testimony of the complainant to prove the aspect of unconsciousness or drowsiness.
Sixthly the perusal of DD No. 24 A which is Ex.PW4/A and DD No. 25A which is Ex.PW4/B shows that the first call was received at about 5:40 pm regarding quarrel at J- 1686, Jahangir Puri, Delhi and after 5 minutes there was another that jewellery had been snatched by one boy namely Raju at House No. J-1680, Jahangir Puri, Delhi. The PCR form has not been placed on record and there is nothing on record to show St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 22 from which numbers the calls were made. Further, both the calls do not appear to be of same incident. It is evident from the testimony of the investigating officer that when he went to the spot he did not find any quarrel but met the complainant who made a complaint regarding the accused persons having cheated him. This being so, it is evident that both the calls were misleading and the possibility of the complainant being the author of it cannot be ruled out.
Seventhly in the absence of any viscera report or internal examination the aspect of the complainant having been administered any poisonous substance does not stand proved and the oral testimony of PW1 does not stand corroborated from any other source. There are material contradictions in his testimonies since on the one hand he states that when he regained consciousness he found himself in the police station whereas the record shows that firstly a call regarding a quarrel was received and soon after another call regarding snatching of jewellery were received but the testimony of the investigating officer reveals that it is the complainant who met him at the spot and got his statement recorded. Therefore, the testimony of the complainant that he felt dizzy and when he woke up, he found himself in the police station is incorrect. Further, the MLC reveals that it is the complainant himself who had gone to the hospital with Ct. Sudhir from Police Station where the doctor found him to be conscious and oriented with normal blood pressure and pulse and he refused to give any samples and did not cooperate in the tests for Gastric St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 23 Lavage. The complainant who has been examined in the court has not given any reason why he refused such examination which was necessary to ascertain if any poisonous substance was administered to him. An adverse inference is being drawn against the complainant for the same and it is presumed that the complainant deliberately did not cooperate in the tests of Gastric Lavage as it would have exposed his lie.
Eighthly there is nothing in the testimony of the complainant to prove that any of the three accused had dishonestly taken or removed any moveable property out of the possession of the complainant. Rather, the testimony of witnesses reveal that there was a deal with regard to the purchase of house bearing no. J-1668, Jahangir Puri, Delhi. This appears to be a case of deal regarding purchase of house having gone wrong between the parties wherein the complainant has implicated the accused Raj Kumar @ Raju, Neeraj and Sushila who initially entered into an agreement between the parties and after having executed the documents of purchase, refused to sell the house. The testimony of the investigating officer PW9 ASI Mangat Ram shows that the complainant Shristidhar Pradhan has produced the photocopy of the GPA and other papers of house No. J-1668 allegedly executed by accused Raju in his name, which had been seized by him vide Ex.PW1/H. How after two years the said papers came into possession of the complainant and the circumstances under which they were seized on which the supplementary charge sheet was filed later is something whose St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 24 explanation is not forthcoming on record. The argument advanced by the accused that the complainant initially entered into an agreement with them but later changed his mind appeals to the mind.
Lastly the case of the prosecution is that that Raj Kumar was arrested from Jahangir Puri Market and Sushila was still present at her house on 28.10.2005 and was arrested from there and similarly even the accused Neeraj was arrested from his house a fact which is also evident from the arrest memos of these accused. Had the allegations of cheating and theft been correct, the accused persons would never have taken a risk of remaining present in their own house even after the incident. The fact that they were present at their house i.e. the place where the deal had been struck, also does not give credence to the story put forward by the complainant that he had been robbed of his chain, purse, motorcycle and other articles, more so, as the seizure memo of the motorcycle shows that it was abandoned later at a different place.
Technically only the seizure of currency notes i.e. sum of Rs.60,000/- from the accused Raj Kumar and Rs.50,000/- from accused Sushila and the ATM card of the wife of complainant alongwith his purse containing certain visiting cards, has been proved from the house of Raj Kumar and Sushila who are both husband and wife which recovery the accused have not been able to disprove. No explanation is forthcoming on behalf of the accused Raj Kumar and Sushila as to under what circumstances and how they came into possession of these articles belonging to St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 25 the complainant. This being so, I hereby hold that the prosecution has been able to prove that the accused Raj Kumar @ Raju Mental and Sushila were found in possession of stolen articles i.e. cash of Rs.1,00,000/-, one ATM card of UIT Bank, papers of motorcycle, visiting cards and some other papers belonging to the complainant which they retained believing to be stolen. The prosecution, however, has not been able to prove and substantiate the charges against the accused Raj Kumar @ Raju Mental and Sushila under Section 328/420/120-B/380/379 Indian Penal Code. The accused Raj Kumar @ Raju Mental and Sushila are held guilty of the offences under Section 411 Indian Penal Code for which they are accordingly convicted.
Evidence against the accused Neeraj:
In so far as the accused Neeraj is concerned, it is evident from the evidence on record as already discussed herein above (not being repeated for the sake of brevity) that the only material against the accused Neeraj is the oral testimony of the complainant. Nothing has been recovered from his possession. Further, the only allegations made against him are that he was a convict in Tihar Jail wherein he was working as Sewadar and the complainant Shristidhar Pradhan was employed as Nursery Orderly and had expressed his desire to purchase a house. According to the complainant, he was induced by the accused Neeraj to purchase the house of co-accused Raj Kumar @ Raju Mental and Sushila who are his brother and Bhabhi. As discussed St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 26 herein above the testimony of PW1 complainant does not appear convincing and credible and also does not find a corroboration from any other source. The complainant himself is a violator since the departmental rules do not permit any employee of the jail to interact with any of the convicts and to have any dealings with them. There is no recovery from the accused Neeraj. This being so, the accused Neeraj is acquitted of the charges under Sections 328/420/120-B/ 380/ 379/ 411/ 34 Indian Penal Code.
CONCLUSION:
In view of my aforesaid findings, I hereby acquit the accused Neeraj of the charges under Sections 328/420/120-B/ 380/ 379/ 411/ 34 Indian Penal Code. He be released if not wanted in any other case. Further, the accused Raj Kumar and Sushila have also been acquitted of the charges under Section 328/420/120-B/ 380/ 379/ 34 Indian Penal Code and they have been held guilty of the offence under Section 411 Indian Penal Code and accordingly convicted.
Be listed for arguments on the point of sentence in respect of convicts Raj Kumar @ Raju and Sushila at 3:00 pm. Announced in the open court (Dr. KAMINI LAU) Dated: 28.8.2010 ASJ-II(NW): Rohini St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 27 IN THE COURT OF Dr. KAMINI LAU : ADDL. SESSIONS JUDGE-II (NORTH-WEST) : ROHINI COURTS : DELHI Session Case No. 170/2006 Unique Case ID No. 02404R001752006 STATE Vs. (1) Raj Kumar @ Raju Mental, S/o Sh. Satya Kumar, R/o H.No.J-1668, Jahangir Puri, Delhi.
(2) Sushila, W/o Raj Kumar @ Raju Mental, R/o J-1668, Jahangir Puri, Delhi.FIR No. 687/05
Under Section: 420/411/380/379/328/120-B/34 Indian Penal Code Police Station: Jahangir Puri Date of Conviction: 28.8.2010 Arguments heard on: 28.8.2010 Date of Sentence: 28.8.2010 ORDER ON SENTENCE:
Vide my separate detailed judgment dictated and announced in the open court the accused before this court namely Raj Kumar @ Raju and Sushila have been held guilty of the offence under Section 411 Indian Penal Code.
They have, however, been acquitted of the charges under Section 120-B/328/ 379/ 380/420 Indian Penal Code. Further, the accused Neeraj has been acquitted of the charges St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 28 under Section 120-B/328/379/ 380/411/420 Indian Penal Code.
The case of the prosecution is that one Shrishtidar Pradhan who is working as Nursery Orderly in central Jail Tihar came into the contact of Neeraj, a convict who was a Sewadar in the Central Jail Tihar. The complainant expressed his desire to purchase a house on which Neeraj told him that he would be released on bail after a couple of days and would help him to purchase a house on reasonable rates. According to the complainant, a few days after his release Neeraj who had already entered into a conspiracy with his brother Raj Kumar @ Raju and his wife Sushila came to him and induced him to purchase a house No. J-1668, Jahangir Puri, Delhi. After seeing the house, ultimately a deal for a sum of Rs.2.5 lacs was struck and the complainant was induced to give Rs.40,000/- as earnest money to Raj Kumar @ Raju whereas the remaining amount of Rs.2,10,000/- was to be delivered on 27.10.2005. On the said date i.e. on 27.10.2005 when the complainant went to their house, the accused Sushila administered some poisonous substance mixed in tea which was offered to him on which the complainant became unconscious and as per the allegations when he regained the consciousness he found that he had been deprived of his valuable belongings i.e. Rs.1,34,000/-, motorcycle bearing no. DL-4S-AE-3256, mobile phone, golden chain and purse containing ATM card and other necessary papers. He thereafter made a complaint to the police after which he was medically examined and the allegations investigated and charge sheet was St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 29 filed against Raj Kumar @ Raju, Sushila and Neeraj under Section 420/411/380/379/328/120-B/34 Indian Penal Code. After going through the evidence adduced by the prosecution this court has acquitted the accused Neeraj from all the charges but has held the accused Raj Kumar @ Raju and Sushila only guilty of the offence under Section 411 Indian Penal Code and acquitted them of the charges under Section 120-B/ 328/ 379/ 380/420 Indian Penal Code.
This being the background, the case is now listed for arguments on the point of sentence. I have heard and considered the submissions made before me. Sh. Umesh Gupta, Ld. Legal Aid Counsel appearing on behalf of the convicts submits that the convict Raj Kumar is aged about 43 years having a family of wife i.e. convict Sushila (aged 41 years), two married daughters and two unmarried daughters. It is submitted that the convict Raj Kumar is 10th pass and was a cable operator by profession and the convict Sushila is totally illiterate. Ld. counsel has further argued that both the convicts are in in judicial custody w.e.f. 28.10.2005 i.e. for about 4 years and 10 months and have no previous record of conviction. It is prayed that a lenient view be taken against them.
Ld. Addl. PP on the other hand has vehemently argued that a strict punishment be awarded to the convicts keeping in view the allegations involved. He has argued that the convict Raj Kumar is also involved in another case bearing FIR No. 101/04, St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 30 PS Jahangir Puri, under Section 324/411 Indian Penal Code. The Ld. defence counsel has vehemently argued that the convict Raj Kumar @ Raju is not a hardened criminal and the other case bearing FIR No.101/04, PS Jahangir Puri, under Section 324/411 Indian Penal Code against the convict is the outcome of the matrimonial dispute between the convict Raj Kumar and his first wife.
Keeping in view the facts and circumstances of the case, the age of the convicts who are the husband and wife and their family background and also the fact that both the convicts are already in Judicial Custody for a period more than the maximum period of punishment as provided for the offence under Section 411 Indian Penal Code; they are sentenced to Rigorous Imprisonment for a period of three years.
Benefit of Section 428 Cr.P.C. shall be given to both the convicts Raj Kumar @ Raju and Sushila for the period already undergone by them.
The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34- 37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to both the convicts free of costs and another be attached with their jail warrants.St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 31
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 28.8.2010 ASJ (NW)-II: ROHINI St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 32 State Vs. Raj Kumar Etc. FIR No. 687/05 PS Jahangir Puri 28.8.2010 Present: Addl. PP for the State.
All the three accused are in JC with Sh. Umesh Gupta Legal Aid Counsel.
Accused Neeraj is on bail in this case (JC in another case), Vide my separate detailed order dictated and announced in the open court, the accused Raj Kumar @ Raju and Sushila have been held guilty of the offence under Section 411 Indian Penal Code. They have been acquitted of the charges under Section 120-B/328/ 379/ 380/420 Indian Penal Code.
Further, the accused Neeraj has been acquitted of the charges under Section 120-B/328/379/ 380/411/420 Indian Penal Code. He be released if not wanted in any other case.
Be listed for arguments on the point of sentence in respect of convicts Raj Kumar @ Raju and Sushila at 3:00 pm. (Dr. Kamini Lau) ASJ-II(NW)/ 28.8.2010 3:00 PM Present: Addl. PP for the State.
Convict Raj Kumar and Sushila in JC with Sh. Umesh Gupta Legal Aid Counsel.
St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 33Heard arguments on the point of sentence. Be listed for orders at 4:00 pm. (Dr. Kamini Lau) ASJ-II(NW)/ 28.8.2010 4:10 pm Present: Addl. PP for the State.
Convict Raj Kumar and Sushila in JC with Sh. Umesh Gupta Legal Aid Counsel.
Vide my separate detailed order dictated and announced in the open court, both the convicts are they are sentenced to Rigorous Imprisonment for a period of three years for the offence under Section 411 Indian Penal Code.
Benefit of Section 428 Cr.P.C. shall be given to both the convicts Raj Kumar @ Raju and Sushila for the period already undergone by them.
The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34- 37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to both the convicts free of costs and another be attached with their jail warrants.
File be consigned to Record Room.
(Dr. Kamini Lau) ASJ-II(NW)/ 28.8.2010 St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 34 St. Vs. Raj Kumar Etc, FIR No. 687/05, PS Jahangir Puri Page No. 35