Delhi District Court
State vs Raju @ Chotu Etc on 31 August, 2010
FIR No. 63/2005
State Vs Raju @ Chotu etc
Police Station Nand Nagri
Convicted Under 379/34 IPC
Section
31.08.2010
Pre: Ld. APP for the state.
Convict Raju and Kamal are in JC.
Convict Dharambir on bail.
Ld. Proxy counsel Sh. Sarvender Kumar for main counsel Sh. D C
Gautam appeared for accused Kamal and Dharamvir.
Ld. counsel Sh. K.N. Sharma, Legal Aid Counsel for convict for
Raju.
Vide separate order on sentence placed along side in the file, I
sentence the convict persons namely 1.Raju @ Chotu, 2.Dharamvir @
Kundan and 3.Kamal to undergo 3 years R.I. for the offence punishable
under section 379 /34 IPC. Benefit of section 428 Cr. P.C. be given to
them. Convict persons namely 1.Raju @ Chotu and 2.Kamal, who are
in custody be released forthwith from jail if not wanted in any other case.
Convict persons are directed to file personal bond in the sum of
Rs.5,000/- each for six months and further subject to the condition that
they will abide by the outcome of the case in future if any further
proceeding, appeal, revision etc. is filed by the State or any other person
before any court of competent jurisdiction. File be consigned to record
room.
Raj Kapoor/ ASJ-1/NE
KKD/Delhi /31.08.2010
Sessions Case no.03/07
State Vs Raju @ Chotu etc
U/s 328/379/ 34 IPC
1 /
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL
SESSIONS JUDGE-1 (North-East): KARKARDOOMA COURTS:
DELHI
FIR No. 63/2005
State Vs Raju @ Chotu etc
Police Station Nand Nagri
Convicted Under 379/34 IPC
Section
ORDER ON THE POINT OF SENTENCE
31.08.2010
Pre: Ld. APP for the state.
Convict Raju and Kamal are in JC.
Convict Dharambir on bail.
Ld. Proxy counsel Sh. Sarvender Kumar for main counsel Sh. D C
Gautam appeared for accused Kamal and Dharamvir.
Ld. counsel Sh. K.N. Sharma, Legal Aid Counsel for convict for
Raju.
During the course of arguments on the point of Order on
sentence, ld. Proxy counsel submits that convicts persons namely
Kamal and Dharamvir are very poor persons and they have already
remained in jail for about 4 ½ years. Ld. counsel again submits that
there is no previous criminal antecedents against any of convict
persons. Ld. counsel further submits that convicts are young boys
Sessions Case no.03/07
State Vs Raju @ Chotu etc
U/s 328/379/ 34 IPC
2 /
aged about 28 and 26 years old. Again ld. counsel submits that convict
Dharamvir has lost his father during the course of trial. And now he has
old widow mother to look after. On these grounds ld. proxy counsel
for convict persons namely Kamal and Dharamvir requests for
sentencing them for the period as already undergone by them during the
course of trial.
Ld. counsel Sh. K N Sharma for accused Raju submits that
convict Raju is languishing in JC since 2005. Ld. counsel further
submits that he has old widow mother to look after. It is again argued
and submitted that convict Raju is very poor person and there is no
previous criminal record against him. On these grounds ld. counsel Sh.
K. N. Sharma for accused Raju submits that convict be sentenced for
the period as already undergone by him during the course of trial.
Contrary to the submissions of ld. counsel for the convict, Ld.
APP strongly opposes the submissions of defence counsel since
offence is of very serious nature.
Keeping in view of the age, antecedents, individual and family
circumstances of convict persons, their inclinations for improving
behavior in the society and that they have already remained in JC for
more than 4 years, the court is of the considered view that it will be in
Sessions Case no.03/07
State Vs Raju @ Chotu etc
U/s 328/379/ 34 IPC
3 /
the interest of justice if convict persons are sentenced to undergo 3
years R.I. for the offence punishable under section 379 /34 IPC.
Benefit of section 428 Cr. P.C. be given to them.
Accordingly, I sentence the convict
persons namely 1.Raju @ Chotu,
2.Dharamvir @ Kundan and 3.Kamal to
undergo 3 years R.I. for the offence
punishable under section 379 /34 IPC.
Benefit of section 428 Cr. P.C. be given
to them.
Convict persons namely 1.Raju @ Chotu
and 2.Kamal, who are in custody be
released forthwith from jail if not wanted
in any other case.
ANNOUNCED IN THE OPEN
COURT ON THIS 31.08.2010
(RAJ KAPOOR)
ADDL. SESSIONS JUDGE-I/NORTH EAST
KARKARDOOMA COURTS: DELHI
Sessions Case no.03/07
State Vs Raju @ Chotu etc
U/s 328/379/ 34 IPC
4 /
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL
SESSIONS JUDGE-1 (North-East): KARKARDOOMA COURTS:
DELHI
Case ID Number. 02402R0185622005
Sessions Case No. 03/2007
Assigned to Sessions. 28.05.2005
Arguments heard on 27.08.2010
Date of order. 30.08.2010
FIR No. 63/2005
State Vs 1. Raju @ Chotu s/o Krishan Pd.,
r/o Village Mugiya Chak, Thana
Islampur, Distt. Nalanda (Bihar).
2. Dharambir @ Kundan s/o
Joginder Parasad r/o Village
Titariya, Mowa Par, Thana
Khas, Distt. Gorakhpur, U.P.
3. Kamal s/o Satyanarayan
r/o S-74/36, Harijan Camp,
Khanpur, Ambedkar Nagar,
Delhi.
4. Paan Gopal Dass @ Sandeep
s/o Mohan Dass (P.O.)
Police Station Nand Nagri
Under Section 379/328/34 IPC
JUDGEMENT
1. Briefly facts of the case are that on 12.01.2005 accused persons namely 1.Raju @ Chotu, 2.Dharmender @ Kundan, 3.Kamal and
4.Paan Gopal Dass in furtherance of their common intention hired a Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 5 / TATA 407, bearing No. DL-1LE-9071 with the intention to facilitate the commission of offence of theft of TATA 407 vehicle. The owner of the vehicle is Mahipal and driver was Monu. Accused persons hired the alleged TATA 407 from Chirag Delhi Tempo Stand on the pretext to take some goods/ articles from Sangam Vihar via Seemapuri and they had to go to Vijay Nagar, Ghaziabad, U.P. Accused persons took the vehicle in question first to Sangam Vihar, which was driven by victim Monu and took a small gas cylinder, a chair and quilt and told the driver Monu on his asking that they would lift other articles from Seemapuri. So, on the way when they reached at Railway Crossing near Shamshan Ghat, Service Road, Mandoli, Wazirabad, Delhi within the jurisdiction of police station Nand Nagri, accused persons expressed their wish to drink tea and to make a telephone call. Accused Kamal went outside the tempo and brought tea. Driver Monu took the said tea and after consuming 2 or 3 sips of the said tea he became unconscious. Thereafter, accused persons took away the vehicle TATA 407 no. DL-1LE-9071 in question dishonestly out of the possession of lawful owner without his consent. Accused persons committed the said act with the intention to commit or to facilitate the commission of an offence or knowing it to be likely that all the accused persons would thereby cause hurt to victim Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 6 / Monu.
2. In this regard, on 25.01.2005 Mahipal Singh s/o Bharat Singh (complainant) came in the Police Station and made statement to SI Kailash Chand vide Ex.PW1/A making allegations that on 12.01.2005 at about 1:30 p.m. four persons hired his tempo No.DL-1LE-9071 in Rs.1200/- from his driver Monu for taking some goods for Sangam Vihar to Seemapuri and after that to go to Vijay Nagar Ghaziabad. They served tea to the driver Monu, who after consuming tea became unconscious. On 14.01.2005, driver Monu made a call to him that the tempo has been taken away by four persons who hired the same after serving some intoxicated tea to him. He could not trace out the tempo as well as those boys. On the basis of the said statement, SI Kailash Chand made endorsement for registration of case FIR u/s 328/34 IPC vide Ex.PW6/A.
3. FIR was got registered. I.O. recorded statement of victim Monu who was driver of tempo number DL-1LE-9071 TATA 407. I.O. prepared site plan of the place, where driver Monu was served with intoxicated tea, was prepared at his instance vide Ex.PW6/B. Section 379 IPC was also added in the investigation of the present case by the I.O.
4. SI Kailash Chand received information from Crime Branch Dev Nagar that Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 7 / some boys have been arrested who had made disclosure statement of the present case. On 04.02.2005 I.O. made application for production warrant of accused persons.
5. On 07.02.2005 all the accused persons namely Raju, Dharamveer, Kamal and Paan Gopal Dass were arrested by I.O. in the present case. I.O. prepared arrest memo of all the four accused persons vide Ex.PW6/C, PW6/D, PW6/E and PW6/F and IO also recorded their disclosure statement as Ex.PW6/G, PW6/H, PW6/J and PW6/K. All the four accused persons were taken on four days police remand.
6. On 08.02.2005 all the accused persons were taken out from the lockup and pointing out memo of the place of incident were prepared at their instance. I.O. along with accused Pan Gopal Das and Raju and complainant Mahipal and Monu, along with police team went to Distt. Nava Shahar in Punjab in search of vehicle as well as accused.
7. One of the accused namely Aziz @ Kabir (already released), who was on police remand was interrogated and his disclosure statement was recorded by SI Yogesh. Accused Aziz told that he had sold out the tempo to one Debu r/o Distt. Nawan Shahar, Punjab, which was stolen from area of Police Station Nand Nagari in the Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 8 / present case. The investigation was also made regarding one mobile phone number which was already mentioned in the FIR but it was revealed that the said mobile phone did not operate in the said area. It was also revealed during investigation that said mobile phone was used in the area of Calcutta, West Bengal. Search for recovery of tempo and the person namely Debu in Punjab in different districts as per disclosure of accused Aziz was made but neither tempo could be recovered nor Debu could be arrested. On 16.02.2005 the police team came back to Delhi. Accused Aziz was released by the Ld. MM as there was no evidence against accused Aziz.
8. This case was committed to the Sessions Court on 28.05.2005 by ld. MM. After hearing arguments on charge, the ld. Predecessor of this Court framed a charge for the offences u/s 379/328/ 34 IPC against accused persons to which they did not plead guilty and claimed trial vide court order dated 12.08.2005.
9. To prove and substantiate its case the prosecution has examined 13 witnesses namely PW1 Mahipal - complainant (owner of TATA 407), Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 9 / PW2 Monu (driver of the alleged tempo as well as victim), PW3 Ct. Mahipal, PW4 ASI Vikram Singh, PW5 Ct. Raj Yadav, PW6 SI Kailash Chand, PW7 SI Yogesh Malhotra, PW8 SI Daya Chand, [Again inadvertently SI Hari Singh as been marked as PW8], PW9 HC Yashpal, PW10 Dr. Archana Sinha, the then ld.MM, PW11 Vijay Anand and PW12 HC Vijay Kumar.
10.PW1 Mahipal, complainant appeared in the witness box and deposed that he was the owner of vehicle TATA 407 bearing No.DL- 1LE-9071. On 12.01.2005 four boys came from Chirag Delhi Tempo Stand and asked his driver Monu that they wanted to hire the tempo TATA 407. He further deposed that they told his driver Monu that they have to take some articles from Sangam Vihar via Seemapuri and then they had to go to Vijay Nagar Ghaziabad, U.P. also. Therefore, the hiring charge Rs.1200/- was fixed. PW1 Mahipal proved his complaint recorded by the police at his instance vide Ex.PW1/A. He also deposed that he had accompanied the police on 09.02.2005 to Nawa Shahar, Punjab in search of accused Raju as well as of Paan Gopal and both were apprehended. Tempo was not recovered by the police despite interrogation of accused persons. This witness has been cross-examined at length by defence counsel. I have perused the Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 10 / same. I found a major contradiction with regard to the arrest of accused persons namely Raju and Paan Gopal since it is on record that Crime Branch apprehended all the four accused persons on 07.02.05, then as to how it is possible that these accused persons were searched and apprehended on 09.02.05.
11.PW2 Monu driver appeared in the witness box and he deposed that accused persons hired his tempo from Chirag Delhi tempo stand for going to Sangam Vihar and thereafter, to Seemapuri Border and ultimately to Ghaziabad for payment of Rs.1200/-. This witness has correctly identified all the accused persons who were present in the tempo. This witness has also identified accused Paan Gopal who had brought some goods such as Gas Cylinder, a chair and a quilt for loading in the tempo at Sangam Vihar and asked that rest of the goods were loaded from Seemapuri. He further deposed that at around 3:40 p.m. when the tempo reached at railway crossing Shamshan Ghat, Mandoli, Wazirabad Road, accused Kamal brought tea. On careful perusal of his testimony it reveals that after consuming tea he started to loose his sense and became unconscious. He regained his consciousness on 14.01.05 at around 6/ 6.30 a.m. and found himself in Sunder Nagari. At that time he was in a very bad condition having injury on his right hand and toe of his left foot. Some how he bagged Rs.2/- from someone and telephoned his employer about the Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 11 / incident. His employer reached to him and then matter was reported to the police. He further deposed that amount Rs.3500/- which he was having at the time of incident and tempo were found missing. This witness has been cross-examined at length. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
12.PW3 Ct. Mahesh Pal appeared in the witness box and deposed that on 02.02.2005 he recorded DD No.13 regarding arrest of four persons by crime branch. He proved the said DD. He informed about the said information to SI Kailash Chand, IO of the present case. This witness was not cross examined by ld. defence counsel.
13.PW4 ASI Vikaram Singh - duty officer appeared in the witness box and deposed that on 02.02.2005 he was posted as ASI at Police Station Punjabi Bagh. On that day, at 3:25 a.m. he received a rukka through Ct. Yashpal sent by ASI Daya Chand of Crime Branch Dev Nagar. On the basis of said rukka, he recorded FIR No.102/05 Ex.PW4/A. This witness was not cross examined by Ld. defence counsel.
14.PW5 Ct. Raj Yadav appeared in the witness box and deposed that on 08.02.2005 he was posted as Ct. in Police Station Nand Nagari. He joined Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 12 / the investigation with SI Kailash Chand and Ct. Vijay. The police party along with him and his associates namely Dharamveer, Kamal and Pan Gopal went to Distt. Nava Shahar in Punjab for search of accused persons and vehicle. No person or vehicle was recovered. This witness was not cross examined by Ld. defence counsel.
15.PW6 SI Kailash Chand Yadav appeared in the witness box and he deposed that on 25.01.2005 Mahipal Singh s/o Bharat Singh (complainant) came in the Police Station and made statement to him vide Ex.PW1/A, which was endorsed by this witness for registration of FIR u/s 328/34 IPC vide Ex.PW6/A. FIR was got registered on the basis of same. He recorded statement of Monu, who was the driver of tempo number DL- 1LE-9071 TATA 407 at the time of incident. He prepared site plan of the place of occurrence where driver Monu was served intoxicated tea at his instance and same is Ex.PW6/B. Section 379 IPC was also added in the investigation of the present case by him. He further deposed that he received information from Crime Branch Dev Nagar that some boys were arrested by crime branch and they made disclosure statements of the present case. On 04.02.2005 he made application for production warrant of accused persons. On 07.02.2005 all the accused persons namely Raju, Dharamveer, Kamal and Paan Gopal Dass were arrested by him in the present case. He prepared arrest memo of all the four accused Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 13 / persons vide Ex.PW6/C, PW6/D, PW6/E and PW6/F and he also recorded their disclosure statement as Ex.PW6/G, PW6/H, PW6/J and PW6/K. He further deposed that all the four accused persons were taken on four days police remand and they were got medically examined and brought to Police Station and put up in the lockup. On 08.02.2005 all the accused persons were taken out from the lockup and pointing out memos of the place of incident were prepared at their instance. He further deposed that he along with accused Pan Gopal Das and Raju and complainant Mahipal and Monu, driver along with police team went to Distt. Nava Shahar in Punjab in search of vehicle as well as accused. The vehicle could not be traced out nor any accused was arrested. I.O. made verification from the Transport Authority from Distt. Ropar and state crime bureau at SSP Office Ropar. This witness has been cross examined by Ld. defence counsel. I have perused the same. I found some contradictions but these do not go to the root of the case.
16.PW7 SI Yogesh Malhotra appeared in the witness box and deposed that on 14.02.2005 he was posted as In-charge Harsh Vihar Chowki. The present file was received to him for further investigation. Accused Aziz produced before the MM through production warrant. He made formal arrest of accused Aziz. He was taken on three days police remand but nothing was recovered. He further deposed that all the accused Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 14 / persons namely Raju, Dharamveer, Kamal and Paan Gopal were put for judicial TIP and all of them refused to participate in the TIP proceedings. He prepared the challan and filed the same in the court. This witness has not been cross examined by Ld. defence counsel.
17.PW7 Ct. Dhanvir appeared in the witness box and he deposed that he joined investigation of present case with SI Kailash Chand and he accompanied him along with Ct. Vijay to the Karkardooma Courts in Room No.19, where accused persons namely Raju, Dharmvir, Kamal and Paan Gopal were produced in the present case. He proved arrest memo of accused persons. He also proved disclosure statements of accused persons. He further deposed during disclosure statement it has come on record that they had given the tempo to one Debu through Aziz r/o District Nawa Shahar, Punjab. This witness was cross examined by ld. defence counsel. In his cross examination he denied that accused persons have not made any disclosure statements. No contradictory evidence has come on record.
18.PW8 SI Daya Chand appeared in the witness box and gave his examination in chief was recorded. His cross-examination was deferred. This witness did not return to the court for his cross-examination. Hence, testimony of this witness cannot be read in evidence. Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 15 / Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 16 /
19.Inadvertently, SI Hari Singh has been marked as PW8. He appeared in the witness box and deposed that on 15.02.2005 he received present case file from SI Yogesh Malhotra on the direction of SHO to investigate the present case as main I.O. SI Yogesh was out of station. He inspected the file and one of the accused namely Aziz @ Kabir, who was on police remand was interrogated by him also. His disclosure statement was earlier recorded by SI Yogesh. He further deposed that during interrogation, accused Aziz told him that he had sold out the tempo to one Debu r/o Distt. Nawan Shahar, Punjab, which was stolen from area of Police Station Nand Nagari in the present case. He further deposed that thereafter, he along with Ct. Vijay and Ct. Sukhdev took accused to Nawan Shahar, Punjab in a private vehicle for recovery of tempo. The investigation was also made there regarding one mobile phone number which was already mentioned in the FIR but it was revealed that the said mobile phone did not operate in the said area. It was revealed during investigation that said mobile phone was used in the area of Calcutta, West Bengal. He further deposed that he made search for recovery of tempo and the person namely Debu in Punjab in different districts as per disclosure of accused Aziz but neither Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 17 / tempo could be recovered nor Debu could be arrested. On 16.02.2005 the police team came back to Delhi. He further deposed that on 17.02.2005 accused Aziz was produced by him before the concerned court in Delhi. He further deposed that accused Aziz was released by the Ld. MM as there was no evidence against accused Aziz. He further deposed that on 04.03.2005 other accused persons namely Raju, Dharambir, Kamal and Paan Gopal who were already in the judicial custody in the present case were produced in the court and their JC remand was got extended from the court. All of them were identified by Monu, driver of the stolen tempo who were involved in the incident with him. He further deposed that he recorded his statement u/s 161 Cr.P.C. He identified the accused persons Raju, Dharambir and Kamal whose JC remand was got extended by him. This witness has not been cross examined by ld. defence counsel.
20.PW9 HC Yashpal appeared in the witness box and deposed that on 01.02.2005 he was posted as Ct. in Crime Branch, Dev Nagar, Delhi. On that day, he along with SI Ram Avtar, SI Daya Chand, ASI Tilak Raj, HC Vijay Pal, Ct. Virender and Inspector Mahesh Tholia left in a Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 18 / private TATA Sumo vide DD No.22 at around 9:00 p.m. for West District, Main Rohtak Road on secret information. At around 9:30 p.m. the police team reached at Manohar Park, Punjabi Bagh, one informer met HC Vijay Pal and he informed that at around 11:00 p.m. some criminals belonging to Aziz gang, who used to rob the drivers on the highways after serving them intoxicated material, would come from the side of Pira Gari and go towards Naraina Loha Mandi. He further deposed that Inspector also verified the said information from the informer. He further deposed that four/ five passersby were asked to join the raiding party but none agreed. At around 10:15p.m., a nakabandi was made by the police team on the road leading towards Punjabi Bagh from the side of Pira Gari. At around 11:25 p.m., at the instance of informer, one truck bearing No. UP- 14M-5547 LP Model, was signaled to stop. The speed of the truck was slow down by the driver and the boy who was sitting on the side of conductor jumped from the truck and started running towards left side. He further deposed that he was chased by him and apprehended and name of said boy revealed as Aziz @ Kabir. Other raiding team apprehended seven other boys who were sitting in the truck. The truck was being driven by Vijay Singh. SI Daya Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 19 / Chand interrogated those boys separately and they confessed that they had stolen said truck containing iron bars/saria from Vijay Nagar, Ghaziabad, U.P. area. They further told the police team that said truck was parked in the Mangolpuri Industrial area. They told the police team that they were going to sell the said iron bars/ saria in Naraina Loha Mandi. The names and addresses of those boys were verified by SI Daya Chand. Accused Aziz during his search was found possessing ten strips of intoxicated tablets. Each strip was containing ten tablets. He further deposed that IO prepared sealed pullanda of the intoxicated tablets and seized the same vide seizure memo already mark X-3 and seal of DCV was used upon the pullanda. He further deposed that SI Daya Chand asked him and ASI Tilak Raj to get weigh the goods of the truck. He along with ASI Tilak Raj went to Janta Dharam Kanta at Jakhira and goods were weighed there. It came to 16350 Kg. The slip of the Dharam Kanta was handed over to the IO by ASI Tilak Raj who seized the same vide seizure memo already mark X-4 which bears his signature at point A. Thereafter, IO prepared a rukka and FIR was got registered at Police Station Punjabi Bagh. He took rukka to Police Station for registration of FIR. FIR No.102/05 u/s 411/34 IPC was got registered there. He Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 20 / further deposed that he came back to the spot and handed over copy of FIR and rukka in original to the IO. Accused persons were arrested by the IO. He further deposed that IO interrogated accused Aziz and recorded his disclosure statement mark X-5 which bears his signature at point A. He further deposed that thereafter, IO SI Daya Chand made enquiries from Police Station Vijay Nagar, Ghaziabad, U.P. regarding truck No.UP-14M-5547 and it is informed that case FIR No.42/2005 u/s 406 IPC Police Station Vijay Nagar, Ghaziabad has been registered in the same Police Station. Thereafter, the case properties were deposited in the Police Station Punjabi Bagh Malkhana. Thereafter, disclosure statement of all accused persons were recorded. He further deposed that the disclosure statement of accused Pan Gopal Dass @ Sandeep is already mark - X5 which bears his signature at point A and disclosure statement of accused Kamal is already mark X-6 which bears his signature at point A-1. The disclosure statement of accused Raju @ Kalli is already mark X-7 which bears his signature at point A-2 and disclosure statement of accused Dharamveer is already mark X-8 which bears his signature at point A-3. He further deposed that in the course of disclosure statements, accused Dharamveer and Kamal disclosed that on 12.01.2005 on the direction of Aziz, they have hired one tempo TATA Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 21 / 407 from Chirag Delhi Tempo stand. After loading some articles from Sangam Vihar they proceeded to Seemapuri and after crossing Mandoli railway crossing, they got parked the said tempo on the side of road. Pan Gopal was left in the same tempo and rest of the four accused persons went to tea shop on the side of road for taking tea. They had taken tea. After that Kamal mixed a tablet in a cup of tea and went to the tempo which was parked on the side and gave the tea to PW2 Monu i.e. driver of the tempo. After some time the driver got intoxicated and they took away the tempo and threw the driver at Sunder Nagri, near kudadan (heap of dirt store). He further deposed that thereafter, IO made enquiries from Police Station Nand Nagri and came to know that case FIR No.63/2005 u/s 328/379/34 IPC Police Station Nand Nagri has been registered. Accused also disclosed that they had sold the aforesaid TATA 407 in the Punjab. He correctly identified the accused persons namely Raju @ Chotu, Dharamveer and Kamal. He further deposed that he can identify accused Pan Gopal but accused Pan Gopal is P.O. This witness was not cross examined by Ld. defence counsel.
21.PW10 Dr. Archana Sinha, Ld. ASJ who conducted TIP proceedings of accused persons proved the same vide Ex.PW10/A to PW10/F. She Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 22 / deposed that all the accused persons refused to participate in the TIP proceedings by saying that police had taken photographs and they were shown to the witnesses. This witness was not cross examined by ld. defence counsel.
22.PW11 Vijay Anand, Ahlmad in the court of Sh. Sunil Chaudhary, Ld. ACMM, Central District, Tis Hazari, Delhi deposed that FIR No.102/05 u/s 411/34 IPC is not listed in their court and same was also not pending in the list of cases of West District. He further deposed that he also enquired from Police Station Punjabi Bagh and they informed him that case was marked to SI Daya Chand, Crime Branch but the case file was not returned as per their record. This witness was also not cross examined by Ld. defence counsel.
23.PW12 HC Vijay Kumar appeared in the witness box and deposed that on 25.01.2005 he was posted at Police Station Nand Nagri, PP Harsh Vihar. On that night, he was present in the PP Harsh Vihar. SI Kailash Chand handed over a rukka to him and he went to Police Station for the registration of case. He came back to spot i.e. Shamshan Ghat, Near Mandoli Chungi where SI Kailash Chand was present along with complainant Mahipal and Monu where he handed Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 23 / over copy of FIR and rukka to IO SI Kailash. He further deposed that SI Kailash had searched the stolen tempo and also searched for accused persons but they were not traceable and IO recorded his statement there and they came back to Police Station. He further deposed that on 07.02.2005 he joined investigation of this case along with Ct. Dhanbir and IO SI Kailash. He further deposed that from Chowki they came to Court No.19 in Karkardooma Courts where I.O. enquired regarding accused persons and came to know that accused persons are being produced in the court. He further deposed that IO had moved an application to interrogate the accused persons and after getting permission of the court accused were interrogated and disclosure statement of Raju @ Chotu vide Ex.PW6/G was recorded. Accused Raju was also arrested vide arrest memo Ex.PW6/C. He further deposed that disclosure of accused Kamal was also recorded vide memo Ex.PW6/H which bears his signature at point B and accused Kamal was arrested vide arrest memo Ex.PW7/A which bears his signature at point B. Disclosure statement of accused Paan Gopal was also recorded vide memo Ex.PW6/J which bears his signature at point B and he was arrested vide memo vide Ex.PW6/E. The disclosure statement of accused Dharambir vide Ex.PW6/A was also recorded and he was arrested vide memo Ex.PW6/B. He further Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 24 / deposed that thereafter, IO had sought the police remand of accused persons for three days from court and IO had muffled the face of accused persons and they were taken to GTB Hospital for medical examination. Thereafter, accused were brought to Police Station and they were interrogated regarding case property i.e. Tempo No. DL- 1LE-9071. This witness further deposed that on 09.02.2005, they have taken the accused persons to SP Office, where they have checked the dozier in order to locate Gurmeet and other boy but they did not get any clue about them. He further deposed that thereafter, IO went to transport authority and tried to locate the motorcycle on which Debu came to bus stand but the number was not clear so the same could not be located. He further deposed that thereafter, they came back to Delhi and accused were put up in the lockup and his statement was recorded. He has correctly identified accused Raju @ Chotu, Kamal and Dharambir @ Kundan. This witness was not cross examined by Ld. defence counsel.
24.After completing the prosecution evidence, statements of accused persons u/s 313 Cr. PC were recorded. Accused persons have denied the allegations of the prosecution. They deposed that they are Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 25 / innocent and they have been falsely implicated in this case. However, they did not lead any defence evidence.
25.Arguments of ld. counsel for accused persons and ld. APP as well heard at length. Ld. counsel for accused persons argued on the following points:-
i) that no case property has been recovered from accused persons.
ii) that other witnesses are officials witnesses.
v) that no independent witness has been joined in this case.
vi) that no documentary evidence is against the accused.
On these grounds ld. counsel argued and submitted that accused are entitled for acquittal.
26.Contrary to the submissions of ld. counsel for accused persons, ld. APP argued and submitted that there is sufficient evidence on record to hold the accused persons guilty. He further argued that all the accused persons have been correctly identified by the victim PW Monu who has categorically stated that he was given some intoxicated substance mixing in a tea on 12.01.05 and after consuming the same he became unconscious and regained his Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 26 / consciousness on 14.01.05. His Tempo was missing. On these grounds ld. APP argued and submitted that accused persons be convicted.
27.Before reaching at any conclusion let the relevant section be re- produced verbatim which is as under:-
Section 328 IPC Causing hurt by means of poison, etc., with intent to commit an offence. - Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
The essential ingredients of the offence u/s 328 IPC are as follows:-
The act must be done :
a) with the intention of causing hurt;
b) with knowledge that it is likely to cause hurt; and
c) to facilitate the commission of an offence.
Sec.34 IPC
" When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
Careful perusal of the section 34 IPC reveals the following important ingredients:-
i. That there must be a criminal act.Sessions Case no.03/07
State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 27 / ii. The act must have been done by several persons in furtherance of their common intention.
28.In case 'Phino V State AIR 1975 SC 1327: 1975 Cr, L J1109' that:-
'In the absence of poison in the stomach or viscera on chemical examination, death from other causes cannot be ruled out.'
29.On perusal of all depositions of the prosecution witnesses and their cross-examinations, I have found so many minor type of contradictions and discrepancies in their statements which are attributable due to the long duration of time and memory of human being. However, in case of Jaskaran Singh Vs State 1997 SCC (Crl) 651 it was observed by Hon'ble Supreme Court in the following words:-
" When the evidence of first informant is found to be full of contradictions, exaggerations and improvements, he cannot be held to be a truthful witness" .
Taking support to the contentions of minor contradictions Hon'ble Supreme Court in case State of UP Vs Bhagwan AIR 1997 SC 3292: (1997) 1 SCC 19 made the following observations which are very relevant crucial and dominant in deciding the fate of the present case:-
" minor discrepancies in the evidence of the eye- witnesses are immaterial unless they demolished the Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC
28 / basic case of the prosecution" .
The observations made in the aforesaid two cases by the Hon'ble Supreme Court are exfacie indicative of the fact that a clear distinction be made between the major contradictions and minor contradictions when the contradictions are minor the truthfulness of the witness cannot be discredited in all and contrary to it when the contradictions are major these affect the root of the case and leave an impression of untruthfulness of the witnesses. The contradictions which I have found in this case are minor type of nature therefore, truthfulness of the witnesses PW1 and PW2 cannot be discredited in all.
30.In the instant case, careful perusal of the case file reveals that most material witnesses in this case are PW2 Monu (victim) and PW1 Mahpal - complainant. It has come on record in the testimony of PW1 and PW2 that accused persons had hired the Tempo for Rs.1200/- on the pretext for transporting some goods from Sangam Vihar via Seemapuri. It has also categorically come on record in the testimony of PW2 Monu that accused persons in furtherance of their common intention gave a tea on 12.01.2005, which was mixed with Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 29 / some intoxicated substance and after consuming the said tea PW2 Monu lost his senses and became unconscious and regained his consciousness on 14.01.2005. Both these witnesses have categorically identified the accused persons. But, I am very surprised to note here that PW2 Monu has not been got medically checked up by the I.O. to ascertain the alleged intoxicated substance. The crucial question in this case comes to stand that whether any pre or post act with regard to the giving tea to the victim, has been brought on record by the prosecution to establish the guilt of the accused persons for the offence punishable u/s 328 / 34 IPC. In this regard the pre act of the accused persons neither has been brought on record nor any material fact with regard to this incident has been proved on record. So long as the post act of the accused persons is concerned, in this regard there is no recovery of the cup of tea has been brought on record by the prosecution side nor any recovery has been effected from the accused persons in this regard. If we determine the fate of this case in light of these observations we certainly reach to the conclusion that administration of tea to the victim by the accused persons, was intoxicated, which is very crucial to establish the premises of conviction of the accused persons for the offence u/s 328 / 34 IPC. Further, the prosecution has also failed to Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 30 / bring on record the preparatory measures with regard to the collection of cup of tea and material substance contained in it which also goes to the root of this case. Besides, the person who could have been joined as a material witness in this case is owner of Tea who prepared the tea. But unfortunately neither his statement was recorded by the investigating officer nor the prosecution felt necessity to examine him as witness in this case. All these facts go to indicate something otherwise contrary to the establishment of the case against accused persons qua the victim for the offence u/s 328 IPC. Therefore, I acquit accused persons for the offence u/s 328 / 34 IPC by giving them benefit of doubt.
31.However, so long as the offence punishable u/s 379/ 34 IPC is concerned, it is proved on record that vehicle no. DL-1 LE-9071 was taken away by accused persons from Chirag Delhi Tempo Stand vide statement of PW1 Mahipal Ex.PW1/A and statement of victim Monu vide Ex.PW2/DA that on 12.01.2005 accused persons namely 1.Raju @ Chotu, 2.Dharmender @ Kundan, 3.Kamal and 4.Paan Gopal Dass (P.O.) in furtherance of their common intention hired TATA 407 bearing No. DL-1LE-9071 with the intention to facilitate the Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 31 / commission of offence of theft of TATA 407 vehicle from Chirag Delhi Tempo Stand on the pretext to take some goods/ articles from Sangam Vihar via Seemapuri and they had to go to Vijay Nagar, Ghaziabad, U.P. Accused persons took the vehicle in question to first to Sangam Vihar and took a small gas cylinder, a chair and quilt and told the driver i.e. PW2 Monu on his asking that they would lift other articles from Seemapuri. On the way when they reached at Railway Crossing near Shamshan Ghat, Service Road, Mandoli, Wazirabad, Delhi within the jurisdiction of police station Nand Nagri, accused persons expressed their wish to drink tea and to make a telephone call. Accused Kamal went outside the tempo and brought tea. Driver PW2 Monu took the said tea and after consuming 2 or 3 sips of the said tea he became unconscious. Thereafter, accused persons took away the vehicle TATA 407 no. DL-1LE-9071 in question dishonestly out of the possession of lawful owner without his consent. However, tempo has not been recovered in this, even the testimony of PW1 and PW2 cannot be ignored that accused persons had taken away the Tempo no. DL 1 L E - 9071 dishonestly out of the possession of lawful owner i.e. PW1 Mahipal, without his consent. The contradictions which I have found in this case are minor type of nature therefore, truthfulness of the witnesses PW1 and PW2 cannot Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 32 / be discredited in all in light of the judgment 'State of UP Vs Bhagwan AIR 1997 SC 3292: (1997) 1 SCC 19' (supra).
Accordingly, I acquit accused persons for the offence punishable u/s 328/ 34 IPC for the reasons as discussed above; and I convict accused persons namely 1.Raju @ Chotu,
2.Dharamvir @ Kundan and 3.Kamal for the offence punishable u/s 379/ 34 IPC for the reasons as discussed above. Accused Paan Gopal is P.O. OBSERVATIONS:
Before parting with the delivery of the judgment I would like to make a note with regard to the conduct of the IO in this case. In this case I.O. neither has got conducted medical examination of PW2 Monu - victim nor collected the evidence properly. Although this was within the discretion of Investigating Officer/ authority yet I found that communicative, implementative, adoptive and preparatory measures are inadequate as taken by the IO / authority for the collection of the evidence.
ANNOUNCED IN THE OPEN COURT ON THIS 30.08.2010 (RAJ KAPOOR) ADDL. SESSIONS JUDGE-I/NORTH EAST KARKARDOOMA COURTS: DELHI Sessions Case no.03/07 State Vs Raju @ Chotu etc U/s 328/379/ 34 IPC 33 /