Delhi District Court
State vs Ram Narayan@Sanjay on 23 February, 2024
IN THE COURT OF SH. VIRENDER KUMAR KHARTA,
ADDITIONAL SESSIONS JUDGE (FTC)02, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
In the matter of:
(Sessions case no. 577/2018)
FIR No. 139/2018
Police Station Paharganj
Chargesheet filed under Sections 328/379/411/34
Charges framed against accused 394/34 IPC & 328/34 IPC
Ram Narain @ Sanjay and Irfan
Khan.
State Versus 1. Ram Narain @ Sanjay,
S/o Late Sh. Sant Ram,
R/o Gali No. 5, Sangam Vihar,
Wazirabad, New Delhi84.
2. Irfan Khan,
S/o Sh. Ahshan Khan,
R/o H. No. A280, Gali No 25/5
Guru Nanak Nagar, Mustafabad
New Delhi.
...Accused Persons.
Date of Institution of case 09.08.2018
Date of Arguments 23.02.2024
Judgment reserved on 23.02.2024
Judgment pronounced on 23.02.2024
Decision Acquitted
JUDGMENT
1. Accused persons namely Ram Narain @ Sanjay and Irfan Khan are facing trial for the offences punishable under Sec.
FIR No. 577/2018, PS: Paharganj, State Vs. Ram Narain @ Sanjay & Anr. Page No. 1 of 29 394/34 IPC & 328/34 IPC. The story of the prosecution is that on 26.05.2018 at about 11:20 pm at Paharganj side Main Road of Exit Gate No. 2, both accused persons in furtherance of their common intention committed robbery of the Trolley Bag containing clothes, one purse containing Aadhar card, railway ticket, Rs. 6,000/ cash, wrist watch, mobile phone make Samsung containing SIM No. 9810239479 upon complainant Sh. Radhey Shyam Sharma and while committing the robbery both of them caused simple hurt to him. Further, on the abovesaid date, time and place both the accused persons in furtherance of their common intention administered some intoxicating/stupefying or unwholesome drug or thing to complainant Sh. Radhey Shyam Sharma in a cold drink (Maaza) with a view to rob him.
2. The brief facts which are born out from the record of the case are that on 26.05.2018, complainant Sh. Sanjeev Dogra visited PS NDRS and gave a complaint regarding missing of his relative Sh. Radhey Shyam Sharma. On the basis of his complaint, ASI Shibu made inquiry and prepared Tehrir for the registration of case. Since the place of incident had occurred was in the jurisdiction of PS Paharganj, a zero FIR was registered in PS NDRS. On receiving call from RML Hospital regarding admission of injured Radhey Shyam Sharma, his son and ASI Shibu went to the hospital where it revealed that Sh. Radhey Shyam was brought by PCR Van to Deep Chand Bandhu Hospital from near Kanhaiya Nagar Metro Station and later on he FIR No. 577/2018, PS: Paharganj, State Vs. Ram Narain @ Sanjay & Anr. Page No. 2 of 29 was referred to RML Hospital.
3. On 28.05.2018, IO/ASI Abhay Raj received zero FIR, which was registered at PS NDRS, by the order of SHO PS Paharganj and on the basis of which he got registered the present FIR No. 139/2018 under Sec. 328/379 IPC at PS Paharganj and investigation of this case was entrusted to him. During investigation, he along with relative of injured Radhey Shyam Sharma went to BLK Hospital where injured met him. IO recorded his statement wherein he narrated about incident of robbery of his belongings i.e. trolly bag, wrist watch, mobile phone, purse containing Aadhar card, Railway ticket, driving license and Rs. 6,000/ in cash by administering intoxicating/stupefying drug or other thing in a cold drink by accused persons on the way to Vikaspuri in TSR. IO also collected parcel of exhibits along with sample seal of injured from RML Hospital. In the meantime, IO received DD No. 16PP Sagatrashan regarding the arrest of accused persons namely Irfan and Ram Narain @ Sanjay of this case in case FIR No. 194/2018, PS Sarai Rohilla wherein the case property of this case was also recovered from their possession. Thereafter IO reached PS Sarai Rohilla and collected the copy of documents of case FIR No. 194/2018 including disclosure statements of accused persons. On 30.05.2018, IO got issued production warrants against both accused persons from Ld. Concerned Court and he alongwith Ct. Harish visited Mandoli Jail where he interrogated both the accused persons, with permission of Jail Superintendent. On FIR No. 577/2018, PS: Paharganj, State Vs. Ram Narain @ Sanjay & Anr. Page No. 3 of 29 confessing their guilt and involvement in this case, IO arrested them in the present case and recorded their disclosure statements. IO also moved application for TIP of accused persons but Ld. Court observed that there was no need of TIP as both accused persons had been produced before the court in un muffled face. During investigation, IO collected MLC and other medical documents of the injured Radhey Shaym Sharma from concerned hospitals and sent the parcels of the exhibits/case property to FSL, Rohini. IO also took out three photographs of incident from the CCTV camera wherein accused persons were seen while carrying case property/belongings of injured while sitting in TSR. He also examined owner of TSR i.e. wife of accused Ram Narain @ Sanjay. He also got transferred the case property which was lying in PS Sarai Rohilla to PS Paharganj and seized the same. During the investigation, the CAF, CDR and location ID charts of the mobile phones used by the accused persons were collected by the IO. On completion of investigation, chargesheet was filed by the IO before the Court through the SHO.
4. Vide order dated 0 2 . 0 8 . 2 0 1 8 , copy of the charge sheet under Section 207 Cr.P.C was supplied to the accused and the case was committed to the Court of Sessions under Sec. 209 Cr.P.C.
5. Vide order dated 31.08.2018 the Ld. Predecessor Court was pleased to frame charges under Sec. 394/34 IPC & 328/34 IPC against both the accused persons namely Ram Narain @ FIR No. 577/2018, PS: Paharganj, State Vs. Ram Narain @ Sanjay & Anr. Page No. 4 of 29 Sanjay and Irfan Khan, to which they pleaded not guilty and claimed trial.
6. To prove its case, prosecution has examined 23 witnesses. The testimonies of presecution witnesses along with its nature has been discussed briefly in the following paragraphs.
7. PW1 HC Satish Kumar, is the Duty Officer at PS Paharganj who proved copy FIR No. 139/2018, Ex. PW1/A and endorsement on rukka (which was prepared by ASI Abhay Raj on the computerized copy of zero FIR No. 292 dated 26.05.2018, PS NDRS), vide DD No. 30A, Ex. PW4/B. He also proved certificate under Sec. 65B of The Evidence Act, Ex. PW1/C. In his crossexamination, he admitted that all the pages of FIR do not bear his signature and his signature appears only on the last page. He denied the suggestion that FIR bearing no. 139 of the present case is manipulated and ante time FIR.
8. PW2 Sh. Sanjeev Dogra, is the brotherinlaw of injured/victim Radhey Shyam Sharma on whose complaint, zero FIR was registered at PS NDRS. He deposed that on 22.05.2018, his brotherinlaw Sh. Radhey Shyam Sharma was travelling by train from Udhampur to Delhi and he alighted on New Delhi Railway Station at 11:00 am and thereafter he was not traceable. He further deposed that on the same day at about 06:00 pm, he contacted New Delhi Railway Station Police and they had shown him the CCTV footage in which injured/victim Radhey Shyam Sharma was seen standing outside the station and a three wheeler FIR No. 577/2018, PS: Paharganj, State Vs. Ram Narain @ Sanjay & Anr. Page No. 5 of 29 stopped there and one of the person took his luggage and boarded in it along with him. He further deposed that at about 08:00 08:15 pm his sister received call from RML Hospital that a person is lying unconscious and after few time he regained his consciousness and thereafter he had taken the phone number to inform family. His complaint Ex. PW2/A in this regard was recorded by ASI Sibhu at PS NDRS. In his crossexamination, he deposed that he cannot identify the accused persons as the boys seen by him in CCTV footage. He also admitted that he did not have any personal knowledge that his brotherinlaw alighted at New Delhi Railway Station at about 11:00 am neither he had personal knowledge that he was not traceable thereafter. He also deposed that except his complaint Ex. PW2/A, police had not recorded his any statement. He further deposed that police had not called him or joined him in any investigation after receiving complaint from him. He denied the suggestion that the complaint and FIR got registered by them is false and manipulated.
9. PW3 HC Rajvir Singh, is the Duty Officer at PS New Delhi Railway Station, who deposed that after receiving rukka by ASI V. R. Shibu he registered the zero FIR, Ex. PW3/A as incident had not taken place within the jurisdiction of PS New Delhi Railway Station. In his crossexamination, he admitted that he had not issued certificate under Sec. 65B in respect of the zero FIR and complainant along with ASI Shibu came in Duty Officer Room.
10. PW4 Sh. Radhey Shyam Sharma, is the victim/injured FIR No. 577/2018, PS: Paharganj, State Vs. Ram Narain @ Sanjay & Anr. Page No. 6 of 29 in the present case. He deposed that on 25.05.2018, he boarded the train from Udhampur, Jammu Kashmir to Delhi and on 26.05.2018 at around 11:00 am his train reached at New Delhi Railway Station and he came outside the station towards Paharganj side. He further deposed that at that time he was carrying a trolly bag and one carton and while he was in process of hiring auto for Vikaspuri, Auto driver told him that one person also wanted to go Uttam Nagar and he would share the auto fare. He also deposed that he got ready for same. He further deposed that when they reached at Pusa Road, the another person who was sitting with him asked to stop the auto as he was thirsty and he brought water bottle, plastic glass and cold drink Maaza from nearby kiosk. He also deposed that said person offered him the small quantity of cold drink in a glass but he refused to take it by saying that he did not drink cold drink due to sugar problem and he requested the said person to give the same to driver but he insisted him to take small quantity thereafter he took 23 sips of said cold drink and after a moment he became unconscious. He further deposed that when he regained consciousness he found himself in B. L. Kapoor Hospital and came to know that all his belongings i.e. trolly bag, his wrist watch, mobile phone make Nokia, carton bag and purse containing Rs. 4,0005,000/ and some documents like Aadhar Card, Driving License were stolen. He also correctly identified the accused persons and case properties in the court. Ld. Addl. PP for the state put a leading question to this witness to which witness admitted that his FIR No. 577/2018, PS: Paharganj, State Vs. Ram Narain @ Sanjay & Anr. Page No. 7 of 29 Aadhar Card and driving license, railway ticket were kept in his purse at the time of travelling. He was not sure that Rs. 6,000/ were kept in purse. He also admitted that he was carrying his mobile phone make Samsung whose screen was not working. His further examinationinchief was deferred for want of case property i.e. mobile phone on 16.05.2019, thereafter this witness could not be further examined and crossexamined on behalf of accused persons as he had already expired.
11. PW5 Sh. Manoj, deposed that he was working as Recovery Agent for the last 1819 years and his company had financed an Auto vide registration no. DL 1RK 5333. He further deposed that the hirer of the auto was Ram Singh and same was financed through Gurmeet Auto. He further deposed that after payment of all installments, their company handed over NOC & Form35 to hand over the same to Ram Singh. This witness was crossexamined on behalf of Ld. Addl. PP for the State as he was resiling from his previous statement in which he admitted that IO of the case met him and inquired from him and recorded his statement. He denied the suggestion that he had stated to the Police in his statement under Sec. 161 Cr.PC for the purpose of removing the HP, he had visited house of Ram Singh at WZ6, Gali No. 8, Krishna Park, Delhi several times, where he did not find Ram Singh and during inquiry neighbours had told that Ram Singh was not residing there and he had vacated the house and his present whereabouts were not known. This witnesses was also confronted with his statement recorded under Sec. 161 FIR No. 577/2018, PS: Paharganj, State Vs. Ram Narain @ Sanjay & Anr. Page No. 8 of 29 Cr.PC, Ex. PW5/A . In his crossexamination, he admitted that he being recovery agent he had nothing to do with the vehicle financed, if entire payment has been made. He also admitted that entire payment with respect to vehicle no. DL 1RK 5333 was made even before 21.02.2009. He also admitted that after 21.02.2009, company had nothing to do with vehicle no. DL 1RK 5333 and he had never visited the house of Ram Singh since 21.02.2009.
12. PW6 Sh. Gurmeet Singh, deposed that he was running a shop of sale purchase of the three wheelers in Azad Market at Shop No. 410, Shivaji Road in the name of Gurmeet Auto Deal for 1012 years. He further deposed that he had given a loan of Rs. 60,000/ to Smt. Krishna Devi wife of accused Sanjay Kumar, however, he did not recollect the date or month but it was about five years ago. He also deposed that she hypothecated NOC, RC of TSR bearing registration no. DL 1RK 5333 and she returned loan amount within one years and he returned the documents. He did not remember name of registered owner of TSR. This witness was crossexamined by Ld. Addl. PP for the State on the ground that he was not disclosing complete facts and more particularly about registered owner of TSR and date of loan. In which, witness stated that he cannot admit or deny whether he had given loan to wife of accused Sanjay in the year 2009. He admitted that Smt. Krishna Devi was the registered owner of said TSR. In his crossexamination, he admitted that accused Sanjay had not concerned in the transaction with him FIR No. 577/2018, PS: Paharganj, State Vs. Ram Narain @ Sanjay & Anr. Page No. 9 of 29 and he never met him regarding said transaction. He also deposed that loan amount of Rs. 60,000/ was paid to wife of accused Sanjay in cash. He also deposed that he was not in position to produce any document to prove that the said Krishna Devi is wife of accused Sanjay. He denied the suggestion that he had deposed regarding auto number on the instruction of police and he had no knowledge regarding said auto.
13. PW7 ASI Rampal, deposed that on 26.05.2018, he was posted at PS Keshavpuram and on that day on receiving DD No. 16A, Ex. PW7/1 he reached Metro Pillar No. 217, near Inderlok Metro Station where he came to know that a person who was lying there unconscious condition had been shifted to Deep Chand Bandhu Hospital, Ashok Vihar by PCR. He further deposed that he reached Deep Chand Bandhu Hospital where MLC No. 7247/18 dated 26.05.2018 in the name of one unknown was found and it was revealed that injured had been referred to RML Hospital. He further deposed that he reached RML Hospital where he came to know the name of injured as Radhey Shyam who was found under treatment. He further deposed that on 29.05.2018, ASI Abhay Raj from PS Paharganj visited PS Keshavpuram to whom he handed over the MLC and DD No. 16A. This witness was not crossexamined on behalf of accused persons despite opportunity given to them.
14. PW8 ASI Shibu V.R., deposed that on 26.05.2018 complainant Sh. Sanjeev Dogra visited PS NDRS and got his complaint, Ex. PW2/A recorded. He further deposed that on the FIR No. 577/2018, PS: Paharganj, State Vs. Ram Narain @ Sanjay & Anr. Page No. 10 of 29 basis of his complaint, he prepared tehrir, Ex. PW8/1 and got the zero FIR registered at PS NDRS as the place where incident had occurred was in the jurisdiction of PS Paharganj. He also visited RML Hospital where injured was found unfit for statement, thereafter, a separate FIR was registered at PS Paharganj and investigation was conducted by IO of PS Paharganj. This witness was also not crossexamined on behalf of accused persons despite opportunity given to them.
15. PW9 Dr. Ankur Kumar, SR (General Medicine), deposed that on 26.05.2018 he had collected the gastric lavage of one patient unknown (Radhey Shyam), vide documents Ex. PW 9/1 and Ex. PW9/2 and handed over the same to police in sealed condition. This witness was not crossexamined on behalf of accused persons despite opportunity given to them.
16. PW10 Ms. Laxmi, Record Clerk, RML Hospital, proved the medical record of treatment of patient namely Radhey Shyam, Ex. PW10/1 at RML Hospital. This witness was also not crossexamined on behalf of accused persons despite opportunity given to them.
17. PW11 Sh. Gaurav Singh, Medical Record Technician, B. L. Kapoor Memorial Hospital, proved the medical record of the treatment of patient namely Radhey Shyam Sharma and discharge summary from B. L. Kapoor Memorial Hospital as Ex. PW11/1 (36 pages). This witness was also not crossexamined on behalf of accused persons despite opportunity given to them.
FIR No. 577/2018, PS: Paharganj, State Vs. Ram Narain @ Sanjay & Anr. Page No. 11 of 29
18. PW12 ASI Rajeshwari, proved the DD No. 16A dated 26.05.2018, Ex. PW7/1 recorded at PS Keshavpuram. This witness was also not crossexamined on behalf of accused persons despite opportunity given to them.
19. PW13 Sh. Ashish Arya, deposed that on 16.07.2018 he was present in his office at 150, Amrit Kaur Market, opposite New Delhi Railway Station, Paharganj and at about 12 noon 01:00 pm police visited his office to see CCTV footage. He further deposed that he could not transfer the footage, however, he clicked three photographs, Mark P1 (colly) and transferred the same to IO. He also deposed that in the said photographs, one auto rickshaw was visible and in the said autorickshaw driver and two other persons were sitting. This witness was examined by Ld. Addl. PP for the State in which he stated that he cannot admit or deny the suggestion that the CCTV footage was of 26.05.2018 as the same is four years old and he can tell only approximate date and not the exact date. He admitted that the said CCTV footage is pertaining to some date near to 26.05.2018. In his crossexamination, he deposed that no notice under Sec. 91 Cr.PC was given by Police and he was not able to recollect the mobile number of IO on which he had sent the photographs MarkP1 and he had no personal knowledge regarding this case.
20. PW14 ASI Brahm Pal, is the Duty Officer at PS Sarai Rohilla who proved the FIR No. 194/2018, Ex. PW14/1 registered at PS Sarai Rohilla. In his crossexamination, he FIR No. 577/2018, PS: Paharganj, State Vs. Ram Narain @ Sanjay & Anr. Page No. 12 of 29 deposed that FIR was registered on the basis of rukka which was produced by SI Devender. He further deposed that he did not know from where said rukka was brought.
21. PW15 HC Arun, deposed that on 22.06.2018, he had taken the exhibits from Malkhana vide RC No. 73/21/2018 along with sample seal for depositing the same in FSL, Rohini and after depositing the same he handed over the acknowledgment to Malkhana Moharir. His further examinationinchief was deferred for want of FSL receipt and Road Certificate on 28.07.2022 and this witness could not be crossexamined as the PE was closed.
22. PW16 HC Harish Kumar, deposed that on 01.06.2018 he alongwith IO/ASI Abhay Raj gone to Mandoli Jail where IO/ASI Abhay Raj interrogated both the accused persons and on their disclosure about involvement in this case, IO arrested accused Ram Narain @ Sanjay vide arrest memo Ex. PW16/1 and Irfan Khan vide arrest memo Ex. PW16/2. IO also recorded their disclosure statement, Ex. PW16/3 & Ex. PW16/4 respectively. In this crossexamination, he denied the suggestion that accused had not given any disclosure statement.
23. PW17 WCt. Komal, is DD Writer as PS Paharganj who recorded DD No. 16 PPST, Ex. PW17/1. This witness was also not crossexamined on behalf of accused persons despite opportunity given to them.
24. PW18 Ct. Vivek Tomar, deposed that on 05.06.2018 he FIR No. 577/2018, PS: Paharganj, State Vs. Ram Narain @ Sanjay & Anr. Page No. 13 of 29 gone to PS Sarai Rohilla vide Road Certificate No. 67/21/18, Ex. PW18/1 and obtained sealed pullandas sealed with 'NKS' containing driving license of Radhey Shyam Sharma, Aadhar card, purse and photo from MHC(M), which was seized by IO vide seizure memo Ex. PW18/2. In his crossexamination, he did not remember as to MHC(M) of PS Sarai Rohilla had given him any sample seal or not. He also did not remember whether any DD entry was made in PS Sarai Rohilla regarding collection of case property.
25. PW19 Retd. SI Abhay Raj is the Investigating Officer of the present case. He deposed that on the basis of zero FIR which was registered at PS NDRS, he got recorded the present FIR at PS Paharganj. He further deposed that he along with relative of injured Radhey Shyam Sharma went to BLK Hospital where he recorded his statement. He also deposed that on 29.05.2018 he went to PS Keshavpuram and recorded the statement of intial IO to which DD regarding injured Radhey Shayam Sharma was found lying unconscious condition in the ares of PS Keshavpuram was assigned and seized the parcel of exhibit along sample seal of injured from RML Hospital vide seizure memo Ex. PW19/A. He further deposed that on receiving DD No. 16PP Sagatrashan regarding the arrest of accused persons namely Irfan and Ram Narain @ Sanjay of this case in case FIR No. 194/2018, PS Sarai Rohilla and recovery of case property of this case he reached PS Sarai Rohilla and collected the copy of documents of case FIR No. 194/2018 including disclosure statements of FIR No. 577/2018, PS: Paharganj, State Vs. Ram Narain @ Sanjay & Anr. Page No. 14 of 29 accused persons. He further deposed that on 30.05.2018, he got issued production warrants against both accused persons from Ld. Concerned Court and he alongwith Ct. Harish visited Mandoli Jail where he interrogated both the accused persons, with permission of Jail Superintendent. He further deposed that on confessing their guilt and involvement in this case, he arrested accused Ram Narain @ Sanjay and Irfan Khan vide arrest memo Ex. PW16/1 and Ex. PW16/2 and recorded their disclosure statement vide memo Ex. PW16/3 & Ex. PW16/4 respectively. He further deposed that he also moved application for TIP of accused persons but Ld. Court observed that there was no need of TIP as both accused persons had been produced before the court in unmuffled face. During investigation, he collected MLC and other medical documents of the injured Radhey Shaym Sharma from concerned hospitals and sent the parcels of the exhibits/case property to FSL, Rohini. He also took out three photographs, Mark P1 (colly) of incident from the CCTV camera He also examined owner of TSR i.e. wife of accused Ram Narain @ Sanjay and got transferred the case property which was lying in PS Sarai Rohilla to PS Paharganj and seized the same. He also correctly identified the accused persons in the Court. This witness was crossexamined at length on behalf of accused persons. In his crossexamination, he admitted that he had not seized the case property from the possession of accused persons. He also admitted that he had not taken the injured to the place where offence in question was committed against him and he had FIR No. 577/2018, PS: Paharganj, State Vs. Ram Narain @ Sanjay & Anr. Page No. 15 of 29 not prepared any site plan. He denied the suggestion that both accused persons were falsely implicated in this case to solve the unsolved cases pending in their Police Station.
26. PW20 HC Sheoraj, is the MHC(M) of PS Sarai Rohilla who brought the register no. 19 & 21 with respect to FIR No. 194/2018, PS Sarai Rohilla. He proved the entries made by the then MHC(M) in register no. 19 and 21 exhibit as Ex. PW20/A and Ex. PW20/B. In his crossexamination he deposed that he did not have any personal knowledge about this case.
27. PW21 HC Krishan Kumar deposed that on 27.09.2018 he joined the investigation of case FIR No. 194/2018, PS Sarai Rohilla along with IO/SI Narender. He further deposed that on the pointing of secret informer, IO/SI Narender apprehended three accused persons namely Ram Narain @ Sanjay, Irfan and Naeem from TSR bearing registration no. DL 1RK 5333 in front of Red Fort. He further deposed that on formal search of accused persons, one strip of Lorazepam Ativan 2 mg wrapped in a paper was recovered from each of the accused persons. He further deposed that on interrogation, all the accused persons confessed their involvement in case FIR No. 194/2018, thereafter IO/SI Narender arrested the accused persons, conducted their personal search and recorded their disclosure statements. He further deposed that accused Ram Narayan @ Sanjay got recovered Driving License of victim of this case Sh. R. S. Sharma from his almirah lying in his house. He also deposed that accused Irfan also got recovered Aadhar card of victim Sh. R. S. Sharma, ten FIR No. 577/2018, PS: Paharganj, State Vs. Ram Narain @ Sanjay & Anr. Page No. 16 of 29 photographs and one railway ticket of Shiv Shakti Express. He also deposed that case properties of present case was seized by SI Narender in case FIR No. 194/2018. In his crossexamination, he deposed that no neighbour was called during alleged recovery from the house of accused. He further deposed that he did not know who was registered owner of TSR bearing registration no. DL 1RK 5333. He denied the suggestion that he never joined the investigation of case FIR No. 194/2018 PS Sarai Rohilla or that he was deposing falsely.
28. PW22 Dr. Amit Prakash, Specialist (Pediatrics), Deep Chand Bandhu Hospital, Ashok Vihar, Delhi proved the MLC, Ex. PW22/A through which one male, aged about 55 years were examined by him. He also deposed that as per MLC, patient was in semi conscious state, vitals were stable, there was abrasion on right side of neck and no other external injuries were present. He also opined nature of injury was 'simple'. In his cross examination, he deposed that no reason had been recorded as to why the patient was unconscious. He admitted that there was overwriting on the date of arrival in MLC. He also admitted that there is no mentioning about previous medical history of patient in MLC. He denied the suggestion that MLC Ex. PW22/A was not prepared by him or he was not present at the time of preparing the MLC.
29. PW23 SI Narender Singh, is the IO of case FIR No. 194/2018 of PS Sarai Rohilla, during which investigation, accused persons namely Ram Narain @ Sanjay and Irfan were FIR No. 577/2018, PS: Paharganj, State Vs. Ram Narain @ Sanjay & Anr. Page No. 17 of 29 arrested. He deposed that on the lines of PW21 HC Krishan Kumar and proved the arrest memo of accused Ram Narain @ Sanjay and Irfan as MarkE and MarkF, seizure memo of Ativan 2mg tables from their possession, MarkC, their disclosure statement vide memo MarkG and MarkH respectively in case FIR No. 194/2018. He also deposed that accused Irfan got recovered on black wallet containing Aadhar card of victim Sh. R. S. Sharma, 10 passport size photographs and one railway ticket from Udhampur to Delhi, which was seized by him vide seizure memo MarkB. He further deposed that accused Ram Narain @ Sanjay also got recovered one driving license of Sh. R. S. Sharma from his house which was seized by him vide seizure memo MarkA. He further deposed that one TSR bearing DL 1RK 5333 was also taken in possession from the accused persons vide seizure memo MarkD. He also deposed that case property pertaining to this case was transferred to PS Paharganj vide RC, Ex. PW18/1. In his crossexamination, he admitted that no neighbour was called during alleged recovery from the house of accused persons. He further deposed that on the disclosure of accused persons, he intimated the concerned Police Stations. i.e. Kashmere Gate and Paharganj that the accused persons had been arrested in case FIR No. 194/2018, PS Sarai Rohilla as they have disclosed about their involvement in the abovementioned case FIRs. He denied the suggestion that with the connivance with the other Police Station they implicated both the accused persons in false and fabricated FIRs.
FIR No. 577/2018, PS: Paharganj, State Vs. Ram Narain @ Sanjay & Anr. Page No. 18 of 29
30. Prosecution Evidence in this case was closed vide order dated 08.02.2024 as the complainant in the present case had already expired who could not be examined on behalf of accused persons and the remaining witnesses were formal in nature.
31. After closing of Prosecution Evidence, separate statement of both the accused persons were recorded under Sec. 313 Cr.PC, wherein they denied all the charges against them. They stated that they are innocent and IO has falsely implicated in the present case. Accused Irfan stated that he had been falsely implicated by the Police to prove their false case. He further stated that he had no concern with the present case. Accused persons did not lead any defence evidence.
32. Final arguments were advanced by Sh. Pankaj Kumar Ranga, Ld. Addl. PP for the State and Sh. N. K. Jauli, Ld. Legal Aid Counsel for accused Ram Narain @ Sanjay and Sh. M. N. Khan, Ld. Counsel for accused Irfan.
33. Ld. Addl. PP for the State argued that the prosecution has proved its case beyond reasonable doubt and all the prosecution witnesses have supported the prosecution story and have corroborated each other's version. To substantiate his submissions, he argued that complainant/victim PW4 Sh. Radhey Shyam Sharma has completely supported the prosecution case and he has correctly identified the accused persons in the court but he could not be examined further due to his death. He further argued that PW2 Sh. Sanjeev Dogra has also FIR No. 577/2018, PS: Paharganj, State Vs. Ram Narain @ Sanjay & Anr. Page No. 19 of 29 corroborated the prosecution story. He also argued that the IO as well as other police officials have proved the proceedings conducted by them during the investigation of the present case. He also argued that since the prosecution has proved its case against accused persons beyond reasonable doubt, both the accused persons should be convicted for the offences punishable under Sec. 394/34 & 328/34 IPC.
34. Per Contra Ld. Legal Aid Counsel and Ld. Defence Counsel for accused persons argued that the prosecution has miserably failed to prove its case beyond reasonable doubt. To substantiate their point, they argued that the investigation in the present case has been conducted in an arbitrary manner. They further argued that PW-4 Sh. Radhey Shyam Sharma was examined and his examination-in-chief was deferred for want of case property and he could not be cross-examined on behalf of accused persons and hence his testimony cannot be read in evidence against the accused persons. They further argued that no eyewitnesses of the alleged incident has been examined as PW. They further argued that none of the prosecution witness has seen PW-4 Sh. Radhey Shyam Sharma in the company of accused persons. They further argued that no admissible evidence has been brought on record by the prosecution and hence both accused persons should be acquitted under Sec. 394/34 IPC & 328/34 IPC.
35. In the present case, charges under Sec. 394/34 IPC & 328/34 IPC have been framed against both the accused persons.
FIR No. 577/2018, PS: Paharganj, State Vs. Ram Narain @ Sanjay & Anr. Page No. 20 of 29 These Sections have been elaborated as under:
328. 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.
394. Voluntary causing hurt in committing robbery.
If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery shall be punished with imprisonment or with rigorous imprisonment for a term which may extend to 10 years and shall also be liable to fine.
34. Acts done by several persons in furtherance of common intention.
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.
36. I have thoughtfully considered the arguments advanced, perused the material available on record, scrutinized the evidence led by the prosecution and gone through the relevant provisions of law. I have also considered the judgments relied upon by the Ld. Addl. PP for the State as well as Ld. Legal Aid Counsel and Ld. Counsel for accused persons.
FIR No. 577/2018, PS: Paharganj, State Vs. Ram Narain @ Sanjay & Anr. Page No. 21 of 29
37. PW-4 Sh. Radhey Shyam Sharma is the victim as well as the sole eyewitness of the alleged incident in the present case. He has narrated the entire incident in detail and he has also identified both the accused persons in the court. However, his examination- in-chief was deferred for want of case property i.e. mobile phone on 16.05.2019 but thereafter he could not be examined as PW as he had already expired. Since PW-4 Sh. Radhey Shyam Sharma has not been cross-examined on behalf of accused persons and they have not brought any opportunity to cross-examine him, the testimony of PW-4 Sh. Radhey Shyam Sharma cannot be read in evidence against them.
38. PW-2 Sh. Sanjeev Dogra is the complainant in the present case. He is the relative of victim PW-4 Sh. Radhey Shyam Sharma. PW-2 Sh. Sanjeev Dogra had given the complaint regarding missing of PW-4 Sh. Radhey Shyam Sharma on the basis of which the FIR in the present case was registered. He had identified PW-4 Sh. Radhey Shyam Sharma through the CCTV footage, however, he could not identify the accused persons through the said CCTV footage. In his cross-examination, he specifically deposed that he cannot identify the accused persons present in the court as the said boys were seen by him through CCTV footage. He also admitted that when he had seen the CCTV footage the face of the boy was not clearly visible. Thus, complainant PW-2 Sh. Sanjeev Dogra has not deposed anything against the accused persons who are facing trial in the present case.
39. The Investigating Agency has not examined any FIR No. 577/2018, PS: Paharganj, State Vs. Ram Narain @ Sanjay & Anr. Page No. 22 of 29 independent witness who could have seen PW-4 Sh. Radhey Shyam Sharma in the company of accused persons on the date of incident. Thus, there is no independent evidence through which the prosecution can prove that PW-4 Sh. Radhey Shyam Sharma was taken away by the accused persons along with them in the alleged TSR on the date of incident.
40. The TIP of accused persons was refused by the Ld. MM on the ground that the accused persons were produced before the court without muffled face. Thus, the identity of accused persons could not be established even through the judicial TIP.
41. PW-2 Sh. Sanjeev Dogra has deposed that he was shown the CCTV footage by ASI Shibu in which he had seen his relative PW-4 Sh. Radhey Shyam Sharma boarding the TSR alongwith one person. No such CCTV footage has been collected by the Investigating Agency in which the alleged incident of taking away PW-4 Sh. Radhey Shyam Sharma by the accused persons was recorded nor the said CCTV footage has been sent to the FSL for comparison of the faces of accused persons with the faces of alleged persons seen in the CCTV footage to establish their identity. PW-13 Sh. Ashish Arya deposed that he had shown the CCTV footage regarding the incident to the police but he could not transfer the footage and he had clicked the photographs and had transferred the same. He has identified the said three photographs Mark as P-1 at the time of recording of his testimony in the court. However, he admitted that he had not issued any certificate under Sec. 65B of The Evidence Act with respect to the photographs Mark P-1. Thus, the said photographs FIR No. 577/2018, PS: Paharganj, State Vs. Ram Narain @ Sanjay & Anr. Page No. 23 of 29 cannot be read in evidence against the accused persons. Moreover, the faces of persons seen in photographs Mark-P-1 are not clearly visible and hence the identity of any persons seen in the said photographs has not been established by the prosecution. One TSR is also visible in photographs Mark-P-1, however, the registration number of the TSR is not visible and hence the identity of the TSR in which PW-4 Sh. Radhey Shyam Sharma was taken by the accused persons has not been established. This raises serious doubt on the prosecution story.
42. Victim PW-4 Sh. Radhey Shyam Sharma deposed that when the Auto reached at Pusa Road, the person who was sitting with him asked to stop the Auto as he was feeling thirsty. He further deposed that thereafter the said person went to nearby kiosk and brought a water bottle, plastic glass and cold drink make Maaza. IO has not examined the owner of the abovesaid Kiosk to establish the fact that the abovesaid articles were purchased by the accused persons from the abovesaid Kiosk or that PW-4 Sh. Radhey Shyam Sharma was also present with them. Moreover, no investigation has been conducted by the IO to trace the source of the stupefying substance which was used by the accused persons in the cold drink offered to the victim by them. In these circumstances, it cannot be said that any stupefying substance was administered to PW-4 Sh. Radhey Shyam Sharma by the accused persons. It raises serious doubt on prosecution story.
43. As per prosecution story one driving license of victim PW- 4 Sh. Radhey Shyam Sharma was recovered from possession of FIR No. 577/2018, PS: Paharganj, State Vs. Ram Narain @ Sanjay & Anr. Page No. 24 of 29 accused Ram Narain @ Sanjay and one purse containing Aadhar card PW-4 Sh. Radhey Shyam Sharma along with 10 passport size photographs and one railway ticket were recovered from possession of accused Irfan Khan during the case FIR No. 194/18 PS Sarai Rohilla. The recovery of the case property has to be proved by the prosecution beyond reasonable doubt in compliance with the law laid down in this regard by Hon'ble Supreme Court of India. Section 27 of Indian Evidence Act is an exception to Section 25 and Section 26 of the said act. Section 27 is based on the doctrine of confirmation by subsequent events. The principle u/s 27 of Indian Evidence Act is based on the principle that if any fact is discovered on the basis of disclosure statement of accused, the discovery of said fact is a guarantee that the information given by the accused in his disclosure statement is true. Such information may be confessional or non- inculpating in nature but if any new fact is discovered from such information it will be considered as a reliable information.
44. The fact discovered on the basis of disclosure of statement of accused must be relevant facts. Such information must be given by the person who is accused of an offence and the recovery of article or discovery of fact must be based upon the information given by such accused.
45. Hon'ble High Court of Delhi in Judgment titled as Mohammad Burhan Vs. Directorate of Revenue Intelligence, cited as 'MANU/DE/3131/2017' has held that joining of independent public witness is not mere a formality; it is a vital safeguard to avoid false implication of individual. In number of cases either no independent public witnesses are associated on FIR No. 577/2018, PS: Paharganj, State Vs. Ram Narain @ Sanjay & Anr. Page No. 25 of 29 the pretext that none of them is available; in some cases only passerbyes are requested to join the investigation. Non- examination of independent public witness in the instant case is serious flaw and adverse inference is to be drawn against the prosecution for withholding them.
46. Similarly Hon'ble Supreme Court of India in Judgment titled as Ramanand@Nand Lal Bharti Vs. State of Uttar Pradesh cited as 2022 SCC online SC 1396 has observed as under:-
"52. Section 27 of the Evidence Act, 1872 reads thus:
'27 How much of information received from the accused may be proved-Provided that, when any fact is deposed to as discovered in consequence of information, received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not as relates distinctly to the fact thereby discovered may be proved.
If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire, in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the FIR No. 577/2018, PS: Paharganj, State Vs. Ram Narain @ Sanjay & Anr. Page No. 26 of 29 Evidence Act is always drawn at the police station in the presence of that independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two particular place anything like the weapon of offence of blood stained clothes or any other article is discovered then the part of the entire process expects the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter."
47. In the present case, IO has not examined any independent public witness at the time of recovery of alleged case properties. Even no notice u/s 160 Cr.P.C was given to the public persons who refused to join the investigation. Applying the law laid down by the Hon'ble Supreme Court of India in Mohammad Burhan (Supra) and Ramanand@Nand Lal Bharti (Supra), this Court is of considered opinion that since no independent public witness were joined in the investigation at the time of recovery of alleged case properties, the recovery of case properties has become doubtful. Thus the prosecution has failed to prove the recovery of case properties from the possession or at the instance of accused persons as per established principles of law.
48. It is established principle of law that if two views are possible, the view favourable to the accused must be accepted. The benefit of doubt must always go to the accused as the prosecution has to prove the case beyond reasonable doubt.
49. The Hon'ble Apex court in Rang Bahadur Singh Vs. State of U.P. reported in AIR 2000 SC 1209 has held as follows:
FIR No. 577/2018, PS: Paharganj, State Vs. Ram Narain @ Sanjay & Anr. Page No. 27 of 29 "The timetested rule in that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."
50. In yet another decision in State of U.P. Vs. Ram Veer Singh and Another reported in 2007(6) Supreme 164 the Hon'ble Apex Court has held as follows:
"The golden thread which runs through the web of administration of justice in criminal cases is that if two view are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to reappreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not."
51. In the present case, due to non-cross-examination of PW-4 Sh. Radhey Shyam Sharma, non-joining of any independent eyewitness by the IO, no investigation with respect to the source of stupefying substance and not fixing the identity of accused persons through CCTV footage or any independent witness, serious doubts have been created on the prosecution story and two views are possible in this case and hence the benefit of the same must go to the accused.
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52. For the reasons stated above, this court is of the considered opinion that the prosecution has failed to prove the ingredients of offence punishable uner Section 394/34 IPC & 328/34 IPC against both the accused persons namely Ram Narain @ Sanjay and Irfan Khan beyond reasonable doubt.
53. Accordingly in view of the aforesaid discussion, both the accused persons namely Ram Narain @ Sanjay and Irfan Khan are hereby acquitted for offence punishable under Section 394/34 IPC & 328/34 IPC.
54. Bail bonds of both the accused persons except bail bonds filed under section 437A CrPC stands cancelled. Their sureties stands discharged. Case property, if any, be released to the rightful owners.
55. File be consigned to Record Room after due compliance.
Digitally signed by
VIRENDER
Announced in the open court KUMAR
VIRENDER KUMAR
KHARTA
on 23rd day of February, 2024
Date: 2024.02.23 16:22:40
KHARTA +0530
(Virender Kumar Kharta)
ASJ/FTC-02(CENTRAL)
TIS HAZARI COURTS:DELHI
FIR No. 577/2018, PS: Paharganj,
State Vs. Ram Narain @ Sanjay & Anr. Page No. 29 of 29