Delhi District Court
State vs Arjun Singh @ Parth Devnath on 9 April, 2024
IN THE COURT OF DR. RAKESH KUMAR
ADDITIONAL SESSIONS JUDGE (FTC-02)
SOUTH EAST DISTRICT, SAKET COURTS: NEW DELHI
CNR No: DLSE01-000027-2014
SC 1138/2016
FIR no. 960/2013
PS Govind Puri
State
Versus
1. Arjun Singh @ Parth Devnath
Son of Anil Devnath @ Ram Singh
Resident of Flat no. 1412, Gali no.14
Govind Puri, New Delhi.
2. Chandeshwar @ Sunil
Son of Kamal Ram
Resident of H. No. 148, Lajpat Nagar-IV,
New Delhi.
Date of Institution : 13.05.2014
Judgment reserved on : 04.04.2024
Date of Decision : 09.04.2024
JUDGMENT
1. A police report was put up by the State through officer-in-charge of the Police Station Govindpuri before the concerned Metropolitan Magistrate with the view to take cognizance of offences under Sections 328/379/411/34 of the Indian Penal Code, 1860 (in short 'IPC') against the accused persons, namely, Arjun Singh @ Parth Debnath and Chandeshwar @ Sunil for having committed the said offences and to proceed with committal of the case.
FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 1 of 522. As per the police report on 24.12.2013, this case FIR was registered in Police Station Govindpuri for the offences punishable under Sections 328/379 IPC.
3. As per the police report on 24.12.2013, on receiving a DD no.26B regarding admission of one Surender having eaten some unknown substance in the Safdarjung Hospital, Head Constable Pramod Kumar along with Constable Uday Chand reached the place of incident near Gurudwara, Okhla Service Road, TKD Extension and met Sub Inspector Davender from Police Station Kalkaji and the complainant Surender son of Shri Ram. It is further reported in the police report that the complainant pointed out the place of incident and got his statement recorded.
4. As per the police report, it is, inter alia, stated by Surender that he has got his Indigo Car number HR-66-T7004 attached with OLA CAB in village Wazirabad, Gurgoan and used to get cab booking on phone; that on 21.12.2013, at about 08:00 PM, he was assigned a duty from the call center and was told that he had to pick up Dinesh Kumar from DDA Flats, Kalkaji and drop him to the Airport; that on confirmation of the duty, he was informed the time of pick-up as 09:30 PM, so, he reached Okhla Service Road at 09:25 PM; that due to non-confirmation of the address, he called the client Dinesh on his mobile phone number 9871406118 and asked for his location; that he was told that the client was waiting near Shabnam Hotel and he asked the complainant to stop as he was coming there; that after some time he came to the complainant and told him to wait for 5 minutes as FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 2 of 52 his brother was about to come; that then the person told him that his brother would take some time and offered to bring tea for the complainant; that he left from the spot and came back with two cups of tea, out of which one was consumed by that person and the other was consumed by the complainant; that for some time they both stayed there and then he told the complainant that his brother had some luggage so asked the complainant to come to upper pocket so the complainant parked the vehicle in front of pocket-3; that the person left the car and after 15 minutes, he came back, sat in the car, lighted a exaggerate and asked the complainant to open the glass window of the car; that when the complainant opened the window glass of the car, suddenly, he got in the state of intoxication and regained consciousness on 22.12.2013 at about 05:00 PM and noticed that one GPRS mobile phone provided by Ola Company, one Samsung Mobile Phone having IMEI number 356841059668944 and 356842059668942 kept in his pocket and Rs.3500/- from his purse were missing; that someone had informed the company on the phone noted on the car and his brother Dilbag Singh came to him and got him admitted in the Safdarjung Hospital; that after giving complete consciousness, the complainant went to the Police Station Kalkaji for lodging his complaint and the Investigating Officer reached the spot on the instruction of Sub Inspector Davender; that some unknown person has caused him to take some intoxicated substance mixed with tea to get him unconscious and has stolen Rs.3500/- and two mobile phones, whom he can identify, therefore, action as per law be taken against the accused persons.
FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 3 of 525. It is further reported in the charge-sheet that from the statement of the complainant and the circumstances, offences under sections 328/379/34 of Indian Penal code, 1860 was made out and Head Constable Promod Kumar got the FIR registered and started investigation.
6. It is further reported in the police report that during investigation, Head Constable Promod Kumar prepared site plan of the spot of incident, recorded the statements of the witnesses, interrogated the suspects, made search for the case properties and the accused persons but despite several attempts, no information was received.
7. It is further reported in the police report that on 23.03.2014, Sub Inspector Pappu Lal Katewa AATS/SED vide DD no. 9A dated 23.02.2014 had sent information to the police station Govind Puri about the arrest of the accused persons, namely, Arjun Singh @ Parth Debnath and Chandeshwar @ Sunil in case FIR no.156/14 under section 328/379/411/34 IPC and in the discloser statement they have disclosed about their involvement in the offence in case FIR no.960/13, thereafter, the further investigation of the present case was done by Sub Inspector Raj Kiran as per the order of the Officer-in-charge of the police station; that thereafter, on 03.03.2014, Sub Inspector Raj Kiran met Sub Inspector Pappu Lal Katewa who informed that discloser statement of the above-said two accused persons has been recorded wherein they have disclosed about their involvement in several incidents and during police custody they had got recovered the stolen articles and sleeping pills from their FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 4 of 52 rented house no.3118, Gali no.5, TA Block, Govind Puri, New Delhi which articles were taken into police custody on preparation of Memo under section 102 Cr.P.C; that Sub Inspector Raj Kiran obtained copies of all the documents and the statements from Sub Inspector Pappu Lal Katewa; that on checking of list of mobile phones recovered from the accused persons, it came know that the mobile phones stolen in the present case have been recovered from both the accused persons at their instances, therefore, section 411 IPC was added; that thereafter, both the accused persons, namely, Arjun Singh @ Parth Debnath and Chandeshwar @ Sunil were interrogated with the permission of the court on their production pursuant to the issuance of production warrants and they were formally arrested in the present case and the information qua their arrest were sent to their relatives and their discloser statements were recorded.
8. It is further reported in the police report that on 04.03.2014, Investigating Officer of this case had made an application to the concerned court for TIP of the accused persons which was fixed for the court on 13.03.2014; that the accused Arjun Singh @ Parth Debnath had refused to join TIP proceedings; that the accused Chandeshwar @ Sunil had agreed to join the TIP proceedings; that thereafter, the Investigating Officer of this case obtained one day PC remand of the accused Arjun @ Parth Debnath and during interrogation, he had informed that the mobile phone stolen in the present case has already been recovered by the staff of AATS/SED and he had spent his part of the stolen money and thereafter, the Investigating Officer took the accused Arjun @ Parth Debnath to FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 5 of 52 the spot of incident, Okhla Service Road, Near Shabnam Hotel, TKD Extn. and on pointing out of the accused, prepared the pointing out memo.
9. It is further reported in the police report that on 13.03.2014, Ms. Neha, Metropolitan Magistrate had conducted TIP proceedings of the accused Chandeshwar @ Sunil and the complainant Surender had correctly identified the accused.
10. It is further reported in the police report that on 15.03.2014, Sub Inspector Hukamvir Attri obtained one day PC remand of the accused Chandeshwawr @ Sunil and during interrogation, he informed that the mobile phone stolen in the present case has already been recovered from his friend, Arjun Singh @ Parth Debnath and he had spent his part of the stolen money and thereafter, Sub Inspector Hukamvir Attri took the accused Chandeshwar @ Sunil to the spot of incident, Okhla Service Road, Near Shabnam Hotel, TKD Extn. and on the pointing out of the accused, prepared the pointing out memo and during PC remand the accused was kept in muffled face.
11. It is further reported in the police report that on 26.04.2014, during appearance in the Saket Court, the complainant Surender had identified the accused Arjun @ Parth Debnath and informed that during the incident the accused Arjun Singh @ Parth Debnath had stolen his articles after offering intoxicated juice. It is further reported in the police report that during investigation, statement of the witnesses were recorded and both the accused persons were in Judicial Custody.
FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 6 of 5212. It is further reported in the charge-sheet that sufficient evidence has been collected against the accused persons and the afore-said acts on the part of offenders revealed commission of offences punishable under section 328/379/411/34 of Indian Penal Code, 1860.
13. It is, therefore, prayed that cognizance of the offences committed by offenders may be taken and they should be tried as per the provisions of law.
14. After completion of the investigation, the investigating officer had filed the charge sheet before the concerned Metropolitan Magistrate.
15. On the police report, on 13.05.2014, the Learned Metropolitan Magistrate had taken the cognizance of the offences.
16. On the date of taking cognizance, the both the accused persons were also produced from the Judicial Custody before the Metropolitan Magistrate. Copies of police report and other documents in compliance of section 208 Cr.P.C. were supplied to the accused persons on 23.05.2014.
17. On 27.05.2014, the Learned Metropolitan Magistrate found the sections/offences to be exclusively triable by the court of Sessions and therefore, committed the case to the Learned Sessions Judge and thereafter, the present case was assigned to this court.
FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 7 of 5218. On 24.01.2015, upon considering the police report and the documents sent with it under Section 173 Cr. P.C. and after hearing the Additional Public Prosecutor and counsel for the accused persons, the charges were framed against the accused persons for their having committed offences punishable under Sections 328/379/411/34 of Indian Penal Code.
19. The charge was read over and explained to the accused persons and they were asked if they pleaded guilty of the offences charged or claimed to be tried. The accused persons did not plead guilty and claimed trial.
20. In support of its Case, the prosecution got examined PW1 Sh. Surender (Driver of cab Indica), PW2 Sh. Rohit Yadav, (Senior Executive Ola Cabs), PW3 Assistant Sub Inspector Yaad Ram, PW4 Sh. Dilbagh Singh, (brother of complainant), PW5 Constable Uday Chand, PW6 Sub Inspector Pappu Lal, PW7 Head Constable Neeraj (now Sub Inspector), PW8 Sub Inspector Devender Kumar, PW9 Inspector Kukamvir Attri, PW10 Assistant Sub Inspector Bhuleshwar, PW11 Head Constable Narender, PW 12 Sub Inspector Raj Kiran, PW13 Head Constable Pramod Kumar (now Sub Inspector). During the examination of the prosecution witnesses, the documents Ex.PW1/A, Ex.PW1/B, Ex.P1, Ex.PW2/A, Ex.PW2/B, Ex.PW2/C, Ex.PW3/A, Ex.PW3/B, Ex.PW4/A, Ex.PW4/B, Mark X1, Mark X2, Ex.PW7/B, Ex.PW8/B, Ex.PW8/A, Ex.PW8/C and Ex.PW8/D, Ex.PW8/E and Ex.PW8/F, Ex.PW8/G and Ex.PW8/H, Ex.PW7/C, Ex.PW8/K, Ex.PW8/M, Ex.PW8/L, Ex.PW8/N, Ex.P1 to Ex.P45, P45, Ex.P46, Ex.P47, Ex.P48, FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 8 of 52 Ex.P49(colly), Ex.P50(colly), Ex.PW7/C, Ex.PW8/E, Ex.PW7/C, Ex.PW12/A, Ex.PW12/B, Ex.PW12/C & Ex.PW12/D, Ex.PW12/E and PW12/F, Ex.PW12/G, Ex.PW12/H, Ex.X2, Ex.X1, Ex.PW13/A, Ex.PW13/B and Ex.PW8/J 'pullanda' was also tendered in evidence.
21. On 29.04.2023, prosecution evidence was closed and matter was posted for examination of the accused under section 313 Cr.P.C and for his statement.
22. On 01.08.2023, this court examined the accused persons under Section 313 Cr.P.C. and their separate statement were recorded. During their examination under section 313 of Cr.P.C., the accused persons, Arjun Singh @ Parth Debnath and Chandeshwar @ Sunil denied the correctness of incriminating circumstances appearing in the evidence against them and stated that they are innocent and have been falsely implicated in this case. During their examination under section 313 of Cr.P.C., the accused persons, Arjun Singh @ Parth Debnath and Chandeshwar @ Sunil took the defence that police had arrested them in FIR no. 156/14 PS Govind Puri under Section 328/379/411/34 IPC and thereafter, they were named in the present case as well. The accused persons do not wish to lead evidence in their defence.
23. I have heard Mr. A.T. Ansari, Additional Public Prosecutor for the State and Ms. Naina Bajaj, Amicus Curiae for the accused persons and have gone through the record of the case carefully.
FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 9 of 5224. Having drawn my attention on the testimonies of PW1 Sh. Surender (Driver of cab Indica), PW2 Sh. Rohit Yadav, (Senior Executive Ola Cabs), PW3 Assistant Sub Inspector Yaad Ram, PW4 Sh. Dilbagh Singh, (brother of complainant), PW5 Constable Uday Chand, PW6 Sub Inspector Pappu Lal, PW7 Head Constable Neeraj (now Sub Inspector), PW8 Sub Inspector Devender Kumar, PW9 Inspector Kukamvir Attri, PW10 Assistant Sub Inspector Bhuleshwar, PW11 Head Constable Narender, PW12 Sub Inspector Raj Kiran, PW13 Head Constable Pramod Kumar (now Sub Inspector); and the documents Ex.PW1/A, Ex.PW1/B, Ex.P1, Ex.PW2/A, Ex.PW2/B, Ex.PW2/C, Ex.PW3/A, Ex.PW3/B, Ex.PW4/A, Ex.PW4/B, Mark X1, Mark X2, Ex.PW7/B, Ex.PW8/B, Ex.PW8/A, Ex.PW8/C and Ex.PW8/D, Ex.PW8/E and Ex.PW8/F, Ex.PW8/G and Ex.PW8/H, Ex.PW7/C, Ex.PW8/K, Ex.PW8/M, Ex.PW8/L, Ex.PW8/N, Ex.P1 to Ex.P45, P45, Ex.P46, Ex.P47, Ex.P48, Ex.P49(colly), Ex.P50(colly), Ex.PW7/C, Ex.PW8/E, Ex.PW7/C, Ex.PW12/A, Ex.PW12/B, Ex.PW12/C & Ex.PW12/D, Ex.PW12/E and PW12/F, Ex.PW12/G, Ex.PW12/H, Ex.X2, Ex.X1, Ex.PW13/A, Ex.PW13/B and Ex.PW8/J 'pullanda' and the law laid down in the judgments in Mohd. Wasim v. State, 2018 SCC OnLine Del 11174, it is submitted by the learned Additional Public Prosecutor for the State that from the evidence led by the prosecution, it has been proved that the accused persons in furtherance of their common intention served tea containing stupefying substance to the complainant due to which he became unconscious and they committed theft of two mobile phones and a purse containing Rs.3500/- and they also found in FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 10 of 52 possession of stolen articles. It is further submitted by the learned Additional Public Prosecutor for the State that after one year of the incident, on tip of, the accused persons were arrested and they made disclosure regarding involvement in several cases including the instant case. It is further submitted by the learned Additional Public Prosecutor for the State that 48 mobile phones were recovered from the common premises where the accused persons were living on rent and these mobile phones were seized under Section 102 Cr.P.C. being stolen property. It is further submitted by the learned Additional Public Prosecutor for the State that the accused persons were subjected to the Test Identification Parade (TIP), however, the accused Arjun refused to join it. It is further submitted by the learned Additional Public Prosecutor for the state that the accused Chandeshwar joined the TIP and he was correctly identified by the complainant. It is further submitted by the learned Additional Public Prosecutor for the State that both the accused persons have been duly identified in the court. Having drawn my attention to the cross-examination dated 25.03.2015 of the complainant, it is further submitted by the learned Additional Public Prosecutor for the State that the complainant had ample opportunity to recognize the accused persons at the time of commission of offence. It is further submitted by the learned Additional Public Prosecutor for the State that the identity of the accused persons coupled with recovery of stolen mobile phones also finds corroboration from the history given during the MLC and the intoxication pills were recovered from the accused's house. Having drawn my attention to the MLC, the learned Additional Public Prosecutor for the FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 11 of 52 State further submitted that the complainant was unconscious for more than 24 hours so gastric lavage was not collected but, the light of judgment of Hon'ble Delhi High Court in Mohd. Wasim's case (supra), the accused is liable to be convicted under Section 328 IPC. The learned Additional Public Prosecutor for the State has drawn my attention to the seizure memo Ex.PW12/A and further submitted that recovery was affected from the accused persons when they arrested in another case and at serial number 18 of the seizure memo, the IMEI number of the same phones have been mentioned which were stolen from the car of the complainant which mobile phones were recovered pursuant to the disclosure made by the accused persons.
25. Per contra, counsel for the accused persons has drawn my attention on the testimonies of PW1 Sh. Surender (Driver of cab Indica), PW2 Sh. Rohit Yadav, (Senior Executive Ola Cabs), PW3 Assistant Sub Inspector Yaad Ram, PW4 Sh. Dilbagh Singh, (brother of complainant), PW5 Constable Uday Chand, PW6 Sub Inspector Pappu Lal, PW7 Head Constable Neeraj (now SI), PW8 Sub Inspector Devender Kumar, PW9 Inspector Kukamvir Attri, PW10 Assistant Sub Inspector Bhuleshwar, PW11 Head Constable Narender, PW 12 Sub Inspector Raj Kiran, PW13 Head Constable Pramod Kumar (now Sub Inspector); and the documents Ex.PW1/A, Ex.PW1/B, Ex.P1, Ex.PW2/A, Ex.PW2/B, Ex.PW2/C, Ex.PW3/A, Ex.PW3/B, Ex.PW4/A, Ex.PW4/B, Mark X1, Mark X2, Ex.PW7/B, Ex.PW8/B, Ex.PW8/A, Ex.PW8/C and Ex.PW8/D, Ex.PW8/E and Ex.PW8/F, Ex.PW8/G and Ex.PW8/H, FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 12 of 52 Ex.PW7/C, Ex.PW8/K, Ex.PW8/M, Ex.PW8/L, Ex.PW8/N, Ex.P1 to Ex.P45, P45, Ex.P46, Ex.P47, Ex.P48, Ex.P49 (colly), Ex.P50(colly), Ex.PW7/C, Ex.PW8/E, Ex.PW7/C, Ex.PW12/A, Ex.PW12/B, Ex.PW12/C & Ex.PW12/D, Ex.PW12/E and PW12/F, Ex.PW12/G, Ex.PW12/H, Ex.X2, Ex.X1, Ex.PW13/A, Ex.PW13/B and Ex.PW8/J 'pullanda' and submitted that the FIR was registered against unknown persons, however, the name of the accused persons should have been mentioned in the FIR. It is further submitted by learned counsel for accused persons that the name of the brother of the complainant was not mentioned in the MLC. Learned Counsel for the accused persons has drawn my attention to the examination of PW2 dated 27.03.2015 and further submitted that there are contradiction in his testimonies. Having drawn my attention to the examination of PW4, it is further submitted by learned counsel for accused persons that no agreement have been placed on record.
26. I have given my thoughtful consideration to the submissions made on behalf of the parties.
27. The accused persons have been charged for the offences punishable under sections 328/379/411/34 I.P.C. Section 328 IPC reads 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."FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 13 of 52
28. Theft is the most basic and widespread offence against property under the IPC. Section 379 of the Indian Penal Code prescribes punishment for theft whereas, theft is defined in Section 378 of the IPC. This section contains five explanations for the said definition and is accompanied by 16 illustrations. Section 378 reads as follows:
"378. Theft. -- Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft."
29. The essential ingredients of the offence of theft under Section 378 of the IPC, is well-explained by the Supreme Court in a leading judgment. The court analysed the offence of theft under section 378 and constituted the essential elements of theft as follows:-
1. The subject of theft should be a movable property;
2. It should be in the possession of anyone;
3. There should be a dishonest intention to take it out of that person's possession without his consent and;
4. A moving in order to such taking.
30. Section 411 IPC deals with the offense of dishonestly receiving stolen property. Section 411 IPC reads as follows:-
"411. Dishonestly receiving stolen property.- Whoever, dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 14 of 52
31. In order to obtain conviction for the offence under section 411 IPC, the prosecution has to establish the following elements:
1. The property must have been stolen
2. The accused must have received, retained, bought or sold the stolen property
3. The accused must have known or had reason to believe that the property was stolen
4. The act of receiving, retaining, buying or selling the stolen property must have been done dishonestly.
32. It is important to note that the mere receipt of stolen property is not enough to attract the provisions of section 411. The accused must have the knowledge or reason to believe that the property was stolen, and must have acted dishonestly in receiving, retaining, buying or selling it.
33. The facts of the case have already been noticed earlier, here, I would like to only focus on the evidence that has been adduced by the prosecution.
34. To bring home the guilt of the accused, the prosecution had examined 11 witnesses.
35. PW1 Surender is the complainant, who deposed that he was having his own cab bearing registration number HR 66-T- 7004 and he had attached his cab with OLA cab company, Gurgaon. It is further deposed by PW1 Surender that on 21.12.2013, at about 8 PM, he had received a phone call from his company whereby he was assigned the duty to pick up a passenger in the name of Dinesh Kumar from DDA flats, Kalkaji FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 15 of 52 Extension Road, Pocket-3 at about 09:30 PM and simultaneously, he had received a SMS from OLA company in which the name and phone number of the passenger were mentioned. It is further deposed by PW1 Surender that he made a call to the given phone number of the passenger to know the address and the passenger advised him to come on the way leading to Hotel Crown Plaza and to take a right turn from Crown Plaza and thereafter, to take right turn from T-point and again the left turn. It is further deposed by PW1 Surender that he went there but could not found the address so he again made a phone call at the phone number of the passenger and this time, the passenger asked him to come back on the same route and that the passenger will meet him on the way. It is further deposed by PW1 Surender that he came back from the same route and reached at Hotel Sangam and when he again made a phone call to the passenger and told him that he was waiting near Hotel Sangam. It is further deposed by PW1 Surender that the passenger came there (the witness pointed out towards the accused who told his name Arjun) the accused (Arjun) sat in my cab. It is further deposed by PW1 Surender that he asked the passenger the reason for giving a wrong address that he was to take right turn from the T point, at this, the accused told that he considered the red light to be the T-point. It is further deposed by PW1 Surender that the accused had also told him that his brother had to go to the Airport and asked him to wait there and again he said that his brother would take some time to come so he was going to take tea for complainant. It is further deposed by PW1 Surender that he had brought two cups of tea, consumed one and offered another to him which he also consumed. It is FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 16 of 52 further deposed by PW1 Surender that thereafter, he said that his brother was having luggage so the complainant should take the cab into the gali. It is further deposed by PW1 Surender that he had driven the cab to the gali where the accused asked him to wait and accused went from there saying that he would call his brother. It is further deposed by PW1 Surender that after sometime, another person came (the witness pointed out towards the accused who told his name as Chandeshwar @ Sunil to be person who came there) and sat in the car and lighted the cigarette. It is further deposed by PW1 Surender that the cab was filled with the smoke and accused Chandreshwar asked him to open the window panes which he did. It is further deposed by PW1 Surender that thereafter, he had become unconscious and he regained the consciousness on the next date at about 05:00 PM. It is further deposed by PW1 Surender that at that time, he was not at the place where accused (Chandeshwar @ Sunil) had boarded the cab but he was in the same locality. It is further deposed by PW1 Surender that he was having stickers with phone numbers of the company pasted on the doors of the cab so someone had made a call to the company informing that their cab was stationed along with driver under the influence of liquor. It is further deposed by PW1 Surender that at that time, his brother was also staying with him in Gurgaon so he had come to know this fact from the company. It is further deposed by PW1 Surender that the company had also informed his brother about the location of his cab as GPS was installed in his cab and his brother had come to the area of Govind Puri even prior to his regaining the consciousness. It is further deposed by PW1 FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 17 of 52 Surender that after he had regained consciousness, he asked 2-3 persons around there to make a phone call to his brother as his 2 cell phones and Rs.3,500/- had already been robbed by the accused persons. It is further deposed by PW1 Surender that the said 2-3 persons had not agreed to make a call at the number of his brother given by him however, the said persons had agreed to made a call at the number of the company mentioned on the cab. It is further deposed by PW1 Surender that the said persons called on the said numbers and the company in turn immediately called his brother who along with one police official Mr. Pramod came to him. It is further deposed by PW1 Surender that they had taken him to Safdarjung hospital where he was hospitalized for 2 days and after discharge, he along with his brother had gone to the police station and narrated the incident to the police. It is further deposed by PW1 Surender that Police recorded his statement (Ex.PW1/A) bearing his signature at point A. It is further deposed by PW1 Surender that on 13.03.2014, he had gone to the Tihar Jail where he was shown a number of persons amongst whom he had identified accused Chandeshwar @ Sunil to be the offender. Having seen the carbon copy (Ex.PW1/B) of the TIP Proceedings pertaining to accused Chandeshwar @ Sunil, PW1 Surender had identified his signatures at point A on the TIP. PW1 Surender, the complainant has correctly identified both the accused persons in the court.
36. During examination-in-chief of PW1 Surender, the MHC (M) had lined up 45 mobile phones on the table allegedly recovered from the accused persons in the FIR No.156/2014.
FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 18 of 52PW1 Surender, has correctly lifted the mobile phone (Ex.P1) make Samsung belonging to him.
37. During his cross-examination, PW1 Surender deposed that he was plying his own taxi in 2013. PW1 Surender further deposed that he does not have any written agreement with the OLA cab company regarding attachment of his taxi with them and for that reason he had not provided the same to the Investigating Officer. PW1 Surender further deposed that he had received a phone call on his mobile number 9711736579. PW1 Surender further deposed that lastly, he had called the passenger at about 09.25 PM and prior to that also he had also made 2-3 calls to the passengers. PW1 Surender further deposed that he does not remember the phone number of the passengers which he had dialed. PW1 Surender further deposed that the accused had not provided the number of any flat, however, the accused had asked to reach DDA Flats, Pocket-3. PW1 Surender further deposed that he does not know as to where the accused brought the tea from and also, he had not seen any shop. PW1 Surender further deposed that he had hardly driven his taxi for about ½ km after consuming the tea. PW1 Surender further deposed that during that period, he did not receive any other call from his company and after that day he went to the Police Station 2-3 times regarding this case. PW1 Surender further deposed that he could not tell the exact date when his statement was recorded, however, after the discharge from the hospital, he visited the Police Station and made the statement. PW1 Surender further deposed that the accused persons were not shown to him in the Police Station. PW1 Surender further deposed that he had FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 19 of 52 identified the accused persons in TIP and in Court. PW1 Surender further deposed that before he consumed the tea, he had very well seen the accused persons and, on this strength, he had identified them. Other formal suggestions were denied by them as wrong and incorrect.
38. PW2 Rohit Yadav is Senior Executive from Ola Cabs Pvt. Ltd., who deposed that on 12.05.2014, he had produced a copy of the booking details pertaining to the vehicle bearing registration no.HR-66T-7004 owned and driven by Surender Kumar, Mobile 9953630236 and 9711736579 and also produced a copy of the agreement between their company and the owner/driver of the taxi. It is further deposed by PW2 Rohit Yadav that the said documents were taken into possession by the Investigating Officer vide Seizure Memo (Ex.PW2/A) bearing his signature at point A and the certified print out of the booking details on record (Ex.PW2/B) bearing his signature at seal at point A and B and the certified copy of the agreement consisting of 13 pages (Ex.PW2/C) bearing his signature on seal at point A. It is further deposed by PW2 Rohit Yadav that as per record, the taxi cab bearing registration no. HR-66T-7004 was got booked in the name of one Dinesh Kumar who had given his phone number as 09871406118. It is further deposed by PW2 Rohit Yadav that on 21.12.2013, at about 09:30 PM and the pickup was from Kalkaji DDA Flats Pocket Airtel Tuglakabad Extension and the customer who told his name as Dinesh Kumar was to be dropped at Domestic Airport. It is further deposed by PW2 Rohit Yadav that the said information was passed to the taxi owner/driver, Surender Kumar. It is further deposed by PW2 Rohit Yadav that FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 20 of 52 the owner/driver, Surender Kumar, however, could not inform regarding his reaching at the domestic airport and the next day, he had come to know about this incident when the brother of the taxi owner approached their company.
39. During his cross-examination, PW2 Rohit Yadav has, inter-alia, deposed that he had not brought the original agreement with him. PW2 Rohit Yadav further deposed that the agreement does not bear his signature except the one where he certified the agreement. PW2 Rohit Yadav further deposed that they assign the duties as and when the calls for the booking are received. Other formal suggestions were denied by him as wrong and incorrect.
40. PW3 Assistant Sub Inspector Yaad Ram from Police Station Govindpuri, Delhi deposed that on 24.12.2013, he was posted as Duty Officer at Police Station Govindpuri and his duty hours were from 4.00 PM to 12.00 midnight. It is further deposed by PW3 Assistant Sub Inspector Yaad Ram that on the said day, on receipt of 'rukka' Mark A through Constable Uday Chand, he had recorded formal FIR on computer from the official of CIPA and the computerized FIR (Ex.PW3/A) is bearing his signatures at point A (original FIR was seen and returned). It is further deposed by PW3 Assistant Sub Inspector Yaad Ram that after registration of the case, he had handed over the 'rukka' and the copy of FIR to Constable Uday with the instructions to take the same to Head Constable Pramod as he was entrusted with the investigation of the case. It is further deposed by PW3 Assistant Sub Inspector Yaad Ram that his endorsement on 'rukka' FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 21 of 52 (Ex.PW3/B) bearing his signatures at point A. PW3 Assistant Sub Inspector Yaad Ram was not cross-examined by the defence counsel.
41. PW4 Dilbagh Singh is brother of the complainant who deposed that on receiving a call from the police, he had gone to Police Station Govindpuri on 01.05.2014, though his brother Surender could not go. It is further deposed by PW4 Dilbagh Singh that he had handed over the copy of the RC of his car bearing registration number HR-66T-7004 Indigo registered in his name and had also given the copy of the mobile phone bill of his brother Surender which were separately seized by the police vide Seizure Memo (Ex.PW4/A and Ex.PW4/B) bearing his signatures at point A and the photocopy of the RC on record (MarkX1) and the photocopy of the mobile bill (MarkX2) bearing his signature at point A. It is further deposed by PW4 Dilbagh Singh that on the day of the incident, his brother Surender was driving the said car. It is further deposed by PW4 Dilbagh Singh that the Investigating Officer had recorded his statement to this effect.
42. During his cross-examination, PW4 Dilbagh Singh has, inter-alia, deposed that he could produce the original RC as well as the original bill. PW4 Dilbagh Singh further deposed that his car was attached with Ola Company and there was no written agreement with the company.
43. PW5 Constable Uday Chand deposed that upon receipt of DD no.56B, he along with Head Constable Pramod FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 22 of 52 reached at Okhla service road near Shabnam Banquet Hall where Sub Inspector Devender from Police Station Kalkaji along with the injured Surender met them there. It is further deposed by PW5 Constable Uday Chand that Sub Inspection Devender Singh had handed over the injured along with the MLC to Head Constable Pramod. It is further deposed by PW5 Constable Uday Chand that the Investigating Officer had recorded the statement of injured Surender and prepared the 'rukka' and handed over the same to him at about 08.15 PM for registration of case and after registration of the case, he had come back at the spot and handed over the 'rukka' and copy of the FIR to the Investigating Officer. It is further deposed by PW5 Constable Uday Chand that the Investigating Officer had prepared the Site Plan at the instance of the complainant and recorded his statement. It is further deposed by PW5 Constable Uday Chand that they had also made efforts to locate the accused persons and to recover the case property but neither the accused persons could be located nor case property could be found. It is further deposed by PW5 Constable Uday Chand that Investigating Officer had recorded his statement to that effect.
44. During examination-in-chief of PW6 Sub Inspector Pappu Lal deposed that on 21.02.2014, he was posted as Sub Inspector in the office of AATS, South- East District and at about 04:00-04:30 PM, one secret informer came to his office and he gave an information that two persons, namely, Arjun and Chandeshwar who are desperate criminals and indulged in cases of robbery by administering stupefying substance would come near Pooja Masala Store, Ravidass Marg, Govind Puri at about FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 23 of 52 07:00-8:00 PM. It is further deposed by PW6 Sub Inspector Pappu Lal that upon this information, he had formed a raiding party consisting of Sub Inspector Satyender Khari, Head Constable Neeraj, Head Constable Parvir, Constable Raghuvender and other police officials. It is further deposed by PW6 Sub Inspector Pappu Lal that at about 5.00 PM, they all along with secret informer reached at the above mentioned spot in the private vehicle and he had shared the said information with 7/8 public persons and ask them to join the investigation but none had agreed. It is further deposed by PW6 Sub Inspector Pappu Lal that at about 05:45 PM, all mentioned police officials were deputed/located in the different directions near the above mentioned spot and the secret informer was with him. It is further deposed by PW6 Sub Inspector Pappu Lal that at about 07:30 PM, they saw that two persons were coming from the side of Tara Apartment and were gone towards Pooja Masala Store and at the instance of secret informer, they had apprehended both the above-mentioned persons and their names were revealed as Arjun Singh @ Parth Debnath and Chandeshwar @ Sunil. PW6 Sub Inspector Pappu Lal had correctly identified the both the accused persons.
45. It is further deposed by PW6 Sub Inspector Pappu Lal that he had conducted the formal search of both the accused persons, Arjun and Chandeshwar and during search, three mobile phones were recovered from the pocket of Arjun out of which two cell phones were without SIM cards, however, one was carrying SIM card. It is further deposed by PW6 Sub Inspector FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 24 of 52 Pappu Lal that on search of accused Chandeshwar two mobile phones without SIM card and 18 sleeping pills were recovered from his pocket. It is further deposed by PW6 Sub Inspector Pappu Lal that on verification, one of the cell phones recovered from accused Chandeshwar was found to have been stolen in the present case. It is further deposed by PW6 Sub Inspector Pappu Lal that on further verification, two phones recovered from accused Arjun were found connected with the theft cases registered in the Police Station Govind Puri and Police Station C. R. Park, respectively. It is further deposed by PW6 Sub Inspector Pappu Lal that he, accordingly, took into possession the two cell phones recovered from accused under section 102 Cr.P.C. vide Seizure Memo (Ex.PW7/B) bearing his signatures at Point B. It is further deposed by PW6 Sub Inspector Pappu Lal that he also took into possession the cell phones recovered from accused Arjun under section 102 Cr.P.C. vide Seizure Memo (Ex.PW8/B) bearing his signatures at Point B and the 18 Ativan tablets recovered from accused Chandeshwar were taken into possession by him vide Seizure Memo (Ex.PW 8/A) bearing his signatures at Point B. It is further deposed by PW6 Sub Inspector Pappu Lal that he had interrogated accused persons, Chandeshwar and Arjun and arrested them vide Arrest Memos (Ex.PW8/C and Ex.PW8/D), respectively, bearing his signatures at Point B and conducted their personal searches vide Personal Search Memos (Ex.PW8/E and Ex. PW8/F), respectively, bearing his signatures at Point B. It is further deposed by PW6 Sub Inspector Pappu Lal that during the course of interrogation, he had recorded the disclosure statements of accused persons, Arjun and FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 25 of 52 Chandeshwar (Ex.PW8/G and Ex.PW8/H), respectively, bearing his signatures at Point B. It is further deposed by PW6 Sub Inspector Pappu Lal that in pursuance of the Disclosure Statements, both the accused persons led them to their rented Jhuggi No.3118, Gali No.5, TA Block, Govind Puri, New Delhi and got recovered one black colour bag. It is further deposed by PW6 Sub Inspector Pappu Lal that on checking, the bag was found containing 48 cell phones, 3 wrist watches, 1 chain along with two lockets, one battery and 110 Ativan sleeping pills. It is further deposed by PW6 Sub Inspector Pappu Lal that he took into possession the 48 cell phones under section 102 Cr.P.C. vide Seizure Memo (Ex.PW7/C) bearing his signatures at Point B. It is further deposed by PW6 Sub Inspector Pappu Lal that he further seized the three wrist watches under section 102 Cr.P.C. vide Seizure Memo (Ex.PW8/K) bearing his signatures at point B. It is further deposed by PW6 Sub Inspector Pappu Lal that he had prepared a 'pullanda' of the chain along with lockets recovered from the bag and sealed the same with the seal of "PK" and took into possession the same vide Seizure Memo (Ex. PW8/J) bearing his signatures at point B and the Seal after use was handed over to Head Constable Niraj and also took the battery into possession under section 102 Cr.P.C. vide Seizure Memo (Ex.PW8/M) bearing his signatures at Point B and also took into possession the Ativan tablets under section 102 Cr.P.C. vide Seizure Memo (Ex.PW8/L) bearing his signatures at point B. It is further deposed by PW6 Sub Inspector Pappu Lal that both the accused persons pointed out the place of occurrence where he had prepared the site plan (Ex.PW8/N) bearing his FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 26 of 52 signatures at Point B. It is further deposed by PW6 Sub Inspector Pappu Lal that the recovered case property was kept in the 'Malkhana' of Police Station Govind Puri. It is further deposed by PW6 Sub Inspector Pappu Lal that thereafter, they came to their office and during verification the recovered mobile phones were found to have been stolen from the area of different police stations, accordingly, he informed the Investigating Officers of the concerned FIRs which the recovered cell phones were connected with. It is further deposed by PW6 Sub Inspector Pappu Lal that the Investigating Officers of those cases contacted him and he had handed over to them the copies of disclosure statements of the accused persons recorded in the present case, the Seizure Memos and other relevant documents. It is further deposed by PW6 Sub Inspector Pappu Lal that the concerned Investigating Officers had also taken the respective case properties. PW6 Sub Inspector Pappu Lal had correctly identified both the accused persons, Arjun and Chandeshwar in the court. It is further deposed by PW6 Sub Inspector Pappu Lal that he could identify the case property, if shown to him.
46. During his examination-in-chief, 45 cell phones bearing a chit having serial number on each phone was produced by MHC(M) in unsealed condition, same was shown to PW6 Sub Inspector Pappu Lal and he had correctly identified and stated that five cell phones were recovered in the search of the accused persons and 48 phones were recovered from the bag kept in their Jhuggi, so, in all there were 53 cell phones and some of them have been released on Supardaari, the 45 cell phones (Ex.Pl to Ex. P45), three wrist watches were produced by the MHC(M) in FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 27 of 52 unsealed condition, same were shown to the witness which the witness correctly identified, the wrist watches (Ex. P46, Ex. P47 and Ex. P48), respectively.
47. During examination-in-chief of PW6 Sub Inspector Pappu Lal, 13 strips of Ativan tablets containing 10 tablets each and one strip containing 8 tablets were also produced by MHC(M) in the wrapper of Ativan. Having seen the same, PW6 Sub Inspector Pappu Lal deposed that 18 tablets were recovered from the search of accused Chandeshwar whereas, 11 strips containing 10 tablet each were recovered from the bag kept in the Jhuggi of the accused persons, so, in total, 128 tablets were recovered in the present case and the rest of the tablets may be the case property of other 9 cases of Police Station Govind Puri, the 128 tablets of the present case (Ex. P49 (colly.))
48. One sealed 'pullanda' duly sealed with the seal of 'PK' bearing the particulars of this case was also produced by the MHC(M) before PW6 Sub Inspector Pappu Lal which was opened from which one golden colour chain and two lockets were taken out and shown to the witness which were correctly identified by him, the gold chain along with the lockets (Ex.P50 (colly.)).
49. During examination-in-chief of PW6 Sub Inspector Pappu Lal, it was pointed out by Learned Additional Public Prosecution for the State that there were about 11 different cases with similar allegations against the accused persons and in some of the cases, the respective complainants got released the cell FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 28 of 52 phones on 'Supardaari' and some of the cases have resulted into acquittal as the complainants failed to identify the accused persons in the Court although, they identified their cell phones and the said complainants have not been cited as complainants in the present case. It is further pointed by Learned Additional Public Prosecutor for the State that the complete particulars of 53 mobile phones along with IMEI numbers was mentioned in detail in the Seizure Memo (Ex.PW7/C, Ex.PW8/B) and the Seizure Memo (Ex.PW7/B) and the said 'Supardaars', however could not be summoned in the present case.
50. During his cross-examination by counsel for the accused Chandeshwar, PW6 Sub Inspector Pappu Lal deposed that it is correct that the accused was arrested regarding his involvement in FIR No.156/14, Police Station Govind Puri. It is further deposed by PW6 Sub Inspector Pappu Lal that the case property i.e., one mobile phone was recovered in this case from the accused. PW6 Sub Inspector Pappu Lal further deposed that recovery was affected by him from the house of the accused at his instance. PW6 Sub Inspector Pappu Lal further deposed that he did remember the exact details of the mobile phone. PW6 Sub Inspector Pappu Lal further deposed that he was not aware if the said mobile phone had been released on 'supardari' or not. PW6 Sub Inspector Pappu Lal further deposed that he had come to know about the involvement of the accused in the present case after the recovery of mobile phone and when the details of the mobile phone were tallied then it transpired that the case property was of present case. PW6 Sub Inspector Pappu Lal further deposed that Sub Inspector Raj Kiran was Investigating Officer FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 29 of 52 of the present FIR and accused persons were formally arrested by him in the present case but he did not remember the exact date and time when they were formally arrested. PW6 Sub Inspector Pappu Lal further deposed that apart from the recording of his statement by Sub Inspector Raj Kiran in this case, he did not participate in investigation of this case. Other formal suggestions were denied by him as wrong and incorrect. PW6 Sub Inspector Pappu Lal was not cross-examined on behalf of the accused Arjun Singh.
51. PW7 Head Constable Neeraj deposed that on 21.02.2014, he was posted at AATS South East as a Head Constable and on that day, Investigating Officer Sub Inspector P. L. Katewa shared us a secret information that two boys Arjun and Sunil are likely to come at Pooja Masala, R.D. Marg, Govind Puri, New Delhi who would try to sell stolen mobile phone. It is further deposed by PW7 Head Constable Neeraj that after that he along with Investigating Officer Sub Inspector P. L. Katewa and another police official had gone to the R.D. Marg, Govind Puri, New Delhi and the Investigating Officer Sub Inspector P. L. Katewa requested some persons to join the investigation but none had agreed and left without disclosing their names and addresses. It is further deposed by PW7 Head Constable Neeraj that they took their positions at the spot according to the instructions of Investigating Officer and at about 07:00 PM, two persons were seen coming from the side of 'Machhali Market' and going towards Pooja Masala. It is further deposed by PW7 Head Constable Neeraj that Investigating Officer, Sub Inspector P. L. FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 30 of 52 Katewa gave signal and he along with police official apprehended those two boys and after interrogation, their names revealed as Arjun and Sunil @ Chandeshwar. It is further deposed by PW7 Head Constable Neeraj that on formal search of Sunil @ Chandreshwar, two mobile phones were recovered from the right pocket and two strips were recovered from his left pocket. It is further deposed by PW7 Head Constable Neeraj that on inquiry, one mobile phone make Micromax recovered from Sunil was found involved in case registered in Police Station Govind Puri and other mobile phone was of make Vediocon. It is further deposed by PW7 Head Constable Neeraj that on formal search of Arjun, three mobile phones were recovered from right pocket of his pant were of make Samsung, Nokia and Micromax. It is further deposed by PW7 Head Constable Neeraj that on inquiry, mobile phone make Samsung and Nokia were found involved in case registered at Police Station Govind Puri and C. R. Park. It is further deposed by PW7 Head Constable Neeraj that recovered mobile phones were seized vide Seizure Memo by the Investigating Officer and he signed on the Seizure Memos Mark A & B bearing his signatures at A and after interrogation, both the persons were arrested and their personal search were conducted vide Memos Mark C & D bearing his signatures at point A. It is further deposed by PW7 Head Constable Neeraj that the accused persons had disclosed about incident and their disclosure statements were recorded as Mark E & F bearing his signatures at point A. It is further deposed by PW7 Head Constable Neeraj that they have disclosed that they kept the stolen articles at Jhuggi No.3115, T.A. Gali No.5, Tughlakabad, FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 31 of 52 Govind Puri, New Delhi. It is further deposed by PW7 Head Constable Neeraj that then he along with other police official and both the accused persons reached at the said Jhuggi from where the accused persons had got recovered various articles and same were taken into possession through Seizure Memos Mark G-1 to G-4 bearing his signatures at point A, then they came back to the Police Station Govind Puri and case properties were deposited in 'Malkhana', Police Station Govind Puri. It is further deposed by PW7 Head Constable Neeraj that Investigating Officer had recorded his statement. PW7 correctly identified both the accused persons present in the Court and deposed that he could identify the case property if shown to him.
52. During examination-in-chief of PW7, MHC(M) had produced one black bag which was opened and one mobile phone make Samsung IEMI No.356841059668944 was taken out and shown to the witness who correctly identified the same.
53. During cross-examination of PW7 Head Constable Neeraj has, inter-alia, deposed that he could not tell the exact distance where he and police officials were standing during the raid but they were able to see each other and had eye-to-eye contact. PW7 Head Constable Neeraj further deposed that he could not say whether case property of the present case was recovered from the accused persons or not as it was verified by Sub Inspector Katewa from CDR Section after recovery of phones from the accused persons. PW7 Head Constable Neeraj further deposed that he was not aware whether mobile phone pertaining to this case has ever been released on 'supardari' or FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 32 of 52 not. Other formal suggestions were denied by him as wrong and incorrect.
54. PW8 Sub Inspector Devender Kumar deposed that on 22/23.12.2013, he was working as Sub Inspector at Police Station Kalkaji and on that day, at about 02.00 AM, an information was received in the Police Station regarding admission of injured in Safdarjung Hospital and then he went to hospital and requested for getting the statement of injured from the doctor but injured was stated to be unconscious. It is further deposed by PW8 Sub Inspector Devender Kumar that on next day, after discharge from the hospital, injured had come to the police station and then he along with injured went to the spot of occurrence. It is further deposed by PW8 Sub Inspector Devender Kumar that he found that the place of occurrence comes within the jurisdiction of Police Station Govind Puri and he informed about the incident in the police station Govind Puri. It is further deposed by PW8 Sub Inspector Devender Kumar that after sometime, one head constable came to the spot and he handed MLC and injured to the Investigating Officer.
55. During his cross-examination, PW8 Sub Inspector Devender Kumar has, inter-alia, deposed that he does not remember whether doctor gave him any written intimation about the injured being admitted unconsciously in the Safdarjung Hospital. PW8 Sub Inspector Devender Kumar further deposed that he did not meet any person related to the injured in the Safdarjung Hospital. PW8 Sub Inspector Devender Kumar further deposed that he had not prepared any site plan of the spot.
FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 33 of 52PW8 Sub Inspector Devender Kumar further voluntarily stated that he had not prepared the site plan as the area does not come in jurisdiction of Police Station Kalkaji and he also did not prepare any handing over memo of the documents given to the police officer of Police Station Govind Puri. Other formal suggestions were denied by him as wrong and incorrect.
56. PW9 Inspector Hukamvir Attri from ACB/CBI, Delhi deposed that on 15.03.2014, he was posted as Sub Inspector in Police Station Govindpuri and on that day, as per the directions of SHO Police Station Govindpuri, he had attended the Court along with Constable Narender for Judicial Custody extension of accused Arjun Singh and also obtained one day Police Custody remand for accused Chandeshwar @ Sunil, as the main Investigating Officer of the case Sub Inspector Raj Kiran was occupied somewhere else on that day. It is further deposed by PW9 Inspector Hukamvir Attri that he had interrogated the accused Chandeshwar @ Sunil and prepared the Pointing Out Memo. It is further deposed by PW9 Inspector Hukamvir Attri that on 16.03.2014, he handed over the accused Chandeshwar @ Sunil to Sub Inspector Rajender Kumar.
57. During his cross-examination, PW9 Inspector Hukamvir Attri has, inter-alia, deposed that he did not obtain signatures of any public witness on the pointing out memo. Other formal suggestions were denied by him as wrong and incorrect.
58. PW10 Assistant Sub Inspector Bhuleshwar deposed that on 03.03.2014, he had joined investigation along with FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 34 of 52 Investigating Officer and went to office of the AATS, South-East District where Sub Inspector Pappu Lal met them. It is further deposed by PW10 Assistant Sub Inspector Bhuleshwar that Sub Inspector Pappu Lal Katewal informed Investigating Officer that Arjun Singh and Chandeshwar had made a disclosure statement regarding incident of the present case. It is further deposed by PW10 Assistant Sub Inspector Bhuleshwar that Investigating Officer had collected the copy of the Disclosure Statement from the Sub Inspector Pappu Lal Katewal, thereafter, he along with Investigating Officer went to Saket Court Complex. It is further deposed by PW10 Assistant Sub Inspector Bhuleshwar that Investigating Officer had made an application in the court to arrest the accused persons and Investigating Officer had formally arrested both the accused and after their formal arrest, they came back in the police station as both the accused persons have already arrested in case FIR No.156/14. It is further deposed by PW10 Assistant Sub Inspector Bhuleshwar that both the accused persons have made disclosure statement in the present case.
59. It is further deposed by PW10 Assistant Sub Inspector Bhuleshwar that on 04.03.2014, he along with Investigating Officer again came to Saket Court. It is further deposed by PW10 Assistant Sub Inspector Bhuleshwar that Investigating Officer had moved an application for TIP of the above-said both the accused persons. It is further deposed by PW10 Assistant Sub Inspector Bhuleshwar that accused Arjun had refused to get the TIP, however, accused Chandeshwar was agreed to get TIP. It is further deposed by PW10 Assistant Sub Inspector Bhuleshwar that Investigating Officer had obtained one FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 35 of 52 day police custody of accused Arjun. It is further deposed by PW10 Assistant Sub Inspector Bhuleshwar that they came back with the accused Arjun to the police station Govind Puri. It is further deposed by PW10 Assistant Sub Inspector Bhuleshwar that Investigating Officer had made the information from the accused Arjun, thereafter, he along with Investigating Officer and accused reached at place of occurrence at Okhla Service Road near Shubhnam Hotel, Tughlakabad Extension and Investigating Officer had prepared the pointing out memo at the instance of accused Arjun, thereafter, they came back at the police station at the lock-up.
60. During his cross-examination, PW10 Assistant Sub Inspector Bhuleshwar has, inter-alia, deposed that in his presence, Sub Inspector Pappu Ram Katewal had handed over some documents to the Investigating Officer. Other formal suggestions denied by him a wrong and incorrect.
61. PW11 Head Constable Narender deposed that on 15.03.2014, he along with Investigating Officer Sub Inspector Hukumvir Atri reached to the Saket Courts where he obtained one day Police Custody remand of accused Chandeshwar @ Sunil and they came to police station from where they went to Okhla Service Road near Shubham Hotel, Tughlakabad Extension, where, the Investigating Officer had prepared Pointing Out Memo at the instance of the accused.
62. During his cross-examination, PW11 Head Constable Narender has, inter-alia, deposed that they remained at FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 36 of 52 Shubham Hotel, TKD Extension for about one hour but he does not remember since when they reached at the spot and till what time they left the spot. PW11 Head Constable Narender further deposed that he does not know whether Investigating Officer obtained signatures of accused Chandeshwar on any paper or not. Other formal suggestions were denied by him as wrong and incorrect.
63. PW12 Sub Inspector Raj Kiran deposed that on 23.02.2014, further investigation of the present case was marked to him and on 03.03.2014, he had gone to the office of AATS, where he met Sub Inspector Pappu Lal Katewa who had already arrested accused Arjun and Chandeshwar in case FIR no.156/14 and also recovered the case properties i.e., mobile phones of the present case. It is further deposed by PW12 Sub Inspector Raj Kiran that he had collected the copy of Seizure Memo of the mobile phones recovered from the possession of the accused persons and the copy of the same (Mark 'X') and Seizure no.18 was belonging to case property. It is further deposed by PW12 Sub Inspector Raj Kiran that thereafter, he had collected the seizure memo of the mobile phones vide Seizure Memo (Ex.PW12/A) bearing his signature at Point 'A'. It is further deposed by PW12 Sub Inspector Raj Kiran that he had recorded the statement of Sub Inspector Pappu Lal Katewa and his team under section 161 Cr.P.C. It is further deposed by PW12 Sub Inspector Raj Kiran that he had also collected the photocopy of the case FIR no.156/14 of Police Station Govind Puri and made an application (Ex. PW12/B) bearing his signature at Point 'A' in the court for formal arrest and interrogation of the accused FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 37 of 52 persons which was allowed and he had formally arrested the accused persons, Arjun and Chandeshwar vide Arrest Memos (Ex.PW12/C and Ex.PW12/D) bearing his signature at Point 'A' . It is further deposed by PW12 Sub Inspector Raj Kiran that he recorded the Disclosure Statements of accused persons, Arjun and Chandeshwar vide Memos (Ex.PW12/E and Ex.PW12/F) bearing his signature at Point 'A'.
64. It is further deposed by PW12 Sub Inspector Raj Kiran that on 04.03.2016, he had made an application for TIP of both the accused persons vide application (Ex.PW12/G) bearing his signature at Point 'A', however, accused Arjun had refused to participate in TIP proceedings and accused Chandeshwar had been correctly identified in the TIP proceedings. It is further deposed by PW12 Sub Inspector Raj Kiran that he had also obtained one day Police Custody of the accused Arjun and prepared the Pointing Out Memo (Ex.PW12/H) bearing his signature at Point 'A' of the place of occurrence at the instance of accused Arjun.
65. It is further deposed by PW12 Sub Inspector Raj Kiran that on 01.05.2014, Dilbag (brother of complainant Surender) had come to the Police Station and handed over the bill of mobile phone (Ex.X2) and copy of RC (Ex.XI) and he had seized the same vide Seizure Memo (Ex.PW4/A and Ex.PW4/B) bearing his signature at Point 'B'. It is further deposed by PW12 Sub Inspector Raj Kiran that he had recorded the statement of Dilbag under section 161 Cr.PC. It is further deposed by PW12 Sub Inspector Raj Kiran that on 12.05.2014, he had collected the FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 38 of 52 copy of booking details and agreement from Ola Company through Rohit Yadav regarding the car bearing registration no. HR 66T 7004, and he had seized the same vide Seizure Memo (Ex.PW2/A). It is further deposed by PW12 Sub Inspector Raj Kiran that he had recorded the statement of Rohit Yadav u/s 161 Cr.P.C.
66. It is further deposed by PW12 Sub Inspector Raj Kiran that after completion of the investigation, he had prepared the charge-sheet and filed the same in the court. It is further deposed by PW12 Sub Inspector Raj Kiran that he could identify the case properties if shown to him. It is further by PW12 Sub Inspector Raj Kiran that the case properties i.e. mobile phones (45) (Ex.Pl to Ex.P45). PW12 Sub Inspector Raj Kiran had correctly identified both the accused persons in the court.
67. During his cross-examination, PW12 Inspector Raj Kiran has, inter-alia, he had never participated in the investigation of FIR No.156/14. PW12 Inspector Raj Kiran deposed that involvement of the accused persons was revealed in the present case after recovery affected in FIR No.156/14. PW12 Inspector Raj Kiran further deposed that he had not recorded statement of the complainant in the present case. PW12 Inspector Raj Kiran deposed that the recovery in the present matter could not be done from the accused persons. PW12 Inspector Raj Kiran again said that case property of the present matter was recovered from the accused persons in FIR no.156/14 and he personally did not recover anything from the accused persons. PW12 Inspector Raj Kiran deposed that he was not aware whether the case FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 39 of 52 property in the present case has been released on 'supardari' or not. Other formal suggestions were denied by him as wrong and incorrect.
68. PW13 Head Constable Pramod Kumar (Now Sub Inspector) deposed that on 24.12.2013, he was posted as Head Constable at Police Station Govind Puri and he had received DD no.56B from duty officer which was registered by Sub Inspector Devender from Police Station Kalkaji to the effect that one person was admitted in Safdarjung Hospital as someone has administered some intoxicate substance to him. It is further deposed by PW13 Head Constable Pramod Kumar that he along with Constable Uday Chand went to the spot i.e., in front of Shabnam Restaurant, Okhla Estate Road, New Delhi where they met Sub Inspector Devender from Police Station Kalkaji, who was accompanied by complainant Surender. It is further deposed by PW13 Head Constable Pramod Kumar that he had recorded the statement of complainant, who narrated the incident occurred with him and the statement (Ex.PW1/A) bears his signature at point B. It is further deposed by PW13 Head Constable Pramod Kumar that he had prepared the site plan at the instance of complainant (Ex.PW13/A) bearing his signature at point A. It is further deposed by PW13 Head Constable Pramod Kumar that Sub Inspector Devender had handed over the MLC of the complainant to him. It is further deposed by PW13 Head Constable Pramod Kumar that he had prepared the 'rukka' on the complaint (Ex.PW13/B) bearing his signature at point B and had handed over the same to Constable Uday Chand, who went to Police Station and got the FIR registered and came back at the FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 40 of 52 spot along with original 'rukka' and copy of FIR and had handed over the same to him. It is further deposed by PW13 Head Constable Pramod Kumar that he tried to locate the accused persons and to recover the case property but he could not succeed, thereafter, further investigation was assigned to Sub Inspector Raj Kiran.
69. During his cross-examination, PW13 Head Constable Pramod Kumar has, inter-alia, deposed that Sub Inspector Devender only handed MLC of the complainant to him. PW13 Head Constable Pramod Kumar further deposed that place of occurrence was a public spot and several passersby were passing through that area, however, the number was very less as it was winter season. PW13 Head Constable Pramod Kumar further deposed that he had not examined any public witness at the spot and had not inquired the matter from Shabnam Hotel employees. PW13 Head Constable Pramod Kumar further deposed that no other public person was found to be present near the spot. PW13 Head Constable Pramod Kumar further deposed that he shared the information with secret informers and also did search in the area of TA Block and Tuglakhabad extension. Other formal suggestions were denied by him as wrong and incorrect.
70. In the light of the charge framed against accused and the arguments advanced before the court, following are the points for determination:
1. Whether the accused persons, in furtherance of their common intention, have caused to be taken by the complainant any stupefying, intoxicating, or FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 41 of 52 unwholesome drug, or other thing with the intent to commit, or to facilitate the commission of offence.
2. Whether the accused persons, in furtherance of their common intention, have caused to be taken by the complainant any stupefying, intoxicating, or unwholesome drug, or other thing with the intent to commit, or to facilitate the commission of offence and dishonestly took away two mobiles phones and Rs.3500/- out of possession of the complainant without his consent.
3. Whether the accused persons, in furtherance of their common intention, have dishonestly retained the stolen property knowingly the same to be stolen property.
DISCUSSION ON THE POINTS FOR DETERMINATION
71. On these points, to prove the commission of theft of mobile phones and money by the accused persons, the testimonies of PW1 Surender, PW2 Rohit Yadav, PW4 Dilbag Singh, PW7 Head Constable Neeraj, PW12 Sub Inspector Raj Kiran, PW13 Head Constable Promod are relevant. As per the testimonies of PW1 Surender, on 21.12.2013 at about 08:00 PM, on receiving of duty from call center of Ola Cab Company, he reached at the pick-up point to pick-up the passenger, the accused Arjun caused him to drink some intoxicating substance mixed with tea and after some time, the other accused Chandeshwar also came in the car and lighted a cigarette thereby the cab was filled with the smoke and he asked the complainant to open the FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 42 of 52 window, thereafter, the complainant had become unconscious and regained consciousness on the next day at about 05:00 PM. As per the testimonies of PW1 Surender on regaining consciousness, he realized that his two phones and Rs.3500/- had already been robbed by the accused persons. The testimonies of PW1 Surender regarding assigning of the duty by the Ola Cab Company has been corroborated by PW2 Rohit Yadav (Senior Executive of the Ola Cabs Pvt. Ltd.). As per the testimonies of PW2 Rohit Yadav, as per the record, a taxi cab bearing registration number HR-66T- 7004 owned and driven by the complainant, Surender Singh (PW1) was got booked in the name of one Dinesh Kumar who gave his phone number as 09871406118 on 22.12.2013 at about 09:30 PM for his pick-up from Kalkaji DDA Flats and to drop at Domestic Airport and the said information was passed to the taxi driver Surender Kumar (the complainant). As per the testimonies of PW2 Rohit Yadav, the driver Surender Kumar, however, could not informed regarding his reaching at the Domestic Airport and on the next day, PW2 Rohit Yadav came to know about the incident. The testimonies of PW1 Surender Kumar regarding the incident have also been corroborated by PW4 Dilbag Singh who is brother of the complainant. As per the testimonies of PW4 Dilbag Singh, on the day of incident, his brother Surender was driving the said car.
72. Regarding registration of this case, the testimonies of PW1 Surender, PW3 Assistant Sub Inspector Yad Ram, PW5 Constable Uday Chand, PW8 Sub Inspector Devender Kumar, PW13 Head Constable Pramod Kumar are relevant. As per the testimonies of PW8 Sub Inspector Devender Kumar that on FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 43 of 52 22/23.12.2013, he was posted at Police Station Kalkaji and at about 02:00 AM, an information was received regarding admission of injured in the Safdarjung Hospital and when he went to the hospital, he found the injured to be unconscious and after discharging from the hospital, the injured came to the police station and PW8 Sub Inspector Devender Singh went to the spot with the injured and found that the place of occurrence falls within the jurisdiction of Police Station Govind Puri, therefore, he informed about the incident in the Police Station Govind Puri and after some time one Head Constable came to the spot to whom he handed over the MLC and the injured. As per the testimonies of PW13 Head Constable Pramod Kumar and PW5 Constable Uday Chand that on receiving of above information from Sub Inspector Devender (PW8), they reached at the spot and the Investigating Officer (PW13) got MLC of the complainant and recorded the statement (Ex.PW1/A) of the complainant who narrated the incident and at the instance of the complainant, also prepared the site plan (Ex.PW13/A). As per the testimonies of PW13 Head Constable Pramod Kumar and PW5 Constable Uday Chand that Investigating Officer prepared the 'rukka' on the complaint and got the FIR registered through Constable Uday Chand. As per the testimonies of PW13 Head Constable Pramod Kumar and PW5 Constable Uday Chand, they made efforts to locate the accused persons and to recover the case property but could not succeed and thereafter, further investigation of the case was assigned to Sub Inspector Raj Kiran(PW12).
FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 44 of 5273. Regarding apprehension of the accused persons and recovery of stolen properties from the possession of the accused persons, the testimonies of PW6 Sub Inspector Pappu Lal, PW7 Head Constable Neeraj, PW10 ASI Bhuleshwar, PW12 Sub Inspector Raj Kiran are relevant. As per the testimonies of PW6 Sub Inspector Pappu Lal and PW7 Head Constable Neeraj on 21.02.2014, they were posted in the office of AATS/SED and on the information received from secret informer about the involvement of the accused persons, namely, Arjun and Chandeshwar in the cases of robbery, at the instance of the secret informer, they apprehended both the accused persons and conduced their personal search.
74. As per the testimonies of PW6 Sub Inspector Pappu Lal and PW7 Head Constable Neeraj, on personal search of the accused Arjun, 3 mobile phones were recovered from his pocket out of which 2 were without SIM Card and on the personal search of the accused Chandeshwar, two mobile phones and 18 sleeping pills were recovered SIM Card were recovered from his pocket out of which 1 mobile phone was found to have been stolen in the present case. The mobile phones and the sleeping pills (Ativan) were taken into police custody under section 102 Cr.P.C. vide Seizure Memo Ex.PW7/B, PW8/B and PW8/A. As per the testimonies of PW6 Sub Inspector Pappu Lal and PW7 Head Constable Neeraj, the accused persons were interrogated and arrested vide the Arrest Memos Ex.PW8/C and Ex.PW8/D and their personal search was conducted vide Personal Search Memo Ex.PW8/E and Ex.PW8/F and during the course of interrogation, their Disclosure Statement Ex.PW8/G and FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 45 of 52 Ex.PW8/H were also recorded. As per the testimonies of PW6 Sub Inspector Pappu Lal and PW7 Head Constable Neeraj, in pursuance of their disclosure statement, both the accused persons led them to their rented Jhuggi at Govind Puri, New Delhi and got recovered one black colour bag containing 48 cell phones, 3 wrist watches, 1 chain with two lockets, 1 battery and 110 Ativan Sleeping Pills which mobile phones, wrists watches, chain with lockets and the Ativan tablets were seized vide Seizure Memos, Ex.PW7/C, Ex.PW8/K, Ex.PW8/J and Ex.PW8/L, respectively, which case properties were deposited in the 'Malkhana' Police Station Govind Puri. As per the testimonies of PW6 Sub Inspector Pappu Lal and PW7 Head Constable Neeraj, during verification, the mobile phones were found to have been stolen from the areas of different police stations and accordingly, information to the Investigating Officers of the concerned FIRs regarding recovery of sell phones were sent and the concerned Investigating Officers contacted Sub Inspector Pappu Lal who handed over to them copies of disclosure statements of the accused persons recorded and the seizure memos and the other relevant documents. Both the accused persons, Arjun Singh @ Parth Debnath and Chandeshwar @ Sunil were correctly identified by PW6 Sub Inspector Pappu Lal and PW7 Head Constable Neeraj in the Court.
75. Regarding arrest of the accused persons in the present case, the testimonies of PW12 Sub Inspector Raj Kiran and PW10 Assistant Sub Inspector Bhuleshwar are relevant. As per the testimonies of PW12 Sub Inspector Raj Kiran and PW10 Assistant Sub Inspector Bhuleshwar, they went to the office of FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 46 of 52 AATS and met Sub Inspector Pappu Lal who had already arrested the accused persons, namely, Arjun and Chandewhar in the case FIR no.156/2014 and also recovered the case property i.e., mobile phone of the present case and Sub Inspector Raj Kiran (PW12) collected the seizure memo (Mark X) of the mobile phones recovered from the possession of the accused persons and seizure no. 18 was belonging to the case property and also collected the seizure memo of the mobile phones vide Seizure Memo (Ex.PW12/A) and thereafter, recorded the statement of the Sub Inspector Pappu Lal and his team under section 161 Cr.P.C., and collected the copy of FIR no.156/14 of Police Station Govind Puri. As per the testimonies of PW12 Sub Inspector Raj Kiran and PW10 Assistant Sub Inspector Bhuleshwar, the Investigating Officer (PW12) made an application (Ex.PW12/B) to the Court for formal arrest and interrogation of the accused persons, which was allowed and he formally arrested the accused persons Arjun and Chandeshwar vide Arrest Memo (Ex.PW12/C and Ex.PW12/D) and recorded their disclosure statement (Ex.PW12/E and Ex.PW12/F).
76. Regarding identification of the accused persons, namely, Arjun and Chandeshwar, testimonies of PW1 Surender, PW6 Sub Inspector Pappu Lal and PW7 Head Constable Neeraj, PW12 Sub Inspector Raj Kiran and PW10 Assistant Sub Inspector Bhuleshwar are relevant. Both the accused persons were initially apprehended by Sub Inspector Pappu Lal (PW6) and Head Constable Neeraj (PW7) of AATS of South East District and both these witnesses have also correctly identified both the accused persons in the Court and stated that during FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 47 of 52 interrogation, both the accused persons have disclosed about their involvement in the present case. As per the testimonies of the Investigating Officer, PW12 Sub Inspector Raj Kiran, after arrest of both the accused persons, he had made an application (Ex.PW12/G) for conducting Test Identification Parade (TIP) of the accused persons, however, the accused Arjun had refused to participate in the TIP proceedings. As per the testimonies of PW1 Surender (complainant) and PW12 Sub Inspector Raj Kiran (Investigating Officer) and the accused Chandeshwar had been correctly identified by the complainant in the TIP proceedings. During trial also, the complainant PW1 Surender and PW12 Sub Inspector Raj Kiran have correctly identified both the accused persons present in the Court. From the testimonies of PW1 Surender, PW6 Sub Inspector Pappu Lal and PW7 Head Constable Neeraj, PW12 Sub Inspector Raj Kiran and PW10 Assistant Sub Inspector Bhuleshwar, the identity of the accused persons, namely, Arjun and Chandeshwar as the offenders is duly proved and established.
77. Regarding recovery of the case property, testimonies of PW1 Surender, PW6 Sub Inspector Pappu Lal and PW7 Head Constable Neeraj, PW12 Sub Inspector Raj Kiran and PW10 Assistant Sub Inspector Bhuleshwar are relevant. As per the testimonies of PW6 Sub Inspector Pappu Lal and PW7 Head Constable Neeraj of AATS/SE District, from the formal search of the accused persons after their arrest, 3 mobile phones were recovered from the pocket of the Arjun out of which 2 were without SIM cards and 2 mobile phones without SIM card and 18 sleeping pills were recovered from the pocket of accused FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 48 of 52 Chandeshwar and on verification one of the sell phone recovered from the accused Chandeshwar was found to have been stolen in the present case. As per the testimonies of PW6 Sub Inspector Pappu Lal and PW7 Head Constable Neeraj, after further interrogation, pursuant to their disclosure, both the accused persons, Arjun and Chandeshwar have led them to their rented Jhuggi at Govind Puri, New Delhi and got recovered 1 black colour bag containing 48 sell phones, 3 wrists watches, 1 gold chain with locket, 1 battery and 110 Ativan sleeping pills. These stolen mobile phones were produced in the court during trial before PW6 Sub Inspector Pappu Lal, PW7 Head Constable Neeraj and PW1 Surender and these witnesses have correctly identified the mobile phones of the complainant stolen by the accused persons from the complainant in the present case. A perusal of the Seizure Memo (Mark X) of 48 stolen mobile phones recovered from the accused persons reveals that the IMEI number of two mobile phones (356841059668944 and 356842059668942) mentioned at serial no.18 of such list match with the IMEI number of the mobile phones given by the complainant in his complaint for recording of FIR.
78. It is important to note here that recovery of the stolen articles involved in the present case was made by police officials (PW6 and PW7) posted at AATS of South East District and not by the Investigating Officers of this case. During interrogation, it was disclosed by the accused persons that they have also involved in the commission of offence in the present case and thereafter, information was sent to the Police Station Govind Puri and pursuant thereof the Investigating Officer of the FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 49 of 52 present case had formally arrested the accused persons and took copies of the relevant documents from the police officials of AATS South East District. The police officials from the AATS South East District (PW6 and PW7), the Investigating Officer of the present case (PW11 Sub Inspector Raj Kiran) and the complainant (PW1 Surender) have correctly identified the mobile phones stolen from the complainant which are case properties of the present case. Recovery of stolen mobile phones by the staff of AATS South-East District, who were un-connected with the investigation of the present case, is worthy of credit and their testimonies carry the guarantee of the trustworthy witness. Therefore, in the light of testimonies of PW6 Sub Inspector Pappu Lal and PW7 Head Constable Neeraj, I am of the considered opinion that the recovery of mobile phones stolen in the present case pursuant to the disclosure of the accused persons from their possession is duly proved by the prosecution.
79. Next comes the question of causing the stupefying, intoxicating, or unwholesome drug, or other thing to be taken by the complainant with the intent to commit, or to facilitate the commission of offence.
80. The Learned Additional Public Prosecutor for the State has referred to the judgment in Mohd. Wasim's case (supra) to argue that since, the complainant was unconscious for twenty four hours, therefore, no gastric laverage was recovered by the doctor, however, in the light of the above judgment, the accused is liable to be convict for the offence under section 328 IPC. It FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 50 of 52 has been held by Hon'ble High Court of Delhi in Mohd. Wasim's case (supra) as follows:-
"20. As regards offence punishable under section 328 IPC is concerned, the case of the victim was that her uncle used to give her tablets everyday due to which she felt drowsy and unconscious. Since the report was lodged after a few days and immediately medical examination was not conduced and gastric laverage not preserved, there would be no evidence besides the evidence of the victim to support this contention. In her cross- examination also the victim reiterates that after consuming tablets given by the appellant she used to sleep and wake up in the next morning. She stated that prior to the day when she threw the tablet in the drain and refused to eat it she was not aware that her uncle was committing any wrong act with her or anything wrong had happened to her. However, she is categorical about her being given the tablets everyday and to this extent her testimony remains unchallenged. Thus the conviction of the appellant for offence punishable under section 328 IPC is upheld."
81. As per the testimonies of PW1 Surender, he was made to drink some stupefying drug mixed with tea in the late hours of evening of 21.12.2013 and he regained his consciousness on the next day at about 05:00 PM. Said testimonies of the complainant (PW1) is also corroborated by the recovery of Ativan Tablets from the possession of the accused persons. In the present matter, no gastric laverage was preserved as the complainant was not brought to the hospital after expiry of more than 24 hours of taking stupefying drugs mixed with tea, therefore, there would be no evidence besides the testimonies of the complainant to support the case of the prosecution. During the cross-examination of the complainant (PW1), his above-said testimonies had remained intact and nothing has come out in his cross-examination which goes against said testimonies. In light of testimonies of the complainant, PW1 Surender and the judgment of Hon'ble Delhi High Court in Mohd. Wasim's case FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 51 of 52 (supra), I am of the considered opinion that it is safe to convict the accused persons for the offence under section 328 IPC.
82. To sum up, in view of above discussion, the prosecution has proved beyond reasonable doubt the charge under Sections 328/379/411/34 of Indian Penal Code against the accused persons, namely, Arjun Singh @ Parth Debnath and Chandeshwar @ Sunil , so the accused persons, namely, Arjun Singh @ Parth Debnath and Chandeshwar @ Sunil are found guilty of having committed the said offences and hence they are convicted of offence punishable under Sections 328/379/411/34 of Indian Penal Code, 1860.
83. Let the convict be heard on the question of sentence.
DR Digitally signed
by DR RAKESH
RAKESH KUMAR
Date: 2024.04.09
KUMAR 15:54:20 +0530
Pronounced in the open court (DR. RAKESH KUMAR)
th
on 09 of April, 2024. Additional Sessions Judge, (FTC)-02, South District, Saket Courts, New Delhi(JKu) FIR no. 960/2013 State v. Arjun Singh @ Parth Devnath Page 52 of 52