Delhi District Court
St. vs . Ravi Kumar on 10 October, 2008
-:1:-
S.C. NO. 25/08
St. Vs. Ravi Kumar
IN THE COURT OF SHRI B. R. KEDIA ; A.S.J.
TIS HAZARI COURTS ; DELHI
S.C. NO : 25/08
FIR NO. 04/08
P.S. Railway Sarai Rohilla
U/Sec. 328/379/411 IPC
State Vs. Ravi Kumar
S/O Ram Avadh
R/o Village Asnora,
P.S. Chhapia,
District Gorakhpur,
Uttar Pradesh.
Date of institution 16.04.2008
Arguments heard on 06.10.2008
Judgment delivered on 08.10.2008
J U D G M E N T :-
Single accused namely Ravi Kumar, S/o Ram Avadh has been chargesheeted for facing -:2:- S.C. NO. 25/08 St. Vs. Ravi Kumar trial in a case bearing FIR No.04/08 for offence punishable U/S 328/379/411 IPC, as registered at P.S. Sarai Rohilla, Delhi, on the basic allegation of feeding stupefyed toffee to the complainant Dewan Ram and on his becoming unconscious, committing theft of his suitcase containing one Nokia Mobile phone, cash amount of Rs.1000/- and some clothes etc. at Sarai Rohilla Railway Station, Delhi at about 1 :
15 P.M on 04.02.2008 and having possession of said stolen Nokia Mobile phone of complainant at the time of his apprehension at a place in Platform no. 2 & 3 of Sarai Rohilla Railway -:3:- S.C. NO. 25/08 St. Vs. Ravi Kumar Station at about 2 : 40 P.M. on 07.02.2008.
2. The precise case of the prosecution as found reflected from the chargesheet is that on 07.02.2008 when ASI Prakash Chand alongwith Ct. Neeraj Gautam were on patrolling at Platform No.2 & 3 near Naresh Tea Stall at Sarai Rohilla Railway Station, complainant Dewan Ram alongwith SI Ramphal and Ct. Sawant Singh from RPF produced accused Ravi Kumar saying that said accused Ravi Kumar have administered stupefyed toffee to complainant Dewan Ram on 04.02.2008 and have stolen his -:4:- S.C. NO. 25/08 St. Vs. Ravi Kumar suitcase containing one Nokia Mobile phone, cash amount of Rs.1000/- and some clothes etc and at the instance of said complainant Dewan Ram, the accused has been apprehended. Thereafter, statement of complainant Dewan Ram, which is Ex.PW.2/A was recorded by ASI Prakash Chand. As per said statement of complainant Dewan Ram, he has been working as rickshaw puller with Krishna International Co. at 565/78, Regarpura, Karol Bagh and on 04.02.2008 for going to his native village in Bihar, he sat in a compartment of Jansadharan Express, on which 2 boys sat near him and -:5:- S.C. NO. 25/08 St. Vs. Ravi Kumar started talking with him. After sometime, one of them offered one toffee, on consuming which, he started feeling giddiness, on which he informed his associate about the same through phone but before his arrival, those boys decamped with his suitcase containing one Nokia Mobile phone, cash amount of Rs.1000/- and some clothes etc. On that day i.e. 07.02.2008, when he again came to Sarai Rohilla Railway Station for going to his native village and on identifying one of those 2 boys standing in the platform, he informed about the same to SI of RPF who caught hold of him and -:6:- S.C. NO. 25/08 St. Vs. Ravi Kumar from his personal search, 3 toffees besides his stolen Nokia Mobile phone were recovered from that boy, whose name revealed as Ravi Kumar, S/o Ram Avadh, who has offered him stupefyed toffee and committed theft of his suitcase containing one Nokia Mobile phone, cash amount of Rs.1000/- and some clothes etc. In pursuance of the said statement of complainant Dewan Ram, FIR bearing No.04/08, U/S 328/379/411 IPC, copy of which is Ex.PW.7/B, was got registered at P.S. Sarai Rohilla Station on 07.02.2008. After registration of the FIR, further investigation was taken up was ASI -:7:- S.C. NO. 25/08 St. Vs. Ravi Kumar Prakash Chand. During the course of investigation Site Plan was prepared, accused was arrested, interrogated and his disclosure statement was recorded, recovered case properties were seized and sent to FSL for examination. statement of relevant witnesses were recorded and ultimately, after conclusion of the investigation charge sheet U/S 328/379/411 IPC was filed against the accused in the court of concerned Ld. M.M., who after compliance of requirements U/S 207 Cr. P.C. was pleased to commit the case to the Court of Sessions. Thereafter, this matter was assigned -:8:- S.C. NO. 25/08 St. Vs. Ravi Kumar to this court for trial.
3. On hearing both the sides on the point of charge vide order dt. 17.05.2008 charge for the offence punishable U/S328/379/411 IPC was framed against this accused to which accused pleaded not guilty and claimed for trial.
4. During the course of trial, prosecution in support of its case got examined 7 prosecution witnesses, namely, SI Ramphal Vasisth, who has initially apprehended the accused at the instance of the complainant and got recovery from him, a material witness as PW- -:9:- S.C. NO. 25/08
St. Vs. Ravi Kumar 1, complainant Dewan Ram, the most material witness as PW-2, Ct. Neeraj Gautam, who was present alongwith PW-7 ASI Prakash Chand/IO and joined the proceedings, a formal witness as PW-3, Dr. M. Mogesta Behlo, C.M.O from Lady Hardinge Hospital, who has medically examined the complainant and proved his MLC as Ex.PW.4/A, a formal witness as PW-4, SI Shishu Pal, a formal witness as PW-5, Sh. Ankur Malhotra, who on receiving the telephonic call from the complainant has reached at the spot and got admitted him in Lady Hardinge Hospital on 4/02/08, a formal witness as PW-6, ASI -:10:- S.C. NO. 25/08 St. Vs. Ravi Kumar Prakash Chand, who is the I.O and have deposed about the investigation as carried out him, has been examined as PW-7.
5. After examination of aforesaid 7 prosecution witnesses, prosecution evidence was closed. Thereafter, statement of accused U/S 313 Cr. P.C. was recorded in which the accused denied the allegation of prosecution and claimed to be innocent and have been falsely implicated in this case. However, accused has not led any evidence in his defence.
6. I have heard Sh. C. P. Dubey, Advocate, -:11:- S.C. NO. 25/08 St. Vs. Ravi Kumar Ld. Counsel for the accused, Sh. Zenul Abedeen, Ld. APP for the state and perused the relevant material as available on case record.
7. It is submitted by Ld. Counsel for the accused that this accused is innocent and has been falsely implicated in this case and hence deserves to be acquitted. It is further added by Ld. Counsel that the deposition of complainant PW.2 Dewan Ram cannot be treated as trust worthy and reliable. It is further added that no public witness was joined at the time of arrest of the accused and alleged recovery of stolen mobile phone and toffees from the accused, -:12:- S.C. NO. 25/08 St. Vs. Ravi Kumar despite availability of public witness at railway platform and same is fatal for the case of the prosecution. It is further added by Ld. Counsel that there are several discrepancies on the deposition of various PWs on the point as to when the complainant Dewan Ram regained his consciousness and as to when the accused was apprehended and as to the persons who apprehended the accused and the same are fatal for the case of the prosecution. Thus, Ld. Counsel urged for acquittal of this accused.
8. To the contrary it is submitted by Ld. APP for the State that by examining 7 prosecution -:13:- S.C. NO. 25/08 St. Vs. Ravi Kumar witness, prosecution have successfully established its case as against accused for the charged offence and therefore the accused deserves to be convicted accordingly. It is also submitted by Ld. APP that as there is no reason to disbelieve the deposition of PW.2 Dewan Ram, who have clearly identified the accused and deposed as against him. It is further added by Ld. Addl. P.P that mere certain discrepancies on the deposition of various Pws, when they are examined before the court afterwards are formal and usual and cannot be treated as fatal for the case of the prosecution. Thus, Ld. Addl. P.P -:14:- S.C. NO. 25/08 St. Vs. Ravi Kumar urged for conviction of this accused for the offence for which he was charged with.
9. The main question that arises having significant bearing on the fate of this case is, "Whether this accused Ravi Kumar can be held liable for offence punishable U/S 328/379 IPC for feeding the stupefied toffee to the complainant Dewan Ram and after his becoming unconscious, committing theft of his suitcase containing one Nokia Mobile Phone, cash amount of Rs.1000/- and some clothes etc. on 04.02.2008 at Sarai Rohilla, Railway Station.?" -:15:- S.C. NO. 25/08
St. Vs. Ravi Kumar So far as this aspect is concerned, the complainant Dewan Ram, who has been examined as PW-2 has deposed in the court that he was working as a rickshaw pullar and on 04.02.2008 between 12 noon to 1 : 15 P.M. while he was present inside the compartment of Train Jansadharan Express, stationed at platform no.3 of Sarai Rohilla Railway Station for going to his native village, accused Ravi Kumar as present in the court came and sat near him and started talking to him for about half an hour and offered one toffee after consuming which he started feeling giddiness -:16:- S.C. NO. 25/08 St. Vs. Ravi Kumar and informed about the same by phone to his co-villager Ankur about the incident. Said PW2 further deposed that thereafter, he became unconscious and said Ankur alongwith Vinod reached there and to awakened him and he found his suitcase, containing his mobile phone, cash amount of Rs.1000/-, his documents and clothes were found missing and he suspected the same to have been stolen by the accused Ravi Kumar. He further deposed that he was got admitted in the Hospital by said Ankur and Vinod on that day and he regained consciousness in the Hospital on the next day. -:17:- S.C. NO. 25/08
St. Vs. Ravi Kumar Said PW.2 Dewan Ram further deposed that on 07.02.2008, he again came to Platform No.3 of said Sarai Rohilla Railway Station for going to his native village by train and on identifying the accused being found present at platform no.2, he informed about the incident to the police, who apprehended the accused Ravi Kumar at his instance and called some other police officials and on personal search of accused Ravi Kumar, 3 toffees and his stolen mobile phone were recovered from the person of said accused. He further deposed that police recorded his statement, which is Ex.PW.2/A bearing his -:18:- S.C. NO. 25/08 St. Vs. Ravi Kumar signatures at point A and accused was arrested by police vide arrest memo Ex.PW.1/A, personal search memo Ex.PW.1/B and his disclosure statement Ex.PW.1/D, bearing his signatures at point 'D'. Said PW.2 has identified his Nokia Mobile phone as recovered from the accused is Ex.P-1. The material part of the deposition of said PW-2 Dewan Ram is also found corroborated from his earlier police statement, which is Ex.PW.2/A, forming the basis of FIR. The part of the deposition of PW.2 Dewan Ram regarding his getting admitted in the Hospital by Ankur on 04.02.2008 is also found corroborated -:19:- S.C. NO. 25/08 St. Vs. Ravi Kumar from the deposition of PW.6 Ankur as well as PW.4 Dr. M. Mogesta Behlo. As PW.6 Ankur deposed in the court that on 04.02.2008 on receiving a telephonic call from their rickshawpuller Dewan Ram from Railway Station Sarai Rohilla that somebody administered intoxicated substance to him, he alongwith one worker of their company reached at Sarai Rohilla Railway Station and found Dewan Ram under influence of intoxication and got him admitted at Lady Hardinge Hospital. He further deposed that it came to his notice that some belongings and cash amount of -:20:- S.C. NO. 25/08 St. Vs. Ravi Kumar Rs.1000/1200/- had been stolen by someone from the possession of said Dewan Ram at Railway Station after administering intoxicated substance to him. Said PW.6 also deposed that they had surrendered the railway ticket of Dewan Ram to the booking clerk. Said PW-6 also deposed that he was informed by Dewan Ram by phone that on 07.02.2008 that boy, who had administered the intoxicated substance to him on 04.02.2008 was apprehended by the police at his instance on 07.02.2008 from Railway Station, Sarai Rohilla, when Dewan Ram had gone there for going to his native -:21:- S.C. NO. 25/08 St. Vs. Ravi Kumar village.
10. Further more, PW.4 Dr. M. Mogesta Behlo, C.M.O from Lady Hardinge Hospital deposed that on 04.02.2008 at about 4 : 00 P.M patient Dewan Ram, S/o Dhorai Ram was brought by Ankur Malhotra with alleged history of unknown poisoning and he was medically examined by him vide MLC Ex.P.4/A. Further more the factum regarding the apprehension of accused Ravi Kumar at the instance of complainant Dewan Ram at platform no.3 at Sarai Rohilla Railway Station on 07.02.2008 and recovery of 3 toffees and the stolen mobile phone -:22:- S.C. NO. 25/08 St. Vs. Ravi Kumar from the person of accused is found corroborated, from the deposition of PW.1 SI Ramphal Vasisth, PW.3 Ct. Neeraj Gautam, who are witness to the apprehension of the accused and his arrest memo Ex.PW.1/A, personal search memo Ex.PW.1/B and recovery memo of Nokia Mobile phone and 3 toffees from the person of accused Ravi Kumar vide seizure memo Ex.PW.1/C, besides the deposition of PW.7 ASI Prakash Chand, who happens to be the I.O of this case. The material pat of the deposition of said PWs could not be demolished in their cross examination.-:23:-
S.C. NO. 25/08
St. Vs. Ravi Kumar
11. Further more, from the perusal of the FSL Report Ex.PW.7/F, Exhibit '1A'.(which is one of the toffee as recovered from the possession of accused Ravi Kumar) on Chemical and Thin Layer Chromatography Examination, it was found to contain "BENZODIAZEPINE DRUG". Further more, the Nokia Mobile phone as recovered from the person of accused Ravi Kumar, which has been duly identified by PW.2 Dewan Ram as the same, as belongs to him, which was stolen from him on 04.02.2008 and thus, the recovery of the stolen mobile phone of -:24:- S.C. NO. 25/08 St. Vs. Ravi Kumar the complainant from the person of the accused has further added credence to the deposition of PW.2 Dewan Ram and other connected PWs, who are recovery witness as against this accused and I do not see any reason to disbelieve the same.
12. I also do not find any force in the submission of Ld. Counsel for the accused to the effect that as no independent public witness, during arrest and recovery proceedings were joined by the I.O. and same is fatal for the case of the prosecution. As in the case reported as -:25:- S.C. NO. 25/08 St. Vs. Ravi Kumar AIR 1988 SC 696, it was observed by Hon'ble Supreme Court of India as under:-
"Failure of prosecution to examine the independent witness cannot be ground for throwing out the case of the prosecution".
Further more, in case J.T. 1999 (8) SC 537, it was held by Hon'ble Supreme Court that, "mere fact that no independent public witness was joined as a witness to recovery, it is not vitiated by it."
-:26:-S.C. NO. 25/08
St. Vs. Ravi Kumar Similar view was also held by Hon'ble Delhi High Court in the case reported as 2007 IV AD (Delhi) 210, "Jawahar Vs. The State."
Further more, in the present case, PW.3 Ct. Neeraj Gautam, who is a witness to the recovery proceedings as well as PW.7 ASI Prakash Chand, I.O have clearly deposed that some public persons were asked to join the proceedings, but they went away after declining their request, and therefore, same cannot be over emphasised.
13. I do not find any force in the submission of Ld. Counsel for the accused for throwing out -:27:- S.C. NO. 25/08 St. Vs. Ravi Kumar the case of the prosecution merely on the ground of certain discrepancies/contradictions in the deposition of various PWs. I am of the considered view that such discrepancies are bound to occur in the deposition of various witnesses being usual and natural and even otherwise as they are found to be formal in nature without striking at the root of the matter and the same cannot be treated as fatal for the prosecution. In the case reported as, "JT 1999 (9) SC 43 State of H.P. Vs. Lekhraj and another", it was observed by Hon'ble Supreme Court of India as under :-
-:28:-S.C. NO. 25/08
St. Vs. Ravi Kumar "In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to laps of time, due to mental disposition such as shock and horror at the time of occurrence, and the like."
It was further observed in the said judgment as under :-
"The traditional
dogmatic hyper technical
approach has to be replaced by
rational, realistic and genuine -:29:- S.C. NO. 25/08 St. Vs. Ravi Kumar approach for administering justice in a criminal trial."
In recent case reported as, "JT 2006 (1) SC 645 "Surender Singh Vs. State of Haryana", it was observed by Hon'ble Supreme Court of India as under :-
"It is well-established
principle of law that every
discrepancy in the witness
statement cannot be treated as
a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create -:30:- S.C. NO. 25/08 St. Vs. Ravi Kumar infirmity."
14. I also do not find any force in the submission of Ld. Counsel for the accused to the effect that deposition of PW-2 Dewan Ram, complainant cannot be treated as trustworthy and reliable as and I do not see any reason as to why he would falsely implicate this accused in case he had not feeded him the stupefied toffee and committed theft of his suitcase containing his belongings, his mobile phone and cash amount of Rs.1000/-, specifically, when the complainant had no earlier enmity as against this accused. Further more, the recovery of the -:31:- S.C. NO. 25/08 St. Vs. Ravi Kumar stolen mobile phone from the person of this accused on 07.02.2008 further add credence to the deposition of said PW.2 as against this accused and same cannot be ignored.
15. In the light of the aforesaid material as found available on the case record and keeping in mind that deposition of the complainant PW-2 Dewan Ram and other connecting evidence, I have no hesitation to safely conclude that prosecution has been successful in establishing its case for offence punishable U/S 328/379 IPC as against this accused.
-:32:-S.C. NO. 25/08
St. Vs. Ravi Kumar However, since, this accused has been found guilty for the principal offence punishable U/S 379 IPC, he cannot be held guilty again for offence punishable U/S 411 IPC for retention of stolen Nokia Mobile phone and my said view is found supported from the judgment reported as 1992 Cr. L. J. 2374 " Mohan Cheri & Ors Vs State of West Bengal".
16. The net result of the aforesaid discussion is that this accused Ravi Kumar is found guilty for offence punishable U/S 328/379 IPC and is convicted accordingly. Let, this convict be heard -:33:- S.C. NO. 25/08 St. Vs. Ravi Kumar separately on the point of sentence. ANNOUNCED IN THE OPEN COURT (B.R. KEDIA) On 8th October, 2008 Addl. Sessions Judge Tis Hazari Courts Delhi -:34:- S.C. NO. 25/08 St. Vs. Ravi Kumar IN THE COURT OF SHRI B. R. KEDIA ; A.S.J. TIS HAZARI COURTS ; DELHI S.C. NO : 25/08 FIR NO. 04/08 P.S. Railway Sarai Rohilla U/Sec. 328/379 IPC (Convicted) State Vs. Ravi Kumar S/O Ram Avadh R/o Village Asnora, P.S. Chhapia, District Gorakhpur, Uttar Pradesh.
ORDER ON SENTENCE :-
In pursuance of judgment dt. 08.10.2008 as passed by this court whereby convicting the accused Ravi Kumar for offence punishable U/S 328/379 IPC, -:35:- S.C. NO. 25/08 St. Vs. Ravi Kumar I have heard Sh. Nagender Singh, Adv. Ld. Counsel for the convict, Sh. Zenul-Abedeen, Ld. APP for the State and perused the case record for passing this order on sentence.
2. It is submitted by Ld. Counsel for the convict that this convict is a young boy aged about 20 years and hails from a poor family comprising himself, his old aged parents besides 3 younger brothers and one younger sister. It is further added by ld. Counsel that this convict is a first offender and is in custody from the date of his arrest i.e. 07.02.2008 and hence urged for taking lenient consideration.
3. However, it is submitted by Ld. APP for the -:36:- S.C. NO. 25/08 St. Vs. Ravi Kumar State that considering the nature of offence for which this convict has been held guilty, he does not deserve any leniency and appropriate sentence may be imposed as against him.
4. Considering the aforesaid submission from both the sides and specifically keeping in mind the young age aspect of this convict and taking the cue from the judgment as rendered by Hon'ble Delhi High Court in similar matter reported as 31 (1987) DLT 245 "Lachhman Vs. State", I deem it proper to award as against this convict sentence of R.I. for 4 years and fine of Rs. 1000/- and in default of payment of fine, additional R.I. for 1 month for his conviction for offence punishable U/S 328 IPC and R.I. for 1 year for his conviction for offence punishable U/S 379 IPC. -:37:- S.C. NO. 25/08
St. Vs. Ravi Kumar However, it is made clear that both these sentences of R.I. shall run concurrently and the convict will be entitled for the benefit U/S 428 Cr. P.C. and the period of his detention which is reflected from the case record and as verified by the Court Reader (From 07.02.2008 till date) shall be set off against the aforesaid substantive sentence period. Concerned Jail Superintendent, Central Jail, Tihar be intimated accordingly.
5. Let, a copy of the judgment dt. 08.10.2008 and copy of this order on sentence be given free of cost to the convict Ravi Kumar immediately. -:38:- S.C. NO. 25/08
St. Vs. Ravi Kumar ANNOUNCED IN THE OPEN COURT (B.R. KEDIA) On 10th October, 2008 Addl. Sessions Judge Tis Hazari Courts Delhi.