Delhi District Court
State vs Chandeshwar on 23 December, 2024
DLST010019502024
IN THE COURT OF SHRI SUNIL GUPTA
ADDITIONAL SESSIONS JUDGE-06, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
State Vs. Chandeswar
FIR No.263/2023
PS Safdarjung Enclave
JUDGEMENT
1. Sl. No. of the case : 164/2023
2. Date of institution of the case : 05.03.2024
3. Name of complainant : State
4. Date of commission of offence : 27.08.2023
5. Name of accused, parentage : Chandeswar S/o Sh. Kamal
Rama, R/o H.No.A-448,
Bhumina Camp, Govind Puri,
Kalkaji, Delhi; Permanent
address- Village Dairpur, PS
Chali, Mujaffarpur, Bihar
6. Offence complained of or proved : Section 328 IPC and 379 r/w
75 IPC
7. Plea of accused : Accused pleaded not guilty
8. Final order : Convicted
9. Date on which order was reserved : 19.12.2024
10.Date of pronouncement : 23.12.2024
FIR No. 263/2023 State Vs. Chandeswar Page No. 1 / 22
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2024.12.24
18:51:14
+0530
1. Proceedings herein got initiated when ASI Rajesh Kumar alongwith HC Manohar, while returning from Yusuf Sarai Gurudwara after attending a call, had reached in front of C-4, Green Park Extn. They saw a crowd gathered there. When they checked, they got to know that the crowd had caught hold of one person who was handed over to HC Manohar. Inquiry was made from the person who was shouting and his statement was recorded. In his statement, that person namely, Shiv Ratan alleged that on 27.08.2023 at around 06:00 pm, he was going in his Auto from IIT Gate towards AIIMS Hospital. He alleged that when he reached near bus stand, gate no.2, Green Park Metro Station, one person signaled him to stop whereupon he asked him as to where he wanted to go. It was alleged that he was told by that person that he wanted to go to Punjabi Bagh Club Road. He allowed him to sit in his auto and started driving the same. It was alleged that when they had reached Chaudhary Hukam Chand Marg after some distance, that person got the auto stopped saying that one more passenger was to come. He allegedly told Sh. Shiv Ratan that he will come in a while and he returned after around 10 minutes while carrying two small plastic Lahori Zeera Bottles. It was alleged that he started drinking from one bottle and gave the other bottle to Sh. Shiv Ratan requesting him to drink. It was alleged that he had taken only two sips whereupon he started feeling dizziness. It was alleged that he kept the bottle in the auto at front and that passenger started leaving from there after taking out Rs.500/- in cash and e- sharm card from his shirt's pocket. The complainant allegedly caught hold of him and started making noise whereupon public persons gathered there. Upon cursory search of that person, Rs.500/- in cash and e-sharm card of the complainant were recovered from him. Complainant had also handed over the bottle Lahori Zeera offer to him. FIR was registered on the basis of this complaint and investigation was taken up.
FIR No. 263/2023 State Vs. Chandeswar Page No. 2 / 22
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2024.12.24
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2. After completion of investigation, charge-sheet for the offences U/s 328/379/411 IPC was filed against the accused Chandeshwar before Ld. Magistrate on 21.10.2023. Cognizance was taken on 01.03.2024. After compliance u/s 207 Cr.P.C., matter was committed u/s 209 Cr.P.C. which was received by way of assignment by this Court on 05.03.2024.
3. Charge for the offences u/s 328 IPC and 379 r/w 75 IPC was framed against the accused on 09.04.2024 to which he pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution examined following witnesses:-
S.No. Name of Documents proved Role
Witness
His statement as Ex. PW-1/A,
site plan as Ex.PW1/B,
seizure memo of e-shram card
as Ex.PW1/C, copy of e-
shram card as Mark PW1/D,
seizure memo of five tablets
recovered from accused as
Ex. PW1/E, seizure memo of
PW-1 Sh. Shiv
1. one small plastic bottle Complainant
Ratan
having label Lahori Zeera as
Ex.PW1/F, case properties
i.e., empty Lahori Zeera
Plastic bottle, two tablets
(pinkish color) and e-shram
card alongwith Rs.500/- in
cash as Ex.P-1, Ex.P-2 and
Ex.P-3 respectively
FIR No. 263/2023 State Vs. Chandeswar Page No. 3 / 22
Digitally signed
SUNIL by SUNIL
GUPTA
GUPTA Date:
2024.12.24
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He had deposited
PW-2 Ct. the sealed
2. -
Amar Singh exhibits with
FSL, Rohini
3. PW-3 Ct. - He had taken the
Jitender complainant to
Safdarjung
Hospital for
medical
examination
Arrest memo of accused as
He was with IO
Ex.PW4/A, personal search
during the course
PW-4 HC memo of accused as
4. of investigation
Manohar Singh Ex.PW4/B and disclosure
statement of accused as
Ex.PW4/C
She identified the
MLC No. 27301 dated handwriting and
PW-5 Dr.
signature of Dr.
5. Vidhya 27.08.2023 of complainant
Jyoti Lekhra as
Ilangovan Shiv Ratan as Ex.PW5/A she had left the
hospital
Copy of judgment and order
on sentence in case FIR No. He had brought Sh. Ranbir
6. 39/14 u/s 379/34/411 IPC, PS the summoned Singh, JJA Govindpuri as Ex.PW6/A record (OSR) and Ex.PW6/B (OSR) Copy of judgment and order on sentence in case FIR No. He had brought PW-7 Ms. Lily
7. 156/14 u/s 328/392/411/34 the summoned Grace, Ahlmad IPC as Ex.PW7/A(OSR) and record Ex.PW7/B(OSR) Assistant PW-8 Sh.
Director
8. Santosh FSL report as Ex.PW8/A (Chemistry), Tripathy FSL, Rohini FIR No. 263/2023 State Vs. Chandeswar Page No. 4 / 22 Digitally signed by SUNIL SUNIL GUPTA Date:
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DD No.5A as Ex.PW9/A, DD
No.91A as Ex.PW9/B, RC
No.378/21/23 pertaining to
pills and bottle of Lahori
PW-9 ASI Zeera having been sent to
9. IO
Rajesh Kumar FSL, Rohini for examination
as Ex.PW9/C (subject to
proof) and acknowledgment
qua deposit as
Ex.PW9/D(subject to proof)
Copy of relevant entries of
register no.19 pertaining to
present case running into 04 He was working pages Ex.PW10/A (colly) as MHC(M) at PW-10 HC
10. (OSR) and copy of relevant PS Safdarjung Mahender entries of register no.21 (RC Enclave at the No.378/21/23 dated relevant time 04.10.2023) as Ex.PW10/B (OSR)
5. Accused admitted genuineness and factum of registration of FIR No. 263/2023, PS S.J. Enclave (without contents) and certificate U/s 65B, Indian Evidence Act annexed therewith as Ex.PA-1 and Ex.PA-2 respectively u/s 294 Cr.P.C., vide separate statement dated 09.04.2024. Corresponding witness was accordingly dropped from list of witnesses.
6. After examination of all prosecution witnesses, PE was closed on 11.12.2024. Statement of the accused u/s 313 Cr.P.C. was also recorded on same day wherein he pleaded his innocence. He stated as under:-
"I had not given Lahori Zeera bottle to the complainant. I had asked him to take me to Punjabi Bagh Club Road whereupon he had demanded Rs.400/- as fare. I told him that I will pay Rs.250/-. After this, I alighted from the Auto and came near Metro Station. Complainant followed me and demanded his fare till there. I offered FIR No. 263/2023 State Vs. Chandeswar Page No. 5 / 22 Digitally signed by SUNIL SUNIL GUPTA Date:
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him Rs.50/- whereas he was demanding Rs.100/-. On this, people who work in Metro Police came there and asked as to what was happening. I told them the entire incident whereupon they advised us to go to the PS and resolve our dispute there. I was under the influence of liquor at that time. We both went to PS S.J. Enclave in the Auto of complainant. I was highly intoxicated. IO came at 10:00 pm, gave me beatings and asked as to whether I was having any previous involvement. I replied in affirmative. He took search of me and asked me as to why I was carrying so much cash. I told him that I was going to purchase a rickshaw from the showroom situated in Madipur at Punjabi Bagh Club Road. The cash amounting to Rs.95,000/- approx was with me at that time. When I regained consciousness in the morning, I asked the IO to let me speak to my family members but he did not let that happen. I was taken to hospital for medical examination at 03:00- 04:00 in the morning. I was told beforehand by police that I was not to speak anything before the doctor. I was shaking (hil raha tha) in the hospital so doctor told the police officials that he can give injection to me but police official winked at the doctor and did not let that happen. Thereafter, my signature were obtained on plain papers. When I had refused to sign, IO threatened to falsely implicate me in a NDPS case by planting 10gm of drugs. Thereafter, I was produced before the Court. I did not commit any offence as alleged. I have been falsely implicated in this case."
7. Accused did not lead any evidence in his defence. Accordingly, DE was closed on 11.12.2024.
8. Arguments heard.
9. It has been argued by Ld. Addl. PP for State that in this case, the testimony complainant/PW-1 Sh. Shiv Ratan is of sterling quality and that it FIR No. 263/2023 State Vs. Chandeswar Page No. 6 / 22 Digitally signed by SUNIL SUNIL GUPTA Date:
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is rare to find such a witness who can depose with such consistency. It has been submitted that MLC of PW-1 on record corroborates his story. Also, the testimony of PW-4 HC Mahender, PW-9 ASI Rajesh Kumar alongwith FSL report and endorsement on rukka shows that there is not even an iota of falsehood in the story of prosecution. It has been submitted that Ld. Defence Counsel had asked PW-8 Sh. Santosh Tripathy in his cross- examination as to how much time it could have taken Lorazepam to show its effect on the consumer after consuming it to which he stated that he was unable to say as he was not an expert. It has been submitted that such a fact was immaterial for proving the ingredients of the offence U/s 328 IPC. It has been submitted that the previous conviction of the accused have been proved by way of testimony of PW-6 and PW-7. It has been submitted that accused has admitted his presence at the spot alongwith the complainant in his statement U/s 313 Cr.P.C. It has been submitted that in view of the above, the prosecution has proved its case beyond reasonable doubts. He has prayed for conviction of accused. He has relied upon the judgment of Hon'ble Orissa High Court in Sushila Teluni Vs. The State, Crl. Appeal No. 102/1953.
10. On the other hand, it has been submitted by Ld. Defence Counsel that the case of prosecution was full of doubts. It has been submitted that PW-1/complainant Sh. Shiv Ratan did not mention in his complaint that he was using spectacles or that he was driving the auto while having his spectacles on. It has been submitted that as per the FIR, accused had allegedly got stopped the auto after telling the complainant that another person was to come but it has not been mentioned therein that no such person came. It has been submitted that there is nothing in the MLC that the complainant was feeling dizziness due to any medicine. It has been FIR No. 263/2023 State Vs. Chandeswar Page No. 7 / 22 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2024.12.24 18:51:55 +0530 submitted that neither his vomit nor blood sample was taken for examination by FSL to show the presence of any unwholesome drug or intoxicated substance. It has been submitted that as per PW-5, all the parameters of the accused were within the range at the time of his examination. Ld. Defence Counsel has further submitted that the complainant had failed to identify the accused initially and had done so only on the next date with the help of chashma. It has been submitted that this fact in itself creates doubt on the point of identification of the accused. It has been submitted that in fact, as stated by accused in his statement U/s 313 Cr.P.C., he alongwith the complainant had voluntarily gone to PS Safdarjung Enclave due to dispute between them over the fare to be charged for ferrying him to Punjabi Bagh Club Road. It has been submitted that IO examined before the Court as PW-9 wrongly stated that there was no CCTV camera at the gate of police station. It has been submitted that no independent public person was joined in the investigation and that even the family members of the complainant were not so joined. It has been submitted that the accused was carrying cash amounting to Rs. 95,000/- at the time of offence in question. It has been submitted that even assuming that he was carrying cash of Rs. 20,840/- only as mentioned in his personal search memo, still a person who was carrying such an amount in cash with him cannot be believed to have committed theft of a meager sum of Rs. 500 as alleged by the prosecution. It has been submitted that the accused has been falsely implicated in this case only on the basis of his previous involvements for similar offences. He has prayed for acquittal of accused.
11. In rebuttal, it has been submitted by Ld. Addl. PP for State that it was an open and shut case wherein the identity of the accused has been established not only by the complainant by way of his testimony in which FIR No. 263/2023 State Vs. Chandeswar Page No. 8 / 22 Digitally signed by SUNIL SUNIL GUPTA Date:
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he was duly cross-examined at length by Ld. Defence Counsel and Court questions were also put to him but also by the testimony of IO/ASI Rajesh Kumar alongwith HC Manohar who had come at the spot while returning after attending another PCR call. It has been submitted that administration of wholesome drug in itself was sufficient to prove the offence U/s 328 IPC and no hurt or something else was required to be proved by the prosecution on this aspect.
12. I have considered the rival submissions from both the sides alongwith record.
13. Record shows that accused herein has been charged with for the commission of offence u/s 328 IPC and 379 r/w 75 IPC.
14. Section 328 IPC provides 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."
14A. The ingredients thereof have been elaborated by Hon'ble Delhi High Court in Santosh Kumar Vs. State, 2008 [4] JCC 2919 in following manner:-
FIR No. 263/2023 State Vs. Chandeswar Page No. 9 / 22Digitally signed by SUNIL SUNIL GUPTA Date:
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"A perusal of this Section would show that the following elements are essential to constitute an offence under Section 328 IPC:
(i) Some person or persons should administer or cause to be taken by any person any poison or stupefying, intoxicating or unwholesome drug, or other thing; and
(ii) The intention of the person or persons mentioned in (i) should be to cause hurt to the person concerned, or should be to commit or to facilitate commission of an offence or there should be knowledge on the part of the person or persons that the result of his act or their act was likely to cause hurt to the concerned persons.
Both these elements should exist conjunctively, then and then alone would the offence be complete and the person or persons, as the case may be, would be guilty of the offence contained in Section 328 IPC."
14B. The offence of theft is punishable U/s 379 IPC and same has been defined U/s 378 IPC. As regards the ingredients thereof, Hon'ble Apex Court in the judgment of K.N. Mehra Vs. State of Rajasthan AIR 1957 SC 369 held as under:-
"Commission of theft, therefore, consists in (1) moving a movable property of a person out of his possession without his consent, (2) the moving being in order to the taking of the property with a dishonest intention. Thus, (1) the absence - of the person's consent at the time of moving, and (2) the presence of dishonest intention in so taking and at the time, are the essential ingredients of the offence of theft."
15. The case of prosecution in brief is that accused had administered Lahori Zeera laced with Lorazepam to complainant Shiv Ratan while traveling with him in his auto and had stolen a sum of Rs. 500/- alongwith FIR No. 263/2023 State Vs. Chandeswar Page No. 10 / 22 Digitally signed by SUNIL SUNIL GUPTA Date:
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his e-Shram Card from the pocket of his shirt. Accused was allegedly apprehended at the spot. To prove the allegations, PW-1/complainant Shiv Ratan is the star witness examined by the prosecution. In his testimony dated 06.05.2024 before the Court he stated that on 27.08.2023 while he was going towards AIIMS Hospital from IIT Gate in his auto, at around 06:00 PM one person made gesture for hiring auto. He stated that on being inquired from him, that person told him that he would go to Punjabi Bagh Club Road on which he allowed him to sit in the auto and started driving. He stated that after around 300 meters when he took left turn towards Chaudhary Hukum Chand Marg, that passenger requested him to stop the auto. He told him that one more passenger will go with him and requested him to wait. He stated that he alighted from the auto and returned after around 10 minutes alongwith two small plastic bottles of Lahori Zeera. He stated that he (passenger) sat in the auto and started drinking from one bottle after opening it. He stated that he gave the other bottle to complainant and requested him twice to drink the same. He stated that he took the bottle, opened the unsealed cap meaning thereby the seal was already broken and took two sips from that whereupon he started felling dizziness. That passenger took e-shram card and 5 currency notes of Rs. 100/- each from the pocket of his shirt while he was on the driver seat of the auto. He stated that he (accused) was trying to leave from there. He stated that he somehow gathered courage and caught hold of him. He stated that he started shouting loudly on which public persons gathered and caught hold of him. He stated that after sometime police officials also arrived at the spot and accused was handed over to them. He stated that he had handed over the the remaining liquid to the police which he had kept after drinking in his vehicle. He stated that his e-shram card and Rs. 500/- in cash were recovered from the accused. The witness had initially failed to identify the accused. He deposed FIR No. 263/2023 State Vs. Chandeswar Page No. 11 / 22 Digitally signed by SUNIL SUNIL GUPTA Date:
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about his statement being recorded by police and that name of the accused was revealed as Chandeshwar. He also stated about the site plan having been prepared at his instance and preparation of seizure memo of his e- shram card. When the documents allegedly bearing signatures of complainant were being shown to him, it was noticed by this Court that the witness was able to identify his signatures on the documents only after bringing the same close to his eyes. He was asked as to whether there was any issue with his eye sight. He answered in affirmative stating that he was having a spectacle (chashma) which he had forgotten to bring that day. He further stated that he can identify the people who meet him regularly from a distance without the help of chashma however, he was unable to identify the people who do not meet him regularly without its help. He further stated that he was unable to identify the e-shram card on record without chashma. On this Ld. Addl. PP requested to defer the recording of testimony of witness as he had not brought his chashma.
15A. The matter was adjourned and was again taken up on 06.05.2024. On that day, witness had come with his spectacles. He was again shown the copy of e-shram card from the judicial file on which he stated that same was in his name. He also stated about the seizure of five currency notes of denomination Rs.100/- each and five tablets from the possession of accused. He also stated that police had also seized one small plastic bottle having label of Lahori Zeera. He identified the said plastic bottle. He also identified two tablets returned from FSL as part of tablets recovered from accused. He further identified his original e-shram card and five currency notes of Rs. 100/- denomination. After this, he was asked by the Court as to whether he can identify the accused as he had come with his spectacles which he had forgotten to bring on last date on which he, after FIR No. 263/2023 State Vs. Chandeswar Page No. 12 / 22 Digitally signed by SUNIL SUNIL GUPTA Date:
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watching the people sitting inside the Court, correctly pointed towards accused as the one who had committed the offence against him. To avoid any confusion in future, he was specifically asked by the Court as to what was the reason for his failure to identify the accused on last date on which he stated that he was not having his chashma on last date. He stated that at that time (while answering the question) he was wearing chashma of near sight and that he had brought the other chashma of far sight also. Witness was asked to change his chashma and to identify the accused again. In the meanwhile, position of accused was changed behind his back. Witness had again correctly identified the accused. He was again asked by the Court as to how he was able to identify the accused after wearing near sight chashma to which he replied that the distance between him and place where accused was sitting was not much and that he was able to identify him for this reason.
15B. In his cross-examination by Ld. Defence Counsel, he stated that he had taken two sips from the bottle of Lahori Zeera offered by accused and due to that around ¾th of its contents was still there. He also stated that a strong smell was coming from the bottle and admitted that he had not told this fact to the police. He stated that he was able to speak and for that reason, he could shout after consuming the contents from the bottle offered by accused. He admitted that he used to drive auto with his spectacles on and that he was wearing chashma at the time of incident. He admitted that the suggestion that the spectacles which he was wearing at the time of his testimony was brand new. He volunteered to say that old one had got broken on 02.05.2024. He again stated that same was broken before 02.05.2024. Witness had shown his old broken chashma to the Court which he had brought with him that day. He stated that old broken spectacles FIR No. 263/2023 State Vs. Chandeswar Page No. 13 / 22 Digitally signed by SUNIL SUNIL GUPTA Date:
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which he had brought was dur ka chashma. He denied the suggestion that he had voluntarily broken the old spectacles and got the new one. Thereafter, something had happened during the course of his cross-examination which shall be discussed later on at the appropriate stage. The witness admitted the suggestion that he had not called police after the incident and denied the suggestion that he had not given any written complaint to the police. He again stated that written complaint was given next morning as he was taken to hospital soon after the incident. He stated that he do not know as to what was recovered from the accused as per his personal search memo. He stated that his check up was done at the hospital and he was made to vomit. He denied the suggestion that no such incident had ever taken place or for that reason, he had failed to identify the accused on last date.
16. MLC of PW-1/complainant (Ex.PW5/A) shows that he was taken to Safdarjung Hospital on 27.08.2023 by Ct. Jitender at 09:28 PM for medical examination. It has been mentioned therein that the complainant was having headache since 06:00 PM and alleged history given by patient (complainant) has been mentioned as intake of unknown substance given by some stranger on that day at 06:00 PM at Green Park Metro Station. No fresh injury was seen on his body. As per PW-5 Dr. Vidhya Ilangovan examined to prove the MLC, all the vitals of patient were within parameters. She also admitted that as per the MLC, blood sample of the patient was not taken by the attending doctor.
17. In this case, the accused was allegedly apprehended on the spot while he was trying to flee after committing the offences in question. Defence has vehemently challenged the identification of accused by the complainant before the Court on the ground that initial failure of FIR No. 263/2023 State Vs. Chandeswar Page No. 14 / 22 Digitally signed by SUNIL SUNIL GUPTA Date:
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complainant to identify him and his subsequent identification on next date on the pretext that earlier he was not having his chashma with him creates a doubt on the identification. As mentioned earlier, PW-1/complainant had failed to identify the accused before the Court initially on 02.05.2024. After recording this fact when the matter was taken up again after lunch, it was observed by the Court that he was bringing the documents being shown to him very close to eyes and on being questioned, he stated that he was having chashma which he had forgot to bring that day. On this, the matter was adjourned on the request of Ld. Addl. PP and same was taken up again on 06.05.2024 when the witness had come with his new chashma and he identified the accused. He was specifically asked as to why he could not identify the accused on last date to which he replied that he was not having his chashma. He also stated that he was wearing the near sight chashma at that time and far sight chashma was with him separately.
18. This Court is unable to see anything in the testimony of PW-1 so as to doubt the identification of accused done by him on 06.05.2024. Though, it would have been better if the witness had himself requested for an adjournment on 02.05.2024 on the ground that he had not brought his chashma when he was asked to identify the accused however, said omission on his part is of no significance in view of his testimony recorded on 06.05.2024 including the answers given to the Court Questions which were put to him so that no doubt regarding identification of accused remains. It is to be noted here that the witness might not have mentioned the difficulty in identifying the accused on 02.05.2024 because he was a lay person driving auto for his livelihood. He might not have been aware that matter could have been adjourned on his request. Even otherwise, it is to be noted that in his testimony dated 02.05.2024, witness had stated the name of accused as FIR No. 263/2023 State Vs. Chandeswar Page No. 15 / 22 Digitally signed by SUNIL SUNIL GUPTA Date:
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Chandeswar. Similarly, accused has been correctly identified by PW-9 ASI Rajesh Kumar and PW-4 HC Manohar Singh during their testimonies. The identification by them is material in this case as they had reached the spot soon after the incident whereupon custody of accused was handed over to them and upon his cursory search made by PW-9, cash amounting to Rs.500/- alongwith e-shram card belonging to the complainant and five pills wrapped in a yellow piece of paper were recovered from the right pocket of his wearing pant. Still further, it is worth mentioning here that the accused has not disputed his presence with the complainant/PW-1 at the relevant time. In his statement u/s 313 Cr.P.C., he stated that a dispute had arisen between them over the fare to be charged by the complainant as he was overcharging. He also stated that on the advise of Metro Police, he had gone to PS Safdarjung Enclave in the auto of complainant to resolve their dispute. He also stated that he was highly intoxicated at that time and that he was falsely implicated in this case only due to his previous involvements. As held by Hon'ble Apex Court in Brajendra Singh Vs. State of M.P. AIR 2012 SC 1552, statement of an accused u/s 313 Cr.P.C. can be used as evidence against him insofar as it supports the case of prosecution. It is highly unbelievable that the complainant would have helped the police in false implication of accused in this case only due to alleged dispute between them over the fare to be charged. It is interesting to note here that no suggestion was given to the complainant in his cross-examination to this effect. So, it is held that the identification of accused by the complainant in the Court cannot be doubted with.
19. Ld. Defence Counsel has disputed the case of prosecution on the ground that it has not been mentioned in the FIR that complainant was wearing chashma at the relevant time or that he used to drive the auto with FIR No. 263/2023 State Vs. Chandeswar Page No. 16 / 22 Digitally signed by SUNIL SUNIL GUPTA Date:
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chashma. In view of this Court, said fact was not at all material so as to be mentioned in the FIR as it had nothing to do with the offences in question. Law does not expect a person using chashma to mention the same in an FIR lodged at his instance when the offence had nothing to do with his chashma. This is similar to the clothes which the complainant might be wearing at that time which were not so mentioned in the FIR. The argument of Ld. Defence Counsel regarding non arrival of the second person for whom the auto was allegedly got stopped by the accused having not been mentioned in the FIR is without substance. PW-1 has clearly stated in statement Ex.PW1/A that accused had returned 10 minutes after getting the auto stopped for arrival of second person and sat in the Auto. No such person had come with him is clear from above by necessary implication.
20. As far as the argument that neither stomach wash nor blood sample of the complainant was taken to examine the presence of any unwholesome/ stupefying substance is concerned, these were admittedly not so taken. As per PW-1, during his examination in the hospital, his check up was done and he was made to vomit. It is not clear as to why the vomit was not seized and sent to FSL for examination. Having said that, this Court is of the view that said omission is not of much significance in the given facts. It is to be noted that PW-1 had handed over partly empty Lahori Zeera bottle offered to him by the accused from which he had taken two sips to the IO which was seized vide seizure memo Ex.PW1/F (it appears that it has been inadvertently mentioned in the testimony of PW-1 that the bottle was seized from possession of accused which is contrary to the contents of seizure memo as well as other material on record). Five tablets were also seized from possession of accused on his search. Those tablets alongwith Lahori Zeera bottle (with its contents) were sent to FSL where PW-8 Sh.
FIR No. 263/2023 State Vs. Chandeswar Page No. 17 / 22
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
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Santosh Tripathy examined the same and gave his report Ex.PW8/A as per which both the exhibits were containing Lorazepam (a benzodiazepine drug). A quick Google search reveals that a benzodiazepine drug can cause confusion, memory loss, weekness, slurred speech, lack of coordination, headache, dry mouth, blurry vision, shaking, nausea and appetite loss. As mentioned earlier, PW-1 stated before the Court that soon after taking two sips from the bottle offered by accused, he started feeling dizziness ( ajib sa mehsus hone laga, mujhe chakar aane lage ). In the MLC of the complainant on record (Ex.PW5/A), it has been mentioned that complainant was having headache since 06:00 pm which corresponds to the time when he had consumed the liquid offered by accused. In these facts, this Court is of the view that ingredients of offence u/s 328 IPC stand proved because the intention of the accused was to commit theft in which he had succeeded however he was apprehended at the spot by the complainant which resulted in registration of this case.
21. It is correct that it has not been mentioned in the MLC that complainant was feeling dizziness due to any medicine however it appears that no competent doctor could have conclusively written any such thing in the MLC at the time of examination of complainant. The fact that all the parameters of the complainant were within range at the time of his examination is also of no help to the case of defence as there is no such requirement in law that the victim in a case u/s 328 IPC should continue to experience effects of drug/other thing administered to him for a long time.
22. Moving further, it has been argued by Ld. Defence Counsel that no independent public witness including the family members of the complainant has been joined in the investigation. He has also submitted that FIR No. 263/2023 State Vs. Chandeswar Page No. 18 / 22 Digitally signed by SUNIL SUNIL GUPTA Date:
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no CCTV footage of the incident is on record and that IO could have placed on record the footage from CCTV camera installed at the gate of police station. It is to be noted that there is no law mandating that an offence can be proved only by the testimony of an independent public witness. Section 134 Indian Evidence Act is material here, which provides as under:-
"134. Number of witnesses- No particular number of witnesses shall in any case be required for the proof of any fact."
23. So, it is quality and not the quantity of evidence which is material for proving a given case. Similarly, there is nothing in law to the effect that an offence can be proved only by way of CCTV footage/video of the incident.
24. The Court is also not pursuaded by the argument of Ld. Defence Counsel to the effect that there was no reason for the accused to commit theft of Rs.500/- when he was carrying Rs.20,840/- in cash with him as reflected in his personal search memo. There is no end to the human greed and the case of prosecution cannot be disbelieved on this ground alone as it is not impossible for a person carrying that much cash to commit theft. Accused would not have known the cash being carried by the complainant at that time.
25. Considering the above discussion including consistent testimony of PW-1, this Court is of the view that the prosecution has successfully proved that the accused Chandeswar had committed theft of a sum of Rs.500/- in cash alongwith e-shram card from the pocket of complainant/PW-1 Shiv Ratan on 27.08.2023 at about 06:00 pm after FIR No. 263/2023 State Vs. Chandeswar Page No. 19 / 22 Digitally signed by SUNIL SUNIL GUPTA Date:
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offering him Lahori Zeera drink spiked with Lorazepam with an intention to commit theft.
26. Previous conviction of the accused for the offences u/s 379/411/34 IPC in case FIR No.39/14, PS Govindpuri as well as for the offence u/s 411 IPC in case FIR No. 156/14, PS Govindpuri has been duly proved by way of testimonies of PW-6 Sh. Ranbir Singh and PW-7 Ms. Lily Grace. Defence has not disputed these convictions in any manner.
27. Accordingly, accused Chandeswar is convicted for the offence u/s 328 IPC as well as 379 r/w 75 IPC.
28. Order on Sentence shall be passed after compliance as per judgment of Hon'ble Delhi High Court in Karan Vs. State NCT of Delhi, Crl. Appeal No. 352/20.
29. Before parting with this judgment, it is worthwhile to mention a disturbing fact which came on record during the testimony of PW-1 Shivratan on 06.05.2024. For the sake of convenience, relevant portion of his cross-examination done by Ld. Defence Counsel on that day is being reproduced below :-
"At this stage, the witness seems to be agitated. He has been made to understand that Ld. Defence Counsel is merely doing her duty by asking the questions. Witness has stated that Ld. Defence Counsel had called him twice earlier. It has been submitted by him that he was called once after around 10-15 days of the incident wherein he was requested to come to Patiala House Courts. It was also told to him that in case, he was not in a position to come there, they both can meet somewhere in between. It FIR No. 263/2023 State Vs. Chandeswar Page No. 20 / 22 Digitally signed by SUNIL SUNIL GUPTA Date:
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has been submitted that he was again called after some days to meet. It has been submitted that Ld. Defence Counsel had talked to him sweetly requesting him to settle the dispute on the pretext that accused was having small children to take care of. It has been submitted that he refused as he could not have deposed falsely for a person who had committed offence against him. It has been submitted that on 02.05.2024 also, he was asked by Ld. Defence Counsel to come outside the Court to talk. She had also tried to have conversation with him within the Court which he refused.
Ld. Defence Counsel has submitted that she was not representing the accused at the time of calls made to witness and there was no intention to interfere with the judicial process."
30. As is clear from above, Ld. Defence Counsel had contacted the complainant after around 10-15 days of the incident may be by using his mobile number mentioned in the FIR. As the allegations were being leveled in the presence of Ld. Defence Counsel, she indirectly admitted having been made calls to the witness by saying that she was not representing the accused at the time of calls made to him and stated that there was no intention to interfere with the judicial process. It is worth noting here that Ld. Defence Counsel who was representing the accused on that day and against whom the allegations were leveled by PW-1 Shivratan had represented the accused herein in case FIR No. 156/14, PS Govindpuri also which is clear from the order on sentence dated 28.05.2018 pertaining to that case on record (Ex.PW7/B, OSR). Without commenting further, it is necessary to mention that a defence counsel in a criminal case is not supposed to contact material witnesses in this manner in an attempt to influence them. The conduct of Ld. Defence Counsel might have been in violation of prevailing rules. Let copy of this judgment be sent to Bar FIR No. 263/2023 State Vs. Chandeswar Page No. 21 / 22 Digitally signed by SUNIL SUNIL GUPTA Date:
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Council of Delhi for information and necessary action at their end. The copy of evidence dated 06.05.2024 containing her name alongwith copy of her vakalatnama on record be also sent for her identification.
Digitally signedSUNIL by SUNIL GUPTA GUPTA 2024.12.24 Date:
18:53:38 +0530 Announced in the open (Sunil Gupta) Court on 23.12.2024 Additional Sessions Judge-06, South, Saket Courts, New Delhi FIR No. 263/2023 State Vs. Chandeswar Page No. 22 / 22