Delhi District Court
State vs . Himanshu @ Happy on 14 December, 2017
IN THE COURT OF SH. MUKESH KUMAR, ADDL. SESSIONS JUDGE 04, (NORTHWEST DISTRICT) ROHINI COURTS, DELHI IN THE MATTER OF : Case No. 51652/2016 S.C. No: 201/2001 FIR No: 239/2010 U/s: 328/379/411 IPC and U/s 174 A IPC PS : Mukherjee Nagar STATE Vs. Himanshu @ Happy S/o Sh. Mool Chand R/o H. No. 53, Village Dhakka, Delhi. Also at : H. No. E57, Aruna Nagar, Majnu Ka Tila, Delhi. Complainant: Sh. Ranjeet Singh S/o Late Sh. Joginder Singh R/o H. No. G64, MCD Colony, Dhakka Village, Delhi. Date of receipt of file in Sessions Court : 04.01.2011 Date of arguments : 24.11.2017 Date of judgment : 14.12.2017 J U D G M E N T: 1.
By this judgment, I shall conclude the trial of the case FIR FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 1 of 32 No. 239/2010 Police Station Mukherjee Nagar registered against the accused under Section 328/379/411 IPC as well as under Section 174 IPC and under Section 229 A IPC as framed by the Ld. Predecessors of this Court. The offences so committed are well with the cognizance of this Court wherein the accused is facing the trial.
2. The brief facts of the prosecution case is that on 28.06.2010 at or before 10:30 AM, MCD Colony, Park Dhaka Gaon within the jurisdiction of Police Station Mukherjee Nagar, the accused dragged one person namely Sarfaraj S/o Sh. Illiyas, aged 28 years to the said park while he was unconscious and committed the theft of Rs. 13,000/ and a Reliance (LG) Mobile Phone bearing No. RSN.RLG.H.S1015405874 of black and gray colour belonging to the said Sarfraj and the accused was found in possession of the stolen property thereby he has committed an offence punishable under Section 379/411 IPC.
Secondly on the said date at about 06:30 AM, the accused administered to the said Sarfraj stupefying thing namely (lorazepam as per the FSL report Mark A), with the intention to cause death of the said Sarfraj and with the intention of commit theft of the aforesaid property belonging to the said Sarfraj, therefore he has committed an offence punishable under Section 328 IPC within the cognizance of this Court.
It is also an allegation against the accused that during the filing of charge sheet after getting the bail from the Court, the FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 2 of 32 accused failed to appear on 18.11.2011, despite due service of the proclamation published under Section 82 (1) Cr.P.C, thereby he has committed an offence punishable under Section 174 A IPC.
It is also an allegation against the accused that when he was released on bail and furnished bail bonds in terms of the bail order dated 15.07.2010, which were duly accepted by the Court. The accused failed to appear in the Court without specifying any sufficient cause and remain absent from 28.05.2012 to 04.12.2012 and thereby he has committed an offence punishable 229 A IPC and same is within the cognizance of this Court.
3. The present case was assigned to this Court after the committal of proceedings by the Ld. Metropolitan Magistrate concerned to the Sessions Court. Before committal of the proceedings the compliance of Section 207 Cr.P.C was made by Ld. Metropolitan Magistrate by supplying the complete set of charge sheet to the accused.
4. The arguments were heard on the point of charge and charge has been framed by Ld. Predecessor of this Court under Section 328/379/411 IPC as well as under Section 174 A IPC and under Section 229 A IPC to which accused pleaded not guilty and claimed trial.
5. In support of its case the prosecution has examined as many as 13 witnesses to prove the case of prosecution.
6. The first witness examined by the prosecution is complainant Sh. Ranjeet Singh who appeared in the witness FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 3 of 32 box and deposed that he is working in MCD. On 28.06.2010, he was present at his house and at about 10:15/10:30 AM, when he was standing in his room and was peeping out from the window, he saw that in the park situated in front of the window of his room, one boy was taking a person inside the park by pushing him inside the park. The said person was appears to be unconscious at that time. The boy made the person lie in the park and after looking around, that boy took out some articles from the inner pocket of the pant of the unconscious person and he kept the articles inside his left leg socks. After having seen the incident he suspected about the activities of that boy and PW 1 immediately came out from his house and he met his neighbor Rajat, PW 1 along with Rajat rushed inside the park and apprehended that boy who was about to leave the unconscious person.
PW 1 correctly identified the accused Himanshu who was present in the Court. It is deposed that on inquiry the accused started giving evasive answers and he did not disclose anything about the unconscious person. They also tried to talk with the unconscious person after patting (Hilaya Dulaya) him but that person could not respond due to unconsciousness. Thereafter, 24 other persons of the locality also came there and called at 100 Number. PCR Van came at the spot and the local Police of Police Station Mukherjee Nagar also came there. The PCR took the unconscious person to the Hospital and they handed over the accused to HC Naresh Pal. PW 1 told the entire facts to the Police official. PW 1 also came to FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 4 of 32 know the name of accused as Himanshu, he also told the Police that he administered some stupefying eatable to the unconscious person while coming from the side of Lajpat Rai Market, with the sole intention to commit theft and took out cash and mobile.
The search of the accused was taken by the Police officials and from the socks of the accused currency notes of Rs. 13,000/ in denomination of Rs. 500X26 and one mobile phone Reliance of Black colour of LG Company were recovered and the same were seized by the Police vide preparing seizure memo Ex.PW1/A which bears his signatures at point A. One open wrapper of the packet of biscuit of having Sunfeast printed on it, which contain some biscuit pieces and one small bottle (Shisi) having cap on it and few drops of liquid and one mobile was also recovered from the accused vide seizure memo Ex.PW1/B which bears his signatures at point A. Pullanda was prepared. The mobile phone was not sealed by the IO. Statement of the PW 1 was recorded by IO vide Ex.PW1/C bearing his signature at point A. It is further deposed that at that time the accused was also looking drowsy. He also identified the spot to the Police.
It is deposed that on 29.06.2010 the IO along with his staff and accused, came at the spot in night at around 10:15 PM. He again identified the accused before the IO and the accused also pointed out the place of incident. A memo is prepared in this regard vide Ex.PW1/D which bears his signatures at point A. He also deposed that he came to know FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 5 of 32 the name of victim as Sarfraj and met him in the Police Station where the victim thanks PW 1 for his help. The case property was also produced vide Ex.P1. The mobile phone Make Fly Model V100 is also identified vide Ex.P2 which was recovered from accused. 26 currency notes totaling Rs. 13,000/ were also identified as P3 which were recovered from the accused. 3 sealed pullandas containing one plastic dibi. One wrapper of Sunfeast Bourbon biscuit and some pieces of biscuit were taken out which were duly identified by the witness vide Ex.P4 which were recovered from the accused in the presence of the witness. Parcel No. 3 was also opened containing one white colour polythene bearing FIR No., one glass vial (Shisi)having rubber lid on it and the vial is wrapped with the plaster tape and bearing FSL No. which has been duly identified by the witness vide Ex.P5
7. The second witness examined by the prosecution is W/ASI Manju Bala she deposed on oath that on 28.06.2010 at about 10:40 AM she was working as Duty Office from 9:00 AM to 5:00 PM. She received information from wireless operator through intercom from Lady Constable Anju of PCR to the effect that one person who had snatched money of a person after giving beatings has been apprehended at MCD Colony, Mukherjee Nagar, Near G64 Park. The information was recorded by her vide DD No. 22 A as Ex.PW2/A. On the same day at about 4:00 PM, she also received one rukka through Ct. Adesh which was sent by HC Naresh Pal. On the basis of said rukka, FIR No. 239/2010 under Section 328/379/411 IPC was FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 6 of 32 recorded on the computer by her. The FIR is Ex.PW2/B which bears her signature at poitn A. She also made endorsement on the rukka vide Ex.PW2/C which bears her signature at point A. After recording of FIR, original rukka was handed over to Ct. Adesh and further investigation was marked to ASI Madan Lal. The certificate under Section 65 B Evidence Act is Ex.PW2/B.
8. PW 3 Sh. Rajat an eye witness of the incident who deposed that he is running a motor spare part shop at Burari. Earlier he was used to work at the shop at Model Town, Delhi. On 28.06.2010, it was Monday. It was a holiday for the market and the shops were closed. He was roaming in the colony at about 9:45 to 10:00 AM. When he was passing near the park, his neighbor namely Ranjeet called him and asked him to accompany him to the park. In the park one person was lying unconscious and Ranjeet/PW 1 told him that another person, who was present there in the park took out something from the pocket of the unconscious person and kept the same in his socks. Thereafter, they apprehend the person who has been correctly identified as accused Himanshu present in the Court. It is deposed that they made inquiry from the accused but he started giving evasive answers. Thereafter they made call at 100 No. PCR reached at the spot. PW 3 also deposed all on the same all lines in his examination in chief what has been deposed by PW 1. In his examination in chief, he has been cross examined by Ld. Addl. PP for the State where he deposed that he do not remember therefore he can not admit FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 7 of 32 or deny the suggestion that his statement was recorded by the Police at the spot. He also deposed that he can not admit or deny these suggestions regarding preparation of the seizure memo Ex.PW1/A and Ex.PW1/B. However, he identified his signatures on Ex.PW1/A and Ex.PW1/B. In the cross examination conducted by Ld. Addl. PP for the State he admitted the recovery of Rs 13,000/, mobile phone as well as the stupefying substance I.e biscuit wrapper. He also deposed in his cross examination by ld. Addl. PP for the State ASI Madan Lal has recorded his statement and due to lapse of time he has forgotten certain facts and now the same has been recollected and his statement is Ex.PW3/PX1. He has been duly cross examined by Ld. Defence counsel at length but nothing fruitful come on record which may help the accused in any manner.
However certain contradictions are there in the cross examination of PW 2 and PW 3 which are minor in nature and are not fatal to the case of prosecution.
9. The fourth witness examined by the prosecution is the victim Saraf Raj who deposed on oath that he is in the business of sale purchase of electronic items and he used to come to Delhi in this connection. On 28.06.2010, he came to Delhi by train and he reached at Lajpat Rai market to purchase the electronic items. He was having Rs 13,000/ and one LG Reliance Phone vide Mobile No. 9314328723 which was kept by him in his pant's pocket. It is further deposed that since there was time in opening of the market, he was sitting under a FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 8 of 32 tree in the Lajpat Rai Market. At that time one boy came there and he told his name as Happy and set with him and started talking with PW 4. During the said talks he brought cold drink Mirinda and one packet of biscuit. It is further deposed that the said boy offered him the Mirinda and biscuit but PW 4 refused to drink Mirinda, however, that boy gave one biscuit to the complainant to eat and PW 4 eat 23 biscuit and that boy also eat one biscuit from that packet. It is deposed that after having the biscuit PW 4 started giddiness (chakar). It is further deposed that the boy told PW 4 to took him to his house. Thereafter PW 4 became unconscious and regained consciousness when he found himself in a Hospital at Jahangir Puri. He also came to know that he has been admitted in the Hospital by the Police and he found that the money and mobile was not with him. During the evidence witness correctly identified the accused who was present in the Court and deposed that he is the same boy who offered biscuit to him. On the next date, he went to the Police Station to make inquiries regarding his belongings, where he again saw the accused who was sitting in the PS. PW 4 informed the Police that he is the same person who offered the biscuit and Mirinda at Lajpat Rai market where he became unconscious. At the instance of PW 4, accused was arrested vide memo Ex.PW4/A and personal search memo Ex.PW4/B which bears his signatures at point A. During the course of evidence case property was also produced by the MHC(M) having two mobile phones one is make of Reliance and another make of Fly and FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 9 of 32 Rs. 13,000/ in the denomination of Rs. 500X26. Same has been correctly identified by the witness which is already exhibited as Ex.P1 and currency notes are Ex.P3. The wrapper of Sunfeast bonbon biscuit is also identified vide Ex.P
4. It is also deposed by the witness that he saw the accused at Hospital also but he was not in his sound state of mind at that time.
10. The witness has been cross examined at length wherein minor contradictions has been noticed by this Court in comparison to the cross examination of PW 1 and PW 3 but these contradictions are not fatal to the case of prosecution particularly when the suggestion is given by Ld. Counsel for accused to the effect that "It is correct that accused Himanshu had consumed biscuit from the same packet of the biscuit from which he had offered the biscuit to the complainant to consume".
11. The fifth witness examined by the prosecution is HC Naresh Pal who deposed to the effect that on 28.06.2010, he was posted at PS Mukherjee Nagar as HC and he was on duty from 8:00 AM to 8:00 PM. He received DD No. 22A at about 10:40 AM which is already exhibited as Ex.PW2/A. After receiving the DD entry he along with Ct. Adesh went to MCD Colony Park, Village Dhaka, Delhi where public persons namely Ranjit and Rajat met them and they produced one boy whose name later on revealed as Himanshu S/o Mool Chand resident of House No. 53, Village Dhaka. Accused has been correctly identified by the witness. It is deposed that PW FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 10 of 32 Ranjeet gave his statement to him which was recorded by him under his dictation which is already Ex.PW1/C. It is deposed that PW 5 took superficial search of the accused and he found Rs. 13,000/ in the denomination of Rs. 500X26 from the left leg socks of the accused, one small glass bottle (shisi) and some pieces of biscuit with wrapper and two mobiles make Fly and LG Reliance were also recovered. Thereafter PW 5 left the Ct. Adesh at the spot and proceeded for BJRM Hospital as the victim was already taken to the Hospital. In the Hospital Doctor opined the victim as unfit for statement. Then PW 5 came back to the spot along with one sealed pullanda which was received from Duty Head Constable BJRM Hospital. The pullanda was prepared of the biscuit wrapper along with biscuit pieces and Shisi (Bottle) containing stupefying substance. At the spot after coming back from the Hospital, he seized the pullanda of shishi and biscuit pieces and wrapper and mobile while preparing seizure memo vide Ex.PW1/B bearing his signatures at point C. He further deposed that he seized Rs. 13,000/ and mobile phone of make LG Reliance vide seizure memo Ex.PW1/A bearing his signatures at point C. PW 5 also deposed to the effect that he seized the sealed pullanda along with sample seal at the Hospital which he received from the Duty Constable and prepared the seizure memo Ex.PW5/A. He further deposed that he prepared the rukka Ex.PW5/B and sent the same through Ct. Adesh to Police Station Mukherjee Nagar for getting the FIR registered. He further deposed that Ct. Adesh after getting the FIR FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 11 of 32 registered came back at the spot along with ASI Madan Lal and he handed over the accused Himanshu, sealed pullandas and all the memos to ASI Madan Lal. He further deposed that IO made inquiries from Ranjeet and Rajat and recorded their statements under Section 161 Cr.P.C. He further deposed that accused Himanshu who was appearing drowsy (nashe ke halat mein lag raha tha) and he was taken to the Police Station. He further deposed that IO recorded his statement. PW 5 further deposed to the effect that on 29.06.2010, he again participated in the investigation of this case along with IO and on that day he was sitting in the Police Station along with ASI Madan Lal and Ct. Shokeen Pal brought accused Himanshu to Police Station from Hospital and produced before the IO. He further deposed that in the meantime, the victim came to the Police Station to make inquiries regarding his belongings and there he identified accused Himanshu and told to IO that he was the same boy and also seen him at the BJRM Hospital at the time of discharge and accused would be the same boy who gave intoxicating (nashila) biscuit to him. PW 5 further deposed to the effect that ASI Madan Lal, thereafter, interrogated the accused and arrested him at around 09:15 PM. He further deposed that IO recorded the statement of victim Sarfaraj and thereafter PW 5 along with IO and accused left the Police Station for MCD Colony. He proved the arrest memo Ex.PW4/E and personal search memo Ex.PW4/B of accused. He further proved the statement of accused recorded by the IO during interrogation as Ex.PW5/C. He further deposed to the FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 12 of 32 effect that on reaching MCD Colony at Park, there complainant Ranjeet was found walking and met to them. He further deposed that accused made pointing out of the place of incident and IO prepared pointing out memo Ex.PW1/D. He further deposed that IO recorded his supplementary statement of and complainant Ranjeet at the spot under the source of light of Park. PW 5 identified the Reliance Mobile Phone as Ex.P1, Mobile Phone make FLR as Ex.P2, 26 currency notes as Ex.P3, wrapper and biscuit as Ex.P4 and glass vial (shishi) as Ex.P5.
12. PW 6 HC Devender deposed that on 28.06.2010, he was posted as MHC(M) at PS Mukherjee Nagar and on that day ASI Madan Lal deposited one pullanda having seal of BJRM Jahangir Puri along with two more pullanda having seal of NP and also deposited sample seal of BJRM Hospital. He further deposed that IO also deposited one mobile phone make FLY without keypad in unsealed condition and Rs. 13,000/ cash in unsealed condition (Rs. 500/ x 26) and one mobile phone make Reliance LG Black and Grey colour in unsealed condition. He further deposed that IO has deposited all the pullands and the articles along with FSL Form and three copies of seizure memos. He further deposed that after deposit, he had made the relevant entry in register no. 19 at Sl. No. 2785/10. He proved the entry in Register No. 19 as Ex.PW6/A. PW 6 further deposed that on 30.07.2010 as per the instructions of the IO, he had sent three sealed pullandas having seal of NP and one pullanda having seal of BJRMH FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 13 of 32 Jahangir Puri along with sample seal of BJRM Hospital with FSL Form through HC Ved Pal vide RC No. 71/21/10 for being deposited at FSL. He further deposed that he had made relevant entry of the same in Register no. 19 against the main entry at point X and Y. He further deposed that after depositing the exhibits at FSL Rohini, HC Ved Pal handed over to him copy of RC and receipt acknowledgment. He proved the RC No. 71/21/10 as Ex.PW6/B and copy of acknowledgment as Ex.PW6/B. PW 6 further deposed to the effect that as per the record of register no. 19, on 10.05.2011 Ct. Manoj had brought the result FSL in one sealed envelope having seal of JK FSL DELHI along with three pullandas in duly sealed condition and deposited the same with the then MHC(M) HC Sant Raj. He further identified the handwriting and signature of HC Sant Raj in register no. 19 and at Ex.PW6/A at point Z of HC Sant Raj at point Q. He also identify signature of ASI Madan at point C on Ex.PW6/A to whom FSL result was handed over by the then MHC(M).
13. PW 7 HC Ved Pal deposed that on 30.07.2010, he was posted at PS Mukherjee Nagar and and on that day as per the direction of the IO, he collected two pullandas having seal of NP and BJRMH, Jahanagir Puri from MHC(M) with FSL form and deposited the same with FSL, Rohini vide RC No. 71/21/10. He further deposed that he handed over the copy of RC and receipt of acknowledgment to the MHC(M). PW 7 further deposed to the effect that so long as the case property FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 14 of 32 remained in his possession, the same was not tampered with and his statement was recorded by the IO. He proved the acknowledgment as Ex.PW6/B and copy of RC as Ex.PW6/C.
14. PW 8 Dr. Seema, Chief Medical Officer from BJRM Hospital, Jahangir Puri deposed that patient Sarfraj was brought to the casualty at 12:15 PM with the alleged history of found on roadside and brought by PCR. PW 8 further deposed that patient was examined by Dr. Rahul in the emergency in her presence and at that time she was working as CMO in the Casualty. She further deposed that since Dr. Raul has left the services from the Hospital and his whereabouts are not known. PW 8 identify the signatures at point A, C and D and handwriting of Dr. Rahul on the MLC Ex.PW8/A. PW 8 further deposed that at the time of examination patient was unfit for making the statement and after examination his gastric lavage sample was sealed and handed over to the IO.
PW 8 further deposed that she has seen the MLC No. 11735, emergency no. 54797 of patient Himanshu dated 28.06.2010 and the patient was brought to the Casualty at 07:50 PM with the alleged history of being handed over to police by public brought by the Police. She further deposed that patient was examined by Dr. Sandeep Kumawat, Jr. Casualty and as per examination, the patient was drowsy and there was no fresh external injuries mark. PW 8 further deposed that patient was subsequently referred to SR medicine for further treatment and there patient was examined by Dr. Rahul. She further deposed that as per MLC, it was a case of FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 15 of 32 sedative poisoning and as per the instructions of Dr. Rahul gastric lavage was kept and sealed. She further deposed that MLC was prepared by Dr. Sandeep Kumawat. She proved the MLC as Ex.PW11/A bearing signatures of Dr. Sandeep at point A and signatures of Dr. Rahul at point B. She also identify the handwritings and signatures of Dr. Rahul and Dr. sandeep as they worked under her when PW 8 is posted as CMO, Casualty, BJRM Hospital.
15. PW 9 HC Inderjeet Singh deposed that on 28.06.2010, he was posted at PCR North West Zone as Commander 63 and PCR Van was stationed at Nirankari Colony, Mukherjee Nagar. he further deposed that he was on duty on PCR Van COM 63 from 08:00 AM to 08:00 PM and at 10:30 AM on receipt of information he alongwith PCR Van and other PCR staff reached at MCD Colony, Dhaka Park. He further deposed that one Sardar namely Ranjeet Singh S/o Joginder Singh had produced and handed over to him accused Himanshu @ Happy. He duly identify the accused in the Court. He further deposed that number of public persons were also present there and one person namely Sarfaraz S/o lliyas Malik was also found lying there at the spot under the influence of some intoxicants and was carrying one bag containing remotes etc. He further deposed that Ranjeet Singh also produced Rs. 13,000/ cash and stated that he has taken out that money from the socks of accused Himanshu. He further deposed that Sarfaraz and Himanshu were brought to the Police Station Mukherjee Nagar in PCR Van and Himanshu was given in the FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 16 of 32 custody of Duty Officer and Rs. 13,000/ were also handed over to the Duty Officer HC Manju Sharma. He further deposed that thereafter Sarfaraz was removed to the BJRM Hospital in PCR Van and was admitted there at about 12:50 PM. He further deposed that his statement was recorded by the IO. He proved the original call book containing entries pertaining to 28.06.2010 as Ex.PW9/A.
16. PW 10 Ct. Adesh deposed that on 28.06.2010 he was posted at PS Mukherjee Nagar and on that day on receipt of DD No. 22A at 10:40 AM, he alongwith HC Naresh pal reached at the spot I.e MCD Park, Vill. Dhaka, Delhi. He further deposed that attested copy of DD No. 22 A is on the judicial file and proved the same as Ex.PW2/A. He further deposed that at the spot, public witness Ranjit and Rajat met them and they had produced and handed over one boy namely Himanshu. He further deposed that public witnesses also told that Himanshu had committed theft of the belongings from the pocket of the person who was lying unconscious and that unconscious made had already been removed to the Hospital by the PCR. He further deposed that HC Naresh pal took the cursory search of accused Himanshu and from the socks of accused Himanshu, Rs. 13,000/ cash (26 notes in denomination of Rs 500/ each) were recovered. He further deposed that one mobile phone make LG was also recovered from the possession of accused I.e from the socks of accused worn by him. He further deposed that from the pocket of the pant of accused Himanshu, one packet of Sunfeast Dream Cream Bourn Bone biscuit and one FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 17 of 32 mobile phone make FLY No. 9953675077 silver colour was recovered.
He further deposed that from another pocket of pant of accused Himanshu, one small bottle (Shishi) with the rubber lid and wrapper on which Magneta was written was also recovered. He further deposed that the recovered Rs. 13,000/ and mobile phone containing SIM No. 9314328723 Reliance LG colour black and gray were taken into possession by the IO vide memo Ex.PW1/A bearing his signatures at point C, signatures of IO HC Naresh pal at point B, signatures of complainant Ranjit at point A and signatures of public witness Rajat at point D. He further deposed that the recovered biscuit packet and small bottle were separately kept in plastic boxes and were tied with the piece of white cloth and were sealed with the seal of NP by the IO and these pullandas along with FLY Mobile phone were taken into possession by the IO vide memo Ex.PW1/B bearing his signatures at point C, signatures of IO HC Naresh Pal at point B, signatures of complainant Ranjit at point A and signatures of public witness Rajat at point D. He further deposed that IO recorded the statement of Ranjit Singh, complainant and thereafter the accused persons were given in his custody by the IO at the spot.
He further deposed that IO left the spot and went to BJRM Hospital at about 11:20 AM and returned from the Hospital at about 03:15 PM. He further deposed that IO prepared the rukka and handed over the same to him for registration of FIR and he took the same to Police Station FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 18 of 32 Mukherjee Nagar and got the case FIR registered. He further deposed that thereafter he returned to the spot along with second IO ASI Madan Lal to whom he had given copy of FIR and original rukka at Police Station itself. He further deposed that HC Naresh Pal handed over the custody of accused Himanshu and case property pullandas to ASI Madan Lal. He further deposed that at the instance of complainant Ranjit, ASI Madan Lal prepared the site plan. He further deposed that his statement was recorded by the IO.
PW10 identify the Reliance and FLY mobile phones which were recovered from the accused as Ex. P1 and Ex.P2. He also identify 26 currency notes in denomination of Rs. 500/ each as Ex.P3 (Colly.). He further identify the wrapper of biscuit as Ex.P4 and glass bottle (shishi) as Ex.P5.
17. PW 11 Dr. Deepak Chugh, Medical Officer, BJRM Hospital deposed that on 28.06.2010 he was working as CMO at BJRM Hospital and on that day at about 07:50 PM, a patient Himanshu was brought by the police for medical examination. He further deposed that the patient was examined by Dr. Sandeep Kumawat, Jr. Casualty. He further deposed that according to the examination, the patient was drowsy and there was no fresh external injury at the time of examination. He further deposed that the patient was subsequently referred to S.R Medicine for further treatment and the patient was examined by Dr. Rahul, S.R Medicine. PW 11 further deposed to the effect that according to Dr. Rahul, the patient was a case of sedative poisoning and he ordered gastric lavage and further FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 19 of 32 supportive management of the patient. He further deposed that the MLC was prepared by Dr. Sandeep Kumawat whose signatures are at point A and Dr. Rahul whose signatures appears at point B. PW 11 further deposed that both the doctors have left the services and there present whereabouts at not known. He proved the MLC as Ex.PW11/A.
18. PW 12 HC Joginder conducted the proceedings under Section 82 Cr.P.C against the accused.
19. PW 13 SI Madan Lal, IO of the case deposed that on 28.06.2010, he was posted at PS Mukherjee Nagar and on that day investigation of present case was assigned to him as per the instructions of SHO. He further deposed that Ct. Adesh handed over him copy of FIR and original rukka in the Police Station for further investigation. He further deposed that he alongwith Ct. Adesh reached the spot I.e MCD Colony, Dhaka and at the spot HC Naresh Pal was present. He further deposed that accused Himanshu and public witnesses Rajat and Ranjeet were also found present at the spot. He further deposed that HC Naresh Pal handed over to him three sealed pullandas along with sample seal of BJRM Hospital, Jahangir Puri and also handed over to him three seizure memos. He further deposed that HC Naresh Pal also handed over to him 26 notes of Rs. 500/ denomination each (Rs. 13,000/) and two mobile phones, one of FLY company and another was of LG Company in unsealed condition. He further deposed that he prepared the site plan of the place of incident at the instance of Ranjeet and Rajat and proved the site plan as FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 20 of 32 Ex.PW13/A bearing his signatures at point A. He recorded the statements of PW Rajat and Ranjeet and tried to make interrogation from accused Himsnashu but he found him drowsy (Nashe ki Halat Me) and was not able to take part in interrogation. He further deposed that he returned to the Police Station with Ct. Adesh and HC Naresh along with accused Himanshu. He recorded the statements of Ct. Adesh and HC Naresh. He further deposed that after discussion with SHO, he went to BJRM Hospital with accused Himanshu and HC Naresh. He further deposed that accused was admitted in the Hospital and he called the Duty Officer Police Station Mukherjee Nagar and requested him to send Ct. Dashrath and Ct. Dalip. He further deposed that accused was left in their custody in the Hospital and he returned to the Police Station. PW 13 further deposed that SHO was briefed about the facts and he recorded the statement of victim Sarfraj who came to the Police Station.
PW 13 further deposed that on 29.06.2010 Ct. Shokeen Pal brought accused Himanshu from the Hospital to the Police Station and produced before him. He further deposed that in the meantime, victim Sarfaraz also came to the Police Station to make inquiries. He further deposed that victim identified accused Himanshu and told that accused was the same person who had administered him Nashili Dawai in biscuit and drove him in drowsy condition. He further deposed that the victim also claimed that he had seen accused in BJRM Hospital when accused was being admitted there and victim was being FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 21 of 32 discharged. PW 13 deposed to the effect that he made interrogation from accused Himanshu and thereafter accused Himanshu was arrested vide arrest memo Ex.PW4/A and personal search memo Ex.PW4/B. He further deposed that the disclosure statement of accused Himanshu was recorded vide Ex.PW5/C. He recorded the statement of victim Sarfaraz and left the Police Station with accused and HC Naresh and reached MCD Colony, Dhaka. He further deposed that accused has pointed out the place of occurrence where he had removed phone and money from victim. He further deposed that pointing out memo Ex.PW1/D was prepared bearing his signature at point C and at that time, public witness Ranjeet was also present in the Park at MCD Colony, Dhaka. He further deposed that he recorded the statement of public witness Ranjeet and HC Naresh. PW 13 deposed to the effect that they returned to Police Station and accused Himanshu was kept in the lockup of PS Model Town.
He further deposed that on 30.06.2010 accused Himanshu was taken out from lockup and he tried to make search of accused Raju and reached at Burari, neat wine shop. He further deposed that accused Himanshu only knew the name of Raju and did not know parentage and address of his coaccused Raju, so Raju could not be arrested. He further deposed that accused Himanshu was produced before the Court and his one day PC remand was obtained. He further deposed that after medical examination, they came to Burari in search of accused Raju but he could not be apprehended. He FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 22 of 32 further deposed that they returned to the Police Station and accused was kept in the lockup of PS Model Tow.
He further deposed that on 30.07.2010 through HC Ved Pal exhibits were deposed with the FSL vide RC No. 71/21/10 and recorded the statement of MHC(M) HC Devender and HC Vedpal. He further deposed that during the investigation, on 07.09.2010, he recorded statement of HC Inderjeet, I/C PCR who admitted victim Sarfaraz in the Hospital. PW 13 further deposed to the effect that after completion of investigation, charge sheet was submitted before the Court and after collecting the FSL result, the same was filed before the Court. He proved the forwarding letter as Ex. PW13/B an d FSL result dated 10.05.2011 as Ex.PW13/C. PW 13 proved the Reliance LG Mobile phone as Ex.P1 and mobile phone of FLY as Ex.P
2. He further identify the currency notes as Ex.P3 (Colly.) and wrapper and biscuit piece as Ex.P4 (Colly.). He further identified the glass vial (shishi) as Ex.P5.
20. During the course of trial accused remained absent from the Court and he was declared as Proclaimed Offender by the Court and later on he has been arrested and supplementary charge sheet under Section 174A r/w Section 229 A IPC has been filed by the Police for which the separate charge has been framed by Ld. Predecessor of this Court.
21. Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under :
FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 23 of 32 Sr. No. PW No. Name of the witness Details of the witness
1. PW 1 Sh. Ranjeet Singh Public witness/complainant.
2. PW 2 W/ASI Manju Bala Police witnessDuty Officer
3. PW 3 Sh. Rajat Public witness
4. PW 4 Sh. Saraf Raj Public witnessVictim
5. PW 5 HC Naresh Pal Police witnessInitial Investigation Officer
6. PW 6 HC Devender Police witness MHC(M)
7. PW 7 HC Ved Pal Police witnessDeposited the exhibits to FSL
8. PW 8 Dr. Seema CMO BJRM Hospital, Jahangir Puri
9. PW 9 HC Inderjeet Singh Police witnessWho attended the call at number 100
10. PW 10 Ct. Adesh Police witnesswho joined the investigation with HC Naresh Pal
11. PW 11 Dr. Deepak Chugh Identified the signatures of Dr. Rahul and Dr. Sandeep Kumawat
12. PW 12 HC Joginder Singh Police witnessExecuted the process under Section 82 Cr.P.C against the accused
13. PW 13 SI Madan Lal Police witnessSubsequent Investigating Officer List of documents :
Sr. No. Exhibit No. Details of documents Proved by
1. Ex.PW1/A Seizure memo of LG Mobile Phone Sh. Ranjeet Singh and currency notes of Rs. 13,000/.
2. Ex.PW1/B Seizure memo of wrapper of biscuit, pieces of biscuit and small bottle (shishi)
3. Ex.PW1/C Statement of complainant
4. Ex.PW1/D Pointing out memo
5. Ex.P1 Reliance Phone
6. Ex.P2 Mobile Phone Mark Fly
7. Ex.P3 Currency notes of Rs. 13,000/
8. Ex.P4 Wrapper and biscuit pieces
9. Ex.P5 Glass vial (shishi)
10. Ex.PW2/A Copy of DD No. 22A W/ASI Manju Bala
11. Ex.PW2/B Copy of FIR
12. Ex.PW2/C Endorsement on the rukka
13. Ex.PW3/PX1 Statement of witness Sh. Rajat
14. Ex.PW4/A Arrest Memo Saraf Raj 15 Ex.PW4/B Personal search memo
16. Ex.PW5/A Seizure Memo HC Naresh Pal
17. Ex.PW5/B Rukka FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 24 of 32
18. Ex.PW5/C Disclosure statement of accused
19. Ex.PW6/A Copy of entry in register no. 19 HC Devender
20. Ex.PW6/B Copy of RC No. 71/21/10
21. Ex.PW6/C Copy of receipt of acknowledgement
22. Ex.PW8/A MLC Dr. Seema
23. Ex.PW9/A Copy of Call Book HC Inderjeet Singh
24. Ex.PW11/A MLC of accused Dr. Deepak Chugh
25. Ex.PW12/A Report on the process u/S 82 Cr.P.C HC Joginder Singh
26. Ex.PW13/A Site Plan SI Madan Lal
27. Ex.PW13/B Forwarding letter
28. Ex.PW13/C FSL Result
22. The evidence of the prosecution was closed on 30.04.2014. Thereafter the accused remained absent and he was declared as Proclaimed Offender during the trial.
23. The statement of accused was also recorded under Section 313 Cr.P.C and all the incriminating evidence has been put to him and he denied all the prosecution evidence against him and submitted that he has been falsely implicated by the Police. He claimed himself as innocent and he also claimed that he himself is a victim but the Police instead of registering the case at his instance has falsely implicated him. He also failed to lead defence evidence despite opportunity given to him. Finally the Defence Evidence was also closed by Ld. Predecessor of this Court on 06.10.2015 and the matter has beenf ixed for final arguments.
24. I have heard the arguments at length addressed by ld. defence counsel Sh. Naveen Singla, Advocate as well as the arguments addressed by Ld. Ld. Addl. PP for the State Sh. P.K. Samadhiya and have gone through the record carefully.
FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 25 of 32
25. In his arguments Ld. defence counsel for the accused has sugbmitted that there are major contradictions in the statements o f prosecution witnesses as to recording of the statement of HC Naresh Pal and ASI Madan Lal. It is submitted that the statement recorded on 20.10.2010 bears the signature of ASI Madan Lal. Itr is also submitted by ld. defence counsel that as per the story of prosecution two mobiles has been shown to be recovered from the possession of the accused while PW 3 Rajat speaks only recovery of one mobile which creates a doubt on the story of prosecution. It is also submitted by ld. defence counsel that at the time of arrest of the accused there was one traveling bag recovered but the same has not been seized by the Police, neither the same has been produced in the evidence and no such seizure memo has been produced by the Police. In the cross examination certain suggestions has been given by the defence counsel to the PW 3 to the effect "It is correct that in presence of PW 3 the accused did not remove anything from the possession of the victim but the entire incident took place in the presence of Ranjeet". This fact itself admits the presence of the accused at the place of incident. In the evidence of PW 4, the victim Sarfraj in this case who has deposed the engtire story, how he has been made to suffer such incident of administering him the stupefying substance which resulted into the victim started giddiness (charkar ana) where the accused told him to take to his house thereafter PW 4 Sarfaraj became unconscious and he regained his consciousness at Hospital. He also correctly FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 26 of 32 identified the accused. He also deposed that when he regained consciousness, he found his mobile was missing and Rs. 13,000/ was not with him. In the cross examination a specific suggestion was given by Ld. defencen counselo to the victim PW 4 to the effect that "it is correct that accused Himanshu has consumed biscuit from the same packet of the biscuit from which he had given the biscuit to PW 3 to consume". This very suggestion given by Ld. defence counsel is sufficient to establish that the stupefying substance had been administered by the accused to the victim. It is also submitted by ld. defence counsel that accused is also a victim of the incident but he has been falsely implicated in this case. ld. defence counsel also submitted that instead of registering a case at the instance of accused, he has been falsely implicated by the Police at the instance of other persons while he has nothing to do in the present offence. Ld. counsel for the accused has draw the attention of this Court to the contradictions noticed by him in the statement of prosecution witnesses regarding the recorded of statement of other witnesses as well as the place of incident and the timings in reaching the place of incident and other places during the course of investigation. The contradictions as argued by the Ld. defence counsel are not fatal to the case of prosecution as the same are minor and having no relevance which may destruct the case of prosecution. Even in the cross examination of PW 4 a suggestion has been given by the Ld. defence counsel to the witness regarding presence of third FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 27 of 32 person in administering the stupefying substance to the victim, but the same has been denied by PW 4
26. On the other hand Ld. Addl. PP for the State has submitted that the incident has been noticed by PW 2 and PW 3 where they informed the Police and in their presence the accused has been arrested by the Police and recovery of Rs. 13,000/, mobile phones as well as biscuit and wrapper as well as the glass vial has been recovered and seized vide seizure memo Ex. PW 1/B and amount of Rs. 13,000/ as well as the mobile phones had been seized vide seizure memo Ex.PW1/A. The sealed pullandas along with the sample seal at the Hospital which was received from Duty Constable is seized vide seizure memo Ex.PW5/A. Rukka was prepared vide Ex.PW5/B. Accused was also arrested by IO ASI Madan Lal vide Ex.PW4/E and his personal search was conducted by the Police vide Ex.PW4/B. The disclosure statement of the accused is Ex.PW5/C and the place of incident has been pointed out by the accused vide memo Ex.PW1/D. The deposition of PW 2 PW3 and PW 4 has been duly corroborated and substantiated by PW 5 as well as the documentary evidence and their testimony has been corroborated by PW 6 HC Devender who was posted as MHC(M) on the day of incident where certain pullandas has been deposited with him by ASI Madan Lal which were duly recorded in Register No. 19 at Sr. No. 2785/10 and the same has been duly exhibited vide Ex.PW6/A. The testimony of all the witnesses has been duly corroborated by PW 13 SI madan lal who is IO of the case and FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 28 of 32 investigated the case and filed the charge sheet who deposed on all the same lines as has been deposed by PW 2, PW 3, PW 4 and PW 6 narrating the manner in which the investigation has been conducted by him. The testimony of PW 5 has been duly corroborated by the deposition of PW 10 Ct. Adesh who was present at the time of incident along with HC Naresh Pal who also deposed about the arrest of the accused as well as 26 currency notes of Rs. 13,000/ in the denomination of 500/ each and recovery of mobile phone.
27. It is also submitted by Ld. Addl. PP for the State that it was the duty of the accused his innocence that he has not administered the stupefying substance to the victim but the accused has failed to discharge its onus. He has failed to establish that he was not present at the site at the time of incident and he also failed to justify his presence at the place of incident and the consuming of stupefying biscuit. Moreover, the accused has been duly identified by the victim PW 4 Sarf Raj as well as other witness as cited by the prosecution. It is also submitted that administering of sedative poisoning has been duly proved by PW 8 Dr. Seema, CMO, BJRM Hospital, Jhangir Puri who has deposed that he has seen the MLC No. 11828 emergency No. 54698 of patient Sarf Raj S/o Sh. Shiyaj Malik dated 28.06.2010 at the time of his admission, the patient was unfit for statement and after examination his gastric lavage sample was sealed and handed over to the IO and as per the MLC, it was a case of sedative poisoning.
28. Before coming to the conclusion on the basis of FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 29 of 32 deposition of prosecution witnesses, I deem it appropriate to go through the relevant provisions i.e Section 328 IPC for which the accused has been charge sheeted. 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"
29. From the testimonies of witness and the arguments addressed by Ld. Addl. PP for the State, it is established on record that the accused has administered the stupefying substance/ sedative poisoning which is punishable under Section 328 IPC and during the same incident Rs. 13,000/ as well as mobile of the victim has been recovered from the possession of the accused and while committing the said offence he had been seen by the eye witnesses PW 2and PW 3 and the recovery was also effected in their presence from the accused. Therefore, the accused has also committed the offence punishable under Section 379 and in alternatively under Section 411 IPC.
FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 30 of 32
30. As the charges has been framed against the accused under Section 174 IPC as well as under Section 229 A IPC for which evidence has been led by examining PW 12 on 04.09.2013 HC Joginder has been examined who deposed to the effect of execution of process under Section 82 Cr.P.C issued against the accused by the Court. However, the record itself is sufficient to hold the accused guilty for the offence under Section 174 IPC as it is a matter of record that he remained absent during the trial and process under Section 82 (1) Cr.P.C has been issued against him and he has been declared as proclaimed offender firstly in the year 2011 and secondly he has been declared as absconder on 03.09.2016, for which no separate charge sheet has been filed. Ld. Predecessor of this Court has also framed charge under section 229 A IPC. Since the charges has been framed by Ld. Predecessor of this Court against the accused under Section 174 IPC, in these circumstances I do not deem it appropriate to proceed against the accused under Section 229 A IPC also. Accordingly charge against the accused under Section 229 A IPC is dropped.
31. In view of my findings to the arguments of Ld. counsel for the parties as well as in view of the above discussion, I am of the considered opinion that the prosecution has been able to establish and prove its case beyond reasonable doubt that the accused has committed the offence under Section 328 IPC by administering poisonous/ stupefying substance. It is also establish by the prosecution on record that recoveries has FIR No. 239/2010, P.S Mukherjee Nagar State Vs. Himanshu @ Happy Page No. 31 of 32 been effected from the accused of the items belonging to the complainant and he has committed the offence punishable under Section 411 IPC. The prosecution has been also able to establish on record that the accused was declared absconder after his release on bail by the Court and process under Section 82 Cr.P.C has been issued and executed against the accused. Therefore he has also committed the offence punishable under Section 174 A IPC.
32. Accordingly in view of the above discussion, I hold the accused guilty for the offence punishable under Section 328 IPC and 411 IPC as well under Section 174 A IPC. Let he be heard on the quantum of sentence.
Announced in the open court
on December 14, 2017 (Mukesh Kumar)
Addl. Sessions Judge04 (NorthWest)
Rohini Courts, Delhi.
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