Delhi District Court
State vs . 1. Satish Kumar, on 3 December, 2007
IN THE COURT OF SMT. PRATIBHA RANI,
ADDL. SESSIONS JUDGE, TIS HAZARI COURTS,
DELHI
SC No.24/07
State Vs. 1. Satish Kumar,
S/o Late Sh. Ram Chander,
R/o H. No.122/3,
Ghola Road, near Narain
Dass Market, Bhopal, M.P.
2. Mohd. Irfan,
S/o Mohd. Saleem,
R/o Village Shamychak
Barbighi, P.O. Lakhmania,
PS Baliys, Distt. Begusarai,
Bihar.
FIR No.458/03
Under Sec.328/397/411/34 IPC
PS : NDLS
Date of Institution : 6.11.2003
Arguments heard on : 20.11.07
Order pronounced on : 27.11.07
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JUDGMENT
Accused Satish Kumar and Mohd. Irfan have been chargesheeted for commission of the offence punishable under Sec.328/379/411/34 IPC, under Sec.147/149 of Indian Railway Act and under Sec. 75 IPC on the basis of complaint made by Sh. L. A. Narayan Swamy. Zero Fir was registered at GRP, Khandwa on 10.9.2003 and the matter was reported by Sh. L. A. Narayan Swamy on 11.9.2003 to ASI Subhash Chander who was 1 present with HC Mukhtiar Singh and Ct. Surender at Platform No.6/7. As per the complaint, on 8.9.2003 the complainant was sitting in the general coach of Karanata Express for going to his native place in Andhra Pradesh. He was served a fruity by a boy at platform No.6/7 and another associate of that boy was also standing there. After taking the fruity he felt sleepy and the suitcase carried by him as well as the ring and chain which he was wearing at that time were taken away by those persons. He regained consciousness at Khandwa station and was got admitted at Civil Hospital at Khandwa by GRP. He was discharged from Civil Hospital at Khandwa on 10.9.2003 and thereafter he came to Delhi on 11.9.2003 to platform No.6/7 in search of the offenders and reported the matter to the police present there. On this the police officer started searching for the offenders as per the description given by the complainant and one boy was found sitting on the bench near some Army men who was wearing a ring having red colour stone. On seeing that person wearing the ring, the complainant identified him to be the same person who served him fruity and the ring was also claimed by him to be belonging to him. On inquiry the name of that person was revealed as Satish Kumar. On his casual search two strips of Ativan Tablet were recovered and thereafter on the zero FIR lodged at GRP, Khandwa, ASI made the endorsement and sent 2 the same for registration of the case through Ct. Surender Singh. Accused Satish Kumar was arrested in this case and interrogated and on the basis of his disclosure statement accused Mohd Irfan was arrested from A-33, Sector 4, Vijay Vihar, Rohini and he was also identified by the complainant to be the associate of Satish Kumar. Accused Satish Kumar also got recovered one suitcase Safari brown colour from the 'tand' of his residential room which was found containing the belongings of the complainant and seized by the police. The complainant identified his belonging at the spot itself. Some other suitcase and articles belonging to other persons were also recovered from that place which were seized by the police under Sec. 102 Cr.P.C. Accused Mohd. Irfan also pointed out one suitcase lying in the same house on a 'tand' which was fiound containing two gold bangles, one titan watch, one Army Identify Card of complainant and cash of rs.2000/-. Police also seized two other suitcases at the instance of accused Mohd Irfan containing clothes, ring, cash which were also seized under Section 102 Cr.P.C. The tablets Ativan, 2 mg 20 in number seized in this case were also sent for chemical analysis to FSL, Malviya Nagar and after completion of investigation both these accused were sent to face trial mentioning in the chargesheet that whereabouts of accused Mohd Jamil could not be ascertained and except his 3 name no information is available with the police so he could not be arrested in this case and that accused Mohd Irfan is a previous convict and section 75 IPC was also added in the charge sheet.
2. After compliance of provisions of Sec. 207 CrPC, the case was committed to the Court of Sessions.
3. After hearing on the point of charge, both the accused persons were charged on 2.4.2004 for the offence punishable under Sec.328/397/411/34 IPC to which they pleaded not guilty and claimed trial.
4. Prosecution has examined 10 witnesses in support of its case. Both the accused persons were also examined under Sec. 313 CrPC to enable them to explain about the evidence appearing against them. They have stated that they have been falsely implicated in this case at the instance of PW-1 Narainswami and that they are innocent. Accused Satish has examined Smt. Bimla and Smt. Kamlesh as DW-1 and DW-2 respectively in his defence.
5. I have heard Addl. PP for the State and Sh. S.R. Jolly, ld. counsel for the accused persons. I have also carefully gone through the record.
6. PW-1 Hawaldar Narayan Swamy is the complainant as well as the victim who was served some intoxicant in a cold drink when he was travelling in train for going to his native place 4 and thereafter his belongings were stolen. He has stated that on 8.9.2003 he boarded Karnataka Express from New Delhi Railway Station platform No.6. When he was sitting on platform No.6 and was waiting for the train, both the accused Satish and Irfan inquired from him whether he was travelling alone and when he replied that he was alone and had no reservation, they offered him the upper seat in the railway bogie. He was carrying one suitcase, airbag and a cycle for his child in a packet. While the cycle was kept under the lower seat, remaining luggage was kept by him on the upper seat and he continued sitting there. Accused Satish demanded some money from him for fruity and when he said that he was not having any money, accused Satish went outside the bogie and after sometime he returned and sat on his seat. Thereafter accused Irfan brought a fruity and handed over the same to accused Satish through window and asked Satish to serve the same to the person siting on the upper seat i.e. the complainant. When accused Satish offered fruity to him, he refused but accused Satish insisted to accept the same saying that he was also a military man. From his look and the chain used for identity card, accused Satish also appeared to be a military man, so he accepted the fruity and consumed the same. By that time, train started moving and he fell asleep. Next day at about 11.00 am when the train reached at Khandwa station, some passengers 5 sitting on the lower seat woke him up and he found his suitcase missing. He was told by the passengers that the suitcase had been taken by the person who offered him fruity on previous night and he had got down at Agra railway station. Those persons brought him down from the upper seat and as he was not fully conscious even at that time, he was brought near the door of the railway bogie but by that time, the train started and he fell on the railway platform. The packet containing the child cycle and the bag were thrown by the passengers on the platform. As he was unable to get up, one coolie came there and asked about the matter and after telling him that some intoxicant had been served to him. He again became unconscious. He was taken by the coolie alongwith bag and the child cycle to nearby GRP Police at Khandwa and he gained consciousness in the hospital from where he was discharged on 10.9.2003. FIR was also recorded there and copy of the same was given to him. He has stated that the suitcase contained Rs.30,000/-, gold and other jewellery and other articles and whatever valuables and cash was on his person that was also stolen by the accused persons including his identity card and he was having no money, Arrangement was made by GRP to send him to New Delhi Railway station and on 11.9.2003 the train reached New Delhi Railway Station and he reported the matter to the police officials present at the railway station. 6 Report had already been lodged by him at Khandwa Railway Station and then he alongwith the police went in search of the offenders on the Railway Plaform. At about 9.00 pm on that day, he narrated the incident to the police officials present at platform No.6 and again search started for the accused persons. At about 11.45 pm, accused Satish was seen sitting on a bench near staircase with some military man at platform No.6. He was wearing gold ring having Nag of Rashi (zodiac sign stone) belonging to the wife of the complainant. He pointed out the same to the police officials accompanying him telling them that accused Satish is the same persons who alongwith his associate was travelling with him and served fruity to him. Accused Satish was apprehended and two packets of tablets were recovered from him. The gold ring was also recovered from his possession which were kept in sealed parcel and sealed with the seal of SC and seized vide memo Ex.PW1/A. Accused Satish was interrogated and he made disclosure statement and then he alongwith police persons and accused Satish reached Rohini in a taxi where accused Satish pointed out a room where accused Irfan was also present and tried to run away on seeing the police but apprehended. Thereafter that room was searched and the suitcase belonging to the complainant was found lying inside that room and he identified the suitcase before the police. The 7 suitcase was opened and checked and it was found containing the articles of the complainant i.e. Rs.2800/- in cash, one gold haar, one small gold chain, two children's gold rings, two ladi of moti mala on which on a patti the intial of his name was engraved i.e. LANS, citizen calculator and the clothes. The jewellery and currency notes were kept in a separate parcels and remaining articles were packed in the same suitcase and were seized vide memo Ex.PW1/B. Accused Irfan also produced Rs.2000/-, pair of kangan of wife of PW-1 i.e. the complainant as well as the identity card of complainant from another suitcase stating that he received the same as his share after commission of the theft which were also taken into possession by the police vide memo Ex.PW1/C. About the remaining articles, gold chain, navaratan ring and the remaining cash, the accused Satish and Irfan informed that the same had been taken away by their co-accused Zamil but Zamil could not be arrested and remained untraceable. He has further stated that from the same room, 5-6 other suitcases were also recovered which had been stolen by them with same modus operandi and those suitcases were seized by the police under Sec.102 CrPC. The witness has identified his suitcase Ex.P1, pair of ring, a haar, a moti mala, a small chain of gold collectively exhibited as Ex.P2 and some wearing clothes Ex.P3, his identity card Ex.P4, cash amount of Rs.4800/- 8 collectively exhibited as Ex.P5, pair of kangan Ex.P6, ring having a nag Ex.P7 to be belonging to him. He has also identified the two packets of Ativan tablet collectively exhibited as Ex.P8 which were recovered from the pocket of the accused Satish Kumar at the time of his apprehension.
7. PW-2 Sh. Radhey Shyam Mahajan, MHC(M), PS GRP, Khandwa handed over the stomach wash of the complainant to ASI Subhahs Chand of PS New Delhi Railway Sation which were seized vide memo Ex.PW2/A. He has also proved the relevant entries in the malkhana register as well as the various DD entries pertaining to this case as Ex.PW2/B to Ex.PW2/H.
8. PW-3 is HC Jaswant Singh, MHC(M), PS New Delhi Railway Sation who had proved the relevant entires in respect of the deposit of the case property and sending of the stomach wash and tablets to FSL and receiving of result from FSL as Ex.PW3/A to C.
9. PW-4 ASI Mukhtiar Singh, PW-10 ASI Subhash Chand and PW-7 Ct. Surender were on duty on platform No.6/7 when contacted by the complainant Army Hawaldar L.A. Narayan Swamy and informed about the occurrence. They have stated that initially they checked the Karnataka Express to find out whether the accused persons were available in the general 9 bogie but they could not be traced and Karnataka Express left the station. Thereafter they started searching the accused persons on the platform and near a tea stall, 3-4 persons were sitting on a bench and in between them accused Satish was found siting. He was also wearing a ring in his finger. The complainant identified the ring and told that the ring worn by accused Satish belong to him. Thereafter accused Satish was apprehended and searched and from his pant pocket, 20 tablets in wrappers were recovered. The ring as well as the recovered tablets were taken into possession vide memo Ex.PW1/A. Accused Satish also made disclosure statement Ex.PW4/A and led the police party and the complainant to his house i.e. A-33, Vijay Vihar, Rohini.
10. After being led by accused Satish to A-33, Vijay Vihar, Rohini, accused Mohd. Irfan was found sitting in a room and brown colour suitcase make Safari was lying on the 'tand' was produced by accused Satish and identified by the complainant to be belonging to him. On opening, the briefcase was found containing Rs.2800/- cash, mala of pure pearls on which name of complainant was written, two rings, one chain of child, calculator and other articles and clothes which were identified by the complainant to be belonging to him and the same were taken into possession vide memo Ex.PW1/D. Accused Mohd. Irfan present there was also interrogated and he 10 made disclosure statement Ex.PW4/B and produced his suitcase from which Rs.2000/-, identity card of the complainant and some clothes and ornaments and Titan watch were recovered which were seized vide memo Ex.PW1/C. Some other suitcases and bags were also recovered from that room which were taken into possession under Sec. 102 CrPC. Accused Satish also got recovered other suitcases which were seized vide memo Ex.PW1/E. Accused Mohd. Irfan was arrested and his personal search was conducted vide memo Ex.PW4/C. Accused Satish who was arrested at the platform, was also searched there vide memo Ex.PW4/D. Both the accused persons also disclosed about their associate Zamil but could not be traced. This witness has identified the suit case Ex.P1, pair of ring, a haar, a moti mala, a child chain of gold collectively exhibited as Ex.P2, some wearing clothes which were recovered from the room of the accused as Ex.P3, identity card of the complainant Ex.P4, cash amount of Rs.4800/- i.e. collectively exhibited as Ex.P5, pair of kangan belonging to the wife of the complainant Ex.P6, ring having a nag Ex.P7 to be belonging to the wife of the complainant. He has also identified the two packets of Ativan tablet collectively exhibited as Ex.P8 which were recovered from the pocket of the accused Satish Kumar at the time of his apprehension.
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11. PW-10 ASI Subhash Chand has also stated that on 16.9.2003 he left for PS Khandwa for further investigation of the case and reached there on 17.9.2003 and collected gastric leverage of complainant from the malkhana, PS Khandwa alongwith sample seal and recorded the statement of HC Radhey Shyam and ASI Kailash Pradhan who got medically examined the complainant at Civil Hospital and recorded Fir No.30/03, PS Khandwa and they also told that the original documents have been sent to S.S.P. Railway, Bhopal for sending the same to PS NDLS. PW-10 further stated that he went to the office of S.S.P. Railway, Bhopal and collected the documents Ex.PW2/B to H, Ex.PW6/F to Ex.PW6/H, Ex.PW6/J to Ex.PW6/L and Ex.PW10/C from there vide his application Ex.PW6/M and thereafter returned back to Delhi on 19.9.2003. The above documents were kept on file and sealed bottle of gastric leverage alongwith sample seal wee deposited in the malkhana. He has further stated that on 29.9.2003, the gastric leverage and tablet of Ativan 2 mg were sent to CFSL, Malviya Nagar for chemical examination through Ct. Surender and later on collected the result from CFSL which was filed on record. He has also stated that during investigation, as per direction of the court, the case property i.e. Belongings of the complainant were released to him after taking the photographs of the same. The photographs of the 12 items released to the complainant were filed in the Court and are Ex.PW1/F, G, H and J. He has also stated that the two strips of tablets were recovered from the right side pant pocket of accused Satish.
12. PW-5 HC Dalbir Singh is the Duty Officer who has proved the carbon copy of the FIR as Ex.PW5/A.
13. PW-6 ASI Kailash Chand Pradhan from GRP, Khandwa has stated that on 9.9.2003 he was working as Duty Office at PS GRP, Khandwa and on that day at about 5.00 pm Coolie No.17 namely Gangadhar brought a person in army uniform who was unconscious and from his name plate, his name was revealed as A.N. Swamy. He was further informed that Mr. A.N. Swamy was found at railway station, Khandwa. He sent Mr. A.N. Swamy for medical examination to Main Hospital, Khandwa and after his discharge from there, he reported to him next day and on inquiry it was revealed that A.N. Swamy was given Mango juice by a person aged about 25 years and thereafter he became unconscious. When he regained consciousness, the train had left Itarsi Station. He found his suitcase containing cash, jewellery and other articles missing and whatever he had in his pocket had also been taken away. PW-6 ASI Kailash Chand Pradhan has further stated that he record Zero FIR, copy of which has been proved as Ex.PW6/A bearing 13 the signature of Sh. A.N. Swamy at point-A and his signature at point-B. He also informed RPF, New Delhi. The stomach wash of Sh. A.N. Swamy brought from the hospital in sealed condition was also deposited in the malkhana vide entry Ex.PW6/B. As the occurrence took place at New Delhi Railway Station, he prepared the certificate Ex.PW6/C, sent the special report to Senior Officer, carbon copy of which is Ex.PW6/D and recorded the statement of Sh. A.N. Swamy which is Ex.PW6/E. He has also proved the request for sending Sh. A.N. Swamy for medical examination as well as his MLC as Ex.PW6/F and the medical report as Ex.PW6/G. The DD lodged to this effect by his Clerk HC Triveni Prasad Mishra is Ex.PW6/H. The index prepared by him about this crime is Ex.PW6/J. Crime detail form prepared him is Ex.PW6/L and Original FIR is Ex.PW6/K. Request for transfer of the case to Delhi is Ex.PW6/M. He has further stated that the complainant had also informed him that he could identify the person who served him Mango drink after which he became unconscious. He has also stated that on 17.9.2003 ASI from PS NDLS came to him and he handed over all the documents to him who also recorded his statement.
14. PW-8 is Sh. Sri Narain, Senior Scientific Officer, Forensic Science Laboratory, Rohini, Delhi who has examined the tablets as well as the stomach wash and submitted his report 14 Ex.PW8/A. As per his report, on chemical examination of Ex.P1 i.e. Two strips containing ten tablets in each printed as 'Ativan 2 mg' it gave positive test for the presence of larozepam and on chemical examination of Ex.P2 i.e. Gastric wash, metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquillizers and insecticides could not be detected in it.
15. PW-9 Dr Subhash Chand Jain, Medical Officer, Main Hospital, Khandwa, M.P. He has stated that on 9.9.2003 at 6.40 pm Mr. A.N. Swamy S/o Sh. L.S. Naidu was brought by the police to the hospital with alleged history of giving unknown article for eating and complaining of difficulty in walking. He examined the patient and prepared his MLC Ex.PW6/G. He has further stated that the general condition of the patient was satisfactory and conscious, pulse 80 per minute, temperature normal, B/P 110/70, pupils were reacting normally and no abnormality detected. The patient was admitted for observation and treatment and gastric leverage preserved and was handed over to the police. PW-9 has further stated that no definite opinion was possible without chemical examination of gastric leverage.
16. On behalf of prosecution, Ld APP for State has submitted that the complainant has not only identified the 15 accused persons to be the same who in furtherance of their common intention served mango drink to him after mixing intoxicant and on consuming that he became unconscious and thereafter the accused persons had taken away the belongings of the complainant which had been subsequently recovered from their possession at their pointing out from house No.A-33, Vijay Vihar, Rohini, Delhi and one ring belonging to the complainant had been recovered on his identification which accused Satish was wearing at the time of his apprehension, hence the case against the accused persons stand proved beyond reasonable doubt and they be convicted.
17. On behalf of accused persons, it has been contended that in the Zero FIR, the height of the accused persons was given as 5 feet 11 inches and none of the accused is having this much height. Further the name of the complainant does not match with the name as mentioned on the MLC which is sufficient to prove that it pertains to some other person and not to the complainant. In the CFSL result also there is no opinion about the presence of poison in the stomach wash. It has been further contended that although as per prosecution case, accused Satish was apprehended at the pointing out of the complainant but complainant is not a witness to the site plan which shows the arrest of the accused Satish from New Delhi Railway Station at 16 the pointing out of complainant doubtful. Ld. Defence counsel has also referred to the statement of complainant in cross examination which is to the effect that "when they went in search of the accused persons at some place, they were seven in number, in a vehicle/private taxi and at that place nobody met them and nothing was recovered". Ld. Counsel for the accused has also referred to the enclosures received from GRP, Khandwa with Zero FIR as well as the MLC wherein the patient has been shown as conscious and contended that these documents are sufficient to prove the innocence of the accused persons especially when the CFSL report also shows that the stomach wash did not contain any poisonous substance.
18. So far as charge against the accused persons for the offence punishable under Sec.328IPC is concerned, no doubt accused Satish has been arrested at the pointing out of complainant A.N. Swamy but while appearing in the witness box, he could not identify correctly the person who served him the mango drink. In his examination-in-chief he has stated that accused Satish went outside the bogie and then came in and occupied the seat and it was accused Mohd Irfan who handed over the fruity to accused Satish and accused Satish served the same to him and after taking that fruity he became unconscious. He has also stated that he pointed out accused Satish to the police 17 officials to be the person who alongwith his associate was travelling with him and served fruity to him. So in his examination-in-chief he was pointing out towards accused Satish to be the person who served the mango drink, however, in his cross examination by the accused persons he completely changed the version stating that it was accused Satish who went to bring fruityfrom the platform and accused Mohd Irfan had offered the fruity to him. He has further stated that his statement that accused Mohd Irfan served the fruity to him is correct and earlier statement that accused Mohd Irfan had gone to bring the fruity is wrong and that accused Satish had offered the fruity to him also wrong. Once the witness has changed the role of the accused persons during the cross examination claiming his earlier statement to be wrong there is no other person to depose except the complainant as to who had served the mango drink containing some intoxicant to him and whether only accused Satish travelled with him in that train or accused Mohd Irfan was also there. The evidence on record for proving the offence under Section 328 IPC is very weak and conviction cannot be based on such a confusing statement of complainant as to who had served the fruity containing intoxicant to him. So both the accused persons are acquitted of the charge for the offence punishable under Section 328/34 IPC.
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19. The statement of PW6 ASI Kailash Chand Pradhan from GRP, Khandwa and the documents prepared at PS Khandwa are sufficient to prove that it was the complainant Sh. A.N. Swamy who was brought by Coolie Gangadhar and sent to General Hospital, Khandwa for medical examination. Merely because the patient has been mentioned as conscious does not mean that he was fully mentally alert as it can only convey that vital organs were functional. The identity and name of the complainant could be ascertained at PS GRP, Khandwa only from his uniform and the name plate affixed thereon. The relevant DD entry Ex.PW2/B clearly establishes that the complainant was not able to narrate the incident completely and DD Ex.PW2/E shows that he had come to the police station after his discharge from the hospital. Vide DD Ex.PW6/H at GRP, Khandwa at 17:10 Hrs it is mentioned that one military man had been brought by coolie No.76 namely Ganga Dhar in intoxicated condition who had been offered some cold drink and thereafter he became unconscious and was not able to tell the correct details. These documents clearly proves the case of prosecution to the extent that the complainant Sh. A.N. Swamy while travelling by Karnataka Express was served some cold drink by somebody and after taking that he became unconscious and his luggage and personal belongings including identity card were 19 stolen by those persons and he was made to get down at Khandwa by the fellow passenger and brought to the police station by coolie Sh. Ganga Dhar. Thereafter necessary legal formalities were completed at PS GRP, Khandwa and he was also sent for treatment at General Hospital, Khandwa. Thereafter the statement of the complainant proves that he came to Delhi in search of his luggage and from platform No.6 accused Satish was apprehended by the police on his pointing out. The statement of the complainant further proves that at the time of apprehension accused Satish was wearing a ring with red 'nug' and he identified that ring also. From the statement of complainant and police officials i.e. PW4 ASI Mukhtiar Singh, PW7 Ct. Surender and PW10 ASI Subhash Chand it is established that after accused Satish was apprehended and interrogated, he made disclosure statement Ex.PW4/A and led the police party to A-33 Vijay Vihar, Rohini, Delhi from where the suitcase of the complainant and some other articles were recovered and accused Mohd. Irfan was also found present there and at his instance belongings of the complainant i.e. Rs.2000/-, identity card of the complainant, some clothes and ornaments from a suitcase were also recovered. Considering that complainant was a military man going to his native place in Karnataka in KK Express had no reason to get down at Khandwa, report the matter there and then come to 20 Delhi empty handed to search for the offenders. It was his fighting spirit only that offenders could be nabbed and his suitcase and belongings recovered. It is relevant to mention here that apart from the luggage of the complainant, other suitcases and belongings of other persons were also recovered from the premises A-33, Vijay Vihar, Rohini, Delhi which were seized by the police under Section 102 Cr.PC. Photographs of the suitcase and other articles of the complainant have also been placed on record which are Ex.PW1/F,G,H and J. The statement of the complainant regarding recovery of his luggage and other articles from the possession of the accused persons from H. No.A-33, Vijar Vihar, Rohini, Delhi is not only trustworthy but also fullysupported and corroborated by PW4, PW7 and PW10 - the police officials who accompanied the complainant to premises No. A-33. Vijay Vihar, Rohini, Delhi and recovered the stolen goods at the instance of accused Satish and Mohd Irfan. The accused persons have failed to explain about their possession of so many suitcases and belongings of the passengers including that of the complainant. Mere denial by the accused persons about the recovery from their possession is not sufficient to exonerate them. It is also relevant to mention that the defence witnesses i.e. DW-1 Smt. Bimla produced by accused only speaks of his presence in a Jagran on the night of 8.9.2003. As 21 per the complainant, he saw these accused persons at the railway station at Platform No.6 on the night of 8.9.2003. Though it is not relevant to discuss the incident or date of Jagran for the reason that accused persons have been acquitted of the charge under Sec.328 IPC but even otherwise the statement of both the defence witnesses is not trustworthy for the reason that atleast photographs of the jagran showing the presence of the accused in that Jagran could have been placed on file to prove that they could not be present at the railway station in K.K. Express on that night. The Jagran starts at late night and oral testimony of defence witnesses that accused Satish was present at home is not trustworthy but has been made just to save him being son-in-law of DW-1. DW-2 Smt. Kamlesh, the member of the jagran Mandli must have been busy in the Jagran and not marking the presence of the persons attending the jagran especially when accused Satish was not personally known to her.
20. The complainant Sh. A.N. Swamy, a military man had absolutely no reason to depose against the accused persons about the arrest of accused Satish from platform No.6 on 11.9.2003 at his instance and about the recovery of his luggage and other belongings i.e. identity card, cash amount, ornaments and clothes from house No.A-33, Vijay Vihar, Rohini at their instance. The presence of accused Satish with military man on 22 the date of his arrest further shows that it was his modus operandi to become familiar with military man by claiming himself to be military man and committing theft of their luggages. Presence of money, suitcase and luggage of passengers including that of complainant is sufficient to prove that accused Satish and Mohd. Irfan were in possession of suitcase Ex.P1 containing Ex.P2 to P7 i.e. pair of ring, a haar, a moti mala, a child chain of gold, some wearing clothes, identity card, cash amount of Rs.4800/-, pair of kangan, ring having a nag belonging to the complainant knowing the same to be stolen property hence they are held guilty for the offence punishable under Sec. 411/34 CrPC.
21. In view of the above discussion, accused Satish Kumar and Mohd. Irfan are acquitted of the charge punishable under Sec.328/34 IPC and held guilty for the offence punishable under Sec.411/34 IPC and convicted accordingly. Announced in the open Court 27.11.2007 ( PRATIBHA RANI ) Addl. Sessions Judge/Delhi IN THE COURT OF SMT. PRATIBHA RANI, ADDL. SESSIONS JUDGE, TIS HAZARI COURTS, DELHI 23 SC No.24/07 State Vs. 1. Satish Kumar, S/o Late Sh. Ram Chander, R/o H. No.122/3, Ghola Road, near Narain Dass Market, Bhopal, M.P.
2. Mohd. Irfan, S/o Mohd. Saleem, R/o Village Shamychak Barbighi, P.O. Lakhmania, PS Baliys, Distt. Begusarai, Bihar.
FIR No.458/03 Under Sec.328/397/411/34 IPC PS : NDLS Arguments heard on : 29.11.07 Order pronounced on : 29.11.07 *** ORDER ON SENTENCE I have heard the convicts Satish Kumar and Irfan Kahn and their counsel Sh. S.R. Jolly, Advocate on the point of sentence. Sh. S.C. Sharma, Addl. PP has also made submissions on behalf of State.
2. On behalf of convict Satish Kumar it has been submitted that he was aged about 23 years at the time of his arrest and is first offender and already remained in judicial custody for about nine months. He has 97 years old mother, wife and one child aged about four years to support. On behalf of 24 convict Irfan Khan, it has been submitted that he was aged about 30 years at the time of his arrest and already remained in judicial custody for about three months. He has one sister who is going to be married on 14th of this month and his wife and children to support. Prayer for release on probation has been made by both the convicts.
3. I have considered the submissions made on behalf of the convicts. In the present case, the luggage of the complainant and that of other passengers were recovered from these accused persons from their premises at A-33, Vijay Vihar, Rohini, Delhi and in the circumstances, the only presumption that can be drawn is that either they are thieves or receiver of the stolen properties. Since the convicts have been convicted under Sec. 411 CrPC, taking into consideration the fact that luggage of many passengers were recovered from these accused persons which also included the luggage of the complainant stolen from K.K. Express in which he was travelling, it appears that the convicts are habitual receiver of the stolen properties of the railway passengers, hence prayer for release of the convicts on probation is declined.
4. Taking into consideration the entire facts and circumstances of the case, I hereby sentence the convicts Satish Kumar and Mohd. Irfan to undergo rigorous imprisonment for 25 one year and to pay a fine of Rs.10,000/- each for the offence punishable under Sec.411/34 IPC. In default of payment of fine, they shall undergo simple imprisonment for three months. The period of detention already undergone by the convicts during investigation/trial of the case, if any, shall be set off under Sec. 428 CrPC.
5. Case property be confiscated to the State after the expiry of period of appeal, if any. File be consigned to Record Room.
Announced in the open Court 3.12.2007 ( PRATIBHA RANI ) Addl. Sessions Judge/Delhi 26