Delhi District Court
State vs Himanchal on 2 April, 2026
IN THE COURT OF SHRI DEEPAK WASON:
ASJ-04 : SW DISTRICT: DWARKA COURTS : NEW DELHI
SC No. 327/2023
CNR No. DLSW01-004876-2023
State Vs. (1) Himanchal
S/o late Sh. Ambika Prasad Tiwari
R/o District Gonda, UP.
(2) Sabir Ahmed
S/o Md. Ameen
R/o-District Basti, UP.
FIR No. : 131/2018
Police Station : Kapashera
Under Sections : 328/379/411/34 IPC
Date of committal to Sessions Court : 18.05.2023
Date on which judgment was reserved : 11.03.2026
Date on which Judgment pronounced : 02.04.2026
Final Order : Both accused are acquitted
for the offences under Section 328/379/34 IPC and accused Sabir Ahmed
is also acquitted for the offence u/s 411 IPC.
JUDGMENT
BRIEF REASONS FOR DECISION:
1. The case of the prosecution, in brief, is that both the accused persons were sent to face trial under Sections 328/379/411/34 Indian Penal Code (hereinafter called as IPC) on allegations that on 20.03.2018 at about 02:30 PM at Kapashera Bus Stand, near DC Office, Kapashera, New Delhi, both accused in furtherance of their common intention, had mixed stupefying substance i.e. Clonotril-2 NP x Clonazepam Dispersible tablets in the Candyman Choco Double Eclairs toffee and also mixed some unknown substance in the water and gave it to the SC no. 327/2023 State Vs. Himanchal & ANR Page 1 of 20 complainant Mohan Lal Saket (since expired) to eat the said toffee and drink water, while traveling in a bus from Kapashera to Anand Vihar ISBT. It was further alleged that both accused in furtherance of their common intention, they also committed theft of Driving Licence (DL);
Aadhar Card; purse containing Rs. 7500/-; one black colour pithu bag having logo of 'AD King' containing one yellow and black colour chargeable emergency light, blue colour jeans of Diesel Company, cream colour towel and some other clothes and black colour Android Samsung J-210 F Mobile phone containing two Sim cards i.e. one of Jio and another of Airtel, belonging to complainant Mohan Kumar Saket (since expired). Furthermore, on 26.03.2018, at C-76, Second floor, Rajdhani Park, Nangloi, Delhi, accused Sabir Ahmed got recovered one violet colour trolly bag filled with clothes, Samsung J-2 Mobile phone, one black colour pithu bag with AD King Logo and one Jio Sim which belonged to complainant Mohan Lal Saket (since expired) which accused Sabir Ahmed have retained knowingly that to be a stolen property. Based on these allegations, FIR No. 131/2018 was registered at PS Kapashera.
2. After investigation, charge sheet was filed against both the accused persons before the Ld. concerned MM and the copies of charge sheet were supplied to them in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C) and thereafter, the matter was committed to the Sessions Court on 18.05.2023, and on 11.08.2023, a charge under Section 328/379/34 IPC was framed against both accused and separate charge u/s 411 IPC was framed against accused Sabir Amhed to which they pleaded not guilty and claimed trial.
SC no. 327/2023 State Vs. Himanchal & ANR Page 2 of 203. The prosecution was given the opportunity to prove its case and, in support, prosecution examined 8 witnesses.
4. PW-1 is Manoj Kumar Saket. As per prosecution, he is the brother of Saroj, who is the wife of deceased Mohan Lal Saket and who has deposed that he is a student and pursuing his B.tech training. He further deposed that he had got issued a SIM Card of Airtel company bearing no. 8103033274 in his name and same was given to his jija namely deceased Mohan Lal Saket and on 20.03.2018, he was using the said mobile number. He further deposed that he received a call from the police and he came to Delhi and went to PS Kapashera where his statement was recorded by the police. This witness was cross examined by Ld. counsel for accused-Sabir Ahmed and not by Ld. counsel for accused Himanchal.
5. PW-2 is Smt Saroj. As per prosecution, she is wife of deceased Mohan Lal Saket and who has deposed that she is a house wife and she is an illiterate. She further deposed that her husband late Mohan Lal Saket was driver by the profession and plying his vehicle in Delhi. She further deposed that on 20.03.2018, her husband informed her on mobile phone but she does not remember her mobile number that he was returning to native place from Delhi. She further deposed that her husband informed that he would come from Anand Vihar and he would take train from Anand Vihar to Rewa. She further deposed that he was continuously in touch with her husband till Kapashera border, thereafter, his mobile was reported switched off. She further deposed that some person who was working with her husband in company informed that some unknown person had administered poisonous substance to her SC no. 327/2023 State Vs. Himanchal & ANR Page 3 of 20 husband and he was in semi unconscious condition at Anand Vihar Bus stop. She further deposed that since her husband was not feeling well and hence, he got admitted in the hospital. She further deposed that one of the colleague of her husband namely Ram Kumar reported the matter to PS Kapashera and thereafter, a FIR was lodged. She further deposed that after discharged from the hospital, her husband went to Native place. She further deposed that her husband told her that some unknown person had offerred toffee and water to him and after consuming the water and toffee, he became unconscious. She further deposed that thereafter, the said persons stolen his mobile phone, bag, clothes, torch and license and money but he does not remember, as to how much money. She further deposed that in year 2019, her husband received an information that mobile phone, bag, torch, has been recovered by the police. She further deposed that in the year 2019, she got released the aforementioned articles from the court. She further deposed that on 14.07.2018, her husband, expired and apart from this, she does not know anything about this case.
6. This witness was also cross-examined by the Ld. Addl. PP for the State as the witness was resiling from her previous statement wherein she deposed that on the day of incident, her husband was using two mobile numbers i.e. 9774226996 and 8103033274. She admitted as correct that on the day of incident, in the night she received a call from the mobile phone of Mohit (friend of her husband) who informed her that in the noon time, her husband was present at Kapashera border bus stop to take bus for Anand Vihar, in the meantime, one person aged about 25- 30 years who was carrying a bag in his hand came near him and told him that he has to go to Ahllabad and expressed his willing to go with her SC no. 327/2023 State Vs. Himanchal & ANR Page 4 of 20 husband, after some time, they boarded in a bus route no. 543 red color and sit on the back seat of the said bus and in the meantime, one another person also came near to them and told that he was also going to Ahllabad and sat on the last seat beside her husband. She further deposed that the first person had taken out two toffees from his pocket out of which, he himself consumed one toffee and another given to her husband and her husband also consumed the said toffee, and after 10 minutes, the another person offered water to her husband and after consuming the water her husband became felt and he was waken up by some unknown person at Anand Vihar Bus stop and his all belongings were missing. She further admitted as correct that driver Ram kumar firstly taken her husband at his company i.e. IMT Manesar. She denied the suggestion that her husband informed her that police had caught hold two persons and they were identified by him and his bag and mobile phone was recovered from them. She admitted as correct that due to lapse of time, she was unable to recollect all the facts of the case.
7. This witness was cross examined by Ld. counsel for accused Sabir Ahmed wherein, she deposed that it is correct that she does not know as to who had offered toffee and water to her husband and also she does not from whom those belongings were recovered. She denied the suggestion that all the belongings were found in abandoned condition and also denied that the alleged recovery was planted upon accused.
8. Ld. counsel for accused Himanchal adopted the above said cross examination of this witness.
SC no. 327/2023 State Vs. Himanchal & ANR Page 5 of 209. PW-3 is HC Raju Ram Yadav. As per prosecution, he has joined the investigation alongwith other police officials on 23.03.2018 and who has deposed that on 23.03.2018, he was posted at PS Kapashera and on that day, he was on duty alongwith HC Vijay and Ct. Manoj at Kapashera border. He further deposed that they were on plain clothes and at that time, IO SI Akash came there and informed them about the incident which was took place 2-3 days prior. He further deposed that thereafter, IO left the spot. He further deposed that during checking they found two boys in suspicion condition near DC office. He further deposed that they stopped them and took to the PS. He further deposed that in the PS, they apprised SI Akash about the accused persons that during checking they apprehended both the accused persons namely Shabir Ahmed and Himanchal and after seeing the police, both the accused person were trying to flee away from the spot and no satisfactory answer were given by them. He further deposed that one traveller bag having logo of tycoon which was containing three shirt, and a mobile phone of make samsung was recovered from accused Shabir and 6 toffee with and one strip of clonotril-2 Npx Clonazepam Dispercible Tablet were recovered from accused Himanchal. He further deposed that thereafter, IO inquired from both the accused persons and they disclosed their involvement about one Ghanshyam @ Bura and they further disclosed that they used to give stupefying tablets to the public persons and theft their articles. He further deposed that on further interrogation, they disclosed the recovered mobile phone was stolen on 20.03.2018 from one person after giving him stupefying toxic toffee. He further deposed that after checking IEMI number of recovered mobile phone make samsung, same was matched with the stolen mobile phone of the present case. He further deposed that thereafter, both the accused persons SC no. 327/2023 State Vs. Himanchal & ANR Page 6 of 20 Shabir Ahmed and Himanchal were arrested vide memos Ex. PW-3/A and Ex. PW-3/B. He further deposed that personal search of both accused persons were conducted vide memos Ex. PW-3/C and Ex. PW-3/D . He further deposed that IO recorded their disclosure statement Ex. PW-3/E and Ex. PW-3/F. He further deposed that thereafter IO seized one strip of tablet (containing 9 tablet and 6 were already used ) clonotril-2 Npx Clonazepam Dispercible Tablet, in a pulanda and same was sealed with the seal of "AS" and seized vide memo Ex. PW-3/G. He further deposed that 6 toffee which was recovered from accused Himanchal kept in a pulanda and same was sealed with the seal of AS and seized vide memo Ex. PW-3/H. He further deposed that Mobile phone make Samsung kept in a pulanda and sealed with the seal of AS and seized vide memo Ex. PW-3/I. He further deposed that traveler bag kept in a pulanda and sealed with the seal of AS and seized and seized vide memo Ex. PW-3/J . He further deposed that thereafter, case property was deposited in the Malkhana and IO recorded his statement.
10. He further deposed that on 26.03.2018, he again joined the investigation alongwith SI Akash and HC Vijay. He further deposed that thereafter, they took the accused Shabir Ahmed and Himanchal and produced before the court in a muffled face where IO moved an application for TIP in which accused persons refused to join the TIP proceedings. He further deposed that thereafter, IO moved an application of two days PC remand on which court ordered for 1 day PC remand of both the accused persons. He further deposed that thereafter, he alongwith SI Akash and HC Vijay took the both accused Shabir and Himanchal at the spot where IO prepared pointing out memo at their instance, as Ex. PW-3/K and Ex. PW-3/K1. He further deposed that SC no. 327/2023 State Vs. Himanchal & ANR Page 7 of 20 thereafter, they reached on the local address of accused Shabbir i.e. C-76, Rajdhani Park, Nangloi, where one trolly bag, one samsung J2 mobile phone were recovered at the instance of accused Shabbir, same was seized u/s 103 DP Act vide memo Ex. PW-3/L. He further deposed that one another pittu bag black color having logo of AD King was recovered at the instance of Shabir, same was kept in a pulanda and sealed with the seal of AS and seized vide seizure memo Ex. PW-3/L1 . He further deposed that one jio Sim no. 8766319836 was also recovered at the instance of accused Shabbir from C-76, Rajdhani Park, Nangloi, same was seized vide seizure memo Ex. PW-3/L2. He further deposed that the JIO SIM is Ex. PW-3/L3. He further deposed that IO prepared recovery site plan of C-76, Rajdhani Park, Nangloi, Second Floor, at the instance of accused Shabbir, Same is Ex. PW-3/L4. He further deposed that thereafter, they reached at plot no. 61-62, Maksoodabad Colony, Najafgarh, at the instance of accused Himanchal from where one medium trolly bag was recovered at his instance, same was kept in a pulanda and sealed with the seal of AS and seized vide seizure memo Ex. PW-3/M. He further deposed that thereafter, IO prepared recovery site plan of plot no. 61-62 Maksoodabad Colony, Najafgarh, same is PW-3/M1. He further deposed that thereafter, they reached at RZ-3 Ugresen Park, Exten, Rajain Villa, Najafgarh, i.e. Room of co-accused Ghanshyam. He further deposed that where they inquired from the owner Rajbir of the room who had stated that Ghanshyam used to come there and for last 6-7 days, he has not come at the said room. He further deposed that thereafter, at the instance of accused Shabbir Ahmed, one trolly bag, one music system and one mixture machine were recovered from the above said room, same were kept in a pulandas and pulandas were sealed with the seal of AS and seized vide seizure memo PW-3/N. SC no. 327/2023 State Vs. Himanchal & ANR Page 8 of 20 He further deposed that IO prepared recovery site plan at the instance of accused Shabbir, same is Ex. PW-3/N1. He further deposed that thereafter, they returned to the PS, case property deposited in the Malkhana and accused persons were sent to JC and IO recorded his statement. He also identified the case property as Ex. P1 (colly), Ex. P2 (colly), Ex. P3 (colly) , Ex. P4 (colly) and Ex. P5 (colly). This witness has also identified both accused before the court. This witness was cross examined by Ld. counsel for both accused persons at length.
11. PW-4 is HC Vijay Singh. As per prosecution, he has also joined the investigation with PW-3 HC Raju Ram Yadav, and deposed on the same lines of PW-3. This witness was also cross-examined by the Ld. defence counsels at length.
12. PW-5 is Rajbir. As per prosecution, he was the landlord of house bearing no. House no. 4, Ugarsen Park Colony, Nangloi Road, Najafgarh, ND, which was given to one Ghanshyam (Not arrested) and who has deposed that the second floor of the above said house was given on rent to Ghaynshyam @Laxman @ Bhura on 05.03.2018. He further deposed that he had only seen Ghanshyam only once or twice as he used to return late night. He further deposed that the tenant verification of Ghanshyam could not be done as he had not provided the ID proof within time. He further deposed that thereafter, police recovered one maroon coloured trolley bag, 4.1 multimedia speaker system, one ulka white colour mixture were recovered and seized vide memo Ex. PW-3/N. This witness was cross examined by Ld. counsel for both accused persons.
SC no. 327/2023 State Vs. Himanchal & ANR Page 9 of 2013. PW-6 is HC Manoj Kumar. As per prosecution, he joined the investigation with PW-3 HC Raju Ram Yadav, PW-4 HC Vijay Singh and deposed on the same lines of PW-3 and PW-4. This witness was also cross-examined by the Ld. defence counsels at length.
14. PW-7 is SI Akash. As per prosecution, he is the Investigating officer of the present case and who has deposed that on 21.03.2018, at about 2:30 p.m, complainant Mohan came to him at PS and informed him about the incident upon which he recorded his statement, same is Ex. PW-7/A, thereafter, he got conducted medical examination of the complainant at Safdarjung Hospital. He further deposed that thereafter, they returned to the PS and on the basis of statement, he prepared rukka as Ex. PW-7/B, and thereafter, he prepared the site plan at the instance of the complainant, same is Ex. PW-7/C. He further deposed that thereafter, he instructed the beat staff to apprehend the accused persons. He further deposed that on 23.03.2018, he was informed by HC Vijay, Ct. Raju & Ct. Manoj that two boys apprehended in suspicious condition near DC Office. He further deposed that thereafter, he reached at the spot where he found HC Vijay, Ct. Raju & Ct. Manoj with accused Shabbir Ahmed and Himanchal. He has further deposed that thereafter, he checked the one traveller bag having logo of tycoon which was containing three shirt, and a mobile phone of make samsung recovered from accused Shabir and 6 toffee and one strip of clonotril-2 Npx Clonazepam Dispercible Tablet which were recovered from accused Himanchal. He further deposed that thereafter, he inquired from both the accused persons and they disclosed their involvement with one Ghanshyam @ Bura and they further disclosed that they used to give stupefying tablets to the public persons and theft their articles. He further SC no. 327/2023 State Vs. Himanchal & ANR Page 10 of 20 deposed that on further interrogation, they disclosed about the recovered mobile phone was stolen on 20.03.2018 from one person after giving him stupefying toxic toffee. He further deposed that after checking IEMI number of recovered mobile phone make samsung, same was matched with the stolen mobile phone of the present case. He further deposed that thereafter, both the accused persons Shabir Ahmed and Himanchal were arrested vide memos already Ex. PW-3/A and Ex. PW-3/B. He further deposed that personal search of both accused persons were conducted vide memos already Ex. PW-3/C and Ex. PW-3/D. He further deposed that he recorded their disclosure statement already Ex. PW-3/E and Ex. PW-3/F. He further deposed that thereafter he seized one strip of tablet (containing 9 tablet and 6 were already used) clonotril-2 Npx Clonazepam Dispercible Tablet, in a pulanda and same was sealed with the seal of "AS" and seized vide memo already Ex. PW-3/G. He further deposed that 6 toffee which was recovered from accused Himanchal kept in a pulanda and same was sealed with the seal of AS and seized vide memo already Ex. PW-3/H. He further deposed that Mobile phone make Samsung kept in a pulanda and sealed with the seal of AS and seized vide memo already Ex. PW-3/I. He further deposed that traveler bag kept in a pulanda and sealed with the seal of AS and seized and seized vide memo already Ex. PW-3/J. He further deposed that thereafter, case property was deposited in the Malkhana, he recorded the statement of witnesses. He further deposed that on 24.03.2018, both accused persons were produced before the Court. He further deposed that he moved the application for conducting TIP proceedings and two days PC remand. He further deposed that TIP proceedings were fixed for 26.03.2018. He further deposed that thereafter, both accused persons were sent to JC for 02 days. He further deposed that on 26.03.2018, both accused persons SC no. 327/2023 State Vs. Himanchal & ANR Page 11 of 20 refused to join the TIP proceedings. He further deposed that thereafter, he obtained one day PC remand of both the accused persons. He further deposed that thereafter, he alongwith HC Vijay & Ct Raju took the both accused Shabir and Himanchal at the spot where he prepared pointing out memo at their instance and same are already Ex. PW-3/K and Ex. PW-3/K1. He further deposed that thereafter, they reached on the local address of accused Shabbir i.e. C-76, Rajdhani Park, Nangloi, where one trolly bag, one samsung J2 mobile phone were recovered at the instance of accused Shabbir, same was seized u/s 103 DP Act vide memo already Ex. PW-3/L. He further deposed that one another pittu bag black color having logo of AD King was recovered at the instance of Shabir, same was kept in a pulanda and sealed with the seal of AS and seized vide seizure memo already Ex. PW-3/L1. He further deposed that one jio Sim no. 8766319836 was also recovered at the instance of accused Shabbir from C-76, Rajdhani Park, Nangloi, same was seized vide seizure memo Ex. PW-3/L2 and JIO SIM is Ex. PW-3/L3. He further deposed that he prepared recovery site plan of C-76, Rajdhani Park, Nangloi, Second Floor, at the instance of accused Shabbir, Same is already Ex. PW-3/L4. He further deposed that thereafter, they reached at plot no. 61-62, Maksoodabad Colony, Najafgarh, at the instance of accused Himanchal from where one medium trolly bag was recovered at his instance, same was kept in a pulanda and sealed with the seal of AS and seized vide seizure memo Ex. PW-3/M and thereafter, he prepared recovery site plan of plot no. 61-62Maksoodabad Colony, Najafgarh. Same is already PW-3/M1 . He further deposed that thereafter, they reached at RZ-3, Ugresen Park, Extension, Rajan Villa, Najafgarh, i.e. Room of co- accused Ghanshyam, where they inquired from the owner Rajbir of the room, thereafter, at the instance of accused Shabbir Ahmed, one trolly SC no. 327/2023 State Vs. Himanchal & ANR Page 12 of 20 bag, one music system and one mixture machine were recovered from the above said room, same were kept in a pulandas and pulandas were sealed with the seal of AS and seized vide seizure memo already Ex.PW-3/N and thereafter, he prepared recovery site plan at the instance of accused Shabbir, same is already Ex. PW-3/N1, thereafter, they returned to the PS, case property deposited in the Malkhana and accused persons were sent to JC. He further deposed that he recorded the statement of witnesses. He further deposed that on 17.09.2018, exhibits were sent to FSL through Ct. Rakesh vide RC no. 106/21/18 and after depositing the same, Ct. Rakesh handed over the acknowledgment of case acceptance and he recorded his statement. He further deposed that thereafter on receiving of FSL result, same was filed before the Court, FSL result dated 31.12.2018 is already Ex. A-11. He further deposed that thereafter, he was transferred from the police station and he handed over the file to MHC(R). This witness was cross examined by Ld. counsel for accused persons at length.
15. PW-8 is SI Vivek Singh. As per prosecution, he was assigned further investigation of the case on 01.11.2020 and he tried to trace out co-accused Ghanshyam, who was not traceable and filed the charge sheet in the court. He further deposed that he recorded the statement of witnesses and thereafter, he prepared charge sheet and filed the same in the Court. This witness was not cross examined by Ld. counsel for accused persons.
16. It is a matter of record that a statement of both accused u/s 294 Cr. PC was recorded on 23.02.2024, wherein both accused have admitted the documents as FIR no. 131/18 , Certificate u/s 65 B of IE SC no. 327/2023 State Vs. Himanchal & ANR Page 13 of 20 Act, DD no. 52 A dated 28.06.2021, DD no. 3 A dated 24.03.2018, DD no. 33 A dated 04.07.2021, GD no. 27 dated 30.06.2021, MLC no. 51169/18, CAF of mobile no. 8103033274 in the name of Manoj Kumar Saket, Death certificate of Mohan lal saket , Medical document of Mohan lal saket , FSL result dated 31.12.2018 , TIP proceedings 26.03.2018, TIP proceeding of Shabir Ahmed as Ex. A-1 to Ex. A-13, and accordingly, 5 witnesses were dropped from the list of witnesses. It is a matter of record that on 07.04.2025, PE was closed and matter adjourned for recording statement of both accused.
17. The statement of both accused under Section 313 Cr.P.C. were recorded on 27.05.2025, wherein both accused submits that they have been falsely implicated in the present case and do not want to lead defence evidence.
18. I have heard the arguments advanced by the Ld. Addl. Sub PP for the State and Ld. Counsel for the accused and have perused the record.
19. Ld. Adll PP for State has submitted that prosecution has successfully proved its case against the both accused.
20. Ld counsel on behalf of the both accused have submitted that both accused have been falsely implicated in the present case and both accused are entitled to be acquitted.
21. Both accused are facing trial on the allegations that both accused in furtherance of their common intention, had mixed stupefying SC no. 327/2023 State Vs. Himanchal & ANR Page 14 of 20 substance i.e. Clonotril-2 NP x Clonazepam Dispersible tablets in the Candyman Choco Double Eclairs toffee and also mixed some unknown substance in the water and gave it to the complainant Mohan Lal Saket (since expired) to eat the said toffee and drink water, while traveling in a bus from Kapashera to Anand Vihar ISBT.
22. Both accused are also facing trial on the allegations that both accused in furtherance of their common intention, also committed theft of Driving Licence (DL), Aadhar Card, purse containing Rs. 7500/-, one black colour pithu bag having logo of 'AD King' containing one yellow and black colour chargeable emergency light, blue colour jeans of Diesel Company, cream colour towel and some other clothes and black colour Android Samsung J-210 F Mobile phone containing two Sim cards i.e. one of Jio and another of Airtel, belonging to complainant Mohan Kumar Saket .
23. Accused Sabir Ahmed is also facing trial that on 26.03.2018, at C-76, Second floor, Rajdhani Park, Nangloi, Delhi, he got recovered one violet colour trolly bag filled with clothes, Samsung J-2 Mobile phone, one black colour pithu bag with AD King Logo and one Jio Sim which belonged to complainant Mohan Lal Saket.
24. In these circumstances, testimony of complainant Mohan Lal Saket was relevant. However, it is unfortunate that he expired and he could not be examined during the trial. He was the only material witness who could have deposed about the incident occurred with him and the persons who committed offence with him. In the absence of his examination, it is very difficult to say that the accused persons were the SC no. 327/2023 State Vs. Himanchal & ANR Page 15 of 20 persons who had mixed some stupefying substance in the toffees and also mixed some unknown substance in the water and gave it to the complainant or both accused persons have committed theft as alleged against them. Non examination of complainant (since expired), is fatal to the case of prosecution. However, the wife of complainant Smt. Saroj was examined as PW-2. Admittedly, she is not the eye witness and she has deposed that on the basis of things told to her. Hence, she is a hearsay witness which is a very weak type of evidence. She has admitted as correct in her cross examination that she does not know that who had offered tea and water to her husband. She has further admitted that she does not know from whom belongings were recovered. Hence, in these circumstances, it creates doubts in the story of the prosecution qua the charges levelled against the accused persons.
25. Even otherwise, in the present case, there is no medical evidence that complainant was given any stupefying substance and in the absence of the same, it is difficult to prove charge u/s 328 IPC against accused persons.
26. Similar view was adopted earlier by Hon'ble High Court in Mukesh Chand Vs. State (Govt. of NCT of Delhi) 2010 SCC OnLine Del 379, whereby it was held that:
27. Surprisingly, no chemical report about the "stomach wash"
has been proved on record. It is well settled that in order to prove Section 328 IPC, the prosecution is required to prove that the substance in question was a poison."SC no. 327/2023 State Vs. Himanchal & ANR Page 16 of 20
28. In summary, the evidential foundation supporting the charge lacks credibility based on the testimony provided by the prosecution witnesses. In sum, the ocular basis for the charge for the offences 328/379/34 IPC has not been sustained by the evidence led by the prosecution witnesses.
29. The records of the present case reveals that accused Sabir Ahmed is also charged with the offence under Section 411 IPC. It is the case of prosecution that on 23.03.2018, i.e. three days after the incident, both accused were apprehended as they were found in suspicious condition and one traveler bag having logo of tycoon which was containing three shirt, a mobile phone make samsung was recovered from accused Sabir Ahmed and 6 toffees and one strip of Clonotril-2 NP x Clonazepam Dispersible tablets were recovered from accused Himanchal. It was trite by the prosecution that soon after the incident, some recovery was effected from accused persons to connect them with the present case. It is also clear from the record that after taking police custody from both accused, one pittu bag black color having logo of AD king was recovered at the instance of accused Sabir alongwith one SIM at the instance of accused Sabir at the address of accused Sabir. It is evident from the record that no independent public person was joined in the proceedings in recovery of articles at any point of time.
30. It is to be kept in mind that the non-joining of public witnesses itself cannot become a ground for acquittal if the case of the prosecution is otherwise reliable. In State of Haryana Vs. Mai Ram, (2008) 8 SCC 292, it was observed that the ultimate question to be asked is, whether the evidence of the official witnesses suffers from any infirmity. The case of SC no. 327/2023 State Vs. Himanchal & ANR Page 17 of 20 the prosecution cannot be held to be vulnerable to non-examination of persons who were not official witnesses. In such cases, if the statements of official witnesses corroborate the proceedings conducted, the case of the prosecution cannot be disbelieved. The proposition is not disputed but the balance has to be maintained if some doubt is created regarding the involvement of the accused. Each case has its own facts and circumstances.
31. Accordingly, it is trite that mere failure to associate public witnesses in search and seizure proceedings is not fatal to the case of the prosecution. However, in such a case, the burden lies heavily on the prosecution to prove two things. Firstly, a genuine and sincere effort was made by the investigating officer to join independent persons in the proceedings and secondly, the evidence of the official witnesses does not suffer from any infirmity.
32. As per prosecution story, both the accused were apprehended on 23.03.2018 and some articles were recovered from them near DC Office. However, no public person was joined at that time despite the fact that it was a busy area. Even no efforts were made to join the public persons. There is also another serious contraction in the story of prosecution. As per statement of HC Vijay Pal, Ct. Raju and Ct. Rohit recorded u/s 161 Cr. PC, it is mentioned in the statement of HC Vijay i.e. PW-4, Ct. Raju i.e. PW-3, Ct. Manoj i.e. PW-6 that all the proceedings were conducted on 21.03.2018 and both accused were apprehended on 21.03.2018 and some recovery was also affected from them and the said statements are typed statements and the witnesses have also confirmed the same in their cross examination. It is a very surprising SC no. 327/2023 State Vs. Himanchal & ANR Page 18 of 20 fact that when the accused persons were apprehended first time on 23.03.2018, then, how the date 21.03.2018 was mentioned in the statement recorded u/s 161 Cr. PC. It is a serious dent in the story of the prosecution coupled with the fact that in the entire investigation, no public person was joined during the recovery at any point of time.
33. Even during the recovery, from the house of accused persons, no public person was joined in the investigation despite the fact that there were some public persons. Even, no notice was served by the IO to the owner of house no. C-76, ie address of accused Sabir to join the investigation, where some recovery was affected alongwith one pittu Bag color having logo of AD King, alongwith one SIM no. 8766319836. It also creates some doubt in the story of the prosecution. It is also surprising fact that after the three days of incident, accused persons were roaming there near DC Office, alongwith the stolen articles. Hence, there are various contradictions in the story of prosecution and it creates serious doubt.
34. At this stage, it would be relevant to go through the judgment, titled as 'Allrakha K. Mansuri Vs. State of Gujrat' 2002 (1) CR (Cr.P.C) 748 (c), wherein it is held that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to innocence, the view favorable to accused should be adopted. The paramount consideration of the Court should be to avoid miscarriage of justice.
SC no. 327/2023 State Vs. Himanchal & ANR Page 19 of 2035. It is a settled principle of criminal law that the prosecution must prove its case beyond reasonable doubt, and if two views are possible, the one favourable to the accused must be adopted.
36. In the light of the above said discussion and appreciation of evidence, the Court is of the view that the prosecution has not been able to prove its case against the both accused beyond reasonable doubts, hence, benefit of doubt is given to both accused and accordingly, both accused are acquitted for the offences under Section 328/379/34 IPC and accused Sabir Ahmed is also acquitted for the offence u/s 411 IPC.
37. Both accused are directed to furnish bail bonds under Section 437A Cr.P.C in the sum of Rs.15,000/- each. At the request of both accused , their previous bail bonds are extended in terms of Section 437A Cr.P.C and shall remain in force for six months from today.
38. File be consigned to Record room, after due compliance.
Digitally signed DEEPAK by DEEPAK WASON WASON Date: 2026.04.02 14:02:36 +0530 Announced in the Open Court (Deepak Wason) today i.e on 02.04.2026 ASJ-04: South-west District: Dwarka Courts: New Delhi SC no. 327/2023 State Vs. Himanchal & ANR Page 20 of 20