Delhi District Court
State vs Dharam Pal on 15 January, 2013
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
SC No.10/11
FIR No.86/10
PS ODRS
U/s 328, 379, 411 read with Sec.34 IPC
In the matter of:
State
Versus
1. Dharam Pal
S/o Kalyan
R/o Vill. Dhehar Pur,
PS Data Ganj, Distt. Badaun (U.P.).
2. Kuldeep Sharma
S/o Sewa Ram Sharma,
R/o Vill. Bihari Pur,
PS Data Ganj, Distt. Badaun (U.P.). .......Accused Persons
Date of institution : 20.01.2011
Date of Judgment : 15.01.2013
J U D G M E N T
Dharam Pal and Kuldeep Sharma, accused persons have been facing trial for offences U/s 328 read with Sec.34 IPC and Sec.379 read with Sec.34 IPC. Accusation levelled against them is that on 29.06.2010, at about 2.00 FIR No.86/10 1 p.m., at platform no.7, Old Delhi Railway Station, both of them, in furtherance of their common intention administered some substance to Jitender Kumar Sahni S/o Bipath Sahni, who was to board train Purva Express Train expected to depart at 6.00 p.m and removed his belongings. In this way, both of them committed theft of belongings of Jitender Kumar Sahni.
2. Accused Dharam Pal was apprehended by HC Shri Krishan and Ct. Manoj Tiwari when, on seeing them he and his companion Kuldeep became apprehensive, and started running from near DFMD, Eastern Side Passenger hall of Old Delhi Railway Station. Kuldeep accused was apprehended by RPF Staff with a bag. The bag led to search of clothes, one purse containing diary, currency notes and visiting cards. The diary was bearing name of Jitender Kumar with the name of his village and PO, North Thamol, PS Parohi, District Samasthi Pur, Bihar.
Present case came to be registered on the basis of rukka sent by HC Shri Krishan of ODRS. Vide rukka, Head Constable informed the manner in which both the accused persons were apprehended and belongings of Jitender Kumar Sahni were recovered and the same were seized by the police. Both the accused persons were arrested. During investigation, Jitender Kumar Sahni narrated the manner in which his belongings were stolen. Jitender Kumar Sahni was got medically examined at Aruna Asaf Ali Hospital.
3. On completion of investigation, challan was put in court. FIR No.86/10 2
Charge
4. Prima facie case having been made out, charge for offences U/s 328 read with Sec.34 IPC and Sec.379 read with Sec.34 IPC were framed against the accused persons on 05.03.2012, to which they pleaded not guilty and claimed trial. Thereupon, prosecution was called upon to lead evidence.
Prosecution Evidence
5. In order to prove its case prosecution examined, following 13 witnesses: PW1 HC Vikram Singh, concerned Who dealt with case property of this case. MHC(M) PW2 ASI Ved Parkash, Duty Officer To prove recording of FIR Ex.PW2/A and DD no.16A Ex.P)W2/B. PW3 Sh. Jitender Kumar Sahni The Victim.
PW4 Ct. Sunil Kumar To prove communication of information, regarding arrival of Jitender Sahni at Aruna Asaf Ali Hospital, by PCR and communication of this information to the SHO PS ODRS; and also seizure of exhibits handed over by the doctor.
PW5 Dr. Ruby Kumari To prove MLC Ex.PW5/A of Jitender Sahni.
PW6 Ct. Manoj Tiwari To prove factum of arrest of the accused persons.
PW7 SI Pradeep Sharma To prove factum of arrest of the accused persons.
PW8 Inspector Gulshan Satija To prove entry Ex.PW8/A regarding departure of SI Pradeep Sharma and HC Kuldeep Kumar Anti Drugging Section, Northern Railways, ASC Office, New Delhi. On 29.06.2010 at 10.00 a.m. FIR No.86/10 3 PW9 SI Prem Chan Who took over investigation on receipt of information about admission of Jitender at hospital in unconscious condition, by the PCR staff.
PW10 Ct. Ashok Kumar To prove deposit of parcels at FSL for analysis.
PW11 Sh. Deepak Dabas, To prove refusal of both the accused Metropolitan Magistrate persons to participate in TIP. PW12 HC Kuldeep Singh Another witness to arrest of the accused persons.
PW13 HC Shri Krishan Another witness to arrest of the accused persons.
Statement of Accused
6. When examined U/s 313 Cr.P.C. the accused persons denied all the incriminating circumstances regarding recovery, appearing in evidence against them and claimed false implication.
They have led no evidence in defence.
7. Arguments heard. File perused.
Offence under Section 328 IPC
8. As per case of the prosecution, occurrence took place on 31.06.2010 at 4.45 pm. Jitender Kumar Sahni, complainant victim r/o Village North Dhoan, PS Patori, Distt. Samastipur (Bihar) was present at platform no. 7, Old Delhi Railway Station as he was to board Poorva Express, on account of sudden demise of his brother. He reached the Old Delhi Railway Station at about 11.00am and got ticket to travel Poorva Express. According to the victim, the train was expected to depart at 6.00 pm. While he was waiting on platform no. 7, both the accused persons FIR No.86/10 4 came to him 12 hours after his arrival at the platform. They enquired from him as to where he was to go. He replied them that he was going to Patna. Both the accused told him that they too were leaving for Patna. Both of them offered to travel with him. Thereafter, they asked him to have tea with them.
Further according to PW3Jitender Kumar Sahni, he went to take water and when he returned, he found that Dharampal, accused was adding something to the glass of Tea. He asked as to what Dharmpal was adding and he replied that he was adding sugar to the tea. Then the glass was offered to him. He took tea and become unconscious. When he regained conscious, he found that he was lying admitted in the hospital.
It is also in the statement of the complainant that, on that day when he reached the platform, he was having a bag containing clothes. He was also carrying a purse containing Rs. 750/ and a traveling ticket in the pocket of his pant. On having regained consciousness, he found that his bag and cash to the tune of Rs. 750/ were missing.
It is not the statement of PW3 as to who got him admitted to the hospital and from which place. The case of the prosecution is that the injured was brought to Aruna Asif Ali Road on 29.06.2010 at 5.45 pm by PCR staff, with history of having been found unconscious in front of Old Delhi Railway Station, one hour prior to. It was for the prosecution to examine the PCR staff, but none of them has been examined.
However, PW4 Const. Sunil Kumar who was on duty at the aforesaid hospital has deposed that on 29.06.2010 at 5.35 pm, Jitender Sharma, was FIR No.86/10 5 brought to the hospital by the PCR staff from Old Delhi Railway Station. Statement of PW4 Sunil Kumar has gone unchallenged. Therefore, it stands proved that Jitender Kumar Sahni was brought to the hospital by PCR staff. But it remains unexplained as to whether Jitender Sahni was brought by the PCR staff from inside the railway station or from outside the Railway Station.
Medical Examination
9. Medical evidence is available in the statement of PW5 Dr. Ruby Kumari who medically examined the accused/victim on 29.06.2010, at 5.45 p.m, vide MLC PW5/A. At the time of medical examination, doctor found that the victim was semi conscious and disoriented: On CNS examination bilateral Pupils were found to be of normal size and sluggish, reacting to Light . Bilateral planters were normal. No external injury was observed.
As further stated by the doctor, after doing G/L and taking blood samples, the patient was referred to SR ( Medicines) for further examination and management. The patient was declared unfit to make statement at that time. Opinion regarding status of the patient at that time was reserved.
As per medical evidence available in the statement of PW5 Dr. Ruby Kumari, at the time of the patient was medically examined, it could not be known as to what substance had been administered to the patient or as to what was the reason regarding the condition of the patient, as finds mention in the MLC Ex.PW5/A. FIR No.86/10 6 According to the doctor, two parcels were handed over to her by IO SI Prem Chand, the I.O. has deposed to have collected two parcels from the hospital and seized the same vide memo Ex.PW4/A. These parcels were deposited by him with the MHCM. Ultimately, the same were sent to FSL. On analysis of the contents of parcel Ex.1, the expert could not find ethyl and methyl alcohol, alkaloids, barbiturates and tranquilizers.
However, on analysis of contents of the other parcel Ex.2, ethyl Alcohol was found in blood. While referring to this report and statement of PW5 Dr. Ruby Kumari, ld. defence counsel has contended that the victim was drunk and it cannot be said that he was administered any stupefying substance by any of the two accused.
As per the statement of PW5 Dr. Ruby Kumari and MLC Ex.PW5/A prepared by her, there is nothing to suggest that at the time of victim was got admitted at the hospital, he was smelling of alcohol. There is also no evidence on record to suggest as to at what point of time, the victim had consumed alcohol which was found in the sample of his blood. But fact remains that FSL report does not reveal detection of any content other than alcohol. It is not believable that the victim was administered alcohol in tea. Therefore, this court finds that prosecution has failed to establish that any stupefying substance was administered to the victim on the aforesaid date and time.
As a result of the discussion above, this court finds merit in the contention of ld. defence counsel that prosecution has failed to substantiate FIR No.86/10 7 charge for an offence under Section 328 IPC.
Offence under Section 379 IPC
10. It has been contended by Learned defence counsel that both the accused persons are alleged to have been apprehended near DFMD at Old Delhi Railway Station but it remains unexplained as to how these accused persons were so apprehended, when victim was not there at the railway station and was lying admitted at hospital, and prosecution version in this regard without independent corroboration deserves to be discarded.
Arrest of accused persons.
11. It is the case of the prosecution that both the accused persons were apprehended on 29.06.2010, from Old Delhi Railway Station. According to PW6 Const. Manoj Tiwari and PW13 HC Shri Kishan, they were present in East Passenger Hall, where two persons came from inner side of the Railway Station. One of them was Dharm Pal, accused. On seeing them, Dharam Pal and his companion returned backward. HC Shri Kishan asked them to stop, but they did not stop. Ultimately, they chased and apprehended Dharam Pal. Dharam Pal was carrying a bag, which he handed over to his companion Kuldeep. Further, it is in the statement of PW6 that SI Pradeep Sharma and HC Kuldeep Singh apprehended Kuldeep, accused and he was brought to the place where Dharam Pal had been apprehended. Kuldeep was carrying the above referred to bag which led to recovery of 4 shirts, 2 pants, one towel, one purse containing Rs. 700/, one diary bearing name. The witness was FIR No.86/10 8 not sure about the name written on the diary as explained by him. The bag and the articles were seized by memo Ex. PW6/A. According to PW7 SI Pradeep Sharma, he and HC Kuldeep, while patrolling at Old Delhi Railway Station at about 4.45 PM, saw two persons coming towards them while running and that one of them was having a bag. Further, according to him, few persons from the public were chasing them by saying chor chor.
HC Kuldeep Singh has been examined as PW12. According to him, at about 4.45PM, when he and SI Pradeep Sharma of RPF were going from the side of Platform No. 8 & 10 towards each side of passenger hall, they heard alarm of thief thief and saw "a person" coming towards them while running. They caught hold of him.
It remains unexplained as to who were those persons from the public who raised alarm "thief thief". It is not case of prosecution that Jitender Kumar Sahni had raised alarm while present at Platform No. 7 or that he had pointed out towards any of the two accused. Rather, case of prosecution is that Jitender Sahni victim was brought to the hospital by PCR staff from in front of Old Delhi Railway Station that Jitender Sahni was not removed by PCR staff from inside the railway station. As to how, he reached in front of railway station also remains unexplained.
Regarding arrest of Dharampal accused, prosecution case is based on the statement of PW6 Constable Manoj Tiwari and PW13 HC Shri Kishan. FIR No.86/10 9
According to this witness, at about 4.45PM, when they were present near DFMC near passenger hall and checking passengers two persons came from inside the railway station and one of them, namely, Dharam Pal was apprehended after being chased as he and his companion Kuldeep returned backward on seeing them. Neither PW6 Ct. Manoj Tiwari nor PW13 HC Shri Kishan stated anywhere having heard any alarm being raised by any public. So, they have not supported the version narrated by PW7 SI Pradeep Sharma and PW12 HC Kuldep Singh about raising of alarm by any person of the public. Although according to PW6 Constable Manoj Tiwari and PW13 Head Constable Shri Kishan, they had apprehended Dharam Pal whereas Kuldeep was apprehended by RPF staff. PW7 SI Pradeep Sharma, while making statement in court, deposed about the arrest of "both the accused". He did not state that only Kuldeep was apprehended by them and that Dharam Pal was apprehended by constable Manoj Tiwari and HC Kuldeep.
It may be mentioned here that PW7 refreshed his memory in his cross examination when he could not tell as to at which place accused persons were seen by him and apprehended. According to the witness, Kuldeep was holding the bag, but he could not tell if Dharampal was carrying anything or not. In case any person raised alarm, he should have been joined in the investigation. But no such person or any other passenger was associated in the investigation for the purpose of authenticity and transparency in process of investigation.
PW9 SI Prem Chand took over investigation on receipt of DD no.15A FIR No.86/10 10 which was to the effect that Jitender Kumar Sahni had been got admitted in the hospital in unconscious condition. DD no.15A was recorded at about 5.50PM, at PS Old Delhi Railway Station.
After arrest, the accused persons were brought to the Police Station and lodged there but there is no cogent and convincing evidence to suggest that any effort was made by PW6 Manoj Tiwari and PW7 Pradeep Sharma, PW12 HC Kuldeep and PW13 Shri Kishan to go to Platform No.7 and find if any person had been removed from there in unconscious condition or if any one had witnessed the occurrence or saw anyone raising alarm.
It is case of prosecution that bag belonging to Jitender Sahni was recovered from Kuldeep after the same was handed over to him by Dharam Pal. However, no person from the public was associated at the time of seizure of the bag. No person was associated even at the time contents of the bag were checked. As noticed above, it is difficult to believe the story of prosecution that any person from the public had raised alarm of thief thief. In absence of any corroboration of independent source, it is also very difficult to believe the version of prosecution regarding recovery of bag from the accused at the time they were apprehended on the given date.
Further, it is case of prosecution that the case property was shown to Jitender Sahni by SI Prem Chand and he identified the same. However, while appearing in court as PW3 Jitender Kumar, nowhere deposed to have been shown the bag and other clothes belonging to him in the Malkhana. Had he identified any of his items in the Malkhana, he would not have been omitted FIR No.86/10 11 to do so. It is not case of the prosecution that the items recovered from the accused on 29.06.2010 were sealed into any parcel. The Investigating Officer should have sealed those articles into parcels.
Furthermore, the procedure adopted by SI Prem Chand for identification of the article of Jitender Sahni is not in accordance with law. He should have filed appropriate application before the concerned Magistrate and applied for holding the Test Identification Parade and got the property mixed with other items for identification thereof.
Therefore, no reliance can be placed on the prosecution version regarding seizure of articles and their identification by the victim.
Conclusion
12. In view of the discussion above, this court finds that prosecution has not been able to substantiate accusation levelled against any of the accused persons either for the offence under Section 328 or 379 IPC. Consequently, this court hereby orders for acquittal of both the accused persons.
Case property i.e., articles belonging to Jitender Sahni be returned to him on expiry of time for appeal/revision if none is preferred or subject to decision.
Announced in Open Court
on 15.01.2013 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
FIR No.86/10 12