Delhi District Court
State vs Chandeshwar @ Sunil on 28 September, 2024
IN THE COURT OF DR. RAKESH KUMAR
ADDITIONAL SESSIONS JUDGE (FTC-02) SOUTH EAST,
SAKET COURT COMPLEX: NEW DELHI
CNR No: DLSE010011322014
Session Case No.1846/2016
FIR No.42/2014
Police Station: Chitranjan Park.
State
Versus
1. Arjun Singh @ Parth Dev Nath
Son of Anil Dev Nath
Resident of Village-East+Chandmari,
PO Ban Kumari, East+Agartala,
Agartala Urban,
West Tripura, TR-799006.
2. Chandeshwar @ Sunil
Son of Kamal Ram
Resident of Village Sakra, PS Dholi,
District Muzzafarpur,
Bihar.
(Presently lodged at Tihar Jail)
Date of Institution : 13.05.2014
Judgment reserved on : 25.09.2024
Date of Decision : 28.09.2024
SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 1 of 52
JUDGMENT
1. A police report was put up by the State through officer-in-charge of the police station Chitranjan Park before the concerned Metropolitan Magistrate with the view to take cognizance of offences under Sections 328/379/411/34 of the Indian Penal Code, 1860 (in short 'IPC') against the accused persons, namely, Arjun Singh @ Parth Dev Nath and Chandeshwar @ Sunil for having committed the said offences and to proceed with committal of the case.
2. As per the police report on 08.04.2014, this case FIR was registered in police station Chitranjan Park for the offences punishable under Sections 328/379/411/34 IPC.
3. As per the police report on 14.02.2014, complainant Manmohan Sharma had come to police station Chitranjan Park and had got recorded his statement.
4. As per the police report, it is, inter alia, stated by Manmohan Sharma that he lives with his family on rent at House No.D-35, West Jyoti Nagar Shahdara Delhi-94 and he drives Radio Taxi. On 13.02.2014 he was coming to Delhi after dropping a passenger in Noida, then at around 10.00 a.m. he got a duty via telephone to drop a passenger from you-cab from Kalkaji to Gurgaon. He met with the passenger near Hanuman temple Govind Puri at around 02.00 p.m. and the passenger told SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 2 of 52 his name as Rajesh and told that they have leather business, they had to collect some money from Chitranjan Park and some money (payment) from Gurgaon. The passenger told the complainant that he had to take the payment for which, he first had taken the complainant to Chitranjan Park, E Block Park and said that wait here and asked the complainant that after taking payment, they will go to Gurgaon and after a while he brought tea and another person had come with him and made him drink the tea, after drinking the tea, the complainant started feeling intoxicated and both of them had stolen about Rs.4,500/- and his mobile phone. The complainant told that one person's height was about 5'6 and he was wearing blue jeans and black leather jacket, the other person's height was about 5'7 and he was wearing sky blue jeans and black jacket, whom he can identify, therefore, action as per law be taken against the accused persons."
5. It is further reported in the charge-sheet that from the statement of the complainant and the circumstances, offences under sections 328/379/34 of Indian Penal code, 1860 was made out and Head Constable Mohd. Naseem Khan got the FIR registered and started investigation.
6. It is further reported in the police report that during investigation, Head Constable Mohd. Naseem Khan prepared site-plan of the spot of incident and recorded the statements of SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 3 of 52 the witnesses. It is further reported in the police report that on 23.02.2014 vide DD No.7A, Sub-Inspector Pappu Lal Katewa AATS/South East District had informed through telephone that the accused Chandeshwer @ Sunil son of Kamal Ram R/O House No. 3118/5 T.A Govind Puri and the accused Arjun Singh @ Parth Dev Nath son of Anil Dev Nath @ Ram Singh R/o Village. Teela 79 near Govind Ballabh Panth Hospital Agartala West Tripura had been arrested in case FIR No.156/14 under sections 328/379/411/34 IPC police station Govind Puri wherein both the accused persons had disclosed about the offence committed by them in the present case and mobile phone stolen in the present case was also recovered.
7. It is further reported in the police report that on 07.03.2014, Head Constable Pooran Chand Sharma had obtained the production warrant of both the accused persons from the Court. It is further reported in the police report that Head Constable Mohd. Naseem Khan had obtained all the documents related to the case pertaining to both the accused persons from Sub-Inspector Pappu Lal Katewa and had recorded the statement under section 161 Cr.P.C. It is further reported in the police report that on 10.03.2014, both the above mentioned accused persons were produced in the Court and Head Constable Pooran Chand Sharma had obtained permission to interrogate both the accused persons and to arrest them in the case. It is further reported in the police report that during the interrogation, Head Constable SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 4 of 52 Pooran Chand Sharma wrote the FIR of the both the accused persons and arrested them in the present case for the offence punishable under sections 328/379/411/34 IPC and had prepared all the documents related to their arrest. It is further reported in the police report that during the arrest, the directions of the Hon'ble Supreme Court were followed and request for TIP of the accused persons was obtained from the court of Ld. MM thereafter, both the accused persons were sent to judicial custody till 14.03.2014.
8. It is further reported in the police report that on 13.03.2014, the case file of the case was handed over to Head Constable Mohd. Naseem Khan for further investigation and on 13.03.2014, both the accused persons were identified by the complainant Man Mohan Sharma and the copy of TIP was obtained. It is further reported in the police report that on 14.03.2014, one day police custody remand of both the accused persons was obtained from the court of Ld. MM. It is further reported in the police report that on 15.03.2014, both the accused persons were sent to judicial custody for 14 days. It is further reported in the police report that on 22.03.2014, the case property Mobile Phone Nokia Black colour without sim card, deposited in police station Govind Puri in case FIR No.156/14, was taken into possession and got deposited in the Malkhana vide R/C No.53/21/14, statements of all witnesses were recorded.
SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 5 of 529. It is further reported in the charge-sheet that sufficient evidence has been collected against the accused persons and the afore-said acts on the part of offenders revealed commission of offences punishable under section 328/379/411/34 of Indian Penal Code, 1860.
10. It is, therefore, prayed that cognizance of the offences committed by offenders may be taken and they should be tried as per the provisions of law.
11. After completion of the investigation, the investigating officer had filed the charge sheet before the concerned Metropolitan Magistrate.
12. On the police report, on 13.05.2014, the Learned Metropolitan Magistrate had taken the cognizance of the offences.
13. On the date of taking cognizance, the both the accused persons were also produced from the Judicial Custody before the Metropolitan Magistrate. Copies of police report and other documents in compliance of section 207 Cr.P.C. were supplied to the accused persons on 20.05.2014.
14. On 20.05.2014, the Learned Metropolitan Magistrate found the sections/offences to be exclusively triable by the court SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 6 of 52 of Sessions and therefore, committed the case to the Learned Sessions Judge and thereafter, the present case was assigned to this court.
15. On 28.08.2014, upon considering the police report and the documents sent with it under Section 173 Cr. P.C. and after hearing the Additional Public Prosecutor and counsel for the accused persons, the charges were framed against the accused persons for their having committed offences punishable under Sections 328/379/34 of Indian Penal Code. Further, the charge was framed against the accused Arjun Singh @ Parth Dev Nath for him having committed offences punishable under section 411 of Indian Penal Code.
16. The charge was read over and explained to the accused persons and they were asked if they pleaded guilty of the offences charged or claimed to be tried. The accused persons did not plead guilty and claimed trial.
17. In support of its Case, the prosecution got examined PW1 Man Mohan Sharma, PW2 Sub-Inspector Bhool Singh, PW3 Constable Sandeep Kumar, PW4 Head Constable Ram Raj, PW5 Constable Sarnam Singh, PW6 Assistant Sub-Inspector Pooran Chand Sharma, PW7 Head Constable Neeraj Kumar, PW8 Sub-Inspector P.L. Katewa, PW9 Assistant Sub-Inspector Banwari Lal, PW10 Assistant Sub-Inspector Mohd. Naseem SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 7 of 52 Khan, PW11 Sub-Inspector Parvir Singh. During the examination of the prosecution witnesses, the documents Ex.PW1/A, Ex.PW1/B, Ex.PW1/C, Ex.PW4/A, Ex.PW4/B, Ex.C1, Ex.C2, Ex.C4, Ex.PW5/A, Ex.PW5/B, Ex.PW5/C, Ex.PW7/A, Ex.PW7/B, Ex.PW7/C Ex.PW9/A, Ex.PW9/B and pullandas Ex.PA, Ex.MO-1 were also tendered in evidence.
18. On 30.05.2024, prosecution evidence was closed and matter was posted for examination of the accused persons under section 313 Cr.P.C and for their statements.
19. On 19.07.2024, this court examined the accused persons under Section 313 Cr.P.C. and their separate statement were recorded. During their examination under section 313 of Cr.P.C., the accused persons, Arjun Singh @ Parth Dev Nath and Chandeshwar @ Sunil denied the correctness of incriminating circumstances appearing in the evidence against them. During their examination under section 313 of Cr.P.C., the accused persons, Arjun Singh @ Parth Dev Nath and Chandeshwar @ Sunil took the defence that they have been falsely implicated in this case at the instance of police officials. The accused persons do not wish to lead evidence in their defence.
20. I have heard Mr. Narender Yadav, Additional Public Prosecutor for the State and Ms. Naina Bajaj, Amicus Curiae for the accused Arjun Singh and Sh. Sintu Kumar, Advocate for SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 8 of 52 accused Chandeshwar @ Sunil and have gone through the record of the case carefully.
21. Having drawn my attention on the testimonies of PW1 Man Mohan Sharma, PW2 Sub-Inspector Bhool Singh, PW3 Constable Sandeep Kumar, PW4 Head Constable Ram Raj, PW5 Constable Sarnam Singh, PW6 Assistant Sub-Inspector Pooran Chand Sharma, PW6 Assistant Sub-Inspector Pooran Chand Sharma, PW7 Head Constable Neeraj Kumar, PW8 Sub- Inspector P.L. Katewa, PW9 Assistant Sub-Inspector Banwari Lal, PW10 Assistant Sub-Inspector Mohd. Naseem Khan, PW11 Sub-Inspector Parvir Singh; and the documents Ex.PW1/A, Ex.PW1/B, Ex.PW1/C, Ex.PW4/A, Ex.PW4/B, Ex.C1, Ex.C2, Ex.C4, Ex.PW5/A, Ex.PW5/B, Ex.PW5/C, Ex.PW7/A, Ex.PW7/B, Ex.PW7/C Ex.PW9/A, Ex.PW9/B and pullandas Ex.PA, (Ex.MO-1), learned Additional Public Prosecutor for the State has submitted that the complainant had made complaint on 14.02.2014 and on 23.02.2014, the investigating officer had received information that AATS had apprehended the accused persons. It is further submitted that in TIP, the complainant had failed to identify the accused persons with certainty. It is further submitted that the recovery of mobile phone from the accused Arjun has been proved and the mobile phone has been identified by the complainant and also by the PW7 Head Constable Neeraj Kumar. from the evidence led by the prosecution, it has been proved that the accused persons in furtherance of their common SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 9 of 52 intention served tea containing stupefying substance to the complainant due to which he became unconscious and they had committed theft of one mobile phone and Rs.4,500/- and they also found in possession of stolen articles.
22. Per contra, counsel for the accused Arjun has drawn my attention on the testimonies of PW1 Man Mohan Sharma, PW2 Sub-Inspector Bhool Singh, PW3 Constable Sandeep Kumar, PW4 Head Constable Ram Raj, PW5 Constable Sarnam Singh, PW6 Assistant Sub-Inspector Pooran Chand Sharma, PW6 Assistant Sub-Inspector Pooran Chand Sharma, PW7 Head Constable Neeraj Kumar, PW8 Sub-Inspector P.L. Katewa, PW9 Assistant Sub-Inspector Banwari Lal, PW10 Assistant Sub- Inspector Mohd. Naseem Khan, PW11 Sub-Inspector Parvir Singh; and the documents Ex.PW1/A, Ex.PW1/B, Ex.PW1/C, Ex.PW4/A, Ex.PW4/B, Ex.C1, Ex.C2, Ex.C4, Ex.PW5/A, Ex.PW5/B, Ex.PW5/C, Ex.PW7/A, Ex.PW7/B, Ex.PW7/C Ex.PW9/A, Ex.PW9/B and pullandas Ex.PA, (Ex.MO-1) and the law laid down in Krishna Kant v. State, CRL.A 275/2009, learned counsel for accused Arjun has submitted that in the light of law laid down by the Hon'ble High Court of Delhi, the accused persons cannot be convicted for the offence under section 328 IPC. It is further submitted that the complainant has failed to identify the accused Arjun during the TIP proceedings. It is further submitted that it was not investigated from where tea was SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 10 of 52 brought. It is further submitted that recovery witnesses have not investigated the present FIR.
23. It is submitted by learned counsel for the accused Chandeshwar that complainant has failed to identify the accused Chandeshwar in the Court. It is further submitted that the accused has been arrested and falsely implicated due to his previous involvement and he is in custody since one year.
24. I have given my thoughtful consideration to the submissions made on behalf of the parties.
25. The accused persons have been charged for the offences punishable under sections 328/379/411/34 I.P.C. 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."
26. Theft is the most basic and widespread offence against property under the IPC. Section 379 of the Indian Penal SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 11 of 52 Code prescribes punishment for theft whereas, theft is defined in Section 378 of the IPC. This section contains five explanations for the said definition and is accompanied by 16 illustrations. Section 378 reads as follows:
"378. Theft. Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft."
27. The essential ingredients of the offence of theft under Section 378 of the IPC, is well-explained by the Supreme Court in a leading judgment. The court analysed the offence of theft under section 378 and constituted the essential elements of theft as follows:-
1) The subject of theft should be a movable property;
2) It should be in the possession of anyone;
3) There should be a dishonest intention to take it out of that person's possession without his consent and;
4) A moving in order to such taking.
28. Section 411 IPC deals with the offense of dishonestly receiving stolen property. Section 411 IPC reads as follows:-
"411. Dishonestly receiving stolen property.- Whoever, dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 12 of 52 description for a term which may extend to three years, or with fine, or with both."
29. In order to obtain conviction for the offence under section 411 IPC, the prosecution has to establish the following elements:
1) The property must have been stolen.
2) The accused must have received, retained, bought or sold the stolen property.
3) The accused must have known or had reason to believe that the property was stolen
4) The act of receiving, retaining, buying or selling the stolen property must have been done dishonestly.
30. It is important to note that the mere receipt of stolen property is not enough to attract the provisions of section 411. The accused must have the knowledge or reason to believe that the property was stolen, and must have acted dishonestly in receiving, retaining, buying or selling it.
31. The facts of the case have already been noticed earlier, here, I would like to only focus on the evidence that has been adduced by the prosecution.
32. To bring home the guilt of the accused, the prosecution had examined eleven (11) witnesses.
SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 13 of 5233. PW1 Man Mohan Sharma has deposed that he was residing at D-35, West Jyoti Nagar, Shahadra, Delhi and was plying a Radio Taxi attached with Yo Cab. It is further deposed by PW1 Man Mohan Sharma that on 13.02.2014 he had gone to Noida in order to drop a passenger and was returning to Delhi in the Radio Taxi. It is further deposed by PW1 Man Mohan Sharma that he received a telephonic information from Yo Cab Call Centre that he had to drop a passenger at Gurgaon after picking him from Kalkaji. It is further deposed by PW1 Man Mohan Sharma that he made a telephonic call at the mobile phone number furnished by the call center and the passenger informed him to park his Radio Taxi near Hanuman Mandir, Govind Puri. It is further deposed by PW1 Man Mohan Sharma that he did not remember the exact time, as far as he could recollect, it was 11.30 a.m, he parked his vehicle near Hanuman Mandir, Govind Puri. It is further deposed by PW1 Man Mohan Sharma that the name of the passenger was Rajesh as informed to him by the call centre and after 15-20 minutes, the passenger had come and had told his name as Rajesh. It is further deposed by PW1 Man Mohan Sharma that the said person told him that he was engaged in leather work and that he had to collect payment from Gurgaon and one of his associate from Chitranjan Park would also accompany the said person. It is further deposed by PW1 Man Mohan Sharma that he along with the said passenger Rajesh reached at, E-block Park, Chitranjan Park and had asked him to wait there, he kept on waiting there for long time and on SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 14 of 52 asking the passenger, who was standing at a distance from the car, he told him that he would be paid waiting charges. It is further deposed by PW1 Man Mohan Sharma that the said passenger had told him that he will drink tea and also offered tea to the complainant. It is further deposed by PW1 Man Mohan Sharma that he had refused but despite that the said passenger had brought tea for him and on the request of the said person, he had consumed tea brought by the said passenger. It is further deposed by PW1 Man Mohan Sharma that immediately, after consuming tea, his body and the mind had become numb and it had appeared to him as a something wrong had happened with him. It is further deposed by PW1 Man Mohan Sharma that the said passenger had taken away Rs.4500/- from the pocket and dashboard and also his mobile phone of Nokia. It is further deposed by PW1 Man Mohan Sharma that the other associate of the said passenger had also come after he had consumed tea and had assisted the other passenger in lifting his mobile phone and part money near the dashboard. It is further deposed by PW1 Man Mohan Sharma that he was having giddiness and had fallen down and he did not know what had happened and when he had regained his consciousness, he found himself at his home and House No. D-35 West Jyoti Nagar, belonged to his only daughter. It is further deposed by PW1 Man Mohan Sharma that somebody had informed the police and on the next day i.e. on 14.02.2014, he had gone to the police station and had made a complaint (Ex.PW1/A) in this regard.
SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 15 of 5234. It is further deposed by PW1 Man Mohan Sharma that he had also gone to Tihar Jail to identify the offenders and had identified both of them. It is further voluntarily deposed by PW1 Man Mohan Sharma that he had still not fully recovered from the effect of drug administered to him by the said person in the tea. PW1 Man Mohan Sharma has identified the TIP proceedings (Ex.PW1/B and Ex.PW1/C) of accused Arjun Singh and Chandeshwar. PW1 Man Mohan Sharma has pointed out towards the accused Chandershwar @Sunil present in the Court as the passenger who had represented his name as Rajesh and had offered him tea having some drug however, the witness was not able to identify other accused Arjun present in the Court. PW1 Man Mohan Sharma has pointed out towards another person (Mehboob Alam s/o Tabibur Rehman r/o Village Dakshin Nahar Garh, PS Chapra, District Uttar Dinazpur, WB) sitting in the court and stated that the height of other associate was equivalent and somewhat appeared to be like him. It is further deposed by PW1 Man Mohan Sharma that he had given bill of his mobile phone Ex.PA to the police and had also pointed the place of occurrence to the police. PW1 Man Mohan Sharma has correctly identified his mobile phone of Nokia (Black Colour) Ex.MO-1. Learned Addl. P.P. for the State has put leading question from PW1 Man Mohan Sharma and the witness was shown the accused Arjun and after seeing him, he has stated that the accused Arjun appeared to be 90% the same but has some confusion.
SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 16 of 52PW1 Man Mohan Sharma has also stated that he did not want that an innocent should be punished and has stated that even before the Magistrate who conducted TIP proceedings, he had some confusion regarding the identity of accused (Arjun). It is correct that due to lapse of time, he might had some confusion regarding the identity of accused Arjun.
35. PW2 Sub-Inspector Bhoop Singh has deposed that on 14.3.2014, he was posted at police station Chitranjan Park and on that day, pursuant to direction of SHO, he along with investigating officer/Head Constable Mohd. Naseem and Constable Sarnam had come to Saket Court, Room no. 512. It is further deposed by PW2 Sub-Inspector Bhoop Singh that the accused persons Chandeshwar @ Suniland Arjun were produced in muffled face from judicial custody in the Court and he obtained one day police remand of both the accused persons, thereafter, both the accused persons were got medically examined. It is further deposed by PW2 Sub-Inspector Bhoop Singh that the accused persons had pointed out the place of occurrence E block, C.R Park, thereafter, the accused persons led them at their rented house at Govind Puri in order to effect the recovery of cash money but same could not be found, thereafter, they had come back to the police station and both the accused persons remained in muffled face during the entire investigation proceedings, thereafter, investigating officer had recorded his SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 17 of 52 statement to the effect. PW2 Sub-Inspector Bhoop Singh has correctly identified both the accused persons.
36. PW3 Constable Sandeep Kumar has deposed that on 14.2.2014, on the direction of the SHO, he had received copy of FIR and rukka in original from duty officer/Head Constable Ram Raj and thereafter, the same were delivered to Head Constable Naseem Khan, at the spot by him, i.e. E- Block, CR Park, Main Road, thereafter, he had also joined investigation with Head Constable Naseem Khan. It is further deposed by PW3 Constable Sandeep Kumar that in his presence, the investigating officer had prepared the site-plan, thereafter, they had searched for the accused persons at several places and investigating officer had recorded his statement in this regard.
37. PW4 Head Constable Ram Raj has deposed that on 14.02.2014, he was on duty as duty officer from 04:00 p.m. to 12:00 a.m. (midnight). It is further deposed by PW4 Head Constable Ram Raj that during his duty hours, at about 10:00 p.m., constable Sandeep had brought a rukka for registration of FIR sent by Head Constable Mohd. Naseem Khan. It is further deposed by PW4 Head Constable Ram Raj that accordingly, on the basis of the said rukka, he had recorded the present FIR (Ex.PW4/A) by getting typed through Computer operator. It is further deposed by PW4 Head Constable Ram Raj that he had also made an endorsement (Ex.PW4/B) on the rukka. It is further SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 18 of 52 deposed by PW4 Head Constable Ram Raj that after registration of the FIR, copy of the same along with the original rukka was given to the said constable Sandeep for handing over the same to Head Constable Naseem Khan for investigation.
38. PW5 Constable Sarnam Singh has deposed that on 10.03.2014, he had joined the investigation with investigating officer/Head Constable Pooran Chand and he along with investigating officer had reached at Court No.511, in the Court of Ms. Anu Aggarwal, Saket Court. It is further deposed by PW5 Constable Sarnam Singh that two accused persons were present in the Court in muffled place and investigating officer had moved an application before the Hon'ble Court for interrogation and arrest of accused persons. It is further deposed by PW5 Constable Sarnam Singh that the court had allowed the said application of investigating officer. It is further deposed by PW5 Constable Sarnam Singh that the accused Chandeshwar @ Sunil and Arjun were formally arrested vide their arrest memo (Ex.Cl and Ex.C2). It is further deposed by PW5 Constable Sarnam Singh that disclosure statements of both the accused persons (Ex.PW5/A and Ex.PW5/B) were also recorded and the accused persons were sent to judicial custody, thereafter, they had returned to police station and investigating officer had handed over a notice under section 160 Cr.P.C. to him, to be served to the complainant Manmohan Sharma. It is further deposed by PW5 Constable Sarnam Singh that the said notice was served upon the SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 19 of 52 complainant and he had returned back to the police station and investigating officer had recorded his statement.
39. It is further deposed by PW5 Constable Sarnam Singh that on 14.03.2014, he had again joined investigation with Sub-Inspector Bhup Singh and Head Constable Naseem with the investigating officer. It is further deposed by PW5 Constable Sarnam Singh that on that day, both the accused persons were on police remand and they were medically examined from AIIMS, thereafter, the accused persons had pointed out the place of occurrence i.e. E-Block Park, where investigating officer had prepared the pointing out memo (Ex.PW5/C and Ex.PW5/D) at the instance of accused persons. It is further deposed by PW5 Constable Sarnam Singh that at the instance of accused persons, they visited two-three placed at Govind Puri and Tukhlabad to search out Rs.4,500/-, but the said amount was not recovered, thereafter, they had returned to the police station and the accused persons were taken in lock-up. It is further deposed by PW5 Constable Sarnam Singh that during investigation, the accused persons were in muffled face and investigating officer had recorded his statement.
40. PW6 Assistant Sub-Inspector Pooran Chand Sharma has deposed that on 07.03.2014 he was handed over the further investigation of the present case. It is further deposed by PW6 Assistant Sub-Inspector Pooran Chand Sharma that he had come SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 20 of 52 to Saket Court and had moved an application for the production of accused, thereafter, he had gone to the office of AATS, South East, Staff Office where he had collected documents from Sub- Inspector PL Katewa, thereafter, he recorded statement of Sub- Inspector PL Katewa, Head Constable Neeraj and Head Constable Praveen. It is further deposed by PW6 Assistant Sub- Inspector Pooran Chand Sharma he had come back to police station. It is further deposed by PW6 Assistant Sub-Inspector Pooran Chand Sharma that on 10.03.2014, he had come to court where the accused persons were produced thereafter, he had interrogated the accused persons, namely, Chandeshwar @ Suniland Arjun after seeking permission of court and they were formally arrested (Ex.C1 and Ex.C2) and they were interrogated and he had recorded their disclosure statements (Ex.PW5/A and Ex.PW5/B). It is further deposed by PW6 Assistant Sub- Inspector Pooran Chand Sharma that on the same day, he had moved an application Mark 'A' for TIP and the Court had fixed the date of TIP on 13.03.2014 and on 13.03.2014, the case file was handed over to Head Constable Naseem Khan. PW6 Assistant Sub-Inspector Pooran Chand Sharma has correctly identified the accused Chandeshwar @ Suniland Arjun.
41. PW7 Head Constable Neeraj Kumar has deposed that on 21.02.2014, he was posted as a Head Constable in AATS South-East and at about 04.30 p.m., a secret informer had come at their abovesaid office and had met with Sub-Inspector P.L. SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 21 of 52 Katewa. It is further deposed by PW7 Head Constable Neeraj Kumar that a secret informer had informed to Sub-Inspector P.L. Katewa that two persons namely Sunil and Arjun would be coming in the area of Govind Puri to sale the stolen articles which were robbed by then after giving intoxication to the passengers and they used to robe the passengers after giving intoxication, if raided they could be apprehended. It is further deposed by PW7 Head Constable Neeraj Kumar that the abovesaid secret information apprised by Sub-Inspector P.L. Katewa who had prepared a raiding party along with him and Sub-Inspector Satender Khari, Praveen, Constable Jogender, Constable Deep Chand and Constable Kuldeep. It is further deposed by PW7 Head Constable Neeraj Kumar that at about 04.45 p.m., all members of raiding party along with secret informer had left the AATS Officer and had reached at R.D. Marg near Pooja Masala, Govind Puri, by two private cars. It is further deposed by PW7 Head Constable Neeraj Kumar that Sub- Inspector P.L. Katewa had requested passersby to join the raiding party but none had agreed and had left the spot without disclosing their names and addresses and due to paucity of time, no notice was served to the passersby. It is further deposed by PW7 Head Constable Neeraj Kumar that all the members of the raiding party were briefed by Sub-Inspector P.L. Katewa at the spot and the team members were deployed at the spot on different places and locations. It is further deposed by PW7 Head Constable Neeraj Kumar that Sub-Inspector P.L. Katewa was SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 22 of 52 standing along with secret informer near Pooja Masala Bus Stop and he had also told that he would give a signal for raiding.
42. It is further deposed by PW7 Head Constable Neeraj Kumar that at about 07.15 p.m., two persons were coming from Machchhi Market to Pooja Masala Bus Stand, both were wearing black jackets and one of them was wearing full sleeves and other was in half sleeves. It is further deposed by PW7 Head Constable Neeraj Kumar that a secret informer had identified the abovesaid both persons and had pointed out towards them and thereafter, Sub-Inspector P.L. Katewa had given a signal to conduct the raid. It is further deposed by PW7 Head Constable Neeraj Kumar that they had immediately come near Sub-Inspector P.L. Katewa and both said persons were apprehended. It is further deposed by PW7 Head Constable Neeraj Kumar that Sub-Inspector P.L. Katewa had asked their names and addresses from the abovesaid both persons, who had disclosed their names as Chandeshwar @ Sunil and Arjun. It is further deposed by PW7 Head Constable Neeraj Kumar that Sub-Inspector P.L. Katewa had conducted the search of Chandeshwar @ Sunil and two mobile phones were recovered from right pocket of his pant. It is further deposed by PW7 Head Constable Neeraj Kumar that the accused Chandeshwar @ Sunil could not give any satisfactory reply about the recovery of the said mobile phones. It is further deposed by PW7 Head Constable Neeraj Kumar that Sub-Inspector P.L. Katewa had checked abovesaid two mobile phones, one was SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 23 of 52 make Micromax and another was make of Videocon. It is further deposed by PW7 Head Constable Neeraj Kumar that Sub- Inspector P.L. Katewa had collected the information from office of AATS and it was revealed that the Micromax phone pertained to the case FIR No.156/2014, PS Govind Puri and other phone make Videocon could not be connected. It is further deposed by PW7 Head Constable Neeraj Kumar that during of search of the accused Chandeshwar @ Sunil, two strips of medicine of Ativan- 2mg were recovered from left pocket of his pant. It is further deposed by PW7 Head Constable Neeraj Kumar that Sub- Inspector P.L. Katewa had conducted the search of the accused Arjun and three mobile phone were recovered from the right pocket of his pant, one mobile phone of Samsung having Tata CDMA SIM, one Nokia and Micromax were also recovered. It is further deposed by PW7 Head Constable Neeraj Kumar that Sub- Inspector P.L. Katewa had got checked the abovesaid recovered phones. It is further deposed by PW7 Head Constable Neeraj Kumar that the phone Samsung having Tata CDMA was the case property of case FIR No.78/2014, PS Govind Puri and Nokia belonged to present case FIR No.42/2014, PS Govind Puri and phone Micromax could not be connected. It is further deposed by PW7 Head Constable Neeraj Kumar that Sub-Inspector P.L. Katewa had seized the abovesaid phones and strips of the medicine. It is further deposed by PW7 Head Constable Neeraj Kumar that the seizure memo (Ex.PW7/A) of mobile phone which was recovered from the accused Arjun Singh was prepared SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 24 of 52 in which the case property of mobile phone Nokia of the present case was recovered from him. It is further deposed by PW7 Head Constable Neeraj Kumar that both the accused persons were arrested in case FIR No.156/2014, PS Govind Puri and the disclosure statements of accused Chandeshwar @ Sunil and accused Arjun Singh were recorded by the investigating officer vide memo (Ex.PW7/B and Ex.PW7/C).
43. It is further deposed by PW7 Head Constable Neeraj Kumar that the accused Chandeshwar @ Sunil also got recovered 48 mobile phones, one golden chain, two lockets and 11 strips of medicine Ativan-2mg, three wrist watches and one auto rickshaw battery. PW7 Head Constable Neeraj Kumar has correctly identified the accused persons, namely, Chandeshwar @ Sunil and Arjun Singh present in the Court. PW7 Head Constable Neeraj Kumar has also correctly identified Nokia mobile phone coloured black IMEI No.359041041950362 (Ex.MO-1) and stated that the same was recovered from the possession of accused Arjun.
44. PW8 Sub-Inspector P.L. Katewa has deposed that on 21.02.2014, he was posted at AATS, South-East and on that day at about 4.00 p.m., a secret informer had come to the office and informed that two accused persons, namely, Sunil and Arjun who used to commit robbery, are trying to go at Pooja Masala at Govind Puri in the evening. It is further deposed by PW8 Sub-
SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 25 of 52Inspector P.L. Katewa that he had shared this information to his senior officers who had directed him to take an action, then he had formed the raiding party comprising of Sub-Inspector Satender Khari, Head Constable Neeraj, Head Constable Parveer, Constable Deep Chand. Constable Joginder and Constable Kuldeep. It is further deposed by PW8 Sub-Inspector P.L. Katewa that they had gone at Pooja Masala at Govind Puri at about 5.00 p.m. in Wagon-R and Swift and at the spot, they had requested some public persons to join the investigation but none agreed and had left the place without disclosing their identity. It is further deposed by PW8 Sub-Inspector P.L. Katewa that member of raiding party had taken their positions at Pooja Masala and he along with informer had taken their positions at the spot.
45. It is further deposed by PW8 Sub-Inspector P.L. Katewa that at about 07.15 p.m., two persons were seen coming from the side of Fish Market and on seeing them, secret informer had indicated and on the instance of PW8 Sub-Inspector P.L. Katewa instance, his staff had apprehended both of them after interrogation name of both persons revealed as Chandeshwar @ Sunil and Arjun. PW8 Sub-Inspector P.L. Katewa has correctly identified both the accused persons in the Court. It is further deposed by PW8 Sub-Inspector P.L. Katewa that formal search of both the accused persons were conducted and on the search of Chandeshwar @ Sunil, two mobile phones make Micromax and SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 26 of 52 Videocon were recovered from the right pocket of his wearing pant and after inquiry mobile phone Micromax was found involved in case FIR No.156/2014 PS Govind Puri. It is further deposed by PW8 Sub-Inspector P.L. Katewa that from the search of the left pocket of Chandeshwar, 18 tablets of Ativan were found and mobile phone and tablets were taken into possession and seized through seizure memo. It is further deposed by PW8 Sub-Inspector P.L. Katewa that on the search of Arjun, three mobile phones make Micromax, Samsung and Nokia were recovered from the right pocket of his wearing pant and mobile phone make Nokia was found involved in this present case. It is further deposed by PW8 Sub-Inspector P.L. Katewa that mobile phones were taken into possession through seizure memo (Ex.PW7/A) and both the accused persons were arrested in case FIR No.156/2014 police station Govind Puri, and he conducted the investigation of the said case and the investigation of the present case was conducted by the another investigating officer. He correctly identified the case property (Ex.MO-1).
46. PW9 Assistant Sub-Inspector Banwari Lal has deposed that on 21.02.2014, he was working as MHC(M) at police station Govind Puri. It is further deposed by PW9 Assistant Sub-Inspector Banwari Lal that investigating officer had deposited case property of this case like mobile, Tablet and medicines and he entered the depositing of the case property in his register no. 19 vide entry no.1467. It is further deposed by SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 27 of 52 PW9 Assistant Sub-Inspector Banwari Lal that on 22.03.2014, Head Constable Naseem Khan had come to him and had handed over the case property of this case to him vide RC No. 53/21/14 (Ex.PW9/A) and the said DD entry (PW9/B).
47. PW10 Assistant Sub-Inspector Mohd. Naseem Khan has deposed that on 14.02.2014, Head Constable Vinesh had come to the police station along with complainant Manmohan Sharma. It is further deposed by PW10 Assistant Sub-Inspector Mohd. Naseem Khan that he had recorded the statement of complainant Manmohan Sharma and prepared the rukka (Ex.PW10/A) and the case got registered. It is further deposed by PW10 Assistant Sub-Inspector Mohd. Naseem Khan that he along with complainant had reached at the spot i.e., E- Block, CR Park and prepared the site-plan (Ex.C4). It is further deposed by PW10 Assistant Sub-Inspector Mohd. Naseem Khan that Constable Sandeep had come at spot along with original rukka and copy of FIR and had handed over the same to him. It is further deposed by PW10 Assistant Sub-Inspector Mohd. Naseem Khan that thereafter, he along with Constable Sandeep and complainant had searched for accused but he could not be found. It is further deposed by PW10 Assistant Sub-Inspector Mohd. Naseem Khan that he had recorded the statement of Constable Sandeep and supplementary statement of complainant.
SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 28 of 5248. It is further deposed by PW10 Assistant Sub- Inspector Mohd. Naseem Khan that on 23.02.2014 he had received DD No.7A regarding arrest of two accused persons by AATS (South East) from Sub-Inspector Pappu Lal Katewa and the case property pertaining to this case has been recovered and they had disclosed about their involvement in this case in FIR No.156/14 police station Govind Puri, thereafter, he was transferred from this case and he had handed over the case file to MHC(R). It is further deposed by PW10 Assistant Sub-Inspector Mohd. Naseem Khan that on 13.03.2014, the file was again handed over to him for further investigation and the TIP proceedings of the accused persons were pending. It is further deposed by PW10 Assistant Sub-Inspector Mohd. Naseem Khan that during investigation of this case, he along with complainant had reached at Tihar Jail for conducting TIP proceedings of the accused persons and the TIP proceedings were got conducted.
49. It is further deposed by PW10 Assistant Sub- Inspector Mohd. Naseem Khan that on 14.03.2014 Sub-Inspector Bhoop Singh had moved an application for obtaining police custody remand of the accused persons and the same was allowed, thereafter, both the accused persons had led them to the house where they were residing as tenants at Govind Puri, however, nothing was recovered at the instance of accused persons, thereafter, both the accused persons were produced before the court and they were sent to judicial custody. It is SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 29 of 52 further deposed by PW10 Assistant Sub-Inspector Mohd. Naseem Khan that during investigation of the case, case property was transferred from police station Govind Puri to police station Chitranjan Park on 22.03.2014. It is further deposed by PW10 Assistant Sub-Inspector Mohd. Naseem Khan that he had recorded the statement of witnesses and filed the charge-sheet before the court. PW10 Assistant Sub-Inspector Mohd. Naseem Khan has correctly identified both the accused persons, present in the court and the case property (Ex.MO-1).
50. PW11 Sub Inspector Parvir Singh has deposed that on 21.02.2014, he was posted as Head Constable at AATS, South East District and on that day, on receiving of secret information, Sub Inspector P.L. Katewa had called Sub-Inspector Satender Khari, Head Constable Neeraj, Constable Kuldeep, Constable Joginder, Constable Deep Chand and himself and had informed them about the secret information regarding two boys namely Chandershwar and Arjun, who used to rob the general public by administering stupefying substance would come near Pooja Masala Store, Ravi Das Marg, Govind Puri for selling the stolen articles and for committing some offence. It is further deposed by PW11 Sub Inspector Parvir Singh that Sub-Inspector Pappu Lal Katewa had briefed them about the plan if those boys would come near Pooja Store, thereafter, Sub-Inspector Pappu Lal Katewa had called senior officer and had constituted a raiding SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 30 of 52 party comprising of all the above-named police officials including himself and a secret informer was also with them.
51. It is further deposed by PW11 Sub Inspector Parvir Singh that one FIR bearing No.156/2014, police station Govind Puri was already marked to Sub-Inspector Pappu Lal Katewa, who was conducting investigation of the case and Sub-Inspector Pappu Lal Katewa had made departure entry in respect of FIR No.156/2014 in 'roznancha' and they had reached near Pooja Masala Store in two private vehicles. It is further deposed by PW11 Sub Inspector Parvir Singh that Sub-Inspector Pappu Katewa had shared the information with 8-10 passerby and had requested them to join the investigation but none of them was willing and had left the place after disclosing their inability to join investigation. It is further deposed by PW11 Sub Inspector Parvir Singh that Sub-Inspector Pappu Lal Katewa had briefed the raiding party and all of them had taken their positions on different locations near Bus Stand Pooja Masala Store. It is further deposed by PW11 Sub Inspector Parvir Singh that the secret informer was with Sub-Inspector Pappu Lal Katewa and at about 07.00-07.15 p.m., the said two boys had come from Macchi market towards bus stand Pooja Masala Store. It is further deposed by PW11 Sub Inspector Parvir Singh that at the instance of secret informer, Sub-Inspector Pappu Lal Katewa had given them a signal and all of them got alert. It is further deposed by PW11 Sub Inspector Parvir Singh that the secret informer had SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 31 of 52 left the spot after giving signal and Sub-Inspector Pappu Lal Katewa had stopped the two boys and all of them had apprehended them, out of them one boy was wearing black jacket and on enquiry his name was disclosed as Chandeshwar. PW11 Sub Inspector Parvir Singh has correctly identified the accused Chandeshwar present in the court. It is further deposed by PW11 Sub Inspector Parvir Singh that the name of the second boy was revealed as Arjun, who was wearing half sleeve jacket and he correctly identified the accused Arjun also present in the Court.
52. It is further deposed by PW11 Sub Inspector Parvir Singh that Sub-Inspector Pappu Lal Katewa had made personal search of the accused Chandeshwar and on personal search of the accused Chandeshwar, two mobile phones were recovered from right side pocket of his wearing pant and from left side pocket of wearing pant 18 Ativan tablets were recovered. It is further deposed by PW11 Sub Inspector Parvir Singh that PW8 Sub-Inspector Pappu Lal Katewa had made enquiry about the two phones recovered from the accused Chandereshwar and found that one of mobile phone of Micromax make was connected with the FIR Nо.156/2014, police station Govind Puri. It is further deposed by PW11 Sub Inspector Parvir Singh that Sub-Inspector Pappu Lal Katewa had also made personal search of the accused Arjun and found three mobile phones from right side pocket of his wearing pant and Sub-Inspector Pappu Lal Katewa had made enquiry about the three mobile phones SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 32 of 52 recovered from the accused Arjun and found that one of the mobile phone of Nokia make, black colour was connected with the FIR no.42/2014, police station Chitranjan Park and the second mobile phone was connected with FIR no.78/2014, police station Govind Puri however, the third mobile phone was not matched with any FIR. It is further deposed by PW11 Sub Inspector Parvir Singh that Sub-Inspector Pappu Lal Katewa had taken all the recovered articles from both the accused persons, Chandeshwar and Arjun into possession and had seized them vide separate seizure memo (Ex.PW7/A).
53. It is further deposed by PW11 Sub Inspector Parvir Singh that after being apprehended and recovery effected from the personal search of the accused persons including Nokia mobile phone of the present case, both the accused persons were further interrogated by the Sub-Inspector P.L. Katewa and they were arrested in case FIR No.156/14 police station Govind Puri. It is further deposed by PW11 Sub Inspector Parvir Singh that Sub-Inspector P.L.Katewa had recorded disclosure statement of accused Chandeshwar @ Sunil (Ex.PW7/B) and disclosure statement of accused Arjun Singh (Ex.PW7/C) wherein both the accused persons had disclosed their involvement in several other cases including present case. It is further deposed by PW11 Sub Inspector Parvir Singh that pursuant to their disclosure statements, both the accused persons had led the police party to their rented Jhuggi no.3118, Gali no.5, TA Govind Puri, New SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 33 of 52 Delhi and had got recovered a black colour bag containing 48 mobile phones of different brands, 3 golden colour watch, 11 strips of 10 tables of Ativan medicines, 1 golden colour chain with 2 lockets and one battery of the vehicle but later, the said case property were found to be stolen/robbed in different cases. It is further deposed by PW11 Sub-Inspector Parvir Singh that investigating officer had converted the said recovered articles in different parcels and the parcel containing golden chain and lockets were sealed with the seal of 'PK' before taking the same into possession the said seal was handed over Head Constable Neeraj after its use and all the said articles were taken into possession vide different seizure memos.
54. It is further deposed by PW11 Sub Inspector Parvir Singh that the accused persons had also pointed out the place of incident pertaining to case FIR No.156/14, police station Govind Puri and the case properties were deposited in the malkhana and after the medical examination of both the accused persons, they were lodged in the police lock-up. PW11 Sub Inspector Parvir Singh has correctly identified black colour Nokia mobile phone bearing IMEI No.3590411041950362 (Ex.MO-1) and stated that the same was recovered from the accused Arjun.
55. In the light of the charge framed against the accused persons and the arguments advanced before the court, following are the points for determination:
SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 34 of 521. Whether the accused persons, in furtherance of their common intention, have caused to be taken by the complainant any stupefying, intoxicating, or unwholesome drug, or other thing with the intent to commit, or to facilitate the commission of offence.
2. Whether the accused persons, in furtherance of their common intention, have caused to be taken by the complainant any stupefying, intoxicating, or unwholesome drug, or other thing with the intent to commit, or to facilitate the commission of offence and dishonestly took away one mobiles phone and Rs.4500/- out of possession of the complainant without his consent.
3. Whether the accused Arjun Singh @ Parth Dev Nath were found in possession of Nokia Black colour mobile phone IMEI No.359041041950362 or retained the same knowingly or having reasons to believe the same to be the stolen property.
DISCUSSION ON THE POINTS FOR DETERMINATION
56. At the outset, learned counsel for the accused Arjun has referred to the judgment Krishna Kant's case (supra) to contend that the provisions of section 328 IPC do not apply to the facts of the present case and it would not be safe to convict the SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 35 of 52 accused persons for the said offence in absence of medical evidence. The Hon'ble High Court of Delhi in Krishna Kant's case (supra) has held as follows:
13) The ingredients of Section 328 IPC and the nature of evidence required to establish an offence under the said provision was explained by the Hon'ble Supreme Court in Joseph Kurian Philip Jose v. State of Kerala (1994) 6 SCC 535. The relevant portion of the decision is reproduced herein-under:
"10. In order to prove offence under Section 328 the prosecution is required to prove that the substance in question was a poison, or any stupefying, intoxicating or unwholesome drug, etc., that the accused administered the substance to the complainant or caused the complainant to take such substance, that he did so with intent to cause hurt or knowing it to be likely that he would thereby cause hurt, or with the intention to commit or facilitate the commission of an offence. It is, therefore, essential for the prosecution to prove that the accused was directly responsible for administering poison etc. or causing it to be taken by any person, through another. In other words, the accused may accomplish the act by himself or by means of another. In either situation direct, reliable and cogent evidence is necessary."(Emphasis supplied)
14. In the present case, since initially the accused was not arrested and the car in question, which was allegedly stolen by administering the stupefying substance to the accused, was not recovered, the police had filed an untraced report before the learned Magistrate. The present appellant, however, was found in possession of the car in question later on, which became subject matter of another FIR lodged at another police station. On receipt of such information, the investigation in the present case was reopened, charge was framed against the appellant, and trial was conducted, pursuant to which, the appellant was found guilty under Section 328 IPC.SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 36 of 52
15. This Court has gone through the testimonies of the witnesses. A perusal of the testimony of material witness i.e. the complainant/PW-1 reveals that he had deposed that that the appellant had brought two glasses of juice and had offered one to him. After consuming the same, PW-1 had resumed driving the car but the appellant had asked him to stop the car near Ganda Nala. It was stated that when the appellant had got down on the pretext of bringing another person with him, PW-1 had become unconscious and later when he had regained consciousness, he had found himself at his house, but his car was not found anywhere. He had thereafter lodged his complaint on 11.11.1998. In his cross- examination, PW-1 had stated that his car was hired by the appellant at Ballabhgarh, and upon reaching ITO, he had stopped his car near Hans Bhawan and the appellant had given him a glass of juice by buying the same from a rehri. It was stated that thereafter, the appellant had asked him to take the car to the rear side of Hans Bhawan, besides a dhaba, where the appellant had got down from the car to bring one person. After the appellant had left his car, PW-1 had become unconscious, and later on, he had found himself at Ballabhgarh, outside his house. In his cross-examination, he has failed to give any information as to how he had reached his house at Ballabhgarh while he was unconscious. He merely stated that his mother and wife had informed him that they had found him outside their house vomiting, however, he stated that neither his family nor he knows as to how he had reached Ballabhgarh. Since it is the case of the prosecution and the complainant himself that the car was hired from Ballabhgarh and the house of the complainant is at Ballabhgarh, the address of his house could not have been known to the appellant, neither he would have brought him and left him outside his house before committing theft of his car as alleged by the prosecution. Thus, the fact as to how the complainant/PW-1 had reached Ballabhgarh from Delhi remains unexplained and is entirely missing from the testimonies of all the witnesses.
16. Learned Trial Court also overlooked the fact that there was no medical evidence in this case to SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 37 of 52 support the story of prosecution that any intoxicating substance had been administered to the complainant, except his sole testimony that he was administered some stupefying substance. This fact should have been taken note of, in view of the settled law on this point. Attention regarding this can drawn to the decision of Hon'ble Apex Court in Joseph Kurian Philip Jose (supra) whereby it was held that the ingredients of Section 328 IPC are to be established by way of direct, reliable and cogent evidence.
17. Further, in Prashant Bharti v. State (NCT of Delhi) (2013) 9 SCC 293, the Hon'ble Apex Court had quashed the charge under Section 328 IPC observing that allegations levelled by the prosecutrix of having been administered some intoxicant in a cold drink could not be established by the cogent evidence. The relevant observations read as under:
"23.9. Ninthly, as per the medical report recorded by the AIIMS dated 16.2.2007, the examination of the complainant did not evidence her having been poisoned. The instant allegation made by the complainant cannot now be established because even in the medical report dated 16.2.2007 it was observed that blood samples could not be sent for examination because of the intervening delay. For the same reason even the allegations levelled by the accused of having been administered some intoxicant in a cold drink (Pepsi) cannot now be established by cogent evidence."(Emphasis supplied)
18. A co-ordinate Bench of this Court in Mahinder Kumar v. State 2017 SCC OnLine Del 8327, in an appeal, had expressed that it was difficult to uphold the conviction under Section 328 IPC merely on the basis of oral evidence. The relevant portion of the decision is extracted as under:
"20. In view of the aforesaid discussion, scrutiny of testimonies of prosecution as well as defence witnesses and the MLC of the victim, it is clear that the findings rendered by the learned Trial Court are based only on the testimony of injured witness. But in the absence of any medical evidence corroborating the allegation of the injured, SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 38 of 52 convicting the appellants for the offence under Section 328 of IPC does not seem to be justified in the facts of the present case, especially when the prosecution has not seized any liquid/substance for taking expert opinion so as to know the substance was poisonous, stupefying, intoxicating or unwholesome drug. Prosecution has also not produced any witness to rebut the plea of alibi on behalf of the appellants except that of the injured witness. However, the appellants have produced two witnesses in their defence and merely because they did not prove the presence of the appellants at the spot, therefore, they were declared hostile.
21. In the considered opinion of this court, depositions of witnesses, whether they are examined on the prosecution side or defence side or as court witnesses, are oral evidence in the case and hence the scrutiny thereof shall be without any predilection or bias. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yardsticks cannot be prescribed as for those different categories of witnesses.
22. This Court is of the considered opinion that in a case under Section 328 IPC mere oral assertions are not sufficient to hold an accused guilty of the offence. To hold an accused guilty for the offence, the oral assertions ought to be corroborated by other circumstances and evidence." (Emphasis supplied)
19. Similar view was adopted earlier by this Court in Mukesh Chand v. State (Govt. of NCT of Delhi) 2010 SCC OnLine Del 379, whereby it was held that:
"21. 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." (Emphasis supplied)
20. In Santosh Kumar v. State 2008 (4) JCC 2919 also, this Court while stressing upon the importance SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 39 of 52 and relevancy of medical evidence to establish guilt under Section 328 IPC, had held as under: "...From the above quoted observations of the learned trial Judge it is very much clear that the findings rendered are not sustainable at all because of being conjectural. Simply on the basis of the statement of PW-5 alone it could not be concluded that he had become unconscious because of eating the biscuit or drinking tea offered to him by the accused. There had to be medical evidence to the effect that PW-5 had, in fact, become unconscious because of consuming any drug or intoxicating substance etc. mixed in tea or biscuit..." (Emphasis supplied)
21. In the present case, the situation of lack of evidence is even more glaring as there is no medical evidence or MLC is on record, though victim states that he was medically examined on the same day at Ballabhgarh.
22. Though the learned Trial Court before holding the appellant guilty under Section 328 IPC took note of the serious lapses in the investigation, it did not hold that those serious lapses resulted in the prosecution failing to connect the appellant to the offence in question since there was nothing on record to prove that any stupefying substance was administered to the complaint in this case, except his sole testimony.
23. To sum up, in the present case, (i) there is no medical evidence to prove that complainant was administered any stupefying, intoxicating or unwholesome drug; (ii) the statements of the wife and the mother of complainant were not recorded who had allegedly found the complainant vomiting outside the house at Ballabhgarh; (iii) the concerned doctor was not examined who had medically examined the complainant in Ballabhgarh as he was taken to the hospital for treatment since he was vomiting and he had thought that he had been administered some stupefying substance; (iv) the statement of the owner of juice shop was also not recorded; and (v) it is also not proved as to how the complainant reached his house at Ballabhgarh from Delhi in state of unconsciousness. In such circumstances, the case against the appellant cannot SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 40 of 52 be said to have been proven beyond reasonable doubt.
57. The facts of Krishna Kant's case (supra) are similar to the present case. It is important to note here that there is no medical evidence to prove that complainant was administered any stupefying, intoxicating or unwholesome drug. As per the testimonies of PW1 Man Mohan Sharma (complainant) and PW10 Assistant Sub-Inspector Mohd. Naseem Khan ( investigating officer), the complainant was not got medically examined by the investigating officer to prove that the complainant was administered any stupefying substance, intoxicating or unwholesome drug. When the complainant was not got examined by investigating officer, the question of availability of medical evidence to prove such facts does not arise.
58. As per the testimonies of PW1 Man Mohan Sharma (complainant), after consuming tea offered by the offenders, he was having giddiness and fell down and he did not know what had happened immediately thereafter and when he had gained consciousness, he had found himself at his home, house no.D-35, West Jyoti Nagar, which belonged to his only daughter. It is also noteworthy here that the statement of daughter of the complainant was not recorded by the investigating officer and she was not examined as a witness during trial. Evidence of daughter of the complainant would have been of much SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 41 of 52 importance and relevance in the present case to throw light on the circumstances how the complainant had reached her home. But, neither her statement was recorded by the investigating officer nor her name was shown in the list of witnesses nor she was examined during trial.
59. It is also not the case of the prosecution that after gaining consciousness at her daughter's home, he was taken to the hospital there for any kind of medical assistance.
60. It is in the evidence of PW1 Man Mohan Sharma that he along with the passenger had reached at E Block Park, C.R. Park when the passenger had asked him to wait and told the complainant that he would drink tea and also offered tea to the complainant which was consumed by the complainant. The investigating officer has not made any investigation at E Block Park, C.R. Park where the complainant was made to wait in his taxi. The investigating officer has also not investigated the facts where the offender had gone to take tea and from where he had brought tea mixed with stupefying substance for the complainant. The investigating officer has failed to trace out the tea vendor from where the tea was procured what to speak of examining him.
61. The investigating officer has also not investigated the matter on the question as to how the complainant had reached SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 42 of 52 his daughter's house at West Jyoti Nagar in the state of unconsciousness.
62. In the light of law laid down by Hon'ble High Court of Delhi in Krishna Kant's case (supra) had the discussion afore- stated and in the facts and circumstances of the present case, the prosecution's case against the accused persons for administering any stupefying substance cannot be said to have been proved beyond reasonable doubt.
63. On these points, to prove the commission of theft of mobile phones and money by the accused persons, the testimonies of PW1 Man Mohan Sharma, PW5 Constable Sarnam Singh, PW7 Head Constable Neeraj Kumar, PW8 Sub- Inspector P.L. Katewa, PW10 Assistant Sub-Inspector Mohd. Naseem Khan and PW11 Sub-Inspector Parvir Singh are relevant. As per the testimonies of PW1 Man Mohan Sharma, on 13.02.2014, on receiving of duty from Yo Cab call center, he had reached near Hanuman Mandir, Govind Puri to pick-up the passenger, the passenger had informed him by the call centre and after 15-20 minutes, the passenger had come and had told his name as Rajesh; that he had to collect payment from Gurgaon and one of his associate from Chitranjan Park would also accompany the said person; that he along with the said passenger Rajesh had reached at, E-block Park, Chitranjan Park and had asked him to wait there, he had kept on waiting there for long SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 43 of 52 time and on asking the passenger, who was standing at a distance from the car, he had told him that he would be paid waiting charges; that the said passenger had told him that he would drink tea and had also offered tea to the complainant which the complainant had refused but despite that, the said passenger had brought tea for him and on the request of the said person, he had consumed tea brought by the said passenger and immediately after consuming tea, his body and the mind had become numb and it had appeared to him as a something wrong had happened with him and the said passenger had taken away Rs.4500/- from the pocket and dashboard and also his mobile phone of Nokia; that the other associate of the said passenger had also come after he had consumed tea and had assisted the other passenger in lifting his mobile phone and part money near the dashboard.
64. In view of the above testimonies, the complainant has narrated the incident happened to him and the theft of cash of Rs.4500/- and his mobile phone.
65. Regarding identification of the accused persons, namely, Arjun and Chandeshwar as offenders, testimonies of PW1 Man Mohan Sharma, PW6 Assistant Sub-Inspector Pooran Chand Sharma, PW7 Head Constable Neeraj Kumar, PW8 Sub- Inspector P.L. Katewa and PW11 Sub-Inspector Parvir Singh are relevant. Both the accused persons were initially apprehended by Sub Inspector Pappu Lal Katewa (PW8) and Head Constable SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 44 of 52 Neeraj (PW7) of AATS of South East District and both these witnesses have also correctly identified both the accused persons in the Court and stated that during interrogation, both the accused persons have disclosed about their involvement in the case FIR No.156/14, police station Govind Puri. As per the testimonies of the Investigating Officer, PW10 Assistant Sub Inspector Mohd. Naseem Khan, he had got conducted Test Identification Parade (TIP) of the accused persons and both the accused persons had participated in the TIP proceedings.
66. As per the testimonies of PW1 Man Mohan Sharma (complainant), he could identify the passenger and his associate. During his examination-in-chief, PW1 Man Mohan Sharma (complainant) had correctly identified the accused Chandeshwar @ Sunil in the Court as the passenger, who had represented his name as Rajesh and had offered him tea, however, the complainant was not able to identify the second accused Arjun in the Court. Whereas, the complainant has identified some other person (Mehboob Alam) sitting in the Court and deposed that height of other associate was equivalent and somewhat appeared to be like him. On the question of identity of the accused persons, PW1 Man Mohan Sharma (complainant) was put questions on behalf of the State and during that examination also, when the accused Arjun was shown to the complainant, he deposed that as far as he could say the accused Arjun appears to be 90% the same but he has some confusion. PW1 Man Mohan Sharma has further SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 45 of 52 deposed that he did not want that an innocent person should be punished and even before the Magistrate who had conducted the TIP proceedings, he had some confusion regarding the identity of the accused Arjun. There is no other eye-witness of the incident except the complainant, who has some confusion about the identity of the accused Arjun to be one of the offenders, however, the complainant has correctly identified the accused Chandeshwar @ Sunil to be the person who had booked the cab as a passenger and after making him to drink tea, took away the mobile phone and Rs.4500/- out of possession of the Man Mohan Sharma (complainant) without his consent.
67. Regarding registration of this case, the testimonies of PW1 Man Mohan Sharma, PW3 Constable Sandeep Kumar, PW4 Head Constable Ram Raj and PW10 Assistant Sub- Inspector Mohd. Naseem Khan are relevant. PW1 Man Mohan Sharma has in his evidence, proved that he had made a complaint in the police station regarding the incident happened to him. PW1 has also proved the complaint (Ex.PW1/A). PW4 Head Constable Ram Raj, the duty officer has proved the FIR (Ex.PW4/A) and his endorsement (Ex.PW4/B) on the rukka and deposed that after registration of FIR, original rukka and copy of FIR was given to constable Sandeep to be handed over HC Naseem Khan for further investigation. PW3 Constable Sandeep Kumar has also corroborated the testimonies of PW4 Head Constable Ram Raj. PW10 Assistant Sub-Inspector Mohd. Naseem Khan, SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 46 of 52 investigating officer of this case has also proved the rukka (Ex.PW10/A) and deposed that he had recorded the statement of the complainant Man Mohan Sharma, prepared rukka and got the FIR registered. In the light of testimonies of PW1 Man Mohan Sharma, PW3 Constable Sandeep Kumar, PW4 Head Constable Ram Raj and PW10 Assistant Sub-Inspector Mohd. Naseem Khan, the registration of FIR in the present case is duly proved. It is not the case of the accused persons that there was no any delay in registration of FIR and during the course of arguments also, this fact was not challenged.
68. Regarding apprehension of the accused persons and recovery of stolen properties from the possession of the accused persons, the testimonies of PW7 Head Constable Neeraj Kumar, PW8 Sub Inspector P.L. Katewa and PW11 Sub-Inspector Parvir Singh are relevant. As per the testimonies of PW7 Head Constable Neeraj Kumar, PW8 Sub Inspector P.L. Katewa and PW11 Sub-Inspector Parvir Singh, on 21.02.2014, they were posted in the office of AATS/SED and on the information received from secret informer about the involvement of the accused persons, namely, Arjun and Chandeshwar @ Sunilin the cases of robbery, at the instance of the secret informer, they apprehended both the accused persons and conduced their personal search. As per the testimonies of PW7 Head Constable Neeraj Kumar, PW8 Sub Inspector P.L. Katewa and PW11 Sub- Inspector Parvir Singh, on personal search of the accused SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 47 of 52 Chandeshwar, two mobile phones were recovered from right side pocket of his wearing pant and from left side pocket of wearing pant 18 Ativan tablets were recovered, out of which, one of mobile phone of Micromax was found to be stolen in case FIR Nо. 156/2014, PS Govind Puri. As per the testimonies of PW7 Head Constable Neeraj Kumar, PW8 Sub Inspector P.L. Katewa and PW11 Sub-Inspector Parvir Singh, personal search of the accused Arjun and three mobile phones were recovered from the right side pocket of his wearing pant and Sub-Inspector Pappu Lal Katewa had made enquiry about the three mobile phones recovered from the accused Arjun and found that one of the mobile phone of Nokia make, black colour was connected with the FIR no.42/2014, PS Chitranjan Park and the second mobile phone was connected with FIR no.78/2014, PS Govind Puri however, the third mobile phone was not matched with any FIR. As per the testimonies of PW7 Head Constable Neeraj Kumar, PW8 Sub Inspector P.L. Katewa, and PW11 Sub-Inspector Parvir Singh, PW8 Sub-Inspector Pappu Lal Katewa had taken all the recovered articles from both the accused persons, Chandeshwar and Arjun into possession and had seized them vide separate seizure memo (Ex.PW7/A). As per the testimonies of PW7 Head Constable Neeraj Kumar, PW8 Sub Inspector P.L. Katewa and PW11 Sub-Inspector Parvir Singh, the accused persons were interrogated, arrested and their personal search was conducted and during the course of interrogation, their disclosure statements (Ex.PW7/B and Ex.PW7/C) were also recorded. Both the SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 48 of 52 accused persons, namely, Arjun Singh @ Parth Dev Nath and Chandeshwar @ Sunil were correctly identified by PW7 Head Constable Neeraj Kumar, PW8 Sub Inspector P.L. Katewa and PW11 Sub-Inspector Parvir Singh in the Court.
69. Regarding arrest of the accused persons in the present case, the testimonies of PW5 Constable Sarnam Singh is are relevant. As per the testimonies of PW5 Constable Sarnam Singh, he made an application to the Court for interrogation and arrest of the accused persons, which was allowed and he formally arrested the accused persons Chandeshwar @ Sunil and Arjun vide Arrest Memo (Ex.C1 and Ex.C2) and recorded their disclosure statement (Ex.PW5/A and Ex.PW5/B).
70. Regarding recovery of the case property, testimonies of PW7 Assistant Sub-Inspector Neeraj Kumar, PW8 Sub- Inspector P.L. Katewa and PW11 Sub Inspector Parvir Singh are relevant. As per the testimonies of PW7 Assistant Sub-Inspector Neeraj Kumar, PW8 Sub-Inspector P.L. Katewa and PW11 Sub Inspector Parvir Singh, from the personal search of the accused Chandeshwar @ Sunil, two mobile phones were recovered from the right pocket of his pant and two strips of medicine of Ativan- 2mg were recovered from the left pocket of his pant and from the personal search of accused Arjun, three mobile phones were recovered from the right pocket of his pant (one of Samsung having Tata CDMA SIM, one Nokia and Micromax) and on SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 49 of 52 verification, one of mobile phone of Micromax was connected with the FIR Nо.156/2014, police station Govind Puri and one phone Samsung having Tata CDMA recovered from the possession of accused Arjun was found to have been stolen in the case FIR No.78/2014, P.S. Govind Puri and PW7 Assistant Sub- Inspector Neeraj Kumar, PW8 Sub-Inspector P.L. Katewa and PW11 Sub Inspector Parvir Singh have correctly identified the mobile phones of the complainant stolen by the accused persons from the complainant in the present case. A perusal of the Seizure Memo (Ex.MO-1) of stolen mobile phone recovered from the accused persons reveals that the IMEI number of mobile phone No.(359041041950362) matched with the IMEI number of the mobile phone given by the complainant in his complaint for recording of FIR.
71. It is important to note here that recovery of the stolen articles involved in the present case was made by police officials (PW7, PW8, both posted at AATS of South East District and the investigating officer PW11 Sub-Inspector Parvir Singh). During interrogation, it was disclosed by the accused persons that they have also involved in the commission of offence in case FIR Nо. 156/2014, police station Govind Puri and the police officials from the AATS South East District (PW7 and PW8), the Investigating Officer of the present case (PW11 Sub Inspector Parvir Singh) and the complainant (PW1 Man Mohan Sharma) have correctly identified the mobile phones stolen from the SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 50 of 52 complainant which are case properties of the present case. Recovery of stolen mobile phones by the staff of AATS South- East District, who were un-connected with the investigation of the present case, is worthy of credit and their testimonies carry the guarantee of the trustworthy witness. Therefore, in the light of testimonies of PW7 Assistant Sub-Inspector Neeraj Kumar, PW8 Sub-Inspector P.L.Katewa and PW11 Sub Inspector Parvir Singh, I am of the considered opinion that the recovery of mobile phones stolen in the present case pursuant to the disclosure of the accused persons from their possession is duly proved by the prosecution.
72. As per the testimonies of PW8 Sub-Inspector P.L. Katewa, mobile phone make Nokia recovered from the accused Arjun was found involved in the present case. During the evidence of PW1 Man Mohan Sharma (complainant), he has correctly identified the mobile phone stolen from him by the accused persons and recovered from the possession of the accused Arjun.
73. To sum up, in view of above discussion, both the accused persons Chandeshwar @ Sunil and Arjun Singh @ Parth Dev Nath are hereby acquitted of the offence punishable under section 328/34 of the Indian Penal Code, 1860.
SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 51 of 5274. The prosecution has proved beyond reasonable doubt the charge under Section 379 of Indian Penal Code against the accused Chandeshwar @ Sunil, is found guilty of having committed the said offence and hence, he is convicted of the offence punishable under section 379 of Indian Penal Code, 1860. Further, the accused Arjun Singh @ Parth Dev Nath is hereby acquitted for the offence punishable under section 379 of the Indian Penal Code, 1860.
75. Further, the prosecution has also proved beyond reasonable doubt the charge under section 411 IPC of Indian Penal Code against the accused Arjun Singh @ Parth Dev Nath, so the accused Arjun Singh @ Parth Dev Nath, is found guilty of having committed the said offence and hence, he is convicted of offence punishable under section 411 of Indian Penal Code, 1860.
76. Let the convicts be heard on the question of sentence. Digitally signed by DR RAKESH DR KUMAR RAKESH Date:
2024.09.28 KUMAR 17:39:28 +0530 Pronounced in the open Court (DR. RAKESH KUMAR) th on 28 September, 2024. Additional Sessions Judge, (FTC)-02, South East District, Saket Courts, New Delhi SC No.1846/2016 State v. Arjun Singh @ Parth Devnath Page 52 of 52