Delhi District Court
State vs Naeem on 27 April, 2024
IN THE COURT OF SH. VIRENDER KUMAR KHARTA,
ADDITIONAL SESSIONS JUDGE (FTC)02, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
In the matter of:
(Sessions case no. 597/2018)
FIR No. 567/2018
Police Station Kashmere Gate
Chargesheet filed under Sections 328/379/411/34 IPC
Charges framed against accused 328/34 IPC, 379/34 IPC &
Naeem, Irfan Khan and Ram 411/34 IPC.
Narain @ Sanjay.
State Versus 1. Naeem,
S/o Sh. Khuda Bakht,
R/o H. No. 189, Agwani Chowk,
Wazirabad Village, Delhi.
2. Ram Narain @ Sanjay,
S/o Late Sh. Sant Ram,
R/o Gali No. 5, Sangam Vihar,
Wazirabad, New Delhi84.
3. Irfan Khan,
S/o Sh. Ahshan Khan,
R/o H. No. A280, Gali No 25/5
Guru Nanak Nagar, Mustafabad
New Delhi.
...Accused Persons.
Date of Institution of case 14.08.2018
Date of Arguments 25.04.2024
Judgment reserved on 25.04.2024
Judgment pronounced on 27.04.2024
Decision Acquitted
FIR No. 567/2018, PS: Kashmere Gate,
State Vs. Naeem & Ors. Page No. 1 of 33
JUDGMENT
1. Accused persons namely Naeem, Irfan Khan and Ram Narain @ Sanjay are facing trial for the offences punishable under Sec. 328/34 IPC, Sec. 379/34 IPC & Sec. 411/31 IPC. The story of the prosecution is that on 01.03.2018 between 03:00 pm to 03:15 pm, in the moving TSR near Subzi Mandi Police Station, Delhi all the three aforesaid accused persons in furtherance of their common intention administered some intoxicating/stupefying or unwholesome drug or other thing to PW1/complainant Sh. Savan Kumar Sharma in a cold drink with a view to rob him. Further on the aforesaid date, time and place all three accused persons in furtherance of their common intention committed theft of properties i.e. his gold chain, purse containing a sum of Rs. 5,000/, ATM card of ICICI Bank, Credit Card, company's Icard, Driving License, Aadhar card, Medical ID along with his two mobile phones make Apple 5S and Samsung and trolley bag containing clothes and photographs of his family of complainant Sh. Savan Kumar Sharma. Further, on 20.06.2018 at the house of accused Ram Narain @ Sanjay, all the aforesaid three accused persons were found in joint possession of one purse containing Aadhar Card, two medical insurance cards, one Honda card and one Big Bazar card of complainant Sh. Savan Kumar Sharma.
2. The brief facts which are born out from the record of the case are that on 27.05.2018, PW6 IO/HC Jitender Punia FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 2 of 33 received eFIR No. 567/2018 regarding theft for investigation. Thereafter IO/HC Jitender Punia contacted complainant Sh. Savan Sharma who came to PS Kashmere Gate on 28.05.2018 and he recorded his statement under Sec. 161 Cr.PC wherein he narrated about incident of theft of his belongings i.e. gold chain, purse containing a sum of Rs, 5,000/, trolly bag containing cloths and family photographs, two mobile phones make Apple 5S and Samsung, Aadhar card, ICICI ATM card, Credit Card and driving license by administering intoxicating/stupefying drug or other thing in a cold drink by accused persons on the way to Sarai Rohilla Railway Station in TSR. Thereafter IO inspected the spot of incident and prepared site plan, Ex. PW6/A at instance of complainant and he made efforts to trace out accused persons and case properties but in vain. On the same day, IO received DD No. 59B from PS Sarai Rohilla regarding arrest of accused persons in case FIR No. 194/2018, PS Sarai Rohilla who were involved in the present case. Thereafter IO collected documents of case FIR No. 194/2018, PS Sarai Rohilla from SI Narender and he also obtained medical documents of complainant from Ganesh Hospital, Ghaziabad, UP. Thereafter, Sec. 328 IPC was added in the chargesheet against the accused persons by the IO.
3. On 31.05.2018, IO got issued production warrants against the accused persons from Ld. Concerned Court and he interrogated all the three accused persons, with permission of FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 3 of 33 Court. On confessing their guilt and involvement in this case, IO formally arrested them in the present case and recorded their disclosure statements. IO also got conducted TIP of accused persons in which complainant duly identified accused Naeem and Irfan but he could not identify accused Ram Narain @ Sanjay. IO also obtained PC remand of accused persons and he also recorded their supplementary statements. During investigation, IO also got recovered one black colour wallet containing Aadhar card, two medical insurance cards, one Icard of Honda and one Big Bazar card belonging to the complainant at the instance of accused persons from the house of accused Ram Narain @ Sanjay. On completion of investigation, chargesheet was filed by the IO before the Court through the SHO.
4. Vide order dated 0 9 . 0 8 . 2 0 1 8 , copy of the charge sheet under Section 207 Cr.P.C was supplied to the accused and the case was committed to the Court of Sessions under Sec. 209 Cr.P.C.
5. Vide order dated 25.08.2018 the Ld. Predecessor Court was pleased to frame charges under Sec. 328/34 IPC, 379/34 IPC & 411/34 IPC against all the three accused persons namely Naeem, Ram Narain @ Sanjay and Irfan Khan, to which they pleaded not guilty and claimed trial.
6. To prove its case, prosecution has examined 9 witnesses. The testimonies of presecution witnesses along with its nature FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 4 of 33 has been discussed briefly in the following paragraphs.
7. PW1 Sh. Savan Kumar Sharma is the complainant/victim in the present case. He deposed that on 01.03.2018 he was waiting for Auto at Nitya Nand Marg, Bus Stop for going to Sarai Rohilla Railway Station as he had to go to his native village at Rajasthan. He further deposed that during this, a person came to him and asked that he was also going to Sarai Rohilla Railway Station and he asked to take Auto on sharing basis. He further deposed that they both boarded the Auto and started moving towards Sarai Rohilla Railway Station and after sometime that person told him that he was feeling thirsty and asked the auto driver to stop the auto for buying a water bottle. He further deposed that after few minutes that person brought water bottle, two plastic glasses and cold drink . He also deposed that said person opened the cold drink bottle and poured the same in two plastic glasses and he offered one glass to the Auto driver and another glass to him. He further deposed that he had taken the cold drink and thereafter auto again started moving towards Sarai Rohilla Railway Station. He further deposed after that thereafter he became unconscious and he regained his consciousness in the hospital and found that one gold chain, one iPhone 5S, one Samsung mobile phone and purse containing Rs. 5,000/, driving license, company ID card, one travel bag containing his cloths and family photographs and Aadhar card were missing. He further deposed that on 02.03.2018, he was FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 5 of 33 discharged from Ganesh Hospital and went to his house at Greater Noida and on 04.03.2018, he visited PS Kashmere Gate and lodged complaint Marked as 'A' regarding the incident. He further deposed that on the 27th day of month, which he did not recollect, he was informed telephonically by the police that his belongings had been recovered hence he went to PS Kashmere Gate and his statement was recorded and he also joined TIP proceedings in jail. He further deposed that he lodged eFIR, Ex. PW1/A and identified the accused persons in court by their specific roles in commission of offence during his examination inchief. This witness was crossexamined at length on behalf of accused persons. In his crossexamination, he deposed that he got registered eFIR, Ex. PW1/A before going to PS Kashmere Gate. He also deposed that since his complaint was not registered, he waited for about one month and thereafter he lodged an eFIR. He also deposed that police had not recorded his statement ever. He also deposed that his statement was neither recorded prior to eFIR nor after registration of eFIR. He denied the suggestion that he had got registered a false and fabricated case for some extraneous reasons either to get some insurance claim or some employment benefit at place where he worked. He also denied the suggestion that no incident whatsoever took place on 01.03.2018 or that none of accused persons ever committed any crime.
8. PW2 SI Ashok Kumar, deposed that on 06.06.2018 he FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 6 of 33 alongwith IO/HC Jitender Punia visited the court of Ld. MM at Tis Hazari Courts, where IO interrogated all the three accused persons and on their disclosure about involvement in this case, IO formally arrested accused persons namely Naeem, Ram Narain @ Sanjay and Irfan Khan vide arrest memos Ex. PW2/A, Ex. PW2/B & Ex. PW2/C respectively. He further deposed that IO also recorded their disclosure statements vide Ex. PW2/D, Ex. PW2/E & Ex. PW2/F respectively. In his cross examination, he deposed that when they arrested the accused persons in the court, they were in unmuffled face. He admitted that he was IO in case FIR No. 181/2018 against all three accused persons. He deposed that he did not remember in which FIR, accused persons were arrested earlier whether in the present case or in FIR No. 181/2018. He denied the suggestion that they had accompanied the complainant of aforesaid FIRs with them and accused persons were shown to the complainant/witnesses in the court itself.
9. PW3 Dr. Mukesh Kumar deposed that on 01.03.2018, he was working in the Ganesh Hospital, Nehru Nagar, Ghaziabad as Consultant. He further deposed that on that day, he examined the complainant vide MLC No. 2641, Ex. PW3/A. He further deposed that patient had been admitted in the hospital with the alleged history of ingestion/inhalation of some unknown poison while he was on his way to Ajmer and he was found lying unconscious near Nirankari Colony, Karnal Road. He also FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 7 of 33 proved certified copy of discharged summary of patient as Ex. PW3/B. This witness was not crossexamined on behalf of accused persons despite opportunity given to them.
10. PW4 HC Krishan Kumar, deposed that on 27.05.2018 he joined the investigation of case FIR No. 194/2018, PS Sarai Rohilla along with IO/SI Narender. He further deposed that IO/SI Narender apprehended three accused persons namely Naeem, Irfan and Ram Narain @ Sanjay, vide arrest memos Ex. PW4/A, Ex. PW4/B & Ex. PW4/C respectively in case FIR No. 194/18, PS Sarai Rohilla. He further deposed that IO also conducted their personal search vide memos Ex. PW4/D, Ex. PW4/E & Ex. PW4/F and recorded their disclosure statements, Ex. PW4/G, Ex. PW4/H and Ex. PW4/I. He further deposed that on interrogation, all the accused persons confessed their involvement the present case. He also deposed that SI Narender informed IO/HC Jitender Punia of the present case about disclosure of accused persons who came to PS Sarai Rohilla and obtained the relevant documents. In his crossexamination, he denied the suggestion that no disclosure was made by the accused persons regarding their involvement in the present case and IO has falsely implicated them in the present case.
11. PW5 SI Narender Singh is the IO of case FIR No. 194/2018 of PS Sarai Rohilla and during investigation of that case, accused persons namely Naeem, Ram Narain @ Sanjay and Irfan were arrested. He deposed that on the lines of PW5 HC FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 8 of 33 Krishan Kumar and proved the arrest memos, personal search memos and disclosure statements of accused persons. In his crossexamination, he denied the suggestion that no disclosure was made by the accused persons regarding their involvement in the present case and IO has falsely implicated them in the present case.
12. PW6 HC Jitender Punia is the Investigating Officer of the present case. He narrated about the proceedings conducted by him during investigation. He deposed that on 27.05.2018 he received eFIR No. 567/2018 regarding theft for investigation. He also deposed that he contacted the complainant Sh. Savan Sharma who came to PS Kashmere Gate on 28.05.2018 and recorded his statement under Sec. 161 Cr.PC. He further deposed that he inspected the spot of incident and prepared site plan, Ex. PW6/A at instance of complainant and he made efforts to trace the accused persons and case properties but in vain. He further deposed that on the same day, he received DD No. 59B from PS Sarai Rohilla regarding arrest of accused persons namely Naeem, Irfan and Ram Narain @ Sanjay in case FIR No. 194/2018, PS Sarai Rohilla who were involved in the present case. He also deposed that he collected documents of case FIR No. 194/2018, PS Sarai Rohilla from SI Narender and he also obtained medical documents of complainant from Ganesh Hospital, Ghaziabad, UP and he added Sec. 328 IPC in the chargesheet. He further deposed that he interrogated accused persons and on confessing FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 9 of 33 their guilt and involvement in this case, he formally arrested them in the present case vide arrest memo Ex. PW2/A, Ex. PW 2/B & Ex. PW2/C and recorded their disclosure statements, Ex. PW2/D, Ex. PW2/E & Ex. PW2/F. He further deposed that he also got conducted TIP of accused persons in which complainant duly identified accused Naeem and Irfan but he could not identify accused Ram Narain @ Sanjay. He further deposed that he also obtained PC remand of accused persons and he also recorded their supplementary statements, Ex. PW6/B, Ex. PW 6/C & Ex. PW6/D. He further deposed that he also recovered one black colour wallet containing Aadhar card, two medical insurance cards, one Icard of Honda and one Big Bazar card belonging to the complainant at the instance of accused persons from the house of accused Ram Narain @ Sanjay, which was seized by him vide seizure memo Ex. PW6/E. He also proved the site plan of place of recovery as Ex. PW6/F & pointing out memo of spot by accused persons as Ex. PW6/G. He also identified the accused persons during trial. In his cross examination, he denied the suggestion that no efforts were made to join any public person during the recovery of case properties or any point of investigation. He also denied the suggestion that accused persons were already shown to the complainant prior to their TIP and nothing was recovered at the instance of accused persons.
13. PW7 ASI Adesh Kumar Tyagi, deposed that he had FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 10 of 33 filed the chargesheet of the present case before the concerned court. This witness was not crossexamined on behalf of accused persons despite opportunity given to them.
14. PW8 ASI Binod deposed that on 20.06.2018 he along with IO reached the house of accused Ram Narain @ Sanjay at Sangam Vihar, Wazirabad where all the accused persons got recovered on black colour purse of complainant containing Aadar card, company ID card, Big Bazar card and one medical insurance card, which was seized by the IO vide seizure memo Ex. PW6/B. He proved site plan of recovery of place of recovery of case property as Ex. PW6/F and pointing out memo of place of occurrence, Ex. PW6/G. He also proved the supplementary statements of accused persons as Ex. PW6/B, Ex. PW6/C & Ex. PW6/C. He also identified the accused persons and case properties in the court. In his crossexamination, he deposed that his statement was recorded by IO under Sec. 161 Cr.PC but same was not found on record. He also deposed that IO requested the neighbours to join the investigation but they all refused contending that they do not want to enter into any controversy/dispute. He also deposed that documents recovered at the instance of accused Ram Narain @ Sanjay were seized in his presence. He denied the suggestion that he never accompanied the IO to the house of accused Ram Narain and the site plan was not prepared in his presence and all the documents were prepared by the IO sitting inside the PS. FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 11 of 33
15. PW9 HC Devender Kumar is the MHC(M). He proved the entry made by him in register no. 19 at serial no. 2576/18 as Ex. PW9/A regarding deposition of case properties by IO. In his crossexamination he deposed that he did not have any personal knowledge about this case. He also admitted that the wallet was not in sealed condition.
16. During trial, accused persons have admitted the genuineness of following documents under Sec. 294 Cr.PC:-
Sl. No. Nature of documents Exhibits 1. TIP of accused Naeem PX-1 2. TIP of accused Ram Narain @ Sanjay PX-2 3. TIP of accused Irfan PX-3
17. After closing of Prosecution Evidence, separate statement of both the accused persons were recorded under Sec. 313 Cr.PC, wherein they denied all the charges against them. They stated that they have been falsely implicated in the present case. They further stated that time and again the police officials of PS Sarai Rohilla had falsely implicated them in unsolved cases. Accused persons did not lead any defence evidence.
18. Final arguments were advanced by Sh. Pankaj Kumar Ranga, Ld. Addl. PP for the State and Sh. N. K. Jauli, Ld. Legal Aid Counsel for accused Ram Narain @ Sanjay and Sh. M. N. Khan, Ld. Counsel for accused Irfan and Naeem.
19. Ld. Addl. PP for the State argued that the prosecution has FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 12 of 33 proved its case beyond reasonable doubt and all the prosecution witnesses have supported the prosecution story and have corroborated each other's version. To substantiate his submissions, he argued that PW1 complainant Sh. Savan Kumar Sharma narrated the incident in detailed and correctly identified the accused persons as well as the case property in the court. He also argued that none of the prosecution witness has turned hostile. He also argued that there was no motive on the part of complainant to falsely implicate the accused persons in the present case. He further argued that the IO as well as other police officials have proved the proceedings conducted by them during the investigation of the present case. He also argued that since the prosecution has proved its case against accused persons beyond reasonable doubt, all the accused persons should be convicted for the offences punishable under Sec. 328/34, 379/34 & 411/34 IPC.
20. Per contra Ld. Legal Aid Counsel and Ld. Defence Counsel for accused persons argued that the prosecution has miserably failed to prove its case beyond reasonable doubt. To substantiate their point, they argued that the investigation in the present case has been conducted in an arbitrary manner. They further argued that there is delay of about two months in lodging the FIR. They also argued that ingredients of offence punishable under Sec. 328 IPC have not been brought on record by the prosecution. They also argued that in the initial complaint Marked-A as well as in his examination-in-chief, PW1 FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 13 of 33 complainant Sh. Savan Kumar Sharma has alleged that only two accused persons committed the offence while he identified all the three accused persons in the court. He also argued that TIP of accused Ram Narain @ Sanjay has failed and his identification in the court is not reliable. He also argued that as per version of PW1 complainant Sh. Savan Kumar Sharma on 27.05.2018, the IO had told him that his documents had been recovered and the IO had sent the photographs of the same to him on Whatsapp whereas the recovery in the present case took place on 20.06.2018 which shows that the case property has been planted upon the accused persons. They further argued that no eyewitnesses of the alleged incident has been examined as PW. They further argued that none of the prosecution witness has seen PW-1/complainant Sh. Savan Kumar Sharma in the company of accused persons. They also argued that the testimonies of prosecution witnesses are not of sterling quality. They further argued that no admissible evidence has been brought on record by the prosecution and hence all the accused persons should be acquitted under Sec. 328/34 IPC, 379/34 & 411/34 IPC.
21. In the present case, charges under Sec. 328/34, 379/34 & 411/34 IPC have been framed against both the accused persons. These Sections have been elaborated 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 FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 14 of 33 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.
Sec. 379 IPC Provides punishment for theft which has been defined under Sec. 378 IPC which reads as under:-
Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
34. Acts done by several persons in furtherance of common intention.
When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
Section 411: Dishonestly receiving stolen property: Whosoever 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 description for a term which may extend to three years, or with fine, or with both.
22. I have thoughtfully considered the arguments advanced, perused the material available on record, scrutinized the evidence led by the prosecution and gone through the relevant provisions of law. I have also considered the judgments relied upon by the Ld. Addl. PP for the State as well as Ld. Legal Aid Counsel and Ld. Counsel for accused persons.
FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 15 of 33
23. In the present case, the alleged incident took place on 01.03.2018 and the complainant gave complaint, MarkedA at the Police Station on 04.03.2018. The complaint markedA was registered at PS Kashmere Gate vide DD No. 23B dated 04.03.2018. However, the prosecution has not proved the original complaint during the trial. PW6/IO HC Jitender Punia has not deposed anything about complaint markedA and hence the said complaint has not been duly proved in the court during the trial and hence same cannot be relied upon.
24. As per the contents of complaint markedA allegedly given by the complainant at Police Station Kashmere Gate, two persons were involved in the commision of offence. PW1/complainant Sh. Savan Kumar Sharma in his examination has also deposed that two persons i.e. the auto driver and the copassenger were involved in the commission of offence. However, at the time of identification during his examinationinchief, PW1/complainant Sh. Savan Kumar Sharma has named three persons but he has not explained the role of accused Irfan Khan in his examinationin chief as well as in his crossexamination. Thus, PW 1/complainant Sh. Savan Kumar Sharma has directly identified accused Irfan in the court without deposing as to from where he boarded the TSR and what was his role in the commission of offence.In these circumstances, the testimony of PW 1/complainant Sh. Savan Kumar Sharma cannot be relied upon.
FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 16 of 33
25. PW1/complainant Sh. Savan Kumar Sharma has correctly identified all the three accused persons in the court. However, during the TIP proceedings of accused persons, exhibited as PX 1 to PX3, he had identified accused persons namely Naeem and Irfan Khan but he had failed to identify accused Ram Narain @ Sanjay. PW1/complainant Sh. Savan Kumar Sharma has not explained as to how he was able to identify accused Ram Narain @ Sanjay in the court despite the fact that he had failed to identify him during the TIP proceeding. PW1/complainant Sh. Savan Kumar Sharma in his crossexamination has deposed that he had seen the accused persons in the court on earlier occasions. PW2 SI Ashok Kumar in his crossexamination deposed that when the accused persons were arrested in the court, they were in unmuffled face. In these circumstances, the identification of accused Ram Narain @ Sanjay by PW1/complainant Sh. Savan Kumar Sharma does not inspired confidence.
26. The recovery of the case property has to be proved by the prosecution beyond reasonable doubt in compliance with the law laid down in this regard by Hon'ble Supreme Court of India. Section 27 of Indian Evidence Act is an exception to Section 25 and Section 26 of the said Act. Section 27 is based on the doctrine of confirmation by subsequent events. The principle under Sec. 27 of Indian Evidence Act is based on the principle that if any fact is discovered on the basis of disclosure statement of accused, the discovery of said fact is a guarantee that the information given by the accused in his disclosure statement is FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 17 of 33 true. Such information may be confessional or non-inculpating in nature but if any new fact is discovered from such information it will be considered as a reliable information.
27. The fact discovered on the basis of disclosure of statement of accused must be relevant facts. Such information must be given by the person who is accused of an offence and the recovery of article or discovery of fact must be based upon the information given by such accused.
28. Hon'ble High Court of Delhi in Judgment titled as 'Mohammad Burhan Vs. Directorate of Revenue Intelligence, cited as MANU/DE/3131/2017' has held that:-
' joining of independent public witness is not mere a formality; it is a vital safeguard to avoid false implication of individual. In number of cases either no independent public witnesses are associated on the pretext that none of them is available; in some cases only passerbyes are requested to join the investigation. Non-examination of independent public witness in the instant case is serious flaw and adverse inference is to be drawn against the prosecution for withholding them'.
29. Similarly Hon'ble Supreme Court of India in Judgment titled as "Ramanand @Nand Lal Bharti Vs. State of Uttar Pradesh cited as 2022 SCC online SC 1396" has observed as under:-
FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 18 of 33 "52. Section 27 of the Evidence Act, 1872 reads thus:
'27 How much of information received from the accused may be proved-Provided that, when any fact is deposed to as discovered in consequence of information, received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not as relates distinctly to the fact thereby discovered may be proved.
If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire, in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 19 of 33 incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of that independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two particular place anything like the weapon of offence of blood stained clothes or any other article is discovered then the part of the entire process expects the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter."
30. PW1/complainant Sh. Savan Kumar Sharma has deposed that on 27th day of month, he was informed telephonically that his belongings had recovered and hence he went to PS Kashmere Gate. PW6/IO HC Jitender Punia deposed that on 27.05.2018 he contacted complainant and on 28.05.2018 the complainant came FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 20 of 33 to the PS and he recorded his statement. PW1/complainant Sh. Savan Kumar Sharma also deposed that the police personnel of PS Kashmere Gate had sent him the photographs of articles which was found by them on his Whatsapp after 23 days of his visit to PS Kashmere Gate which means that the said photographs were sent to the complainant either on 30.05.2018 or 31.05.2018. However, as per the testimony of PW6 IO/HC Jitender Punia, the alleged case properties were recovered at instance of accused persons on 20.06.2018 which were seized by him vide seizure memo Ex. PW6/E. Thus, the testimony of PW 1/complainant Sh. Savan Kumar Sharma raises serious dobuts whether the alleged case property had already been recovered on or before 27.05.2018. Thus, the recovery of case property on 20.06.2018 by PW6 IO/HC Jitender Punia cannot be relied upon.
31. PW6 IO/HC Jitender Punia deposed that on 20.06.2018, all the three accused persons led them to the house of accused Ram Narain @ Sanjay and accused Ram Narain @ Sanjay got recovered one black wallet containing Aadhar card, two medical insurance cards, one Icard of complainant and one Big Baazar card, from iron Almirah of the said house. The IO has not joined any independent public person at the time of recovery of above said case property nor any notice under Sec. 160 Cr.PC was served upon public persons who refused to join the investigation. Applying the law laid down by the Hon'ble Supreme Court of FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 21 of 33 India in Mohammad Burhan (Supra) and Ramanand@Nand Lal Bharti (Supra), this Court is of considered opinion that since no independent public witness were joined in the investigation at the time of recovery of alleged case property exhibited as P-1, the recovery of case properties has become doubtful. Thus the prosecution has failed to prove the recovery of case property from the possession or at the instance of accused persons beyond reasonable doubts as per established principles of law.
32. As per the prosecution story the alleged incident took place on 01.03.2018 while the e-FIR in the present case was registered on 27.05.2018. Earlier the accused persons were arrested in case FIR No. 194/2018, PS Sarai Rohilla on 27.05.2018 at about 08:30 pm and the e-FIR in the present case was registered on the same date at about 11:12 pm i.e. after about 03:00 hours of arrest of accused persons in another case. PW-6 IO/HC Jitender Punia has specifically deposed that on 27.05.2018 he contacted the complainant. It has been argued on behalf of accused persons that after the arrest of accused persons in case FIR No. 194/2018 PS Sarai Rohilla, separate e-FIR was registered in the present case to falsely implicate the accused persons in the present case. Thus, the registration of e-FIR after about two months of the alleged incident on the same date of the arrest of accused persons in another case raises serious doubts on the prosecution story.
33. PW1/complainant Sh. Savan Kumar Sharma deposed that after gaining consciousness, he found that his one gold chain, one iPhone 5S, one Samsung mobile phone and purse containing Rs.
FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 22 of 33 5,000/, driving license and company id card, one travel bag containing his cloths and family photographs and Aadhar card were missing. The alleged gold chain, iPhone, Samsung phone, driving license, travel bag, family photographs, cash and cloths have not been recovered by the IO during the investigation in the present case. PW1/complainant Sh. Savan Kumar Sharma has not produced any proof of ownership of the alleged gold chain, iPhone and Samsung phone to prove that he was in possession of the abovesaid case properties on the date of incident. This raises serious doubts on the prosecution story.
34. PW1/complainant Sh. Savan Kumar Sharma deposed that he came to know that he was brought to Ganesh Hospital by Sh. Uma Kant Dixit, Mama of his wife. However, as per the contents of MLC, Ex. PW3/A, PW1/complainant Sh. Savan Kumar Sharma was taken to the hospital by his father. The prosecution has not examined either Sh. Uma Kant Dixit or the father of complainant to corroborate the version of PW1/complainant Sh. Savan Kumar Sharma. Neither PW1/complainant Sh. Savan Kumar Sharma nor PW6 IO/HC Jitender Punia have explained as to how the Mama of wife of complainant or his father came to know that the complainant was lying unconscious at a particular place. This raises serious doubts on prosecution story.
35. PW1/complainant Sh. Savan Kumar Sharma in his complaint MarkedA has stated that his gold chain, purse containing cash of Rs. 5,000/, ATM card of ICICI Bank, Credit FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 23 of 33 Card of ICICI Bank, Id card, Driving License, Aadhar card, Medical ID, Apple phone 5S, Samsung phone and trolley bag containing cloths and photographs were found missing when he gained consciousness which were allegedly taken by the accused persons. However, PW1/complainant Sh. Savan Kumar Sharma in eFIR No. NDKG000567, Ex. PW1/A, he has not mentioned anything about the alleged incident and abovesaid articles and the eFIR only pertains to the fact of articles in which the details of articles has not been mentioned. This raises serious doubts on the prosecution story.
36. The prosecution has not examined any independent eyewitness of the alleged incident nor any CCTV footage covering the passing of the alleged TSR from the spot where the complainant boarded the said TSR to the place where the complainant was found unconscious condition has been collected. The alleged TSR has also not been seized by the IO nor its identity has been fixed through PW1/complainant Sh. Savan Kumar Sharma. Thus, the version of PW1/complainant Sh. Savan Kumar Sharma has not been corroborated by any independent evidence.
37. PW1/complainant Sh. Savan Kumar Sharma deposed that he was offered cold drink by the copassenger and thereafter he became unconscious and gained his consciousness in the hospital. PW3 Dr. Mukesh Kumar has proved MLC of complainant, Ex. PW3/A. He has also proved the discharged FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 24 of 33 summary, Ex. PW3/B of complainant. However, PW3 Dr. Mukesh Kumar has not deposed as to what substance/poison was administered to PW1/complainant Sh. Savan Kumar Sharma. No medical examination of complainant has been conducted by PW3 Dr. Mukesh Kumar in this regard nor any samples were taken from his body and sent to FSL for proving that a particular poisonous substance was administered to the complainant. Hon'ble Supreme Court of India in judgment titled as 'Joshep Kurian Philip Jose Vs. State of Kerela, cited as (1994) 6 SCC 539' has held that: "10. In order to prove offence under Sec. 328, the prosecution is required to prove that the substance in question was a poison or any stupefying, intoxicating or unwholesome drugs etc., that the accused administered the substance to the complainant or called 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 caused hurt, or with the intention to commit or facilitate the commission of 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 order words, the accused may accomplish the act by himself or FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 25 of 33 by means of another. In either situation direct, reliable and cogent evidence is necessary".
38. In the present case, PW3 Dr. Mukesh Kumar has not taken any sample from the body of PW1/complainant Sh. Savan Kumar Sharma for examination to prove that any poison or any stupefying, intoxicating or unwholesome drug was administered to PW1/complainant Sh. Savan Kumar Sharma. No poison, intoxicating substance or unwholesome drug has been recovered from the possession of accused persons. IO has not conducted any investigation with respect to the alleged poison, intoxicating substance or unwholesome drugs to trace his source and the prosecution has not examined any PW from whom the said drug was procured. PW1/complainant Sh. Savan Kumar Sharma has not deposed that he had seen any of the accused mixing the alleged poison, intoxicating substance or unwholesome drugs in the cold drink offered to him nor prosecution has examined the shopkeeper from whom the alleged cold drink bottle was purchased or any independent witness who might have seen the mixing of said poison, intoxicating substance or unwholesome drugs in the cold drink offered to the complainant by one of the accused. The prosecution has also not examined the seller of alleged cold drink bottle. Applying the law laid down by the Hon'ble Supreme Court in Joshep Kurian Philip Jose (Supra), this court is of considered opinion that the prosecution has failed to bring on record the ingredients of offence punishable under FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 26 of 33 Sec. 328 IPC against accused persons.
39. To prove the prosecution case, the testimony of the prosecution witnesses must be reliable. It is not the quantity but the quality of the testimony of the witness that helps a court in arriving at a conclusion in any case. The test in this regard is that the evidence adduced by the parties must have a ring of truth. In a criminal trial, the prosecution has to prove the case beyond reasonable doubt and it is possible only when the testimony of prosecution witnesses is cogent, trustworthy and credible. To secure a conviction of accused, the testimony of the prosecution witness must be of sterling quality.
40. In case titled as Rai Sandeep @ Deepu Vs. State (NCT of Delhi), (2012) 8 SCC 21, it is held that :
"22. In our considered opinion, the "sterling witness" should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 27 of 33 ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-
examination of any length and howsoever strenuous it may be and under no circumstances should given room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have corelation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of very other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only, if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness' whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 28 of 33 precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
41. Similarly, in case of Ramdas Vs. State of Maharashtra, (2007) SCC 170, it is held that :
"23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances with cast of shadow of doubt over her veracity. It the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not fine her evidence to be of such quality."
42. Thus, from the above said judgments, it is clear that the version of the witness should be natural one and it must corroborate the prosecution case. Such version must match with the testimony of other prosecution witnesses. It should be of such FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 29 of 33 a quality that there should not be any shadow of doubt upon it.
43. The contradictions and inconsistencies appearing in the complaint Marked-A given by PW-1/complainant Sh. Savan Kumar Sharma, contents of FIR Ex. PW-1/A got recorded by him, his testimony in the court and identification of accused Ram Narain @ Sanjay by him in the court despite the fact that he could not identify him during TIP serious doubts have been created on the prosecution story. The versions of PW-1/ com- plainant Sh. Savan Kumar Sharma is not natural one. The different versions brought on record in his complaint Marked-A and his e-FIR casts a shadow of doubt on his veracity. The things appears to have not happened in the manner these have been projected. The testimony of PW-1/complainant Sh. Savan Kumar Sharma in the present case cannot be said to be of sterling quality to secure the conviction of the accused persons.
44. It is established principle of law that if two views are possible, the view favourable to the accused must be accepted. The benefit of doubt must always go to the accused as the prosecution has to prove the case beyond reasonable doubt.
45. The Hon'ble Apex court in Rang Bahadur Singh Vs. State of U.P. reported in AIR 2000 SC 1209 has held as follows:-
"The timetested rule in that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 30 of 33 reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."
46. In yet another decision in State of U.P. Vs. Ram Veer Singh and Another reported in 2007(6) Supreme 164 the Hon'ble Apex Court has held as follows:-
"The golden thread which runs through the web of administration of justice in criminal cases is that if two view are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to reappreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not."
FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 31 of 33
47. In the present case, due to the contradictions and inconsistencies in the testimony of PW1/complainant Sh. Savan Kumar Sharma, doubtful identification of accused Ram Narain @ Sanjay by complainant, doubtful recovery of case property, nonproving the administering of poisonousness substance to complainant by accused persons, mentioning of two persons allegedly who committed the offence and identification of three accused persons in court and nonexamination of any independent witness, serious doubts have been created on the prosecution story and two views are possible in this case and hence the benefit of the same must go to the accused persons.
48. In the light of aforesaid discussion, this court is of the considered opinion that the testimonies of PW1/complainant Sh. Savan Kumar Sharma is not clear, cogent, credible and trustworthy and same is not corroborated by other material evidence.
49. For the reasons stated above, this court is of the considered opinion that the prosecution has failed to prove the ingredients of offences punishable under Section 328/34 IPC, Sec. 379/34 IPC & Sec. 411/34 IPC against accused persons namely Naeem, Ram Narain @ Sanjay and Irfan Khan beyond reasonable doubt.
50. Accordingly in view of the aforesaid discussion, all the three accused persons namely Naeem, Ram Narain @ Sanjay and Irfan Khan are hereby acquitted for offence punishable under Section 328/34 IPC, 379/34 IPC & 411/34 IPC.
FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 32 of 33
51. Bail bonds of both the accused persons except bail bonds filed under section 437A CrPC stands cancelled. Their sureties stands discharged. Case property, if any, be released to the rightful owners.
52. File be consigned to Record Room after due compliance.
Digitally signed VIRENDER by VIRENDER Announced in the open court KUMAR KUMAR KHARTA Date: 2024.04.27 KHARTA on 27th day of April, 2024 16:13:32 +0530 (Virender Kumar Kharta) ASJ/FTC-02(CENTRAL) TIS HAZARI COURTS:DELHI/27.04.2024 FIR No. 567/2018, PS: Kashmere Gate, State Vs. Naeem & Ors. Page No. 33 of 33