Delhi District Court
State vs Santokh Singh & Ors. 1 S. C. No.15/2009 on 31 May, 2010
IN THE COURT OF SH. INDER JEET SINGH, ADDITIONAL SESSION
JUDGE02 WEST DISTRICT, TIS HAZARI COURTS, DELHI
S. C. No. 15/2009
FIR No.362/2004
P. S. Maya Puri
u/s 328/379/34 IPC
State (Govt. of NCT of Delhi) .....State.
VERSUS
1. Santok Singh S/o Sh. Pratap Singh,
R/o Kachhi Colony, Village Nilothi,
New Delhi.
2. Wazir Singh, S/o Sh. Jhaman Singh,
R/o H. No.37/B, Gali No.3, Village Nilothi,
New Delhi. .....Accused.
Date of Institution : 02.05.2009 (05.03.2005)
Decision reserved on : 26.05.2010
Date of decision : 31.05.2010
JUDGMENT
1.1 Succinctly, the matrix of the case is that on 08.09.2004 at about 10 pm the complainant Kishan Lal landed at Delhi Cantt. Railway Station & he came to Delhi Cantt. flyover. He hired three wheeler for Rs.60/ to reach his house in Rohini Sector3, Delhi. After travelling few paces, a Sikh fellow signaled the TSR asking to reach him Sector16 & the driver of TSR accommodated him adjacent the complainant on rear side. The driver of TSR & the said Sikh started talking each other, the former said that his brother is having a shop of State Vs Santokh Singh & Ors. 1 S. C. No.15/2009 cold drink Faluda & he will serve them. The TSR was halted by its driver near Tilak Nagar bridge, he went to a shop and brought two glasses of cold drink Faluda, one was given to the said Sikh fellow & the other glass to the complainant; they were asked to finish it at earliest. He went away to return the empty glasses, at this juncture, the complainant felt giddiness & became unconscious. Next day, when the complainant Kishan Lal gained consciousness, he found him in the forest. The complainant was having an atachicase containing a necklace of three tola, Jhumke of one tola, a pair of tops of gold, one ring gold, one silver belt (Kankari) & cash of Rs.6,000/, however, the articles were found missing/stolen. The complainant was wearing a gold chain of 11 gram, a wrist make Sonata & having his one pair of clothes; the same were also found missing. The jewellery was of his daughter.
1.2 On 02.12.2004, he came to the police station & lodged the report, the substance thereof is already stated in the paragraph No.1.1 above. The complainant also gave description of culprits in his report dated 02.12.2004 to the police station, while also explaining that after incident, he had gone to his native village in Rajasthan. 1.3 On the same day on 02.12.2004, a trap was laid at the place of occurrence by the police in association of the complainant, both the accused were found present with TSR bearing its registration No.DL 1RF 1451; both the accused persons were State Vs Santokh Singh & Ors. 2 S. C. No.15/2009 intercepted, interrogated & on the identification of the complainant, they were arrested. During their police custody & police custody remand they have disclosed certain facts about the place where jewellery was pawned, it lead to discovery of the jewellery from two jewellers. The complainant was examined medically. Lastly, it result into chargesheet under section 328/379/411 IPC. 2.1 The case was opened in the session court, both the accused have been charged under section 328/34 IPC that on 08.09.2004 during the night time they, in furtherance of their common intention, administered intoxicating thing to the complainant Kishan Lal with intent to commit the theft of his belonging. They were further charged under section 379/34 IPC that in furtherance of their common intention, they committed theft of suitcase containing gold necklace weighing three tolas, jhumke made of gold weighing one tola, one pair of ear tops of gold, one gold ring, one silver Kankari, Rs.6,000/ in cash, a gold chain weighing 11 grams, one wrist watch make Sonata & clothes belonging to said complainant Kishan Lal (in the formal charge the cash of Rs.6,000/ was mentioned as Rs.26,000/, however, it appears to be an accidental/typographical slip that for Rs.6,000/ it was typed as Rs.26,000/; it is rectified). Both the accused pleaded not guilty & claimed trial. 2.2 In order to prove the charges, the prosecution examined eleven witnesses, their names & purpose of their examination are State Vs Santokh Singh & Ors. 3 S. C. No.15/2009 enumerated & classified as follows:
(i).PW4 Kishan Lal S/o Sh. Dhanna Ram (to establish that he is author of FIR, an ocular witness & victim of incident. He identified the culprits & also the jewellery & other articles recovered in his presence);
(ii).PW5 Goldsmith Vijay Kumar S/o Sh. Om Prakash (to establish that he is goldsmith, he operates his shop under the name & style Dhanwan Jeweller, Chander Vihar, Delhi & Santok Singh is his customer, who pawned jewellery for a period of three months against Rs.10,000/ on 10.09.2004. The jewellery was handed over to the police by memo & he is witness to the memo);
(iii).PW9 Goldsmith Harpreet Singh S/o Sh. Gurcharan Singh (to establish that he is goldsmith, he operates his shop in Chander Vihar, Delhi, Sh. Wazir Singh came to him, who pawned jewellery against Rs.9,500/. The agreement was handed over to the police besides jewellery);
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(iv).PW7 Mahender Singh S/o Sh. Dula Singh (to establish that he was registered owner of TSR No.DL 1RF 1451, he took it on superdari from the court);
(v).PW8 Kartar Singh S/o Sh. Angrej Singh (to establish that he was landlord of accused Santok Singh of his residential house and accused used to ply TSR); _________________________________________________________
(vi).PW11 SI Vishram Meena No.D/1431 (to establish that he is an investigating officer from the inception, when the complainant PW4 appeared in the police station, he State Vs Santokh Singh & Ors. 4 S. C. No.15/2009 recorded his statement & get the FIR registered, he carried the investigation & during investigation not only the booty was recovered but also the accused persons were arrested. The jewellery was recovered from the jewellers, PW5 & PW9);
(vii).PW3 HC. Krishan Pal No.407/SW (to establish that on 02.12.2004 he along with complainant & the investigating officer participated in the investigation, both the accused persons were arrested. He also joined the investigation on 04.12.2004, when jewellery was also recovered. He is a witness to the proceedings & memos prepared in his presence);
(viii).PW10 Ct. Virender Kumar No.8418/DAP (to establish that he also participated in the investigation on 02.12.2004 with the complainant & HC. Kishan);
(ix).PW7A Ct. Ram Chander No.1575/SW (firstly two witnesses were assigned No.7, the present witness is considered as PW7A. To prove that he was handed over the rukka & copy of the FIR at about 6 pm by the duty officer on 02.12.2004, he took it to investigating officer & handed over the same to him);
(x).PW2 HC. Balram Prakash No.373/PCR, Delhi (to establish that on 02.12.2004 he was duty officer & he recorded formal FIR No.362/2004 Ex. PW2/A); & _________________________________________________________
(xi).PW1 Dr. Prakash, Jr. Resident, Deen Dayal Upadhyay Hospital, Delhi (to establish that on 03.12.2004 he examined the patient Kishan Lal, no fresh external injuries were found, his MLC is Ex. PW1/A);
_________________________________________________________ State Vs Santokh Singh & Ors. 5 S. C. No.15/2009 3.1 After the prosecution evidence, the statements of accused persons were recorded separately, they denied the allegations with plea of innocence. A person hired TSR of Santokh Singh, he was in drunken condition and at his request he was dropped at the liquor shop. Although accused was Sikh but the person was permitted to smoke during the journey. He left/forgotten his belonging in the scooter and for want of his address, he could not located, and then as per Wazir Singh, the articles were taken to jeweller shop explaining everything. Both the accused persons pleaded their innocence, they have not opted for defence evidence. 3.2 The final arguments were opened by Ld. defence counsel Sh. Rajesh Dua, Advocate that it was the duty of the prosecution to prove the charges beyond doubts, however, neither from the point of date of incident or from the point of date of arrest of accused persons or recovery of articles case has been proved by the prosecution, otherwise not only there is delayed FIR, but also the statements of witnesses are contradictory, which bring them under shadow of doubts. Whereas, Sh. B. S. Kain, Ld. Addl. PP for State opposed the contentions that the statements of witnesses are coherent and consistent, the reasons of delayed FIR has been explained and the prosecution has been succeeded to prove the charges against the accused persons. The detailed contentions of the parties will be discussed at appropriate stage.
State Vs Santokh Singh & Ors. 6 S. C. No.15/2009 3.3 Witness PW1 is the investigating officer when he was recalled on 18.05.2010 for his cross examination, the witnesses pointed out that the timings of arrest was 10 pm but inadvertently it was written as 10 am in his examinationinchief. Ld. defence counsel objected that it cannot be rectified since he had endorsed his signatures on his statement. According to the prosecution, there appears to be an accidental slip.
The arrest memos (Ex. PW10/A & Ex. PW10/B) reflect the timings of 10 pm, therefore, the entire record is to be read together, hence the statement of witness PW11/investigating officer will be considered and assessed that it was 10 pm when the accused persons were arrested. Now the other merits of the case are being assessed.
4. The rival contentions are assessed in the light of statutory provisions of law as well as the material on record. To appreciate their contentions, the provisions of section 328 & 379 IPC are reproduced which reads as follows: The ingredients of section 328 IPC:
(i). that the substance in question is a poison (or any stupefying substance, intoxicating, or unwholesome drug);
(ii).that the accused administered the substance to the complainant (or caused the complainant to take such substance);
(iii).that the accused did so, with intend to:
(a) cause hurt, OR
(b) knowing it to be likely that he would thereby cause hurt, OR
(c) that the accused intended to commit or facilitate the commission State Vs Santokh Singh & Ors. 7 S. C. No.15/2009 of an offence.
The ingredients of section 379 IPC:
(i). dishonest intention of accused to take property;
(ii).the property must be movable;
(iii).it should be taken out of the possession of another person;
(iv).it should be taken without the consent of that person;
(v).there must or some some removal of the property in order to accomplish the taking of it.
5.1 Ld. defence counsel submits that as per the prosecution case, the date of incident is 08.09.2004 and date of FIR is 02.12.2004, there is delay of about three months, however, same remained unexplained. Witness PW4 Kishan Lal (author of FIR) narrates that FIR was lodged immediately after incident, when he gained his consciousness and found him in the forest of Nihal Vihar. He was cross examined by positive questions & negative questions but he maintains that the report was lodged immediately after the incident. He also maintains that he had mentioned TSR number in the FIR, but it does not mention. As per witness PW4, he was served with some substance in ice cream faluda but neither the spot where ice cream faluda was bought was visited nor any fact was investigated by the investigating officer/PW11. In fact, witness PW 11 gives contradictory statement to the statement of complainant/PW
4. There is also no explanation or investigation with regard to the registration of the delayed FIR. For want of evidence of serving stupefying substance, the accused persons deserve acquittal of State Vs Santokh Singh & Ors. 8 S. C. No.15/2009 charge under section 328 IPC. In fact, witness PW4 failed to give exact date of incident and as per his narration in the court the incident was 7 or 8 months back from the October 2005, it clashes with the date of incident mentioned in the tehrir Ex. PW4/A. 5.2 Whereas Sh. B. S. Kain, Ld. Addl. PP for State submits that the witness PW4 in his tehrir Ex. PW4/A explains that after the incident he had gone to his native village and FIR was lodged after coming back from the native village. The date of incident is 08.09.2004 and FIR was registered on 02.12.2004, immediately after registration of FIR, the police took appropriate action under the law. It is a fact that TSR number is not mentioned in the tehrir Ex. PW4/A, in fact the witness has also not narrated TSR number in his statement in the court. The complainant/PW4 was robbed of his belonging by serving him some stupefying substance in ice cream faluda and investigating officer has explained that he visited the place/shop from where ice cream faluda was purchased. The charge under section 328 IPC has been proved.
6.1 According to Ld. defence counsel, the arrest of the accused persons or recovery of articles as alleged by the prosecution is full of material contradictions. As per witness PW1, both the accused persons were arrested on 02.12.2004 from the flyover Delhi Cantt. and witness PW4 was with investigating officer, whereas as per witness PW4 first Wazir Singh was arrested and then other accused State Vs Santokh Singh & Ors. 9 S. C. No.15/2009 Santokh Singh was arrested from his residence; had witness PW4 & PW11 together such contradictory versions would not have been narrated by them.
Similarly, there are paradoxical versions about the wrist watch, jewellery etc. Witness PW5 Vijay Kumar Jeweller speaks about pawn/mortgage of necklace for Rs.10,000/ by accused Santokh Singh. Witness PW9 Harpreet Singh Jeweller speaks about pawn one gold ring, one gold chain, one pair of jhumki, one pair of tops, one silver belt by accused Wazir Singh against considerations of Rs.9,500/, however, there is no investigation, who wrote the pawn deeds Ex. PW 5/A & Ex. PW9/A. In addition, there is no letter pad or head nor witnesses PW5 & PW9 were authorized to pawn the jewellery nor they had license for such purposes. According to witness PW4, wrist watch was recovered from a person to whom it was sold for Rs.200/ but according to witness PW11 it was recovered from the residence of accused Santokh Singh and then it was seized. Further visit at the shop of jeweller is also disputed as Wazir Singh was kept in the police station and accused Santokh Singh was taken to the shop of jeweller, how the story of theft of the prosecution can be believed?
6.2 Whereas according to the State, neither there is any paradoxical versions or inconsistency in the statement of witnesses, they deposed coherently. The entire statement is to be read together. State Vs Santokh Singh & Ors. 10 S. C. No.15/2009 A few facts may be slipped from the mind of the witnesses because of passage of time, however, it does not fatal the case of the prosecution. Witnesses PW5 & PW9 not only the identified the accused persons as their respective customers but also the articles were produced by them, which were seized by the police in their presence. Both the accused persons were arrested from flyover Delhi Cantt. and recovery was effected at their instances from the jewellers, the jewellery was also identified by the complainant/PW4 as he was also accompanying the police party. The prosecution has been succeeded to prove the charge of theft under section 379/34 IPC.
7. The following conclusions are drawn:
(i).As per tehrir Ex. PW4/A the incident is of 08.09.2004 and it explains that the matter was reported to police on 02.12.2004 after return of witness PW4 from his native place Rajasthan. The complainant/PW4 was examined medically in Deen Dayal Upadhyay, Hospital Delhi on 03.12.2004 at 2.45 am, meaning thereby the complainant had not gone to the hospital on the following day from incident dated 08.09.2004 but on the following day of registration of FIR.
(ii).There is no alleged history recorded in his MLC Ex. PW1/A but he was brought for the purposes of medical examination by Ct. Ram Chander & Ct. Yashpal of police station Maya Puri, Delhi.
(iii).There is no evidence of fresh external injury found.
There is also no record/evidence of serving him any State Vs Santokh Singh & Ors. 11 S. C. No.15/2009 stupefying substance or intoxicant.
(iv).The oral testimony of PW4 is not being corroborated by any medical record.
(v).There is no shop number, or name of shop or name of proprietor or the site plan with regard to discovery of fact that the accused had bought ice cream faluda or served it to the complainant, during journey on TSR. 7.2 In view of conclusion drawn in paragraph No.7.1 above, the evidence on record does not satisfy requirement of section 328 IPC hence both the accused persons are acquitted of charge under section 328 IPC.
8.1 So far the charge under section 379 IPC is concerned, on assessment the following conclusions are drawn:
(i).It is a fact that the tehrir Ex. PW4/A does not mention the registration number of TSR, but it does not impact the statement of complainant/PW4 since he has also not given any registration number of TSR in his statement in the court.
(ii).Witness PW4 has given both the versions i.e that the accused persons were arrested from the flyover Delhi Cantt. visavis that first Wazir Singh was arrested and then accused Santokh Singh was arrested from his residence. The arrest memos (Ex. PW10/A & Ex. PW10/B) which are not only witnessed by PW4 but also witnessed to other police officials, who support the version of witness PW11 that both the accused persons were arrested from flyover Delhi Cantt.
State Vs Santokh Singh & Ors. 12 S. C. No.15/2009
(iii).It is also an admitted fact by the accused persons in their statements under section 313 Cr. P. C that the complainant hired their TSR for Rs.60/ to reach Rohini Sector3, Delhi from Flyover Delhi Cantt. therefore, it is immaterial if there is two versions of complainant/PW4 about mentioning of TSR number.
(iv).Witness PW5/jeweller Vijay Kumar talks about the accused Santokh Singh & witness PW9/jeweller Harpreet Singh talks about the accused Wazir Singh. Witness PW5 explains in his cross examination that the pawn deed Ex. PW5/A (manuscript) was written by him. Similarly, witness PW9 explains that pawn deed Ex. PW9/A (manuscript) was written by his father, who is no more in this world. Further it is a fact that name of mortgagor has not been mentioned in the either pawn deed Ex. PW5/A or pawn deed Ex. PW9/A but the names of accused as pawnee with signatures as per the statements witnesses. The jewellery articles were seized by memo Ex. PW3/F on production of article (necklace P.3) by witness PW5 and other jewelllery were seized by seizure memo Ex. PW4/C, on production of articles one gold ring (P.4), one gold chain (P.5), one pair of jhumki(P.6/12), one pair of tops (P.7/12) & one silver belt (P.2) by witness PW9 Harpreet Singh.
Complainant/PW4 identified the belonging/jewellery.
(v).The aforementioned circumstances suggest that the witnesses PW5 & PW9 came into the possession of the articles from the possession of the accused persons Santokh Singh & Wazir Singh respectively. How the accused came into possession of such articles?
(vi).As per prosecution, the complainant was robbed of his State Vs Santokh Singh & Ors. 13 S. C. No.15/2009 belonging by the accused persons, after serving stupefying substance or intoxicant in the ice cream faluda whereas according to defence it is a false case. Both the accused persons were examined under section 313 Cr. P. C and they explained that they came into possession of briefcase of complainant since the commuter forgotten his articles in TSR and the same were discovered by the accused at later passage of time but since then the commuter had already left the place and failed to locate by them despite their best efforts. It is already held in paragraph No.7 above, that charge under section 328 IPC could not be proved by the prosecution.
8.2 The conclusion drawn in paragraph No.8.1 above, do not satisfy the requirement of section 379 IPC but the requirement of section 403/34 IPC read with illustration '(f)' (dishonest mis appropriation of property) (section is reproduced hereunder) for the following reasons:
(i).Section 403 IPC - Dishonest misappropriation of property - whoever dishonestly misappropriated or converts to his own use any movable property, shall be punished with imprisonment of either description for a term which may extend to two years or with fine, or with both (illustration (f) - A finds a valuable rings, not knowing to whom it belongs. A sells it immediately without attempting to discover the owner. A is guilty of an offence of under this section).
(ii).As per the statement of accused persons under section 313 Cr. P. C they kept the articles for 1½ months and then went to the jeweller, who advised them to wait for more some time; whereas this explanation further corroborate the case of the prosecution, since pawn State Vs Santokh Singh & Ors. 14 S. C. No.15/2009 deed Ex. PW5/A and pawn deed Ex. PW9/A are of 10.09.2004, immediately after the incident dated 08.09.2004.
(iii).The accused after discovery of briefcase & articles therein of the complainant, formed dishonest intention of misappropriation of the same. They distribute articles between them and then took it to jewellers.
(iv).It will not give any benefit to the accused persons that witness PW5 & PW9 were not having any licence to pawn the jewelllery articles since the jewellery was misappropriated by the accused by keeping the same under pledge to the jewellers. Similarly, wrist (P.1) watch was also recovered on the information disclosed by the accused.
(v).There is no evidence of cash amount, as in the tehrir (Ex. PW4/A), cash of Rs.6,000/ was mentioned but PW4 explains of Rs.4,000/, whereas there is no discovery of any fact in the investigation.
8.3 Now question arises even in case requirement of section 403 IPC is satisfied but for want of charge under this head, Can the accused persons be held guilty?
The answer lies in affirmative in view of section 222 (2) Cr. P. C which reads as follows: Section 222 (2) - When a persons is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it".
Section 403 IPC is a minor offence as compared to the State Vs Santokh Singh & Ors. 15 S. C. No.15/2009 punishment prescribed in section 379 IPC.
8.4 Hence both the accused are held guilty under section 403/34 IPC.
9. In term of paragraph No.7, both accused persons are acquitted of charge under section 328 IPC and in term of paragraph No.8 above, both the accused persons are held guilty under section 403/34 IPC. The supderginama executed by PW4 stand discharged and cancelled.
(Announced in the open court INDER JEET SINGH on 31.05.2010) ADDITIONAL SESSION JUDGE02 WEST DISTT TIS HAZARI COURT DELHI PD State Vs Santokh Singh & Ors. 16 S. C. No.15/2009