Delhi District Court
State vs . on 21 March, 2009
1
IN THE COURT OF MS. ILLA RAWAT
ADDL. SESSIONS JUDGE (FTC) CENTRAL DELHI
State
Vs.
Krishna Kant
S/o Sh. Kameshwar Prasad
R/o FCA-108, Faridabad, Haryana.
Session Case No. 04/08 arising out of :
FIR No. : 590/98
U/S :328/379/411
IPC
Police Station : I.P. Estate.
Date of FIR : 11.11.98
Date of Institution in Sessions Court : 28.09.06
Case received by way of transfer at FTC on : 07.11.08
Date of Final Arguments : 16.03.09
Judgment reserved on : 16.03.09
Date of Judgment : 21.03.99
J U D G M E N T:
1. Like many others, Tak Chand, a driver by profession, had set out on 07.11.98 with his Maruti 800 Cont...
2car, bearing number DNA6200, to earn his livelihood by hiring his car and services as driver, but it was not destined to be so. His journey from Ballabhgarh to Delhi, with accused Krishan Kant, who had hired his car and services as driver, turned out to be an unpleasant nightmare. On reaching Hans Bhawan Nala, ITO, Delhi at about 1 pm accused administered certain poison/ stupefying / intoxicating / unwholesome drug to Tek Chand by mixing the same in juice ,with intention to cause hurt to said Tek Chand, and with intention to commit theft of car no DNA6200 belonging to said Tek Chand. The complainant became unconscious after consuming juice given to him by accused. On regaining consciousness he mysteriously found himself at his home. His car no. DNA6200 and his money were missing. Complainant filed his complaint at police station I.P. Estate on 11.11.98 pursuant to which a case U/S 328/379 IPC was registered vide FIR No. 590/98. During the course of investigations Investigating Officer could neither apprehend the accused nor he could recover the stolen Cont...
3car and on 17.02.99 an untraced report was filed in the case.
2. On 22.03.99 information was received from P.S. Hari Nagar about recovery of stolen car no. DNA 6200 from possession of the accused and arrest of the accused pursuant to registration of case FIR 216/99 under section 411 IPC at police station Hari Nagar.
3. On this information investigations in the present case were reopened. Investigations were assigned to SI Jeet Singh who interrogated and arrested the accused Krishan Kant in the present case.
4. After completing investigations charge sheet was filed against the accused for offences u/s 411/379 IPC in the Court of concerned MM.
5. On 11.05.01 a charge u/s 379 IPC was framed against the accused. An alternative charge u/s 411 IPC was also made out against accused for which a separate charge was framed. The accused did not plead guilty to charges so framed and claimed trial.
6. Prosecution was then called upon to examine its witnesses. Complainant Tek Chand was examined as Cont...
4PW-2 on 28.08.06 and from facts stated by the witness during his deposition, the Ld. Metropolitan Magtistrate, took cognizance u/s 328 IPC against the accused under provision of section 323 Cr. P.C. As offence under section 328 IPC was exclusively triable by the court of sessions, the case came to be transferred for further trial to sessions Court on 09.10.06.
7. A charge u/s 328/34 IPC was framed against accused on 26.10.06. The accused did not plead guilty and claimed trial.
8. The prosecution has examined eight witnesses in all inorder to prove its case against the accused and these witnesses include PW-1, Tek Chand; PW-2, HC Yashwant Kumar; PW-3, ASI Senser Pal Singh; PW-4, SI Jeet Singh; PW-5, Inspector Tarkeshwar; PW-6, M. S. Rohilla , PW-7, Rajiv Sachdeva and PW8, HC Surjeet Singh.
9. After conclusion of prosecution evidence statement of accused was recorded. The accused termed all the incriminating evidence against him to be incorrect and declined to lead any evidence in his defence.
10. Final arguments have been addressed by Ld. Addl.
P.P. as well as Sh. Rajan Bhatia, Ld. Counsel for accused.
Cont...
5Ld. Addl. P.P. has contended that prosecution has succeeded in proving its case against the accused and that PW-1 Tek Chand has fully supported the case of the prosecution and identified accused as person who had hired his car and services on the fateful day and had later committed theft of his car by administering intoxicant/poison/ stupefying substance/unwholesome drug mixed in juice It is further contended that recovery of car from the possession of accused corroborates the testimony of complainant and proves the guilt of accused beyond reasonable doubt.
11. Ld. Counsel for accused, on the other hand, has contended that the car in question belonged to accused himself and there was no question of his committing theft of the said car and that prosecution has failed to establish the alleged recovery of car from the possession of accused. Lastly it is contended that testimony of complainant cannot be relied upon in absence of medical evidence to support the allegations of administration of intoxicant/poison/ stupefying substance/unwholesome drug by the accused.
12. I have heard Ld. Addl. P.P. As well as Ld. Counsel for accused and also perused the record carefully.
13. The accused in the present case has been charged for having committed offence U/S 328 IPC. Elements that are Cont...
6essential to constitute an offence U/S 328 IPC are:-
(i) Some person or persons should administer or cause to be taken by any person any poison or stupefying, intoxicating or unwholesome drug, or other thing; and
(ii) The intention of the person or persons mentioned in
(i) should be to cause hurt to the person concerned, or should be to commit or to facilitate commission of an offence or there should be knowledge on the part of the person or persons that the result of his act was likely to cause hurt to the concerned persons.
Both these elements should exist conjunctively, then and then alone would the offence be complete and the person or persons, as the case may be, would be guilty of the offence contained in this Section.
Let us examine whether in the present case the prosecution, from the testimony of its witnesses and documents placed on record, has been able to bring out the essential ingredients required to constitute an offence U/S 328 IPC and successfully proved commission of an offence U/S 328 IPC by the accused.
14. In order to prove its case prosecution has examined complainant Tek Chand as PW-1. He deposed that on 07.11.98 his car bearing no. DNA6200, Maruti 800 was Cont...
7hired by accused, who was duly identified by PW-1 before court, from Ballabhgarh to Hans Bhawan, Delhi. The car was being driven by PW-1. After reaching Hans Bhawan accused got down from the car and brought two glasses of juice out of which he offered one glass of juice to PW-1. The juice was consumed by PW-1. Accused then asked PW-1 to drive the car to road near Ganda Nala as he wanted to pickup one person from there. When they reached near the wall of Hans Bhawan, accused told PW-1 to remain in the car and went away to bring another person. Till that time PW-1 was conscious, however, thereafter he became unconscious. When PW-1 regained consciousness, he found himself at Ballabhgarh at his house but his car was no where. On 11.11.98 PW-1 returned to Delhi to lodge his complaint at ITO police station. The PW-1 proved copy of FIR, which had been directly scribed on his statement, as Ex.PW-1/A and identified his signatures there upon at point A. He further deposed that he was the registered owner of the car and had purchased the same from one Anil Kumar. He proved the photocopy of RC, which was in the name of Anil Kumar, as mark 'A' and stated that sale letter and insurance papers of car, which were in the name of PW-1, were lying in the car and were not found in the car when the Cont...
8car was recovered. He further stated that he had pointed out place of theft to the Investigating Officer and had taken his car on superdari from court. The Supardarinama, vide which PW-1 had taken his car on superdari by the order of court, was proved as Ex.PW-1/B. The PW-1 also stated that the car was now "unfit for road" and produced its photographs which were exhibited as Ex.PW-1/C1-3.
15. This witness, though identified the accused, was declared hostile by Ld Addl. PP on the point of identification of the accused on 07.04.99 when the witness had come to court to take his car on superdari. Although the witness admitted having come to Tis Hazari Court on 07.04.99 to take his car on superdari and having identified the accused Krishan Kant to be the same person who had hired his car and given him juice on 07.11.98 because of which PW-1 became unconscious, he denied that he had been asked by the Investigating Officer to identify the accused on the same day or that his statement in this regard had been recorded by the Investigating Officer. During his cross examination, PW-1 stated that he was in business of giving car on hire since 1994-95 and was attached to Nardai Pradhan Taxi Stand. He also stated that no record was being maintained at said Taxi Stand of the persons who hired the taxi or the Cont...
9destination for which it was hired and that a part of settled amount was given to Pradhan but that amount was to cover the money which was being paid to the police. He further stated that he had only one car which he was using as Taxi and its number was DNA6200. During his further cross examination, PW-1 stated that his taxi had been booked from Ballabhgarh itself at about 1.00 noon for Rs.500/- and that booking had been done in presence of some other drivers of taxi stand. PW-1 also stated that he was not having anything in writing to show that on 07.11.98 his taxi had come to Delhi nor any such record was asked for by the Investigating Officer during the course of investigations. During his further cross examination PW-1 stated that they had left Ballabhgarh at about 1.00 noon and had reached ITO at about 3 pm and that on reaching Hans Bhawan he had parked his vehicle in an empty space near Nala near Hans Bhawan and kept sitting inside taxi. At that time there was one small boy with juice rehdi at that place and accused had purchased juice which was being sold by that small boy and that he had told Investigating Officer about the rehdi of the juice as also the place where he had parked his taxi. He further stated that accused had called him from taxi to give him a glass of juice and that it had taken accused 10 to 15 Cont...
10minutes to get out of car and to get juice prepared and to call him. He further stated that after they had consumed juice accused told him to take taxi near Hans Bhawan from rear side and made PW-1 stop the taxi near a Dhaba and told PW-1 that he was going to call one person. He also stated that till the time accused was with him in taxi he was i.e. PW-1, was completely conscious and that he did not meet accused again after he got down from taxi near Dhaba and that he had become unconscious thereafter. PW-1 was further cross examined by Ld Defence Counsel and stated that he had regained consciousness on next day at his home in Ballabhgarh and at that time his mother and wife were present at home and that he had asked his mother and wife how he had reached home in Ballabhgarh and was told by them that he was standing outside the house and was vomiting. He stated that he did not know how he had reached Ballabhgarh and that on regaining consciousness at home, he had checked his purse and found that whatever money he had been carrying in his purse was missing. He also stated that his mother and wife had consulted a local doctor and that there was only one doctor available in the village and that they had taken him to hospital on next date and that police did not inquire anything from his mother and Cont...
11wife and that after regaining consciousness he had gone to taxi stand and narrated about the incident there. He further stated that he had gone to police station at Ballabhgarh on 08.11.98 to lodge an FIR but was told to go to police station where the incident had occurred and that he then came to Delhi alongwith his friend Raju but his complaint was not lodged and he was told to to to police station at Ballabhgarh. The PW-1 again went to police station at ITO on 11.11.98, through some known persons, and only then his complaint was taken on 11.11.98. He also stated that he had gone to father of the small boy who had sold the juice and had been told that accused had mixed something from a "puria" in the juice and that he had told the Investigating Officer about having met the father of juice seller though the fact about "puria" was not told to the Investigating Officer. PW-1 stated that he had gone to place of incident with the police only once and that Investigating Officer had not recorded statement of juicewala or dhabewala in his presence and that Investigating Officer had not got PW-1 medically examined nor PW-1 was having any record of medical examination. He further stated that he had brought car no. DNA6200 from Anil about 5/6 months prior to the incident for Rs.65,000/- and that Anil had given him one sale letter Cont...
12and an affidavit at the time of sale of the car and that the receipt and RC were in the car when it was stolen. He denied that accused had not hired any taxi from him for Hans Bhawan or that he had not given PW-1 any juice to drink. He also denied that accused was the actual owner of vehicle no. DNA6200 having purchased the same from one Rajpal.
16. There is no other eye witness to the incident and the prosecution in order to complete the chain of events and ultimate recovery of car from the possession of the accused has relied upon testimony of one Rajiv Sachdeva, who was examined as PW-7. The PW-7 deposed that in the year 1999 accused Krishan Kant, who was duly identified by PW-7 before the Court, had come to him to sell car no. DNA6200. The accused wanted to sell car for Rs.1 lac, which as per PW-7 was correct assessment of the value of the car, as PW- 7 was in the business of sale and purchase of the cars. The PW-7 further deposed that he wanted to bargain with the accused and told him he would pay Rs.70,000/- for car to which accused agreed readily. PW-7 was surprised and in order to test the accused he bargained with him for sale of car for Rs.40,000/- and then for Rs,25,000/-, which was also agreed to by the accused. The PW-7 got suspicious as Cont...
13to why accused wanted to sell car worth Rs.1 lac for Rs,25,000/- and called police at No. 100 and requested them to verify about the car. The accused was taken away by local police which had been called by the PCR officials to the spot. After 3/4 hours PW-7 received a call from local police station informing him that car was a stolen one and was also requested to join proceedings. The PW-7 joined investigations with the police. The seizure memo of the car. Ex.PW-2/A, and personal search memo of accused ,Ex.PW- 2/F, were put to witness who identified his signatures there upon. The witness was shown photographs of Maruti Car and identified the same to be of the car which accused had come to sell. The photographs were exhibited as Ex.P-1 to P3 (also exhibited as Ex.PW-1/C1-3).
17. During his cross examination PW-7 termed it correct that accused had told him that he had purchased the car but denied that he had been told that car had been purchased from one Rajpal who was studying with the accused or that accused had told him that he was a medical student or that he was in dire need of money to pay for his fees as his father was away to Bhopal and had told him to raise money for fees by selling the car or that father of accused had assured him that he would buy him a new car Cont...
14after he completed his studies. The PW-7 denied that he had taken advantage of the situation of the accused and asked him to pay a sum of Rs.25,000/- or that he had made accused sit in his gypsy, make Sieara, and had taken him around for a ride for sometime and when accused failed to pay a sum of Rs.25,000/- he got accused falsely implicated in the present case. He denied that accused had been detained by him in his office for 2/3 hours or that he had refused to allow accused to go home to bring money from his mother or sister or that another friend of PW-7 was also present at that time with whom PW-7 had discussion before calling the police. He denied that value of the Maruti Car was only Rs.68,000/- and not Rs. 1 lac or that the accused was not aware that Maruti Car was a stolen one.
18. PW-2, HC Yashwant Kumar, is the Investigating Officer of case FIR 216/99 registered at police station Hari Nagar, U/S 411 IPC, pursuant to call received from PW-7. He deposed regarding the investigations carried by him and the documents prepared by him during the course of investigations of case FIR 216/99. He also deposed that on 24.03.99 on receiving DD No. 16 he reached in front of Ajanta Cinema where one person was found surrounded by public persons alongwith car bearing no. DNA6200. On Cont...
15inquiry name of said person was revealed to be Krishan Kant i.e. the accused who disclosed that he had stolen the vehicle from near ITO with his accomplice Rajpal. The PW-1 prepared rukka Ex.PW-2/C and got case FIR registered through Ct. Surjeet. The car bearing no. DNA6200 was seized by PW-2 vide Ex.PW-2/A and the disclosure statement of accused was recorded vide Ex.PW-2/B. He also proved the site plan as Ex.PW-2/D and arrest and personal search memos of the accused as Ex.PW-2/E and 2/F respectively. The PW-2 further stated that he had recorded statement of PWs Rajiv Kumar Sachdeva and Ct. Surjeet vide Ex.PW-2/G & H (inadvertently mentioned as Ex. G & H). He also stated that as the case was clubbed with case FIR 590/98, registered at police station I.P. Estate, accused Krishan Kant was got discharged in case FIR 216/99, registered at police station Hari Nagar. The photographs of the case property, which was unfit for road, were shown to the witness. The identity of case property even otherwise was not disputed by Ld Counsel for accused as has been recorded during the court proceedings on 19.12.08 in the testimony of PW-2, and the photographs were exhibited as Ex.P-1 to P-3.
19. During his cross examination PW-2 stated that he was not knowing Sh. Rajeev Kumar Sachdeva from prior to Cont...
16incident and that he had tried to join other persons present at the spot in investigations but none had agreed. He also stated that he had found Rajeev Kumar as well as accused sitting just outside the shop of Rajeev Kumar and that he had made inquiry from Rajeev Kumar and had interrogated the accused as soon as he reached the spot. He also stated that Rajeev Kumar had refused to give his statement for the purposes of recording FIR and hence he had to record his statement U/S 161 Cr.P.C. He was unable to tell the exact time for which he had remained at the spot for investigations but stated that disclosure statement of accused had been recorded at the spot and that Ct. Surjeet was present at that time. He also stated that he did not inquire from the accused about the documents of ownership of the car and had not searched inside the car for ownership papers. He denied that Sh. Rajeev Kumar had handed over documents of ownership of vehicle to him He admitted that had he checked the vehicle, he would have found its RC, insurance papers as well as form 29 & 30 itself. He, however, clarified that he had gone to Hari Nagar, to check the address mentioned in RC, but found that neither the owner as mentioned in RC lived there nor the car belonged to him. He denied that he had falsely implicated the accused in the Cont...
17case as deal for sale of car failed to materialized or that for this reason he had omitted from mentioning about the sale documents and other documents of car in his investigations.
20. PW-8, HC Surjeet Singh, had joined investigations of the case FIR 216/99 with PW-2 and deposed on the lines of PW-2. He also proved his signatures on arrest memo Ex.PW- 2/E, personal search memo Ex.PW-2/F and disclosure statement Ex.PW-2/B. During his cross examination by Ld Defence Counsel he stated that he was not knowing Rajeev Sachdeva prior to the incident and that all the documents pertaining to recovery of car i.e. the seizure memo, arrest memo and other documents had been prepared by the Investigating Officer at the spot in his presence. He also stated that Investigating Officer had inquired from accused about the documents of the vehicle and one RC had been found during search of car though the same was not seized by the Investigating Officer. He clarified that form 29 & form 30 were not found during the search of the car.
21. Besides the above noted witnesses, prosecution has also examined ASI Sensarpal, DO who had recorded the case FIR in the present case, as PW-3. He proved carbon copy of FIR as Ex.PW-1/A in accordance with law and stated that after registration of the case further investigations oe the Cont...
18case were handed over to SI Tarkeshwar.
22. The very first Investigating Officer of the case, Insp. Tarkeshwar was examined as PW-5. This witness was handed over investigations of the case pursuant to registration of FIR on 11.11.98. He deposed that during the course of investigations he had gone alongwith complainant Tek Chand to the spot and prepared site plan Ex.PW-5/A. He further deposed that during the course of investigations he tried to search for stolen vehicle as well as offender but could not trace them out. He got All India a WT message flashed for the stolen vehicle and also collected photocopy of RC of the vehicle from complainant. He further deposed that as there was no trace of the accused or the stolen vehicle, he prepared the challan and filed it in the court as untraced. This witness has not been cross examined on behalf of accused.
23. The investigations of the case, after accused had been arrested in case FIR 216/99, were taken up by SI Jeet Singh who has been examined as PW-4. This witness deposed that on 22.03.99 the investigations of the case were entrusted to him. He inspected the file and also received DD No. 12A, lodged by officials of police station Hari Nagar, regarding recovery of car bearing no. DNA6200 and production of Cont...
19accused at Tis Hazari Courts. The PW-4 went to Tis Hazari Courts and formally arrested the accused with the permission of concerned court and recorded his disclosure statement ,Ex.PW-4/A, during the course of interrogation . He obtained relevant documents of case FIR 216/99 from the concerned Investigating Officer and also got the case property transferred to police station I.P. Estate. Later PW-4 moved an application for TIP of the accused which was marked to Sh. M.S. Rohilla, then Ld MM, Delhi, however, accused refused to participate in TIP proceedings on 05.04.99. He further deposed that during the course of investigations he collected the proof of the vehicle from Tek Chand who stated that he had purchased the said car from one Anil Yadav and he collected copy of affidavit of Anil Yadav from complainant. The case property, by way of photographs of the car, were shown to the witness who identified the same as Ex.P-1 (also exhibited as Ex.PW-1/C1- 3 and Ex.P-1 to P-3).
24. During his cross examination PW-4 denied that he had got some papers signed from the accused without disclosing about their contents. He also denied that he had obtained photographs of accused from the Investigating Officer of case FIR No. 216/99 and had shown them to Cont...
20witnesses before moving application for TIP of the accused in the court. He further stated that he had verified about the claim of the accused that he was the owner of vehicle in question but found that accused was not owner thereof and that ownership of complainant Tek Chand in respect of car no. DNA6200 had been verified by previous Investigating Officer Insp. Tarkeshwar. The PW-4 denied that accused had purchased car no. DNA6200 from one Rajpal or that accused had gone to sell vehicle to Rajiv Sachdeva as he was in dire need of money or that instead of helping the accused, Sh. Rajeev Sachdeva had taken advantage of his situation and had asked him to pay money and when accused failed to do so, a false case was got registered against the accused in connivance with Rajiv Sachdeva and the complainant.
25. Another witness examined by prosecution is Sh. M.S. Rohilla, who was working as MM at the relevant time and had conducted TIP proceedings in the present case. He stated that on 31.03.99 he received an application from concerned MM for TIP of the accused in case FIR 590/98 U/S 328/379 IPC, registered at police station I.P. Estate. The PW-6 made endorsement there upon vide Ex.PW-6/A and directed for arrangement of TIP on 05.04.99 at 2.30 PM at Central Jail No.2, Tihar. On 05.04.99, the PW-6 went to Cont...
21Central Jail No.2, at Tihar where accused was produced and identified by Chauhan Singh, Assistant Superintendent. The accused was duly warned that he was not bound to make any statement or to participate in the TIP and that in case of his refusal, such refusal may be read against him. Having so warned the accused, the PW-6 recorded his statement wherein accused refused to participate in the identification proceedings. PW-6 recorded the statement of accused and read it over to the accused who termed the same to be correct and appended his signatures at point X below the statement. The PW-6 proved the TIP proceedings recorded by him including the necessary certificate there under, as Ex.PW-6/B and proved his signatures thereupon at point A. He further stated that in view of the statement made by the accused the application for holding TIP, filed by Investigating Officer, was rejected vide endorsement Ex.PW-6/C.
26. After the prosecution had examined its witnesses the statement of accused was recorded and he was given an opportunity to prove his defence in detail and to examine witnesses, if any, in support of defence taken by him. No witness was examined in his defence by the accused through he reiterated his defence that he had purchased Maruti Car. bearing No DNA6200 from one Rajpal and had gone to sell Cont...
22the same as he needed money to pay for his examination fees. He also stated that there was dispute with Sh. Rajiv Sachdeva over the sale price of the car and that Sh. Rajeev Sachdeva had not only illegally confined him but had also threatened to get him implicated in a false case in the event accused failed to pay money. Accused was unable to give any money to Sh. Rajeev Sachdeva and he called the police and a false case was registered against accused in collusion of police with Sh. Rajeev Sachdeva. He stated that he neither knew Tek Chand nor had ever met him nor had administered any substance to him.
27. After having discussed the testimony of prosecution witnesses, in detail let us examine whether prosecution from testimony of its witnesses, more particularly from the testimony of the complainant, has been able to establish that accused had hired his taxi on 07.11.98 and whether the identification of accused by the complainant can be relied upon.
28. Coming to the issue of accused having hired complainant's taxi from Ballabhgarh to Hans Bhawan, Delhi on 07.11.98, the testimony of PW-1 is full of conviction. The complainant has clearly and unambiguously stated as to how his car bearing no. DNA6200, make Maruti 800 was Cont...
23taken on hire by the accused on 07.11.98. The witness has not only withstood the test of cross examination but in response to questions put by Ld Defence Counsel has clarified about the name of the taxi stand from where the car had been hired, rental agreed upon, the manner in which he had traveled to destination at Hans Bhawan, Delhi alongwith accused, the conduct of accused after reaching Delhi and the manner in which noxious substance was administered to the complainant by the accused.
29. Though it is claimed by the accused that he had never met complainant or hired his car on 07.11.98 and that the complainant had got a false case registered against the accused in collusion with PW-7, Rajeev Sachdeva, such a defence does not inspire any confidence considering the time gap between the alleged recovery of the car no. DNA6200, which was recovered on 21.03.99, and the date on which complainant Tek Chand had filed his complaint, which is 11.11.98. As per accused himself, he had not know PW-7 Rajeev Sachdeva from before and had met him for the first time on 21.03.99. In these circumstances, it is difficult to comprehend how PW-7 could have colluded with PW-1 to get an anti dated FIR registered on 11.11.98, more than three months before he had even met the accused. Moreover, no Cont...
24suggestion has been put either to PW-1 or PW-7 that they had acted in collusion with each other.
30. Another contention raised by Ld Defence Counsel is that the car belonged to accused himself and that accused was a medical student and required money to pay his examination fee and had approached PW-7 to sell his car to raise money to pay his fees. Neither the complainant nor accused are first hand owners of car no. DNA6200, however, complainant has explained that he had purchased the car from one Anil Kumar and has produced photocopy of RC in name of Anil Kumar which has been marked as mark 'A'. Complainant has also produced photocopy of form 30 and an affidavit, purported to have been executed by said Anil Kumar, at the time of sale of the car in question to complainant, about 5-6 months prior to the incident. On the other hand, accused has not produced any document showing that car no. DNA6200 belonged to him. Even the documents which would reflect that he was a medical student and required money to pay his examination fee have not been placed on record. Rather his defence has been changing from time to time during the course of cross examination of prosecution witnesses. He has suggested to PW-1, during his cross examination recorded on 13.01.09, Cont...
25that he (accused) had purchased the car from one Rajpal. Contrary to this, accused has not given any specific suggestion to the PW-2, Investigating Officer for case FIR 216/99, as to the person from whom accused had purchased car bearing no. DNA6200 or the date or even the approximate date of purchase or the consideration paid, by accused to the owner of the maruti car bearing no. DNA6200. From further cross examination of PW-2 it is brought out that Investigating Officer had checked the address given on RC ,found inside the car on 21.03.99, and neither the owner as mentioned in RC lived at the given address nor the car belonged to him.
31. PW-4, SI Jeet Singh, who had conducted investigations in the case, pursuant to arrest of accused in case FIR 216/99, was also put questions about verification of the alleged claim of the accused as the owner of the car in queston and the same were answered in affirmative by the witness who stated that he had verified the claim and found that the accused was not the owner of vehicle in question. On the other hand, PW-5 Insp. Tarkeshwar, who was the initial Investigating Officer of case FIR 590/98, has not been cross examined at all to question about the genuineness of the complainant's claim of ownership of the vehicle in Cont...
26question. As far as PW-7 is concerned, during his cross examination he was put a suggestion in response to which PW-7 termed it incorrect that accused was not aware that Maruti Car was a stolen one.
32. Thus it is amply clear from the cross examination of witnesses, conducted on behalf of accused, that the accused has not been consistent in his defence. The accused does not deny that he was having possession of car no. DNA6200 on 21.03.99, when he had met PW-7 Rajeev Sachdeva. In these circumstances, it was necessary for him to explain how he came in possession of the said car and for this limited purpose the onus of proof shifted on to the accused who has failed to discharge the same.
33. Coming to the issue of identification of accused by complainant Tek Chand in the Court for the first time when he appeared to depose as PW-1, the attendant facts and circumstances which led to such an identification are required to be considered in detail. In the present case accused had refused to join TIP proceedings held on 05.04.99 inter alia on the ground that his photographs had been taken and some money had been demanded from him which he could not arrange for. Thereafter, it appears that Investigating Officer recorded a statement of complainant Cont...
27U/S 161 Cr.P.C. on 07.04.99 portraying that complainant had come to get his car released on superdari on said date and identified the accused who was being taken out from judicial lockup of Tis Hazari Court by the Investigating Officer of the case. The complainant himself denied that Investigating Officer had recorded his statement U/S 161 Cr.P.C on 07.04.99 or that he had been asked to identify the accused by the Investigating Officer. Complainant, however, identified the accused in the court, when his testimony recorded as PW-1 on 16.08.07, as the same person who had hired his car on 07.11.98 and had given him juice laced with some substance which made complainant unconscious, after sometime, while accused decamped with his car.
34. The necessity of holding an identification parade can only arise when the accused is not previously known to the witnesses. The whole idea of a TIP is that witness who claims to have seen the culprit at the time of occurrence are to identify him from midst of other persons without any aid or any other source. The test is done to check up on their veracity. In other words, the main object of holding TIP, during the investigation stage, is to test the memory of the witness based upon first impression and also to enable the prosecution to decide whether all or any of them could be Cont...
28cited as eye witnesses of the crime.
35. The normal rule is that testimony of a witness who does not know accused from before and identifies him for the first time in the court as a person who participated in commission of crime, without holding a previous identification parade, does not carry much weight. The substantive evidence is the statement of witness recorded in the court, but as a rule of prudence earlier identification proceedings are held in order to corroborate the testimony of a witness given in court as regards the identity of the accused who is not known to him from before. However, this normal rule can have no application in a case where an accused himself refuses to participate in TIP. It has been held in the case of Harbhajan Singh Vs. State of Jammu and Kashmir (1975) 4 SCC 480 that failure to hold TIP is not fatal where enough corroborative and conclusive evidence is present. It has been further held in the case of Munna Vs. State AIR 2003 SC 2805 that in a case where accused himself refuses to participate in TI Parade, identification of accused by witness for the first time in court can be relied upon.
36. No doubt that identification of accused for the first time in the court is from its nature a weak evidence, Cont...
29however, there are exceptions to this general rule which have again been brought out in judgment of Mahabir Vs. State of Delhi, AIR 2008 SC 2343. The relevant observations are that as a general rule the substantive evidence of a witness is the statement made in the court. The evidence of mere identification of the accused for the first time is from its nature inherently of a weak nature. This rule of prudence, however, is subject to exceptions when for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parade belongs to the stage of investigation and there is no provision in the code which obliges the investigating agency to hold or confers a right upon the accused to claim a TIP. They do not constitute substantive evidence and these parades are essentially governed by section 162 of the Code. Failure to hold a TIP would not make inadmissible the evidence of identification in the Court. In appropriate cases court may accept evidence of identification even without insisting on corroboration.
37. In light of the settled principle of law which emerges from reading of the aforesaid judgments, it can be safely Cont...
30concluded that accused cannot seek any benefit from his identification by the complainant for the first time in the court when the accused himself, in the first instance, had refused to join TIP proceedings. It is worthwhile to note that it is not the case where complainant had a fleeting glance of the accused but had traveled distance of several kilometers in the same car with the accused from Ballabhgarh to Hans Bhawan, Delhi and was with the accused for sufficiently long time and had ample opportunity not only to see the accused and recognize his features but would also have had occasion to interact with the accused, who was a passenger, in the vehicle driven by the complainant. Not only this since the complainant alleges that he had been administered something mixed in juice by the accused and deprived of his car by the accused, complainant had every reason not to forget the accused. In these circumstances, even if accused is given benefit of having a valid reason to refuse to participate in TIP proceedings held on 05.04.99 and failure on the part of the complainant to support the case of prosecution, to the extent making a statement dated 07.04.99, identifying the accused, to the Investigating Officer, even then the testimony of PW-1 as regards the identification of the accused in court for the first time on Cont...
3116.08.07 can be relied upon.
38. Coming next to the issue whether accused had administered some noxious substance to the complainant before committing theft of complainant's car, again the only witness put forth by prosecution is complainant Tek Chand himself. As observed herein above, the testimony of PW-1 is worth credence and he has withstood the test of cross examination successfully for any doubts to be created that it was some person other than the accused responsible for administering noxious substance and stealing his car.
39. Another contention raised by Ld Defence Counsel is that in the absence of any medical evidence to support the testimony of PW-1, the prosecution has failed in proving its charges U/S 328 IPC against the accused. The offence U/S 328 IPC is complete even if no hurt is caused to the person to whom the poison or any other stupefying, intoxicating or unwholesome drug is administered. Section 328 is merely an extension of provisions of Section 324, however, unlike Section 324 mere administration of poison is sufficient to bring offender to justice. Admittedly in the present case complainant has not been subjected to medical examination by Investigating Officer nor any effort was made by the Investigating Officer to examine concerned doctor witnesses, Cont...
32who as per complainant, had treated him at his village and in the hospital. Neither the wife nor mother of complainant have been examined by the Investigating Officer to lend any support to testimony of PW-1. Even the statement of juicewala, from whose rehdi juice was purchased and dhabawala, near whose dhaba PW-1 had stopped his car before loosing consciousness ,has not been recorded by the Investigating Officer. No doubt in the present case there have been serious and glaring lapses on the part of the Investigating Officer, which raise doubts about the intentions of the Investigating Officer to take the investigations to there logical end,but the question which arises for consideration is whether the lapses on the part of Investigating Officer ,in carrying out investigations of the case, would be of an aid to the accused rather than complainant himself who has withstood the pressure and suffering of prolonged trial to depose fearlessly and convincingly against the accused.
40. The mandate of judicial decisions is that the omissions and serious lapses on the part of Investigating Officer would not effect the prosecution unless some prejudice is shown to have been caused to the accused. In case of Karnel Singh Vs. State of MP (1995) 5 SCC 518 conviction of accused U/S 376 IPC was challenged before Cont...
33Hon'ble Supreme Court and one of the grounds of challenge was defective investigations. The Investigating Officer of the case had not only failed to record statement of two material witnesses but had also drawn up a defective seizure memo. It was held in this case that in cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective.
41. In another case namely Baleshwar Mandal Vs. State of Bihar, 1997 AIR SC 3471, omission on the part of Investigating Officer in not sending the earth seized from place of occurrence for chemical examination and not entering the time of recording of statements of witnesses in diary was held not to have adversely effected the case of prosecution. The consistent testimony of eye witnesses was found to be trustworthy and sufficient to uphold the conviction of accused U/S 302 IPC notwithstanding the lapses on the part of the Investigating Officer.
42. The aspect of lapse on the part of prosecution also came up before Hon'ble Supreme Court in case of Sukhdev Yadav Vs. State of Bihar AIR (2001) SC 3678. In this case Cont...
34conviction of accused U/S 302 IPC and sentence of imprisonment for life to the appellants was challenged. The Hon'ble Supreme Court emphasized that the issue of lapse has to be considered from the point of view of credibility of witnesses and in the event of there being a credible evidence on record, a lapse pertaining to non production of seizure list does not really effect the prosecution case in any way- the issue has to be dealt with from the point of view of prejudice to the accused.
43. In said case the court referred to its earlier judgment in case of Shiv Nath Singh and Another Vs. State of UP, 1994 (1) RCR (Crl.) 714 SC and held that True, as noticed above there are lapses, but the question that arises for consideration is whether any prejudice has been caused by reason of such a lapse, if the answer thereto is in the affirmative obviously it will have a serious impact on to the trial but if in the event however, it is on the negative, no prejudice can be said to have been caused and correspondingly question of the trial being vitiated would not arise. The eye witnesses account as available on record cannot but be termed to be trustworthy and by reason therefor, the lapses stand over-shadowed by the testimony of the eye-witnesses.
Cont...
3544. Let us see whether in absence of medical evidence having been collected and placed on record and non examination of mother and wife of complainant as well as other witnesses by the Investigating Officer has caused any prejudice to the accused in the present case.
45. The necessary ingredients required to be proved by prosecution in order to fulfill requirements of Section 328 IPC have already been mentioned in details in forgoing paragraphs. The provisions of section 328 IPC were also discussed at length in the case of Madhukar Damu Patil Vs. State of Maharashtra, 1996 CRI.L.J. 1062. The matter for consideration before the court was challenge to conviction of appellant U/S 328/34 IPC. In the said case a simple, innocent lady, aged about 50 years, was administered some stupefying, intoxicating or unwholesome drug or any other thing mixed in sugarcane juice, by the accused, in furtherance of his common intention with his co-accused, in a planned and calculated manner in a public place. Thereafter, ornaments which the lady was wearing were stolen by the accused persons. One of the grounds of challenge which came up for consideration before the court was whether offence committed by the appellant would not fall in ambit of section 328 IPC because the prosecution had Cont...
36failed to adduce evidence to the effect that any poison was administered by appellant or his companion. After considering the statement of witnesses, the court observed that In the instant case, it appears from the statement of the informant, that some stupefying or intoxicating or unwholesome drug or some other thing was given to her with the intention to commit theft of her ornaments by Ravindra Patil in furtherance of common intention of the appellant and, therefore, an offence under section 328 IPC read with Section 34 IPC is made out against the appellant.
46. In this case itself issue of identification of the accused for the first time in the court also came up before the court. The identification of accused for the first time in the court was upheld considering that victim had plenty of time to recognize the accused more so as incident of removing gold ornaments from neck had taken place during broad day light. The victim had been with the accused for a long time to be able to recognize his features.
47. In the present case also, from the testimony of PW-1, it is clearly brought out that accused had administered some substance mixed in fruit juice to him as a result of which PW-1 lost his consciousness and the accused was able to commit theft of the car belonging to complainant.
Cont...
37Notwithstanding lapses on the part of Investigating Officer to collect crucial evidence to link the accused with the offence, under section 328 IPC, the testimony of PW-1 by itself is sufficient to prove offence U/S 328 IPC against the accused. As is clearly reflected from above discussed case law and provisions of section 328 IPC, the essential requirement of Section 328 IPC is that some stupefying or intoxicating or unwholesome drug or something should be administered to the victim and this has been established from testimony of PW-1. Thus even otherwise no prejudice has been caused to the accused by failure/lapse/omission on the part of Investigating Officer to collect medical evidence and to examine other link witnesses whose examination could have aided the prosecution in making its case against accused foolproof.
48. It is true that testimony of PW-1 is not supported by any independent eye witness or public witness, however, Section 134 of the Indian Evidence Act clearly finds mention that no particular number of witnesses shall, in any case, be required for the proof of any fact. Even the sole testimony of victim is sufficient to uphold guilt of an accused. In the present case testimony of PW-1 is duly corroborated by that of PW-7, PW-2 and PW-8, who are witnesses to recovery for Cont...
38stolen car bearing no. DNA6200 from possession of accused on 21.03.99. There are few discrepancies in testimonies of PW-7, PW-2 and PW-8 but they are natural discrepancies which do not effect the case materially. It is well settled law that there are bound to be some discrepancies in testimony of witnesses in each and every case which should not weigh with the court so long as it does not materially effect the prosecution case. As far as PW-1 is concerned, Ld Defence Counsel could not point out to any such discrepancy which would make the court disbelieve the witness. Even though PW-1 was partly hostile on the point of identification of the witness in the court on 07.04.99, it would not make court discard his testimony in toto. I am supported in my view by judgment in the case of Bhe Ram Vs. State of Haryana AIR 1980 SC 957 wherein it was held that"Falsus in uno falsus in omnibus" does not apply to criminal trials and it is the duty of the court to separate the grain from the chaff instead of rejecting the prosecution case on general grounds. This principle of law has again been upheld in the case of Krishna Mochi Vs. State of Bihar AIR 2002 SC 1965. In this case the Hon'ble Supreme Court held that in a criminal trial credible testimony of even a solitary witness can form basis of conviction.
Cont...
3949. Considering the totality of facts and circumstances and detailed discussion of evidence and the case law, in the forgoing paragraphs, I am of the opinion that the prosecution has successfully proved its case U/S 328 IPC against the accused. Accused is accordingly convicted of offence U/S 328 IPC. Now to come up for hearing on the point of sentence on 24.03.09.
Announced in the Open Court (ILLA RAWAT)
On 21st day of March, 2009 ASJ (FTC) CENTRAL:DELHI
Cont...