Delhi District Court
State vs Philip Alias Vicky And Anr on 31 July, 2024
IN THE COURT OF MS. APARNA SWAMI, ASJ-07,
PATIALA HOUSE COURT, NEW DELHI DISTRICT, NEW
DELHI
Unique Case No. DLND01-012823-2019
Sessions Case No. : 340/2019
FIR No. : 46/2019
Police Station : Connaught Place
a) Name of the Complainant : Sudhir Kapoor
S/o Late Chaman Lal
Kapoor
R/o PP 16, Maurya
Enclave Pitampura, Delhi.
b) Name, Parentage & address
of the accused : 1) Philip @ Vicky
S/o Sh. Fransis
R/o NC-112, Indra Vikas
Colony, Near Nirankari
Colony, Mukherjee Nagar,
Delhi.
2) Suraj
S/o Sh. Ram Shankar
R/o BR-105, Indra Vikas
Colony, Near Nirankari
Colony, Mukherjee Nagar,
Delhi.
c) Offences complained of : Section 328, 379, 411 read
with Section 34 of Indian
Penal Code.
d) The plea of the accused persons : Pleaded not guilty and
claimed trial.
Digitally
signed by
Aparna
Aparna Swami
Swami Date:
2024.07.31
17:31:31
+0530
FIR No.46/19 PS Connaught Place
State Vs. Philip @ Vicky & Ors. Page 1 of 20
Date of commission of offence 11.05.2019
Date of institution of case 15.07.2019
Date of committal to Sessions Court 18.07.2019
Date on which judgment is reserved 26.04.2024
Date of Judgment 31.07.2024
Decision of Judgment Accused Philip @ Vicky stands
convicted under Section 411 IPC and
stands acquitted under Section 328
and 379 of IPC. Accused Suraj
stands acquitted under Section 328
and 379 of IPC.
1.The case of prosecution as unfolded by the report under Section 173 of the Code of Criminal Procedure, 1973 (in short 'CrPC') is as under:
On the complaint of Mr. Sudhir Kapoor S/o Late Mr. Chaman Kapoor, present FIR was registered in Police Station- Connaught Place under Sections 328, 379, 411 read with Section 34 of Indian Penal Code (in short 'IPC'). It is alleged by the complainant that on 11.05.2019 at around 11:15 am, he came by a DTC bus to Hanuman Mandir, Connaught Place for darshan.
After darshan, at around 2:15 pm, he reached at Shivaji Stadium Bus Terminal and boarded bus bearing no. 990. In some time, one boy came and sat adjacent to him. Later, this boy offered him a frooti from his black bag, for which complainant initially refused as being a diabetic, but on insistence of that boy, complainant consumed the same. It is further submitted by the complainant that when he reached near Karol Bagh Metro Station he became unconscious and on gaining consciousness he found himself admitted in Maharaja Agrasen Hospital, Punjabi Bagh. Thereafter, complainant realized that his two gold rings, one Digitally signed by Aparna Aparna Swami Swami Date:
2024.07.31 17:31:39 FIR No.46/19 PS Connaught Place +0530 State Vs. Philip @ Vicky & Ors. Page 2 of 20 plastic grey colour bag having his mobile phone, DTC bus pass, metro card, credit card and house keys were found to be missing.
2. On 14.05.2019, police came in the hospital and inquired about the incident, to which complainant showed his suspicion on the boy who sat adjacent to his seat in the bus and offered him frooti. On this statement, this FIR was registered under Sections 328, 379 and 411 IPC and the investigation commenced.
3. On 16.05.2019, ASI Arun Pal alongwith Constable Himanshu were on patrolling duty, where they got information from a secret informer that some persons who commit robbery after giving intoxicated material to the people are present at Shivaji Stadium. On pointing out of the secret informer, one person wearing green colour t-shirt having one bag on his shoulder along with another tall person was identified. On seeing the police, they both started running. They were chased and apprehended. On interrogation of these persons, they accepted that they commit theft after giving intoxicated material in frooti to the victims. This information was forwarded to Police Station- Connaught Place. On receipt of this information, ASI Jaipal reached at the spot. The bag of the apprehended boys was seized, which were found having 4-5 frooti packs, one empty strip of Antivyam tablet and one blade. They further disclosed to the police that they used to cut the pack of frooti with the blade and after mixing the tablet in the frooti they used to fix the cut with the help of fevistick. Further, the apprehended boys pointed towards two packs of frooti and informed that tablets have Digitally signed by Aparna Aparna Swami Date:
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already been mixed in it. The identity of apprehended persons were revealed as Philip @ Vicky and Suraj. Thereafter, they were formally arrested by the police in this FIR. One day police custody remand of accused Philip @ Vicky was taken, whereby he got recovered gold rings from under the pillow in his room and the same was duly seized by the police.
4. After completion of the investigation, the chargesheet was filed before the court of Ld. Magistrate. On 15.07.2019, the chargesheet was committed to the Court of Sessions. After hearing the submissions on point of charge, on 09.10.2019 charges for the offences punishable under Section 328 and 379 IPC were framed on both the accused persons i.e. Philip @ Vicky and Suraj. Additionally, charge for the offence punishable under Section 411 IPC was framed on accused Philip @ Vicky.
5. In order to substantiate its case, prosecution examined eight witnesses. On culmination of prosecution evidence, statement under Section 313 CrPC of accused persons were recorded, in which they denied all the incriminating evidence put by the prosecution against them. Accused persons opted to lead evidence in their defence. Accordingly, DW-1 Amar Nath Goel was examined and cross-examined by the State.
6. Before dealing with the law on the subject and the rival submissions from both the sides, it will be in the fitness of the case to narrate in brief the evidence adduced by the prosecution during the trial. Digitally signed by Aparna Aparna Swami Date:
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7. PW-1 Sudhir Kapoor: He is the complainant in the present case. He narrated the incident dated 11.05.2019. In his testimony This witness submitted that on 11.05.2019 at around 11:15 am he came to Hanuman Mandir, Connaught Place, New Delhi by a DTC bus for darshan. After the darshan, at about 12:15 pm, he reached at Shivaji Stadium Bus Terminal and boarded the bus of route No. 990. In some time, one boy came and sat adjacent to him. Later, this boy offered him frooti from his black colour bag, to this offer complainant initially refused as being a diabetic, but on insistence of that boy, complainant consumed the same. It is further deposed by the complainant that when he reached near Karol Bagh Metro Station he became unconscious and on gaining consciousness he found himself admitted in Maharaja Agrasen Hospital, Punjabi Bagh. Thereafter, he realized that his two gold rings, one plastic bag of grey colour having his mobile, DTC bus pass, metro card, debit and credit cards and house keys were missing.
This witness was cross-examined in detail by Ld. Counsel for accused persons.
8. PW-2 Sub-Inspector Surjan Singh: On 15.05.2019 from 12 midnight to 8:00 am in the morning, he was posted as Duty Officer in Police Station-Connaught Place. This witness deposed that at about 2:50 am, he received a Rukka sent by ASI Satish Kumar. On the basis of this Rukka, present FIR bearing no. 46/2019 under Sections 328, 379 read with Section 34 of IPC was registered. During his testimony, FIR was exhibited as Digitally signed by Aparna Aparna Swami Date:
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Ex.PW2/A and rukka was exhibited as Ex.PW2/B. Despite being given the opportunity, this witness was not cross-examined by Ld. Counsel for accused persons.
9. PW-3 Dr. Satish Kumar Singh: On 11.05.2019, he was posted on emergency duty at Dr. Baba Saheb Ambedkar Hospital (in short 'BSAH'), as Casualty Medical Officer (in short 'CMO'). This witness deposed that on 11.05.2019, one patient namely Sudhir Kapoor was brought in emergency and was examined by Junior Medical Officer Dr. Pratibha. It was further deposed that the patient himself informed that he had taken some unknown substance. The gastric lavage of the patient was taken and was given to the Investigating Officer through Duty Constable. The MLC bearing no.117541 of the patient Sudhir Kapoor was prepared and was exhibited as Ex.PW3/A. This witness was cross-examined by Ld. Counsel for accused persons.
10. PW-4 Assistant Sub-Inspector Arun Pal: On 16.05.2019, he was on emergency duty. He deposed that at around 5:45 to 5:50 pm, he was at Shivaji Stadium, there he got an information from one secret informer that some persons who commit robbery after giving intoxicated material are around Shivaji Stadium. On pointing out of the secret informer, two boys were chased and were apprehended. These boys during their interrogation admitted that they commit theft after administering intoxicated substance in frooti to the victims. On apprehension of these boys, the information was sent to the Police Station. The bag of the Digitally signed by Aparna Aparna Swami Date:
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apprehended boys was seized, which was found containing 4-5 packs of frooti, one empty strip of Antivyam tablet and one blade. It was further divulged by the apprehended boys that they used to cut the pack with blade and after mixing the tablet in the frooti they used to fix the cut with the help of fevistick. These boys further informed that two tetrapacks of frooti are containing tablets in it and other three packs are normal. The recovered material was seized and the boys were formally arrested and produced before the court. Later the identity of these apprehended persons were disclosed as Philip @ Vicky and Suraj. Thereafter, accused Suraj was sent to judicial custody and one day police custody remand of accused Philip @ Vicky was taken. This remand led to recovery of gold rings from his house.
This witness was cross-examined in detail.
11. PW-5 Sub-Inspector Jaipal Singh: On 16.05.2019, he was posted at Police Station-Connaught Place on emergency duty. He deposed that at about 6:05 pm, he received a DD No. 48B. On receiving the same, he reached at Shivaji Bus Terminal, where he met with ASI Arun Pal and Ct. Himanshu. This witness further deposed that one black bag was recovered from accused Suraj. On checking the bag, it was found having five packets of frooti, one blade, one empty packet of medicine and one feviquick. He further deposed that accused persons admitted their guilt and were arrested.
This witness was cross-examined by Ld. Counsel for accused persons.
Digitally
signed by
Aparna Aparna Swami
Date:
Swami 2024.07.31
17:32:14
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State Vs. Philip @ Vicky & Ors. Page 7 of 20
12. PW-6 Dr. Shweta Singh: She is the Junior Forensic Assistant Chemical Examiner, FSL, Rohini. This witness deposed that she received two parcels for examination. One parcel was having seal of 'Dr. BSAH', Casualty Government of Delhi, containing gastric lavage which is Ex.1. The other parcel was having seal of 'SK' containing five tetrapacks of frooti. These packets were marked A1 to A5. After the chemical analysis, it was found that Ex.A1 and A2 were containing drug lorazepam and other exhibits i.e. Ex.A3, A4 and A5 and Ex.1 (i.e. the gastric lavage) were not found having any other intoxicants, including the above stated drug in it.
This witness was not cross-examined by Ld. Counsel for accused persons.
13. PW-7 Head Constable Himanshu: He deposed that on 15.05.2019, he was posted as Constable at Police Station Connaught Place. At around 5:30 pm, he was handed over a Rukka in original and copy of FIR for further handing over the same to ASI Satish Kumar. This witness further deposed that on 16.05.2019, he was on patrolling duty at Shivaji Stadium Bus Terminal, where he met ASI Arun Pal and told that he has received an information from a secret informer that two boys are standing at the bus stand. It was further informed that these boys commit robbery after giving intoxicated substance to the public. Thereafter, this witness along with ASI Arun Pal went to the place and on pointing out of the secret informer, apprehended the accused persons. On apprehension of these accused persons, the bag was checked, which found containing five tetrapacks of Digitally signed by Aparna Aparna Swami Date: Swami 2024.07.31 17:32:19 FIR No.46/19 PS Connaught Place +0530 State Vs. Philip @ Vicky & Ors. Page 8 of 20 frooti, one feviquick, one blade and one empty strip of tablet. This witness deposed that both the accused persons when interrogated admitted their guilt. Thereafter, the recovered articles were seized and disclosure statement of accused persons were recorded.
This witness was cross-examined by the Ld. Counsel for accused persons.
14. PW-8 ASI Satish Kumar: He is the Investigating Officer of the present case. This witness deposed that on 11.05.2019 he was posted at Police Station- Connaught Place. On that day, by way of DD entry no. 20A, he received an information regarding admission of one Sudhir Kapoor in BSAH. On receipt of the same, this witness went to the hospital and collected the MLC of patient Sudhir Kapoor. In the MLC doctor had mentioned the alleged history of ingestion of unknown substance around half an hour ago. In the hospital, this witness came to know that the patient Sudhir Kapoor has been shifted to Maharaja Agrasen Hospital, Punjabi Bagh by his relatives. On reaching Maharaja Agrasen Hospital, the doctor stated that the patient was unfit for statement. Therefore, DD entry no. 20A was kept pending. On 12.05.2019, ASI Satish Kumar again visited Maharaja Agrasen Hospital and again the patient was found unfit for the statement. On 14.05.2019, doctor gave clearance for recording the statement of the patient, accordingly the statement of patient/ victim Sudhir Kapoor was recorded. After recording of the statement, this witness prepared Rukka and it was presented before the Duty Officer. Thereafter, this witness went to the spot for the purpose Digitally signed Aparna by Aparna Swami Swami 2024.07.31 Date:
FIR No.46/19 PS Connaught Place 17:32:26 +0530 State Vs. Philip @ Vicky & Ors. Page 9 of 20 of inspection and inquired about availability of any witness, but no witness to the incident was found. On 16.05.2019, an information was received at Police Station-Connaught Place regarding arrest of two persons in case FIR No. 46/2019 and E- FIR No.524/2019 under Section 328, 379 of IPC. On receipt of this information, accused persons namely Philip @ Vicky and Suraj were interrogated and were formally arrested in the present FIR bearing No. 46/2019. This witness further deposed that on 17.05.2019, both the accused persons were produced before the court concerned. At that time, accused Philip @ Vicky was in muffled face, but he refused to take part in the TIP proceedings.
Thereafter, one day police custody remand of accused Philip @ Vicky was taken and accused Suraj was sent to the judicial custody. It got further revealed in his testimony that during police custody, accused Philip @ Vicky took the police party to his rented accommodation at Dheerpur, Delhi, from where he got recovered two rings of yellow colour. These rings were sealed. Thereafter, judicial TIP of the case property was got conducted, in which the complainant identified his gold rings.
This witness was also cross-examined by Ld. Counsel for accused persons.
15. The basic thrust of argument of Ld. Counsel for accused persons is on the point that prosecution has not been able to establish its case with regard to Section 328 of IPC.
It is relevant here to reproduce Section 328 IPC, which reads as under:
"328. Causing hurt by means of poison, etc., with intent to commit an offence.- Whoever administers to or causes to Digitally signed by Aparna Aparna Swami Date:
FIR No.46/19 PS Connaught Place Swami 2024.07.31 17:32:32 +0530 State Vs. Philip @ Vicky & Ors. Page 10 of 20 be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
16. A perusal of aforesaid section would show that following allegations are essential to constitute an offence punishable under Section 328 of IPC:
(i) Some person or persons who administer or cause to be taken by any person any poison or stupefying, intoxicate 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 part of person or persons that the result of his act or their act likely to cause hurt to the concerned persons.
17. In the present case as per the prosecution, PW-1 Sudhir Kapoor is the victim of the incident. In his testimony PW-1 narrated that on 11.05.2019 at about 12:15 pm, when he boarded the bus of route No. 990 one boy came and sat adjacent to him. This witness further deposed that this boy offered him a frooti, which he reluctantly took and after reaching near to Karol Bagh Metro Station he became unconscious, later he gained consciousness in Maharaja Agrasen Hospital, Punjabi Bagh.
Digitally signedAparna by Aparna Swami FIR No.46/19 PS Connaught Place Swami 2024.07.31 Date:
17:32:41 +0530 State Vs. Philip @ Vicky & Ors. Page 11 of 20 Then, this witness came to know that his two gold rings, one plastic bag of grey colour having his mobile, DTC bus pass, metro card, debit and credit cards and house keys were missing. This witness identified the accused Philip @ Vicky in the court as the one who offered him a frooti. In the TIP proceedings of the ornaments, he identified his recovered gold rings. In his testimony, this witness categorically mentioned that he suspect the boy who gave him frooti for administering intoxicant substance and causing the loss.
This witness was cross-examined. In the cross examination this witness affirmed to the suggestion that he did not see the accused persons mixing anything in the tetrapack of frooti and had not seen accused persons stealing his articles. This witness further clarified in his cross-examination that though the incident was of 11.05.2019, he gained consciousness on 13.05.2019 and on 14.05.2019 his statement was recorded by the police.
18. The testimony of PW-1 Sudhir Kapoor is required to be read with the testimony of Medical Experts on record i.e. PW-3 Dr. Satish Kumar Singh and PW-6 Dr. Shweta Singh. In the evidence of PW-3, it has been divulged that patient Sudhir Kapoor himself informed the Junior Medical Officer Dr. Pratibha that he had taken some unknown substance. As per the testimony of this witness, gastric lavage was taken and was given to the Investigating Officer through duty constable.
19. PW-6 Dr. Shweta Singh further testified that she received two sealed parcels. One parcel was having seal of 'Dr. BSAH', Digitally signed Aparna by Aparna Swami Swami 2024.07.31 Date:
FIR No.46/19 PS Connaught Place 17:32:48 +0530 State Vs. Philip @ Vicky & Ors. Page 12 of 20 Casualty Government of Delhi, having gastric lavage Ex.1 and the other parcel was having seal of 'SK' containing five packs of frooti. Medical analysis of these parcels was done. Two of the tetrapacks of frooti were found containing drug lorazepam, other frooti packets as well as Ex.1 i.e. the gastric lavage was not found having any intoxicants.
20. It is argued by Ld. Defence Counsel that prosecution has failed to establish that accused persons administered the intoxicant and stupefying substance to the victim/ complainant which led to commission of the crime punishable under Section 328 of IPC. It was argued by Ld. Defence Counsel that as per the testimony of PW-1 he did not see accused Philip @ Vicky mixing anything in the tetrapack of frooti before offering the same to the victim. This evidence is further fortified by the evidence of PW-6 Dr. Shweta Singh, who deposed that she did not find any intoxicant in the gastric lavage samples of the victim. Thus, Ld. Counsel submits that in absence of medical evidence on record, the culpability of accused persons cannot be fixed.
21. In rebuttal, it is submitted by Ld. Additional Public Prosecutor for the State that victim/ complainant became unconscious on account of administration of some substance mixed in frooti by the accused persons. The medical examination is not required as the statement of victim is itself sufficient to prove the case.
22. In the background of above noted arguments, it is relevant Digitally signed by Aparna Aparna Swami Date: Swami 2024.07.31 FIR No.46/19 PS Connaught Place 17:32:54 +0530 State Vs. Philip @ Vicky & Ors. Page 13 of 20 here to discuss the law on the subject. In the case of Joseph Kurian Philip Jose Vs. State of Kerala, (1994) 6 SCC 535 , the Hon'ble Supreme Court of India while dealing with the question of proof of offence under Section 328 of IPC, has observed in paragraph 10 as under:
"......In order to prove offence under Section 328 the prosecution is required to prove that the substance in question was a poison, or any stupefying, intoxicating or unwholesome drug, etc., that the accused administered the substance to the complainant or caused the complainant to take such substance, that he did so with intent to cause hurt or knowing it to be likely that he would thereby cause hurt, or with the intention to commit or facilitate the commission of an offence. It is, therefore, essential for the prosecution to prove that the accused was directly responsible for administering poison etc. or causing it to be taken by any person, through another."
23. This court observes that the statement of the victim/ complainant Sudhir Kapoor is found to be uncorroborated by the medical evidence. PW-1 in his testimony has expressly stated that he did not see accused Philip @ Vicky mixing anything in the frooti. It has also come out in his testimony that he suspected accused Philip @ Vicky of administering some intoxicant on him leading to loss of his money, purse, cards, etc. However, the medical evidence on record of PW-6 categorically mentions that no intoxicants were found in Ex.1 i.e. the gastric lavage of victim/ complainant Sudhir Kapoor.
24. On the present aspect the scrutiny of testimony of prosecution witness PW-1 and MLC of victim, makes it clear that the culpability of accused persons cannot be fixed simply on the basis of testimony of victim, which is also not directly associating the accused persons with the commission of offence Aparna Digitally signed by Aparna Swami Date: 2024.07.31 FIR No.46/19 PS Connaught Place Swami 17:33:01 +0530 State Vs. Philip @ Vicky & Ors. Page 14 of 20 punishable under Section 328 of IPC. Thus, this fact becomes fatal to the version of prosecution in light of the decision of Hon'ble Apex Court in the case of Joseph Kurian Philip Jose (Supra).
25. Even in the case of Prashant Bharti Vs. State (NCT of Delhi), (2013) 9 SCC 293, the Hon'ble Apex Court quashed the charge under Section 328 IPC observing that allegations levied by the prosecutrix of having been administered some intoxicant in a cold drink could not be established by the cogent evidence. The relevant observation is read as under:
"23.9. Ninthly, as per the medical report recorded by the AIIMS dated 16.2.2007, the examination of the complainant did not evidence her having been poisoned. The instant allegation made by the complainant cannot now be established because even in the medical report dated 16.2.2007 it was observed that blood samples could not be sent for examination because of the intervening delay. For the same reason even the allegations levelled by the accused of having been administered some intoxicant in a cold drink (Pepsi) cannot now be established by cogent evidence."
26. In the case of Mukesh Chand Vs. State (Govt. of NCT of Delhi) 2010 SCC OnLine Del 379, it was held:
"21. Surprisingly, no chemical report about the "stomach wash" has been proved on record. It is well settled that in order to prove Section 328 IPC, the prosecution is required to prove that the substance in question was a poison."
27. Further, in the case of Santosh Kumar Vs. State, (2008) JCC 2019, Hon'ble Apex Court while stressing upon the importance and relevancy of medical evidence to establish guilt under Section 328 IPC, has held as under:
".....From the above quoted observations of the learned Digitally signed Aparna by Aparna Swami Swami 2024.07.31 Date:
FIR No.46/19 PS Connaught Place 17:33:07 +0530 State Vs. Philip @ Vicky & Ors. Page 15 of 20 trial Judge it is very much clear that the findings rendered are not sustainable at all because of being conjectural. Simply on the basis of the statement of PW-5 alone it could not be concluded that he had become unconscious because of eating the biscuit or drinking tea offered to him by the accused. There had to be medical evidence to the effect that PW-5 had, in fact, become unconscious because of consuming any drug or intoxicating substance etc. mixed in tea or biscuit."
28. In view of the aforesaid discussion, this court is of the view that prosecution has miserably failed to establish the ingredients of offence punishable under Section 328 IPC qua both the accused persons Philip @ Vicky and Suraj.
29. Coming to the next accusation on the accused persons i.e. the charge under Section 379 of IPC.
The offence of 'theft' is defined under Section 378 of IPC:
"as whoever intending to take dishonestly any movable property out of the possession of any person without the consent of that person, in order to take such property, is said to commit theft."
Hence, in order to prove the offence of theft the article moved should be movable property; it should have been moved out of the possession of that person without his consent; and the accused should have done it with dishonest intention.
30. Except for the complainant/ victim himself, there is no eye witness of the incident. PW-1 in his testimony deposed that after consuming frooti when the bus reached near Karol Bagh Metro Station he lost his consciousness. Thereafter, on 14.05.2019 he regained his consciousness, it was then he realized that his belongings i.e. mobile phone, DTC bus pass, metro card, credit Digitally signed by Aparna Aparna Date:
Swami Swami 2024.07.31 17:33:14 FIR No.46/19 PS Connaught Place +0530 State Vs. Philip @ Vicky & Ors. Page 16 of 20 card and house keys were found missing. In the cross examination of complainant he specifically mentioned that he did not see accused Philip @ Vicky stealing any of his articles.
31. It is submitted by Ld. Defence Counsel that in light of clear testimony of victim/ complainant as to the fact that he did not see accused stealing anything from him, accused Philip @ Vicky cannot be punished for offence punishable under Section 379 of IPC.
Per contra, Ld. Additional Public Prosecutor for State has rebutted this submission of Ld. Defence Counsel on the ground that as recovery of the stolen articles of complainant were effected for accused Philip @ Vicky, therefore adverse inference should be drawn and accused Philip @ Vicky should be made culpable under Section 379 IPC.
32. This court has given thoughtful consideration to the arguments addressed by both the sides with respect to establishment of offence punishable under Section 379 IPC. It is observed that in the present matter in light of the testimony of PW-1 mentioning clearly that he did not see accused persons stealing his articles and the fact that no public witness was added by the Investigating Officer despite the fact that the offence was said to be committed in a bus, and also that the articles of the complainant were brought before the court in unsealed condition all this puts the theory of prosecution under serious clouds.
33. Now, coming to the charge of Section 411 of IPC on Digitally signed by Aparna Aparna Date:
Swami Swami 2024.07.31 17:33:20 FIR No.46/19 PS Connaught Place +0530 State Vs. Philip @ Vicky & Ors. Page 17 of 20 accused Philip @ Vicky. It is submitted by Ld. Defence Counsel that recovery of rings was planted on the accused Philip @ Vicky. As per PW-8, the accused was arrested in another E-FIR No.524/2019 on 14.05.2019 and later on 16.05.2019 arrest in this FIR of the accused Philip @ Vicky was shown by the police. This clearly shows that the case in hand was planted upon the accused and recovery is also falsely shown.
Ld. Additional Public Prosecutor for State has countered this submission of Ld. Defence Counsel on the ground that the recovery of stolen rings was effected after recording of the disclosure statement of accused Philip @ Vicky. Further, the TIP proceedings were carried on, in which the recovered rings were correctly identified by the victim/ complainant. Thus, in light of the recovery and its identification by the concerned, the offence punishable under Section 411 IPC is made out qua accused Philip @ Vicky.
34. It is relevant to reproduce Section 411 IPC, which reads as under:
"411. Dishonestly receiving stolen property.--Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
35. A bare perusal of above noted provision makes it clear that for attracting the provision of Section 411 IPC there must be some reason to believe that property recovered was a stolen one or fraudulently obtained by the accused. In the testimony of PW-
Digitally signed by AparnaAparna Swami Date: Swami 2024.07.31 17:33:26 FIR No.46/19 PS Connaught Place +0530 State Vs. Philip @ Vicky & Ors. Page 18 of 20
1, it has come out that when he regained consciousness his belongings i.e. mobile phone, DTC bus pass, metro card, credit card and house keys were found to be missing. In the evidence of ASI Arun Pal and Constable Himanshu, it came out that after apprehending accused Philip @ Vicky and accused Suraj, their disclosure statements were recorded and on the basis of the same they both were arrested in the present FIR. It further came out in their testimony that one day police custody remand of accused Philip @ Vicky was taken, during which he took the police to his house and from under the pillow he got recovered two gold rings. It has also come out in the testimony of Investigating Officer PW-8 ASI Satish Kumar that after recovering of the case property i.e. the gold rings, the TIP proceedings qua it was conducted in which victim/ complainant PW-1 Sudhir Kapoor correctly identified the same as belonging to him. There is nothing on record to discredit the evidentiary value of the witnesses cited above. No material on record indicates that the gold rings were planted on the accused by the police. Accordingly, this court is satisfied that the ingredients of offence punishable under Section 411 of IPC are made out against accused Philip @ Vicky.
36. Further, the testimony of DW-1 Amar Nath Goel on record affirmed the fact that another E-FIR No.524/2019 under Section 328, 379 of IPC was registered qua accused persons.
37. In view of the above observations, this court is of the view that prosecution has failed to prove its case qua accused persons Digitally signed by Aparna Aparna Swami Date:
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Philip @ Vicky and Suraj under Section 328 and 379 IPC. Accordingly, accused persons Philip @ Vicky and Suraj stands acquitted for the offence under these sections.
38. However, prosecution has been successful in proving its case beyond reasonable doubt that stolen property of PW-1 Sudhir Kapoor was recovered from the possession of accused Philip @ Vicky. As such accused Philip @ Vicky stands convicted under Section 411 of IPC.
39. The bail bonds under Section 437A of CrPC be filed by accused persons Philip @ Vicky and Suraj on 08.08.2024.
40. Copy of this judgment be provided to the accused persons free of cost.
Pronounced in open court on 31.07.2024 in presence of the accused persons. This judgment contains 20 pages and each page has been signed by the undersigned.
Aparna Digitally signed by Aparna Swami Swami 17:31:21 +0530 Date: 2024.07.31 (Aparna Swami) Additional Sessions Judge-07 NDD/PHC/New Delhi 31.07.2024 FIR No.46/19 PS Connaught Place State Vs. Philip @ Vicky & Ors. Page 20 of 20