Delhi District Court
State vs Keshav on 18 September, 2024
State Vs. Keshav
SC No. 377/23; FIR no. 284/21; PS Sagarpur
IN THE COURT OF SH. DEVENDER KUMAR JANGALA, ASJ-
05, NEW DELHI DISTRICT, PHC, NEW DELHI
DLND010086322023
Sessions Case No. 377/23
FIR no.284/21: PS: Sagarpur
U/s 328/392/411/34 IPC.
Complainant Sh. Chain Singh S/o Sh. Balwant Singh
Represented by Sh. Mukul Kumar, Ld. Additional Public Prosecutor.
Accused Keshav S/o Sh. Amrender Thakur, R/o House no.
RZ-184C, Gali No.4, Main Sagarpur, New Delhi.
Represented by Sh. Rajtilak Guha Roy, Ld. Legal Aid Counsel.
Date of offence 07.06.2021
Date of FIR 07.06.2021
Date of chargesheet 29.07.2021
Date of framing of charges 17.10.2023
Date of commencement of evidence 04.11.2023
Date on which judgment is reserved 09.09.2024
Date of Judgment 18.09.2024
Rank of the Name of Date of Date of Offences Whether Sentence Period of
accused accused arrest release on charged with acquitted or imposed detention
bail convicted undergone
during
Trial for
purpose
of Section
428 Cr.PC
1. Keshav 09.06.21 01.11.2021 328/392/411/ Convicted for Shall be 292 days
& 34 IPC commission of imposed
09.05.2024 offence later.
punishable
under Section
392 IPC
Page no.1 of total 16
Devender Digitally signed
by Devender
Kumar Kumar Jangala
Date: 2024.09.18
Jangala 16:08:55 +0530
State Vs. Keshav
SC No. 377/23; FIR no. 284/21; PS Sagarpur
JUDGMENT
1. Brief facts of the case as per prosecution story are that on 07.06.2021 on receipt of DD no. 99A, SI Ranbir Singh alongwith Ct. Pintu Kumar reached near Tent Wala School, Geetanjli Park where the complainant Chain Singh met them. Statement of the complainant was recorded by the investigating officer wherein he alleged that for getting photocopy of some documents, he was going from Kamal Park to Nagar One park and when he reached in the middle of street near Tent Wala School, three boys aged about 18/20 years came and one boy asked about the time. He told the said boy that it is 7.10 PM and all three boys started talking with him. In the meantime one boy put an handkerchief on his face and he got disturbed and all three boys took away his mobile phone Samsung Galaxy J Dark Blue, purse containing three SBI and one Vijay Bank ATM cards, Adhar card, PAN card, Grosury card, one liquor canteen card, driving licence and Rs.1200/- cash.
2. On the statement of the complainant FIR was got registered by investigating officer through Ct. Pintu Kumar. During the course of investigation all three accused persons were arrested from Nagar One Park. Two accused persons were found to be child in Conflict with law(CCL). On personal search of the accused Keshav the mobile phone and purse of the complainant was recovered and other robbed articles were recovered from the possession of other juvenile persons. Accused Keshav was arrested on the identification of the complainant. Police after completion of investigation has filed the charge sheet for commission of offence punishable under Section Page no.2 of total 16 State Vs. Keshav SC No. 377/23; FIR no. 284/21; PS Sagarpur 328/392/411/34 IPC before the court of Ld. Metropolitan Magistrate against accused Keshav. The alleged offence under Section 328 IPC is exclusively triable by the court of Sessions, therefore the matter was committed to Court of Sessions for trial on 13.10.2023.
3. Vide detailed order dated 17.10.2023, the charges for the offences punishable under Section 328/392/411/34 IPC were framed against the accused Keshav. The accused pleaded not guilty and claimed trial. The matter was fixed for prosecution evidence.
4. The prosecution to prove its case against the accused has examined 06 witnesses and the accused has also not disputed certain documents. In his statement under Section 294 Cr. PC the accused has not disputed the following documents:-
Sr. No. Documents Exhibit
1. Indemnity bond furnished by Ms. Beermati Ex. A1
wherein ATM card of bank of Baroda/Vijay
Bank was released to Ms. Beermati Devi
including the Punchnama report
2. Indemnity bond furnished by Ms. Sushma Ex. A2
Malik wherein mobile phone was released
to her
3. Panchnama report signed by Sh. Chain Ex. A3.
Singh, H/o Ms. Beermati pertaining to three ATM cards, driving licence and PAN card
5. In view of admission of the accused, PW Ms. Beermati was dropped from list of witnesses. The details of the witnesses examined during the course of the trial are tabulated as under:-
Page no.3 of total 16 State Vs. Keshav SC No. 377/23; FIR no. 284/21; PS Sagarpur S.No. Name Relevance PW 1 ASI Shyam Singh He is the duty officer who registered the FIR on the rukka sent by investigating officer. He proved the copy of FIR Ex.
PW1/A, endorsement on rukka Ex. PW1/B and certificate under Section 65B Indian Evidence Act Ex. PW1/C. He also recorded DD entry no. 99A Ex. PW1/D. PW 2 Sh. Chain Singh He is the complainant victim. He disclosed the manner of offence being committed with him and factum of investigation joined by him. He proved his complaint Ex.
PW2/A. Site plan Ex. PW2/B was prepared at his instance. He also identified the accused Keshav and case property in the court.
PW3 HC Raghubir Singh He is the police official who joined the investigation with the investigating officer. He is the witness to the arrest of the accused persons and recovery of case property. He also identified the accused in the court.
PW 4 Smt. Sushma Malik She is the owner of the robbed mobile of the complainant. She had taken the mobile phone on superdari. She produced the case property in the court.
PW 5 Sh. Himanshu He is the concerned Ld.
Tanwar Metropolitan Magistrate who
conducted TIP of the accused. He
proved the TIP proceedings Ex.
PW2/D.
PW 6 Retired SI Ranbbir He is the investigating officer of
the case.
Page no.4 of total 16
State Vs. Keshav
SC No. 377/23; FIR no. 284/21; PS Sagarpur
6. Thereafter statement of accused Keshav under Section 313 Cr. PC was recorded. Accused pleaded that he is innocent and has been falsely implicated in the present case as he was previously involved in other cases and he does not have any involvement in the present case. The accused has not led evidence in his defence.
7. I have heard the detailed arguments advanced by Sh.
Mukul Kumar, Ld. Addl. PP for the state and Sh.Rajtilak Guha Roy, Ld. Legal Aid Counsel for the accused and perused the record.
8. It is submitted by Ld. Addl. PP for the state that the prosecution has produced on record sufficient evidence directly connecting the accused Keshav with commission of alleged offence. That the star witness of the prosecution i.e. the complainant Chain Singh has clearly identified the accused as one of the robber and prosecution story is also supported with the other material. It is submitted that the prosecution has been able to prove its case beyond reasonable doubts for the charges framed, therefore the accused Keshav may kindly be convicted for the offences charged.
9. On the other hand it is submitted by Ld.Legal Aid Counsel for the accused that the accused has been falsely implicated in the present case on the basis of his previous involvement just to close the case. That the complainant Chain Singh had fails to identify the accused during the course of TIP and during his examination he had identified the accused on the instance of the investigating agency. That the MLC of the injured was not got prepared, therefore, the Page no.5 of total 16 State Vs. Keshav SC No. 377/23; FIR no. 284/21; PS Sagarpur allegations of giving intoxicating substance are not tenable. It is submitted that in view of discrepancies in the deposition of prosecution witnesses, benefit of doubt may kindly be given to the accused and the accused Keshav may kindly be acquitted of the charged offences.
10. In the present case the accused Keshav has been charged for the offences punishable under Section 328/392/411/34 IPC. The charges framed against the accused is reproduced as under:-
"Firstly, That on 07.06.2021 at about 7:10 pm in between Nagar-I and tent wala school, Geetanjali Park, you in furtherance of your common intention alongwith your co- accused namely, Sumit and Mukesh (both JCL) administered or caused to be taken by the complainant Chain Singh any poisonous substance or any stupefying, intoxicating or any other unwholesome drug or any other thing with intent to cause hurt to that person or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that you will thereby cause hurt to him and you thereby committed an offence punishable u/s 328/34 IPC and within my cognizance.
Secondly, on the aforesaid date, time and place within the jurisdiction of PS Sagarpur, New Delhi, in furtherance of your common intention had with your co-accused (both JCL), you committed theft of a mobile phone, purse, ATM cards, adhar card, PAN card, grocery card, liquor canteen card, driving license and Rs. 1200/- and in committing the theft, you voluntarily caused hurt or wrongfully restrained to the complainant Chain Singh and you thereby committed offence under Section 392/34 IPC and within the cognizance of this court.
Thirdly, that on 09.06.2021 at Nagar-I Park at time unknown, you were found in possession of one Samsung Galaxy dark blue colour phone and purse belonging to the complainant Chain Singh, which you received or retained knowing or having reason to believe to be the stolen property of the said Page no.6 of total 16 State Vs. Keshav SC No. 377/23; FIR no. 284/21; PS Sagarpur complainant and you accused thereby committed offence punishable u/s 411 IPC within my cognizance."
11. In the criminal jurisprudence the accused person is presumed innocent unless proved guilty. It is the duty of prosecution to prove its case beyond reasonable doubt. We are having the adversarial criminal justice system where the onus is upon the prosecution to prove its case. The accused is not required to prove his innocence. The criminal jurisprudence cast a heavy burden upon the prosecution to prove its case to secure the conviction of a person charged for commission of any criminal offence.
12. It is the case of prosecution that the accused Keshav alongwith other persons(CCL) administered poisonous substance or any stupefying, intoxicating or other unwholesome drug to the complainant and committed theft of mobile phone, purse, ATM cards, Adhar card, PAN Card, Grocery Card, Liquor Canteen Card, Driving licence and Rs.1200/- of the complainant Chain Singh. That the recovery of mobile phone and purse belonging to the complainant was effected from the accused Keshav. In the instant case the accused Keshav has been charged for the offences punishable under Section 392/328/411/34 IPC.
13. In the present case PW-2 Sh. Chain Singh is victim and star witness of the prosecution. PW-2 Sh.Chain Singh was examined in the court on 03.02.2024 and he has described the commission of offence against him in detail. PW-2 Sh. Chain Singh has deposed that on 07.06.2021 at about 7.10 PM, three boys met him and asked for Page no.7 of total 16 State Vs. Keshav SC No. 377/23; FIR no. 284/21; PS Sagarpur time and thereafter one of the boys caught hold of him from back side, one from the front side and the third one put a handkerchief on his face and he became disturbed because of the incident and one of the boys took out his mobile phone from front pocket and another boy took out his purse from the back side of his pant. PW-2 also deposed that the said persons had also beaten him and thereafter they jumped towards the park. PW-2 has given the description of the articles robbed by the accused persons from him. The statement made by him to the police has been proved as Ex.PW2/A. The site plan of the incident prepared at his instance is proved as Ex. PW2/B. PW-2 has correctly identified the accused Keshav and the case property i.e. mobile phone make Samsung, which are proved as Ex. PW2/MO-1 and Ex. PW2/MO-2. PW-2 has also identified the other case property comprising 4 ATM cards, PAN card and DL Ex. PW2/MO-3. PW-2 during his cross-examination has admitted that he had seen the accused persons and correctly identified them in the police station on 09.06.2021 when he had gone to collect the copy of FIR of the case. PW-2 denied that he had identified the accused persons at the instance of the police. PW-2 has also given explanation for absence of his MLC by stating that he had not sustained any major injuries that is why his MLC was not made. No other contradiction has emerged in his cross-examination.
14. The accused in his statement recorded under Section 313 Cr. PC has stated that a false case has been lodged by Sh. Chain Singh. However, during the lengthy cross-examination of PW-2 Sh. Chain Singh no suggestion was given that PW-2 was known to the Page no.8 of total 16 State Vs. Keshav SC No. 377/23; FIR no. 284/21; PS Sagarpur accused prior to the incident. The accused has fails to bring on record anything to suggest any previous enmity or acquaintance with the said witness. Accused has also fails to attribute any reason to PW-2 who is an independent witness and victim to falsely implicate him in the present case. In view of above, I am of the considered opinion that PW-2 Sh.Chain Singh is a trustworthy and reliable witness and reliance can be placed upon his deposition.
15. PW-4 Smt. Sushma Malik is the owner of mobile phone make IMEI NO. 352805081038263 & 35280508103826 and she is daughter of the PW-2 complainant/victim. PW-4 Ms. Sushma Malik has proved the superdari and punchnama report prepared in respect of said mobile phone/case property Ex. PW4/MO1 as Ex. PW4/A. During cross-examination PW-4 has also reaffirmed that her father was using the said mobile phone at the time of incident. During cross- examination of this witness, nothing contradictory has emerged.
16. PW1 ASI Shyam Singh is the Duty Officer who registered the FIR. He proved the copy of FIR as Ex. PW1/A, endorsement on rukka Ex. PW1/B.
17. PW-3 HC Raghubir is witness regarding arrest of the accused and recovery of the case property. PW-6 SI Ranbir is the investigating officer of case who conducted the investigation, arrested the accused persons and recovered the case property. The witnesses regarding investigation and recovery of case property i.e. PW-3 HC Raghubir and PW-6 SI Ranbir were cross-examined at length but Page no.9 of total 16 State Vs. Keshav SC No. 377/23; FIR no. 284/21; PS Sagarpur during their cross-examination no contradiction emerged to raise any doubt upon their trustworthiness.
18. The accused Keshav is charged for commission of offence punishable under Section 328 IPC. Section 328 IPC provides that "Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine".
19. The necessary ingredients of Section 328 IPC reads as under:
(a) accused administers or causes to be taken by the victim any poison, or any stupefying, intoxicating or unwholesome drug;
(b) that the accused had taken any poison or any stupefying intoxicating unwholesome drug, or other thing; and
(c) that there was an intention to cause hurt to such person with intent to commit or to facilitate the commission of an offence or knowing it to be likely he will thereby cause hurt.
20. Section 328 IPC may be invoked where hurt is caused by the means of poison etc. with intention to commit an offence. It is true that in the present case in order to invoke Section 328 IPC the prosecution is required to prove that the 'hurt' has been caused to the Page no.10 of total 16 State Vs. Keshav SC No. 377/23; FIR no. 284/21; PS Sagarpur complainant/victim. 'Hurt' is defined in section 319 IPC which reads as under:
"whoever causes bodily pain, disease or infirmity to any person is said to cause hurt. "(emphasis supplied).
21. The definition of hurt given under Section 319 IPC is clear that a person who caused infirmity to any other person is stated to cause 'hurt'. It is well settled that infirmity has been interpreted to mean inability of an organ to perform its normal function which may either be temporary or permanent.
22. It is an admitted case of prosecution that PW-2 Sh. Chain Singh was not medically examined after the incident. There is no medical examination report of PW-2 Sh. Chain Singh on record. PW2 Sh. Chain Singh in his cross-examination has also affirmed that he was not medically examined as he had not received any major injuries. Therefore, it is clear that the prosecution has not relied upon any medical report or FSL examination report with regard to commission of offence punishable under Section 328 IPC. The Hon'ble Delhi High Court in case Sanjay Singh & Anr. Vs. State, 2008 VII AD (Delhi) 151, Criminal Appeal no. 636-637/2005 decided on 23.04.2008, held as under:
6. The essential element of Section 328 is that the victim should be administered "poison or any stupefying, intoxicating or unwholesome drug, or other thing." The forensic examination of the stomach wash in order to determine the substance that administered was poison is therefore imperative for ascertaining the commission of the offence under Section 328 IPC. The opinion of the victim who is rendered unconscious after taking the substance may not be stated to be final as to whether the drug administered was either "poison or any stupefying, Page no.11 of total 16 State Vs. Keshav SC No. 377/23; FIR no. 284/21; PS Sagarpur intoxicating or unwholesome drug." In this context the medical legal case sheets become relevant which were marked as Ex.PW-6/A, PW-
3/A and PW-9/A which contain endorsements that the victims were unfit for making a statement. In respect of each of the victims, the endorsement of Dr. Jyoti is to the effect that "the stomach wash could not be preserved so that the final report could not be given."
7. Admittedly Dr. Jyoti left the service of the hospital without leaving her present address and therefore, she could not be examined as a prosecution witness. In the present case in the absence of the evidence of the doctor who examined the victims after they were brought to the hospital and the stomach wash not being able to be sent for examination, it was extremely unsafe for the trial court to convict the Appellants here for the offence under Section 328 IPC. This Court cannot be determinative on whether what was administered was poisonous in order to attract the offence under Section 328 IPC".
23. In view of observation of Hon'ble Delhi High Court, since in the present case there is no medical report or FSL examination report to prove existence of stupefying substance administered to PW-2 Sh. Chain Singh, I have no hesitation to hold that the prosecution has fails to prove its charge for commission of offence punishable under Section 328 IPC against the accused.
24. The accused has also been charged for commission of offence punishable under Section 392 IPC. Section 392 IPC provides punishment for robbery as defined under Section 390 IPC. The ingredients necessary for Section 392 IPC are that the accused should have from the very start, the intention to deprive the complainant of the property and should, for that purpose, either hurt him or place him under wrongful restraint.
Page no.12 of total 16 State Vs. Keshav SC No. 377/23; FIR no. 284/21; PS Sagarpur
25. PW-2 Sh. Chain Singh has deposed that on 07.06.2021 at about 7.10 PM, three persons caught hold of him and thereafter one of the boys caught hold of him from back side, one from the front side and the third one put a handkerchief on his face and he became disturbed because of the incident and one of the boys took out his mobile phone from front pocket and another boy took out his purse from the back side of his pant. PW-2 also deposed that the said persons had also beaten him and thereafter they jumped over to the park. PW-2 has specifically deposed that that the accused persons had forcibly taken away his mobile phone from front pocket and his purse from his back pocket. PW-2 has also specifically deposed about the criminal force used by the accused persons in commission of offence. PW-2 has also reiterated his statement regarding the beatings given by the accused persons to him while committing the offence. PW-2 is the star witness of the prosecution who stood the test of cross- examination and during his lengthy cross-examination, no contradiction has emerged to raise any shadow of doubt upon his deposition. PW-2 Sh. Chain Singh has correctly identified the accused in the police station just two days after the incident, when he visited the police station for obtaining the copy of FIR. The presence of the complainant in the police station appears to be plausible in the manner as deposed by him.
26. PW-2 Sh. Chain Singh has also correctly identified the accused before this court. However, it is pointed out by Ld.counsel for the accused that PW-2 could not identify the accused in the judicial test identification parade(TIP). It is submitted that in view of Page no.13 of total 16 State Vs. Keshav SC No. 377/23; FIR no. 284/21; PS Sagarpur above, no reliance can be placed upon the identification of the accused before this court. The Hon'ble Supreme Court in Dana Yadav @ Dahu Vs. State of Bihar, (2002) 7 SCC 295 has considered the legal position with regard to identification of an accused. The Hon'ble Supreme Court has held that the evidence of identification of an accused in the court by a witness is substantive evidence whereas that of identification in test identification parade is, though a primary evidence but no substantive one and the same can be used only to corroborate identification of accused by a witness in court. In view of above judgment of Hon'ble Supreme Court, it is clear that the TIP of the accused conducted in the jail is not a substantive evidence whereas the identification of the accused conducted before this court is substantive piece of evidence. It is not out of place to mention that the witness has also identified the accused immediately after the incident in police station and this fact could not be demolished by the defence during the cross-examination of witness. In view of above, the objection raised by Ld. Defence Counsel is not tenable in the eyes of law.
27. The defence also could not raise any shadow of doubt upon the evidence of witnesses related to the investigation of case, arrest of the accused and the recovery of the case property. In view of above, I am of the considered opinion that the prosecution has been able to prove its case for commission of offence punishable under Section 392 IPC.
Page no.14 of total 16 State Vs. Keshav SC No. 377/23; FIR no. 284/21; PS Sagarpur
28. Accused is also charged for commission of offence punishable under Section 411 IPC. However, in view of conviction of the accused under Section 392 IPC with regard to the same case property, there is no justification for convicting him for commission of offence punishable under Section 411 IPC with regard to recovery of same case property.
29. In view of aforesaid discussions, I am of the considered opinion that there is sufficient cogent material on record to convict the accused Keshav for commission of offence punishable under Section 392 IPC. The prosecution has failed to prove the necessary ingredient of Section 328 IPC. Therefore, accused is acquitted for commission of offence punishable under Section 328 and 411 IPC.
30. In view of above observations, the accused Keshav is convicted for the offences punishable under section 392 IPC.
31. Accused Keshav is directed to furnish affidavit of his assets and income in the form of Annexure A as prescribed in the judgment Karan Vs. State of Delhi, 277 (2021) DLT 195 (FB). State is also directed to furnish details of the expenses incurred by the prosecution during trial. Victim impact report be also called from New Delhi Legal Services Authority for next date. Nominal role of the accused be also called from the Jail Superintendent concerned for next date.
Page no.15 of total 16 State Vs. Keshav SC No. 377/23; FIR no. 284/21; PS Sagarpur
32. Attested copy of this judgment be supplied to the convict Keshav free of cost.
33. Put up for report/arguments on the point of sentence on 15.10.2024.
Announced in the open Court (Devender Kumar Jangala)
on 18.09.2024 ASJ-05, New Delhi District
Patiala House Courts, New Delhi
Page no.16 of total 16