Delhi District Court
S.C. No. 45/10 Fir No. 698/08 Eva ... vs . State 1/29 on 12 March, 2014
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
S.C. No. 45/10
(Unique ID No. 02403R0968372008)
FIR No.: 698/08
PS: Malviya Nagar
US: 328/379/411/34 IPC
Eva Jennifer
D/o Walter Antony
R/o S-9, Gokul Apartments,
Mem Nagar, Ahmadabad, Gujarat.
Versus
State
Date of Initial Institution :02.12.2008
Date of Institution in this court :24.09.2010
Date of Pronouncement Order :12.03.2014
JUDGMENT
1. On 24.09.2008, informant Amit Kumar Saxena went to the P.S. Malviya Nagar and gave a written complaint (Ex.PW1/A) to police that on 18.09.2008, he left for Saket Mall from Noida at about 6:00 p.m and reached at Saket Mall at about 6:45 p.m. He had met a lady (Sanjivini) on net and had fixed the meeting time with her at about S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 1/29 6:45 p.m at Saket Mall. He parked the car in Saket Mall in evening and met the lady. He bought a cold coffee and another drink at the mall. Lady decided to continue the discussion in car so they left the mall. When they reached outside the mall, lady asked him to buy a bottle of water from a nearby pan shop. He went out of the car to buy water bottle. After returning, lady offered him a coffee which she had already opened for him. He drank from the can of the coffee and within minutes he fell unconscious. He woke up next morning in car at Adhchini crossing. He found his cash, three- credit cards, one DL, one HP Lap Top, one Lap Top USB, 80 GB hard-disk, Lap Top bag, blue-tooth set, diamond wedding ring, car stereo and watch, missing. After registration of case, S.I O.P. Sinha collected the discharge summary of the complainant from the hospital. It also came to notice that in FIR No. 541/08 at P.S. Dwarka, the stolen articles of this case were recovered. Accused Eva Jeniffer and William Messy were already arrested in FIR No. 541/08 and had made disclosure about their involvement in the present case. Accused Eva Jeniffer refused to take part in TIP proceedings.
S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 2/29
2. After completion of the investigation, charge-sheet was filed under Section 328/379/411/34 IPC against accused Eva Jeniffer and Anthony Williams.
3. On 06.06.2009, charge under Section 328/120B/379/34 IPC was framed against both the accused persons. Accused Eva Jeniffer was also charged under Section 411 IPC separately. However, before the evidence could begin, accused Anthony Williams absconded and was declared a Proclaimed Offender on 31.08.2010.
4. Prosecution examined 17 witnesses in support of its case:
4.1 PW-1 Amit Kumar Saxena is the informant/victim, who stated that on 18.09.2008, he met Eva Jeniffer on net and they agreed to meet at public place at Saket Mall. He reached Saket Mall between 6:00/7:00 p.m and met her. He identified the accused Eva Jeniffer in the court. He stated that Eva suggested to purchase some drinks before moving out of the mall. He went to a grocery store in the mall itself and picked up two drinks and he paid for the drinks at the counter. Thereafter, they left for the parking lot and left the mall in car. Once, outside the mall, she suggested that she knows a place S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 3/29 outside the mall where they could talk. He took the car to the parking lot behind the mall, where she asked him to park the car in front of a pan shop. She asked him to get her a bottle of water from the pan shop. He went out of the car and purchased one water bottle and came back to the car. When he came back to the car, she had already opened the coffee drink for him and offered the same to him. He sat in the car and drank the coffee and within seconds, he lost his consciousness. He was spotted next day morning by his family members and police. He found out that his purse, lap-top, car stereo and other belongings were missing. He was taken to the hospital. On 24.09.2008, he lodged his complaint to the police as Ex. PW1/A. On 04.10.2008, he received a call from PS that his stolen goods have been recovered. He went to Patiala House Courts and identified his lap-top, car stereo, mobile phone etc. On 10.10.2008, he went to Tihar Jail for identification of the accused but he was informed by the police that accused Eva had refused to get herself identified. He took the recovered goods on superdari from the court. He produced the case property in court, namely, mobile phone, lap-top bag, lap-top, watch, car stereo mouth, pan drive. In his cross-examination, he S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 4/29 stated that the cold drinks and some eatables were purchased from the grocery shop of the mall. After 10 minutes' driving, they reached the spot from where he purchased drinking water. The distance between the shop from where he purchased the water bottle and the place where he parked the car, was about 10 feet. It took about 3-4 minutes in purchasing the water bottle and coming back to the car. He denied the suggestion that taking advantage of the darkness, he tried to molest the accused and tried to be physical with her and she left the spot saying that she is going to the PS to report against him. He also denied the suggestion that because of the fear on being involved in the said case, he falsely implicated the accused in this case. He denied the suggestion that he took sleeping pills to stress him out. 4.2 PW-2 ASI Kamal Singh proved recording of FIR No. 698/08 as Ex. PW2/A and his endorsement on the Rukka as Ex.PW2/B. 4.3 PW-3 ASI D. Ram proved the recording of FIR No. 541/08 under Section 302 IPC, P.S. Dwarka.
4.4 PW-4 Dr. Anit Mota proved the discharge summary of Amit Kumar Saxena as Ex. PW4/A. According to the discharge summary, S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 5/29 the patient was admitted in the Max Hospital on 19.09.2008 and was discharged from there on 21.09.2008 and was diagnosed to be having unknown poisoning.
4.5 PW-5 W/Ct. Sheela deposed that on 24.09.2008 in FIR No. 541/08, P.S. Dwarka, accused Eva Jeniffer made a disclosure and as per her disclosure, she got recovered lap-top, mobile phone, wrist watch, ID-cards, car stereo mouth and other articles from her house, which were seized by the IO vide seizure memo mark 'X'. She proved the disclosure statement as Ex. Mark 'X1'. She identified the accused in the court. She also identified the mobile phone, car stereo mouth, wrist watch, HP lap-top, lap-top bag, DL, ID-cards etc. in the court. In her cross-examination, she stated that disclosure statement was recorded at the house of the accused. She could not tell whether her house was locked or not when they reached there. She stated that accused was at her home but then she stated that accused Eva Jeniffer was with them.
4.6 PW-6 Pawan Singh, Nodal Officer from IDEA brought the records of mobile connection No. 9718025359, which was in the S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 6/29 name of Shah Nawaj. He proved the Customer Application Form as Ex. PW6/A. As per the call detail records, on 18.09.2008, an incoming SMS was received from "5354442061742031235" at 5:55:33 p.m and as per CDR, location of the mobile phone 9718025359 was at Madangir. The Certificate under Section 65B of the Evidence Act was proved as Ex. PW6/B. In his cross-
examination, he stated that exact spot of the mobile phone cannot be traced as a Tower covers an area from 500 meters to 3 k.m. 4.7 PW-7 Ct. Ram Avtar deposed that on 01.10.2008, he alongwith IO/SI Praveen Kumar reached Malkhana of P.S. Dwarka and seized 13-14 articles - lap-top, wrist watch, 3 ATM cards, car stereo mouth, one Pound (coin), computer cables, DL, one passport size photo, ID-card, mobile phone etc. vide seizure memo Ex. PW7/A. In his cross-examination, he stated that the articles at the time of being seized, were not in sealed pullanda. The said articles were converted into pullanda and were sealed in P.S. Dwarka itself. 4.8 PW-8 HC Ramesh Chand deposed that Inspector Sudhir apprehended Anthony Williams, who led them to House No. S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 7/29 F-1/312/313, J.J. Colony, Madangir and Eva Jeniffer also met there. After interrogation, both were arrested in FIR No. 541/08. Their disclosure statements were recorded by the IO and as per disclosure, accused Eva Jeniffer got recovered one bag of black colour from her house and one lap-top, mobile phone, credit-cards, DL etc, were found which were seized by the IO after preparing seizure memos. Thereafter, both the accused persons were taken to House No. 54, Khanpur Village. At that time, accused Eva Jeniffer was in custody of lady Ct. Sheela. At House No. 54, Khanpur Village, DVD, Cooler, T.V and receipts of purchasing articles from Sharma Departmental Store Electronics, Plaza, were recovered which were seized after preparing seizure memo. The seizure of recovery of lap-top, credit- cards, mobile phones etc, was marked 'X'. He identified accused Eva Jeniffer in the court.
4.9 PW-9 Inspector Om Prakash proved preparation of site-plan Ex. PW9/A and after recording the supplementary statement of the complainant, he handed over the case file to the MHC(R) as the place of the incident fell within the jurisdiction of P.S. Saket. In his cross- examination, he stated that the complainant had not shown him the S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 8/29 shop from where the cold drinks had been purchased. He stated that he had not conducted any investigation except preparing the site plan which was prepared at the spot itself as the area did not fall under the jurisdiction of P.S. Malviya Nagar. He only went to the spot and saw the place of occurrence.
4.10 PW-10, W/Ct. Sangeeta deposed that on 16.10.2008, she alongwith SI Praveen Kumar went to the Select City Mall with accused Eva Jeniffer and Anthony Williams where Eva pointed out the place where she had given stupefying substance to Amit Saxena where IO prepared pointing out memo, which was proved by her as Ex. PW10/A. Then they went to Arbindo Marg, Adhchini where accused Anthony pointed out the place where they had stolen the goods from the car. IO/SI Praveen prepared pointing out memo of that place which she proved as Ex. PW10/B. She identified the accused Eva Jeniffer in the court.
4.11 PW-11 Sh. Sanjeev Kumar, Relieving Judge, Saket Courts, proved the TIP proceedings of accused Eva Jeniffer as Ex. PW11/B. He stated that accused had refused to take part in TIP proceedings on S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 9/29 the ground that she had been shown to the witness.
4.12 PW-12 Deepak, Alternate Nodal Officer of Vodafone brought the original records of mobile connection No. 9711503533, which was in the name of Shah Nawaj. The Customer Application Form was proved as Ex. PW12/A. The call detail records for the period 10.09.2008 to 06.11.2008 were proved as Ex. PW12/C and the Certificate under Section 65B of the Evidence Act was proved as Ex. PW12/D. According to the call detail records, on 18.09.2008 at 9:49:33 p.m, an ISD call was made on phone 00441133828000. On 19.09.2008, one outgoing call was made to phone No. 09990654669 at 11:58:09 am and two incoming calls were received at this number at 12:58:06 and 4:39:07 p.m and one more call was received from mobile No. 09723961040 at 6:58:59 p.m. At the time of all these calls, mobile phone No. 9711503533 was at Madangir. In his cross- examination, he stated that the said Cell Tower is installed at 78A, Madangir, New Delhi, which has a range of approximately 500 meters to 1500 meters.
S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 10/29 4.13 PW-13 Sameer Bajpai, ACMM-II, Dwarka Courts, New Delhi, proved the TIP of the case property, namely, laptop bag, laptop, two mobile phones, wrist watch, stereo mouth, pen-drive and CD as EX.PW13/B which he conducted on 04.10.2008. According to the TIP, all the case properties were correctly identified by Amit Kumar Saxena.
4.14 PW-14 ASI Kamal Singh, deposed that on 21.08.2008, one Shah Nawaj came to the PS informing about loss of his mobile phone 9910747151 and loss of his DL and RC, which was recorded vide NCR No. 239308 on 21.08.2008 at 2:28 p.m. He proved the NCR as Ex. PW14/A. 4.15 PW-15 Inspector Sudhir Singh is the IO of FIR No. 541/08 under Section 302/328/34 IPC, P.S. Dwarka. He stated that on 24.09.2008, he alongwith SI Narender, Woman Ct. Sheela had gone to Khanpur Village at House No. 54, where Anthony Williams Messy met them. He was apprehended and he took them to F-1/312/313, J.J. Colony, Madangir, where Eva Jeniffer was found, who was apprehended. They were interrogated and were arrested in FIR No. S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 11/29 541/08. Eva disclosed that she alongwith Anthony William Messy had given sleeping pills to one person and made him unconscious and took away his lap-top and other belongings. She got recovered a black colour bag which contained a lap-top of H.P Pavilion including DL, Debit Cards, CDs, Stereo mouth piece etc. There were 15 articles which were seized. Both the accused persons were brought to PS Dwarka and the case property was deposited in the Malkhana. Police officials of P.S. Malviya Nagar were informed and later on SI Praveen Kumar recorded his statement in FIR No. 698/08, P.S. Malviya Nagar. He identified the accused Eva Jeniffer in the court. 4.16 PW-16 Shah Nawaj deposed that on 18/19.08.2008, he went to India Gate where he met a girl. He took tea with her and thereafter he became unconscious. When he gained consciousness, he found his mobile and purse to be missing. His purse contained some money, his DL, RC of his pulser motorcycle. He identified the accused in the court to be girl whom he had met on that day. He lodged a complaint in P.S. Malviya Nagar in this regard. In his cross- examination, he stated that he went to India Gate on his motorcycle between 6:00 to 7:00 p.m. He stated that he had purchased tea from a S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 12/29 tea-vendor, who came to them when they were sitting in India Gate lawn.
4.17 PW-17 SI Praveen Kumar is the IO of this case. He stated that he received the case file of the present case on 30.09.2008 from S.I O.P. Sinha, who told him that accused persons of this case have been arrested at P.S. Dwarka in case FIR No. 541/08. On 01.10.2008, he alongwith Ct. Ram Avtar went to PS Dwarka and met IO/Inspector Sudhir of FIR No. 541/08. He took copies of arrest memos, disclosure statements, seizure memos and statements of the witnesses of FIR No. 541/08. He recorded the statements of the relevant witnesses. Then he obtained case property of this case from MHC(M). He prepared a pullanda by putting all things in a lap-top bag and sealed them with the seal of 'PK'. He proved the seizure memo Ex. PW7/A and had returned to P.S. Malviya Nagar and the case property was deposited in the Malkhana. On 04.10.2008, he got conducted the TIP of the case property. On 06.10.2008, both the accused persons were formally arrested at Tihar Jail vide arrest memo Ex. PW17/A (accused Eva Jeniffer) and Ex. PW17/B (accused Anthony William Messy). He proved their disclosure statements Ex. S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 13/29 PW17/C and Ex.PW17/D respectively. He identified accused Eva Jeniffer in the court. On 10.10.2008, he tried to get the judicial TIP of the accused Eva Jeniffer conducted but she refused to take part in TIP. On 16.10.2008, both the accused persons pointed out the place where the victim was dragged by accused Eva Jeniffer. He proved the place of dragging Ex. PW10/A. Pointing out memo of the place where the victim was left after incident was proved as Ex. PW10/B. He also brought on record the certified records of FIR No. 541/08, P.S. Dwarka which he obtained from the Hon'ble High Court. The said records were proved as Ex.PW17/E. The disclosure statements of accused Eva Jeniffer in FIR No. 541/08 was proved as Ex. PW17/F and the seizure memo prepared after disclosure was proved as Ex. PW17/G. In his cross-examination, he stated that he met the accused for the first time when he went to Tihar Jail to arrest her. He stated that he received the case property in P.S. Dwarka in unsealed condition and he sealed the case property in the Malkhana.
5. All the incriminating circumstances were put to the accused but she denied the same. She stated that she was already in custody in FIR No. 541/08 of P.S. Dwarka and the present case was falsely, S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 14/29 imputed against her by the police and the recoveries were planted. She stated that she does not know any Amit Saxena or Shah Nawaj at all. She stated that she does not know as to what was happening around her at that time. She was pregnant and was a diabetes patient and, therefore, she refused to take part in TIP. She did not make any disclosure statement but was made to sign on blank papers. She also stated that police had arrested Anthony William Messy - her colleague and brought him to her house in custody in early hours on 22/23.09.2008 and thereafter she was falsely implicated in the present case. Initially, she stated that she does not wish to lead any defence defence but subsequently, an application under Section 315 Cr.P.C was filed by her to herself step in the witness box and in the interest of justice, the said application was allowed and the accused herself deposed as DW-1. She stated that on 24.09.2008, she was in custody regarding a case of P.S. Dwarka. She does not know anything regarding Amit Saxena. She was told about this case when she was in judicial custody. She stated that she is a patient of diabetes and there was no occasion for her to give any cold drink to him, which contained intoxicants. She placed on record a medical certificate in S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 15/29 this regard as Ex. DW1/A. She stated that she was also arrested in another FIR No. 314/08 under Section 328/379/411 IPC of P.S. Defence Colony, in which she was acquitted on 25.07.2011 and a certified copy of that judgment was proved as Ex. DW1/B. She stated that she was convicted in FIR No. 541/08 u/s 302/328/34 IPC. She stated that she is innocent and has been falsely implicated in this case. In her cross-examination by the Ld. Addl. PP, she could not tell as to why and how she was identified in court by Ami Saxena and Shah Nawaj. She admitted that she was arrested on 24.09.2008 by officials of P.S. Dwarka from her house. She could not tell as to why she was involved in cases of similar type of offences.
6. Ld. Addl. PP argued that the prosecution has been able to prove its case beyond all reasonable doubts. It is stated that the victim/ informant Amit Kumar Saxena has identified the accused in the court and has supported the prosecution case. The poisoning of the informant was duly proved by PW-4 Dr. Anil Mota. The stolen articles were recovered from the house of the accused when she was arrested on 24.09.2008 in FIR No. 541/08 of P.S. Dwarka. The informant/victim has identified the stolen articles in judicial TIP. The S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 16/29 accused had refused to take part in judicial TIP. The accused had also stolen the mobile phone and purse of another victim PW-16 Shah Nawaj, who has also identified the accused in the court. On these grounds, the conviction under Section 328 and 379 IPC has been prayed by the prosecution.
7. Ld. Counsel for the accused has filed written arguments without addressing any oral arguments. It has been stated that the prosecution case of giving intoxicating substance by the accused to the victim is highly improbable as both of them were strangers and nobody would accept that a stranger would give cold drink. It has been stated that the alleged incident took place on a busy road and it is not possible that the same would not be witnessed by anybody. It has been stated that no receipt for purchase of mobile phone and other articles was with the complainant. There is a delay of six days in registration of case. Even the original discharge summary of the complainant from Max Balaji Hospital was not filed, which creates doubt regarding his discharge. It is stated that the articles were recovered by the IO of P.S. Dwarka but they were not sealed. There are no signatures of the complainant on the site plan which creates S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 17/29 doubt about its preparation or his visit to the spot alongwith the IO. It has been stated that the prosecution has failed to prove its case beyond doubts and the benefit of doubt be given to the accused and she be acquitted.
8. I have heard both the sides and have perused the records of the case. Accused has faced trial for the offences u/s 328/379/411 IPC read with section 120-B IPC. Section 328 IPC deals with the offence of causing hurt by means of poison etc. with intent to commit an offence. The section inter-alia prescribes punishment for the person who administers any intoxicating drug or other thing with intent to cause hurt to a person. In order to prove the offence u/s 328 IPC prosecution is obliged to prove that accused administered poison with the intention or knowledge that it is likely to cause hurt.
9. The offence of theft is defined under section 378 IPC as whoever intending to take dishonestly any movable property out of possession of any person without 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 S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 18/29 should have been moved out of the possession of the person without his consent; and that the accused should have done it with dishonest intention.
10. Except for the victim himself, there is no other eye witness of this case. PW-1 Amit Kumar Saxena is the victim, who deposed to have met the accused on 18.09.2008 between 6:00-7:00 p.m at Saket Mall and at the suggestion of the accused, they went to a grocery shop in the mall, from where the accused picked up two drinks and he paid for the same. Then, they came out of the mall and the accused suggested that she knows a place outside the mall where they could talk. He took the car behind the mall where she asked him to park the car in front of a pan shop and asked him to get her a bottle of water from the pan shop. When he came back with the water bottle, she had already opened the coffee drink and offered it to him. He sat in the car, drank the coffee and within seconds, he lost his consciousness. Next morning, he found his purse, lap-top, car stereo and other belongings to be missing and he was taken to hospital. He identified the accused in the court. He also stated to have identified his lap-top, car stereo, one credit card, DL and mobile phone on S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 19/29 04.10.2008 in TIP at Patiala House Courts. He stated that he also went to Tihar Jail on 10.10.2008 for the purpose of identification of accused but he was told that she does not want to take part in the identification proceedings.
11. PW-4 Dr. Anil Mota proved the discharge summary of the victim as Ex.PW4/A, according to which, he was admitted on 19.09.2008 and was discharged on 21.09.2008 and he was diagnosed for 'unknown poisoning'.
12. Accused Eva was arrested on 24.9.2008 by PW 15 Inspector Sudhir Singh and she got recovered laptop, mobile, wrist watch, car stereo mouth, ID cards etc. from her house. These articles were identified by the victim in TIP carried out by PW-13 Sh. Sameer Bajpai, Ld. MM. PW-5 Ct. Sheela and PW-8 HC Ramesh Chand also deposed about recoveries and arrest of the accused on 24.9.2008.
13. Apart from the victim of this case, yet another victim namely PW-16 Shahnawaj also deposed regarding his experience with the accused when he was given some substance in tea whereafter he became unconscious and lost his mobile phone and purse. He also S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 20/29 identified the accused in the court as the girl who had given him the tea, and after drinking the tea he had become unconscious.
14. PW-17 SI Praveen Kumar proved disclosure statements and seizure memos of FIR No. 541/08 u/s 302/328/341 IPC PS Dwarka in which she was arrested. In her disclosure she had stated that she used to have Ativan 2 mg tablets which had intoxicating effect. She also disclosed to have administered intoxicating tablets to one Amit in the month of August and thereafter to have robbed him of his mobile phones, car stereo mouth etc. and thereafter to have left him in car near AIIMS area. In one of the seizure memos, 20 pills of Ativan 2 mg were recovered from the handbag of the accused.
15. There is yet another circumstance which is against the accused. Suggestions were given to the victim that taking advantage of the darkness, he tried to molest the accused and she left the spot for going to police station and out of fear, he implicated her in a false case. The victim denied this suggestion. Another suggestion was put to him that he had himself taken stupefying pills to stress out and made false complaint to police. However, the victim denied this S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 21/29 suggestion as well.
16. In the statement of the accused recorded u/s 313 Cr PC, no such thing was stated by the accused. Nor she stated such a thing when she herself entered the witness box. All this show that the hollowness of defence of the accused and thus strengthens the prosecution case.
17. She admitted as DW-1 that she was earlier convicted in FIR No. 541/08 u/s 302/328/34 IPC of PS Dwarka but was acquitted in another FIR No. 314/08 u/s 328/379/411 IPC of PS Defence Colony. In her cross examination she could not give any reply as to why she was involved in similar type of offences nor she could give any reply as to why she was identified by Amit Saxena and Shahnawaj.
18. The accused did not take part in TIP. No reasonable explanation was offered by her for not participating in TIP. She only stated that she did not know what was happening around her at that time. She was pregnant and was a patient of diabetes and therefore she refused to take part in TIP. However, this stand is contrary to the stand taken by her earlier at the time of TIP. At that time, she refused S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 22/29 to take part in TIP on the ground that she had already been shown to the witness. In view of the contradictory stands taken by the accused for not taking part in the judicial TIP, adverse inference is to be drawn against the accused.
19. The arguments of the defence were that the accused and the victim were not known to each other and it was improbable that one would accept drink from a stranger. The argument made is meritless. First of all there is no improbability in such an offer and secondly, the victim was admitted in hospital with unknown poisoning which confirms that the coffee drink consumed by the victim was laced with sedative. The accused in her examination u/s 313 Cr PC stated that she herself was diabetic and hence there was no occasion for her to offer such a drink to the victim is contrary to record. This explanation given by the accused is not worth while and does not appeal to reason. There is no reason as to why the accused would implicate the accused in this case.
20. An argument was made that the original discharge summary was not produced and hence the very creation of the discharge S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 23/29 summary is doubtful. The argument lacks merit. A copy of the discharge summary was filed alongwith the charge sheet. In her reply to the question put to her in her SA, that the discharge summary was proved according to which the victim was diagnosed to be suffering from 'unknown poisoning', she replied 'I do not know'. Then she herself entered the witness box and stated that she herself being a diabetic, she had no occasion for giving drink to him which contained intoxicants. These stands taken by the accused show the hollowness of her claims.
21. Another argument made was with respect to there being no witness of the incident. The victim was given intoxicating substance in the car whereafter he became unconscious and thereafter theft was committed. As such, there was no occasion for the independent persons to witness the offence. In case there are public persons who had witnessed the offence, then it becomes incumbent upon the prosecution to examine them, but if the incident was not witnessed by any independent person, no defect can be attached to non examination of such independent witnesses. There is thus no substance in the argument in this regard.
S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 24/29
22. Next objection raised was that no receipt of mobile phone etc. was brought on record. In the cross examination of the victim, he had replied that he had purchased the mobile etc. from UK. A suggestion was put to him that he did not purchase them from UK but he denied the suggestion. Moreover, the witness had identified his articles in judicial TIP. As such, no benefit can be drawn from this circumstance.
23. Yet another objection was that there was a delay of 6 days in registration of case. The incident in question took place on 18.9.2008. The victim was admitted in hospital on 19.9.2008 and he remained there till 21.9.2008. The victim was cross examined in detail but no question was put to him regarding delay. FIR was registered at 2 Pm whereas the accused was arrested on 24.9.2008 at 5.45 PM. So, in any case, the FIR had been registered before arrest of the accused in other FIR No. 541/08 of PS Dwarka. Thus, delay in registration of case is not fatal.
24. Similarly, non sealing of case property at the time of recovery is not fatal as the recoveries were not case property of FIR 541/08. S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 25/29 And when the case properties of the present FIR were seized by the IO thereafter he deposited the same in maalkhana. Likewise, non- taking of signatures of victim of the site plan is not that serious. These lapses on the part of investigating agency cannot make the prosecution case wholly unreliable. In Dharmendra Singh vs. State of Gujarat 2002 Cr LJ 2631, Hon'ble Supreme Court held that defective or doubtful investigation does not necessarily lead to discredit the main prosecution case if prosecution evidence inspires and circumstances lead to such a conclusion and the prosecution story rings truth.
25. It is not the law that whenever there is a discrepancy, invari- ably its benefit has to go to the accused. Only in the case of major discrepancies, which make the prosecution case absolutely unaccept- able, that such a benefit can go to an accused but if the discrepancy is only minor in nature, no fatality can be attached to it. In A. Shankar vs. State of Karnataka 2011 (6) SCC 279, Hon'ble Supreme Court made following observations in this regard:
17. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence.
S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 26/29 Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. "Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." The omissions which amount to contradictions in material particulars, i.e., materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide: State Represented by Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152; Arumugam v. State, AIR 2009 SC 331; Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334; Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287; Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191; State of U.P. v. Naresh & Ors., (2011) 4 SCC 324; and Brahm Swaroop & Anr. v. State of U.P., AIR 2011 SC 280].
26. Similarly, in the case of Sucha Singh & Anr. v. State of Punjab [(2003) 7 SCC 643] Hon'ble Supreme Court held that:
"20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh & Ors. (AIR 1990 SC 209). Prosecution is not required to meet any and every hypothesis put forward by the accused (See State of U.P. v. Ashok Kumar Srivastava (AIR 1992 SC 840). A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 27/29 out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. (See Inder Singh and another v. State (Delhi Admn.) (AIR 1978 SC 1091. Vague hunches cannot take place of judicial evaluation. 'A Judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man, does not escape. Both are public duties.' (Per Viscount Simen in Stirland v. Director of Public Prosecutor 91944 AC (PC 315) quoted in State of U.P. v. Anil Singh (AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth."
27. So far as Section 411 IPC is concerned, this Section penalize dishonest receiving of stolen property. In Trimbak vs. State AIR 1954 SC 39 it was laid down that in order to bring home the guilt of a person under this section, prosecution must prove, amongst other things, that some person other than the accused, had possession of the property before the accused got possession thereof. In other words, accused must have got possession of the stolen articles from other person and he should have retained them knowing that those are stolen articles. It thus postulates that there should be a thief and another person to retain the goods. One who commits theft and keeps the stolen articles himself will thus only be liable to conviction u/s S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 28/29 379 and not u/s 411 IPC. Accused is thus acquitted u/s 411 IPC.
28. If the deposition of all these witnesses is read together, it is found that the prosecution has been able to prove its case beyond doubt. Statement of victim has its own sanctity. Nothing has come on record as to why the accused would be falsely implicated by the victim. Accused refused to take part in TIP for no plausible reason. He identified the accused in Court. His stolen articles were recovered from the accused. Sedative tablets were recovered from the accused from her handbag. The articles were identified by the victim in judicial TIP. There is thus no reason to disbelieve these circumstances. Prosecution has been able to prove that accused administered some sedative to the victim and thereafter she caused theft of his belongings. All the ingredients of the offences u/s 328 and 379 IPC are fulfilled. The accused is thus convicted for the offences u/s 328 and 379 IPC.
Announced in the open Court. (Rajeev Bansal)
Dated:12.03.2014 ASJ-3/South District
Saket Courts, New Delhi
S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 29/29
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
S.C. No. 45/10
(Unique ID No. 02403R0968372008)
FIR No.: 698/08
PS: Malviya Nagar
US: 328/379/411/34 IPC
Eva Jennifer
D/o Walter Antony
R/o S-9, Gokul Apartments,
Mem Nagar, Ahmadabad, Gujarat.
Versus
State
ORDER ON SENTENCE
Accused has been convicted for the offence u/s 328 and 379 IPC, vide judgment dated 12.03.2014.
Counsel for the convict has argued that the convict is a lady, who is pregnant at present and is also a mother of five years old daughter. Ld. Counsel has stated that the convict lost her father when she was eighteen years of age. Her second husband John has also abandoned her. It is also stated that the convict is facing problems in jail due to her pregnancy and is presently in MI Room of jail. Further, it has been stated that the convict has already undergone custody of about three and half years during the trial of this case and hence a lenient view may be taken against her and she may be awarded the S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 30/29 sentence of the period already undergone by her.
Ld. Addl. PP, on the other hand, has prayed for maximum sentence.
I have heard both the sides and have perused the records of the case. Section 328 IPC prescribes for a punishment of either description for a term upto ten years and with fine. Section 379 IPC prescribes a punishment of either description for a term upto three years or with fine or with both.
Records show that the convict was arrested on 25.09.2008 and she was released from jail on 15.02.2012 on bail. She has thus already undergone custody of more than 40 months during the course of trial. The convict is in family way and is expected to deliver on 15.08.2014. Although, the offence of the convict does not deserve any lenient view but purely taking into consideration the circumstance that the convict is already in family way and her daughter is only five years of age and that she has already undergone a custody of about 40 months during the course of trial of the present case, the convict is awarded the sentence of the period already undergone by her for the offences under Section 328 and 379 IPC. The convict shall, however, pay fine of Rs. 10,000/- for the offence under Section 328 IPC and in default of payment of fine, she shall suffer simple imprisonment for a period of three months.
At this stage, fine amount of Rs. 10,000/- has been deposited in the court.
Convict be released from jail, if not required in any other S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 31/29 case.
A copy of the judgment and sentence has been supplied to the convict, free of cost.
File be consigned to the Record Room.
Announced in the open Court. (Rajeev Bansal)
Dated:18.03.2014 ASJ-3/South District
Saket Courts, New Delhi
S.C. No. 45/10 FIR No. 698/08 Eva Jennifer & Anr. vs. State 32/29