Delhi District Court
State vs . Om Prakash Tiwari on 23 September, 2014
IN THE COURT OF SH. TARUN SAHRAWAT, ADDITIONAL
SESSIONS JUDGE, CENTRAL, TIS HAZARI, DELHI
SC No. 01/2014
Unique ID No. 02401R0022432014
FIR NO: 203/2013
P.S: NDRS
Under Section:
328/379/411 IPC
STATE
Versus
OM PRAKASH TIWARI
S/O SHRI RAJDEV TIWARI
R/O VILLAGE RAJOGADI,
DISTT. PALAMU,
POLICE STATION LASLIGANJ,
JHARKHAND. ......Accused
Date of Institution : 16.01.2014
Date of Committal of case : 27.12.2013
Date of judgment reserved on : 08.09.2014
Date of judgment : 23.09.2014
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :
1. Briefly stated case of the prosecution is that on 31.10.2013 upon receipt of DD No. 28A, IO/SI Ashok Kumar posted at Police Station, Sessions Case No. 01/2014 Page 1 of 16 FIR No. 203/2013 PS: NDRS U/s.: 328/379/411 IPC State Vs. Om Prakash Tiwari New Delhi Railway Station, reached at Lady Hardinge Hospital from there he obtained the MLC of the complainant/victim Pradeep Kumar. In the MLC report, doctor had declared the victim unfit for statement for that time. IO seized two pulandas containing gastric lavage sample and blood sample of the victim Pradeep Kumar and returned to the police station and lodged DD No. 34A.
2. On the next day i.e. on 01.11.2013 victim Pradeep Kumar, came to the police station NDRS and recorded his statement regarding the alleged incident. On the basis of his complaint, the present case FIR was registered. In his statement Pradeep Kumar recorded that on 31.10.2013 at around 3-4 pm at Old Delhi Railway station, he met the accused Om Prakash Tiwari and asked him about the local train to reach NDRS and, thus, they started talking to each other.
Thereafter they boarded the local train from Old Delhi railway station and reached NDRS and sat at platform no.16. He alleged that accused insisted him to have tea and biscuit but he refused for the same. However, on insistence of accused, he agreed to have tea and biscuit. Immediately after having the tea and biscuit, he slept and he regained his consciousness in the hospital, where he found that his bag containing his clothes and purse in his pocket containing Rs.800/- and election ID card were missing.
3. On completion of investigation, charge sheet was filed by the IO/SI Ashok Kumar before the Ld. MM concerned. After supply of the Sessions Case No. 01/2014 Page 2 of 16 FIR No. 203/2013 PS: NDRS U/s.: 328/379/411 IPC State Vs. Om Prakash Tiwari copies as prescribed under Section 207 of Code of Criminal Procedure the case was committed to the court of Sessions.
4. On 17.04.2014 the charge was framed against the accused Om Prakash Tiwari for the offences punishable U/s. 328/379/411 IPC to which he pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution examined 10 witnesses as under:-
(i) W/ASI Jamna Devi as PW1
(ii) Sh. Pradeep Kumar as PW2
(iii) SI Mahender Singh as PW3
(iv) HC Ramesh Chand as PW4
(v) HC Harender Singh as PW5
(vi) Ct. Suresh Chand as PW6
(vii) Ct. Rajender Singh as PW7
(viii) Sh. Rajinder Singh as PW8
(ix) HC V.K. Yadav as PW9; and
(x) SI Ashok Kumar as PW10
6. The PW1 ASI Jamna Devi was posted as duty officer on 01.11.2013 from 9.00 am to 5.00 pm. At about 1.30 pm she received rukka from SI Ashok Kumar and on the basis of which she got recorded the FIR of the present case U/s/ 328/379 IPC through computer operator. She proved the copy of computer generated Sessions Case No. 01/2014 Page 3 of 16 FIR No. 203/2013 PS: NDRS U/s.: 328/379/411 IPC State Vs. Om Prakash Tiwari FIR as Ex.PW1/A and her endorsement on rukka as Ex.PW1/B.
7. PW2 Mr. Pradeep Kumar deposed that on 31.10.2013 he came to old Delhi Railway Station to go to Patna from Amritsar. He had to reach New Delhi Railway Station from old Delhi Railway Station by a local train. At about 3.00 pm accused Om Prakash Tiwari (correctly identified before the court) came there and asked about the local train to go to New Delhi Railway Station. The accused replied that he would go to New Delhi Railway Station and asked the PW2 to accompany him. The witness further deposed that they started talking each other and accused gained his faith as accused made him belief that he also belonged to Patna. At that time PW2 was having one bag containing clothes and pocket purse containing Rs.800/- and copy of election ID card. Thereafter they boarded local train for NDRS and reached there and sat together at platform no. 16. Accused offered tea and biscuit to the victim Pradeep Kumar but he refused. Accused again offered tea and biscuit and on his repeated requests PW2 had tea and biscuit and thereafter he became sleepy and re-gained his consciousness in the hospital. On checking he found that his purse and bag were missing. Then, he understood that accused Om Prakash Tiwari had stolen the same and thereafter on 01.11.2013, he reached at NDRS police station. IO of this case met him there and recorded his statement vide Ex.PW2/A bearing his signature at point 'A'. Thereafter he alongwith police officials reached at platform no. 16 Sessions Case No. 01/2014 Page 4 of 16 FIR No. 203/2013 PS: NDRS U/s.: 328/379/411 IPC State Vs. Om Prakash Tiwari and IO inspected the spot. PW2 alongwith police officials reached platform no. 2 and where he saw Om Prakash Tiwari lying on the road while keeping one bag under his head. Accused was apprehended and interrogated by the IO. On his formal search black color purse of PW2 containing Rs.200/- and copy of election ID card, was recovered from his possession. Three tablets were also recovered which were wrapped in a paper. IO seized his purse containing Rs.200/- and copy of election ID card vide Ex.PW2/B. IO also seized three tablets vide Ex.PW2/C. IO arrested the accused vide memo Ex.PW2/D. His personal search was conducted vide Ex.PW2/E. Accused made his disclosure statement vide Ex.PW2/F. Accused also pointed out the place of occurrence i.e. platform no. 16 vide memo Ex.PW2/G. During examination of PW2 MHCM produced one sealed parcel sealed with the seal of AK and the seal was broken, wherein one black color purse was found containing copy of election ID card of witness Pradeep Kumar and Rs.200/- which was shown to the witness and he correctly identified the same belonging to him and stolen by the accused proved as Ex.P-1(collectively). One khaki envelope sealed with the seal of FSL, Delhi was also produced before the witness PW2 and on breaking its seal PW2 identified the tablets wrapped in one white color paper as Ex.P-2.
8. PW3 SI Mahender Singh was posted at Railway Police Force Sessions Case No. 01/2014 Page 5 of 16 FIR No. 203/2013 PS: NDRS U/s.: 328/379/411 IPC State Vs. Om Prakash Tiwari police station NDRS and on 01.11.2013 he was on duty at platform no. 16 alongwith ASI Arvind Kumar and HC Anil Kumar. He deposed that they were in civil dress and at about 3.30 pm SI Ashok Kumar and Ct. Rajender Kumar met them with victim Pradeep Kumar and informed that one day before, someone had stolen purse and bag of the victim after administering the intoxicating material to him. They started searching for the accused and in the process, they reached Metro gate no. 2 near Ajmeri Gate. At about 5.00 pm they saw one person lying near the metro gate keeping the bag under his head. On identification of the complainant, that person was apprehended. Further PW-3 narrated the prosecution story on the similar lines of complainant/victim. All the aforesaid memos have been duly identified by PW3.
9. PW4 HC Ramesh Chand was working as a duty officer at PS NDRS on 31.10.2013 from 5.00 pm to 9.00 am. On that day at about 8.10 pm, PW4 recorded DD No. 28A and proved the same before the court as Ex.PW4/A.
10. PW5 HC Harender Singh was working as MHCM at police station NDRS on 31.10.2013. He deposed that on that day SI Ashok Kumar deposited two pulandas sealed with the seal of hospital in the malkhana vide entry no. 3266. He further deposed that on 01.11.2013 SI Ashok Kumar deposited two more pulandas sealed with the seal of AK and personal search of the accused in the Sessions Case No. 01/2014 Page 6 of 16 FIR No. 203/2013 PS: NDRS U/s.: 328/379/411 IPC State Vs. Om Prakash Tiwari malkhana vide entry no. 3267. On 11.11.2013 exhibits in sealed condition were sent to FSL, Rohini through Ct. Suresh Chand and result with case property was received back in the malkhana on 12.02.2014. The result was handed over to IO. The copy of entries is proved as Ex.PW5/A collectively running in two sheets. The copy of RC is Ex.PW5/B.
11. PW6 Ct. Suresh Chand was posted at PS NDRS on 11.11.2013. He deposed that he had taken the exhibits and FSL form in sealed condition from malkhana on 11.11.2013 and deposited the same in the FSL, Rohini.
12. PW7 Ct. Rajender Singh was posted at PS NDRS on 01.11.2013 and on that day duty officer handed over the copy of FIR and original rukka to him which he took to the IO/SI Ashok Kumar at platform no. 16 of NDRS. PW7 deposed that he handed over the same to the IO at about 2.40 pm where complainant Pradeep Kumar was also present. IO made some inquiries from the public persons. At about 2.30 pm SI Mahender Singh, ASI Arvind Kumar and HC Anil Kumar of RPF met us. They all reached near Metro gate no. 2 at about 5.10 pm. Further PW7 narrated the same story as deposed by PW2 and PW3. All the aforesaid memos have been duly identified by PW7.
13. PW8 Dr. Anil, CMO, deposed that on 31.10.2013, he was working Sessions Case No. 01/2014 Page 7 of 16 FIR No. 203/2013 PS: NDRS U/s.: 328/379/411 IPC State Vs. Om Prakash Tiwari in casualty of Lady Hardinge Hospital and at about 7.40 pm he examined the patient/victim Pradeep, 21 years male and prepared his MLC vide Ex.PW8/A, bearing his signature at points A and B with the alleged history of ingestion of unknown poisoning. He further deposed that they took the gastric lavege sample and blood sample and sealed them in separate parcels and handed over the same to the IO. After examination, the patient was referred to medicine for further management and the patient was unfit for statement at that time.
14.PW9 HC V.K. Yadav was posted at RPF post, NDRS on 31.10.2013 and he was on duty at platform no. 16 from 8.00 am to 8.00 pm. He deposed that one person was lying semi unconscious near the parcel office situated at platform no. 16, NDRS. He made inquiry from the said person and his name was revealed as Pradeep Kumar. He took Pradeep Kumar to Lady Hardinge Hospital where he was medically examined by the Doctor. Doctor prepared MLC and gave him two pulandas sealed with the seal of CMO, LHMC hospital and SSK hospital. On the same day PW9 gave both the pulandas to SI Ashok Kumar posted at PS NDRS the IO of this case. He seized the said pulandas vide seizure memo Ex. PW9/A.
15. PW10 SI Ashok Kumar, IO of this case deposed that on 31.10.2013, he was posted at PS NDRS as Sub Inspector and Sessions Case No. 01/2014 Page 8 of 16 FIR No. 203/2013 PS: NDRS U/s.: 328/379/411 IPC State Vs. Om Prakash Tiwari upon receipt of DD no. 28A, he reached at Lady Hardinge Hospital, New Delhi, and obtained the MLC of Pradeep Kumar. Doctor mentioned on the MLC that patient was unfit for statement. PW10 seized two pulandas sealed with the seal of CMO, LHMC hospital and SSK hospital already exhibited as Ex.PW9/A. He further deposed that patient was admitted in the hospital and he lodged DD no. 34A. Copy of said DD no. 34A has been proved as Ex.PW10/A. He further deposed that on 01.11.2013 victim/complainant came to the PS NDRS himself and he recorded the statement already exhibited as PW4/A. At the instance of complainant Pradeep Kumar, IO prepared the site plan vide Ex.PW10/B. Subsequently, after arrest of the accused Om Prakash Tiwari, recovery of a purse containing Rs.200/- and copy of election ID card belonging to the complainant Pradeep Kumar and also one wrapped packet of paper containing three small tablets of pink color was effected from him. IO/PW9 prepared the site plan of place of recovery vide Ex.PW10/C bearing his signature at point A. On completion of investigation and other formalities the IO filed the charge sheet before the concerned court. Subsequently, he received the FSL report vide Ex.PW10/D and filed the same before court through application vide Ex.PW10/E.
16. No other witness has been examined by the prosecution.
17. On culmination of the prosecution evidence, the statement of Sessions Case No. 01/2014 Page 9 of 16 FIR No. 203/2013 PS: NDRS U/s.: 328/379/411 IPC State Vs. Om Prakash Tiwari accused was recorded U/s. 313 Cr.PC wherein he denied all the incriminating evidence led by the prosecution and submitted that he had been falsely implicated in the present case and he did not know about the incident. He further stated that he was working as welder in Vishal Pipeline-II, Secundrabad, Bulandshehar, U.P and he was going to his village in Jharkhand. On 29.10.2013, he got down from the train to change the train for Jharkhand and at platform no. 8, NDRS, he was picked up by the police officials and was detained in police station NDRS and later on falsely implicated in this case. He further stated that nothing was recovered from his possession regarding this case. However, accused did not wish to lead evidence in his defence and matter was listed for final arguments.
18. I have heard the rival submissions advanced by the Addl. PP as well as Ld. counsel for accused, perused the record carefully and gave my thoughtful consideration to their contentions.
19. Before I advert to the respective contentions of the opposite parties, let us go through the relevant provision of law for which the accused has been charged as under:
328. Causing hurt by means of poison, etc., with intent to commit an offence.- Whoever administers to or causes to be taken by any person Sessions Case No. 01/2014 Page 10 of 16 FIR No. 203/2013 PS: NDRS U/s.: 328/379/411 IPC State Vs. Om Prakash Tiwari 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.
20. In order to bring home the guilt U/s. 328 IPC the prosecution has to prove the following:
(i) that the substance in question is a poison, or any stupefying, intoxicating, or unwholesome drug, etc.;
(ii) that the accused administered the substance to the complainant or caused the complainant to take such substance;
(iii) that he did as above with intent to cause hurt or knowing it to be likely that he would thereby cause hurt or that the accused intended to commit or facilitate the commission of an offence.
21. Coming back to the present case, Ld. Addl. PP contented that on Sessions Case No. 01/2014 Page 11 of 16 FIR No. 203/2013 PS: NDRS U/s.: 328/379/411 IPC State Vs. Om Prakash Tiwari perusal of the testimony of PW2 Pradeep Kumar it is evident that on 31.10.2013 at platform no. 16, NDRS, he was administered poisonous substance in the form of tea and biscuits by the accused Om Prakash Tiwari, therefore, he became sleepy and regained his consciousness in the hospital. His testimony is further corroborated with the testimony of PW10 wherein he proved the FSL report vide PW10/D. FSL report Ex.PW10/D states that on chemical TLC & GC-MS examination, Exhibits X, Y and Z i.e. two sealed pulandas sealed with the seal of CMO, LHMC hospital and SSK hospital containing red coloured liquid volume approx 2 ml stated to be blood of Pradeep and other sealed pulandas sealed with the seal of CMO, LHMC and SSK hospital containing cream coloured liquid volume approx 2 ml stated to be Gastric Lavage of Pradeep and parcel sealed with the seal of AK containing pink coloured tablets stated to be recovered from accused Om Prakash Tiwari respectively, were found to contain Lorazepam(A Benzodiazapine group of drugs). Further, PW-2, PW-3 and PW-7 have supported the prosecution story on the point of recovery of three pink coloured tablets from the accused Om Prakash Tiwari. Accordingly, the transaction of the alleged incident is complete and linked with each other. Thus, Ld. Addl. PP argued that prosecution has been able to establish its case against the accused for the offence punishable U/s. 328 IPC.
22. On the other hand Ld. Defence counsel argued that during the Sessions Case No. 01/2014 Page 12 of 16 FIR No. 203/2013 PS: NDRS U/s.: 328/379/411 IPC State Vs. Om Prakash Tiwari cross examination of PW2, he could not remember whether hospital staff had made inquiry from him regarding his parentage and address. He also did not remember the time when he left the platform no. 16 in search of the accused and how much time they took in search of the accused. Ld. Defence counsel further contended that witness was not able to explain the circumstances and the time as to how and when the recovery was effected from the accused. I do not find substance in the above contention of Ld. counsel for defence as firstly the PW-2 voluntarily stated during his cross-examination that he was not having watch at that time. Secondly, I feel that every ordinary human being is subject to some memory loss due to lapse of time and lack of clear observations. In the case reported as JT 1999 (9) SC 43 State of H.P. v. Lekhraj and another, it was observed by the Hon'ble Apex Court as under:-
"In the deposition of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like".
23. In the instant case, having perused the testimonies of examined prosecution witnesses, it is evident that the accused Om Prakash Tiwari had administered some stupefying, intoxicating or Sessions Case No. 01/2014 Page 13 of 16 FIR No. 203/2013 PS: NDRS U/s.: 328/379/411 IPC State Vs. Om Prakash Tiwari unwholesome drug to the victim/PW2 as the prosecution by proving the FSL report on record, made it clear that on chemical examination, Lorazepam was found containing in the blood sample and Gastric Lavage of the victim Pradeep Kumar and further it has been corroborated by the testimonies of other witnesses that at the time of arrest of accused Om Prakash Tiwari, he was having pink coloured tablets which were also containing the same drug i.e. Lorazepam.
24.Further, Ld. counsel for defence argued that no independent/public witness has been produced by the investigating agency to prove the alleged offence of administering some stupefying or intoxicating substance. On this I observe that firstly, the testimony of any independent witness is not necessarily required to convict the accused as per law of evidence. Secondly, as per law, if the testimony of single witness is truthful and unimpeachable then, in that case his testimony alone is sufficient to secure conviction for the accused. In the case of Chacko v. State of Punjab, AIR 2004 SC 2688 wherein it was held as under:
"Conviction can be based on the testimony of a single witness, if he is wholly reliable. Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the Court is satisfied that the witness was speaking the truth, then on his evidence alone conviction can be maintained."Sessions Case No. 01/2014 Page 14 of 16
FIR No. 203/2013 PS: NDRS U/s.: 328/379/411 IPC State Vs. Om Prakash Tiwari
25. Furthermore, accused has not alleged any enmity between himself and the victim and also he has not cited any reason for the witness's false testimony. Therefore, his contention for any other supporting independent witness has no merit and, is rejected. Accused has also not led evidence in his defence to disprove the case of prosecution.
26.In view of above, I find that the prosecution has been able to establish its case against the accused Om Prakash Tiwari beyond reasonable doubt under section 328 Indian Penal Code.
27.Now coming to the other offence under which accused has been charged i.e. Section 379 IPC. PW2 Pradeep Kumar deposed that after having tea and biscuits he became sleepy and regained his consciousness in the hospital. It is clear that even the victim himself i.e. PW-2 is not the eye witness to the alleged incident of theft. No other witness has deposed for the commission of offence punishable U/s. 379 IPC against the accused Om Prakash Tiwari. No police or public witness has seen the accused while committing the alleged offence of theft of one bag and purse containing Rs. 200/- and election ID card, hence, in my considered view, accused cannot be held guilty for the offence punishable U/s. 379 IPC.
28. Further for the offence punishable U/s. 411 IPC the recovery of Sessions Case No. 01/2014 Page 15 of 16 FIR No. 203/2013 PS: NDRS U/s.: 328/379/411 IPC State Vs. Om Prakash Tiwari stolen items is necessary to establish the case of the prosecution. Here in the instant case PW2/victim and other police officials namely PW3 SI Mahender Singh, PW7 Ct. Rajender Singh and PW10 SI Ashok Kumar are the recovery witnesses. They all deposed that recovery of Rs.200/- cash and copy of election ID card of the complainant had been effected from the accused Om Prakash Tiwari. The testimonies of all examined witnesses are duly corroborated with each other. PW2/victim had also identified the stolen property before the court. Therefore, in these circumstances, I am of the opinion that prosecution has succeeded to bring home the guilt of accused beyond reasonable doubt for the offence punishable U/s. 411 IPC.
29. In the light of above discussion, I hold that the prosecution has successfully established its case against the accused Om Prakash Tiwari beyond reasonable doubt under sections 328 and 411 IPC, thus, I convict him for the offences punishable thereunder.
Matter be put up for arguments on the point of sentence for 27.09.2014.
Announced in the open court
on 23rd September 2014 (TARUN SAHRAWAT)
ADDITIONAL SESSIONS JUDGE-06
THC/DELHI/23.09.2014
Sessions Case No. 01/2014 Page 16 of 16
FIR No. 203/2013 PS: NDRS
U/s.: 328/379/411 IPC
State Vs. Om Prakash Tiwari