Delhi District Court
State vs . Vipin Kumar @ Rahul on 30 September, 2014
IN THE COURT OF SH. TARUN SAHRAWAT, ADDITIONAL SESSIONS
JUDGE, CENTRAL, TIS HAZARI, DELHI
Sessions Case Number : 83/2014
Unique ID Number : 02401R0337942012
FIR No: 52/2014
PS: Hazrat Nizamuddin Railway Station
Under Section:328/379/411/420/511 IPC
STATE
Versus
Vipin Kumar @ Rahul S/o Sh. Balwant Singh
R/o: Vill & P.O Nanota Mohalla, Sarvgyan,
PS: Nanota, District: Saharanpur,
Uttar Pradesh
Date of Institution : 05.07.2012
Date of Committal of case : 10.01.2013
Date of arguments : 30.09.2014
Date of judgment : 30.09.2014
JUDGMENT
1. Briefly stated, case of the prosecution is that on 09.05.2012 at about 02:45 pm, Constable Rajender and the complainant Sh. Virender Singh came to the Police Station, Hazrat Nizamuddin Railway Station and met ASI Kushal Pal, who was on his emergency duty. They came there Sessions Case No. 83/2014 1/14 FIR No. 52/2012: PS: HNRS U/s.: 328/379/411/420/511 IPC State Vs. Vipin Kumar @ Rahul along with a person namely Vipin Kumar S/o Balwant Singh carrying a black-blue pit bag on his back, which contained three military pouches, out of them one contained one I-card of Virender Singh, the complainant, 2 PAN Cards, ATM SBI, 2 Canteen Smart card, Rs.1,300/-. In the second pouch, one Army I-card of Karuppaiyav, one ATM SBI, one PAN card were found. From the third pouch one Army ID-card, one driving licence, one PAN card and two canteen cards and three SBI ATM cards all in the name of Sunil Kumar and Smt. Savitri respectively were found contained. Two mobile phones made Samsung, one black in colour and other in white colour and one strip of medicine namely Lorazepam tablet were also recovered. Thereafter, all these articles were sealed and statement of the complainant Sepoy Virender Singh was recorded. In his statement, complainant alleged that on 09.05.2012, the accused Vipin had offered stupefying or intoxicating drug i.e., lorazepam tablet mixed with tea with intent to cheat him or to steal the articles belonging to him and subsequently, accused induced him to part with his money and other articles by misrepresenting him and further, he went away along with those articles. On completion of investigation, IO filed the instant Charge- sheet u/s 328/379/411/420/511 IPC before the Learned MM, concerned.
2. Since the offence under section 328 IPC is exclusively triable by the court of sessions, therefore after supply of the copies of charge sheet and other documents to the accused persons, the Ld MM concerned, committed the case to the court of sessions.
3. Prima-facie case under section 328/379/411/420/511 IPC was made out against the accused, therefore charges were framed Sessions Case No. 83/2014 2/14 FIR No. 52/2012: PS: HNRS U/s.: 328/379/411/420/511 IPC State Vs. Vipin Kumar @ Rahul accordingly vide order dated 12.02.2013 against the accused Vipin Kumar, to which he pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution examined the following witnesses:
1.Sh.Daulat Ram as PW-1
2.Virender Singh/Complainant as PW-2
3.HC Ram Niwas as PW-3
4.HC Shakti Singh as PW-4
5.Ct. Raj Kumar as PW-5
6.Ct. Rajender Singh as PW-6
7.Dr. Amar Pal Singh as PW-7
8.IO/ASI Kushal Pal No other witness has been examined by the prosecution.
5. I have heard Ld.Addl Public Prosecutor for state as well as Ld. Counsel for defence and perused the record carefully.
6. PW-2 Virender Singh is the complainant/Victim of this case, on whose complaint the present case FIR bearing No.52/12 was registered. He deposed that on 09.05.2012 at 06:00 am, he was waiting at Hazrat Nizamuddin Railway Station to board the train for Chhatisgarh and while he was sitting at the ticket counter, accused, sat beside him, asked the complainant about where he was going to which he replied that he was going to Bilaspur. Then accused asked complainant about his profession to which complainant told the accused that he was a constable in Army, Sessions Case No. 83/2014 3/14 FIR No. 52/2012: PS: HNRS U/s.: 328/379/411/420/511 IPC State Vs. Vipin Kumar @ Rahul posted at Jammu & Kashmir. PW-2 further deposed that accused told him that he was also working as constable in Army, posted at Kupwara, showing the ID card in his pocket but the complainant did not check whether ID card was having the photograph of the accused or of somebody else. He further deposed that on asking about belongings of the accused, he told that he had deposited his belongings which developed impression that the accused was also working in Army. Thereafter, accused asked him to have tea as the train was scheduled for 12 O' Clock and then, they came out of the station and after taking tea, accused took him out to Red Fort and Metro and then to G.B. Road. He further deposed that they both went upstairs and when he came downstairs, accused was already present there. On inquiry, about the belongings, accused told him that he had deposited the same in the cloak room. Thereafter, accused offered him another cup of tea but since the complainant /PW-2 had seen him adding something in tea, therefore, he did not have tea and threw away the same. Thereafter PW-2/complainant came to a park along with the accused and both of them sat there and had conversation for about half-an-hour. After some time, accused went to the toilet and did not return. After waiting for 15 minutes, complainant/PW-2 went to New Delhi Railway Station and then went back to Hazrat Nizamuddin Railway Station. There, he informed the Babu (clerk) of the cloakroom that the person who was accompanying him in the morning had run away with his belongings and if he came back, he could catch hold of him. Thereafter, he went to GRPF police station to lodge a complaint from there he was sent to another police station to lodge his complaint. When, he was on the way to the police station, he saw the accused, but he started running after seeing him. PW-2 raised an alarm and with the help Sessions Case No. 83/2014 4/14 FIR No. 52/2012: PS: HNRS U/s.: 328/379/411/420/511 IPC State Vs. Vipin Kumar @ Rahul of police persons present there, he apprehended the accused. He further deposed that from the possession of the accused, his belongings as well as belongings of other persons were recovered. Thereafter, he again went to GRPF police station along with the accused and police officials. He further deposed that his statement vide Ex.PW2/A was recorded. Thereafter, the recoveries made from the accused were seized by the IO vide memo Ex. PW2/B, Ex.PW2/C, Ex.PW2/D, Ex.PW2/E and Ex.PW2/F respectively. Accused was arrested in his presence vide memo Ex.PW2/G. Personal search was also prepared vide memo Ex. PW2/H. His belongings were seized vide Ex.PW2/C, which were later on released on superdari.
7. PW-1 Pawan deposed that on 09.05.2012, he was posted at Parcel Supervisor, Cloak Room, Hazrat Nizamuddin Railway Station, Delhi and on the said day, one person from Armed Force namely Virender Singh came in the cloak room to collect his luggage, however, he was not having the receipt of deposit of his luggage in Cloak room as his receipt had been lost somewhere. He further deposed that he informed the complainant/PW-2 to lodge FIR regarding missing of receipt. The complainant/PW-2 told him that the slip is available with his associate. When the complainant/PW-2 Virender Singh left for making FIR, the other person came to him to collect luggage and he showed him the slip of the deposit. He did not allow to collect the said luggage to him. He asked the accused to wait till the PW-2 arrived. The accused person tried to run away with the said luggage i.e., one small bag. The accused was apprehended by him with the help of police and thereafter handed over to the police along with the luggage.
Sessions Case No. 83/2014 5/14FIR No. 52/2012: PS: HNRS U/s.: 328/379/411/420/511 IPC State Vs. Vipin Kumar @ Rahul
8. PW-3 HC Ram Niwas, deposed that on 09.05.2012, he was working as Duty Officer at PS: Hazrat Nizamuddin Railway Station and on that date at about 4-5 pm, ASI/IO Kushal Pal produced a Rukka before him and on the basis of the same, he recorded a formal FIR No.52/2012 under section 328/379/411/420 IPC. The correct copy of FIR is Ex.PW3/A. After recording the FIR, he endorsed Ex.PW3/B on the rukka.
9. PW-4 HC Shakti Singh deposed that on 09.05.2012, he was working as MHCM at PS: Hazrat Nizamuddin Railway Station and on that day, ASI/IO Kushal Pal Singh had deposited one ID card and made the entry in register no.19 at serial no.512 and also deposited one sealed parcel duly sealed with the seal of KPS and made entry in register no.19 along with some personal search articles of the accused and made entry in register no.19 Ex.PW4/A. He further deposed that on 11.06.2012, the aforesaid sealed parcels were sent to FSL Rohini through Ct. Raj Kumar vide Road Certificate No.32/21/12. The copy of RC is Ex.PW4/B (OSR) and he handed over the acknowledgment vide Ex.PW4/C (OSR) to him.
10. PW-5 Ct. Raj Kumar deposed that on 11.06.2012, he was posted as constable at PS: Hazrat Nizamuddin Railway Station. On that day, on the directions of IO, he took the seal exhibit from the Malkhana vide RC No.31/21/12 to FSL Rohini and deposited the same. After depositing the same, he came back to PS and handed over the copy of receipt to MHCM.
11. PW-6 Constable Rajender Singh deposed that on 09.05.2012, he was posted as Constable at PS: Hazrat Nizamuddin Railway Station.
Sessions Case No. 83/2014 6/14FIR No. 52/2012: PS: HNRS U/s.: 328/379/411/420/511 IPC State Vs. Vipin Kumar @ Rahul On that day, his duty was at Sarai Kale Khan foot over bridge. He was checking the luggage of the passengers, who was passing through the bridge and in this process at about 02:30 pm, he heard noises of chor- chor coming from the side of cloak room. He was standing near the stairs, the accused was running and behind the accused, the complainant/PW-2 Virender Kumar was running. When he reached there, he saw that the accused was apprehended by the complainant/PW-2 and some passengers were also gathered there. The complainant/PW-2 told him that in the bag of the accused, his stolen articles as well as cash were kept. The passengers who were collected at the spot refused to join the investigation with the reasons best known to them. He further deposed that the accused as well as his bag was taken to PS, where in the presence of IO/ASI K P Singh, the bag was opened/checked and found that the army I card and PAN card, canteen smart bag and Rs.1,300/- cash were lying in an army pouch, which was identified by the complainant, when shown to him. Apart from these recoveries, one army pouch was also recovered containing some articles of another person namely Krpai. He further deposed that two mobile phones make Samsung having SIM card were also recovered. One strip of medicine namely 'Lorazepam' tablets were found containing 8 tablets and 2 tablets were already removed from the strip. ASI K P Singh prepared the pulanda of strip vide Ex. PW2/D and sealed with the seal of KPS and he filled up the FSL form. The aforementioned recovered items were taken into possession vide seizure memo Ex. PW2/C along with mobile phones Ex.PW2/E. PW-6 further deposed that pouch of military colour was also recovered from the bags and same were having the ID card, PAN card Sessions Case No. 83/2014 7/14 FIR No. 52/2012: PS: HNRS U/s.: 328/379/411/420/511 IPC State Vs. Vipin Kumar @ Rahul and other items related to Sunil Kumar and Karuppaiyav and the same was seized by the IO vide seizure memo Ex.PW2/A. IO arrested the accused vide arrest memo Ex.PW2/G and also conducted his personal search vide Ex. PW2/H. He identified one mobile phone of white colour make Samsung and one military colour pouch from which one ID card issued by the army, one PAN card and one SBI card in the name of Karuppaiya produced by Ct. Sanjeev Kumar, MHCM of PS: Hazrat Nizammuddin. He further deposed that the aforementioned articles were recovered from the bag of the accused. The cards are collectively Ex. P3. MHCM further produced one sealed pulanda containing the envelope, one strip of the medicine ATIVAN 2 MG LORAZEPAM. The tablets were ½ tablet in the strip and space of three tablets was vacant, which PW-6 had taken from the bag of the accused and the same is Ex.P4.
12. PW-7 Dr. Amar Pal Singh, Assitant Director (Chemistry), FSL, Govt. of NCT, Rohini, Delhi deposed that on 11.06.2012, he received one sealed parcel sealed with the seal of KPS with FSL form from PS: Hazrat Nizamuddin in FSL vide FIR No.52/12 dated 09.05.2012. The same was marked to him for examination. He further deposed that on opening the sealed parcel, he found Ex.P1 i.e., one wrapper labelled as "wyeth" Nrx- Lorazepam tablets BP ATIVAN-2 mg containing eight light orange tablets each labellted as Wyeth. Result of examination was found to contain Lorazepam i.e., a drug of Benzodiazepines group and used as sedative. He further deposed that he prepared the report Ex.PW7/A. He further deposed that after the examination, Ex.1 was sealed with the seal of APS, FSL, Delhi.
Sessions Case No. 83/2014 8/14FIR No. 52/2012: PS: HNRS U/s.: 328/379/411/420/511 IPC State Vs. Vipin Kumar @ Rahul
13. PW-8 IO/ASI Kushal Pal deposed that on 09.05.2012, he was posted at PS: Hazrat Nizamuddin Railway Station and on the said day at 02:45 pm Ct. Rajender alongwith complainant/PW-2 Virender came to the PS and produced the accused Vipin Kumar, who was having a shoulder bag of blue and black colour. He further deposed that the complainant/PW-2 informed him that accused induced him and took his documents kept in a military pouch from his possession. He further deposed that the said pouch was containing ID card issued by Army, two PAN cards, two canteen smart cards, one SBI ATM and cash of Rs.1,300/-. He checked the bag and found 3 military pouches therein. One pouch was containing the articles of complainant/PW-2, who identified his articles. From the second pouch, one ID card, SBI ATM card and one PAN card in the name of Karuppiayav were found. From the third pouch, one ID card issued by Army, one Driving license, one PAN card and two canteen cards in the name of Sunil Kumar, 3 SBI ATM cards and other articles were found. Two mobile phones make Samsung, one in white and another in black colour and one strip of medicine namely Lorazepam tablet was also recovered. There were 8 tablets, out of which two tablets were already used. He prepared the pulanda of strip and took into his possession vide seizure memo Ex. PW2/D. He further deposed that he recorded the statement of complainant/PW-2 Virender Singh Ex.PW2/A. He seized the articles of PW-2 Virender Singh including the cash of Rs.1,300/- recovered from the bag of the accused Vipin Kumar vide seizure memo Ex. PW2/C. He also seized the documents relating to Karuppaiyav vide seizure memo Ex.PW2/B. He also seized the documents related to Sunil Kumar and ATM card of Savitri recovered from the bag of accused vide seizure Sessions Case No. 83/2014 9/14 FIR No. 52/2012: PS: HNRS U/s.: 328/379/411/420/511 IPC State Vs. Vipin Kumar @ Rahul memo Ex.PW2/F. Further, he seized both mobile phones Samsung without any SIM card recovered from the bag of accused vide siezure memo Ex.PW2/F and the slip of the cloak room Ex.X given by complainant/PW-2 Virender Singh vide seizure memo Ex. PW8/A. He arrested the accused vide arrest memo Ex.PW2/G and conducted his personal search vide memo Ex.PW2/H. He interrogated the accused and recorded his disclosure statement Ex.PW8/B. PW-8 further deposed that he received the copy of FIR and rukka and mentioned the FIR number on the documents prepared by him. He prepared the site plan Ex.PW8/C, when he along with complainant went to the spot towards Sarai Kale Khan. He also recorded the statement of Daulat Ram/PW-1. Accused was put behind the bar after his medical examination.
On 11.06.2012, the sealed pulanda was got sent to the FSL, Rohini through Ct. Raj Kumar/PW-5. After completion of investigation, he prepared the charge sheet and filed it before the concerned court through SHO concerned. After receipt of the FSL result, he prepared the supplementary charge sheet with the FSL result.
At that time, Ct. Sanjeev Kumar on behalf of MHCM of PS:
Hazrat Nizamuddin produced one mobile phone from which one ID card issued by the army, one PAN card and one SBI card in the name of Karuppaiyav were shown to him, which he identified correctly. The cards are collectively Ex. P3. The mobile phone make Samsung is Ex. P3A. MHCM also produced one pulanda bearing the case particular. From the envelope, one strip of the medicine ATIVIAN 2 MG LORAZEPAM was taken out and the tablets are ½ table in the strip and space of the 3 tablets were vacant and shown to him, which he correctly identified and the same Sessions Case No. 83/2014 10/14 FIR No. 52/2012: PS: HNRS U/s.: 328/379/411/420/511 IPC State Vs. Vipin Kumar @ Rahul is Ex.P4. No other witness has been examined by the prosecution.
14. Statement of accused has been recorded u/sec. 313 Cr.PC wherein all the incriminating evidence were put to the accused. However, in reply, he submitted that he is an innocent person and has been falsely implicated in this case and he did not know why the prosecution witnesses have deposed against him. Further he did not wish to lead evidence in defence and matter was listed for arguments.
15. I have heard the arguments advanced on behalf of prosecution as well as accused.
16. Having heard the arguments and gone through the deposition of all examined witnesses. I find that the material/eye witnesses of this case namely PW-1 Daulat Ram and PW-2 Virender Singh have not supported the case of prosecution. PW-1, in his examination in chief, did not identify the accused, present in the court. Even during his cross examination by the Addl. PP he denied the suggestion that accused Vipin Kumar present in the court was the same person who came to him for taking the goods deposited in the cloak room and was apprehended at the spot.
Further during the cross examination of PW-2 Virender Singh by the counsel for defence, he stated that when he returned from the upstairs after 20-25 minutes he found accused standing there only where he had left him. He further stated that the tea which he had was not of different taste and he did not became unconscious after having his tea. He further stated that he left for the police station 5-7 minutes after the Sessions Case No. 83/2014 11/14 FIR No. 52/2012: PS: HNRS U/s.: 328/379/411/420/511 IPC State Vs. Vipin Kumar @ Rahul accused had gone to the toilet and when he came back with the police officials at the spot accused remained stayed there only. He also stated that the PAN card, ATM card, copy of election ID card and cash were not recovered from the accused in his presence and even the accused was not arrested in his presence. PW-2 also did not know as to when the accused was produced before the court and he did not remember as to how many papers were got signed by him in the police station.
17. Having gone through the testimonies of aforesaid examined prosecution witnesses PW-1 and PW-2, I observe that they have completely resiled from their earlier statements and therefore, as per law benefit of doubt in such case, is to be given to the accused.
Ld. Counsel has placed reliance upon the case viz:
(i) Mukesh Chand & Others v. State (Govt. of NCT of Delhi) 2010 (1) JCC 750 and
(ii) Kalu Singh & another v. State, 2011 (1) JCC 259.
18. So far as the charges framed against the accused u/sec. 328 IPC r/w Section 511 IPC and 420 IPC and 406 IPC and in the alternative 379 IPC are concerned, it is evident that prosecution has miserably failed to establish its case against the accused for the aforesaid charges beyond reasonable doubt. Further so far as charges against the accused u/sec. 411 IPC is concerned in that case also, I find that there are several contradictions in the statements of examined prosecution witnesses on the point of recovery. Since the PW-2 has clearly stated that he was not present at the time of recovery of the stolen articles and even the accused was not arrested in his presence. On the other hand, prosecution Sessions Case No. 83/2014 12/14 FIR No. 52/2012: PS: HNRS U/s.: 328/379/411/420/511 IPC State Vs. Vipin Kumar @ Rahul witnesses have deposed that the recovery of the articles and arrest of the accused were made in the presence of PW-2/complainant Virender Singh. In the case titled as 'Devesh Kumar Vs. State (NCT of Delhi)' CRL Appeal no. 793/04 of Hon'ble Delhi High Court it was observed as under:
"..........44. It is settled law that where the case of the prosecution had substantially fallen, remnants of what is perceived to be not tainted is not sufficient to sustain a conviction, for the reason it may be difficult for the defence to demolish each and every piece of evidence led by the prosecution."
"45. When the main pillars of the case of the prosecution have fallen, it would be futile to look to the pillars which stand and try and ascertain whether the structure can be salvaged"......
19. In the light of above discussion, I find that prosecution has miserably failed to establish its case against the accused for the aforesaid charges beyond reasonable doubt, therefore, the accused Vipin Kumar is acquitted from the charge for the offence punishable under section 328/379/411/420/511 IPC.
20. In terms of section 437-A Cr.PC, the accused person is directed to furnish a bail bond of Rs.20,000/- with one surety in the like amount with the condition that he shall appear before the Hon'ble High Court as and when such notice is issued in respect of any appeal/revision Sessions Case No. 83/2014 13/14 FIR No. 52/2012: PS: HNRS U/s.: 328/379/411/420/511 IPC State Vs. Vipin Kumar @ Rahul filed by the State against this judgment within a period of 06 months.
21. File be consigned to Record Room.
Announced in the open court
on 30th September, 2014 (TARUN SAHRAWAT)
ADDITIONAL SESSIONS JUDGE-06
THC/DELHI/30.09.2014
Sessions Case No. 83/2014 14/14
FIR No. 52/2012: PS: HNRS
U/s.: 328/379/411/420/511 IPC
State Vs. Vipin Kumar @ Rahul