Delhi District Court
State vs Shabir@Ganja on 4 January, 2025
IN THE COURT OF SH. DEEPAK WASON:
ASJ-04: SW DISTRICT: DWARKA COURTS: NEW DELHI
SC No. 227/2022
CNR No. DLSW01-003148-2022
State Vs. (1) Shabir @ Ganja (since PO)
S/o Sh. Abid
R/o- C-673, J.J. Colony, Shiv Vihar,
Uttam Nagar, Dwarka, Delhi
(2) Pradeep Kashyap
S/o Sh. Ram Gopal
R/o- C-549, J.J. Colony, Shiv Vihar, Uttam
Nagar, Dwarka, Delhi.
FIR No. : 264/2021
Police Station : Najafgarh
Under Sections : 328/379/34 IPC
Date of committal to Sessions Court : 02.04.2022
Date on which judgment was reserved : 17.12.2024
Date on which Judgment pronounced : 04.01.2025
Final order : Acquitted for the offence
u/s 328/34 IPC and convicted
for the offence u/s 379/34
IPC
JUDGMENT
BRIEF FACTS OF THE CASE:
1. Brief facts in nutshell, are that on 01.06.2021, on receiving of DD no.113, ASI Dharamvir alongwith Ct Sumit reached at the spot i.e Ganda Nala, near Ghasipura Picket, where they found complainant Sh.
Sunny alongwith his uncle. Thereafter, on the directions of ASI Dharamvir, Ct. Sumit took the complainant Sunny for his medical examination and after medical examination, complainant and Ct. Sumit reached back at the FIR No. 264/2021 State Vs Shabir @ Ganja & Anr Page 1 of 15 spot, where, statement of complainant was recorded and accordingly, rukka was prepared and thereafter, present FIR was registered and ASI Dharamvir also prepared site plan at the instance of the complainant. In the statement, complainant stated that he was plying a Rikshaw and on 01.06.2021, at about 09:00PM, he took 4 passengers from Lal School to drop them at Dwarka Mor and two passenger dropped at Macchi Market and two passengers were to be dropped at Dwarka Mor. He further stated that one person got down from E Rikshaw and brought frooti bottle and gave him in one glass and after consuming the same, he fell down unconscious and when he regained consciousness, he found that both boys took his E- rickshaw, mobile phone Samsung and purse containing Rs. 2000/- .
2. On the basis of his statement, FIR was lodged. During the investigation, both accused were arrested in some other case and they disclosed their involvement in the present case and during TIP proceedings, both were identified by the complainant. Nothing was recovered from both accused relating to the present case. After investigation, charge sheet was filed. The matter was committed to this court by this court on 02.04.2022 Thereafter charge was framed against both accused U/s 328/379/34 IPC on 12.07.2022.
3. During the course of the trial, prosecution examined 8 witnesses to substantiate the accusations leveled against the accused.
4. PW-1 is the complainant Sh. Sunny whose testimony would be considered at relevant stage.
FIR No. 264/2021 State Vs Shabir @ Ganja & Anr Page 2 of 155. PW-2 is the HC Azad Singh who has deposed that on 19.10.2021, after receipt of secret information to ASI Vinod, he along-with ASI Vinod, ASI Ashok, Ct. Shambhu reached Radha Swami Satsang, Main road, Sec-23, along-with secret informer and had checking the vehicles by keeping picket and at about 07:30 PM, 2 persons, came on a scooty and then they asked them to stop, the said persons had stopped the scooty. He further deposed that accused Pradeep was driving the said vehicle and accused Shabir @ Ganja was the pillon rider and their names of the said persons revealed later. He further deposed that on checking accused Shabir @ Ganja from the right side pant Pajama, one buttondar knife was found and the said knife was taken and ASI Vinod had prepared the sketch of the knife and he prepared Rukka and handed over the same to Ct. Shambhu for registration of FIR and he seized the said knife. He further deposed that Ct Shambhu came back to the spot after registration of FIR no. 432/21 along- with HC Gangadhar. He further deposed that HC Gangadhar had arrested the both accused persons. He further deposed that IO prepared the arrest memo of both the accused and signed the arrest memo of accused Pradeep Kashyap as Ex. PW-2/A(OSR). He further deposed that IO recorded disclosure statement of both the accused persons. This witness was cross examined by the Ld. defence counsel.
6. PW-3 is ASI Ganga Dhar who has deposed that on 19.10.2021, DO had send Ct. Shambhu and got handed over the copy of FIR and original Rukka as the investigation of FIR no. 432/21, was marked to him and thereafter, he along-with Ct. Shambhu reached at Pochanpura, Main road, FIR No. 264/2021 State Vs Shabir @ Ganja & Anr Page 3 of 15 Sec-23, Radha Swami Satsang, where they met ASI Vinod, Ct. Azad, ASI Ashok who apprehended both the accused persons whose name revealed as Shabir @Ganja and Pradep Kashyap. He further deposed that ASI Vinod handed over the knife which was duly sealed. He further deposed that he arrested accused Shabir @ Ganja as PW-3/A (OSR) and accused Pradeep Kashyap vide memo as Ex. PW-2/A. He further deposed that he recorded the disclosure statement of Accused Pradeep and Shabir @ Ganja vide memos as Ex. PW-3/B and PW-3/C (OSR) and had also disclosed about the involvement of the present case. He further deposed that as per the disclosure statements, accused persons were taken to Shiv Vihar Ganda Nala where accused Shabir pointed out towards one E-Rikshaw bearing no. DL 4ERA1182 and thereafter, he seized the said riksha u/s 102 Cr. PC as the same was stolen property of case e-FIR 0008891/21, PS Ranhola, ND and accused Shabir also got recovered Dolphin Battery, he seized the same u/s 102 Cr. PC as the same were stolen in e-FIR no. 21874/21 PS Uttam Nagar, vide memos as Mark A and Mark B. He further deposed that at the instance of accused Pradeep he seized two E-rikshaw battery u/s 102 Cr. PC as the same was stolen in E-FIR no.025891/21, PS Vikas Puri as mark C and he also seized two E-Riksha Batteries at the instance of accused Shabir u/s 102 Cr. PC as the same were stolen property of E-FIR no. 733/21, as memo Mark D. He was cross examined by the Ld. defence counsel.
7. PW-4 is ASI Santosh who has deposed that on 02.06.2021, at about 09:00 AM, ASI Dharamveer produced rukka and on the basis of which, he registered FIR no. 264/2021 as Ex. 4/A. He further deposed that the copy of FIR No. 264/2021 State Vs Shabir @ Ganja & Anr Page 4 of 15 FIR was got print out from the computer and he issued certificate u/s 65 B as Ex. PW-4/B. He further deposed that he made endorsement on the Rukka as Ex. PW-4/C. He further deposed that after registration of the case, he handed over the copy of FIR and original Rukka to ASI Dharamveer as the investigation was marked to him. This witness was not cross examined by the Ld. defence counsel.
8. It is a matter of record that on 20.12.2022, accused Shabir was not present and thereafter, he remained absent and was declared PO on 12.04.2023. It is also matter of record that an application u/s 311 Cr. PC moved on behalf of accused Pradeep for recalling the PW-1/complainant for his cross examination was allowed and accordingly, on 21.03.2024 PW-1 Sunny was cross examined by accused Pradeep. It is also matter of record that on 21.03.2024, statement of accused Pradeep u/s 294 Cr. PC recorded wherein, he admitted the documents i.e. DD no. 93 A dated 20.10.21, TIP proceedings, and MLC no. 2272 as Ex. A-1 to Ex. A-3. On the same day, Ct. Sumit was also dropped from the list of witnesses.
9. PW-5 is ASI Dharamvir who has deposed that on 01.06.2021, on receiving of DD No. 113, he along-with Ct. Sumit reached at the spot i.e Ganda Nala near Ghasipura Picket, where complainant along-with his uncle found present. He further deposed that on his directions, Ct. Sumit took the complainant Sunny for the medical examination and he remained present at the spot. He further deposed that after medical examination, complainant and Ct. Sumit returned back at the spot and he recorded the statement of Sunny, as Ex. PW-1/A. He further deposed that thereafter, he prepared a FIR No. 264/2021 State Vs Shabir @ Ganja & Anr Page 5 of 15 Rukka, as Ex. PW-4/C and Rukka was handed over to Ct. Sumit for registration of FIR. He further deposed that after registration of FIR, Ct. Sumit returned back to the spot and handed over to him copy of FIR and original Rukka. He further deposed that thereafter, he prepared site plan at the instance of complainant, as Ex. PW-5/A. He further deposed that thereafter, he along-with complainant tried to trace out the accused persons, however, they could not be traced out and after that they went to PS. This witness was also cross examined by the Ld. defence counsel.
10. PW-6 is Ms. Preeti, Asst. Ahlmad who brought the summoned record of case file of FIR no. 432/21, PS: Sec-23 Dwarka as Ex. PW-6/A (OSR), arrest memo of accused Shabir @ Ganja and Pradeep Kashyap @ Disha in case FIR no. 432/21, as already Ex. PW-3/A and Ex. PW-2/A(OSR). Disclosure statement of accused Shabir @ Ganja and Pradeep Kashyap @ Disha in case FIR no. 432/21, as already Ex. PW-3/B and Ex. PW-2/C(OSR). Seizure memo u/s 102 Cr. PC of 4 dolphine battery as Ex. PW-6/B (OSR), pointing out memo and Seizure memo of E Rikshaw no. DL4ERA1182 as Ex. PW-6/C(OSR). Pointing out memo and Seizure memo of two E Rikshaw batteries as Ex. PW-6/C(OSR). Pointing out memo and Seizure memo of two E Rikshaw batteries u/s 102 Cr. PC of FIR no. 432/21, PS Dwarka Sec-23 are Ex. PW-6/D(OSR). This witness was not cross examined by the Ld. defence counsel.
11. PW-7 is ASI Dharamveer, who has deposed that on 21.10.2021, he moved an application for production warrants before the Court and on 25.10.2021 arrested both the accused persons vide arrest memos Ex. PW-7/A and PW-7/B and recorded their disclosure statements vide Ex.
FIR No. 264/2021 State Vs Shabir @ Ganja & Anr Page 6 of 15PW-7/C and PW-7/D. He further deposed that he also obtained dates from the Court for TIP proceedings of both the accused persons, which was fixed for 20.12.2021 and thereafter, investigation was marked to some other IO. This witness was cross-examined by the Ld. defence counsel.
12. PW-8 ASI Kapoor Singh, who has deposed that on 10.12.2021, the TIP proceedings of accused persons were already fixed and he tried to contact complainant Sunny but he could not be traced and on the same day, he obtained fresh date for TIP which was fixed for 20.12.2021. He further deposed that on 20.12.2021, SI Ram Niwas got conducted the TIP of both accused persons on his behalf and TIP proceedings as Ex. A-2. He further deposed that during TIP proceedings both the accused persons were correctly identified by the complainant and thereafter, he prepared the charge sheet and filed the present case. This witness was also cross examined by the Ld. defence counsel.
13. It is a matter of record that on 23.10.2024, Ct. Shimbhu was also dropped at the request of Ld. Addl. PP for the State and thereafter, PE was closed and statement of accused was recorded under Section 313 Cr.P.C wherein, he has stated that he has been falsely implicated in the present case and did not wish to lead defence evidence and thereafter, final arguments were heard.
14. I have heard Sh. Brijesh Kumar, Ld. Addl. PP for the State as well as Ld. defence counsel. I have also gone through the entire record.
FIR No. 264/2021 State Vs Shabir @ Ganja & Anr Page 7 of 1515. The accused Pardeep is facing trial before the Court for the offences under Section 328/379/34 IPC on the allegations that on 01.06.2021 at around 09:15 AM he along with his co-accused Shabir @ Ganda (since PO) in furtherance of their common intention had mixed some stupefying substance in frooti to the complainant in order to commit theft and committed theft of complainant's E-Rikshaw, mobile phone make Samsung, and purse consisting of Rs.2000/-. Now, in these circumstances, the testimony of the complainant is very relevant, who was examined as PW-1.
16. PW-1 is Sunny who has deposed that he was plying e-rickshaw for his livelihood for the last 4 years and on 01.10.2021 i.e when the first lock down has been lifted, he was taking his e-rickshaw. He further deposed that at about 9:00 A.M., he took 4 passengers from Lali School, Baprola to drop them at Dwarka Mor. He further deposed that 2 passengers boarded at Machchi Market and he had to drop those two passengers at Service Road, Dwarka Sector-3, i.e, the accused persons. He further deposed that when he was about to drop them at Dwarka Sector-3, the accused persons, accused got down from e-rickshaw and had got frooti bottle two empty glasses alongwith namkeen pack and had given him, the frooti in a glass and after consuming the said frooti, he got intoxicated and he fell down unconscious. He further deposed that he regained consciousness on the next day morning and he was lying on the road. He further deposed that his e-rickshaw was not there and he recollected the incident that he kept his Samsung phone A10 and purse which was having Rs.2,000/- in a plastic cover which was kept in the said e-rickshaw. He further deposed that the accused persons after getting him intoxicated, took his e-rickshaw which was having his FIR No. 264/2021 State Vs Shabir @ Ganja & Anr Page 8 of 15 Samsung phone A10 and purse which was having Rs.2,000/- in a plastic cover and he went to his house and informed to his father Kishan Pal. He further deposed that thereafter, he gave complaint to the police. This witness has correctly identified the accused before the Court. He was cross examined at length by the Ld. defence counsel.
17. First, this court has to see whether accused has committed offence under Section 328/34 IPC. In this regard, PW-1 has deposed that one of the accused got down from E-Rikshaw and got frooti bottle, two empty glasses alongwith namkeen pack and had given one him the frooti in a glass and after consuming the said frooti, he got intoxicated and fell down unconscious. It is tried to be proved by the prosecution that accused had administered some stupefying substance to PW-1.
18. At this stage, it would be relevant to go through Section 328 IPC which is 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 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 ingredients of Section 328 IPC and the nature of evidence required to establish an offence under the said provision was explained by FIR No. 264/2021 State Vs Shabir @ Ganja & Anr Page 9 of 15 the Hon'ble Supreme Court in Joseph Karlan Philip Jose Vs. State of Kerala 1994 IV AD (CL) 31 (1994) 6 SCC 535. The relevant portion of the decision is reproduced herein-under:-
"10. In order to prove offence under Section 328 the prosecution is required to prove that the substance in question was a poison, or any stupefying, intoxicating or unwholesome drug, etc., that the accused administered the substance to the complainant or caused the complainant to take such substance, that he did so with intent to cause hurt or knowing it to be likely that he would thereby cause hun, or with the intention to commit or facilitate the commission of an offence. It is, therefore, essential for the prosecution to prove that the accused was directly responsible for administering poison etc. or causing it to be taken by any person, through another. In other words, the accused may accomplish the act by himself or by means of another. In either situation direct, reliable and cogent evidence is necessary."
20. Further, in Prashant Bharti Vs. State (NCT of Delhi) 2013 II AD (SC) 89-(2013) 9 SCC 253, the Hon'ble Apex Court had quashed the charge under Section 328 IPC observing that allegations levelled by the prosecutrix of having been administered some intoxicant in a cold drink could not be established by the cogent evidence. The relevant observations read as under:-
"23.9. Ninthly, as per the medical report recorded by the AIIMS dated 16.2.2007, the examination of the complainant did not evidence her having been poisoned. The instant allegation made by the complainant cannot now be established because even in the medical report dated 16.2.2007 it was observed that blood samples could not be sent for examination because of the intervening, delay. For the same reason even the allegations levelled by the accused of having been administered some intoxicant in a cold drink (Pepsi) cannot now be established by cogent evidence."FIR No. 264/2021 State Vs Shabir @ Ganja & Anr Page 10 of 15
21. In another case titled as Mahinder Kumar Vs. State 2017 SCC Online Del 8327, in an appeal, had expressed that it was difficult to uphold the conviction under Section 328 IPC merely on the basis of oral evidence. The relevant portion of the decision is extracted as under:
In view of the aforesaid discussion, scrutiny of testimonies of prosecution as well as defence witnesses and the MLC of the victim, it is clear than the findings rendered by the learned Trial Court are passed only on the testimony of injured witness. But in the absence of any medical evidence corroborating the allegation of the injured, convicting the appellants for the offence under Section 328 of IPC does not seem to be justified in the facts of the present case, especially when the prosecution has not seized any liquid/substance for taking expert opinion so as to know the substance was poisonous, stupefying, intoxicating or unwholesome drug. Prosecution has also not produced any witness to rebut the plea of alibi on behalf of the appellants except that of the injured witness. However, the appellants have produced two witnesses in their defence and merely because they did not prove the presence of the appellants at the spot, therefore, they were declared hostile.
22. Similar view was adopted earlier by Hon'ble High Court in Mukesh Chand Vs. State (Govt. of NCT of Delhi) 2010 SCC OnLine Del 379, whereby it was held that:
Surprisingly, no chemical report about the "stomach wash" has been proved on record. It is well settled that in order to prove Section 328 IPC, the prosecution is required to prove that the substance in question was a poison."FIR No. 264/2021 State Vs Shabir @ Ganja & Anr Page 11 of 15
23. In the present case, it is tried to be proved by the prosecution that accused had administered some stupefying substance to PW-1 but medical evidence in the shape of MLC shows nothing. There is no medical evidence to prove that complainant was administered any stupefying or intoxicating drug. Further, the statement of the owner from where the frooti was purchased, was also not recorded in the present case. Therefore, the oral testimony of PW-1 as to the administration of stupefying substance to him by the accused is not corroborated by medical evidence. Hence, in such circumstances, case against the present accused cannot be said to have been proved beyond reasonable doubt for the offence u/s 328/34 IPC and hence, the present accused Pradeep cannot be convicted for the offence under Section 328/34 IPC.
24. The accused is also facing trial for the offence under Section 379/34 IPC. In order to prove the offense U/s 379/34 IPC against accused, the prosecution was required to prove beyond reasonable doubt that accused had committed theft of E-Rikshaw , Samsung Phone, purse having cash of Rs. 2000/-.
25. It is a settled law that as a general rule the court can and may act on the testimony of a single witness provided, he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. But if there are doubts about the testimony, the court will insist on corroboration. It is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral FIR No. 264/2021 State Vs Shabir @ Ganja & Anr Page 12 of 15 testimony in this context may be classified into three categories, namely:
i) Wholly reliable.
ii) Wholly unreliable.
iii) Neither wholly reliable nor wholly unreliable.
26. In the first category of proof, the court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.
27. In Jagdish Prasad v. State of M.P. (AIR 1994 SC 1251). The Hon'ble Supreme Court held that as a general rule the court can and may act on the testimony of a single witness provided, he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short 'the Evidence Act'). But if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time-honored principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise.
FIR No. 264/2021 State Vs Shabir @ Ganja & Anr Page 13 of 1528. Law of Evidence does not require any particular number of witnesses to prove a relevant fact. In the case of Joseph Vs. State of Kerala [AIR 2003 SC 507(510)], Hon'ble Apex Court held: -
"...................Section 134 of the Indian Evidence Act provides that no particular number of witnesses in any case be required for the proof of any fact and, therefore, it is permissible for a court to record and sustain a conviction on the evidence of a solitary eye-witness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard, when prosecution case rests mainly on the sole testimony of an eye-witness, it should be wholly reliable."
29. The testimony of PW-1 shows that he is consistent and despite cross- examination, no contradiction in material aspect could be brought in his examination. Although, no recovery has been effected from the accused but this is not fatal to the case of the prosecution. Complainant has specifically deposed that both accused persons had took his mobile phone, E- Rikshaw, and pursue having cash of Rs. 2000/-. He has specifically identified the accused before the Court in his examination. He was cross examined at length. In cross, nothing could be elicited which may raise doubt regarding the trustworthiness of this witness. There are certain minor contradictions which cannot go to the root of the case. Accused also failed to point out any reason to involve him by the complainant in a false case.
30. PW-1 is the complainant and he has been consistent in his deposition. Theft deals with the Section 378 of IPC and punishment is deal with the Section 379 of the IPC. The bare reading of Section 378 shows that whoever, intending to take dishonestly any movable property out of the FIR No. 264/2021 State Vs Shabir @ Ganja & Anr Page 14 of 15 possession of any person without the person's consent, moves that property in order to such taking, is said to commit theft. PW-1 has specifically deposed about the movable property taken by the accused persons. I see no reason to disbelieve the complainant with respect to theft of movable articles as the incident was reported to the police immediately and police officials reached the spot. In the present case, it is clear that accused dishonestly took the movable property from the possession of the complainant without his consent. Further, the complainant has nothing to gain by reporting a false complaint of theft. Hence, all the ingredients of Section 378 of IPC are made out. Other witnesses have joined / conducted the investigation and nothing could be elicited in their examination by the Ld. defence counsel.
31. In view of the submissions made above, accused Pradeep Kashyap deserves to be given the benefit of doubt and is hereby acquitted of the charges U/s 328/34 IPC. Although, prosecution has established beyond reasonable doubt that it was accused who along with the co-accused (since PO) committed the theft from the complainant and accordingly, he is convicted under section 379/34 IPC.
32. Put up the matter for hearing on the point of sentence for the offence under Section 379/34 IPC after complying with the judgment of Karan vs Digitally signed State [2020] DLT 352.
by DEEPAK DEEPAK WASON WASON Date:
2025.01.04 11:05:08 +0530 Announced in open Court (Deepak Wason) today i.e 04.01.2025 Additional Sessions Judge-04 South-West: Dwarka Courts:
New Delhi FIR No. 264/2021 State Vs Shabir @ Ganja & Anr Page 15 of 15