Delhi District Court
State vs . Naresh Kumar Arora And Another on 27 September, 2018
IN THE COURT OF O. P. SAINI: ADDL. SESSIONS JUDGE/SPL.
JUDGE (CBI04), PATIALA HOUSE COURT, NEW DELHI
SC No. 06/2018
State Vs. Naresh Kumar Arora and Another
FIR No. 322/2006
U/s: 451/323/342/506/328/511/34
PS: Tilak Marg
1. Date of Institution : 09.04.2007
2. Date of Commencement
of Final Arguments : 01.08.2018
3. Date of Conclusion of
Final Arguments : 20.08.2018
4. Date of Reserving Order : 20.08.2018
5. Date of Pronouncement : 27.09.2018
6. Whether Acquitted or
Convicted? : Convicted under Sections
451/323/342/506/34.
Present: Sh. Salim Khan, Addl. PP for the State.
Sh. G. K. Bharti, Advocate for accused Naresh Kumar
Arora.
Sh. Rajesh Kumar, Advocate for accused Rakesh Kumar
Arora.
JUDGMENT
Accused Naresh Kumar Arora and Rakesh Kumar Arora stand charged as under:
"That on 24.8.06 at about 8.20 am at ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 1 of 54 Chamber No. 208, 2nd Floor, Delhi High Court you both in furtherance of your common intention committed house trespass by entering the above address in order to commit the offence of 323, 342, 506 and 328 IPC punishable with imprisonment and thereby committed an offence punishable U/s 451 r/w 34 IPC and within the cognizance of the Court of Sessions.
Secondly, on the above said date, time and place you both in furtherance of your common intention voluntarily caused hurt to Hiteshi Arora and thereby committed offence punishable U/s 323 r/w 34 of IPC and within the cognizance of the Court of Sessions.
Thirdly, on the above said date, time and place you both in furtherance of your common intention wrongly confined Hiteshi Arora at the above address and thereby committed an offence punishable U/s 342 r/w 34 of IPC and within the cognizance of the Court of Sessions.
Fourthly, on the above said date, time and place, you both in furtherance of your common intention threatened Hiteshi Arora to cause her death and thereby committed the offence of criminal intimidation punishable U/s 506 r/w 34 of IPC.
Fifthly, on the above said date, time and place you both in furtherance of your common intention attempted to administer a solution of detergent powder and ink containing sodium ion, a poison and thereby committed the offence punishable U/s 328/511 r/w 34 of IPC."
___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 2 of 54 Brief Facts of the Case
2. The instant case was registered on 24.08.2006 on the allegations that complainant Ms. Hiteshi Arora, is a practicing advocate and was operating from Chamber No. 208, Second Floor, Delhi High Court, which belonged to Sh. B.R. Handa, the then Senior Advocate. Ms. Poonam, sister of the complainant, was having a matrimonial dispute with her inlaws and the complainant was taking care of her litigation in this regard. On 22.08.2006, the complainant received two telephonic calls from an unknown person telling her to accept a murder case and that he would handover his file to her. On this, she told him to hand over the file in the presence of his colleague advocates, but the caller kept insisting on handing over the file to her alone and told her that he would come in a day or two. On 24.08.2006, she came to her chamber at about 7.20 AM and had begun her work for the day. At about 8.20 AM, Naresh Arora, who is husband of her sister Poonam, and Rakesh Arora, who is his younger brother, forcibly entered her chamber. At that time, she was alone. They asked her not to pursue the litigation on behalf of Ms. Poonam. On her refusal, both started beating her with legs and fists. They also hit her with the telephone instrument lying in the chamber and also attempted to strangulate her. Both of them tied her to the chair lying in the chamber with her own chunni and kept beating her. Rakesh Arora dissolved ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 3 of 54 detergent and ink lying in the chamber in a glass and mixed it with water. Naresh Arora caught hold of her and Rakesh Arora tried to force the solution in her mouth. However, in the ensuing grappling the solution fell on her clothes. Both of them kept threatening her repeatedly saying that they would finish her. They kept beating her for 1015 minutes and during this time continued to threaten her to not to pursue the litigation on behalf of her sister failing which she would be killed. Thereafter, they left threatening her with consequences. She was untied by her colleague Sh. Dharmender with the help of others and rushed to RML Hospital.
3. During investigation, crime team was called to the spot and the Investigating Officer prepared a site plan. The scene for crime was also got photographed. Broken glass pieces, a broken mobile phone and pieces of chunni were seized from the spot. The clothes worn by the complainant at the time of incident were also seized. MLC of the complainant was collected from the hospital, call details of the mobile numbers of the accused and complainant were also obtained, exhibits were sent to FSL and result was obtained, both accused were arrested, statements of the witnesses were recorded, investigation was completed and the chargesheet was filed in the court.
Committal of the Case and Framing of Charge
4. On completion of the formalities under Section 207 ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 4 of 54 Cr.P.C., the case was committed to the court of Session on 14.09.2007.
5. Vide order dated 19.12.2007, my learned Predecessor was pleased to frame the charges as extracted above, which were read over and explained to both the accused to which they pleaded not guilty and claimed trial.
Prosecution Evidence
6. In support of its case, prosecution has examined twenty witnesses in all.
7. PW1 is Ms. Hitesh Arora, complainant of the case. In her testimony she has deposed about the case in detail as narrated by her to the police. She has proved her statement Ex.PW1/A, on which the instant case was registered. She has also proved her letters Ex.PW1/B, Ex.PW1/B1, Ex.PW1/B2 and Ex.PW1/C, which she wrote to the Investigating Officer. She also proved the seizure memo Ex.PW1/D of her cloths. Seizure memo of her chunni is Ex.PW1/E. Her medical papers were seized vide Ex.PW1/F and Ex.PW1/G. She also handed over her some other documents vide seizure memo Ex.PW1/F1 to G8 to the IO. She identified her clothes as Ex.PW1/D1. Two pieces of her chunni are Ex.P1 to P3. A glass seized from the chamber is Ex.P4, though she did not identify it. Her broken mobile phone is Ex.P5.
8. PW2 is ASI Alka Sharma. On 24.08.2006, she was Duty ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 5 of 54 Officer in Police Station Tilak Marg and at about 9:35 AM, she received a call regarding the incident in Chamber No. 208, Second Floor, Delhi High Court, to the effect that someone had tried to commit murder of a lady advocate at about 8.30AM and also tied her legs and feet. She recorded the information vide DD Entry No. 7A, Ex.PW2/A and handed over the same to SI Om Prakash for necessary action.
9. PW3 is ASI Manish Chauhan. On 24.08.2006, he was posted in mobile crime team and on receipt of information about the incident in Chamber No. 208, Delhi High Court, he reached there and found three chance prints on a table and two on a tumbler and lifted the same. He also got the crime scene photographed. His report is Ex.PW3/A.
10. PW4 is HC Bahadur Singh. On 24.08.2006, he was working as Duty Officer in Police Station Tilak Marg from 9 AM to 5 AM. On receipt of a rukka from SI Om Prakash, he recorded the FIR Ex.PW4/A and also made an endorsement Ex.PW4/B on the rukka.
11. PW5 is Sh. R.K. Singh, Nodal Officer, Bharti Airtel Ltd. He has proved the call detail records of mobile numbers 9810971640, 9810858312 and 9810035757, Ex.PW5/A to D, belonging to the complainant and the two accused respectively.
12. PW6 is Sh. Dharmender Parsad, an advocate, who also used to work with the complainant in Chamber No. 208, Delhi ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 6 of 54 High Court. He deposed that on 24.08.2006 at about 8.30 AM, he received a call from Ms. Hitesh Arora to the effect that she had come early in the chamber as a client had to handover file of a murder case to her. He also deposed that when he was talking to her, she told her that the client had come and she was putting down the receiver, but before she could do it, he heard her weeping and when he asked her as to what the matter was, the phone was held up. He disconnected the phone and informed his senior, who asked him to reach the chamber. On reaching the chamber, he found the door of chamber closed and on opening it, he found that hands and legs of the complainant were tied with her own chunni and she was tied to a chair and she was weeping and crying. He called the clerk of a nearby advocate and other staff of the court and thereafter, untied the complainant. Police reached the spot and complainant was taken to hospital. A piece of chunni, a glass and a mobile phone were seized by the police from the chamber vide memos Ex.PW6/A to C. He identified the broken glass tumbler as Ex.P4.
13. PW7 is Sh. Inderjeet Singh Gaud, Care Taking Superintendent, Delhi High Court. He has deposed about the number of gates of the Delhi High Court and the security deployed over there.
14. PW8 is Sh. Rakesh Singhal. He used to work with Sh. T.L. Garg, Advocate in Chamber No. 208 in Delhi High Court. On ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 7 of 54 the asking of Sh. Dharmender Parsad, he went to Chamber No. 208, on 24.08.2006, where he saw the complainant tied to a chair.
15. PW9 is Smt. Anita, a sweeper employed in the High Court. On the asking of Sh. Dharmender Parsad, she also went to Chamber No. 208, on 24.08.2006, where she saw the complainant tied to a chair.
16. PW10 is ASI Om Prakash, the initial Investigating Officer of the case. On 24.08.2006, on receiving DD Entry 7A Ex.PW2/A, he alongwith Ct. Ashutosh reached Chamber No. 208, Second Floor, Delhi High Court, where he came to know that the complainant was removed to RML Hospital. He went to the hospital and recorded her statement Ex.PW1/A, made his endorsement Ex.PW9/A and got the instant case registered. He also seized a glass vide Ex.PW6/B. He also prepared a site plan Ex.PW9/B. He also summoned the crime team to the spot. He also arrested both the accused. He recorded statements of witnesses and also identified the chunni pieces Ex.P1 and P2. He also identified the glass as Ex.P4. He also recorded the statements of some witnesses. Thereafter, the investigation of the case was transferred upon him.
17. PW11 is Dr. Rana Anil Kumar Singh of RML Hospital. He has proved the MLC Ex.PW11/A of the complainant Ms. Hiteshi Arora.
18. PW 12 is Ct. Ashutosh. He had accompanied PW 10 ASI Om Prakash to the spot in Chamber No. 208, 2nd Floor, Delhi ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 8 of 54 High Court. He has deposed along the same lines as deposed to by PW 10 ASI Om Prakash.
19. PW 13 is Ct. Ram Kumar. On 23.03.2017, he had collected the sealed parcel relating to the instant case from the Malkhana of Police Station Tilak Marg and deposited the same in FSL, Rohini.
20. PW 14 is ASI Bhim Singh. On 28.08.2006, he was posted as Duty Officer in Police Station, Central Faridabad (Haryana). On receipt of a complaint by post, he registered an FIR under Section 498A/323/506 IPC, a copy of which is Ex PW 14/A.
21. PW 15 is SI Rajesh Maurya. On 10.10.2006, he was posted as SubInspector in Police Station Tilak Marg and on that day, investigation of the instant case was transferred to him. In the course of investigation, the complainant handed over to him a lady suit with slip Ex D1 and one dupatta Ex P3, which she wore at the time of incident. He seized the same vide seizure memo Ex PW 1/D & E. He also collected the MLC of the complainant and also photocopies of her private medical treatment papers. He also tried to collect finger prints of other inmates of Chamber No. 208 but the same were refused. He also collected the photographs, Ex PW 15/A1 to A11, and also call detail records, Ex PW 5/A & C. On 18.12.2006, the investigation of the instant case was transferred from him.
22. PW 16 is Ct. Kalyan Sethi. On 24.08.2006, he was ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 9 of 54 posted in Crime Team, New Delhi District. He went to the spot and took photographs of the scene of occurrence. The photographs are Ex PW 16/A1 to A18 and their negatives are Ex PW 16/B1 to B18.
23. PW 17 is Dr. Subhash Manchanda from Faridabad. He deposed that from 25.08.2006 to 28.10.2006, he had treated complainant Hiteshi at his clinic in Faridabad and prepared papers, Ex G1 to G4, in this regard.
24. PW 18 is Inspector Rajiv Kumar of Crime Branch. He deposed that investigation of the instant case was handed over to him on 20.12.2006. During the course of investigation, he had sent exhibits of the case to FSL. He also tried to obtain finger prints of the inmates of the Chamber of the complainant but the same were refused. He recorded statements of the witnesses, completed the investigation and filed the charge sheet.
25. PW 19 is HC Brij Prakash. He was posted as Malkhana Incharge in Police Station Tilak Marg in the year 2006 and 2007. He deposed about the exhibits of the instant case being deposited with him by different investigating officers and their also being sent to FSL, Rohini. He has proved the relevant entries in this regard as Ex PW 19/A and 19/B.
26. PW 20 is Sh. Jitender Kumar, Sr. Scientific Officer (Chemistry), FSL, Rohini, Delhi. He deposed that exhibits of the instant case were received in his office on 23.03.2007 and were marked to him for examination. The exhibits contained two pieces ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 10 of 54 of a chunni with yellow stains Ex. 1, one glass tumbler with white stains Ex. 2, one white colour slip with yellow stains Ex. 3A, one white kurta with yellow stains Ex 3B and one white dupatta with light colour stains Ex. 4. He deposed that on examination, these exhibits were found to contain sodium ions.
27. Thereafter, prosecution evidence was closed.
Statements of the Accused
28. Statements of both the accused were recorded under Section 313 CrPC wherein they denied the allegations to be incorrect stating that they were not present on the spot on 24.08.2006. Both of them expressed their desire to lead evidence in their defence and have examined four witnesses.
Defence Evidence
29. DW 1 is Sh. Anil Kumar, Assistant, Planning Commission. He deposed that there is no record of Delhi Police seeking permission from the office of accused Naresh Kumar before arresting him. He has proved a document, Ex DW1/A.
30. DW 2 is Ms. Poonam Arora. She is wife of accused Naresh Kumar Arora. She deposed that she married accused Naresh Kumar Arora on 07.02.1991. She also deposed that there were differences between her and her husband relating to her mental/physical torture due to dowry demand. She discussed the ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 11 of 54 differences with her sister Hiteshi Arora and she got a complaint prepared and filed the same against her husband and his brother. She deposed that the complaint contained false allegations and her sister misled her into filing the complaint. She also deposed that the complainant is an egoistic lady.
31. DW 3 is Sh. Topan Dass. He is father of both the accused. He deposed that his sons have been falsely implicated in this case, and in this regard he had filed several complaints with different authorities.
32. DW 4 is Sh. Basant Lal Adlakha. He is the neighbour of both the accused. He deposed that accused used to drop his daughter Gitika at Ashram Chowk and on 24.08.2006, he dropped her at Ashram at about 08:30 AM.
33. Thereafter, defence evidence was closed.
Submission of the Parties
34. I have heard the arguments at bar in great detail and have carefully gone through the record. Both parties have also filed detailed written submissions.
35. It is submitted by learned Addl. PP that both accused, who are related to the complainant, entered her chamber on 24.08.2006, caused simple injuries to her and also tied her to a chair lying in the chamber and having so tied, tried to force a solution of ink and detergent in her mouth with a view to cause her ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 12 of 54 injuries and also criminally intimidated her. It is submitted that the act of the accused is of a grave nature, as they entered a chamber in the premises of Hon'ble Delhi High Court, trespassed into the chamber of a practicing advocate and thereafter assaulted the complainant, who herself is a practicing lawyer. It is further submitted that this was done by the accused to desist the complainant from pursuing the case of her sister against accused Naresh Kumar Arora and his family members. Learned Addl. PP has read out the evidence at bar for days together to show that the prosecution is successful in proving its case against the two accused beyond reasonable doubt. He has highlighted the evidence of the complainant in support of his case and has also invited my attention to the following case law:
i. Mohd. Zuber & Anr. V. State, 2015 SCC OnLine Del 8225; ii. Rijaul Karim Vs. State (GNCT of Delhi) and Rafiqul Vs. State (GNCT of Delhi), (2014) 2 High Court Cases (Del) 213;
iii. Hema Vs. State, through Inspector of Police, Madras, AIR 2013 Supreme Court 1000;
iv. Prabhu Dayal Vs. The State of Rajasthan, S C , decided on
th
4 July 2018;
v. Chandrasekar and Another Vs. State of Tamil Nadu, SC,
decided on 22.05.2017;
vi. M.G. Eshwara and others Vs. State of Karnataka, SC, decided on 2 nd March 2017;
th vii. Namdeo Vs. State of Maharashtra, SC decided on 13 March 20 0 7;
viii. Rajpu t Jabbar s ingh Malaji
Vs.
State of Gujarat, SC,
th
decided on 24 May 2011;
___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 13 of 54 ix. Ajay Tiwari Vs. State (NCT of Delhi), 2014 SCC OnLine Del 4555;
x. Dharam Das Wadhwani Vs. State of Uttar Pradesh, SC,
th
decided on 14 March 1974;
xi. Madhukar Dabu Patil Vs. State of Maharashtra, Bombay th High Court, decided on 5 December 1995;
xii. Appabhai and another Vs. State of Gujarat, AIR 1988 Supreme Court 696;
xiii. Babarali Ahmedali Sayed Vs. State of Gujarat, 1991 Cri.
L.J. 1269;
xiv. State of Haryana Vs. Sher Singh & Ors., SC, decided on th 24 February 1981;
xv. Maqbool @ Zubair @ Shahnawaj & Anr. Vs. State of A.P , 2010 (3) Crimes 149 (SC);
xvi. Matadin and others Vs. State of U.P., AIR 1979 Supreme Court 1234;
xvii. Rammi alias Rameshwar Vs. State of Madhya Pradesh with Bhura alias Sajjan Kumar Vs. State of Madhya Pradesh, AIR 1999 Supreme Court 3544;
xviii. V.K. Mishra Vs. State of Uttrakhand, (2015) 0 Supreme (SC) 748;
xix. Leela Ram (D) through Duli Chand Vs. State of Haryana and another, AIR 1999 Supreme Court 3717;
xx. Dayal Singh and others Vs. State of Uttranchal, (2012) 8 Supreme Court Cases 263;
xxi. Esh er Singh Vs. State of Andhra Pradesh, SC, decided on
th
15 March
2004;
xxii. Kehar Singh & Ors. Vs. State (Delhi Admn.), SC, decided rd on 3 August 1988;
xxiii. State of Madhya Pradesh Vs. Dhirendra Kumar, SC, th decided on 5 November 1996;
xxiv. Jitender Vs. State (NCT) of Delhi, 2017 SCC OnLine Del 8723;
xxv. Kochappan Vs. State of Kerala, High Court of Kerala,
th
decided on 27 February 2018;
___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 14 of 54 xxvi. Kayamuddin Vs. State, 2016 SCC Online Del 1836 :
(2016) 229 DLT (CN A) 21 (DB);
xxvii.Rajeevan Vs. State of Kerala, High Court of Kerala, th decided on 6 July 2018;
xxviii.State of Rajasthan Vs. Ani @ Hanif and others, SC, th decided on 13 January 1997;
xxix. V.K. Mishra Vs. State of Uttrakhand, (2015) 0 Supreme (SC) 748; and xxx. Digambar Rai Vs. State of Jharkhand, Jharkhand High Court, decided on 22 nd June 2015.
36. On the other hand, learned defence counsel has submitted that there is no legally admissible evidence on record against the accused to make out any case against them. It is submitted that the accused did not enter the chamber of the complainant at all and the entire story has been fabricated by the complainant to harass the accused and to implicate them falsely in this case. It is submitted that the complainant created a drama to falsely implicate the accused. He has repeatedly submitted that there is no material on record to show trespass by the accused in her chamber on the date of incident or they committing any offence therein, like beating up the complainant or forcing any liquid in her mouth or criminally threatening her. He has read out the deposition at the bar in great detail and pointed out grave contradictions in the testimony of the complainant to emphasize that the complainant and her associate colleague Sh. Dharmender Kumar are not reliable witnesses. It is submitted that there is no ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 15 of 54 material on record to show commission of an offence under Section 328 IPC. It is submitted that there is no medical evidence in this regard. It is repeatedly submitted by him that since there is no legally evidence on record, both accused may be acquitted. My attention has been invited to the following case law:
i. N. Sri Rama Reddy and Ors. Vs. V.V. Giri, MANU/SC/0333/1970;
ii. Mohanlal Gangaram Gehani Vs. State of Maharashtra, MANU/SC/0090/1982;
iii. State represented by Inspector of Police, Tamil Nadu Vs. Sait @ Krishnakumar, MANU/SC/8143/2008;
iv. L.L. Kale Vs. State of Maharashtra and others, MANU/SC/0743/1999;
v. Dr. Sunil Kumar Sambhudayal Gupta and others Vs. State of Maharashtra, MANU/SC/0947/2010;
vi. Subhash Vs. State of Haryana, MANU/SC/1064/2010;
vii. Sukhbir Singh and Anr. Vs. State of Punjab, MANU/SC/0410/2011;
viii. Ram Singh and Ors. Vs. State of NCT of Delhi, MANU/DE/0616/2013;
ix. K.A. Kotrappa Reddy and Ors. Vs. Rayara Manjunatha Reddy and Ors., MANU/SC/1170/2015;
x. Harbeer Singh and Ors. Vs. Sheeshpal and Ors., MANU/SC/1348/2016;
xi. Tukaram and Anr. Vs. The State of Maharashtra, MANU/SC/0190/1978;
xii. Suraj Mal Vs. State (Delhi Administration) MANU/SC/0268/1979;
xiii. State of Haryana Vs. Gurdial Singh and Anr., MANU/SC/0215/1974;
xiv. Ram Narain Singh Vs. State of Punjab and Jaggar Singh and Ors. Vs. State of Punjab, MANU/SC/0193/1975; xv. Satpal Singh Vs. State of Delhi, MANU/SC/0308/2016;
___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 16 of 54 xvi. Sampath Kumar Vs. Inspector of Police, Krishnagiri, MANU/SC/0188/2012; and xvii. Moso Kaitha Vs. State of Jharkhand, MANU/JH/0861/2014.
37. In this case, there are two issues as to whether the two accused trespassed into Chamber No. 208, from where complainant used to practice and having so trespassed, beat her up, wrongfully confined her and criminally intimidated her and whether they administered any poison or any stupefying, intoxicating or unwholesome drug or other things to her to cause her hurt or to commit any other offence.
38. I proceed to dispose the matter issuewise.
Issue relating to house trespass, injury to the complainant, her wrongful confinement and criminal intimidation
39. It is submitted by the learned Addl. PP that perusal of the statements of complainant PW1 Hiteshi Arora, PW6 Dharmender Prasad, PW8 Sh. Rakesh Singhal and PW9 Smt. Anita proves the case of the prosecution relating to trespass in chamber number 208, Second Floor, Delhi High Court, beating up the complainant and her wrongful confinement and criminal intimidation by the accused. The deposition of all four witnesses has been read out at the bar in detail for days together. The deposition of other witnesses of the prosecution and the defence witnesses have also been referred to in detail.
___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 17 of 54
40. On the other hand, it is submitted by the learned counsel for the accused that the deposition of complainant PW1 Hiteshi Arora does not inspire confidence on account of various contradictions, additions and embellishment therein. It is further submitted that she has made many statements, which are contradictory to each other and as such do not inspire confidence. It is further submitted that her deposition is a bundle of lies, falsehoods and exaggerated facts and this has been emphasized by him by reading out her statement and other documents on record. It is further submitted that there is no credible evidence on record that the two accused had entered the premises of Hon'ble High Court on 24.08.2006, and thereafter trespassed into Chamber No. 208, beat up the complainant, tied her to a chair and wrongfully confined her to the chamber and also criminally intimidated her. It is submitted that testimony of PW 6 Dharmender Kumar is also of no avail to the prosecution as he is a made up witness and he has narrated a concocted story. It is repeatedly submitted that no such incident as alleged by the prosecution ever took place and the entire incident has been fabricated by the complainant to falsely implicate the accused in this case. The deposition of all witnesses, examined by both parties, has been read out at the bar for days together to emphasize that there is no incriminating material on record against the two accused relating to their trespassing into the chamber of the complainant, beating her up and thereafter ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 18 of 54 confining her to the chamber and criminally intimidating her. It is further submitted that if the accused had gone over there, somebody must have seen them but there is no such independent evidence. It was also repeatedly submitted that the complainant is a chronic litigant and an egoistic lady and is habitual of filing false complaints and cases against all and sundry and as such her deposition cannot be relied upon. In this regard, deposition of DW 2 Smt. Poonam Arora, sister of the complainant has been referred to with great emphasis and vehemence. It is repeatedly submitted that there is absolutely no incriminating material on record in regard to accused entering the chamber of the complainant and beating her up.
Legal Provisions
41. Let me take note of the legal provisions applicable to the facts of the case.
HouseTrespass Section 451 IPC, which deals with house trespass with intention to commit an offence, reads as under:
"Whoever commits housetrespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 19 of 54 imprisonment may be extended to seven years."
Wrongful Confinement Section 342 IPC, which deals with wrongful confinement, reads as under:
"Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
Voluntarily Causing Simple Hurt Section 323 IPC, which deals with causing of simple hurt, reads as under:
"Whoever, except in the case provided for by Section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
Criminal Intimidation Section 506 IPC, which deals with criminal intimidation, reads as under:
"Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 20 of 54 etc. And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or (imprisonment for life), or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
42. I may note that the entire case hinges on the testimony of complainant PW 1 Ms. Hiteshi Arora. She is the star witness of the case. Testimony of other witnesses is only peripheral. It is instructive to take note of her testimony and the relevant part of the same reads as under:
"........On 23.08.2006, that man said to me that he would be coming on 24.08.06 early in the morning in my chamber. This episode of handing over the murder case file to me was informed to my Senior and also my office staff as and when he told me about the same. On 24.08.06, I reached to Delhi High Court in my chamber 208 at 7.20 am when I was downstairs, caretaker who was dressed in white clothes and who takes care of the building asked me as to how I had come so early in the morning to which I replied that some client was going to come to meet me. As I reached in my Chamber after doing my Pooja I started with my work and also made a telephonic call from land line number 23387751 to Mr Dharmender Prasad Yadav ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 21 of 54 who was then working as another Junior and told him that I had come early because that client was going to come to hand over the murder case file and discuss the same. Since this conversation was on suddenly at 8.20 a.m. Mr. Naresh Arora who is my sister's husband and Mr. Rakesh Arora, who is my sister's brother in law to whom I recognize in the court today and who are present in the court today entered in the chamber and hit me with the pen stand kept there on the table. The telephone received which I was holding in my hand fell on the floor and both of them came to my side and started giving me blows and fists with their hands and legs. I shouted on the telephone which had fell down saying Bachao Bachao Maar Rahey Hai Mujhe. Mr. Naresh Arora kept his hand on my mouth and Mr. Rakesh Arora kept on hitting me and both of them threatened me that if I pursued with the complaint lodged by my sister to DSP to which I said I will definitely pursue with the case and not leave the case. To this they pressed my neck and kept their hand on my mouth so that I could not shout and raise an alarm. There was a Fena Detergent powder packed and ink pet on the side table which Rakesh Arora mixed it in the glass with water and forcibly administered me with some of the content which went inside my mouth and remaining content fell on my clothes and body during scuffle when I resisted and the glass fell on the floor. Mr. Naresh Arora kept his hand on my mouth due to which I could not spit out the poison which was administered to me ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 22 of 54 forcibly by both these people. Because of this poison which had gone in my body my throat started having sense of burning and their continuous beatings with hand and their legs on my stomach I feel on the floor but they continued to beat me and Naresh had kept his hand on my mouth during this whole time. By this time I started feeling sick and feel on he floor and Mr. Rakesh Arora took my chunni and torn it into pieces and tie my both the hands and both legs with the office chair and also a piece of chunni was tied around my neck and on my mouth by these people. They strangulated me with chunni on my neck. They hit me. They gave me grievous injuries on my body and specially on my left arm which they had twisted very badly and for which the treatment continued for 1½ to 2 months continuously and which till date is not proper and goes restless at times. They threatened me that if I pursued the same complaint in Faridabad which was lodged by me sister against Naresh Arora, Rakesh Arora and Topan Dass Arora who is my sister's father in law and was pursued by me they would kill me. During the time of administration of poison and hitting me they threatened me and said "Aaj Ise Khatam Kar Dete Hai". They committed this whole incident upon me with the intention to kill me so that I do not pursue by sister's matrimonial compliant. After they had tied me and I had become more of senseless because of the poison which have gone inside me and which I could not spit out because of their hand on my mouth and ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 23 of 54 because of beatings and while going they threatened me that if I pursue my sister's complaint they would kill me and send this murder case file to my senior. After this incident there was hue and cry in the Delhi High Court premises and since I was semi conscious, I could not raise any alarm because of my hand, mouth and legs tied and also my neck with the chunni........"
43. A bare perusal of the above testimony clearly reveals about the entry of the accused in Chamber No. 208 on the date of incident, where the complainant was present and her being administered beating by fists and blows by the accused and her being tied to an office chair and her being criminally intimidated, if she pursued the case of her sister against the accused. The aforesaid testimony constitutes the core of the case and contains vivid detail of the case and the acts committed by the accused. The complainant has been crossexamined on behalf of the accused for days together in great detail and in the lengthy crossexamination, there is nothing of any significance which could discredit the evidentiary value of the testimony extracted above. Even in her crossexamination dated 28.02.2009, she has reiterated that the accused persons had entered her chamber at 08:20 AM and that she was tied by them. The lengthy crossexamination is mostly confined to the litigation going on between the parties and not to the deposition of the complainant as extracted above. The core of ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 24 of 54 the deposition of the complainant has by and large gone unchallenged and undisputed by the accused and as such its envidentiary value remains undiminished. The same also does not suffer from any inherent defect or deficiency. In their statements under Section 313 CrPC, both accused denied as incorrect that they had entered the chamber of the complainant. Accused Naresh Kumar Arora has stated that he was at Faridabad at 08:20 AM. However, there is no admissible evidence in this regard. The four defence witnesses examined by the accused are silent on this point and as such their deposition is of no help to the accused. DW 4 Sh. Basant Lal is not an eyewitness. Accused Rakesh Kumar Arora has not stated as to where he was at that time.
44. It was submitted by counsel for the accused that she has exaggerated the events by making additions, alterations and embellishment to her testimony. She might have added embellishment to her testimony and may also have made exaggeration therein but that does not adversely impact the core of her testimony as extracted above. In a situation where parties are related to each other and are fighting each other in Courts, emotional outbursts, exaggeration and embellishments in testimony cannot be ruled out. In such a situation, these things are quite natural. That does not mean that a truthful case should be discarded due to innocuous exaggeration made by a witness. In this regard, it is instructive to take note of the observations of ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 25 of 54 Hon'ble Supreme Court in a recent case reported as Prabhu Dayal Vs. State of Rajasthan, 2018 IX AD (SC) 261, wherein while dealing with such a witness, Hon'ble Supreme Court observed in paragraph 10 as under:
"........In State of U.P. Vs. Anil Singh, 1988 SCC 686, this Court observed that:
"17. .....invariably the witnesses add embroidery to the prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses."
The Court can separate the truth from the false statements in the witnesses' testimony. In Leela Ram Vs. State of Haryana, (1999) 9 SCC 525, this Court held as follows:
"12. It is indeed necessary to note that one hardly comes across a witness whose evidence does not contain some exaggeration or embellishment - sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 26 of 54 over anxiety they may give a slightly exaggerated account. The court can sift the chaff from the testimony of the witnesses. Total repulsion of the evidence is necessary. The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence though not however in the absence of the same."
Moreover, it is not necessary that the entire testimony of a witness be disregarded because one portion of such testimony is false. This Court observed thus in Gangadhar Behera Vs. State of Orissa, (2002) 8 SCC 381:
"15. To the same effect is the decision in State of Punjab Vs. Jagbir Singh [(1974) 3 SCC 277 : 1973 SC (Cri) 886 : AIR 1973 SC 2407] and Lehna Vs. State of Haryana [(2002) 3 SCC 76 :
2002 (Cri) 526]. Stress was laid by the accusedappellants on the non acceptance of evidence tendered by some witnesses to contend about desirability to throw out the entire prosecution case. In essence prayer is to apply the principle of "falsus in uno, falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 27 of 54 of an accused, notwithstanding acquittal of a number of other co accused, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that the evidence has been found to be deficient to prove guilt of other accused persons. Falsity of a particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno, falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded."
45. The authority applies to the facts of the case with full force. Hence, there is no merit in the submission of learned defence counsel that the testimony of PW 1 suffers from the vice of additions, exaggeration and contradictions, as the evidentiary value of deposition of the witnesses has remained undiminished despite long crossexamination. Moreover, she being found in a tied and confused and disoriented condition has also been supported by PW6 Sh. Dharmender Pradhan, PW8 Sh. Rakesh Singhal and PW9 Ms. Anita. Thus, there is no valid reason to discard her testimony.
___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 28 of 54
46. It was also argued that since the complainant is habitual litigant given to filing false complaints and cases against all and sundry and also being of egoistic nature, her testimony should not be believed. My attention has been invited to the deposition of DW 2 Smt. Poonam Arora, who is the sister of the complainant.
However, it may be noted that there is no concept of a model or an ideal complainant in the criminal law. A litigious person or a criminal can also become a victim of a criminal act and a complaint cannot be disbelieved simply for the reason that the complainant is a litigious person or a criminal, if the same is otherwise found to be credible. Even a condemned prisoner cannot be killed by the jail authorities and if it is so done, it would amount to murder. Accordingly, I find no merit in the submission of learned defence counsel that the testimony of the complainant should be discarded for the reason that she is litigious and egoistic person.
47. In the end, I find the deposition of the complainant as extracted above to be believable and acceptable in law, as the core of the deposition has remained unassailed and uncontroverted and the same does not suffer from any inherent defect. Accordingly, I am satisfied that the two accused trespassed into chamber No. 208 at 08:20 AM on 24.08.2006, beat up the complainant, tied her to the chair, and confined her to the chamber and also criminally intimidated her.
___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 29 of 54 Issue relating to administration of intoxicating or stupefying substance
48. It is submitted by learned Addl. PP that accused Rakesh Kumar Arora mixed up ink and detergent lying in the chamber and prepared a solution in a glass and accused Naresh Kumar Arora caught hold of her hands and thereafter they tried to force the solution of ink and detergent in the mouth of the complainant but due to the resistance put up by her, they could not succeed and the solution fell on her cloths. It is further submitted that some of the solution did enter her mouth on account of which the victim got disoriented and became semiunconscious. It is submitted that this solution was poisonous or stupefying substance aimed at making the accused senseless and thereafter to commit an offence with her or to cause hurt to her. It is submitted that even otherwise the act of the accused amounts to attempt to cause hurt to the complainant by forcing an unwholesome substance in her mouth. It is submitted that the solution contained sodium ions, which are harmful to the human body. The relevant parts of the testimony of the complainant as well as that of PW 20 Sh. Jitender Kumar, Sr. Scientific Officer (Chemistry), FSL, Rohini have been read out at the bar to emphasize his case.
49. My attention has also been invited to the following case law:
i) Mohd. Zuber and Another Vs. State, 2015 SCC OnLine Del ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 30 of 54 8225; and
ii) Rijaul Karim Vs. State (GNCT of Delhi), (2014) SCC OnLine Del 374.
50. On the other hand, it is vehemently submitted by learned defence counsel that there is absolutely no material on record indicating that any solution of ink and detergent was attempted to be forced into the mouth of the complainant by the accused and some of which went inside her mouth and due to which she became unconscious and disoriented. It is further submitted that there is no medical evidence at all that the solution was poisonous, intoxicating, stupefying or unwholesome. It is repeatedly submitted that in the absence of medical evidence, oral statement of the victim alone is not sufficient to prove a case under Section 328 IPC. My attention has been invited in detail to the deposition of PW 20 Sh. Jitender Kumar, Sr. Scientific Officer. It is submitted that he has nowhere deposed that sodium ions found on the cloths examined by him were poisonous. It is repeatedly submitted that statement of the complainant alone cannot be accepted as legal evidence for an offence under Section 328 IPC and as such prosecution has failed to prove the charge under this Section.
51. Section 328 IPC, which deals with administration of poison etc. to a person with intent to cause hurt or to commit an offene, reads as under:
___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 31 of 54 "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."
52. In an authority reported as Joseph Kurian Philip Jose Vs. State of Kerala, (1994) 6 SCC 535, Hon'ble Supreme Court while dealing with the question of proof of offence under Section 328 IPC observed in paragraph 10 as under:
"........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 hurt, 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 ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 32 of 54 is necessary........."
53. Let me take note of the legal position in this regard. In an authority reported as Sanjay Singh and Another Vs. State, 2008 VII AD (Delhi) 151, the stomach wash of the victim was not preserved but the accused was convicted by the learned Trial Court on the basis of statement of the victim alone that the accused had administered intoxicating substance to him. However, the Hon'ble High Court of Delhi set aside the conviction and observed in paragraphs 6 to 8 as under:
"6. The essential element of Section 328 is that the victim should be administered "poison or any stupefying, intoxicating or unwholesome drug, or other thing." The forensic examination of the stomach wash in order to determine the substance that administered was poison is therefore imperative for ascertaining the commission of the offence under Section 328 IPC. The opinion of the victim who is rendered unconscious after taking the substance may not be stated final as to whether the drug administered was either "poison or any stupefying, intoxicating or unwholesome drug." In this context the medical legal case sheets become relevant which were marked as Ex.PW6/A, PW3/A which contain endorsements that the victims were unfit for making a statement. In respect of each of the victims, the endorsement of Dr. Jyoti is to the effect that "the stomach wash could not be ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 33 of 54 preserved so that the final report could not be given."
7. Admittedly Dr. Jyoti left the service of the hospital without leaving her present address and therefore, she could not be examined as a prosecution witness. In the present case in the absence of the evidence of the doctor who examined the victims after they were brought to the hospital and the stomach wash was not being able to be sent for examination, it was extremely unsafe for the trial court to convict the Appellants here for the offence under Section 328 IPC. This Court cannot be determinative on whether what was administered was poisonous in order to attract the offence under Section 328 IPC.
8. In that view of the matter, the impugned th judgment dated 30 April 2005 and order on nd sentence dated 2 May 2005 passed by the learned ASJ are hereby set aside. The appellants are hereby acquitted for the offence under Section 328 IPC and they be released forthwith if they are not required in another case."
Similar view was taken by Hon'ble High Court of Delhi in a case titled Santosh Kumar Vs. State, Criminal Appeal No. 12/2000 decided on 07.11.2008, wherein in paragraph 10, it was observed as under:
"........Simply on the basis of statement of PW5 alone it could not be concluded that he had ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 34 of 54 become unconscious because of eating the biscuit or drinking tea offered to him by the accused. There had to be medical evidence to the effect that PW5 had, in fact, become unconscious because of consuming any drug or intoxicating substance etc. mixed in tea or biscuit."
Similarly, in another case reported as Mukesh Chand and Others Vs. State (Govt. of NCT of Delhi), 2010 (115) DRJ 216, while setting aside the conviction under Section 328 IPC in the absence of stomach wash, Hon'ble High Court of Delhi observed in paragraph 21 as under:
"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 poison."
In one more case reported as Mahinder Kumar and Another Vs. State, 2017 SCC OnLine Del 8327, Hon'ble High Court of Delhi set aside the conviction and observed in paragraph 20 as under:
"In view of aforesaid discussion, scrutiny of testimonies of prosecution as well as defence witnesses and the MLC of the victim, it is clear that the findings rendered by the learned Trial Court are based 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 ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 35 of 54 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........"
54. Thus, there is clear series of cases, in which Hon'ble High Court of Delhi has held that in the absence of medical evidence, evidence of the victim alone that the accused administered him something on account of which he became unconscious and lost his belongings is not enough to convict an accused under Section 328 IPC.
55. However, learned Addl. PP has invited my attention to an authority reported as Mohd. Zuber (Supra), wherein gastric lavage of the victim was not taken but the accused was convicted by the learned Trial Court on the basis of the testimony of the victim alone. Hon'ble High Court of Delhi upheld the conviction and observed in paragraphs 18 to 22 as under:
"18. Section 328 of IPC to the extent it is relevant provides that whoever administers or causes to be taken by any person any stupefying drug, or other thing with intent to commit or to facilitate the commission of an offence shall be liable to be punished.
19. A perusal of the MLC goes to show that when the complainant was brought to the ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 36 of 54 th hospital on 4 January, 2011 at 1:55 PM, he was in a state of unconsciousness at that time th and it was only on 5 November, 2011 that he became conscious and then his statement was recorded by PW15SI Murtaza.
20. It has come in the statement of complainant that he became unconscious on consuming tea offered to him, therefore, there can be no reasonable doubt that some stupefying drug or substance was mixed in the tea which the appellants made the complainant to consume. This obviously was done with the intent of committing theft of the articles belonging to the complainant which he was having on his person and was carrying with him. A number of articles belonging to the complainant were thereafter actually stolen. The appellants, therefore, were rightly held guilty of the offence punishable under Section 328 and 379 of IPC r/w Section 34 thereof.
21. It was submitted by the learned counsel for the appellant that gastric lavage of the complainant was not taken and in the absence of the same, it cannot be said that any poison or any stupefying, intoxicating or unwholesome drug or other thing was administered to him. I, however, find no substance in this contention. The viscera would have been necessary had the complainant been administered poison or any poisonous substance. Nothing could have been found in the viscera on account of complainant taking a stupefying substance mixed in tea.
___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 37 of 54
22. For the reasons stated hereinabove, the conviction of the appellant under Section 328 and 379 of IPC r/w Section 34 thereof is confirmed........."
56. Learned Addl. PP has also invited my attention to another authority reported as Rijaul Karim Vs. State (GNCT of Delhi) (Supra), wherein also Hon'ble High Court of Delhi took the view that even without medical opinion, testimony of victim alone is sufficient to hold a person guilty under Section 328 IPC and observed in paragraphs 19 to 21 as under:
"19. Section 328 IPC to the extent it is relevant provides that whoever administers or causes to be taken by any person any stupefying drug or other things with an intent to commit or facilitate the commission of the offence shall be liable to be punished. A perusal of the MLC of the complainant would show that when he was brought to the hospital on 572010, he was in a drowsy condition. It has come in the deposition of the complainant that he became unconscious on consuming the cold drink offered to him. Therefore, there can be no reasonable doubt that some stupefying drug or substance was mixed in the cold drink which the appellants made the complainant to consume. This obviously was done with intent to commit theft of the articles belonging to the complainant, which he was having on his person and was carrying with him. A number of articles belonging to the complainant were ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 38 of 54 thereafter actually stolen. The appellants, therefore, were rightly held guilty of the offence punishable under Sections 328 and 379 IPC read with Section 34 thereof.
20. It was submitted by the learned counsel for the appellants that no viscera of the complainant was taken and in the absence of any viscera report, it cannot be said that any poison or any stupefying, intoxicating or unwholesome drug or other thing was administered to him. I, however, find no merit in this contention. The viscera report would have been necessary had the complainant with administered poison or any poisonous substance. Nothing could have been found in the viscera, on account of the complainant taking a stupefying substance such as Ativan tablets mixed in a cold drink. Therefore, taking the viscera of the complainant was not really necessary.
21. For the reasons stated hereinabove, the conviction of the appellants under Sections 328 and 379 IPC read with Section 34 thereof is confirmed."
57. In the instant case, two pieces of chunni, one slip and one white kurta of the complainant, which she wore at the time of incident and on which the solution fell and one glass tumbler were sent for chemical examination to Forensic Science Laboratory, Rohini, Delhi. There, the same were examined by PW 20 Sh.
___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 39 of 54 Jitender Kumar, Sr. Scientific Officer. He filed his report, Ex PW 20/A, and reported that these articles were found to contain sodium ions. However, in the crossexamination he admitted that he did not give percentage of the ions present in the items. He also conceded that the investigating officer had asked that if a mixture of ink and detergent was present on the cloths or not and he did not give any opinion in this regard. He also conceded that he did not find any trace of mixture of ink or detergent on it. He also did not give any report about the presence of mixture of ink, detergent or water on any exhibit. He also did not report that mixture was either poisonous, intoxicating, stupefying or unwholesome.
It is, thus, clear that there is no medical opinion as to whether traces of a mixture of ink and detergent were present on the cloths of the complainant, which she wore at the time of the incident and which were sent for chemical examination. Thus, there is no medical report that any poisonous, stupefying, intoxicating or unwholesome drug or any other substance of similar nature was present on the cloths. Thus, there is absolutely no medical evidence in the instant case and the only evidence on record is the oral evidence of the complainant PW 1 Hiteshi Arora.
58. Now the question is: In such a situation, which judgment is to be followed for disposal of a case under Section 328 IPC? In my humble opinion, in this regard, it is necessary to follow rule of precedent and per incuriam.
___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 40 of 54 Rule of Precedent and Per Incuriam
59. In an authority reported as Siddharam Satlingappa Mhetre Vs. State of Maharashtra, (2011) 1 SCC 694, Hon'ble Supreme Court, while dealing with rule of precedent, observed in paragraph 138 as under:
"The analysis of English and Indian law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a coequal strength is also binding on a Bench of Judges of coequal strength. In the instant case, judgments mentioned in paras 124 and 125 are by two or three Judges of this Court. These judgments have clearly ignored the Constitution Bench judgment of this Court in Sibbia case [(1980) 2 SCC 565 : 1980 SCC (Cri) 465] which has comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 CrPC. Consequently, the judgments mentioned in paras 124 and 125 of this judgment are per incuriam."
Similarly, in an another authority reported as Sundeep Kumar Bafna Vs. State of Maharashtra, (2014) 16 SCC 623, Hon'ble Supreme Court observed in paragraph 19 as under:
"It cannot be overemphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on incuriam rule is of the application of the per ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 41 of 54 great importance, since without it, certainty of law, consistency of rulings and comity of courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a coequal or larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified incuriam rule that the per is strictly and correctly applicable to the ratio decidendi and not to obiter dicta . It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam ."
(All underlinings by me for supplying emphasis).
60. Perusal of the case law referred to above in Siddharam Satlingappa Mhetre (Supra) and Sundeep Kumar Bafna (Supra) relating to precedent makes it obligatory for this Court to follow the earlier law, that is, the law laid down by the Hon'ble High Court in Sanjay Singh (Supra). As per this law, the statement of victim alone is not sufficient to convict an accused under Section 328 IPC. Medical evidence is also required to show the administration of poisonous, intoxicating, stupefying or ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 42 of 54 unwholesome drug to the victim by the accused. This evidence is lacking in the instant case. Accordingly, the statement of victim alone that both the accused tried to force a solution of ink and detergent in her mouth but on account of resistance put up by her, they failed in their attempt and the solution fell on her cloths, though a little bit of it went inside her body on account of which she became semiunconscious and also vomited, is of no avail to the prosecution. Accordingly, I find merit in the submission of learned defence counsel that prosecution has not been successful in proving its case against the accused that they attempted to cause hurt to the complainant or to commit any other offence by forcing some unwholesome substance in her mouth.
61. In view of the above discussion, I am satisfied that the prosecution has been successful in proving its case beyond reasonable doubt against the accused of committing house trespass, that is, they unauthorizedly entered Chamber No. 208, Second Floor, Delhi High Court, New Delhi, caused simple injury to the complainant by beating her up, confined her in the chamber by tying her to a chair and also for criminally threatening her for taking up the criminal cases of her sister against them but the prosecution has been unsuccessful in proving its case that they tried to administer some poisonous or unwholesome drug/substance to her with a view to commit an offence.
62. Accordingly, both accused Naresh Kumar Arora and ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 43 of 54 Rakesh Kumar Arora are convicted under Sections 451/323/342/506/34 IPC. However, they are acquitted of the charge under Section 328/511/34 IPC.
63. Let them be heard on the point of sentence.
Announced in open Court (O. P. Saini)
today on 27.09.2018 Addl. Sessions Judge/
Spl. Judge (CBI04)
New Delhi
___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 44 of 54 IN THE COURT OF O. P. SAINI: ADDL. SESSIONS JUDGE/SPL. JUDGE (CBI04), PATIALA HOUSE COURT, NEW DELHI SC No. 06/2018 State Vs. Naresh Kumar Arora and Another FIR No. 322/2006 U/s: 451/323/342/506/328/511/34 PS: Tilak Marg 28.09.2018 Present: Sh. Salim Khan, Addl. PP for the State.
Smt. Hiteshi Arora, complainant in person.
Sh. G. K. Bharti, Advocate for convict Naresh Kumar Arora.
Sh. Rajesh Kumar, Advocate for convict Rakesh Kumar Arora.
ORDER ON SENTENCE Vide my separate judgment dated 27.09.2018, Naresh Kumar Arora and Rakesh Kumar Arora have been convicted under Sections 451/323/342/506/34 IPC on the allegations that on 24.08.2006, both of them trespassed into Chamber No. 208, Second Floor, Delhi High Court, from where complainant Smt. Hiteshi Arora was operating as an advocate and caused simple injuries to her after tying her legs and hands, tied her to a chair in the chamber and thus criminally confined her over there and also criminally intimidated her not to pursue the case of her sister against them and their family.
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2. I have heard the arguments at the bar in detail on the point of sentence and have carefully gone through the record.
3. It is submitted by learned Addl. PP that both convicts entered into the premises of Hon'ble Delhi High Court and having so entered trespassed into the chamber of the complainant, beat her up, confined her to the chamber and also criminally intimidated her to not to pursue the case of her sister against them. It is further submitted that the victim was a practicing advocate and was assaulted for doing her professional duty in the premises of Hon'ble Delhi High Court, a temple of justice. It is repeatedly submitted that considering the nature of the act and the conduct of the accused in doing a heinous act in the premises of Hon'ble Delhi High Court, a serious view may kindly be taken and severe sentence may be awarded to the convicts. It is also submitted by the complainant that she has suffered a lot of mental torture due to the acts of the convicts.
4. On the other hand, learned defence counsel has pleaded for mercy as the dispute is between the members of a family, as the complainant is the elder sister of the wife of Naresh Kumar Arora. It is repeatedly submitted that the dispute is a fallout of a family dispute due to misunderstanding between the two sisters. It is further submitted that Naresh Kumar Arora is a Government servant and is having a grown up marriageable daughter. It is also submitted that Rakesh Kumar Arora is younger ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 46 of 54 brother of Naresh Kumar Arora and he also has two daughters of marriageable age. It is further submitted that both convicts are repentant of their act and plead for mercy. It is repeatedly submitted that in family disputes, more so, when the offences are of minor nature and bailable one, a lenient view is always to be taken. It is further submitted that considering the nature of injuries and the fact that it is a family dispute, a lenient view may kindly be taken and both convicts may be released on probation. It has repeatedly been submitted that considering the fact that it is a family dispute, a lenient view may kindly be taken so that peace ultimately prevails in the family, more so, between the two sisters.
5. My attention has been invited to the following case law:
i. Jagshir Singh Vs. State of Punjab, MANU/PH/0868/ 2010; ii. Anoop Singh and Ors. Vs. State of Punjab, MANU/PH/2849/2015;
iii. State Vs. Sanjiv Bhalla, MANU/SC/0598/2014; iv. Commissioner of Police and Ors. Vs. Satyavir Singh, MANU/DE/1422/2013;
v. State Vs. Lucky, MANU/DE/1349/2017; vi. Piare Lal Vs. State of Himachal Pradesh, MANU/HP/0256/2016;
vii. Hanumanthanayak Vs. State of Karnataka, MANU/KA/0412/2016;
viii. Surender Singh and Ors. Vs. State of Rajasthan, MANU/RH/2455/2015; and ix. Sur i nder Singh and Ors. Vs. State of Himachal Pradesh, MANU/HP/0817/2016.
6. I have carefully considered the submissions made at the ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 47 of 54 bar in the light of material on record.
7. In an authority reported as B. G. Goswami Vs. Delhi Administration, (1974) 3 SCC 85, while dealing with the question of sentence, Hon'ble Supreme Court observed in paragraph 10 as under:
"........Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentence both lose their efficaciousness. One does not deter and the other may frustrate, thereby making the offender a hardened criminal........"
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8. Similarly, while dealing with question of sentence, Hon'ble Supreme Court in a recent case reported as State of Rajasthan Vs. Mohan Lal and Another, 2018 SCC OnLine SC 773, observed in paragraphs 10 to 13 as under:
"....10. Currently, India does not have structured sentencing guidelines that have been issued either by the legislature or the judiciary. However, the Courts have framed certain guidelines in the matter of imposition of sentence. A Judge has wide discretion in awarding the sentence within the statutory limits. Since in many offences only the maximum punishment is prescribed and for some offences the minimum punishment is prescribed, each Judge exercises his discretion accordingly. There cannot, therefore, be any uniformity. However, this Court has repeatedly held that the Courts will have to take into account certain principles while exercising their discretion in sentencing, such as proportionality, deterrence and rehabilitation. In a proportionality analysis, it is necessary to assess the seriousness of an offence in order to determine the commensurate punishment for the offender. The seriousness of an offence depends, apart from other things, also upon its harmfulness.
11. This Court in the case of Soman v. State of Kerala [(2013) 11 SCC 382] observed thus:
"27.1. Courts ought to base sentencing ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 49 of 54 decisions on various different rationales most prominent amongst which would be proportionality and deterrence.
27.2. The question of consequences of criminal action can be relevant from both a proportionality and deterrence standpoint.
27.3. Insofar as proportionality is concerned, the sentence must be commensurate with the seriousness or gravity of the offence.
27.4. One of the factors relevant for judging seriousness of the offence is the consequences resulting from it.
27.5. Unintended consequences/harm may still be properly attributed to the offender if they were reasonably foreseeable. In case of illicit and underground manufacture of liquor, the chances of toxicity are so high that not only its manufacturer but the distributor and the retail vendor would know its likely risks to the consumer. Hence, even though any harm to the consumer might not be directly intended, some aggravated culpability must attach if the consumer suffers some grievous hurt or dies as result of consuming the spurious liquor."
12. The same is the verdict of this Court in Alister Anthony Pareira v. State of Maharashtra [(2012) 2 SCC 648] wherein it is observed thus:
"84. Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 50 of 54 appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: the twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances."
13. From the aforementioned observations, it is clear that the principle governing the imposition of punishment will depend upon the facts and circumstances of each case.
However, the sentence should be appropriate, adequate, just, proportionate and commensurate with the nature and gravity of the crime and the manner in which the crime is committed. The gravity of the crime, motive for the crime, nature of the crime and all other attending circumstances have to be borne in mind while imposing the sentence. The Court cannot afford to be casual while imposing the sentence, inasmuch as both the crime and the criminal are equally important in the sentencing process. The Courts must see that the public does not lose confidence in the judicial system. Imposing inadequate sentences will do more harm to the justice system and may lead to a state where the victim loses confidence in the judicial system and resorts to private vengeance..."
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9. The incident took place due to the misunderstanding of Naresh Kumar Arora that complainant Smt. Hiteshi Arora, who is elder sister of his wife, was instigating his wife Smt. Poonam Arora to launch and pursue criminal cases against him and his family members. It is thus a fact that the dispute, during the course of which the aforesaid offences were committed, is a fallout of a family dispute. However, since the offences were committed against a practicing advocate and that too in the premises of Hon'ble Delhi High Court in order to deter her from discharging her professional duty, I am not inclined to grant the benefit of probation to the convicts.
10. However, considering the nature of the relationship between the parties and the fact that no serious injury was caused to the complainant and the fact that all offences are bailable and compoundable one, I am inclined to take an extremely lenient view. Naresh Kumar Arora and Rakesh Kumar Arora were arrested in the instant case on 24.08.2006 and were admitted to bail on 19.09.2006 and as such both remained in custody for 27 days during investigation. In my considered opinion, sentencing the accused to the period already undergone by them along with some fine would meet the end of justice, as higher punishment may spoil all chances of reconciliation between the families of the two sisters. Even otherwise, both convicts and Smt. Poonam Arora have ___________________________________________________________________________ State Vs. Naresh Kumar Arora and Another FIR No. 322/06, PS: Tilak Marg Page 52 of 54 remorsefully pleaded for forgiveness to the complainant in the Court and requested her to forget the past and reconcile, which she in a fit of emotional outburst declined, but did not totally rule out reconciliation.
11. Accordingly, taking a lenient view, Naresh Kumar Arora and Rakesh Kumar Arora are sentenced to imprisonment already undergone by them during investigation along with a fine of Rs. 50,000/ each under Section 451 IPC, in default of which they shall undergo simple imprisonment for three months each.
Similarly, Naresh Kumar Arora and Rakesh Kumar Arora are sentenced to imprisonment already undergone by them during investigation along with a fine of Rs.1000/ each under Section 342 IPC, in default of which they shall undergo simple imprisonment for one month each.
Similarly, Naresh Kumar Arora and Rakesh Kumar Arora are sentenced to imprisonment already undergone by them during investigation along with a fine of Rs.1000/ each under Section 323 IPC, in default of which they shall undergo simple imprisonment for one month each.
Similarly, Naresh Kumar Arora and Rakesh Kumar Arora are sentenced to imprisonment already undergone by them during investigation along with a fine of Rs.3000/ each under Section 506 IPC, in default of which they shall undergo simple imprisonment for one month each.
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12. A copy of the judgment and order on sentence be given to the convicts free of cost immediately.
13. Case property, if any, is forfeited to the State to be disposed of after the time of appeal is over.
14. Since both convicts are on bail, their bail bonds are cancelled and sureties are discharged. Endorsement, if any, on the documents be cancelled and the documents be returned to the sureties against proper signatures and verification.
15. As per the provisions of Section 437A CrPC, both convicts are directed to furnish a personal bond in the sum of Rs. 10,000/ respectively with one surety in the like amount to appear before Hon'ble Appellate Court, as and when they receive notice of the appeal.
16. File be consigned to Record Room.
Announced in open Court (O. P. Saini)
today on 28.09.2018 Addl. Sessions Judge/
Spl. Judge (CBI04)
New Delhi
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