Delhi District Court
State vs . Amrit Pal on 23 May, 2012
State Vs. Amrit Pal
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01, CENTRAL,
TIS HAZARI COURTS, DELHI
SC No.12 of 2010
ID No. 02401R0142422010
FIR No. : 13/10
Police Station : Nabi Karim
Under Section : 328/380/411 IPC
STATE
versus
AMRIT PAL
S/o Late Sh. Madan Lal
R/o H. No. 15, gali no. 3
Sec.A, Ram Nagar, Indira Basti,
Sunam Distt. Sangrur, Punjab
.........Accused
Date of Institution : 05.04.2010
Date of Commital to Sessions Court : 12.04.2010
Date of judgment reserved on : 17.05.2012
Date of pronouncement of judgment : 21.05.2012
Present: Sh.R.K.Tanwar, Additional Public Prosecutor for the State
Sh. K.S. Singhal, Advocate, Counsel for accused
J U D G M E N T:
1. Briefly stated facts of prosecution case are that on January 19, 2010 at about 4.15 PM, an intimation was received in the police station Nabi Karim that a theft had taken place at Gujrati Niwas located at 8171 Ara Khasa road, Pahar Ganj. The said information was recorded SC No. 12/2010 Page no. 1 of 29 State Vs. Amrit Pal vide DD No. 24A and was assigned to ASI Ashwani Kumar. The said DD has been exhibited as Ex. PW14/A during trial.
(i) On receipt of the DD No.24A, ASI Ashwani Kumar reached Gujrati Niwas Guest House, 8171, Ara Khasa road, Pahar Ganj, Delhi where complainant Sonu Lal met him and got recorded his statement and same has been exhibited as Ex. PW1/A during trial. Complainant alleged in his statement that he is a jeweller by profession and visited Delhi on January 17, 2010 in connection with his business and checked in Gujrati Niwas Guest House at about 11 PM; room no. 105 was provided to him.
It was alleged that on January 18, 2010 and at about 11 AM, he placed an order for tea with Manager Sh. Parmod Kumar. Consequently, the tea was sent through waiter Amrit Pal in a glass tumbler. As the tea was cold, he asked the Manager to send hot tea. Accordingly, same waiter named Amrit Pal fetched the tea in glass tumbler. It was alleged that after taking tea, he felt nausea and became unconscious and fell down on the bed. It was alleged that when he regained consciousness at about 7 PM, he noticed that his bag had a cut mark with some sharp edged weapon, consequently, he opened the bag and checked it and found that one small cloth purse black and golden colour containing ` 11650/-, two gold coins of 10 gm each, one silver coin of 11 gm, one pair of diamond tops, one ladies diamond ring, 4 diamond nose pins and total weight of said jewellery was about 8 gm were missing. He also noticed that ` 2 lac which were in the pant lying in bag in two packets in the denomination of `1000/- each was also missing. When he checked his another bag, he found that his pocket purse black colour containing two credit cards of Punjab National Bank and one of Bank of Baroda, five ATM cards (two of HDFC, one of SBI , one of PNB & one of Bank of Baroda), his driving SC No. 12/2010 Page no. 2 of 29 State Vs. Amrit Pal licence, Voter I. Card, some receipts, visiting cards, slips were found missing. It was further alleged that his two mobile phones make Nokia N-70 having connection No. 9431020099 and mobile phone make Sony Ercision having connection no. 8051620099, one wrist watch make Titan golden dial, pocket purse containing one SIM card No. 9910414544 were also found missing. It was alleged that he narrated the incident to Manager Sh. Parmod Kumar and enquired about the waiter Amrit Pal, who told him that he was just coming. Consequently, he waited for the waiter till night but he did not turn up. In the morning, Manager told him that the waiter was missing since evening and thereafter complainant asked the Manager to call the owner of the said Guest House. Consequently, owner came there and he narrated the incident to the owner of the Guest House. It was alleged that he had suspicion that accused Amrit Pal had committed the theft of above articles by administering some stupefying substance to him in the tea. On the statement of complainant, an FIR for the offence punishable under Section 328/380 IPC was got registered.
(ii) During investigation, investigating officer had seized both the glass tumblers and remainder of tea found in the glass tumblers and also seized the bag. It was alleged that on February 11, 2010, at about 3.30 PM, a secret information was received to SI Rajiv Kakkar SOS/Crime Branch that accused Amrit Lal would visit Nizamuddin Railway station at about 4 PM to meet his associate. On this information, a raiding party comprising of HC Dinesh Kumar, HC Raja Ram, Const. Ramesh Kumar, Const. Sushil Kumar, Const Ajay Kumar and SI Rajiv Kakkar was constituted. At the instant of secret informer, accused Amrit Pal was apprehended, at that time he was carrying a black colour suit SC No. 12/2010 Page no. 3 of 29 State Vs. Amrit Pal case. On checking, one jewellery pouch of black and golden colour containing two gold coins, one silver, two rings with nug, one pair of diamond tops, 4 diamond nose pins, one wrist watch make Timex, one mobile phone make Nokia-70, one mobile phone of Sony Ercision K 770i, some debit cards, three strips of Larpose tablets, one pair of glass, towel etc. were recovered from the said bag. During investigation, accused had confessed his involvement in the theft taken place at Gujrati Niwas Guest House on January 18, 2010. Accordingly, he was arrested under Section 41.1 (a) Cr.P.C.
(iii) Intimation of his arrest was given to police station Nabi Karim vide DD No. 24A on February 11, 2010 and same has been exhibited as Ex. PW14/D during trial.
(iv) After taking permission from the Court, accused was arrested on February 12, 2010 and was interrogated. During investigation, it was revealed that accused had deposited the stolen amount of ` 2.00 lac in his bank account maintained in State Bank of India, Sunam Distt. Sangroor, Punjab. Accordingly, police party visited the bank and found that accused had deposited ` 2 lac on January 19, 2010. Police had also seized documents from ICICI Bank where accused had deposited ` 5200/- on February 1, 2010.
(v). Seized exhibits were sent to FSL for analysis.
2 After completing investigation, a challan was filed against the accused for the offence punishable under Sections 328/380/411 IPC in the Court of concerned learned Metropolitan Magistrate.
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3. After complying with the provisions of Section 207 Cr. P.C, case was committed to the Court of Sessions on April 8, 2010. Thereafter, case was assigned to the learned Predecessor of this Court on April 12, 2010. Accordingly, case was registered as SC No.12 of 2010.
4. Vide order dated December 8, 2010, a charge for the offence punishable under Section 328/380 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
5. In order to prove the guilt of accused, prosecution has examined as many as following 14 witnesses:
PW-1 Sonu Lal, complainant
PW-2 Parmod Kumar Singh, Manager of the Guest House
PW-3 Const. Narender Singh, joined investigation with
PW14
PW-4 Const. Ajay Kumar, joined investigation with PW5
PW-5 SI Rajiv Kakkar, arrested the accused and
recovered the stolen articles.
PW-6 Const. Ashok, joined investigation with SI Mohit
Yadav
PW-7 HC Pappu Ram, duty officer, proved the FIR
PW-8 Const. Padam Singh, deposited the exhibits with
FSL, Rohini
PW-9 HC Khyali Ram, MHCM
PW-10 Sh Ramesh Kumar, employee of SBI, proved
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the bank transaction of accused
PW-11 SI Mohit Yadav, joined investigation with PW14
PW-12 HC Chandram, MHCM of PS Crime Branch
PW-13 Sh. Chiranji Lal, photographer
PW-14 ASI Ashwani Kumar, investigating officer
6. Thereafter, accused was examined under Section 313 Cr.P.C wherein he denied all the prosecution evidence and submitted that he was working as document writer in the Court of Sunam, Punjab. On January 17, 2010, he was in Sunam and he had never visited Delhi prior to his arrest. It was alleged that he was forcibly picked up from his house on February 10, 2010 when he was present in his village at about 9 AM. It was submitted that he has been falsely implicated in this case and nothing was recovered from his possession.
7. In order to prove his innocence, accused has exmined following three witnesses:
DW1 Asha sharma, mother of accused
DW2 Harmeet Singh, property dealer
DW3 Ranjeet Singh, another property dealer
(i) It is pertinent to mention here that the testimony of DW1
remained incomplete as her examination-in-chief was deferred on March 5, 2012. Thereafter, she did not grace the witness box and on April 19, 2012, accused made a statement that he does not wish to examine her. Since, her statement remained incomplete, same cannot be read in evidence.
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8. I have heard Sh. R. K. Tanwar, Additional Public Prosecutor for the State and Sh. K.S.Singhal, Advocate, counsel for accused and perused the record carefully.
9. Learned counsel appearing for the accused vehemently contended that no reliance can be placed on the testimony of PW1 & PW2 as accused was not subjected to Test Identification Parade. It was argued that accused was not known to the complainant, thus, the testimony of PW1 wherein he identified the accused first time in the Court has no evidentiary value in the eyes of law. In support of his contention, he relied upon the judgment Hardwari Lal vs. State, passed by Hon`ble High Court of Delhi in Criminal Appeal No. 633/1999 decided on November 4, 2009.
10. Per contra, learned Additional Public Prosecutor sagaciously contended that in the instance case there was no requirement of Test Identification Parade as complainant had sufficient opportunity and time to see and notice the features of the accused. Moreover, PW2 also identified the accused.
11. Before dealing with the contentions raised by counsel for parties, I deem it appropriate to have a look over the settled proposition of law on the point of Test Identification Parade. The Apex Court had summarized the law on the Test Identification Parade in case Mohd. Kalam @ Abdul Kalam vs. State of Rajasthan, AIR 2008 SC 1813. Para 7, 8, 12, 13 and 15 are relevant and same are reproduced as under:
7 "...... The necessity for holding an identification parade can SC No. 12/2010 Page no. 7 of 29 State Vs. Amrit Pal arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Evidence Act. It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution." 8."...... The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule SC No. 12/2010 Page no. 8 of 29 State Vs. Amrit Pal of prudence, however, is subject to exceptions; when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Administration (AIR 1958 SC 350), Vaikuntam Chandrappa and others v.
State of Andhra Pradesh (AIR 1960 SC 1340), Budhsen and another v. State of U.P. (AIR 1970 SC 1321) and Rameshwar Singh v. State of Jammu and Kashmir (AIR 1972 SC 102)."
12. "It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in Court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in Court."
13. "In Ram Nath Mahto v. State of Bihar (1996) 8 SCC 630) this Court upheld the conviction of the appellant even when the witness while deposing in Court did not identify the accused out of fear, though he had identified him in the test identification parade. This Court noticed the observations of SC No. 12/2010 Page no. 9 of 29 State Vs. Amrit Pal the trial Judge who had recorded his remarks about the demeanor that the witness perhaps was afraid of the accused as he was trembling at the stare of Ram Nath-accused. This Court also relied upon the evidence of the Magistrate, PW-7 who had conducted the test identification parade in which the witness had identified the appellant. This Court found, that in the circumstances if the Courts below had convicted the appellant, there was no reason to interfere."
15. "In State of Uttar Pradesh v. Boota Singh and others (1979 (1) SCC 31), this Court observed that the evidence of Identification becomes stronger if the witness has an opportunity of seeing the accused not for a few minutes but for some length of time, in broad daylight, when he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes."
12. To deal with the contention raised by learned defence counsel, testimony of PW1 & PW2 are relevant. PW2 was working as Manager in the Guest House at the time of incident. He categorically deposed that accued Amrit Pal was working in the hotel as waiter. Though, in his cross examination, he deposed that no appointment letter was issued to the accused Amril Pal but he had given the explanation for the same that since accused had joined the service just 15 days ago to the alleged incident, hence no appointment letter was issued to him. He further deposed that before leaving the hotel, accused Amrit Pal had also removed his identity proof from the record of hotel. In his cross- examination, he further deposed that at the time of incident, there were only two waiters in the hotel and one of them was accused Amrit Pal. From his testimony, it appears that said hotel/guest house was very small SC No. 12/2010 Page no. 10 of 29 State Vs. Amrit Pal and even there was no facility of kitchen. There were only two waiters. Thus, mere fact that no appointment letter was issued to the accused is not a ground to discard the testimony of PW2. From his testimony, it is established that accused Amrit Pal was working in the Guest House as a waiter.
13. Now coming to the testimony of PW1 Sonu Lal, who in his cross-examination deposed that his luggage was shifted from reception to the room by accused. He further deposed that on January 18, 2010, accused had served tea to him twice. First time, the tea served by him was cold, thereafter he placed another order wtih the Manager Sh. Parmod Kumar and asked him to send hot tea. Consequently, accused Amrit Pal again came to his room and served hot tea to him. Thus, from his testimony, it becomes abundantly clear that PW1 had sufficient time to see and notice the features of accused when he checked in the Guest House as his luggage was shifted from reception to his room by accused. Thereafter, accused had served him tea twice. Once it is established that PW1 had sufficient time and opportunity to notice the feature of the accused, in view of the law laid down in the aforesaid judgment, I am of the opinion that no Test Identification Parade was required in the matter. Thus, mere fact that accused was not subjected to Test Identification Parade is not fatal to the prosecution case in any manner.
14. Learned counsel appearing for the accused astutely contended that there is no evidence on record to establish that accused had administered any poison or stupefying substance or intoxicant to the complainant. It was contended that since no stomach wash of the complainant was taken and sent for chemical analysis, prosecution has SC No. 12/2010 Page no. 11 of 29 State Vs. Amrit Pal failed to establish that any poison or stupefying substance was administered to the complainant. In support of his contention, he placed reliance on the judgment titled Mukesh Chand & others vs. State (Govt. of NCT), decided on February 1, 2010 in Criminal Appeal No. 20/2002 by the Hon`ble High Court of Delhi and Santosh Kumar vs. State, decided on November 7, 2008 in Criminal Appeal No. 12/2000 by Hon`ble High Court of Delhi.
15. Per contra, learned Additional Public Prosecutor refuted the said contention by strenuously contended that there are overwhelming evidence on record to establish that accused had administered stupefying substance to the complainant as complainant himself deposed that accused had served tea to him and after consuming the tea, he became unconscious and regained consciousness in the evening. It was further submitted that during investigation, police had seized the remainder tea lying in the glass tumbler and on examination, it was found that said tea was containing stupefying substance i.e. Lorazepam.
16. Before dealing with the contentions raised by learned counsel for parties, I deem it appropriate to go through the judgments relied upon by learned defence counsel. The former judgment i.e. Mukesh Chand & others (supra) is based on Joseph Kurian Philip Jose vs. State of Kerala AIR 1995 SC 4 wherein it was held:
"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 SC No. 12/2010 Page no. 12 of 29 State Vs. Amrit Pal 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 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".
17. From the above judgment, it becomes abundantly clear that to bring home the guilt of accused for the offence punishable under Section 328 IPC, prosecution is duty bound to establish that accused was directly responsible for administering poison etc or causing it to be taken by any person through others. Above facts can be proved either by direct evidence or by circumstantial evidence. In case Mukesh Chand (supra), benefit of doubt was given to the accused on the grounds inter- alia that doctor had taken the stomach wash of the victim but said stomach wash was not sent for chemical analysis and there was no other admissible evidence on record to establish that any poisonous or stupefying substance or intoxicant was administered to the victim by the accused whereas in the instance case, the facts are totally different, which, I will discuss later on.
(i) In case Santosh Kumar (supra), the benefit of doubt was
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State Vs. Amrit Pal
given to the accused because the prosecution case was based on the testimony of two witnesses namely PW5 Surender Kumar Singh and PW6 Choudhary Ram but both the witnesses failed to depose the facts attracting the provisions of Section 328 IPC. PW6 did not depose that accused had offered cup of tea to the victim (PW5). Similarly, PW6 also did not depose that the accused had offered biscuit to PW5 or that after eating the biscuit, PW5 had became unconscious. PW6 only deposed that he had seen the accused and other persons indulging intoxicant and having tea and biscuit/snack at about 4/4.30 AM on March 8, 1998 and further deposed that accused was apprehended at the spot with suitcase of the passenger.
(ii). Though, PW5 in his deposition deposed that accused had offered biscuit and tea and after eating biscuit, he became unconscious, however, it was argued that since there was no medical evidence to establish that he became unconscious because of some stupefying substance, no reliance can be placed on his testimony. On the basis of the evidence adduced by the prosecution, it was held that simply on the statement of PW5 alone, it cannot be concluded that he had became 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 became unconscious because of consuming any drug or intoxicant substance etc. mixed in the tea or biscuit. Thus from the judgment it becomes clear that prosecution has to establish by producing cogent evidence that administering substance contained any poison or intoxicant or stupefying substance. Unless prosecution proves these fact accused cannot be held guilty for the offence punishable under Section 328 IPC.
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18. Now coming to the evidence adduced by the prosecution in the instant case.
(i) PW1 Sonu, complainant categorically deposed in his deposition that on January 18, 2010 in the morning at about 11 AM, he had placed an order for tea with the Manager of the Guest House. Accordingly, he had sent tea through accused Amrit Pal (waiter). As the tea was cold, he asked the Manager to send hot tea. Consequently, accused Amrit Pal again served hot tea to the complainant in a glass tumbler, which he fetched in a Thermos. He further deposed that after consuming tea, he started feeling nausea and became unconscious. He further deposed that he regained consciousness in the evening between 6 PM to 7 PM. Thus, from his deposition, it becomes clear that when he consumed the tea, firstly and felt nausea and thereafter became unconscious and the effect of stupefying substance was so powerful that he could regain consciousness in the evening between 6 PM to 7 PM.
19. To establish that the tea served to the complainant was containing poison or stupefying substance, investigating officer had seized the glass tumblers found in the room of complainant and also seized the remainder of the liquid lying in the said tumblers. This fact is proved from the deposition of PW3 & PW14.
20. PW14 in his deposition categorically deposed that he had seized two glasses lying on the table in room no. 105 and found some quantity of tea therein. Accordingly, he poured the remainder tea in small containers, which were given mark A1 and B1. Both the glasses and SC No. 12/2010 Page no. 15 of 29 State Vs. Amrit Pal small bottles were sealed with the seal of AKY and were seized vide memo Ex. PW1/B. During investigation, the seized quantity of tea was sent to FSL Rohini for analysis. On examination of the said liquid, it was found that the same was containing Benzodiazepine drug (Lorazepam). Thus, it becomes abundantly clear that tea which was served to the complainant was containing drug Lorazepam. From the deposition of PW1, it is established that the said tea was served to him by accused Amrit Pal. The report of FSL is exhibited as Ex. PW14/J. The cumulative reading of both the evidence proves beyond the shadow of doubt that accused had served tea containing the drug Lorazepam to the complainant, which was consumed by the complainant. Thereafter, complainant became unconscious. Since, tea was served by the accused as established by the deposition of complainant, onus is shifted upon the accused to show that when he had served the tea, it was not containing any stupefyingly substance. He failed to produce any evidence in this regard. The testimony of PW2 is also relevant who deposed that there was no kitchen in the hotel and tea was to be served to the customer from outside. Since, the tea containing the stupefying substance Lorazepam was served by the accused and subsequently the stolen articles were recovered from the accused. Besides the stolen articles, the tablets of Larpose were also recovered from his possession. Thus, it completes the chain of circumstantial evidence to establish beyond the shadow of all reasonable doubts that accused is the person who had administered Lorazepam in the tea and served the same to the complainant with an intention to commit the offence of theft.
21. Taking into account the above discussion, I do not find any substance in the contention raised by the learned counsel appearing for SC No. 12/2010 Page no. 16 of 29 State Vs. Amrit Pal accused.
22. Learned counsel vigorously contended that no reliance can be placed on the FSL report as prosecution has failed to establish that the case property remained intact till it reached in the hands of chemical examiner. It was submitted that PW9 in his examination-in-chief deposed that ASI Ashwani Kumar had deposited two pullandas duly sealed with the seal of AKY on January 19, 2010 whereas PW9 had sent three pullandas to the FSL on March 4, 2010 and all the pullandas were duly sealed with the seal of AKY. It was contended that when two pullandas were deposited, how PW9 could send three pullandas to FSL, thus it was argued that case property was manipulated by the investigating officer.
23. Perusal of the testimony of PW9 reveals that he was working as MHC(M) and on January 19, 2010, ASI Ashwani Kumar (PW14) had deposited two sealed pullandas duly sealed with the seal of AKY with PW9 being MHC(M). The said pullandas were containing the glass tumblers and small bottles wherein remainder tea was kept. However, PW9 further deposed that on March 4, 2010, he had delivered three sealed pullandas duly sealed with the seal of AKY to constable Padam Singh to deposit the same at FSL, Rohini whereas two pullandas were deposited by investigating officer.
24. Perusal of road certificate Ex. PW9/B reveals that third pullanda was containing the tablets and it was sealed with the seal of AKY. Testimony fo PW14 is relevant to remove the haze over this controversy who deposed that on February 13, 2010, he had collected the recovered case property from HC Chand Singh, MHC(M) of SC No. 12/2010 Page no. 17 of 29 State Vs. Amrit Pal SOS/Crime Branch. All the recovered jewellery were sealed in pullandas with the seal of RK whereas strips of tablets were unsealed. Consequently, he sealed the same with the seal of AKY and deposited with the MHC(M) of police station Nabi Karim. This fact is further corroborated from Ex. PW12/A, which shows that jewellery were sealed with the seal of RK whereas the other items including the strip of tablets Larpose-2 were not sealed. Thus, the testimony of PW9 wherein he failed to explain how three pullandas duly sealed with the seal of AKY were sent to FSL, Rohini while only two pullanda were received has been cleared now thus is not sufficient to discard the testimony of witnesses examined by the prosecution.
25. Learned counsel appearing for accused contended that investigating officer had not seized any document during investigation to establish that PW1 had stayed in the hotel and further argued that the copy of register Ex. PW14/L is not helpful to the prosecution as the date of stay is not mentioned therein. Perusal of Ex. PW14/L, which is copy of the visitors register reveals that Sonu (complainant) had stayed in the said hotel. However, the period of his stay is not mentioned therein. To my mind this defect is not sufficient to discard the ocular evidence of PW1 & PW2 who categorically deposed that complainant stayed in the hotel at the relevant time.
26. Learned defence counsel further contended that there is material contradiction in the deposition of PW1 as in his examination-in- chief, he deposed that he checked in the Guest House on January 17, 2010 whereas in his cross examination, he deposed that he checked in the hotel on January 16, 2010. Perusal of his deposition reveals that SC No. 12/2010 Page no. 18 of 29 State Vs. Amrit Pal there is inconsistency in his testimony on this point. But to my mind, the same is not significant as in his deposition, he categorically deposed that he checked in the hotel on January 17, 2010 whereas he informed the police on January 19, 2010. Admittedly, when in his cross-examination, PW1 deposed that he checked in the hotel on January 16, 2010, attention of witness was not drawn towards his previous statement and no opportunity was given to him to explain the inconsistency in his deposition. Thus, it appears that due to some confusion, he had mentioned the date as January 16, 2010 in his cross examination. Since no opportunity was given to PW1 to clear that inconsistency, I am of the view that no adverse inference can be drawn against him. Moreover, from his testimony it is esblished beyond the shadow of doubt that on January 18, 2010 when alleged incident had taken place he was present in the hotel. Thus, the said contradiction has no effect on the prosecution stroy.
27. Learned counsel further contended that no reliance can be placed on the testimony of complainant because there is a delay in lodging the FIR.
28. Admittedly, the alleged incident had taken place at about 11 AM on January 18, 2010 and the complainant had regained consciousness on January 18, 2010 between 6 PM to 7 PM whereas FIR was lodged on January 19, 2010 at about 6.50 PM. It means that there is a delay of about 24 hours in lodging the FIR. No doubt, inordinate delay in lodging the FIR is one of the relevant factors to examine the testimony of complainant with extra cautions, however, before discarding the complainant's deposition on this ground, Court has to see the SC No. 12/2010 Page no. 19 of 29 State Vs. Amrit Pal circumstances under which the said delay had occurred.
29. Admittedly, complainant was a resident of Bihar and he visited Delhi in connection with his business. When he came to know about the theft, he immediately informed the Manager of the hotel, who told him that he was calling the waiter i.e. accused Amrit Pal. When Manager failed to recall the accused, complainant asked the Manager to call the owner of hotel and when he reched there, he narrated the incident to him. When Manager and owner failed to produce the accused, complainant informed the police. Thus, it is established that initially complainant was interested to get back his articles. This was quite natural because complainant was not the resident of Delhi and he visited Delhi in connection of his business, thus his interest was in receiving back the stolen articles instead of informing the police. Moreover, when Manager came to know about the incident of administering of stupefying substance and theft, it was his duty to inform the police immediately. But he failed to do so. In the above circumstances, I am of the view that the conduct of complainant was not so unnatural that his testimony can be discarded on this ground alone.
30. Learned counsel vehemently contended that since no chance prints were lifted from the glass tumbler, no reliance can be placed on the deposition of the complainant. It is admitted case of prosecution that investigating officer had seized glass tumblers from the room of the complainant in which the tea was served to the complainant. Being a diligent police official, efforts should be made to pick up the chance prints from the glass tumblers but unfortunately no such efforts were made without any reasonable explanation. However, this defect is not fatal to SC No. 12/2010 Page no. 20 of 29 State Vs. Amrit Pal the prosecution case in any manner because there are other overwhelming evidence on record to establish that it was the accused who had served the tea to the complainant.
31. At last, learned defence counsel contended that ` 2 lac deposited in his saving bank account No. 30449476293 SBI Sunam Patiala Road, District Sangrur belonged to the accused as the said amount was given to the accused by his mother who received the same as part of the sale proceeds of her shop. The statement of account is exhibited as Ex. PW10/A. Perusal of the said statement of account reveals that on January 19, 2010, he had deposited ` 2 lac in his bank account. Exhitbit PW10/A pertains for the period August 2008 to January 2010 and it reveals that there is not a single transaction of huge amount. In order to establish that the said amount was the part of sale proceeds of shop, accused has examined three witnesses. Though accused produced his mother Smt. Asha Sharma in the witness box as DW1 but her examination-in-chief was deferred on the request of learned defence counsel. But subsequently, accused failed to bring her in the witness box. Since, the testimony of DW1 remained incomplete during trial, same cannot be read in evidence. DW2 and DW3 were property dealers by profession. DW2 in his cross examination deposed that he could not say whether recovered amount was belonged to the case property in case FIR No. 13/2010, PS Nabi Karim and further deposed that he did not know anything about the case. He further stated that he did not know whether accused was working in Gujrati Niwas Guest House as a waiter and further stated that he has no knowledge whether accused had stolen the jewellery and cash from the customer of the said hotel. He further deposed that he cannot make any comment on the character of accused.
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He also deposed that he could not admit or deny whether accused had deposited the stolen amount in his bank account to give a colour that the said amount was part of sale proceeds. Thus, no reliance can be placed on the deposition of DW2. Though DW3 deposed that he knew the accused since his childhood despite that he deposed that he did not know if accused was working in Delhi and further deposed that he could not tell when he had seen the accused last time in village before January 19, 2010. From the testimony of DW1 & DW2, it appears that the seller was mother of the accused and buyer was Smt. Anju Garg. But accused failed to examine the seller as well as buyer. In other words, accused has failed to produce the best evidence to prove that the buyer had given ` 2 lac in cash to the accused or his mother and the said amount was given by her to the accused to deposit the same in the bank account. From their testimony, it appears that mother of accused had sold the said shop to partition her property and accused had two younger brothers and one sister. If it was so then it is highly unbelievable that mother of accused would pay entire earnest money to the accused to deposit the same in his bank account. Since, accused failed to produce the buyer in the witness box, no much reliance can be placed on the deposition of DW1 & DW2.
32. As already discussed that accused was working in Gujrati Niwas as waiter and he had served tea to the complainant on January 18, 2010 at about 11 AM. From the deposition of PW1, it is established that when he consumed the said tea, PW1 felt nausea and thereafter became unconscious and fell down on the bed. He further deposed that he regained consciousness on the same day in the evening between 6 PM to 7 PM. As already discussed that the glass tumblers in which tea was served by the accused were seized by the investigating officer and SC No. 12/2010 Page no. 22 of 29 State Vs. Amrit Pal sent for chemical analysis. From the report Ex. PW14/J, it is established that the said tea was containing the drug Benzodiazepine (Lorazepam). Thus, it is established that accused had administered stupefying substance to the complainant.
33. From the deposition of PW1, it is also established that when he regained consciousness, he had noticed that there was a cut mark on his bag and when he checked the bag, he found that ` 2 lac in cash which were in the denomination of ` 1000/- each in two packets were missing from his bag along with jewellery items i.e one pair tops diamond, one ladies ring diamond, one gents ring diamond, four nose pins diamond, two gold coins, one silver coin 11/11.5 gm. ` 11, 650/- from his wallet, his wrist watch mobile phone, various credit cards etc. were found missing. From the testimony of PW1 & PW2 it is also established that accused was also found missing from the Guest House after commission of offence. Thus, it is established that accused had administered the stupefying substance in the tea with an intention to commit theft and also committed the theft of the said articles.
34. From the deposition of PW4 & PW5, it is established that accused was arrested on February 11, 2010 on receipt of secret information from Nizamuddin area and at that time he carrying one suit case. On checking the suit case, stolen articles i.e. two gold coins, one silver coin, two diamond tops, two gold rings with nug, four nose pins diamond, two mobile phones, other documents ATM cards etc and 25 tablets of Larpose-2 were recovered from the said bag. Since the recovered articles belonged to the complainant, same were released to the complainant on superdari. The recovery of said articles further SC No. 12/2010 Page no. 23 of 29 State Vs. Amrit Pal establishes that accused is the person who had stolen the said articles from the possession of complainant. Since, theft was committed from the room of complainant, accused is liable for the offence punishable under Section 380 IPC.
35. From the deposit slip of ` 2 lac which is exhibited as Ex. PW10/C, it is established that the amount of ` 2 lac was in the denomination of ` 1000/- each. This further corroborates the prosecution version that the said amount is the same which was stolen from the possession of complainant. Though prosecution has also relied upon the report of handwriting expert but no purpose would be achieved to discuss the same as accused admitted that he had deposited the said amount in his bank account but took the plea that it was the part of sale proceeds, which he failed to establish during trial.
36. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has succeeded to bring home the guilt of accused for the offence punishable under Section 328/380 IPC beyond the shadow of all reasonable doubts, thus, I hereby hold the accused Amrit Pal guilty thereunder.
Announced in the open Court
on this 21st day of May, 2012 (PAWAN KUMAR JAIN)
Additional Sessions Judge-01
Central, Tis Hazari Courts,
Delhi
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State Vs. Amrit Pal
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01, CENTRAL,
TIS HAZARI COURTS, DELHI
SC No.12 of 2010
ID No. 02401R0142422010
FIR No. : 13/10
Police Station : Nabi Karim
Under Section : 328/380/411 IPC
STATE
versus
AMRIT PAL
S/o Late Sh. Madan Lal
R/o H. No. 15, gali no. 3
Sec.A, Ram Nagar, Indira Basti,
Sunam Distt. Sangrur, Punjab
.........Convict
Present: Sh.R.K.Tanwar, Additional Public Prosecutor for the State Sh. K.S. Singhal, Advocate, Counsel for convict ORDER ON THE POINT OF SENTENCE:
1. Vide separate judgment dated May 21, 2012, accused has been held guilty for the offence punishable under Section 328/380 IPC.
2. Learned counsel appearing for convict made two fold submissions; firstly either to award the sentence for the period already undergone or to release the convict on probation of good conduct on the grounds that convict has two minor school going children and wife and SC No. 12/2010 Page no. 25 of 29 State Vs. Amrit Pal mother. It is submitted that accused is the sole bread earner of the family and remained in the custody for about 26 months during the trial and he is the first offender and belongs to a respected family. It is submitted that accused is repented over his act. In support of his contention, learned counsel relied upon the judgment Ved Parkash Vs. State of Haryana, 1991 SCR (1) 1279, which was followed by the High Court of Delhi in Neeranjan and others vs. State in Criminal Appeal No. 170/99 decided on December 19, 2008.
3. Per contra learned Additional Public Prosecutor refuted the said contentions by arguing that convict had committed the crime for monetary benefit after administering stupefying substance to the victim. It is submitted that considering the gravity of offence, convict deserves maximum punishment.
4. I have heard learned counsel for both the parties, perused the record carefully and gave my thoughtful considerations to their contentions.
5. Hon`ble Mr. Justice V.R. Krishna Iyer once observed that judgments are not to be venerated like Bible. It is to be read in the light of facts involved therein. In case Ved Parkash vs. State of Haryana (supra), the convict was released on probation considering the facts and circumstances involved in that particular matter. In the said case, the real cause of committed offence was land dispute between the parties, which had already been settled between the parties. That was one of the important factors to extend the benevolent provisions of Probation of Offenders Act to the convict. On the converse, in the present case greed SC No. 12/2010 Page no. 26 of 29 State Vs. Amrit Pal was the cause of commission of crime. Needless to say that a change of a single fact in criminal matters may bring sea change in the outcome of the matter.
6. No doubt, convict is the sole bread earner of the family and having school going kids but such type of plea is available to each and every convict in the criminal matters. At the time of determining the sentence, the plight and suffering of the victim cannot be ignored. It is undisputed fact that victim was a jeweller by profession and belonged to Patna and he visited Delhi in connection with his business, thus was carrying jewellery and cash amount with him. It is also established fact that convict was working in the hotel as a waiter. Being the employee of the hotel, it was his moral and legal duty to protect the life and property of the victim. But he not only committed the offence but also betrayed the faith of victim. Moreover, to commit the theft of the valuable items of the victims, convict had not hesitated even to administer stupefying substance to the victim. This shows that convict had no concern with the safety of the victim and his only motive was to earn easy money by committing theft. To achieve his goal, he did not hesitate to administer the stupefying substance to the victim.
7. Admittedly, till date a sum of ` 2 lac is lying in the bank account of the convict and even till date convict has been claiming the said amount. Had accused been repented over his act, he would not claim the amount of ` 2 lac during the course of final arguments and would offer himself to return the said amount to the victim. This shows that the convict had not repented over his act from the bottom of his heart and the plea has been taken just to take a lenient view from the Court.
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State Vs. Amrit Pal
Where the offence is committed to earn easy money or due to some greed, clear message should go to the offenders that as and when their guilt is proved in accordance with law, they would have to face sentence of imprisonment as crime never pays.
8. Considering all the mitigating and aggravating factors, I am of the opinion that convict deserves substantial punishment and does not deserve either token sentence or benevolent provisions of Probations of Offenders Act as contended by learned counsel for the convict.
9. Taking into account the above discussion, I hereby sentence the convict Amrit Pal five years rigorous imprisonment and a fine of ` 50,000/- in default further simple imprisonment for a period six months for the offence punishable under Section 328 IPC. I also sentence convict Amrit Pal rigorous imprisonment for a period of four years and a fine of ` 25,000/- in default simple imprisonment for a period of three months for the offence punishable under Section 380 IPC. Benefit of section 428 Cr.P.C be given to the convict. Both sentences shall run concurrently.
10. Keeping in view the fact that victim had not only sustained monetary loss but also mental and physical suffering, I am of the view that victim is entitled for the compensation from the said fine amount in terms of Section 357 Cr.P.C. Thus, I hereby award a compensation ` 60,000/- from the said fine amount if realized. However, the amount of compensation shall not be released to the victim before the expiry of period of appeal or revision and if any appeal or revision is filed, compensation shall be released after the decision of such appeal or revision.
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State Vs. Amrit Pal
11. As it is established that the amount of ` 2 lac is lying in the saving account of convict bearing number 30449476293 in State Bank of India, Sunam, Patiala Road, District Sangrur and the said amount belonged to the victim Sonu Lal, thus the said amount along with the interest be confiscated. SHO PS Nabi Karim is directed to seize the said amount from the said branch and thereafter the amount along with the interest be returned to the victim.
12. Intimation be sent to the victim accordingly.
13. Copy of judgment along with the order on the point of sentence be given to the convict free of cost.
14. File be consigned to record room.
Announced in the open Court on this 23rd day of May 2012 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01, CENTRAL, THC, DELHI SC No. 12/2010 Page no. 29 of 29