Ajay Kumar Tiwari vs State
2014 Latest Caselaw 1063 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                             RESERVED ON : 19th FEBRUARY, 2014
                             DECIDED ON : 26th FEBRUARY, 2014

+                         CRL.A. 1580/2011

       AJAY KUMAR TIWARI                                  ..... Appellant

                          Through :    Mr.Arnayak Pathak, Advocate.

                          versus

       STATE                                              ..... Respondent

                          Through :    Mr.Lovkesh Sawhney, APP.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Challenge in this appeal is to a judgment dated 28.11.2011 of

learned Addl. Sessions Judge - FTC (Central), Tis Hazari Courts, Delhi,

in Sessions Case No. 14/11 arising out of FIR No. 282/10 PS NDRS by

which the appellant - Ajay Kumar Tiwari was held guilty for committing

offence punishable under Section 328 IPC. By an order on sentence dated

29.11.2011, he was awarded RI for five years with fine ` 2,000/-.

2. The prosecution case as projected in the charge-sheet was

that on 13.12.2010 at about 03.20 P.M. at main hall of New Delhi Railway

Station, the appellant administered a stupefying substance to the

complainant - Pandav Dalai after mixing it in tea with an intention to

commit or facilitate the commission of an offence of robbery. It was

further alleged that the appellant robbed complainant - Pandav Dalai and

deprived him of cash ` 900/-, seven Riyal, passport, ATM card, I-card and

mobile phone make Nokia. Some of these articles were recovered from his

possession on 14.12.2010. During investigation, statements of the

witnesses conversant with the facts were recorded. After completion of

investigation, a charge-sheet was filed against the appellant for

committing the offences under Sections 328/379/392/411 IPC. By an

order dated 12.05.2011 the appellant was charged under Sections

328/394/411 IPC to which he pleaded not guilty and claimed trial. The

prosecution examined five witnesses to establish the charges. In 313

statement, the appellant pleaded false implication and denied his

complicity in the crime. The trial resulted in his conviction as aforesaid. It

is relevant to note that the appellant was acquitted of the charges under

Sections 394/411 IPC and the State did not challenge the said acquittal.

3. I have heard the learned counsel for the parties and have

examined the file. On perusal of the statements of the prosecution

witnesses, it reveals that the entire investigation is highly faulty and

documents seem to have been manipulated to record conviction. The

statements of the prosecution witnesses are full of inconsistencies. The

occurrence took place at the railway station on 13.12.2010 at around 03.20

P.M. when the complainant - Pandav Dalai was found in an unconscious

state. The prosecution examined PW-4 (Satish Kumar), home guard who

deposed that on 13.12.2010 at around 05.30 P.M. he found Pandav Dalai

under the influence of intoxication; took him to Lady Hardinge Medical

College and admitted him there. His statement was recorded on the next

day by the Investigating Officer. In the cross-examination, he revealed

that he was on duty at the railway station from 02.00 P.M. to 10.00 P.M.

When he went to the spot, the complainant was lying near a main hall in

front of the ticket counter at the railway station. He was not aware of his

name and it was revealed to him on the next day by ASI Ashok Kumar.

He alone took the victim in a TSR to the hospital and returned to his place

of duty at 07.00 - 07.15 P.M. He had informed about the incident to ASI

Ashok Kumar at PS NDRS. The MLC (Ex.PW-5/A) does not record that

the patient - Pandav Dalai was brought by PW-4 (Satish Kumar) at the

hospital. Rather it records the name of ASI Ashok Kumar who did not

claim that the victim was taken and admitted by him at Lady Hardinge

Medical College. It is strange that PW-4 (Satish Kumar) did not inform

police while taking the victim to the hospital. He also did not inform any

duty constable posted at the hospital regarding the incident. No DD entry

was recorded in this regard at the police station. PW-4 (Satish Kumar) did

not depose if at the hospital ASI Ashok Kumar had met him or he had

informed him about the incident. It is unclear how the name of the patient,

his father's name and place of residence found mention in MLC (Ex.PW-

5/A) when PW-4 was not aware about all these particulars and the patient

was unconscious. There is an endorsement 'unfit for statement'. It is,

however, not clear as to when and at what time this endorsement was

made and by whom. It is also not clear as to when the patient came to

senses. The Investigating Officer did not keep tab on the patient. The

prosecution did not examine the doctor who prepared the MLC (Ex.PW-

5/A). The Investigating Officer did not request the concerned doctor to

preserve the stomach wash. The prosecution has not explained as to why

the victim was not taken to hospital soon after he became unconscious at

about 03.20 P.M. and was taken by a home guard at 06.15 P.M. only. He

disclosed in his testimony that many police officials were present at the

platform. Daily Diary (DD) No. 18A dated 13.12.2010 seems to have

been manipulated by ASI Ashok Kumar to cover his lapses in carrying out

the investigation. He allegedly recorded this Daily Diary (DD) No. 18A

(Ex.PW-5/F) at around 08.00 P.M., where in the later part of the entry, it

was mentioned that when he had gone to LHMC hospital in connection

with the investigation of another case, Pandav Dalai s/o Madan Dalai was

brought by PW-4 (Satish Kumar). The Investigating Officer has not

offered explanation as to why he did not record the statement of the victim

after he came to senses and why DD entry regarding the incident was not

recorded at the police station separately. Only when the complainant went

to the police station on the next day, the Investigating Officer recorded his

statement and went to the platform where allegedly the accused was found

present with stolen articles. PW-2 (Pandav Dalai) / the complainant and

PW-5 (ASI Ashok Kumar) / the Investigating Officer have given entirely

contradictory and conflicting statements in this regard. PW-2 (Pandav

Dalai) deposed that in the complaint (Ex.PW-2/A), he gave description of

the accused to the police and identified him on the next day of incident in

the police station when he was informed about his apprehension. He

identified his articles in the police station and the same had already been

recovered. In the cross-examination, he further elaborated that he regained

consciousness in the hospital after 3 or 4 hours of consuming the tea. He

was taken to the hospital by an official of the railway police. He went to

the police after discharge from the hospital and identified the articles lying

on the table there. He further disclosed that he had gone to the police

station on his own from the hospital and had not been called by the police.

PW-5 (ASI Ashok Kumar) stated that on 14.12.2010, when he went to the

hospital for recording the statement, the victim was not found there. When

he returned to the police station, the complainant met him at around 09.00

or 09.30 A.M. and his statement (Ex.PW-2/A) was recorded. He further

disclosed that after lodging FIR he and the complainant went to the place

of incident at around 01.00 P.M. When they were present near pavement

near railway station parking towards Ajmeri gate side, the appellant was

apprehended at the pointing of the complainant. On casual search of the

appellant, the articles were recovered and were identified by the victim.

The recoveries of the articles were not believed by the Trial Court.

Apparently, Investigating Officer has not presented true facts. The

appellant who had allegedly robbed the complainant after administering

stupefying substance was not expected to remain present at a nearby spot

with the robbed articles in his possession and also with the stupefying

substance. The Investigating Officer admitted in the cross-examination

that he did not make any application to the examining doctor to obtain or

preserve the stomach wash of the complainant. He was unaware as to

when the complainant regained consciousness. These circumstances show

beyond doubt that the evidence was fabricated by the Investigating

Officer. It is not clear if as per medical record in the hospital, the patient

remained under treatment, and if so, till what duration. MLC (Ex.PW-5/A)

does not record as to when the patient was discharged. It does not record

that the complainant was hospitalized for any treatment. The Trial Court

did not rely upon the testimonies of the prosecution witnesses and

acquitted the complainant of the charge under Sections 394/411 IPC.

When the appellant had no intention to commit theft or was not found in

possession of any robbed articles, there was no occasion for him to

administer stupefying substance in a tea to the complainant. Again, there

are vital improvements and deviations between the version given in

statement (Ex.PW-2/A) and the deposition of the complainant in the

Court. In the complaint (Ex.PW-2/A) it is recorded that the stupefying

substance was mixed in a tea to the view of the complainant and the

appellant insisted him to consume tea despite his reluctance. These facts

do not find mention in the deposition of the complainant who did not

depose if any poisonous substance was mixed in his presence by the

appellant. The Investigating Officer did not make enquiry as to from

where the complainant had procured the tea. The tea vendor on the

platform was not examined. The cups in which tea was alleged used were

not seized. The findings of the Trial Court basing its conviction under

Section 328 IPC on the identification of the complainant cannot be

sustained as it does not establish beyond reasonable doubt that it was the

appellant who had administered poisonous substance to the complainant.

4. In the light of the above discussion, conviction and sentence

recorded by the Trial Court under Section 328 IPC are set aside. The

appeal is accepted. Higher Officers of the Investigating Officer shall take

note of the lapses of the Investigating Officer in conducting the fair

investigation of the case. The appellant shall be released forthwith if not

required to be detained in any other case. Trial Court record be sent back

immediately with the copy of the order. Copy of the order be sent to the

Superintendent Jail for compliance.

(S.P.GARG) JUDGE FEBRUARY 26, 2014/tr