Om Prakash Tiwari vs State
2016 Latest Caselaw 4028 Del

$~R-62
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Date of Decision : May 26, 2016

+                               CRL.A. 105/2015

      OM PRAKASH TIWARI                               ..... Appellant
              Represented by:         Ms.Naomi Chandra, Advocate

                                      versus

      STATE                                            ..... Respondent
                    Represented by:   Mr.Varun Goswami, APP with
                                      SI Ashok Kumar, PS NDRS

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG

PRADEEP NANDRAJOG, J. (Oral)

1. The appellant has been convicted for the offence punishable under Section 328/411 IPC, and surprisingly not for the offence of theft, probably for the reason as I would be noting the evidence, the appellant fed a stupefying drug to the victim named Pradeep and the stolen property was recovered from the appellant. Pradeep could therefore deposed that after the appellant fed him biscuit and tea laced with a drug he became unconscious and when he regained consciousness he found himself in the hospital and his luggage was missing. Nobody saw the appellant steal the baggage of Pradeep, but any intelligent and logical person would link the appellant to the theft, because he was the one who fed a stupefying drug to Pradeep.

2. That Pradeep was fed a stupefying drug is proved by the FSL report Ex.PW-10/D which shows that in the blood sample of Pradeep

benzodiazepine group of drugs was detected. It was a drug called lorazepam, tablets whereof were recovered from the pocket of the appellant when he was arrested.

3. It commenced when DD No.28A, Ex.PW-4/A was recorded at PS New Delhi Railway Station by HC Ramesh Chand PW-4 to the effect that Ct.Pradeep on duty at Lady Harding Hospital informed that one Pradeep son of late Lekheu had been got admitted to the hospital.

4. One HC Vijay Kumar from the Railway Protection Force (not examined) had taken the victim Pradeep to the hospital because he found him on the platform of New Delhi Railway Station in an unconscious condition.

5. SI Ashok Kumar PW-10 was entrusted the investigation and he went to the hospital and collected MLC Ex.PW8/A of Pradeep which was prepared by Dr.Anil PW-8. The doctor took the gastric lavage sample and blood sample of Pradeep and handed over the same to SI Ashok who sent the same for forensic examination and as noted above, benzodiazepine was found in the blood.

6. SI Mahender PW-3 along with ASI Arvind Kumar and HC Anil Kumar were on duty at platform No.16 at New Delhi Railway Station and were in civil dress. SI Ashok and Ct.Rajinder Kumar met them at 3.30 P.M. along with Pradeep. At Metro Gate No.2, Ajmere Gate side at 5.10 P.M. on November 01, 2013 Pradeep pointed out the appellant as the one who had fed him biscuits and tea. From the personal search and the bag of the appellant the purse containing `200/-, of Pradeep, three tablets, I.D. Card were seized.

7. I have perused the testimony of Pradeep and police officials associated with the investigation. Nothing has been brought out of

substance worth noting to discredit the witnesses. The only argument is that the recovery of the purse and the tablets has been shown in the recovery memo and not the personal search memo. This is meaningless because both memos were drawn up simultaneously.

8. As noted above, the tablets recovered from the personal search of appellant had the same chemical composition of the drug detected in the blood of Pradeep.

9. The conviction of the appellant has rightly been returned. The sentence is to undergo imprisonment for three years for the offence punishable under Section 328 IPC and pay fine in sum of `5000/- in default to undergo SI for three months and for the offence punishable under Section 411 IPC to undergo simple imprisonment for six months. The sentences have been directed to run concurrently. The appellant has already undergone a sentence of two years, six months and twenty five days. Learned counsel for the appellant urges to reduce the sentence to already undergone, which I declined for the reason it is not a case of theft simpliciter. It is case where the appellant fed a stupefying drug to the victim and police record shows that this is the second time the appellant has been caught.

10. The appeal is dismissed.

11. Copy of this order be sent to Superintendent Central Jail Tihar for updation of record and to be supplied to the appellant.

12. TCR be returned.

(PRADEEP NANDRAJOG) JUDGE

MAY 26, 2016/skb