Mohd. Mister vs State
2020 Latest Caselaw 2640 Del

           *          IN THE HIGH COURT OF DELHI AT NEW DELHI

           +          CRL.A. 306/2019

                                               Judgment reserved on : 06.12.2019
                                                    Date of decision: 16.09.2020

           MOHD. MISTER                                         ..... Appellant

                                  Through:    Appellant in person from JC with Mr.
                                              Ravindra Narayan, Advocate.

                                  Versus

           STATE                                                 ..... Respondent

                                  Through:    Mr. Sanjeev Sabharwal, APP for
                                              State with SI Vinod Kumar, PS
                                              Anand Vihar Railway Station.

           CORAM:
           HON'BLE MS. JUSTICE ANU MALHOTRA

                                                   JUDGMENT

ANU MALHOTRA, J.

1. The appellant vide the present appeal assails the impugned judgment dated

08.02.2019 of the learned ASJ/FTC/E-Court/ Shahdara, Karkardooma Court, Delhi

in Sessions Case No.7/2013, vide which the appellant herein was convicted for the

offences punishable under Sections 328/379/34 of the Indian Penal Code, 1860 and

the impugned order on sentence dated 15.02.2019 vide which the appellant was

sentenced to undergo Rigorous Imprisonment for a period of 4 years and to pay a

fine of Rs.2,000/- and in default of the payment of the said fine to further undergo Signature Not Verified Digitally Signed

Signing Date:01.10.2020 18:17 Simple Imprisonment for a period of one month qua the offence punishable under

Section 328/34 of the Indian Penal Code, 1860; to undergo Rigorous Imprisonment

for a period of two (2) years and to pay a fine of Rs.2,000/- and in default of the

payment of the said fine to further undergo Simple Imprisonment for a period of one

month qua the offence punishable under Section 379 of the Indian Penal Code, 1860

with directions to the effect that both the sentences would run concurrently with the

benefit of Section 428 of the Cr.P.C., 1973 having been given to the appellant. Vide

the impugned order on sentence dated 15.02.2019, the learned Trial Court also

imposed a compensation of Rs.10,000/- to be paid by the convict i.e. the appellant

herein to the complainant namely Rajiv Kumar Singh and in default of the payment

of the said compensation, the convict i.e. the appellant herein was directed to

undergo Simple Imprisonment for a period of three months.

2. The nominal roll dated 18.10.2019 received in the instant case from the

Superintendent Central Jail No.12, Mandoli, Delhi indicates that the appellant till

the said date had undergone 1 year 8 months and 5 days of the imposed sentence.

3. Notice of the appeal was issued to the State. Submissions have been made on

behalf of either side.

PROSECUTION VERSION

4. The allegations levelled against the appellant as per the charge of allegations

framed against the appellant vide order dated 29.01.2013 of the learned ASJ/FTC/E- Signature Not Verified Digitally Signed

Signing Date:01.10.2020 18:17 Court/KKD /Delhi was to the effect that the appellant herein along with Qutub

Alam on 05.11.2012 at about 2.00 am at the Sub-Way near the Reservation Hall,

Anand Vihar Railway Station in furtherance of their common intention gave a

stupefying substance laced in tea to one Rajiv Kumar Singh with intent to cause hurt

to him or knowing it to be likely to cause hurt thereby to him and with an intent to

commit/ facilitate the commission of theft and pursuant thereto committed a theft

and a bag containing clothes, mobile phone bearing SIM No. 7503546709 and a

purse containing Rs.1,790/- and some documents belonging to the said Rajiv Kumar

Singh were recovered from Qutub Alam and that the appellant herein along with

Qutub Alam, the co-accused had committed offences punishable under Section

328/34 of the Indian Penal Code, 1860 and Section 379/34 of the Indian Penal

Code, 1860 to which charge of allegation that the appellant herein and the co-

accused Qutub Alam pleaded not guilty and claimed trial.

5. During the course of the proceedings before the learned Trial Court, the co-

accused Qutub Alam stopped appearing and was thus, declared a proclaimed

offender vide order dated 16.12.2017.

6. The prosecution has adduced 14 witnesses in support of its contentions. As

per Ex.PW5/H, the ruqqa on the basis of which the FIR was registered on receipt of

DD No.3A dated 05.11.2012, the IO ASI Pratap Singh had gone to the spot where

he met Constable Lalit, No.844 who was in the circulating area of Anand Vihar Signature Not Verified Digitally Signed

Signing Date:01.10.2020 18:17 Railway Station on patrolling and joined him in the proceedings and reached the

spot i.e. the sub way near the Reservation Hall of the Anand Vihar Railway Station

from where the victim was sent with Constable Lalit to the hospital and the accused

persons were arrested i.e. Qutub Alam and Mohd. Mister i.e. the appellant herein

from whose custody, the articles that had been recovered i.e. the tablets wrapped in

a piece of paper from the pocket of the shirt of Qutub Alam, the co-accused apart

from a black colour purse and a mobile phone make G-5 and from the appellant

herein i.e. Mohd Mister a red coloured bag, and a voter I Card in the name of Rajiv

Kumar Singh that is the complainant were recovered and the statement of HC Soran

Singh was recorded and on the basis of the same, the FIR was sent for registration

qua offences punishable under Sections 328/379/411/34 of the Indian Penal Code,

1860.

7. As per the statement of HC Soran Singh which forms the basis of the FIR he

stated that he was on patrolling duty on the night intervening 4/5.11.2012 from 9:00

am to 9:00 pm and that whilst so patrolling, at about 1:00 am he met SI Ravinder

Singh of the RPF, EFMB and Constable Vikas of the RPF Faridabad and they

started patrolling together near the EFMB No.1 and at about 2:00 am, when they

turned towards the Sub-way near the Reservation Hall when they saw that there was

a boy lying down adjacent to a wall and there was a red coloured bag near that boy

which was being picked up by one boy and he started walking towards the staircase Signature Not Verified Digitally Signed

Signing Date:01.10.2020 18:17 going to platform no.1 and the other boy who was empty handed and was standing

near the boy who was lying down, started walking towards the staircase of platform

towards no.2 of the Sub-way and when the police personnel found that boy who was

lying down, sleeping and seeing the other two boys going towards different

directions, a suspicion was aroused and thus, they ran and apprehended the boy

climbing the staircase towards platform no.1 and also saw that the boy who was

going towards the staircase of platform no.2 & 3 immediately started running, then

the first boy who was apprehended was left with SI Ravinder Singh, and HC Soran

Singh along with Constable Vikas apprehended the other boy who was climbing the

other staircase. The said police personnel then made inquiries from the first boy

with the bag who was going towards the platform no.1 and apprehended him and his

name was learnt to be Mohd. Mister, s/o Salaudin i.e. the present appellant and the

other boy's name was learnt to be Qutub Alam s/o Mohd. Tayyab and both these

persons disclosed that they had given some stupefying substance in the tea to that

boy who was lying down in the form of tablets and when he had become

unconscious, the co-accused Qutub Alam had taken out his purse and his mobile

phone and Mohd. Mister i.e. the appellant herein had left his bag containing his own

clothes at the spot and picked up the bag belonging to that person and had started

going out.

Signature Not Verified Digitally Signed

Signing Date:01.10.2020 18:17

8. On the search of Qutub Alam being conducted from the left hand side rear

pocket of his pant, a black coloured purse was recovered and from the front back

pocket of his pant, a mobile phone was recovered which he disclosed that the same

belonged to that boy who had become unconscious and from the pocket of the shirt

of the co-accused Qutub Alam, 10 pink coloured tablets wrapped in a paper were

recovered qua which Qutub Alam disclosed that there were stupefying tablets. The

bag which was with Mohd. Mister i.e. the appellant herein, on checking was spotted

to have been found to contain some old and new clothes and an old purse containing

an Voter's I-Card in the name of Rajiv Kumar Singh issued on 05.08.2005 and the

purse recovered from Qutub Alam, the co-accused also was stated to contain an I-

Card in the name of Rajiv Kumar Singh, s/o Pawan Lal Singh, r/o 75, Village Dabri

Basti, District Kishanganj issued on 16.01.2009. HC Soran Singh then informed the

police station, as a consequence of which the Investigating Officer, ASI Pratap

Singh along with Constable Lalit had reached the spot and the victim was sent to the

hospital.

9. The victim Rajiv Kumar Singh in his testimony examined as PW-3 stated that

he worked as a Carpenter in a company at Sector-134, Noida and also lived there

and that on 04.11.2012 he had come to the Anand Vihar Railway Station at about

9.00 pm as he had to take a train i.e. the North-East Express to go to his village on

05.11.2012 and that the official at the ticket window told him that the ticket for the Signature Not Verified Digitally Signed

Signing Date:01.10.2020 18:17 train would be sold after 12 mid night and thus, he sat on the railway platform, then

two boys came to him and met him at the platform and one of the boys told him that

the second boy was his brother and that he was new to the place and asked him to

take him alongwith him to the village. The complainant identified both the accused

who were present before the learned Trial Court as being those two boys and stated

that thereafter, all three of them slept at the platform and at about 12 mid night, he,

the complainant got up to buy a ticket but the accused Qutub Alam (since declared a

Proclaimed Offender) asked him to first take tea and then the said accused Qutub

Alam went from there and brought two cups of tea and gave one cup to him i.e. to

Rajiv Kumar Singh and another cup to the co-accused Mohd. Mister i.e. the

appellant herein. PW-3 Rajiv Kumar Singh i.e. the complainant stated further that

he took the tea and after five minutes of taking the tea, he became unconscious and

that he regained his consciousness at the hospital but he was not fully conscious and

stated that thereafter he left the hospital thinking that he may not miss the train and

went to the Anand Vihar Railway Station, where he found his belongings missing

and he thus made a telephone call from the STD booth to his brother Pramod Singh

and his brother then telephonically informed his relatives at Delhi and his relatives

Bhagat Singh and Pritam Singh came to the STD booth at the Anand Vihar Railway

Station and took him to the Police Station, Anand Vihar and from there he was

taken to the hospital as he was not fully conscious then and was provided treatment Signature Not Verified Digitally Signed

Signing Date:01.10.2020 18:17 at the hospital. He has further stated that the doctor took out Gastric lavage by

putting a pipe in his abdomen and when he regained complete consciousness, he

returned back to his house and the next day, he again went to the police station with

Bhagat, his relative and the police recorded his statement.

10. Inter alia, PW-3 stated that the accused persons had stolen his bag containing

his clothes, mobile phone bearing Aircel No.7503546709 and a purse containing

Rs.1,790/- after giving him tea with some stupefying substance. He further stated

that the stolen articles recovered by the police, were released to him on Superdari

vide the superdarinama Ex.PW3/A on which he identified his signatures. He has

further stated that on 14.11.2012, he was called to the Tihar Jail for the Test

Identification Proceedings of the accused persons but they refused to join the TIP

and on 17.11.2012, he had been called in the Court in Room No.61 where he saw

the accused persons on the big screen and identified them.

11. Inter alia the witness i.e. the victim stated further that the police had taken

the photographs of the recovered articles which he could identify. The photographs

of Rs.1,790/- Ex.P-1/A-1 to Ex.P-1/A-4, the photographs of the mobile phone, the

cash memo, the identity card, bag, purse Ex.P-2/A-1 to Ex.P-2/A-8 flagged on the

record were shown to the witness, which he identified being the case property which

was taken by the police at the time of the release of the case property to him on

Superdari. He also produced the cash memo of the mobile phone in the case. Inter Signature Not Verified Digitally Signed

Signing Date:01.10.2020 18:17 alia this witness stated that two of his I-Cards were stolen by the accused and stated

that he had gone to the Tihar Jail to identify the accused persons on 14.12.2012 and

not on 14.11.2012 (as stated earlier) and that he identified the accused persons at the

Karkardooma Courts on 17.12.2012. This witness produced the articles comprising

the case property released to him on Superdari in his testimony on 05.09.2003

which were exhibited i.e. the mobile phone Ex.P1, bag Ex.P2, clothes collectively

Ex.P3, the purse containing visiting cards and paper slips Ex.P4, election I-cards

Ex.P5 & Ex.P6, the red coloured bag bearing particulars of this case which was

shown to the witness and which was identified as being the bag belonging to the

accused Ex.P7. On being cross-examined, on behalf of the appellant herein the

witness had stated that the bag Ex.P7 was that which was with the appellant and

categorically denied that the appellant herein has been falsely implicated at the

behest of the Investigating Officer.

12. During his cross examination on 06.09.2013, this witness has stated that he

had seen the accused persons for the first time after the incident on the big screen in

the Court on 17.11.2012 but categorically stated that the police officials who

recorded his statement were not present at that time when he identified the accused

persons in the Court and denied that he was shown the photographs of the accused

persons at the police station by the police officials. He has further categorically

denied that any incident as stated by him had not taken place and denied that the Signature Not Verified Digitally Signed

Signing Date:01.10.2020 18:17 accused persons were falsely implicated at the instance of the police officials. He

also denied that he had testified falsely. He stated further that he had not slept at the

platform but the two accused persons had slept at the platform and stated that what

he had stated in his examination in chief that all three of them slept at the platform

was incorrect and stated that he had got up at about 12.00 midnight and had so

stated to the police and was thus confronted with his statement under Section 161 of

the Cr.P.C., 1973 Ex.PW3/DA wherein the specific time was not mentioned and it

was only mentioned "thodi der baad".

13. HC Soran Singh who was examined as PW-5 in his testimony corroborated

the prosecution version as set forth through the FIR and identified the appellant

herein as being the person apprehended with a red coloured bag who was

apprehended first and identified the co-accused Qutub Alam as being apprehended

by him and HC Vikas and testified to the recovery of the black coloured purse and

the mobile phone of the make G-5, 10 tablets of pink colour wrapped in a piece of

paper from Qutub Alam and testified to the recovery of a Voter I-Card in the name

of Rajiv Kumar Singh and clothes from the red coloured bag from the appellant

herein and testified to the disclosures made by the two accused persons in relation to

administering five tablets laced in tea to the boy who was lying unconscious;

identification of the case property that had been recovered at the spot from the

appellant herein and the co-accused as well as the red coloured bag belonging to the Signature Not Verified Digitally Signed

Signing Date:01.10.2020 18:17 appellant herein i.e. Ex.P7 and identified the pullanda containing a piece of paper in

which orange coloured tablets were taken out which he identified to be the same

tablets seized by the Investigating Officer. This witness categorically denied that all

proceedings in this case were conducted at the police station, and denied that he had

signed as a witness in order to support the case of the prosecution and denied that

the accused persons have been falsely implicated.

14. PW-7, SI R.S. Kinha of PS Anand Vihar Railway Station who was then at the

time of the incident working as an SI in the Railway Protection Force posted at

Anand Vihar Railway Station also corroborated the prosecution version as set forth

through the FIR in toto in relation to all material particulars and to the recovery of

the belongings of the victim from Qutub Alam as well as from the appellant herein

and also to the apprehension of the appellant herein and of the co-accused as also

the aspect that the victim herein was lying in a sleeping condition and the accused

persons had started leaving that place on seeing the police patrolling and then the

appellant herein and the co-accused had been apprehended on suspicion by SI

R.S.Kinha (PW-7), Constable Vikas and HC Soran Singh. This witness on being

cross examined stated that the tablets recovered were 10 in number of a light orange

colour. This witness denied that he had testified falsely and categorically stated that

all proceedings were conducted at the spot and denied that there were no recoveries

of any articles from the possession of any of the accused persons. Signature Not Verified Digitally Signed

Signing Date:01.10.2020 18:17

15. The Investigating Officer of the case ASI Pratap Singh who was examined as

PW-13 also corroborated the prosecution version set forth in toto in relation to all

material particulars.

16. The FSL result in the matter qua the gastric lavage of the victim was placed

on the record as PW13/C. The said gastric lavage of the victim indicates that 10

orange coloured round shaped tablets on which it was printed WYETH had been

received on 24.12.2012 from the SHO, PS Anand Vihar Railway Station and were

examined from 02.01.2013 to 22.02.2013 and on chemical examination PLCT/MS

examination, the exhibit i.e. Ex.P2 as well as the dirty creemish liquid with

sediments volume 240.0 stated to be the gastric lavage were found to contain

'lorazepam‟. The said FSL result is admissible in evidence in terms of Section 293

of the Cr.P.C., 1973 and has not been challenged by the appellant and was exhibited

as Ex PW 13/C by the ld. trial Court.

17. The other prosecution witnesses examined in the instant case also supported

the prosecution version.

18. The learned Trial Court vide the impugned judgment held the prosecution

version to have been wholly established.

PLEA OF DEFENCE

19. Through the statement under Section 313 of the Cr.P.C., 1973, the appellant

denied the incriminating evidence led against him and pleaded that he had reached Signature Not Verified Digitally Signed

Signing Date:01.10.2020 18:17 the Anand Vihar Railway Station at 11.00 pm as he had to board a train i.e. the

North-East Express for his native place i.e Kishanganj and also produced DW-1

Mohd. Mukhtar Alam who deposed that after leaving the appellant herein at the

Anand Vihar Railway Station he had come back to his house at 10.00 pm and it was

thus rightly observed by the learned Trial Court that the presence of the appellant at

the Anand Vihar Railway Station and that he had to board a train i.e. the North-East

Express, has not been disputed.

CONTENTIONS OF APPELLANT

20. The appellant vide the present appeal has submitted that the entire

prosecution version is false and that the appellant has been wrongly convicted. It

has inter alia been submitted on behalf of the appellant that the learned Trial Court

has failed to appreciate that no public witnesses were joined in the proceedings

despite the factum that at the railway platform, several people were present. It has

been submitted further on behalf of the applicant that the recovered articles seized

by the police officials were not sealed and that the learned Trial Court had failed to

appreciate that this itself indicated the falsity of the allegations levelled against the

appellant and it was for this reason that the appellant had not been convicted qua the

alleged commission of the offence punishable under Section 411 of the Indian Penal

Code, 1860. Inter alia it has been submitted on behalf of the applicant that a very

improbable story had been put forth by the police officials who had allegedly Signature Not Verified Digitally Signed

Signing Date:01.10.2020 18:17 apprehended the appellant and the co-accused and that the learned Trial Court had

failed to appreciate the fact that there was no recovery of any ticket effected at the

instance of the appellant or the victim. It has been further submitted on behalf of the

appellant that the learned Trial Court had also failed to appreciate the fact that the

victim was taken to the hospital but was not available even to the police officials

and ran away from the hospital on the same day when he had been got admitted to

the hospital and appeared before the police along with his relative on the next day

and the gastric lavage was then taken by the doctors and during the FSL

examination, the intoxicating substance was found in the gastric lavage which

clearly showed that the whole story was manipulated by the police officials to

implicate the applicant.

21. It has further been submitted on behalf of the appellant that there were several

contradictions in the statements of the witnesses and the prosecution also dropped

two of its material witnesses and thus, the entire prosecution version stood falsified

and had not been corroborated. It has also been submitted on behalf of the appellant

that the Test Identification Parade of the appellant was a farce as the photographs of

the appellant had already been taken and shown to the victim. Inter alia it was

submitted on behalf of the appellant that the learned Trial Court had failed to

appreciate the fact that the prosecution had failed to produce any record with respect

to the timing of the train by which the victim was supposed to go to Bihar. Signature Not Verified Digitally Signed

Signing Date:01.10.2020 18:17

22. It has also been submitted on behalf of the appellant that the learned Trial

Court had not taken into account the aspect that the witnesses who were produced

by the prosecution were wholly tutored. It has been submitted further on behalf of

the appellant that several of the documents prepared by the Investigating Officer

were faulty, in as much as, they had been prepared even without registration of any

FIR and without any investigation conducted prior to the registration of the FIR and

such investigation is no investigation in the eyes of law.

CONTENTIONS OF THE STATE

23. On behalf of the State, the learned APP for the State has submitted written

submissions and has submitted that the prosecution version stood established

through the testimonies of the prosecution witnesses that were examined, in as

much as, the victim examined as PW-3 had strenuously supported the prosecution

version; that the registration of the FIR stood established through the testimony of

PW-4 HC Dushyant; that the testimony of HC Soran Singh was consistent in

relation to all material particulars; that the testimony of SI R.S.Kinha examined as

PW-7 who was on patrolling duty with Constable Vikas at about 1.00 am when they

had met PW-5 HC Soran Singh whilst on patrolling stood corroborated through the

testimony of PW-5 HC Soran Singh; the CDRs in relation to the call details of Rajiv

Kumar Singh PW-3 and other related documents were submitted to have been

established through the testimony of PW-9 Sh. Shishir Malhotra, Nodal Officer, Signature Not Verified Digitally Signed

Signing Date:01.10.2020 18:17 Aircel Ltd., which documents were proved as Ex.PW9/A to Ex.PW9/F; that the first

MLC at 3.15 am exhibited as Ex.PW2/A stood established through the testimony of

PW-2 Dr. Ranitesh, Medical Officer, LBS hospital; the testimony of Dr. Sachin,

Casualty Medical Officer, LBS Hospital examined as PW-1 also established the

preparation of the second MLC at 9.45 pm when Dr. Sachin, Casualty Medical

Officer, LBS Hospital had examined who deposed that on 05.11.2012, he medically

examined Rajiv Kumar S/o. Pawan Lal, who was brought by HC Devender for

medical examination for the purpose of collection of gastric lavage. Ex.1 the gastric

lavage of the victim PW-3 and the tablets Ex.2 recovered from the co-accused as

per the FSL report dated 22.02.2013 were found to contain 'lorazepam‟.

24. It was further submitted on behalf of the State that the testimony of PW-10,

Sh. J.P.Nahar, Relieving Magistrate, KKD Courts, established that the appellant

herein had refused to participate in the TIP proceedings and thus, an adverse

inference has essentially to be drawn against him. It was also submitted on behalf of

the State that the testimony of ASI Pratap Singh, the Investigating Officer who

conducted the investigation and prepared the documents in relation to the

investigation and had reached the spot after receipt of DD No.3A along with

Constable Lalit Kumar also stood established.

25. The records produced by HC Jaya Chander examined as PW-14 were

submitted to also establish the registration of DD No.22-B dated 04.11.2012, DD Signature Not Verified Digitally Signed

Signing Date:01.10.2020 18:17 No. 3-A, DD No. 26-B and DD No. 29-B dated 05.11.2012, copies of which are on

the record of the Trial Court as EX.PW14/A to Ex.PW14/D to submit that the

prosecution version stood established to have occurred as recorded through the DD

entries referred to hereinabove.

26. It was further submitted on behalf of the State that whereas the time of the

incident as per the information received that had been given by HC Soran Singh was

around 2.00 am on 05.11.2012, the defence witness produced by the appellant had

stated that he had left the Anand Vihar Railway Station at 10.00 pm on the night

intervening 04/05.11.2012 and it has thus been submitted on behalf of the State that

the contention raised on behalf of the appellant that the testimony of DW-1 Mohd.

Mukhtar Alam would bring forth an alibi in favour of the appellant, did not support

the plea of innocence of the appellant.

ANALYSIS

27. On a consideration of the submissions that have been made on behalf of

either side and on a perusal of the trial Court record, it stands established that the

appellant was at the Anand Vihar Railway Station on the night intervening

04/05.11.2012 as he had to board a train i.e. the North-East Express for his native

place i.e. Kishanganj. This is borne out through the testimony of DW-1 Mohd.

Mukhtar Alam produced by the appellant himself, which thus corroborates the

Signature Not Verified Digitally Signed

Signing Date:01.10.2020 18:17 statement under Section 313 of the Cr.P.C., 1973 of the appellant in reply to Query

No.4, wherein, it was stated to the effect:-

"Q.4 It is in evidence against you that after 5 minutes of taking the tea, PW-3 became unconscious and during that time PW-5 HC Soran Singh alongwith PW-7 SI Ravinder Singh Kinha and PW-12 Ct. Vikas reached there and they saw that a boy was lying on the floor and you lifting a red colour bag lying near PW-3 and started walking towards platform no.1 and your co-accused Qutub Alam was standing near PW-3. What have you to say?

Ans. It is incorrect. I reached at the Anand Vihar Railway Station at 11 pm as I had to board a Train „North-East Express‟ for my native place i.e. Kishanganj. I was sleeping at a distance from the complainant and police officials took me to Chowki alongwith some other persons and their they demanded money to release me but since I was not having money, I was falsely implicated in this case."

28. Furthermore, the testimony of Rajiv Kumar Singh, the victim in the instant

case also establishes the factum of the appellant being present at the spot; the

testimony of PW5 HC Soran Singh establishes the apprehension of the appellant

with the red coloured bag belonging to the victim PW-3 on the night intervening

04/05.11.2012 at the Anand Vihar Railway Station; the testimony of SI R.S.Kinha

examined as PW-7 also corroborates the said prosecution version when he states

that the appellant on the night intervening 04/05.11.2012 at the Anand Vihar

Railway Station had lifted a black and red coloured bag lying near the place where

the person was lying on the ground and that he started going towards platform no.1

with that person lying on the ground being the victim PW-3 and having also

identified the bag recovered from the appellant as being that belonging to PW3 the Signature Not Verified Digitally Signed

Signing Date:01.10.2020 18:17 victim. The apprehension of the appellant whilst he was going towards platform

no.1 of the Anand Vihar Railway Station also stands established through the

testimony of PW-7.

29. The factum of the appellant herein being near the victim when he was

sleeping and carrying away the bag belonging to the appellant, stands established

through the testimony of PW-5 HC Soran Singh and PW-7 SI R.S.Kinha. The

factum that the appellant was apprehended at the spot and the victim was in an

unconscious state, is also established through the testimony of PW-11 Constable

Lalit Kumar and likewise through the testimony of PW-13, the IO ASI Pratap

Singh. The factum of the victim PW-3 having been administered with stupefying

substance in the form of tablets containing „lorazepam‟, stands established through

the FSL result of the gastric lavage of the appellant that was forensically analyzed.

30. Though, the prosecution version and the disclosure statement allegedly made

by the appellant and the co-accused (since declared a proclaimed offender) are to

the effect that the tablets had been administered by the co-accused by placing it in a

cup of tea given to the appellant, the same does not suffice to exonerate the

appellant in relation to the alleged commission of the offence punishable under

Section 328/34 of the Indian Penal Code, 1860. This is in as much as the

circumstances of the commission of the crime and the spot of the occurrence itself

establish that the victim was at the spot and that he had been given tea by Qutub Signature Not Verified Digitally Signed

Signing Date:01.10.2020 18:17 Alam (since declared a proclaimed offender) but that the appellant was also present

at the spot and after five minutes of taking the tea, he had become unconscious and

after he regained consciousness, he was at the hospital and thereafter he went back

to the Anand Vihar Railway Station and he found his belongings missing. The

factum that the appellant was present at the spot having held to have been

established as observed hereinabove as rightly concluded by the learned Trial Court,

coupled with the factum that the appellant was apprehended whilst he was trying to

escape as testified by PW-5 HC Soran Singh; coupled with the factum that the

appellant was apprehended with the red coloured bag belonging to the victim PW-3

who has identified the same and the contents thereof, the concert and common

intention of the appellant and the co-accused Qutub Alam stands wholly established

qua the commission of the offence punishable under Section 328/34 of the Indian

Penal Code, 1860 as well as qua the commission of the offence punishable under

Section 379/34 of the Indian Penal Code, 1860.

31. The contentions raised on behalf of the appellant qua the aspect of non

joinder of public witnesses and alleged lack of identification in the circumstances of

the case where he was apprehended virtually red handed at the spot by the police at

the Anand Vihar Railway Station cannot be accepted. Furthermore, in as much as

the seal of the exhibits examined at the FSL were, in fact at the time when opened Signature Not Verified Digitally Signed

Signing Date:01.10.2020 18:17 for examination, the factum of 'lorazepam‟ having been administered to the victim

by the co-accused in prior concert with the appellant herein also stands established.

CONCLUSION

32. In the circumstances, it is held that there is no infirmity in the impugned

order whatsoever of the learned Trial Court whereby the appellant has been held

guilty for the commission of the offences punishable under Sections 328/379/34 of

the Indian Penal Code, 1860.

33. As regards the quantum of sentence, it is essential to observe that during the

course of the hearing of the present appeal, it has been established through the status

report of the SHO, PS Anand Vihar Railway Station dated 26.08.2019 that there is

no previous involvement or conviction of the appellant. As observed elsewhere

hereinabove, as per the nominal roll dated 18.10.2019 received from the Deputy

Superintendent Central Jail No.12, Mandoli, Delhi, the appellant as on 18.10.2019

has been in custody for a period of 1 year 8 months and 5 days and thus, till date he

is in custody for a period of 02 years 07 months 04 days.

34. In the circumstances, it is considered appropriate as the jail conduct of the

appellant is also satisfactory that the sentence imposed of RI for a period of 4 years

qua the commission of the offence punishable under Section 328/34 of the Indian

Penal Code, 1860 is reduced to a period of three (3) years and to pay a fine of

Signature Not Verified Digitally Signed

Signing Date:01.10.2020 18:17 Rs.2,000/- as already ordered vide the impugned order on sentence and in default of

the payment of the said fine to further undergo SI for a period of one month.

35. As regards the offence punishable under Section 379/34 of the Indian Penal

Code, 1860, the appellant has already undergone the Rigorous Imprisonment for a

period of two (2) years as imposed thereby as also the default sentence of one

month of Simple Imprisonment in default of the payment of the fine. The benefit of

Section 428 of the Cr.P.C., 1973 having been given already to the appellant by the

Ld.Trial Court which is upheld.

36. Furthermore, the compensation awarded of Rs.10,000/- to be paid to the

victim by the appellant and in default of payment of the same by the appellant that

he has to undergo three (3) months of Simple Imprisonment is upheld, which period

apparently the appellant has already undergone.

37. The appeal is disposed of accordingly.

ANU MALHOTRA, J.

SEPTEMBER 16, 2020 „neha chopra‟

Signature Not Verified Digitally Signed

Signing Date:01.10.2020 18:17