AJAY TIWARI Vs. STATE (NCT OF DELHI)

JUDGEMENT

(1.) THE challenge in this appeal is to the judgment dated 05.10.2013 and order on sentence 08.10.2013 by which the appellant was convicted under Sections 379 of Indian Penal Code (IPC) and was sentenced to undergo rigorous imprisonment for a period of three (3) years and fine of Rs.25,000/ - and in default of payment of fine, further nine (9) months simple imprisonment. Out of the fine amount, a sum of Rs.20,000/ - was ordered to be given as compensation to the victim under Section 357 of Code of Criminal Procedure, 1973.

(2.) THE prosecution case emanates from the fact that Inspector Gulshan Satija (PW2) got recorded his statement Ex.PW2/A to the Investigating Officer SI Rajendra Dabas stating that on 05.09.2012, he along with constable Anil Kumar and constable Agat Singh was on patrolling at Old Delhi Railway Station. At about 4.30 pm when they were alighting from the stairs of Foot Over Bridge (FOB) towards platform no.14, one person who was climbing the stairs took a turn after seeing them. On suspicion, he was apprehended after chasing about 20 -25 paces. On his cursory search, one red colour old purse was recovered from his pant containing Rs.6000/ - (500x12), voters card in the name of Suresh, son of Ramyash, along with some visiting cards, one light pink colour tablet was recovered from the pocket of his shirt and Rs.6400 (100x61, 50x6) which was wrapped in a lungi was recovered from his bag which he was carrying. On inquiry, he disclosed his name as Ajay Tiwari. One mobile phone Nokia E -63 was also recovered from the pocket of his pant. On enquiry, he disclosed that he had stolen the said items from one person after administering stupefying substance in tea and thereafter, he led the police party at platform no.14 and pointed out the person to whom he had administered the stupefying substance. It was alleged that one person was found in semi -unconscious condition and he disclosed his name as Suresh Kumar. On being asked, he identified his mobile phone, purse and bag and also identified the accused. Thereafter, accused was brought to the police station Old Delhi Railway Station and was handed over to the Investigating Officer. Injured Suresh was sent to Aruna Asaf Ali hospital for medical examination. After medical examination, doctor handed over one bottle gastric lavage and one bottle of blood sample with the seal of CMO AAA Govt. Hospital NCT of Delhi and one sample seal which were seized. Thereafter, on the statement of Inspector Gulshan Satija, an FIR was lodged for the offence punishable under Section 328/379/411 IPC. During investigation, it was revealed that accused Ajay Tiwari had already been convicted in four other matters namely CC No. 1/12 under Section 3 RP (UP) Act, FIR No. 956/2000 under Section 411 IPC Police Station NDRS, FIR No. 283/2006 under Section 328/379 IPC Police Station NDRS and FIR No. 282/2010 under Section 328/379/411 Police Station NDRS. After completion of investigation, charge -sheet was submitted for offence under Section 328/392/394/411/75 of IPC. The charge, however, was framed for offence under Section 328/394 of IPC to which the accused/appellant pleaded not guilty and claimed trial.

(3.) AFTER considering the evidence led by the parties, learned Trial Court arrived at the conclusion that prosecution has failed to produce any cogent evidence to establish that the injured was administered any poisonous, intoxicating, stupefying substance or any wholesome drug or that he felt giddiness due to consumption of tea and chips. As such, he was acquitted of the charge under Section 328 of IPC. Even as regards offence under Section 394 IPC, it was observed that prosecution failed to establish that accused had either caused hurt or fear of instant hurt to the victim while committing theft of his belongings as such he cannot be held guilty either for the offence punishable under Section 392 IPC or Section 394 IPC. However, since the stolen articles pertaining to the victim were recovered from the possession of the accused immediately after theft, as such presumption arises that he had committed theft. Accordingly, the appellant was convicted for offence under Section 379 IPC and sentenced as mentioned above.