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2015 Supreme(Del) 3792
DELHI HIGH COURT
Sunita Gupta, J.
Mohd. Zuber & Anr. - Appellant
Versus
State - Resopndent
Criminal Appeal No. 260 of 2014
Decided On : 19-03-2015
For the Appellants :Mr. Aditya Aggarwal and Mr. Rahul Kumar, Advocate.
For the State : Mr. O.P. Saxena, APP. along with SI Praveen, PS Preet Vihar.
The main legal point established in the judgment is the administration of a stupefying substance with the intent of committing theft, leading to the conviction under Section 328 and 379 of IPC r/w Section 34 thereof.
Headnote:
IPC - Criminal Appeal - Section 328/379/34 IPC - [328, 379, 411] - The court confirmed the conviction of the appellants under Section 328 and 379 of IPC r/w Section 34 thereof. The appellants were sentenced to undergo rigorous imprisonment for 3 years each and to pay a fine of Rs. 5000/- each. The substantive sentence of rigorous imprisonment u/s 328 IPC was reduced from 4 years to 3 years while maintaining the quantum of fine. Both the sentences to run concurrently. Out of the fine realized from the appellants, a sum of Rs. 35000/- was to be paid as compensation to the complainant-PW6-Amit Kumar.
Fact of the Case:
The victim was administered a stupefying substance in tea, became unconscious, and found his belongings missing. The accused were convicted under Section 328/379/34 IPC and sentenced to imprisonment and fine.
Finding of the Court:
The court found the accused guilty of administering a stupefying substance to the victim with the intent of committing theft, leading to the conviction under Section 328 and 379 of IPC r/w Section 34 thereof.
Issues: The main issue was whether the accused administered a stupefying substance to the victim with the intent of committing theft.
Ratio Decidendi: The court held that the evidence proved the administration of a stupefying substance to the victim, leading to the conviction under Section 328 and 379 of IPC r/w Section 34 thereof.
Final Decision: The appeal was dismissed, and the appellants' sentences were modified. Appellant Neha was directed to surrender before the Superintendent Jail to serve the remaining part of the sentence.
Sunita Gupta, J.:--
1. This appeal u/s 374 of the Code of Criminal Procedure, 1973 has been filed by the appellant challenging the judgment dated 18th January, 2014 and order on sentence dated 22nd January, 2014 vide which the appellants were convicted under Section 328/379/34 IPC, 1860 and sentenced to undergo rigorous imprisonment for a period of 4 years along with fine of Rs. 10,000/- u/s 328/34 IPC in default to undergo 6 months simple imprisonment and 3 years rigorous imprisonment u/s 379/34 IPC with fine of Rs. 5000/- each in default to undergo simple imprisonment for 3 months passed by the learned Additional Sessions Judge in Sessions Case No. 44/11 arising out of FIR 03/11 u/s 328/379/411/34 IPC registered with Police Station Preet Vihar.
2. Prosecution case emanates from the fact that on 9th September, 2011 an information was received at Police Station Preet Vihar vide DD No. 15A that a person was lying unconscious at E-96, East Laxmi Market in Gali No. 6. On receipt of this information, HC Virender Singh along with Constable Sandeep reached at the spot where they came to know that victim had already rushed to Hedgewar Hospital by the PCR Van. They then reached at Hedgewar Hospital. The victim was unfit for statement. The call was kept pending. On 5th January, 2011, the victim Amit regained his consciousness and became fit for statement. His statement Ex.PW6/A was recorded wherein he stated that he was a salesman at Spice Hot Spot and that he was having a mobile phone Nokia E-63. He told about the phone to a customer on his store. The customer took his phone number and on 3rd January, 2011 at about 12:30 pm he received a call on his mobile phone from the said customer. The customer expressed his desire to buy his mobile phone and for the said purpose he called him at East Laxmi Market near Sai Baba Temple. He told him that he would meet him after closure of the shop. At about 10:30 pm he went on his motorcycle at Sai Baba Temple. The customer met him there. The customer offered him to come to his house for negotiating the deal. He then went to the house of the customer with him. A lady was already present there in the room. She was introduced by the customer as his wife. After some time the lady brought tea. After taking tea he became unconscious and on regaining consciousness, he found himself in the hospital. His gold chain, two HDFC credit cards, one debit card of SBI, one debit card of HDFC Bank, some cash, ear bali of gold, Nokia Mobile Phone E-63 bearing No. 9911601609, a new Samsung black colour mobile phone bearing No. 9999663316 were missing. He was also unaware about his motorcycle which was parked outside the house of the customer. On the statement of Amit Kumar, an FIR was registered u/s 328/379/34 IPC. During investigation the ATM Card, credit card, driving license, some documents and the bag of the complainant were recovered from the rented house of the accused. Accused Zuber was arrested. He disclosed that the golden chain, golden ear ring and mobile phone were in possession of accused Neha. Accused Neha was then arrested. The golden chain and ear-ring were recovered at her instance. The recovered articles were identified in TIP by the complainant. On completion of investigation, charge sheet was filed against both the accused u/s 328/379/34 IPC.
3. Both the accused pleaded not guilty to the charge u/s 328/379/34 IPC and 411 IPC and claimed trial.
4. In order to substantiate its case, prosecution examined 17 witnesses. Both the accused alleged their false implication and claimed innocence in their statement recorded u/s 313 Cr.P.C. They denied that any recovery has been affected from their possession or at their instance.
5. After meticulously examining the evidence led by the prosecution, vide impugned judgment the appellants were convicted and sentenced as mentioned above. Feeling dissatisfied, present appeal has been preferred.
6. It was submitted by the learned counsel for the appellants that t
