Delhi District Court
State ...........Prosecution vs . on 14 March, 2023
IN THE COURT OF MS. BHARTI GARG,
METROPOLITAN MAGISTRATE09 SOUTHWEST
DISTRICT, DWARKA COURTS, NEW DELHI
FIR No. 100/2018
Police Station Jafarpur Kalan
Under Section(s) 380/457/174A IPC
Cr. Case no. 31527/2017
CNR no. DLSW020495912018
IN THE MATTER OF:
State ...........Prosecution
Vs.
1.Rohit
S/o Ashok Kumar
R/o H. no.306/30, Maman Vihar,
Bahadurgarh, District Jhajjar, Haryana
2.Ajay @ Monu
S/o Late Ravinder Singh
R/o H. no.306/30, Maman Vihar,
Bahadurgarh, District Jhajjar, Haryana
3.Deshraj
S/o Rishal Singh
R/o Village Kanheli,
District Rohtak, Haryana
4.Narender
S/o Jai Singh
R/o Village Kharawar,
District Rohtak, Haryana ............Accused persons
State Vs. Rohit and others DLSW020495912018 Page no.1/11
Digitally signed
by BHARTI
BHARTI GARG
GARG Date:
2023.03.14
16:17:30 +0530
1. Name of complainant : Rakesh
2. Name of accused persons : 1. Rohit
2. Ajay
3. Deshraj
4. Narender
3. Offences complained of : Under Sections 380/457/
174A of The Indian Penal
Code, 1860
4. Plea of accused persons : Not guilty
5. Date of commission of offence : 26.02.2019
6. Date of institution of case : 10.12.2018
7. Date of reserving judgment : 10.02.2023
8. Date of pronouncement : 14.03.2023
9. Final judgment : Accused Ajay, Deshraj
and Narender acquitted
of offence u/S 174A IPC.
All accused persons
discharged of offences
u/S 380/457 IPC vide
order dated 02.03.2022.
JUDGMENT:
1. The present case pertains to prosecution of accused persons in respect of offences punishable under Sections 380/457/174A of The Indian Penal Code, 1860 (hereinafter referred to as 'IPC' for brevity).
2. Shorn of unnecessary details, the case of prosecution is that on 27.06.2018 at about 03:30 am, all the accused persons stole the ATM machine installed at Allahabad Bank, Village Kharkhari Rond, New Delhi. FIR was lodged on the basis of complaint made by complainant Rakesh Kumar, Branch Manager and investigation was undertaken by IO. Accused Rohit was arrested and later on released on bail. However, accused persons State Vs. Rohit and others DLSW020495912018 Page no.2/11 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.03.14 16:17:40 +0530 Ajay @Monu, Narender @ Sonu and Deshraj were not traceable and thus, chargesheet was filed against accused Rohit. Thereafter, vide order dated 26.02.2019, accused persons Ajay @Monu, Narender @ Sonu and Deshraj were declared proclaimed offenders by the Court. Accused Ajay @ Monu was apprehended on 01.03.2019 and accused Narender @ Sonu and Desh Raj were apprehended on 23.03.2019, whereafter, supplementary chargesheet was filed against these accused persons.
3. Cognizance was taken of offences under Sections 380/457/174A of IPC and accused persons were summoned to face trial for the said offences. Upon their appearance, copy of chargesheet and supplementary chargesheet was supplied to them in compliance with Section 207, Criminal Procedure Code (henceforth 'Cr.P.C').
4. Based on the material filed along with chargesheet, all the accused persons were discharged of offences under Sections 380/457 IPC vide order dated 02.03.2022 passed by Ld. Predecessor. Charge was framed against accused Ajay @ Monu, Narender @ Sonu and Desh Raj for offence u/S 174A IPC to which they pleaded not guilty and claimed trial.
5. In the pursuit to prove its case, the prosecution examined four witnesses in all. PW1 AS1 Om Prakash deposed that on 27.02.2019, DD no.36B was marked to him and during investigation, he collected the copy of kalandra from HC Deepak, State Vs. Rohit and others DLSW020495912018 Page no.3/11 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.03.14 16:17:49 +0530 along with arrest memo, personal search memo and disclosure vide Ex.PWI/A(OSR)(colly). He formally arrested accused Ajay vide arrest memo Ex.PW1/B and recorded his disclosure statement as Ex.PW1/C. On 23.03.2019, DD entry no. 19B was registered vide Ex.PW1/D. On 25.03.2019, he formally arrested accused Narender and Deshraj vide arrest memos Ex.PW1/E and Ex.PW1/F respectively and recorded their disclosure statements as Ex.PW1/G and Ex.PW1/H respectively. In his cross examination, he admitted that he had not investigated about addresses of accused persons.
6. PW2 HC Deepak deposed that on 27.02.2019, upon the information given by secret informer, he along with SI Krishan Kumar, Ct. Ghanshyam and Ct. Satyaveer went to Najafgarh near Anaj Mandi and arrested accused Ajay vide arrest memo Ex.PW2/A, personally searched him vide memo Ex.PW2/B and recorded his disclosure statement as Ex.PW2/C. A DD entry was made vide Ex. PW2/D, his arrival entry was made vide DD no.24 Ex.PW2/E and a kalandra was prepared vide Ex.PW2/F. Again on 23.03.2019, upon the information given by secret informer, he along with SI Krishan Kumar, SI Rajneesh, Ct. Ghanshyam and Ct. Satyaveer went to Nasirpur Village near Government school where he arrested accused Narender & Deshraj vide arrest memos Ex. PW2/G and Ex.PW2/H respectively, personally searched them vide memos Ex.PW2/I and Ex.PW2/J respectively and recorded their disclosure statements as Ex.PW2/K and Ex.PW2/J respectively.
State Vs. Rohit and others DLSW020495912018 Page no.4/11
Digitally signed
by BHARTI
BHARTI GARG
Date:
GARG 2023.03.14
A DD entry was made vide Ex.PW2/M, arrival entry was made vide Ex.PW2/N and a kalandra was prepared vide Ex.PW2/O. In his crossexamination, PW2 stated that he had identified the accused persons after getting their IDs. He had not enquired any responsible person at the place of their permanent residence or temporary residence while arresting the accused persons, nor did he visit any of their addresses.
7. PW3 SI Rajender executed the process under Section 82 Cr. P. C. against accused Narender, Desh Raj and Ajay qua which his statement was recorded before the Court as Ex.PW3/A. He intimated the local police regarding his arrival in the local area for the execution of process under Section 82 Cr. P. C vide entry Ex.PW3/B. In his crossexamination, he admitted that he did not click any photograph which could show that he visited the addresses of accused persons. He also did not record statement of any public person or family member at the time of execution of process at the addresses of accused persons. PW4 HC Satyavir deposed on similar lines as PW2 HC Deepak. In his crossexamination, he could not tell the time when they reached at Anaj Mandi on the day accused Ajay was arrested.
8. The remaining PWs mentioned in the chargesheet pertained to offences u/S 457/380 IPC, however, as all the accused persons had already been discharged of the said offences VOD 02.03.2022, the remaining witnesses in the list of witnesses of main chargesheet filed by the prosecution were dropped by the prosecution.
State Vs. Rohit and others DLSW020495912018 Page no.5/11
Digitally signed
by BHARTI
BHARTI GARG
GARG Date:
2023.03.14
9. Thereafter, the prosecution evidence was closed and statements of accused persons were recorded under Section 281 read with 313 Cr. P. C. All the incriminating circumstances appearing against the accused persons in evidence were put to them. The accused persons all the allegations levelled against them and stated they did not receive any process. The accused persons opted not to lead evidence in their defence. Thus, the defence evidence was closed and the matter was taken up for final arguments.
10. It is argued by the Ld. APP for State that the prosecution has been able to establish the case against accused persons beyond reasonable doubts. The testimonies of prosecution witnesses have remained unshaken and is further corroborated by the documentary evidence on record. Therefore, it is prayed that the accused persons be convicted of alleged offence.
11. Per contra, the Ld. Counsel for accused persons has strenuously urged for acquittal of accused persons on the ground that there are inherent inconsistencies in the testimonies of material witnesses and the accused persons never received any process of the Court. Hence, it is asserted that the case is not proved against the accused persons beyond all reasonable doubts.
12. Arguments heard. Record perused. Considered.
13. It is a paramount tenet of criminal law that every accused is presumed to be innocent and cannot be convicted State Vs. Rohit and others DLSW020495912018 Page no.6/11 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.03.14 unless the prosecution is able to discharge the initial onus rested upon it beyond all reasonable doubts. The failure to do so would necessarily result in acquittal of accused. It has been held by Hon'ble Punjab & Haryana High Court in Sadhu Singh Vs. State of Punjab (1997) 3 RCR (Cri) 421: "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
14. Before delving into merits, it is pertinent to give a brief outline of the offence alleged against the accused persons. Section 174A of IPC stipulates as follows: "174A .Nonappearance in response to a proclamation under section 82 of Act 2 of 1974.-- Whoever fails to appear at the specified place and the specified time as required by a proclamation published under subsection (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under subsection (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine."
15. Thus, Section 174A IPC imposes liability on the person who fails to adhere to the directions of proclamation which is issued in accordance with Section 82 Cr.P.C. As per the latter provision, proclamation may be issued by Court against a person, who the Court has reason to believe, is absconding or concealing himself, so as to evade the execution of warrants issued by it, requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such State Vs. Rohit and others DLSW020495912018 Page no.7/11 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.03.14 proclamation. In order to bring home the guilt of accused persons under Section 174A IPC, the prosecution is further required to prove that such proclamation was issued strictly complying with the mandatory requirements enumerated under Section 82(2) Cr.P.C.
16. Adverting to the present case, it is argued by accused persons that the warrants were never executed upon them and they were declared proclaimed offenders in a routine manner. Now, it is evident from record that accused persons were declared proclaimed offender by Ld. Predecessor on 26.02.2019. The proclamation qua accused Narender was issued at Village Kharawar District Rohtak (Haryana), qua accused Deshraj at Village Kanouli District Rohtak (Haryana) and qua accused Ajay at Village Nanod District Rohtak (Haryana).
17. The perusal of report of PW3 in respect of execution of proclamation against accused Narender reflects that the father of said accused informed him that said accused resided at some other place and not with him at the given address. Although it is mentioned in the report that PW3 enquired about the current address of accused Narender from few people of the village, about which they were unaware of, however, neither the names of those persons are disclosed nor their statements were recorded.
18. Likewise, the bare reading of reports in respect of accused Ajay and Deshraj makes it clear that PW3 found their addresses locked. Nonetheless, no genuine efforts were made by PW3 to ascertain the whereabouts of accused Ajay and Deshraj State Vs. Rohit and others DLSW020495912018 Page no.8/11 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.03.14 by examining the neighbours when their houses were found locked nor their statements were recorded by him. Furthermore, nowhere it is mentioned in the reports that process was publicly read by him at the addresses, as is mandated u/S 82 Cr.P.C. In fact, it is not clear from the reports as to on which part of respective addresses of accused persons, the proclamation was pasted. PW3 further did not click any photographs of pasting of proclamation at the address of accused persons, as is admitted by him in crossexamination.
19. Not only this, a closer scrutiny of the report on warrants previously issued against accused Ajay indicates that he had left the given address 1015 years ago and was residing at some place in Najafgarh. Despite thereof, the IO did not make any effort to search for the accused at Najafgarh and rather, mechanically proceeded u/S 82 Cr.P.C. In the same manner, the warrants issued against accused Narender and Deshraj were returned with reports that these accused persons were not residing at the stated addresses. However, the IO acted in a superficial manner to get them declared as proclaimed offender routinely without verifying their addresses.
20. Moreover, it is discernible from the proclamation dated 03.12.2018 which were issued against the accused persons, that it did not specify any time at which they were required to appear, which is a prerequisute of Section 82(1) Cr. P. C. In addition to this, the proclamation was returnable on 04.02.2019, nevertheless, there is no ordersheet on record to reflect that State Vs. Rohit and others DLSW020495912018 Page no.9/11 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.03.14 16:18:42 +0530 names of accused persons were called on that date and that hey did not appear. Rather, it is manifest from the record that application to declare the accused persons as proclaimed offenders was moved only on 26.02.2019 on which date they were then declared as such by Ld. Predecessor. In such a scenario, it cannot be even said that the accused persons did not appear before the Court at the specified date and time in terms of the proclamation.
21. In such a backdrop of facts, the defence adopted by accused persons that they never received the process cannot be ruled out. Since accused persons were not residing at the respective addresses, it cannot be assumed that they were aware of the issuance of warrants against them. As a sequitur, it cannot be said that they were deliberately avoiding or concealing themselves to evade the execution of warrants against them. In such an event, the possibility that the process u/S 82 Cr.P.C was issued perfunctorily without meeting the requirements laid down therein cannot be denied.
22. In the light of foregoing discussion, it transpires that the crucial witnesses of the case of prosecution have failed to impress this court with their credibility and there is nothing on record to corroborate their version. The prosecution has miserably failed to prove that the accused Narender, Ajay and Deshraj had absconded or concealed themselves to avoid the execution of warrants against them as their addresses were not factually verified by the IO. The inescapable conclusion is that State Vs. Rohit and others DLSW020495912018 Page no.10/11 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.03.14 the accused persons are entitled to benefit of doubt.
23. Resultantly, all the accused persons are hereby held not guilty, and accused 1. Ajay @ Monu S/o Late Ravinder Singh R/o H. no.306/30, Maman Vihar, Bahadurgarh, District Jhajjar, Haryana 2. Deshraj S/o Rishal Singh R/o Village Kanheli, District Rohtak, Haryana and 3. Narender S/o Jai Singh R/o Village Kharawar, District Rohtak, Haryana, are acquitted of the offences punishable under Sections 174A of The Indian Penal Code, 1860.
Pronounced in open court in the presence of accused persons on 14.03.2023.
Digitally signed by BHARTI BHARTI GARG
GARG Date:
2023.03.14
16:18:57 +0530
(Bharti Garg)
MM09/South West District
Dwarka Court/New Delhi/14.03.2023
It is certified that this judgment contains eleven pages and each page has been signed by the undersigned.
Digitally signedBHARTI by BHARTI GARG GARG Date: 2023.03.14 16:19:03 +0530 (Bharti Garg) MM09/South West District Dwarka Court/New Delhi/14.03.2023 State Vs. Rohit and others DLSW020495912018 Page no.11/11