Delhi District Court
State vs Om Parkash on 13 May, 2024
SC 396/2019
STATE
Vs.
OM PARKASH
FIR No.58/2005
PS : Keshav Puram
U/s.394/397/411/174A/34 IPC &
25/54/59 Arms Act
1
IN THE COURT OF BABRU BHAN
ADDITIONAL SESSIONS JUDGE - 03, NORTH WEST
DISTRICT, ROHINI COURTS, DELHI
In the matter of:
CNR NO. DLNW01-004063-2019
SC 396/2019
STATE
Vs.
OM PARKASH
FIR No.58/2005
PS : Keshav Puram
U/s.394/397/411/174A/34 IPC &
25/54/59 Arms Act
STATE
Versus
1. Om Prakash
S/o. Dashrath Prasad
R/o. Vill. Sarna, PS Shahpur,
District Aara, Bihar .....Accused
2. Raj Yadav @ Sadhu
S/o. Gorakh Yadav
R/o. Jhuggi Ajane Nandji,
'C' Block, near Railway Line,
Wazir Pur Industrial Area,
Delhi ...(Already convicted)
3. Vijay Kumar
S/o. Bhupender Jha
R/o. Jhuggi Mahesh near Sriram Chowk,
'A' Block, Wazir Pur Industrial Area,
Delhi ...(Already convicted)
Digitally signed
by BABRU
BABRU BHAN
BHAN Date:
2024.05.15
16:14:10 +0530
SC 396/2019
STATE
Vs.
OM PARKASH
FIR No.58/2005
PS : Keshav Puram
U/s.394/397/411/174A/34 IPC &
25/54/59 Arms Act
2
4. Krishan Kumar
S/o. Hari Nath
R/o. Jhuggi No.437, 'C Block,
Near Railway Line,
Wazir Pur Industrial Area,
Delhi ...(Already convicted)
Date of Institution : 16.03.2019
Date when judgment reserved : 09.04.2024
Date of Judgment : 13.05.2024
Final Order : Acquitted
JUDGMENT
1. The relevant facts of the case, as per the evidence adduced and the First Information Report are that Mohd. Zafar, PW2 was residing at Village Wazir Pur Industrial Area. Mohd. Zafar was dealing in business of iron scrap. Accused Om Prakash and accused Krishna (already convicted) were previously known to Mohd. Zafar. On 01.02.2005, at about 5.00 p.m., accused Krishna and Om Prakash met Mohd. Zafar and enticed him on the pretext of providing him some handles and iron scraps at cheaper rate in Rampura Industrial Area, Delhi. At that time, Mohd. Zafar was carrying cash amount of Rs.6200/- and mobile phone make Reliance Samsung. Mohd. Zafar accordingly accompanied Krishna and Om Prakash for going to Rampura Industrial Area via railway line. When they reached near MIG Flats, Krishna caught hold of hairs of Mohd. Zafar and put a Digitally signed by BABRU BABRU BHAN Date:
BHAN 2024.05.15 16:14:21 +0530 SC 396/2019 STATE Vs. OM PARKASH FIR No.58/2005 PS : Keshav Puram U/s.394/397/411/174A/34 IPC & 25/54/59 Arms Act 3
knife on his neck and asked to handover his belongings. Accused Om Prakash snatched Rs.6200/- from the front pocket of the shirt of Mohd. Zafar and also the mobile phone. Accused Raj Yadav and Vijay (both already convicted) also joined Krishna and Om Prakash. During the scuffle, Vijay caught hold of Mohd. Zafar and Raj Yadav inflicted knife blows to Mohd. Zafar. Mohd. Zafar suffered multiple injuries on his body. He fell unconscious and on regaining some consciousness, he reached at C-37, but again collapsed. He was thereafter, removed to hospital by PCR van.
2. The information was given to the concerned PS, which was recorded vide DD No.17A. DD No.17A was assigned to SI Ram Kanwar for further necessary action. SI Ram Kanwar alongwith Ct. Subhash reached at C-37, Lawrence Road, where they came to know that injured had already been removed to BJRM Hospital and no eye witness was available. SI Ram Kanwar reached BJRM Hospital and obtained the MLC bearing no.17331/50/5068 of Mohd. Zafar, who was declared unfit for statement.
3. SI Ram Kanwar made an endorsement on DD No.17A and sent rukka to PS for registration of FIR. On basis of rukka, FIR bearing no.58/2005 u/s.307 IPC was registered. Injured Mohd.
Digitally
signed by
BABRU
BABRU BHAN
BHAN Date:
2024.05.15
16:14:30
+0530
SC 396/2019
STATE
Vs.
OM PARKASH
FIR No.58/2005
PS : Keshav Puram
U/s.394/397/411/174A/34 IPC &
25/54/59 Arms Act
4
Zafar was referred to Hindu Rao Hospital. Subsequently, SI Ram Kanwar recorded statement of Mohd. Zafar on 03.02.2005.
4. During investigation, SI Ram Kanwar arrested accused Raj Yadav, Vijay Kumar and Krishan Kumar. Some of the stolen properties and knives used in the commission of offence were recovered from their possession.
5. After completion of investigation, police had filed charge-sheet against accused Raj Yadav, Vijay Kumar and Krishan Kumar for offence u/s.394/397/411/34 IPC and 27 Arms Act 1959. Charges were framed and trial was commenced. On conclusion of trial, Ld. Predecessor convicted accused Raj Yadav, Vijay Kumar and Krishan Kumar vide judgment dated 17.08.2009.
6. Accused Om Prakash was initially declared PO and was subsequently arrested. So, this judgment shall decide fate of accused Om Prakash only.
7. The charge-sheet filed against accused Om Prakash mentions that during initial investigation, efforts were made to trace him out, but he could not be traced and apprehended. Accordingly, IO first obtained NBWs against him on 18.03.2005 and when NBWs remained unexecuted, proceedings u/s.82/83 Cr.P.C. were Digitally signed by BABRU BABRU BHAN BHAN Date:
2024.05.15 16:14:37 +0530 SC 396/2019 STATE Vs. OM PARKASH FIR No.58/2005 PS : Keshav Puram U/s.394/397/411/174A/34 IPC & 25/54/59 Arms Act 5 obtained on 19.03.2005. Since accused Om Prakash failed to appear after due execution of proceedings u/s.82/83 Cr.P.C., he was declared proclaimed offender by the Court of Sh. Raj Kapoor, Ld. MM vide order dated 04.05.2005.
8. On 07.09.2019, an information was transmitted to PS Keshav Puram vide DD No.33B that accused Om Prakash, who was PO in this case, had been arrested u/s.41.1Cr.P.C., vide DD No.13A. After receipt of aforesaid information, further investigation qua accused Om Prakash was assigned to ASI Kuldeep. He formally arrested the accused and filed the charge-sheet for offence u/s.394/397/411/34/174A IPC and u/s.25/27/54 Arms Act.
9. Formal charge for the offences u/s.392/394/34 & 174A IPC was framed against the accused on 08.05.2019, to which she pleaded not guilty and claimed trial.
10. To prove its case, prosecution has first examined SI Tej Ram as PW1. PW1 SI Tej Ram has proved DD No.17A Ex. PW1/A. He has also stated that on basis of rukka received through Ct. Subhash sent by SI Ram Kanwar, he had registered the present case FIR Ex. PW1/B. Digitally signed by BABRU BABRU BHAN Date:
BHAN 2024.05.15 16:14:46 +0530 SC 396/2019 STATE Vs. OM PARKASH FIR No.58/2005 PS : Keshav Puram U/s.394/397/411/174A/34 IPC & 25/54/59 Arms Act 6
11. HC Subhash PW9 has deposed that on 01.02.2005, he was posted at PS Keshav Puram as Constable. On that day, on receipt of DD No.17A, he alongwith SI Ram Kanwar reached at the spot of incident, situated near C-37, Industrial Area, where they came to know that injured had already been removed to BJRM Hospital. Accordingly, they went to BJRM Hospital, where the injured was found under treatment but was unfit for statement. Thereafter, they returned back to the spot, where IO prepared rukka on DD No.17A and handed over to him for registration of FIR. Witness accordingly went to PS Keshav Puram, got the FIR registered and came back to the spot and handed over the original rukka and copy of FIR to them.
12. ASI Vipul Kumar PW13 had arrested the accused on 04.02.2019. He prepared the related documents which have been proved on record as Exs. PW13/A to PW13/C.
13. ASI Kuldeep PW15 was assigned with DD No.33B Ex. PW13/C received in PS Keshav Puram regarding arrest of the accused. On 13.02.2019, ASI Kuldeep alongwith HC Yashpal PW14 went to Rohini Courts. ASI Kuldeep moved an application Ex. PW15/B, seeking permission from the Court to interrogate the accused Om Prakash. After interrogation, he arrested the accused Om Prakash vide memo Ex. PW14/A and also recorded his disclosure Digitally signed by BABRU BABRU BHAN BHAN Date:
2024.05.15 16:14:53 +0530 SC 396/2019 STATE Vs. OM PARKASH FIR No.58/2005 PS : Keshav Puram U/s.394/397/411/174A/34 IPC & 25/54/59 Arms Act 7 statement Ex. PW14/B.
14. HC Yashpal PW14 has proved the arrest memo and disclosure statement of accused Om Prakash. The memo and disclosure statement are Exs. PW14/A and PW14/B.
15. Repeated summons were issued to complainant Mohd. Zafar, however, he was not found residing at the given address. Therefore, indulgence of the concerned DCP was also sought by this Court. However, despite all the efforts, presence of the complainant Mohd. Zafar could not be secured. Left with no option, this Court deleted the name of Mohd. Zafar from list of witnesses.
16. Similarly, summons issued to SI Ram Kanwar also received back with the report that he was not in position to give his statement due to his chronic ill-health.
17. Since the remaining witnesses examined earlier were not related to accused Om Prakash, this Court closed the prosecution evidence on 16.03.2024.
18. The prosecution evidence was followed by the statements of accused persons u/s.313 Cr.P.C. During the statement, the incriminating circumstances and evidence brought against the Digitally signed by BABRU BABRU BHAN BHAN Date:
2024.05.15 16:15:01 +0530 SC 396/2019 STATE Vs. OM PARKASH FIR No.58/2005 PS : Keshav Puram U/s.394/397/411/174A/34 IPC & 25/54/59 Arms Act 8 accused by the prosecution was put to him. The accused, in response to the questions put to him, denied the case of prosecution, pleaded innocence and claimed false implication.
19. Accused opted not to lead the defence evidence and accordingly, this Court closed the defence evidence.
20. This Court has heard the detailed final arguments from Ld. Addl.
PP for the State and Ld. Counsel appearing on behalf of the accused. Now, this Court proceeds to analyse the evidence for the purpose of final judgment.
21. During course of arguments, Ld. Addl. PP for the State has submitted that the case of the prosecution primarily and essentially based upon the statement of Mohd. Zafar. Initially, accused Om Prakash could not be apprehended and, therefore, he was declared proclaimed offender via a judicial order dated 14.05.2005. He was subsequently apprehended on 07.09.2019. Initially, when accused Om Prakash was absconding, statement of Mohd. Zafar was recorded as PW1. During the trial against accused Om Prakash, PW Mohd. Zafar was again summoned, but it was reported that he was not traceable. This Court had also taken the indulgence of higher police authorities, but PW Mohd. Zafar remained unserved. According to Ld. Addl. PP, the accused Digitally signed by BABRU BABRU BHAN BHAN Date:
2024.05.15 16:15:09 +0530 SC 396/2019 STATE Vs. OM PARKASH FIR No.58/2005 PS : Keshav Puram U/s.394/397/411/174A/34 IPC & 25/54/59 Arms Act 9 has not contended anywhere that Mohd. Zafar is not traceable. Although, this Court has not passed any specific order to the effect that the statement of Mohd. Zafar recorded earlier shall be read against the accused u/s.299 Cr.P.C., but as per Ld. Addl. PP for the State, non-passing of any such order would not affect the situation that the said statement was recorded when accused was PO and now, the witness is not traceable. The contention raised by Ld. Addl. PP for the State is that both the conditions required to be fulfilled to consider a statement recorded in absence of the accused are actually fulfilled in this case. Therefore, statement of Mohd. Zafar can be read against accused Om Prakash u/s.299 Cr.P.C.
22. Ld. Defence counsel on the other hand has submitted that Section 299 Cr.P.C. empowers a Court to take deposition of witness in absence of the accused and the provision being an exception to the principle embodied in Section 33 of Evidence Act, before such statement can be used as evidence in any trial, the prosecution must strictly comply with the pre-condition for applicability of Section 299 Cr.P.C. According to Ld. Counsel, the deposition recorded by the Court u/s.299 Cr.P.C. can be given in evidence against an accused in any trial for the offence with which he is charged, if the deponent is dead, incapable of Digitally signed by BABRU BABRU BHAN Date:
BHAN 2024.05.15 16:15:18 +0530 SC 396/2019 STATE Vs. OM PARKASH FIR No.58/2005 PS : Keshav Puram U/s.394/397/411/174A/34 IPC & 25/54/59 Arms Act 10
giving evidence, or cannot be found, or his presence cannot be secured without an amount of delay, expense or inconvenience.
The accused here does not dispute that witness Mohd. Zafar is not traceable as it is matter of record. The argument raised by Ld. Defence Counsel relates to the first part of Section 299 Cr.P.C. First part of Section 299 speaks of the circumstances under which, witness produced by the prosecution could be examined in the absence of accused as second part speaks of the circumstances when such deposition can be given in evidence. This procedure contemplated u/s.299 Cr.P.C. is thus an exception to principle embodied in Section 33 of Evidence Act, where party has no right or opportunity to cross-examine. Being an exception, it is necessary, therefore, that all the conditions prescribed must be complied with strictly. First condition relates to the circumstances, when such statement can be recorded. The statutory language employed u/s.299 Cr.P.C. says that before recording of any such statement, Court must record its satisfaction that accused person has absconded and there is no immediate prospect of arresting him in near future. That satisfaction may only come through the reports received on the process issued against him u/s.82 Cr.P.C. or NBWs.
Digitally
signed by
BABRU BABRU BHAN
Date:
BHAN 2024.05.15
16:15:27
+0530
SC 396/2019
STATE
Vs.
OM PARKASH
FIR No.58/2005
PS : Keshav Puram
U/s.394/397/411/174A/34 IPC &
25/54/59 Arms Act
11
23. Ld. counsel has further argued that here in this case, process u/s.82 Cr.P.C. was issued against the accused by the Court returnable for 19.03.2005. It is the case of the prosecution that accused failed to appear within the statutory period despite proper execution of the proceedings u/s.82 Cr.P.C. Accordingly, he was declared PO vide order dated 04.05.2005. By taking reference of the judicial record relating to process u/s.82 Cr.P.C., Ld. Counsel has argued that the report on the process would reveal that it was executed on 03.05.2005. Since the process was executed on 03.05.2005, how on earth the accused could have appeared on 19.03.2005, i.e. prior to its execution. Second argument raised by Ld. Counsel on the validity of execution of process u/s.82 Cr.P.C. is that accused has to be given atleast 30 days time after execution of the proceedings to put his appearance before the Court. Here in this case, process u/s.82 Cr.P.C. was executed on 03.05.2005 and thereafter, accused was declared PO on the very next day i.e. on 04.05.2005, which means that statutory period for appearance was also not granted to him. The contention raised by Ld. Counsel is that neither the process u/s.82 Cr.P.C. was executed properly, nor the first pre- condition mentioned in Section 299 Cr.P.C. was complied with. Ld. Counsel has further highlighted from the report Ex. P2 that although the date of execution of this process has been Digitally signed by BABRU BABRU BHAN BHAN Date:
2024.05.15 16:15:45 +0530 SC 396/2019 STATE Vs. OM PARKASH FIR No.58/2005 PS : Keshav Puram U/s.394/397/411/174A/34 IPC & 25/54/59 Arms Act 12 mentioned as 27.03.2005, but a close perusal of this report would reveal that month has been changed from April to March through an overwriting. It has not been explained by the prosecution anywhere that by whom and under what circumstances, the aforesaid change was made. Ld. Counsel has further argued that this discrepancy further corroborates that the process was not executed 30 days before the day on which the accused was declared PO.
24. The point attempted to be highlighted by Ld. Counsel for the accused is that since process u/s.82 Cr.P.C. was not executed properly against accused Om Prakash, therefore, the first pre- condition for recording of statement u/s.299 Cr.P.C. is not fulfilled. Therefore, the said statement of Mohd. Zafar recorded in absence of accused Om Prakash cannot be utilised against him.
25. The Hon'ble Apex Court of India had an occasion to discuss the law relating to Section 299 Cr.P.C. in case titled as Nirmal Singh Vs. State of Haryana 2000 SC. Relevant observations are as under :
"In view of the rival stand of the parties, the sole question that arises for consideration is under what circumstances and by what method, the statements of five persons could have been tendered in the case for Digitally signed by BABRU BABRU BHAN BHAN Date:
2024.05.15 16:15:54 +0530 SC 396/2019 STATE Vs. OM PARKASH FIR No.58/2005 PS : Keshav Puram U/s.394/397/411/174A/34 IPC & 25/54/59 Arms Act 13 being admissible under Section 33 of the Evidence Act and whether it can form the basis of conviction. Section 299 of the Code of Criminal Procedure consists of two parts. The first part speaks of the circumstances under which witnesses produced by the prosecution could be examined in the absence of the accused and the second part speaks of the circumstances, when such deposition can be given in evidence against the accused in any inquiry or trial for the offence with which he is charged. This procedure contemplated under Section 299 of the Code of Criminal Procedure is thus an exception to the principle embodied in Section 33 of the Evidence Act inasmuch as under Section 33, the evidence of a witness, which a party has no right or opportunity to cross-examine is not legally admissible. Being an exception, it is necessary, therefore, that all the conditions prescribed, must be strictly complied with. In other words, before recording the statement of the witnesses, produced by the prosecution, the Court must be satisfied that the accused has absconded or that there is no immediate prospect of arresting him, as provided under first part of Section 299(1) of the Code of Criminal Procedure. In the case in hand, there is no grievance about non-compliance of any of the requirements of the first part of sub-section (1) of Section 299 Cr.P.C.
When the accused is arrested and put up for trial, if any, such deposition of any witness is intended to be used as an evidence against the accused in any trial, then the Court must be satisfied that either the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience, which would be unreasonable. The entire arguments of Mr. Gopal Subramanium, appearing for the appellant is that any one of these circumstances, which permits the prosecution to use the statements of such witnesses, recorded under Section 299(1) must be proved and the Court concerned must be satisfied and record a conclusion thereon. In other words, like any other fact, it must first be proved by the prosecution that either the deponent is dead or is incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances would be unreasonable. In the case in hand, there is no order of the learned trial Judge, recording a conclusion that on the materials, he was satisfied that the persons who are examined by the Magistrate under Sec.299(1) are dead, though according to the prosecution case, it is only after summons being issued and the process server having reported those Digitally signed by BABRU BABRU BHAN BHAN Date:
2024.05.15 16:16:02 +0530 SC 396/2019 STATE Vs. OM PARKASH FIR No.58/2005 PS : Keshav Puram U/s.394/397/411/174A/34 IPC & 25/54/59 Arms Act 14 persons to be dead, their former statements were tendered as evidence in trial and were marked as Exhibits PW48/A to PW48/E. As has been stated earlier, since the law empowers the Court to utilise such statements of persons whose statements were recorded in the absence of the accused as an exception to the normal principles embodied in Section 33 of the Evidence Act, inasmuch as the accused has been denied of the opportunity of cross-examining the witnesses, it is, therefore, necessary that the pre-conditions for utilising such statements in evidence during trial must be established and proved like any other fact. There possibly cannot be any dispute with the proposition of law that for taking the benefits of Section 299 of the Code of Criminal Procedure, the conditions precedent therein must be duly established and the prosecution, which proposes to utilise the said statement as evidence in trial, must, therefore, prove about the existence of the pre- conditions before tendering the evidence. The Privy Council, in fact in the case of Chainchal Singh vs. Emperor, AIR (33) 1946 PC, Page 1, in analysing the applicability of Section 33 of the Evidence Act, did come to the conclusion that when the evidence given by the prosecution witness before the Committing Magistrate is sought to be admitted before the Sessions Court under Section 33 on the ground that the witness was incapable of giving evidence, then that fact must be strictly proved and this may be more so in those cases where the witness was not cross-examined in the Committing Magistrates Court by reason of the accused not having been represented by a counsel. In that particular case the process server had been examined, who stated that he found the witness ill and unable to move from his house, but that was not treated to be sufficient to hold that the prosecution has discharged its burden of proving that the witness is not available. But having said so, Their Lordships did not interfere with the conviction on the ground that the Court can interfere only if, it is satisfied that grave and substantial injustice has been caused by mis-reception of the evidence in the case.
On a mere perusal of Section 299 of the Code of Criminal Procedure as well as Section 33 of the Evidence Act, we have no hesitation to come to the conclusion that the pre- conditions in both the Sections must be established by the prosecution and it is only then, the statements of witnesses recorded under Section 299 Cr.P.C. before the arrest of the accused can be utilised in evidence in trial after the arrest of such accused only if the persons are dead or would not be available or any other condition enumerated in the second part of Digitally signed by BABRU BABRU BHAN Date:
BHAN 2024.05.15 16:16:10 +0530 SC 396/2019 STATE Vs. OM PARKASH FIR No.58/2005 PS : Keshav Puram U/s.394/397/411/174A/34 IPC & 25/54/59 Arms Act 15
Section 299(1) of the Code of Criminal Procedure is established. In the case in hand, after the process server reported the fact of death of the concerned persons, who were summoned as witnesses and whose statements had already been recorded under Section 299 Cr.P.C. on the application of the prosecution, the said statements were tendered as evidence and have been exhibited as Exhibits PW48/A to PW48/E. The learned Sessions Judge as well as the High Court relied upon the said statements for basing the conviction of the appellant. So far as the compliance of the first part of Section 299 (1) is concerned, the same is established through the evidence of PW28, who at the relevant time was working in Army as well as the S.H.O., Safidon also submitted before the Magistrate that the arrest of the accused could not be procured, as he was absconding and in fact there was an order from the Magistrate for issuance of proclamation under Section 82 of the Code of Criminal Procedure. The High Court in fact, on consideration of the entire materials did record a finding that the requirements of first part of Section 299 of the Code of Criminal Procedure must be held to have been established and there was no illegality in recording the statements of the five persons as the accused had been absconding and there was no immediate prospect of the arrest of the said accused. So far as the requirements of second part of Section 299 of the Code of Criminal Procedure is concerned, the impugned Judgment of the High Court indicates that the Court looked into the original records and it was found that the summons had been sent by the learned trial Judge, summoning the witnesses repeatedly to appear before the trial Court and on every occasion, the summons were received back with the report that the persons have already died. The High Court has also indicated as to how on each occasion, summons issued to the five witnesses have been returned back with the report that the persons are dead".
26. The general rule embodied u/s.33 of the Evidence Act is that evidence given by a witness in judicial proceedings is relevant for proving a fact in subsequent judicial proceedings or at the later stage on the same proceeding provided the adverse party in the first proceeding had the right and opportunity to cross-
Digitally
signed by
BABRU
BABRU BHAN
BHAN Date:
2024.05.15
16:16:18
+0530
SC 396/2019
STATE
Vs.
OM PARKASH
FIR No.58/2005
PS : Keshav Puram
U/s.394/397/411/174A/34 IPC &
25/54/59 Arms Act
16
examine the said witness. Section 299 Cr.P.C. is thus an exception to the general rule embodied in Section 33 of the Evidence Act as an adverse party doesn't get any opportunity of cross-examination of a witness, whose testimony has been recorded u/s.299 Cr.P.C. Being an exception, it is necessary therefore, that all the conditions prescribed must be strictly complied with. In simple words, before recording the statement of witness, produced by the prosecution, the Court must be satisfied that accused has absconded, or that there is no immediate prospect of arresting him, as provided in first part of Section 299 Cr.P.C. and secondly, that witness cannot be examined afresh for the reasons given in second part of the section.
27. In case in hand, there is no grievance about non-compliance of the second part because this Court had issued process even through DCP, wherein it had been reported that witness Mohd. Zafar was not traceable. The grievance of the defence is about non-compliance of the requirement of the first part of Section 299 Cr.P.C. relating to the satisfaction of the Court that accused has absconded. As per record, process u/s.82 Cr.P.C. was issued against the accused by the Court for 19.03.2005. Prosecution claims that same was duly executed and when the accused failed Digitally signed by BABRU BABRU BHAN BHAN Date:
2024.05.15 16:16:26 +0530 SC 396/2019 STATE Vs. OM PARKASH FIR No.58/2005 PS : Keshav Puram U/s.394/397/411/174A/34 IPC & 25/54/59 Arms Act 17 to appear before the Court within statutory period, he was declared proclaimed offender vide order dated 04.05.2005. As per available documents relating to the process u/s.82 Cr.P.C., accused Om Prakash was directed to appear before the Court on 19.03.2005, but the process was executed on 03.05.2005. So, since the process u/s.82 was executed on 03.05.2005, the accused could not have appeared before the Court in compliance of the same on 19.03.2005 i.e. prior to its execution. Secondly, after execution of the process u/s.82 Cr.P.C., accused has to be given at least 30 days time to put his appearance before the Court. Here in this case, as per report given on process u/s.82 Cr.P.C., it was executed on 03.05.2005 and thereafter, accused Om Prakash was declared PO on the very next day on 04.05.2005. Thus, the statutory period of 30 days was also not provided to him and, therefore, the execution of process u/s.82 Cr.P.C. cannot be recognised as proper. Further, although on one process Ex. P2, date of execution has been mentioned as 27.03.2005, but the perusal of the record would reveal that the month of April (4) has been changed to March (3) through a visible overwriting. It has not been explained by the prosecution that who made the aforesaid change and for what purpose. In absence of any explanation in this regard, possibility cannot be ruled out that the month was purposely changed subsequently Digitally signed by BABRU BABRU BHAN BHAN Date:
2024.05.15 16:16:44 +0530 SC 396/2019 STATE Vs. OM PARKASH FIR No.58/2005 PS : Keshav Puram U/s.394/397/411/174A/34 IPC & 25/54/59 Arms Act 18 from April to March to validate its execution, which otherwise it was not. So, it can be said without hesitation that neither the process u/s.82 Cr.P.C. was executed properly, nor the satisfaction recorded by the Court that accused had absconded was proper.
28. As has been noted above, there is no dispute on the legal proposition that both the pre-conditions given in Section 299 Cr.P.C. must be established by the prosecution and it is only then a statement recorded before the arrest of accused can be utilised u/s.299 Cr.P.C. after his arrest. Here in this case, the condition embodied under first part of Section 299 Cr.P.C. has not been complied with because the process u/s.82 Cr.P.C. was not executed properly.
29. In addition to statement of Mohd. Zafar, neither any witness was initially examined or cited by the prosecution, nor any such additional witness was examined, or mentioned after arrest of accused Om Prakash. No recovery of any case property or weapon used in commission of offence was effected from accused Om Prakash. In nutshell, besides the statement of Mond.
Zafar, which was recorded in absence of accused Om Prakash, there is no incriminating evidence against him. Accused Om Prakash is accordingly acquitted from the charges u/s.392/394/34 IPC. Digitally signed by BABRU BABRU BHAN BHAN Date:
2024.05.15 16:16:53 +0530 SC 396/2019 STATE Vs. OM PARKASH FIR No.58/2005 PS : Keshav Puram U/s.394/397/411/174A/34 IPC & 25/54/59 Arms Act 19
30. Accused Om Prakash has also been charge for the offence u/s.174A IPC. The discussion relating to the improper execution of process u/s.82 Cr.P.C. applies to the allegations of offence u/s.174A IPC also. Proper execution of proceedings u/s.82 Cr.P.C. is a condition precedent for invocation of offence u/s.174A IPC. As has been noted above, since the process u/s.82 Cr.P.C. was not executed properly, the offence u/s.174A IPC also not proved against accused Om Prakash. Accused Om Prakash is accordingly acquitted of the offence u/s.174A IPCDigitally also.signed by BABRU BABRU BHAN BHAN Date: 2024.05.15 16:17:01 +0530 Announced in open (BABRU BHAN) Court on 13.05.2024 ADDL.SESSIONS JUDGE - 03 NORTH-WEST, ROHINI COURTS, DELHI/13.05.2024