Delhi District Court
State vs Rashid on 7 May, 2025
In the Court of Ms. Isra Zaidi: JMFC-04, North East, Karkardooma
Courts, Delhi.
State Vs. Rashid @ Nazim etc.
FIR No. 178/2002
U/sec.: 457/380/511/34 IPC
PS: Khajuri Khas
Date of institution of the case: 16.01.2003
Date for which judgment is reserved: 07.05.2025
Date on which judgment is delivered: 07.05.2025
CNR No.DLNE02-000099-2003
JUDGMENT
a) Sr. No. of the case : 462088/2015
b) Date of commission of the offence : 07.09.2002
c) Name of the complainant : HC Ram Kishore
d) Name of the accused and his parentage : 1) Rashid
S/o Sh. Sharafat
2) Asif
S/o Sh. Munir
Digitally
signed by
ISRA ISRA ZAIDI
Date:
ZAIDI 2025.05.07
16:37:23
+0800
FIR NO. 178/2002 1 of 13 State vs. Rashid etc.
e) Offence complained of : Section
457/380/511/34 IPC
f) Offence charged of : Section
457/380/511/34 IPC
g) Plea of the accused : Pleaded not guilty
h) Final order : Acquitted u/s
457/380/511/34 IPC
Convicted u/s 174A
IPC
i) Date of such order : 07.05.2025
Brief facts of the case
1. Succinctly stated the fact discernible from the present complaint are that on 07.09.2002, HC Ram Kishore was posted at PS Karawal Nagar. He along with Ct. Pawan Kumar, HC Kulwinder were going to sip tea at about 3.00 am. When they reached in front of Mavi Hospital, they noticed that shutter of Tanwar Cycle Service was partly opened. He saw one person, on inquiry he revealed his name as Rashid, who tried to escape after seeing them. He was apprehended and one country made pistol was recovered from his possession. On further inquiry, he revealed that he tried to enter the shop by opening the shutter along with other person namely Asif. Thereafter, the present FIR was registered against Rashid and Asif u/s 457/34 IPC.
Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.05.07 16:37:31 +0800 FIR NO. 178/2002 2 of 13 State vs. Rashid etc. Court Proceedings
2. After completion of the investigation, charge-sheet under sections 457/34 IPC was filed before the court against the accused persons. The then Learned Magistrate took cognizance on and consequently, the accused persons were summoned to face the trial. On their appearance copies of documents, relied upon by the prosecution, were supplied to them as per norms. Thereafter, vide order dated charges under sections 457/380/511/34 IPC were framed by the then Learned ACMM against accused persons to which they pleaded not guilty and claimed trial. Thereafter, the matter was listed for PE. Additional charge u/s 174A IPC was framed against the accused Rashid on 27.03.2025.
3. In order to prove and substantiate its case, the prosecution has examined following witnesses.
Prosecution Witnesses S. No. Witness number Name of the witness
1. PW1 Sh. Rumpal
2. PW2 Sh. Keshav
3. PW3 Ct. Pawan Kumar
4. PW4 ASI Ram Kishore
5. PW5 SI Devender Kumar
6. PW6 Retd. Insp. Vinod Kumar
7. PW7 ASI Sanjeev Singh
8. PW8 Retd. SI Amar Pal Singh
9. PW9 HC Yashpal Documents relied upon by the prosecution Digitally signed by ISRA ISRA ZAIDI Date:
ZAIDI 2025.05.07 16:37:40 +0800 FIR NO. 178/2002 3 of 13 State vs. Rashid etc. S. No. Ex./Mark Nature of documents
1. Ex. PW1/A and Receipts of rickshaw Ex.PW-1/B
2. Ex. PW1/C Seizure memo of receipt
3. Ex. PW1/D Superdarinama of rickshaw
4. Ex. P-1 to P-3 Photographs
5. Ex. PW3/A Statement of Ct. Pawan Kumar
6. Ex. PW4/A Statement of ASI Ram Kishore
7. Ex. PW4/B Seizure memo of rickshaw and bundle of keys
8. Ex. PW4/B & Arrest memo of accused Asif and Ex.PW-4/C Rashid
9. Ex. PW5/A & Personal search of both accused Ex.PW-5/B persons
10. Ex. PW6/A Tehrir
11. Ex. PW6/B Site plan
12. Ex. PW8/A Arrest memo of accused Rashid @ Nazim
13. Ex. PW8/B DD entry Statement of the Accused u/s 313 Cr.P.C
4. Statements of accused persons namely Rashid and Asif were recorded u/s 313 Cr.P.C on 03.05.2025. Accused Asif stated that he is innocent. He has been falsely implicated in the present case by the IO. He had a shop at Sherpur Chowk, Pushta Road, Khajuri Khas, Delhi. He used to sleep at his shop. He was passing through the cycle shop and in order to ease himself he halted at the shop and at the same time he was apprehended by the police. Accused Rashid stated Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.05.07 FIR NO. 178/2002 4 of 13 State vs. Rashid etc. 16:37:50 +0800 that he is innocent. He has been falsely implicated in the present case by the IO. He had a puncture shop at Sherpur Chowk, Pushta Road, Khajuri Khas, Delhi. He used to sleep at his shop. He was sitting outside his shop as it was hot. He was apprehended by the police.
Evidence of the Defence
5. No defence evidence was lead by the defence despite granting them an opportunity.
Final Arguments
6. The court heard final arguments on behalf of the both the parties on 07.05.2025. Ld. counsel for the accused submitted that the case against the accused persons is false and frivolous and has prayed that accused persons be acquitted of the offence charged. He pointed out various discrepancies in the version of the complainant. Ld. APP for the state submitted that accused be convicted of the offences under the above-mentioned sections as there is sufficient evidence on record to convict the accused persons. I have heard the submissions of Ld. APP for the State and Ld. Counsel for the accused. The court has also diligently gone through the charge-sheet, documents, evidence recorded and the entire material on record.
Brief reasons for the just decision of the case
7. In order to bring home the guilt of the accused persons, prosecution had to prove the following ingredients of the said Section 457/380/511/34 IPC and against accused persons and section 174A IPC against accused Rashid @ Nazim.
457 IPC- "It is an aggravated form of house-trespass or house-
breaking committed at night with the intent to commit a crime that Digitally signed by ISRA ISRA Date:
ZAIDI FIR NO. 178/2002 5 of 13 State vs. Rashid etc. ZAIDI 2025.05.07 16:37:59 +0800 carries a prison sentence."
380 IPC- "Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
511 IPC- "Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both."
8. As far as the identities of the accused persons are concerned the same is not disputed. All the prosecution witnesses have correctly identified the accused persons. The identity of the accused persons stands established.
9. In his examination in chief, PW1 deposed that he gave his rickshaw on rent to Suresh. On 07.09.2002 Suresh told him that rickshaw was stolen. In the evening Suresh told him that rickshaw was standing in the PS. In his cross-
examination he testified that he had no licence to let out the rickshaw. The testimony of PW1 is silent as to the fact if he had given any complaint regarding missing rickshaw. The rickshaw was released on superdari and the same was neither produced in the court nor photographs were produced on record by the prosecution.
10. PW2 was working as a photographer and photographs were clicked Ex.P1 Digitally signed by ISRA ISRA Date:
ZAIDI FIR NO. 178/2002 6 of 13 State vs. Rashid etc. ZAIDI 16:38:07 2025.05.07 +0800 to Ex.P3. Perusal of the photographs reveals that shutter of the shop was partly shut. As per the story of the prosecution the incident is of night time i.e. 3.20 am, however, photographs of the shop were clicked in the morning. Perusal of the file reveals that the owner of the shop was not examined as a witness by the prosecution.
11. PW3 & PW4 deposed in their examination in chief that on 07.09.2002 they along with HC Ram Kishore and HC Parvinder reached near Mahavir hospital. They saw that shutter of Tanwar Bicycle Service Centre was partly opened. On seeing them, rickshaw puller who was standing there tried to flee and when the accused was searched, a country made pistol and live cartridge was found from his right pocket. Perusal of the personal search memo of accused reveals Rashid which also bears the signatures of Ct. Pawan, nothing was recovered from his possession. It appears that his deposition does not go in consonance with the material on record.
12. PW3 & PW4 further deposed that they heard the noise from the shop and found other person inside the shop. However, in the initial complaint Ex.PW- 4/A, it is stated that accused Rashid on being interrogated told that accused Asif went inside the shop with an intention to steel. It is not stated that they heard the noise from inside. It appears to be an improvement in the version of PW3 & PW4. PW3 & PW4 also deposed that one country made pistol, bunch of keys and live cartridge were handed over to SI Vinod. Perusal of seizure memo Ex.PW-4/B reveals that only rickshaw and bunch of keys were seized. The country made pistol was said to be recovered from the possession of accused, was not even seized by the IO.
Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.05.07 16:38:16 +0800 FIR NO. 178/2002 7 of 13 State vs. Rashid etc.
13. PW5 & PW6 deposed in their examination in chief that ASI Vinod received DD entry No.26A. He alongwith ASI Vinod went to the place of incident i.e. Mavi Hospital. PW3 & PW4 deposed that they went in front of Mahavir hospital. It is not clear if it was Mavi hospital or Mahavir hospital. He further deposed that PCR van handed over custody of the accused to ASI Vinod. He got the FIR registered. In his cross-examination, he testified that no public person was found on the spot. No public person was joined in the investigation by the IO.
14. PW6 deposed in his examination in chief that he received DD no.26. He reached at the spot, prepared the tehrir and site plan. He arrested the accused persons. Perusal of the site plan Ex.PW-6/B reveals that it was not signed by HC Ram Kishore. It creates a reasonable doubt if it was prepared at the instance of the complainant. The evidentiary value of the spot map/sketch map prepared by the investigating officer is relevant under section 9 of the Indian Evidence Act, 1872 and since it is based on the actual observation of the officer at the crime scene, it is treated as direct evidence and is admissible u/s 60 of Indian Evidence Act, 1872. It is well settled that every defect in the site plan cannot be fatal to the case of the prosecution though non-mentioning of the essential features in the site plan can create a doubt on the story of the prosecution. In the case of Shingara Singh v. State of Haryana (2003)12 SCC 758 it was held that any defect in the site plan creates a doubt regarding the place of occurrence and accused is entitled to get the benefit of doubt. The site plan prepared by the IO Ex.PW-6/B was not even signed by the complainant. It is doubtful that the site plan was prepared at the instance of the complainant.
Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 16:38:25 2025.05.07 +0800 FIR NO. 178/2002 8 of 13 State vs. Rashid etc.
15. In his cross-examination, he testified that no public person was present on the spot. He also admitted that no FIR was registered with respect to the stolen rickshaw. The owner of cycle shop Muradi was not examined as a witness. IO also admitted that nothing was stolen from the shop. There is no evidence on record to attribute to the accused that they were present on the spot. No independent witness was examined.
16. The photos of the shop of the day time are annexed Ex.P-1 to Ex.P3 but they are not sufficient to ipso facto fasten the liability on the accused person. The case of the prosecution has to stand on its own legs.
17. No other public witness/independent witness has been examined by the prosecution to corroborate the complainant. No reliance can be placed on uncorroborated testimony of the police witnesses.
In case of Pradeep Narayan State of Maharashtra AIR 1995 SC 1930 held that failure of police to join witness from locality during search creates doubt about fairness of investigation, benefit of which has to go to the accused.
18. There are no independent witness to the arrest memo or personal search memo. The IO was examined as PW-2 but no incriminating evidence against the accused was brought on record by the prosecution. It is pertinent to record that no public witness was joined in the investigation by the IO at the time of alleged recovery of phone/case property from the accused. The police witnesses cannot be straightaway termed as unreliable witnesses, however, when there is a possibility of joining any public witness in the investigation and still no genuine efforts are made to join the independent Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 16:38:33 2025.05.07 FIR NO. 178/2002 9 of 13 State vs. Rashid etc. +0800 person as witness, then the testimony of the police witness does not lend sufficient credence/reliability, unless it is corroborated by independent material witness. In view of above discussion, it is duly established that genuine efforts were not made by the IO of the case to join the public witness. The non-joining of the public witness at the time of alleged recovery of the article creates doubt in the story of the prosecution as was held in Pawan Kumar v. Delhi Administration 1987 CC 585 Delhi High Court. In these circumstances, as despite the presence of public persons at/around the place of alleged recovery the investigating officer failed to join independent public persons as witness to the proceedings of the present matter, warrants an adverse inference to be drawn under Section 114 (g) of the Evidence Act,1872 that the evidence if produced would have been unfavourable to the case of the investigating agency/prosecution and thus, the prosecution has failed to prove the recovery from the accused beyond reasonable doubt.
19. For the reasons outlined above, this court is of the considered opinion that the prosecution has failed to discharge the heavy burden imposed on it by law of satisfying this court beyond reasonable doubt of the guilt of the accused.
20. Consequently, accused persons namely Rashid @ Nizam and Asif are acquitted for the offence u/s 457/380/511/34 IPC.
21. Now adverting to the other charge i.e. u/s 174A IPC, with which the accused Rashid @ Nizam has been charged. In order to prove an offence punishable u/s 174A IPC, the prosecution has to prove the following Digitally signed by ISRA ISRA ZAIDI Date:
ZAIDI 2025.05.07 16:38:42 +0800 FIR NO. 178/2002 10 of 13 State vs. Rashid etc. ingredients: -
Section 174A IPC -
" Non-appearance 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 sub- section (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 sub-section (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.."
22. Section 174A IPC is divided into two parts. First part deals with the situation where the proclamation is issued under section 82(1) Cr.P.C and when the accused failed to appear despite its publication, he is to undergo imprisonment upto three years or with fine or with both. The second part of Section 82(relates to the declaration issued by the Court under section 82(4) Cr.P.C. wherein serious offences have been prescribed and despite declaring a person as proclaimed offender, when he fails to appear, the punishment provided is imprisonment upto seven years and payment of fine.
23. Perusal of file reveals that accused Rashid was also charged of the offence punishable u/s 174A IPC. He was declared proclaimed offender on 30.05.2015. The statement of process server was recorded on 30.05.2015. He was apprehended on 07.03.2018.
24. PW8 & PW9 have deposed that on 07.03.2018 they were posted at PS Pahar Ganj and on that day they were appointed in PO staff duty. They jointly were in search of PO at KKD Mor and in the mean time one secret informer Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.05.07 16:38:51 +0800 FIR NO. 178/2002 11 of 13 State vs. Rashid etc. came and told HC Yashpal one accused who committed burglary and who was declared PO as FIR was also registered with regard to the same in PS Khajuri Khas, was standing at Kadkadi Road near MCD office. Thereafter they and secret informer reached Kadkadi Road near MCD office. They further deposed that one boy was standing there and secret informer indicated towards him. They interrogated him in which he disclosed his name as Rashid @ Nazim and he also disclosed that he committed burglary in the year 2002 and further stated that he discontinued going to the court. Thereafter they checked the PO list and found that one FIR No. 178/02 was registered u/s 457/34 IPC, PS Khajuri Khas and he was declared PO by the Ld. ACMM court on dated 30.05.2015. HC Yashpal arrested him vide arrest memo Ex. PW-8/A. PW8 & PW9 were not cross-examined by the Ld. defence counsel.
25. The process against the accused Rashid under section 82 Cr.PC was issued. The process was received duly executed. Statement of the process server who executed the process was duly recorded 30.05.2015. He was declared PO on 30.05.2015. In the present case, proclamation under section 82 Cr. P.C. was issued against accused and he was directed to appear before the Ld predecessor of this court. As per the order the Ld. predecessor has observed that accused was absent and recorded the statement of process server Ct. Sanjeev Singh on 30.05.2015. Therefore, process under section 82 Cr.P.C. was duly executed against accused as per the procedure laid down in the section 82(2) Cr.P.C itself, despite that he failed to appear. Process server read the proclamation with beat of drums and pasted copy of proclamation at the address of the accused and notice board of the court. The statement of the process server was recorded to that effect on 30.05.2015 and the report in that regard was exhibited as Ex. C-1. Vide order dated 30.05.2015 the then learned MM Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.05.07 16:38:59 FIR NO. 178/2002 12 of 13 State vs. Rashid etc. +0800 was satisfied that proceedings u/s 82 Cr.P.C were executed as per law and declared accused as an absconder. Ld. Predecessor of this Court reached to the conclusion after going through the statement of process server that accused was absconding from the process of law and evading his appearance before the Court.
26 For the reasons outlined above, this court is of the considered opinion that the prosecution has successfully proven beyond reasonable doubt the guilt of accused Rashid qua the offence under section 174 IPC.
27. Consequently, accused Rashid is convicted for offence under section 174A IPC only.
Put up for order on sentence today itself.
Let the copy of the judgment be given to the convict free of cost.
Announced in the open Court today. Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 16:39:06 2025.05.07 +0800 (Isra Zaidi) JMFC-04/NE/KKD/Delhi 07.05.2025 This judgment contains 13 pages and each page bears my signature.
Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.05.07 16:39:12 +0800 (Isra Zaidi) JMFC-04/NE/KKD/Delhi 07.05.2025 FIR NO. 178/2002 13 of 13 State vs. Rashid etc.