Delhi District Court
State vs Moni Kumar on 12 January, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE-02,
NORTH EAST DISTRICT, KARKARDOOMA COURTS,
DELHI
PRESIDED BY: SH. VIPUL SANDWAR
JUDGMENT
FIR NO. : 498/2008, U/s 394/420/34 IPC
PS : SEELAMPUR
A. CIS No. of the Case : 460950/2015
B. Date of Institution : 22.05.2009
C. Date of Commission of : 07.12.2008
Offence
D. Name of the complainant : Nageshwar S/o Ram Prasad, R/o 28/69, Gali no.14, 30 feet road, Chaudhary Market, Vishwas Nagar, Shahdara, Delhi E. Name of the Accused, his : (1) Moni Kumar S/o Prem Raj, Parentage & Addresses R/o 25, main road, Johripur, Delhi and (2) Bobby S/o Ram Kumar Chaudhary, R/o Pintu cable wale ke samne, Mangal Bazar, Shanti Nagar, Ghaziabad, U. P. F. Representation on behalf : Ms. Amandeep Kaur, Ld. APP of State G. Offence complained of : U/s 394/420/34 IPC H. Plea of the Accused : Pleaded not guilty and claimed trial.
I. Order reserved on : 23.11.2023
J. Date of Order : 12.01.2024
K. Final Order : Acquitted
State vs. Moni Kumar & Anr. FIR No.498/08 PS Seelampur Page No. 1 / 27
Brief Statement of Reasons for Decision of the Case
1. The present FIR was filed on the complaint of complainant wherein he has stated that on the day of incident the complainant was bringing CD player in four cartons on his theli rickshaw from Vishwas Nagar to Bhagirath Palace through old iron pul. When he reached G. T. road, Hanuman Mandir at about 10:10 am a TSR coming in high speed hit him. Due to the impact his theli rickshaw fell on the road and he sustained injuries. Four persons got down from the TSR and told the complainant that since he has suffered injuries they will take him for medical treatment. One of the persons stood near the belongings of the rickshaw and assured him that he will take care of his rickshaw and cartons. The others made him sit in the TSR and when the TSR reached Bihari Building he felt suspicion and started shouting for help. A nearby police official came to the TSR and caught hold of one of the person of the TSR and the other one escaped. He could not remember the registration number of the TSR. The person caught disclosed his name as Moni Kumar S/o Prem Raj. He alongwith the police went to the place of accident. His theli rickshaw and the cartons were not present. The accused persons were chargesheeted for offence under section 279/420/379/34 IPC.
2. On the basis of the above facts FIR bearing no.498/08 was registered at PS Seelampur under Sections 279/420/379/34 India Penal Code (hereinafter referred to as "IPC") and was investigated by the officials of Police Station Seelampur and IO/ASI Yamuna Prasad filed the charge sheet against the accused persons upon which cognizance was taken on 22.05.2009 by the State vs. Moni Kumar & Anr. FIR No.498/08 PS Seelampur Page No. 2 / 27 learned Predecessor of this Court.
3. Charge was framed vide order dated 23.11.2012 for the offence punishable Under Section 394/420/34 of the IPC against both the accused by the learned Predecessor of this Court, to which, both accused pleaded not guilty and claimed trial.
4. Thereafter, matter was listed for Prosecution Evidence. The Prosecution has examined witnesses in support of its case.
5. In nutshell, the testimony of the prosecution witnesses is as follows :-
(i) PW1 Nageshwar is the complainant, however, he did not remember the exact date. In his deposition dated 17.07.2013 he stated that the incident took place around three years back at 10:00 pm in the night. He has stated that he was carrying four cartons of DVD players from Bhagirathi palace in his theli rickshaw from Vishwas Nagar. When he reached near mother dairy ahead of Kailash Nagar four person alongwith auto driver came over in a auto rickshaw. They were five in total. One of them asked him about the way of New Delhi. He told them that they are required to cross the old iron bridge to go to New Delhi.
He stated that accused persons dragged him inside the auto rickshaw and gagged his mouth with their hands. Two of them fled from the spot towards Shastri Park theka with his theli rickshaw. The auto driver started moving the auto rickshaw. The the boy also managed to flew from the spot jumping out of the auto rickshaw, however, accused Monu was apprehended by the police officials. The witness has correctly identified the accused Monu in the Court. Thereafter, they were taken to PS Gandhi State vs. Moni Kumar & Anr. FIR No.498/08 PS Seelampur Page No. 3 / 27 Nagar and PS Seelampur was telephonically informed about the incident. IO recorded his statement. As the witness was resiling from his earlier statement, Ld. APP for State put questions in the nature of cross-examination after seeking permission of the Court. He conceded that the incident took place on 07.12.2008, however, it was 10:00 pm in the night. He denied the suggestion that the accused persons hit their auto rickshaw against his theli rickshaw. He further denied the suggestion that he had fallen on ground due to collision and had sustained injuries and the accused persons had suggested him to arrange medical aid. He stated that accused Monu and his other associates gave beatings on his face. He conceded that when the auto rickshaw carrying him and accused persons reached near Bihari Building one police man came forward to his help hearing his cries for help. It is correct that police official accompanied him to the spot where his theli rickshaw was found to be missing. He denied the suggestion that accused Bobby was arrested in his presence/at his instance. He categorically stated that accused Bobby was not present at the spot. He conceded that accused Monu was arrested in his presence. In his cross-examination he has stated that accused Monu alighted from the auto and asked him about the way to New Delhi. He had stated to the police that accused persons gave beatings to him on his face and pressed his face. They stayed in the PS Gandhi Nagar till 12:00 in the midnight. In the morning he was directed to call the owner of DVD players by the police officials and he reached back at about 10:00 am. He could not tell about the registration number or the description of the TSR. He was not taken to the hospital by the police officials. He was not recalled in the PS thereafter. He does not remember State vs. Moni Kumar & Anr. FIR No.498/08 PS Seelampur Page No. 4 / 27 the exact date and time when he had appended his thumb impression on his statement Ex. PW1/A. He conceded that he had testified as he was explained by the police officials. He was explained by the police officials regarding the manner in which he had to testified. On a Court question he has stated that he told entire truth in his deposition.
(ii) PW2 HC Jogender on 07.12.2008. He was the DO and at about 12:30 pm, he received rukka from HC Pawan sent by ASI Yamuna Prasad. On the basis of same, he recorded FIR No.498/08. He endorsed the rukka and after registration of case he handed over the copy of FIR and original rukka to HC Pawan for giving it to the IO. The witness was not cross examined by the accused persons despite being given an opportunity.
(iii) PW3 ASI Mahender Singh was posted as HC on 08.12.2008 and joined the investigation with the IO. On the said date, accused Moni Kumar was produced before the Court and one day PC was taken from the Court. After that medical examination of the accused was conducted. Thereafter, they alongwith accused and complainant reached at Loni Border Chowki. They were waiting for accused Bobby there. At about 09:30 pm he came from the side of Chowki and complainant pointed out towards the accused Bobby and accused Moni Kumar also told them that he is the person who was with him at the time of incident. Thereafter, he was interrogated and arrested. His personal search was conducted and his disclosure statement was recorded. Thereafter, they came back to the PS and accused was sent to JC. Accused Moni correctly identified by him in Court. Accused Bobby was PO at that time. The witness was not cross examined by the accused persons despite being given an State vs. Moni Kumar & Anr. FIR No.498/08 PS Seelampur Page No. 5 / 27 opportunity.
(iv) PW4 ASI Balesh Kumar on 07.12.2008 he was present at beat situated at G. T. road police post and was on patrolling duty. At about 10:30 pm he heard noise coming from the side of Bihari Building, G. T. road. He reached the spot and saw the complainant Nageshwar and accused Moni Kumar fighting with each other and complainant was shouting. He apprehended accused Moni Kumar and unknown TSR was also standing there in which one person was sitting and the driver of the TSR fled away with the TSR from the spot. Thereafter, he alongwith complainant and accused Moni reached Hanuman Mandir, G. T. road where theli rickshaw or goods were found. In the meantime, IO Yamuna Prasad alongwith HC Pawan Kumar reached there. He recorded his statement. Accused Moni correctly identified by him in Court. Accused Bobby was PO at that time. The witness was not cross examined by the accused persons despite being given an opportunity.
(v) PW5 ASI Pawan Kumar on 07.12.2008 after receiving DD no.40A. He alongwith ASI Yamuna Prasad went to Holy Family Hospital. While returning when they reached G. T. road, Shastri Park they met Ct. Balesh who produced complainant Nageshwar and accused Moni before ASI Yamuna Prasad. IO/ASI Yamuna Prasad recorded statement of complainant Nageshwar. IO had inquired from the accused Moni and he told that three persons Bobby, Sonu and Shanu were involved with him in the present case. IO prepared rukka and handed over to him for registration of FIR. After the registration of FIR he came back to the spot alongwith copy of FIR and original rukka and handed over the same to ASI Yamuna Prasad. IO arrested and personally searched State vs. Moni Kumar & Anr. FIR No.498/08 PS Seelampur Page No. 6 / 27 the accused Moni and recorded his disclosure statement. The witness correctly identified both the accused in the Court. In his cross-examination he was on emergency duty with ASI Yamuna Prasad and fixed duty hours. They reached the spot at about 11:00 am. IO prepared rukka at about 12:15 am. After registration of FIR he came back at the spot at about 01:00 pm. He denied the suggestion that accused Moni has been falsely implicated in the present case.
(vi) PW6 Retd. ASI Yamuna Prasad is the IO in the present case. On 07.12.2008 vide DD no.40B he alongwith HC Pawan Kumar had gone to Holy Family Hospital and while returning from iron pul via G. T. road when they reached Hanuman Mandir at about 11:00 am they found a heavy crowd gathered. They found Ct. Balesh, complainant and accused Moni present at the spot. At that time statement of complainant was taken done at his instance and rukka was prepared after endorsing the same. FIR was registered through HC Pawan who returned at the spot after registering the same. A site plan without scale was prepared by him. He also recorded disclosure statement of accued, conducted his personal search and arrested him. A search was conducted for accused Bobby, however, he was not found. Accused Moni was taken into custody and produced before the Court on the next day. After taking accused Moni Kumar in custody for one more day search was made alongwith him and complainant for accused Bobby. When they reached U. P police chowki/nehar accused Moni indicated that accused Bobby was passing who was apprehended by him. The accused was arrested, his personal search was conducted and his disclosure statement was recorded. Thereafter, they returned to the PS and accused Moni and Bobby State vs. Moni Kumar & Anr. FIR No.498/08 PS Seelampur Page No. 7 / 27 were produced before the Court concerned. In the meanwhile, accused has disclosed the names of his associates as Sonu and Monu. Accused Sonu was not found at the address and no address of accused Monu was found. Accused Sonu later surrendered before the Court and arrested. Later Sonu released from the Court as the complainant refused to participate in the TIP proceedings. Chargesheet against both the accused persons was filed.
During trial, accused Bobby stopped appearing this Court and vide order dated 26.07.2019 he was declared a proclaimed offender. Supplementary chargesheet with regard to offence under section 174A IPC was filed against accused Bobby and charge under section 174A IPC was framed against accused Bobby on 22.12.2022 to which he not plead guilty and claimed trial. Accused Bobby admitted the genuineness of proceedings conducted by process server ASI rajesh Kumar and copy of FIR under section 294 Cr. PC. Statement of PW Bharti Kumari was recorded in his regard. Her deposition in brief as follow:
(vii) PW5' SI Bharti Kumari has deposed that accused Bobby was declared a PO vide order dated 26.07.2019. Statement of process server ASI Rajesh Kumar was recorded by the Court. She also recorded statement of process server ASI Rajesh Kumar under section 161 Cr. PC. She filed the supplementary chargesheet against the accused Bobby. The witness was not cross examined by the accused persons despite being given an opportunity.
6. PE was closed on 28.02.2023 and on 22.05.2023 statement of accused persons under section 313 Cr. PC read with State vs. Moni Kumar & Anr. FIR No.498/08 PS Seelampur Page No. 8 / 27 section 281 Cr. PC was recorded. Accused persons does not wish to lead DE and the matter was listed for Final Arguments.
7. Final arguments heard by Ld. counsel for accused as well as Ld. APP for the State. This Court has thoughtfully considered the material on record and arguments advanced with due circumspection.
8. Now this Court proceeds to appreciate the evidence brought on record by the Prosecution.
9. Prosecution has charged the accused persons with offences under section 394/420 read with 34 IPC. Section 34 IPC read with as follows:
"34. Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
10. Section 34 IPC creates a rule of joint and constructive liability. It is joint liability because all the accused can be jointly trial for the said offence and can be jointly held liable. It is constructive liability because liability of one accused is construed upon the liability of main accused. In such a case the main offences is committed by one of the accused and the others are held constructively liable for the offence as they have a particular connection with the main offender. The connection required by section 34 IPC is that of 'common intention' and one of them in furtherance of that common intention has committed the offence.
State vs. Moni Kumar & Anr. FIR No.498/08 PS Seelampur Page No. 9 / 27Moreover, when the offence was committed the other parties to the common intention had actively participate by doing some conduct which complements the commission of the offence.
11. The elements required to prove the application of section 34 IPC is as follows:
(i) Common intention- intention is the desire to produce particular consequence and when that desire becomes common to more than one person it becomes common intention. For the formation of common intention there has to be a prior agreement or a concert between the parties for the commission of the offence. The agreement can be formed by formally entering into an agreement or it can also be by conduct on the spot.
(ii) once the agreement, formal or by conduct has been made the parties become mutual agents for each other and whatever one does with respect to the common intention he is said to be representing the others. Once the common intention has been formed agreement is to commit the offence jointly or by complementary action.
(iii) for the application under section 34 IPC there should be a complementarity of action i.e. not only the parties had agreed to complement each other in the commission of the offence rather they actually complement each other in the commission of offence. The complementary action (active participation) should have been done in order to facilitate to commission of the main offence and even if within itself that act may not be an offence or be merely an act of abatement, it will amount to liability through section 34 IPC if the complementary action was done at the time of commission of the offence. It is not essential that all the State vs. Moni Kumar & Anr. FIR No.498/08 PS Seelampur Page No. 10 / 27 co-accused should have done the complementary action by being present on the spot.
12. In the present case nothing has been brought on record by the prosecution that both the accused persons had acted in furtherance of the common intention of all. As per the deposition of PW1, four accused persons alongwith an auto driver came at the spot and asked him about the way of New Delhi. Accused Monu and Others dragged him inside the rickshaw and gagged his mouth with their hands. Two of them fled towards Shastri Park theka with his theli rickshaw. Auto driver started moving the auto. Nothing is suggestive that the accused persons had agreed either from before or on the spot to commit the act. None of the prosecution witnesses have stated that the accused persons were shouting or provocating each other which could be suggestive of an agreement by conduct from at the spot. Therefore, the accused persons cannot be held liable vicariously for the acts of other with the help of section 34 IPC and examination of each accused to his specific act needs to be done.
13. The prosecution has charged the accused persons for offence under section 420 IPC. It is the case of the prosecution that the accused persons have cheated the complainant by inducing him to believe that he shall be medical treated by them and induced him to leave/deliver his four cartons of CD player alongwith thela rickshaw under custody of one of the accused.
14. The ingredients of the offence of cheating are spelt out in Section 415 of the IPC. Section 415 is extracted below:
State vs. Moni Kumar & Anr. FIR No.498/08 PS Seelampur Page No. 11 / 27"415. Cheating -- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation -- A dishonest concealment of facts is a deception within the meaning of this section."
15. The ingredients of the offence under Section 415 that emerge from a textual reading is as follows:
"Firstly, to constitute cheating, a person must deceive another. Secondly, by doing so the former must induce the person so deceived to
(i) deliver any property to any person; or
(ii) to consent that any person shall retain any property; or
(iii) intentionally induce the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and
(iv) such an act or omission must cause or be likely to cause damage or harm to that person in body, mind, reputation or property."
16. In Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 a two-judge bench of hon'ble Supreme Court interpreted sections 415 and 420 of IPC to hold that fraudulent or dishonest intention is a precondition to constitute the offence of cheating. The court observed:
"14. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to State vs. Moni Kumar & Anr. FIR No.498/08 PS Seelampur Page No. 12 / 27 deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.
15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed." (emphasis supplied)
17. In Dalip Kaur v. Jagnar Singh, (2009) 14 SCC 696 a two-judge bench of hon'ble Supreme Court held that a dispute arising out of a breach of contract would not amount to an offence of cheating under section 415 and 420. The relevant extract is as follows:
"9. The ingredients of Section 420 of the Penal Code are:
"(i) Deception of any persons;
(ii) Fraudulently or dishonestly inducing any person to deliver any property; or
(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he State vs. Moni Kumar & Anr. FIR No.498/08 PS Seelampur Page No. 13 / 27 would not do or omit."14. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception.
If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code." (emphasis supplied)
18. In the present case, PW1 is the prime witness of the prosecution being the complainant himself. In his deposition before Court he has stated that when he reached near mother dairy ahead of Kailash Nagar four persons including auto driver came there in an auto rickshaw and asked them the way for New Delhi. He told them that they were required to cross the old iron bridge. He identified accused Monu in Court who alongwith other co-accused dragged him inside the auto rickshaw and gagged his mouth with their hands. Two of the accused fled from the spot towards Shastri Park theka with his theli rickshaw. The auto driver starting moving the auto rickshaw, he started shouting. Two nearby police officials came and caught hold of accused Monu. The auto driver and the other boy managed to flee. Nowhere in his deposition before this Court he has stated that he was cheated by the accused persons by inducing him to believe that he shall be medically treated for injuries and he was dishonestly inducted to leave the for cartons of CD players alongwith his theli rickshaw under the custody of one of the accused persons. Moreover, the deposition of PW1 complainant State vs. Moni Kumar & Anr. FIR No.498/08 PS Seelampur Page No. 14 / 27 before this Court is a completely improvement upon his earlier statement Ex. PW1/A given to the police. In his statement to the police he has stated that a TCR coming in at a fast speed hit his theli rickshaw due to which he sustained injuries and four passengers came there and took him for treatment. One of the passenger stood near his theli rickshaw and stuff and assured him that he will take care of his goods. The others took him in the TSR. On suspicion he shouted and a nearby police came to his help. Accused Moni Kumar was apprehended and when the complainant reached back to the spot he did not find his theli rickshaw and the stuff.
19. Certain other discrepancies have also been found in the deposition of the PW1/complainant. While deposing before the Court on 17.07.2023 he has stated that the incident pertains to 10:00 pm at night, however, he could not mentioned the day/month/year. Even after Ld. APP for the State put questions in the nature of cross-examination he insisted that the incident was at 10:00 pm in the night, however, perusal of his statement under section 161 Cr. PC Ex PW1/A suggests that incident pertains to 10:10 am. PW5 in his cross-examination has stated that he reached the spot at 11:00 am and prepared the rukka at about 11:15 am. IO/PW6 in his cross-examination has stated that he reached the spot at 11:00 am and prepared the rukka at about 11:15 am. Duty Officer has stated that he received the rukka at 12:30 pm. From the perusal of the deposition of the other PWs, it can be ascertained that the incident pertains to around 10:00 am and not around 10:00 pm as stated by the complainant in his State vs. Moni Kumar & Anr. FIR No.498/08 PS Seelampur Page No. 15 / 27 deposition. PW1 in his deposition though has not mentioned any details regarding the date/month/year of the incident he has stated that "it was around three years back". His deposition was made in on 17.07.2013. As per his deposition the incident should have taken place some where in the year 2010, however, the incident pertains to 07.12.2008. This again affects the credibility of his deposition.
20. Moreover, the reliability of the deposition of PW1/complainant suffers majorly as in his cross-examination he has stated that he was explained by the police officials regarding the manner in which he had to testify in Court. Therefore, any deposition of the complainant loses the reliability as whatever has been deposed by him has been deposed at the behest of the police officials. Even though to a Court question he has stated that he has told the truth, major improvements have been found in his statement to the police under section 161 Cr. PC and his deposition before the Court.
21. Accordingly, in the present case, no ingredients for offence punishable under section 420 IPC is made by the prosecution. Hence, it cannot be stated that the accused persons have committed offence punishable under section 420 IPC.
22. The prosecution has also charged the accused persons for offence under section 394/34 IPC. Section 394 IPC deals with State vs. Moni Kumar & Anr. FIR No.498/08 PS Seelampur Page No. 16 / 27 voluntarily causing hurt in committing robbery and it reads as follows:
"394. Voluntarily causing hurt in committing robbery.--
If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
23. The offence of robbery has been defined in section 390 IPC which reads as follows:
"390. Robbery.--In all robbery there is either theft or extortion. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."
24. The genus of the offence punsihable under S. 392 IPC is theft as defined in S. 378 IPC. For proving the offence defined under section 378 IPC. The following ingredients have to be proved by the prosecution:
State vs. Moni Kumar & Anr. FIR No.498/08 PS Seelampur Page No. 17 / 27(i) dishonest intention of the accused,
(ii) displacement of the moveable property (out of the possession of complainant),
(iii) without the consent of the complainant/victim,
25. In the present case, PW1/complainant has deposed that about three years back at about 10:00 pm when he was carrying four cartons of DVD players on his theli rickshaw, five accused persons came in an auto and one of them asked him to way of New Delhi. Accused Monu alongwith another boy dragged him inside the auto rickshaw and two of them fled from the spot alongwith his theli rickshaw. The accused persons started the auto rickshaw, he started shouting and a nearby police official came and caught hold the accused Monu. Two boys managed to flee the spot. In his cross-examination PW1 has stated that in the morning at about 07:00 am he was directed to call the owner of DVD player and he was directed to produce him next day. No owner of the DVD players have been made a prosecution witness. It has also not been established by the prosecution that the alleged theli rickshaw that was stolen belongs to the complainant.
26. As discussed above, the testimony of the sole public witness/complainant is not reliable. In the circumstances, it cannot be said that the prosecution has proved the offence as defined in the section 378 IPC.
State vs. Moni Kumar & Anr. FIR No.498/08 PS Seelampur Page No. 18 / 2727. During trial, process under section 82 Cr. PC was issued against accused Bobby by this Court vide order dated 25.09.2018 and he was declared a proclaimed offender on 25.07.2019. He was apprehended on 12.09.2020 and supplementary chargesheet under section 174A IPC was filed against accused Bobby. Copy of the same supplied to him and charge under section 174A IPC was framed against accused Bobby to which he pleaded not guilt and claimed trial.
28. Section 174A of the Penal Code, 1860 reads as under:
"174A. 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."
29. 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 174A 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 State vs. Moni Kumar & Anr. FIR No.498/08 PS Seelampur Page No. 19 / 27 appear, the punishment provided is imprisonment upto seven years and payment of fine.
30. An argument was raised by Ld. Counsel for accused that Section 195 Cr.P.C. clearly barred the Court from taking cognizance of any offences punishable under Sections 172 to 188 IPC. Provision of Section 195 Cr.P.C. is mandatory and the Court has no jurisdiction to take cognizance of any offence mentioned therein unless there is a complaint in writing by the public servant.
31. In Maneesh Goomer vs. State, 2012(1)JCC 465 (Crl.M.C. 4208/2011) decided on 04.01.2012 Hon'ble Delhi High Court has categorically held that Section 195 Cr.P.C. has not been correspondingly amended so as to include Section 174A IPC which was brought into the Penal Code with effect from 23.06.2006.
32. Section 174A IPC was introduced in the Code with effect from 23.06.2006 and Section 195A Cr.P.C. which provides that no Court shall take cognizance of offences punishable under Sections 172 to 188 IPC (Both inclusive) or of the abatement of committing the offence, except by complaint in writing by the public servant or of some other public servant to whom he is administratively subordinate, was a part of the Criminal Procedure Code since 1974 when the new Criminal Procedure Code came into force. No corresponding amendment was brought into Section 195 (1) (a) in the year 2006 when a new offence, by adding Section 174A was introduced in Indian Penal State vs. Moni Kumar & Anr. FIR No.498/08 PS Seelampur Page No. 20 / 27 Code. By no stretch of imagination, it can be inferred or presumed that Section 174A would be deemed to be included in between Section 172 to Section 188 IPC.
33. The Court in Maneesh Goomer (supra) held :
"....it may be noted that Section 174-A IPC was introduced in the Code with effect from 23rd June, 2006. Section 195(1) Cr.P.C. provides that no Court shall take cognizance of offences punishable under Section 172 to 188 (both inclusive) of the IPC or of the abatement, or attempt to commit the said offences, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Section 195 Cr.P.C. has not been correspondingly amended so as to include Section 174-A IPC which was brought into the Penal Code with effect from 23rd June, 2006. The Legislature was conscious of this fact and that is why though all other offences under chapter X of the Criminal Procedure Code are non cognizable, offence punishable under Section 174-A IPC is cognizable. Thus the Police officer on a complaint under Section 174-A IPC is competent to register FIR and after investigation thereon file a charge-sheet before the Court of Magistrate who can take cognizance thereon. Thus, I find no merit in the contention raised by the Learned Counsel for the Petitioner. "
34. In Moti Singh Sikarwar vs. State of U.P. and Ors, MANU/UP/2481/2016 , decided on 29.11.2016 by the High Court of Allahabad it has been observed that bar created by Section 195(1) (a) Cr.P.C. would not apply to the provisions of section 174AIPC. It held:
"21. The reasons are as follows:
"1. It is to be noted that all the offences under Section 172 to 188 I.P.C. (both inclusive) are non- cognizable and bailable, whereas Section 174-A State vs. Moni Kumar & Anr. FIR No.498/08 PS Seelampur Page No. 21 / 27 I.P.C. which provides for punishment upto 7 years imprisonment and fine, in case the offender fails to appear at the specified place and the specified time, as required by the proclamation published under Section 82 Cr.P.C., is cognizable and non- bailable. The legislature was conscious of this fact and that is why while introducing Section 174-A in the I.P.C. in the year 2006, it made no corresponding amendment in Section 195(1)(a) Cr.P.C. so as to include Section 174-A I.P.C. in between all the non- cognizable offences and bailable from Sections 172 to 188 I.P.C.
2. It cannot be said that due to inadvertence, the corresponding amendment in Section 195(1)(a) Cr.P.C., was left to be made by the legislature. It is noteworthy that Section 195 has been correspondingly amended in the year 2006, by amending the exception clause of it. Had there been any intention on the part of the legislature to include Section 174-A I.P.C. in Section 195(1)(a) Cr.P.C. it would have definitely correspondingly amended Section 195(1)(a) Cr.P.C. also.
3.Section 154 of Code of Criminal Procedure provides for information in cognizable cases and the concept of "locus standi" has been completely washed off by this section, as any person can set the law into motion, in case any cognizable offence is noticed by him, by registering a first information report. The public interest demands that criminal justice should be swift and sure and the court should not let the guilty scot free only on the basis of mere some technicalities. Section 460 Cr.P.C. is also based on the same principle.
4. The basic principle of law is that one, who seeks equity should do equity. In other words the persons, who seeks equitable reliefs, should come before the court with clean hands. The accused has no right to choose the mode by which he is to be prosecuted specially in the circumstances when he has failed to comply with the orders of the court and is prolonging the matter by filing one case after another.
5. The Hon'ble Delhi High Court in Maneesh Goomer's case (supra) has held that Section 195 Cr.P.C. has not been correspondingly amended so as to include section 174-A I.P.C., which was brought into the Penal Code with effect from 23rd State vs. Moni Kumar & Anr. FIR No.498/08 PS Seelampur Page No. 22 / 27 June 2006 and there is no reason to deviate with the view of Hon'ble Delhi High Court."
22. In view of the above discussion, this court is of the considered view that the bar of Section 195 (1)
(a) Cr.P.C. is not applicable to the present case and a private person is competent to lodge a complaint or even an F.I.R. under Section 174-A I.P.C."
35. In A. Krishna Reddy v. CBI 2017 SCC OnLine Del 7266 : (2017) 3 DLT (Cri) 391 , Hon'ble Delhi High Court in para 29 has observed that:
"No separate investigation is required to be conducted as the orders of the Court declaring the petitioner to be Proclaimed Offender are part of the record in the main challan. Object and purpose to incorporate Section 174A IPC primarily is to ensure that the accused / suspects do not scuttle investigation or trial by remaining absconding without valid or sufficient reasons. In such a scenario, when the suspects or accused abscond, possibility of valuable evidence to be washed away cannot be ruled out."
36. In State vs. Proclaimed Offenders of Delhi and others, Crl.No.2021/2010, decided on 11.08.2010 , Hon'ble Delhi High Court has held that supplementary charge-sheet under Section 174A IPC can be filed or the offence under Section 174A IPC can be added in the main charge-sheet. Apparently, no fresh investigation was required to be carried out.
37. In Sunil Tyagi vs. Govt. of NCT of Delhi and Another CRL.M.C. 4438/2013 & CRL.M.A. 15894/2013 , Hon'ble Delhi High Court has observed that:
"21. The legislature by enacting Section 174A IPC has further penalised the non-appearance of a proclaimed offender. The very basis of fair trial is threatened if an accused/suspect is declared as a State vs. Moni Kumar & Anr. FIR No.498/08 PS Seelampur Page No. 23 / 27 proclaimed offender without proper service, or if proclamations and non-bailable warrants are issued in a routine manner.
22. The legislature seeing the growing number of Proclaimed offenders inserted Section 174A IPC by way of Clause 44 of the CrPC. (Amendment) Act, 2005 (25 of 2005) which was brought into force w.e.f. 23rd June, 2006 vide Notification No. SO 923(E) dated 21st June, 2006, hoping that it would be a deterrent for persons fleeing from justice.
23. Section 174A IPC penalizes the non- appearance of a person as required by a proclamation published under. In case of non- appearance consequent to a proclamation under Section 82(1) of the Code for a term up to three years/fine/both and in case of a declaration under Section 82(4) of the Code (in respect of offences under Sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the IPC for a term upto seven years with fine.
Since non-appearance of accused in response to the proclamation under Section 82 CrPC has been made a substantive offence, the provisions of Section 174A IPC are required to be invoked against absconding accused. When the accused fails to appear before the court in response to the proclamation issued under Section 82(1) CrPC, within the period of 30 days from the date of proclamation, or fails to appear at the specified place and time required by the proclamation issued under Section 82(4) CrPC, he is punishable with imprisonment for a term which may extend to three years or with fine or with both and imprisonment for a term which may extend to seven years or with fine or both, respectively."
38. In the present case, PW5/SI Bharti Kumari recorded the statement of process server ASI Rajesh Kumar under section 161 Cr. PC Mark R and filed the supplementary chargesheet before this Court. Process under section 82 Cr. PC was issued against the accused Bobby vide order dated 25.09.2018, despite service he failed to appear before this Court within 30 days as directed by the section itself. After recording the statement of process State vs. Moni Kumar & Anr. FIR No.498/08 PS Seelampur Page No. 24 / 27 server the Court ultimately declared him a proclaimed offender on 26.07.2019.
39. Thus, in view of the above discussion, accused Bobby is found guilty for offence punishable under section 174A IPC and resultantly, he stands convicted in the present case. Let the convict be heard separately on quantum of sentence.
40. In a criminal trial, the burden on the prosecution is beyond reasonable doubt. The reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. In Awadhi Yadav v. State of Bihar , (1971) 3 SCC 116 at page 117, Hon'ble Supreme Court has observed that:
"Before a person can be convicted on the strength of circumstantial evidence, the circumstances in question must be satisfactorily established and the proved circumstances must bring home the offence to the accused beyond reasonable doubt. If those circumstances or some of them can be explained by any other reasonable hypothesis then the accused must have the benefit of that hypothesis. But in assessing the evidence imaginary possibilities have no place. What is to be considered are ordinary human probabilities."
41. In State of Haryana v. Bhagirath, (1999) 5 SCC 96 :
1999 SCC (Cri) 658 : 1999 SCC OnLine SC 577 at page 99 Hon'ble Supreme Court has observed that:
"But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused State vs. Moni Kumar & Anr. FIR No.498/08 PS Seelampur Page No. 25 / 27 might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused. It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression "reasonable doubt" is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge."
42. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Edn.) as follows:
"It is difficult to define the phrase 'reasonable doubt'. However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case. He says:
'It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."
43. In the treatise The Law of Criminal Evidence authored by H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus:
"The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, State vs. Moni Kumar & Anr. FIR No.498/08 PS Seelampur Page No. 26 / 27 with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt."
44. Thus, in view of the above discussion, the prosecution has not been able to establish beyond reasonable doubt the guilt of the accused persons. The requisite intention for the offence under S. 420 IPC has not been proved by the prosecution. No theft which is a sine qua non for offence punishabel under section 394 IPC has been proved by the prosecution. Therefore, accused persons Moni and Bobby are found not guilty for offences under section 394/420/34 IPC in the present case and resultantly, they stand acquitted in the present case. Accused Bobby is found guilty for offence punishable under section 174 IPC and has been convicted.
45. Accused persons are directed furnish bail bond and surety bond in the sum of ₹10,000/- each u/s 437A. Same is accepted and they are directed to be present before the Ld. Appellate Court as and when directed. Digitally signed by VIPUL VIPUL SANDWAR SANDWAR Date: 2024.01.12 16:03:45 +05'30' Announced in the open (VIPUL SANDWAR) Court on 12 th January, 2024 MM-02/NE/KKD COURTS State vs. Moni Kumar & Anr. FIR No.498/08 PS Seelampur Page No. 27 / 27