Delhi District Court
Vinod @ Pepsi @ Bada vs The State on 25 August, 2015
IN THE COURT OF SH LOKESH KUMAR SHARMA ADDITIONAL SESSIONS
JUDGE04 & SPECIAL JUDGE SOUTH EAST
SAKET COURTS: NEW DELHI
Criminal Appeal No. 43 of 2015
ID No. 02406R0073622015
Vinod @ Pepsi @ Bada
S/o Sh. Gurdyal
R/o S80, 2nd Floor, DDA Flats
Vasant Enclave, New Delhi ......Appellant
Versus
The State .......Respondent
FIR No. 407/07
PS: Sarita Vihar
U/s: 392/34/174A IPC
Instituted on : 04.03.2015
Argued on : 25.08.2015
Decided on : 25.08.2015
JUDGMENT
1 Feeling aggrieved from the impugned judgment dated 27.01.2015 and consequent order on sentence dated 05.02.2015, passed by the court of Sh. Arvind Bansal Ld. MM05,SED, Saket Courts, New Delhi, in case FIR No. 407/07 PS Sarita Vihar, for convicting the appellant for an offence under section 174A IPC and sentencing him to undergo Simple Imprisonment for the period already undergone by him alongwith payment of fine of Rs.5000/, in default to undergo further imprisonment for 15 days, appellant has preferred the present appeal. 2 Brief facts that had given rise to filing of the present appeal are succinctly given as under: Initially a FIR for commission of offence under sections 392/34 IPC was registered vide FIR No. 407/2007 at PS Sarita Vihar on the complaint of Sh. Chashamveer Malik S/o Satpal regarding robbery of Rs. 3,64,000/ cash and one CA No. 43 of 2015 1/4 motor cycle make Hero Honda Glamour having registration number DL3SBE2358 committed upon him on 29.5.2007.
During investigation of the said case, IO came to know about the alleged disclosure statement made by one Aftab @ Munna who was arrested by the officials of PS Nizamuddin in FIR No. 230/2007 u/s 392/397/411/34 IPC and in his disclosure made before the police officials, the said Aftab had disclosed about his involvement in the present case and motorcycle was also recovered at his instance from the parking of Kalkaji Temple. During his investigation in the present case, he had disclosed the name of present appellant alongwith coaccused Vinod @ Pepsi @ Chhota S/o Ram Chander.
Since the accused were not traceable, hence, after obtaining coercive process and proclamation under section 82 CrPC, the accused persons were got declared proclaimed offenders vide order dated 21.8.2019 passed by Sh. Munish Markan, the then Ld. MM, Patiala House Courts, New Delhi.
Accused persons were later on arrested and were produced before the court and they had duly contested the matter on merits and vide order dated 24.7.2012 passed by the court of Ms. Colette Rashmi Kujur, the then Ld. MM06, SED, Saket Courts, New Delhi, the Ld. MM was pleased to discharge the appellant alongwith coaccused for the offence under sections 392/34 IPC and the charge for commission of offence under section 174A IPC alone was ordered to be framed against the appellant and coaccused vide her even day's order and the charge for the aforesaid offence was framed.
In order to prove its allegations against the appellant, the prosecution CA No. 43 of 2015 2/4 had examined 4 witnesses in all, who all had deposed in a stereo typed manner regarding execution of process and declaration of the appellant as Proclaimed Offender. After appreciating the evidence available on record, the Ld. MM was pleased to convict the appellant and sentence him as aforesaid vide impugned judgment and order on sentence, challenged in the present appeal before this Court.
3 The appellant has challenged the aforesaid impugned judgment of conviction and consequent order on sentence on the following grounds: That the impugned judgment and order on sentence as passed by the Ld. MM were bad in law and contrary to the facts and material available on record and were based on conjectures and surmises without application of judicial mind and the Ld. MM had committed gross illegality in shifting the onus upon the appellant to prove his innocence.
It has been stated further that since the appellant had never been arrested in this case and had never been served with any of the process or notice, the proceedings conducted qua him in the present matter in hands were illegal ab initio and hence were liable to be rejected in totality. 4 I have heard Sh. G B Singh, Ld. Counsel for the appellant as well as Sh. Inder Kumar, Ld. Addl. PP for the respondent/state. 5 After perusing the Ld. Trial Court record, I have no hesitation in holding that once the Court of Ld. MM was convinced about the conclusion drawn by it that there was no material in the form of any documentary as well as oral evidence, related to commission of the offence of robbery for which the appellant CA No. 43 of 2015 3/4 was ultimately discharged vide the aforesaid order dated 24.07.2012, then, the entire process and procedure for issuance of process against the appellant had also fallen under scanner and scrutiny.
6 Further, once the Ld. MM was convinced that there was not even an iota of evidence about the commission of the said offence under section 392/34 IPC qua the appellant, then, it was not justified on his part to have issued directions for issuance of summons, warrants and ultimately the proclamation under section 82 CrPC and hence the proclamation issued against the appellant itself was perse illegal and uncalled for.
7 Therefore, I have no hesitation in holding that the impugned judgment of conviction for the offence under section 174A IPC, as passed against the appellant and the consequent order on sentence are contrary to the facts and law and accordingly the impugned judgment of conviction and consequent order on sentence are hereby set aside and the appellant is acquitted of the allegations for the offence under section 174A IPC. The bail bond furnished by the appellant before the Ld. Trial Court stands cancelled.
8 The fine deposited by the appellant with the Ld. Trial Court be refunded to the appellant by way of issuing voucher.
9 TCR be sent back with a copy of judgment.
10 Appeal file be consigned to record room after compliance of all other necessary formalities in this regard.
Announced in the
open court on (LOKESH KUMAR SHARMA)
25th
August, 2015 Additional Sessions Judge04 & Spl. Judge (NDPS)
South East, New Delhi
CA No. 43 of 2015 4/4