Delhi District Court
State vs . (1) Siya Ram, on 19 December, 2018
IN THE COURT OF MS. SMITA GARG, ADDITIONAL SESSIONS JUDGE FAST TRACK COURT, WEST DISTRICT, TIS HAZARI COURTS, DELHI. Sessions Case No.57645/2016 CNR No.DLWT010005262011 FIR No. : 29/2011 Under Sections : 186/353/307/34/174A IPC & 25/27 Arms Act Police Station : Crime Branch State Vs. (1) Siya Ram, S/o Sh. Ram Ashray, R/o Village Girwa, P.S. Pegampur, District Banda, U.P. (2) Sunil @ Teja (declared Absconder on 09.02.2018), S/o Sh. Subhramanyam, R/o House No.379, RBlock, Raghubir Nagar, Delhi. Date of receiving the case upon committal : 19.07.2014 Date on which judgment was reserved : 13.11.2018 Date of pronouncement of judgment : 19.12.2018 JUDGMENT:
1. Accused Siya Ram and Sunil @ Teja were chargesheeted for the commission of offences punishable under Section 186/353/307/34 IPC and Section 25/27 Arms Act on the FIR No.29/2011 State Vs. Siya Ram & Anr. Page No.1/27 allegation that on 08.02.2011 at about 08:20 pm in front of Home Guard Office, Rajouri Garden, Delhi, they both, in furtherance of their common intention, obstructed a police party in discharge of its official duty, used criminal force and fired with countrymade pistols in an attempt to kill the members of the said police party.
2. Case of the prosecution: 2.1. The case of the prosecution, as can be culled out from the chargesheet, is that on 08.02.2011 at about 06:20 pm, H. Ct. Suresh Kumar came to the office of Crime Branch, Nehru Place, Delhi and shared secret information with SI Sumer Singh that Sunil @ Teja, who was involved in case of murder of one Mukesh Shashi and had jumped bail, would go to Raghubir Nagar around 08:00/08:30 pm in Indica car no.DL2CS0044 with one of his associates armed with pistol to kill son of Mukesh Shashi and that they could be apprehended if a trap is laid near Shivaji College. H. Ct. Suresh produced the secret informer before SI Sumer Singh, who informed Insp. Sajjan Singh about the secret information. After being satisfied with the information, Insp. Sajjan Singh produced the secret informer before ACP, who directed for conducting a raid under the FIR No.29/2011 State Vs. Siya Ram & Anr. Page No.2/27 supervision of Insp. Sajjan Singh. SI Sumer Singh constituted a raiding party comprising of H. Ct. Suresh Kumar, H. Ct. Sandeep, H. Ct. Deepak, Ct. Deepak, Ct. Pankaj, Ct. Anil and Ct. Ajeet. Out of all the members of the party, only SI Sumer Singh and H. Ct. Suresh Kumar were in police uniform. The party left the office with the secret informer at about 06:45 pm in govt. gypsy no.DL1CJ4414 driven by Ct. Rajpal and one private Santro car after reducing the secret information into writing on DD No.14.
2.2 At about 07:40 pm, the raiding party reached Rajouri Garden where SI Sumer Singh shared the secret information with 7/8 passersbys and requested them to join the raiding party but none of them agreed and went away without disclosing their names and other details. Without wasting further time, the members of the raiding party were split into two teams. One team comprising of Insp. Sajjan Singh, H. Ct. Suresh, H. Ct. Sandeep, Ct. Anil, Ct. Manoj, Ct. Pankaj and the driver took position in the govt. gypsy on the road in front of office of Home Guard and the second team comprising of SI Sumer Singh, Ct. Ajit, Ct. Deepak, secret informer and driver H. Ct. Deepak took position in the Santro car at the corner of Shivaji College. 2.3 At about 08:20 pm, Indica car having registration No.DL2CS FIR No.29/2011 State Vs. Siya Ram & Anr. Page No.3/27 0044 came from the side of ring road and upon the identification of the secret informer, SI Sumer Singh signalled the car to stop. Instead of stopping the car, the driver accelerated the speed. SI Sumer Singh and other police officials chased the car in the Santro car. When the gypsy obstructed the way of Indica car from front, the driver of Indica car took a uturn but due to high speed, the car struck against the pavement and stopped. Two persons alighted the car and tried to escape from the spot. When SI Sumer Singh and H. Ct. Suresh called out to them to surrender, they fired with kattas at H. Ct. Suresh and other members of raiding team. H. Ct. Suresh also fired one round in air from his service pistol. Before the said two persons could fire the second round, H. Ct. Suresh overpowered the driver of the Indica car and Ct. Anil overpowered the other man. Police officials also managed to snatch the pistols from them. 2.4 Upon interrogation, their names were revealed as Sunil @ Teja and Siya Ram. H. Ct. Suresh and Ct. Anil produced both the accused persons and the kattas recovered from them to SI Sumer Singh. From the formal search of accused Sunil @ Teja, two live cartridges were recovered from the back pocket of the lower of his track suit. Ct. Anil conducted the formal search of the accused Siya Ram and two live cartridges were recovered from FIR No.29/2011 State Vs. Siya Ram & Anr. Page No.4/27 the front pocket of his pant. SI Sumer Singh took measurement of both the country made pistols, live cartridges and the empty shells recovered from the accused persons. After preparing their sketch, he seized the recovered arms after sealing the parcels with the seal of SS. SI Sumer Singh also filled the FSL Form at the spot. H. Ct. Suresh Kumar also produced the empty cartridge, which was fired by him from his service pistol, to SI Sumer Singh. SI Sumer Singh prepared the sketch of the said cartridge as well and seized it after sealing the parcel with the seal of SS. After use, he handed over the seal to Ct. Anil and also seized Indica car used by the accused persons. Upon receiving the information about the incident, ASI Rambir Singh, Incharge PCR Van P25, West Zone and ASI Dharampal from PS Rajouri Garden also reached the spot. SI Sumer Singh prepared the rukka and handed over the same to Ct. Anil for getting the FIR registered under Section 186/353/307/34 IPC & 25/27 Arms Act against both the accused persons at PS Crime Branch.
2.5 After the registration of FIR, the investigation of the case was assigned to SI Davinder Kumar, who had already reached the spot. SI Sumer Kumar handed over the seized articles as well as the custody of both the accused persons to SI Davinder Kumar.
FIR No.29/2011 State Vs. Siya Ram & Anr. Page No.5/27SI Davinder Kumar interrogated both the accused persons and prepared the site plan of the spot at the instance of SI Sumer Singh. Both the accused persons were arrested and their disclosure statements were recorded. SI Davinder Kumar deposited the parcels containing the case property/exhibits in Malkhana. Both the accused persons were produced in court from where they were sent to judicial custody. 2.6 During the course of investigation, SI Davinder Kumar sent the case property to FSL Rohini for examination. Complaint under Section 195 Cr. P. C. was filed in court. Sanction under Section 39 Arms Act was obtained. FSL result was collected, which was found to be positive. However, despite best efforts, the source of weapons/arms could not be traced. Previous involvement sheet of the accused persons were collected. Statements of witnesses were recorded. After the completion of investigation, charge sheet was filed against both the accused persons in court on 09.04.2011.
3. Charge: On 03.08.2011, charges for the commission of offences punishable under Sections 186/353/307/34 IPC and under Sections 25/27 Arms Act were framed against both the accused FIR No.29/2011 State Vs. Siya Ram & Anr. Page No.6/27 persons to which they pleaded not guilty and claimed trial. During the course of trial, when the matter was at the stage of defence evidence, both the accused persons absconded and proclamations under Section 82 Cr. P. C. were issued against them. Accused Sunil @ Teja and Siya Ram were declared as absconders on 03.05.2016 and 09.09.2016 respectively. They were arrested and supplementary charge sheet for the offence under Section 174A IPC were then filed against them on 09.02.2017 and 13.04.2017 respectively. Hence, additional charges for the offence under Section 174A IPC were also framed against them on 22.05.2017. Both the accused persons pleaded not guilty to the said charge as well.
4. Prosecution evidence: In support of its case, the prosecution has examined 18 witnesses in all.
4.1. PW1 ASI Dharampal deposed that on receipt of DD No.40A on 08.02.2011 at about 08:30 pm, he went to the spot in front of office of Home Guard near Shivaji College where Insp. Sajjan Singh and SI Sumer Singh alongwith their staff and ASI Rambir, Incharge PCR Van Power 25 met him and found that both accused persons were in their custody. Insp. Sajjan Singh FIR No.29/2011 State Vs. Siya Ram & Anr. Page No.7/27 and SI Sumer Singh told him about the facts leading to the arrest of the accused persons. One Indica car bearing No.DL2CS 0044 was also lying at the spot.
4.2. PW2 H. Ct. Jag Narain is the MHC (M) of PS Crime Branch.
He proved the relevant entry of Register No.19 vide which three sealed pullandas containing the case properties and Indica car were deposited in Malkhana on 09.02.2011 as Ex.PW2/A, relevant entry of Register no.19 vide which two pullandas were sent to FSL on 15.02.2011 as Ex.PW2/B, relevant entry vide which is said parcels were redeposited in Malkhana on 05.04.2011 as Ex.PW2/C and the photocopy of the road certificate vide which the parcels containing the case property were sent to FSL as Ex.PW2/D. 4.3. PW3 H. Ct. Kirti Kumar had taken the case property to FSL. He deposed that on 15.02.2011, he collected two sealed parcels from the MHC (M) PS Crime Branch vide RC No.68/21 and deposited the said parcels in the office of FSL Rohini and that after depositing the same, he handed over the acknowledgment and RC to the MHC (M).
4.4 PW4 Ct. Anil was one of the members of raiding team and had apprehended the accused Siya Ram. He proved the sketch of country made pistol, two live cartridges and one empty cartridge FIR No.29/2011 State Vs. Siya Ram & Anr. Page No.8/27 recovered from the accused Siya Ram as ExPW4/A, seizure memo of the pistol and cartridges as Ex.PW4/B, sketch of empty cartridge fired by H. Ct. Suresh from his service pistol as Ex.PW4/C, seizure memo of empty cartridge as Ex.PW4/D, seizure memo of Indica car as Ex.PW4/E, arrest memo of accused Siya Ram as Ex.PW4/F and personal search memo of accused Siya Ram as Ex.PW4/G. He also identified the country made pistol and cartridges recovered from accused Siya Ram as Ex.P1 and Ex.P2 (Colly) and the country made pistol and cartridges recovered from the accused Sunil @ Teja as Ex.P3 and Ex.P4 (Colly).
4.5 PW5 H. Ct. Suresh was also the member of raiding team. He proved the sketch of country made pistol and cartridges recovered from the accused Sunil as Ex.PW5/A, seizure memo of the pistol and cartridges as Ex.PW5/B, sketch and seizure memo of the cartridge fired by him as Ex.PW4/C and Ex.PW4/D respectively, seizure memo of Indica car as Ex.PW4/E, arrest memo of accused Sunil @ Teja as Ex.PW5/C, his personal search memo as Ex.PW5/D and disclosure statement of accused Sunil @ Teja as Ex.PW5/E. He also identified the case properties.
4.6 PW6 ASI Ashok Kumar is the Duty Officer. He proved the copy FIR No.29/2011 State Vs. Siya Ram & Anr. Page No.9/27 of the FIR as Ex. PW6/A and the endorsement made by him on the rukka as Ex. PW6/B. 4.7 PW7 ASI Rambir Singh is the Incharge of PCR Power 25, West Zone. He deposed that on 08.02.2011, upon receipt of message from police control room regarding apprehension of two accused persons near Home Guard Office, Rajouri Garden, he reached the spot alongwith staff in PCR Van and met Insp. Sajjan Singh and SI Sumer Singh, who were in police uniform, and other members of the raiding party, who were in civil clothes. He deposed that two accused persons whose names were revealed as Sunil @ Teja and Siya Ram were in their custody. In the mean time, ASI Dharampal PS Rajouri Garden also reached at the spot.
4.8 PW8 ACP Bir Singh deposed that on 06.04.2011, SI Devender Singh briefed him about the facts of the case and also produced the case file before him and that after going through the file, he got prepared the complaint under Section 195 Cr. P. C. which was filed in the court. He proved the said complaint as Ex.PW8/A. 4.9 PW9 Sh. V. R. Anand, Assistant Director (Ballistic), FSL had examined the country made pistols and the cartridges on 15.02.2011. He proved the report prepared by him in respect FIR No.29/2011 State Vs. Siya Ram & Anr. Page No.10/27 thereof as Ex.PW9/A. 4.10 PW10 Insp. Sajjan Singh Yadav was the Incharge of the raiding party.
4.11 PW11 DCP Sh. Sanjay Bhatia deposed that on 05.04.2011, he accorded sanction under Section 39 Arms Act for the prosecution of the accused Siya Ram and Sunil @ Teja. He proved the sanction order as Ex.PW11/A. 4.12 PW12 SI Sumer Singh was also the member of raiding party.
Besides the other documents proved by PW4 Ct. Anil and PW5 H. Ct. Suresh, he proved the rukka prepared by him as Ex.PW12/A and site plan prepared at his instance by SI Davinder Singh as Ex.PW12/B. 4.13 PW13 SI Davinder Kumar is the IO of the case. He proved the DD No.15 pursuant to which he reached the spot as Ex.PW13/A, site plan of the spot as Ex.PW12/B, arrest memo and personal search memo of accused Sunil @ Teja and Siya Ram as Ex.PW4/F, Ex.PW5/C, Ex.PW4/G and Ex.PW5/D respectively, disclosure statements of accused Sunil Teja and Siya Ram recorded by him as Ex.PW13/B and Ex.PW5/E, search slip of accused Sunil @ Teja collected by him from CRO as Ex.PW13/C, copy of log book of PCR van on which ASI Rambir was on duty as Mark A, copy of DD No.14 as FIR No.29/2011 State Vs. Siya Ram & Anr. Page No.11/27 Ex.PW13/D, copy of DD No.105B as Ex.PW13/E and copy of DD No.40A dated 08.02.2011 as Ex.PW13/F respectively. He deposed that the supplementary charge sheets against accused Sunil @ Teja and Siya Ram for the offence under Section 174A IPC were also filed by him.
4.14 PW14 ASI Surender, PW15 ASI Anuj Tomar and PW16 Ct.
Rahul deposed regarding the apprehension and arrest of the accused Sunil @ Teja on 18.08.2017 in FIR No.953/16 under Section 392/394/397/34 IPC PS NDRS pursuant to which he was rearrested in this case on 25.01.2017 (i.e. after being declared an absconder on 03.05.2016).
4.15 PW17 H. Ct. Anil Kumar is the witness in the supplementary charge sheet under Section 174A IPC against the accused Siya Ram. He deposed that on 10.03.2017 he alongwith ASI Bhoop Singh was on patrolling duty in the area of PS Badarpur and when they reached at Jaitpur More, Badarpur, he received a secret information regarding the presence of a criminal, who is a proclaimed offender, near Wine Shop, Mathura Road, Badarpur. He disclosed the information to ASI Bhoop Singh and on the direction of SHO PS Badarpur to take immediate necessary action, they reached near the Wine Shop, Badarpur, Mathura Road near Jaitpur More and on the pointing of secret informer, FIR No.29/2011 State Vs. Siya Ram & Anr. Page No.12/27 apprehended the accused Siya Ram at about 02:30 pm. Upon interrogation, the accused disclosed about the robbery committed by him at New Delhi Railway Station as well as his involvement in this case. He verified regarding PO proceedings of the accused in the present case and arrested him under Section 41.1 (C) Cr. P. C. He proved the arrest memo of accused as Ex.PW17/A, personal search memo as Ex.PW17/B, kalandara under Section 41.1 (C) Cr. P. C. as Ex.PW17/C, copy of DD No.23A registered at PS Badarpur regarding the arrest of the accused as Ex.PW17/D and copy of the order collected by him regarding declaration of the accused as PO as Ex.PW17/E. 4.16 PW18 ASI Bhoop Singh also deposed on the same lines as that of PW17 H. Ct. Anil.
5. Statement of the accused persons under Section 313 Cr.P.C.: Statements of the accused persons were recorded on 06.01.2015 wherein all the incriminating evidence and documents on record were put to them to which their stand was of general denial. They claimed that they were innocent and had been falsely implicated in the case. Both of them chose to lead evidence in their defence.
FIR No.29/2011 State Vs. Siya Ram & Anr. Page No.13/276. Defence Evidence.
The accused persons summoned H. Ct. Girish Bhushan from the office of Commissioner of Police, ITO, Delhi to produce the complaint diary register of the relevant year to prove the receipt of complaints dated 04.02.2011 and 07.02.2011 from Smt. Meena (i.e. the mother of the accused Sunil @ Teja) as well as the original complaints preserved pursuant to the order dated 18.07.2011 of the court. He was examined as DW1. He proved the complaint daily register containing entries at sl. no.923 and 1010 vide which the complaints dated 04.02.2011 & 07.02.2011 were received in the office from Smt. Meena as Ex.DW1/A (Colly) and the copies of the complaints preserved as Mark A and Mark B.
7. When the matter was still at the stage of defence evidence, supplementary chargesheets under Section 174A IPC were filed against the accused persons by the police. After framing of additional charges for the offence under Section 174A IPC against the accused persons, the matter was again fixed for prosecution evidence. Prosecution examined five witnesses (i.e. PW14 ASI Surender Singh, PW15 ASI Anuj Tomar, PW16 FIR No.29/2011 State Vs. Siya Ram & Anr. Page No.14/27 Ct. Rahul, PW17 H. Ct. Anil Kumar and PW18 ASI Bhoop Singh). When matter was at the stage of recording of additional statements of the accused persons under Section 313 Cr. P. C., accused Sunil @ Teja again absconded. He was declared absonder on 09.02.2018.
Additional statement under Section 313 Cr. P. C. of the accused Siya Ram was recorded on 06.10.2017. He chose not to lead any further evidence in his defence.
8. I have heard the Ld. APP for state and the Ld. Legal Aid counsel for the accused Siya Ram. Record has also been perused.
9. The counsel for the accused submitted that the accused is innocent and has been falsely implicated in the case by the police. He stated that neither the incident in question had taken place nor any pistol or cartridges were recovered from the accused and that the alleged recovery of weapon has been planted upon the accused by the police. He submitted that the accused Siya Ram alongwith the coaccused Sunil @ Teja were lifted by the police from the house of the coaccused Sunil @ Teja in the night of 01.02.2011 around 11:00 pm and since the FIR No.29/2011 State Vs. Siya Ram & Anr. Page No.15/27 mother of the coaccused had lodged complaints on 04.02.2011 and 07.02.2011 in respect of illegal detention of the accused persons, the police officials managed to stage the incident in question and arrested the accused persons on 09.02.2011 on the basis of false and concocted story. He argued that the falsity of the case of the prosecution is evident from the fact that there are material contradictions in the testimonies of the prosecution witness and no independent public witness was joined by the police at any stage of the investigation. On the above submissions, acquittal of the accused Siya Ram has been sought.
10. On the other hand, Addl. PP for the State has argued that the case of the prosecution has been duly proved by the prosecution witnesses. He contended that the testimony of the police officials can not be held to be vulnerable and unreliable merely because no public witnesses were joined in the investigation. He submitted that the public at large ordinarily shows disinclination to come forward to become witnesses and in case the depositions of police officials are found to be trustworthy, the court should accept the same.
11. It is trite that mere failure to associate public witnesses during FIR No.29/2011 State Vs. Siya Ram & Anr. Page No.16/27 the course of investigation is not fatal to the case of the prosecution. However, in such a case, the burden lies heavily on the prosecution to prove two things. Firstly, that the evidence of the police witnesses does not suffer from any infirmity and secondly, that genuine and sincere efforts were made by the investigating officer to join independent persons in the proceedings. Upon testing the evidence produced on record on the above touchstones, it is found that the prosecution has failed to satisfy both the requirements.
12. It is the case of the prosecution that on 08.02.2011, a secret information was received regarding the movement of the co accused Sunil @ Teja, who was involved in the murder case of one Mukesh Shashi and had jumped bail in the said case, and that a police party was therefore constituted to nab him. However, neither the details of the said case nor the copy of FIR or any other document with regard to the said case has been produced on record to substantiate the same. The socalled secret information was shared by SI Sumer Singh and Insp. Sajjan Singh with the ACP Bir Singh and after being satisfied with the information, ACP Bir Singh had directed to constitute a raiding party under the supervision of FIR No.29/2011 State Vs. Siya Ram & Anr. Page No.17/27 Insp. Sajjan Singh. ACP Bir Singh has been examined as PW8 by the prosecution. The testimony of PW8 ACP Bir Singh is completely silent on the above aspect. In his deposition, he has merely stated that on 06.04.2011, IO SI Davinder Singh had briefed him about the facts of the case and that after perusing the case file and other documents, he prepared the complaint under Section 195 CrPC and sent the same to court. The complaint under Section 195 CrPC was proved by him as Ex.PW8/A. Even in the said complaint, it is nowhere stated that the police party was constituted on 08.02.2011 on his direction.
13. As per the case of the prosecution, on the basis of the secret information, DD No.14 was recorded by SI Sumer Singh before the police party left the office of PS Crime Branch, Nehru Place, Delhi. Though SI Sumer Singh, who was examined as PW12, deposed that the DD No.14 was recorded by him but the copy of DD No.14 placed on record was not proved by him. PW13 SI Davinder Kumar, who is the IO of the case, exhibited the copy of the DD No.14 as Ex.PW13/D but the original daily diary register was not produced during the trial. Hence, neither the entry of DD register nor the contents of the said DD could be satisfactorily proved by the prosecution.
FIR No.29/2011 State Vs. Siya Ram & Anr. Page No.18/2714. The police party consisting of Insp. Sajjan Kumar, SI Sumer Singh and seven other police officials alongwith the secret informer is stated to have reached the spot in a govt. gypsy having registration No.DL1CJ4414 driven by Ct. Rajpal and one private Santro car. However, neither the registration number of the Santro car nor the name of the owner thereof was divulged by the prosecution. Insp. Sajjan Singh under whose supervision the raid was conducted has been examined as PW10 by the prosecution. In his crossexamination, he was specifically asked about the above details of the Santro car but he expressed his inability to state the same. Similarly, PW4 Ct. Anil and PW5 H. Ct. Suresh, who were infact positioned at the spot in the Santro car, also failed to tell the registration number and name of the owner of the car in their respective crossexaminations. So much so, PW5 H. Ct. Suresh could not even tell the colour of the Santro car. As far as the govt. gypsy is concerned, log book of the said car was also not produced by the prosecution to show its movement on the relevant day.
15. As per the case of the prosecution, Indica car in which the accused persons were travelling had hit the pavement on being FIR No.29/2011 State Vs. Siya Ram & Anr. Page No.19/27 chased by the police party and had got damaged. PW13 SI Davinder Kumar deposed that the said car was shifted to Malkhana from the spot with the help of a private crane which was passing through the spot. Neither the driver of the said crane has been examined as witness by the prosecution nor any receipt in respect of the payment made to him has been produced on record. In his crossexamination, PW13 SI Davinder Kumar tried to evade the above query by stating that no payment was made to the crane driver as he was going in the same direction. It is hard to believe that a private crane driver would tow a vehicle from Rajouri Garden to Nehru Place, Delhi without charging anything for the said service.
16. Apart from the above inconsistencies and the discrepancies, it is seen from the record that no independent public witness was joined at any stage of investigation by the police. As per the case of the prosecution, the secret information was received in the office of Crime Branch, Nehru Place at about 06:20 pm. The police party left the office at about 06:45 pm and after travelling through various places, reached the spot at about 07:40 pm. No explanation has been furnished for not joining any public witness in the investigation either before leaving the office of FIR No.29/2011 State Vs. Siya Ram & Anr. Page No.20/27 Crime Branch or on the way to the spot. Though it is stated in a parrot like manner by the prosecution witnesses that after reaching the spot, SI Sumer Singh has requested 7 to 8 passersby to join the raiding party but none agreed, however, the names and the details of the said passersby were very conveniently not divulged. It is a settled law that if a public witness refuses to join the investigation without reasonable cause inspite of an order in writing, he shall be deemed to have committed an offence under Section 187 IPC. It is not the case of the prosecution that any such notice in writing was served by SI Sumer Singh upon the passersby who refused to join the police party. Failure of SI Sumer Singh to do so infact shows that no sincere effort was actually made to join the public witnesses. Though it has been stated that due to shortage of time, it was not deemed appropriate to wait for the public persons to join the police party, however, even if the same is accepted to be true for the sake of arguments, there is absolutely no explanation as to why no effort was made to join a public witness after the accused persons had been apprehended and the proceedings regarding their arrest and the seizure of the allegedly recovered weapons were being conducted.
FIR No.29/2011 State Vs. Siya Ram & Anr. Page No.21/2717. All the above discrepancies in the testimonies of the prosecution witnesses coupled with the failure of the investigating agency to join any independent public witness in the investigation cast a serious doubt not only on the alleged incident dated 08.02.2011 but also the recoveries allegedly made from the accused.
18. It is the defence of the accused Siya Ram that prior to the incident in question on 08.02.2011, he and the coaccused Sunil @ Teja had been lifted from the house of coaccused Sunil @ Teja in the night of 01.02.2011 by the police officials and that in respect of their illegal detention, Smt. Meena (i.e. the mother of the coaccused Sunil @ Teja) had lodged complaints on 04.02.2011 and 07.02.2011 with the Commissioner of Police through fax. It is a matter of record that on an application preferred by Smt. Meena, the court vide its order dated 18.07.2011 had directed the office of Commissioner of Police to preserve the said communications. In his defence, the accused summoned the record so preserved from the office of Commissioner of Police and examined H. Ct. Girish Bhushan as DW1. The said witness proved the relevant entries of complaint diary register in respect of the receipt of the said complaints as Ex.DW1/A (Colly). He also placed on record the photocopies of FIR No.29/2011 State Vs. Siya Ram & Anr. Page No.22/27 the said complaints as Mark A and Mark B. Though Smt. Meena could not be examined by the accused, however, the very fact that the above record was preserved on the direction of the court on an application moved by Smt. Meena, there is no room to doubt the lodging of the said complaints by her. A reading of both the complaints shows that Smt. Meena had lodged them against one Suresh Tyagi and the police officials of Crime Branch, AntiRobbery Cell, Nehru Place, Delhi and had categorically alleged that her son namely Sunil @ Teja and the accused Siya Ram had been picked from her house in the night of 01.02.2011 at about 11:00 pm and that neither the reason for their detention was being disclosed to her nor they had been produced by the police in any court. Had the accused persons not been so lifted on 01.02.2011 and detained by the police officials, there was no occasion for Smt. Meena to lodge the complaints on 04.02.2011 and 07.02.2011. The above complaints, infact, completely demolish the case of the prosecution regarding the receiving of secret information on 08.02.2011 as well as the apprehension of the accused persons pursuant to the said information.
19. In the light of above discussion, the case of the prosecution FIR No.29/2011 State Vs. Siya Ram & Anr. Page No.23/27 against the accused Siya Ram for the commission of offence punishable under Section 186/353/307/34 IPC and under Section 25/27 Arms Act miserably fails.
20. An additional charge for the offence under Section 174A (II) IPC was also framed against the accused Siya Ram on 06.10.2017.
Section 174A of IPC, which was inserted in the Code by Section 44 (b) of the Act 25 of 2005 and came into effect on 23.06.2006, prescribes punishment for non appearance in response to a proclamation under Section 82 of CrPC. It reads as under: "174A. Non appearance in response to a proclamation under Section 82 of Act 2 of 1974Whoever fails to appear at the specified place and the specified time as required by a proclamation published under subsection (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under subsection (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to FIR No.29/2011 State Vs. Siya Ram & Anr. Page No.24/27 seven years and shall also be liable to fine." The above provision consists of two parts. While the first part prescribes punishment for a person who fails to appear at a specified place and time as required by a proclamation published under Section 82 (1) CrPC, the second part provides penalty for a person declared as proclaimed offender in accordance with Section 82 (4) CrPC. Under Section 82(4) CrPC, a declaration pronouncing a person as proclaimed offender can be made if such person is accused of an offence punishable under Section 302,304,364,367,382,392,394,395, 396,397,398,399,400,402,436,449,459,460 IPC. Since the offence under Section 307 IPC for which the accused was charge sheet does not find mention in Section 82 (4) CrPC, Section 174A (PartI) only would be applicable to the facts of the case.
21. Now the question which needs to be considered is whether the prosecution has been able to bring home the guilt of the accused Siya Ram for the commission of the said offence. A perusal of the record shows that the accused Siya Ram, who was on bail, had failed to appear on 18.08.2015 and thus the coercive process under Section 82 Cr.P.C. was initiated against him.
FIR No.29/2011 State Vs. Siya Ram & Anr. Page No.25/27Proclamation against the accused was carried out on 03.05.2016 by Ct. Monu Kumar. However, neither the said police official was cited as witness nor was examined by the prosecution during the course of trial. Hence, the accused did not get opportunity to crossexamine him qua the execution of the process by him as well as the report furnished by him in court. The only witnesses examined by the prosecution to prove the offence under Section 174A IPC are the IO and the police officials, who had apprehended the accused in kalandra under Section 41.1(C) Cr. P. C. For the nonexamination of Ct. Monu Kumar, the prosecution has failed to prove its case against the accused Siya Ram for the offence under Section 174A IPC as well.
22. In the light of above discussion, accused Siya Ram is acquitted of the offence under Sections 186/353/307/34/174A IPC & under Sections 25/27 Arms Act. He be released from custody forthwith, if not required in any other case.
Bail bond in terms of Section 437A CrPC has already been furnished on behalf of the accused Siya Ram. The same shall remain in force for a period of six months from today.
FIR No.29/2011 State Vs. Siya Ram & Anr. Page No.26/27File be consigned to the record room after necessary compliance. It be preserved and reopened as and when the accused Sunil @ Teja is arrested.
Digitally signed by SMITA SMITA GARG Date:
GARG 2018.12.24
04:24:19
+0100
Announced in the open court (Smita Garg)
on 19.12.2018 Addl. Sessions JudgeFTC, (West)
Tis Hazari Courts, Delhi.
FIR No.29/2011 State Vs. Siya Ram & Anr. Page No.27/27