Delhi District Court
State vs . Rajesh on 23 July, 2012
IN THE COURT OF MS. MONA TARDI KERKETTA, MM-08 (SE)
SAKET COURTS COMPLEX
STATE VS. RAJESH
FIR NO. : 130/97
P.S. : GK-1
U.S. : 279/338 and 174-A IPC
Unique ID No. 02406R0031401998
Serial No. 107/2/10
Date of institution of case : 22.07.98
Date on which case reserved : 23.07.2012
for judgment
Date of judgment : 23.07.2012
JUDGEMENT U/s. 350 Cr.P.C.:
a) Date of offence : 20.03.1997 and 03.02.2011
b) Offence complained of : U/s. 279/338/174-A(1) IPC & 3/181 MV Act.
c) Name of accused, his : Rajesh
parentage & residence S/o Sh. Harphool Singh
R/o H. No. 82, Jamrudpur
New Delhi.
d) Plea of accused : Not guilty
e) Final order : Acquitted U/s 279/338 IPC but Convicted
U/s 174-A(1) IPC and 3/181 MV Act
BRIEF REASONS FOR THE DECISION OF THE CASE:-
1.In brief, the case of Prosecution is that on 20.038.97 at about 08.45 pm in front of House no. S-197, Greater Kailash-1, New Delhi, falling FIR No. 130/97 PS-GK-1 State Vs. Rajesh 1/9 within the jurisdiction of PS Greater Kailash-1, accused was driving scooter bearing registration no. DL3SL2894 in a rash and negligent manner so as to endanger human life and personal safety of others and while driving so he hit against one Sh. Sahil and caused grievous injuries on his person. At the time of incident accused was found driving the said vehicle without any licence and thereby committed offence punishable U/s. 279/338 IPC & U/s. 3/181 MV Act. He was arrested but released on police bail being involved in bailable offence and later on he was also released on court bail.
2. After completion of investigation, charge sheet was filed against the accused in the Court. Cognizance of the offence was taken and he was summoned to face the trial for the offence allegedly committed by him. After hearing the arguments, Notice U/s. 279/338 IPC and 3/181 MV Act was framed against accused on 07.02.2000, accusation was explained to which he pleaded not guilty and claimed trial and case was put up for recording of Prosecution Evidence. Accused was released on court bail but during trial, he stopped appearing before the court. Several coercive steps were taken to secure his presence but he did not turn up before the court. This being the case and finding no other way, Court directed to initiate proclamation U/s. 82 CrPC, however despite of publication, accused did not appear before the court and vide order dated 03.02.2011, he was declared proclaimed offender. On 26.02.2011, accused was rearrested and produced before the Court and remanded to Judicial Custody however later on he was again enlarged on bail. Supplementary charge sheet was filed U/s. 174 (1)-A IPC and cognizance of offence was taken. After compliance of section 207 CrPC and hearing the arguments, additional charge under section 174(1)-A IPC FIR No. 130/97 PS-GK-1 State Vs. Rajesh 2/9 was framed against him on 02.05.2011, to which also he pleaded not guilty & claimed trial.
3. In order to substantiate its version, Prosecution filed the list of as many as Eight witnesses.
4. PW1 HC Chandrabhan, Duty Officer, proved the copy of FIR and his endorsement on rukka vide Ex. PW1/A, bearing his signatures at point A. During cross examination he depose that Ct. Kuldeep went to the spot from PS after 15-20 minutes. He took 15 minutes for registration of FIR. Ct. Kuldeep had come to him for getting registration of FIR at about 11 pm and he registered the FIR on the basis of rukka.
5. PW2 Ct. Kuldeep Singh deposed that on 20.03.1997, he along with HC Shabbir Ahmad went to the spot, where complainant handed over the accused and offending vehicle bearing registration no. DL3SL2894. Thereafter IO HC Shabbir Ahmad went to Holy Family Hospital leaving him behind along with accused and offending vehicle. After some time, IO returned and gave him Rukka and sent him to PS for registration of case. After registration of case, he returned to spot and handed over the copy of FIR along with the rukka to IO. Thereafter IO seized the RC and offending vehicle vide memos Ex. PW2/A and Ex. PW2/B. Accused was arrested and his personal search was conducted vide memo Ex. PW2/C. Complainant and his statement was recorded by the IO on the spot. After completion of investigation proceeding, they took the accused and offending vehicle to PS. FIR No. 130/97 PS-GK-1 State Vs. Rajesh 3/9
6. During cross examination he deposed that he reached at the spot at about 09.00 pm and the distance between PS and spot was about half km. He deposed that no other public person was present at the spot. He denied that some shops were situated near the spot. He deposed that photographs of offending vehicle was taken by the Photographer at the spot. He denied the suggestion that neither Photographer visited the spot nor any photo was taken. He admitted that IO did not record the statement of any person except complainant in his presence. He deposed that he reached the PS along with rukka at about 011.00 pm. IO carried out the personal search of accused after returning from the hospital. He denied that he was deposing falsely.
7. PW3 SI Shabbir Ahmad deposed that On 20.03.1997, after receiving DD No. 20A, he along with Ct. Kuldeep reached the spot, where they met the father of injured namely Sh. Anil Ghai and accused Rajesh along with offending vehicle. He recorded the complaint of the father of injured vide Ex.PW3/A. Thereafter he handed over the accused to Ct. Kuldeep at the spot and left for Holy Family hospital, where He found the injured namely Sahil admitted in the hospital. The injured was declared fit for statement but due to severe pain, he could not give his statement. Thereafter, he came back to spot and endorsed the rukka vide Ex.PW3/B and handed over the same to Ct. Kuldeep for getting the FIR registered. Thereafter, he prepared Site plan Ex.PW3/C. After sometime, Ct. Kuldeep came back to the spot along with copy of FIR and original rukka. Thereafter, offending vehicle was seized vide Seizure memo Ex.PW2/B and also seized its RC vide memo Ex.PW2/A. Thereafter, accused was arrested and released FIR No. 130/97 PS-GK-1 State Vs. Rajesh 4/9 on bail vide bail bond Ex.PW3/D, his personal search was conducted vide memo Ex.PW2/C. He also obtained the MLC of injured Ex.PW3/E from the hospital. He also recorded the statement of witnesses u/s 161 Cr.PC. After completion of investigation, he prepared the challan and filed in the court. He also correctly identified the accused. Accused was offered to put cross questions to the witness but he did not put despite giving opportunities.
8. PW4 HC Naresh Kumar deposed that on 12.2.2011, he went Lajpat Nagar Market in the search of PO. There he met one secret informer, who informed that accused Raj Kumar is PO in case of PS G K -I in an accident case and standing near Jal Board, Tea Stall. Thereafter he along with the secret informer went to the spot, where Secret informer pointed towards the accused. He interrogated the accused and arrested him on finding the information regarding his P.O. declaration true. He also conducted his personal search and vide memos (photocopy Ex.PW4/A and B). He got the accused medically examined and produced him before the court. Thereafter, he prepared charge sheet u/s 174 A IPC and filed the same before the court. Accused was offered to put cross questions to the witness but he did not cross examine him despite opportunities.
9. PW5 Dr. Mala Saini proved the MLC Ex. PW3/E, prepared by Dr. Thomas David, bearing his signatures at point A. She also identified the handwriting and signatures of Dr. Thomas Davis as he had seen him writing and signing during the Course of his duty. She deposed that MLC recited the injuries as grievous because the injured had sustained fracture of left femur.
FIR No. 130/97 PS-GK-1 State Vs. Rajesh 5/9
10. Complainant Sh. Anil Ghai and Injured Sh. Sahil were also directed to be summoned, however, process sent to them received back unserved. Time and again summons were sent but there was consistent report to the effect that they were untraceable and their present whereabouts were not known. They were directed to be served even through IO, but they remained unserved. Statement of IO to this effect was recorded on oath and his detailed reports regarding service of summons was exhibited as CW2/A, bearing his signatures at point A. During the trial, accused admitted the mechanical inspection report dated 21.03.97 and hence examination of Mechanical Inspector was dispensed with and report was exhibited as Ex PA. Sufficient opportunities were already given to the prosecution to examine its most material witnesses, who were untraceable. Thereafter no other Prosecution witness was left to be examined hence Prosecution Evidence was closed. Statement of accused U/s 313 CrPC r/w Section 281 CrPC was recorded, wherein entire circumstances appearing on record was put to him, to which he denied as false and incorrect and stated that he was falsely implicated but he did not prefer to lead evidence in his defence.
11. The Court has heard the arguments from both sides and also gone through entire record including the detailed report of IO. After appreciating the evidence available on record, the court has no hesitation in holding that no case U/s 279/338 IPC is proved against the accused. In the present case, both complainant and injured are untraceable. Only they could have thrown light upon the facts of this case. In their absence, the testimony of remaining witnesses cannot lead to logical conclusion of this case and no amount of evidence can lead to the conviction of accused as remaining witnesses are formal witnesses and related to investigation of the case. The happening of FIR No. 130/97 PS-GK-1 State Vs. Rajesh 6/9 the very incident is not made out in the absence of complainant and injured and therefore the basic ingredients of section 279/339 IPC are also not satisfied. The identity of accused and factum of incident cannot be proved in the absence of complainant and injured. It has been held in the Judgment of Jaya Ram vs. State of Haryana that "prosecution is under the legal obligation to prove each and every ingredients of the offence beyond any doubt unless otherwise so provided by the any statute. This burden never shift, it always rest on the prosecution"
12. Now the next charge to be decided against accused is under section 174-A (I) IPC. The section provides that" whoever fails to appear at the specified place and at the specified time as required by a proclamation published under sub section (1) of Section 82 Cr. P.C, shall be punished with imprisonment for a term which may extend to three years or with fine or with both. It was noticed by the law enforcement agency that many a times notorious and hardened criminals managed to evade the process of law. They do not appear before the court even after committing heinous crimes. To bring to book such criminals section 174-A was added to the Chapter X of the Indian Penal code and consequential amendment was made in the code of Criminal procedure,1973 in the year 2005 by the insertion of sub section 4 in section 82 of the act vide Criminal Procedure (Amendment)Act, 2005. in view of the gravity of offence section 174-A has been made cognizable, non- bailable and non compoundable. A Police Officer is therefore empowered to arrest a culprit even without a warrant in order to bring such criminals before the court.
FIR No. 130/97 PS-GK-1 State Vs. Rajesh 7/9
13. The said section of the code provides a stringent punishment in case of a Proclaimed Offender who evades the process of law and avoids the appearance in the court to face trial in a given case on appointed day and time. The new provision was brought into force by the Parliament in the wake of the habitual violation of the provisions of bail , the accused who fails to turn up for the trial without sufficient reason are prosecuted under the new section. The provision seems to be introduced with a purpose to provide a good tool in the hands of prosecuting agencies in the right directions.
14. After having discussed the principle and scope of section 174-A IPC, the court would like to advert to the facts and circumstances of the present case, accused was released on bail but he stopped appearing before the court. He was declared Proclaimed Offender. This being the case and finding no other way , court directed to initiate Proclamation U/s 82 CrPC against accused and despite of its publication accused did not appear and later on he was declared a P.O. It is apparent from record that accused has failed to appear without sufficient reason. He was intentionally not appearing before the court and deliberately concealing himself in order to avoid the execution of warrant upon himself. The court is of the view that accused by doing so set the criminal law into motion. Its high time that the absconding criminal must be dealt with heavy hand or else the provision of section 174-A IPC shall continue lying defunct. Only the strict implementation of this provision would act as a deterrent for the habitual criminals and curb the tendency among them to evade arrest.
15. It is true that the accused has taken the defence in his statement FIR No. 130/97 PS-GK-1 State Vs. Rajesh 8/9 recorded under section 313 Cr.P.C that he was falsely implicated but he preferred not to lead evidence in his defence. The defence of accused must be suggested to the witnesses during the course of cross-examination. The new line of defence, introduced during the course of statement u/s 313 Cr.PC or defence evidence cannot be accorded much credibility.
16. In view of foregoing discussions, accused is acquitted from the chrage framed U/s 279/338 IPC but convicted for the offence punishable U/s 174- A(1) of IPC and section 3/181 M.V. Act.
17. Put up for quantum of Sentence Announced in the Open (MONA TARDI KERKETTA) Court Today i.e. on 23.07.12 MM-08 (South-East) Saket Courts, New Delhi FIR No. 130/97 PS-GK-1 State Vs. Rajesh 9/9