Delhi District Court
State vs . Vinod Pepsi @ Bada Etc. on 27 January, 2015
IN THE COURT OF SH. ARVIND BANSAL: METROPOLITAN
MAGISTRATE: SOUTH EAST : SAKET COURTS: NEW DELHI
JUDGMENT
STATE Vs. VINOD PEPSI @ BADA ETC.
FIR NO. : 407/07
U/s 174A IPC
PS : SARITA VIHAR
A. ID No. of the Case : 02403R0615642007
B. Date of Institution : 25.11.2009
C. Date of Commission of Offence : 21.08.2009
D. Name of the complainant : Chashamveer Malik S/o Satpal
E. Name of the Accused & his : Vinod @ Pepsi @ Bada
S/o Sh. Gurdyal
Parentage & Address R/o S-80, 2nd Floor, DDA Flat
Vasant Enclave, New Delhi.
F. Offence complained of : U/s 174-A IPC
G. Plea of the Accused : Pleaded not guilty
H. Order reserved on : 22.12.2014
I. Final order : Convicted u/s 174-A IPC
J.Date of such order : 27.01.2015
Brief Statement of reasons for decision of the case:
1. In a nutshell, case of the prosecution is that accused Vinod @ Pepsi @ Bada S/o Gurdyal failed to appear on 21.08.2009, before the Court despite publication of a declaration U/s 82 (1) Cr.P.C. and was thus declared a Proclaimed Offender vide order dated 21.08.2009 and by his non appearance before the Court, committed an offence U/s 174 A IPC.
On 06.05.2011, accused Vinod @ Pepsi @ Bada was apprehended by the police from Gate No. 2 of Patiala House Courts as he had been declared proclaimed offender vide order dated 21.08.2009 of the Court in case FIR no. 407/07, PS Sarita Vihar, U/s 392/34 IPC and was produced before the Court in compliance of statutory requirements. Finally, after completing the necessary formalities of investigation, IO filed the supplementary charge sheet in the Court against the accused for the offence punishable u/s 174 A IPC.
It is clarified that accused Vinod @ Pepsi @ Bada and his associates Vinod @ Pepsi @ Chota were both declared proclaimed offenders and were later apprehended. The co-accused Vinod @ Pepsi @ Chota was also chargesheeted for the offence u/s 174-A IPC who pleaded guilty at the time of framing of charge on 31.08.2012 and was ordered to be released on imprisonment already undergone vide order of the even date. Matter proceeded only against present accused after these proceedings. For the sake of convenience, only the name of present accused Vinod @ Pepsi @ Bada is referred to in the following proceedings.
2. Pursuant to appearance of accused, he was supplied the copy of supplementary charge sheet / documents in compliance of section 207 Cr.P.C. and matter was listed for arguments on charge. Upon hearing the arguments advanced at bar by Ld. counsel for the parties and on perusal of the judicial file, prima facie case against the accused for the offence punishable u/s 174-A IPC was found to be made out. Charge was framed against the accused to which he pleaded not guilty and claimed trial. Matter was then listed for prosecution evidence.
3. In order to substantiate and prove its case against the accused, prosecution has examined four witnesses.
PW1 Ct. Sunil testified as follows:
That on 06.05.2011, he was present with HC Naresh Kumar at Patiala House Courts. Secret informer shared the information that accused Vinod @ Pepsi @ Bada who is PO from PS Sarita Vihar would came to Court. As per information, accused Vinod @ Pepsi @ Bada came at Patiala House Courts and was arrested from Gate No.2 vide arrest memo Ex PW1/A. He also proved personal search of accused as Ex PW1/B. PW2 ASI Umrao Singh proved DD No. 32A dated 06.05.2011, PS Sarita Vihar regarding apprehension of accused received through HC Naresh of PS Greater Kailash.
Ld. Defence counsel cross examined this witness.
PW3 ASI Naresh Kumar reiterated the averments made by PW-1 Ct. Sunil. He also proved kalandra u/s 41(1)(c) Cr.P.C. vide Ex. PW3/A. PW4 SI Nitin testified as follows:
That on 07.05.2011, he received DD No. 32A regarding apprehension of accused Vinod @ Pepsi @ Bada. He formally arrested accused vide arrest memo Ex. PW4/A at Saket Court after seeking permission to interrogate and arrest the accused.
This witness was cross examined by defence counsel.
4. After prosecution evidence, statement of accused u/s 313 Cr.P.C. was separately recorded wherein he denied the case of prosecution. He stated that he was not aware of any nature of proceedings against him in case FIR No. 407/07. He stated that he was never served with process of Court, however, accused preferred not to lead defence evidence.
Final arguments advanced by Ld. APP for State and Ld. Defence counsel. Heard. Entire judicial record carefully perused.
Appreciation of Evidence:
5. To establish an offence u/s 174 A IPC beyond reasonable doubt, the prosecution is required to prove the following ingredients:
(A) That a proclamation U/s 82 (1) Cr.P.C. was published against the accused by the Court.
(B) That the accused failed to appear at the specified place and time as required by the aforesaid proclamation.
6. The Court shall scrutinize the entire evidence on record to appreciate whether the prosecution has succeeded to prove the ingredients of offence 'beyond reasonable doubt' or the accused succeeded to raise reasonable doubt in the version of prosecution on the standard of preponderance of probabilities.
7. The first ingredient of the offence i.e. the publication of a proclamation against the accused stands proved from the order dated 21.08.2009 of the Court passed by the Ld. Predecessor of this Court. The statement of process server SI GS Rawat who had executed the process against the accused has also been perused. The process was issued against the accused U/s 82 (1) Cr.P.C. and he was declared a proclaimed offender accordingly.
As per the proclamation published against the accused, he had to appear before the Court on or before 18.08.2009 at 10 AM but he failed to appear despite the publication of proclamation and hence, he was declared a proclaimed offender vide order dated 21.08.2009. The proceedings carried out by the police officials on 06.05.2011 i.e. the arrest of the accused is a subsequent development which does not affect the factum of issuance of proclamation and the non appearance of the accused thereupon. The defence of the accused that he was not arrested from Patiala House Courts but was lifted from somewhere else does not dent the conclusive evidence that he had failed to appear after declaration of a proclamation.
8. It is the contention of counsel for accused that accused was never served with the proclamation issued u/s 82 (1) Cr.P.C. and the prosecution did not examine the process server who executed the process as a prosecution witness and, therefore, prosecution cannot be considered to have proved its case beyond reasonable doubt.
In the opinion of Court, the address on which process u/s 82 (1) Cr.P.C. was published by way of affixation was the only and last known address of accused available with the police authorities. The report on process under Section 82 (1) Cr.P.C. provides that the step mother of accused was found at the address who declined the factum of residence of accused in the said premises. Accused defended himself by contending that he never resided at the said address, however, no positive evidence to that effect was adduced by him and, thus, such a contention cannot be accepted. This is a fact which was in the specific knowledge of the accused and, therefore, in terms of Section 106 Indian Evidence Act, the burden to prove the same lies upon the accused and not the prosecution.
As regards, the another contention of defence counsel that process server was not examined as a prosecution witness and, therefore, the publication cannot be accepted to have been made and the same cannot be relied upon in evidence against accused, Court is of the opinion that the same cannot be accepted on the settled principles of evidence. It is observed that a process u/s 82 Cr.P.C. may be published against an accused if the Court has reason to believe that accused against whom warrant had been issued has absconded or is concealing himself. This is a subjective judicial satisfaction of the Court and may be arrived at even without taking any evidence. In the present set of facts, proclamation u/s 82 (1) Cr.P.C. was ordered to be published after such a satisfaction by the Court. Further, as per Section 82 (3) Cr.P.C., a statement in writing by the Court that proclamation was duly published on a specified day and in the specified manner, shall be the conclusive evidence that requirements of this Section have been complied with, and that the proclamation was published on that day. In the case at hand, the Court after perusing the report on process u/s 82 (1) Cr.P.C. and recording the statement of process server, declared the accused to be a proclaimed offender. In these circumstances, the order of Court dated 21.08.2009 is the conclusive evidence of publication of proclamation and cannot be found fault with. It is due to the same reason that process server who published the process was not required either to be cited as a witness or to be examined in Court.
The accused has failed to accord any reasonable ground for his non appearance before the Court as required by the declaration U/s 82 (1) Cr.P.C. and, thus, have failed to raise any defence on the standard of preponderance of probabilities.
9. In view of the aforesaid discussion, Court is of the considered opinion that prosecution has proved its case against the accused beyond reasonable doubt by establishing the necessary ingredients of offence u/s 174-A IPC and hence, accused Vinod @ Pepsi @ Bada S/o Gurdyal is hereby convicted of the offence u/s 174A IPC.
Announced in the Open
Court on 27.01.2015 (ARVIND BANSAL)
METROPOLITAN MAGISTRATE
(SOUTH-EAST)-05
SAKET COURTS, NEW DELHI