Delhi District Court
Judgments. In Case Law Reported As ... vs . State" on 11 September, 2018
IN THE COURT OF MS. POOJA TALWAR
CHIEF METROPOLITAN MAGISTRATE (SOUTH)
SAKET DISTRICT COURTS, DELHI
In the matter of :
State
Vs.
Naveen Gupta @ Monu & Anr.
FIR No. 231/2013
P.S Saket
JUDGMENT
1. Sr. No. of case 2035818/2016
2. Date of institution 01.09.2014
FIR No. 231/2013 PS Saket Page- 1 of 28
3. Name of the complainant Sh. Nishant Kumar
S/o Sh. Narender Kumar
R/o House No. 156-A, Village
Devli, main Bus stand, Delhi
4. Date of commission of offence 01.06.2013
5. Name of accused 1. Naveen Gupta @ Monu
S/o Sh. Banwari Lal Gupta
R/o House No. D-160,
Dakshinpuri, New Delhi.
2. Yogesh Rawat @ Yogi
S/o Sh. Puran Singh Rawat
R/o House No. 161A, Sainik
Farm, New Delhi.
6. Offence complained of U/s 336/506/341/34 IPC and
section 25/27 Arms Act.
7. Plea of accused Pleaded not guilty
8. Date of reserving the judgment 30.08.2018
9. Final order 1. Naveen Gupta @ Monu
(convicted for offence under
section 174A IPC)
2. Yogesh Rawat @ Yogi
(acquitted)
10 Date of such judgment 11.09.2018
FIR No. 231/2013 PS Saket Page- 2 of 28
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
1. The story of the prosecution is that on 01.06.2013, a complaint was received from one Sh. Nishant Kumar stating that he alongwith his friend Jainender Tyagi and cousin Sh. Rohit Mann went near Khokha Market in his car around 9.30 pm to 10.00 pm. Suddenly a red colour Skoda Fabia car stopped in front of his car. Two persons namely Yogi and Naveen Gupta got down from the car and started abusing them. Thereafter, in order to create fear in their mind, Naveen Gupta took out a pistol and fired in the air. They got scared and ran away from the spot. 2-3 days prior to the said incident, the complainant had a verbal discord with Yogi at PVR parking where Yogi threatened the complainant. Investigation was carried out on the complaint of complainant and five empty cartridges were recovered from the place of incident which were seized. Accused persons were arrested. Chargesheet was filed.
2. Provisions of Section 207 Cr.P.C. were complied with. On appearance of accused persons before Court and prima facie case having being made out, charge for the offence of under FIR No. 231/2013 PS Saket Page- 3 of 28 section 341/336/506 (Part-II) IPC and section 25/27 of the Arms Act as well as section 174A IPC was framed against accused Naveen Gupta. Charge for the offence under section 341/336/506 (Part-II)/201 IPC was framed against accused Yogesh Rawat.
3. In order to prove its case, the prosecution examined 12 witnesses in all.
4. Complainant Sh. Nishant Kumar was examined as PW1. He deposed that on the day of incident, he alongwith his friend namely Rohit Maan (cousin) and Jainender Tyagi went to near Khokha market (Dosa Shop) in a vehicle i.e. car bearing registration no. DL12CC 6318. At around 9.30 -10.00 pm, two persons fired there and he called the police on 100 number. Police came at the spot. He narrated the incident to police officials. Police brought them to PS and recorded their names. The complaint is Ex.PW1/A. Sketch of the recovered empty cartridges/used cartridges is Ex.PW1/B. Seizure memo of the same is Ex.PW1/C. Thereafter, they left the PS.
5. Sh. Rohit Mann was examined as PW2. He deposed that on the day of incident he alongwith his brother namely Nishant FIR No. 231/2013 PS Saket Page- 4 of 28 and Nishant's friend namely Jai went to South Indian Corner Saket. He alongwith Jai were eating Dosa at the said place. He heard some noise. Thereafter, they went near Nishant who was standing there. Thereafter, Nishant called the police. Police did not interrogate him. Police did not record his statement.
6. Sh. Jainender Tyagi was examined as PW3. He deposed that on the day of incident he alongwith his friends namely Nishant and Rohit went to South Indian Corner, Khoka Market, Saket. They were eating Dosa at the said place. One car came there and 3-4 persons alighted from the said car and they fired in the air. Thereafter, Nishant called the police at 100 number. Police came at the spot and they noted down his name and address. He narrated the above said facts to the police officials. Police officials did not record his statement.
7. Ct. Praveen was examined as PW4. He deposed that on 01.06.2013, he was on night duty from 8.00 pm to 8.00 am. IO SI Amit Solanki received DD No.44-A regarding firing at Sanatan Dharam Mandir, near Khokha Market, Saket. Thereafter, he alongwith IO went to the spot. On enquiry, it was revealed that the caller went to Gate No.2, Sainik Farm. Thereafter, they went to Gate No.2, Sainik Farm and met one FIR No. 231/2013 PS Saket Page- 5 of 28 Nishant who narrated the incident. Thereafter, they alongwith Nishant returned to the spot. Then they searched the empty cartridges at the spot and found five empty cartridges at the spot. Thereafter, IO recorded the statement of complainant and he made endorsement on the same. The rukka was handed over to him for registration of FIR. He went to PS and got the FIR registered. After registration of FIR, he returned to the spot alongwith copy of FIR and original rukka and same were handed over to IO. At the instance of complainant site plan was prepared by IO which is Ex.PW4/A.
8. HC Ajeet Singh was examined as PW5. He deposed that on 04.06.2013 at around 11.00 am. he alongwith SI Ravi Shankar Tyagi were also present at PS Saket. One secret informer came there and informed SI Ravi Shanker Tyagi. SI Ravi Shanker Tyagi briefed them that the secret informer informed him that one person who was wanted in the present matter would go to Saket Court to meet his advocate at around 12.00 noon. SI Ravi Shanker Tyagi shared the said information to concerned SHO. Thereafter, he alongwith SI Ravi Shanker Tyagi, SI Proshun, Ct. Balbir and secret informer went to Metro Vihar bus stop. They made departure entry in Rojnamcha at serial No.41-B at FIR No. 231/2013 PS Saket Page- 6 of 28 around 11.05 am. SI Ravi Shanker Tyagi requested 4-5 public persons to join the raiding party but to no avail. Thereafter, they took position near the said bus stop. At around 12.00 noon, one person alighted from the bus and the secret informer pointed out towards the said person and he left the spot. Thereafter, they apprehended the said person. On enquiry, his name was revealed as Naveen Gupta. SI Ravi Shankar interrogated him and he confessed that he fired fire arm/pistol at Khokha market. Thereafter, SI Ravi Shankar arrested the accused and conducted his personal search vide memos Ex.PW5/A and Ex.PW5/B. SI Ravi Shankar recorded disclosure statement of accused which is Ex.PW5/C. Thereafter, they returned to PS alongwith accused Naveen Gupta. Accused was produced before concerned Court after his medical examination and accused Naveen Gupta was remanded to 3-4 days PC remand. Accused was interrogated. Accused Naveen Gupta disclosed that he kept the said fire arm/pistol at his house and he lied before the police officials at Metro Vihar bus stand. SI Ravi Shankar recorded the disclosure statement of accused which is Ex.PW5/D. SI Ravi Shankar prepared the sketch of said pistol and two live cartridges vide memo Ex.PW5/E. Same were taken into police possession vide FIR No. 231/2013 PS Saket Page- 7 of 28 seizure memo Ex.PW5/F. Thereafter, they returned to PS alongwith accused and case property. Case property was deposited in Malkhana. Accused was sent to lock up after medical examination. IO recorded his statement. On 19.07.2013, he again joined the investigation of the present case alongwith IO. SI Proshun also joined the investigation of the present case. During the course of investigation, SI Ravi Shankar got information that another accused namely Yogesh @ Yogi would go to Saket Court during the day time and he conveyed the said information to them. Thereafter, they came back at Saket Court room no. 215. Accused Yogesh @ Yogi appeared before the Court. SI Ravi Shankar moved an application seeking permission to interrogate accused Yogesh. After getting permission from the Court, he interrogated accused Yogesh @ Yogi and recorded his disclosure statement which is Ex.PW5/G. Accused Yogesh @ Yogi was arrested and his personal search was conducted vide memos Ex.PW5/H and Ex.PW5/I. Thereafter, they alongwith accused Yogesh @ Yogi went to Sainik Farm for searching the pistol and vehicle but no clue was found. Accused Yogesh @ Yogi was sent to lockup after medical examination. IO recorded his statement. He FIR No. 231/2013 PS Saket Page- 8 of 28 further deposed that on 25.07.2013, he joined the investigation of the present case alongwith SI Ravi Shankar Tyagi. Father of accused Yogesh @ Yogi came at PS and he produced a Skoda car before the IO. IO seized the said car vide seizure memo Ex.PW5/J. Case property i.e. Skoda car was deposited in Malkhana. IO recorded his statement. Witness correctly identified both the accused persons before the Court. Witness correctly identified case property i.e. a pistol, two empty cartridges and three photographs of Skoda car vide Ex.P1.
9. HC Bharat Bhushan was examined as PW6. He deposed that on the intervening night of 01/02.06.2013, he was posted as Duty Officer at PS Saket. That day, he was on night duty from 12.00 am to 8.00 am. He received a rukka at around 1.25 am through Ct. Praveen on the basis of which he had registered the FIR. Copy of FIR is Ex.PW6/A. After registration of FIR, he handed over the copy of FIR and original rukka to IO SI Amit Solanki. He issued the certificate under section 65 B of Indian Evidence Act which is Ex.PW6/C. At around 8.00 am. IO requested him to copy the information recorded in roznamcha at Sl. No.44-A dated 01.06.2013. He noted down the said information on a plain paper and also produced the rojnamcha FIR No. 231/2013 PS Saket Page- 9 of 28 dated 01.06.2013. He exhibited the document on which he had recorded the information vide Ex.PW6/D.
10. Sh. Pramod Singh Kushwah was examined as PW7. He deposed that on 23.07.2014, he was posted as Additional DCP, South District. IO of the present case deposited the file at his office. He gave sanction under section 39 Arms Act against Naveen Gupta. Sanction is Ex.PW7/A.
11. Inspector Proshun was examined as PW8. He deposed that on 06.06.2013 he remained present with IO of the case SI Ravi Shankar. During investigation, IO took out accused Naveen Gupta from lockup of PS and interrogated him. During interrogation, accused Naveen Gupta disclosed that due to fear he lied earlier and infact the pistol used in the crime was with him and he could get it recovered from his home. IO recorded the supplementary statement of accused and constituted a raiding party consisting of IO, himself, HC Ajit and they all alongwith accused went to D Block Dakshinpuri where IO requested 4-5 passersby to join the raiding party but they refused to join and left without disclosing their names and addresses. Thereafter, accused took the raiding party to his house i.e. D-160, Dakshinpuri, 2nd Floor and got recovered a FIR No. 231/2013 PS Saket Page- 10 of 28 pistol from the bed lying in the room. IO checked the recovered pistol and found that the pistol was loaded with two live cartridges lying in the magazine of the pistol. IO unloaded the pistol and prepared the sketch of recovered pistol and magazine on a white paper which is already Ex.PW5/E. He also filled up the CFSL form. IO seized the case property vide seizure memo already Ex.PW5/F. Thereafter, case property was deposited in the Malkhana. IO recorded his statement.
12. W/Ct. Savita was examined as PW9. She deposed that on 04.06.2013, she was working as DD writer from 8.00 am to 4.00 pm. That day at about 11.05 am, SI R.S. Tyagi wrote DD No. 41B in her presence. The said DD number is Ex.PW9/A.
13. SI Ravi Shankar was examined as PW10. He deposed on the same lines as PW5. He further deposed that on 19.07.2013, another disclosure statement of accused Yogesh was recorded which is Ex.PW10/A. Father of accused Yogesh was made bound for 25.07.2013 vide Ex.PW10/B. Accused Yogesh was produced before the Court and he was sent to JC. On 25.07.2013, the vehicle used in the commission of offence was taken into police possession vide seizure memo already Ex.PW5/J. The vehicle was deposited in Malkhana. The FIR No. 231/2013 PS Saket Page- 11 of 28 recovered pistol and cartridges were sent to FSL for expert opinion. Opinion from the FSL was received which is Ex.PW10/C. Sanction under section 39 Arms Act was also obtained. During investigation, he recorded the statements of witnesses under section 161 Cr.PC. After completion of investigation, he prepared chargesheet and filed the same before the Court. Witness correctly identified the case property vide already Ex.P1. During trial Naveen Gupta was declared Proclaimed Offender by the court and he was apprehended by the Special Cell Staff and thereafter, he had filed the supplementary chargesheet under section 174-A IPC. Witness correctly identified both the accused persons before the court.
14. SI Amit Solanki was examined as PW11. He deposed on the same lines as PW4. He further deposed that he prepared the rukka which is Ex.PW11/A. He seized the fired cartridges and sealed with the seal of AS in a plastic container and handed over the seal after use to Ct. Praveen. He prepared the site plan which is already Ex.PW4/A. He recorded the statement of cousin of complainant Rohit and Jatinder. Thereafter, he deposited the case property with the MHC(M). He recorded the statement of Ct. Praveen. On the next day, investigation of case FIR No. 231/2013 PS Saket Page- 12 of 28 was assigned to some other IO and he deposited the case file with MHC(R). Witness correctly identified the case property i.e. the cartridges which were sealed by him on 02.06.2013. The cartridges are Ex.P2.
15. HC Ashok Kumar was examined as PW12. He deposed that he was assigned the proclamation under section 82 Cr.PC to be executed upon the address of accused Naveen Gupta S/o Sh. Banwari Lal Gupta. On 17.11.2014, he went to the address of accused at House No. D-160, Dakshinpuri, New Delhi for executing proceeding under section 82 Cr.PC where he met the younger brother of accused Naveen Gupta namely Sanjay Gupta S/o Sh. Banwari Lal Gupta who told him that accused was not residing there and his whereabouts were not known to him. Thereafter, he pasted a copy of proclamation in front of said house in presence of Sh. Sanjay Gupta and recorded his statement in this regard. His statement is Ex.PW12/A. Proclamation was also publicly announced in the area. Thereafter, I pasted another copy of proclamation on the notice board of the Court. The detailed report in this regard is Ex.PW12/B.
16. The entire incriminating evidence brought on record against FIR No. 231/2013 PS Saket Page- 13 of 28 the accused persons was put to them and their statement under section 313 CrPC were recorded separately. It is stated by both the accused persons that they are innocent and have been falsely implicated in the present case. The alleged cartridges were not related to the incident and planted one. Police obtained their signatures on blank papers and were manipulated later on only for completing the process of case. Relevant record was concealed. Pistol was planted one and the same was never recovered from their possession or at their instance. Sanction was given automatically and mechanically and the same was against the spirit of law.
17. I have heard Ld. APP for the State and Ld. counsel for accused persons and have also perused the judicial file carefully.
18. Allegations against the accused persons are that on 01.06.2013 at around 10.30 pm near Sanatan Dharam Mandir, Saket, both accused voluntarily obstructed and wrongfully restrained complainant Sh. Nishant Kumar and his friends Rohit Mann and Jainender Tyagi. Accused Naveen Gupta fired two rounds from his pistol in rash and negligent manner endangered human life and accused Yogesh Rawat fired three rounds from FIR No. 231/2013 PS Saket Page- 14 of 28 an unknown weapon. Both the accused persons also criminally intimidated the complainant and his friends. From possession of accused Naveen Gupta, two live cartridges were recovered which he carried in contravention of provision of Arms Act. Accused Yogesh Rawat caused disappearance of weapon used by him for firing and thereby committed an offence. Accused Naveen Gupta stopped appearing in the Court and was thereby declared an absconder.
19. Prosecution examined three alleged eye witnesses to proved the incident. PW1 Sh. Nishant Kumar, who is the complainant, PW2 Sh. Rohit Mann and PW3 Sh. Jainender. All the three persons were allegedly present at the time of incident. PW1 Nishant Kumar deposed that in the year 2012-13 at round 9.30 pm to 10.00 pm, he was present with PW2 Sh. Rohit Mann and PW3 Sh. Jainender Tyagi near Khokha Market and two persons fired. He did not identify the accused persons. He denied all the suggestions given by Ld. APP in his cross examination.
20. PW2 Sh. Rohit Mann deposed that 2-3 years back he was present with PW1 Sh. Nishant Kumar and PW3 Sh. Jainender Tyagi at South Indian Corner, Saket. While he was having Dosa, he heard some noise. PW1 Sh. Nishant Kumar called the FIR No. 231/2013 PS Saket Page- 15 of 28 police and he did not know what happened thereafter. Police did not record his statement. He too denied suggestions given by Ld. APP in his cross examination.
21. PW3 Sh. Jainender Tyagi deposed that two years back he alongwith his friends PW1 Sh. Nishant Kumar and PW2 Sh. Rohit Mann went to South Indian Corner Market, Saket. While he was having Dosa one car came, 3-4 persons alighted from the car and fired in the air. Thereafter, PW1 Sh. Nishant Kumar called police. Police did not record his statement.
22. No other public witness has been examined by the prosecution to prove the alleged incident.
23. It is also alleged against the accused persons that accused persons placed their car bearing registration no. DL 3CBV 1500 ahead of car of complainant/PW1 Sh. Nishant Kumar bearing registration no. DL 12CC 6318 and thereby committed offence under section 341 IPC.
24. On discerning the testimony of PW1 Sh. Nishant Kumar, it is revealed that he has not uttered a word about his restrainment by the accused persons by placing their vehicle in front of his vehicle. PW1 Sh. Nishant Kumar even denied suggestion of Ld. FIR No. 231/2013 PS Saket Page- 16 of 28 APP that accused persons placed Skoda Fabia car in front of his car and abused him. He even denied his statement Ex.PW1/A.
25. The accused persons have also been charged under section 506 (Part-II) IPC for intimidating the complainant and his friends.
26. PW1 Sh. Nishant Kumar has not deposed anything against the accused regarding criminally intimidating either him or his friends.
27. PW2 Sh. Rohit Mann has denied having made any statement Mark B and similarly PW3 Sh. Jainender Tyagi denied having made any statement Mark C to police.
28. The alleged place of incident is a market place and there would have been number of shopkeepers and other members of the public present who would have witnessed the incident but none has been brought to the witness box. The witnesses examined by the prosecution have not supported its story. Hence, offence under section 341 IPC and section 506 (Part-II) IPC stand unproved.
29. It is also alleged against both the accused persons that they fired rounds of fire from the pistol/fired arm and thereby FIR No. 231/2013 PS Saket Page- 17 of 28 endangered human life.
30. PW1 Sh. Nishant Kumar does not talk about the firing of rounds by accused persons.
31. PW2 Sh. Rohit Mann only states that he heard some noise.
PW3 Sh. Jainender Tyagi deposed that 3-4 persons alighted from the car and fired in the air.
32. Besides the aforesaid three witnesses, no witness has been examined to prove that the rounds were actually fired in the air by accused persons.
33. PW1 Sh. Nishant Kumar has failed to identify the accused persons in the Court. No witness from the public has been examined to prove that the rounds were fired by accused persons in their presence at the place of incident.
34. As per the prosecution version, a pistol alongwith two live cartridges were recovered from accused Naveen Gupta on 06.06.2013.
35. PW5 HC Ajeet Singh and PW8 Inspector Proshun as well as PW10 IO SI Ravi Shankar have been examined to prove the alleged recovery from accused Naveen Gupta.
FIR No. 231/2013 PS Saket Page- 18 of 28
36. PW5 HC Ajeet Singh in his cross examination failed to state that from which storey of house, the alleged pistol was recovered. He could not even tell about the room from which the alleged pistol was recovered. He further admitted that though ladies and gents were present there in the house but no statement either of the family members, neighbours or passersby was recorded by the IO. The place of recovery was not photographed by IO.
37. PW8 Inspector Proshun could not tell the description of the pistol in question. He could not tell the time when they reached the house from which the pistol was allegedly recovered. The said witness also admitted that the house was very congested and thickly populated.
38. PW10 IO SI Ravi Shankar deposed that he handed over the seal of PW5 HC Ajeet. Contrarily, it is stated by PW5 HC Ajeet that he does not remember to whom the seal in question was handed over and interestingly PW8 Inspector Proshun states that the seal of the case property was handed over to him.
39. PW10 IO SI Ravi Shankar admitted that he did not prepare any site plan at the place of recovery of pistol nor did he click FIR No. 231/2013 PS Saket Page- 19 of 28 any photograph of the same. Per contra, it is stated by PW5 that site plan of the place of recovery of pistol was prepared by the IO in his presence.
40. There are material discrepancies in the testimonies of the three recovery witnesses examined by the prosecution to prove the alleged recovery. Under these circumstances, there is absolute non compliance of Section 100 Cr.PC. Sub Sec (4) which specifically provides that whenever any search or seizure is effected by an investigating officer, the latter before making search or seizure shall join at least two independent respectable local inhabitants from the same locality in which search is to be effected. The word used in sub Sec (4) of Sec 100 is "shall" which makes it mandatory. An investigating officer is granted liberty to join independent witnesses from other locality only when the witnesses from the same locality are either not available or they refuse to become witness. It appears that no sincere effort was made to join respectable witnesses from the same locality.
In this regard reliance is being placed on the following judgments. In case law reported as "Anoop Joshi Vs. State"
1992(2) C.C. Cases 314(HC), High Court of Delhi had FIR No. 231/2013 PS Saket Page- 20 of 28 observed as under:
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In a case law reported as Roop Chand Vs. State of Haryana 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of FIR No. 231/2013 PS Saket Page- 21 of 28 the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigating Agency 19.01.2013 should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can FIR No. 231/2013 PS Saket Page- 22 of 28 take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
41. In view of the aforesaid evidence led by the prosecution, it stands unproved that the fire in the air was done by both of the accused persons or that the alleged weapon was recovered from the possession of accused Naveen Gupta.
42. Once the prosecution has failed to prove the presence of accused persons at the place of incident and that they fired rounds from fire arms, the accused Yogesh Rawat cannot be said to have committed offence under section 201 IPC.
43. Prosecution has miserably failed to prove its case against the accused persons. None of the charges levelled against the accused persons stand proved. The material prosecution witnesses have not supported the case of prosecution.
FIR No. 231/2013 PS Saket Page- 23 of 28
44. Accused Naveen Gupta has also been charged with the offence under section 174A IPC.
45. PW12 HC Ashok has been examined to prove the compliance of section 82 Cr.PC. Section 174A IPC provides of punishment to the accused who fails to appear in response of proclamation under section 82 Cr.PC. In order to prove the offence under section 174A IPC, it is essential the provision of section 82 Cr.PC have been complied.
Section 82 Cr. P.C. is reproduced herein under:
Proclamation for person absconding.---(1) If the Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.
(2) The proclamation shall be published as follows:-
(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or homestead in which such FIR No. 231/2013 PS Saket Page- 24 of 28 person ordinarily resides or to some conspicuous place of such town or village;
(c) a copy thereof shall be affixed to some conspicuous part of the Court-house;
(d) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides. (3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.
{(4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.] (5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1).] FIR No. 231/2013 PS Saket Page- 25 of 28
46. Now in order to prove the offence against the accused, it is essential that the prosecution proves that the proclamation u/sec 82 Cr. P.C. was properly executed.
47. As per clause 3 of section 82 Cr. P.C. a statement in writing by the court issuing the proclamation to the effect that the proclamation was duly published under a specified date shall be conclusive evidence that the requirements of this section have been complied with and that the proclamation has been published on such day.
48. In view of aforesaid provision once an accused is declared as an absconder by the Court and he fails to appear within the stipulated period, the presumption would be that non appearance was deliberate and intentional. The prosecution is only required to prove that the accused has been declared as an offender by the Court.
49. PW12 HC Ashok was examined to prove compliance of section 82 Cr.PC. In his cross examination, though the said witness has admitted that Ex.PW12/B does not bear the name of accused as well as his address. However, the said admission is incorrect for the reason that Ex.PW12/B bears the name of FIR No. 231/2013 PS Saket Page- 26 of 28 accused Naveen Gupta as well as his address as D-160, Dakshinpuri, New Delhi.
50. The defence of accused is that the process under section 82 Cr.PC issued against accused Naveen Gupta does not bear his name and address and that Sanjay Gupta is not his brother which is factually incorrect and is proved incorrect on perusal of document Ex.PW12/B.
51. From the evidence led by the prosecution and the fact that the proclamation had been issued by the Court and the accused Naveen Gupta has been declared as a proclaimed person by the Court offence against the accused stands proved.
52. From the aforesaid discussion, it is established on record that the prosecution has succeeded in proving the offence under section 174A IPC against the accused Naveen Gupta beyond reasonable doubt and he is accordingly convicted for the said offence. However, the prosecution has failed to prove the offence under section 341/336/506 (Part-II) IPC and section 25/27 of the Arms Act against accused Naveen Gupta and section 341/336/506(Part-II)/201 IPC against accused Yogesh Gupta for which they are acquitted.
FIR No. 231/2013 PS Saket Page- 27 of 28
53. Copy of judgment be given to convict Naveen Gupta free of cost.
Announced in the open
Court on 11.09.2018 (POOJA TALWAR)
CMM (South), Saket Courts,
New Delhi
Certified that this Judgment contains 28 pages and each page is signed by me.
(POOJA TALWAR)
CMM (South), Saket Courts,
New Delhi
Digitally signed
by POOJA
POOJA TALWAR
TALWAR Date:
2018.09.11
16:39:36 +0530
FIR No. 231/2013 PS Saket Page- 28 of 28