Delhi District Court
State vs Ashwani @ Anwa on 13 July, 2012
IN THE COURT OF MS. MONA TARDI KERKETTA, METROPOLITAN
MAGISTRATE -08 (SOUTH EAST) SAKET COURTS NEW DELHI
STATE VERSUS ASHWANI @ ANWA
FIR No. : 1049/06
P.S. : Lajpat Nagar
U/s. : 25 Arms Act &
174-A (1) IPC
Unique ID No. 02403R0562932009
Serial No. 913/5/11
Date of institution of case : 17.10.2006
Date on which case reserved : 13.07.2012
for judgment
Date of judgment : 13.07.2012
JUDGEMENT U/S 350 Cr.PC.:
a) Date of offence : 08.09.06 and 21.05.2011
b) Offence complained of : U/s. 25 Arms Act & 174-A (1) IPC
c) Name of accused, his parentage: Ashwani @ Anuwa
S/o Sh. Ram Gopal Gupta
R/o 11/171, Dakshin Puri, New Delhi
d) Plea of accused : Pleaded Not guilty
e) Final order : Acquitted U/s. 25 Arms Act but
Convicted U/s. 174-A(1) IPC
Counsels for the Parties:
For the State : Sh. Mayank Tripathi
For the Accused : Sh. Kishore Kumar, LAC
BRIEF REASONS FOR THE DECISION OF THE CASE:-
1.In brief the case of Prosecution is that on 08.09.2006 at about 08.00 pm at DDA Park, Bank Side of Sindhi Banquet Hall,Lajpat Nagar, New Delhi within the jurisdiction of PS Lajpat Nagar, accused was found in possession of one buttondar knife having length of blade of 14.5 Cms and width of blade 2.5 Cms without any valid license and in contravention of notification of Delhi administration and thereby committed offence punishable U/s. 25/54/59 Arms Act. Accused was arrested being involved in non-bailable FIR No. 1049/06 PS Lajpat Nagar State Vs. Ashwani @ Anuwa 1/8 offence, however, later on he was released on bail by the court order.
2. After completion of investigation, charge sheet was filed against accused in the Court. Cognizance of the offence was taken and accused was summoned to face the trial for the offence allegedly committed by him. Accused was released on court bail, but despite being released on bail, he failed to appear before the Court. Several coercive steps were taken to secure his presence but he did not turn up before the court. Finding no other way, Ld. Predecessor of the court issued proclamation U/s. 82 CrPC, however despite of it accused did not appear before the court and thereafter vide order dated 21.05.2011, he was declared a proclaimed offender and case file was consigned to Record Room with liberty to revive the case as and when accused was apprehended. On 30.03.2012, accused was arrested and produced before the Court on a kalandra U/s. 41.1 (c) CrPC. He was taken into custody and remanded to Judicial Custody, since then he remained in judicial custody throughout the trial. Supplementary charge sheet was filed U/s. 174 (1)-A IPC and cognizance of the offence was taken. Arguments on charge were heard. Charge under Section 25 Arms Act and additional charge under section 174(1)-A IPC were framed against him on 25.03.08 and 16.04.12 respectively to which he pleaded not guilty & claimed trial.
3. In order to substantiate its version, Prosecution filed list of Five witnesses U/s. 25 Arms Act and Four witnesses U/s. 174-A IPC but examined only Four witnesses in all.
4. PW1 HC Jagpal Singh deposed that on 08.09.2006 on receiving DD no. 27, he reached the spot, where he met Ct. Om Prakash and accused Ct. Om Prakash handed over the accused and recovered knife to him. He recorded the statement of HC Om Prakash vide memo Ex. PW1/A, bearing his signatures at point A. He requested some public persons to join FIR No. 1049/06 PS Lajpat Nagar State Vs. Ashwani @ Anuwa 2/8 the investigation, but none agreed and left the spot without disclosing their name and address. Knife was opened and sketch of the same was prepared vide memo Ex.PW1/B, bearing his signatures at point A. The knife was measured and total length of knife was found to be of 32 Cms and handle 17.5 Cms and blade 14.5 cms and width of blade was 2.5 cms. The knife was sealed in a pullanda with the seal of JPD. Seal after use was handed over to Ct. Om Prakash and pullanda was seized vide seizure memo Ex.PW1/C, bearing his signatures at point A. Thereafter, he prepared rukka Ex. PW1/D, bearing his signatures at point A and handed over the same to Ct. Om Prakash for registration of case, who went to the PS and got the FIR registered. He came back at the spot with the copy of FIR and original rukka and handed it over to him. He arrested the accused and conducted personal search vide memos Ex. PW1/E and F, bearing his signatures at points A. He also recorded the statement of Ct. Om Praksh U/s. 161 CrPC. Case property was deposited in malkhana. He correctly identified the accused and case property Ex.P1. Accused was offered to cross examine the witness but he did not cross examine him despite of opportunities.
5. PW2 HC Om Prakash deposed that on 08.09.2006, he was on patrolling duty near DDA Park, Amar Colony. At around 08.00 pm when he reached DDA Park back side of Sindhi Banquet Hall, Amar Colony, Lajpat Nagar-IV, he saw the accused, who upon seeing him, started moving towards the DDA Park. He chased and apprehended him. During formal search of accused, one switch operated knife was recovered from the right side pocket of his trousers. He informed about the incident at PP Amar Colony. On getting information, IO HC Jagpal arrived at the spot. On interrogation, the name of accused was revealed as Ashwani. He handed over the accused and recovered knife to IO. Rest he deposed to the line of PW1. He also proved the rough sketch of recovered knife Ex. PW1/B,Seizure memo Ex.PW1/C, Statement of IO Ex. PW1/A, Arrest memo Ex. PW1/E and Personal Search memo Ex PW1/F. He also identified the accused and case FIR No. 1049/06 PS Lajpat Nagar State Vs. Ashwani @ Anuwa 3/8 property Ex.P1. Accused was offered to cross examine the witness but he did not cross examine him despite opportunities.
6. PW3 HC Ashwani deposed that he knew that accused was declared a proclaimed offender in the present case. On 18.01.2012, he was transferred and joined duty at PS Safdarjung Enclave. One day, he was informed by one secret informer that accused was running in judicial custody in case FIR no. 335/07, PS Lajpat Nagar U/s. 399/402 IPC & 25/54/59 Arms Act. Then on 28.03.12, he filed an application for issuance of production warrants of accused vide application Ex. PW3/A, bearing his signatures at point A. On the same day, he informed at PS Lajpat Nagar about the whereabouts of accused and about his application for further necessary action. Accused was offered to cross examine the witness but he did not cross examine him despite opportunities.
7. PW4 HC Jitender deposed that on 28.03.12, DD No. 20A dated 28.03.12 was registered in the PS, vide which HC Ashwini informed at PS that accused was running in judicial custody in FIR No. 335/07, PS Lajpat Nagar and application for issuance of production warrants against accused, who was declared P.O. On 21.05.11. He further deposed that after recording of DD No. 20A, it was handed over to him for further action. As the accused was declared P.O. and he evaded his arrest, supplementary charge sheet U/s. 174-A IPC against him was filed in the Hon'ble Court. he also obtained complaint U/s. 195 CrPC Ex PW4/A of concerned ACP, Sub Division, Lajpat Nagar, South East Delhi and filed in the court. He also identified the accused. Accused was offered to cross examine the witness but he did not cross examine him despite opportunities.
8. During the trial, accused admitted FIR, Entries of Register No.19, DAD Notification and Order of P.O. Declaration, hence examination Duty Officer, MH(C)M, PS Lajpat Nagar, Concerned Clerk and of concerned FIR No. 1049/06 PS Lajpat Nagar State Vs. Ashwani @ Anuwa 4/8 Ahlmad was dispensed with. The copy of FIR was Exhibited as Ex PA1, P.O. declaration order was marked as Mark P1A and DAD Notification was marked as Mark A. No other witness was left to be examined. Hence, Prosecution Evidence was closed. Accused was examined U/s. 313 r/w section 281 Cr.PC and all the incriminating circumstances appearing on record against him were put to which he denied as false and incorrect and stated that he was falsely implicated. However, he did not prefer to lead evidence in his defence.
9. During the course of final arguments, Ld. Legal Aid Counsel submitted that accused has been falsely implicated in the present case. He also submitted that non-joinder of public witnesses despite their availability casts a serious doubt over the truthfulness of Prosecution story. On the other hand, Ld. Prosecutor submitted that sufficient materials are available on record to prove the guilt of accused. The testimonies of majority of prosecution witnesses have remained unrebutted and unchallenged and therefore it can be presumed that accused has accepted their testimonies as true and correct. He also submitted that generally public persons do not come forward to join the investigation of police case as they do not want to get themselves entangled in police cases. He also argued that accused was absconding and evading the process of law.
10. The court has heard the arguments of both sides and also perused the entire record including the testimonies of witnesses. Though testimonies of majority of prosecution witnesses have remained unchallenged but after appreciation of testimonies of witnesses as well as material placed on record, Court is of the view that the charge framed against accused U/s 25 Arms Act is not proved beyond reasonable doubt for the following reasons :-
(1) All prosecution witnesses are police witnesses. Failure on the part of the prosecution to join public witnesses especially when they are available casts a doubt on the prosecution story. Reference may be made to FIR No. 1049/06 PS Lajpat Nagar State Vs. Ashwani @ Anuwa 5/8 the judgment titled as PREM SINGH VS. STATE, 1996 Crl. L.J. 3604, PAWAN KUMAR VS. DELHI ADMN 1989 Crl. L.J. 127 (Delhi HC), NANAK CHAND VS. STATE OF DELHI, 1992 Crl. LJ 55 (Delhi HC).
(2) No efforts were made to handover the seal to independent public persons after its use. The seal remained with the police officials only.
The handing over of the seal to public witness has not been proved hence it cannot be ruled out that the opportunity to tamper with the case property was very much there as the seal remained within the possession of police officials. This also creates a doubt upon the prosecution story. Reference may be made to the judgment titled as "Prem Singh Vs. State" reported as 1996 CRI. L. J/ 3604 in this respect.
(3) There is nothing on record to show at what time the police personnel proceeded for patrolling duty. Strangely none of the witness could tell as to what time they proceeded for such patrolling. No DD entries have been placed on record to establish the departure and arrival of the said police officials on patrolling. Reference may be made to the judgment titled as Pappu alias Irfan Vs State of UP,2005[1] JCC [Narcotics]31).
(4) It is also not on record to prove that the police officers had offered their personal search for effecting the search of accused. The necessary inference can be easily drawn that the legal formality of search was not observed before recovery of the Knife from the accused.(Resham singh Vs state,1981 CRI.LJ 1691) (5) No explanation has come from the prosecution that as to how the rukka and seizure memo bear the FIR number. The number of FIR given on the top of the aforesaid documents clearly indicates that these documents were prepared at the same time. It seriously reflects upon the veracity of the prosecution story. (Lalji Shukla Vs State,2000(2)JCC424(Delhi).
FIR No. 1049/06 PS Lajpat Nagar State Vs. Ashwani @ Anuwa 6/8 (6) The buttondar knife allegedly recovered from the possession of accused was neither sent for chemical analysis nor fingerprints were lifted from the knife for the purpose of comparison by the expert. This makes the identity of knife doubtful (Bishnu Vs.State,1996 JCC 469).
11. 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.
12. 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.
FIR No. 1049/06 PS Lajpat Nagar State Vs. Ashwani @ Anuwa 7/8
13. After having discussed the principle and scope of section 174-A IPC, court would like to advert to the facts and circumstances of present case, accused was released on court bail, but he stopped appearing before the court. On account of his non appearance, coercive process were issued by the court to secure his presence. However, his presence could not be secured, this being the case and finding on other way, the court vide order dated 13.12.10 directed to initiate proclamation under section 82 Cr.PC. The process was received back executed, however, accused again failed to appear on the date fixed for appearance before the court despite publication thereafter, vide order dated 21.05.11, accused was declared a proclaimed offender in the present case.
14. It is apparent from the record that accused failed to appear before court 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 and entire state machinery 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. In view of foregoing discussions, accused is acquitted from the charge framed U/s. 25 Arms Act. However, he is convicted for the offence punishable under section 174-A (1) IPC.
16. Put up for quantum of Sentence Announced in the open court (MONA TARDI KERKETTA) on 13.07.2012 Metropolitan Magistrate-08 (SE) Saket Courts, New Delhi FIR No. 1049/06 PS Lajpat Nagar State Vs. Ashwani @ Anuwa 8/8