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Delhi District Court

State vs Amit on 11 November, 2025

            IN THE COURT OF SH. KUMAR RAJAT,
       ADDL. SESSIONS JUDGE-07, SHAHDARA DISTRICT,
              KARKARDOOMA COURTS, DELHI

IN THE MATTER OF :




DLSH01-000753-2023
SC No. 42/2023
FIR No. 44/2012
PS Harsh Vihar
U/s 308/341/174A IPC

STATE
Vs.
AMIT,
S/o Devi Sharan,
R/o H. No. A-634,
Gali No. 9/2, Pratap Nagar,
Mandoli, Delhi.
                                                                   ........ Accused

Date of Institution of case                      06.02.2023
Date of case reserved for Judgment               10.11.2025
Judgment Pronounced on                           11.11.2025
Decision                                         Acquitted


                                     JUDGMENT

BRIEF FACTS OF THE CASE

1. As per the case of prosecution, on 07.04.2011, on receipt of DD No. 13A, IO reached the spot at A Block, Pratap State Vs. Amit FIR No. 44/2012 PS Harsh Vihar Page 1 of 26 KUMAR Digitally signed by KUMAR RAJAT RAJAT 13:09:38 +0530 Date: 2025.11.11 Nagar, near Naval Mandir and the injured was already taken to GTB Hospital. IO reached the said hospital where injured Nitin Kumar was unfit for statement and his brother Anuj stated that after the assault, he reached the spot and his brother Nitin pointed towards Amit by saying "Pakdo-Pakdo", who was running from the spot. Statement of the victim was recorded on 09.04.2012 when he was discharged.

2. On the complaint of ASI Darshan Lal, an FIR No. 44/2012, dt. 07.04.2012 in PS Harsh Vihar u/s 323/341 IPC was registered and later Section 308 IPC was also added. After investigation, charge-sheet was filed against the accused Amit u/s 308/341 IPC and after filing of the charge-sheet, cognizance of offences was taken against the accused.

CHARGE

3. Charge for the offences punishable u/s 308/174A IPC was framed against the accused by Ld. Predecessor on 28.02.2023. Accused pleaded not guilty and claimed trial.

ADMISSION/DENIAL OF DOCUMENTS

4. Admission/denial of documents u/s 294 Cr.PC/330 BNSS was conducted on 29.02.2024. Accused persons admitted the following documents:

(a) FIR No. 44/2012 dt. 07.04.2012, Ex.PA1.

(b) DD No. 13A dt. 07.04.2012, Ex.PA2.

(c) MLC bearing No. 1520/12 of injured Nitin dt.

07.04.2012 of GTB Hospital prepared by Dr. B N Sharma and Dr. Nagender, Ex.PA3.

In view of the above-said admission, the requirement of evidence of following witnesses was dispensed with :

KUMAR by KUMAR RAJAT RAJAT 2025.11.11 Date:

13:09:42 +0530

(a) HC Mukesh (mentioned at Sl. No. 7 in the list of witnesses)

(b) Dr. B N Sharma (mentioned at Sl. No. 5 in the supplementary list of witnesses).

(c) Dr. Nagender (mentioned at Sl. No. 6 in the supplementary list of witnesses).

PROSECUTION EVIDENCE

5. Prosecution examined nine (9) witnesses in its favour to prove the case.

6. PW1 Nitin deposed that on 07.04.2012, at about 10:30 AM, he was returning from his work to his home and when he reached near Naval Mandir, A-Block, Pratap Nagar, Saboli Delhi, one person came and started abusing him. That person gave beating to PW1 in his stomach/abdomen due to which he fell down. He again hit PW1 on his head as soon as he again stood up, he fell down. On seeing this, that person fled away from there. In the meantime, his brother Anuj also reached there and PW1 started shouting "pakdo pakdo". Then PW1 got unconscious and when he regained his consciousness, he was in hospital and on 08.04.2012, police officials came there and asked PW1 about the incident, but he was not able to give his statement due to pain in his head and he was not able to recollect the facts and stated that he would give his statement later on. After 3-4 days, he got discharged from the hospital.

7. PW2 Anuj deposed that on 07.04.2012, he was present at his house i.e. A-782, Gali No. 15, Pratap Nagar, Saboli, Delhi and at about 10:00-11:00 AM, he came to know that someone was beating his brother Nitin. PW2 immediately went to Naval Mandir, A-Block, Pratap Nagar, Delhi and found that his brother State Vs. Amit FIR No. 44/2012 PS Harsh Vihar Page 3 of 26 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2025.11.11 13:09:47 +0530 was lying there and he took his brother to the GTB Hospital in a PCR van, where he received treatment. Police official came at the hospital and inquired from PW2.

8. PW3 Nitesh deposed that he was working as a labour in a factory at Sewa Dham, Mandoli, Delhi. On 07.04.2012, at about 10:30 am, he was going to attend his duty and when he reached in a field near Naval ka Mandir, Pratap Nagar, Saboli, Delhi, some persons were talking that one person had fight with Nitin and had given him beatings, who was his relative. PW3 made a phone call to elder brother of Nitin and went for his duties.

9. PW4 Abdesh Kumar deposed that he was entrusted with the process u/s 82 Cr.P.C. against accused Amit, S/o Devi Sharan, R/o H. No. A-634, Gali No. 9/2, Pratap Nagar, Mandoli, Delhi for execution of the same by the Court of Ms. Mayuri Singh, Ld. MM, Karkardooma Courts, Delhi. On 29.07.2013, he reached at H. No. A-634, Gali No. 9/2, Pratap Nagar, Mandoli, Delhi, where the owner of the said house namely Bhawar Singh met PW4, who disclosed that accused Amit used to reside on rent at the abovesaid address and he had vacated the house and his present whereabouts were not known to him. One other person namely Mintu, S/o Sh. Jaggan, R/o A-Block, Pratap Nagar, Saboli, Delhi also met PW4 and from inquiry, he also stated that accused Amit was his neighbour and residing on rent at abovesaid address, but he had left the house and his present whereabouts were not known to him.

KUMAR by KUMAR RAJAT RAJAT Date: 2025.11.11 13:09:51 +0530

10. PW4 further deposed that he assembled the persons of the locality and also made an announcement about process u/s 82 Cr.P.C. against accused Amit. Thereafter, PW4 pasted a copy of the process at the gate of the abovesaid house and recorded the statements of Bhawar Singh and Mintu, Ex.PW4/A and Ex.PW4/B. Thereafter, PW4 pasted a copy of the process on the notice board of the Court Room No. 56, Ms. Mayuri Singh, Ld. MM, Karkardooma Courts, Delhi too. His detailed report dated 23.08.2013 on the backside of summons issued by the Hon'ble Court is Ex.PW4/C. On 20.02.2014, his statement was recorded in the Hon'ble Court of Ms. Mayuri Singh, Ld. MM, Court No. 56 Karkardooma Courts, Delhi, Ex.PW4/D.

11. PW5 HC Dharmender deposed on 04.06.2012, he was posted as Constable at PS Harsh Vihar and on that day, he joined the investigation of the present case along with IO/ASI Darshan Lal and they went to the house of accused Amit i.e. H. No. 634, Gali No. 9/2, Pratap Nagar, Delhi where they met his father namely Devi Sharan, who produced him to IO. Accused Amit was arrested vide arrest memo dt. 04.06.2012, Ex.PW5/A and his personal search was conducted vide memo dt. 04.06.2012, Ex.PW5/B. The information about his arrest was given to his father Devi Sharan. IO collected his age proof i.e. MCD Birth Certificate from his father and prepared his age memo, Ex.PW5/C. Accused Amit was produced before the Hon'ble Court after medical examination. They returned back to the PS and IO recorded his statement. PW5 had correctly identified accused Amit in the Court.

KUMAR Digitally signed by KUMAR RAJAT RAJAT 13:09:55 +0530 Date: 2025.11.11

12. PW6 HC Rahul deposed that on 07.04.2012, he was posted as Constable at PS Harsh Vihar and on that day, Duty Officer had handed over the copy of DD No. 13A to hand over the same to ASI Darshan Lal. Thereafter, PW6 reached Fanne Khan More, where he met ASI Darshan Lal and handed over the said DD No. 13A to him. Thereafter, they reached the spot i.e. A- Block, near Naval Ka Mandir, Pratap Nagar, Saboli, Delhi. No eye-witnesses of the incident met them there and public persons informed that injured had been taken to hospital by PCR van. ASI Darshan Lal left PW6 at the spot and he had gone to hospital. ASI Darshan Lal returned back at the spot from hospital and handed over a rukka to PW6 for registration of FIR and sent him to PS at around 1.15 PM. PW6 reached the PS where PW6 handed over the rukka to Duty Officer for registration of FIR, then DO handed over the computerized copy of FIR and original rukka to PW6.

13. PW6 further deposed that he returned to the PS and handed over the same to IO ASI Darshan Lal. Thereafter, they had tried to search the accused. In the meanwhile, one secret informer met them and stated that accused involved in the present case was present at Gali No. 9, Pratap Nagar. Thereafter, they reached there and secret informer pointed towards accused Amit, who was apprehended, interrogated and arrested vide arrest memo, Ex.PW6/A, personally searched vide memo, Ex.PW6/B. After interrogation, disclosure statement of accused Amit was recorded by the IO, Ex.PW6/C and he was taken to GTB Hospital for his medical examination. PW6 had correctly State Vs. Amit FIR No. 44/2012 PS Harsh Vihar Page 6 of 26 Digitally signed KUMAR by KUMAR RAJAT RAJAT 13:09:59 Date: 2025.11.11 +0530 identified accused Amit in the Court.

14. PW7 SI Darshan Lal deposed that on 07.04.2012, he was working as ASI at PS Harsh Vihar and on that day, he was on emergency duty and his duty hours were from 08:00 am to 08:00 PM. On that day, at about 10:35 am, on receiving DD No. 13A, PW7 along with Ct. Rahul went to the spot i.e. A-Block, Pratap Nagar, Near Naval ka Mandir, Saboli, Delhi where they came to know that injured along with his brother Anuj had already been taken to the GTB Hospital by PCR van i.e. B-34.

15. PW7 further deposed that he went to the GTB Hospital leaving Ct. Rahul at the spot and collected the MLC of injured Nitin Kumar S/o Chanderpal, but injured was unfit for the statement. PW7 interrogated the brother of injured namely Anuj, who disclosed that he reached the spot just after the incident and he was running from the spot and his brother Nitin was pointing towards accused Amit and saying "pakdo-pakdo" and in the meantime, PCR van and he (Anuj) took Nitin Kumar to the Hospital in the PCR van. PW7 searched for the eye-witnesses, but in vain. PW7 returned to the spot and prepared the rukka, Ex.PW7/A and handed over the same to Ct. Rahul for registration of the FIR and he went to the PS and got registered the FIR and returned back and handed over copy of FIR and original rukka to PW7.

16. PW7 further deposed that one secret informer met them and gave secret information regarding accused Amit and he was arrested from A-Block, Pratap Nagar, Delhi vide arrest memo, dt. 07.04.2012 Ex.PW6/A, his personal search was also State Vs. Amit FIR No. 44/2012 PS Harsh Vihar Page 7 of 26 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:

2025.11.11 13:10:05 +0530 conducted vide memo, dt. 07.04.2012, Ex.PW6/B and his disclosure statement was recorded vide statement, Ex.PW6/C. His medical examination was got conducted and then he was sent to the lock-up. On 09.04.2012, victim/injured Nitin Kumar got discharged from the hospital and returned to his house. PW7 went to the house of victim and he joined the investigation of the present case and they went to the aforesaid spot where PW7 prepared the site plan, Ex.PW1/A at the instance of injured. PW7 recorded the statement of injured Nitin u/s 161 Cr.PC and obtained the final opinion regarding nature of injuries on the MLC of injured Nitin Kumar, which was grievous in nature and added Section 308 IPC.

17. PW7 further deposed that on 04.06.2012, he along with Ct. Dharmender went to his house situated at H. No. A-634, Gali No. 9/2, Pratap Nagar, Delhi and arrested him vide arrest memo dt. 04.06.2012, Ex.PW5/A, his personal search was also conducted vide memo, Ex.PW5/B. Information regarding his arrest was given to his father namely Devi Sharan, who produced his birth certificate and PW7 prepared the age memo, dt. 04.06.2012, Ex.PW5/C. Accused Amit produced before the Court after his medical examination and sent to JC. PW7 recorded the statements of Ct. Dharmender, Sachin Kumar and Nitesh Kumar u/s 161 Cr.PC. After completion of investigation, PW7 prepared the charge-sheet and submitted it before the Hon'ble Court. PW7 had correctly identified accused Amit in the Court.

18. PW8 HC Amit Kumar deposed that on 30.03.2013, he was posted as Constable at PS Harsh Vihar and on that day, the State Vs. Amit FIR No. 44/2012 PS Harsh Vihar Page 8 of 26 Digitally signed KUMAR by KUMAR RAJAT RAJAT 13:10:09 Date: 2025.11.11 +0530 execution of proceedings u/s 82 Cr.PC, Ex.PW8/A against accused Amit, S/o Devi Sharan, Village Baral, PS Gulawati, District Bulandshahr, UP was marked to PW8 by the SHO PS Harsh Vihar. PW8 went to the said address where he met Gram Pradhan of Village Baral, who disclosed that he was not residing in the Village Baral. PW8 pasted a copy of process u/s 82 Cr.PC against him at public places (common passage of the village) and also issued public proclamation in loud voice with the help of drum in the common places of the above said village.

19. PW8 further deposed that he had also pasted a copy of process u/s 82 Cr.PC against him on the notice board of the Court of Sh. Sunil Gupta, Ld. MM, KKD Court, Delhi. The Gram Pradhan gave certificate, Ex.PW8/B and seal of Gram Pradhan namely Rambir Singh at point B, regarding the above said facts that no person with his name was residing in the village and also regarding the pasting of one copy of process of the Court on public places (common passage of the village) and also regarding the public proclamation (munadi). No person with his name could be found in the above said village. PW8 also made arrival and departure entry at PS Gulawati and copy of the Same is Ex.PW8/C. PW8 prepared his detailed report, Ex.PW8/D and submitted it before the Court.

20. PW9 HC Puneet Malik deposed that on 30.09.2022, he was posted as Head Constable at AATS/North, Timarpur Office, Delhi. On that day, at about 03:30 pm, one secret informer came at their office and disclosed that he was declared Proclaimed Offender in case FIR i.e. 44/2012, PS Harsh Vihar, State Vs. Amit FIR No. 44/2012 PS Harsh Vihar Page 9 of 26 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:

2025.11.11 13:10:14 +0530 could be apprehended at Village Mamura, Noida, UP as he would come at about 07:00-08:30 pm to meet someone. PW9 shared the information with Inspector, AATS North, telephonically and as per his direction, one raiding team was formed including SI Yogender, HC Om Prakash and PW9.

21. PW9 further deposed that he collected the relevant records i.e. copy of PO order and FIR. Thereafter, he along with SI Yogender, HC Om Prakash and secret informer left their office vide DD No. 6, Ex.PW9/A on private vehicle for the Village Mamura, Noida UP and reached there and at about 08:30 pm, secret informer pointed towards accused Amit, coming from street no. 9, Village Mamura and identified him. Accused Amit was apprehended and after interrogation, his name was disclosed and he was taken to the AATS Office, North District, Timarpur, Delhi and he was arrested vide arrest memo, dated 30.09.2022, Ex.PW9/B, his personal search was also conducted vide memo, Ex.PW9/C. Copy of PO order dt. 17.04.2015 is Ex.PW9/D. Information regarding his arrest was given to his brother telephonically. Accused Amit was medically examined and information about his arrest was given at PS Harsh Vihar. PW9 made arrival entry i.e. GD No. 2A, dt. 01.10.2022, Ex.PW9/E. PW9 prepared the kalandara u/s 41.1(C), Cr.PC, Ex.PW9/F. Accused Amit was produced before the Court.

STATEMENT OF ACCUSED U/S 351 BNSS/313 CR.P.C.

22. Statement of accused Amit was recorded u/s 351 BNSS/313 Cr.P.C. on 28.10.2025 and he denied the incriminating evidence put to him and he stated that all the witnesses are State Vs. Amit FIR No. 44/2012 PS Harsh Vihar Page 10 of 26 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:

2025.11.11 13:10:18 +0530 interested witnesses and he was falsely implicated by the police officials in the present case without any fault on his part. He was got declared PO by the police without any proper service and he had never absconded nor he committed any crime in the present matter and that is why, victim has not supported the case of prosecution and due to weak case, the police got the order of PO against him without following proper procedure as per law. He is innocent and praying for acquittal as he was falsely implicated in the present case.

APPRECIATION OF EVIDENCE, ANALYSIS OF WITNESSES AND FINDING ARGUMENTS OF LD. AMICUS CURIAE FOR ACCUSED

23. It is argued by Ld. Amicus Curiae for accused Amit that he had been falsely implicated by the police at the instance of complainant and he had never caused any injury to the victim/complainant and that is why the complainant has not identified the accused in the court as the one, who had committed crime with him or caused any injury to him and he has not supported the case of prosecution at all even after, he was cross- examined by Ld. Addl. PP for the State. It is further submitted that accused Amit was not present at the alleged date, place and time and there is no CDR of his presence at the spot nor there is any CCTV footage of the incident. No weapon was used in the crime and no weapon was recovered at the instance of accused and he had never made any disclosure statement to the police. Thus, prosecution failed to prove charge u/s 308 IPC against the accused Amit beyond reasonable doubt.

KUMAR by KUMAR RAJAT RAJAT Date: 2025.11.11 13:10:23 +0530

24. It is further submitted that accused had no knowledge, if any proceedings had taken place against him in his absence and he never absconded. There is no witness, who has deposed against the accused and PO proceedings were wrongly conducted against him and proper procedure was not followed as per Section 82 Cr.P.C. and he was not served with any process of Court and there are no photographs of affixation of proclamation u/s 82 Cr.P.C. at the house of accused or Court Room and there is no publication in newspaper and no independent/public witness is examined and if the main offence is not proved, the accused cannot be held liable for the offence u/s 174A IPC.

ARGUMENTS OF LD. ADDL. PP FOR THE STATE

25. Ld. Addl. PP for the State has argued that prosecution has proved its case against the accused beyond reasonable doubt and the complainant has deposed the same date, time, place and manner of occurrence as stated in his complaint and the accused had caused grievous injury to the injured with intention to cause culpable homicide as victim was hit on the head and he started bleeding and he was hit on the other parts of the body also and he was unfit for statement and all the police witnesses have also corroborated the version of complainant and correctly identified him during their testimony and the site plan and the arrest of the accused is also proved by them along with the MLC. The accused deliberately absconded during trial and was declared PO by the Court on 17.04.2015 after due inquiry and the prosecution witnesses have proved the process of executing the proceedings u/s 82 Cr.P.C. and thus, prosecution has proved its case against State Vs. Amit FIR No. 44/2012 PS Harsh Vihar Page 12 of 26 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2025.11.11 13:10:28 +0530 the accused u/s 308/174A IPC, beyond reasonable doubt and he may be convicted.

26. I have heard the rival contentions and perused the records.

27. The prosecution has examined 9 witnesses to prove its case including PW1/complainant.

28. The charge against accused is u/s 308 IPC.

308. Attempt to commit culpable homicide-

"Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."

PUBLIC WITNESSES

29. The injured/victim was examined as PW1, who deposed that on 07.04.2012, at about 10.30 AM, when he was returning to home from his work and reached Naval Mandir, A Block, Pratap Nagar, Saboli Delhi, one person abused him and gave beatings in his stomach/abdomen and he fell down and again he was hit on his head by that person and he fell down and that person fled away, his brother Anuj reached there and PW1 shouted "Pakdo-Pakdo" and became unconscious. PW1 was unfit to give statement due to pain in the head.

30. PW1 did not identify the accused and he stated that he could not see the face of the person, who had beaten him even State Vs. Amit FIR No. 44/2012 PS Harsh Vihar Page 13 of 26 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:

2025.11.11 13:10:33 +0530 after his attention was drawn to the accused Amit in Court. PW1 was declared hostile and in his cross-examination by Ld. APP, PW1 denied that there was money transaction between him and accused Amit and accused demanded money from him at the time of incident, but PW1 refused to give as he did not have money at that time. PW1 also denied that accused Amit started abusing him and on asking the reason and that he would pay the money when he had the same, then accused got angry and he had given beating to PW1 at the aforesaid date, time and place. PW1 denied the contents of his statement u/s 161 Cr.P.C. dated 09.04.2012, Mark X, even after he was confronted with the same.

PW1 also denied that he shouted "Pakdo-Pakdo", Amit "Mujhe maark kar bhag raha hai" or that IO prepared site plan, Ex.PW1/A at his instance and stated that IO obtained his signatures on blank paper.

PW1 has not supported the case of prosecution at all and even did not identify the accused nor made any allegations against him.

31. PW2 Anuj was not the eye-witness and he deposed that on 07.04.2012 at about 10-11 AM, he came to know that someone was beating his brother Nitin and he went to Naval Mandir, Pratap Nagar, Delhi and saw his brother lying there and he took him to the hospital. PW2 was declared hostile. During cross-examination by Ld. Addl. PP, PW2 denied that when he reached the spot, he saw accused Amit running from there or that his brother Nitin disclosed him that Amit was running after beating him and he said "Pakdo-Pakdo" and Nitin got State Vs. Amit FIR No. 44/2012 PS Harsh Vihar Page 14 of 26 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2025.11.11 13:10:38 +0530 unconscious. PW2 denied the contents of his statement u/s 161 Cr.P.C. dated 09.04.2012, Mark Y, even after he was confronted with the same and even did not identify the accused present in the Court. The testimony of PW2 is hearsay in nature and even he failed to throw any light on the case and even did not identify the accused.

32. PW3 Nitesh was not an eye-witness and he deposed that on 07.04.2012 at about 10.30 AM, when he went to Naval Mandir, Pratap Nagar, Delhi, some persons were talking that one person had fight with Nitin and he had given him beatings and he called elder brother of Nitin and went to his duty. PW1 did not know, who had caused the injury and even his evidence is hearsay, which is not admissible especially in the absence of any corroborating evidence.

POLICE WITNESSES

33. PW5 HC Dharmender deposed that he visited the house of accused Amit at Pratap Nagar, Delhi and arrested him vide memo, Ex.PW5/A and his personal search, Ex.PW5/B was conducted, which is also deposed by PW7, but nothing was recovered in the same.

34. PW6 HC Rahul deposed that on receipt of DD No. 13A, Ex.PA2, he reached at Naval Mandir, Pratap Nagar, Delhi and met ASI Darshan Lal, who left for hospital and on return, he handed over rukka to PW6 for registration of FIR and after registration of FIR, he handed over the same to IO/ASI Darshan Lal and on the information of secret informer, they arrested the accused Amit from Pratap Nagar, Delhi vide arrest memo, State Vs. Amit FIR No. 44/2012 PS Harsh Vihar Page 15 of 26 KUMAR Digitally signed by KUMAR RAJAT RAJAT 13:10:43 +0530 Date: 2025.11.11 Ex.PW6/A and got him personally searched vide memo, Ex.PW6/B, which is also deposed by PW7. The accused was arrested on 04.06.2012 vide memo, Ex.PW5/A and again arrested on 07.04.2012, vide memo, Ex.PW6/A. There is no explanation as to why two times accused was arrested on different dates and two separate personal search memos were prepared. PW6 and PW7 deposed that PW7/IO recorded the disclosure of Amit, Ex.PW6/C, but the same is not admissible in view of the embargo u/s 25 & 26 Indian Evidence Act.

35. PW7 IO/ASI Darshan Lal deposed that on 07.04.2012 on receipt of DD No. 13A, he along with Ct. Rahul reached at Naval Mandir, Pratap Nagar, Delhi and then, he went to GTB Hospital to see the victim and as per MLC, victim Nitin Kumar was unfit for statement and he recorded the statement of his brother Anuj, who stated that Nitin pointed towards Amit and said "Pakdo-Pakdo". PW7 prepared the rukka, Ex.PW7/A and got registered the FIR. PW7 deposed that he prepared site plan, Ex.PW1/A at the instance of injured, but the same is denied by PW1, which makes the place of incident doubtful. No weapon was recovered in the crime being used by the accused and the accused was not identified by injured/eye witness and other public witnesses and thus, identification by police witnesses, who are not eye-witnesses, has no significance.

MEDICAL EVIDENCE

36. PW7 deposed that he obtained opinion on nature of injuries to injured Nitin, which was found to be grievous in nature. As per MLC of the injured dated 07.04.2012, Ex.PA3, the State Vs. Amit FIR No. 44/2012 PS Harsh Vihar Page 16 of 26 Digitally signed KUMAR by KUMAR RAJAT RAJAT 2025.11.11 Date:

13:10:47 +0530 nature of injury is grievous in nature, which is not disputed by the accused, who admitted the same, but submitted that he had not caused the injury and even victim has not identified him.

From the evidence on record, the identity of the accused as assailant, who caused injury to the victim Nitin Kumar has not been established and thus for the grievous injury to the victim proved by the prosecution, cannot be proved to be caused by accused Amit.

37. Another charge against accused is u/s 174A IPC.

Section 174A IPC: Non appearance in response to a proclamation under Section 82 of Act 2 of 1974.

Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (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 sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.

The crux of Section 174A IPC is that proclamation u/s 82 Cr.P.C. has to be executed in terms of the procedure as mentioned in 82 Cr.P.C. and if the accused does not appear at a specified date and time mentioned in the proclamation, then he is liable under this Section. Before proceeding further, I would like to advert to Section 82 Cr.P.C., which reads as under:

"82. Proclamation for person absconding -

(1) If any 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 State Vs. Amit FIR No. 44/2012 PS Harsh Vihar Page 17 of 26 Digitally signed by KUMAR KUMAR RAJAT Date:

RAJAT 2025.11.11 13:10:52 +0530 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 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;

(ii) 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 Sections 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-section (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they State Vs. Amit FIR No. 44/2012 PS Harsh Vihar Page 18 of 26 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2025.11.11 13:10:56 +0530 apply to the proclamation published under sub-section (1).

38. As per Section 82 (2) Cr.P.C., the said proclamation u/s 82 Cr.P.C. shall be affixed on the conspicuous place of town, village or home, where such person ordinarily reside and shall be publicly read in conspicuous part of such town or village and shall also be affixed on conspicuous part of Court House and Court may also direct the same to be published in daily newspapers. This shows that all the sub-clauses of 82 (2) Cr.P.C. are mandatory in nature except the last one, which is the discretion of the Court as in the last sub-clause, the word 'may' has been used and in the previous clauses, the word 'shall' has been used.

39. In case titled as "Rajesh Ebrahimkutty Majidhabeevi Vs. State (Govt. of NCT of Delhi) & Anr., in Crl. M.C. 2514/2020 decided on 07.10.2021, Hon'ble Delhi High Court had relied upon the Judgment of G.Sagar Suri Vs. State & Anr., 2003 SCC Online Del, 759, where the importance of recording reasons by the Magistrate before issuing written proclamation has been noted, besides highlighting that the process illustrated in Section 82 Cr.P.C. may first be exhausted before directing attachment of property of the person absconding :

"13. It is manifest from the provisions of Section 82 Cr.P.C. that before publishing the written proclamation requiring the accused to appear under the provisions of Section 82 Cr.P.C., the Court has to record the reasons either after taking evidence or without evidence that a person against whom warrants have been issued has absconded or is concealing himself so that such warrants cannot be executed. The State Vs. Amit FIR No. 44/2012 PS Harsh Vihar Page 19 of 26 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2025.11.11 13:11:01 +0530 procedure for publication of the proclamation is laid down in sub-section (2) of Section 82. Sub-section (1) provides that the Court shall wait for thirty days after publication of the proclamation for appearance of the accused and it is only after processes under Section 82 Cr.P.C. are exhausted that the next step under Section 83 is to be taken by the Court ".

and held that the provisions of 82(1) and (2) Cr.P.C. should be construed strictly.

40. As per 82(3) Cr.P.C., the Court issuing proclamation should make a statement in writing to the effect that the proclamation was duly published on a specified day as per Section 82(2)(i) Cr.P.C. and as per order dated 17.04.2015, on the basis of statements of HC Abdesh Kumar and Ct. Amit Kumar and their respective reports and documents, Ld. Trial Court declared him PO, when he failed to appear before it.

41. Ld. Amicus Curiae for accused submitted that he had not deliberately absconded and he was not aware of the proceedings in the present case and due process of law as settled in the judicial precedents and as required u/s 82 Cr.P.C., has not been followed. He relied upon the judgment of Daljit Singh Vs. State of Haryana, 2025 INSC 21.

42. Ld. APP submits that accused had deliberately absconded and derailed the trial and he was declared PO vide order dated 17.04.2015 after he failed to appear despite proclamation u/s 82 Cr.P.C. was issued and executed and it is a separate offence.

43. The accused had absconded and he was declared PO vide order of Ld. MM dated 17.04.2015 after he failed to appear State Vs. Amit FIR No. 44/2012 PS Harsh Vihar Page 20 of 26 KUMAR Digitally signed by KUMAR RAJAT RAJAT Date: 2025.11.11 13:11:05 +0530 as per the proclamation u/s 82 Cr.P.C. The prosecution examined 3 witnesses, PW4, PW8 and PW9 to prove the charge u/s 174A IPC.

44. PW4 Abdesh Kumar deposed that on being entrusted with process u/s 82 Cr.P.C. qua accused Amit for execution by the Court of Ld. Concerned MM, KKD Courts, Delhi, he reached H.No. 634, Gali No. 9/2, Pratap Nagar, Mandoli, Delhi on 29.07.2013 where house owner Bhanwar Singh met him, who disclosed that accused Amit, who was residing on rent there, had vacated the said house and his whereabouts were not known. Similar statement was given by another neighbour Mintu. PW4 made announcements against accused Amit after assembling the persons of locality and also pasted copy of process at the gate of his house and recorded the statements of said persons, Ex.PW4/A and Ex.PW4/B respectively and he also pasted one copy on the notice board of the court and his report dated 23.08.2013 is Ex.PW4/C and his statement was recorded in concerned MM Court, Ex.PW4/D.

45. PW4 had not produced any photograph regarding pasting of proclamation at the house of accused or the Court room nor he had produced any video recording/photographs of the announcements made by him. PW4 had even not deposed in Court or before Ld. MM nor mentioned in his report, Ex.PW4/C that he had clicked the photographs regarding the proceedings u/s 82 Cr.P.C. nor he recorded the statement of independent persons regarding affixation proclamation u/s 82 Cr.P.C. at the court room or at the conspicuous part of the house or home town of the State Vs. Amit FIR No. 44/2012 PS Harsh Vihar Page 21 of 26 Digitally signed by KUMAR KUMAR Date:

RAJAT RAJAT 13:11:10 2025.11.11 +0530 accused nor any such person examined by proseuction. There is no publication of the process u/s 82 Cr.P.C. in the newspapers. In his cross-examination, PW4 stated that he did not record the statements of residents where he roamed at the said house of accused and he did not make any announcement by beating of drum nor he took any photographs of pasting of summons at the said house of accused or at the Court room.

46. PW8 HC Amit Kumar deposed that proclamation u/s 82 Cr.P.C., Ex.PW8/A against accused Amit was marked to him and he visited his address at village Baral, PS Gulawati, District Bulandshahr, UP and met Gram Pradhan, who disclosed that accused Amit was not residing there and he pasted copy of said proclamation at public places and also on the notice board of court of Ld. MM and he had obtained the statement/certificate of Gram Pradhan, Ex.PW8/B that accused Amit was not residing there and also regarding pasting of process u/s 82 Cr.P.C. at public places in said village. PW8 had also made public announcement with the help of drum.

47. During his cross-examination, PW8 stated that he had pasted copy of said proclamation outside the wall of bank in the village, but failed to state the name of the bank and admitted that he had not taken the photographs of the process nor he took any photographer with him and even he did not record the statement of person, with whose help he did the Munadi in the said village nor he could produce the receipts of the usage of said drum and the process and even he did not produce any photograph of pasting the proclamation outside the Court and even could not State Vs. Amit FIR No. 44/2012 PS Harsh Vihar Page 22 of 26 KUMAR Digitally signed by KUMAR RAJAT RAJAT 13:11:14 +0530 Date: 2025.11.11 produce the bus ticket of the bus, from which he had gone to Buldanshahr, UP. Like PW4, PW8 had also not produced any photograph regarding pasting of proclamation at the house of accused or the Court room nor he had produced any video recording/photographs of the announcements made by him. PW8 had even also not deposed in Court or before Ld. MM nor mentioned in his report, Ex.PW8/C that he had clicked the photographs regarding the proceedings u/s 82 Cr.P.C. There is no publication of the process u/s 82 Cr.P.C. in the newspapers. No independent/public witness was examined by prosecution regarding the affixation and other proceedings during the execution of proclamation u/s 82 Cr.P.C.

48. PW9 HC Punit Malik proved the DD No. 6, Ex.PW9/A regarding the leaving from office on the information of secret informer with police team for village Mamora, Sector-62, UP where accused Amit was apprehended and arrested vide arrest memo, Ex.PW9/B and prepared the Kalandara, Ex.PW9/F and the copy of the order of PO declaration dated 17.04.2015 is Ex.PW9/D, but the arrest of the accused does not touch upon the process followed at the time of execution of said proclamation.

49. As per the judgment of Daljeet (Supra), Hon'ble Supreme Court held that-

11. The appellant has been acquitted which means that there is no case for which his presence is required to be secured. Resultantly, the appeal is allowed. In the attending facts and circumstances of the case, i.e. that the original offence pertains to the year 2010; the money subject matter of dispute stands paid, the judgment of the High Court with the particulars State Vs. Amit FIR No. 44/2012 PS Harsh Vihar Page 23 of 26 KUMAR Digitally signed by KUMAR RAJAT RAJAT Date: 2025.11.11 13:11:18 +0530 as mentioned in paragraph 1 of this judgment, stands quashed and set aside.

All criminal proceedings, inclusive of the FIR under section 174A IPC, shall stand closed. The appellant's status, as a 'proclaimed person' stands quashed.

Thus, considering all the above facts and circumstances, the prosecution failed to prove the charge u/s 174A IPC against accused Amit beyond reasonable doubt.

DEFENCE OF THE ACCUSED

50. Accused Amit in his statement u/s 351 BNSS/313 Cr.P.C. denied the incriminating evidence put to him and stated that all the witnesses are interested witnesses and he was falsely implicated by the police officials in the present case without any fault on his part. He was got declared PO by the police without any proper service and he had never absconded nor he committed any crime in the present matter and that is why, victim has not supported the case of prosecution and due to weak case, the police got the order of PO against him without following proper procedure as per law.

51. The accused had not examined any defence witness in his defence. It is settled principle of criminal jurisprudence that prosecution has to prove its case against accused beyond reasonable doubt and the defence of the accused will come into play if foundational facts and strong evidence is brought on record, on the basis of which accused can be convicted, but in this case no such evidence came against the accused during trial and even the identity of accused is not established during trial and no foundational facts were laid by the prosecution and the proclamation u/s 82 Cr.P.C. could not be executed nor the State Vs. Amit FIR No. 44/2012 PS Harsh Vihar Page 24 of 26 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2025.11.11 13:11:23 +0530 prosecution proved the same against the accused beyond reasonable doubt.

52. In Kailash Gour and Ors. Vs. State of Assam reported in MANU/SC/1505/2011, (2012) 2 SCC 34, Apex Court has observed that an accused is presumed to be innocent till he is proved guilty beyond a reasonable doubt is a principle that cannot be sacrificed on the altar or inefficiency, inadequacy or inept handling of the investigation by the police. The benefit arising from any such faulty investigation ought to go to the accused and not to the prosecution.

53. In Subramanya Vs. State of Karnataka, dt. 13.10.2022, in Crl. Appeal No. 242/2022, Hon'ble Supreme Court of India has held that it is settled principle of law that when two views are possible from the prosecution evidence, the one which is favourable to the accused shall have to be taken and the benefit of doubt shall have to be given to the accused.

54. The Hon'ble Supreme Court has time and again held that onus and duty to prove the case against the accused is upon the prosecution and prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence if there is a reasonable doubt with regard to the accused, the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may be made to the Judgments titled as 'Nallapati Sivaiah Vs. Sub Divisional Officer, Guntur', reported as VIII (2007) SLT 454 (SC) in this respect. Reference may also be made to the Judgment titled as 'Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan', reported State Vs. Amit FIR No. 44/2012 PS Harsh Vihar Page 25 of 26 KUMAR Digitally signed by KUMAR RAJAT RAJAT 13:11:28 +0530 Date: 2025.11.11 as (2013) 5 SCC 722, wherein it was held that the large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied and the Court must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused persons.

Thus, the benefit of doubt is to be given to the accused and as such prosecution failed to prove the charge u/s 308/174A IPC against the accused Amit.

CONCLUSION

55. In the totality of the circumstances brought on record by way of evidence, it is observed that the prosecution has failed to prove its case, beyond reasonable doubt against the accused Amit u/s 308/174A IPC. Consequently, the accused Amit is acquitted of the offence u/s 308/174A IPC.

File be consigned to Record Room after necessary compliance. Digitally signed by KUMAR KUMAR RAJAT PRONOUNCED IN OPEN COURT RAJAT Date:

2025.11.11 13:11:33 +0530 ON THIS 11th DAY OF NOVEMBER, 2025.

(KUMAR RAJAT) ASJ-07/SHD/KKD Court/Delhi 11.11.2025 State Vs. Amit FIR No. 44/2012 PS Harsh Vihar Page 26 of 26