Delhi District Court
State vs . Anil Kumar Jain on 1 May, 2012
IN THE COURT OF MS. MONA TARDI KERKETTA, MM-08 (SE)
SAKET COURTS COMPLEX
STATE VS. ANIL KUMAR JAIN
FIR NO. : 30/02
P.S. : GK-1
U.S. : 25 Arms Act
Unique Identification No. : 02406R0191342011
Serial No. : 47/2/11
Date of institution of case : 08.08.2002
Date on which case reserved : 01.05.2012
for judgment
Date of judgment : 01.05.2012
JUDGEMENT U/S 350 Cr.PC.:
a) Date of offence : 31.01.2002 & 13.10.08
b) Offence complained of : U/s. 25 Arms Act and 174 A(1) IPC
c) Name of accused, his : Anil Kumar Jain
parentage S/o Sh. Ram Swaroop Jain
R/o D-3, House No. 486,
Nand Nagri, New Delhi.
d) Plea of accused : Pleaded not guilty
e) Final order : Acquitted U/s. 25 Arms Act
Convicted U/s. 175 A(1) IPC
Counsels for the Parties
Ld. APP For the State : Sh. Mayank Tripathi
Ld. Counsel for the accused : Ms. Kamlesh Sharma, LAC
BRIEF REASONS FOR THE DECISION OF THE CASE:-
1.In brief, the case of prosecution is that on 31.01.2002 at about 9 PM at N-Block, Market Parking, GK-1, behind ME-4, GK-1 New Delhi within the jurisdiction of PS GK-1, accused was found in possession of one buttondar knife having total length of 24.1 cms, length of the blade 10.2 cms and handle was 13.9 cms without the licence in contravention of notification of Delhi Administration and thereby committed offence punishable under FIR No. 30/02, PS G.K.-I State Vs. Anil Jain 1/10 section 25 Arms Act. Accused was arrested being involved in a non bailable 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. Charge for the offence punishable U/s 25 Arms Act was framed against the accused on 01.06.2004, to which he pleaded not guilty and claimed trial. Thereafter he stopped appearing before the court. Coercive steps were taken to secure the presence of accused but he did not appear before the court despite being released on bail. 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 13.10.2008, he was declared a proclaimed offender and the case file was consigned to the Record Room with liberty to revive the case as and when the accused got traceable. On 02.07.2011, accused was arrested, produced before the Court and remanded to Judicial Custody and 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 and additional charge under section 174(1)-A IPC was also framed against him on 26.08.11, to which also he pleaded not guilty & claimed trial.
3. In order to substantiate its version, prosecution filed list of Six witnesses U/s. 25 Arms Act and three witnesses U/s. 174-A IPC but examined only Seven witnesses.
PW1 HC Shiv Dayal was the Duty Officer. He has proved the copy of FIR Ex PW1/A and his endorsement on rukka vide Ex PW1/B, bearing his FIR No. 30/02, PS G.K.-I State Vs. Anil Jain 2/10 signatures at point A.
4. PW2 HC Ram Hari Pathak deposed that accused was declared P.O. on 13.10.2008 in the present case. He learned that accused was in J/C in some other case of FIR No. 4/11 PS G.K-I and on 30.06.2011, he had requested for production warrant of accused from the concerned Court vide request letter Ex.PW1/A, on 02.07.2011 accused was produced before the court and was taken into custody in the present case and he got lodged the DD entry Ex.PW1/B at PS G.K-I. He also correctly identified the accused. The accused was offered to cross examine the witness but he did not cross examine him despite the opportunity.
5. PW3 HC Mahender Singh deposed that on 12.07.2011 he received a call from PS-Amar Colony through HC Ram Hari Pathak regarding arrest of accused who was already declared as P.O. and lodged the DD entry Ex. PW1/B. During cross examination he deposed that he had received the call at about 05.00 pm and lodged the DD entry after receiving information through phone.
6. PW4 HC Lalit Kumar deposed that on 12.07.2011, he received an information from HC Ram Hari Pathak through telephone regarding the arrest of accused. He deposed that accused was formally arrested by HC Ram Hari Pathak and was handed over to him. He prepared the charge sheet U/s. 174A IPC against the accused and filed the same before the Court. He also correctly identified the accused. During cross examination, he deposed that DD entry was lodged at PS regarding the arrest of accused and thereafter it was marked to him for preparation of challan. He denied the suggestion that he deposing falsely.
7. PW5 SI Arun Kumar Verma deposed that on 31.01.02, he along FIR No. 30/02, PS G.K.-I State Vs. Anil Jain 3/10 with Ct. Rajender were on patrolling duty, at about 09.00 pm, when they were present at M-Block Market, GK-I, they noticed one person at the parking under suspicious circumstances, he went to him and inquired about his presence there, on which he started running but was apprehended by them at a little distance. He further deposed that he conducted his formal search and one buttondar knife was recovered from the right pocket of his pants. Thereafter, he prepared the rough sketch of recovered knife and measured the same, the total length of knife was found to be 24.1 cms, blade of 10.2 cms and handle of 13.9 cms. The sketch was Ex. PW4/A, bearing his signatures at point A. Thereafter, he prepared the pulinda of knife and sealed it with the seal of AV. The seal was handed over to Ct. Rajender after its use and thereafter, he seized the said knife vide seizure memo Ex. PW4/B, bearing his signatures at point A. He also prepared rukka Ex. PW1/B and sent Ct. Rajender to PS for registration of FIR. After some time Ct. Rajender came back to the spot along with Ct. Chandrabhan, to whom the further investigation was marked. At the spot, he handed over the accused to the second IO along with the pulinda and the sketch of the knife. The second IO prepared the site plan at his instance and recorded his statement and thereafter, he left the spot. He identified the accused and case property Ex. P-1.
8. During cross examination he deposed that he had made DD entry of his departure from PS for patrolling duty, but he did not remember its number. He admitted that the spot was a busy place and several people used to pass through the spot but at the time of incident, no public person was found present being winter season. He admitted that he had not offered his personal search to the accused prior to conducting his personal search. He deposed that he had made efforts to join the public persons from the nearby spot but admitted that this fact was not mentioned by him in the rukka prepared. He deposed that the second IO arrived at the spot at FIR No. 30/02, PS G.K.-I State Vs. Anil Jain 4/10 about 10.30 pm and prior to his arrival, he had prepared the rough sketch, seizure memo and pulinda of knife. The FIR Number on the exhibits PW1/A, B and C were added by the second IO. He denied the suggestion that he was deposing falsely.
9. PW5 Ct. Rajender Singh deposed to the line of PW4. He also proved the rough sketch of recovered knife Ex. PW4/A, Seizure memo Ex. PW4/A, Arrest Memo Ex. PW5/A and Personal Search Memo Ex PW5/B. He also identified the accused and case property Ex. P-1. Accused was offered to cross examine the witness but he did not cross examine him despite opportunities.
10. PW7 ASI Chander Bhan was the second I.O. He also deposed to the line of PW 4 and 5. In addition to that he also deposed that o n the date of incident, he was entrusted with the further investigation of the case and he along with Ct. Rajender went at the spot, where SI Arun Verma and accused met him. SI Arun Verma handed over the accused, a pulinda of knife duly sealed with the seal of AV, sketch of knife and seizure memo. He also prepared the site plan at the instance of SI Aruna Verma vide Ex. PW6/A, bearing his signatures at point A. He also proved Arrest Memo Ex. PW5/A and Personal Search Memo Ex PW5/ B, bearing his signatures at points B. Accused was sent to the lock up and case property was deposited in the Malkhana. He prepared the challan and submitted the same in the Court. During cross examination he denied the suggestion that accused was falsely implicated in the present case and all the documents were prepared in the PS and that he was deposing falsely.
11. During the trial accused did not dispute the genuineness of Entries of Register No.19, DAD Notification hence examination of concerned MH(C)M, Clerk was dispensed with. The DAD Notification was marked as Mark B. Thereafter, PE was closed as no other witness was FIR No. 30/02, PS G.K.-I State Vs. Anil Jain 5/10 left to be examined. Accused was examined U/s. 313 Cr.PC read with section 281 CrPC 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 in this case, but preferred not to lead evidence in his defence.
12. The main arguments of Defence are:-
(1) The testimonies of Prosecution witnesses are full of contradictions and raising doubts over the truthfulness of Prosecution story.
(2)Non-joining of independent witnesses despite their availability also makes the case of Prosecution doubtful.
(3) Site Plan, Personal Search Memo and other documents were prepared before sending rukka
13. Admittedly no Personal Search of Police Officials was offered to the accused before conducting his personal search. Accused was not absconding but he was unable to appear before the court as he was running in judicial custody in some other case.
14. The main arguments of Prosecution are:-
(1) Sufficient material is available on record to prove the guilt of accused.
(2) Contradictions appearing in the testimonies of Prosecution witnesses are minor in nature and don't go to the root of case.
15. Generally Public Persons do not come forward to join in a police FIR No. 30/02, PS G.K.-I State Vs. Anil Jain 6/10 case.
16. Accused was absconding and was deliberately not appearing before the court.
17. The court has heard the arguments of both sides and also perused the entire record including the testimonies of witnesses. Though the testimonies of some of the prosecution witnesses have remained unchallenged as the accused has not put cross questions to them but nonetheless after appreciation of testimonies of witnesses as well as the material placed on record, the 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 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 FIR No. 30/02, PS G.K.-I State Vs. Anil Jain 7/10 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 Officials had offered his personal search for effecting the personal 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).
(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).
18. 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.
FIR No. 30/02, PS G.K.-I State Vs. Anil Jain 8/10 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.
19. 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.
20. After having discussed the principle and scope of section 174-A IPC, the court would like to advert to the facts and circumstances of the present case, accused was on court bail, he appeared for few dates of hearing but later on he stopped appearing before the court. On account of his non appearance, NBW's were ordered to be issued and other coercive steps were taken 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 04.12.07 directed to initiate proclamations under section 82 Cr.PC. The process was received back executed,however, accused again failed to appear on the date fixed before court despite proclamation u/s 82 Cr.P.C. thereafter, vide order dated FIR No. 30/02, PS G.K.-I State Vs. Anil Jain 9/10 13.10.08 accused was declared as Proclaimed Offender in the present case.
21. Though accused has taken the defence that he was in judicial custody in some other case but he has not brought anything on record to show that he in Judicial Custody in some other case. Perusal of order sheet of even dates show that accused was enlarged on bail several times but the moment he was bailed out he used to stop appearing before the court.
22. It is apparent from the record that the accused failed to appear without sufficient reason. He was intentionally not appearing before the court and deliberately concealing himself in order to avoid the execution of warrant upon himself. The court is of the view that the 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.
23. In view of foregoing discussions, accused is acquitted from the charge framed U/s. 25 Arms Act. However, he stands convicted for the offence punishable under section 174-A (1) IPC.
ANNOUNCED IN THE OPEN COURT (MONA TARDI KERKETTA)
TODAY ON 01.05.12 MM-08 (South-East)
Saket Courts New Delhi
FIR No. 30/02, PS G.K.-I State Vs. Anil Jain 10/10