Delhi District Court
State vs . Shayak Alam on 19 October, 2011
IN THE COURT OF SH. DEEPAK DABAS
METROPOLITAN MAGISTRATE (CENTRAL04): DELHI
FIR No. 424/2001
ID R0466012003
U/s. 379/511 IPC
and 147/179 of Railway Act
PS NDRS
State vs. Shayak Alam
JUDGMENT
1. Sr. No of case 84/2
2. Date of commission of offence 2.6.2001
3. Name of complainant Sh. Joseph
4. Name of accused Shayak Alam
s/o. Sh. Md Jaffar
r/o. H No. T400/1
Gautampuri, Seelampur, Delhi.
5. Offence complained of u/s. 379/511 IPC
& 147/179 Railway Act
6. Plea of accused Pleaded not guilty
7. Final order Acquitted for offences
punishable u/s. 379/511 IPC
& u/s. 147/179 Railway Act &
Convicted u/s. 174A IPC
8. Date of such order 19.10.11
424/2001 NDRS page1/
BRIEF REASONS FOR SUCH DECISION:
1. The prosecution was set into motion in the present case on the basis of statement of the complainant i.e. Sh. Joseph dated 2.6.2001. In his statement the complainant had alleged that on 2.6.01 at about 3.00 PM he alongwith his family had come to New Delhi Railway Station as they were going to Kerala. It is further alleged that his children were sitting at platform No. 67 and he had gone to fetch water from the nearby water tank. It is further alleged that there was rush at the place of drinking water and he waited for his turn. It is further alleged that when he was about to take the water he felt some sensation in the back pocket of his pant. It is further alleged that he turned back and found the accused was trying to remove the purse from the pocket of his pant. It is further alleged that he caught hold of the hand of the accused in the pocket of the pant itself and raised alarm of chorchor as a result of which police came there and he handed over the accused to the police.
2. After completion of investigation, chargesheet was filed. Accused was summoned and provision of section 207 cr.p.c. were complied with.
424/2001 NDRS page2/
3. The particulars of offence were explained to accused in Hindi language and charge for offences punishable u/s. 379/511 IPC and u/s. 147/179 of Railway Act was framed against the accused to which he pleaded not guilty and claimed trail and accordingly the case was fixed for prosecution evidence.
4. Thereafter, accused absconded and was declared proclaimed offender vide order dated 13.6.2008.
5. After rearrest of the accused, supplementary chargesheet was filed for offence punishable u/s. 174 A IPC. Cognizance of the said offence was taken and an additional for offence punishable u/s. 174 A IPC was framed against the accused on 20.4.11. Thereafter, prosecution examined six witnesses in support of its case.
6. PW1 is SI Mahender Singh i.e. the duty officer; PW2 is HC Jasbir Singh; PW3 is ASI Mahavir Singh i.e. the investigating officer; PW4 is Ct. Harinder; PW5 is HC Naresh Kumar from PS Greater Kailash and PW6 is HC Sunil Kumar.
7. Thereafter, prosecution evidence was closed on 7.9.11 and statement of accused was recorded wherein accused denied the 424/2001 NDRS page3/ evidence that has come on record against him. Accused choose not to lead evidence in his defence.
8. I have heard Ld APP for State as well as Sh. Ved Prakash, LAC for the accused and have also carefully gone through the file.
9. PW1 SI Mahender Singh had deposed regarding registration of the FIR Ex. PW1/A in the present case.
10. PW2 HC Jasbir Singh testified that on 2.6.01 he was posted at police station New Delhi Railway Station and was on patrolling duty at platform No. 8. He further stated that at about 3.00 PM when he reached at platform no. 67 he noticed that the complainant had caught hold of an accused and HC Mahavir was also present there. He further stated that thereafter IO recorded the statement of the complainant and got the case registered through him. He further stated that after registration of the FIR accused was arrested and personal search of accused was conducted vide memo which is Ex. PW2/A and Ex. PW2/B. He further stated that after medical examination accused was put in the lockup.
11. In his cross examination, PW2 denied the suggestion that 424/2001 NDRS page4/ the accused was falsely implicated in the present case and the accused was lifted from the railway station area where he was working as driver.
12. PW3 ASI Mahavir Singh testified that on 2.6.01 he was posted at police station New Delhi Railway Station and on that day he was on patrolling duty at platform No. 67. He further stated that at about 3.00 PM he heard the noise of chorchor coming from the side of water cooler and he rushed to the spot where the complainant namely Sh. Joseph met him and handed over the accused stating that the accused attempted to steal his purse. He further stated that he recorded the statement of the complainant which is Ex. PW3/A and prepared rukka which is Ex. PW1/B and got the FIR registered through Ct. Jasbir who returned to the spot and handed over copy of the FIR and rukka to him. He further stated that he prepared site plan which is Ex. PW3/B and thereafter arrested the accused vide memo which is Ex. PW2/A and Ex. PW2/B. He further stated that after medical examination accused was put in the lockup.
13. In his cross examination, PW3 denied the suggestion 424/2001 NDRS page5/ that the accused was falsely implicated in the present case after lifting him from the platform.
14. PW4 Ct. Harinder testified that on 26.3.11 he was posted at police station New Delhi Railway Station and on that day on receipt of a telephonic call he recorded said information vide DD No. 34B and proved the copy of the DD which is Ex. PW4/A.
15. PW5 HC Naresh Kumar testified that on 26.3.11 he was posted at police station Greater Kailash and on that day he had gone to ISBT, Kashmere Gate to search an accused who was proclaimed offender. He further stated that at about 11.00 AM secret informer informed him that one proclaimed offender namely Shayak Alam will go to Seelampur Metro Station at about 12.0012.30 Noon. He further stated that he alongwith the secret informer reached at Seelampur Metro Station and apprehended the accused at the instance of informer. He further stated that he made inquiries from the accused who disclosed to be involved in a case vide FIR No. 424/01 of PS NDRS. He further stated that he verified the said fact from the Court and arrested the accused u/s. 41.1(c ) cr.p.c. vide memos which is Ex. PW5/A and Ex. PW5/B 424/2001 NDRS page6/ respectively. He further stated that he informed regarding arrest of accused to Sh. Haji Sohail and thereafter took the accused to the police station and prepared the Kalandra which is Ex. PW5/C and recorded his arrival vide DD no. 44B which is Ex. PW5/D. He further stated that thereafter accused was got medically examined and produced before the court and thereafter sent to judicial custody.
16. In his cross examination, PW5 denied the suggestion that the case against the accused is false. He also denied the suggestion that the accused was not apprehended from the spot and was lifted from his house. He also denied the suggestion that the accused was not aware that he was proclaimed offender in any case.
17. PW6 HC Sunil Kumar testified that on 26.3.11 he was posted at police station New Delhi Railway Station and the investigation of the case for offence punishable u/s. 174A IPC was marked to him and during investigation of the case he collected all relevant documents and prepared supplementary challan and filed the same in the court.
18. Accused in his statement u/s. 281/313 cr.p.c. recorded in 424/2001 NDRS page7/ court denied the evidence that has come on record against him. However, he choose not to lead evidence in his defence.
19. In order to prove its case prosecution has examined six witnesses. Out of the said six witnesses PW1, PW2 and PW3 are the witnesses who have deposed against the accused qua offence punishable u/s. 379/511 IPC and the remaining three witnesses were examined for offence punishable u/s. 174 A IPC.
20. The testimony of PW1 is of formal nature being the duty officer. PW2 and PW3 had reached the spot on hearing the alarm raised by the complainant. The testimony of PW2 and PW3 is hearsay and they have deposed whatever was told to them by the complainant. Complainant i.e. Sh. Joseph was the most important witness from the prosecution point of view. The summons qua the complainant were sent several times and each and every time they were received back unserved with the report that the address in incorrect. Repeatedly similar reports were received on the summons of the complainant. There is no other address of the complainant available on the record. Charge in this case was framed on 22.11.02 and since then several opportunities were 424/2001 NDRS page8/ granted to the prosecution to lead its evidence. Prosecution has failed to examine its important witness i.e. the complainant. Non examination of complainant is fatal for the prosecution case as his testimony was most important from prosecution point of view.
21. The testimony of the witnesses who had been examined by the prosecution in the present case qua offence punishable u/s. 379/511 IPC is not sufficient to prove the guilt of the accused. Hence, accused is acquitted for offence punishable u/s. 379/511 IPC.
22. So far as offence punishable u/s. 147/179 of Railway Act is concerned, no witness has been cited or examined by the prosecution from the Railways in support of their case. Hence accused is also acquitted for the said offence.
23. The testimony of PW4 and PW6 is also of formal nature qua offence punishable u/s. 174 A IPC. PW4 had merely recorded the DD No 34B vide which apprehension of accused was given. PW6 is the investigating officer of the case u/s. 174 A IPC and he had prepared the supplementary challan in this regard.
24. Perusal of the testimony of PW5 shows that he was 424/2001 NDRS page9/ present at Kashmere Gate in order to apprehend a proclaimed offender when he received the secret information regarding presence of accused in the present case and thereafter accused was apprehended at the instance of secret informer by him. PW5 had deposed that the accused was inquired about involvement in any case and accused had disclosed regarding the involvement in the present case i.e. vide FIR no. 424/01 of police station NDRS.
25. It is a matter of record that the accused was very well aware of the pendancy of the present case. Perusal of record clearly shows that the chargesheet in the present case was filed on 30.6.2001 and on that day the accused was produced from JC in court and the copy of the chargesheet was supplied to him. Thereafter, on 20.8.01 also the accused had appeared in court and had moved an application for cancellation of NBWs. On 22.11.02 also accused was present in the court and charge against him was framed. Thereafter, accused never appeared in court and he was declared PO vide order dated 13.6.2008. The process u/s. 82/ 83 cr.p.c. was duly complied with and only thereafter he was declared PO.
424/2001 NDRS page10/
26. Section 174 A IPC postulates that 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 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 terms which may extend to seven years and shall also be liable to fine.
27. IN the present case, it is a matter of record that accused was declared PO vide order dated 13.6.2008. The offence committed by the accused falls within the ambit of Part II of section 174 A IPC. All the essential ingredients of the offence punishable u/s. 174 A IPC stand proved beyond reasonable doubt by the testimony of PWs produced by the prosecution in support of its case. It is also a matter of record that accused was very well aware of the pendancy of the present case against him as he had appeared in this case on some dates of hearing.
28. Hence, keeping in view the facts and circumstances, I am 424/2001 NDRS page11/ of the considered view that the prosecution succeeded in proving the offene punishable u/s. 174 A IPC against the accused. Hence accused is convicted for said offence.
ANNOUNCED IN OPEN COURT DEEPAK DABAS
on 19th of October, 2011 MMCentral04:DELHI.
424/2001 NDRS page12/
IN THE COURT OF SH. DEEPAK DABAS
METROPOLITAN MAGISTRATE (CENTRAL04): DELHI FIR No. 424/2001 ID R0466012003 U/s. 174 A IPC PS NDRS State vs. Shayak Alam 19.10.11 ORDER ON POINT OF SENTENCE Present: Ld APP for state.
Convict is produced from JC.
Sh. Ved Prakash, LAC for convict is also present. I have heard Ld APP for state as well as Ld counsel for convict on the point of sentence and have perused the record.
It is submitted by Ld counsel for convict that convict had already remained in judicial custody for a period of about seven months during the trial of the present case. It is further submitted by Ld counsel for convict that convict belong to poor strata of the society. It is further submitted by Ld counsel for convict that convict is the sole bread earner for his family. It is further submitted by the 424/2001 NDRS page13/ Ld counsel for convict that convict is not a previous convict. Convict has prayed for a lenient view.
On the other hand Ld APP for State submitted that the convict be sentenced to maximum punishment as prescribed for the offence in question.
In the present case convict has been convicted for offence punishable u/s. 174 A IPC. No previous conviction has been alleged or proved against convict. Convict is having a family to support and the convict belongs to poor strata of society.
Keeping in view the facts and circumstances and more particularly the socio economic status of the convict and the fact that convict had already spent a period of about seven months in judicial custody during the trial of present case, a lenient view in the matter is taken. I am of considered view that ends of justice would be met if the convict is sentenced to SI for the period already undergone by him during the trial of present case. He be released forthwith if not wanted in any other case.
ANNOUNCED IN OPEN COURT DEEPAK DABAS on 19th of October, 2011 MMCentral04:DELHI. 424/2001 NDRS page14/