Delhi District Court
Criminal Case/94/2012 on 30 August, 2013
IN THE COURT OF METROPOLITAN MAGISTRATE-05 (SOUTH-
WEST), DWARKA COURTS, NEW DELHI
Presided by: Ms. Manika
State v. Suraj Mal
DD no. 46 B dated 25.04.2012
Police Station : Baba Haridass Nagar
Under Section : 174 IPC
Unique Case ID Number : 02405R0038242013
Date of institution : 27.04.2012
Date of reserving : 31.08.2013
Date of pronouncement : 31.08.2013
JUDGMENT
a) Serial number of the case 94/3/12 b) Date of commission of offence 17.03.2012, 28.03.2012 and 24.04.2012. c) Name of the complainant Inspector R. K. Meena d) Name, parentage and address Sh. Surajmal, of the accused S/o Sh. Ballu Ram, R/o Village and Post Office Jharoda Kalan, Delhi. e) Offence complained of Section 174 IPC f) Plea of the accused Pleaded not guilty g) Final order Acquitted h) Date of final order 31.08.2013 State v. Surajmal DD no. 46 B dated 25.04.2012 P.S.: Baba Haridass Nagar Page 1 of 9
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Vide this judgment, the accused is being acquitted of the offence punishable under Section 174 of Indian Penal Code, 1862 (hereinafter referred to as 'IPC') in this kalandra registered vide Daily Dairy no. 46 B police station Baba Haridass Nagar by giving benefit of doubt for the reasons mentioned below.
CASE OF PROSECUTION
2. Briefly stated, the case of the prosecution is that on 14.03.2012, 24.03.2012 and 22.04.2012, the complainant, Inspector R. K. Meena, who is the investigating officer in FIR no. 151/11 under Section 307/452/34 IPC, police station Baba Haridass Nagar, gave notice under Section 161 Cr. P. C. to accused Surajmal, i.e. the complainant in the said FIR, to join investigation in the said FIR, however, despite service of the said notices, accused Surajmal did not appear before the investigating officer in the said case and thus, vide Daily Dairy number 46 B, a kalandra under Section 174 IPC was registered against accused Surajmal.
CHARGE
3. Vide order dated 27.05.2013, notice under Section 251 Cr. P. C. in respect of the offence punishable under Section 174 IPC was served upon the accused to which he pleaded not guilty and claimed trial.
State v. Surajmal DD no. 46 B dated 25.04.2012 P.S.: Baba Haridass Nagar Page 2 of 9 PROSECUTION EVIDENCE
4. In support of its case, prosecution examined three witnesses. PW-1 Inspector R. K. Meena is the complainant. PW-2 Head Constable Virender is the police official who had served notice under Section 160 Cr. P. C. dated 22.04.2012 upon accused Surajmal at his house at Village and Post Office Jharodakalan, New Delhi. PW-3 Head Constable Deenanath is also a police official who had served two notices under Section 160 Cr. P. C. upon accused Surajmal.
STATEMENT OF ACCUSED
5. In his examination under Section 313 Cr.P.C., the accused denied the entire evidence put to him. He categorically stated that he had visited the police station on 3-4 occasions, however, he could not give the specific dates. He denied that he had not attended at the police station Baba Haridass Nagar on any date for which notice under Section 160 Cr. P. C. was issued to him by the investigating officer. He stated that though Head Constable Deena Nath had visited his house on one day to serve notice under Section 160 Cr. P. C. upon him, Head Constable Virender had never visited his house for the said purpose. He stated that he has been falsely implicated in this case by the police. The accused did not lead any evidence in his defence.
ANALYSIS AND FINDINGS
6. The case of the prosecution is that three notices under Section 160 Cr.P.C. dated 14.03.2012, 24.03.2012 and 22.04.2012 were served upon the accused herein requiring him to appear for State v. Surajmal DD no. 46 B dated 25.04.2012 P.S.: Baba Haridass Nagar Page 3 of 9 investigation before the investigating officer on 17.03.2012, 28.03.2012 and 24.04.2012 respectively in case FIR no. 151/11 under Section 307/452/34 IPC, police station Baba Haridass Nagar. As per the prosecution, the said notices were duly received by the accused personally, however, despite service of the same, accused deliberately disobeyed the directions contained in the said notices and did not appear before the investigating officer for investigation as required by way of the said notices.
7. To bring home the charge against the accused, the prosecution was required to prove the following :-
(i) That the notices dated 14.03.2012, 24.03.2012 and 22.04.2012 or either of them had been duly served upon the accused; and
(ii) That despite service of the aforesaid notice(s), the accused failed to appear before the investigating offi cer at the police station to join investigation.
Re: Whether the notices in question had been duly served upon the accused
8. Learned Assistant Public Prosecutor for the State submitted that all the three notices, viz. notice dated 14.03.2012 Ex. PW1/A, notice dated 24.03.2012 Ex. PW1/B and notice dated 22.04.2012 Ex. PW1/C, bear the signatures of accused Surajmal and accordingly, the said notices stand duly served upon him.
9. Though the accused has not disputed the fact that the signatures appearing on the notices in question are his, he took the State v. Surajmal DD no. 46 B dated 25.04.2012 P.S.: Baba Haridass Nagar Page 4 of 9 defence that he had joined the investigation with the investigating officer in the aforesaid FIR and that his signatures on all the notices had been obtained at the time when he had joined investigation rather than on the dates on which the said notices are alleged to have been served upon the accused. A suggestion to this effect had been put to PW-1 complainant during his cross-examination dated 01.08.2013. It is on the basis of the aforesaid defence that the learned defence counsel contended that the notices in question had not been served in the manner and on the dates as alleged by the prosecution.
10. PW-1 Inspector R. K. Meena has deposed in his examination in chief that the notices Ex. PW 1/A and Ex. PW1/B and Ex. PW 1/C all bearing his signatures were received by the accused Surajmal. He deposed that he had served three notices on the accused on 14.03.2012, 24.03.2012 and on another occasion, date whereof he could not specify. From the aforesaid, it appears that all the three notices in question had been served upon the accused by the complainant PW-1 himself personally. However, the prosecution has examined PW-2 Head Constable Virender and PW-3 Head Constable Deena Nath as witnesses who had allegedly served one or more of the notices in question upon the accused. Not only the testimony of the complainant PW-1 Inspector R. K. Meena but also the kalandra Ex. PW1/E is silent as to any of the notices in question having been served upon the accused by either of the aforesaid witnesses. Further, except in the testimony of the aforesaid witnesses, viz PW-2 and PW-3, it has nowhere been specified as to which of the notices in question had been served by each of them.
State v. Surajmal DD no. 46 B dated 25.04.2012 P.S.: Baba Haridass Nagar Page 5 of 9
11. Though in the kalandra Ex. PW 1/E, it is stated that the notice dated 14.03.2012 had been served upon the accused in/before the Court, in his testimony in Court, PW-1 complainant did not state anything to that effect. In fact, he did not even specify as to whether the notice dated 14.03.2012 had been served upon the accused by him personally or through some other police official.
12. Further, as per the prosecution, the notice dated 22.04.2012 had been served upon the accused through PW-2 Head Constable Virender. However, in his cross-examination, the said witness could not tell the number of the Daily Dairy entry vide which he had left the police station for serving the notice upon the accused. Despite opportunity, the said witness failed to bring any Daily Dairy entry in respect of his departure for service of the said notice upon the accused. He further admitted in his cross-examination that he had no document to prove that he had left the police station and served the notice upon the accused. PW-2 had also admitted in his cross- examination that he did not know whether or not he had made any arrival entry upon arrival in the police station after service of the notice upon the accused. Thus, service of notice dated 22.04.2012 upon the accused has not been proved beyond reasonable doubt.
13. As per the case of prosecution, one of the three notices in question had been served upon the accused through PW-3 Head Constable Deena Nath. In his examination in chief, PW-3 stated that he had visited the house of the accused twice to serve the notices under Section 160 Cr.P.C. upon him, however, he did not remember State v. Surajmal DD no. 46 B dated 25.04.2012 P.S.: Baba Haridass Nagar Page 6 of 9 the dates of the said visits. Thus, PW-3 has failed to specify as to which of the three notices in question had been served by him upon the accused and when. As already discussed above, the kalandra as well as the testimony of the complainant PW-1 are silent as to whether any of the notices in question had been served upon the accused PW-3 Head Constable Deena Nath and if so which of the three. Accordingly, the testimony of PW-3 to the effect that he had served one or more notice under Section 160 Cr. P. C. upon the accused is of no aid to the prosecution, in the absence of evidence to the effect that the notice(s) so served was/were one of the notices in question.
14. In view of the aforesaid discussion, this Court is of the opinion that the prosecution has failed to establish that the notices in question or any one of them had been duly served upon the accused as alleged.
Re: Whether the accused had failed to join investigation in compliance of the notices in question.
15. During his cross-examination, PW-1 Inspector R. K. Meena stated that while the first statement of the accused had been recorded by the first investigating officer therein, namely, Sub Inspector A. A. Khan, the complainant (PW-1) had also recorded a statement of the accused in case FIR No. 151/11. However, he did not remember the date on which the said statement had been recorded. Further, upon perusal of the certified copy of the police report filed in the aforesaid FIR, PW-1 admitted in his cross-examination that no such statement of accused Surajmal (complainant therein) was present therein.
State v. Surajmal DD no. 46 B dated 25.04.2012 P.S.: Baba Haridass Nagar Page 7 of 9 Thereafter, PW-1 stated in his cross-examination that he had recorded a statement of accused Surajmal under Section 162 Cr.P.C. in the aforesaid FIR which had also been signed by the accused but the same had not been filed in the judicial record of the said FIR and was rather lying with him. Despite having been allowed an opportunity to bring the said statement, the complainant/PW-1 failed to produce the same and stated in his cross-examination that the statement of the accused (complainant therein) under Section 162 Cr.P.C. was not traceable. He further admitted that he had not made any Daily Dairy entry regarding the said statement having gone missing. The aforesaid causes one to wonder as to why the statement of the accused herein in the FIR in question had in the first place not been filed along with the police report in the aforesaid FIR and thereafter not even produced by the complainant herein despite opportunity. The fact that, despite opportunity having been allowed to produce the aforesaid statements of the accused herein recorded in the case FIR in question, the complainant herein chose not to produce the same leads one to draw an adverse inference against the complainant and consequentially the prosecution that had the said statement(s) been produced, the same may have adversely affected the prosecution case. Accordingly, reasonable doubt is created as to whether the notices in question Ex. PW1/A, Ex. PW1/B and Ex. PW1/C had in fact been served upon the accused as alleged i.e. on 14.03.2012, 24.03.2012 and 22.04.2012 or the signatures of the accused had been obtained thereon on the date and time at which he had in fact joined investigation as had been suggested to PW-1 during his cross-
State v. Surajmal DD no. 46 B dated 25.04.2012 P.S.: Baba Haridass Nagar Page 8 of 9 examination by the learned defence counsel, and whether the accused had in fact disobeyed the notices in question.
16. Thus, this Court is of the opinion that the prosecution has failed to establish beyond reasonable doubt that the accused failed to appear before the investigating officer at the police station to join investigation pursuant to the notice(s) in question as alleged.
CONCLUSION
17. in view of the foregoing analysis, this Court is of the considered opinion that the prosecution has failed to prove the charge against the accused beyond reasonable doubt. Benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charges against him in the present case. The accused is hereby acquitted of the offence punishable under Section 174 of the IPC.
18. File be consigned to Record Room.
Announced in open Court on 31.08.2013.
(MANIKA) Metropolitan Magistrate-05 (South-West) 31.08.2013.
State v. Surajmal DD no. 46 B dated 25.04.2012 P.S.: Baba Haridass Nagar Page 9 of 9