Delhi District Court
State vs Mohd Rafiq @Mohd Khalid on 6 January, 2024
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-08,
WEST DISTRICT TIS HAZARI COURTS, DELHI
Presided by: Hem Raj, DHJS
CNR No. DLWT01-003086-2022
SC No. 190/2022
FIR No. 776 /2003
PS: Tilak Nagar
U/s 393/394/397/174A IPC & 27 Arms Act
In the matter of:-
State
Versus
Mohd. Rafiq @ Mohd. Khalid
S/o Mohd. Maqsood
R/o H. No. WZ-169 (3),
Khyala Village, New Delhi
Date of Institution of case : 01-04-2022
Date of reserving Judgment : 03-01-2024
Date of pronouncement of judgment : 06-01-2024
Appearance:
For the State : Mr. Himanshu Garg, Ld. Additional
Public Prosecutor.
For accused : Ms. Kanchan Sharma, Ld. LAC.
JUDGMENT
1. This is the second round of the trial of accused Mohd. Rafiq as earlier, he was declared PO in this case. Initially, four State Vs Mohd. Rafiq @ Mohd. Khalid SC No. 190/22 FIR No. 776/2003 1/18 accused persons namely Mohd. Rafiq (present accused), Ramesh, Mohd. Mustkeel @ Lallu and Kunal @ Tinka were forwarded by SHO PS Tilak Nagar for the commission of offence u/s 393/394/397/398/34 IPC.
2. On 01.05.2004, my Ld. Predecessor framed a charge against all the aforesaid accused persons for the commission of offence u/s 393 r/w 34 IPC as well as u/s 394 r/w 34 IPC. Accused Mohd. Rafiq was separately charged for the offence u/s 397 IPC as well as section 27 Arms Act.
3. During the trial, accused Mohd. Rafiq absented himself from the proceedings and was declared proclaimed offender on 10.02.2009.
4. Vide judgment dated 22.01.2010 of my Ld. Predecessor, accused Ramesh, Mohd. Mustkeel @ Lallu and Kunal @ Tinka were acquitted of the charges u/s 393 r/w 34 IPC and 394 r/w 34 IPC.
5. Accused Mohd. Rafiq later on, was arrested u/s 41.1(C) Cr.P.C on 29.01.2022 by the police officials of PS Rajouri Garden. He was produced before the court. Later on, a supplementary chargesheet for the offence u/s 174A IPC was filed against him.
6. On 12.05.2022, charge for the offence u/s 174A IPC was framed against the accused to which he did not plead guilty and claimed trial.
The case of the prosecution:-
7. The facts of the prosecution case, in brief, are that one Chandiram @ Chandu(PW-1) was working as an Aadhti (आढतत) and dealing with the sale purchase of vegetables in Kesho Pur State Vs Mohd. Rafiq @ Mohd. Khalid SC No. 190/22 FIR No. 776/2003 2/18 Subzi Mandi at his shop no. 18. On 06.10.2023, at about 5 a.m, he was parking his Maruti 800 car bearing no. DL4CH 6425, in the mandi, then two young boys came there. One boy caught hold of his collar and tried to drag him out of the car. He raised his voice on which his Munim Ravinder (PW2) came there and nabbed one of the boy. The other boy allegedly accused Mohd Rafiq, shot on the legs of Ravinder with the help of a Katta which hit on his knee. Both boys thereafter ran on foot towards the gate of the Subzi Mandi. Later on complainant specified that actually there were two more persons involved in the incident as they were sitting on the pavement giving the cover to the first two offenders.
On information of the incident, the police first reached at the spot and from there to the hospital where Ravinder was found admitted with gun shot injury. FIR was registered and the investigation was ensued. Crime team was called at the spot and the Exhibits along with the photographs were taken. In view of the statements of the witnesses, the matter was discussed with the senior officers and sections were changed from 307 IPC to 393/394/398 IPC.
8. It is further the case of prosecution that accused Mohd. Rafiq, Ramesh, Mustkil and Kunal were arrested in FIR No. 780/2003 PS Khyala wherein they had disclosed the commission of offence in this case. Their TIPs were fixed. Except accused Mohd. Rafiq, all the other accused persons refused to participate in the TIP. Accused Mohd. Rafiq was correctly identified in the TIP. The katta used in this case by accused Mohd. Rafiq was recovered in case FIR No. 780/2003 and a fresh FIR bearing no.
State Vs Mohd. Rafiq @ Mohd. Khalid SC No. 190/22 FIR No. 776/2003 3/18 787/03 was registered. The katta was sent to the FSL. One bullet piece was also recovered from the car of the complainant which was also sent to the FSL alongwith the Katta. On the MLC of the injured Ravinder, doctor opined the injury as grievous. After the completion of the investigation, the prosecution filed the main chargesheet before the court.
The evidence by the prosecution:-
9. In order to prove its case, the prosecution led the following evidence:-
Oral Evidence PW-1 Sh. Chandi He is complainant of the case. Ram PW-2 Sh. Ravinder He is the Injured and the eye witness of Singh the case.
PW-3 Ct. Jaiveer He deposed about the investigation. Singh PW-4 SI Devender Being the crime team incharge, he Singh prepared detailed crime scene report of the spot.
PW-5 Mohd. Yusuf He made call to the police from his mobile number.
PW-6 SI Attar Singh He arrested accused Mohd. Rafiq, Mohd.
Mustakeel @ Lalu, Ramesh and Kunal in other case FIR No. 780 and recorded their disclosure statements regarding their arrest in present FIR.
PW-7 Dr. Renu R. She prepared the MLC Ex. PW-7/A of
Sehgal injured Ravinder.
PW-8 Dharampal Dropped by the prosecution
PW-9 ASI Om He joined the investigation with the IO
Prakash and deposed about the same in the court.
PW-10 Ct. Anil He proved DD entries duly recorded by
him
PW-11 ASI Daya He recorded FIR no. 776/03 u/s 307 IPC
State Vs Mohd. Rafiq @ Mohd. Khalid SC No. 190/22 FIR No. 776/2003 4/18 Kishan & 25/54/59 Arms Act and proved the same in the court.
PW-12 Ct. Harish He joined the investigation with SI Ishwar Kumar Singh and deposed about the same.
PW-13 Ct. Sita Ram He joined the investigation with IO ASI Om Prakash and SI Ishwar Singh. He took the tehrir to the police station for registration of FIR.
PW-14 Dr. Anjali She prepared the MLC Ex.PW-14/A of Sareen injured Ravinder.
PW-15 Ct. Inderjeet He deposited two sealed parcels handed over by SHO PS Tilak Nagar in the FSL. PW-16 Sh. K.C He proved FSL report prepared by him. Varshney, Sr. Scientific Officer, FSL PW-17 Ms. Archna She proved the TIP proceedings Sinha, LD. MM PW-18 SI Dharam He deposed about the investigation Pal conducted by him.
PW-19 Dr. K.K He proved MLC no. 20744 dated Kumra 06.10.2003 of injured Ravinder.
PW-20 Ishwar Singh He deposed about the investigation.
Documentary evidence:
Ex.PW-1/A Complaint on which FIR was registered Ex. PW-1/B Seizure memo of empty shell of cartridge Ex.PW-2/A Statement of PW-2 Ravinder Singh Ex.PW-3/1 to Photographs of the spot Ex.PW-3/5 Ex.PW-3/6 to Negatives of the photographs of the spot Ex.PW-3/10 Ex. PW-4/A Crime scene report Ex.PW-6/A Disclosure statement of accused Mohd.
Rafiq State Vs Mohd. Rafiq @ Mohd. Khalid SC No. 190/22 FIR No. 776/2003 5/18 Ex.PW-6/B Disclosure statement of accused Mustakeel @ Lalu Ex.PW-6/C Disclosure statement of accused Ramesh Ex.PW-6/D Disclosure statement of accused Kunal Ex.PW-7/A MLC of injured Ravinder Ex.PW-9/A Seizure memo of car no. DL4CH 6425, blood-stained note concrete and sample road concrete Ex.PW-10/A DD No. 33 Ex.PW-10/B DD No. 34 Ex.PW-10/C DD No. 35 Ex.PW-11/A Copy of FIR no. 776/03 U/s 307 IPC & 25/54/59 Arms Act Ex.PW-11/B Endorsement of PW ASI Daya Kishan on rukka Ex.PW-12/A to Arrest memo of accused persons Ex.PW-12/D Ex.PW-12/H Pointing out memo of place of occurrence Ex.PW-14/A X-Ray report vide MLC no. 20744 of injured Ravinder Ex.PW-16/A FSL report prepared by Sh. K.C Varshney, Sr. Scientific Officer, FSL Ex.PW-17/A Endorsement of Ld. MM on the application for TIP proceedings.
Ex.PW-17/B TIP proceedings running in two sheets. Ex.PW-17/C to Separate TIP proceedings of accused. Ex.PW-17/E Ex. PW-20/A Endorsement u/s 307 IPC and u/s 25/54/59 Arms Act.
Ex.PW-20/B Site Plan
10. After the arrest of accused Mohd. Rafiq @ Mohd. Khalid on 29.01.2022, following evidence was led by the prosecution:-
State Vs Mohd. Rafiq @ Mohd. Khalid SC No. 190/22 FIR No. 776/2003 6/18 Oral evidence:
PW-20 ACP Ishwar He was examined again after the arrest of Singh accused Mohd. Rafiq and identified accused in the court.
PW-21 HC He deposed about arrest of accused Shamsher Singh Mohd. Rafiq and preparation of Kalandara u/s 41.1 (c) Cr.P.C.
PW-22 HC Vinod He prepared Kalandara u/s 41.1 (c) Cr.P.C and arrested accused Mohd. Raifq. He also conducted personal search of accused.
PW-23 ASI Charan He deposed about the investigation Singh conducted by him after the arrest of accused Mohd. Rafiq vide Kalandara u/s 41.1 (c) Cr.P.C.
Documentary evidence:
Mark PW-21/A Arrest memo of accused Mohd. Rafiq Mark PW-21/B Personal search memo of accused Mohd.
Rafiq Ex.PW-22/A Kalandara u/s 41.1 (c) Cr.P.C prepared by HC Vinod.
Ex.PW-22/B Arrest memo of accused Mohd. Rafiq prepared by HC Vinod.
Ex.PW-22/C Personal search memo of accused Mohd.
Rafiq prepared by HC Vinod.
Ex.PW-23/A Arrest memo of accused Mohd. Rafiq prepared by ASI Charan Singh Ex.PW-23/B Disclosure statement of accused Mohd.
Rafiq recorded by ASI Charan Singh The statement of accused u/s 313 Cr.P.C:
11. The statements of accused 313 Cr.P.C was recorded. The incriminating circumstances appearing in evidence against the accused were brought to his notice and his explanation was State Vs Mohd. Rafiq @ Mohd. Khalid SC No. 190/22 FIR No. 776/2003 7/18 sought. Accused claimed that he was innocent and had been falsely implicated in this case. Accused did not wish to lead defence evidence.
12. Heard the Ld APP for the State and the Ld LAC for the accused. Record perused.
13. It is settled principle of criminal jurisprudence that the prosecution has to prove the case against the accused beyond reasonable doubt and the accused has to prove its defence on preponderance of probabilities. What do we mean by the expression 'beyond reasonable doubt'?
14. For our good fortune, the said expression has been defined by the Hon'ble Supreme Court in the various judgments. In the judgment of Paramjeet Singh @ Pamma Vs. State of Uttarakhand, 2011CRI.L.J.663, Hon'ble Mr. Justice Dr. B. S. Chauhan, elaborated the concept of Standard of Proof in a criminal trial in the following terms:
"11. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination or fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with commission of a crime, the court has to judge the evidence by the yardstick of probabilities, intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions." Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, State Vs Mohd. Rafiq @ Mohd. Khalid SC No. 190/22 FIR No. 776/2003 8/18 since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide: Kashmira Singh Vs. State of Madhya Pradesh, AIR 1952 SC 159; State of Punjab Vs. Jagir Singh Baljit Singh & Anr. AIR 1973 SC 2407;
Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, AIR 1981 SC 765; Mousam Singha Roy & Ors. Vs.State of West Bengal, (2003) 12 SCC 377; and Aloke Nath Dutta & Ors. Vs. State of West Bengal, (2007) 12 SCC
230).
12. In Sarwan Sigh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, this court observed (Para12) :
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted."
15. Furthermore, in the judgment of Sucha Singh and Another Vs. State of Punjab, (2003 ) 7 SCC 643, the Hon'ble Supreme Court explained the term Beyond Reasonable Doubt and observed as under:
21. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. [See Gurbachan Singh v. Satpal Singh and others, AIR 1990 SC 209 : 1990(1) RCR(Crl.) 297 (SC)]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840 : 1992(3) RCR(Crl.) 63 (SC)]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders State Vs Mohd. Rafiq @ Mohd. Khalid SC No. 190/22 FIR No. 776/2003 9/18 whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. v. State of (Delhi Admn.) (AIR 1978 SC 1091)].
Vague hunches cannot take place of judicial evaluation.
"A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh, AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
16. The accused has been charged with the commission of the offence under section 393/394/34 and section 397 IPC. He has also been charged with the offence under section 27 Arms Act and section 174 A IPC as well.
17 In the judgment of Dilawar Singh v. State of Delhi, (2007) 12 SCC 641, the Hon'ble Supreme Court stated the essen- tial ingredients of section 397 in the following manner:
"19. The essential ingredients of Section 397 IPC are as follows:
1. The accused committed robbery.
2. While committing robbery or dacoity (i) the accused used deadly weapon (ii) to cause grievous hurt to any per-
son (iii) attempted to cause death or grievous hurt to any person.
3. "Offender" refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punish- ment. It only envisages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provi- sion. But the other accused are not vicariously liable un- der that section for acts of the co-accused."
17. Section 393 IPC reads as under:-
"Attempt to commit robbery- Whoever attempts to State Vs Mohd. Rafiq @ Mohd. Khalid SC No. 190/22 FIR No. 776/2003 10/18 commit robbery shall be punished with rigorous impris- onment for a term which may extend to seven years, and shall also be liable to fine."
18. Section 394 IPC reads as under:-
"Voluntarily causing hurt in committing robbery- If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempt- ing to commit such robbery, shall be punished with im- prisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be li- able to fine."
19. Section 27 Arms Act reads as under:-
"27. Punishment for using arms, etc-
(1) Whoever uses any arms or ammunition in contraven-
tion of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine."
(2) ******** *********** *********
(3) ******** *********** *********
20. Section 174A IPC provides that if a person fails to appear at the specified place and the specified time as required by proclamation published under sub section 1 of section 82 of Cr.P.C, then the said person is liable to a punishment with impris- onment for a term which may extend to three years or with fine or with both and where the publication is published under sub section 4 of section 82 of Cr.P.C, then the said person is liable to a punishment with imprisonment for a term which may extend to seven years and with fine. The accused has been charged for the offence u/s 393/394/34 and 397 IPC along with section 27 Arms Act. The offence u/s 393/394/34 and 397 IPC fall under State Vs Mohd. Rafiq @ Mohd. Khalid SC No. 190/22 FIR No. 776/2003 11/18 sub section 4 of section 82 Cr.P.C and thus, in this case the of- fence under section 174A IPC is punishable with imprisonment which may extend to seven years and with fine.
22. To prove the case against the accused for the charges 393/394/34 and 397 IPC, the prosecution has relied upon the tes- timonies of PW-1 Chandi Ram and PW-2 Ravinder. The case of the prosecution was that PW-2 Ravinder after hearing the noise, reached at the spot where the alleged robbery was taking place with PW-1 Chandi Ram. However, he was not the eye witness of the alleged robbery. A careful perusal of his testimony shows that he deposed about the incident and supported the case of the pros- ecution. However, when it comes to the identification of the ac- cused persons, he did not support the prosecution case and failed to identify the accused. He was cross-examined by the Ld. Addl. PP where he also denied having made certain statements to the police for which he was duly confronted with his statement by the Ld. Addl. PP. He denied that he identified the accused per- sons in the court where he reached outside the court room and identified them when they were being produced in the court. Hence, the testimony of this witness shows that he deposed about the incident to the extent that he reached at the spot on the noise where he saw offenders having an altercation with the com- plainant and that one of those two boys hit him with the bullet but had not identified the accused persons.
23. Moreover, PW-2 did not depose anything about the com- mission of offence of robbery. Nowhere in his testimony, he stated that the offenders were demanding any money from PW-1 nor he deposed that there was any attempt on the part of the of-
State Vs Mohd. Rafiq @ Mohd. Khalid SC No. 190/22 FIR No. 776/2003 12/18 fenders to rob PW-1 of his belongings. To prove the offence u/s 393/394/34 IPC or 397 IPC, it must have come on record that ac- cused persons were either attempting to commit robbery or have committed robbery or that someone used a deadly weapon in committing robbery or dacoity or caused grievous injury to any person or attempted to cause death or grievous hurt to any per- son. However, this witness has failed to depose anything about the robbery. Although he deposed about receiving a bullet injury by him from one of the offenders, but he did not corroborate the prosecution case regarding the aspect of robbery.
24. Similarly, PW-1 Complainant Chandi Ram has also not deposed anything about the fact whether the offenders attempted to rob him or they have robbed something from him or the bullet was fired with intention to commit robbery or dacoity with him. He only deposed that accused Rafiq caught hold of his color and holding a pistol in his hand on which he raised his voice. Hearing noise, PW-2 Ravinder came there to help him and he was still sit- ting in his car when Ravinder kept his hand on accused Rafiq on which Rafiq fired a shot from the country made pistol which hit on the foot of Ravinder. He also identified co-accused Kunal (al- ready acquitted) standing with Rafiq at the spot. He further de- posed that he thought that he was attacked with an intention to rob as they carried money for the transaction at the time in rou- tine course when the incident took place.
25. Ld. Prosecutor has argued that once the witness has de- posed that he thought that he was attacked with the intention to rob the attempt of robbery can be inferred thereto and the witness is not required specifically deposed about the attempt of robbery.
State Vs Mohd. Rafiq @ Mohd. Khalid SC No. 190/22 FIR No. 776/2003 13/18 However, I am not inclined to accept the submission of Ld. Addl. PP as in my considered opinion, the witness is required to depose specifically about the incident so that the court can decide whether the incident happened with the witness actually fell within the legal definition of an offence or not. The court cannot go into the mind of a witness to decide as to what offence has been committed when nothing has been deposed specifically by him. It is well settled principle of law that to prove an offence, all the essential ingredients of the offence have to be proved. PW-1 has not deposed anything on the aspect of alleged robbery.
26. The witness was cross-examined on behalf of accused Ku- nal (since acquitted). After the cross-examination, the Ld. Addl. PP was allowed to re-examine PW-1. However, in the re-exami- nation by the State, no suggestion was put to the witness regard- ing the robbery. Moreover, after the cross-examination of PW-1 by all the other accused persons, the witness was not declared hostile by the State. The witness was not cross-examined and thus, nothing came on the record regarding any attempt or com- pletion of robbery against this witness.
27. In view of the testimonies of PW-1 Chandi Ram and PW-2 Ravinder, it is crystal clear that the prosecution has not been able to bring the sufficient evidence either for the attempt to robbery or the completion of robbery or the hurt by the bullet shot to PW- Ravinder in committing or attempting to commit robbery or da- coity. Therefore, the prosecution has not been able to prove the case against the accused u/s 393/394/34 and 397 IPC.
28. Now, let me discuss if the prosecution has been able to prove the offence u/s 27 Arms Act. Again, we have to fall back State Vs Mohd. Rafiq @ Mohd. Khalid SC No. 190/22 FIR No. 776/2003 14/18 upon the testimonies of PW-1 and PW-2. At the cost of repeti- tion, it can be said that PW-2 has failed to identify the accused, hence, his testimony is not helpful to the prosecution case. PW-1 identified the accused Rafiq as the person who used the pistol and shot PW-2. Accused has been identified in the judicial TIP in Tihar Jail. However, this witness has also deposed that he also identified the accused Rafiq in police station prior to visiting Ti- har Jail. Thus, the witness had seen the accused in the police sta- tion before the accused was identified in Tihar Jail in judicial TIP. Thus, a doubt was created in the sanctity of the TIP of the accused. Ld. Addl. PP argued that even if the accused was seen by the witness in the police station, the identification of the ac- cused is still proved as the witness had sufficient time to note the features of the accused in the incident and though the judicial TIP of the accused was conducted, but there was no requirement of the same. The submission of Ld. Addl. PP is legally maintainable in as much as it is settled law that the non-holding of TIP or wit- ness seeing the accused before the TIP, is not material where the witness had sufficient time to note down the features of the ac- cused in the incident. But, I am not inclined to accept the submis- sion of Ld. Addl. PP in view of the deposition of this witness. The witness deposed that another person was also standing with accused Rafiq on the footpath. He pointed out towards accused Kunal (since acquitted) but he again stated that as it was partly lighted at the time of the incident, he could not see whether Ku- nal was the same person who was present at the spot along with accused Rafiq as he was disturbed. This deposition of witness is not believable as he has identified accused Rafiq, but could not State Vs Mohd. Rafiq @ Mohd. Khalid SC No. 190/22 FIR No. 776/2003 15/18 identify accused Kunal (since acquitted) as it was partly lighted. It defies the common logic that the witness has been able to iden- tify accused Rafiq, but for the want of proper light, could not identify accused Kunal with certainty. Hence, I am of the consid- ered opinion that this deposition of the witness cannot be relied upon to return to the finding that it was accused Rafiq, who used a fire arm in the incident. A serious doubt has emerged in the prosecution case and thus, the accused is entitled to the benefit of doubt thereto. Accordingly, accused Rafiq is also acquitted from the offence u/s 27 Arms Act.
29. Now remains the offence u/s 174A IPC. Record reveals that the accused was declared proclaimed offender vide order dated 10.02.2009. To prove the said offence against the accused, the prosecution has relied upon testimonies of PW-21 HC Shamsher Singh, PW-22 HC Vinod and PW-23 ASI Charan Singh.
30. PW-21 HC Shamsher Singh and PW- HC Vinod are the witnesses to the arrest of accused in Kalandara u/s 41.1 (c) Cr.P.C. They both deposed that on 29.01.2022, the accused Mohd. Rafiq was apprehended at Sanatan Dharam Mandir Khyala Village, Delhi. He was arrested vide memo Ex.PW-21/A and his personal search was carried vide memo Ex.PW-21/B. PW-23 ASI Charan Singh is the IO of the case, who deposed re- garding the formal arrest after he was produced before the Ld. Duty MM after his apprehension under the Kalandara u/s 41.1(c) Cr.P.C. They were cross-examined by the Ld. LAC, however nothing favourable to the accused came on the record. The testi- monies of PW-21 and PW-22 remained unshaken and their credi-
State Vs Mohd. Rafiq @ Mohd. Khalid SC No. 190/22 FIR No. 776/2003 16/18 bility could not be impeached.
31. But still the court has to see if the proclamation under sec- tion 82 Cr.P.C has been executed properly or not. Record reveals that vide order dated 26.09.2008, non bailable warrants issued against the accused received back unexecuted on 05.11.2008 as he was not found residing at the given address. On the same day, the court issued process u/s 82 Cr.P.C against the accused return- able for 23.12.2008 and it was also directed that the process be published in the newspaper "Daink Jagran".
32. The bail bonds furnished by the accused shows that the ac- cused was released on personal bond furnished in the jail. After order dated 24.04.2008, he furnished his personal bond in the jail showing his address as H. No. 261, Jhuggi Meera Bagh, Paschim Vihar, Delhi. The accused has his permanent address at village Gulganj, PO Bada Malhera PS Gulganj, District Chhatarpur, M.P. The process u/s 82 Cr.P.C was executed on both the addresses on 20.12.2008. Publication was also done in news- paper on 20.12.2008.
33. Process server HC Jagbir Singh deposed that on 20.12.2008, he got published the publication in the newspaper and he further deposed that he executed the proclamation on both the addresses of the accused. His report Ex.CW-1/E shows that he got published the proclamation in newspaper on 20.12.2008 and thereafter he went to execute the process to Chhatarpur, M.P. The report implies that after the publication of the proclamation in the news paper only he went to the native place of the accused at Chattarpur, MP. His report is dated 22.12.2008. The date for his appearance was 23.12.2008.
State Vs Mohd. Rafiq @ Mohd. Khalid SC No. 190/22 FIR No. 776/2003 17/18
34. Section 82 Cr.P.C provides that the proclamation shall give the time to the accused of not less than 30 days to appear in the court from the date of publication of such proclamation. The proclamation was published in the newspaper on 20.12.2008 and thereafter the process server went to Chhatarpur, M.P to execute the process. Clearly, 30 days time as stipulated by the law, was not given to the accused to appear in the court. Hence, I am of the considered opinion that the proclamation published against the accused was bad in law and not properly executed. Accord- ingly, the accused cannot be convicted for the offence u/s 174A IPC either, hence, he stands acquitted for the same as well.
Conclusion:
35. In view of the aforesaid discussions, I am of the consid- ered opinion that the prosecution has miserably failed to prove its case against the accused beyond reasonable doubt. Accordingly, accused Mohd. Rafiq @ Mohd. Khalid stands acquitted for the offences u/s 393/394/34 and 397 IPC. Accused also stands ac- quitted for the offences u/s 27 Arms Act and u/s 174A IPC.
36. The personal bond of accused Mohd. Rafiq @ Mohd. Khalid u/s 437 Cr.P.C is accepted for a period of six months for the purpose of appeal. He be released from jail forthwith, if not required in any other case. Case property, if any be destroyed af- ter expiry of period of appeal.
37. File be consigned to record room. Digitally signed by HEM HEM RAJ Date:
Pronounced in the open RAJ 2024.01.06
16:14:01
+0530
Court on 06-01-2024. (HEM RAJ)
Addl. Sessions Judge-08 (West)
Tis Hazari Courts Delhi
State Vs Mohd. Rafiq @ Mohd. Khalid SC No. 190/22 FIR No. 776/2003 18/18