Delhi District Court
State vs . on 28 November, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-06,
SHAHDARA, KARKARDOOMA COURTS,
DELHI
Presided over by- Sh. Ankur Panghal, DJS
Cr. Case No. -: 82007/2016
CNR No. -: DLSH020039872015
FIR No. -: 156/2013
Police Station -: Seema Puri
Section(s) -: 174A IPC
In the matter of -
STATE
VS.
RAVIBUL @ TESU
S/o Hatim,
R/o E-44/B-190,
New Seemapuri,
Delhi.
.... Accused
1. Name of Complainant :- Mushrat Jahan
2. Name of Accused :- Ravibul @ Tesu
3. Offence complained of or :- 174A IPC
proved
4. Plea of accused :- Not Guilty
5. Date of Commission of offence :- 22.01.2014
6. Date of Filing of case :- 03.11.2015
7. Date of Reserving Order :- 28.11.2022
8. Date of Pronouncement :- 28.11.2022
9. Final Order :- Acquitted
Argued by -: Sh. Pramod Kumar, Ld. APP for the
State.
Sh. Vijay Goswami, Ld. Counsel for
the accused.
ANKUR Digitally signed by ANKUR
PANGHAL
PANGHAL Date: 2022.11.28 21:42:22
+05'30'
Cr. Case No. 82007/2016 State vs. Ravibul @ Tesu Page 1 of 11
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION FACTUAL MATRIX
1. Briefly stated, the case of the prosecution against the accused is that on 23.03.2013 the complainant made a complaint that some persons entered into the flat of the complainant and tied the hands and mouth of mother and son of the complainant with chunni and have shown knife to mother and son of the complainant and took three rings, earrings and bangles of mother of the complainant. Thereafter, an FIR u/s 392/397/34 IPC was lodged on the same day. On 14.04.2013 as per the information received by secret informer Saibul was arrested, who in his disclosure statement mentioned about the accused, namely Ravibul @ Tesu. During investigation search was done of accused Ravibul and on 24.06.2013 NBWs of accused Ravibul were taken. Saibul was released from the present case, on 09.07.2013, as his TIP proceedings were dropped and on 22.10.2014 accused Ravibul was declared absconder. Thereafter, on 03.10.2015 accused Ravibul was apprehended and TIP proceedings with respect to him were dropped. Thereafter, a chargesheet was filed after the completion of investigation u/s 174A of the Indian Penal Code, 1860 (hereinafter referred as IPC).
APPEARANCE OF ACCUSED
2. The accused entered appearance before this court and in terms of section 207 of the Code of Criminal Procedure, Digitally signed by ANKUR ANKUR PANGHAL PANGHAL Date: 2022.11.28 21:42:38 +05'30' Cr. Case No. 82007/2016 State vs. Ravibul @ Tesu Page 2 of 11 1973 (hereinafter, "CrPC") he was supplied the copy of the chargesheet as well as documents relied upon in the same.
3. On a finding a prima facie case against the accused, a charge was framed for the offence punishable U/s 174A of IPC against the accused Ravibul @ Tesu. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt: -
ORAL EVIDENCE PW1 :- ASI Arvind Kumar (Ist IO) PW2 :- SI Vinit Kumar (IIIrd IO who filed chargesheet) PW3 :- HC Mohit (arrest witness) PW4 :- Insp. Manish Kumar (IInd IO and process server) DOCUMENTARY EVIDENCE Ex. PW1/A :- Statement of complainant Ex. PW1/B :- Tehrir Ex. PW2/A :- Arrest Memo of accused Ravibul Ex. PW2/B :- Disclosure statement of accused Ravibul Ex. PW4/A :- Arrest Memo of Saibul Ex. PW4/B :- Personal search Memo of Saibul Ex. PW4/C :- Disclosure statement of Saibul Ex. PW4/D :- Seizure Memo of knife recovered from Saibul Ex. PW4/E :- Seizure Memo of recovery of Rs. 25,500/-
from Saibul ANKUR Digitally signed
Ex. PW4/F :- Sketch Memo of knife recovered from by ANKUR
PANG PANGHAL
Date: 2022.11.28
Saibul HAL 21:42:57 +05'30'
Cr. Case No. 82007/2016 State vs. Ravibul @ Tesu Page 3 of 11
Ex. PW4/G :- Application for issuance of NBW against
accused Ravibul
Ex. PW4/H :- Application for issuance of process u/s 82
CrPC against accused Ravibul
ADMITTED DOCUMENTS (under S. 294 CrPC)
Ex. C1 :- FIR No. 156/13 PS Seemapuri
Ex. C2 :- Certificate u/s 65B of Indian Evidence
Act
5. ASI Arvind Kumar (PW-1) is the Ist IO in the present case, who stated on oath that on 20.03.2013, he was posted at PS Seema Puri as head constable on emergency duty from 8 AM to 8 PM and after receiving DD No. 34-A, he along with Ct. Mukesh visited E-10/102, Dilshad Colony, Delhi regarding the theft in the house. He met the complainant Mushrat Jahan at the spot and recorded her statement which is Ex.
PW1/A. Thereafter, he prepared tehrir which is Ex. PW1/B. Thereafter, he got registered the FIR by sending Ct. Mukesh to PS. Ct. Mukesh returned with SI Manish and he handed over copy of FIR and original tehrir to SI Manish. Thereafter, PW1 was discharged from the present case.
5.1. In cross-examination, ASI Arvind Kumar (PW1) stated that the complainant has not disclosed in her statement about the description of the accused persons.
6. SI Vinit Kumar (PW2) is the IIIrd IO in the present case, who stated on oath that on 03.10.2015, he was posted in PS Seema Puri as ICPP, Old Seemapuri. On that day, he was present at police posts Seema Puri and at about 6 PM one secret informer Digitally signed by had informed him that one person namely Ravibul, who has ANKUR ANKUR PANGHAL PANGHAL Date:
2022.11.28 already been declared proclaimed person in a case FIR no. 21:43:11 +05'30' Cr. Case No. 82007/2016 State vs. Ravibul @ Tesu Page 4 of 11 156/13 by the court, could be found near Seema Puri DTC Depot. Thereafter he, along with Ct. Mohit and secret informer visited 70 ft. road near DTC bus Depot and around 7:30 PM secret informer pointed out towards one person and told him that he is Ravibul, who is already declared PO by the court. Thereafter, he apprehended said person with the help of Ct. Mohit. Thereafter, secret informer left the spot. PW2 arrested Ravibul after interrogation and inquiry. The dossier of the accused was matched with the particulars of apprehended person. Thereafter, the accused person was arrested vide arrest memo Ex. PW2/A bearing his signatures at point A. Disclosure statement of accused was recorded vide Ex. PW2/B bearing his signature at point A. Thereafter, PW2 moved an application for conducting TIP proceedings of the accused but the complainant could not participate in TIP proceedings due to old age. PW2 prepared the chargesheet and filed it before the court. PW2 correctly identified the accused present in the court.
6.1. In cross-examination, SI Vinit Kumar (PW2) stated that secret informer did not tell him regarding the particulars and description of accused before apprehension. He accepted the suggestion that the spot where accused was apprehended was a public prone area and public persons were present at the spot. He further accepted the suggestion that no written notice was served upon the public who refused to join the investigation. However, he denied the suggestion that accused was not apprehended by him or that he is deposing falsely being the IO of the case.
ANKU Digitally signed by
7. HC Mohit (PW3) stated on oath that on R ANKUR PANGHAL PANG Date:
2022.11.28 03.10.2015, he was posted at PS Seema Puri as constable. On 21:43:41 HAL +05'30' Cr. Case No. 82007/2016 State vs. Ravibul @ Tesu Page 5 of 11 that day, he was present at police post Seema Puri and at about 6 PM one secret informer had informed SI Vinit that one person namely Ravibul, who has already been declared proclaimed person in a case FIR no. 156/13 by the court, could be found near Seema Puri DTC Depot. Thereafter he, along with SI Vinit and secret informer visited 70 ft. road near DTC bus Depot and around 7:30 PM secret informer pointed out towards one person and told him that he is Ravibul, who is already declared PO by the court. Thereafter, he apprehended the accused with the help of SI Vinit. Thereafter, secret informer left the spot. IO matched the dossier of the accused with the particulars of apprehended person. After that, accused was arrested vide arrest memo which is already Ex. PW2/A bearing his signature at point B. Disclosure statement of accused was recorded which is already Ex. PW2/B bearing his signature at point B. Accused was correctly identified by the witness in the court.
7.1. In cross-examination HC Mohit (PW3), stated that he cannot say whether secret informer told anything regarding the particulars and descriptions of the accused before apprehension to SI Vinit. He accepted the suggestion that on the spot where accused was apprehended, it was public prone area and public persons were present near the spot. He further accepted the suggestion that no written notice was served upon the public who refused to join the investigation. He denied the suggestion that accused was not apprehended or that he is deposing falsely being the police official of the case.
8. Insp. Manish Kumar (PW4) is the IInd IO and ANK Digitally signed by process server in the present case who stated on oath that on UR ANKUR PANGHAL 20.03.2013 he was posted at PS Seema Puri as SI. On that day PANG Date:
2022.11.28 HAL 21:43:59 +05'30' Cr. Case No. 82007/2016 State vs. Ravibul @ Tesu Page 6 of 11 further investigation of the present case was marked to him. During the course of investigation for the offence u/s 174A against the accused Ravibul, he arrested accused Saibul on 10.04.2013 vide arrest memo Ex. PW4/A bearing his signature at point A. He further deposed that, at that time HC Rustom Singh and Ct. Satbir were present. He conducted personal search of Saibul vide personal search memo Ex. PW4/B bearing his signature at point A. He recorded disclosure statement of Saibul which is Ex. PW4/C bearing his signature at point A. During the course of investigation, Saibul got recovered one knife from his house which was used in the commission of offence of robbery.
PW4 further deposed that at that time HC Rustom Singh, Ct. Satbir and two public witnesses namely Hazrat Ali and Virender Tyagi joined the investigation. Thereafter, he seized knife by preparing pullanda and sealed the pullanda with seal of MK vide seizure memo Ex. PW4/D bearing his signature at point A. He further deposed that Saibul got recovered ₹ 25,500/-from his house and thereafter, he seized the same vide seizure memo Ex. PW4/E bearing his signature at point A. He also prepared sketch of knife by putting it on white plain paper vide sketch memo Ex. PW4/F bearing his signature at point A. PW4 further deposed that Saibul disclosed name of his associate at the time of commission of the offence of robbery as Ravibul @ Tesu. Thereafter, he tried his best efforts to trace the accused Ravibul along with his police officials but in vain. Thereafter, he moved an application before the court for issuance of NBW against accused Ravibul @ Tesu, as he was evading his arrest, vide application Ex. PW4/G bearing his signature at point A. NBW was issued against accused Ravibul @ Tesu. He further deposed ANKUR Digitally signed by ANKUR PANGHAL that during the course of investigation, proceedings u/s 82 CrPC PANG Date:
2022.11.28 HAL 21:44:17 +05'30' Cr. Case No. 82007/2016 State vs. Ravibul @ Tesu Page 7 of 11 were initiated against the accused Ravibul on 09.07.2013 vide his application Ex. PW4/H bearing his signature at point A. on 22.01.2014 accused Ravibul was declared as absconder and his statement was recorded as process server. On perusal of judicial file it was noticed that relevant publication was not on record and statement of witness as process server is also not on record. PW4 further deposed that he got Saibul discharged on 09.07.2013 is there was no sufficient evidence against Saibul.
8.1. In cross-examination Insp. Manish Kumar (PW-4), denied the suggestion that being the IO of the present case he did not try his best efforts to trace accused Ravibul and that his statement as well as publication is not on record. He further denied the suggestion that he is deposing falsely.
8.2. Witnesses cited a serial no. 1 to 9, 11 and 12 were dropped from the list of witnesses vide order dt. 23.09.2022 as they pertained to offence u/s 392/397 IPC which is not in question as the chargesheet was filed only u/s 174A IPC.
STATEMENT OF ACCUSED
9. Thereafter, before the start of defence evidence, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of accused was recorded without oath on 28.11.2022 under section 281 read with section 313 CrPC. He stated that he is innocent and has been falsely implicated in the present case. He stated that he does not want to lead any defence evidence.
ANKUR Digitally signed by ANKUR PANGHAL PANGHAL Date: 2022.11.28 21:44:32 +05'30' Cr. Case No. 82007/2016 State vs. Ravibul @ Tesu Page 8 of 11 ARGUMENTS
10. I have heard the Ld. APP for the state and Ld. counsel for the accused at length. I have also given my thoughtful consideration of the material appearing on record.
11. It is argued by the Ld. APP for the state that all the ingredients of the offence are fulfilled in the present case. He has argued that oral as well as documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that accused be punished for the said offence.
12. Per contra, Ld. counsel for the accused has argued that the state has failed to establish its case beyond reasonable doubt. He submits that accused has been falsely implicated in the present case and process was not served to the accused person. It is further submitted that no process was served upon him at his residential address, which is E-44/B-190, New Seemapuri, Delhi. It is further submitted that statement and pubication of the process U/s. 82 Cr.P.C. is also not on record. As such, it is prayed that accused be acquitted of the said offence.
APPRECIATION OF EVIDENCE
13. The accused has been charged with the offence under section 174A IPC. The offence under section 174A IPC pertains to non-appearance in pursuance of a proclamation issued under section 82 CrPC. Failure to appear constitute the offence. Under section 82 CrPC, whenever the court comes to a conclusion that a person is absconded or concealed himself, ANKU Digitally signed by despite issuance of warrants, a written proclamation issued to R ANKUR PANGHAL require him to appear before the court. In order to ensure that PANG Date:
2022.11.28 21:44:48 HAL +05'30' Cr. Case No. 82007/2016 State vs. Ravibul @ Tesu Page 9 of 11 publication of proclamation, certain requirements, stipulated in the provision, are to be met. The proclamation is to be publicly read in some common species place of town, village, it has to be affixed at the house or homestead of the person and a copy of the same is to be affixed in the court house. A clear period of 30 days from the date of publication is to be given to the accused to appear before the court.
14. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The resumption of the notions of the accused has to be rebutted by the prosecution by reducing cogent evidence that point was the guilt of accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
15. Ld. counsel for accused has argued that mandatory requirement of the provision has not been complied with and the testimony of witnesses in this regard does not inspire confidence. Per Contra, Ld. APP submits that offences cogently proved as against the accused.
16. In order to prove the offence under said provision, the prosecution has examined four witnesses, out of which witness PW4 is a material witness, being the process server. PW4 has submitted that on 22.01.2014 his statement was recorded as process server and accused Ravibul was declared absconder. However, on the perusal of judicial file it is evident that neither the statement of PW4, as process server, nor any relevant publication is there on the record. There is no testimony to the fact that public persons were gathered and no statement of any neighbour or person who was made part of the process is on Digitally signed record. In such circumstances, the execution of process by PW4 ANKUR byPANGHAL ANKUR PANG Date:
2022.11.28 cannot be said to be proved beyond reasonable doubt and it HAL 21:45:09 +05'30' Cr. Case No. 82007/2016 State vs. Ravibul @ Tesu Page 10 of 11 would be unsafe to convict the accused for the said offence, in the absence of any cogent evidence. The testimony of other witnesses is of no help to the prosecution. Thus, the accused is entitled to benefit of doubt.
CONCLUSION
17. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence under section 174A IPC beyond reasonable doubt. The basis of the offences charged in the present case is the proclamation issued against the accused, for his appearance before the court. The testimony of the star witness is doubtful and does not prove the essential ingredients of the offence. It is not proved beyond reasonable doubt that process was issued against the accused. The other material on record does not inspire confidence and conviction cannot be based on the said material.
18. Resultantly, the prosecution has failed to prove the offences beyond reasonable doubt and the accused is entitled to the benefit of doubt. As such, the accused RAVIBUL is hereby found not guilty. He is ACQUITTED for the offence under section 174A of the Indian Penal Code, 1860.
Announced in open court on 28.11.2022 in the presence of the accused. The judgment contains 11 pages and each page have been signed by the undersigned.
ANKUR Digitally signed by ANKUR PANGHAL (ANKUR PANGHAL) MM-06, Shahdara District, PANGHAL 21:45:25 +05'30' Karkardooma Courts, Delhi Date: 2022.11.28 28/11/2022 Cr. Case No. 82007/2016 State vs. Ravibul @ Tesu Page 11 of 11