Delhi District Court
State vs . on 7 March, 2012
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDL. SESSIONS JUDGE02 (NORTH):DELHI.
S.C. No. 148/11
Case I.D. No.02401R034692011
State
Vs.
Javed
Son of Sh. Akhlakh
R/o H.No.6958, Gali Batu Wali,
Beriwala Bagh
Azad Market,
Delhi.
FIR No.: 194/05
PS: Bara Hindu Rao
U/S 174A IPC
Date of Institution:30.7.11
Date of reserving Judgment:2.3.12
Date of pronouncement:7.3.12
JUDGMENT
In the present case, charge has been framed against accused Javed in respect of offence U/S 174A IPC. The allegation against the accused is that on 31.7.10 process U/S 82 Cr.P.C was executed against him by HC Banwari Lal for his personal appearance in court on 1.9.10. But, he (accused Javed) did not appear before the court and was reported by process server to be not available at the given address. Session Case No.148/11 1/15 2 2 Accused pleaded not guilty to the said charge and claimed trial. 3 To prove its case prosecution has examined three witnesses. They are HC Raj Singh (PW1), HC Banwari Lal (PW2) and ASI Nawazish Raza (PW3).
4 Statement of accused U/S 313 Cr.P.C has been recorded, wherein he has denied the allegations of prosecution. He has submitted that he is innocent. He has been falsely implicated in this case. 5 No witness has been examined by the accused in his defence. 6 I have heard the arguments from ld. counsel for accused and Ld. Addl. P.P for State.
7 Ld. Counsel for accused has prayed for acquittal of accused by submitting that Process U/S 82 Cr.P.C was not executed properly, as copy of the process was not pasted on the notice board of court premises. He has further submitted that no public witness was joined by HC Banwari Lal, while executing the process.
8 On the other hand, Ld. Addl. P.P has submitted that prosecution has proved its case beyond reasonable doubt against accused.
9 In the present case, accused Javed was convicted by Ld. Predecessor alongwith coaccused Mohd. Nassir @ Gulfam on 13.7.06 in respect of offences U/S 376 (2)(g) and Section 506 read with Section 34 Session Case No.148/11 2/15 3 IPC. However, both accused were acquitted in respect of offence U/S 328 read with Section 34 IPC. Ld. Predecessor sentenced both the accused to rigorous imprisonment for ten years with fine of Rs.2,000/ each in respect of offences U/S 376(2)(g) and Section 506 read with Section 34 IPC. It was further ordered that in default of payment of fine, they would suffer rigorous imprisonment for six months. Benefit of Section 428 Cr.P.C was also given to both of accused.
10 Later on, both accused filed appeals against the judgment of conviction and order on sentence in Hon'ble High Court. The appeals of both accused were dismissed by Hon'ble High Court on 27.2.09. 11 On 14.5.10 accused Javed was granted parole for a period of 15 days on his furnishing personal bond in the sum of Rs.10,000/ with one surety of the like amount to the satisfaction of Ld. Trial Court/Jail Superintendent. Accordingly, accused Javed was released on Parole on 31.5.10. However, accused Javed did not surrender before Jail Superintendent, after the expiry of period of Parole. Consequently, NBW was issued against accused Javed to secure his presence. The same was received unexecuted. Accordingly, processes U/S 82/83 Cr.P.C were also issued by the Ld. Predecessor against accused. Ultimately, accused Javed was declared P.O on 10.9.10 by Ld. Predecessor. 12 Out of three witnesses PW1 HC Raj Singh has deposed that Session Case No.148/11 3/15 4 on 13.7.11 he (PW1)was posted at P.S Begumpur. He received a secret information that accused Javed, an absconder in case FIR No.194/05 U/S 376/328 IPC was sitting near Pani Ki Tanki, in front of Banke Bihari Restaurant, Najafgarh Raod. He(PW1) alongwith Ct. Naushad and Ct. Vijay went to the spot and apprehended the accused. He (PW1) also apprised the SHO about the apprehension of the accused. Thereafter, involvement of the accused was confirmed from PS Bara Hindu Rao. Accused, present in court, was arrested. He(PW1) prepared arrest memo Ex.PW1/A and personal search memo Ex.PW1/B of accused. He also prepared kalandara, Ex.PW1/C. After getting the accused medically examined, he(PW1) produced the accused before ld. M.M. Rohini Court. The arrest information was conveyed to the wife of accused namely, Hina @ Janeb.
13 In crossexamination by Ld. Counsel for accused, PW1 has deposed that on 13.7.11 he was on duty from 9:00 AM onwards. He marked his arrival entry in the PS Begumpur vide DD No. 39. Secret information was received by him. At the time of receipt of information, he was present in PS and other staff members were also present there. He made departure entry for himself as well as for two constables vide DD No. 39B and put his signature on the same. They proceeded from PS on private vehicle. He did not claim fuel charges from the govt. They left PS Session Case No.148/11 4/15 5 at about 10:3011:00 AM. The distance between PS and spot is about 78 km. They reached the spot within 2030 minutes. The spot is not thickly populated. However, the public persons were passing through the spot. He did not prepare any site plan of the place of the arrest. He did not ask any public person to join the proceedings. He has denied that accused has been illegally arrested. He has denied that false kalandra was made against accused as he was in illegal confinement. He has denied that he is deposing falsely.
14 PW2 HC Banwari Lal has deposed that process u/s 82 and 83 Cr.P.C against accused were executed by him on 31.07.10 and 08.09.10 respectively. The accused was declared P.O in case FIR NO. 194/05, P.S Bara Hindu Rao. His (PW2's) statement was recorded by the Hon'ble Court on 10.09.10 in above said FIR as CW1. 15 In crossexamination by ld. Counsel for accused, PW2 has deposed that he made inquiries about the accused in the vicinity, while executing the process u/s 82 CrPC on 31.07.10. He recorded the statement of father of the accused namely, Azad Akhlakh on the above said date. Nobody else came forward to get his statement recorded from the neighbouring area. He did not serve any notice to the public person, who refused to make statement on 31.07.10. The proclamation was made in the area in loud voice but no drum beater was called at the spot. The Session Case No.148/11 5/15 6 public person had gathered in the gali but nobody came at the house of the accused. He had prepared a report regarding the pasting of notice at the house of the accused and recording of statement of father of the accused. It is not mentioned in Ex. CW1/B that the public person had gathered in the gali but not at the house of the accused. The pasting was not photographed. No site plan was made at the time of the pasting the notice. He has denied that he had not visited the house of accused on 31.07.10 and he did not make any proclamation on that date. He has denied that no process u/s 82 was affixed by him on the house of the accused. He has denied that he had not conducted the proceedings properly. He (PW2) has further deposed that on 08.09.2010, he did not record the statement of any person except the statement of the mother of accused. On 31.07.2010, he did not ask for any documents regarding the property in the name of the accused. He has denied that he had not visited the house of accused on 08.09.10. He has denied that he had not affixed the process u/s 83 on the house of the accused. He has denied that he is deposing falsely.
16 PW3 ASI Nawazish Raza has deposed that on 13.7.11 HC Raj Singh of P.S Begumpur informed that P.O Javed in case FIR No. 194/05 PS Bara Hindu Rao was apprehended by him. After taking the papers from HC Raj Singh, he moved an application for production Session Case No.148/11 6/15 7 warrants. Accused Javed, present in court, was formally arrested in case FIR No. 194/05 vide arrest memo Ex.PW3/A. He recorded the statement of witnesses and prepared chargesheet for the offence U/S 174A IPC and filed the same in the court.
17 In crossexamination by ld. Counsel for accused, PW3 has deposed that he was on 24 hours duty at PS Bara Hindu Rao on 13.7.11. He did not prepare any memo regarding handing over the papers by HC Raj Singh of PS Begumpur. He has not placed on record any document to show that HC Raj Singh had handed over the papers to him. He has denied that he had not conducted investigation properly. He has denied that accused has been falsely arrested.
17 In the present case, accused has been charged for the commission of offence U/S 174 A IPC, which is reproduced here for ready reference:
"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 imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under subsection (4)of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine."Session Case No.148/11 7/15 8
18 Section 82 Cr.P.C is reproduced here for ready reference:
(1)If any Court has reason to believe (whether after taking evidence or not)that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.
(2) The proclamation shall be published as follows:
(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
(b)it shall be affixed to some conspicuous part of the house or homestead in which such person ordinary resides or to some conspicuous place of such town or village;
(c)a copy thereof shall be affixed to some conspicuous part of the Courthouse;
(ii)the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinary resides.
(3)A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause(i)of subsection(2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.
(4)Where a proclamation published under subsection(1) is in respect of a person accused of an offence punishable under Section 302,304,364,367,382,392,393,394,395,396,397,398,399, 400,402,436,449459 or 460 of the Indian Penal Code, and such person fails to appear at the specified place and time required by the proclamation, the court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.Session Case No.148/11 8/15 9
(5)The provisions of subsections(2)and (3)shall apply to a declaration made by the Court under subsection(4)as they apply to the proclamation published under subsection (1).
19 In the present case out of three witnesses PW2 HC Banwari Lal has executed the process U/S 82/83 Cr.P.C against the accused. Now, a perusal of statement of HC Banwari Lal recorded by Ld. Predecessor on 10.9.10 as CW1 shows that on 31.7.10, PW2 took the process U/S 82 Cr.P.C of accused Javed. Accused Javed was not found at the address i.e 6958, Gali Batwawali Beriwala Bagh, Azad Market, Akhlakh, father of accused Javed met there and informed HC Banwari Lal(PW2) that accused was not present in the house. A copy of the process U/S 82 Cr.P.C was affixed at house of accused. PW2 recorded the statement of the father of accused, which is Ex.CW1/A. It is further stated in the statement that he had also affixed the copy of the process U/S 82 Cr.P.C in the court premises and submitted the report Ex.CW1/B regarding the process U/S 82 Cr.P.C. Now, a perusal of report Ex.CW1/B shows that HC Banwari Lal has pasted the copy of process U/S 82 Cr.P.C in Gali Batwawali as well as on the notice board of Tis Hazari Court. The report Ex.CW1/A further shows that copy of process U/S 82 Cr.P.C was also pasted on the house of accused.
Session Case No.148/11 9/15 10 20 After going through the testimony of PW2, HC Banwari Lal, I am of the considered view that the process U/S 82 Cr.P.C has been duly executed by PW2 as he pasted the copy of process at the house of accused as well as on the notice board of court, besides pasting the copy of process in the Gali Batwawali, where accused was residing. 21 In the present case, it is the case of accued that he has been declared P.O without properly executing the process U/S 82 Cr.P.C as copy of process was not pasted on the notice board of court and no public witness was joined by the I.O.
22 In view of the cogent and reliable testimony of PW2 HC Banwari Lal in examinationinchief and his unshaken testimony in cross examination, I find no substance in the arguments of ld. Counsel for accused that PW HC Banwari Lal has not duly executed the process U/S 82 Cr.P.C by not affixing the copy of the process to the notice board of court premises.
23 Further, the true and trustworthy testimony of PW2 cannot be disbelieved only on the ground that no public came forward to join the proceeding. It is worth noting that PW2 has categorically deposed in his crossexamination by Ld. Counsel for accused that public person had gathered in the gali but nobody came at the house of accused. It is worth noting that generally public persons do not come forward to be Session Case No.148/11 10/15 11 witness in criminal case. Thus, I am of the considered view that non joining the public witnesses by I.O will not materially affect the case of prosecution.
24 Further, the testimonies of PW1 to PW3 cannot be disbelieved only on the ground that they are police officials. 25 In State of Assam V. Muhim Barkatali, AIR 1987 SC 98, it has been observed by Hon'ble Supreme Court that evidence of police official cannot be under estimated merely because he is a police officer. 26 In the present case, the testimonies of PW1 to PW3 examined by the prosecution are true and trustworthy. Their testimonies do not suffer from any infirmity. All the PWs have been crossexamined by ld. Counsel for accused but nothing has come on record to the contrary. The PWs have denied all the relevant suggestions, which were put to them by ld. Counsel for accused. From the testimony of PW2 it is proved on record that process U/S 82 Cr.P.C against accused was executed on 31.7.10 for his appearance in court on 1.9.10. I take judicial notice of order sheet dated 1.9.10, which proves that accused did not appear in court on that date. I also take judicial notice of order sheet dated 10.9.10 of Ld. Predecessor, which proves that accused Javed was declared P.O on that day. It is worth noting that offences under Section 376(2)(g) and Section 506 read with Section 34 IPC are not enumerated in Session Case No.148/11 11/15 12 Section 82(4)of Cr.P.C.
27 In view of above discussion, I am of the considered view that prosecution has proved its case beyond reasonable doubt that accused Javed did not appear in court on 1.9.10, despite execution of the process U/S 82 Cr.P.C on 31.7.10. Accordingly, accused Javed is convicted of the offence U/S 174 A IPC.
Announced in open court today on (Smt. Bimla Kumari) on 7.3.12. Addl. Sessions Judge02(North) Tis Hazari Court, Delhi.
Session Case No.148/11 12/15 13 IN THE COURT OF SMT. BIMLA KUMARI ADDL. SESSIONS JUDGE02 (NORTH):DELHI.
S.C. No. 148/11 Case I.D. No.02401R034692011 State Vs. Javed Son of Sh. Akhlakh R/o H.No.6958, Gali Batu Wali, Beriwala Bagh Azad Market, Delhi.
FIR No.: 194/05 PS: Bara Hindu Rao U/S 174A IPC Arguments heard:12.3.12 Date of pronouncement:13.3.12 ORDER ON SENTENCE In the present case, accused Javed has been convicted in respect of offence U/S 174A IPC.
2 I have heard the arguments from ld. counsel for accused and Ld. Addl. P.P for State.
3 Ld. Counsel for accused has prayed for taking a lenient view by submitting that accused Javed is 39 years old. His father is 84 years old and mother is 78 years old. He is having three children. His daughter is Session Case No.148/11 13/15 14 11 years old, while sons are 8 and 9 years old. His wife has left him. His minor children are living with his parents. He has already spent six and half years in Jail in the case, wherein he was convicted by Ld. Predecessor on 13.7.06. No other criminal case is stated to be pending against him. Accused/convict is not a convict in any other case. 4 On the other hand, Ld. Addl. P.P has prayed for imposition of maximum sentence upon the accused/convict.
5 Section 174A IPC, which is reproduced here for ready reference:
"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 imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under subsection (4)of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine."
6 In the present case, process U/S 82 Cr.P.C has been issued against accused/convict in respect of offences U/S 376 (2)(g) and Section 506 read with Section 34 IPC. In other words, the case of accused/convict is not falling under subsection 4 of Section 82 Cr.P.C. Accordingly, accused/convict is liable to be punished with imprisonment for a term, Session Case No.148/11 14/15 15 which may extend to three years or with fine or with both. I am of the considered view that ends of justice would be met, if accused/convict is sentenced to simple imprisonment for one year. Accused is sentenced accordingly. It is also ordered that accused/convict will get the benefit U/S 428 Cr.P.C.
7 As per record, convict Javed is in JC from 13.7.11 till date. 8 A copy of this order be sent to Jail Suptd. A copy of this order be also given to convict free of costs.
File be consigned to Record Room.
Announced in open court today on (Smt. Bimla Kumari) on 13.3.12. Addl. Sessions Judge02(North) Tis Hazari Court, Delhi.
Session Case No.148/11 15/15