Delhi District Court
State vs . Niranjan @ Khurchan, on 15 December, 2018
SC No. 110/2018
IN THE COURT OF MS. SMITA GARG,
ADDITIO NAL SESSIONS JUDGE FAST TRACK COURT,
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
Sessions Case No.: 110/2018
CNR No.DLWT010014062018
FIR No. : 157/2009
Under Sections : 307/174A IPC
Police Station : Rajouri Garden
State Vs. Niranjan @ Khurchan,
S/o Sh. Ram Avtar,
R/o Vega Bond, Delhi
Date of committal of case : 15.02.2018
Date of pronouncement of Judgment : 15.12.2018
JUDGMENT:
1. The case of the prosecution is that upon receiving DD No.36A dated 13.05.2009 regarding admission of the injured Rinku in Guru Govind Singh Hospital, SI Balbir Singh alongwith Ct. Dharampal reached the hospital and obtained the MLC No. 1290 of the injured from the doctor concerned. The nature of injury was opined to be simple sharp. After the injured was declared fit for statement, SI Balbir Singh recorded the statement of the injured Rinku.
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2. In his statement, the complainant/injured Rinku stated that he used to work in his father's tea shop and that on 13.05.2009 at about 6 PM, he alongwith the accused Niranjan @ Khurchan had gone to a liquor shop near Tagore Garden Metro Station, where they both had consumed liquor. Around 08:00 PM, he and the accused Niranjan @ Khurchan started collecting the empty bottles lying near the shop. A scuffle took place between them for one empty bottle, which had been picked by the complainant. Accused Niranjan @ Khurchan snatched the bottle from him and after breaking the bottle, he inflicted injury with it on the neck of the complainant. Seeing the blood oozing from the injury, complainant went to Guru Govind Singh Hospital in a rickshaw. Complainant sought action against the accused Niranjan @ Khurchan.
3. On the basis of the above statement of the complainant/injured Rinku, SI Balbir Singh got the FIR registered under Section 324 IPC. He seized the blood stained clothes of the injured Rinku from the hospital. The accused was arrested on 14.05.2009 at about 02:15 AM. Efforts were made to recover the bottle used for inflicting injury to the complainant, however, it could not be FIR No.157/09 State v. Niranjan @ Khurchan Page No. 2/13 SC No. 110/2018 recovered. Since the accused could not produce any surety, he was produced before the court on the same day. The accused was granted bail by the court but in the absence of the surety, he was sent to judicial custody. During the course of investigation, SI Balbir Singh inspected the spot at the instance of the complainant and prepared the site plan. After the completion of investigation, the police filed charge sheet against the accused for the offence under Section 324 IPC in the court on 06.06.2009.
4. On 30.07.2009, the accused was released from jail. After being released on bail, the accused stopped appearing in the matter. On 25.07.2013, supplementary charge sheet for the offence under Section 307 IPC was filed against him. He was declared proclaimed offender on 02.09.2014. When prosecution evidence under Section 299 CrPC was being recorded by the Ld. MM, the accused was arrested on 19.12.2017 vide kalandra no. 9B U/s 41.1(C) CrPC P.S Aman Vihar. Consequent thereto, supplementary charge sheet for the offence under Section 174A IPC was filed against the accused on 12.01.2018. Thereafter, the case was committed to the Sessions Court.
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5. Charge: On 06.03.2018, charge for the commission of offences punishable under Sections 307/174A IPC was framed against the accused to which he pleaded not guilty and claimed trial.
6. Prosecution evidence: In support of its case, the prosecution examined ten witnesses in all.
6.1. PW1 SI Sohan Lal is the duty officer. He proved DD No. 36A dated 13.05.2009 regarding admission of the injured in hospital as Ex. PW1/A, the copy of FIR as Ex.PW1/B and endorsement made by him on the rukka as Ex. PW1/C. 6.2 PW2 Rinku is the complainant/injured.
6.3. PW3 Ct. Dharamapal had accompanied SI Balbir to Guru Govind Singh Hospital on 13.05.2009 upon receipt of DD No. 36A. He proved the arrest memo of the accused as Ex. PW3/A, personal search memo of accused as Ex. PW3/B and the seizure memo vide which the clothes of the injured were seized by SI Balbir Singh as Ex. PW3/C. 6.4 PW4 Dr. Prem Chand had examined the injured Rinku on 13.05.2009 vide MLC No. 1290/2009. He proved the said MLC as Ex. PW4/A and stated that he had opined the nature of injury FIR No.157/09 State v. Niranjan @ Khurchan Page No. 4/13 SC No. 110/2018 as simple caused by a sharp weapon.
6.5 PW5 ASI Senser Pal proved the copy of DD No. 13B dated 19.12.2017 recorded at P.S Rajouri Garden regarding the arrest of the accused under Section 41.1C CrPC by the police of P.S Aman Vihar as Ex. PW5/A. 6.6 PW6 HC Pankaj Pandey had prepared the supplementary charge sheet for the offence under Section 174A IPC against the accused. He deposed that upon receiving DD No. 13B dated 19.12.2017, he met HC Sandeep and obtained the copy of kalandra and other documents including the arrest memo and personal search memo of the accused from him. 6.7 PW7 HC Ramesh Chand is the process server, who had executed the process under Section 82 CrPC against the accused on 12.12.2013. He proved his report regarding the execution of process as Ex. PW7/A. 6.8 PW8 HC Sandeep Kumar had apprehended the accused in kalandra under Section 41.1(C) CrPC on 19.12.2017. He proved the arrest memo of the accused as Ex. PW8/A, personal search memo of the accused as Ex. PW8/B and the kalandra under Section 41.1(C) CrPC as Ex. PW8/C. He deposed that consequent upon the arrest of the accused, he had recorded DD No. 9B at P.S Aman Vihar and proved the said DD as Ex. PW FIR No.157/09 State v. Niranjan @ Khurchan Page No. 5/13 SC No. 110/2018 8/D. 6.9 PW9 ASI Raj Kumar had joined the investigation on 19.12.2017 and had accompanied HC Sandeep Kumar for the apprehension of the accused from Metro Station Rajouri Garden.
6.10 PW10 Insp. Balbir Singh is the Investigating Officer of the case. Apart from the documents proved by other witnesses, he proved the endorsement made by him on the statement of the injured as Ex.PW10/A, site plan of the spot as Ex.PW10/B, application moved by him for obtaining opinion regarding the nature of injuries as Ex. PW10/D and the opinion given by the doctor as PW10/C.
7. Statement of accused: Statement of the accused under Section 313 CrPC was recorded on 10.12.2018 wherein all the incriminating evidence and documents on record against him were put to the accused to which his stand was of general denial. He claimed that he was innocent and had been falsely implicated in the case. However, he chose not to lead any evidence in his defence.
8. I have heard the Ld. Addl. PP for state as well as the legal FIR No.157/09 State v. Niranjan @ Khurchan Page No. 6/13 SC No. 110/2018 aid counsel for the accused. Record has also been perused.
9. Qua the charge for the commission of offence under Section 307 IPC, the case of the prosecution hinged on the testimony of the complainant/injured Rinku. On the basis of his statement recorded on 13.05.2009 that the accused Niranjan @ Khurchan had inflicted injury with a broken bottle on his neck, the present FIR was registered. During the course of trial, the complainant/ injured Rinku was examined by the prosecution as PW2. However, in his testimony, PW2 Rinku failed to support the case of the prosecution against the accused and deposed that on the date of incident, when he was collecting empty bottles of liquor from near the Wine Shop, Rajouri Garden, some unknown person had hit a bottle on his head from behind and that since the accused was also standing there, he thought that he had been hit by the accused. He was cross examined by the Ld. APP but even in the said cross examination, he did not utter anything against the accused. He denied the suggestions that he had told the police that he had gone with the accused to the Wine Shop at Tagore Garden or that the accused was the same person who had caused injury to him with a broken bottle. Apart from PW2 Rinku, there was no other eye witness of the incident in question. The broken piece of bottle used for FIR No.157/09 State v. Niranjan @ Khurchan Page No. 7/13 SC No. 110/2018 inflicting injury was also not recovered during the investigation. For the failure of the injured Rinku (PW2) to support the case of the prosecution and in the absence of any other incriminating evidence to connect the accused with the incident in question, the charge for the commission of the offence under Section 307 IPC against him fails.
10. Ld. APP for the State has submitted that though the case of the prosecution against the accused for the commission of offence under Section 307 IPC could not be proved but the accused is liable to be convicted for the commission of offence under Section 174A IPC for his failure to appear in court despite being declared a proclaimed offender on 02.09.2014.
On the other hand, the counsel for the accused has submitted that the accused, being an uneducated man, was neither aware about the court where the case was pending nor knew the date of hearing and therefore, he could not appear in the matter after being released from the jail. He submitted that the accused has been residing in the area near Metro Station Rajouri Garden since the year 2009 but no police official ever visited the area to execute the process under Section 82 CrPC. He argued that since the report on the process under Section 82 CrPC had been FIR No.157/09 State v. Niranjan @ Khurchan Page No. 8/13 SC No. 110/2018 manipulated by the police officials without following the procedure prescribed in Section 82 CrPC, the accused can not be held guilty for the commission of offence punishable under Section 174A IPC.
11. Section 174A of IPC, which was inserted in the Code by Section 44 (b) of the Act 25 of 2005 and came into effect on 23.06.2006, prescribes punishment for non appearance in response to a proclamation under Section 82 of CrPC. It reads as under: "174A. Non appearance in response to a proclamation under Section 82 of Act 2 of 1974 Whoever fails to appear at the specified place and the specified time as required by a proclamation published under subsection (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."
The above provision consists of two parts. While the first part prescribes punishment for a person who fails to appear at a specified place and time as required by a proclamation FIR No.157/09 State v. Niranjan @ Khurchan Page No. 9/13 SC No. 110/2018 published under Section 82 (1) CrPC, the second part provides penalty for a person declared as proclaimed offender in accordance with Section 82 (4) CrPC. Under Section 82(4) CrPC, a declaration pronouncing a person as proclaimed offender can be made if such person is accused of an offence punishable under Section 302,304,364,367,382,392,394,395, 396,397,398,399,400,402,436,449,459,460 IPC. Since the offence under Section 307 IPC for which the accused was charge sheet does not find mention in Section 82 (4) CrPC, Section 174A (PartI) only would be applicable to the facts of the case.
12. Now the question which needs to be considered is whether the prosecution has been able to bring home the guilt of the accused for the commission of the said offence. A perusal of the record shows that the accused, who was in custody at the time of filing of the charge sheet, was released on bail on furnishing of personal bond on 30.07.2009. After being released from jail, he had also attended the date of hearing on 21.08.2009. Hence, the contention of the counsel for the accused that the accused was not aware about either the date of hearing or the court where the case was pending is found to be contrary to the record. Since the FIR No.157/09 State v. Niranjan @ Khurchan Page No. 10/13 SC No. 110/2018 accused failed to appear in the matter after 21.08.2009, non bailable warrants were repeatedly issued against him, which remained unexecuted. In order to secure his presence, the coercive process under Section 82 CrPC was thus initiated against him on 06.11.2013.
HC Ramesh Chand, who executed the process under Section 82 CrPC, has been examined as PW7 by the prosecution. In his testimony, PW7 HC Ramesh Chand has deposed that on 12.12.2013, he had executed the process under Section 82 CrPC against the accused and had pasted one copy of the process on the entry gate of the Metro Station Rajouri Garden and second copy on the notice board of the court. He stated that beat of drum was also carried out near Metro Station Rajouri Garden and proved his report in that regard as Ex. PW7/A. PW7 was duly cross examined on behalf of the accused but nothing material could be extracted therefrom to discredit either the report Ex. PW7/A or the veracity of the witness. It is seen from the record that in addition to affixation, proclamation had also been published in the daily newspaper 'Amar Ujala' on 25.12.2013. Copy of the said publication is available on record as Ex. CW1/B. FIR No.157/09 State v. Niranjan @ Khurchan Page No. 11/13 SC No. 110/2018
13. SubSection (2) of Section 82 CrPC lays down the procedure in which the proclamation under Section 82 (1) CrPC should be published. It provides as under: "82 (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 persons ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
(c) a copy thereof shall be affixed to some conspicuous part of the Court house;
(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 ordinarily resides."
A bare reading of the above provision shows that proclamation must be carried out either at some conspicuous part of the house in which the accused ordinarily resides or to some conspicuous place of such town or village. In the case on hand, since the accused was a Vegabond having no fixed/permanent place of abode and used to live in JBlock, Rajouri Garden, affixation of process on the wall of Metro Station, Rajouri Garden with beat of drums and publication of proclamation in the local newspaper having circulation in the area were the sufficient compliance of FIR No.157/09 State v. Niranjan @ Khurchan Page No. 12/13 SC No. 110/2018 Section 82 (2) CrPC. Since the accused failed to appear in court on 28.01.2014 despite the proclamation on 12.12.2013 and he could be produced in court only on 19.12.2017 after being arrested in kalandra under Section 41.1 (C) CrPC (Ex.PW8/C) by PW8 HC Sandeep Kumar, it stands established on record that the accused is guilty of commission of offence punishable under Section 174A (PartI) of IPC.
14. In the light of above discussion, though the accused Niranjan @ Khurchan is acquitted of charge for the commission of offence punishable under Section 307 IPC but he is convicted for the commission of offence punishable under Section 174A(PartI) of IPC.
Copy of the judgment be supplied to the accused/convict Digitally signed free of costs. SMITA by SMITA GARG GARG Date:
2018.12.15 16:34:03 +0530 Announced in the open court (Smita Garg) on 15.12.2018 Addl. Sessions JudgeFTC, (West) Tis Hazari Courts, Delhi.
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