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Fir No. 192 /2011, Ps : Ndrs State vs Pradeep Kumar on 30 August, 2019

FIR No. 192 /2011, PS : NDRS       State Vs Pradeep Kumar


    IN THE COURT OF MM­08 (CENTRAL DISTRICT)
        TIS HAZARI COURTS COMPLEX, DELHI.

Presiding Officer: Dinesh Kumar, DJS.

IN THE MATTER OF :
State Vs. Pradeep Kumar
No. 192/2011
PS : NDRS
U/s 170/171 IPC
Date of Institution          : 02.09.2011
Date of reserving of order   : 22.08.2019
Date of Judgment             : 30.08.2019
CNR No. DLCT­02­ 001016­2011
JUDGMENT

  1. Serial No. of the case        : 296158/2016
  2. Name of the Complainant       : Sanjeev Kumar, AFI,
                                     Railways
  3. Date of incident              : 21.07.2011
  4. Name of accused person        :
             Pradeep Kumar Ahlawat, S/o Sh. Raj
             Kumar, R/o H. No. 335, Rajeev Nagar,
             Sonipat, Haryana.
  5. Offence for which chargesheet
     was filed                   :170/171 IPC & Section
                                 174­A IPC.
  6. Offence for which charge


 Page 1 of 16                       MM­08(C)/THC/30.08.2019
 FIR No. 192 /2011, PS : NDRS          State Vs Pradeep Kumar


        has been framed               :171 IPC & 174­ A IPC.
     6. Plea of accused               : Not guilty
     7. Final Order                   : Convicted
     8. Date of Judgment              : 30.08.2019

BRIEF REASONS FOR ORDER:

1. Mr. Pradeep Kumar, the accused herein, has been chargesheeted for committing offence punishable under Section 170/171, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").

2. The case of the prosecution is that on 21.07.2011, complainant Sanjeev Kumar, the Anti Fraud Inspector, Indian Railways was present at Platform No. 12­13 for checking alongwith Sh. Devender Nath Sharma (AFI) and Shiv Kumar Rana (AFI ). At about 5 p.m., they were present near the Central footover bridge. They noticed that the accused was wearing a tie of Maroon Colour on which IR was written, a white shirt and black pants. He was also carrying a diary with cover of Steel in the size of EFT (Excess Fare Table) Fare Table and one pen. On suspicion they inquired from him. He told that he was a TTE. They told him to show his I­card but he failed to show any I­card. Thereafter he was taken to Police. On Page 2 of 16 MM­08(C)/THC/30.08.2019 FIR No. 192 /2011, PS : NDRS State Vs Pradeep Kumar the basis of the complaint present FIR was registered. After completion of investigation 'final report' was filed by the Investigation Officer (IO) in the Court and the accused was charge­sheeted for the offences punishable under Section 170/171, the Indian Penal Code.

3. After perusing the record, cognizance was taken by the Ld. Predecessor of the Court. The accused was in J/C. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offence punishable under Section 171 IPC was framed against the accused. The charge was read over to him to which he pleaded not guilty and claimed trial. The matter was fixed for prosecution evidence.

4. PW­1 Devender Nath Sharma, PW­2 Sanjeev Kumar, PW­3 Sanjeev Kumar Rana and PW­4 HC Ashok Kumar were examined, cross­examined and discharged. PW­5 SI Ashok Kumar was examined. His cross­ examination was deferred. Thereafter, the accused stopped appearing in the Court. Vide order dated 08.05.2018, he was declared absconder. He was later on apprehended, arrested and produced in the Court. Vide order dated Page 3 of 16 MM­08(C)/THC/30.08.2019 FIR No. 192 /2011, PS : NDRS State Vs Pradeep Kumar 06.06.2019 additional charge of the offence punishable under Section 174­A IPC was framed against the accused. The accused pleaded not guilty and claimed trial.

5. The prosecution has examined as many as 08 witnesses to prove its case against the accused person.

6. PW­1 Sh. Devender Nath Sharma was the part of the checking team. He has deposed that on 21.07.2011, he was present at PF No. 12­13 alongwith Shiv Kumar Rana (AFI) and Sanjeev Kumar (AFI) for checking. At about 5:00 p.m., when they present near the Central foot­ over bridge, they noticed that one person wearing a tie of Maroon Colour on which IR was written, white shirt and black pants was present there. He was carrying a diary with cover of steel in size of EFT (Excess Fare Table), Fare Table and one pen. On suspicion they inquired from him and he told them he was TTE. They asked him to show his I card but he failed to show the same. He revealed his name as Pradeep Kumar Ahlawat. Thereafter, they handed over the accused to ASI Ashok Kumar who was present at the platform. Dairy and Fare Table recovered from the accused were handed over to ASI Ashok Kumar who seized the same vide memo Ex. PW­1/A. Thereafter, IO recorded Page 4 of 16 MM­08(C)/THC/30.08.2019 FIR No. 192 /2011, PS : NDRS State Vs Pradeep Kumar statement of Sanjeev Kumar, AFI. The tie worn by the accused was also seized by the IO vide memo Ex. PW­1/A after preparing the pulanda of the same. They had shown the place of occurrence to the police. The accused was arrested in his presence at the spot vide memo Ex. PW­ 1/B. Personal search of the accused was conducted vide memo Ex. PW­1/C.

7. The witness identified the accused in the Court. The witness also identified the diary, the fare table and the tie seized by the IO. The diary is Ex. P­1. The fare table is Ex.P­2 and the tie is Ex.P­3.

8. PW­2 Sanjeev Kumar, Anti Fraud Inspector, Railway, Baroda House, Delhi is the complainant and he was also part of the checking team. He has deposed similar to PW­1.

9. PW­3 Sh. Shiv Kumar Rana, Anti Fraud Inspector, Railways, Baroda House, Delhi was also the part of the checking team. He has also deposed similar to PW­1 & PW­2 .

10. PW­4 HC Ashok Kumar was the DO. He has proved the registration of FIR No. 192/2011, PS : NDRS. The copy of FIR is Ex.PW4/A (OSR). The endorsement on Page 5 of 16 MM­08(C)/THC/30.08.2019 FIR No. 192 /2011, PS : NDRS State Vs Pradeep Kumar the rukka is Ex. PW­4/B.

11. PW­5 SI Ashok Kumar is the IO. He has deposed that on 21.07.2011, at about 5:30 p.m, AFI Sanjeev Kumar, AFI Devender Nath Sharma and AFI Shiv Kumar Rana had come at the PS and produced accused Pradeep Kumar. He recorded the statement of AFI Sanjeev Kumar, which is Ex. PW2/A. He also handed over him one EFT Diary, passenger and luggage fair book and one Tie having the impression of IR. The items were kept in a cloth and pullanda was prepared which was sealed with the seal of "AK". The sealed pullanda was taken into possession vide seizure memo Ex.PW1/A. Thereafter, he had prepared the rukka which is Ex.PW5/A. They went to the spot and he prepared the site plan at the instance of complainant which is Ex. PW5/B. In the meantime, Ct. Sangam came at the spot with the copy of FIR and original rukka. Then the accused was arrested vide memo Ex. PW1/B. The personal search of the accused was conducted vide memo Ex. PW1/C. He also recorded the statement of witnesses under Section 161 Cr.P.C.

12. PW­6 Sangham Singh was Constable of Delhi Home Gaurd. He has deposed that on 21.07.2011, the DO Page 6 of 16 MM­08(C)/THC/30.08.2019 FIR No. 192 /2011, PS : NDRS State Vs Pradeep Kumar had handed over him the original rukka and copy of FIR to be handed over to ASI Ashok Kumar. Thereafter, he handed over the rukka and copy of FIR at foot­over bridge, platform No. 13 to ASI Ashok Kumar. IO ASI Ashok Kumar had recorded his statement and discharged him.

13. PW­7 HC Dharmender is the second IO who had filed supplementary challan for offence punishable under Section 174­A IPC. He has deposed that on 15.05.2019, investigation of the present case was marked to him. He came to the Court where the accused was produced on production warrants. He had moved an application for interrogation and formal arrest of the accused. The copy of the application is Ex. PW­7/A. After obtaining the permission, he interrogated the accused. He recorded his disclosure statement which is Ex. PW­7/B. He formally arrested the accused vide memo Ex. PW­7/C. He had prepared the supplementary challan and filed in the Court.

14. PW­8 Ct. Dinesh Yadav is the police official who had executed the process under Section 82 Cr.P.C., against the accused. He has deposed that on 02.02.2018, he was assigned the duty to execute the process under Page 7 of 16 MM­08(C)/THC/30.08.2019 FIR No. 192 /2011, PS : NDRS State Vs Pradeep Kumar Section 82 Cr.P.C., against accused Pradeep Kumar. He reached at Narinder Nagar, District Sonipat PS Civil Line, Haryana and visited the house of the accused. However, the accused was not found at his address or in the locality. Thereafter, he made an inquiry from the persons in the locality and recorded the statements of two persons namely Rakesh S/o Sh. Ramesh Chand and Rajeev S/o Sh. Swaraj. The statement of Rakesh is Ex.CX­2 and the statement of Rajeev is Ex. CX­3. Thereafter he had affixed one copy of the process on a Chauraha of Narender Nagar. He had also pronounced the proclamation in the area. He had also affixed one copy of the process on the notice board of the court. He prepared the report and filed in the court which is Ex.CX1.

15. All the witnesses were cross­examined. The prosecution evidence was closed. The accused was examined under Section 313 Cr.P.C., r/w Section 281 Cr. P.C. The accused denied all the incriminating evidence. He would state that he was falsely implicated in the present case. PW­3 Shiv Kumar Rana had called him at New Delhi Railway Station. He reached there. Thereafter, he was taken to the PS and he was falsely implicated. Nothing was Page 8 of 16 MM­08(C)/THC/30.08.2019 FIR No. 192 /2011, PS : NDRS State Vs Pradeep Kumar recovered from his possession. No police official had ever come at his residential address. No such persons named Rajeev and Rakesh were his neighbors. Mr. Pradeep Kumar and Mr. Devesh Mishra ( the then DRM Agra) had taken Rs.2,25,000/­ from him for giving job in Railways. However, they did not give him any job in the Railways and therefore falsely implicated in the present case. PW­2 and PW­3 were the employees of Railways working under DRM Agra and so they falsely implicated him at the instance of Pradeep Kumar and Mr. Devesh Mishra.

16. The accused did not lead any defence evidence. Therefore, matter was fixed for final arguments.

17. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. The identity of the accused has been established beyond reasonable doubts. The prosecution witnesses have also proved beyond reasonable doubts that the accused had been representing himself as TTE in the Indian Railways. He was wearing a uniform similar to the uniform of a TTE. He was also carrying a EFT book which a TTE carries. On asking by the Railway Officials also, he had said that he was TTE. Thus, all the ingredients of offence 171 IPC Page 9 of 16 MM­08(C)/THC/30.08.2019 FIR No. 192 /2011, PS : NDRS State Vs Pradeep Kumar have been proved against the accused beyond reasonable doubts. Hence, it is prayed, the accused may be convicted.

18. Ld. Defence counsel, on the other hand, would argue that the prosecution has failed to prove its case against the accused beyond reasonable doubts. There are various contradictions in the testimonies of the witnesses of the prosecution. The accused had been falsely implicated at the instance of Mr. Pradeep Kumar and Mr.Devesh Mishra. PW 1, PW 2 and PW 3 are interested witnesses. No public witness was joined in the investigation to prove the allegation. It is prayed that benefit of reasonable doubts may be given to the accused and he may be acquitted.

19. I have heard the rival submissions and carefully perused the material available on record.

20. It is trite that in criminal jurisprudence, the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubts on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of Page 10 of 16 MM­08(C)/THC/30.08.2019 FIR No. 192 /2011, PS : NDRS State Vs Pradeep Kumar doubt, the benefit must necessarily be given to the accused. It is also settled position of law that whenever there are two views possible, the view which favours the innocence of the accused is to be accepted by the Court.

21. The accused has been charged for committing offence punishable under Section 171 IPC. Section 171 IPC provides punishment for wearing garb or carrying token used by public servant. To prove the offence under Section 171 Cr.P.C., the prosecution has to prove the following ingredients.

1. That the accused did not belong to a certain class of public servants,

2. That he was wearing any garb or he was carrying any token resembling any garb or token used by that class of public servants,

3. That the accused had done so with intention that it might be believed, or with the knowledge that it was likely to be believed, that he belonged to that class of public servants.

22. In the present case, PW­1, PW­2 and PW­3 have deposed that they had seen the accused wearing a tie Page 11 of 16 MM­08(C)/THC/30.08.2019 FIR No. 192 /2011, PS : NDRS State Vs Pradeep Kumar of maroon colour on which IR was written. He was also wearing black pants and white shirt. He was also carrying a diary with cover of steel of the size of EFT and a fare table. Nothing contradictory has come in the cross examination of these witnesses to doubt their testimonies.

23. The accused in his examination under Section 313 Cr.P.C has stated that he was falsely implicated at the instance of PW­3 Shiv Kumar Rana, Mr. Pradeep Kumar and Mr. Devesh Mishra. However, the accused did not lead any evidence to prove the said allegation. It is settled position of law that any statement made during examination under Section 313 Cr.P.C is not an evidence. Such a statement is not made on oath and there is no opportunity to the other party to check the veracity of such statement by way of cross examination. Therefore, the statement made by the accused during his examination under Section 313 Cr.P.C cannot be considered an evidence. Hence I hold that the accused has failed to prove his defence in the Court.

24. The testimonies of the prosecution witnesses have proved beyond reasonable doubts that at the relevant time the accused was wearing a uniform which a TTE of Page 12 of 16 MM­08(C)/THC/30.08.2019 FIR No. 192 /2011, PS : NDRS State Vs Pradeep Kumar Indian Railways wears during his official duty. The accused was at a railway station while wearing such an uniform. Not only that, when he was stopped by the complainant and his associates he had told them that he was a TTE in the Indian Railways. Thus, the material on record is sufficient to prove beyond reasonable doubts that the accused was wearing a garb resembling a garb used by TTEs. A TTE belongs to a class of public servants. The accused was not a TTE at the relevant time and therefore he was not a public servant. The testimonies of the witnesses have also proved beyond reasonable doubts that the accused had intention that it might be believed that he was a TTE with the Indian Railways. Hence, the prosecution has proved all the ingredients of offence punishable under Section 171 IPC against the accused beyond reasonable doubts.

25. Now, I come to the second charge under Section 174­A IPC. Section 174­A IPC provides punishment for non­appearance in response to a Proclamation under Section 82 Cr.P.C. Section 82 Cr.P.C., provides the manner in which the proclamation for a person absconding is to be executed. The section provides that if any Court has Page 13 of 16 MM­08(C)/THC/30.08.2019 FIR No. 192 /2011, PS : NDRS State Vs Pradeep Kumar reason to believe that any person against whom warrants had been issued by it has absconded or his concealing himself so that such warrants could not be executed, such a Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than 30 days from the date of publishing such proclamation. The section provides proclamation has to be publically read in some conspicuous place of the town or village in which such person ordinarily resides. It is also required to be affixed to some conspicuous parts of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village. The third condition is that the recovery of the same has to be affixed to some some conspicuous parts of the Court house. If a person against whom such a proclamation is issued by the Court and is duly executed, does not appear on the date and place fixed, he is liable for prosecution under Section 174­A IPC.

26. In the present case, PW­08 Ct. Dinesh Yadav has deposed that he had executed the proclamation against the accused on 02.02.2018 by affixing one copy of the proclamation on a Choraha of Narender Nagar. He had Page 14 of 16 MM­08(C)/THC/30.08.2019 FIR No. 192 /2011, PS : NDRS State Vs Pradeep Kumar also pronounced the proclamation in the area. He had also affixed one copy on the notice board of the Court. Thus, all the three conditions were duly satisfied. Perusal of the record would show that on his bail bond the accused has furnished his address as 335, Narender Nagar, Sonipat, Haryana. However no such address was found in the locality of Narender Nagar. The process server had also recorded statement of two public persons. The statements are Ex. CX­2 and Ex. CX­3. The record has duly proved that the process under Section 82 Cr.P.C was duly executed and all the conditions of the law were satisfied. Further the process was executed on 02.02.2018 whereby the accused was required to appear before the Court on 14.03.2018. Thus, more than 30 days time was granted to the accused to appear before the Court. However, he failed to appear before the Court on the date fixed. Therefore, he was declared absconder by the Court. The accused, in his examination under Section 313 Cr.P.C has not provided any reason for not appearing in the Court after 08.07.2016. After going through the entire material on record, I hold that the prosecution has proved all the ingredients of offence punishable under Section 174­A IPC Page 15 of 16 MM­08(C)/THC/30.08.2019 FIR No. 192 /2011, PS : NDRS State Vs Pradeep Kumar against the accused.

27. Thus, in view of the foregoing analysis, I hold that the accused is found guilty and he is accordingly convicted for the offences punishable under Section 171 and 174­A IPC.

28. Let parties be heard on the quantum of sentence.

29. Copy of Judgment be given free of cost to the convict. Digitally signed by DINESH DINESH KUMAR Date:

                               KUMAR            2019.08.30
                                                17:44:46
                                                +0530

Pronounced in the open Court on            (Dinesh Kumar)

this 30th day of August 2019. MM­08 (Central) Tis Hazari Courts, Delhi.