Delhi District Court
State vs 1. Rajbir @ Pappu on 14 December, 2017
IN THE COURT OF ANURAG SAIN, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI SC No. 608/2016 Date of assignment : 24.08.2011 FIR No.184/11 Date on which arguments PS: New Usmanpur were heard : 06.12.2017 U/S: 365/366/506/ Date of judgment : 14.12.2017 380/34 IPC and 376(2)(g) IPC State Versus 1. Rajbir @ Pappu S/o Layak Singh 2. Hari Om S/o Tara Chand Singh 3. Harnarayan S/o Kunwar Sen 4. Kunwar Sen S/o Nawab Singh All R/o Village Garhi Jonavor, PS Raja Khera, District Dholpur, Rajasthan. JUDGMENT
1. The chargesheet enunciates that a missing complaint dated 20.02.2011 of the prosecutrix (her name is withheld to protect her identity) from her husband was received at Police Station New SC No. 608/2016 State vs. Rajbir @ Pappu etc. Page no. 1 of 26 Usmanpur, Delhi vide DD No.36A dated 20.02.2011. The chargesheet also reflected that on 09.05.2011, the prosecutrix along with her husband came to police station New Usman Pur and filed the complaint against the accused persons. In her complaint, the prosecutrix alleged as follows:
(a) That the prosecutrix alongwith her family uses to reside at the address mentioned in the complaint. On 19.02.2011, when the prosecutrix was alone at her house, Hariom, Pappu, Kunwar Sen and Harnarayan who lived in her neighbourhood and used to come off and on to her house as they belonged to her native village, came to her house and asked her about her husband and other persons. On which the prosecutrix told them that they had gone out of the house.
(b) Accused Hariom asked the prosecutrix that sisterin law come here and took her to the kitchen and told her that what will her husband give her and asked her to accompany him and marry him. The prosecutrix scolded accused Hariom then he started misbehaving with the prosecutrix.
(c) The prosecutrix freed herself from the clutches of accused Hari On and went to the room where she saw that accused Pappu, Kunwar Sen and Harnarayan were searching her almirah. Accused Hariom made the prosecutrix sit in the room and threatened her that in case she raised alarm, they will kill her.
SC No. 608/2016 State vs. Rajbir @ Pappu etc. Page no. 2 of 26
(d) Accused Pappu, Kunwar Sen and Harnarayan took out Rs.2,02,000/, gold jewellery i.e. collar, Sita Rani, four bangles, six rings, jhumki, chain and payal of silver from the suitcase lying in the room of the prosecutrix and after gagging her mouth, accused Hariom, Pappu, Kunwar Sen and Harnarayan brought the prosecutrix downs stairs, forcibly put her in a vehicle standing outside her house and took her to their village Garhi Jonawar and kept her in a room and threatened the prosecutrix of killing her if she will raise alarm.
(e) On 19.02.2011 in the night, accused Hariom and Pappu committed rape upon the prosecutrix and thereafter they both continued committing rape on the prosecutrix.
(f) On 07.03.2011, accused Hariom alongwith other persons took the prosecutrix to Agra and forcibly married with her at Arya Samaj Mandir and told her that now she is his wife and no case of rape would be made out against him. After that accused Hariom used to commit rape with the prosecutrix.
(g) On 12.03.2011, the prosecutrix came out of the clutches of the accused persons and she alongwith her husband filed an application before the court which was fixed for 19.3.2011 but on 18.03.2011 when she came outside her house for purchasing vegetables, it was afternoon SC No. 608/2016 State vs. Rajbir @ Pappu etc. Page no. 3 of 26 time and the gali was deserted and desolated, all the accused persons came there and by force again lifted her in a vehicle and took her to village Garhi Jonawar, Dholpur, Rajasthan and threatened her that in case she try to escape or raise alarm, they will kill her husband and children.
(h) On 20.03.2011, at the time when all the family members were busy in playing Holi, she escaped from there and came to her parental home at village Khiria, District Mathura.
(i) Mother Kalindi and sister Yashoda of accused Hari Om used to visit the house of the prosecutrix and they both were having knowledge that the prosecutrix had purchased a plot, registry of which is to be done on 20.03.2011 for which the prosecutrix had kept money at her residence. All accused persons had committed robbery of the cash and jewellery which were lying in the house of the prosecutrix, she was forcibly taken to their village Garhi Jonawar where she was forced to marry accused Hari Om and was raped by them.
2. On the above complaint of the prosecutrix, the present FIR under sections 365/366/376(2)(g)/380/342/34 IPC was got registered against all the accused persons at police station New Usman Pur. During investigation, on the instruction of SHO, SI Amit Kumar recorded the statement of the prosecutrix. Medical examination of the prosecutrix was got conducted at GTB Hospital through W/Ct.
SC No. 608/2016 State vs. Rajbir @ Pappu etc. Page no. 4 of 26 Saroj. After that SI Amit got the present case under sections 365/366/376(2)(g)/380/342/504/506/34 IPC registered. During investigation, SI Amita prepared the site plan and recorded the statements of the witnesses under section 161 Cr.P.C. SI Amit conducted the several raids at the houses of accused persons at Dholpur, Rajasthan and the houses of their relatives. On 13.05.2011, during raid, accused Rajbir @ Pappu was arrested from his house. Despite best efforts, other accused persons could not be arrested. They were intentionally not joining the investigation and avoiding their arrest. On 23.07.2011, the non bailable warrants of accused Hariom, Harnaryan and Kunwar Sen were obtained from the concerned court. In the meantime, after completion of investigation against accused Rajbir @ Pappu, chargesheet against him under Sections 365/366/376(2)
(g)/380/342/504/506/34 IPC was filed by the prosecution. Since accused persons namely Hariom, Harnaryan and Kunwar Sen could not be arrested despite issuance of NBWs and also could not appear before the court despite execution of processes under Sections 82/83 Cr.P.C., they were declared proclaimed offenders by the court of Ld. Metropolitan Magistrate vide order dated 12.12.2011. On 09.01.2012, accused persons namely Hariom, Harnaryan and Kunwar Sen were arrested in the present case and thus, supplementary chargesheet against them under Sections 365/366/376(2)(g)/380/342/504/506/34 IPC was filed by the SC No. 608/2016 State vs. Rajbir @ Pappu etc. Page no. 5 of 26 prosecution before the court on 01.05.2012.
3. By order dated 17.08.2011, the learned Metropolitan Magistrate committed this case to the Court of Sessions and on allocation this case was assigned to this court.
4. Vide order dated 06.09.2011, charge under sections 365/366/380/34 and 376(2)(g)/506/34 IPC was framed against accused Rajbir @ Pappu only to which he pleaded not guilty and claimed trial as at that time remaining accused persons namely Hariom, Kunwar Sen and Harnarayan were not arrested. Thereafter, vide order dated 11.09.2012, a charge under sections 365/366/506/380/34 IPC was framed accused persons namely Hariom, Harnarayan and Kunwar Sen and a separate charge under section 376(2)(g) IPC was framed against accused Hariom to which they pleaded not guilty and claimed trial. Thereafter, vide order dated 15.02.2013, a charge under sections 365/366/380/174 A/34 IPC and 376(2)(g)/506/34 IPC was framed against accused Hari Om, Harnarayan and Kunwer Sen to which they pleaded on guilty and claimed trial.
5. In support of its case, the prosecution has examined thirteen witnesses.
6. The prosecutrix aged about 30 years was examined as PW1. She was partly cross examined but thereafter, the prosecutrix did not turn up for further examination. The nonappearance of the prosecutrix before the court for further cross examination shall be SC No. 608/2016 State vs. Rajbir @ Pappu etc. Page no. 6 of 26 dealt with at later stage.
7. PW2 Dr. Anshuja Singla, Sr. Research Associate, GTB Hospital, Delhi is the witness who medically examined the prosecutrix on 09.05.2011 vide MLC Ex.PW2/A. The said witness was cross examined on behalf of the accused. In the cross examination, the witness stated that the patient of her own did not consent for her internal medical examination.
8. PW3 SI Amit Kumar deposed that on 09.05.2011, the prosecutrix alongwith her husband came to the police station. On the direction of SHO, he recorded the statement Ex.PW1/A of the prosecutrix. Thereafter the prosecutrix was taken to GTB Hospital by W/Ct. Saroj for her medical examination where she refused for her internal medical examination. He came back to the police station and he made his endorsement Ex.PW3/A and produced the rukka before the Duty officer for registration of case. Thereafter, he alongwith the prosecutrix and her husband reached at the spot where on the pointing out of the prosecutrix, site plan Ex.PW3/B was prepared. The local enquiries were made but no eyewitness was found. Meanwhile constable Ravinder reached there and handed over the rukka and computerized copy of FIR. Constable Ravinder was discharged from the spot after recording his statement. He had recorded the supplementary statement of the complainant and her husband.
9. PW3 further deposed that on the same evening he alongwith other SC No. 608/2016 State vs. Rajbir @ Pappu etc. Page no. 7 of 26 staff left for Garhi Jonawar and reached there on the next morning. The local police was contacted who also accompanied them and they all reached the accused persons in the village but in vain. Thereafter on 13.05.2011, they arrested accused Rajbir @ Pappu vide arrest memo Ex. PW3/C and was medically examined at GTB Hospital and two exhibits containing blood sample and underwear were seized vide seizure memo Ex. PW3/D. Personal search memo of the accused Ex. PW3/E was prepared and his disclosure statement Ex. PW3/F was recorded. On the next day, the accused was produced before the court from where he was sent to J.C. This witness tried to trace the other accused persons but they could be traced and the challan file was handed over to ASI Santosh. This witness was cross examined at length on behalf of the accused.
10.PW5 Constable Amit is the witness who joined the investigation of the present case on 13.05.2011 with PW3 SI Amit Kumar. This witness was cross examined on behalf of the accused.
11.PW4 W/ASI Sushila is the duty officer at police station New Usman Pur, Delhi on 09.05.2011 who recorded FIR in the present case exhibited as Ex. PW4/A and also made endorsement on the rukka exhibited as Ex. PW4/B. This witness was cross examined on behalf of the accused.
12.PW6 Dr. Bijay Kumar, Senior Pediatrix, Kasturba Hospital, Daryaganj, Delhi is the witness who medically examined accused Rajbir @ Pappu on 13.05.2011 vide MLC Ex. PW6/A. SC No. 608/2016 State vs. Rajbir @ Pappu etc. Page no. 8 of 26
13.PW7 Woman Constable Saroj Yadav is the witness who had taken the prosecutrix for medical examination at GTB Hospital, Delhi on 09.05.2011.
14.PW8 Constable Ajay Kumar deposed that on 09.01.2012, he was posted at police station Bhalswa Dairy in PO staff. On that day, one secret informer met and informed that the accused persons wanted in the present case were coming at ISBT Anand Vihar and on this he along with HC Sanjeev, Constable Laxman Pandey and the secret informer went to ISBT Anand Vihar where at the instance of secret informer, three accused persons namely Kanwar Sain, Har Narayan and Hari Om were apprehended. The IO prepared the Kalandra under Section 41.1(c) Cr.P.C. Ex. PW8/A. The IO had arrested the accused persons vide arrest memos Ex. PW8/B, Ex.PW8/C and Ex. PW8/D and their personal search was conducted vide personal search memos Ex. PW8/E, Ex. PW8/F and Ex. PW8/G. This witness was cross examined on behalf of the accused persons.
15.PW11 ASI Sanjeev Kumar is the witness who was present with PW8 Constable Ajay Kumar and Constable Ramesh on 09.01.2012 who apprehended accused Har Narayan, Hari Om and Kanwar Sain. He deposed on the lines of PW8 Constable Ajay Kumar. He also deposed that besides the same, he also informed at police station New Usman Pur regarding the arrest of the accused persons vide DD No. 53B, copy of the same has been exhibited as Ex.
SC No. 608/2016 State vs. Rajbir @ Pappu etc. Page no. 9 of 26 PW11/A. He lodged DD No.23A at police station Bhalswa Dairy, copy of the same has been exhibited as Ex. PW11/B. This witness was cross examined on behalf of the accused.
16.PW12 W/SI Santosh deposed that on 06.07.2011, investigation of this case was marked to her. On 23.07.2011, she obtained the NBWs of coaccused persons namely Hari Om, Har Narayan and Kunwar Sain. Since the investigation regarding accused Rajbir @ Pappu was complete so she submitted the chargesheet against him.
17.She further deposed that on 15.10.2011, process under Section 82 Cr.P.C. was issued by the court against accused Hari Om, Har Narayan and Kunwar Sain and process under Section 83 Cr.P.C. was also issued against them.
18.She further deposed that on 12.12.2011, the said accused persons were declaimed proclaimed offenders by the court. On 09.01.2012, DD No. 53B was recorded at police station on the information given by HC Sanjeev regarding the arrest of accused Hari Om, Har Narayan and Kunwar Sain.
19.She further deposed that on 10.01.2012, she along with Constable Ram Prasad and Constable Pawan came to Karkardooma court complex where accused Hari Om, Har Narayan and Kunwar Sain were produced by HC Sanjeev. She collected documents from HC Sanjeev regarding the arrest of abovesaid accused persons as proclaimed offenders. She interrogated the accused persons and arrested them in this case vide arrest memos already exhibited as SC No. 608/2016 State vs. Rajbir @ Pappu etc. Page no. 10 of 26 Ex.PW10A to Ex.PW10/C and were got medically examined. She recorded the statement of the witnesses and after completion of the investigation, she submitted the supplementary chargesheet against the abovesaid three accused persons. This witness was cross examined on behalf of the accused.
20.PW10 HC Ram Prasad is the witness who joined the investigation of the present case on 10.01.2012 with ASI Santosh and Constable Pawan. On that day, accused Hari Om, Har Narayan and Kanwar Sain were arrested vide arrest memo Ex. PW10/A to Ex. PW10/C. Disclosure statement of accused Hari Om was recorded which is exhibited as Ex. PW10/D. This witness was cross examined on behalf of the accused persons.
21.PW9 ASI Permendra Kumar deposed that on 16.10.2011, he received the processes under Section 82 Cr.P.C. against the accused persons namely Hariom, Harnarayan and Kunwar Sain who went to village Garhi Jonwar, Thana Rajakhera, District Dholpur, Rajasthan to execute the same and went to the concerned police station and made arrival entry at police station Rajakhera vide arrival entry exhibited as Ex. PW9/A. Thereafter, he along with local police staff went to the house of the accused persons but they were not found at their house. He further deposed that one person namely Murari met him and told him that the accused persons had left their house two months ago. Munadi proceedings were conducted at the village of the accused perons. He took the SC No. 608/2016 State vs. Rajbir @ Pappu etc. Page no. 11 of 26 photographs exhibited as Ex. PW9/X1, Ex. PW9/X2 and Ex. PW9/X3. He pasted the copy of the processes under Section 82 Cr.P.C. on the door of the said house. Thereafter, he came back to Delhi and pasted the copy of the processes on the notice board of the court. The detailed reports of this witnesses have been exhibited as Ex. PW9/B, Ex. PW9/C and Ex. PW/D bearing his signature at point A.
22.He further deposed that on 10.12.2011, processes under Sections 83 Cr.P.C. against the accused persons namely Hariom, Harnarayan and Kunwar Sain were assigned to him for execution and he reached at police station Rajakhera and made arrival entry Ex. PW9/E there. Thereafter, he along with local police staff reached at the house of the accused persons at village Garhi Jonawar where he met Kali Charan, Murari Lal and Sant Kumar who told him that the accused persons were not residing there and their present whereabouts are not known to them. He recorded statements of Kali Charan, Murari Lal and Sant Kumar exhibited as Ex.PW9/F to Ex. PW9/H. The accused persons did not have movable or immovable property in their names at that place. The detailed reports of this witnesses have been exhibited as Ex. PW9/I to Ex. PW9/K bearing his signature at point A. This witness was cross examined on behalf of the accused persons.
23.PW13 Sh. Mukesh Sharma deposed that he does not want to depose anything; Police never recorded his statement. He deposed SC No. 608/2016 State vs. Rajbir @ Pappu etc. Page no. 12 of 26 that he knows all the accused persons as they are resident of his native place. Since this witness did not support the case of the prosecution, he was declared hospital by ld. Addl. PP for the state and was cross examined. However, despite lengthy cross examination by the Ld. Addl. PP for the state, nothing material could be elicited from the mouth of this witness which could help the case of the prosecution.
24.On 20.11.2017, Ld. Addl. PP for the state submitted that despite best efforts, the prosecutrix is not traceable and prayed that she be dropped from the array of the prosecution witnesses. He further submitted that he does not want to examine any other witness and on his request, the prosecution evidence was closed.
25.Statements of the accused persons under Section 313 Cr.P.C. were recorded on 29.11.2017. All the accused persons opted not to lead any defence evidence.
26.I have heard Sh. Arun Kumar, learned Additional Public Prosecutor for the state and the learned defence counsel for the accused persons and perused the record.
27.In the present case, all the accused persons are facing trial for the offences punishable under Section 365/366/380/34 IPC. Besides the same, accused Rajbir @ Pappu and Hari Om are also facing trial for the punishable under Section 376(2)(g)/506/34 IPC and except accused Rajbir @ Pappu, the remaining accused persons are also facing trial for the offence punishable under Section 174A/34 SC No. 608/2016 State vs. Rajbir @ Pappu etc. Page no. 13 of 26 IPC.
28.The prosecutrix was the star witness of the prosecution. She was examined as PW1 and partly cross examined on behalf of the accused persons. Perusal of the record shows that after part cross examination of the prosecutrix on 23.04.2013, the prosecutrix did not turn up before the court for her further cross examination. On 27.09.2013, the court issued bailable warrant against the prosecutrix as she was absent despite service of summons but as observed by the court on 05.10.2013, the same was received back with the report that the prosecutrix was not available at the given address for the last three months and thus, fresh bailable warrant was issued against the prosecutrix for 11.11.2013. On 05.10.2013, ld. Counsel for the prosecutrix also appeared before the court and he was also directed by the court to inform the prosecutrix to appear before the court. On 11.11.2013, the bailable warrant issued against the prosecutrix received back as unserved and thus, fresh bailable warrant was issued against the prosecutrix to be executed through DCP for 09.12.2013. Vide order dated 09.12.2013, it has been observed by the court that the process issued to the prosecutrix through DCP received back with the report that she is not available at the given address and alongwith the report, a missing person report no.111/2013 recorded at PS Khajoori Khas regarding the missing of the prosecutrix was also attached. On 17.02.2014, the court again directed to serve the prosecutrix at all SC No. 608/2016 State vs. Rajbir @ Pappu etc. Page no. 14 of 26 the available addresses through both the investigating officers and also directed that the summons be also sent through DCP concerned for 25.03.2014.
29.Perusal of the record shows that from the said date i.e. 25.03.2014 till 25.09.2017, an umpteen efforts have been made to summons the prosecutrix. The prosecutrix was directed to be summoned through IO, SHO and through DCP concerned on the addresses so available on the court file as well as on the addresses came into the knowledge of the court and through the witnesses. Perusal of the record shows that various times, the prosecutrix has been directed to the office of DCP on the various addresses as available with the court. However, on all such occasions the report has come that the prosecutrix is not traceable despite best efforts. On the issuance of summons for dated 05.05.2014, the court observed that as per the report on summons, the prosecutrix has already left the given address three years ago and the husband of the prosecutrix also reported that his wife has eloped with someone and a missing report vide DD No.64B dated 18.05.2013 has already been lodged in this regard.
30.Ultimately, Ld. Addl. PP for the state has stated that despite best efforts, the prosecutrix is not traceable and it would be a futile exercise for further issuing process to the prosecutrix and dropped the prosecutrix from the array of the prosecution witnesses.
31.From the above, it is crystal clear that despite sufficient SC No. 608/2016 State vs. Rajbir @ Pappu etc. Page no. 15 of 26 opportunities having been granted to the prosecution, the prosecution has failed to produce the prosecutrix in the witness box for her further cross examination and thus, the cross examination of the prosecutrix could not be completed. As the prosecution has failed to make the prosecutrix available for being further cross examined, it will be difficult on the part of the a court to rely on her evidence in examinationinchief.
32.The purpose of cross examination of a witness is to test the veracity of the statement made by a witness in his/her examination inchief and where a witness is not cross examined, for his non availability, it will be unsafe to rely upon the examinationinchief of such a witness. The cross examination follows upon the examinationinchief. If a witness after being examinedinchief, does not appear to subject him/her for cross examination, his/her evidence become valueless.
33.The object and scope of the cross examination is that after a party examines his witnessinchief, his opponent has the right to cross examine him. The essence of cross examination is, that it is the interrogation by the advocate of one party of a witness called by his adversary with the object either to obtain from such witness admissions favourable to his cause or to discredit him. Cross examination is the most effective of all means for extracting truth and exposing falsehood.
34.In the present case, the prosecution has failed to produce its SC No. 608/2016 State vs. Rajbir @ Pappu etc. Page no. 16 of 26 sterling witness i.e. prosecutrix in the witness box for cross examination. In these circumstances, the incomplete testimony of the prosecutrix cannot be read into evidence.
Charges under Section 376(2)(g)/506/34 IPC against accused Rajbir @ Pappu and Hari Om and charges under Sections 365/366/34 IPC against all the accused persons
35.As per the deposition of the prosecutrix as PW1 before the court, the prosecutrix was abducted on 19.02.2011 by all the accused persons and subsequently raped by accused Rajbir @ Pappu and Hari Om after threatening to kill the prosecutrix and her children. The prosecutrix further deposed that on 12.03.2011, the prosecutrix managed to come out of the clutches of the accused persons but on 18.03.2011, she was again abducted by the accused persons but again on 20.03.2011, she managed to come out of the clutches of the accused persons. On 09.05.2011, the prosecutrix along with her husband came to police station New Usman Pur and filed the complaint against the accused persons.
36.As the prosecution has failed to produce the prosecutrix in the witness box for cross examination and as discussed above that in the absence of the same, the evidence of the witness who has not subjected himself for the cross examination and thus, the veracity of the witness could not be tested through cross examination. Accordingly, the evidence of such witness is valueless and cannot SC No. 608/2016 State vs. Rajbir @ Pappu etc. Page no. 17 of 26 be relied upon. Apart from the same, there is no other evidence which could be looked into by the court for the purpose to bring home the guilt of the accused Thus, the prosecution has failed to prove its case that accused persons namely Rajbir @ Pappu and Hari Om had forcible sexual intercourse with the prosecutrix after threatening to kill her husband and her children or that all the accused persons have either kidnapped/abducted the prosecutrix
37.Moreover, the prosecutrix was subjected to medical examination at GTB Hospital, Delhi on 09.05.2011. Perusal of the MLC Ex. PW2/A shows that the prosecutrix refused to give permission for her internal examination. Thus, no sample from her body could be collected. Further the MLC Ex. PW2/A of the prosecutrix records that the last alleged acts of coitus took place on 12.03.2011 i.e. more than one and half months before the medical examination of the prosecutrix and thereafter, the prosecutrix stayed with her husband. Hence, there is no forensic or medical evidence to connect the aforesaid accused persons with the charged offences.
38.Accordingly, accused persons namely Rajbir @ Pappu and Hari Om are liable to be acquitted for the offences punishable under Section 376(2)(g)/506/34 IPC and all the accused persons are liable to be acquitted for the offences punishable under Section 365/366/34 IPC.
Charge under Section 380/34 IPC against all the accused persons SC No. 608/2016 State vs. Rajbir @ Pappu etc. Page no. 18 of 26
39.All the accused persons are also facing trial for the offence punishable under Section 380/34 IPC on the allegation that on 19.02.2011 at 1:00 P.M., all the accused persons committed theft of Rs.2,02,000/ and jewellery comprising of Sita Rani, four bangles, six rings, jhumki, chain all made of gold and also silver jewellery comprising of Pajeb and other jewellery articles from the house of the prosecutrix. As stated above, the prosecutrix did not produce in the witness box for her further examination and thus, her veracity in this regard could not be tested during cross examination.
40.The husband of the prosecutrix was only the other witness who could also throw light on this aspect. However, the husband of the prosecutrix in his deposition before the court as PW13 did not whisper anything in this regard. He did not support the case of the prosecution in this regard. Even during cross examination by Ld. Addl. PP for the state after declaring this witness as hostile, confronted this witness with his statement Mark X but this witness denied the suggestion that on 19.02.2011 all the accused persons took away from his house a sum of Rs.2,02,000/ besides gold and silver jewellery. Moreover, no recovery of anything was effected from the possession of any of the accused persons. Thus, the prosecution has failed to connect all the accused persons with the theft as alleged by the prosecution and accordingly, the prosecution has failed to prove that the accused persons have committed the offence punishable under Section 380/34 IPC and thus, all the SC No. 608/2016 State vs. Rajbir @ Pappu etc. Page no. 19 of 26 accused persons are liable to be acquitted for the offence punishable under Section 380/34 IPC.
Charge under Section 174A/34 IPC against accused persons namely Hari Om, Harnarayan and Kunwar Sen.
41.Accused persons namely Hari Om, Harnarayan and Kunwar Sen are also facing trial for commission of offence punishable under Section 174A/34 IPC. Section 174A IPC makes nonappearance of an accused in response to a proclamation under Section 82 Cr.P.C before the court, a criminal offence. Section 174A IPC was added to the IPC with effect from 23.06.2006 by the Code of Criminal Procedure (Amendment) Act, 2005. Section 174A IPC is as follows: "174A. Nonappearance 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"
42.Section 82 Cr.P.C referred to in the above provision runs as follows:
"82. Proclamation for person absconding. (1) If any SC No. 608/2016 State vs. Rajbir @ Pappu etc. Page no. 20 of 26 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 my publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the 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 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 houses;
(ii) the Court my 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.
(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, 397,398,399,400,402,436,449,459 or 460 of the Indian Penal code (45 of 1860), and such person fails to appear at SC No. 608/2016 State vs. Rajbir @ Pappu etc. Page no. 21 of 26 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.
(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)."
43.In this case, the accused persons namely Hari Om, Harnarayan and Kunwar Sen were charged for the alleged commission of offences punishable under Section 365/366/380/174A/34 IPC and in addition to the same, accused Hari Om was also charged for the alleged commission of offences punishable under Section 376(2)
(g)/506 IPC . Thus, the provisions of Section 82 (4) of Cr. P.C are not attracted to the present case. Section 82 (4) Cr.P.C stipulates that 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, 449, 459 or 460 of the Indian Penal Code (45 of 1860), 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.
44.The evidence on record shows that in this case, the FIR was registered on 09.05.2011. On 25.8.2011, an application was moved SC No. 608/2016 State vs. Rajbir @ Pappu etc. Page no. 22 of 26 by the IO stating that the aforesaid accused persons are avoiding their arrest and thus, nonbailable warrants be issued against them. On the same date, learned MM passed an order and issued non bailable warrants against them for 17.09.2011.
45.On 19.09.2011, another application was moved by IO in which it was stated that the aforesaid accused persons continued to avoid their arrest and thus, a request for issuance of process under Section 82 Cr.P.C against them was made and the court on the same date, learned Metropolitan Magistrate, allowed the application of the IO and issued process under Section 82 Cr.P.C against the aforesaid accused persons for 30.10.2011 and the IO was also directed to publish in National newspaper. However, that process was not executed due to Ramleela and Dushera arrangement and on 15.10.2011, another application was moved by the IO before the Ld. Metropolitan Magistrate and the ld. Metropolitan Magistrate again issued process under Section 82 Cr.P.C. against the accused for 02.12.2011 and the IO was also directed to publish the proclamation in National newspaper.
46.As per reports Ex. PW9/B to Ex. PW9/D, process under Section 82 Cr.P.C was executed by HC Permendra Kumar. HC Permendra Kumar went to the house of accused Hari Narayan, Kunwar Sen and Hari Om i.e. village Garhi Jonwar, Thana Rajakhera, District Dholpur, Rajasthan to execute the process under Section 82 Cr.P.C and affixed one copy of the said process outside the house of the SC No. 608/2016 State vs. Rajbir @ Pappu etc. Page no. 23 of 26 accused persons and another copy was affixed at the court notice board and the proclamation was also publically announced with beating of drum (Munadi). The record also shows that the process was also got published in the newspapers The Times of India and Navbharat Times both dated 06.10.2011. The operative portion of newspaper The Times of India and the photocopy of newspaper Navbharat Times are on record. Vide these newspapers, the accused persons were directed to appear before the court fo Sh. Jitender Kumar, Metropolitan Magistrate, 4th Floor, Room No. 64, Karkardooma Courts, Delhi on or before 30.10.2011. On 30.10.2011, none appeared on behalf of the aforesaid accused persons.
47.On 02.12.2011, investigating officer/prosecution moved an application for issuance of process under Section 83 Cr. P.C. against accused persons namely Hari Narayan, Kunwar Sen and Hari Om which was allowed on the same day by learned MM. The process under Section 83 Cr. P.C. against the aforesaid accused persons received back unexecuted as no movable or immovable property in the name of aforesaid accused person was found. The detailed reports of HC Permendra Kumar in this regard have been exhibited as Ex. PW9/I to Ex. PW9/K. On 12.12.2011, an application was moved by the IO for declaring the aforesaid accused persons as proclaimed absconding person. On 12.12.2011 itself statement of HC Permindra Kumar was recorded and SC No. 608/2016 State vs. Rajbir @ Pappu etc. Page no. 24 of 26 thereafter, the learned MM declared accused Har Narayan, Kunwar Sen and Hari Om as proclaimed offenders. Ultimately, they were arrested on 09.01.2012.
48.Perusal of above chronology of events show that there was valid issuance of process under Section 82 Cr. P.C against the accused Hari Om, Harnarayan and Kunwar Sen. Accused persons Hari Om, Harnarayan and Kunwar Sen did not appear at the specified place and specified time as required by that proclamation. The evidence on record also shows that provision of section 82 Cr. P.C were duly complied with. The learned MM recorded his satisfaction that the proclamation was duly published. Even otherwise Section 82 (3) Cr.P.C stipulates that statement in writing by a court issuing the proclamation to the effect that the proclamation was duly published on the specified day in the manner subsisting in section 82 (2) (i) shall be conclusive evidence that the requirements of that section have been complied with and that the proclamation was duly published on such date. Learned counsel for the accused persons has not been able to show that due procedure was not complied with. In these circumstances, the court finds no reason to disbelieve the material on record on the charge under Section 174A/34 IPC against accused Hari Om, Harnarayan and Kunwar Sen.
49.Thus, it is held that the prosecution has been able to establish beyond reasonable doubts that the accused persons namely Hari Om, Harnarayan and Kunwar Sen did not respond to the SC No. 608/2016 State vs. Rajbir @ Pappu etc. Page no. 25 of 26 proclamation issued under Section 82 Cr.P.C. Hence, accused persons namely Hari Om, Harnarayan and Kunwar Sen are liable to be convicted of the offence punishable under Section 174A/34 IPC.
50.In view of my aforesaid discussion, all the accused persons are acquitted for the offences punishable under Section 365/366/380/34 IPC. Accused persons namely Rajbir @ Pappu and Hari Om are also acquitted for the offences punishable under Section 376(2)(g)/506/34 IPC.
51.Accused persons namely Hari Om, Harnarayan and Kunwar Sen are hereby convicted for the offence punishable under Section 174A/34 IPC.
52.In compliance of the provisions of Section 437A Cr.P.C. and the directions of this court, the accused persons have submitted their respective personal bonds and surety bonds for the sum of Rs.30,000/ each with one surety of like amount. Announced in the open court on 14.12.2017 (ANURAG SAIN) Additional Sessions Judge, (Spl.FTC), East, Karkardooma Courts, Delhi SC No. 608/2016 State vs. Rajbir @ Pappu etc. Page no. 26 of 26 SC No. 608/16 State vs. Rajbir @ Pappu FIR No. 184/11 P.S. New Usmanpur 14.12.2017 Present: Sh. Arun Kumar, ld. Addl. P.P. for the State.
All the accused persons are present on bail along with ld.counsel Sh. Nitin Bhardwaj.
Vide separate judgment announced in the open court today, all the accused persons are acquitted for the offences punishable under Section 365/366/380/34 IPC. Accused persons namely Rajbir @ Pappu and Hari Om are also acquitted for the offences punishable under Section 376(2)(g)/506/34 IPC.
Accused persons namely Hari Om, Harnarayan and Kunwar Sen are convicted for the offence punishable under Section 174A/34 IPC.
Put up this matter for arguments on the quantum of sentence, on 15.12.2017.
(ANURAG SAIN) ASJ (Spl.FTC), East/KKD Courts,Delhi/14.12.2017 SC No. 608/2016 State vs. Rajbir @ Pappu etc. Page no. 27 of 26