Delhi District Court
State vs . Okwara on 9 May, 2012
IN THE COURT OF SHRI PRASHANT SHARMA,
METROPOLITAN MAGISTRATE 06,
SAKET COURTS, NEW DELHI.
Serial No. : 4/3 dated 27.1.2011
Unique Identification No. 02406R0069452011
State Vs. Okwara
FIR No. 287/10
P. S. R.K.Puram
U/s 224 IPC
JUDGMENT:
1.Srl. No. of the case & Date of institution 4/3 & 27.1.2011 2.Date of commission of offence 28.8.2010 3.Name of the complainant Y.R. Yadav 4.Name of the accused Okwara S/O Donatus Okwara 5.Nature of offence complained of 224 IPC and 14 Foreigners Act 6.Plea of the accused person Accused pleaded not guilty 7. Date reserved for order 9.5.2012 8.Final Order Convicted 9.Date of such order 9.5.2012 Date of Institution : 27.1.2011 Date of order reserved : 9.5.2012 Date of pronouncement : 9.5.2012 BRIEF FACTS OF THE CASE:
1. Law of the land, is supreme. A foreigner, cannot presume himself, to be above the law. This case, reinforces, the said dictum.
2. Accused was booked in this case, when complaint dt. 29.8.10, written by one Y R Yadav, Superintendent, NCB, Delhi Zonal Unit, was made to SHO concerned. It was alleged in the said complaint that appropriate action against the accused may be taken, for escaping from lawful custody. It was stated in the said complaint that he was arrested in case titled as NCB Vs. Okawara Ygonna Donatus, U/s 8, 21 of NDPS Act, by NCB official on 28.8.10 at 1500 hours. Subsequently, he was lodged in the lockup of Delhi Zonal Unit at West block I, WingVII, R K Puram alongwith two other accused persons. That while shifting one of the accused persons, accused in question, resisted his apprehension and after breaking the aluminum window pane, of the 2 nd floor corridor of the office, he jumped from the 2nd floor and escaped from the lawful custody of NDB at 2300 hours on 28.8.2010. Subsequently, efforts were being made, to trace out the accused, but he was not traceable. In the background of aforesaid allegations and necessary particulars of the accused, request of appropriate action was made. This complaint was sent via. post to the concerned PS, where FIR in question was registered on 4.9.10. Investigation was handed over to the ASI Ali Mohammad (IO concerned), who went to the site of occurrence, took the photographs of the site of occurrence, prepared the site plan, inquired from FARO, Nigerian embassy. During investigation, IO came to know from the embassy concerned that no passport of accused was registered in the records. Efforts were being made for apprehending him but he was not traced out. Subsequently, on 7.1.2011, a letter issued by Y R Yadav of afore mention detail, was received by the IO, which revealed that accused in question was arrested again by NCB official. On receiving the said information, accused was arrested in this case, efforts were being made for tracing out the passport and Visa of the accused but the same remained untraceable, statements of witnesses were recorded and finally after completing the investigation, charge sheet was filed.
3. After taking the cognizance of the offences, accused was supplied with copy of charge sheet. Accused was charged with commission of offences punishable U/S 224 IPC and 14 F Act,as he on 28.8.2010 at about 11 PM at West Block I Wing 7 ,R.K.Puram New Delhi within the jurisdiction of P.S. R.K.Puram had escaped from the lawful custody of the Narcotics Control Bureau and was also found residing in India without any Visa and passport. In response to the charge, accused pleaded not guilty and claimed trial. Then case was fixed for PE.
4. In order to prove its case the prosecution has examined eight witnesses. PW 1 HC Babu Lal deposed that on 28.8.2010 he alongwith Ct. Om Prakash were posted at Narcotics Control Bureau where accused was brought in lock up by Inspector Azad Singh. That, it was duty of this witness, to keep vigilance on the accused. That when they were opening the lock for another accused, accused Okawara dragged the lock up door and ran away from there by pushing Ct. Om Prakash. That accused jumped from the lockup window and alarm was raised by all the police official present there. That IO prepared the site plan on 6.9.10 at his instance. Accused was correctly identified by the witness. PW 2 ASI Ali Mohd. deposed that on 29.8.2010 he was posted at P.S. R.K.Puram and on that day after receiving the complaint Ex.PW3/A, from Narcotic Control Bureau he got the FIR registered. Subsequently, he investigated the matter. During investigation, he prepared the site plan, took the photographs, arrested the accused vide arrest memo, recorded his disclosure statement and prepared the documents Ex. PW2/A to PW2/D respectively. PW3 Y.R. Yadav deposed that he was working in Narcotics Control Bureau Delhi Zonal Unit in April 2010. That on 28.8.2010 accused was arrested by NCB team in the case of seizure of 800 Grams of Heroine from his possession and was kept in lock up. That, at about 2300 hours on the same day accused came out from the lock up while Ct. Om Prakash and HC Babu Lal were taking one of the arrested person to urinal and ran away from there. That, he gave complaint dated 29.8.2010 Ex. PW3/A to concerned SHO. That, he on 6.1.2011 after receiving a secret information apprehended the accused, from Arjun Nagar. That information of his arrest was given to SHO P.S. R.K.Puram vide memo Ex. PW3/B. That subsequently, IO of this case arrested the accused. PW 4 G.S. Bhinder, deposed that on 6.1.2011 he was posted at Narcotics Control Bureau Delhi Zonal Unit, R.K.Puram New Delhi. That, on that day he received a secret information through Y.R. Yadav regarding arrival of the accused Okawara at Arjun Nagar New Delhi. That, on this information he formed a team and reached at Arjun Nagar where they apprehended him. PW 5 HC Sundari No. 677/SD deposed that on 4.9.2010 he was posted at P.S. R.K.Puram as Duty Officer and registered the FIR Ex. PW5/A and made the endorsement on rukka Ex. PW5/B. PW6 Ct. Neeraj Kumar deposed that on 7.1.2011 he was posted at P.S. R.K.Puram and joined the investigation of the present case alongwith the IO ASI Ali Mohd. That IO arrested formally the accused and prepared memos Ex. PW2/C. The same was prepared in his presence and bears his signature at point B. PW 7 Rajesh Kumar deposed that on 6.1.2011 he was posted at Narcotics control bureau and on that day he alongwith Intelligence officers Sh. Pankaj Divedi, Azad Singh, G.S. Binder and Ct. Narender formed a team as per secret information and reached at Arjun Nagar and apprehended the accused. That accused used to use different names. That it was confirmed accused was having no visa with him. That accused was brought to lockup by NCB official on 7.1.2011. PW 8 Ct. Om Prakash deposed that on 28.8.2010 he was posted at Narcotics control bureau and was on night duty. That he alongwith Ct. Babu Lal were keeping close watch on accused in question. That accused was in the lock up and at about 10.30 PM when they were taking out another prisoner from the urinal, accused ran away from there after breaking the window of the lock up. Subsequently, prosecution evidence was closed.
5. After that statement of accused U/S 313 Cr.PC read with section 281 cr.p.c. was recorded to which accused pleaded not guilty. He raised the probable defence that he was not the concerned person who ran away on the given day and time in question. He further, stated that he was falsely implicated by the police official. Subsequently, matter was fixed for judgment, after final arguments were heard, as accused preferred not to lead defence evidence.
6. The first offence, with which accused was charged was section 224 IPC The said section talks about punishment to be awarded to a person, who offers resistance or obstruction illegally to the lawful apprehension of himself of any offence, with which he is charged or of which he has been convicted or escapes from any custody in which he is lawfully detained for any such offence.
7. As per the prosecution evidence, PW1 HC Babu Lal, PW3 Y R Yadav and PW8 Ct. Om Prakash, categorically stated that accused was apprehended by the NCB, R K Puram officials. That accused was brought to the lockup, and he had escaped from the said lockup, after pushing Ct. Om Prakash. That accused had jumped from the 2nd floor of the concerned office. PW 1 HC Babu Lal and PW3 Y R Yadav were cross examined by the accused. During cross examination, it was not questioned as to whether accused was or was not arrested by NCB, department officials, in the concerned case. It was not questioned as to whether accused resisted or not on the given day time and place in question. It was not questioned as to whether, custody of the accused was legal or not. There were no suggestions to that effect. No motive or intention, was suggested on the said witnesses, for falsely implicating the accused. The net result was, that the allegations of escaping from the lawful custody of the concerned official, remained unchallenged and in the given circumstances, I did not find that accused was falsely implicated in this case. PW8 Ct. Om Prakash, surprisingly, was not cross examined, despite the fact that accused had the opportunity to do so. Evidence of the aforesaid witnesses, therefore, stood the acid test of the cross examination. I found their evidence, trustworthy and reliable.
8. PW2 ASI Ali Mohd., was the investigating officer of this case. There was nothing much for him to investigate in this case, as the accusations were already made by the officials of different department. So far as his testimony of concerned, he disclosed that after registration of FIR in question, he recorded the statement of the witnesses, arrested the accused on the information from NCB department and finally prepared the charge sheet. The aforesaid aspects of investigation, remained unchallenged. A bald suggestion of false implication, was put to this witness, which was refuted by him. This witness also stood his ground during cross examination. I believed his version to be trustworthy and reliable.
9. PW4 G S Binder, PW6 Ct. Neeraj Kumar and PW7 Rajesh Kumar had deposed that accused in question was arrested from Arjun Nagar on a secret information, on 6.1.2011. These witnesses were not questioned with regard to the exact place of arrest, time of arrest or with regard to the aspect, as to whether any person, apart from police officials, were present at the time of arrest. It was surprising that PW6 Ct. Neeraj Kumar and PW7 Rajesh Kumar, who had witnessed the arrest of accused in question were not cross examined by the accused, despite availing the opportunity to do so. I, Therefore, found testimonies of the aforesaid witnesses, to be reliable and trustworthy.
10.The net result was prosecution was able to prove its case beyond reasonable doubt, so far as offence punishable u/s 224 IPC was concerned.
11. The second offence, with which accused was charged, was section 14 Foreigner Act. So far as this offence was concerned, PW7 Rajesh Kumar had specifically stated that accused was not having any visa or passport with him. This witness was not cross examined by the accused, despite the availing the opportunity to do so. It was nowhere argued by the accused, during cross examining other witnesses, investigating officer in particular, that accused had valid visa and passport, during the relevant time. The net result was, prosecution was able to prove its case beyond reasonable doubt, with regard to offence punishable u/s 14 Foreigner Act.
12.Before coming to the conclusion, I am dealing here the probable defence the accused. The first issue of the accused was that he was falsely implicated in this case. This issue was not found by me to be reasonable, as accused did not explain, as to why he was falsely implicated in this case. Secondly, it was argued, that some other person had escaped from the custody of the NCB official on the given day, time and place in question. The said argument, fell flat, as it was not suggested as to who was the concerned person, who had escaped the lawful custody of the NCB official. So far as, procedural aspects were concerned viz. Nonmentioning of public witness, nongiving of information to any public person while arresting the accused, nonmentioning of any entry before departing from NCB office by its official, I did not find the said discrepancies, to be material, as they were procedural aspects only and they did not disprove the case of the prosecution from its base. Besides that, all the prosecution witnesses held their versions, with regard to incriminating facts against the accused. If seen, from this angle also, the descrepencies were minuscle in nature and therefore, discarded by me.
13.Keeping in mind aforesaid appreciation of evidence, accused is convicted u/s 224 IPC and section 14 foreigners act.
Announced in open court ( PRASHANT SHARMA )
today i.e.9.5.2012 M.M.06, Saket Courts, New Delhi.
State Vs. Okwara
FIR No. 287/10
P. S. R.K.Puram
U/s 224 IPC
9.5.2012
Present : Ld. APP for State.
Accused produced from JC.
Final arguments heard.
Vide my judgment of even date accused is convicted for the offences U/S 224 IPC. Arguments on sentence heard.
Accused is a foreign national accused in remained custody in this case since 7.1.2011. More than a year has lapse. Accused not repeated the same mistake. He is sentenced for the period already been under gone by him.
Bail bond stands cancelled. Surety stands discharged. Endorsement, if any, be cancelled. Original documents be given to its rightful owner against proper receipt. File be consigned to record room after necessary compliance.
( PRASHANT SHARMA ) M.M.6, Saket Courts, New Delhi 9.5.2012