Delhi District Court
State vs Rohit on 7 July, 2025
IN THE COURT OF JUDICIAL MAGISTRATE FIRST
CLASS-08 (CENTRAL), TIS HAZARI COURTS : DELHI
PRESIDING OFFICER: MS. SAYESHA CHADHA, DJS
FIR No. 18/2017
PS : Kotwali
U/s 392/394/411/174A/34
IPC
State vs. Rohit and Anr.
Date of Institution of case : 03.07.2017
Date when Judgment reserved : 04.06.2025
Date on which Judgment pronounced: 07.07.2025
JUDGMENT
A. Case No. : 3921/2017
B. Date of Institution of Case : 03.07.2017
C. Date of Commission of Offence : 06.02.2017
D. Name of the complainant : Sumit Kumar
E. Name of the Accused : 1 Rohit s/o Sh. Kamal
& his parentage and residence Kishore, R/o H.No.1928, Gali
Durga Mandir Lal Kuan,
Delhi-06.
2. Ashu @ Josaf Maishi s/o
Albert Maishi, r/o H.No.588,
M B Church Compound,
Mukim Pura, Malkaganj,
Delhi.
F. Offences complained of : U/s 392/394/411/174A/34
State Vs. Rohit and Anr.
FIR No. 18/2017
PS Kotwali
1/38
Indian Penal Code
G. Plea of the Accused : Pleaded not guilty
H. Final order : Acquittal of accused Ashu
u/s 392, 394, 411 read with
34 IPC and 174A IPC and
accuittal of accused Rohit u/s
392, 394, 411 read with 34
IPC. Conviction of accused
Rohit u/s 174A IPC.
I. Date of such order : 07.07.2025
Brief statement of reasons for decision of the case:
1. The case of prosecution in brief is that on 06.02.2017 at about 2:30 PM at in front of ODRS, DTC bus stand, SPM Marg. Delhi within the jurisdiction of PS Kotwali, accused persons in furtherance of common intention had committed robbery of purse victim Sanat Kumar and mobile phone of complainant Sh. Sumit Kumar and during the commission of aforesaid robbery, a cutter blow was also given to the complainant due to which he sustained injuries simple in nature and both of you were apprehended near by the spot soon after the incident and accused Rohiit was apprehended near by the spot after the commission of robbery and one purse containing articles of victim Sanat Kumar was recovered from his possession and one mobile phone of complainant Sumit Kumar was recovered from the possession of accused Ashu @ Joseph Maishi and thereby committing an offence punishable u/s 392/394/411/34 Indian Penal Code, 1860 (hereinafter called as IPC).
FIR No. 18/2017PS Kotwali 2/38
2. Accused Rohit failed to appear before this court in FIR No. 18/17, PS Kotwali and was declared proclaimed offender vide order dated 31.01.2023 and on 27.09.2018, accused Ashu @ Josaf Maishi had also failed to appear before the court at the specified date and time despite execution of process under Section 82 (clause 1) CrPC and accused Ashu @ Josaf Maishi was declared PO vide order dated 27.09.2018, thereby, both accused persons committed an offence punishable U/s 174A IPC
3. Upon conclusion of investigation, a final report was filed before the court on 03.07.2017 against the accused persons. Cognizance of offence punishable U/s 392/394/411/34 IPC was taken. Accused persons appeared and copies of charge sheet were supplied to them in compliance of Section 207 of The Code of Criminal Procedure, 1973 (hereinafter called as Cr.P.C). Thereafter, charge for offence punishable u/s 392/394/411/506/174A/34 IPC was framed against both accused to which they pleaded not guilty and opted for trial
4. Thereafter, the prosecution was given the opportunity to substantiate the allegations against the accused. The prosecution examined 17 (Seventeen) witnesses in support of its case:
5. PW-1 Sumit has deposed in his examination-in-chief that on 06.02.2017, at about 2.30 pm, he along with his elder brother namely Sanat Kumar was waiting for the bus in front of Old Delhi Railway Station. Suddenly, three boys came on a blue colour Activa scooty bearing no. DL-2SN-3112 stopped their scooty and apprehend him and his brother and the person who was sitting in the middle of the State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 3/38 scooty showed them a cutter and demanded their belongings i.e. phone and purse and he took my mobile phone make J2 Samsung from his right side pocket of pant. In the meanwhile, the person who was sitting on the back side of the scooty, snatched the purse of his elder brother. When they resist the same, the person who was carrying cutter in his hand attacked him and caused injury on the thumb of his left hand, thereafter, they raised alarm and after hearing the same, public persons were gathered and when accused persons tried to run away from the spot. They caught two accused persons them with help public persons. Thereafter, his elder brother made a call at 100 number and police official came at the spot and they handed over the accused to them and after initial investigation, they took them to the hospital for treatment and after medical examination, they brought to the police station where he gave the complaint Ex.PW1/A bearing his signature at point A. Police official prepared site plan at his instance Ex.PW1/B. Thereafter, police arrested the accused persons vide Ex.PW1/C and Ex.PW1/D, IO also personal searched the accused persons Ex.PW1/E and Ex.PW1/F, all bearing his signatures at point A. Police recorded the disclosure statement of the accused Rohit and Ashu Ex.PW1/G and Ex.PW1/H. Police also seized leather purse, mobile phone, scooty bearing no. DL-2SN-3112 and RC, vide cutter, blood sample, Jersey / jacket vide Ex.PW1/I, Ex.PW1/J, Ex.PW1/K, Ex.PW1/L, Ex.PW1/M and Ex.PW1/N, all bears his signatures at point A except on Ex.PW1/M. Thereafter, he got released his mobile phone vide superdarinama dated 13.02.2017 Ex.PW1/O, bearing his signature at point A and A1. Police official also recorded statement u/s State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 4/38 161 CrPC. He has has correctly identified the photographs of the case property Ex.P-1 to Ex.P-6.
6. During cross-examination of the witness by Ld. APP for the State, attention of the witness drawn towards the accused persons. After seeing the accused, witness deposed that he cannot identify the accused present in the court today as he had not seen him properly on the day of incident.
7. During cross-examination of the witness by Ld. Ld. LAC for the accused Rohit, PW-1 denied that accused Rohit falsely implicated in the present case and he had signed the papers in collusion with the police officials. He denied that no such recovery of case property was effected from the accused Rohit at any point of time. He denied that he was deposing falsely.
8. PW-2 Sanat Kumar has deposed in his examination-in-chief that on 06.02.2017, at about 2.30 pm, he along with his younger brother namely Sumit Kumar was waiting for the bus in front of Old Delhi Railway Station. Suddenly, three boys came on a blue colour Activa scooty bearing no. DL-2SN-3112 stopped their scooty and apprehend him and his brother and the person who was sitting in the middle of the scooty showed them a cutter and demanded their belongings i.e. phone and purse and he took the mobile phone make J2 Samsung of his brother. In the meanwhile, the person who was sitting on the back side of the scooty, snatched his purse. When they resist the same, the person who was carrying cutter in his hand attacked his younger brother and caused injury on his thumb of his left hand, thereafter, they raised alarm and after hearing the same, State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 5/38 public persons were gathered and when accused persons tried to run away from the spot. They caught two accused persons them with help public persons. Thereafter, he made a call at 100 number and police official came at the spot and they handed over the accused to them and after initial investigation, they took them to the hospital for treatment and after medical examination, they brought to the police station where his younger brother gave a complaint Ex.PW1/A. Police official prepared site plan at his instance Ex.PW1/B. Thereafter, police arrested the accused persons vide Ex.PW1/C and Ex.PW1/D, IO also personal searched the accused persons Ex.PW1/E and Ex.PW1/F, all bearing his signatures at point B. Police recorded the disclosure statement of the accused Rohit and Ashu Ex.PW1/G and Ex.PW1/H. Police also seized leather purse, mobile phone, scooty bearing no. DL-2SN-3112 and RC, vide cutter, blood sample, Jersey / jacket vide Ex.PW1/I, Ex.PW1/J, Ex.PW1/K, Ex.PW1/L, Ex.PW1/M and Ex.PW1/N, all bears his signatures at point B except on Ex.PW1/M. Police official also recorded statement u/s 161 CrPC. He has correctly identified the photographs of case property Ex.P-1 to Ex.P-6. Attention of the witness drawn towards the accused. After seeing the accused, witness deposed that he cannot identify the accused present in the court today as he had not seen him properly on the day of incident.
9. PW-3 HC Jitender has deposed in his examination-in-chief that on 17.03.2017, as per the direction of IO, he collected two duly sealed pullandas alongwith sample seal and road certificate from MHC(M) and deposited the same at FSL, Rohini. He obtained the State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 6/38 receipt of the same and deposited the receipt with MHC(M). The pullandas remained intact during his possession. IO recorded his statement.
10. During cross-examination of the witness by Ld. LAC for the accused Rohit, PW-3 stated that he left the PS Kotwali at about 10:15 am and reached at FSL Rohini at about 11:30 am. He admitted that he has no personal knowledge about the incident of the present case.
11. PW-4 Ct. Pradeep has deposed in his examination-in-chief that on 06.02.2017, he was on patrolling duty in Beat No. 16. At about 02:30 pm, when he was going towards SPM Marg, he saw public persons gathered near DTC Bus Stand. He also went there and meanwhile, Ct. Ajaypal also reached there. He saw that two accused persons were apprehended by the public persons and there was one injured who had sustained injuries in his hand. Public persons revealed that accused persons had committed robbery with two public persons who were present there. They apprehended both the accused persons. Someone had called at number 100. PCR van came at the spot and took the injured to hospital. Thereafter, ASI Ramesh Chand alognwith Ct. Naushad also reached at the spot from PS Kotwali. IO left Ct. Naushad at the spot with them and went to hospital. After some time, IO alongwith injured came at the spot and took one purse in possession which was recovered from the possession of accused persons. He also took the scooty of blue coloured in possession. He also took one cutter in possession. IO prepared the tehrir and handed over same to Ct. Naushad for registration of FIR who went to PS got State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 7/38 the FIR registered and came back at the spot and handed over the copy of FIR and original rukka to IO. IO prepared the documents at the spot. IO arrested and personally searched accused vide memos Ex. PW1/C and Ex. PW1/E respectively both bearing his signature at point C. IO arrested and personally searched the accused Ashu vide memos Ex.PW1/D and Ex.PW1/F respectively both bearing his signature at point C. The seizure memo of recovered purse exhibited as Ex.PW1/I bearing his signature at point C. The seizure memo of recovered mobile phone exhibited as Ex. PW1/J bearing his signature at point C. The seizure memo of recovered scooty exhibited as Ex. PW1/K bearing his signature at point C. The seizure memo of recovered cutter exhibited as Ex. PW1/L bearing his signature at point C. The seizure memo of recovered Jersey of accused Ashu exhibited as Ex.PW1/N bearing his signature at point C. He has correctly identified accused. He has correctly identified the photographs of the case property Ex P-1 to Ex. P-6. When he had reached at the spot, he saw that public persons were beating (dhakka mukki) with both the accused persons.
12. During cross-examination of the witness by Ld. LAC for the accused Rohit, PW-4 stated he remained at the spot till 05:00-06:00 pm. There were Rs. 140/- in the purse which was seized by the IO on that day. He did not remember the denomination of the currency notes kept in the purse. He admitted that IO had not noted down the number of currency notes in his presence. IO had asked independent public persons gathered at the spot to join the investigation but none other than the injured and his brother joined State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 8/38 the investigation. He admitted that no written notice was served to those independent public persons who refused to the join investigation. He denied that he was not present at the spot as alleged by him. He denied that accused Rohit was neither present at the spot nor he was apprehended there. He denied that accused Rohit was falsely implicated in the present case at the instance of accused Ashu as there were some issue between them. He denied that accused Rohit was lifted from his home and falsely implicated in the present case. He denied that nothing has been recovered from the possession of accused Rohit. He denied that he was deposing falsely.
13. PW-5 Ct. Ram Pal has deposed in his examination-in-chief that on 06.02.2017, when he was present at PS Kotwali, ASI Ramesh Singh IO of the present case called him at the spot i.e., in front of Old Delhi Railway Station Bus Stand, SPM Marg. He went to the spot and met with IO who handed over to him one application regarding collection of blood sample and directed him to get conducted the medical examination of injured Sumit Kumar. He alongwith injured Sumit Kumar went to AAA Hospital where injured was examined and medically treated. He obtained blood sample sealed with seal of CMO, AAA hospital and MLC. He alongwith injured came back at the spot where he handed over blood sample, sample seal and MLC to IO. IO recorded his statement.
14. During cross-examination of the witness by Ld. LAC for the both accused, PW-5 stated that he left the spot for hospital at about 11 pm. The concerned CMO had handed over me blood sample in a State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 9/38 glass like object. However, there was no ice cube around the same. He denied that he was deposing falsely.
15. PW-6 Ct. Ajay Pal has deposed in his examination-in-chief that on 06.02.2017, he was on patrolling duty at beat no. 19. When he was present near bus stand ODRS, he saw public persons were gathered at the spot and two boys were apprehended by the public persons. Ct. Pradeep was also present there. He also came to know that three persons had committed robbery with Sumit and Sanad Kumar and also attacked with knife. Blood was oozing out from the thumb of left hand of the injured. Thereafter PCR came on the spot. IO also came on the spot. PCR took the injured to the hospital. IO recorded his statement. He went to the patrolling duty. He has correctly identified the accused Ashu.
16. During cross-examination of the witness by Ld. LAC for the accused Rohit, PW-6 stated he reached at the spot at about 2:30 pm. He did not see the accused while committing the offence. He did not remember whether Ct. Naushad was present on the spot or not remember when he reached on the spot. IO did not inquire public persons in his presence. He denied that neither he was present at the spot nor he had seen the accused persons on the spot. He denied that all the proceedings were carried out while sitting at PS.
17. Ld. LAC for the accused Ashu adopted the cross-examination conducted on behalf of accused Rohit.
18. PW-7 HC Jitender has deposed in his examination-in-chief that on 07.03.2017, he took out three sealed parcels mentioned at serial no. 1,2 & 3 in RC No. 17/21/17 for depositing the same to FSL State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 10/38 Rohini. Copy of the same exhibited as Ex. PW7/A bearing his signature at point "A". After depositing the parcel, he obtained the acknowledgement slip and deposited the same vide Ex.PW7/B, bearing his signature at point "A".
19. During cross-examination of the witness by Ld. LAC for the accused Rohit, PW-7 stated that he did not have personal knowledge.
20. Ld. LAC for the accused Ashu, adopted the cross-examination conducted on behalf of accused Rohit.
21. PW-8 Ct. Naushad has deposed in his examination-in-chief that on 06.02.2017, ASI Ramesh Singh had received DD No. 17A. After receiving the same, he joined the investigation alongwith him and reached at the spot i.e., SPM Marg, DTC Bus Stand in front of Old Delhi Railway Station, where they met with Ct. Pradeep, Ct. Ajay Pal and Sanat Kumar brother of the complainant Sumit. Sanat Kumar disclosed that his brother had gone to hospital. Thereafter, IO left him and Ct. Pradeep on the spot and he went to the hospital. After sometime, IO alongwith complainant reached at the spot. IO seized the case property i.e., purse, mobile, scooty and cutter used by the accused persons. IO recorded statement of complainant and prepared rukka and handed over the same to him for registration of FIR. After registration of FIR, he returned at the spot and handed over copy of FIR and rukka to IO. Thereafter, IO arrested and personally searched accused persons vide memos Ex. PW1/C, Ex.PW1/D, Ex.PW1/E & Ex. PW1/F, all bearing his signatures at point "D". Accused persons got medically examined and put behind the bars. Thereafter, IO State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 11/38 recorded his statement. Case property was deposited in Malkhana. He has correctly identified accused. The photographs of the case property i.e., purse, documents, currency notes, mobile phone have been shown to the witness. After seeing the same, witness has correctly identified the same. Photographs exhibited as Ex.P1- to P-6.
22. During cross-examination of the witness by Ld. LAC for the accused Rohit, PW-8 stated that he does not remember the exact time when he reached at the spot, however, it was between 4-5 p.m. He remained at the spot for about 2 hours. Public persons were passing through the spot. IO had asked public persons to join the proceedings but none joined and went away without disclosing their names and addresses. No notice was served upon them by the IO. Nothing was recovered during personal search of accused persons. Witness confronted with the personal search memo of accused Ashu @ Messi, wherein one mobile phone and Rs.120/- was found from his possession. He denied that he was not present at the spot that is why he did not recall as to what was recovered from the personal search of accused Aashu @ Messi. He did not remember how much rupees was lying in the stolen purse which was recovered by the IO. He denied that he did not visit the spot at any point of time, therefore recovery memos do not bear his signature. He denied that all the proceedings were carried out while sitting at PS. He denied that he was deposing falsely.
23. Ld. LAC for the accused Ashu adopted the cross-examination conducted on behalf of accused Rohit.
24. PW-9 HC Pardeep has deposed in his examination-in-chief State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 12/38 that on 06.02.2017, ASI Ramesh Singh deposited the blood sample and sample seal duly sealed with the seal of AAAGH(Aruna Asaf Ali Govt. Hospital Delhi) in the Malkhana vide serial number 5297/17 in the present case. ASI Ramesh Singh also deposited the mobile phone make MI in the malkhana vide serial number 5298/17. He also deposited one white cutter in duly sealed pullanda which was sealed with seal of RCP in the malkhana vide serial number 5299/17. He also deposited one leather purse color brown in duly sealed pullanda which was sealed with seal of RCP in the malkhana vide serial number 5300/17. He also deposited one blood stained Jersey of the accused Ashu@Joseph Maishi in duly sealed pullanda which was sealed with seal of RCP in the malkhana vide serial number 5301/17. ASI Ramesh also deposited one scooty bearing registration number DL-2SN-3112 make Activa Honda color Blue in the malkhana vide serial number 5302/17. At this stage, MHC(M) produced the photocopy of the store room register number 19, of deposition of the abovesaid articles in the malkhana and the same exhibited as Ex.PW-9/A. On 07.03.2017, HC Jitender collected three parcels mentioned at serial 1, 2 and 3 vide RC number 17.21.17 for deposited in the same in the FSL from the Malkhana copy of the same exhibited as Ex.PW-7/A. After deposited the parcel HC Jitender obtained the acknowledgement slip and deposited the same in the Malkhana vide acknowledgement memo Ex.PW-7/B.
25. During cross-examination of the witness by Ld. Counsel for the accused Ashu, PW-9 stated that he did not have any personal knowledge of the present case. He denied that he was deposing State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 13/38 falsely.
26. PW-10 Retired SI Ramesh Singh has deposed in his examination-in-chief that on 06.02.2017, after receiving DD No. 17A he alongwith Ct. Naushad went at the spot i.e., SPM Marg, DTC Bus Stand in front of Old Delhi Railway Station, where they met with Ct. Pradeep, Ct. Ajay Pal and Sanat Kumar brother of the complainant Sumit. Sanat Kumar disclosed that his brother namely Sumit had gone to hospital through PCR. Thereafter, he left Ct. Naushad at the spot and Ct. Ajay and Ct. Pardeep have caught hold of both the accused persons whose name were later revealed as Ashu@Joseph Maishi and Rohit and he went to the hospital. There he met the complainant namely Sumit and collected his MLC bearing number 293/17 and after sometime they both came back at the spot. He seized the case property i.e., one leather purse brown color vide seizure memo Ex.PW-1/I bearing his signature at point D. He seized the mobile phone make Samsung vide seizure memo Ex.PW-1/J bearing his signature at point D. He seized the scooty bearing registration number DL-2SN-3112 vide seizure memo Ex.PW-1/K bearing his signature at point D on which the accused persons came. He seized the white cutter used by the accused persons vide memo Ex.PW-1/L bearing his signature at point D. He seized the blood stained Jersey of the accused Ashu having Grey and Blue color lines vide seizure memo Ex.PW-1/N bearing his signature at point D. He prepared the pullanda of all the abovesaid articles and duly sealed them with the seal of RCP and seal was handed over to Ct. Pardeep. Thereafter, he recorded statement of complainant Ex.PW-1/A bearing State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 14/38 his signature at point B and prepared rukka from point X-1 to X-2 bearing his signature at point C and handed over the same to Ct. Naushad for registration of FIR. After registration of FIR, Ct Naushad returned at the spot and handed over copy of FIR and original rukka to him. He prepared the site plan at the instance of the complainant vide memo Ex.PW-1/B bearing his signature at point B. Thereafter, he arrested both the accused persons vide memos Ex. PW1/C, Ex. PW1/D, and carried out their personal search, vide memos Ex.PW1/E & Ex. PW1/F, all bearing his signatures at point "E". Thereafter, he recorded the disclosure statement of the both accused persons vide memos Ex.PW-1/G and Ex.PW-1/H both bearing his signature at point B. He seized the blood sample and sample seal of the complainant Sumit Kumar vide seizure memo Ex.PW-1/M bearing his signature at point B which were duly sealed with the seal of AAAGH Delhi. Accused persons disclosed the name of third accused as Md. Arbaz. Thereafter, they searched for the third accused but he could not be traced. Thereafter, both the accused persons were got medically examined and were put behind the bars in the lock up of the PS. He recorded the statement of all the witnesses u/s 161 Cr.PC and they were discharged. He deposited the Case property in the Malkhana. On the next day i.e. 07.02.2017 both accused persons were produced before the concerned court and were sent to JC. On 08.02.2017 the present investigation marked to the ASI Adesh. He handed over the file to the concerned IO. He has correctly identified the accused Ashu@Joseph Maishi. He has correct identified the photographs of the case property i.e., purse, documents, currency State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 15/38 notes, mobile phone Ex.P1- to P-6. He has correctly identified one white cutter Ex.P-7. He has correctly identified one blood sample bottle Ex.P-8 and one blood stained Jersey color Grey and Blue stripes belonging to the accused Ashu Ex.P-9.
27. During cross-examination of the witness by Ld. LAC for the accused Rohit, PW-10 stated that he received DD No. 17A regarding the offence of theft of mobile and purse. At this stage, the witness confronted with the DD No. 17A Ex. PW10/D1 and after going through the same, he submits that the aforesaid DD was regarding only the theft of mobile and the complainant was chasing the accused. Public persons were present at the spot when he reached at the spot. He asked public persons to join the investigation but all of them refused by giving their reasonable excuses and told me that they have not witnessed the incident and gathered later-on. No notice was served upon them to join the investigation. He admitted that there are shops situated near the spot but no shopkeeper joined the investigation as they have not witnessed the incident and no notice was served upon them. He denied that the accused Rohit was taken to the hospital for medical examination and was medically examined. The witness was shown the judicial file and the medical of the accused Rohit was not placed on record. He voluntarily stated that the medical of accused Rohit was in police file. The victim/complainant Sumit was taken to the AAA hospital by the PCR. He admitted that the Ct. Gautam who took the victim to the hospital in PCR was not cited as witness. He admitted that victim brought back to the spot after State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 16/38 conducting both the MLCs bearing no. 293/17 and 294/17. He admitted that he prepared the rukka after he came back at the spot alongwith victim from the hospital and thereafter he arrested the accused after the FIR was registered. He adopt the cross- examination done by Sh. N. K. Saraswat, Ld. LAC for accused Ashu. He denied that he was deposing falsely.
28. During cross-examination of the witness by Ld. LAC for the accused Ashu, PW-10 stated he reached at the spot after 20 minutes of receiving the PCR call. He admitted that no public witness was made while doing the recovery in the present case. He admitted that shopkeepers were present at the spot and the shops were located there and the same was crowded there. He admitted that he did not mention the serial number of currency notes recovered in the present case. He admitted that he did not take on record the invoice of said mobile phone during investigation. The blood sample of Sumit was taken in the hospital and the same sample was in a sealed envelope. No public witness was made by time of seizing of the clothes. He cannot specify as to whether the said cutter in question was available in market in general or not. He did not send any property to FSL. He had not prepared any sketch / khaka of said cutter. MHCM produced one white pullanda duly sealed with the seal of MC. The same was opened with permission of the court. One white cutter was taken out from the said pullanda. MHCM produced two sealed yellow envelopes bearing the details of the present case duly sealed with the seal of MC. The same are State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 17/38 opened with permission of the court. On opening envelope mark serial number 2 one blood sample bottle was takenout and the same was shown to the witness and witness correctly identified the same. The same exhibited as Ex.P-8. On opening the envelope marked serial number 1 blood stained Jersey color Grey and Blue stripes belonging to the accused Ashu taken out from the envelope and the same correctly identified by the witness. The said jersey was shown to the witness and he has been asked as to whether the said kind of jersey was availbale in market or not. After seeking the same, witness stated that he cannot specify the the said kind of jersey was available in general in the market or not. He admitted that the said case property was seized in torn condition. He denied that the said case property was newly torn not old one. He admitted that he did not mention in his case file about the fact that the said jersy in torn condition. He denied that the said jersy was available in market and he had planted the same upon the accused and accused had nothing to do with it. He voluntarily stated that the same was worn by Ashu. He did not mark specifically blood stains with any marker or any other object upon the said jersey. He cannot specify as to whether the word 'fashion' had been mentioned upon the zip (kunda) of jersey. He admitted that he had not mentioned particulars of the cutter ie. Natraj, etc. in the seizure memo. He denied that the said cutter was available in market and he had planted the same upon the accused and accused had nothing to do with it. He cannot specify as to whether any blood stain was found State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 18/38 on the said cutter or not. No public witness was made by the time of recording of disclosure of accused. He denied that he did not prepare the site plan properly and he had never visited the spot at any point of time and accused persons had never commit robber upon the complainant at any point of time and just to solve the mystery of the case, he falsely implicated the case. He prepared all the documents while sitting the PS only. He denied that nothing was recovered from the accused persons and he planted everything upon them. He had not seized the clothes of complainant. He denied that he was deposing falsely.
29. PW-11 ASI Adesh Kumar has deposed in his examination-in- chief that on 18.02.2017, he was posted at PS Kotwali as ASI and investigation in the present case got marked to him with direction of concerned SHO. He perused the case file. During investigation and he had sent the blood sample of Sumit vide MLC No. 294/17 to FSL and he had also sent the wearing jersy of accused Hashim vide RC No. 17/21/17 Ex.PW7/A and receiving qua the same exhibited as Ex.PW7/B and the register no.19 copy qua the same exhibited as Ex.PW9/A. Thereafter, on 14.03.2017, he took result on MLC No. 294/17 and doctor opined the same as simple in nature. He apprehended Mohd. Arbaz (CCL) as per JJ rules and produced before Juvenile court and from there he sent observation home. He had also tried to approach the owner of said scooty Mohd. Arbaz who was also co-offender in the present case and he came to know that the owner of scooty was Sameer and he had also served the notice u/s 160 CrPC upon the owner and same exhibited as Ex.PW11/A bearing his State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 19/38 signature at point A who disclosed that this scooty bearing no. DL-2SN-3112 which was driven by his brother Arbaz and he took the same and did not bring back on the said evening. In the meantime, JC of accused persons also got extended. Thereafter, he prepared charge- sheet in the present case and submitted the same before the court. He recorded the statement u/s 161 CrPC of witnesses. He has correctly identified the photographs of the case property i.e., purse, documents, currency notes, mobile phone Ex.P1- to P-6. He has correctly identified one white cutter Ex.P-7. He has correctly identified one blood sample bottle Ex.P-8 and one blood stained Jersey color Grey and Blue stripes belonging to the accused Ashu Ex.P-9.
30. During cross-examination of the witness by Ld. LAC for the accused Ashu, PW-11 admitted that he had prepared the charge- sheet in the present case and had not arrested the accused persons. He admitted that he did not conduct any investigation against the accused Ashu @ Joseph Masih and accused Rohit. He admitted that blood sample which was sent to FSL was not contained in ice box. He admitted that he did not see any sample. He denied that he was deposing falsely.
31. Ld. LAC for the accused Rohit, PW-11 stated that adopt the cross-examination done by Sh. N. K. Saraswat.
32. PW-12 HC Pradeep Bhardwaj has deposed in his examination-in-chief that on 07.03.2017, he had handed over one sample seal, blood sample and one pulanda containing blood stained jersy to HC Jitender vide RC No. 17/21/17 dated 07.03.2017 Ex.PW-7/A bearing his signatures at point B for depositing the same State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 20/38 in FSL, Rohini.
33. During cross-examination of the witness by Ld. LAC for the accused Rohit, PW-11 denied that he had not handed over the blood samples /sample sealed and blood stained jersy to HC Jitender for depositing the same in the FSL Rohini. It is wrong to suggest that he was deposing falsely.
34. During cross-examination of the witness by Ld. LAC for the accused Ashu, PW-11 stated the seal which was sent by him was intact. He had no personal knowledge regarding the case. He was deposing falsely at the instance of IO.
35. PW-13 ASI Sunil has deposed in his examination-in-chief that on 10.04.2023, he alongwith ASI Sanjeev went in search of PO vide DD No. 08 and were present at Sonia Nagar, Loni, Gaziabad. On that day at about 07:30 am, one secret informer came at Sonia Nagar, Loni, Gaziabad and informed him that accused was declared PO in the present case was present at Gali no. 7, Keshav Nagar, Loni, Ghaziabad and can be apprehended if raided now. Thereafter, he alongwith ASI Sanjeev and secret informer went to the spot and the secret informer pointed out towards the accused Rohit who was standing in the above said street and left the spot. Thereafter, he alongwith the ASI Sanjeev apprehended the accused. On inquiry his name was revealed as Rohit S/o Kamal. Thereafter, he interrogated and arrested the accused vide arrest which memo Ex PW-13/A bearing his signature at point A and carried out his personal search Ex PW-13/B both bearing his signature at point A and after medical examination of the accused filed the kalandara u/s 41.1(c) Cr.P.C. vide State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 21/38 DD No. 14A dt. 10.04.2023 Ex.PW-13/C bearing his signature at point A and produced the accused before the concerned court. He has correctly identified accused.
36. During cross-examination of the witness by Ld. LAC for the accused Rohit, PW-13 stated that on 10.04.2023, he along with ASI Sanjeev and secret informer went to the spot of arrest of accused. No public witness was joined during the arrest as the accused was PO. He denied that he was deposing falsely.
37. PW-14 SI Akashdeep has deposed in his examination-in-chief that main charge-sheet has already been filed in the present case against accused Rohit and Ashu @ Joseph Maishi. Accused was declared PO on 31.01.2023 in the present case and was arrested by ASI Sunil Kumar on 10.04.2023 vide DD No. 14 A PS Hauz Qazi and ASI Sunil Kumar filed the kalandara u/s 41.1 (c) CrPC against the accused and produced him before the concerned court. Thereafter, as per the directions of concerned SHO, he collected all the relevant documents from ASI Sunil Kumar and recorded the statement of the witnesses u/s 161 Cr.P.C and they were discharged. Thereafter, he filed the supplementary charge-sheet u/s 174A IPC against accused before the concerned court.
38. During cross-examination of the witness by Ld. LAC for the accused Rohit, PW-14 admitted that he had not seen the accused in the present case. He denied that he was deposing falsely.
39. PW-15 ASI Sanjeev Kumar has deposed in his examination- in-chief that on 10.04.2023, he alongwith ASI Sunil went in search of PO vide DD Number 8 and were present Sonia Nagar, Loni, State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 22/38 Gaziabad. On that day, at about 07:30 am, one secret informer came at Sonia Nagar, Loni Gazibad and informed to ASI Sunil that the accused namely Rohit who was declared PO in the present case is present at Gali No. 7, Keshav Nagar, Loni, Gaziabad, UP and can be apprehended if raided now. Thereafter, he alongwith ASI Sunil and secret informer went to the spot and secret informer pointed out towards the accused Rohit who was standing in above said street and left the spot. Thereafter, he alongwith ASI Sunil apprehended the accused. On inquiry his name was revealed Rohit S/o Kamal. Thereafter, ASI Sunil interrogated the accused and arrested the accused vide arrest memo Ex.PW-13/A bearing his signature at point B and carried out his personal search vide memo Ex.PW-13/B bearing his signature at point B and after the medical examination of the accused ASI Sunil filed the kallandra u/s 41.1 (C) CrPC vide DD No. 14A dated 10.04.2023 Ex.PW-13/C bearing his signature at point B and produced the accused before the present court. He has correctly identified accused.
40. During cross-examination of the witness by Ld. LAC for the accused Rohit, PW-15 stated that the accused Rohit was arrested at 08:00 am. No public persons were present at the spot at the time of arrest of accused. He admitted that he did not know the accused Rohit prior to the arrest. He denied that he was deposing falsely.
41. During cross-examination of the witness by Ld. LAC for the accused Ashu, PW-15 admitted that he did not know the accused Ashu.
42. PW-16 Ct. Mohit Kumar has deposed in his examination-in-
FIR No. 18/2017PS Kotwali 23/38 chief that on 17.07.2018, he was posted as cosntable at PS Kotwali. On that day, he received a process u/s 82 Cr.PC against the accused Ashu @ Joseph to execute the same on address i.e. H No. 588 M B Church Compound Mukim Pura, Malka Ganj, Delhi. He found the accused but he could not found at the address mentioned on the process u/s 82 CrPC. Thereafter, he pasted the process u/s 82 Cr.PC at the given address and pronounced proclamation by beating drums in the area. He also affiixed one copy of the notice board of the court. His detail report in this regard exhibited as Ex.CX-2 bearing his signature at point A
43. During cross-examination of the witness by Ld. LAC for the accused Ashu, PW-16 denied that he did not affixed the notice on the proper address mentioned in the notice. He denied that he was deposing falsely in this case.
44. PW-17 SI Jitender Kumar has deposed in his examination-in- chief that on 07.09.2019, he received the information regarding the apprehension of PO Ashu vide DD No. 22A. Thereafter, he made a application for obtaining production warrant, that the accused was arrested FIR No. 247/19 PS Crime Branch, in the Hon'ble Court for 13.09.2019. On 13.09.2019, accused produced from the JC before the concerned court and accused be taken into custody and sent to JC. He prepared the supplementary charge sheet u/s 174A IPC and filed before the concerned court.
45. During cross-examination of the witness by Ld. LAC for the accused Ashu, PW-17 stated he applied for production of accused on 11.09.2019. He admitted that he did not have any personal State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 24/38 knowledge of the present case FIR No. 18/17 PS Kotwali. He admitted that he had not arrested the accused. He denied that he was deposing falsely.
46. Vide statement of accused persons u/s 294 CrPC, accused persons admitted FIR Ex.P-1, endorsement Ex.P-2 and certificate u/s 65 B Ex.P-3, DD No. 27B Ex.P-4, DD No. 33 B Ex.P-5, MLC No. 293/17 Ex.P-6 and MLC No. 294/17 Ex.P-7 without admitting the contents of the documents.
47. The prosecution evidence was closed on 01.02.2025 and the statement of both accused persons were recorded under Section 313 read with section 281 of CrPC on 22.02.2025, wherein they pleaded their innocence and stated to have been falsely implicated. The accused persons have not opted to lead defence evidence. Final arguments were heard. I have cogitated over the submissions made by ld. APP for the state and Ld. Counsel for the accused persons.
DISCUSSION, DECISION AND REASONS THEREON:
48. I have heard the arguments addressed by the Ld. APP for state and the Ld. Counsel for the accused persons and carefully perused the documents on record. The following points of determination have been framed :-
1. Whether the accused persons in furtherance of their common intention, on 06.02.2017, at about 2.30 pm, in front of ODRS, DTC Bus Stand, gave a cutter blow to the complainant in order to commit robbery of his purse and mobile.
2. Whether on 06.02.2017, at about 2.30 pm, in front of ODRS, State Vs. Rohit and Anr.FIR No. 18/2017
PS Kotwali 25/38 DTC Bus Stand, the accused Rohit was found in possession of the purse of the complainant with knowledge and reason to believe that the same is a stolen property.
3. Whether on 06.02.2017, at about 2.30 pm, in front of ODRS, DTC Bus Stand, the accused Ashu was found in possession of the mobile phone of the complainant with knowledge and reason to believe that the same is a stolen property.
4. Whether the accused Ashu had absconded or was concealing himself that a process u/s 82 CrPC was issued against him and consequently, he was declared a proclaimed offender vide order dated 27.09.2018 and thereby, committed offence u/s 174A IPC.
5. Whether the accused Rohit had absconded or was concealing himself that a process u/s 82 CrPC was issued against him and consequently, he was declared a proclaimed offender vide order dated 31.01.2023 and thereby, committed offence u/s 174A IPC.
49. In order to ensure brevity and convenience, the first three points of determination shall be discussed simultaneously.
50. The prosecution has first examined the complainant, Sumit as PW-1 who has categorically stated in his examination-in-chief that on 06.02.2017 at about 2.30 pm, he along with his eleder brother was waiting for the bus in front of ODRS, when suddenly, three boys came on a blue coloured activa scooty bearing no. DL-2SN-3112 and apprehended him as well as his brother. The persons sitting in the middle showed them a cutter and demanded their belongings i.e., phone and purse. He took out his mobile State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 26/38 phone from the right pocket of his pant. The person who was sitting on the back side snatched his purse. When they tried to resist, the person carrying the cutter attacked him and cause injury on his left thumb. They raised alarm and after hearing the same, public persons gathered on the spot. With the aid of public persons, two accused persons were apprehended at the spot. His elder brother made a call at 100 and police officials came at the spot. He has verified his signatures on the site plan, arrest memos and the seizure memos. The complainant has also identified the case property.
51. However, during his cross-examination by Ld. APP, he denied to identify the accused Ronit and categorically stated that he cannot identify him in the court today as he could not see accused persons properly on the day of the incident.
52. The prosecution has then examined the brother of the complainant, Sanat Kumar as PW-2 who has corroborated the version of PW-1. In his examination-in-chief, he has failed to identify the accused persons in the court stating that he had not seen accused persons properly on the day of incident.
53. PW-4 Ct. Pradeep was also examined by the prosecution who had categorically stated, that when he reached at the spot, he saw that the two accused persons were apprehended by the public persons at the spot. He further stated that IO along with the injured came at the spot and took one purse in possession vide seizure State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 27/38 memo Ex.PW1/I which was recovered from accused Rohit. The mobile phone was also siezed vide seizure memo Ex.PW1/J after recovering the same from accused Ashu. In his cross-examination, the said witness has categorically stated that the IO had asked independed public person to join the investigation but none of them agreed for the same. He also admitted that no written notice was served upon independent public persons who refused to join the investigation.
54. The prosecution has then examined Ct. Rampal as PW-5 who has categorically stated in his examination that he had left the spot for the hospital at about 11.00 pm. However, the MLC Ex.P6 on record states the date and hour of arrival as 3.19 pm. The inconsistency has not been explained.
55. PW-6 Ct. Ajay Pal had also seen public persons gathered at the spot on the day of incident, while he was on patrolling duty. Admittedly, he had not seen the accused persons committing the alleged offence.
56. PW-8 has corroborated the version of the prosecution and categorically stated in his cross-examination that public persons were passing through the spot. The IO had asked them to join the investigation but none of them agreed for the same. Admittedly, no notice was served upon them by the IO.
57. PW-10 has supported the version of the prosecution. In his State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 28/38 cross-examination, he has admitted that the shopkeepers were present at the spot. However, no public person was inlcuded in the present case. Even the numbers on the currency notes, allegedly recovered from the complainant's purse, were not noted by the IO. He has categorically admitted that he did not serve the notice upon any of the witnesses who refused to join the investigation.
58. A detailed perusal of the entire evidence on record manifests that there was no eye witness to the alleged incident apart from the complainant, PW-1 and the victim PW-2. Both PW-1 and PW-2 have categorically stated that they cannot identify the accused Rohit since they could not see him properly on the day of the incident. Although, they had verified the signatures on the arrest memo, however, since the dock identification of the accused Rohit has failed, the same cannot be relied upon to establish his identity.
59. Moreover, PW-4, PW-8 and PW-10 had categorically admitted that the place of incident was a crowded area with the presence of various shopkeepers, however, no independent public witness made part of the investigation. Admitedly, no notice was served upon them by the IO when they refused to join the investigation. The fact that the accused persons were apprehended by the aid of public persons at the spot, creates all the more suspicion upon the case of prosecution.
60. At this juncture, the court deems it apposite to cite the case titled as Roop Chand Vs. State of Haryana, 1989 SCC OnLine State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 29/38 P&H 539 : (1989) 2 RCR (Cri) 504 wherein it was held by the Hon'ble Supreme Court that "where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take actions against those who refused to take part in the investigation nor their names were noted down by the police, the explanation of the police for not joining independent public witnesses is an after thought and is liable to be rejected.
61. In fact the seizure memos of the recovered case property i.e., Ex.PW1/I and Ex.PW1/J are also not countersigned by any independent public witnesses. Reliance is placed on the judgment titled as Sahib Singh Vs. State of Punjab, AIR 1997 SC 2417 wherein it was categorically stated by the Hon'ble Supreme Court that "Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found- as in the present case-that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 30/38 available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
62. Reliance is also placed on the judgement of D V Shanmugham Vs. State of Andhra Pradesh, AIR 1997 SC 2583 wherein it has been held by the Hon'ble Supreme Court that " It also appeared from the evidence of PW-2 and PW-8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinized with more care and caution."
63. Hence, there was no recovery witness apart from PW-1 and PW-2 despite the place of recovery being a public place.
64. The fact that PW-1 and PW-2 failed to identify the accused Rohit during dock identification has dented the case of prosecution adversely. Accused Ashu has also not been identified since the witnesses (PW-1 and PW-2) were not re-examined after he was arrested as a proclaimed offender. Hence, identity of the accused stands unproved and unestablished as the complainant and victim themselves have deposed that they had not seen the accused persons property on the day of incident.
65. The recovery was also effected in the absence of any State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 31/38 independent witness, hence, the facet of it being planted cannot be eschewed when admittedly the place of recovery was a public place.
66. No videography or photography was done at the time of alleged recovery that could have added credibility to the recovery proceedings. There is no CCTV footage or CDR available on record that would corroborate the case prosecution.
67. It is also pertinent to mention that the chance prints from the allegedly recovered case property were never collected or sent to the FSL. Hence, the prosecution has not been able to establish the direct nexus of the accused persons with the allegedly recovered purse and mobile phone.
68. Merely, because PW-1 and PW-2 have verified their signatures on seizure memo Ex.PW1/I and Ex.PW1/J, the charge u/s 411 IPC cannot be established without leading sufficient evidence of the fact that the accused persons had knowledge or reason to believe that the alleged purse and mobile phone were stolen properties within the meaning of section 410 of IPC. No evidence has been led by the prosecution on the basis of which, the said mens rea can be informed. In fact, PW-1 and PW-2 have failed to identify the accused Rohit in court and had categorically stated that they had not seen the face of accused persons properly on the day of the incident. Hence, the prosecution has not been able to prove its case beyond reasonable doubt and the suspicion of planted State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 32/38 recovery cannot be negated.
69. Accordingly, in view of the above said discussion, the prosecution has not been able to establish the essential ingredients of section 392, 394, 411 read with 34 IPC beyond reasonable doubt against the accused persons.
4. Whether the accused Ashu had absconded or was concealing himself that a process u/s 82 CrPC was issued against him and consequently, he was declared a proclaimed offender vide order dated 27.09.2018 and thereby, committed offence u/s 174A IPC.
5. Whether the accused Rohit had absconded or was concealing himself that a process u/s 82 CrPC was issued against him and consequently, he was declared a proclaimed offender vide order dated 31.01.2023 and thereby, committed offence u/s 174A IPC.
70. In order to ensure brevity and convenience, the fourth and fifth points of determination shall be discussed simultaneously.
71. The onus to prove the same shall be on the prosecution. Section 82 CrPC states that (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 ordinarily resides or to some State Vs. Rohit and Anr.FIR No. 18/2017
PS Kotwali 33/38 conspicuous place of such town or village;
(c) a copy thereof shall be affixed 1o some conspicuous part of the Court House; Procematon te be pulisked f , il newpaper 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 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 sub-Section (1) is in respect of a person accused of an offence punishable under Sections 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.
(5) The provisions of sub-Sections (2) and (3) shall apply to a declaration made by the Court under sub-Section (4) as they apply to the proclamation published under sub-Section (1)."
72. It shall be noted that 82 of CrPC clearly provides that the court may publish a written proclamation against a person requiring his appearance only after the court has issued warrants and has reasons to believe that a person against whom warrants have been issued has absconded or is concealing himself so that such warrants cannot be executed.
73. In the present case, NBWs were issued against the accused Ashu on 07.03.2018 and were returnable for 26.04.2018. The perusal of report on NBWs shows that the accused Ashu was not found at the given address. Consequently, process u/s 82 CrPC was issued on 26.04.2018 and was returnable for 27.09.2018. It was reported on the process that no such person resides at the given address.
FIR No. 18/2017PS Kotwali 34/38
74. The photographs of affixation on the last known address of the accused was also annexed along with the report.
75. It is pertinent to mention that no DD entries of departure have been annexed on record indicating the visit of process server to the said address.
76. The Honorable High Court of Delhi in the case of Sunil Tyagi Vs. Government of NCT of Delhi and Anr, AIR Online, 2021 Del 912 laid down certain guidelines for issuing process u/s 82 CrPC.
1. Concealment has to be deliberate for the purpose of avoiding arrest. The mere fact that the police could not find the accused is not enough.
2. Pre-requisites to the publication of a proclamation under Section 82(2)(ii) CrPC - Prior to publication under Section 82(2)(ii) CrPC the Police Officer may be mandatorily required to file an Affidavit disclosing: A picture showing that proclamation has been affixed in a conspicuous place of the house where the person resides. The picture must be taken in a manner that makes it clear to the Court that the proclamation has in fact, been affixed at the said house; The Court must pass an order dealing with the contents of the Affidavit and statement of the process server along with its reasons for directing publication under Section 82(2)(ii).
3. Publication by all three modes essential - Publication by all three modes namely (i) public reading in some conspicuous place of the town/village in such person ordinarily resides; (ii) affixation at some conspicuous part of the house or homestead and (iii) affixation at some conspicuous part of the court house are mandatory under Section 82(2) CrPC. The failure to comply with all the three modes of publication is to be considered invalid publication, according to law as the three sub-clauses (a) to (c) are conjunctive and not disjunctive.
77. Further, the process u/s 82 CrPC was issued and statement of process server was recorded. However, no photographs of affixation on the notice of the court have been placed on record.
FIR No. 18/2017PS Kotwali 35/38 There are no DD entries indicating the visit to the said address. The publication in newspaper has also not been done. Hence, the process u/s 82 CrPC has not been executed in compliance of the mandate of law.
78. Hence, it can be concluded that since the process u/s 82 CrPC was not duly executed, the accused cannot be held guilty u/s 174A IPC.
79. The allegations that have been leveled against the accused Rohit are that he failed to appear before the court and was consequently declared as proclaimed offender. An NBWs was issued against the accused on 05.05.2022, 19.10.2022 and 07.11.2022. However, it was reported that the accused has left the address. Since the accused failed to appear at the specified place and time as required by the proclamation that was published against him u/s 82 CrPC, he was consequently declared as a proclaimed offender vide order dated 31.03.2023.
80. Process server deposed that on 31.12.2022, he went to execute the process u/s 82 CrPC against the accused, namely, Rohit. She executed the same by visiting the address of the accused and by pronouncing necessary proclamation in the colony. She also, in compliance of section 82 CrPC affixed one copy of the process on the door of the house of the accused and by affixing one copy on the notice board of the court. She proved her report as Ex.C2. The relevant photographs, statements and copy of newspaper has also been annexed along with the report.
FIR No. 18/2017PS Kotwali 36/38
81. PW-13 deposed to the effect that he arrested the accused on 10.04.2023 as he was declared PO vide order dated 31.01.2023 in kalandara vide DD no. 14A dated 10.04.2023.
82. Consequenlty, supplementary charge-sheet was filed against the accused Rohit before the concerned court.
83. Ld. Defence counsel has merely argued to the effect that accused had shifted from his address on record and due to advent of covid 19, he failed to produce his current address.
84. The process server has duly proved her report i.e., Ex.C-2. It is not the claim of the accused that his residential address in the proclamation u/s 82 CrPC is incorrect. Admittedly, it was the last known address of the accused and it was he who had not informed the court about his changed address during pendency of the court proceedings. As per the report of process server, the accused and his family had left the given address to an unknown location. Hence, alleged address was once inhabited by the accused and his family. Moreover, the accused had previously entered appearance before the court and was well aware of the proceedings pending against him. Hence, it can be concluded that he deliberately chose to evade the same. No cogent explanation has been given by the accused for non-appearance before the court. No substantial defence has been taken during trial. Thus, I find that the process u/s 82 CrPC was duly executed against the accused and he was consequently declared as a proclaimed offender.
85. In the present case as already discussed, the process u/s 82 State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 37/38 CrPC has been duly executed in view of the requirements as laid down in the case of Sunil Tyagi Vs. Government of NCT of Delhi and Anr, AIR Online, 2021 Del 912 passed by Hon'ble High Court of Delhi. Accordingly, offence u/s 174-A IPC stands duly proved against the accused Rohit s/o Kamal Kishore. Hence, in view of the above said discussion, accused Ashu stands acquitted u/s 174A IPC while accused Rohit stands convicted 174A IPC.
86. Accordingly, both accused persons, namely, Ashu @ Josaf Maishi and Rohit s/o Kamal Kishore are acquitted of the offence punishable U/s 392, 394, 411 read with 34 IPC. Accused Ashu @ Josaf Maishi is also acquitted for offence u/s 174A IPC. Accused Rohit is convicted for offence u/s 174A IPC.
Announced in the open court Digitally signed
by SAYESHA
SAYESHA CHADHA
today. CHADHA Date:
2025.07.07
16:19:52 +0530
(SAYESHA CHADHA)
JUDICIAL MAGISTRATE FIRST
CLASS-08, Central District,
Tis Hazari Courts/Delhi
[This judgment contains 38 pages and each page bears the initials of undersigned and the last page bears the complete sign of undersigned.] State Vs. Rohit and Anr.
FIR No. 18/2017PS Kotwali 38/38