Delhi District Court
State vs Surender Sood on 4 July, 2024
IN THE COURT OF MS. NABEELA WALI : CJM NEW DELHI
DISTRICT : PATIALA HOUSE COURTS: NEW DELHI.
State Vs. Surender Sood
FIR No.332 /2008
PS Paschim Vihar
1. Cr. Case No. : 48742/2016
2. Date of institution of case : 07.04.2008
3. Date of Commission of Offence : 31.01.2008
4. Name of the complainant : SI Joginder Singh
5. Name, parentage & Address : Surender Sood
of accused S/o Sh. Prithvi Singh,
R/o Y-118, Regency Park-II,
DLF IV, Gurgaon, Haryana.
6. Offence complained of or proved : U/Sec.174A IPC
7. Plea of Accused : Accused pleaded not guilty
for offence U/Sec.174A IPC
8. Final Order : Acquitted
Date of reserving the judgment : 27.06.2024
Date of pronouncement of judgment : 04.07.2024 THE BRIEF BACKGROUND & GENESIS OF FIR :
1. The facts in brief are that accused Surender Sood was arraigned as an accused in FIR No. 829/2006 PS Crime Branch. Coercive process was issued to secure presence of accused and on State Vs. Surender Sood FIR No. 332/2008 P.S. Pashim Vihar Page No. 1/16 Digitally signed by NABEELA NABEELA WALI WALI Date:
2024.07.04 18:06:50 +0530 31.01.2008, accused failed to appear before the court despite execution of process u/s 82 CrPC before the court of Ld. ACMM, Rohini Court, Delhi and was declared absconding.
Hence, present FIR was registered against the accused for commission of offence u/s 174A IPC.
2. After conclusion of investigation, charge-sheet was filed and cognizance of the offence was taken. Accused appeared before the court and compliance u/s 207 CrPC was made, charge for offence under section 174A IPC was framed upon the accused on 03.12.2008 to which the accused pleaded not guilty and claimed trial.
3. To prove its case against the accused the prosecution has examined as many as 06 witnesses.
MATERIAL WITNESSES
4. W/ASI Nirmala Devi was examined as PW-1 who proved the registration of FIR no. 332/08 u/s. 174A IPC PS Paschim Vihar copy of which is Ex.PW1/A and her endorsement made thereon is Ex.PW1/B bearing her signature at point A. She was duly cross-examined on behalf of the accused and denied the suggestion with respect to manipulation in time and date in FIR.
5. HC Hans Raj was examined as PW-2 who deposed that on 08.03.08 he alongwith SI Joginder Singh, HC Rajesh and Ct.
State Vs. Surender Sood FIR No. 332/2008 P.S. Pashim Vihar Page No. 2/16
Digitally
signed by
NABEELA
NABEELA WALI
WALI Date:
2024.07.04
18:07:02
+0530
Rajinder Singh reached Radha Swami Satsang in front of gate no. 8 near Village Bhati Mines in search of accused who was declared absconding on the basis of information provided by secret informer to SI Joginder. PW-2 further deposed that at about 12 Noon, one vehicle bearing no. DL-2FE-0006 came out from gate no. 8 and was stopped by SI Joginder. One person sitting on the backseat was asked to come out and on inquiry he disclosed his name as Surender Sood. As per PW-2 the complainant reached there and identified as the accused as one declared PO in FIR no. 829/06. PW-2 further deposed that accused Surinder Sood was arrested in the present case after verification and kalandra was prepared and accused was produced before the court. The witness was not cross-examined on behalf of the accused despite giving opportunity.
6. Sh. Rajender Singh the complainant in FIR NO. 829/2006 PS Crime Branch was examined as PW-3. He deposed that on 08.03.08, on receiving information about accused Surender Sood coming near Bhati Mines village at Radha Swami Satsang he reached the spot. One car no. DL-2FE-0006 was stopped by the police and accused Surender Sood was sitting inside on rear seat. As per PW-3, police arrested the accused. PW-3 correctly identified accused in the court. The witness was not cross- examined on behalf of the accused despite giving opportunity.
7. ASI Rajender Singh was examined as PW-4. He deposed that on 08.03.08 he alongwith SI Joginder Singh, HC Hans Raj and State Vs. Surender Sood FIR No. 332/2008 P.S. Pashim Vihar Page No. 3/16 Digitally signed by NABEELA NABEELA WALI WALI Date:
2024.07.04 18:07:08 +0530 HC Rajesh had left the office vide DD no. 12 for searching the proclaimed offender and in this process, reached in front of gate no. 8 of Radha Swami Satsang near Bhati Maeens Village in the area of PS Mehrauli. As deposed by PW-4, one secret informer met SI Joginder Singh and informed that accused namely Surender Sood who was declared proclaimed offender in case FIR no. 829/06 PS Paschim Vihar would come in a car bearing registration no. DL-2FE-0006 with his family out of the abovesaid gate no. 8. PW-4 further deposed that after sometime, they saw the abovesaid car coming out of gate no. 8 and SI Joginder stopped the said car. As per PW-4 the complainant in case FIR no. 829/06 reached the spot and identified Surender Sood as accused who was declared PO in FIR No. 829/2006, PS Crime Branch. Witness proved the arrest of accused vide memo Ex.PW4/A and personal search of the accused conducted vide memo Ex.PW4/B and identified his signature at point A on the abovesaid documents. PW-4 was not cross-examined on behalf of the accused despite giving opportunity.
8. Insp. Virender Kadiyan the IO of FIR No. 829/2006 PS Crime Branch was examined as PW-5. He deposed that on 31.05.2007 while he was investigating the case FIR No: 829/06, PS Paschim Vihar he tried to trace the accused and thereafter, he got issued NBW against accused Surender Sood, but the same remained unexecuted because of non-cooperation of the accused with the Investigating Agency. He further deposed that State Vs. Surender Sood FIR No. 332/2008 P.S. Pashim Vihar Page No. 4/16 Digitally signed by NABEELA NABEELA WALI WALI Date:
2024.07.04 18:07:16 +0530 thereafter, he moved an application to issue process u/s 82 CrPC against accused Surender Sood. The witness proved the certified copy of the application which is Ex.PW5/A (OSR). PW-5 further deposed that on 28.06.2007 he along with Const. Gulshan had gone to the residence of the accused i.e. Y-118, Regency Park, DLF Phase - IV, Gurgaon, Haryana, and he found the above said house locked and he announced the said proclamation to the public persons residing there and thereafter one copy of the process was pasted at the main gate of above said house and he also pasted one copy of the process at the main notice board of the Society in which the said house was situated and another one copy at notice board of the Court. PW- 5 proved his report on the process as Ex.PW5/B. PW-5 proved his statement regarding execution of process recorded by the court as Ex.PW5/C. PW-5 correctly identified the accused before the court.
9. PW-5 ACP Virender Kadiyan was duly cross-examined on behalf of the accused, wherein he stated that he did not handover any DD entries to the IO regarding his visits to the address of the accused at Gurgaon. He stated that although he had announced the proclamation to 5-7 persons but he did not record their name, address or other details or their statement u/s 161 CrPC of witness also admitted that no statement of the security guard in whose presence he pasted the copy of process on notice board was recorded. He further stated that he did not take the photographs of the name plate as well as the house State Vs. Surender Sood FIR No. 332/2008 P.S. Pashim Vihar Page No. 5/16 Digitally signed by NABEELA NABEELA WALI WALI Date:
2024.07.04 18:07:22 +0530 number mentioned/ affixed outside the house of the accused and neither did he record statements u/s 161 of Cr.PC of the office bearers of the society in which the alleged flat of the accused was situated. PW-5 admitted that he did not collect any document pertaining to address of the accused from the office of the society, in order to prove the address of the accused in the present case. As per PW-5 he did not note down the name and the address of the lady from whom he had inquired about the accused. The witness was also confronted with documents Ex. PW-6/D, Ex. PW-6/E, Ex. PW-6/G, Ex. PW-6/H, Ex. PW-6/J, Ex. PW-6/K, Ex. PW-5/A and Ex. PW-5/B and the witness admitted that none of these exhibited documents bear "Part-II"
against the address of the accused, i.e. against word 'Regency Park'. He denied the suggestion that the request for issuance of processes, i.e. NBWs, Process u/s Section 82 and 83 of Cr.PC were issued on incomplete/ wrong address hence the same was not within the knowledge of accused Surender Sood. PW-5 admitted that in his statement which is Ex. PW-5/C, the address of the accused was mentioned as OY-118, Regency Park, DLF- IV, Gurgaon, Haryana, whereas the process i.e. NBWs and process u/s 82 of Cr.PC were issued at address Y-118, Regency Park, DLF-IV, Gurgaon, Haryana. However he stated that the same was a clerical mistake, which he did not notice in his statement although he had signed on his statement at point A after reading the same. PW-5 admitted that he had got published the proceedings u/s 82 of Cr.PC against the accused on 06.07.2007 in two newspapers, i.e. one Hindi newspaper State Vs. Surender Sood FIR No. 332/2008 P.S. Pashim Vihar Page No. 6/16 Digitally signed by NABEELA NABEELA WALI WALI Date:
2024.07.04 18:07:28 +0530 'Hindustan' and English newspaper 'The Hindustan Times' on 06.07.2007, which are on record as Ex. PW-6/F. The witness further admitted that as per Ex. PW-6/F the same was published with respect to NBWs and not for proceedings u/s 82 Cr.PC against the accused.
10. IO of the present case Insp. Jogender Singh was examined as PW-6. He deposed that on 08.03.08, he alongwith Ct. Rajender Singh, HC Hans Raj and HC Rajesh had left the office vide DD no. 12B for searching the proclaimed offender and reached in front of gate no. 8 of Radha Swami Satsang near Bhati Mines Village. He further deposed that as per information of secret informer he apprehend the accused from the car in the presence of the sons of the accused. PW-6 further deposed that he prepared kalandra under section 41.1.C Cr.P.C. vide DD no. 18A dt. 08.03.08 of PS Paschim Vihar which is Ex.PW6/A. The witness proved arrest of the accused vide memo Ex.PW4/A and personal search of accused vide memo Ex.PW4/B. As per PW- 6 he prepared the rukka Ex.PW6/B and got registered the present FIR. The witness proved the site plan Ex.PW6/C and the certified copy of request made to issue NBWs against the accused which is Ex.PW6/D the report of process server which is Ex.PW6/E, request to issue process under section 82 Cr.P.C. against accused Surender Sood which is Ex.PW5/A, certified copy of process under section 82 Cr.P.C. with the report of process server which is Ex.PW5/B, certified copy of publication in Hindustan Time which is Ex.PW6/F running in two pages, State Vs. Surender Sood FIR No. 332/2008 P.S. Pashim Vihar Page No. 7/16 Digitally signed by NABEELA NABEELA WALI WALI Date:
2024.07.04 18:07:35 +0530 certified copy of request to issue process under section 83 Cr.P.C. which is Ex.PW6/G, certified copy of request to extend time for execution of process u/s. 83 Cr.P.C. as Ex.PW6/H, certified copy of process under section 83 Cr.P.C. running in two pages as Ex.PW6/J, certified copy of request to declare accused Surender Sood as proclaimed offender running into two pages as Ex.PW6/K and the statement of Sunita Sood and Sangita Anand as Ex.PW6/L and Ex.PW6/M respectively. PW-6 correctly identified the accused before the court.
11. The witness was duly cross-examined on behalf of the accused, wherein he admitted that during investigation he did not record the statement of Insp. Virender Kadyan or the police officials who accompanied him for execution of process. PW-6 also stated that he did not interrogate the two witnesses namely Sunita Sood and Sangita Anand. PW-6 admitted that he did not made any inquiry from PW-5 or other police officers with respect to the number of visits at the residence of the accused. PW-6 also stated that he did not record the names, addresses and statement under section 161 Cr.P.C of any person from whom he made inquiry regarding execution and pasting of process u/s 82 Cr.PC.
12. No other witnesses was examined and prosecution evidence was closed.State Vs. Surender Sood FIR No. 332/2008 P.S. Pashim Vihar Page No. 8/16 Digitally signed by NABEELA WALI
NABEELA Date:
WALI 2024.07.04
18:07:43
+0530
EXAMINATION OF ACCUSED U/S 313 CRPC
13. Thereafter, statement of accused Surender Sood u/s 313 CrPC was recorded wherein all the incriminating evidence was put to the accused distinctly, separately and specifically. Accused stated that he is innocent and he has been falsely implicated in the present case at the behest of complainant Rajender Singh in FIR no. 829/2006, PS Crime Branch in collusion with the police in order to blackmail, harass and extort money from him. He stated that no summons/warrants/process under section 82/83 Cr.P.C. were ever served upon him and all the witnesses have deposed falsely. Accused chose to lead defence evidence and examined one witness in his defence.
DEFENCE EVIDENCE
14. Sh. Gautam Sood was examined as DW-1. He placed on record certified copy of the judgment dated 12.06.2020 case tittled as State Vs. Gautam Sood, FIR No. 128/2008 PS Mehrauli as Ex.DW1/A. ARGUMENTS
15. Final arguments were heard on behalf of Ld. APP for the State and the Ld. Defence Counsel. It is argued by Ld. APP for the State that the prosecution has been able to prove its case beyond reasonable doubt from the testimony of the prosecution witness.
State Vs. Surender Sood FIR No. 332/2008 P.S. Pashim Vihar Page No. 9/16
Digitally
signed by
NABEELA
NABEELA WALI
WALI Date:
2024.07.04
18:07:49
+0530
On the other hand, it is submitted by the Ld. Defence Counsel that nothing has been placed on record by the prosecution in support of its case. It was argued that there is no iota of evidence against the accused and no public witness joined the investigation. Ld. Counsel for the applicant/ accused has also pointed out contradictions with respect to the manner of the execution of the process.
FINDINGS
16. It is a settled principle of criminal jurisprudence that the burden of proof lies on the prosecution and it has to prove a charge beyond reasonable doubt. The presumption of innocence and the right to fair trial are twin safeguards available to the accused under our criminal justice system but once the prosecution has proved its case and the evidence led by the prosecution, in conjunction with the chain of events as are stated to have occurred, if, points irresistibly to the conclusion that the accused is guilty then the court can proceed with conviction.
17. To hold a person guilty of offence punishable under section 174A of the Indian Penal Code it is sine qua non that he fails to appear at the specified place and the specified time as required by a proclamation published under subsection (1) of section 82 of Cr.P.C. Subsection (1) of section 82 of Cr.P.C. reads as follows:
(1)If any Court has reason to believe (whether after taking State Vs. Surender Sood FIR No. 332/2008 P.S. Pashim Vihar Page No. 10/16 Digitally signed by NABEELA NABEELA WALI WALI Date:
2024.07.04 18:07:55 +0530 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. Further subsection (2) of section 82 of Cr.P.C. prescribes the manner in which the proclamation under subsection (1) of section 82 of Cr.P.C. is to be published;
(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 house;
(ii) The Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.
18. In the present case, the trial court record in FIR No. 829/2006 PS Paschim Vihar (Crime Branch) reveals that on 09.05.2007 a warrant of arrest was ordered to be issued against accused, followed by issuance of proclamation under section sub-section (1) of section 82 of Cr.P.C. on 31.05.2007 returnable on 31.07.2007. As per the record of the trial court, pursuant to order dated 31.05.2007 passed by the learned Additional Chief Metropolitan Magistrate, on the same day, a process, purporting to be proclamation under subsection (1) of section 82 of Cr.P.C., returnable on 31.07.2007 was issued. The said proclamation in writing has been tendered in evidence by the prosecution as Ex.PW5/B. The report of the process server on Ex.PW5/B is as follows:
"it is submitted that several raids had been conducted at the residence of accused but he remained on absconding. Copy State Vs. Surender Sood FIR No. 332/2008 P.S. Pashim Vihar Page No. 11/16 Digitally signed by NABEELA NABEELA WALI WALI Date:
2024.07.04 18:08:02 +0530 of process u/s 82 CrPC had been pasted outside the house of accused as well as the main location of the locality of the accused by Ct. Gulshan 4562/ND on 28.06.2007. Besides Hue & Cry notice/process had been got published in the leading newspaper but accused Surender Sood remained on absconding deliberately. Process u/s 83 CrPC may please be issued".
19. As per the report on the process Ex.PW-5/B and the testimony of PW-5 who had executed the said process u/s 82 CrPC several raids were conducted at the residence of the accused. However no DD entry has been placed on record by the prosecution to show the visit of PW-5 for execution of process.
20. PW-5 in his testimony has also stated that he had announced the said proclamation to the public persons residing there however the said fact does not find mention in his report Ex.PW5/B. Further as per the testimony of the witness no statement of any person has been placed on record to prove the execution of proclamation by announcement.
21. PW-5 also stated that he had pasted the process at the main gate of the abovesaid house of the accused Surender Sood and also pasted on copy at the notice board of the society and notice board of the court however no photographs to show the execution of the process have been placed on record. It is also admitted by PW-5 that during execution of process he did not record statement of office bearers of the society or the guard of the society in which the accused was residing.
State Vs. Surender Sood FIR No. 332/2008 P.S. Pashim Vihar Page No. 12/16
Digitally
signed by
NABEELA
NABEELA WALI
WALI Date:
2024.07.04
18:08:08
+0530
22. Further there is discrepancy in the address mentioned on the process. While the address on the process u/s 82 CrPC is mentioned as 'Y-118, Regency Park, DLF-IV, Gurgaon, Haryana' in the statement of PW-5 recorded before the court it is mentioned as 'OY-118, Regency Park, DLF-IV, Gurgaon, Haryana'. Although PW-5 in his cross-examination has stated the mention of 'OY' to be typographical error however no explanation has been given regarding the absence of mention of (Park-2). Also perusal of bail bond furnished by the accused before the court mentions the address as 'Y-118, Regency Park 2, DLF-IV, Gurgaon, Haryana'. Furthermore PW-6 who is the IO of the present case had mentioned the address of the accused as 'Y-118, Regency Park II, DLF-IV, Gurgaon, Haryana'. He had also stated that there are other similar parts in the regency.
23. Further as per Ex.PW-5/B and the testimony of PW-5, the proclamation was also executed by way of publication on 06.07.2007 and which is on record as PW6/F. However perusal of PW6/F shows that the same is an advertisement wherein the accused is shown to be 'wanted' and it is mentioned that NBWs have been issued against the accused. Further as per the said publication dated 06.07.2007 it is mentioned that in case of information/clue of whereabouts of the accused the same be communicated at the office of Crime Branch. The said proclamation by publication does not specify the court which issued it, nor does it mention the place, date and time when the accused was required to appear before the court. Thus the State Vs. Surender Sood FIR No. 332/2008 P.S. Pashim Vihar Page No. 13/16 Digitally signed by NABEELA NABEELA WALI WALI Date:
2024.07.04 18:08:14 +0530 proclamation by publication was not published as per form No. 5 of Schedule No. 2 of the CrPC.
24. Thus in view of the above discussion, the proclamation as well as its publication was not as per law. As observed by Hon'ble Apex Court in Babu Verghese v. Bar Council of Kerala, (1999) 3 SCC 422, it is the basic principle of law that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all.
25. Furthermore the IO of the present case during his cross-
examination has stated that he did not record the statement of process server or any other police official who had accompanied for execution of process against the accused. PW- 6 had also stated that during investigation in the present case he had enquired from 2/3 residents about pasting of the process u/s 82 CrPC at the house of the accused, however, the said persons could not tell anything about the same and neither the PW-6 recorded the name or other details or statement of the said persons. PW-6 further admitted that he did not collect any DD entry regarding raids conduced by PW-5 and his team at the house of the accused.
26. It is a settled proposition of criminal law that prosecution is required to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. The burden of proof in a criminal trial is on the prosecution and it never shifts on to State Vs. Surender Sood FIR No. 332/2008 P.S. Pashim Vihar Page No. 14/16 Digitally signed by NABEELA NABEELA WALI WALI Date:
2024.07.04 18:08:20 +0530 the accused. In a criminal trial all allegations need to be proved beyond all reasonable doubts that an ordinary man can have. There can be no doubt whether the accused is guilty or not. Even if slightest doubt is observed, accused is entitled to this benefit of reasonable doubt in the prosecution story.
27. In Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116, the Hon'ble Apex Court, laid down the five golden should be satisfied before a case based on circumstantial evidence against an accused can be said to be fully established:
(I) the circumstances from which the conclusion of guilt is to be drawn should be fully established;
(ii) the facts so established should be consistent only with hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) the circumstance should be of a conclusive nature and tendency;
(iv) they should exclude every possible hypothesis except the one to be proved, and
(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.State Vs. Surender Sood FIR No. 332/2008 P.S. Pashim Vihar Page No. 15/16
Digitally signed by NABEELA NABEELA WALI WALI Date:
2024.07.04 18:08:26 +0530 Conclusion
28. After appreciation of the testimonies of the witnesses as well as the material on record by the prosecution, I have no hesitation in holding that the prosecution has failed to proved the case against the accused for offence u/s 174A IPC. Accordingly, accused Surender Sood S/o Sh.Prithvi Singh is acquitted for the above mentioned offence.
29. Ordered Accordingly.
Announced in the open court
on 04.07.2024 Digitally signed
by NABEELA
WALI
NABEELA Date:
WALI 2024.07.04
18:08:33
+0530
(NABEELA WALI)
CJM, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
This judgment contains 16 pages and all the pages have been signed by me. Digitally signed by NABEELA NABEELA WALI WALI Date:
2024.07.04 18:08:40 +0530 (NABEELA WALI) CJM, NEW DELHI DISTRICT PATIALA HOUSE COURTS, NEW DELHI State Vs. Surender Sood FIR No. 332/2008 P.S. Pashim Vihar Page No. 16/16