Delhi District Court
State vs . 1. Bijender @ Vijender on 1 April, 2014
IN THE COURT OF SH. SANJAY KUMAR AGGARWAL
ADDITIONAL SESSIONS JUDGEIII: NORTH DISTRICT
ROHINI COURTS: DELHI
SC No. 10/14
FIR No. 224/12
P.S. Kanjhawala
U/s 302/341/323/34 IPC
ID No. 02404R044182014
State Vs. 1. Bijender @ Vijender
s/o Ram Karan
R/o 237, Lamba Pana
Gali Pradhan Wali,
Village Qutab Gargh, Delhi
2. Deepak Lamba
s/o Jitender Singh @ Jeete
R/o 228, Lamba Pana
Gali Pradhan Wali,
Village Qutab Gargh, Delhi
Date of institution : 17.02.14
Date of reserving the judgment : 01.04.14
Date of judgment : 01.04.14
JUDGMENT
1. Upon receipt of DD no. 35 B with respect to the recovery of the FIR No.224/12 (State Vs. Bijender @ Vijender & anr.) page no. 1 of 10 dead body, the police team went to Ladrawan Road, Qutab Garh, where the dead body of a man aged around 3032 years was found. The dead body could not be identified and no public witness could be traced. However, during investigation the dead body could be identified as that of Jai Prakash s/o Jai Singh. The postmortem of the dead body was got conducted.
2. While the inquest proceedings were in progress, the statement of the complainant, namely Sunil Singh was recorded on 22.02.12 in which he stated that on 06.10.12, he was proceeding towards the Ladrawan village alongwith deceased Jai Prakash who happened to be his friend for watching a ragni competition. After alighting from the bus while they were walking on foot towards Ladrawan village and had crossed about one km, 34 boys were found sitting on the pulia. One of those boys asked for a matchbox, to which he was obliged by the complainant. At about 10.3010.45 pm, while they were again proceeding FIR No.224/12 (State Vs. Bijender @ Vijender & anr.) page no. 2 of 10 towards Ladrawan village, all the boys who were sitting on pulia proceeded to approach them on two motorcycles and way laid the complainant and the deceased. All of them started searching the pockets of the complainant and his friend and when they could not find anything, the said four assailants started beating the complainant and his friend. The complainant in order to save his life entered the fields of jawar when he was robbed of his clothes by the assailants and on the way some unknown person gave him clothes to wear. Thereafter, the complainant reached at his house at about 7 pm. Later on he came to know that those persons had killed his friend Jai Prakash.
3. The FIR was registered upon receipt of postmortem report.
During investigation the coaccused Lalit Kumar (already acquitted by Ld. Predecessor vide order dt. 26.09.13) was arrested on the basis of secret information in which the co accused Lalit Kumar confessed his involvement in the offence FIR No.224/12 (State Vs. Bijender @ Vijender & anr.) page no. 3 of 10 and also the other coaccused Sunil @ Sonu (already discharged by Ld. Predecessor vide order dt. 05.07.13) besides the involvement of under trials accused Deepak Lamba and accused Bijender @ Vijender. The coaccused persons also made disclosure statements in which they named both the present under trial accused.
4. Prima facie case u/s 302/34, 323/34, 341/34 and 174A IPC was framed against both the accused persons namely, Bijender @ Vijender and Deepak Lamba. Both the accused persons did not plead guilty and claimed trial.
5. To substantiate its claim, the prosecution examined PW1/complainant Sunil and PW2 Rakesh Kumar.
6. PW2 Rakesh Kumar had informed the police at 100 number from his mobile phone when he saw a dead body lying at the pulia in village Qutab Garh. However, he denied having witnessed the incident. He stated that he only helped the police FIR No.224/12 (State Vs. Bijender @ Vijender & anr.) page no. 4 of 10 by giving information.
7. The PW1 Sunil was the complainant who had detailed down/narrated the incident to the police during investigation as herein before mentioned. While in witness box the said PW1 Sunil s/o Mahinder Singh completely resiled from his earlier statement made before the police and stated before this court that he had not accompanied the deceased on the day of incident, it is only after two days that the police officials came to his house and questioned about the deceased. He further elaborated that it was the police only who had informed the PW1 Sunil that Jai Prakash has been killed. Despite lengthy cross examination carried on by Ld. APP, nothing fruitful could be brought out from the mouth of the witness/PW1 Sunil.
8. The PW1 Sunil was the material witness in this case who has not supported the version of the prosecution. He was the star witness who had allegedly accompanied the deceased, but he FIR No.224/12 (State Vs. Bijender @ Vijender & anr.) page no. 5 of 10 completely denied having accompanied the deceased on the day of incident. Regarding identification of the accused Bijender @ Vijender and Deepak Lamba, since he was shown to be a material eye witness to the incident, he has utterly failed to identify both the accused while being cross examined and termed it wrong to say that he had seen the accused Bijender @ Vijender and Deepak Lamba while beating his friend, the deceased. He also termed it to be incorrect that both the accused removed his clothes.
9. Earlier also during TIP, the PW1 had failed to identify both the accused before the Ld. MM. There was no other incriminating material against the present accused persons except the disclosure statements of the coaccused and the statement of the PW1 Sunil s/o Mahinder.
10. Since there were no chances of conviction of the present accused persons for the offences u/s 302/323/341/34 IPC as the FIR No.224/12 (State Vs. Bijender @ Vijender & anr.) page no. 6 of 10 material witness has resiled and since all the remaining witnesses were formal in nature and further since there was no other incriminating material against the accused persons, this court did not deem it appropriate to proceed further as it would have been an utter wastage of the court time which may be utilized for other cases. The statements of both the accused persons was also dispensed with as no incriminating evidence was found qua both of them.
11. It is pertinent to mention that the other coaccused namely, Lalit Kumar and coaccused Sunil @ Sonu have already been acquitted by Ld. predecessor of this court vide order dt. 26.09.13 and 05.07.13 respectively on the same grounds.
12. Regarding the charges u/s 174A IPC, during final arguments, the Ld. counsel for the accused persons stated that they are the permanent habitants of the village Qutab Garh, Delhi, where the process under 82/83 CrPC was allegedly sent. He submitted FIR No.224/12 (State Vs. Bijender @ Vijender & anr.) page no. 7 of 10 that the accused persons were not having any knowledge of the case as they were involved in the criminal transaction and had they been in the knowledge that they were required by court of law for the purpose of their alleged involvement in this case, they would have certainly not missed the bus. He further argued that for prosecuting a person u/s 174A IPC, the formal complaint by a public servant is a prerequisite for the same and the record suggest that the said complaint has not been made either by the Ld. MM who had declared the accused Deepak Lamba and accused Bijender @ Vijender as proclaimed offender or from any of the police officers / public servant and hence, there is violation of section 195 CrPC. He submitted that since the accused have already been acquitted for the substantive offence of murder, in view of the aforesaid circumstances as mentioned in this para, they are liable to be acquitted for section 174A IPC.
13. I have considered the submissions from Ld. APP as well as Ld. FIR No.224/12 (State Vs. Bijender @ Vijender & anr.) page no. 8 of 10 counsel for the accused persons on section 174 A IPC. Though this issue was not raised at the time of framing of charge and since the arguments have been made at a belated stage, but still as guided by hon'ble Supreme Court of India and hon'ble High Court of Delhi, the courts are not required to simply proceed for trial when it appears that the result will be a dead end, it appears to me that the said pleas of Ld. counsel can be entertained at this stage also.
14. No doubt the prosecution under section 174A requires a formal complaint by public servant in terms of section 195 CrPC which runs as under:
"Prosecution for contempt of lawful authority of public servants for offences against public justice and for offences relating to documents given in evidence - (1) No court shall take cognizance
(a) (i) of any offence punishable u/s 172 of 188 (both inclusive) of the IPC (45 of 1860), or
(ii) of any abetment of, attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant FIR No.224/12 (State Vs. Bijender @ Vijender & anr.) page no. 9 of 10 concerned or of some other public servant to whom he is administratively subordinate;....."
15. In view of the aforesaid section since the cognizance is barred for the offence u/s 174A IPC without a formal complaint in writing of a public servant, it is clear that prosecution will not be in a position to prove the charges being technically hit by the provisions of section 195 CrPC. Accordingly, I hereby acquit the accused persons of the charges u/s 174 A CrPC.
16. Both the accused persons are acquitted of the offence charged with. Their Bail bonds stand cancelled. Sureties stand discharged. Accused in JC are released forthwith. Provisions of section 437A CrPC be complied within three days from today.
17. After compliance, file be consigned to record room.
Announced in the Open Court (Sanjay Kumar Aggarwal)
On 01.04.14 Addl. Sessions Judge(03)
North District, Rohini Courts
FIR No.224/12 (State Vs. Bijender @ Vijender & anr.) page no. 10 of 10