Delhi District Court
State vs Jitender Etc on 13 December, 2023
IN THE COURT OF MS. MANISHA KHURANA KAKKAR,
ADDITIONAL SESSIONS JUDGE (FTC) - 01 (SOUTH), SAKET,
NEW DELHI
SC : 7498/2016
FIR No. : 485 /2011
PS : (Mehrauli)
STATE Vs. JITENDER ETC
JUDGMENT
(a) Name of complainant : Sh.Parmanand
(b) Name, parentage & : (1) Jitender Badhana
address of accused(s) S/o Sh.Subhas Badhana
R/o T-4, Ward No.6, Islam Colony,
Mehrauli, New Delhi
(2) Ravi @ Ravia
S/o Sh.Arjun Singh
R/o 705-D/25, Ward No.3, Mehrauli,
New Delhi
(3) Mohd.Ifrahim @ Naddu Nadeem
S/o Sh.Mohd.Nabeel Ahmed
R/o H.No.T-21, Ward No.6, Islam Colony,
Mehrauli, New Delhi
(4) Yusuf @ Ballu
S/o Sh.Mohd.Ilyas
R/o H.No.T-59/6, Ward No.6, Islam Colony,
Mehrauli, New Delhi
(5) Ravi @ Bobby
S/o Late Kanwar Singh
R/o T-4, Maha Laxmi Apartment,
Ward No.6, Islam Colony,
Mehrauli, New Delhi
(6) Vikas @ Boga (Since Expired)
FIR No.485/2011 PS Mehrauli
State Vs. Jitender etc. Page No.1 of 26
S/o Late Sh.Prakash Chand
R/o H.No.705, T-33, Ward No.3,
Mehrauli, New Delhi
(Proceedings abated vide order dated
27.01.2023)
(c) Offence complained off : 396 IPC
(d) Plea of accused : Pleaded not guilty
(e) Final order : convicted
(f) Date of such order : 13.12.2023
Date of Institution : 07.02.2012
Final arguments heard : 02.12.2023
Date of Judgment : 13.12.2023
BRIEF FACTS :
1. It is the case of the prosecution that on 05.11.2011 at about 7.30 p.m. at open ground near Mangrove, Samsi Talab, Mehrauli accused persons namely Jitender Badhana, Ravi @ Ravia, Mohd.Ifrahim @ Naddu, Yusuf @ Ballu, Ravi @ Bobby and Vikas @ Boga (Since expired) robbed the complainant Parmanand of his mobile phone and purse containing Rs.1100/- and also committed his murder. Consequently, Charge-sheet for the offence U/s 396 IPC (dacoity with murder) was filed against accused persons.
After the compliance of section 207 Cr.P.C, matter was committed to the Court of Sessions by Ld. MM vide order dated 24.02.2012.
Charge:-
2. On the basis of material placed on record by the prosecution, charge was framed against the accused persons i.e. Jitender Badhana, Ravi @ Ravia, FIR No.485/2011 PS Mehrauli State Vs. Jitender etc. Page No.2 of 26 Mohd.Ifrahim @ Naddu, Yusuf @ Ballu, Ravi @ Bobby and Vikas @ Boga for the offences under Section U/s 396 IPC vide order dated 17.03.2012 passed by my Ld.Predecessor, to which they pleaded not guilty and claimed trial. However, during the course of trial accused Vikas @ Boga expired on 16.11.2022 and the proceedings qua him were abated vide order dated 27.01.2023 by Ld.Predecessor.
Prosecution Evidence :-
3. In order to bring home the guilt of accused, prosecution had examined twenty witnesses in the prosecution evidence i.e. PW5 Smt.Bimla Devi (Wife of Complainant), PW7 Sh.Lalit, PW15 Sh.Raghubir, PW2 Dr.Sanjay Kumar - II, PW3 Sh.Aditya Swaroop, PW17 Dr.Asjad, PW18 Sh.Rajender Singh, police witnesses i.e. PW1 HC Ramkishan, PW4 HC Jaswant, PW6 Ct.Har Phool Singh, PW8 Ct.Sher Singh, , PW9 HC Surender Singh, PW10 HC Zakir Hussain, PW11 Ct.Raj Kumar, PW12 HC Sanjay Kumar, PW13 SI Surender Pal Singh, PW14 SI Pushpender, PW16 HC Het Ram, PW19 ACP Sh.Vijay Kumar Rastogi and PW20 Sh.Rajeev Ranjan.
Summary of prosecution evidence :-
4. In the prosecution evidence, Smt.Bimla Devi, Wife of deceased Parmanand, was examined as PW5. PW5 Smt.Bimla Devi deposed that on 05.11.2011 at about 8.00 p.m., she was at her home and someone came to her home and told her that some persons had beaten her husband in the Baag near Shamsi Talab and she immediately reached there and saw accused Jitender, Ravi, Nandu, Vikas and two others running from there. She further deposed that all the above said persons were residents of the same vicinity. She further deposed that her husband was lying on the ground and one mobile phone make Tata and FIR No.485/2011 PS Mehrauli State Vs. Jitender etc. Page No.3 of 26 some money i.e. about Rs.2,000/- to 2,500/- were lost. She further testified that her husband told her that six persons had caused injuries to him. PW5 Smt.Bimla Devi identified all the accused persons during her evidence.
5. Ld.Addl. PP, thereafter, sought permission of the Court to cross-examine the said witness as she was not deposing all the facts, which was allowed. During her cross-examination conducted by Ld.Addl. PP for State, she affirmed the suggestion that police had recorded her statement on 15.11.2011. She further affirmed the suggestion that the incident had taken place at about 7.30 p.m. She also affirmed the suggestion that all the six persons of this case had robbed Rs.1100/- and one mobile phone with no.9212816460, from the pocket of her husband.
6. In her cross-examination conducted by Ld.Counsel for accused Jitender and Ravi & Bobby, PW5 Smt.Bimla Devi deposed that she had seen the place 'Shamshi Talab' where Aam Baag is situated, which is situated at a distance which can be covered in 5-10 minutes by walking. She further deposed that she informed the police through her nephew namely Pramod, (son of her Jeth) Sh.Rajender. She further deposed that police came to her house and took her husband/Complainant Sh.Parmanand to the hospital and she also accompanied him. She further deposed that her husband was talking at that time. She further deposed that they reached at the hospital at about 10.00 p.m. She voluntarily stated that she was in a state of shock at that time (mere haath paon phool gaye the). She further deposed that police recorded the statement of her husband in the hospital. She further testified that her husband had told the names of all the accused persons to her during the period of transit from the place of occurrence to their home and from there to the hospital. She further stated that the police did not interrogate her in the hospital. She also stated that FIR No.485/2011 PS Mehrauli State Vs. Jitender etc. Page No.4 of 26 police had made inquiries from him but he did not know if the police had recorded anything while interrogating her. She further stated that she had not visited the police station but her family members visited the PS to inquire about the progress of the case. She further stated that PW7 Lalit is her 'Jeth' in relation. She denied the suggestion that no mobile phone or Rs.1,100/- were taken by the persons, who had caused injury to her husband. She further deposed that at that time, festival 'Phoolwalon ki Sair' was also going on. She, however, conceded that her husband used to take liquor and on the day of the incident, he had consumed liquor. She denied the suggestion that her husband had been manhandled by some unknown visitors who had come to see 'Phoolwalon ki Sair' under the influence of liquor.
7. In her cross-examination conducted by Ld.Counsel for accused Nadeem @ Nandu and Mohd.Yusuf, PW5 Smt.Bimla Devi deposed that although she had not mentioned the mobile number of her husband in her statement given to the police, however, she had told about the make of the phone as 'Tata'. She further testified that her neighbour Raghuveer Singh also accompanied her and her husband to the hospital from her house. She further deposed that her husband talked well for about 10-12 days in the hospital. She further testified that her husband/complainant Parmanand had undergone 3 operations i.e. on the night of the incident and the next operation was after 3-4 days, while the third and last one took place after 10-12 days of the incident. She further stated that she took back her husband alongwith some other persons to her house and that the place of incident was dark. She voluntarily deposed that some light was coming from the electric pole and houses at some distance. She further testified that she reached at the spot alongwith 4-5 other persons but she could not tell their names. She further deposed that one small child had informed her about the incident, at her house. She further deposed that the said child FIR No.485/2011 PS Mehrauli State Vs. Jitender etc. Page No.5 of 26 informed her that her husband was lying in the Baag after being beaten up by some persons. She further testified that information was given to the police within 10-15 minutes after they reached home from the spot. She further denied the suggestion that she was not interrogated by the police at any stage.
She further denied the suggestion that she was not aware about the alleged incident of beating of her husband. She further testified that the accused persons were apprehended by the police, after the death of her husband but she could not tell on which day or date they were apprehended by the police.
8. PW7 Sh.Lalit deposed that on 05.11.2011 at about 7.30 p.m., he reached at Aam ka Baag near Shamshi Talab, Mehrauli and he saw six accused persons Rajender Badana, Ravi @ Raia, Mohd.Ibrahim @ Naddu Nadee, Yusuf @ Ballu, Ravi @ Bobby and Vikas @ Boga were beating complainant Parmanand. He further deposed that they ran away towards Islam Colony after snatching the mobile and money from the possession of Parmanand. He further deposed that all the accused persons were known to him prior to the day of incident. He also stated that in the meantime, he noticed that wife of injured Parmanand was coming towards the spot i.e. place near Kikar Ka Pad, Khula Maidan in Aam ka Bagh, thereafter, he went to his house. He further stated that the police had recorded his statement on 15.11.2011 at PS and he had shown the place of incident to the police. He further deposed that on 23.12.2011, he had gone to PS in order to know the progress of the case and police had shown him photographs of all six accused persons. As per his testimony, he had identified all six accused persons before the police. He further deposed that he had put his signatures on seizure memo of photographs vide Ex.PW7/A. FIR No.485/2011 PS Mehrauli State Vs. Jitender etc. Page No.6 of 26
9. In his cross-examination conducted by Ld. counsel for accused Jitender Bhadana, Ravi @ Bobby and Vikas @ Boga, PW7 Sh.Lalit deposed that the distance between his house and the Competence Service Station was about 15- 20 minutes on foot. He further deposed that he knew the accused persons for the past 4-5 years as they were the residents of the same locality/mohalla. He further testified that he knew the accused persons by their residential addresses and their parentage. PW7 Lalit also affirmed the suggestion that the Aam Bagh/Place of Incident does not come on the way, which he used to take, while going to his office from his house and on his way back to his house. PW7 Lalit, however, voluntarily deposed that on the day of incident, he had come to his house via Aam Bagh, as he had dropped a vehicle of a customer at Vasant Kunj. He further deposed that the festival of Phoolwalon Ki Sair was going on at that time. He further affirmed the suggestion that he had not disclosed the name of any of the accused persons to anyone including the family members of complainant Parmanand. He further testified that he had gone to the police station, when no action was taken by the police on the complaint of Parmanand against accused persons.
10. PW7 Lalit further testified that he is the neighbour of Parmanand and he did not have any blood relation with him except friendly relations. He further testified that the distance between place of incident and the house of PW5 Bimla is approximately 1-1½ kms. He affirmed the suggestion that his house was situated nearby the house of PW5 Bimla and he took the same way to proceed to his house from which PW5 Bimla, wife of Parmanand reached at the spot where Parmanand had received injuries. He further stated that no family member of Parliament had gone to the PS with him on 15.11.2011. He further testified that during the period of 10 days, he had not disclosed the names of accused persons to anyone. As per his testimony, no site plan was FIR No.485/2011 PS Mehrauli State Vs. Jitender etc. Page No.7 of 26 prepared at the spot on 15.11.2011. He further deposed that there was darkness at the time when he had witnessed the incident. He further affirmed the suggestion that the place of incident is a jungle area. He also stated that the distance between the place where Parmanand had received injuries and the place from where he had witnessed the incident was about 30 meters.
11. PW7 Lalit further deposed that he did not raise any alarm in order to save Parmanand as accused had run away on seeing him. He further stated that he had gone to Parmanand and asked about his health but in the meanwhile, family members i.e. wife of Parmanand, son of Parmanand, Nephew of Parmanand namely 'Pammi' had reached at the spot, when accused persons had run away from the spot. He further stated that injured Parmanand was in his senses at that time. He further deposed that on 23.12.2011, his statement was recorded by the police in this case.
12. PW7 Lalit conceded that he did not see the accused persons snatching mobile phone and cash from the possession of injured Parmanand. He denied the suggestion that he was a planted witness. He also denied the suggestion that he had not seen any incident. He also denied the suggestion that accused Jitender Bhadana, Ravi @ Boby and Vikas @ Boga etc. were not present at the spot nor they had caused any injury to Parmanand.
13. PW15 Sh.Raghubir deposed that on 05.11.2011, at about 10.30 p.m., he was present at his home and was sleeping when, PW7 Lalit Kumar, residing in the same Mohalla, came to his house and informed him that 4-5 persons had beaten Parmanand. He further stated that he made a call at 100 number from his mobile number 9717718524, thereafter, PCR came to the spot and took his brother/injured Parmanand to AIIMS Trauma Centre. He further deposed that accused Naddu, Vikas, Jitender alongwith their associates had beaten his FIR No.485/2011 PS Mehrauli State Vs. Jitender etc. Page No.8 of 26 brother/injured Parmanand but he did not remember the names of the other associates.
14. Ld.Addl. PP, thereafter, sought permission of the Court to put leading questions to the witness regarding the names and identity of all the assailants, which was allowed.
15. In his cross-examination conducted by Ld.Addl. PP for State, PW15 Sh.Raghubir deposed that he had told the names of other three assailants as Ballu, Ravi and Bobby to the police apart from the accused named above i.e. Naddu, Vikas, Jitender. He identified all the accused persons by their faces and not by their names as they were the residents of the same 'Mohalla' where he was living.
16. In his cross-examination conducted by Ld.Defence Counsel, PW15 Sh.Raghubir deposed that he did not recollect when his statement was recorded by the police and after how many days of the incident. He further stated that he met injured Parmanand before he was taken to the hospital. He further stated that PW7 Lalit was not in close relation of deceased Parmanand but he was from the same village. He further stated that complainant/injured Parmanand never told him about the persons who assaulted him. He further stated that the wife of Parmanand did not tell him anything about the assailants. He further deposed that when he was told about the names of assailants by PW7 Lalit, did not know the parentage and address of the accused persons.
17. PW2 Dr.Sanjay Kumar - II deposed that on 08.12.2011, he had conducted the postmortem on the body of deceased Parmanand and on examination. He placed on record detailed postmortem report vide Ex.PW2/A, whereby, the cause of death was opined as 'septicemic shock as a complication of FIR No.485/2011 PS Mehrauli State Vs. Jitender etc. Page No.9 of 26 antemortem abdominal organ injuries produced by blunt force impact, which was sufficient to cause death in ordinary course of nature.'
18. In his cross-examination, PW2 Dr.Sanjay Kumar-II deposed that septicemia means bacteriological or fungal or viral infection in blood involving all organs. He further testified that Septicemia can be caused by both internal as well as external reasons and Septicemia can be caused by surgical wounds. He affirmed the suggestion that there was no fracture of any ribs and that the liver and spleen were not damaged. He voluntarily deposed that these organs were congested due to septicemia. He further affirmed the suggestion that the wounds mentioned in PM report were the operational wounds and that the said wounds were not stitched and the same were open wounds. He affirmed the suggestion that the word mentioned in wounds no.1 & 2 in postmortem report as "with foul smelling yellowish mucopurulent discharge" means 'the pus' was available in the wounds. He further stated that in the peritoneal cavity 100 ml of foul smelling fluid was found means '100 ml of pus was lying there.' He further stated that the "exploratory laparotomy with resection anastomosis was done after 5th days anastomosis was leak revised colostomy with dital fistula was done" mentioned in death summary Ex.PW2/B means 'leakage in the wound was observed on 5th day from the operation of intestine'. He further affirmed the suggestion that in death summary Ex.PW2/B, it was mentioned the patient went in sudden cardiac arrest on 08.12.2011 at 1.00 am, CPR (Cardio Pulmonary Resuscitation) started and cause of death was BTA (Blunt Trauma Abdomen) with septic shock with cardio pulmonary arrest. He further affirmed the suggestion that as per the MLC there was no injury or complaint of pain in the abdomen. He denied the suggestion that injured Parmanand died due to the negligence done by the concerned Doctor of the hospital in the operation. He further denied the suggestion that he had deliberately not FIR No.485/2011 PS Mehrauli State Vs. Jitender etc. Page No.10 of 26 mentioned the fact in the Postmortem report that the death was caused due to the negligence of the Doctors.
19. PW9 HC Surender Singh deposed that after registration of the case, investigation was assigned to him and he tried to trace the accused persons and eye witnesses. He further deposed that on 15.11.2011, PW7 Lalit came to the PS alongwith Sh.Ashok, elder brother of Parmanand and he claimed to be an eye witness of the incident. He further stated that at the pointing out of place of occurrence by PW7 Sh.Lalit, he prepared the site plan. He further testified that in search of accused persons, they alongwith PW7 Lalit went to the house of accused Yusuf @ Ballu at T-59, the house of Yusuf @ Ballu where Sh.Illiyas, father of Yusuf @ Ballu met them and informed that Yusuf did not return home for last about 8-10 days. He further deposed that thereafter, they went to the house of Nadeem @ Naddu @ Ibrahim where his father met them and informed that Nadeem @ Naddu @ Ibrahim did not return to the house for the last about 7-8 days. He further deposed that they also went to the house of accused Bobby, Jitender and Ravi @ Ravia but they got the same answer that they did not return to the house for the last about 7-8 days. He further deposed that they also went to the house of accused Vikas @ Boga but the house was found locked. He further stated that thereafter, they went to the house of Parmanand and recorded statement of PW5 Vimla, wife of Parmanand. Thereafter, the investigation was transferred to SI S.P.Singh.
20. PW9 HC Surender Singh further deposed that on 16.11.2011, at the instance of secret informer, accused Yusuf & Nadeem were apprehended from MCD Park near Jahaz Mahal and they were arrested vide arrest memo Ex.PW4/B and Ex.PW4/A and their personal search was conducted vide Ex.PW4/D & Ex.PW4/E, their disclosure statement were recorded vide Ex.PW4/F & FIR No.485/2011 PS Mehrauli State Vs. Jitender etc. Page No.11 of 26 Ex.PW4/G. He further deposed that on 09.12.2011 at the instance of secret informer, accused Jitender Bhadana was arrested vide arrest memo Ex.PW9/B and his personal search was conducted vide Ex.PW9/C and his disclosure statement was recorded vide Ex.PW9/D. He further deposed that on 14.12.2011, at the instance of informer, accused Ravi @ Bobby was arrested vide arrest memo Ex.PW9/E and his personal search was conducted vide Ex.PW9/F, his disclosure statement was recorded vide Ex.PW9/G.
21. PW9 HC Surender Singh further deposed that accused Vikas @ Boga had surrendered before the Ld.MM in Saket Court Complex and IO received information and they reached in the Court and sought permission of Court and interrogated the accused Vikas @ Boga and arrested him vide arrest memo Ex.PW9/H and his disclosure statement was recorded vide Ex.PW9/J. He further stated that IO obtained one day PC remand. He further deposed that accused Vikas @ Boga led them to the place of incident and IO prepared the pointing out memo vide Ex.PW9/K. He further testified that on the directions of Inspector Vijay Kumar, he took the exhibits of the case i.e. one Viscera Box bearing seal of JPNATC, a sample seal, one FSL Form and a Road Certificate No.146/21/12 and deposited the same to FSL, Rohini against the acknowledgement and deposited the acknowledgement with the copy of RC in the Malkhana.
22. In his cross-examination, PW9 HC Surender Singh deposed that during his visit to AIIMS Trauma Centre, he could not get information from Parmanand about the real names, parentage and addresses of the two persons, mentioned in the FIR. He voluntarily deposed that injured Parmanand was in Intensive Care Unit of the Trauma Centre, therefore, he could not get information from him. He further stated that the distance between house No.705/D-26, Ward No.8, FIR No.485/2011 PS Mehrauli State Vs. Jitender etc. Page No.12 of 26 Mehrauli and Shamshi Talab, Mehrauli is about 300-400 meters. He further stated that the family member of the injured told him that PW7 Lalit was an eye witness to the incident, however, he did not remember the name of the person who had informed him about the same. As per his testimony, during the period 08.11.2011 to 15.11.2011, he had not made any efforts to contact PW7 Lalit as he had proceeded on leave during the said period. He further stated that the distance between the house of accused Yusuf @ Ballu and witness Smt.Bimla was about 100-150 meters and the distance between the house of accused Mohd.Ifrabhim and witness Smt.Bimla was about 100 meters.
23. PW9 HC Surender Singh further stated that during the period 06.11.2011 to 15.11.2011, he did not meet Smt.Bimla. He voluntarily stated that she was busy in looking after the injured, who was admitted in the hospital, therefore, he could not meet her. As per his testimony, he first time met PW7 Lalit in the police station on 15.11.2011 at about 4.00 p.m. and site plan was prepared by him at the pointing out of PW7 Lalit. He further testified that in the site plan Ex.PW9/A, no where it had been mentioned that the same was prepared at the instance of PW7 Lalit. He also deposed that PW7 Lalit did not show him the place from where he had witnessed the incident. As per his testimony, PW9 HC Surender had not examined injured Parmanand between 06.11.2011 to 15.11.2011 as he was in ICU during the said period. He affirmed the suggestion that PW7 Lalit did not disclose about the parentage and addresses of accused persons. He, however, voluntarily stated that PW7 Lalit had shown the houses of the accused persons to him. He denied the suggestion that he was aware that PW7 Lalit was a planted witness and relative of injured Parmanand.
24. PW14 SI Pushpender deposed that on 08.12.2011, the file of this case was handed over to him. He further stated that he had made request to Autopsy FIR No.485/2011 PS Mehrauli State Vs. Jitender etc. Page No.13 of 26 Surgeon for the purpose of postmortem of deceased Parmanand vide Ex.PW14/C. He further testified that after postmortem Doctor had seized the viscera, blood in gauge of the deceased and handed over the same alongwith sample seal of the hospital and he seized the same vide seizure memo Ex.PW14/E.
25. In his cross-examination conducted by Ld.Counsel for accused persons, he affirmed the suggestion that this case was registered upon the statement of Parmanand under Section 323/341/34 IPC. He further stated that he did not know how and when Section 394 IPC was added in the FIR. He denied the suggestion that he mechanically made a request to the Doctor for conducting the postmortem of the deceased without applying his mind.
26. PW19 ACP Vijay Kumar Rastogi deposed that on 09.12.2011, he had received a secret information that accused Jitender Badana would be present near Qutub Minar gate in the afternoon and he could be apprehended, if raided. He further deposed that he alongwith HC Surender and a Secret Informer went to the PS near Qutub Minar gate at around 2.00 p.m. and requested public persons to join the raiding party but none of them agreed and left the place without disclosing their names and addresses on justified excuses. He further stated that at around 3.00 p.m., one person came there and was pointed out by the secret informer as Jitender Bhadana, there after, he left the place. He further stated that the said person was apprehended and interrogated, who disclosed his name as Jitender Bhadana, his personal search was conducted vide Ex.PW9/C and thereafter, accused Jitender Bhadana was arrested vide Ex.PW9/B. He further stated that he also recorded disclosure statement of accused vide Ex.PW9/D. He further deposed that at the instance of accused Jitender, he was taken to the place of incident where on his pointing out, pointing out memo of place of incident was FIR No.485/2011 PS Mehrauli State Vs. Jitender etc. Page No.14 of 26 prepared vide Ex.PW19/A. He further deposed that pursuant to the disclosure statement of accused Jitender, efforts were made to recover the mobile phone of the victim, even at the house of accused Jitender, but despite efforts, same could not be recovered. Memo in this regard was also prepared vide Ex.PW19/B.
27. PW19 ACP Vijay Kumar Rastogi deposed that on 14.12.2011, he had received another secret information regarding presence of accused Ravi @ Bobby near T.B.Hospital, Mehrauli at around 10 am and he alongwith HC Surender and Secret Informer went to the spot near T.B.Hospital, Mehrauli at around 9.00 a.m. and requested public persons to join the raiding party but none of them agreed and left the place without disclosing their names and addresses. Accused Ravi @ Bobby was apprehended at around 10.15 a.m. at the pointing out of Secret Informer. He further deposed that accused Ravi @ Bobby was interrogated, his personal search was conducted vide Ex.PW9/I, his disclosure statement was recorded vide Ex.PW9/G and he was arrested vide Ex.PW9/E. He further deposed that accused Ravi @ Bobby pointed out the place of incident and pointing out memo was prepared vide Ex.PW19/C.
28. PW19 ACP Vijay Kumar Rastogi further deposed that on 16.12.2011, accused Vikas @ Boga surrendered in the Court and accused Vikas @ Boga was arrested vide Ex.PW9/H. He further stated that one day PC remand of accused Vikas @ Boga was obtained and on 17.12.2011, accused Vikas was taken to his house alongwith HC Surender to recover the mobile phone, however, despite efforts mobile phone could not be recovered; memo in this regard was prepared vide Ex.PW19/D.
29. PW19 ACP Vijay Kumar Rastogi further deposed that on 23.12.2011, a person namely (PW7) Lalit came to him and he identified all the accused persons as FIR No.485/2011 PS Mehrauli State Vs. Jitender etc. Page No.15 of 26 the offender in the present case from the dossier available in his Police file. He further testified that the said dossier was seized by him vide seizure memo Ex. PW7/A.
30. In his cross-examination, PW19 ACP Vijay Kumar Rastogi affirmed the suggestion that in the FIR the names of two persons namely Ballu and Nandu were mentioned alongwith two other unknown persons. He further stated that there was no other statement on record of witness PW7 Lalit Kumar prior to the statement made to him on 23.12.2011. He further stated that he did not remember whether he had prepared any site plan at the instance of PW7 Lalit Kumar. He again stated that he had not prepared any site plan at the instance of PW7 Lalit Kumar. He affirmed the suggestion that nothing was recovered from the possession of any of the accused persons and that he had not recorded any statement of PW7 Lalit Kumar on 23.12.2011. He denied the suggestion that PW7 Lalit Kumar had been deliberately made an eye witness of the case.
31. FIR was registered on the basis of ruqua and Copy of FIR was placed on record vide Ex.PW1/A, DD No.41A regarding quarrel was placed on record vide Ex.PW6/A, DD No.63-B regarding admission of injured Parmanand in AIIMS Trauma Centre by PCR Officials was placed on record vide Ex.PW6/B,. Statement of injured Parmanand was placed on record vide Ex.PW10/A and endorsement made on same was placed on record vide Ex.PW10/B, PCR form no.1 qua receipt of PCR call regarding quarrel was placed on record vide Ex.PW11/A, FSL result dated 15.01.2013 was placed on record vide Ex.PA.
32. Copy of DD No.67B dated 08.12.2011 was placed on record vide Ex.PW16/A, Copy of DD No.30B dated 09.12.2011 was placed on record vide Ex.PW16/B, Copy of DD No.46B dated 09.12.2011 was placed on record vide Ex.PW16/C, FIR No.485/2011 PS Mehrauli State Vs. Jitender etc. Page No.16 of 26 Copy of DD No.20B dated 10.12.2011 was placed on record vide Ex.PW16/D, Copy of DD No.9B dated 09.12.2011 was placed on record vide Ex.PW16/E, Copy of DD No.90B dated 13.12.2011 was placed on record vide Ex.PW16/F, Copy of DD No.49B dated 14.12.2011 was placed on record vide Ex.PW16/G, Copy of DD No.6A dated 16.12.2011 was placed on record vide Ex.PW16/H, Copy of DD No.14B dated 31.01.2012 was placed on record vide Ex.PW16/I, Copy of DD No.53B dated 31.01.2012 was placed on record vide Ex.PW16/J.
33. Medical record file prepared at JPNA Trauma Centre, AIIMS, Delhi of patient Parmanand was placed on record vide Ex.PW3/A (Colly.). MLC of injured Parmanand was placed on record vide Ex.PW17/A and as per the MLC, the injured Parmanand had sustained swelling (nose, nose bleeding positive). Thereafter, injured was admitted in the hospital and attested copy of hospital record were placed on record vide Ex.PW17/B.
34. CDR of mobile no.9212816460 for the period 05.11.2011 to 04.02.2012 was placed on record vide Ex.PW20/B, certificate under Section 65B of Indian Evidence Act was placed on record vide Ex.PW20/B, copy of CAF of the said mobile phone alongwith supporting documents were placed on record vide Ex.PW20/C and the forwarding letter vide which the CDR, CAF and supporting documents were supplied to the police was placed on record vide Ex.PW20/D.
35. Thereafter, prosecution evidence was closed.
FIR No.485/2011 PS Mehrauli State Vs. Jitender etc. Page No.17 of 26 Defence Evidence :-
36. Statement of accused U/s 313 Cr.P.C. of accused persons was recorded vide order dated 14.10.2023. All the accused persons chose not to lead defence evidence. Defence evidence was,therefore, closed vide order dated 14.10.2023.
Appreciation of Evidence and Findings :
37. It is the case of the prosecution that on 05.11.2011, at about 07:30 PM, at open ground near Mangrove near Samshi Talab, Mehrauli, accused persons Jitender Bhadana, Ravi @ Ravia, Mohd Ifrahim @ Naddu, Yusuf @ Ballu, Ravi @ Boby and Vikas @ Goga (since expired) robbed the complainant namely Parmanand of his mobile phone and purse containing Rs. 1100/-. Morever, prosecution had also alleged that the said accused persons also murdered the complainant, while committing dacoity.
38. In order to prove it's case, prosecution had examined a public witness i.e. PW7 Lalit. He had testified that on the day and time of the incident, when he reached at Aam ka Bagh, near Samshi Talab, Mehrauli, after coming back from his duties, he saw that six accused persons were beating complainant Parmanand and that they ran away towards Islam Colony, after snatching his mobile phone and money. He identified the accused persons during his testimony and also stated that the said accused persons were known to him prior to the incident. He also deposed that in the meantime, he noticed that the wife of injured Parmanand was also coming towards the spot of occurrence i.e. near " Kikar ka Ped, Khula Maidan" in Aam Bagh, therefore, he went back to his house. His statement was recorded by the police on 15.11.2011 at the PS and he also testified that he had also shown the place of incident to the police on the same day of the incident i.e. on 05.11.2011.
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39. He further testified that on 23.12.2011, he had gone to PS in order to find out the progress of the case, when some photographs were shown to him and he identified the accused persons before the police from the said photographs, as the same persons who had caused injuries to deceased Parmanand. The said photographs were seized vide seizure memo Ex. PW7/A.
40. The said testimony of PW7 Lalit is also corroborated by the testimony of PW5 Bimla Devi i.e. the wife of complainant Paramanand. She had also testified that on the day of the incident at about 08 PM, when she came to her house, she was told by someone that some persons were giving beatings to her husband in the Bagh, near Samshi Talab. She further testified that when she reached there, she saw the accused persons , i.e. accused Jitender, Ravi, Naddu, Vikas and two other persons running from there. As per her testimony, her husband was lying on the ground and one mobile phone make TATA and some money i.e. Rs. 2000/- or Rs. 2500/- of her husband were lost in the said incident. She, however, subsequently also stated that about Rs. 1100/- were robbed and she disclosed the mobile phone number of her husband as 9212816460. She had also stated that her husband had told her that said six persons had caused injury to him. She correctly identified all the six accused persons in the court and stated that they were resident of the same vicinity.
41. Be that as it may, Ld counsel for the accused persons had tried to assail the testimony of aforesaid witness on the ground that as per the testimony of PW7 Lalit, the said Aam Bagh, which was alleged to be the place of incident, was not on the route followed by him to go to his workplace from his house or visa versa. Ld counsel for the accused persons had vehemently argued that the said witness was a planted witness and he was not present at the alleged time and place of incident.
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42. However, the said contention raised by Ld.Defence Counsel appears to be fallacious. Perusal of the testimony of PW7 Lalit shows that he had also stated that on the day of the incident, he was coming back to his house via Aam Bagh, as he had dropped a vehicle of a customer at Vasant Kunj. Moreover, as per the testimony of PW7 Lalit, the distance between his house and his work place i.e. Maruti Competence Service Station was only about 15-20 minutes on foot. Thus, it is not improbable that PW7 Lalit would pass through the said place of incident on his way back from the place of work. In fact, PW5 Bimla Devi had also deposed that the said Bagh is situated at a distance of about 5-10 minutes from her place. Thus, it is apparent that the place of incident was located in the same vicinity of the place of the incident where PW5 Bimla Devi and PW7 Lalit used to reside.
43. Ld counsel for the accused persons had further argued that as per the testimony of PW19 ACP Vijay Kumar Rastogi, he had stated that he had not prepared any site plan at the instance of PW7 Lalit Kumar. Be that as it may, the said argument placed by Ld. defense counsel appears to be misconceived as PW7 Lalit had categorically stated in his testimony that :
"I had shown the place of incident to the police on the day of the incident. Police met me at PS when I had gone there at the day of incident. Thereafter, I had shown the spot to the police".
44. Thus, as per the testimony of said witness, the site plan was prepared at his instance. In fact, PW9 HC Surender Singh had deposed that the site plan was prepared at the instance of PW7 Lalit by him and the same was placed on record vide Ex. PW9/A. Thus, there is no merit in the said contention as stated above.
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45. Ld counsel for the accused persons had further argued that as per the testimony of PW7 Lalit, his statement was recorded on 15.11.2011 at PS and the said fact casts a serious doubt on the case of the prosecution. However, there is no merit in the said contention raised by Ld. defense counsel as well. Perusal of the record shows that the statement of injured/deceased Parmanand himself was recorded on 06.11.2011 and had been placed on record vide Ex. PW10/A and the police machinery was set into motion pursuant to the said complaint of the deceased himself. In fact, FIR was registered on the basis of the said complaint of the deceased. Therefore, the fact that the statement of PW7 Lalit was recorded on 15.11.2011 is irrelevant in light of the said statement of deceased Parmanand (placed on record as Ex. PW10/A).
46. Moreover, the said statement of the deceased was made within proximate period of time and as per the endorsement on the same, intimation regarding the same was sent to PS at about 05:30 PM on 06.11.2011, after complaint was made by the deceased as afore stated. Thus, there is no scope for prevarication in the said statement of the deceased himself.
47. In fact, PW5 Bimla Devi had also deposed that when she came at the spot, her husband was conscious and he had told her, on his way to the hospital, about the names/identity of the accused persons. In fact, even in the complaint given by the deceased i.e. Ex. PW10/A, he had named accused Ballu and Naddu, although, he had not named the other accused. However, he had also stated that the other persons were also residents of Mehrauli and he could identify them.
48. Ld counsel for the accused persons had, however, argued that the case of the prosecution does not stand on it's legs as the test identification parade of the accused persons was never got conducted by the IO. Ld counsel for the FIR No.485/2011 PS Mehrauli State Vs. Jitender etc. Page No.21 of 26 accused persons had further argued that the identity of the accused persons could not be duly established by the prosecution. The said contention raised by Ld defence counsel also does not hold any ground as test identification parade is essential where the complaint had not been acquainted with the accused persons prior to the incident and he had seen the perpetrator of the offence, only once at the time of the incident. However, the same is not the case in the present matter. In fact, the deceased and his wife PW5 Bimla Devi, PW7 Lalit were also residing in the same vicinity and as per the FIR as well as the testimony of the said witnesses, accused persons were also residing in the same vicinity and the deceased as well as PW5 Bimla Devi and PW7 Lalit were well acquainted with them, although, they might not have known the names of all the accused persons.
49. Ld counsel for the accused persons had further argued that as per the testimony of PW7 Lalit, he had not disclosed the names of the accused persons to any family member of the deceased. However, as already stated the identity of the accused persons had been established not only by PW7 Lalit, however, the identity of the accused persons was also established by the statement of deceased Paramanand (Ex. PW10/A) and the testimony of PW5 Bimla Devi as well. Infact, it appears that since the wife of the deceased i.e. PW5 Bimla Devi had reached at the spot just after the incident and had seen the accused persons, therefore, there was no necessity for PW7 Lalit to disclose the identity of the accused persons to any of the family members of the deceased.
50. Furthermore, it is imperative to evaluate the evidentiary value of the statement of deceased Parmanand (placed on record vide Ex.PW10/A) at this stage. The moot question to be answered is whether the statement of the deceased on FIR No.485/2011 PS Mehrauli State Vs. Jitender etc. Page No.22 of 26 the basis of which FIR was registered can be treated as 'dying declaration' within the meaning of Section 32(1) of Indian Evidence Act, 1872?
51. In Shudhakar vs. State of Madhya Pradesh, (2012) 7SCC 569, it was held that "20 The "dying declaration" is the last statement made by a person at a stage when he is in serious apprehension of his death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the truth. Normally in such situations the courts attach the intrinsic value of truthfulness to such statement. Once such statement has been made voluntarily, it is reliable and is not an attempt by the deceased to cover up the truth or falsely implicate a person, then the courts can safely rely on such dying declaration and it can form the basis of conviction. More so, where the version given by the deceased as dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration."
52. In the present matter, the deceased had given his statement to the police to set the police machinery into action, just after the incident and from the testimony of the aforesaid witnesses, it does not appear that the said statement was tutored in any way or was made with any ulterior motive, especially because at that time, the deceased was severely injured. It is highly improbable that the deceased would prevaricate and make a false statement when reeling under physical distress, which ultimately led to his death.
53. Furthermore, in Harendra Rai vs. The State of Bihar & Ors. Crl. Appeal No.1726 of 2015, the Hon'ble Supreme Court had held that :
FIR No.485/2011 PS Mehrauli State Vs. Jitender etc. Page No.23 of 26 "the FIR lodged on the basis of Bayan Tehrir of injured Rajendra Rai (deceased) is liable to be treated as a dying declaration, which itself is a substantive piece of evidence and is admissible under Section 32(1) of the Evidence Act."
54. Thus, in view of the said judgment passed by Hon'ble Supreme Court, the said FIR placed on record vide Ex.PW1/A, registered on the basis of last statement made by the deceased can be treated as a dying declaration, as it specifically relates to the cause of death of the deceased, whereby he had narrated the entire incident which ultimately culminated into his death. Thus, the said FIR is substantive piece of evidence within the meaning of Section 32 (1) Indian Evidence Act, 1872.
55. As per the statement of the deceased placed on record Ex. PW10/A, the accused persons had beaten him with leg and fist blows, due to which he had suffered injury near the left eye and that prior to that scuffle, the accused persons wanted to conduct search of the pocket of the deceased. As per the said statement, after the incident, when the deceased had sustained injuries and had fallen down on the ground, his purse containing Rs. 1100/- and TATA mobile phone were found to be missing. Thus, from the search of the deceased conducted by the accused persons, it a natural concomitant that the accused persons had robbed the deceased of his belongings after inflicting injury on him.
56. Ld counsel for the accused persons had further argued that the offence u/s 396 IPC is not made out against the accused persons as the cause of death of the deceased could not be associated and linked with the alleged incident and as per the postmortem report dated 08.12.2011 of the deceased placed on record vide Ex. PW2/A, the cause of death of the deceased is stated to be "septicemic FIR No.485/2011 PS Mehrauli State Vs. Jitender etc. Page No.24 of 26 shock" and that no abdominal injuries were recorded in the MLC of deceased dated 05.11.2011, placed on record vide Ex. PW17/A.
57. Be that as it may, although, the MLC dated 05.11.2011 of deceased Paramanad Ex. PW17/A mentions that he had suffered injury/swelling over nose alongwith nose bleeding and it did not mention any other injury, however, the said MLC also records the alleged history as "assault". PW2 Dr. Sanjay Kumar had infact, stated that usually MLCs are prepared hurriedly and only external injuries are mentioned, therefore, it is probable that no internal injury could be recorded at that point when MLC was prepared and the deceased was produced in the hospital, requiring first aid.
58. Moreover, as per the postmortem report of the deceased, the cause of death of the deceased was stated to be "Septicemic shock as a complication of antemortem abdominal organs injuries produced by blunt force impact, which was sufficient to cause death in ordinary course of nature" and PW3 Aditya Swaroop, Medical Record Technician had also placed on record the record file of deceased Paramanand vide Ex. PW3/A, as per which the deceased was continuously under treatment since 06.11.2011. Thus, there was no other supervening circumstance or incident which had occurred after 06.11.2011, leading to any abdominal injury to the deceased and the said injuries were a necessary result of the beatings given by the accused persons.
59. Infact, as per the subsequent opinion given by PW2 Dr. Sanjay Kumar placed on record as Ex. PB, it had been opined that the death of the deceased had resulted consequent to abdominal organ injuries produced by "blunt force" and could be possible due to beating with blow of fist and kicks. Thus, from the said medical evidence placed on record, the death of the deceased was duly linked to the offence committed by the accused persons.
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60. Although, the case property could not be recovered at the instance of the accused persons, however, from the testimonies of the aforesaid prosecution witnesses, it stands duly established that the accused persons had robbed the mobile phone and cash of the deceased. There is no reason to disbelieve their testimonies which duly corroborate each other.
61. Moreover, from the medical evidence placed on record, the fact that the death of the deceased was caused due to the injuries inflicted by the accused persons had also been proved by the prosecution. Thus, the prosecution has proved beyond reasonable doubt that the accused persons had committed dacoity with murder of the deceased Parmanand. In view of the aforesaid facts, the accused persons are hereby convicted for the offence u/s 396 IPC.
62. Copy of judgment be given to the convicts free of cost.
Digitally signed byANNOUNCED IN OPEN COURT MANISHA MANISHA
on 13.12.2023 KHURANA KHURANA KAKKAR
Date: 2023.12.16
KAKKAR 17:08:56 +0530
(MANISHA KHURANA KAKKAR)
ASJ (FTC) - 01, SOUTH DISTRICT
SAKET: NEW DELHI
FIR No.485/2011 PS Mehrauli
State Vs. Jitender etc. Page No.26 of 26