State vs Raja Ram Etc.(2) on 9 February, 2024

[Cites 45, Cited by 0]

Delhi District Court

State vs Raja Ram Etc.(2) on 9 February, 2024

               IN THE COURT OF SH. DHIRENDRA RANA
          ADDL. SESSIONS JUDGE: SPECIAL JUDGE (NDPS), NORTH
                  DISTRICT, ROHINI COURTS : DELHI

In the matter of:-
(Sessions Case No. 57622/2016)

                CNR No.             DLNT01-00420-2012
                FIR No.             320/2012
                Police Station      Bawana
                Charge sheet filed 302/201/34 IPC
                Under Section
                Charge framed Under 302/201/34 IPC
                Section

                                  Raja Ram s/o Sh. Ramu r/o Village
                                  Satimo, Post Devgaon, Ranikpur,
                    State Vs.     District Ayodhya (previously known as
                                  Faizabad), U. P.
                                  Santram s/o Sh. Sukh Lal r/o Village
                                  Tindoli, Bhitari, District Ayodhya
                                  (previously known as Faizabad), U. P.
                                  224225.

                Date of institution                    08.01.2013
                Arguments concluded on                 20.01.2024
                Judgment Pronounced on                 09.02.2024
                Decision                               Accused Raja Ram
                                                       convicted under section
                                                       302/34/201 IPC

                                                       Accused       Santram
                                                       convicted under section
                                                       302/34 IPC




SC No. 57622/16, FIR No. 320/12        State Vs. Rajaram & Anr.        Page No. 1 of 76
PS Bawana
                                       JUDGMENT

BRIEF FACTS 1.1 Events which set the prosecution machinery into motion is that on 20.09.2012 on receipt of DD No. 22 PP, SI Parveen Kumar alongwith Ct. Ashok reached at Maharishi Valmiki Hospital, Pooth Khurd where injured Ravinder, was found admitted vide MLC No. 3632/12 and was declared brought dead by the doctor. Accused Raja Ram @ Kallu was also found admitted in the hospital vide MLC No. 3633/12 in the supervision of Ct. Jaideep. Complainant Vineet Kumar met SI Parveen Kumar and gave his statement wherein he stated that he used to work in factory of Parvinder i.e., Factory No. F-36, Sector-4, DSIDC, Bawana, Delhi (herein referred as spot/place of occurrence) as a helper from last five months. Factory was being run by Parvinder but owner of the same was Anand Sharma. He further stated that Parvinder had another factory at E-146, Sector-4, DSIDC, Bawana where deceased Ravinder used to work as helper and he used to sleep in Factory F-36 with Vineet. He further stated that accused Raja Ram and Sant Ram used to work as watchmen being deployed by Anand Sharma and used to work as plumber during day time, also used to sleep in the said factory. He further stated that as per the directions of owner, he used to lock the main gate of the factory at about 09:00 PM. He further stated that accused Raja Ram and Sant Ram used to come late in night after consuming liquor and when he and deceased Ravinder refused to open the main gate, they abused them and also threatened them to kill. He stated that he informed the said act of accused persons to Parvinder as well as Anand Sharma. He alleged that on 20.09.2012 at about 07:00-08:00 PM, when Parvinder left for his house, accused Raja Ram and Santram, who were consuming liquor on the roof of the factory, came down by using roof of adjacent factory. He informed accused Raja Ram that he SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 2 of 76 PS Bawana was going to sleep after locking the door of roof as it is very late. In the meantime, deceased Ravinder also locked the main gate of the factory and asked Santram not to open the main gate. On this, accused Raja Ram abused him and threatened him to kill. He further alleged that thereafter, on his advise, accused Rajaram came on the roof of the factory from the adjacent factory as he was having the keys of the lock of the roof. He further alleged that accused Raja Ram called accused Santram and handed over the keys of door of roof to him. Santram opened the door and when accused Rajaram was coming down from the staircase, deceased met him and on seeing him, accused Rajaram started beating him with leg and fist blows whereas accused Santram caught hold of him from behind. He further alleged that when he tried to intervene, accused persons also threatened him to kill. Accused Rajaram went inside his room and took out an iron pipe and hit on the body of deceased. Accused Raja Ram also hit brick on the head of deceased. When deceased ran towards the roof, accused Santram and Rajaram also followed him. Deceased Ravinder fell in front of bathroom, accused Santram took a pitcher (matka) and hit on the head of deceased. Accused Raja Ram also hit deceased Ravinder with iron rod due to which blood started oozing out from the head of the deceased and he fell down on the ground. He further alleged that he went to factory No. E-146, and called Parvinder from the mobile of Bharat and informed about the incident. Parvinder further called Johny to accompany him to the spot of offence and when they reached at the spot, they found that deceased Ravinder was lying in unconscious condition in the pool of blood. PCR also reached at the spot and injured was shifted to hospital.

1.2 Meanwhile, DD no. 21 PP was received by HC Azad, who alongwith Ct. Jaideep proceeded to the spot and there he came to know that SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 3 of 76 PS Bawana injured was already shifted to hospital. When he alongwith Ct. Jaideep was proceeding towards hospital, accused Raja Ram was found present near round about of E-Block and he started running on seeing the police. Ct. Jaideep apprehended him. He was under the influence of liquor and his clothes were blood stained. On interrogation he stated that he and his brother in law co- accused Santram had beaten deceased Ravinder. Ct. Jaideep took accused Raja ram to MV Hospital as he was also injured.

1.3 SHO and Inspector Vivekanand also reached at hospital and on the directions of SHO, SI Praveen reached at spot conducted the further investigation. Deceased was declared brought dead by the doctor. On the basis of MLC of injured FIR under section 302/34 IPC was registered and further investigation was marked to Inspector Vivekanand. Vineet identified accused Raja Ram as the assailant and IO prepared the site plan at the instance of complainant Vineet and spot was inspected by the crime team. IO seized the exhibits from the spot. Accused Rajaram was arrested, who disclosed his involvement in the commission of crime. IO also got conducted the postmortem on the body of deceased, seized the clothes of injured, complainant, accused Raja Ram and weapon of offence i.e., iron pipe which was got recovered by accused Raja Ram.

1.4 On 31.10.2012, accused Santram surrendered before the court and he was formally arrested as he confessed his involvement in the commission of crime. After completion of investigation, charge sheet for the offences u/s 302/201/34 IPC against accused was filed in the court.

SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 4 of 76 PS Bawana CHARGE

2. On committal of the case to the Court of Sessions, vide order dated 18.04.2013, charge under section 302/201/34 IPC was framed against accused Raja Ram @ Kalu and Santram to which they pleaded not guilty and claimed trial.

PROSECUTION EVIDENCE

3. Thereafter, prosecution in support of its case have examined 34 witnesses in all.

FORMAL WITNESSES 4.1 PW1 Anand Swarup deposed that he was having a factory premises at F-36, Sector-4, DSIDC, Bawana, Delhi which was given to Parvinder Kumar on rent, who was running the business of assembling weighing scales. He further deposed that Vineet and Ravinder (since deceased) were the helpers of Parvinder and were living in the same factory. He further deposed that accused persons were engaged by him as care takers for the above factory, who used to do work of plumber in day time.

4.2 He further deposed that 15-20 days prior to the incident, Parvinder made a phone call to him and informed him regarding some dispute/quarrel between deceased Ravinder and Vineet on one side and accused Raja Ram and Sant Ram on other side. Thereafter, he called accused Raja Ram and Sant Ram and restrained them not to quarrel with Vineet and deceased Ravinder. He handed over photocopy of perpetual lease of his said premises to police which is Ex. PW1/B and same was seized vide seizure memo which is Ex. PW1/A. SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 5 of 76 PS Bawana 4.3 During cross examination done on behalf of accused persons, he stated that he had not received anything as rent from accused persons for living in his factory and they were only providing the services of care taker. He stated that he had not seen any dispute/quarrel between accused persons and Vineet and deceased.

5. PW2 HC Jawahar Lal being the duty officer, he registered the FIR which is Ex. PW2/A and made endorsement on rukka which is Ex. PW2/B. 6.1 PW5 Chander Shekhar, Nodal Officer, Bharti Airtel Ltd. exhibited that CAF of mobile No. 9810783423 issued in the name of Bharat Yadav as Ex. PW5/A and CDR of said mobile number from the period 15.09.2012 to 30.09.2012 as Ex. PW5/B. Copy of passport of subscriber annexed with CAF as Mark PW5/1.

6.2 He also exhibited CAF of mobile number 9910726675 issued in the name of Jyoti as Ex. PW5/C and CDR of the same from the period 15.09.2012 to 30.09.2012 as Ex. PW5/D. Voter identity card of the subscriber annexed with CAF as Mark PW5/2. He also exhibited certificate under section 65B of Indian Evidence Act of CDR of mobile numbers as Ex. PW5/E. 6.3 He exhibited the CDR of mobile No. 9891490940 for the period 15.09.2012 to 25.09.2012 issued in the name of Karan s/o Sh. Lalu Singh as Ex. PW5/F (colly) and proved CAF as Mark PW5/3 and voter card of the subscriber annexed with CAF as Mark PW5/4. He also exhibited certificate under section 65B of Indian Evidence Act of mobile No.9891490940 as Ex.

SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 6 of 76 PS Bawana PW5/G. 7.1 PW6 Karan Singh @ Johny deposed that on 20th day 2012 at about 10:30-11:00 PM he received a telephone call of Parvinder, who informed him that a quarrel took place between deceased Ravinder and accused persons Raja Ram and Santram at spot. He further deposed that Parvinder also telephonically informed him that he should reach at factory No. E-146, DSIDC, Sector-4, Delhi where Vineet would meet him. He further deposed that he went to Factory No. E-146, DSIDC, Sector-4, Delhi where he met Vineet and accompanied to the spot where they found that deceased Ravinder was lying in a pool of blood in unconscious condition and he informed Parvinder telephonically about the same. He further deposed that after about 10-15 minutes, Parvinder reached at spot and police also reached at the spot. Injured Ravinder was removed to MV Hospital in PCR van by Vineet and Parvinder where he was declared dead.

7.2 During cross examination done on behalf of accused persons, he denied that he did not receive any mobile call from Parvinder on the day of incident. He denied that Parvinder did not inform him that a quarrel took place between Ravinder and accused persons at the spot. He denied that accused Raja Ram @ Kallu was also present at the place of occurrence and he was lying in injured condition in a room at the spot.

8. PW7 Harinder Singh deposed that he was working in factory E- 226, Sector 4, DSIDC, Bawana as supervisor. He further deposed that accused Raja Ram @ Kalu used to come to his factory for plumbing work and accused Raja Ram alongwith other boys used to reside in a factory premises which is SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 7 of 76 PS Bawana situated behind Mandir. He further deposed that he visited the factory of Raja Ram on one or two occasions and he was not aware as to how Ravinder expired and later on he came to know that Ravinder had quarreled with some persons and expired.

9. PW8 Rajeev Ranjan, Nodal Officer, Tata Tele Services Ltd. exhibited the CAF of mobile No. 9211982426 issued in the name of Lalit Kumar as Ex. PW8/A, photocopy of election copy of customer as Mark PW8/B, CDR of the said mobile number from 15.09.2012 to 25.09.2012 as Ex. PW8/C and Ex. PW8/C1. He also exhibited certificates under section 65B of Indian Evidence Act as Ex. PW8/D and Ex. PW8/D1, forwarding letter as Ex. PW8/E and Cell ID Chart as Ex. PW8/F.

10. PW9 Sushil Anuj Tyagi, the then Ld. MM, being the judicial officer, he exhibited the application for conducting TIP proceedings of accused Sant Ram as Ex. PW9/A, TIP proceedings as Ex. PW9/B and application moved by IO for obtaining copy of TIP proceedings as Ex. PW9/C.

11. PW10 Dr. N. Masand, Medical Officer, Maharishi Valmiki Hospital, Delhi, deposed that on 20.09.2012 at about 11:46 PM Kalu @ Raja Ram was brought with the alleged history of physical assault. He further deposed that Raja Ram was examined by Dr. Kavindra vide MLC No. 3633/12 which is Ex. PW10/A and he was having smell of alcohol. He further deposed that on local examination, clean lacerated wound on left occipital-parietal region of size 1.5 cm x 0.5 cm and clean lacerated wound on left parietal region of size 2.5 cm x 0.5 cm were found. He further deposed that patient was SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 8 of 76 PS Bawana referred to SR Surgery and no fracture was seen in the X-Ray of skull.

12.1 PW11 Israr Babu, Alternate Nodal Officer, exhibited customer application form of mobile No. 9811831172 issued in the name of Parvinder Kumar as Ex. PW11/A, copy of Election I Card and electricity bill of the subscriber as Mark PW11/B1 and Mark PW11/B2, CDR from period 15.09.2012 to 25.09.2012 as Ex. PW11/C and certificate under section 65B of Indian Evidence Act as Ex. PW11/D. 12.2 He also exhibited customer application form of mobile No. 9582117540 issued in the name of Kiran Gupta as Ex. PW11/E, copy of Election I Card of subscriber as Mark PW11/F, CDR from the period 15.09.2012 to 23.09.2012 as Ex. PW11/G and certificate under section 65B of Indian Evidence Act as Ex. PW11/H. 12.3 He exhibited customer application form of mobile No. 8860957861 issued in the name of Parvinder Kumar as Ex. PW11/I, copy of election I Card of subscriber as Mark PW11/J, CDR from the period 15.09.2012 to 23.09.2012 as Ex. PW11/K and certificate under section 65B of Indian Evidence Act as Ex. PW11/L. He also exhibited Cell ID Chart of Vodafone for Delhi and NCR as Ex. PW11/M.

13. PW12 Mukul Gupta, Nodal Officer, Sistema Shyam Telly Services, exhibited customer application form of mobile No. 8459352857 issued in the name of Ram Nath s/o Raja Ram as Ex. PW12/A, copy of election I card of subscriber as Mark PW12/B, CDR from period 15.09.2012 to 30.09.2012 as Ex. PW12/C, certificate under section 65B of Indian SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 9 of 76 PS Bawana Evidence Act as Ex. PW12/D and Cell ID chart of MTS Delhi and NCR as Ex. PW12/E.

14. PW14 Ct. Anil deposed that on 25.09.2012, he joined the investigation with SI Praveen Kumar and went to BSA Hospital mortuary where hospital staff namely Surender handed over sealed pullanda, one sealed envelope and sample seal which was seized by SI Praveen vide seizure memo which is Ex. PW14/A.

15. PW15 Inspector Mahesh Kumar deposed that on 24.11.2014, on the request of IO Inspector Vivekanand, he reached at PP DSIDC from where he alongwith with IO went to first and second floor of factory No. F-36, Sector-4, DSIDC, Bawana, Delhi. He took rough notes and measurements of the place of occurrence at the instance of IO and prepared scaled site plan which is Ex. PW15/A.

16. PW16 Inspector Anil Kumar deposed that on 21.09.2012 on receipt of call from control room, he alongwith Ct. Hansraj (photographer) and other staff went to first floor and second floor of factory No. F-36, Sector-4, DSIDC, Bawana, Delhi where he met SI Praveen and other staff. He inspected the scene of crime and prepared his report which is Ex. PW16/A.

17. PW17 Ct. Hansraj deposed that he being the photographer in crime team visited the spot alongwith Incharge SI Anil Kumar and other staff and clicked 13 photographs of the place of occurrence from different angles at the instance of SI Anil Kumar and Inspector Vivekanand. He exhibited the negatives of the photographs as Ex. PW17/A (colly). SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 10 of 76 PS Bawana

18. PW19 Ct. Ved Vrat deposed that on 02.11.2012 on the directions of SHO and IO Inspector Vivekanand, he took the exhibits and sample seals from MHC(M) for depositing the same at FSL vide RC No. 278/21. He deposited the same at FSL and obtained the acknowledgement of FSL and copy of RC and handed over the same to MHC(M) HC Dharampal.

19. PW20 Ct. Kishan Kumar deposed that on 03.10.2012, on the directions of IO, he went to BSA Hospital and collected the postmortem report No.523/12 and other inquest papers and handed over the same to IO.

20.1 PW22 Dr. Vijay Dhankar, Specialist and HOD Forensic Medicine, BSA Hospital, deposed that on 22.09.2012, he conducted postmortem on the body of one Ravinder s/o Surat Singh on the request of SI Praveen Kumar vide postmortem report which is Ex. PW22/A. He further deposed that deceased was injured in an assault on 20.09.2012 at about 10:30 PM and attacked with kicks, punches, steel pipe, bricks etc. and later on declared brought dead.

20.2 He further deposed that on examination, 17 external injuries including lacerations, contusions and abrasions on multiple parts of the body were found. He further deposed that the cause of death is due to combined effect of cranio cerebral damage and hemorrhagic shock consequent to multiple injuries to the head, neck and chest. He further deposed that all injuries were ante mortem and fresh at the time of death and injury No. 1 to 10 individually alongwith the internal injuries as well as collectively with other external injuries were sufficient to cause death in ordinary course of nature. He further deposed that injury No. 1, 5 to 10 and 13 have been inflicted with a SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 11 of 76 PS Bawana linear blunt object and rest of the injuries could be caused by blunt object. Injury No. 13 is indicative of repeated strikes with a linear blunt object like a danda, rod, etc.

21. PW23 Ct. Vinod deposed that on 18.10.2012 on the directions of IO Vivekanand, he went to police HQ for collecting the PCR form and copies of log book detail. He handed over the letter of the IO to official at PHQ and collected the printed PCR form No. 1 and two copies of log book and handed over the same to IO.

22. PW24 HC Mahavir Singh deposed that on 20.09.2012 at about 11:00 PM on receipt of wireless information regarding quarrel at Bawana Industrial Area F-36, Sector-4, Near Ganga Toli Mandir, he alongwith his staff went there and met one person namely Parvinder, who informed that he made a call. He further deposed that they entered the factory and found that one injured Ravinder was lying unconscious in a pool of blood in front of bathroom on the roof. He further deposed that he with the help of Parvinder and others shifted the injured to MV Hospital where after examination, he was declared dead. He further deposed that Parvinder informed that quarrel took place on the issue of opening the gate of the factory and deceased Ravinder sustained injuries and accordingly, he conveyed the information to the control room. He further deposed that he recorded these information in his log book and on 18.10.2012 he handed over the copy of log book which is Ex. PW24/A to Inspector Vivekanand.

23.1 PW25 Ct. Rajbir Singh deposed that on 01.10.2012 on the directions of Inspector Vivekanand, he went to crime team office of Outer SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 12 of 76 PS Bawana District from where he collected the report of crime scene and handed over the same to IO.

23.2 He further deposed that on 02.10.2012 he again went to the office of crime mobile team and collected the photographs and handed over the same to IO.

23.3 He further deposed that on 06.11.2012 he joined the investigation with Inspector Vivekanand, who was interrogating accused Sant Ram in his room. He further deposed that at the same time complainant Vineet Kumar came to the room of IO and identified accused Sant Ram as the person, who alongwith his brother in law (jija) co-accused Raja Ram gave beatings to deceased Ravinder. He further deposed that he alongwith IO, complainant Vineet Kumar and accused left the police station and reached at the spot and prepared pointing out memo of the place of offence at the instance of accused Sant Ram which is Ex. PW25/A. 23.4 He further deposed that on 07.12.2012, on the directions of Inspector Vivekanand, he went to PHQ, Crime Branch Office and collected the scaled site plan and handed over the same to IO.

24. PW26 Ct. Satbir, exhibited DD No. 21 and DD No. 22 dated 20.09.2012 PP DSIIDC, PS Bawana as Ex. PW26/1 and Ex. PW26/2.

25. PW27 HC Mukesh Kumar delivered the copy of FIR at residence of Ld. MM, Jt. CP (NR) and other senior officers.

SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 13 of 76 PS Bawana

26. PW28 Monika Chakravarty, Senior Scientific Assistant (Biology) exhibited the FSL report bearing No. FSL-2012/DNA- 7874/2125(DNA No.890/12) dated 30.12.2013 as Ex. PW28/1.

27. PW29 HC Dharampal being the MHC(M) made entry No. 644 in Malkhana register qua deposition of 15 sealed pullandas, sample seal of MB Hospital, articles recovered during the course of personal search of accused Raja Ram which is Ex. PW29/1. He also made entry at serial No. 654 which is Ex. PW29/2 in Malkhana register with regard to deposition of sealed pullanda, one sealed envelope with sample seal of BSA Hospital. On 02.11.2012 he sent the deposited articles to FSL through Ct. Ved Vart vide Road Certificate No. 278/21 which is Ex. PW29/3 and acknowledgement thereof is Ex. PW29/4.

28. PW30 Lalit Kumar deposed that in December 2012, he had been called by police officials of PS Bawana and accordingly, he alongwith his brother Parvinder went to the police station where inquiries were made from him regarding mobile No. 9211982426. He further deposed that he informed the police that said number had been issued to him and he generally used to keep the same at his house.

29. PW31 Jyoti deposed that in December 2012 had made inquiries from her with respect to mobile No. 9910726675 and she was shown the photocopy of customer application form and also apprised about the call details record of said number. She further deposed that on the customer application form, she saw that her photo was affixed and her voter identity card was used for obtaining the said number. She further deposed that she was SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 14 of 76 PS Bawana informed by police that said number was being used by accused Raja Ram. She further deposed that she told the police that said number must have been got issued by her younger brother Amit using her identity. She further deposed that Amit used to reside with her and was on friendly terms with accused Raja Ram. She further deposed that around June, 2012 she had sent Amit back to native village as he had fallen in a bad company.

MATERIAL WITNESSES 30.1 PW3 Vineet, who happens to be an eye witness and complainant, deposed that he was working in the factory which was owned by Sh. Parvinder Kumar where electronic weighing machines were manufactured.

30.2 He further deposed that after working hours, Ravinder employee of Parvinder, used to reside with him on first floor of factory premises situated at F-36, Sector-4, DSIDC, Bawana, Delhi. He further deposed that owner of the premises Anand Sharma, employed two watchmen/chowkidar namely Raja Ram and Sant Ram for building situated at F-36, Sector-4, DSIDC, Bawana, Delhi. He further deposed that accused Raja Ram and Sant Ram used to work as plumbers and in the night hours, they used to work as watchmen of the building for Anand Sharma. He further deposed that he alongwith deceased Ravinder, who was deaf, accused Rajaram and Sant Ram (brother in law of accused Raja Ram) used to sleep in the night on the first floor of the building. He further deposed that he alongwith deceased Ravinder used to lock the main door of this building/factory at about 09:00-09:30 PM whereas accused Raja Ram and Sant Ram used to come late in the night and used to drink liquor. He further deposed that sometimes he or deceased Ravinder used to open the lock of the main door when Raja Ram and Sant Ram used to come in late and they SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 15 of 76 PS Bawana requested them not to come late but they did not pay any heed to their request. He further deposed that they conveyed to their owner Parvinder Kumar that accused persons used to come late and when they requested them, they used to abuse them and threaten them. He further deposed that Parvinder informed Anand Sharma about the conduct of the accused persons.

30.3 He further deposed that on 20.09.2012 at about 09:00-09:30 PM when he alongwith deceased Ravinder was preparing dinner, accused Sant Ram and Raja Ram were at the factory premises during the day hours as they had not gone to their work and consumed liquor in day time. He further deposed that accused persons were consuming liquor at the roof of their factory, he went to the roof top and requested both of them to come down as he had to lock the gate of the roof. He further deposed that at the same time, someone called them from outside the factory and on hearing the call, accused Raja Ram went to the roof of adjacent under construction building and from there he reached at ground floor. He further deposed that accused Sant Ram accompanied him to the first floor of factory and he locked the door of the roof from inside. Thereafter, he alongwith deceased Ravinder went outside the factory and made request to accused Raja Ram to come inside the factory premises as they had to lock the main gate of factory premises, however, accused Raja Ram went ahead in the gali and did not pay any heed to their request. He further deposed that he explained deceased Ravinder by gestures that he was going to take back accused Raja Ram, however, accused Raja Ram did not accompany him. He further deposed that deceased Ravinder locked the main gate of the factory premises from inside. Accused Raja Ram came outside the factory premises and requested deceased Ravinder to open the lock, however, deceased Ravinder told accused Raja Ram to come from the way he SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 16 of 76 PS Bawana went out of the factory and he would not open the lock. He further deposed that he also advised accused Raja Ram to come inside from the adjacent factory's roof. Accordingly, accused Raja Ram reached on the roof of the factory from the adjacent factory. He further deposed that he advised accused Raja Ram not to abuse or quarrel with deceased Ravinder upon which accused assured that he would not abuse or quarrel with him. He further deposed that accused Raja Ram called accused Sant Ram. As accused Sant Ram was inside the factory premises, he threw the key of the door to accused Sant Ram for opening the lock/door and accordingly, he opened the lock. He further deposed that he alongwith accused Sant Ram and accused Raja Ram were getting down on the staircase whereas deceased Ravinder was coming up. When accused Raja Ram saw deceased Ravinder in the staircase, he started quarreling with him and gave beatings to deceased Ravinder with kick and fist blows. He further deposed that deceased Ravinder picked up a brick and hit the same on the head of accused Raja Ram. Accused Raja Ram rushed to his room at first floor and deceased Ravinder ran to the roof of the factory. He further deposed that accused Raja Ram came with an iron pipe in his hand and he tried to stop him, however, accused Raja Ram threatened him to kill. He further deposed that accused Raja Ram and Santram went to the roof of factory where deceased Ravinder was present. He also followed them and tried to pacify them. He further deposed that deceased Ravinder was cornered near bathroom by accused persons. Accused Sant Ram hit matka (pitcher) on the head of deceased Ravinder whereas accused Raja Ram hit repeatedly on the head of deceased Ravinder and other part of his body with iron pipe. He further deposed that he came down and went to the factory of Parvinder Singh at Factory No. 146, Sector-4, Bawana, Delhi and made call to Parvinder Singh from the phone of Bharat and informed him accordingly. He further deposed SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 17 of 76 PS Bawana that Parvinder told him to remain present in Factory No. 146 and he would send one person to stop the quarrel. After about 15-20 minutes, Johny came to factory No. 146 sent by Parvinder thereafter, he alongwith Johny went to the place of occurrence and found deceased Ravinder lying in unconscious in a pool of blood. He further deposed that Johny made a call to Parvinder. After about 15-20 minutes a PCR van reached outside the factory. Parvinder also reached there. Deceased Ravinder was shifted by PCR van to Maharishi Valmiki Hospital where he was declared dead. He further deposed that after some time, accused Raja Ram @ Kalu was also brought by the police in the hospital where he identified him and informed to police that he alongwith co- accused Santram killed deceased Ravinder by giving beatings to him and causing injuries by iron pipe and pitcher. Police recorded his statement which is Ex. PW3/A. 30.4 He further deposed that he alongwith SHO, SI Praveen and Ct. Ashok reached at the spot where site plan which is Ex. PW3/B was prepared at his instance. He further deposed that crime team and photographer reached at the spot. He further deposed that blood stained broken piece of matka/pot, broken pieces of matka/pot, blood was lifted from the floor of the roof, pieces of floor, one pair of slipper of black colour having size 9 lying in front of bathroom, one broken piece of brick endorsed with R-Swastik-P were seized vide seizure memo which is Ex. PW3/C. 30.5 He further deposed that in front of first floor staircase, one pair of Sandal make Campus of light Grey colour of size No. 9 of accused Raja Ram, two blood stained shirts i.e., one black, blue, yellow white check shirt and another shirt having brown strips over its having full sleeves were seized vide SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 18 of 76 PS Bawana seizure memo which is Ex. PW3/D. He further deposed that one mobile phone belonging to accused Sant Ram make MTS Model S-100 was seized vide seizure memo which is Ex. PW3/E, blood stained cloths of accused Raja Ram i.e., White colour half sleeves T-shirt and one jeans make SKM were seized vide seizure memo which is Ex. PW3/F. 30.6 He further deposed that blood stained shirt of light yellow colour (dhaaridar) full sleeves of Parvinder Kumar was seized vide seizure memo which is Ex. PW3/G. He further deposed that his blood stained half sleeve T- shirt of light brown colour make Blue Harbour was seized vide seizure memo which is Ex. PW3/H. He further deposed that blood sample lying on the roof in front of bathroom at the spot was seized vide seizure memo which is Ex. PW3/J. He further deposed that accused Raja Ram @ Kalu was arrested vide arrest memo which is Ex. PW3/K, his personal search was conducted vide personal search memo which is Ex. PW3/L and his disclosure statement was recorded which is Ex. PW3/M. 30.7 He further deposed that accused Raja Ram led to F-37, Sector-4, DSIIDC, Bawana in a vacant plot and got recovered blood stained iron pipe. Sketch of the iron pipe was prepared which is Ex. PW3/N and same was seized vide seizure memo which is Ex. PW3/O. 30.8 He correctly identified 13 photographs of crime scene as Ex. PW3/1 to Ex. PW3/13. He exhibited slippers (chappal) of left foot black colour as Ex. P1, broken brick as Ex. P2, sandal make Campus of light Grey colour as Ex. P3, two shirts (one is of black, blue, yellow white check and another shirt having brown strips, full sleeves) as Ex. P4 (colly), white colour SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 19 of 76 PS Bawana half sleeves t-shirt having cut hole and one off white jeans pants make SKM having cuts belonging to accused Raja Ram as Ex. P5 (colly), shirt of light yellow colour (dhaaridar) full sleeves as Ex. P6, half sleeves T-shirt of light brown colour make Blue Harbour as Ex. P7, iron pipe recovered from accused Raja Ram as Ex. P8 and mobile phone make MTS of accused Sant Ram as Ex. P9.

30.9 During cross examination done on behalf of accused persons he stated that 2-3 other workers including him were working at factory. He denied that those 2-3 other workers used to reside in the said premises. He stated that neither he nor his employer Parvinder made any complaint to local police as and when accused persons used to come late at night and usually consume liquor. He denied that his friends also used to visit the factory to meet him and they used to consume liquor. He denied that he took Rs. 5,000/- as loan from deceased Ravinder. He denied that he did not inform Parvinder about the incident. He stated that he was carrying his mobile phone but there was no balance in his mobile phone and that is why he made call from the phone of Bharat. He denied that accused persons did not consume liquor at the roof of the factory on the date of incident. He stated that accused persons consumed liquor in glass tumbler but same was not seized by the police. He denied that labour used to sleep in the adjoining factory premises. He denied that accused Sant Ram was not present in the factory at the time of offence. He denied that he and deceased Ravinder had a quarrel when he demanded his money back from him and accused Raja Ram arrived there during that quarrel and when accused Raja Ram intervened, he hit on his head with an iron rod and then hit deceased Ravinder. He denied that accused Raja Ram fell down on the ground and he gave beating to deceased Ravinder with the same iron rod SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 20 of 76 PS Bawana and also broke down the pitcher/matka on the head of deceased Ravinder. He denied that accused Raja Ram did not beat deceased Ravinder and that is why he did not intervene. He denied that he did not shift deceased Ravinder to the hospital as he gave beatings to him and killed him. He denied that his clothes were stained with blood of deceased Ravinder for the reason that he killed deceased Ravinder. He denied that he falsely informed Parvinder, Bharat and Karan about the incident and due to his false information, they became witnesses in this case. He denied that no exhibits were lifted from the spot by the police in his presence.

31.1 PW4 Parvinder deposed that he employed deceased Ravinder at Factory No. E-146 and he used to reside at first floor of factory F-36 in night hours where other employee Vineet also resided at first floor. He deposed that on the same first floor, watchmen accused Raja Ram and Sant Ram used to reside with deceased Ravinder and Vineet. He further deposed that accused Raja Ram and Sant Ram used to work as plumber in day hours. He stated that as there was no other factory near their factory and there were incidents of theft, he directed deceased Ravinder and Vineet to lock the factory premises after 09:00 PM.

31.2 He further deposed that on 20.09.2012 at about 07:00 PM, he left for his house and at about 09:00 PM, deceased Ravinder made a call on his mobile number 981183117 informing that accused Raja Ram, who was under

influence of liquor had locked the main gate and refused to come inside the factory. He further deposed that thereafter, deceased Ravinder handed over the phone to accused Sant Ram to whom he advised not to create scene or quarrel with anyone or that he would counsel accused Raja Ram. He further deposed SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 21 of 76 PS Bawana that thereafter, he called Vineet on his mobile No. 09582117540 and asked him to call accused Raja Ram inside the factory and to lock the main gate. He further deposed that after about 1 hour, he received a phone call from Vineet, who made the call from the mobile phone of Bharat and informed him that after 09:00 PM, a quarrel took place between accused persons and deceased. He also informed him that accused persons gave beatings to deceased with iron rod and deceased was lying in an injured condition on the roof of factory. He further deposed that he called Johny @ Karan, who used to work as field worker in his factory and directed him to reach at his factory situated at E-146, Sector-4, DSIDC Bawana, Delhi. As per his direction, Johny @ Karan reached at the factory. He further deposed that he also left for factory and made a called to police at number 100 from his mobile and when he reached there, PCR had already present there.

31.3 He further deposed that he alongwith Vineet, Johny and police went inside the factory and reached at the roof where Ravinder was lying and blood was oozing out from his head. He further deposed that they brought injured Ravinder from the roof of factory to staircase and tried to stop the blood with the use of shirt and also tied his wound with the pants. He further deposed that injured was taken to MV Hospital in a PCR Van where doctor declared him dead.

31.4 He further deposed that after an about half an hour, police brought accused Raja Ram to same hospital, who was having injuries on his head and complainant Vineet informed the police that accused Raja Ram alongwith brother in law accused Sant Ram gave beatings to deceased Ravinder with iron pipe and caused his death. He further deposed that SI Parveen Kumar SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 22 of 76 PS Bawana recorded the statement of Vineet. He further deposed that SI Parveen with police staff and Vineet went to the spot. He also reached at the spot on his motorcycle. He further deposed that one police official brought accused Raja Ram @ Kalu at the spot after his medical examination. He further deposed that mobile no. 9211982426 was registered in the name of his brother Lalit Kumar and mobile No. 08860957861 was registered in his name which was being used by his employee Johny @ Karan.

31.5 He further deposed that exhibits, his clothes, clothes of Vineet, clothes of accused Raja Ram and mobile phone of accused Sant Ram were seized by the police. He further deposed that accused Raja Ram was arrested, his disclosure statement was recorded and he pointed out the place where he threw the iron pipe and got recovered the same from a vacant plot. He correctly identified the accused and case property during his deposition.

31.6 During his cross examination done on behalf of accused persons, he stated that accused Raja Ram and Sant Ram were not his employees. He stated that Vineet was having mobile phone on that day, however, he was not having balance in his mobile phone. He stated that he did not personally check the mobile phone of Vineet to find out whether mobile phone of Vineet having balance or not. He denied that Vineet gave an amount of Rs. 5,000/- to Ravinder as a loan and when he demanded back his money, deceased did not return the same and Vineet killed him. He denied that Vineet did not inform him that accused persons gave beatings to deceased and killed him with iron rod. He did not know from where accused Raja Ram was brought to the hospital by the police. He did not make any complaint to police officials regarding behaviour of accused persons prior to incident. He denied SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 23 of 76 PS Bawana that accused persons never quarreled with deceased and Vineet and for the same reason, he did not lodge any complaint to the police. He denied that Vineet did not inform him that accused persons were quarreling with him and deceased and they used to drink liquor and accused persons used to come in late hours to the factory. He denied that he had not complained to Anand Singh i.e., employer of accused persons regarding their behaviour. He denied that Vineet was quarreling with deceased Ravinder and at the same time, accused Raja Ram intervened and tried to save deceased , Vineet gave an iron rod blow on the head of accused Raja Ram.

WITNESSES OF INVESTIGATION 32.1 PW13 HC Azad Singh deposed that on 20.09.2012 on receipt of DD No. 21PP regarding quarrel, he alongwith Ct. Jaideep went to the spot where he came to know that injured was already taken to hospital by PCR van.

He further deposed that on receipt of information, he alongwith Ct. Jaideep went to hospital on motorcycle and on the way near Gol Chakkar of E-Block, accused Raja Ram @ Kalu (name was later on revealed) started running on seeing the police. He further deposed that Ct. Jaideep ran after him and apprehended him. Accused Raja Ram was under the influence of liquor and his clothes were blood stained. He further deposed that on interrogation, he told that he and his brother in law i.e., accused Sant Ram gave beatings to deceased at the spot and in the quarrel, he also received injuries. He further deposed that he sent Ct. Jaideep to MV Hospital with accused Raja Ram in a TSR and he remained at the spot for its supervision. He further deposed that around 12:30 AM, Ct. Jaideep returned back to the spot alongwith accused Raja Ram, he was accompanied by Chowki In charge SI Praveen Kumar, Vineet Kumar, Inspector Vivekanand and SHO Bawana as they had received information from SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 24 of 76 PS Bawana duty Constable of MV Hospital vide DD No. 22.

32.2 At the pointing out of Vineet Kumar, SI Praveen Kumar prepared the site plan. He further deposed that at the corner in front of bathroom on the roof of factory, lot of blood was lying and blood stained clothes were also lying on the first floor. Slippers were lying near the staircase and mobile phone was found lying on the table at first floor. He further deposed that SI Praveen Kumar prepared rukka and handed over the same to Ct. Ashok for registration of FIR. At about 03:30 AM, Ct. Ashok returned back at the spot and handed over copy of FIR and original rukka to IO. He further deposed that crime team also came at the spot, who inspected the scene of crime and clicked the photographs. He further deposed that exhibits i.e., broken piece of pot, earth control piece of pot, blood stained pieces of floor of the roof, earth control of the floor of roof, slippers of make flight No. 9, broken piece of brick with mark 'R' with sign of 'Swastik' were seized from the roof. He further deposed that exhibits i.e., two sandals, two blood stained shirts and one mobile phone alongwith SIM were seized from the first floor.

32.3 He further deposed that accused Raja Ram was interrogated and he gave his disclosure statement and got recovered one iron pipe having blood stains from vacant land in front of F-37, Sector-4, DSIDC, Bawana which was under construction. He further deposed that IO seized the iron pipe after preparing its sketch and prepared site plan of the place of recovery. Accused Raja Ram was arrested and his personal search was conducted and during personal search Rs. 20/-, black purse, I card and visiting card were recovered. He further deposed that complainant Vineet Kumar and Parvinder Kumar also handed over their blood stained clothes which were seized by IO. SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 25 of 76 PS Bawana 32.4 He further deposed that during investigation blood stained clothes i.e., T-shirt half sleeves and jeans of accused Raja Ram @ Kalu were seized. He correctly identified the case properties during his deposition.

32.5 During cross examination done on behalf of accused persons he stated that 5-7 persons were present at the scene of crime, who informed that injured had been removed to hospital by PCR van, however, they were not aware exactly as to what had happened and who sustained injury and who caused injury. He stated that the distance between the scene of crime and the place where accused Raja Ram was apprehended was about 400-500 yards. He denied that accused Raja Ram did not run away on seeing the police and he did not confess about the commission of crime. He denied that site plan was not prepared at the instance of Vineet Kumar. He stated that in his presence, IO did not record statement of any public person, who were present outside the said factory.

33.1 PW18 Ct. Kuldeep Jakhar deposed that on 31.10.2015 he joined the investigation with Inspector Vivekanand and went to the court of the then Ld. MM where accused Santram surrendered. He further deposed that accused Sant Ram was interrogated and arrested vide arrest memo which is Ex. PW18/A, his personal search was conducted vide personal search memo which is Ex. PW18/B and recorded his disclosure statement which is Ex. PW18/C. 33.2 He further deposed that IO moved an application for TIP of accused Sant Ram before Ld. MM, however, accused refused to join the TIP proceedings.

SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 26 of 76 PS Bawana 34.1 PW21 Ct. Ashok Kumar deposed on the lines of PW13 HC Azad Singh as he joined the investigation with SI Praveen Kumar, who received DD no. 22 PP regarding Ravinder s/o Surat Singh brought dead in MV Hospital.

34.2 During cross examination done on behalf of accused persons, he stated that statement of Vineet Kumar was recorded at the spot where he informed the entire incident to the IO in his presence. He stated that SHO was present when statement of Vineet Kumar was recorded in the hospital. He denied that SI Praveen did not inspect the spot in his presence and no blood was found at the corner in front of bathroom at the roof of factory No. F-36. He stated that when he returned to the spot after getting the FIR registered, crime team was present on the spot. He denied that no exhibits were lifted, sealed and seized from the spot in his presence. He stated that no public person was present on the spot except Parvinder. He denied that no recovery was affected at the instance of accused Raja Ram and he did not give any disclosure statement.

35.1 PW32 Ct. Jaideep deposed that on the lines of PW13 HC Azad Singh.

35.2 During cross examination done on behalf of accused persons he stated that public persons were present at the spot, however, no enquiry was made from them by the IO. He stated that they remained at the spot for about 10 minutes and no investigation was done by the IO during the said 10 minutes. He stated that when accused Rajaram was apprehended, he was khoon se lathpath, however, he could not say whether there were visible injury marks on his person. He denied that accused Raja Ram was present at the spot SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 27 of 76 PS Bawana of incident itself and he had not tried to escape on seeing them. He denied that accused Raja Ram was got discharged from the hospital forcibly in connivance with doctors. He stated that no articles/exhibits were seized or sealed in his presence from the spot.

36.1 PW33 SI Praveen deposed that on 20.09.2012 on receipt of DD No. 22PP, at around 11:55 PM, he alongwth Ct. Ashok reached at Maharishi Valmiki Hospital where he collected MLC of Ravinder, who had been declared as brought dead by concerned doctor. He further deposed that one Kallu @ Raja Ram was also found admitted in the hospital and Ct. Jaideep was present there to keep an eye on him.

36.2 He further deposed that he made efforts to trace eye witnesses of the incident and one Vineet Kumar met him in the hospital itself, who claimed himself to be an eye witness of the incident. He made enquiries from Vineet Kumar and recorded his statement. He further deposed that in the meantime, SHO PS Bawana and Inspector Vivekanand also reached the hospital and made enquiries from him and instructed him to reach at the place of occurrence.

36.3 He further deposed that he alongwith Ct. Ashok and complainant Vineet reached at the spot i.e., F-36, Sector-4, DSIIDC, Bawana Delhi where complainant Vineet took him to the roof of F-36 and showed him the place of occurrence. He further deposed that lot of blood was lying in front of bathroom at the roof and some blood stained clothes were lying at the first floor. He further deposed that HC Azad Singh was already present there, who had been deputed there for taking care of the spot. He further deposed that he endorsed statement of complainant Vineet Kumar and prepared rukka which is Ex. SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 28 of 76 PS Bawana PW33/1 and handed over the same to Ct. Ashok, who went to PS and got the FIR registered.

36.4 He further deposed that in the meantime, SHO PS Bawana and Inspector Vivekanand also reached at the spot. At around 02:00 AM, crime team reached at the spot and inspected the spot and photographed it. He further deposed that when crime team was inspecting the spot, Ct. Jaideep reached there alongwith accused Raja Ram @ Kallu. At about 03:30 AM, Ct. Ashok returned at the spot alongwith copy of FIR and original rukka and handed over the same to Inspector Vivekanand as further investigation was marked to him.

36.5 He further deposed that Inspector Vivekanand made enquiries from complainant Vineet Kumar and prepared site plan of place of occurrence at his instance. Exhibits i.e., blood lying in front of bathroom, some blood stained piece of matka lying at the roof, one control piece of matka, blood stained floor of roof, control piece of floor of roof, one chappal lying in front of bathroom, one piece of brick lying on the roof, two sandles make campus, two blood stained shirts were seized from first floor.

36.6 He further deposed that one mobile phone make MTS was lying in the room at first floor of F-36 was also seized. Blood stained shirt of Parvinder Kumar and blood stained half sleeves T-shirt of Vineet were also seized. He further deposed that accused Raja Ram @ Kallu was arrested after interrogation. During interrogation accused Raja Ram @ Kallu disclosed that he threw the iron rod used by him in the commission of offence in a vacant plot of land near F-38 & F-39 and led the police team there and got recovered an iron pipe from the bushes. He further deposed that blood stained t-shirt and SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 29 of 76 PS Bawana pants worn by accused Raja Ram at the time of offence were seized.

36.7 He further deposed that on 22.09.2012 on the instructions of IO, he went to BSA Hospital as some inquest papers had been handed over to him by the IO. He met concerned doctors for getting conducted postmortem on the dead body of deceased Ravinder vide request which is Ex. PW33/2. He further deposed that Ct. Jaideep also reached at mortuary Dr. BSA Hospital alongwith dead body of deceased Ravinder which he brought from mortuary of SGM Hospital, Mangol Puri. In the meantime, IO Inspector Vivekanand also reached in mortuary at Dr. BSA Hospital.

36.8 He further deposed that after postmortem, dead body was handed over to Sh. Aniurdh, brother of deceased and complainant Vineet. He further deposed that on 25.09.2012 on the instructions of IO, he went to mortuary Dr. BSA Hospital and met dealing clerk Surender, who handed over sealed pullanda containing clothes of deceased Ravinder and one white sealed envelope containing blood of deceased in gauze and he seized the same. He correctly identified accused and case property during his deposition.

36.9 During cross examination done on behalf of accused persons he stated that accused Raja Ram was also admitted in hospital as he received injuries. He stated that Vineet did not give his statement in his own handwriting. He denied that he did not ask Vineet to give his statement in his own handwriting as Vineet did not give his statement at hospital and his statement was later on recorded to falsely implicate the accused persons. He denied that he did not ask the doctor and other hospital staff to sign the statement or rukka as no rukka was prepared at hospital and same was SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 30 of 76 PS Bawana prepared later on. He stated that they left the hospital at about 01:00 AM and reached at the spot at about 01:10 AM. During their presence at the hospital, he did not arrest accused Raja Ram and accused Raja Ram was arrested at about 05:30 AM at the spot. He stated that he could not tell whether crime team had lifted the finger prints/chance prints from the spot. He could not tell whether signature of complainant Vineet was taken on site plan or not. He stated that no public persons were present at the place of recovery of iron pipe. He denied that in order to save himself, Vineet Kumar concocted a false story and projected himself as an eye witness and it was Vineet, who gave beatings to deceased Ravinder as there was was money dispute between them.

37.1 PW34 Inspector Vivekanand, being the investigating officer, deposed about the investigation carried out by him. He deposed on the lines of PW33 SI Praveen and PW18 Ct. Kuldeep Jakhar.

37.2 He exhibited seizure memo of blood sample of accused as Ex. PW34/A, dead body identification statement of relatives of deceased as Ex. PW34/B, form 25.35 as Ex. PW34/C, PCR form as Ex. PW34/D. 37.3 During cross examination done on behalf of accused Sant Ram, he stated that he did not record statement of Vineet in the hospital. After registration of case, he recorded statement of Vineet under section 161 CrPC at about 12:30 PM on 21.09.2012. He stated that statement of Vineet was recorded by SI Parveen Kumar in hospital and rukka was sent from the spot. He stated that no handwritten statement of Vineet was taken by him during the course of investigation. He stated that worn clothes of Vineet were neither seized by SI Parveen nor by any doctor in the hospital in his presence and he SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 31 of 76 PS Bawana seized the blood stained clothes of Vineet at the spot on 21.09.2012. He stated that no chance prints or finger prints and foot prints were found at the scene of crime. He stated that site plan was prepared at the instance of complainant Vineet on 21.09.2012 and he signed the same. He stated that there was only one mobile phone of MTS being used by accused Sant Ram and Raja Ram. He denied that accused Sant Ram was using his own separate mobile phone and he intentionally did not obtain the CDR of mobile phone of accused Sant Ram as he was not present at the spot at the time of incident.

37.4 During cross examination done on behalf of accused Raja Ram he stated that accused Raja Ram also sustained injuries and he was medically examined and MLC was prepared in the hospital, however no FIR was registered qua the MLC of accused Raja Ram. He stated that blood was lifted from the terrace in front of bathroom. He stated that blood stained prints of accused Raja Ram were not lifted by the crime team from the clothes of deceased and from place of incident. He stated that no blood stained finger prints were found on the clothes of accused Raja Ram. He stated that blood stains were also found on the brick and same was sent to FSL, however, he did not see any finger print on the said brick. He denied that accused Raja Ram did not commit murder of deceased Ravinder and it was Vineet who committed murder of Ravinder. He denied that in order to save Vineet in the present case, he had falsely arrested accused Raja Ram and he did not record the statement of other factory workers as accused Raja Ram did not commit murder of deceased.

38. Vide statement dated 17.03.2016 accused persons admitted MLC No. 13008 dated 20.09.2012 of accused Raja Ram @ Kallu as Ex. PX-1, SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 32 of 76 PS Bawana MLC No. 13011 dated 21.09.2012 of accused Raja Ram @ Kallu as Ex. PW-2, Certificate under section 65B of Evidence Act with regard to CDR of mobile No. 9910726675 alongwith CAF, CDR and other documents of Jyoti as Ex. PX3 and dead body identification memo dated 22.09.2012 by PW Anirudh as Ex. PX4.

STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C 39.1 After closure of PE, statement of accused was recorded u/s 313 Cr.P.C. on 06.10.2023, wherein they denied all the incriminating evidences put to them. They stated that they have been falsely implicated in this case.

39.2 Accused Sant Ram stated that he was working in a factory near to the factory where the incident took place. He heard the noise of public persons on the day of incident and thereafter, he came out from the factory and when he visited at the spot, he found that his relative Raja Ram (co-accused) was lying in pool of blood and one another person namely Ravinder was also lying there. One person namely PW3 Vineet was present at the spot and when he enquired about the injuries caused to Raja Ram (co-accused), he told that he gave injuries to Raja Ram as Raja Ram was trying to pacify the quarrel took place between him and Ravinder (deceased). He told him that he will inform about the incident to the authority, he threatened him to face the dire consequences and in order to save himself, PW3 Vineet falsely named him in the present case and projected himself as an eye witness of the case. He was not present at the spot at the time of incident.

39.3 Accused Raja Ram stated that PW3 Vineet and Ravinder (deceased), who were quarrelling with each other and he tried to pacify the SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 33 of 76 PS Bawana quarrel between them but PW3 Vineet was very aggressive and he caused multiple injuries to Ravinder (deceased) and when he tried to save Ravinder, Vineet caused injuries on his head and thereafter, he became unconscious and after some hours when he became conscious, he found that police officers were present in the hospital where he was got admitted. He did not cause injury to Ravinder. PW3 Vineet gave false statement to the police in order to save himself as he caused injuries to deceased Ravinder. PW3 Vineet and Ravinder had some dispute in respect of Rs. 5,000/-. On account of the same, PW3 Vineet and Ravinder got into a fight.

Accused persons opted not to lead defence evidence.

40. Thereafter, matter was fixed for final arguments.

ARGUMENTS

41. I have heard Ld. Addl. PP for State and Sh. Gajraj Singh, Ld. Counsel for accused Santram and Sh. Harsh Gattani, Ld. Counsel for accused Raja Ram.

42. It was argued by Ld. Addl. PP that the allegations levelled against the accused persons are of serious nature. They committed murder of a deaf person as they were habitual drinkers and when he objected for their conduct, they used to fight with the deceased and also abused him. On the date of incident, accused Raja Ram went out of the factory and the main door of the factory was locked inside by the deceased as per directions of his employer PW4 Parvinder. Accused Sant Ram was present in the factory while accused Raja Ram refused to came inside despite request made by PW3 Vineet as he was heavily drunk on that day. After some time, when Raja Ram came back, SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 34 of 76 PS Bawana deceased refused to open the gate. PW3 Vineet asked accused Raja Ram to come inside the factory from the adjacent roof. Accused Raja Ram got furious upon the deceased and he attacked the deceased when he was coming downstairs from roof. In retaliation deceased injured Raja Ram with a brick and thereafter, both accused persons attacked the deceased. Accused Raja Ram attacked him with an iron rod multiple times on his vital parts whereas co- accused Sant Ram smashed a matka on his head. The attack was so ferocious that deceased could not survive and he was declared brought dead in hospital. PW3 Vineet tried to save him but he could not do so. He has thoroughly supported the case of the prosecution during his testimony narrating the whole incident culminating into the death of deceased Ravinder. Not only police officials but PW3 and PW4 have deposed about the investigation carried out by the police at the spot and collection of exhibits from there. Therefore, prosecution has proved its case against the accused persons to the hilt that they attacked the deceased with common intention to commit his murder and they did so successfully. Accused Raja Ram also tried to destroy the evidence by throwing the weapon of offence which subsequently got recovered during investigation. Hence, they are liable to be convicted under section 302/201/34 IPC accordingly.

It was further argued that all the police officials have clearly proved the chain and the manner of investigation and merely because the witnesses are police officials their testimony cannot be disbelieved and for this reliance is placed on the case of Girija Prasad Vs. State of M.P. (2007) 7 SCC

625. 43.1 Sh. Gajraj Singh, Ld. counsel for accused Sant Ram and Sh. Harsh SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 35 of 76 PS Bawana Gattani, Ld. Counsel for accused Raja Ram in oppugnation, have argued that this is a false and concocted case hoisted against the accused persons. The deceased was murdered by PW3 Vineet himself as he had a money transaction with deceased and deceased was not returning his Rs. 5000/- which resulted into a scuffle and PW3 Vineet thrashed him badly. When accused Raja Ram tried to save him, Vineet also injured him. Accused Sant Ram was not involved in the incident and he reached at the spot after hearing commotion. When Sant Ram stated that he would report the matter to the police against Vineet, he was also falsely implicated in the FIR by Vineet.

43.2 It is stated that investigation is faulty and the main culprit has been scot free by the IO in connivance with PW4 Parvinder. Police did not investigate the matter as to how come Raja Ram received injuries and by which weapon, the injuries were inflicted upon him. It is stated that the weapon of offence i.e., iron rod cannot be said to be a deadly weapon by any stretch of imagination and moreover, even if it is believed that incident so happened even then there is no indication that there was any pre meditation on the part of accused persons to commit murder of the deceased. They were not armed with any deadly weapon and the scuffle started as a free fight. When deceased attacked accused Raja Ram with a brick, he fetched an iron rod from the factory itself which reflects that he had not made any preparation to commit the murder. The incident occurred at the spur of the moment in the heat of passion and therefore, there is no pre-meditation or common intention proved by the prosecution against the accused persons. It is stated that prosecution has failed to prove its case under section 302/201/34 IPC against the accused persons. It is stated that without prejudice to their defence even if the entire prosecution case is accepted as it is even then, prosecution has SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 36 of 76 PS Bawana proved allegation under section 304(II) IPC and not under section 302 IPC.

44. I have heard the arguments at length and perused the entire record. I have also perused the case laws filed on behalf of accused persons.

FINDINGS

45. The accused Raja Ram and Santram have been charged for the commission of offences punishable under Section 302/201/34 IPC.

46. The relevant sections are reproduced as under:

SECTION 302 IPC Punishment for murder.--Whoever commits murder shall be punished with death, or 1[imprisonment for life], and shall also be liable to fine.

SECTION 201 IPC Causing disappearance of evidence of offence, or giving false information to screen offender.-- Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any infor- mation respecting the offence which he knows or believes to be false; if a capital offence.--shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; if punishable with imprisonment for life.--and if the offence is punishable with 1[imprisonment for life], or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 37 of 76 PS Bawana which may extend to three years, and shall also be liable to fine; if punishable with less than ten years' imprisonment.--and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.

SECTION 34 IPC Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.]

47. It is a settled law of criminal jurisprudence that a person is believed to be innocent till the guilt is proved against him. This principle is called The Presumption of Innocence. In another words, the accused is entitled to take advantage of reasonable doubt in respect of his crime. The principle finds its genesis in the Declaration of Human Rights under Article 11 Section 1 incorporated by the United Nations in 1948. It is also mentioned in the European Convention for the Protection of Human Rights in Article 6 Section 2 and United Nations International Covenant on Civil and Political Rights under Article 14, Section 2.

Presumption of Innocence is a re-statement of the rule that in criminal matters the prosecution has the burden of proving guilt of the accused in order to be convicted of the crime of which he is charged.

In Chandrashekhar Vs. State of Himachal Pradesh decided on 06.07.2018 relying on judgment of Data Ram Singh Vs. State of UP passed by the Hon'ble Supreme Court on 06.02.2018, it was held that:

SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 38 of 76 PS Bawana "the freedom of an individual is utmost important and cannot be curtailed specially when guilt if any, is yet to be proved. It is settled law that till such time guilt of a person is proved, he is deemed to be innocent........ A fundamental postulate of criminal juris prudence is a presumption of innocence meaning thereby that a person is believed to be innocent until found guilty..........

Thus, the inference which is culled out from the above is that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt.

48. In this backdrop, I proceed to delve upon the evidence adduced on behalf of the prosecution.

DEPOSITION OF EYE WITNESS PW3 VINEET 49.1 It is the case of the prosecution that deceased Ravinder was beaten to death by both the accused persons with the help of an iron rod in the presence of eye witness PW3 Vineet. PW Vineet has been examined and he has thoroughly supported the case of the prosecution and his testimony has already been taken on record in the earlier portion of this judgment and same is not repeated herewith for the sake of brevity.

49.2 Ld. Counsel for accused Raja Ram Sh. Harsh Ghatani has tried to question the credibility of PW3 Vineet by saying that deceased was killed by PW3 Vineet and not by accused persons. The motive assigned to Vineet is that he had some money transaction with the deceased which was the reason for the scuffle between the deceased and Vineet. PW3 Vineet attacked the deceased with an iron rod and when accused Raja Ram tried to save deceased then PW3 Vineet also attacked him with an iron rod on his head that is why Vineet did SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 39 of 76 PS Bawana not inform the police at number 100 soon after the incident although he was carrying his mobile at that time. Therefore, the actual offender in this case is PW3 Vineet and not the accused persons. In addition, it is argued by Sh. Gajraj Singh, Ld. Counsel for accused Sant Ram that he was not even present at the spot and there is no evidence against him apart from tainted testimony of PW3 Vineet.

49.3 It is a matter of record that accused Raja Ram did not call the police to inform about the incident. If he was an eye witness and was assaulted by PW3 Vineet then it was imperative upon him and coaccused Sant Ram to call the police and gave their statements against PW3 Vineet. During cross examination of PW3 Vineet suggestions have been given to him that he had taken Rs. 5,000/ as a loan from deceased and that was the bone of contention between him and deceased Ravinder. Apart from giving this bald suggestion there is nothing on record to corroborate this defence. It is not clarified as to when Rs. 5,000/ were taken by Vineet and how come accused persons came to know about this transaction.

49.4 PW3 Vineet is not the solitary witness, who is supporting the case of the prosecution. He has deposed that accused Raja Ram left the factory in an inebriated condition and this fact was informed by him to PW4 Parvinder.

PW4 Parvinder has corroborated this fact that he was informed by Vineet and Ravinder about the conduct of accused Raja Ram. When Raja Ram came back to the factory, deceased Ravinder refused to open the gate and deceased stated to him to enter the factory from the adjacent property in the same manner as he SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 40 of 76 PS Bawana had gone out. Accused Sant Ram was inside the factory at that time. Accused Raja Ram came to the roof of the factory and he gave keys of the lock of the roof to accused Sant Ram as it was locked from inside. After entering the factory from the roof, accused Raja Ram met the deceased on staircase and he started assaulting with fist and kick blows. Deceased Ravinder retaliated and caused an injury on the head of accused Raja Ram with the help of a brick. Accused Raja Ram got furious but Vineet tried to intervene but he could not do so. Accused Raja Ram took out an iron rod from his room at first floor and both accused persons chased down the deceased at the roof of the factory.

49.5 Accused Raja Ram started hitting the deceased on his head with iron rod whereas accused Sant Ram smashed a pitcher on his head. Accused Raja Ram gave multiple blows on his head and both accused persons fled away from the spot. Apprehending danger, PW3 Vineet also fled away from the spot and he went to another factory and from there he informed PW4 Parvinder about the incident from the mobile of one person namely Bharat. PW4 Parvinder asked Vineet to stay there he was directing Johny @ Karan to reach there to sort out the issue. When Johny @ Karan came, he and Vineet went to the spot where they found that deceased was lying in a pool of blood. The testimony of PW3 Vineet is duly corroborated by PW4 Parvinder and PW6 Karan Singh @ Johny and they have also deposed in the same fashion about the sequence of events stated by PW3 Vineet.

49.6 Had it been the case that PW3 Vineet was the assailant then the conduct of accused persons would have been otherwise. After the incident, accused Raja Ram was apprehended by the police near gol chakkar of E SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 41 of 76 PS Bawana Block. His clothes were soaked in blood and he was in drunken condition. Throughout the trial suggestions have been given to prosecution witnesses that accused Raja Ram was lying in injured condition at the spot. The falsity of this defence is clear as accused Raja Ram was apprehended by PW32 Ct. Jaideep and PW13 HC Azad at Gol Chakkar, EBlock. He was got admitted in hospital as he was injured. There are oral testimonies of police witnesses, doctor and complainant that accused Raja Ram was admitted in injured condition by the police which are in contradiction with these alleged defence of accused Raja Ram that he was lying in injured condition at the spot when police reached there. Coaccused Sant Ram absconded and he was arrested later on by the police. If accused persons were the eye witnesses of the murder and PW3 Vineet was the murderer then there was no reason for them to act in this fashion as they did. Accused Santram was having phone with him which was recovered from the first floor of the factory and he could have easily called the police to inform the involvement of Vineet in the murder of deceased. He could have easily took accused Raja Ram to hospital, if they were not at fault during the incident. There is nothing on record that accused Raja Ram stated to the police in hospital that actual offender was Vineet. Therefore, conduct of both accused persons reflect that their defence is based upon an afterthought which lacks logic, probability and evidence.

49.7 As far as non informing of police by PW3 Vineet, it has been explained by him that he was not having sufficient balance in his phone on that day and that is why he could not call the police. This was the reason that he had gone to nearby factory and inform PW4 Parvinder from the phone of Bharat. The explanation given by PW3 Vineet seems to be probable as well as SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 42 of 76 PS Bawana natural when it is considered in totality of the circumstances and his overall conduct. It seems that it is an afterthought cropped up in their mind to caste allegations PW3 Vineet to save their skin in this case but it is apparent that the story of money transaction between PW3 Vineet and deceased is sham and bogus and without any iota of truth in it.

49.7 As far as plea of absence from the spot on behalf of accused Santram is concerned, it is not explained by him as to where he was present at the time of alleged incident, if he was not present at the spot. If an accused is relying upon plea of alibi then he has to explain that he was at some other place when the incident had occurred. In the entire cross examination of PW3 Vineet there is not even a whisper that accused Santram was somewhere else. Moreover, his mobile phone was recovered by the police kept on the table at the first floor of the factory at the time of crime scene inspection which reflects that he was very much present at the time of incident and he fled away after assaulting the deceased. It is also worth mentioning that a suggestion has been given to PW3 that accused persons had liquor in a glass tumbler and same was not sized by the police. It was further suggested that whether the liquor bottle was seized by the police or not. Although, it was not clarified by the police as to what kind of container/utensil, in which the liquor was consumed by the accused persons but these suggestions are reflective of the fact that both accused persons were present in the factory and had consumed liquor over there which is in corroboration of the version of PW3 Vineet. Therefore, I find no merit in the plea put forth on behalf of accused Santram that he was not present at the spot at the time of incident.

49.8 Therefore, it is crystal clear that accused persons were the actual SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 43 of 76 PS Bawana assailants on that day and deceased Ravinder expired on account of injuries suffered by him received from their hands. Accused persons have failed to put any dent on the testimony of PW3 Vineet during his cross examination and it can be safely concluded that the eye witness PW3 Vineet has categorically deposed about the entire incident mentioning all the circumstances, conduct of the accused persons and his testimony is free from blemishes and any major contradictions.

DEPOSITIONS OF PW4 PARVINDER AND PW6 KARAN SINGH @ JOHNY.

50. Another important witness in this case is PW4 Parvinder, who is owner of the factory where the incident took place. He deposed that deceased, PW3 Vineet and both accused persons used to occupy his factory during night time. He had directed deceased and Vineet to lock the factory premises after 09:00 PM. On 20.09.2012 he left the factory around 07:00 PM and around 09:00 PM deceased called on his mobile and stated that accused Raja Ram is under influence of liquor had locked the main gate and refused to came inside the factory. Parvinder had a conversation with coaccused Sant Ram as deceased handed over the phone to him and advised him not to create a scene or quarrel with anyone. PW4 called Vineet on his mobile and asked him to call accused Raja Ram inside the factory. After an hour he received a call from Vineet and he was calling from the mobile of Bharat and informed that around 09:00 PM a quarrel took place between deceased and accused persons and deceased was beaten by the accused persons with iron rod. PW4 called PW6 SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 44 of 76 PS Bawana Johny @ Karan, who was a field worker in his factory. After reaching factory, PW6 informed PW4 that deceased was lying in a pool of blood on the roof of the factory. PW4 also left for the factory and called the police at number 100. Therefore, the version of PW3 qua the entire incident finds corroboration in material particulars with the deposition of PW4. Similarly, PW6 corroborated the version of PW4. All these three witnesses have been thoroughly cross examined by the accused persons but no material contradictions could be extracted which may be of any help to the accused persons. The sequence of events disclosed by these three witnesses is exactly similar. They have proved that accused Raja Ram was drunk on that night and he had gone out of factory. His conduct was informed by the deceased and PW3 Vineet to PW4 Parvinder. PW3 Vineet is an eye witness of the incident, who has thoroughly supported the case of the prosecution as to how deceased was beaten to death by the accused persons. Therefore, the testimony of PW3 Vineet, PW4 Parvinder and PW6 Karan Singh @ Johny are on the same lines and there is nothing on record to suggest that these witnesses had any motive to falsely implicate the accused persons. It is duly proved by the prosecution that the assailants were accused persons only and none else and deceased Ravinder succumbed to injuries caused by them during the incident.

MEDICAL/FORENSIC EVIDENCE 51.1 After being beaten by the accused persons, deceased Ravinder was shifted to MV Hospital, Bawana where he was examined and declared brought dead on 21.09.2012 at 11:21 PM. His postmortem was conducted on 22.09.2012 and on external examination 17 injuries were found present on his SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 45 of 76 PS Bawana body. Out of those 17 injuries, injury No. 1 to 10 individually alongwith internal injuries as well as collectively with other external injuries were found to be sufficient to caused death in the ordinary course of nature. Manner of death was found to be 'homicide'. Injury No. 1, 5 to 10 and 13 were found to be inflicted with the linear blunt object. Significant injuries mentioned in the postmortem report which is Ex. PW22/A are here as under:

1. laceration 3.5 cm x 1 cm x bone deep, obliquely placed, present over the right frontal region of head.

2. contusion 6 cm x 5 cm present over the left eye (black eye).

3. contusion 6 cm x 5 cm present over the right eye (black eye).

4. abrasion 3.5cm x 1.5 cm present over the left temple just lateral to the left eye.

5. laceration 5 cm x 0.5 cm x bone deep, obliquely placed, present over the upper part of back of head to the left of midline.

6. laceration 2.5 cm x 0.5 cm x bone deep, obliquely placed, present over the upper part of back of head below, lateral and parallel to injury No. 5

7. laceration 2 cm x 0.5 cm x bone deep, obliquely placed, present over the middle left part of back of head, lateral to injury No. 6.

8. laceration 1.5 cm x 0.5 cm x bone deep, obliquely placed, present over the middle left part of back of head below and medial to injury No. 7

9. laceration 1.5 cm x 0.5 cm x bone deep, obliquely placed, present over the lower left part of back of head below injury No. 8.

10. laceration 1 cm x 0.5 cm x bone deep, obliquely placed, present over the lower left part of back of head below and lateral to injury No. 9.

51.2 All these injuries were caused with the linear blunt object.

SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 46 of 76 PS Bawana Alongwith the postmortem report diagrammatic representation of injury has also been proved wherein it is clear that injury No. 5 to 10 are on the back portion of the head whereas injury No. 1 to 4 are on front portion. Prosecution has proved the postmortem report through PW22 Dr. Vijay Dhankar, who has deposed that injuries were caused with the linear blunt object like danda/rod etc. IO got recovered the weapon of offence i.e., iron rod at the instance of accused Raja Ram. Therefore, it is proved beyond reasonable doubt that deceased Ravinder expired on account of injuries suffered by him which were caused with a linear blunt object like danda, rod and rod had been seized by the IO at the instance of accused Raja Ram.

51.3 After seizure the exhibits were sent to FSL and the FSL report has been exhibited as Ex. PW28/1. FSL expert examined Ex. 1A (tshirt of deceased), Ex. 2 (blood sample of deceased on gauge), Ex. 6 (cemented piece from scene of crime), Ex. 9 (sandals of accused), Ex. 10A (shirt from scene of crime), Ex. 11 (Tshirt of Vineet), Ex. 12 (shirt of Parvinder), Ex. 13 (metallic pipe) and Ex. 15 A (Tshirt of accused Raja Ram). After examining all these exhibits, she came to a conclusion that DNA profiling from the source of exhibit 1A and 2 are similar with the DNA profiling from the source of other exhibits mentioned above. Meaning thereby, the blood of the deceased was found present on sandals of accused, his Tshirt and metallic pipe i.e., iron rod. This report proves the presence of accused Raja Ram at the spot, the fact that the incident occurred on the roof of the factory and the weapon of offence was the iron rod having blood stains of the deceased over it and same was recovered at the instance of accused Raja Ram.

SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 47 of 76 PS Bawana 51.4 The chemical analysis report also corroborated the oral testimony of PW3 Vineet and PW4 Parvinder that they shifted the deceased to the hospital and in that pursuit their clothes got blood stained. Hence, it can be safely concluded that accused Raja Ram was present at the spot, the incident occurred at the roof of the factory and injuries were caused with an iron rod which were found capable of causing death individually as well as collectively of the deceased. The impact of the injuries were so severe that skull of the deceased got fractured involving the left parietal temporal bones. Therefore, the postmortem report and the chemical analysis report proved by the prosecution have corroborated the ocular testimony of PW3 Vineet that deceased was thrashed by accused Raja Ram alongwith coaccused Sant Ram with an iron rod.

MATERIAL WITNESSES OF INVESTIGATION 52.1 When PW4 Parvinder informed the police at number 100, the information was registered vide PCR form which is Ex. PW34/D and DD entry No. 21 PP was registered which is Ex. PW 26/1 and same was marked to PW13 HC Azad Singh. When he reached at the spot it transpired that victim was already shifted to hospital by the PCR. He alongwith PW32 Ct. Jaideep proceeded towards MV Hospital and on the way they apprehended accused Raja Ram in an injured and drunken condition. Accused Raja Ram was admitted in hospital at 11:46 PM vide MLC No. 3633/12 which is Ex. PW10/A. His breath analyzer test was conducted and 110 mg/100 ml alcohol was found present in his body. The deceased was declared dead at the hospital SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 48 of 76 PS Bawana vide DD no.22 PP which is Ex. PW26/2.

52.2 PW3 Vineet was present in the hospital and on his identification, accused Raja Ram was arrested by the police vide arrest memo which is Ex.PW3/K. His disclosure statement was recorded which his Ex. PW3/M wherein he disclosed that he could get recovered the iron rod. At the instance of accused Raja Ram, iron rod was recovered vide seizure memo which is Ex. PW3/O on 21.09.2012 itself. Clothes of the deceased, accused Raja Ram, PW3 Vineet and PW4 Parvinder were seized without any delay. IO also seized exhibits i.e., sandals of accused Raja Ram and two shirts vide seizure memo Ex. PW3/D from the spot. IO also seized mobile phone of accused Sant Ram from the spot vide seizure memo which is Ex. PW3/E. IO also seized exhibits i.e., broken piece of pitcher, blood stained earth control, earth control, one slipper and one broken brick vide seizure memo which is Ex. PW3/C. The case properties have been seized by the IO instantly to rule out any foul play or planting of case property and in presence of PW3 Vineet and PW4 Parvinder which authenticates the investigation carried by IO. The case properties were deposited in malkhana and subsequently sent to FSL without any doubt that seals were not intact. Prosecution has examined PW13 HC Azad Singh, PW18 Ct. Kuldeep Jakhar, PW21 Ct. Ashok Kumar, PW32 Ct. Jaideep, PW33 SI Parveen and PW34 Inspector Vivekanand. Therefore, the entire chain of investigation done in this case by the IO is duly proved and accused persons have failed to create any dent in the investigation process and recovery of evidence in the form of exhibits.

WEAPON OF OFFENCE SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 49 of 76 PS Bawana 53.1 As per the prosecution's case, accused Raja Ram started assaulting the deceased with fist and kick blows and deceased Ravinder took a piece of brick and caused the injury on the head of accused Raja Ram. Accused Raja Ram was in drunken condition and he got furious after receiving the head injury. He went to his room at first floor and took out an iron rod. Both accused persons chased down the deceased at the roof top of the said factory. Accused Santram smashed a pitcher on the head of deceased whereas accused Raja Ram gave multiple blows with the iron rod and in this fashion, deceased was murdered by them. The iron rod was recovered by the police from the nearby plot located near the spot at the instance of accused Raja Ram. As per FSL result, the iron rod was having blood of the deceased on it which reflects that deceased was beaten by this iron rod only. As per postmortem report, injury No. 1, 5 to 10 and 13 were caused by a linear blunt object i.e., iron rod. Therefore, it is proved on record that iron rod used and got recovered by accused Raja Ram is the weapon of offence in this case.

53.2 Ld. Counsel for accused Raja Ram has argued that iron rod is not a deadly weapon. Ld counsel Sh. Harsh Gattani has relied upon Surain Singh Vs. The State of Punjab Criminal Appeal No. 2284/2009 and Vinod Kumar Vs. State Criminal Appeal 20/2015 decided by Hon'ble Delhi High Court.

53.3 I have gone through all the judgments placed on record by ld. Defence counsel Sh. Harsh Gattani.

53.4 In Surain Singh's case (discussed supra) there was a dispute between two groups and they were present in the court of Executive Magistrate, Faridkot. Suddenly, a quarrel took place after exchange of hot SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 50 of 76 PS Bawana words. Accused Surain Singh took out his kirpan and injured several persons including deceased Harbans Singh. Co-accused Darshan Singh also caused death of the second deceased namely Santa Singh. Hon'ble Supreme Court altered the sentence from section 302 IPC to 304(II) IPC by observing that there was bitter hostility between the groups. It was nothing on record that attack was premeditated or preplanned. It was held that the weapon of offence i.e., kirpan was spiritual tool used by Amritdhari Sikh. The incident occurred at the spur of moment and without intention to causing death. It was held that the conduct of the accused was covered under the exception of grave and sudden provocation. Applying the ratio of Surain Singh's case (discussed supra) to the present case, accused Raja Ram was the attacker but the deceased retaliated in defence and he caused the injury on the head of accused Raja Ram with a brick. Therefore, the exception of 'grave and sudden provocation' is not applicable in this case as accused himself initiated the quarrel and he cannot take benefit of his own wrong. Law is settled that to avail benefit of the exception of grave and sudden provocation, accused must prove that the deceased acted in such a manner that it gave a grave and sudden provocation to the accused and thereafter, he could not control his tamper resulting into the death of the deceased. Exception 4 appended to section 300 IPC is also not applicable to the present case as accused persons acted in a cruel manner by causing 17 injuries upon the deceased. To avail benefit of exception 4 it has to be proved by the accused that he did not take undue advantage or acted in a cruel manner which is not the case under consideration. When the deceased was unarmed at the roof then accused could have avoided unnecessary injury to show that they had no intention to kill him. Accused Raja Ram attacked him in a ferocious manner and that too on his vital and sensitive part of the body with the iron rod numerous time. Therefore, Surain Singh's SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 51 of 76 PS Bawana case (discussed supra) is of no consequence in favour of accused persons as their conduct is not covered under any of the exception discussed in Surain Singh's case.

53.5 In Vinod Kumar's case (discussed supra) Hon'ble Delhi High Court held that an iron pipe is not as deadly as a knife or a gun and are commonly available but in that case no blood could be detected on iron rods and hence, it was held that those rods could not be connected with the offence. In the present case blood of the deceased has been detected on the iron rod and it has been proved that murder was committed by this iron rod only. Therefore, Vinod Kumar's case (discussed supra) is differentiated on the basis of facts.

53.6 In Munna Khan Vs. State (NCT) of Delhi Criminal Appeal 669/2010 decided on 15.01.2013 by Hon'ble High Court of Delhi wherein it was held as under:

"8. Minor discrepancies referred above by the counsel are not material to cause dent in the prosecution case. The Trial Court has dealt with all these contentions in the impugned judgment. Iron rod recovered from the possession of the accused is a deadly weapon and was used to press the neck of the accused. Ingredients of Section 398 IPC are attracted. Iron rod per se may not be a deadly weapon what would make it a deadly is its size/dimensions/design or the manner of its use such as is calculated to or is likely to produce death. In the present case, the iron rod measures 14 Inch in length, thickness 2.5 Inch and its pointed tip 3.5 Inch. It was used by the accused to press complainant's neck to achieve his design. In 'Saligram vs. State of M.P.', 1990 (Supp.) SCC 60, one of the convicts was carrying SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 52 of 76 PS Bawana an iron rod. The other convict was armed with a sword. The Supreme Court observed that both the convicts were armed with deadly weapons."

53.7 Similar view was taken by Hon'ble Delhi High Court in Bijender @ Naushad Vs. State Criminal Appeal No. 414/13 decided on 13.02.2014 wherein it was held as under:

"17. Coming to the question as to whether the iron rod can be said to be a deadly weapon or not, admittedly, the expression deadly weapon has not been defined anywhere in the Code. The natural and grammatical meaning of 'deadly weapon' would be a weapon which can cause death of a human being. It has come in the evidence that the iron rod which the appellant was having in his hand had pointed ends on both sides. The length of the iron rod was 53 cms. as noted in the seizure memo Ex.PW2/A. In my view, though every iron rod may not qualify as a deadly weapon, an iron rod which is 53 cms long and has pointed ends on both sides can certainly cause death of a human being, if it is used as a weapon of offence at a vital part of the body such as head of a human being. In Saligram Vs. State of M.P. 1990 Supp(1) SCC 60, one of the appellants before the Apex Court was carrying an iron rod whereas the other one was armed with a sword. The Hon'ble Apex Court inter alia observed that they were armed with deadly weapons, the implication of the judgment being that iron rod could also be a deadly weapon. In Thoti Manohar Vs. State of Andhra Pradesh (2012) 7 SCC 723, two of the appellants were armed with iron rods whereas one was armed with a billhook when they trespassed into the house of the deceased. It was observed that the weapons they carried were lethal in nature. Therefore, the appellant who used the aforesaid iron rod at the time of commission of robbery has rightly been convicted under SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 53 of 76 PS Bawana Section 397 of the Code."

53.8 Applying the ratio of Bijender's case and Munna Khan's case (discussed supra) to the present case, it can be safely concluded that iron rod was used by accused Raja Ram is a 'deadly weapon' on the basis of the injuries inflicted by him upon the deceased in such a manner and that too at most sensitive and vital part of the body. Any weapon used by accused during the commission of an offence, can be termed as deadly depending upon the circumstances and the manner in which the weapon has been used by the accused. For example, a piece of stone can be used as a 'deadly weapon', if someone's head is smashed by that stone 20 times during the incident. 20 injuries with a piece of stone and that too on a vital and sensitive organ of the body may cause death and in that scenario the piece of stone would be termed as deadly but if only one injury is caused by that stone and may be on head then it won't come in the category of 'deadly'. If an iron rod is used only once or twice and that too on non vital parts of the body then it would be out of purview of 'deadly weapon'. On the other hand, if that iron rod is used 17 times including 11 times on vital and sensitive organ like head then the rod would be a 'deadly weapon' considering the severity, multiplicity of blows and the force used by the accused during the offence. Considering the above discussion, I am of the considered view that the iron rod used by accused Raja Ram was used as a 'deadly weapon' by him and it was instrumental in causing death of the deceased.

ROLE OF CO-ACCUSED SANTRAM 54.1 It is argued on behalf of accused Santram that he did not inflict SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 54 of 76 PS Bawana any injury upon the deceased which could have been fatal for him. There is no evidence that he shared common intention with co-accused Raja Ram to inflict fatal injury to him. PW3 Vineet has simply stated that Santram smashed a pitcher on the head of the deceased. As per postmortem report injury No. 1 to 10 are sufficient enough to cause the death in the ordinary course of nature and there is no clarity as to whether any of these injury was caused by pitcher. Apart from this act of smashing the pitcher on his head, there is no role assigned to accused Santram by any of the prosecution witness. Therefore, it cannot be presumed that he shared common intention with co-accused Raja Ram to commit murder of the deceased.

54.2 Deliberating over the application of section 34 IPC, Hon'ble Supreme Court in case titled as Ram Tahal and Anr. Vs. State of U. P. 1972 AIR 254 held that there is no doubt that a common intention should be anterior in time to the commission of the time showing a pre arranged plan and prior concert. It is difficult in most cases to prove the intention of an individual and it has to be inferred from the act or conduct or other relevant circumstances. This inference can be gathered by the manner in which the accused arrived at the spot and mounted the act, the determination and concert with which the beating was given or the injuries caused by one or some of them. The acts done by others by assisting those causing injuries, the concerted conduct subsequent to the commission of offence would help in determining the common intention. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted.

54.3 In Thoti Manohar Vs. State of A. P. 2012 AIR SCW 3752 SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 55 of 76 PS Bawana Hon'ble Supreme Court again reiterated the scope of section 34 IPC for deciding the liability of co-accused in a criminal matter and held as under:

"34. In Rajesh Govind Jagesha v. State of Maharashtra[15], a two-Judge Bench has held that the existence of common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention, even the participation in the commission of the offence need not be proved in all cases.

35. In Bishna alias Bhiswadeb Mahato and others v. State of West Bengal[16], it has been held that for the purpose of attracting Section 34 of the IPC, specific overt act on the part of the accused is not necessary. He may even wait and watch. Inaction on the part of an accused may sometime go a long way to achieve a common intention or an object with others.

36. In Manik Das and others v. State of Assam[17], it has been held as follows:-

"The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 56 of 76 PS Bawana to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899). Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused."

54.4 In Thoti Manohar's case (discussed supra), Hon'ble Apex Court convicted the accused despite the fact that he did not inflict any injury upon the accused but he was held liable for the offence by virtue of section 34 IPC. The role of accused Santram is that he smashed a pitcher on the head of the deceased and that is an "overt act" on his part during the commission of offence. Accused Santram is brother-in-law of accused Raja Ram and he actively participated in the commission of offence. When accused Raja Ram received injury from the brick, both accused chased down the deceased and he was surrounded at the roof. Deceased was unarmed at that time and then accused Santram smashed the pitcher on his head whereas co-accused Raja Ram gave several blows on his head with the help of an iron rod. Therefore, their common intention to commit murder of deceased Ravinder is writ large as per their conduct as they both actively participated in the commission of offence and are liable for each other's conduct by virtue of section 34 IPC.

54.5 As per Section 8 of Indian Evidence Act any previous or subsequent conduct of any party would be relevant if it influences or is influenced by any fact in issue or relevant fact. The court has to consider the previous and subsequent conduct of accused Santram. It is a matter of record SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 57 of 76 PS Bawana that complaint was made by PW3 and deceased against both the accused persons as they used to came late in factory in drunken condition. Therefore, both accused had grudge against PW3 Vineet and deceased and their relation with the deceased were strained. PW4 Parvinder had deposed that he had a telephonic conversation with accused Santram on the date of incident just before the incident and he advised him not to quarrel with anyone. Accused Santram actively participated in the incident which is squarely covered under section 34 IPC. Post incident he absconded and he surrendered before the court on 31.10.2015. Therefore, his conduct post incident also suggestive of his direct involvement in the incident.

54.6 In Sidharth @ Manu Sharma Vs. State NCT of Delhi (2010) 2 SCC (Cri) 1385, it has been held by Hon'ble Supreme Court as under:

"thus, it has been proved beyond reasonable doubt that accused Manu Sharma absconded after the incident which is a very relevant conduct under section 8 of Evidence Act."

The conduct of accused Santram in the present case is exactly similar when he absconded after the incident which points out towards his guilt and his involvement in the incident. Hence, I do not find any merit in the argument of Ld. Counsel that accused Santram did not share common intention with co-accused Raja Ram to commit murder of deceased Ravinder.

MURDER OR CULPABLE HOMICIDE NOT AMOUNTING TO MURDER 55.1 It is argued on behalf of accused persons that even if it is believed that accused persons caused injuries upon deceased, even then they are not liable to be convicted for committing murder and to be punished under section SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 58 of 76 PS Bawana 302 IPC. It is argued that there is no 'premeditation' proved by the prosecution on the part of accused persons which reflects that they had no intention to eliminate the deceased. It is pointed out that going by the version of PW3 Vineet, accused Raja Ram gave fist and kick blows to the deceased on the staircase. If accused Raja Ram had the intention to commit his murder then he could have easily procured a deadly weapon which would have been a reflection of his 'intention' to commit murder. In fact, it was a free fight between Raja Ram and deceased but the deceased inflicted an injury on the head of accused Raja ram with the help of a brick. After receiving injury on his head accused Raja Ram got furious and he lost his control in the 'heat of passion'. He allegedly thrashed the deceased with the help of an iron rod with the purpose to teach him a lesson only and not to finish him off. Therefore, the conduct of accused Raja Ram is squarely covered under exception 4 appended with section 300 of IPC and accused cannot be convicted under section 302 IPC.

55.2 Ld. counsel Sh. Harsh Gattani for accused Raja Ram has relied upon Nadodi Jayaraman Vs. State of Tamil Nadu 1992 SUPP. (3) SCC 161 and Satish Narayan Swant Vs. State of Goa (2009) 17 SCC 724 in support of his argument.

55.3 Ld. Counsel Sh. Gajraj Singh for accused Sant Ram has relied upon case titled as Atul Thakur Vs. State of Himachal Pradesh etc. Criminal Appeal No. 522523 of 2016 of Hon'ble Supreme Court, Naval Kishore Vs. State (Government of NCT of Delhi) Criminal Appeal No. SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 59 of 76 PS Bawana 1747/2014, Mani Raj Rai Vs. State of Sikkim, Criminal Appeal No. 05/2013, Narender Vs. State Criminal Appeal No. 461/15, Surender Kumar Vs. Union Territory Chandigarh (1989) AIR 1094 of Hon'ble Supreme Court, Sayaji Hanmant Bankar Vs. State of Maharashtra Criminal Appeal No. 457/2007 Supreme Court, Harish Chander @ Suraj Vs. State Criminal Appeal No. 482/2015, Vinod Vasant Mahadik Vs. State of Maharashtra Criminal Appeal No. 1252/2005 Hon'ble High Court, Harender Singh Vs. State of Delhi Criminal Appeal No. 25/2004 of Delhi High Court, Budhi Singh Vs. State of HP Criminal Appeal No. 1801/2009 Hon'ble Supreme Court and Jagtar Singh @ Jagga @ Ganja Vs. State of Delhi Criminal Appeal No. 134/2009 Delhi High Court in support of his arguments.

55.4 At the fag end of arguments, Ld. Counsels have tried to take shelter under exceptions 1 and 4 provided under section 300 IPC. Since, section 300 IPC is to be discussed in detail, hence, it is reproduced with relevant exceptions here as under:

"Section 300. Murder Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--

2ndly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--

3rdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-- SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 60 of 76 PS Bawana 4thly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Illustrations. ------

Exception 1.--When culpable homicide is not murder.--Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos:--

First.--That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly.--That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly.--That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation.--Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

Illustrations. --------

Exception 2.-- ------

Illustration -------

Exception 3.-- ------

Exception 4.--Culpable homicide is not murder if it is committed SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 61 of 76 PS Bawana without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.

Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault.

Exception 5.-- ------"

At this stage, it is imperative to note the relevant case laws on the point of Section 302 IPC and the essential ingredients of 'intention' of knowledge of the act to cause culpable homicide amounting to murder.

55.5 In the case of Basdev Vs. State of Pepsu AIR 1956 SC 488 at page 490 the following observations have been made:

"Of course, we have to distinguish between motive, intention and knowledge. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things. Even in some English decisions, the three ideas are used interchangeably and this has led to a certain amount of confusion."

55.6 In the case of State of Andhra Pradesh v Rayavarapu Punnayya & Anr 1977 AIR SC 45 Hon'ble Apex Court noted the most important distinction between the two provisions, and their differing, but subtle distinction and held as under:

SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 62 of 76 PS Bawana "12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice- versa. Speaking generally, "culpable homicide" sans"special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognizes three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304.

Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304..

13. The academic distinction between "murder" and "culpable homicide not amounting to murder" has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300."

55.7 In Pulicherla Nagaraju @ Nagaraja Reddy vs State Of A.P AIR 2006 SUPREME COURT 3010 the Hon'ble Supreme court held as under:

SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 63 of 76 PS Bawana "18. Therefore, the Court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances; (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight;

(vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger;(viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 64 of 76 PS Bawana

(xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention."

55.8 In the case titled as Mohd. Rafiq @ Kallu Vs. The State of Madhya Pradesh, Criminal Appeal No. 856/2021 decided by Hon'ble Supreme Court has held as under:

"11. The question of whether in a given case, a homicide is murder, punishable under Section 302 IPC, or culpable homicide, of either description punishable under Section 304 IPC has engaged the attention of courts in this country for over one and a half century, since the enactment of the IPC; a welter of case law, on this aspect exists, including perhaps several hundred rulings by this court. The use of the term "likely" in several places in respect of culpable homicide, highlights the element of uncertainty that the act of the accused may or may not have killed the person. Section 300 IPC which defines murder, however refrains from the use of the term likely, which reveals absence of ambiguity left on behalf of the accused. The accused is for sure that his act will definitely cause death. It is often difficult to distinguish between culpable homicide and murder as both involve death. Yet, there is a subtle distinction of intention and knowledge involved in both the crimes. This difference lies in the degree of the act. There is a very wide variance of degree of intention and knowledge among both the crimes."

55.9 In the case of N. Ram Kumar Vs. State decided by Hon'ble SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 65 of 76 PS Bawana Supreme Court in Crl. A. No. 2006/2023, it has been held as under:

14. The cause of death assigned in the post- mortem report as already noticed is "died of head injury". It is a trite law that "culpable homicide" is a genus and "murder" is its species and all "murders" are "culpable homicides, but all "culpable homicides" are not "murders" as held by this court in Rampal Singh Vs. State of Uttar Pradesh (2012) 8 SCC 289. The intention of the accused must be judged not in the light of actual circumstances, but in the light of what is supposed to be the circumstances."

55.10 From the aforesaid landmark judgments, it emerges that, it requires to be borne in mind that the test suggested in the aforesaid decisions and the fact that the legislature has used two different terminologies, 'intent' and 'knowledge' and separate punishments are provided for an act committed with an intent to cause bodily injury which is likely to cause death and for an act committed with a knowledge that his act is likely to cause death without intent to cause such bodily injury as is likely to cause death, it would be unsafe to treat 'intent' and 'knowledge' in equal terms.

55.11 They are not different things. Knowledge would be one of the circumstances to be taken into consideration while determining or inferring the requisite intent. Where the evidence would not disclose that there was any intention to cause death of the deceased but it was clear that the accused had knowledge that his acts were likely to cause death, the accused can be held guilty under second part of Section 304 IPC.

SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 66 of 76 PS Bawana 55.12 It is in this background that the expression used in Indian Penal Code namely "intention" and "knowledge" has to be seen as there being a thin line of distinction between these two expressions. The act to constitute murder, if in given facts and circumstances, would disclose that the ingredients of Section 300 are satisfied and such act is one of extreme recklessness, it would not attract the said Section.

55.13 In order to bring a case within Part 3 of Section 300 IPC, it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death. In other words, that the injury found to be present was the injury that was intended to be inflicted.

55.14 The Hon'ble Supreme Court in a recent judgment in the case of Anbazhagan vs. The State represented by the Inspector of Police in Criminal Appeal No. 2043 of 2023 disposed of on 20.07.2023 has defined the context of the true test to be adopted to find out the intention or knowledge of the accused in doing the act as under:

"60. Few important principles of law discernible from the aforesaid discussion may be summed up thus:

(1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 67 of 76 PS Bawana act will be murder even though only a single injury was caused.

(2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC.

It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC.

(3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 68 of 76 PS Bawana there is 'guilty intention,' whereas the second part would apply when there is no such intention, but there is 'guilty knowledge'.

(4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder.

(5) Section 304 of the IPC will apply to the following classes of cases : (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.

To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.

SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 69 of 76 PS Bawana (6) The word 'likely' means probably and it is distinguished from more 'possibly'. When chances of happening are even or greater than its not happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.

(7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC.

(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 70 of 76 PS Bawana circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack.

(9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries.

(10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case.

(11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies.

(12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 71 of 76 PS Bawana the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC."

55.15 Thus, it emerges from the case law analyzed herein above that whether the death was a murder or culpable homicide not amounting to murder can be discerned by unraveling the facts during trial. Applying the ratio of Pullecherla Nagaraju's case (discussed supra) to the present case, Hon'ble Supreme Court has jolted down 11 points to gather intention of the accused to cause death. The intention can be gathered from combination of few or several of 11 points which can be summarized in the present case as under:

(i) accused Raja Ram used deadly weapon i.e., iron rod to inflict injury upon the deceased,

(ii) he was not carrying the weapon with him and picked the same from the spot,

(iii) he aimed blows on the head of the deceased i.e., vital part of the body,

(iv) he caused the injuries with full force,

(v) the act was not in the course of sudden quarrel as accused Raja Ram was furious because deceased did not open the door of the factory. Accused Raja Ram started assaulting the deceased at the very first opportunity and when deceased retaliated, accused Raja Ram collected an iron rod and mounted a ferocious attack on his head,

(vi) the incident did not occur by chance and accused Raja Ram initiated the quarrel although, no pre-meditation can be seen as he was not armed with any weapon when he was coming downstairs, SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 72 of 76 PS Bawana

(vii) deceased was known to the accused persons and accused had grudge against him because deceased had complained their conduct on earlier occasion to PW4 Parvinder and they were rebuked by factory owner Parvinder,

(viii) there was no grave and sudden provocation from the deceased. In fact accused Raja Ram attacked him and started the quarrel,

(ix) there is nothing on record to suggest that the incident occurred in the heat of passion. Accused Raja Ram initiated the quarrel and both accused had enough time to control themselves before attacking the unarmed deceased.

(x) and (xi) the accused persons acted in a cruel and unusual manner and took undue advantage. Deceased was unarmed and accused could have restrained themselves by giving a single blow but initially four blows were given on front side of the head and subsequently, six blows were given on back side of the head which reflects that accused took undue advantage of the situation and acted in a cruel manner.

55.16 The 'intention' can be understood by the conduct of accused persons, the weapon used by them, the number of injuries inflicted upon the deceased, injuries were inflicted mainly on his head, accused Raja Ram initiated the quarrel, deceased had complained against them on prior occasion as they used to go out of the factory in drunken condition and total 17 injuries were inflicted upon the deceased. Therefore, conditions "secondly" and "thirdly" described in section 300 IPC are directly applicable to the present case. I am of the considered view that intention of the accused persons was to commit murder of the deceased with a specific knowledge that injuries inflicted by them were likely to cause death of the deceased in the ordinary course of nature as same were inflicted with the iron rod on the head of SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 73 of 76 PS Bawana deceased.

55.17 There is nothing on record to suggest that deceased gave any provocation which was grave and sudden in nature to the accused persons which resulted in the penultimate act. Deceased Ravinder was performing his duty to lock the door of the factory after 09:00 PM. Accused Raja Ram left the factory in drunken condition and refused to came back. His conducted was reported by PW3 Vineet to PW4 Parvinder and this was not the first time that accused Raja Ram acted in this fashion after having liquor. When he came back, he started assaulting the deceased as he was angry on the refusal of the deceased to open the gate of the factory. Therefore, whatever was done by the deceased, he was supposed to act in that fashion by his employer and he did not give any provocation to the accused persons and therefore, exception 1 is of no help to the accused persons. This case is hit by proviso 'first' appended with exception 7. Accused Raja Ram sought provocation by starting the quarrel and later on murdered him.

55.18 Similar is the status of exception 4 as the essential ingredient to apply this exception is that accused should not act in a cruel or unusual manner and should not take undue advantage. Deceased was unarmed when he was attacked by the accused persons, therefore, there was hardly any danger to the life of accused persons from the deceased despite that they attacked him in furtherance of their common intention and accused Raja Ram caused several blows on his head with the help of an iron rod whereas accused Santram smashed a pitcher on his head. Their conduct is clearly cruel as well as unusual and I have no confusion that they took undue advantage during the offence.

SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 74 of 76 PS Bawana 55.19 Since accused persons have failed to bring their case within exception 1 and 4 appended with section 300 IPC, the judgments relied upon by Ld. Counsels to support their arguments that accused persons are liable to be convicted under section 304 (II) IPC instead of section 302 IPC, are of no consequence and are being differentiated on the basis of facts and law applicable in the present case. Although, this court has duly considered the facts and law laid down by Hon'ble High Courts in the case laws cited by ld. Defence counsels.

ALLEGATIONS UNDER SECTION 201 IPC

56. Both the accused persons have also been charged under section 201 IPC but prosecution has failed to prove anything against accused Santram that he tried to destroy evidence at any point of time whereas accused Raja Ram disposed off the weapon of offence in a vacant plot after the commission of offence. He was arrested within an hour or so of the murder and he subsequently got recovered the weapon of offence during police custody. It has been successfully proved by the prosecution that weapon was recovered at his instance which was thrown by him with an intention to cause disappearance of the iron rod and therefore, charge under section 201 (I) IPC stands proved against accused Raja Ram.

CONCLUSION

57. Thus, in view of the aforesaid findings, I am of the considered view that murder of deceased Ravinder was committed by accused Raja Ram and Santram in furtherance of their common intention. Accused persons were having grudge against the deceased as he had reported their conduct to the owner of the factory and he did so again on the date of incident. When accused SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 75 of 76 PS Bawana Raja Ram came back to the factory, deceased refused to open the door and thereafter, he was attacked initially by accused Raja Ram and later on accused Santram also joined him. Accused Raja Ram caused several blows on the head of the deceased with the help of an iron rod whereas accused Santram attacked him with a pitcher. As per postmortem injury No. 1 to 10 on his head are sufficient to cause the death individually as well as cumulatively in the ordinary course of nature. The weapon of offence was recovered at the instance of co-accused Raja Ram and as per FSL report it was having blood of the deceased on it. The slippers and shirt of accused Raja Ram was having blood stains of the deceased whereas phone of accused Santram was recovered from the spot to show that both of them were present and involved in the incident. The testimony of eye witness PW3 Vineet is cogent, reliable and inspires confidence of this court. Accused have failed to prove the involvement of PW3 Vineet in the murder as their theory of money transaction between deceased and PW3 Vineet found to be bogus and sham. Hence, both accused persons Raja Ram and Sant Ram are guilty of committing murder of deceased Ravinder and stands convicted for committing an offence under section 302/34 IPC. Accused Raja Ram is additionally held guilty for committing an offence under section 201 IPC whereas accused Santram is acquitted from committing an offence under section 201 (I) IPC. It is ordered Digitally signed accordingly. DHIRENDRA by DHIRENDRA RANA RANA Date: 2024.02.09 16:06:38 +0530 Dictated and announced in the open (Dhirendra Rana) Court on 09.02.2024 ASJ:Special Judge (NDPS) (running in 76 pages) (North), Rohini Courts/Delhi SC No. 57622/16, FIR No. 320/12 State Vs. Rajaram & Anr. Page No. 76 of 76 PS Bawana

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Delhi District Court

State vs Raja Ram Etc.(2) on 9 February, 2024