Delhi District Court
State vs Sunny @ Babe @ Sunny Simon Etc on 23 April, 2025
FIR NO. 54/15
PS: BARAKHAMBA ROAD
IN THE COURT OF MS. KIRAN GUPTA: ADDITIONAL
SESSIONS JUDGE - 04 : NEW DELHI DISTRICT :
PATIALA HOUSE COURTS : NEW DELHI
DLND010019162015
FIR No. 54/15
PS: Barakhamba Road
(Around 10 years old case)
STATE VS. Sunny @ Babe & ors.
SC No. : 9097/2016
Date of offence : 19.05.2015
Accused : Sunny @ Babe @ Sunny Simon
S/o Sh. Soloman Philip
R/o 152/9, Railway Quarters,
Shankar Market,
Connaught Place,
New Delhi
State Vs. Sunny @ Babe & ors. Page no. 1 of 79
Digitally
signed by
Kiran Kiran
Date:
Gupta
Gupta 2025.04.23
14:38:55
+0530
FIR NO. 54/15
PS: BARAKHAMBA ROAD
Satish Kumar
S/o Laxmi Narayan
R/o A-5, H No. -12,
Himgiri Enclave, Sant Nagar,
New Delhi
Jitender @ Babu
S/o Jai Prakash
R/o 378, Unchi Jagah,
in front of Primary School,
Mandawali, Delhi
Saurav Chauhan
S/o Sh. Dalip Kumar
R/o 142/5, Minto Bridge,
Railway Colony, New Delhi
Plea of accused : Pleaded not guilty
Final Order : Accused Sunny @ Babe and
Jitender @ Babu are convicted
for the offence under S. 302/34
IPC.
Accused Saurav and Satish
are acquitted for the offence
under S. 304/34 IPC.
State Vs. Sunny @ Babe & ors. Page no. 2 of 79
Digitally
signed by
Kiran Kiran Gupta
Date:
Gupta 2025.04.23
14:39:03
+0530
FIR NO. 54/15
PS: BARAKHAMBA ROAD
Date of committal : 18.08.2015
Date of conclusion of
final arguments : 22.03.2025
Date of judgment : 23.04.2025
JUDGMENT
1. The accused persons are facing trial for the offences u/s 302/34/304 Part I & Part II IPC.
BRIEF FACTS
2. The case of prosecution is that on 19.05.2015, PCR call vide DD no. 34-A was received at PS Barakhamba Road. On receipt of the said DD, when police officials reached at RML Hospital, they found one person namely Biju Varghese was brought dead. The IO SI Chander Prakash met the complainant John Minj in the hospital, who gave the following statement.
" That he alongwith one Vijender are working as field boys in Capital Express Courier, Stall No. 42, Shankar State Vs. Sunny @ Babe & ors. Page no. 3 of 79 Digitally signed by Kiran Kiran Gupta Date:
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Market, Delhi owned by Biju Varghese. That on
19.05.2015 at around 11 pm, Biju Varghese after ordering food for them got down from the shop for leaving for his house. After 5 minutes, they heard some noise from outside the shop. When he alongwith Vijender came down from the shop, they saw that four boys had caught hold of Biju Varghese. One of them had caught hold Biju Vargehese from the neck and the remaining three were beating him. When he tried to intervene and save him, one of the boys who was fat, pushed him. He then pulled Biju Varghese on the floor and asked the remaining boys to bring hammer or knife. In the meantime, Vijender also tried to save Biju Varghese but those four boys continued to beat him. During this, the fat boy took the helmet of Biju Varghese and hit on his head several times. On seeing this, he and Vijender went towards Sadar Bazar for taking assistance of the police and ran towards the place where they saw a PCR van. They informed the PCR van officials about the incident. The PCR van reached with them on the spot, where Biju Varghese was found lying in pool of blood. He took Biju Varghese in the PCR to RML Hospital where he was declared brought dead."
2.1. On the basis of complaint/ statement of John Minj and MLC, FIR under S. 302/34 IPC was lodged and investigation was handed over to Inspector Swadesh Prakash. On spot inspection, a lot of blood was found scattered on the floor. One broken helmet and broken pieces of mirror of the helmet alongwith broken pieces of maala were found on the spot. No eye State Vs. Sunny @ Babe & ors. Page no. 4 of 79 Digitally signed Kiran by Kiran Gupta Date: 2025.04.23 Gupta 14:39:13 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD witness was found on the spot. The place of incident was preserved and photographed. The exhibits were lifted from the spot and the postmortem of the deceased was got conducted.
2.2. That on 21.05.2015, IO received DD No. 12A according to which SI Rajender Kumar ATS, East District had arrested Sunny Simon @ Babe under S. 41(1) Cr.P.C. He (Sunny @ Babe) while in custody in kalandra disclosed about the commission of the offence in the present FIR. Accordingly, copy of the kalandra was taken and permission for interrogation of accused Sunny @ Babe was taken and he was arrested in the present case.
2.3. That on 22.05.2015, he was produced in muffled face in the court and permission for his TIP was obtained, however, he refused for the TIP. His PC remand was obtained on 25.05.2015. During PC remand, he disclosed about the commission of the present offence and further stated that when he heard the PCR siren after the commission of the offence, hence, he alongwith his associates namely Satish @ Babbu, State Vs. Sunny @ Babe & ors. Page no. 5 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 2025.04.23 14:39:18 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD Saurav @ Gunga and Jitender @ Babu ran away from the spot to District Hathi Park. There he hid his clothes which he was wearing at that time. At his instance, pointing out memo was prepared and his clothes were recovered.
2.4. That on the basis of his disclosure statement, the other accused persons/ associates namely Satish @ Babbu, Saurav @ Gunga and Jitender @ Babu were arrested. The co-
accused Jitender @ Babu refused for his TIP. During TIP proceedings of accused Satish Kumar and Saurav Kumar, they were not identified by John Minj and Vijender Singh. However, subsequently, these two witnesses identified accused Jitender as the person who had caught hold of neck of Biju Varghese.
2.5. After completion of the investigation, charge-sheet was filed against these four accused persons for the offence under S. 302/34 IPC.
CHARGE State Vs. Sunny @ Babe & ors. Page no. 6 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 14:39:28 2025.04.23 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD
3. After hearing arguments on the point of charge and finding a prima facie case, charge for the offence u/s 302 IPC was framed against the accused Sunny @ Babe and for the offence under S. 304/34 IPC against accused Satish, Jitender and Saurav, to which they pleaded not guilty and claimed trial. Subsequently, amended charge for the offence under S. 302/34 IPC was framed against accused Jitender @ Babu on 31.05.2024.
PROSECUTION EVIDENCE
4. ADMITTED DOCUMENTS a. FIR No. 54/2015 dated 19.05.2015 b. Certificate under S. 65-B Evidence Act regarding FIR No. 54/2015 c. PM Report no. 233/15 dated 20.05.2015 and subsequent opinion dated 26.06.2015 d. MLC No. E/1100157/15 of deceased Biju Varghese.
State Vs. Sunny @ Babe & ors. Page no. 7 of 79 Digitally signed by Kiran Kiran Date:
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5. Prosecution in order to prove its case has examined following 29 witnesses.
A. PW1 HC Suresh Kumar proved the DD no. 34-A and DD No. 21 A dated 19.05.2015 and 20.05.2015 as Ex.PW1/A and Ex.PW1/B. B. PW-2 Dr. Rahul Band and PW24 Dr. Sukhdeep Singh These witnesses proved the postmortem report of the deceased Biju Varghese as Ex.PW2/A. They deposed that there were a lot of external injuries found on the body of the deceased as detailed in the report Ex.PW2/A. The cause of death was combined effect of multiple injuries to head and contusion on heart and lungs consequent upon blunt force impact to head and chest which are collectively sufficient in ordinary course of nature to cause death. All the injuries were ante-mortem in nature and fresh in duration.
State Vs. Sunny @ Babe & ors. Page no. 8 of 79 Digitally signed Kiran by Kiran Gupta Date: 2025.04.23 Gupta 14:39:40 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD
They further deposed that they received the weapon of offence i.e. one black helmet for subsequent opinion. They gave their subsequent opinion as Ex.PW2/B. PW24 during his cross-examination deposed that out of 13 injuries, all the injuries except injury no. 4 are possible by the use of helmet. No single injury mentioned by him is responsible for the death of deceased, but the death was the result of combined effect of the aforesaid injuries. The injuries referred except injury no. 4 can be possible by fist as it also cause blunt force. Injury no. 4 is a light laceration and can be caused by the use of nails. The scratches seen on the helmet produced by the IO could be possible due to wear and tear.
C. PW3 John Minj is the complainant. His testimony in detail shall be discussed in the later part of the judgment.
D. PW4 HC Rajbir deposed that on 20.05.2015, he was working as MHC(M) PS B.K. Road. On that day, IO had deposited with him one pulanda and the same was entered by State Vs. Sunny @ Babe & ors. Page no. 9 of 79 Digitally signed by Kiran Kiran Gupta Date:
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him at SI No. 561 in register no. 19. Again on that day, IO had deposited with him 7 pulandas duly sealed and the same were entered by him at SI No. 562 in register no. 19. On 27.05.2015, IO had deposited with him the personal search of accused Jitender and the same was entered by him at SI No. 564 in register no. 19. On 17.06.2015, Pulanda at S No. 17 was sent to HoD, Department of Forensic Medicine vide RC no. 23/21. On 24.06.2015, the case property belonging to Biju Varghese was handed over to his wife. On 02.07.2015, vide DD No. 57B, HC Kailash had deposited the helmet again in the maalkhana and helmet was sealed with the seal of MT LHMC. On 24.07.2015, the case property and sample seal were sent to RFSL, Chanakayapuri, vide RC no. 27/21 through HC Pradeep which were entered at SI No. 561. Vide the same RC, pulandas mentioned at S No. 1, 2 & 7 mentioned in SI No. 562 were also sent to HC Pradeep. On 18.01.2016, the report and the exhibits were collected from RFSL and the pulanda was deposited in the maalkhana. He proved the relevant entries in register no. 19 as Ex.PW4/A and register no. 21 as Ex.PW4/B. State Vs. Sunny @ Babe & ors. Page no. 10 of 79 Digitally signed by Kiran Kiran Gupta Gupta Date:
2025.04.23 14:39:56 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD He during his cross-examination deposed that he had handed over two copies of RC no. 23/21 and 27/21. He had obtained a receipt Ex.PW4/DA from the carrier of the pulanda SI Rajnish Sharma. He had only given the RC certificate and no other document. He possessed only one copy of the specimen seal of the IO Inspector Swadesh. The IO had deposited the seal in original in the maalkhana with him and had also prepared the copy of the sample seal which was also handed over to him. The seal of the IO remained with him and it was never taken by the IO. He had not prepared the memo of the original seal handed over to him by the IO. The seal handed over by the IO is still deposited with him. He admitted that there is no copy of the sample seal in the record of the court file. He admitted that there is no record whether the sample seal was triangle, quadrilateral, square or circular.
E. PW-5 Abhilash proved the identification statement of the dead body of Biju Varghese as Ex.PW5/A and the handing over memo after postmortem as Ex.PW5/B. State Vs. Sunny @ Babe & ors. Page no. 11 of 79 Digitally signed Kiran by Kiran Gupta Date: Gupta 2025.04.23 14:40:04 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD F. PW-6 Vijender @ Bijender. His testimony in detail shall be discussed in the later part of the judgment.
G. PW7 is Ct. Rinku. He is the special messenger who handed over the copy of the FIR to the concerned MM and other Sr. Officers.
H. PW8 Ct. Jonny Kumar proved the photographs of the crime scene as Ex.PW8/A and the negatives of the same as Ex.PW8/B. He during his cross-examination deposed that he had not made the said photographs with a digital camera. He deposed that he had taken photographs Ex.PW8/A [1-11 colly] without any manipulation of the scene of crime.
I. PW-9 Ct. Rajesh deposed that on 19.05.2015, IO seized the clothes of the deceased and prepared the rukka and gave it to him for registration of the case. He got registered the present case and reached at Shankar Market, where he met the IO and handed over the copy of FIR and rukka to the IO. He proved the seizure memo of the pulanda as Ex.PW9/A. State Vs. Sunny @ Babe & ors. Page no. 12 of 79 Digitally signed by Kiran Kiran Gupta Date:
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J. PW-10 Subish A.R. proved the identification memo of
the dead body of Biju Varghese as Ex.PW10/A. K. PW-11 Ct. Ankur deposed that on 19/20.05.2015, he was posted at PP RML Hospital as duty constable. In the night, one call was received by him from the CMO Room. He went there. At that time, PCR personnel had brought one injured to the hospital. Thereafter, doctor prepared MLC and handed over one sealed pulanda having cloth inside the same alongwith one sample seal. Some documents i.e. RC, voter ID card were also found from the possession of the injured. He handed over the sealed pulanda and sample seal alongwith the documents to IO SI Chander Prakash. IO prepared the seizure memo Ex.PW9/A. During his cross-examination by the ld. Defence Counsel, he admitted that the time recorded in DD No. 3A dated 20.05.2015 Ex.PW11/DX is 12:22 (00:22) AM and said DD was written on the basis of his communication from the RML hospital. At the time of preparation of MLC, there were two State Vs. Sunny @ Babe & ors. Page no. 13 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 2025.04.23 14:40:25 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD police personnels. However, he does not remember the name of the PCR police personnel. There was no other person except him, deceased and the police personnel of the PCR. He admitted the suggestion that the deceased was identified by two election ID card, RC of the motorcycle bearing no. DL 6 SV 6779, PAN cards of Biju Varghese and Reeni Mathew and some ATM cards. He admitted that initially the identity of the deceased was not possible, if, the documents of his identity were not found in the pocket of the deceased.
L. PW-13 ASI Rameshwar deposed that in the intervening night of 19/20.05.2015, he was working in PCR New Delhi Zone. On that night, he was working as Incharge at V-76 from 8 pm to 8 am. On that night they were on checking duty. At about 11:08 pm, they reached opposite Super Bazar Market and at that time some persons came running and one person told them that a quarrel was going behind Shankar Market and the assailants would kill their owner Biju Varghese. On this information alongwith other PCR staff, he went in front of Stall no. 42, Shankar Market. On reaching there, they found that one State Vs. Sunny @ Babe & ors. Page no. 14 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 14:40:32 2025.04.23 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD person was lying unconscious in injured condition. They took him to RML hospital in PCR van and gave the information to control room through wireless. He does not remember the name of the person who informed them. They got admitted the injured Biju Varghese in the RML hospital where he was declared brought dead. His personal search was taken by the duty constable. SI Chander Pal reached at the spot from PS Barakhamba Road. On cross-examination by ld. Addl. PP for the State, he admitted that the name of the informer was John Minj who was employee of deceased Biju Varghese. He admitted that due to lapse of time, he could not tell the name of the informer.
During cross-examination by the ld. Defence counsel, he deposed that it was 11:05 PM of 19.05.2015 when they reached to the place of incident. The PCR van no. V-76 had one more police Ct. who was working as a driver. There were only two including him and his driver Ct. Rajbir Singh. They had loaded the injured in Innova in the middle seat. The driver Ct. Rajbir Singh was driving the vehicle and he sat alongwith the injured to avoid the situation of felling of injured from the seat to State Vs. Sunny @ Babe & ors. Page no. 15 of 79 Digitally signed by Kiran Kiran Gupta Date:
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the floor of the car. Hardly it might have taken one minute for then in loading the inured in the police van Innova. He admitted that there was no third person other than him and his driver and the injured. He again deposed that for the help of injured (as he was bulky in body), one another person was taken in the PCR van. He deposed that he had not told the fact that another person was taken for help of injured to the IO. He cannot tell any reason as to why he had not disclosed this fact to the investigating officer while giving his statement u/s 161 Cr.P.C. He had not talked to the fourth person which he had taken from the mob while traveling to the hospital. At that time, they did not feel any need to know the identity of the fourth person. However, he had told that he is employee of the injured. He denied that he had improved his statement in the court. He denied that there was no fourth person in the van.
He further deposed that after they reached to the hospital, duty constable took jamatalashi of the injured in the presence of doctor and his presence. At that time he, doctor, Duty Ct., and that fourth person were there. The fourth person told him State Vs. Sunny @ Babe & ors. Page no. 16 of 79 Digitally signed Kiran by Kiran Gupta Date: Gupta 2025.04.23 14:40:48 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD that injured is his employer and also told him the name of the injured as Biju Varghese. He denied the remaining suggestions given by the ld. Defence Counsel.
He deposed that he was called at PS for recording his statement u/s 161 Cr.P.C on 20.05.2015 at about 10-11 AM. His statement u/s 161 Cr.P.C was not recorded in the hospital but it was recorded in the PS. His duty hours were 8 PM on 19.05.2015 to 8 AM on 20.05.2015. He admitted that he had not submitted the copy of the log book of V76 to the IO in reference to the incident of the case. He had entered the fact in his V76 log book in his own handwriting. He had entered complete story of taking the injured to the hospital in the log book. He can show the log book to the court. He produced the log book Ex.PW13/DA. He admitted that there is no name of the persons mentioned in the log book at the place of occurrence at relevant entry. He admitted that it is not mentioned in the log book about the persons who met while going to the hospital in PCR.
State Vs. Sunny @ Babe & ors. Page no. 17 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 14:40:55 2025.04.23 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD M. PW14 HC Kailash deposed that on 02.07.2015, he obtained subsequent opinion regarding weapon of offence with inquest papers and came back to PS and handed over the subsequent opinion alongwith inquest papers to IO and deposited the case property i.e. the helmet vide entry no. 57-B in the maalkahana.
N. PW15 ASI Jai Bhagwan is the duty officer who proved the DD no. 3A as Ex.PW15/A, copy of FIR as Ex.PW15/B, endorsement on rukka as Ex.PW15/C and certificate under S. 65-B IEA as Ex.PW15/D. The DD no. 4A and 5A as Ex.PW15/E and Ex.PW7/D1. He proved the roznamcha register DD No. 12A dated 21.05.2015 as Ex.PW15/F. O. PW16 SI Sushila deposed that on 21.05.2015, she was working as duty officer from 8 am to 4 pm. On that day at 1:17 pm, an information was received from SI Rajender from ATS regarding arrest of accused Sunny under S. 41(1) Cr.P.C. He disclosed his involvement in the present FIR. He was produced before the Ld. MM, Karkardooma. On receiving the said State Vs. Sunny @ Babe & ors. Page no. 18 of 79 Digitally signed by Kiran Kiran Gupta Gupta Date:
2025.04.23 14:41:03 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD information, she recorded DD no. 12A and handed over the copy of the same to MHC(R). She also proved the original roznamcha register DD no. 12A dated 21.05.2015 as Ex.PW15/F. P. PW17 Vireshwar Dayal deposed that on 19.05.2015 he was posted at PCR as computer operator. At about 11:33 pm, he received a call from ASI Rameshwar, which he recorded vide PCR form Ex.PW17/A. He proved the certificate under S. 65-B IEA as Ex.PW17/B on behalf of SI Harish Chand, Nodal Officer.
Q. PW18 Inspector Ajay was the Incharge of the Crime Team. He deposed that he inspected the spot between 12:50 am to 2:10 am on 20.05.2015. the injured was already sent to Hospital. One black color helmet was lying at the spot in damage condition. After inspection, he prepared his report as Ex.PW18/A. He during his cross-examination by the ld. Defence Counsel admitted that no chance finger prints were lifted from the spot despite efforts.
State Vs. Sunny @ Babe & ors. Page no. 19 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 2025.04.23 14:41:13 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD R. PW19 Inspector Rajender Kumar & PW20 HC Pankaj PW19 Inspector Rajender Kumar deposed that on 21.05.2015, he was working as SI in AATS East District, New Delhi. On that day, on receiving the information, he alongwith PW20 HC Pankaj & other police officials went to Surajmal Park at about 4:35 am vide DD no. 7A Ex.PW19/B. At Surajmal Park, he requrested 2-3 public persons to join investigation, but none agreed. Due to paucity of time, PW19 could not give written notice to public persons who refused to join investigation. After about 35-40 minutes, accused Sunny came from side of Cross River Mall. The secret informer pointed towards him and identified him as Sunny @ Babe. On pointing out of the secret informer, they apprehended him. On interrogation, accused Sunny disclosed that he alongwith his accomplices Saurav, Babu and Satish had murdered a person last night in the area of Shankar Market by giving leg, fist and helmet blows to that person. He was taken to their office and was interrogated. He told that his accomplice Saurav was residing in State Vs. Sunny @ Babe & ors. Page no. 20 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 14:41:21 2025.04.23 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD Daryaganj and is driver by profession. Satish was residing in Burari and is having a dhobi ghat at ITO. Babu had a fruit shop in Shivaji Bridge Fruit Market. After coming back to their office, they made DD no. 4 Ex.PW19/A regarding their arrival and arrest of accused Sunny @ Babe. PW19 proved the DD no. 12 as Ex.PW19/C. PW19 deposed that he informed the PS B.K.Road regarding the arrest of accused Sunny @ Babe and provided the relevant documents to the IO of the case.
During cross-examination, PW19 admitted that no disclosure statement of the accused was recorded by him as nothing was disclosed by the accused.
S. PW21 Inspector Mahesh proved the scaled site plan as Ex.PW21/A. He denied all the suggestions given by the ld. Defence Counsel during cross-examination.
T. PW25 Satender Patwal proved the CAF alongwith call detail records from 01.01.2015 to 20.05.2015 and location of mobile numbers 750357701 in the name of Saurav Chauhan as State Vs. Sunny @ Babe & ors. Page no. 21 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 14:41:27 2025.04.23 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD Ex.PW25/A to Ex.PW25/B; mobile no. 8285853319 in the name of Saurav Chauhan as Ex.PW25/C to Ex.PW25/D. He proved the cell ID chart of the said mobile phone as Ex.PW25/E (colly) and certificate under S. 65-B IEA as Ex.PW25/F. U. PW26 Inspector Chander Prakash is the initial IO who proved the DD no. 34A Ex.PW1/A, seizure memo Ex.PW9/A, statement of John Minj as Ex.PW3/A. He prepared the rukka Ex.PW26/A and got the FIR registered. He deposed that from the spot, PW27 seized the exhibits vide memo Ex.PW26/B. The proved seizure memo of the exhibits received from the hospital after postmortem of deceased as Ex.PW26/C. He identified the pieces of tiles having blood stains as Ex.PW26/P1; piece of cloth having brown stains as Ex.PW26/P2 and Ex.PW26/P3; helmet as Ex.PW26/P4; gauze piece containing blood of deceased as Ex.PW26/P5; blood stained earth control as Ex.PW26/P6 and Ex.PW26/P7; three broken pieces of visor of the helmet as Ex.PW26/P8; 7 small pieces of broken visor of helmet Ex.PW26/P9; one broken maala of white State Vs. Sunny @ Babe & ors. Page no. 22 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 2025.04.23 14:41:37 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD beads having symbol of metal cross as Ex.PW26/P10. He deposed that all these articles were seized from the spot.
V. PW28 Dr. Kanak Lata Verma, Asst. Director, RFSL, proved her detailed report dated 17.12.2015 as Ex.PW28/A. W. PW29 Dr. V. Sankaranarayanan proved the biological and serological examination report as Ex.PW29/A and Ex.PW29/B, respectively.
X. PW12 HC Pradeep, PW14A HC Ramphool , PW22 Inspector Rajnish Sharma, PW23 Inspector Rajesh Kumar and PW27 Inspector Swadesh Kumar PW23 Inspector Rajesh Kumar deposed that on 21.05.2015, he was posted as SI at PS B.K. Road. On that day, he joined investigation of the case with PW22 and HC Chander Prakash. They went to Karkardooma Court. IO had collected the kalandra of accused Sunny from SI Rajender Kumar, Special State Vs. Sunny @ Babe & ors. Page no. 23 of 79 Digitally signed Kiran by Kiran Gupta Date: 2025.04.23 Gupta 14:41:48 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD Staff. IO moved the application for interrogation of accused Sunny and after interrogation, arrested him vide memo Ex.PW23/A. PW-12 HC Pradeep, PW14A Ramphool & PW22 Inspector Rajnish Sharma & PW23 Rajesh Kumar deposed that they joined the investigation of the case with PW27 Inspector Swadesh Kumar on 26.05.2015. During investigation, PW27 interrogated accused Sunny. He gave disclosure statement Ex.PW12/A. He disclosed that he alongwith his associates namely Satish @ Pappu, Saurav @ Gunga and Jitender @ Babu had murdered Biju Varghese. He further disclosed that accused Jitender @ Babu had caught hold the neck of the deceased, other accused Saurav had caught hold of his leg, accused Satish caught hold of the hands and he (accused Sunny) gave helmet blows on the head of the deceased.
PW14A & PW22 further deposed that on that day, accused Sunny took them to the place of incident i.e. near stall no. 42 Shankar Market and pointed out to the place where he State Vs. Sunny @ Babe & ors. Page no. 24 of 79 FIR NO. 54/15 PS: BARAKHAMBA ROAD alongwith his associates namely Babu, Satish and Saurav had committed murder of Biju Varghese. He pointed out the place of incident vide memo Ex.PW14/A. PW22 & PW23 further deposed that on 27.05.2015, they received the call from IO / PW27 who instructed them to bring accused Sunny under Ranjeet Singh Flyover beside Hotel Lalit behind PS B.K. Road and other police staff. He alongwith PW12, PW14A, HC Naveen and accused Sunny reached at the said place, where IO was present. IO informed them that he had a secret information that accused namely Babu and Satish wanted in this case would be gathering at Ramleela Ground, Kamla Market after about 15-20 minutes and they are trying to leave Delhi. After that, they and accused Sunny went to main gate Ramleela Ground in a government vehicle. On reaching there, IO requested 6-7 public persons to join the investigation but none agreed. Without wasting time, they entered into Ramleela Ground from the main gate. Three persons were present behind the stage. Accused Sunny identified those persons as Babu, Saurav and Satish who were involved in the murder of Biju State Vs. Sunny @ Babe & ors. Page no. 25 of 79 Digitally signed by Kiran Kiran Gupta Date:
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Varghese. They were apprehended and arrested and their personal search was conducted vide memos Ex.PW12/B to Ex.PW12/G. They further deposed that accused Satish gave disclosure statement Ex.PW12/H, Saurav and Jitender gave disclosure statement Ex.PW12/I and Ex.PW12/J. PW-12, PW14A, PW22, PW23 & PW27 further deposed that on 30.05.2015, accused Jitender took them to the place of incident and at his instance, PW27 prepared the pointing out memo of the place of incident Ex.PW14/B. PW27 further deposed that before sending accused Sunny to JC, he moved the TIP application on 22.05.2015 Ex.PW23/B whereby he refused to participate in TIP proceedings. He proved his application for 3 days PC of accused Sunny as Ex.PW23/C. He recorded the disclosure statement of accused Jitender Ex.PW23/J. He moved the application for TIP of accused Jitender Ex.PW27/D. He identified the helmet which was seized vide memo Ex.PW26/B as Ex.PW3/P1.
State Vs. Sunny @ Babe & ors. Page no. 26 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 14:42:36 2025.04.23 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD PW12 deposed that on 24.07.2015, he deposited the pulandas in the FSL vide RC no. 27/21 Ex.PW4/B and proved the receipt Ex.PW12/PA. PW22 further deposed that on 17.06.2015 on the instruction of the IO, he deposited the pulanda containing one helmet from maalkhana in the Department of Forensic Science, LHMC vide RC no. 23/21/15.
In addition to the abovesaid documents, PW27 also proved the site plan Ex.PW27/A. DD no. 57B dated 02.07.2015 as Ex.PW27/B; MLC of deceased dated 19.05.2015 Ex.PW27/C; his application for subsequent opinion Ex.PW27/D; authorization letter in favor of HC Kailash Chand for collecting subsequent opinion Ex.PW27/E; request to issue PCR form addressed to DCP PCR Ex.PW27/F; PCR form as Ex.PW27/G; copy of TIP proceedings pertaining to accused Sunny & Jitender as Ex.PW27/H & Ex.PW27/I, respectively.
PW12 & PW14A during their cross examination denied all the suggestions given by ld. Defence Counsel.
State Vs. Sunny @ Babe & ors. Page no. 27 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 2025.04.23 14:42:42 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD PW22 during his cross-examination deposed that IO recorded his statement four times on 26.05.2015, 27.05.2015, 30.05.2015 & 17.06.2015. The disclosure statement of accused Sunny was recorded in the police station on 26.05.2015 during police custody in his presence. The copy of the DD entry of departure is not on record. That accused Sunny was not in muffled face when the three other accused were arrested.
PW23 during his cross-examination deposed that on 21.05.2015 complainant was not accompanying him to the Karkardooma court. The disclosure statement of accused Sunny Ex.PW12/A was recorded at police station during police custody.
He cannot say whether accused was in muffled face or not when his PC remand was obtained by the IO. He does not remember, if, accused Sunny was in muffled face on 27.05.2015 when he was taken to Ranjeet Singh flyover near C.P. He denied the remaining suggestions put to him by ld. Defence Counsel.
State Vs. Sunny @ Babe & ors. Page no. 28 of 79 Digitally signed by Kiran Kiran Gupta Gupta Date:
2025.04.23 14:42:49 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD PW27 during his cross-examination deposed that he does not remember the reason as to why he did not send the weapon of offence i.e. the helmet for serological examination. He admitted that he had not investigated about the location and call details of accused Sunny on the date of incident. He had recorded the disclosure statement of accused Sunny but he does not remember the date and time when his disclosure statement was recorded. He admitted that TIP of accused Satish and Saurav failed.
STATEMENT OF ACCUSED
6. After completion of prosecution evidence, all incriminating material as appearing in the evidence was put to the accused persons under Section 313 Cr.PC. They pleaded innocence and stated they have been falsely implicated in this case.Digitally signed
Kiran byDate:Kiran Gupta Gupta 2025.04.23 14:42:59 +0530 State Vs. Sunny @ Babe & ors. Page no. 29 of 79 FIR NO. 54/15 PS: BARAKHAMBA ROAD ARGUMENTS ON BEHALF OF Ld. ADDL PP FOR THE STATE
7. It is argued by Ld. Addl. PP for the State that in the present case, charge against the accused persons is that on 19.05.2015, at about 11:00 pm, all the accused persons in furtherance of their common intention gave beatings to Biju Varghese by fists and kick blows and also with the helmet and committed his murder. That charge u/s 302/34 IPC is framed against accused Sunny @ Babe and Jitender @ Babu. The charge u/s 304 Part (I)(II) /34 IPC is framed against accused Satish and Saurav Chauhan.
7.1. It is submitted that as per postmortem report, in total 13 injuries were found on the body of deceased and all the injuries were ante-mortem. The doctor also gave the subsequent opinion that all the injuries except injury no. 4 can be caused by helmet (weapon of offence). That accused Sunny @ Babe and Jitender @ Babu refused for their judicial TIP, however, both the accused persons were duly identified by PW3 and PW6 during State Vs. Sunny @ Babe & ors. Page no. 30 of 79 Digitally signed Kiran by Kiran Gupta Date: Gupta 2025.04.23 14:43:06 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD investigation and also during trial. Both PW3 and PW6 also clearly specified the role of both accused Sunny @ Babe and Jitender @ Babu during their testimony and deposed that accused Sunny hit the deceased with the helmet and accused Jitender caught hold of the neck of the deceased. That PW-3 also deposed that after seeing the incident, he went to inform about the incident to the nearby PCR van where ASI Rameshwar was found. PW-13 ASI Rameshwar corroborated the fact that PW-3 John came and informed about the incident and thereafter he took injured to the hospital. The fact that ASI Rameshwar took deceased to the hospital is clearly shown in the MLC of the injured. The fact that ASI Rameswar took the deceased to the hospital is also corroborated by PW-17 who deposed that he received a call from ASI Rameshwar Incharge PCR van who informed that they were taking injured to the hospital and he reduced the said information in PCR form Ex.PW17/A. 7.2. It is submitted that there is no material contradiction in the testimony of PW-3 and PW-6. PW26 Chander Prakash also deposed that it is mentioned in the rukka that when he reached at State Vs. Sunny @ Babe & ors. Page no. 31 of 79 Digitally signed by Kiran Kiran Gupta Date:
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the hospital, complainant John Minj was found in the hospital on the intervening night of 19/20.05.2015 and he recorded his statement.
7.3. It is submitted that there is no delay in the registration of FIR. The incident is of 19.05.2015 at 11:05 pm and FIR was registered on 20.05.2015 at about 01:30 am. The helmet used in the offence which belonged to the deceased was also found lying at the spot and it was sent to FSL, where blood of human was found on it. It is submitted that nothing has come up in the testimony of PW-3 and PW-6 that they had motive to falsely implicate the accused persons and also their presence at the spot is also proved through the testimony of PW-13. PW13 ASI Rameshwar deposed that complainant John Minj was the person who informed him about the incident and accompanied him to the hospital. PW-26/IO also deposed that he found complainant John Minj in the hospital.
7.4. It is prayed that since the prosecution has proved the case beyond pales of reasonable doubt against the accused State Vs. Sunny @ Babe & ors. Page no. 32 of 79 Digitally signed by Kiran Kiran Gupta Date:
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persons, they be convicted for the offences for which charges have been framed against them.
ARGUMENTS ON BEHALF OF LD. DEFENCE COUNSEL
8. It is argued by Ld. Defence Counsels for accused Sunny and Jitender that they have been falsely implicated in the present case by the IO. It is argued that the prosecution has relied upon the testimony of PW3 John Minj, who is stated to be the eye witness in the present case. It is submitted that the fact that PW-3 John Minj is not an eye witness is apparent from the documents relied upon by the prosecution. It is submitted that as per prosecution, John Minj alongwith the PCR officials took the injured / deceased to the hospital, however, his name is neither mentioned in the MLC nor in the testimony of PW-11 Duty Constable who had categorically deposed that except the PCR officials, injured and doctor no other person was present in the hospital. It is submitted that John Minj is neither the witness in the inquest papers, identification memos and recovery memo of the articles recovered from the body of deceased. Even PW-13 State Vs. Sunny @ Babe & ors. Page no. 33 of 79 Digitally signed by Kiran Kiran Gupta Date:
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deposed that he does not remember the name of the person who informed them. He produced the log book Ex.PW13/DA, however, the name of the person who informed is not mentioned in the log book. It is submitted that PW-11 deposed that the identification of the deceased was done on the basis of documents recovered from his possession and his identification could not be possible without the said documents. It is argued that if John Minj was present at the hospital, the question arises as to why there was a need for identification of the deceased on the basis of the documents recovered from the body of deceased. It is further submitted that no blood was found on the clothes of John Minj despite the fact that as per prosecution, he had accompanied the injured to the hospital. It is submitted that all these facts raise doubt about the presence of John Minj at the spot, hence, his testimony to the effect that he is the eye witness is also doubtful. It is further submitted that even the presence of PW-6 on the spot is doubtful and hence no reliance can be placed upon his testimony.
State Vs. Sunny @ Babe & ors. Page no. 34 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 14:43:53 2025.04.23 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD 8.1. It is further argued that the concerned IO did not record the statement of the constable on duty in the hospital namely Ct. Ankur on the date when the injured was taken to the hospital. It was recorded subsequently. It is argued that the prosecution has failed to prove any motive by the accused persons to commit murder of Biju Varghese. The concerned dhaba owner with whom the deceased had ordered food has not been cited as witness in the present case. No other public persons who were present on the spot have been cited as witness. PW-3 and PW-6 who being the employees of the deceased have been deliberately cited as witnesses. They are interested witnesses.
8.2. It is submitted that as per prosecution, the weapon of offence is the helmet. The said helmet was never sent for blood analysis. No effort has been made by the IO to take the fingerprints on the helmet. As per FSL result, the blood found on helmet was of human & no reaction could be found on DNA analysis with the blood of the deceased. It is submitted that the burden to prove each and every fact independently is on the prosecution, which the prosecution has failed to prove. It is State Vs. Sunny @ Babe & ors. Page no. 35 of 79 Digitally signed by Kiran Kiran Gupta Date:
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submitted that since the prosecution has failed to prove any offence against accused Sunny and Jitender, they be acquitted for the offence u/s 302/34 IPC.
8.3. It is argued by the counsels for accused Saurav and Satish that none of the witnesses i.e. PW-3 and PW-6 have identified these persons either during TIP proceedings or during trial. It is submitted that PW-3 and PW-6 have categorically deposed that Saurav and Satish were not the persons who were present on the spot at the time of incident alongwith other co-
accused persons. It is prayed that since the material witnesses have failed to identify accused Satish and Saurav and there is no incriminating evidence against them, they be acquitted for the offence u/s 304/34 IPC.
ANALYSIS AND FINDINGS
9. Heard arguments on behalf of ld. Addl. PP for the State, ld. Defence counsel and perused the complete record file. The accused Sunny @ Babe and Jitender are facing trial for the State Vs. Sunny @ Babe & ors. Page no. 36 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 14:44:05 2025.04.23 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD offence u/S. 302/34 IPC. Accused Saurav and Satish are facing trial for the offence under S. 304(II) IPC. The prosecution in order to prove the offence U/s.302 IPC against the accused has to prove :
A. The presence of accused on the spot at the time of incident.
B. His identification by the eye witness. C. The injuries caused to the deceased and medical opinion as regards cause of death. D. The motive of the accused in causing death of deceased.
10. The material witnesses of prosecution are PW3 John Minj and PW6 Vijender @ Bijender. As per prosecution, they are the eye witnesses of the incident. The entire case of prosecution is based on the ocular testimony of PW3 and PW6.
11. PW3 John Minj during his testimony deposed that he is employed with Capital Express Couriers at stall no. 42 Shankar Market, Delhi for the last about 5 years. Apart from him, Vijender was also employed there. The owner of the said company was Biju Varghese. He and Vijender were working as State Vs. Sunny @ Babe & ors. Page no. 37 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 2025.04.23 14:44:11 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD field boys in the said company. That on 19.05.2015 at about 10 pm, he was asked by Biju Varghese to bring food from nearby dhaba. Biju Varghese was getting down from the market. After about 5 minutes, when he came downstairs from the office, which was situated on the first floor of stall no. 42, he saw that 3- 4 persons had caught hold of Biju Varghese and were beating him. He tried to intervene in the situation, then accused Sunny pushed him. Accused Sunny said that "Aaj Biju Varghese ka kaam tamam kar denge". Accused Sunny asked the other co-
accused persons to bring a hammer and knife. Accused Jitender had caught hold of Biju Varghese from the neck from backside. Accused Sunny picked up the helmet which was kept on the motorcycle of Biju Varghese and struck the helmet repeatedly on his head. He got frightened and went near the Super Bazar where a PCR van met him and he came to the spot with the PCR Van. Biju Varghese was picked from the spot and was taken to RML Hospital. After examination in the hospital, he was declared brought dead. IO recorded his statement Ex.PW3/A. He deposed that there were other co-accused who were also beating Biju Varghese but he cannot identify them. He does not know whether State Vs. Sunny @ Babe & ors. Page no. 38 of 79 Digitally signed by Kiran Kiran Gupta Gupta Date:
2025.04.23 14:44:19 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD accused Saurav and Satish were present at the time of incident or not. He had shown the place of occurrence to the police. He had not identified any person, who was put to TIP. He went to Tihar Jail for purpose of TIP but Jitender and Sunny refused for their TIP.
11.1. He further deposed that prior to the incident about 1½-2 years ago, one person had come to the office of Biju Varghese and demanded money. That person told Biju Varghese that accused Sunny had sent him. He deposed that now he remembers that the said person is accused Saurav. Biju Varghese replied that he did not have money at that time and he will pay it lateron. He deposed that the helmet belonged to deceased Biju Varghese with which accused Sunny had given blows to the deceased. He correctly identified the helmet Ex.PW3/P1 to be the same as belonging to deceased and it to be the same which was used by accused Sunny to give blows to the deceased.
11.2. Since, the witness was not disclosing complete facts, he was cross examined by the ld. Addl. PP for the State. He State Vs. Sunny @ Babe & ors. Page no. 39 of 79 Digitally signed by Kiran Kiran Gupta Date:
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during his cross-examination by ld. Addl. PP for the State admitted the following suggestions:
a) That at about 11 pm, Biju Varghese had ordered for dinner for him and Vijender.
b) That after 5 minutes, he heard noise of deceased Biju Varghese and when he tried to intervene and free Biju Varghese from the clutches of accused persons, one fat person pushed him and pulled Biju Varghese on the ground.
c) That even Vijender tried to intervene and help Biju.
d) He had stated to the IO in his statement Ex.PW3/C that Sunny was a known criminal of the area and had come back from Tihar Jail few days back. He had fired upon the police officials at Shankar Market and that is why, Bijju had not filed complaint against Sunny with police.
e) That on 07.08.2015 he had given statement to the IO that on 27.05.2015 he had come alongwith Vijender to Patiala House Court for some work and had identified accused Sunny @ Babe and co-accused Jitender @ Babu to be the same persons who were present on 19.05.2015 and accused Sunny as the same person who was saying to his associates that they should bring hammer and knife for murder of Biju. The second person identified as State Vs. Sunny @ Babe & ors. Page no. 40 of 79 Digitally signed by Kiran Kiran Gupta Date:
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Jitender had caught hold of the neck of Biju while other two persons were beating him.
He denied following suggestions:
a) That he had identified two persons whose names were lateron revealed to him as Saurav Chauhan and Satish Kumar or that Saurav Chauhan was the same person, who had caught hold the hand of Biju Varghese and that Satish Kumar was the same person who had caught hold of the legs of deceased Biju Varghese.
b) That he had stated in his statement under S. 161 Cr.P.C dated 29.05.2015 Ex.PW3/B that he had otherwise identified Saurav Chauhan and Satish Kumar in the TIP proceedings. But on seeing them, he became frightened and had fear that they might kill him, due to this reason he did not identify them in TIP proceedings.
c) That he had stated to the IO in his statement dated 30.07.2015 Ex.PW3/C that on one night of February 2015, at about 9-9:30 pm, accused Sunny @ Babe had come to the office and told Biju that, if, he wanted to carry out his business in the area, he would have to pay protection money but Biju refused to pay.
d) That he had told the IO that accused Sunny became angry and started abusing Biju, on which he and Vijender State Vs. Sunny @ Babe & ors. Page no. 41 of 79 Digitally signed by Kiran Kiran Gupta Date:
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intervened. Accused Sunny went away. He does not remember that Sunny threatened Biju that he would have to pay for his deeds.
e) That he had told the police in his statement Ex.PW3/C that on refusal to pay money to Sunny, accused Sunny alongwith his associates had murdered Biju.
11.3. PW3 during his cross-examination by Ld Defence Counsel deposed that to avoid the apprehension of death or attempt of assassination of deceased Biju, he requested accused Sunny @ Babe, not to kill his employer and leave him. In reply to his request, accused Sunny pushed him with his hands. After he pushed him, he did not make any effort to intervene in the quarrel and took an easy way to run out from the place of occurrence and went to Super Bazar to call the police. Since, he had information earlier that PCR van is generally stationed at the Super Bazar, hence, he went to call the police. Vijender also ran alongwith him from the place of occurrence to Super Bazar. He remained at the place of occurrence for around 7-8 minutes. There were many persons at the place of occurrence. There were 8-10 more persons other than him at the place occurrence. He State Vs. Sunny @ Babe & ors. Page no. 42 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 2025.04.23 14:45:07 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD could not retain the identity of the said persons. The accused persons did not beat him with the helmet. Only one accused was having the helmet. Three other assailants were not having any other thing in their hands. The three assailants were without any weapon of assault except Sunny @ Babe who was holding the helmet. He deposed that he had categorically stated the identity, brand, color of the helmet which the accused Sunny was holding to the IO in his statement Ex.PW3/A and when the helmet was seized by the IO, he had confirmed the helmet to be the same which was used by accused Sunny. He further deposed that Biju left the office after the instruction of the food to be taken by them as he had some urgent work outside the office. He did not share the dinner with them. He had eaten his dinner by 11:08 pm and during the time when they were taking the dinner, Biju left the office. He was holding his helmet with ISI Mark Black and his mobile phone when he left the office. The helmet was not chin covered helmet. It had got a wind glass. He deposed that the helmet which his employer was carrying was the same which was brought to the court on 12.07.2016.
State Vs. Sunny @ Babe & ors. Page no. 43 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 2025.04.23 14:45:14 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD 11.4. He further deposed that he did not see the time, when he heard the noise of the quarrel but it was about after 5 minutes of the departure of Biju. During the scuffle, he had lost his cell phone. Vijender did not had his cell phone at the time of incident. His cell phone was without number as he had purchased it a day before. The cell phone of Vijender was out of battery and was not operational.
11.5. He deposed that when the PCR reached the place of occurrence, he got the injured into the PCR on one seat with the help of police officials and sat on the other seat. While getting the injured in the PCR he was holding the leg of the injured, there were no blood stains on his clothes or hands and while deboarding the injured from Gypsy, he was holding the leg side portion of the injured / deceased. Vijender did not help them in putting the injured into the PCR as he ran to the house of one of the friends of injured at Paharganj. He wanted to talk to injured but he did not answer. He does not know whether at that time, injured was alive or dead.
State Vs. Sunny @ Babe & ors. Page no. 44 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 14:45:22 2025.04.23 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD 11.6. He deposed that one police official was driving the PCR van and the other was sitting to the left of the driver on the front seat. When they reached the hospital, the nurses took the injured inside the hospital and he remained with the PCR because the nurses stopped him not to follow injured inside the hospital. PCR police officials also remained with the PCR vehicle. After about 10-15 minutes, nurses came back and informed that injured has died. Thereafter, PCR police took him to police station. After the SHO reached RML hospital, he recorded his statement. He remained in the hospital continuously till 1:30 am of 20.05.2015 from the time when he reached hospital alongwith the injured. Except his statement Ex.PW3/A, no other investigation was done at his instance in RML hospital.
Thereafter, he was taken to PS by SHO. No relative of Biju or his friend met him at RML Hospital during the time he remained there.
11.7. He deposed that it was around 8 strike of the helmet which the accused had done on the head of deceased. He deposed that he had stated before the court on 12.07.2016 that accused State Vs. Sunny @ Babe & ors. Page no. 45 of 79 Digitally signed Kiran by Kiran Gupta Date: 2025.04.23 Gupta 14:45:31 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD Sunny had fired on police official is on basis of hearsey and he had not seen the incident of firing. He denied the remaining suggestions.
11.8. On cross-examination by counsel for accused Jitender @ Babu on 09.07.2024 (recalled for cross-examination after alteration of charge), he deposed that when he came down after hearing the noise, he saw that three persons were quarreling with his owner. 6-7 persons were watching them from some distance. When he tried to intervene to save his owner, said three persons threatened him that, if, he would intervene, they would kill him also. He also suffered some injuries in the said process. There was a street light near the place of incident, but it was a little dim as it was covered with leaves of tree. He denied the suggestion that he could not see the said three persons as there was no light and it was dark. He and Vijender came downstairs after 5 minutes of hearing the noise. While they were trying to save their employer, they requested the other public persons who were present on the spot to help but none of them came forward, hence, he alongwith Vijender went to Super Bazar bus stand, State Vs. Sunny @ Babe & ors. Page no. 46 of 79 Digitally signed Kiran by Kiran Gupta Date: Gupta 2025.04.23 14:45:38 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD which is near the place of incident to call the PCR. They were kept in police station for around 1 week. The accused were not produced in the PS in his presence during the said one week. He denied that he had identified the accused persons at the instance of the IO. He volunteered that IO had only disclosed their names to him after he had identified them. He denied that Jitender was safai karamchari in the Shankar Market and was not involved in the incident. He denied all the suggestions given by ld. Defence Counsel and volunteered that accused Jitender caught hold of the neck of his employer and usse niche gira diya.
12. PW6 Vijender during his testimony deposed that he was working with courier company Capital Express alongwith John Minj and Joseph as field workers. On 19.05.2015, Joseph was not there as he went to his village in Kerala. It was Tuesday and they worked till about 10 pm. The owner of the company Biju Varghese told them that since they have got late, he ordered food for them. Biju had also eaten some food with them. After that he told them that he was leaving for his home and asked them to lock the stall and he left with his helmet. He alongwith State Vs. Sunny @ Babe & ors. Page no. 47 of 79 Digitally signed by Kiran Kiran Gupta Date:
Gupta 2025.04.23 14:46:02 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD John started taking meals. After some time they heard noises "shor sharaba". He did not go to see as to what had happened, however, John went to see as to what had happened.
12.1. He further deposed that John also told him that "maalik ko maar daala". He immediately went to Paharganj to get help from Chandran, friend of Biju Varghese and he informed him that "kisi ne maalik to maar dia". He made telephone call to two friends of Biju namely Nand Kumar and another having mobile number 9310114048 & 9582797001 from the mobile of Chandran. Thereafter, he alongwith Chandran reached the spot by auto, where he was informed that deceased has been shifted to RML Hospital. They reached RML Hospital. Chandran went inside the hospital and he remained outside. He was informed by John Minj that Biju Varghese has expired. All the persons whom they informed had come to the hospital. Thereafter, they went to PS B.K.Road and remained there for many days for inquiry purpose and also for their safety. That during investigation when the police official inquired him about the physical appearance / hulia of the assailants, he narrated him the hulia. The SHO State Vs. Sunny @ Babe & ors. Page no. 48 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 2025.04.23 14:46:09 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD concluded that it was the hulia of accused Sunny. They were interrogated for around 6-7 days in the police station continuously. That accused Sunny refused to join the TIP. During TIP proceedings, he was asked to identify accused persons by ld. MM but he could not identify them. He had correctly identified accused Jitender @ Babu & Sunny in the court.
12.2. During cross examination by Ld. Addl. PP, he was confronted with his statement Ex.PW6/A. He admitted the following suggestions:
a)That when he went outside the shop on hearing noise, he had seen two persons assaulting Biju Varghese.
b) That he told the police that one of the boy who was beating Biju Varghese with fists, his description was bulky body, dim complexion, curly hair and he was wearing T-shirt and nikkar and another boy who was thin built was holding Biju Varghese by neck.
c) That the bulky built boy told that "Jaldi se Hathoda and Chaku ley kar aao, aaj Varghese ka kaam tamam kar detey hai".
State Vs. Sunny @ Babe & ors. Page no. 49 of 79 Digitally signed by Kiran Kiran Date:
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d) That he was pushed also once by the accused resultantly he fell down.
e) He went along with John Minj to seek the assistance of the police at Super Bazar.
He denied the following suggestions:
a) That he told to the police that two other boys were also beating Biju Varghese.
b) That he told to the police that when that bulky built body boy pushed John Minj he became afraid. He volunteered that when that boy told about chaku and hathora he became frightened.
c) That he had told to the police that the four boys had beaten Biju Varghese mercilessly.
d) That he had told to the police that when that bulky boy lifted the helmet and started beating Biju Varghese on his head, he went for help of the police.
e) That he told to the police that he could identify all the four boys who had beaten Biju Varghese.
12.3. He was also confronted with his statement Ex.PW6/B from point A to A 1. He denied having made any such State Vs. Sunny @ Babe & ors. Page no. 50 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 14:46:41 2025.04.23 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD statement to the police. He denied the suggestion that during TIP proceedings, he had identified accused Saurav Chauhan who was holding hand of his owner and Satish Kumar who was holding leg of his owner but due to fear that they may kill him, he had not identified them during the TIP. He further denied the suggestion that accused Saurav Chauhah and Satish Kumar were involved in the killing of his owner Biju Varghese.
12.4. He was also confronted with his statement Ex.PW6/C from point A to A 1. He denied having made any such statement to the police. He denied the suggestion that in the month of February, 2015 while he alongwith Biju Varghese and John Minj were working at Stall no. 42, Capital Express Courier office at around 09:00 to 09:30 PM, accused Sunny Babe came to office and told Biju Varghese that, if, he had to run office there, he will have to pay rupees and Biju Varghese refused to pay rupees to Sunny Babe and thereafter, Sunny Babe became angry and abused Biju Varghese. He denied the suggestion that thereafter, Sunny Babe threatened Biju Varghese that he will face consequences.
State Vs. Sunny @ Babe & ors. Page no. 51 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 14:46:52 2025.04.23 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD 12.5. He was also confronted with his statement dated 07.08.2015 Ex.PW6/D from point A to A 1. He denied having made any such statement to the police. Attention of witness was drawn towards Saurav and Satish present in the court that day but he failed to identify them as the assailants.
12.6. During his cross-examination by ld. Defence Counsel, PW6 deposed that he had been the employee of deceased Biju Varghese for the last 7 years before his death/incident. That probably John Minj was sent to collect meal for 2 persons from the dhaba in Shankar Market. After the meal was brought by John Minj, it was around 10:00 PM when they were to start consuming it. They had almost eaten half of the meal when they heard the noise of the incident. He had not gone down the stairs first of all, it was only John Minj who had gone down. It was around 10 yards distance from the place where they had their meals and the place of occurrence of the incident.
State Vs. Sunny @ Babe & ors. Page no. 52 of 79 Digitally signed by Kiran Kiran Gupta Date:
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12.7. He had given every information about the incident in Dr. RML Hospital. It was around 12:00 to 12:30 when he had informed to the police about the incident in Dr. RML Hospital. He alongwith John Minj were taken by the police from RML Hospital at around 01:00 AM of 19/20.05.2015, however, he could not tell the time of reaching the PS. There were 5 persons in number in the police vehicle and there were 3 police persons and 2 of them i.e. John Minj and himself. They were kept in the PS by the IO for the purposes of their interrogation and safety and on many occasions they slept in the PS in the night and some time they were let off by the police for their work.
12.8. He further deposed that from the place of occurrence he went running straight to Pahargunj to the house of Mr Chandran and brought him at the place of occurrence. Before bringing Mr. Chandran (the friend of deceased) to the place of occurrence, he had brought the police from Super Bazar and after bringing police he had moved for the house of Chandran. When he came back alongwith Chandran to the place of occurrence, he did not meet the police official. Police had already taken Biju to State Vs. Sunny @ Babe & ors. Page no. 53 of 79 Digitally signed Kiran by Kiran Gupta Date: 2025.04.23 Gupta 14:47:14 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD the hospital alongwith John Minj and he along with Chandran remained at the place of occurrence and met the Dhabe wala. He met the dhabe wala and he informed him that the police had taken John Minj to RML Hospital. He alongwith Chandran and his son Vishnu went into an auto to the RML Hospital. There was no other person when he reached the hospital except deceased Biju Varghese, John Minj, Chandran and himself. At least there were 15-20 police officials present at the RML when they reached alongwith Mr. Chandran. Police did not record the statement of Sh. Chandran.
12.9. He further deposed that when he reached the hospital alongwith Vishnu and Chandran, he met various persons including Bobby Joseph, Nand Kumar, Biju Varghese (friend of deceased Biju Varghese), Aarif (landlord of the office), Fareed, IO and he was not aware of the names of the rest persons who were present in RML Hospital. He disclosed everything to the police officials in the hospital. He and John Minj were interrogated separately. He does not know whether signatures of John Minj were obtained by the police officials, however, his State Vs. Sunny @ Babe & ors. Page no. 54 of 79 Digitally signed by Kiran Kiran Gupta Gupta Date:
2025.04.23 14:47:31 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD signatures were not obtained on any document. However, his narration was recorded by the police.
12.10. He further deposed that police had not asked him about the physical identification of the accused persons however, they had collected many boys in the PS and asked him to identify them. He identified one person in the PS. He had pointed out to the police officer about the boy who was present among the boys whose identification test was got done by the Police in the PS. The accused who was caught by the police was not present on the day of incident.
12.11. He had disclosed the physical identification [hulia] of the accused persons involved in the incident. He did not have the personal information of the refusal of the TIP proceedings by the accused persons. He denied the suggestion that the accused persons were identified by him at the behest of the IO. He deposed that he never went to Patiala House Courts for identification of accused persons. He had not disclosed in any of his statement u/s 161 Cr.P.C. to the IO that during the judicial State Vs. Sunny @ Babe & ors. Page no. 55 of 79 Digitally signed by Kiran Kiran Gupta Gupta Date:
2025.04.23 14:47:41 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD remand, he had identified either of the accused persons involved in the incident. He endeavored to save the life of the deceased Biju Varghese and his overt act to save the life of the deceased was verbal and he also tried to de-scuffle the deceased from the accused, however, accused had pushed him and he was afraid of pushing by the accused and therefore, he wanted to seek the help of the police and ran away to the police post. Many staff of the courier had reached the place of occurrence at his call but all the courier persons did not save the deceased as they were themselves frighted.
12.12. He denied the suggestion that neither he nor John Minj were present at the place of incident. He denied the suggestion that neither he nor John Minj were present in RML Hospital on the date of incident i.e. 19.05.2015. He further denied the suggestion that neither Chandran nor Vishnu had reached the hospital or the place of occurrence. He denied the suggestion that they both were not present in the hospital and because of this reason, police was in difficulty to identify the deceased. He denied the remaining suggestions.
State Vs. Sunny @ Babe & ors. Page no. 56 of 79 Digitally signed by Kiran Kiran Gupta Gupta Date:
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13. From the testimony of PW3 and PW6, it is evident that they were present on the spot at the time of incident. They had witnessed the entire incident. Both PW3 and PW6 have described the entire incident that four persons had caught hold of their employer Biju Varghese and they inflicted injuries to him with fist blows, leg blows and one of them had caught hold of Biju Varghese from the neck and the other person hit him with the helmet multiple times.
ROLE OF ACCUSED SUNNY @ BABE AND JITENDER
14. PW3 and PW6 during their testimony have deposed that they were present on the spot at the time of incident. PW3 has categorically deposed that when he tried to intervene in the situation, then accused Sunny pushed him. PW3 further deposed that accused Sunny said that "Aaj Biju Varghese ka kaam tamam kar denge" and asked the other co-accused persons to bring a hammer and knife. PW6 deposed that he saw accused Sunny was giving blows with legs and fists "laat ghusa" to deceased Biju State Vs. Sunny @ Babe & ors. Page no. 57 of 79 Digitally signed Kiran by Kiran Gupta Date: 2025.04.23 Gupta 14:55:40 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD Varghese. He had seen accused Babu @ Jitender had caught hold of Biju by his neck. Even PW3 categorically deposed that accused Jitender had caught hold of Biju Varghese from the neck from backside. PW3 further deposed that accused Sunny picked up the helmet which was kept on the motorcycle of Biju Varghese and struck the helmet repeatedly on his head. He further deposed that accused Sunny gave atleast 8 strikes with the helmet on the head of Biju Varghese. He further deposed that the helmet belonged to deceased Biju Varghese with which accused Sunny had given blows to the deceased. He has specifically deposed that only one accused was having the helmet. Three other assailants were not having any other thing in their hands. The three assailants were without any weapon of assault except Sunny @ Babe who was holding the helmet. He deposed that he had categorically stated the identity, brand, color of the helmet which the accused Sunny was holding.
14.1. Thus, both PW3 and PW6 have categorically deposed that while accused Jitender had caught hold of Biju Varghese from the neck, accused Sunny @ Babe gave multiple State Vs. Sunny @ Babe & ors. Page no. 58 of 79 Digitally signed by Kiran Kiran Gupta Date:
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blows with helmet on his head. The blood stained helmet with broken pieces of mirror belonging to deceased Biju Varghese was recovered from the spot. As per the MLC, the deceased had suffered 13 injuries. As per the postmortem report Ex.PW2/A, the deceased had suffered following external injuries:
1. Contusion with swelling, builsh red in color of size 4.5 x 4.5 cm, present over left parieto-temporal region.
2. Abraded contusion, bluish red in color of size 3.5 x 3.5 cm, present over left side of forehead, 3 cm above left supra-orbital margin.
3. Contusion, bluish red in color of size 4 x 3 cm, present over right side of forehead, 2.5 cm above right supra-
orbital margin.
4. Multiple lacerations varying in size from 0.1 x 0.1 x 0.1 cm to 0.8 x 0.2 x 0.1 cm , with ragged margins, present in an area of 2.5 x 2.2 cm over mid-forehead, just above medical end of right supra-orbital margin.
5. Contusion, bluish red in color of size 4.5 x 4 cm present over right eye witn sub-conjunctival hemorrhage in underlying bulbar conjunctiva.
6. Contused lacerated wound with ragged margins of size 2 x 0.5 x 0.3 cm, present over left eye lid and left mid- eyebrow. Lateral end of would is directed supero laterally.
State Vs. Sunny @ Babe & ors. Page no. 59 of 79 Digitally signed by Kiran Kiran Gupta Date:
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7. Contused lacerated wound with ragged margins of size 1.8 x 0.2 x 0.2 cm, present horizontally overlying inferior orbital margin on left eye.
8. Contused lacerated wound of size 1 x 0.5 x 0.2 cm with ragged margins, present over right side of root of nose.
9. Lacerated wound with ragged margins of size 2 x 0.1 x 0.1 cm, present on right aspect of nose behind nasal ala.
10. Contused lacerated wound with ragged margins of size 1.2 x 0.5 x 0.2 cm present on inner aspect of mid right half of upper lip.
11. Contused lacerated wound of size 1 x 0.5x 0.2 cm with ragged margins, present on outer aspect of mid right half of lower lip.
12. Contused lacerated wound with ragged margins of size 1.1 x 0.5 x 0.2 cm, present on inner aspect of mid right half of lower lip.
13. Abraded contusion, bluish red in color of size 4.5 x 4 cm present on inferior aspect of chin.
As per the postmortem report, all these injuries were sufficient to cause death in the ordinary course of nature.
State Vs. Sunny @ Babe & ors. Page no. 60 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 15:00:46 2025.04.23 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD 14.2. As per the subsequent opinion Ex.PW2/B, the description of the helmet i.e. weapon of offence is as follows:
" Weight of helmet - 1080 gms, Height - 21 cm. Dimensions of helmet's inlet 27 x 21 cm.
Face shield of helmet is absent. Multiple irregular, multi-directional scratches present all over outer aspect of helmet. From inside cushion material is torn and stained with dark brown stains (?blood)."
14.3. As per the opinion Ex.PW2/B, all the 13 injuries except injury no. 4 alongwith their corresponding internal injuries are possible with provided weapon of offence. Injury no. 4 could have been caused by hard and rough blunt force impact. Internal injuries on heart and lungs could have been produced by forceful blunt impact to chest like punching or kick.
14.4. PW-24 is an independent witness. He has categorically deposed that these injuries are sufficient to cause death in the ordinary course of nature and could have been caused with the helmet i.e. the weapon of offence. Cross-
State Vs. Sunny @ Babe & ors. Page no. 61 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 2025.04.23 15:00:52 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD examination of this witness did not reveal any inconsistencies that could undermine the credibility of the evidence. Consequently, it can be concluded that the fatal injuries inflicted by accused Sunny @ Babe were the direct cause of the death of Biju Varghese.
14.5. Thus, from the testimony of these witnesses, it is proved that the cause of death was combined effect of multiple injuries to head and contusion on heart and lungs consequent upon blunt force impact to head and chest which are collectively sufficient in ordinary course of nature to cause death. The weapon used was the helmet belonging to the deceased. The blows with the helmet were given by accused Sunny @ Babe while the co-accused Jitender had caught hold the deceased from his neck.
15. It had been vehemently argued by the counsel for accused Sunny @ Babe that no reliance can be placed upon the testimony of PW3/John Minj as he was neither present at the spot nor in the hospital. In order to support the said argument, the ld.
State Vs. Sunny @ Babe & ors. Page no. 62 of 79 Digitally signed by Kiran Kiran Gupta Date:
Gupta 2025.04.23 15:09:02 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD Defence Counsel has submitted that no blood stains were found on the clothes of John Minj and further his name is not mentioned either in the MLC or any of the documents prepared at the hospital and that the deceased was identified on the basis of the documents recovered from his possession and not on identification by John Minj.
15.1. These arguments of the ld. Defence Counsel are without any basis. As discussed above, PW3 John Minj has vividly described the entire incident and specifically deposed that on hearing the noise, he immediately came downstairs and saw that four persons were beating his employer Biju Varghese. He categorically deposed that when he tried to intervene, one of the said boys, to whom he identified as accused Sunny pushed him and asked for hammer or knife and said that "aaj Varghese ka kaam tamam kar denge". The fact that PW3 was present on the spot is corroborated with the testimony of PW6 and PW13. PW6 has categorically deposed that when he heard John saying that "malik ko kyun maar rahe ho", he immediately went down. He saw accused Sunny was giving blows with legs and fists "laat State Vs. Sunny @ Babe & ors. Page no. 63 of 79 Digitally signed Kiran by Kiran Gupta Date: Gupta 2025.04.23 15:09:07 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD ghusa" to deceased Biju Varghese. He had seen accused Babu ( Jitender) had caught hold of Biju by his neck. He had seen only two assailants. Since none of the persons present on the spot, came for help, he alongwith John went to call the police and they found one Police gypsy near Super Bazar. He told them that someone is beating his owner. Thereafter, police came there alongwith him and John. PW13 is the police official who met PW3 and PW6 at Super Bazar. He categorically deposed that few persons came running to him and informed about the incident. PW13 during his cross-examination categorically deposed that the employee of injured also accompanied them to the hospital. Merely because PW13 was unable to disclose the name of the said employee and that the name of the said employee is not part of the log book Ex.PW13/DA, is not fatal to the case of the prosecution as the presence of PW3/ John Minj on the spot is otherwise duly proved from the testimony of these witnesses.
15.2. Now, coming to the argument of the ld. Defence Counsel that name of PW3 John Minj is not stated in the MLC and other allied documents and that the identification of deceased State Vs. Sunny @ Babe & ors. Page no. 64 of 79 Digitally signed by Kiran Kiran Gupta Date:
Gupta 2025.04.23 15:09:13 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD was not done by him. To this, PW3 has categorically deposed that when they reached the hospital, the nurses took the injured inside the hospital and he remained with the PCR because the nurses stopped him not to follow injured inside the hospital. Since, PW3 was not allowed inside the hospital, where the injured Biju Varghese was taken, his name is not mentioned in the MLC and other documents. Due to this fact, PW11 Ct. Ankur who was on duty in the hospital did not see him and has deposed that there was no other person except him, deceased and the police personnel of the PCR and that the deceased was identified on the basis of documents found in his possession.
15.3. As regards the argument of ld. Defence Counsel that the clothes of John Minj did not get stained with the blood of the deceased, for this also, PW3 has explained that since he had caught the deceased from the side of his leg and the injury was on his head, his clothes did not get stained with the blood of the deceased.
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15.4. PW3 has sufficiently explained each and every fact and circumstance and stood the test of cross examination. Even PW6 and PW3 have corroborated the testimony of PW3 and stood the test of cross-examination.
16. It is argued by the ld. Defence Counsel for accused Sunny @ Babe and Jitender that there is no inquiry as to whom the helmet belonged. It is clarified that it is the case of prosecution that the helmet i.e. the weapon of offence, belonged to the deceased Biju Varghese and he was carrying the same when he left the office at around 11 pm. PW3 has categorically deposed that Biju Varghese was carrying his helmet and mobile phone when he left the office. He correctly identified the helmet Ex.PW3/P1 in the court to be the same helmet which belonged to Biju Varghese and with which the injuries were caused to Biju Varghese. As regards the argument that the blood found on the helmet did not match with the DNA of deceased, it is clarified that as per the FSL report Ex.PW29/A and Ex.PW29/B, the blood found on the helmet was of human. The lapse on the part of the IO for not asking the DNA of the blood on the helmet is State Vs. Sunny @ Babe & ors. Page no. 66 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 15:12:05 2025.04.23 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD immaterial and not fatal to the case of prosecution, in view of the specific testimony of PW3 that accused Sunny @ Babe hit the deceased with the helmet multiple times and subsequent opinion Ex.PW2/B.
17. It is argued by the ld. Counsel for accused Sunny @ Babe that as per the postmortem of deceased, half digested food was found in his stomach. It is submitted that there is contradiction in the testimony of PW3 and PW6 as to when the deceased ate his dinner, hence, no reliance can be placed upon their testimony. I have perused the testimony of PW3 and PW6. Minor contradiction in the testimony of PW3 and PW6, as to when the deceased ate his dinner is not fatal to the case of prosecution and the said contradiction cannot be termed as material contradiction. The argument of the ld. Defence counsel on this aspect is without any basis.
18. It is further argued by ld. Defence Counsel that no other public person who was present on the spot at the time of incident has been examined by the prosecution and that PW3 and State Vs. Sunny @ Babe & ors. Page no. 67 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 15:12:11 2025.04.23 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD PW6 are interested witnesses. It is common that in heinous offences, the public refrains from being the witness in order to avoid multiple court hearings. Further, prosecution has duly examined PW3, PW6, PW11 and PW13 and their testimony is sufficient to prove the offence. The argument of ld. Defence counsel that PW3 and PW6 are interested witnesses is without any basis. Merely because they are employees of the deceased, they cannot be said to be interested witnesses. Further, these two witnesses despite deposing that four persons were present at the time of incident, had only identified two accused persons and have failed to identify other two accused persons as the persons who were present on the spot. The ld. Defence Counsel has failed to show any motive of false implication by PW3 and PW6.
19. It is submitted by the Ld. Defence Counsel that the prosecution has failed to prove any motive of the accused persons to commit the murder of Biju Varghese. In Chandan v. The State (Delhi Admn.) 2024] 4 S.C.R. 94 : 2024 INSC 271, it has been held as follows:
State Vs. Sunny @ Babe & ors. Page no. 68 of 79 Digitally signed by Kiran Kiran Gupta Date:
Gupta 2025.04.23 15:12:16 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD "The argument of the defence that the prosecution has not been able to establish any motive on the accused for committing this dastardly act is in fact true, but since this is a case of eye-witness where there is nothing to discredit the eye-witness, the motive itself is of little relevance. It would be necessary to mention some of the leading cases on this aspect which are as under:
In Shivaji Genu Mohite v. State of Maharashtra, AIR 1973 SC 55, it was held that it is a well-settled principle in criminal jurisprudence that when ocular testimony inspires the confidence of the court, the prosecution is not required to establish motive. Mere absence of motive would not impinge on the testimony of a reliable eye-witness. Motive is an important factor for consideration in a case of circumstantial evidence. But when there is direct eye witness, motive is not significant. This is what was held:
"In case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye-witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye-witness is rendered untrustworthy"
State Vs. Sunny @ Babe & ors. Page no. 69 of 79
Digitally
signed by
Kiran Kiran Gupta
Date:
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The principle that the lack or absence of motive is inconsequential when direct evidence establishes the crime has been reiterated by this Court in Bikau Pandey v. State of Bihar, (2003) 12 SCC 616; Rajagopal v. Muthupandi, (2017) 11 SCC 120; Yogesh Singh v. Mahabeer Singh, (2017) 11 SCC 195."
19.1. In Manubhai Atabhai vs. State of Gujarat 2007 10 SCC 358, and Arun Nivalaji More vs. State of Maharashtra 2005 12 SCC 613, that when the ocular evidence of eye witnesses are reliable and well corroborated by medical, and other evidence also inspires the confidence that the accused had the intention to cause such fatal injuries, then such evidence is enough to prove the charge of murder beyond reasonable doubt.
This intention is to be gathered from a number of circumstances and evidence like the place of injury, the nature of the weapon, the force applied while inflicting the injury, and other such considerations. Whether the accused had any intention to kill the deceased has to be judged upon taking into consideration the facts of each case.
State Vs. Sunny @ Babe & ors. Page no. 70 of 79 Digitally signed by Kiran Kiran Gupta Date:
Gupta 2025.04.23 15:14:57 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD 19.2. In Nishan Singh vs.State of Punjab (2008) 17 SCC 505, where the accused person had snatched the weapon carried by someone else and brutally inflicted injuries on the deceased.
The Court stated that in such a case it cannot be said that he did not have the intention to cause death.
20. The argument of the Ld. Defence Counsel regarding absence of intent to commit murder is immaterial in the present case in view of the testimony of PW3 and PW6. Further the intent can be inferred from the circumstances surrounding the act, including the nature and location of the injuries inflicted, the weapon used, and the actions of the accused persons during the incident. The injuries were concentrated on the vital parts of the deceased's body such as head, forehead, mid-forehead, eyes, face, lip and chin. As per testimony of PW3, accused Sunny @ Babe gave around 8 strikes with the helmet to the deceased. As per testimony of PW6, accused Sunny @ Babe also hit the deceased with fists and blows. The deliberate continuous hitting multiple times with the helmet on the head and face of the State Vs. Sunny @ Babe & ors. Page no. 71 of 79 Digitally signed by Kiran Kiran Gupta Date:
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deceased indicates a clear intent to cause harm that could lead to death.
21. According to the testimony of PW3 and PW6 who are the eye witnesses, it is the accused Sunny @ Babe who inflicted injuries on the head and face of deceased with considerable force with the helmet while co-accused Jitender @ Babu had caught hold of the neck of the deceased. Under the provisions of Section 300 IPC, an intention to cause such injuries that are sufficient in the ordinary course of nature to cause death qualifies as murder, and even, if, ingredients other than intention to cause murder are proved, mere knowledge of the result of fatal actions is enough to ascribe culpability to the accused person. While the attack may not have been planned in advance, intent can emerge in the heat of the moment, particularly during a violent confrontation. PW3 has deposed that while hitting the deceased, the accused Sunny @ Babe asked the co-accused persons to bring a hammer and knife. PW3 has further deposed that when he intervened to save Biju Varghese, accused Sunny pushed him and said "aaj Biju Varghese ka kaam tamam kar State Vs. Sunny @ Babe & ors. Page no. 72 of 79 Digitally signed by Kiran Kiran Gupta Date:
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denge". He further deposed that accused Jitender had caught hold of Biju Varghese from the neck from backside and accused Sunny picked up the helmet which was kept on the motorcycle of Biju Varghese and struck the helmet repeatedly on his head. Even PW6 has deposed that when he went down, he saw accused Sunny was giving blows with legs and fists to Biju Varghese and accused Jitender had caught hold of Biju by his neck.
22. The act of accused Sunny using the helmet belonging to the deceased which was lying near to the place of incident and targeting his head and face with the said helmet causing multiple injuries and the act of co-accused Jitender that he caught hold of the deceased / Biju Varghese by neck during that time, is sufficient to establish the requisite common intention and intent for murder or at least knowledge of the possible consequences of one's actions and to hold these two accused persons liable for death of the deceased.
23. In Virsa Singh Vs. State of Punjab 1958 SCR 1495, it has been held that the prosecution must prove that there State Vs. Sunny @ Babe & ors. Page no. 73 of 79 Digitally signed by Kiran Kiran Gupta Date:
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was an intention to inflict that particular injury, that is to say that the injury was not accidental or unintentional or that some other kind of injury was intended, and that particular injury was sufficient in the ordinary course of nature to cause death. The third clause of section 300 speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. It was held that to bring the case under this part of the section the prosecution must establish objectively:
1. That a bodily injury is present;
2. That the nature of injury must be proved;
3. It must be proved that there was an intention to inflict that particular bodily injury;
4. That the injury inflicted is sufficient to cause death in the ordinary course of the nature.
The Court further held that:
"13. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under S. 300 (Thirdly). It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between State Vs. Sunny @ Babe & ors. Page no. 74 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 15:15:23 2025.04.23 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional."
24. This position has further been upheld by the Hon'ble Supreme Court of India in the case of Vinod Kumar vs. Amritpal (2021) 19 SCC 181, wherein the bench observed that:
"24. Once the prosecution establishes the existence of the three ingredients forming a part of "thirdly" in Section 300, it is irrelevant whether there was an intention on the part of the accused to cause death. Further, it does not matter that there was no intention even to cause the injury of a kind that is sufficient to cause death in ordinary course of nature. Even the knowledge that an act of that kind is likely to cause death is not necessary to attract "thirdly"."
State Vs. Sunny @ Babe & ors. Page no. 75 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 15:15:30 2025.04.23 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD
25. In the present case, the accused Sunny @ Babe inflicted multiple injuries on the head and face of deceased Biju Varghese with the helmet while co-accused Jitender @ Babu had caught hold of him from his neck. The accused Sunny @ Babe also gave leg and fist blows to the deceased on his other parts of the body. As discussed above, the deceased suffered 13 external injuries and the cause of death was combined effect of multiple injuries to head and contusion on heart and lungs consequent upon blunt force impact to head and chest which are collectively sufficient in ordinary course of nature to cause death. The fatal nature of these injuries, as confirmed by medical evidence, and the circumstances of the attack clearly point to an intent to cause death or at least an intention to inflict injuries with the knowledge that they were likely to result in death. Even, if, it is presumed that the accused Sunny @ Babe and Jitender @ Babu did not have an intention to cause such bodily injury, the act of causing multiple injuries on the head, face & chest with the helmet; with the leg & fist blows and co-accused Jitender holding the neck of deceased during the said act, is reflective of the State Vs. Sunny @ Babe & ors. Page no. 76 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 15:15:36 2025.04.23 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD knowledge that causing such injuries is likely to cause death in the ordinary course of nature.
26. In view of the above discussion, both accused Sunny @ Babe and Jitender @ Babu are convicted for the offence under S. 302/34 IPC.
ROLE OF ACCUSED SAURAV AND SATISH
27. As per record, TIP of both accused Saurav and Satish was conducted, however, PW3 and PW6 failed to identify both these persons during TIP as well as in the court as the persons who were present at the spot alongwith co-accused persons at the time of commission of the offence.
27.1 PW3 during his testimony deposed that there were other co-accused who were also beating Biju Varghese, but he cannot identify them. He does not know whether accused Saurav State Vs. Sunny @ Babe & ors. Page no. 77 of 79 Digitally signed by Kiran Kiran Date:
Gupta Gupta 2025.04.23 15:15:42 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD and Satish were present at the time of incident or not. He had shown the place of occurrence to the police. He had not identified any person who was put to TIP. Even on cross- examination by ld. Addl. PP for the State, he denied all the suggestions qua accused Satish and Saurav.
27.2. Even PW6 failed to identify accused Saurav and Satish during TIP as well as in the court. When he was confronted with his statement Ex.PW6/D dated 07.08.2015, he denied making any such statement. When his attention was drawn towards accused Saurav and Satish, he failed to identify them as assailants.
28. Since, both PW3 and PW6 have failed to identify accused Saurav and Satish as the persons who were present on the spot at the time of incident and in the absence of any other incriminating evidence against them, both accused Saurav and Satish are acquitted for the offence under S. 304/34 IPC.
State Vs. Sunny @ Babe & ors. Page no. 78 of 79 Digitally signed by Kiran Kiran Gupta Date:
Gupta 2025.04.23
15:15:56
+0530
FIR NO. 54/15
PS: BARAKHAMBA ROAD
CONCLUSION
The accused Sunny @ Babe and Jitender @ Babu are convicted for the offence under S. 302/34 IPC.
The accused Saurav and Satish are acquitted for the offence under S. 304/34 IPC.
Digitally
signed by
Kiran Kiran Gupta
Date:
Gupta 2025.04.23
15:16:06
+0530
ANNOUNCED IN THE OPEN (KIRAN GUPTA)
COURT ON 23.04.2025 ADDL. SESSIONS JUDGE-04 NEW DELHI DISTRICT PATIALA HOUSE COURTS NEW DELHI State Vs. Sunny @ Babe & ors. Page no. 79 of 79