Delhi District Court
State vs Dheeran @ Dheeraj on 8 November, 2024
IN THE COURT OF DR. RAKESH KUMAR
ADDITIONAL SESSIONS JUDGE (FTC-02), SOUTH EAST,
SAKET COURT COMPLEX, NEW DELHI
CNR No.DLSE010001122018
Session Case No.12/2018.
FIR no.508/2017
Police Station: Jaitpur
State
Versus
1. Dheeran @ Dheeraj
Son of Shri Kamal
Resident of A1/773, J.J. Colony,
Madanpur Khadar, Delhi.
2. Birju
Son of Shri Kamal,
Resident of A1/773, J.J. Colony,
Madanpur Khadar, Delhi. ..........Accused persons
SC No.12/2018
FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 1 of 66
Date of Institution : 31.12.2017
Judgment reserved on : 05.11.2024
Date of Decision : 08.11.2024
JUDGMENT
1. A police report was put up by the State through officer-in-charge of the police station Jaitpur before the concerned Metropolitan Magistrate with the view to take cognizance of offence under section 302 read with section 34 of the Indian Penal Code, 1860 (in short 'IPC') against the accused, namely, Dheeran @ Dheeraj for having committed the said offence and to proceed with committal of the case.
2. As per the police report, on 03.10.2017, this case FIR was registered against the accused Dheeran @ Dheeraj in police station Jaitpur for the offence punishable under section 304 IPC.
3. It is important to note here that at the time of filing of main police report, the co-accused Birju could not be arrested.
4. After arrest of the accused Birju, supplementary police report was filed on 06.02.2018.
SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 2 of 665. As per the police report, on receiving of DD No.15A regarding 'brought dead' at Trauma Center, AIIMS, Assistant Sub-Inspector Kumehar along with Constable Mukesh reached at Trauma Center, AIIMS where Sub-Inspector Arvind Kumar was already present there and Sub-Inspector Arvind Kumar collected the MLC of the deceased; that further proceedings/action in respect of MLC No.500052400/2017 in respect of the deceased Govind son of Vijay, age 30 years, resident of A-1/772, J.J. Colony, Madanpur Khadar was assigned to Assistant Sub- Inspector Kumehar; that on MLC, it was noted 'A/H/O as per history given by neighbour Dheeraj A/H/O patient being found near his home at J.J. Colony near Sarita Vihar New Delhi after which patient was brought to J.P.N.T.C., AIIMS New Delhi and visible injuries on patient Wound 1. Laceration 2x1x1 cm B/L Dorsum of leg around mid Leg level, Wound 2. Bruise right Arm Diffuse Till Elbow, Wound 3. Abrasion left shoulder, Wound 4. Abrasion Multiple 3x2cm on face, Wound 5. Laceration right parietal Area of Scalp 3x1x1 cm were noted and the nature of injury were kept 'pending investigation'.
6. It is further reported in the police report that Assistant Sub-Inspector Kumehar sent the dead body of the deceased Govind to mortuary and searched for eye-witness was SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 3 of 66 made at the police station but none was found. It is further reported in the police report that Assistant Sub-Inspector Kumehar along with Constable Mukesh reached at house number A-1772, J.J. Colony, Madanpur Khadar, New Delhi and met Sita @ Sikha wife of the deceased and Vijay father of the deceased; on inquiry, Sita @ Sikha had informed the previous day that was on 02.10.2017 at about 10.30 p.m., his husband Govind and left by saying that he would be returning after sometime and asked Sita to close the gate, so, she went to see but her husband did not return home. It is further reported in the police report that the complainant Vijay got his statement recorded.
7. As per the police report, it is inter-alia, stated by the complainant Vijay in his statement that he used to work at Chawri Bazar, Delhi and also stayed there and used to come at home weekly; that his son Govind and daughter-in-law Sita @ Sikha lived at home; that at about 04.30 a.m. on that day, he had received a call on his mobile number 9582257237 from his neighbour Chote Lal's mobile number 9718871866 and he was informed that his son Govind had entered into the house of Dheeran @ Dheeraj for committing theft and he has been caught and they were calling him; that the complainant told that he would come in the morning; that at about 09.00 a.m. in the SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 4 of 66 morning, when he had reached at his home, Sita @ Sikha wife of Govind and the police were present there and when inquired about Govind from his wife Sita @ Sikha, she told that on the previous day that was on 02.10.2017 at about 10.30 p.m., Govind had left the house but had never come back and on inquiry from the people, she came to know that Govind had entered into the house of Dheeraj @ Dheeran at night and he had sustained injuries due to the beatings given by Dheeran @ Dheeraj and his health had seriously deteriorated and Dheeran @ Dheeraj had taken the deceased to the hospital; that the complainant had come to know from the police officials that his son was declared 'brought dead' by the doctor at Trauma Center AIIMS. It is further stated by the complainant that death of his son has been caused due to beatings given by Dheeran @ Dheeraj, therefore, appropriate action as per law be taken against him.
8. It is further reported in the police report that as per statement of the complainant, the circumstances and perusal of MLC, the offence under section 304 IPC has been made out and Assistant Sub-Inspector Kumehar had got a case registered under that section and further investigation was taken up by Sub- Inspector Arvind Kumar.
SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 5 of 669. It is further reported in the police report that during the course of investigation, the investigating officer had got the spot of incident inspected by crime team and its report was obtained which is attached with the file.
10. It is further reported in the police report that during the course of investigation, the eye-witness of the incident, Anil was joined in the investigation who informed that in the intervening night of 02nd and 03rd October, 2017 and about 03.15 a.m., he had received a call on his mobile number 9717439207 from Dheeran @ Dheeraj from his mobile phone 8743890889 and he informed that one thief had been caught and Dheeran had asked Anil to come over and see him; that he reached at the house of his neighbour Dheeran went inside and saw that Govind, neighbour of Dheeran was smeared in blood and his hands and legs had been tied with rope and in his presence, Dheeran had started beating Govind with the stick, he was having in his hand, so, Anil told Dheeran that it was matter of your neighbourhood, so, you deal with yourself and Anil had come out of his house; that after sometime, Dheeran had come out and Birju, elder brother of Dheeran, went inside the room and started beating Govind due to which Govind had started crying loudly by saying that he would return all the articles but they both brothers SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 6 of 66 had beaten Govind mercilessly. It is further reported in the police report that Sub-Inspector Arvind Kumar had prepared site-plan of the place of incident at the instance of the witness Anil and his statement under section 161 Cr.P.C and statement of other witnesses under section 161 Cr.P.C were recorded.
11. It is further reported in the police report that during the course of the investigation, on collection of sufficient evidence satisfying the arrest, the accused Dheeran @ Dheeraj was arrested, his separate disclosure statement was recorded and at the instance of the accused, the pointing out memo was prepared and the blood-stained stick used in the commission of offence was recovered and taken into police possession and blood-stained clothes of the accused and his mobile phone were taken into police possession vide seizure memo and on 04.10.2017, the above-said accused was produced in the Court and he was sent to judicial custody.
12. It is further reported in the police report that during the course of investigation, postmortem of the deceased Govind was got conducted and its report was obtained vide which cause of death was opined as, "Coma, due to ante mortem head injury consequent upon injury no.1, which is sufficient to cause death in ordinary course of nature. All injuries are ante mortem in nature SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 7 of 66 and caused by blunt force object/impact. Viscera are preserved to rule out any concomitant intoxication, if any."
13. It is further reported in the police report that on 06.10.2017 statement under section 164 Cr.P.C. of eye-witness Anil was got recorded by Ms. Swati Gupta, Ld. Metropolitan Magistrate, Saket Courts, New Delhi during which, he had supported his version given in statement under section 161 Cr.P.C.
14. As per the police report, it is inter-alia stated by the eye-witness Anil in his statement under section 164 Cr.P.C. that in the night of 02.10.2017 at about 03.00 a.m., he had received a call from Dheeran who told Anil that a thief has been caught and he asked Anil to come over; that firstly, he refused but on asking repeatedly, Anil had gone to his the house of Dheeran and saw that the deceased was lying there and his hands and legs were tied and a lot of blood had been oozed out from his body, therefore, Anil asked Dheeran to call the police but Dheeran told him that he will call police in the morning so, Anil came out and Dheeran followed him; that outside the house of Dheeran, Anil, Dheeran, elder brother of Dheeran and few people of the colony were standing there; that in the meantime, they listened from inside his house, "Dheeran bhai mujhe chor do. Main sara SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 8 of 66 samaan wapas kar dunga pehle ka bhi aur ab ka bhi."; that on hearing this, brother of Dheeran went inside in anger and brother of Dheeran had closed the gate and voice of the deceased came out from inside, "me sara saman wapas kar dunga mujhe chor do"; then brother of Dheeran had come out; that after 20-25 minutes Dheeran had gone inside and started beating the deceased and Anil saw that Dheeran had given 5-7 stick blows on the hips of the deceased and the deceased kept on saying, "Dheeran bhai chor do, ab nahi karunga"; that the deceased had lost his consciousness and after sometime, the deceased had vomitted, therefore, Anil and Dheeran had taken the deceased to police station by an auto; that he had gone to the hospital on asking of Dheeran and he had returned after leaving them in the hospital.
15. It is further reported in the police report that during the course of investigation, CDR and CAF of the accused Dheeran, eye-witness Anil, witness Chote Lal and Vijay (father of the deceased) were obtained from which it was revealed that the above-said persons had conversation on the day of incident.
16. It is further reported in the police report that during the course of investigation, all the exhibits were sent to FSL, Rohini vide FSL acknowledgment of case acceptance SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 9 of 66 No.FSL/2017 BIO-9406 Dated: 07.12.2017 & Road Certificate No.200/21/17, FSL Acknowledgment of case acceptance No.FSL/2017 CHE-9408 Dated: 07.12.2017 and Road Certificate No.201/21/17 and FSL result is still awaited and shall be filed by way of supplementary charge-sheet as and when it will be received.
17. It is further reported in the police report that on 20.12.2017, from the persual of post-mortem report of the deceased and facts and circumstances and as per the orders of senior officers, section 302/34 IPC was replaced with the section 304 IPC and further investigation of the case was undertaken by Inspector Sanjay Sinha, S.H.O. of the police station Jaitpur.
18. It is further reported in the police report that another accused involved in the present case, namely, Birju was still absconding, therefore, NBW against the accused was obtained and further investigation was being carried on and on the arrest of the accused Birju, appropriate action would be taken.
19. It is further reported in the police report that on 22.12.2017, the spot of incident was got inspected by a Draughtsman and scaled site-plan was got prepared and his statement under section 161 Cr.P.C. was recorded.
SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 10 of 6620. It is further reported in the police report that the accused Dheeran @ Dheeraj was in J.C. and sufficient evidence has been collected to proceed against him and statement of all the witnesses have been recorded under section 161 Cr.P.C.
21. It is further reported in the police report that the afore-said acts on the part of the accused, Dheeran @ Dheeraj revealed commission of offence punishable under section 302 read with section 34 of the Indian Penal Code, 1860. It is, therefore, prayed that cognizance of the offence committed by accused Dheeran @ Dheeraj may be taken and he should be tried as per the provisions of law.
22. After completion of the investigation, the investigating officer had filed the police report before the concerned Metropolitan Magistrate.
23. On the police report, on 02.01.2018, the Metropolitan Magistrate had taken the cognizance of the offence.
24. On the date of taking cognizance, the accused was also produced before the Metropolitan Magistrate. Copies of police report and other documents along with E-challan were supplied to the accused.
SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 11 of 6625. On the date of taking cognizance, the Metropolitan Magistrate found the offence to be exclusively triable by the Court of Session and therefore, committed the case to the Court of Session.
26. On 06.02.2018, a supplementary police report, after arrest and completion of investigation in respect of the co- accused Birju was filed by the investigating officer before the Metropolitan Magistrate. On that day, the accused Birju was also produced from judicial custody and copies of police report (both main and supplementary) and the documents attached therewith along with E-challan were supplied to the accused Birju and the supplementary police report was also committed to the Court of Session.
27. It is reported in the supplementary police report that during the course of investigation, searched for the co-accused Birju, who was evading his arrest, was made and NBWs for his arrest were obtained from the Court; that the accused Birju had surrendered on 18.01.2018 before the Learned Metropolitan Magistrate, therefore, the investigating officer had instructed Sub-Inspector Arvind Kumar, who on behalf of the investigating officer, made an application for seeking permission to arrest and interrogate the accused Birju and after interrogation and on SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 12 of 66 collection of sufficient material satisfying his arrest, accused Birju was arrested and documents regarding his arrest were prepared and his disclosure statement was recorded and he was sent to judicial custody and the investigating officer had recorded statements under section 161 Cr.P.C. of all the witnesses.
28. It is further reported in the supplementary police report that the afore-said acts on the part of the accused, Birju revealed commission of offence punishable under section 302 read with section 34 of the Indian Penal Code, 1860. It is, therefore, prayed that cognizance of the offence committed by accused Birju may be taken and he should be tried as per the provisions of law.
29. On 04.05.2022, during the trial of this case, another supplementary police report was filed before the Learned Metropolitan Magistrate which was committed to this Court.
30. As per the second supplementary police report, in the present case, exhibits were deposited for examination to the FSL, Rohini New Delhi vide memo number 10336/SHO/Jaitpur dated 07.12.2017 and the FSL result which was pending has been obtained, whereby, Dheeraj Bhardwaj, Senior Scientific Assistant (Biology), FSL has given report that the profile generated from SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 13 of 66 the source of exhibits clothes of the accused matched with the blood on gauze of the deceased; and Naval Kishore Joshi, Senior Scientific Officer (Chemistry), has reported that Ethyl Alcohol was found and examination for common poision was found negative on examination of viscera.
31. On 22.12.2018, upon considering the police reports and the documents sent with it under section 173 Cr.P.C. and after hearing the Additional Public Prosecutor and counsel for the accused persons, the charge was framed against the accused persons, namely, Dheeran @ Dheeraj and Birju for their having committed offence punishable under section 302 read with section 34, the Indian Penal Code.
32. The charge was read over and explained to the accused persons and they were asked if they pleaded guilty of the offence charged or claimed to be tried. The accused persons did not plead guilty and claim trial.
33. In support of its case, the prosecution got examined PW1 Vijay Kumar (complainant), PW2 Anil, PW3 Chote Lal, PW4 Sita, PW5 Assistant Sub-Inspector Kumehar Singh, PW6 Head Constable Mukesh, PW7 Head Constable Puneet, PW8 Head Constable Purshottam, PW9 Inspector Sanjay Sinha, PW10 SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 14 of 66 Sub-Inspector Arvind Kumar. During the examination of the prosecution witnesses, documents Ex.PW1/A, Ex.PW1/B, Ex.PW1/C, Ex.PW2/A, Ex.PW2/B, Ex.PW5/A, Ex.PW5/B, Ex.PW5/C, Ex.PW5/D, Ex.PW6/A, Ex.PW6/B, Ex.PW6/C, Ex.PW6/D, Ex.PW6/E, Ex.PW6/F, Ex.PW6/F1, Ex.PW6/G, Ex.PW6/H, Ex.PW6/I, Ex.PW6/J, Ex.PW6/K, Ex.A1 to Ex.A14, Ex.A8 Ex.PW7/A, Ex.PW7/B, Ex.PW8/A, Ex.PW9/A, Ex.PW10/A, Ex.PW10/B, Ex.PW10/C, Ex.PW10/D, Ex.PW10/E, Ex.PW10/F; and 'Pullanda' Ex.P1, Ex.P2, Ex.P3, Ex.P4 and Ex.P5 were also tendered in evidence.
34. On 18.04.2023, prosecution evidence was closed and matter was posted for examination of the accused persons under section 313 Cr.P.C and for their statements.
35. On 21.09.2023, this Court examined the accused persons under section 313 Cr.P.C. and their separate statements were recorded. During their examination under section 313 of Cr.P.C., the accused persons, namely, Dheeran @ Dheeraj and Birju denied the correctness of incriminating circumstances appearing in the evidence against them. During their examination under section 313 of Cr.P.C., the accused Dheeran @ Dheeraj took the defence that the deceased Govind had entered into their house for theft and when Govind tried to run away from there SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 15 of 66 after committing theft, the accused Dheeran tried to catch him, so, Govind got himself released and got injured by falling from Chajja. The accused Birju took the defence that on the date of incident, he was not present at the spot. It is further stated by the accused persons that have been falsely implicated in the present case. Both the accused persons expressed their desire not to lead evidence in their defence and the matter was fixed for final arguments.
36. I have heard Mr. Narender Yadav, Additional Public Prosecutor for the State and Mr. Raj Kumar Tanti, Advocate for the accused persons and have gone through the record of the case carefully.
37. Having drawn my attention on the testimonies of PW1 Vijay Kumar (complainant), PW2 Anil, PW3 Chote Lal, PW4 Sita, PW5 Assistant Sub-Inspector Kumehar Singh, PW6 Head Constable Mukesh, PW7 Head Constable Puneet, PW8 Head Constable Purshottam, PW9 Inspector Sanjay Sinha, PW10 Sub-Inspector Arvind Kumar and the documents Ex.PW1/A, Ex.PW1/B, Ex.PW1/C, Ex.PW2/A, Ex.PW2/B, Ex.PW5/A, Ex.PW5/B, Ex.PW5/C, Ex.PW5/D, Ex.PW6/A, Ex.PW6/B, Ex.PW6/C, Ex.PW6/D, Ex.PW6/E, Ex.PW6/F, Ex.PW6/F1, Ex.PW6/G, Ex.PW6/H, Ex.PW6/I, Ex.PW6/J, Ex.PW6/K, Ex.A1 SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 16 of 66 to Ex.A14, Ex.PW7/A, Ex.PW7/B, Ex.PW8/A, Ex.PW9/A, Ex.PW10/A, Ex.PW10/B, Ex.PW10/C, Ex.PW10/D, Ex.PW10/E, Ex.PW10/F; and 'Pullanda' Ex.P1, Ex.P2, Ex.P3, Ex.P4 and Ex.P5, learned Additional Public Prosecutor for the State has submitted that case started on receiving DD No.15A and the injuries sustained by the deceased were sufficient to cause death in ordinary course of nature. It is further submitted that the FSL report has been admitted wherein blood-stained clothes of the accused and the danda are matched. It is further submitted that the eye-witness Anil has also supported the prosecution's case under section 164 Cr.P.C. but during trial, the eye-witness partly turned hostile on the point of identification of co-accused. It is further submitted that PW5 Assistant Sub- Inspector Kumehar Singh is the first investigating officer and PW6 Head Constable Mukesh had accompanied him, who has also corroborated the testimonies of the first investigating officer. It is further submitted that PW10 Sub-Inspector Arvind, the second investigating officer has identified the danda and clothes of the accused. It is further submitted that the accused persons had admitted fourteen documents in their statement under section 294 Cr.P.C. It is further submitted that MLC of the deceased Govind itself shows that history was given by the neighbour Dheeraj who had taken the deceased. It is further submitted that SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 17 of 66 both the accused persons have caused death of the deceased and FSL report has also supported the case of the prosecution. It is further submitted that as per the provisions of section 99 of the Indian Evidence Act, right to private defence is not an unrestricted right and such right is subject to certain restrictions as provided for under such section.
38. Per contra, learned counsel for the accused persons has drawn my attention on the testimonies of PW1 Vijay Kumar (complainant), PW2 Anil, PW3 Chote Lal, PW4 Sita, PW5 Assistant Sub-Inspector Kumehar Singh, PW6 Head Constable Mukesh, PW7 Head Constable Puneet, PW8 Head Constable Purshottam, PW9 Inspector Sanjay Sinha, PW10 Sub-Inspector Arvind Kumar and the documents Ex.PW1/A, Ex.PW1/B, Ex.PW1/C, Ex.PW2/A, Ex.PW2/B, Ex.PW5/A, Ex.PW5/B, Ex.PW5/C, Ex.PW5/D, Ex.PW6/A, Ex.PW6/B, Ex.PW6/C, Ex.PW6/D, Ex.PW6/E, Ex.PW6/F, Ex.PW6/F1, Ex.PW6/G, Ex.PW6/H, Ex.PW6/I, Ex.PW6/J, Ex.PW6/K, Ex.A1 to Ex.A14, Ex.PW7/A, Ex.PW7/B, Ex.PW8/A, Ex.PW9/A, Ex.PW10/A, Ex.PW10/B, Ex.PW10/C, Ex.PW10/D, Ex.PW10/E, Ex.PW10/F; and 'Pullanda' Ex.P1, Ex.P2, Ex.P3, Ex.P4 and Ex.P5 and the law laid down in the judgment in Darshan Singh v. State of Punjab & Anr., [2010] 1 S.C.R. 642 (Criminal Appeal No.1057 of SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 18 of 66 2002) and submitted that in the FIR, name of co-accused Birju was not mentioned. It is further submitted that as per the testimonies of PW2 Anil (eye-witness), the accused Dheeran @ Dheeraj had given danda blows on the hips of the deceased Govind, whereas, the deceased sustained rest of the injuries by falling from the staircase while trying to flee away. It is further submitted that the accused persons acted in exercise of right to private defence. It is further submitted that as per the provisions of section 103 I.P.C., the right to private defence even extents to causing death of aggressor in certain conditions. It is further submitted that father of the deceased namely Vijay has admitted that there was no previous enmity between the deceased and the accused persons.
39. I have given my thoughtful consideration to the submissions made on behalf of the parties.
40. The accused persons have been charged for the offences punishable under sections 302/34 I.P.C. Section 302 IPC provides for punishment of murder. Whereas, the offence of murder has been defined under section 300 IPC. Section 300 IPC reads as follows: -
SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 19 of 66"300. Murder. - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, if-
Secondly.- If it is done with the intention of causing such bodily injury as the offence knows to be likely to cause the death of the person to whom the harm is caused, or-
Thirdly.- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
Fourthly.- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
41. The facts of the case have already been noticed earlier, here, I would like to only focus on the evidence that has been adduced by the prosecution.
42. To bring home the guilt of the accused persons, the prosecution had examined ten (10) witnesses.
43. PW1 Vijay Kumar (complainant) has deposed that he was residing at the given address since 2001 along with his family i.e. his wife and two sons namely Govind Kumar (deceased) and Aman Kumar. It is further deposed by PW1 Vijay Kumar that his wife had expired in year 2013 and his other son SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 20 of 66 Aman had also expired in year 2018. It is further deposed by PW1 Vijay Kumar that he worked as a polishing of the brass metals at Chawri Bazar and he used to come to his house once in a week and on remaining days, he used to stay at his work place. It is further deposed by PW1 Vijay Kumar that in the year 2017, his son Govind had got married with Sita @ Sikha and thereafter, his daughter-in-law also residing with them at the given house. It is further deposed by PW1 Vijay Kumar that on 03.10.2017, at around 04.30 a.m., he had received a call from the phone of his neighbour Chote Lal. It is further deposed by PW1 Vijay Kumar that he did not remember the mobile number, however he had mentioned the same in his complaint and stated that his mobile number is 9582257237. It is further deposed by PW1 Vijay Kumar that Chote Lal had talked to him over phone and thereafter, Birju had also talked to him over phone and Birju had informed him that they had apprehended his son Govind Kumar at his house as his son had entered there for committing the theft. It is further deposed by PW1 Vijay Kumar that accused Birju had also asked him to come there, however he had showed his inability to come there immediately and he had told that he would come tomorrow in the morning time. It is further deposed by PW1 Vijay Kumar that in the morning time, he had also received calls from the police officials asking to come soon at his SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 21 of 66 residence and he had informed them that he was on the way and reaching soon and at about 09.00 a.m. he had reached at his residence, where he had met his daughter-in-law Sita @ Sikha and police officials. It is further deposed by PW1 Vijay Kumar that he had asked from Sita who had informed him that at about 10.00 p.m. on 02.10.2017, his son Govind had told her that he was going outside and would return soon. It is further deposed by PW1 Vijay Kumar that Sita had told him that she had gone to sleep after closing the door and had also informed that his son Govind did not return home on that night.
44. It is further deposed by PW1 Vijay Kumar that his neighbours and other public persons had gathered at his house and he had come to know that Govind had entered into the house of accused Dheeran @ Dheeraj in the night who had beaten his son. It is further deposed by PW1 Vijay Kumar that he had also come to know that there were two other boys who had entered into the house of accused Dheeran @ Dheeraj with his son. It is further deposed by PW1 Vijay Kumar that he had also come to know that the said boys had fled away from the spot and could not be apprehended and his son Govind was shifted to AIIMS Trauma Centre as he had sustained injuries in the above said incident. It is further deposed by PW1 Vijay Kumar that he had SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 22 of 66 also gone to AIIMS Trauma Centre where he had come to know that his son was declared 'brought dead' by doctor.
45. PW1 Vijay Kumar had correctly identified the accused persons namely , present in the court and stated that they had beaten his son Govind. It is further deposed by PW1 Vijay Kumar that he did not remember the specific names of the persons who had informed him about the incident. It is further deposed by PW1 Vijay Kumar that the present FIR was registered on his complaint Ex.PW1/A and he had identified the dead body of his son vide memo Ex.PW1/B and after postmortem, the dead body was handed over to him vide Ex.PW1/C. It is further deposed by PW1 Vijay Kumar that the death of his son had occurred due to the beatings given by the accused persons. PW1 Vijay Kumar has further stated that the investigating officer had made inquiries from him and had recorded his statement.
46. PW2 Anil has deposed that he did not remember the date, month, year and time of the incident however, on the day of the incident, at about 03.00 a.m., he had received call from the accused Dheeran @ Dheeraj on his mobile number 9717439207. It is further deposed by PW2 Anil that he did not remember the mobile number of the said accused but over phone, the accused SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 23 of 66 Dheeraj had told that he had apprehended one thief at his house thereafter, he had gone to his house and saw that thief was tied with the ropes, thereafter, he had come out from his house and the accused Dheeraj had also come out. It is further deposed by PW2 Anil that the thief had told the accused Dheeraj that he would return all the stolen articles to him and a crowd was gathered outside his house. It is further deposed by PW2 Anil that one unknown person had gone inside the house of the accused Dheeraj where the thief was kept detained and saw that the accused Dheeraj had given three danda blows on the back of thigh of the said thief. It is further deposed by PW2 Anil that the thief had vomited after 20-25 minutes of the said beatings and the accused Dheeraj had asked him to arrange for an auto to go to the hospital. It is further deposed by PW2 Anil that the accused Dheeraj had managed to bring one auto and the said thief was taken to hospital in the said auto. It is further deposed by PW2 Anil that he had also accompanied them and on the way, the said thief had coughed thrice and when they had reached near South Extension, the said thief stopped talking. It is further deposed by PW2 Anil that they had reached at the hospital and he along with the accused Dheeraj had managed the said thief to lie down on the stretcher and the accused Dheeraj had taken the said thief SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 24 of 66 inside the hospital, thereafter he had left hospital as he had to go for his duty.
47. It is further deposed by PW2 Anil that on the same day, police had called him at around 12.30 p.m. and thereafter, he had reached at the police station where police had enquired from him and had recorded his statement. It is further deposed by PW2 Anil that he was not taken to the spot and he was detained for three days at different places by police. It is further deposed by PW2 Anil that police asked me to write that 'aapko ghar jane de rahe hain' lekin jane nahi diya and police had made him to sign on the said note but did not allow him to go home. It is further deposed by PW2 Anil that the SHO had asked him to state the truth whatever he had seen and police officials had taken him to record his statement before Ld. Judge and his statement was recorded by the Ld Judge vide Ex.PW2/A.
48. PW2 Anil has correctly identified the accused Dheeraj in the court and deposed that the accused had assaulted the said thief with danda about 3-4 times. It is further deposed by PW2 Anil that he had not seen anybody else who had given beatings to the said thief and he did not know the other accused. PW2 Anil has deposed that he did not know the other accused as he has not seen him at the spot as there was lot of crowd. PW2 SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 25 of 66 Anil has admitted that the site-plan (Ex.PW2/B) bears his signature at point A. PW2 Anil has admitted that he had stated before Ld Judge that elder brother of the accused Dheeraj was present at the spot but the witness has voluntarily stated that he does not know the elder brother of the accused Dheeraj. PW2 Anil has admitted that he had stated before Ld Judge that the elder brother of the accused Dheeraj had gone inside the room out of anger after closing the gate partially but the witness has voluntarily stated that he had never seen him. PW2 Anil has also admitted that the said thief has become unconscious at the spot. PW2 has also admitted that he had stated before Ld Judge that when the elder brother of the accused Dheeraj was present inside the room, the said thief was saying 'mai sara samaan wapis kar dunga, mujhe chor do'.
49. PW3 Chote Lal has deposed that on 02.10.2017 at about 03.00/04.00 a.m. Birju or Dheeran had come to his house and asked the mobile number of uncle Vijay. It is further deposed by PW3 Chote Lal that he had handed over the mobile phone to one of them and had taken the mobile number of Vijay. It is further deposed by PW3 Chote Lal that Birju or Dheeran were also residing in the same locality where he was residing and his mobile phone was handed over by them and thereafter he slept. It SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 26 of 66 is further deposed by PW3 Chote Lal that on the next day, he had gone to his office and on the same day in the evening time, when he had come back to his house he came to know that Govind had expired as Dheeran had beaten him.
50. PW4 Sita (wife of the deceased) has deposed that on 02.10.2017, at about 10.00 PM, her husband had left home and he had told her that "ki mai abhi aa raha hun thodi der mai", thereafter, she had gone to her room. It is further deposed by PW4 Sita that on the morning of next day, one person namely Anil Bhaiya had come to her house and he told her that "aapke husband to maar peet karke, hospital le gaye hain", thereafter, she had reached at the hospital and she had come to know that her husband had expired. PW4 Sita has pointed out towards both of the accused persons who were present in the court and said that "inhone mere pati ka murder kiya hai". It is further deposed by PW4 Sita that she had also come to know in the hospital that both of the accused person who were present in the court had left from the hospital. During her examination-in-chief, the witness has started crying and deposed that Anil Bhaiya had told her that her husband was killed by the accused persons with the help of axe and knife at the house of accused Birju. It is further deposed by PW4 Sita that on 03.10.2017, she had taken dead body of her SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 27 of 66 husband from hospital and his last rites were performed and due to the said incidence her dewar namely Aman had committed suicide.
51. PW5 Assistant Sub-Inspector Kumehar Singh (now Sub-Inspector) has deposed that on the intervening night of 02/03.10.2017, he was posted as ASI at PS Jaitpur and on that night, he was on emergency duty and his duty hours were from 08.00 p.m. to 08.00 a.m. It is further deposed by PW5 Assistant Sub-Inspector Kumehar Singh that on that day, he had received DD No.15A Ex.A2 from the AIIMS Trauma Center, thereafter, he along with Constable Mukesh had gone to AIIMS Trauma Center, where they had met Sub-Inspector Arvind and he had collected the MLC No.500052400 dated 03.10.2017 of the deceased Govind. It is further deposed by PW5 Assistant Sub- Inspector Kumehar Singh that he had searched the eye-witness but could not be find and the injured was declared dead by the doctors. It is further deposed by PW5 Assistant Sub-Inspector Kumehar Singh that he got preserved the dead body in the mortuary of AIIMS Trauma Center and had gone to the house of the deceased i.e. A-1/772, J.J. Colony, Madanpur Khadar, where they had met the wife of the deceased namely Sita @ Sikha and father Vijay. It is further deposed by PW5 Assistant Sub-
SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 28 of 66Inspector Kumehar Singh that Sita had told him that on 02.10.2017 at about 10.30 p.m., her husband (deceased) had left the house after taking meal and had told them that he would return after sometime, however, he had not came back to the house in the night. It is further deposed by PW5 Assistant Sub- Inspector Kumehar Singh that he had called the crime-team at the spot, thereafter, he had recorded statement of father of the deceased Ex.PW1/A and had prepared the rukka Ex.PW5/A and had handed over the same to Constable Mukesh for registration of the case and thereafter, investigation was handed over to Sub- Inspector Arvind Kumar. It is further deposed by PW5 Assistant Sub-Inspector Kumehar Singh that after registration of the FIR, Constable Mukesh and Sub-Inspector Arvind Kumar had come at the house of the deceased and the investigating officer had recorded his statement and had left the spot.
52. It is further deposed by PW5 Assistant Sub-Inspector Kumehar Singh that on the next day i.e. 04.10.2014, he had joined the investigation and had gone to the mortuary of the AIIMS Trauma center where he had recorded dead body identification statement of Monu Ex.PW5/B and Vijay Kumar Ex.PW1/B, thereafter, he had prepared Inquest papers of postmortem of the deceased Ex.PW5/C. It is further deposed by SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 29 of 66 PW5 Assistant Sub-Inspector Kumehar Singh that he had also filled-up the Form 25.35 (1)(B) Ex.PW5/D and after the postmortem of the deceased, dead-body was handed over to his family members vide receipt Ex.PW1/C, thereafter, he had returned to police station and had handed over the documents to the investigating officer who had recorded his statement and the witness had told him that viscera report was not ready and which was later on collected by the investigating officer.
53. PW6 Head Constable Mukesh has deposed that he was on emergency duty on the intervening night of 2 nd and 3rd October, 2017 from 08:00 p.m. to 08:00 a.m. and on the morning of 03.10.2017, DD No.15A was received by Assistant Sub- Inspector Kumehar Singh regarding admission of one person in the hospital. It is further deposed by PW6 Head Constable Mukesh that he along with Assistant Sub-Inspector Kumehar Singh had gone to AIIMS Trauma Center and had found that the deceased Govind son of Vijay was admitted in the hospital and his MLC was prepared. It is further deposed by PW6 Head Constable Mukesh that the dead body was got shifted to AIIMS Mortuary and he along with Assistant Sub-Inspector Kumehar Singh had visited the house of deceased where they had met wife of the deceased namely Sita @ Shikha and his father Vijay. It is SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 30 of 66 further deposed by PW6 Head Constable Mukesh that Assistant Sub-Inspector Kumehar Singh had recorded the statement of his father Vijay and had handed over the same to him for registration of FIR and he had taken the rukka to police station and had got the FIR registered through duty officer Assistant Sub-Inspector Naresh. It is further deposed by PW6 Head Constable Mukesh that after registration of FIR, further investigation was marked to Sub-Inspector Arvind and he had handed over the copy of FIR along with original Tehrir to Sub-Inspector Arvind.
54. It is further deposed by PW6 Head Constable Mukesh that he along with Sub-Inspector Arvind had gone to the spot i.e., H. No. 1/773, A Block, JJ Colony, Madanpur Khadar and the investigating officer had seized blood sample with the help of cotton lying at the spot and same was preserved in a tube having yellow colour cap and had seized vide seizure memo Ex.PW6/A. It is further deposed by PW6 Head Constable Mukesh that the investigating officer had also seized multi coloured pearls lying of the floor of the room vide seizure memo Ex.PW6/B and the investigating officer had also seized blood- stained earth control and earth control from the floor of the room vide seizure memos Ex.PW6/C and Ex.PW6/D. It is further deposed by PW6 Head Constable Mukesh that Sub-Inspector SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 31 of 66 Arvind had prepared the site-plan Ex.PW2/B and the investigating officer had arrested accused Dheeraj @ Dheeran vide arrest memo Ex.PW6/E and had conducted his personal search vide memo Ex.PW6/F. It is further deposed by PW6 Head Constable Mukesh that during search of accused, one mobile phone make Intex 205 was recovered which was seized by the investigating officer vide memo Ex.PW6/F1 and the disclosure statement of accused was also recorded vide Ex.PW6/G. It is further deposed by PW6 Head Constable Mukesh that the investigating officer had prepared pointing out memo of the place of occurrence at the instance of accused Dheeraj Ex.PW6/H. It is further deposed by PW6 Head Constable Mukesh that the accused Dheeraj had disclosed that he was wearing same clothes at the time of incident which were worn by him when he was apprehended and on the instruction of the investigating officer, he changed his clothes and the investigating officer had seized his shirt having blood-stains and blue jeans having blood-stains vide seizure memo Ex.PW6/I. It is further deposed by PW6 Head Constable Mukesh that the investigating officer had also got recovered one danda used by the accused in the commission of offence from the terrace of A-1/773, JJ colony, Madanpur Khadar and had seized the same vide seizure memo Ex.PW6/J. It is further deposed by PW6 Head Constable Mukesh that the SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 32 of 66 accused had also produced one attendant pass which was issued to him at the time of getting admitted the deceased in the hospital and same was seized by the investigating officer vide seizure memo Ex.PW6/K. The pass Ex.P1 was shown to the witness which was correctly identified by him and the investigating officer had recorded his statement. PW6 Head Constable Mukesh has correctly identified the accused Dheeraj @ Dheeran, who was present in the court. PW6 Head Constable Mukesh has correctly identified the case property i.e. colourful pearls (16 black colour 4 yellow, 4 green and 2 red) Ex.P2 (colly) and stated that the same was recovered from the house number A-1/773 J.J Colony Mandarpur Khadar. PW6 Head Constable Mukesh has also correctly identified the case property i.e. blood-stained danda measuring about 42 inch Ex.P3 and stated that the same was recovered from the house of the accused at his instance. PW6 Head Constable Mukesh has correctly identified the mobile phone make intex 205 black and red colour Ex.P4 and stated that the same was recovered from the possession of accused. PW6 Head Constable Mukesh has also correctly identified the case property i.e. blood-stained light blue, grey and white colour check half sleeves shirt and blue colour jeans Ex.P5 (colly) and stated that the same was worn by the accused at the time of commission of offence.
SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 33 of 6655. PW7 Head Constable Puneet has deposed that on 03.10.2017, he was posted as photographer with crime-team south east district and he along with Head Constable Rakam, In- charge crime-team had gone to the house number A-1/773, J.J. Colony, Madanpur Khadar, Delhi. It is further deposed by PW7 Head Constable Puneet that the spot was inspected by Head Constable Rakam who took the photographs from different angels and prepared the scene of crime-team report Ex. A6. PW7 Head Constable Puneet has correctly identified the seven photographs PW7/A (colly) and negatives Ex. PW7/B (colly) of the same.
56. PW8 Head Constable Purshotam has deposed that on 13.10.2017, he was posted as Constable at police station Jaitpur and on that day, on the instruction of the Investigating officer/Sub-Inspector Arvind, he had gone to AIIMS Hospital. It is further deposed by PW8 Head Constable Purshotam that after postmortem of the deceased Govind, doctor had handed over him the exhibits and sample seals and had also collected PM report, thereafter, he had returned to the police station and had handed over the same to the investigating officer who seized the same vide seizure memo Ex.PW8/A, thereafter, the investigating officer had recorded his statement. PW8 Head Constable SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 34 of 66 Purshotam has further deposed that so long the exhibits remained in his possession, no tempering was made.
57. PW9 Inspector Sanjay Sinha has deposed that on 20.12.2017, he was posted as SHO at police station Jaitpur and on that day, investigation of the present case was conducted by him and after discussion with senior officials and on perusal of PM report, he altered the section 302 IPC in place of 304 IPC in this case. It is further deposed by PW9 Inspector Sanjay Sinha that during investigation, he had searched co-accused Birju and had obtained his NBWs vide application Ex.PW9/A through Sub- Inspector Rajiv Kumar.
58. It is further deposed by PW9 Inspector Sanjay Sinha that on 22.12.2017, he had got prepared the scaled site-plan and had recorded the statement of draughtsman concerned and after the completion of the investigation, he had prepared the charge- sheet and submitted before the court.
59. PW10 Sub-Inspector Arvind Kumar has deposed that on 02.10.2017, on a rukka prepared by Assistant Sub- Inspector Kumehar Singh, the present case was registered under section 304 IPC and the investigation, after registration of case was assigned to him. It is further deposed by PW10 Sub-
SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 35 of 66Inspector Arvind Kumar that he along with Constable Mukesh had reached the spot at A-1/773, J.J. Colony Madan Pur Khadar and had examined the witnesses. It is further deposed by PW10 Sub-Inspector Arvind Kumar that he had also called the crime- team at the spot and had got it inspected and photographed. It is further deposed by PW10 Sub-Inspector Arvind Kumar that he had also collected the exhibits, sealed the same with the seal of 'AK', and had taken into possession vide seizure memos Ex.PW6/A, Ex.PW6/B, Ex.PW6/C, Ex.PW6/D and Ex.PW8/A and had also met eye-witness Anil and had recorded his statement u/s 161 CrPC. It is further deposed by PW10 Sub-Inspector Arvind Kumar that before recording the statement of eye- witness, he had also prepared site-plan Ex.PW2/B at the instance of Anil and also recorded the statement of one Chote Lal. It is further deposed by PW10 Sub-Inspector Arvind Kumar that he had also got recorded the statement of PW Anil under section 164 CrPC vide application, the carbon copy of which Ex.PW10/A. It is further deposed by PW10 Sub-Inspector Arvind Kumar that the accused was arrested in this case vide arrest memo Ex.PW6/E and his personal search was got conducted vide memo Ex.PW6/F and he had also recorded his disclosure statement Ex.PW6/G. It is further deposed by PW10 Sub- Inspector Arvind Kumar that he had also prepared pointing out SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 36 of 66 memos Ex.PW6/H and Ex.PW6/J at the instance of accused Dheeraj @ Dheeran and had recovered the weapon of offence ie. one danda having a length of 42 inches. It is further deposed by PW10 Sub-Inspector Arvind Kumar that the blood-stained clothes of accused as well as his mobile phone were taken into possession vide seizure memo Ex.PW6/E and Ex.PW6/F1 and had also recovered the patient attendance pass Ex.PW10/B from accused, vide which he got the deceased admitted at AIIMS Trauma Center and had seized the same vide memo Ex.PW6/J. It is further deposed by PW10 Sub-Inspector Arvind Kumar that accused was thereafter, produced before the Court and sent to judicial custody.
60. It is further deposed by PW10 Sub-Inspector Arvind Kumar that on 18.01.2018, he had come to know about surrender application moved by accused Birju before the Court of Ld. MM, when he had come to Saket Courts and had moved an application Ex.PW10/C for interrogation and formal arrest of accused and after obtaining necessary permission from the Ld. MM, accused was interrogated and formally arrested in this case by him vide arrest memo Ex.PW10/D and his personal search was conducted by him vide memo Ex.PW10/E. It is further deposed by PW10 Sub-Inspector Arvind Kumar that he had also recorded his SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 37 of 66 disclosure statement Ex.PW10/F. PW10 Sub-Inspector Arvind Kumar has correctly identified both the accused persons present in the court.
61. PW10 Sub-Inspector Arvind Kumar has correctly identified one bamboo stick Ex.P3, one half sleeves shirt, light blue, gray and white coloured checks and one navy blue jeans with up-2-date Ex.P5 (colly.), one black and red colour mobile phone make 'Intex 205' Ex.P4, some pearls (total 25) Ex. P2 (colly.) and stated that the same were recovered from the house of accused.
62. It is also important to note here that during prosecution evidence, on 04.07.2022, both the accused persons, namely, Dheeran @ Dheeraj and Birju have made identical separate statements under section 294 Cr.P.C., which is reproduced as under: -
I am the accused in the present case. I admit copy of FIR along with certificate u/s 65B Indian Evidence Act as Ex. Al (colly), DD No. 15A dated 03.10.2017 as Ex. A2, scaled site plan as Ex.A3, MLC of deceased Govind as Ex.A4, postmortem report of deceased as Ex.
AS, crime scene report as Ex.A6, statement of witness Anil u/s 164 Cr.P.C.
SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 38 of 66as Ex. A7, CDR and CAF along with certificate u/s 65B Indian Evidence Act of Mobile No. 9717439207 (Airtel) as Ex. A8 (colly), CDR and CAF along with certificate u/s 65B Indian Evidence Act of Mobile No. 9582257237 (Vodafone) as Ex. A9 (colly), CDR and CAF along with certificate u/s 65B Indian Evidence Act of Mobile Nos.
8743890889 and 9718871866 (Idea) as Ex. A10 (colly), copy of RC No. 200/21/17 and RC No. 201/21/17 both dated 07.12.2017 as Ex. All and Ex. A12 respectively, FSL reports dated 09.02.2018 and 31.01.2018 as Ex. A13 and Ex. A14 respectively.
63. In the light of statements of the accused persons under section 294 Cr.P.C., it was ordered that the above-said documents shall be read into evidence without formal proof of same.
64. In the light of the charge framed against accused persons and the arguments advanced before the Court, following are the points for determination:
1.Whether the accused persons, in furtherance of the common intention of both of them, have caused death of the deceased Govind, with the intention of causing SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 39 of 66 death, or with the intention of causing such bodily injury as the offender knows to be likely to cause death of the person to whom harm is caused., or with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death., or with the knowledge that the fact is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death.
2. Whether the accused persons had acted in exercise of their right to private defence.
3. Whether the accused Birju was not present at the time and place of incident.
DISCUSSION ON THE POINTS FOR DETERMINATION
65. Initially, the present case was registered for the offence punishable under section 304 IPC. However, the police report was filed by the investigating officer for the offence punishable under section 302 IPC. As per the testimonies of PW9 Inspector Sanjay Sinha, who was posted as SHO of the police station concerned, during the course of investigation, after SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 40 of 66 discussion with the senior officers and on perusal of the postmortem report, he had altered Section 302 IPC in place of section 304 IPC in the present case.
66. The accused persons have been charged for having committed an offence under section 302 read with section 34 IPC. The essential ingredients of the offence under section 302 are as follows:
(1) Death of a human was being caused;
(2) Such death was caused by or in consequence of the act of the accused;
(3) Such act was done-
(a) with the intention of causing death, or
(b) that the accused knew it to be likely to cause death, or
(c) that the injury was sufficient in the ordinary course of nature to cause death.
67. On the points of determination, to prove the commission of offence, the testimonies of PW1 Vijay Kumar, PW2 Anil, PW3 Chote Lal, PW4 Sita, PW5 Assistant Sub- Inspector Kumehar Singh, PW6 Head Constable Mukesh are relevant.
68. In the present case, the criminal justice system was set into motion on receiving of a DD no.15A (Ex.A2) regarding the deceased being brought dead at Trauma Center, AIIMS. As SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 41 of 66 per the testimonies of PW5 Assistant Sub-Inspector Kumehar Singh and PW6 Head Constable Mukesh, in the intervening night of 2nd and 3rd of October, 2017, during their emergency duty on receiving of DD no.15A (Ex.A2), they had gone to Trauma Center AIIMS and found the deceased Govind son of Vijay was admitted in the hospital and his MLC was prepared; they got the dead body of the deceased shifted to AIIMS mortuary.
69. As per the testimonies of PW5 Assistant Sub- Inspector Kumehar Singh and PW6 Head Constable Mukesh, they had visited the house of the deceased and met Ms. Sita @ Sikha, wife of the deceased and Vijay, father of the deceased and recorded the statement of Vijay, the father of the deceased.
70. As per the testimonies of PW1 Vijay, on 03.10.2017, at around 04.30 a.m., he had received a call from the phone of his neighbour Chote Lal on his mobile number 9582257237 and firstly, Chote Lal had talked to him over phone and thereafter, Birju had also talked to him and Birju had informed him that they had apprehended his son Govind Kumar at his house as his son had entered there for committing the theft and the accused Birju had also asked him to come there, however, PW1 Vijay Kumar had showed his inability to come there immediately and he had told that he would come the next day in the morning and in the SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 42 of 66 morning time, PW1 Vijay Kumar had also received calls from the police officials asking to come soon at his residence and at about 09.00 a.m., PW1 Vijay Kumar had reached at his residence, where he had met his daughter-in-law Sita @ Sikha and police officials and Sita had informed him that at about 10.00 p.m. on 02.10.2017, his son Govind had told her that he was going outside and would return soon and she had gone to sleep after closing the door but his son Govind did not return home on that night.
71. It is also in the evidence of PW1 Vijay Kumar that his neighbours and other public persons had gathered at his house and he had come to know that Govind had entered into the house of the accused Dheeran @ Dheeraj in the night who had beaten his son. PW1 Vijay Kumar had also come to know that there were two other boys who had entered into the house of accused Dheeran @ Dheeraj with his son and the said boys had fled away from the spot and could not be apprehended.
72. Regarding registration of FIR, testimonies of PW1 Vijay Kumar, PW5 Assistant Sub-Inspector Kumehar Singh, PW6 Head Constable Mukesh and PW10 Sub-Inspector Arvind Kumar are relevant.
SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 43 of 6673. As per the testimonies of PW1 Vijay Kumar, PW5 Assistant Sub-Inspector Kumehar Singh, PW6 Head Constable Mukesh, and PW10 Sub-Inspector Arvind Kumar, Sub-Inspector Arvind Kumar (PW10) recorded the statement of the eyewitness, namely, Anil (PW2), PW5 Assistant Sub-Inspector Kumehar Singh prepared the 'rukka' and handed over it to Constable Mukesh (PW6) for getting the FIR registered.
74. As per the testimonies of PW10 Sub-Inspector Arvind Kumar and PW6 Head Constable Mukesh, PW6 Head Constable Mukesh had gone to the police station, gave 'rukka' (Ex.PW5/A) to Assistant Sub-Inspector Naresh, working as Duty Officer in the police station and got the FIR (Ex.A1 colly.) registered, handed it over to Head Constable Mukesh (PW6) and handed over the copy of FIR and original 'rukka' to Sub- Inspector Arvind Kumar (PW10) as further investigation of the present case was assigned to him.
75. From the testimonies of PW1 Vijay Kumar, PW5 Assistant Sub-Inspector Kumehar Singh, PW6 Head Constable Mukesh and PW10 Sub-Inspector Arvind Kumar, the prosecution has been successful in proving the registration of FIR against the accused persons. During the cross-examination of prosecution witnesses and in the course of arguments, the registration of FIR SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 44 of 66 against the accused persons have not been disputed by the defence counsel. No delay in the registration of FIR has been pointed out by the defence. Even otherwise, the accused persons have admitted the FIR along with certificate under section 65 B of Indian Evidence Act (Ex.A1colly.), therefore, these documents can be read into evidence without formal proof of same.
76. In order to bring home the guilt of the accused persons, the most relevant witness produced by the prosecution is PW2 Anil. PW2 Anil is neighbour of the deceased as well as the accused persons. As per the testimonies of PW2 Anil, on the day of incident at about 03.00 a.m., on receiving a call on his mobile number 9717439207 from the accused Dheeran @ Dheeraj who told PW2 Anil that the accused had apprehended one thief at his house, PW2 Anil had gone to the house of the accused and saw that the thief was tied with the ropes. It is also in the evidence of PW2 Anil that he had come out from his house and the accused Dheeraj had also come out and the thief told the accused Dheeraj that he would return all the stolen articles to him. It is also in the evidence of PW2 Anil that thereafter one unknown person had gone inside the house of the accused Dheeran where the thief was kept detained and PW2 Anil had seen the accused Dheeraj had given three danda blows on the back of thigh of said thief and the SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 45 of 66 thief had vomited after 20/25 minutes of the said beatings. It is also in the evidence of PW2 Anil that the accused Dheeraj had asked him to arrange for an auto to go to hospital and Dheeraj had managed to bring one auto and the said thief was taken to hospital. It is also in the evidence of PW2 Anil that he had also accompanied the accused and the deceased and on the way, the thief had coughed thrice and when they reached near South- Extension, the said thief stopped talking and after reaching the hospital, he and the accused Dheeran @ Dheeraj had managed the thief to lie down on a stretcher and the accused Dheeraj had taken the said thief inside the hospital and PW2 had left the hospital.
77. It is also in the evidence of PW2 Anil that on the same day at around 12.30 p.m., he had reached the police station and the police inquired from him and recorded his statement and the police officials had also taken him to record his statement before the Judge and his statement was recorded. PW2 Anil has also proved his statement (Ex.PW2/A) and his signature on the statement under section 164 Cr.P.C. PW2 Anil has reiterated that the accused Dheeraj had assaulted the deceased with danda about 3-4 times.
SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 46 of 6678. PW2 Anil was cross-examined on behalf of the State with the permission of the Court as the witness had partly resiled from his statement made earlier to the police.
79. During his cross-examination conducted on behalf of the State, PW2 Anil has admitted that he had stated before Learned Judge that elder brother of the accused Dheeraj was present at the spot and he has made voluntarily statement that he did not know Birju. PW2 Anil has also admitted that he had stated before Learned Judge that the elder brother of the accused Dheeraj had gone inside the room with full of anger after closing the gate half. It is also admitted by PW2 Anil that the said thief became unconscious at the spot. PW2 Anil has also admitted that he had stated before Learned Judge that when the elder brother of the accused Dheeraj was present inside the room, the said thief was saying, 'mai sara samaan wapis kar dunga, mujhe chor do'.
80. During his cross-examination by the defence counsel, PW2 Anil has stated that he was not aware whether the said thief had fallen on his own while scaling up the existing wall of the house in order to save himself and sustained injuries.
81. Another important witness to prove the guilt of the accused persons is PW3 Chote Lal who is also a neighbour of the SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 47 of 66 accused persons as well as the deceased. As per the testimonies of PW3 Chote Lal, on 02.10.2017 at about 03.00/04.00 a.m., Birju or Dheeran had come to his house and asked the mobile number of uncle Vijay and he had handed over the mobile phone to one of them and had taken the mobile number of Vijay and his mobile phone was handed over by them and thereafter, he had gone to sleep and in the evening of next day, when he had come back from work, he had come to know that Govind had expired as Dheeran had beaten him.
82. During his cross-examination, PW3 Chote Lal has denied the suggestion put to him that he had not given mobile number of uncle Vijay to Dheeran and Birju. He has also denied the suggestion that they had not come to his house.
83. Testimonies of PW4 Smt. Sita, wife of the deceased are also of much importance and relevance to establish the guilt of the accused persons. Although, PW4 Smt. Sita is not a witness to the incident, but, her testimonies are relevant to prove the fact, which are so connected with the incident and they happened just before the incident. As per the testimonies of PW4 Smt. Sita, on 02.10.2017, at about 10.00 p.m., her husband had left home saying that "ki mai abhi aa raha hun thodi der mai" and on the morning of next day, one person namely Anil Bhaiya had come to SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 48 of 66 her house and told her that "aapke husband to maar peet karke, hospital le gaye hain", thereafter, she had reached at the hospital and she had come to know that her husband had expired. PW4 Sita has pointed out towards both of the accused persons who were present in the court and said that "inhone mere pati ka murder kiya hai". PW4 Smt. Sita had also come to know in the hospital that both of the accused persons who were present in the court had left from the hospital. During her examination-in-chief, the witness has started crying and stated that Anil Bhaiya had told her that her husband was killed by the accused persons with the help of axe and knife at the house of accused Birju. However, it may be noted that PW4 Smt. Sita is not a witness to the incident.
84. PW1 Vijay Kumar, father of the deceased was not present at the place of incident at the relevant time. As per the testimonies of PW1 Vijay Kumar, he had come to know that the accused persons, namely, Dheeran @ Dheeraj and Birju had beaten his son Govind and the death of his son had occurred due to the beatings given by the accused persons and the investigating officer had made inquiries from him and recorded his statement.
85. Other prosecution witnesses are police officials and they were not the witnesses of the incident.
SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 49 of 6686. From the conjoint reading of the evidence produced by the prosecution, it is clearly established that the deceased was caught inside the house of the accused Dheeraj @ Dheeran, who as per the version given by the accused Dheeraj @ Dheeran had entered into his house for the purpose of committing theft. For proving the guilt of the accused persons, the testimonies of PW2 Anil, an eye-witness are of much importance. In his evidence, PW2 Anil has proved that when the accused Dheeraj had called PW2 Anil and informed him that one thief has been apprehended at the accused's house, PW2 Anil had gone into the house of the accused and saw that the thief was tied with the rope. PW2 Anil has also proved the fact that the accused Dheeran had given danda blows to the person of the deceased and the deceased had vomited after 20-25 minutes of said beatings. As noted above, PW2 Anil is a neighbour of the deceased and the accused persons, therefore, his presence at the spot was quite obvious and it is admitted by the accused himself that PW2 Anil was called by the accused Dheeraj. PW2 Anil had seen the deceased inside the house of the accused Dheeraj, tied with the rope. PW2 Anil had also seen the accused Dheeraj giving danda blows to the deceased and after the beatings, the deceased had vomited. PW2 had also accompanied the accused Dheeraj when the accused had taken the deceased to the hospital. During the cross-examination SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 50 of 66 conducted on behalf of the State, PW2 Anil had also admitted that blood was oozing out from the body of the deceased. It is important to note here that the deceased was taken to the hospital by the accused Dheeraj @ Dheeran. PW2 Anil has proved such facts in his evidence. PW2 Anil had accompanied Dheeran @ Dheeraj to the hospital when the deceased was taken to the hospital in an auto. Moreover, the accused Dheeran @ Dheeraj has also admitted in his statement under section 313 Cr.P.C. that he along with PW2 Anil had taken the deceased Govind to hospital. A perusal of MLC (Ex.A4) of the deceased reveals that it is noted by the doctor recording the MLC, "AS PER HISTORY GIVEN BY NEIGHBOUR DHEERAJ A/H/O PATIENT BEING FOUND NEAR HIS HOME AT JJ COLONY NEAR SARITA VIHAR AT NEW DELHI AFTER WHICH PATIENT WAS BROUGHT TO JPNATC, AIIMS NEW DELHI." As per the testimonies of PW10 Sub-Inspector Arvind Kumar, he had also recovered patient attendant pass (Ex.PW10/B) from the accused vide which he had got the deceased admitted to Trauma Center, AIIMS vide seizure memo (Ex.PW6/J). PW6 Head Constable Mukesh has also corroborated the testimony of PW10 regarding seizure of patient attendant pass from the accused.
SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 51 of 6687. As per the testimonies of PW2 Anil, he was called by the accused Dheeraj @ Dheeran at about 03.00 a.m. to inform that a thief/the deceased was apprehended by the accused at his house. A perusal of MLC (Ex.A4) also reveals that patient was brought dead at 06.28 a.m. of 3 rd October, 2017. Photographs of the dead-body of the deceased clearly reveals that the deceased was mercilessly beaten and MLC of the deceased has also corroborated such act. The accused Dheeran @ Djeerak is a persons of strong built whereas from the photographs, the deceased appears to be thin and comparatively weak. The deceased was taken to the hospital by the accused Dheeraj after such delay is also a circumstance to establish the guilt of the accused Dheeraj.
88. For proving the photographs clicked by the crime- team, the prosecution has examined Head Constable Puneet. As per the testimonies of PW7 Head Constable Puneet that on 03.10.2017, he had visited the spot along with Head Constable Rakam and he had clicked photographs from different angles and Head Constable Rakam had prepared crime-team report (Ex.A6). PW7 Head Constable Puneet has also duly proved the photographs (Ex.PW7/A colly.) and negatives (Ex.PW7/B colly.). It is noteworthy here that PW7 Head Constable Puneet was not SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 52 of 66 cross-examined on behalf of the accused persons. Moreover, the accused persons have admitted the crime-scene report (Ex.A6) in their separate statements under section 294 Cr.P.C. Therefore, in the light of the admissions made by the accused persons in their statements under section 294 Cr.P.C. qua the crime-scene report (Ex.A6) and non-cross-examination of PW7 Head Constable Puneet, the crime-scene report (Ex.A6), photographs (Ex.PW7/A colly.) and the negatives (Ex.PW7/B colly.) of photographs are duly proved.
89. A perusal of photographs (Ex.PW7/A colly.) and the negatives (Ex.PW7/B colly.) of photographs clearly reveals that body of the deceased was smeared in the blood and he was beaten mercilessly at the house of the accused Dheeraj @ Dheeran.
90. Therefore, in view of the above discussion, the evidence led by the prosecution clearly indicates the guilt of the accused Dheeraj @ Dheeran.
91. As regards the guilt of the co-accused Birju is concerned, the main witness of the prosecution, PW2 Anil, an eye-witness has not supported the case of the prosecution. During his examination-in-chief, PW2 Anil has not named the accused SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 53 of 66 Birju to be an offender and due to that reason, he was also cross- examined on behalf of the State but during that cross- examination also, he had not supported the case of the prosecution regarding involvement of the accused Birju in the present case and PW2 Anil reiterated his evidence that he did not know the accused Birju and had not seen him at the spot. In absence of any incriminating testimonies against the accused Birju during the evidence of PW2 Anil, his statement recorded under section 164 Cr.P.C., before the learned Magistrate cannot be taken into consideration.
92. As per the testimonies of PW3 Chote Lal also, on that day, Birju or Dheeran had come to his house but PW3 Chote Lal had not seen the incident and he had not gone to the house of accused and he is also not a witness to the beatings given to the deceased.
93. PW1 Vijay Kumar (father of the deceased) and PW4 Sita (wife of the deceased) are also not the witnesses to the incident. They have deposed on the basis of what they have heard from others.
94. It is well settled law that the accused in a criminal case must be given the benefit of every reasonable doubt. In the SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 54 of 66 light of evidence led on behalf of prosecution, I am of the clear view that the prosecution has failed to bring on the guilt of the accused Birju beyond reasonable doubt.
95. As per the testimonies of PW8 Head Constable Purshotam, he had collected postmortem report from the doctor and handed over the same to investigating officer. It is also in the evidence of PW8 Head Constable Purshotam that after postmortem, the doctor had also handed over to him the exhibits and sample seals which were handed over to and seized by the investigating officer vide seizure memo (Ex.PW8/A) and during his custody, no tampering to the exhibits were made.
96. For proving the injury on the person of the deceased, MLC and the postmortem report of the deceased, which are admitted by the accused persons during the their separate statements under section 294 Cr.P.C., are the relevant documents.
97. A perusal of MLC (Ex.A4) of the deceased Govind reveals that the injured Govind was examined by Dr. Shakira Yoosuf when the injured was brought to the JPNATC AIIMS, the injured was pronounced 'brought dead' and following injuries were visible on the person of deceased;
Wound 1 Laceration 2x1x1 CM B/L Dorsum of Leg around Mid leg level, SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 55 of 66 Wound 2 Bruise Right arm diffuse till elbow, Wound 3 Abrasion left shoulder, Wound 4 Abrasion Multiple 3x2cm on Face, Wound 5 Laceration right parietal area of scalp 3x1x1 cm and the nature of injuries and kind of weapon used were kept pending investigation.
98. A perusal of postmortem report (Ex.A-5) reveals that the cause of death of the deceased Govind was "Coma, due to antemortem head injury consequent upon injury no.1, which is sufficient to cause death in ordinary course of nature. All injuries are antemortem in nature and caused by blunt force object/impact. Viscera are preserved to rule out any concomitant intoxication, if any."
99. Regarding recovery and identification of weapon of offence, the testimonies of PW6 Head Constable Mukesh and PW10 Sub-Inspector Arvind Kumar are relevant.
100. It is in the evidence of PW10 Sub-Inspector Arvind Kumar that at the instance of the accused Dheeraj @ Dheeran, he had recovered the weapon of offence i.e. one danda having a length 42 inches. PW6 Head Constable Mukesh who had accompanied investigating officer Sub-Inspector Arvind Kumar had also corroborated the testimony of the investigating officer regarding recovery of weapon of offence. As per testimonies of PW6 Head Constable Mukesh, the investigating officer had also SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 56 of 66 recovered one danda used by the accused in the commission of offence from the terrace of A-1/773, J J Colony, Madanpur Khadar and seized the same vide seizure memo (Ex.PW6/J).
101. For proving the identity of the weapon of offence, the testimonies of PW10 Sub-Inspector Arvind Kumar, second investigating officer of the present case and PW6 Head Constable Mukesh are relevant. PW10 Sub-Inspector Arvind Kumar and PW6 Head Constable Mukesh have correctly identified the danda (Ex.P3). From the testimonies of PW10 Sub-Inspector Arvind Kumar and PW6 Head Constable Mukesh, identity of the danda (Ex.P3) to be the weapon of offence is duly proved.
102. Regarding arrest and identification of the accused persons, testimonies of PW1 Vijay Kumar, PW2 Anil, PW4 Sita, PW6 Head Constable Mukesh and PW10 Sub-Inspector Arvind Kumar are relevant.
103. As per the testimonies of PW10 Sub-Inspector Arvind Kumar, investigating officer of this case, he had arrested the accused Dheeraj @ Dheeran vide arrest memo (Ex.PW6/E) and his personal search was conducted vide memo (Ex.PW6/F) and he had also recorded disclosure statement (Ex.PW6/G) of the accused, who had also pointed out the place of incident vide SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 57 of 66 pointing out memos (Ex.PW6/H & Ex.PW6/J). Regarding arrest of the accused Birju, it is in the evidence of PW10 Sub-Inspector Arvind Kumar that the accused Birju had made an application for surrendering in the Court and, thereafter, the investigating officer had made an application for interrogation and formal arrest and after interrogation, the accused Birju was arrested vide arrest memo (Ex.PW10/D) and his personal search was conducted vide memo (Ex.PW10/E) and his disclosure statement (Ex.PW10/F) was also recorded.
104. The testimonies of PW10 Sub-Inspector Arvind Kumar regarding arrest of the accused persons have been duly corroborated by PW6 Head Constable Mukesh, who had accompanied and joined Sub-Inspector Arvind Kumar, second investigating officer during investigation regarding arrest of the accused persons and he has proved the documents viz., arrest memo (Ex.PW6/E), personal search memo (Ex.PW6/F), seizure memo (Ex.PW6/F1) of mobile phone, disclosure statement (Ex.PW6/G), pointing out memo (Ex.PW6/H) qua the accused Dheeraj @ Dheeran.
105. Regarding identification of the accused persons, PW1 Vijay Kumar (father of the deceased), who is also neighbour of the accused persons, has correctly identified both SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 58 of 66 the accused persons in the Court and as per his testimonies, he had come to know that the accused persons, namely, Dheeran @ Dheeraj and Birju had beaten his son Govind and death of his son had been caused due to the beatings given by the accused persons. PW2 Anil is the eye-witness of the incident and is also neighbour of the accused persons as well as the deceased. PW2 Anil has correctly identified the accused Dheeraj in the Court and as per his testimonies, the accused Dheeran @ Dheeraj had assaulted the deceased Govind with danda 3-4 times. PW4 Sita is the wife of the deceased and during her cross-examination, she was asked to identify the accused persons by the defence counsel whereby, she had correctly identified both the accused persons and as per her testimonies, Anil had told her that her husband was killed by the accused persons. PW6 Head Constable Mukesh has also correctly identified the accused Dheeraj @ Dheeran in the Court. PW10 Sub-Inspector Arvind Kumar, second investigating officer has also correctly identified both the accused persons in the Court.
106. From the testimonies of PW1 Vijay Kumar, PW2 Anil, PW4 Sita, PW6 Head Constable Mukesh and PW10 Sub- Inspector Arvind Kumar, identity of the accused persons has been duly proved.
SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 59 of 66107. For proving the identity of the deceased/dead body testimonies of PW1 Vijay Kumar (father of the deceased) and PW10 Sub-Inspector Arvind Kumar are relevant. It is in the testimony of PW1 Vijay Kumar (father of the deceased) that he had identified the dead body of the deceased Govind by way of statement (Ex.PW1/B) of PW1 Vijay Kumar (father of the decased) and the dead body of the deceased was received by PW1 Vijay Kumar (father of the deceased) by way of receipt (Ex.PW1/C). A perusal of statement (Ex.PW1/B) and receipt (Ex.PW1/C) reveals that PW1 Vijay Kumar (father of the deceased) had identified the dead body of the deceased and the dead body was handed over to PW1 Vijay Kumar (father of the deceased), duly witnessed by Monu (brother of PW1 Vijay Kumar) by PW5 Assistant Sub-Inspector Kumehar Singh. The said testimonies of PW1 Vijay Kumar have been corroborated by PW5 Assistant Sub-Inspector Kumehar Singh, first investigating officer of this case. As per the testimonies of PW5 Assistant Sub-Inspector Kumehar Singh, he had recorded dead-body identification statements (Ex.PW5/B) of Monu and (Ex.PW1/B) of PW1 Vijay Kumar.
108. From the testimonies of PW1 Vijay Kumar, the identity of the dead body of the deceased Govind is duly proved.
SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 60 of 66109. During the course of investigation, the investigating officer had also seized blood-stained clothes of the accused Dheeran @ Dheeraj. As per the testimonies of PW10 Sub- Inspector Arvind Kumar, blood-stained clothes of accused were taken into possession vide seizure memo (Ex.PW6/E). The above testimony of PW10 Sub-Inspector Arvind Kumar has been corroborated by Head Constable Mukesh (PW6) who had joined the investigation with and accompanied the investigating officer. As per the testimonies of PW6 Head Constable Mukesh, the accused Dheeraj had disclosed that he was wearing same clothes at the time of incident which were worn by him when he was apprehended and on the instruction of investigating officer, the accused had changed his clothes and the investigating officer had seized his shirt having blood stains and blue jeans having blood stains vide seizure memo Ex.PW6/I; that the investigating officer also got recovered one danda used by the accused in the commission of offence from the terrace of A-1/773, JJ Colony, Madanpur Khadar and seized the same vide seizure memo Ex.PW6/J.
110. The blood-stained clothes of the accused Dheeraj @ Dheeran have been duly identified by PW6 Head Constable Mukesh in the Court during trial. As per his testimonies, the SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 61 of 66 blood-stained light blue, grey and white colour check half sleeves shirt and blue colour jeans (Ex.P5 colly.) were the same which were worn by the accused at the time of commission of offence. The blood-stained clothes (Ex.P5 colly.) of the accused Dheeran @ Dheeraj have also been correctly identified by PW10 Sub- Inspector Arvind Kumar.
111. The FSL reports dated 09.02.2018 and 31.01.2018 have been admitted by the accused persons by way of their separate statements made under section 294 Cr.P.C. The conclusion of FSL reports (Ex.A13 & Ex.A14) are reproduced as follows:
DNA profiles generated from the source of exhibit 1 (Blood on gauze of deceased), '2a' (Half pants), "3" (Wooden danda), 7a' (Shirt) and '7b' (Jeans pants). However, profiles could not be generated from the source of exhibits '4' (Cotton wool swab), '5' (Cemented material) and '6' (Cemented material). On STR analysis of exhibits it was found that the profiles generated from the source of exhibits 2a" (Half pants), '3' (Wooden danda), "7a' (Shirt) and '7b' (Jeans pants) match with the profile generated from the source of exhibit '1' (Blood on gauze of deceased).
112. In the light of the FSL reports (Ex.A13 & Ex.A14), it is proved that the blood found on the clothes of the accused SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 62 of 66 Dheeran @ Dheeraj which he was wearing at the time of incident, matched with the blood of the deceased.
113. As per the testimonies of PW10 Sub-Inspector Arvind Kumar, he had prepared site-plan (Ex.PW2/B) at the instance of the eye-witness Anil (PW2). As per the testimonies of PW9 Inspector Sanjay Sinha, he had got prepared the scaled site- plan and recorded the statement of draughtsman concerned.
114. Regarding completion of investigation, as per testimonies of PW9 Inspector Sanjay Sinha, after completion of investigation, he had prepared the police report and submitted in the Court.
115. During the course of arguments, Learned counsel for the accused persons has contended that whatever the accused persons have done was in exercise of their right to private defence. Such contention of counsel for the accused is not acceptable for the obvious reason that during examination of all the prosecution witnesses such defence was never taken on behalf of the accused persons. During cross-examination of PW1 Vijay Kumar, plead of alibi of the accused Birju was raised by the defence counsel.
SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 63 of 66116. It is noteworthy here that nothing material has been brought to my notice from the cross-examination of above prosecution witnesses for suspecting the truth of the version given by either of them and their testimonies have remained consistent to prove the fact of causing injuries sufficient to cause death in the ordinary course of nature on the body of the deceased Govind, inflicted by the accused Dheeraj @ Dheeran.
117. From the evidence led on behalf of the prosecution which has been discussed herein above, the prosecution has been successful in proving that the accused Dheeraj @ Dheeran had caused injuries which were sufficient to cause death in the ordinary course of nature on the person of the deceased Govind. The injuries caused to the person of the deceased have been duly proved from the MLC and postmortem report admitted by the accused persons in their statements under section 294 Cr.P.C.
118. There is one eye-witness of the incident, namely, PW2 Anil, who has given his ocular account of this case. The prosecution witnesses, namely, PW2 Anil and PW3 Chote Lal did not have animus or grudge against the accused Dheeraj @ Dheeran. The manner of the incident as described by PW2 Anil is corroborated by the medical evidence which shows the presence of injuries on the body of the deceased. From the manner in SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 64 of 66 which the injuries were inflicted on the person of the deceased, I am of the considered opinion that death of the deceased was caused by the accused Dheeran @ Dheeraj with the intention of causing death. In his statement under section 313 Cr.P.C., the accused Dheeraj @ Dheeran has stated that when the deceased Govind tried to run away from there after having committed the theft and when he tried to catch the deceased, the deceased released himself and got injured by falling from Chajja. During the cross-examination of eye-witness PW2 Anil, such suggestion was given to him to which he answered that he was not aware. From the evidence, it has been proved that the deceased was tied with ropes, therefore, I am unable to understand how come deceased tried to run when he was tied with ropes and having multiple injuries with blood oozing out from his body. Moreover, during the trial, the accused persons have admitted the MLC and postmortem report of the deceased Govind. There is no evidence on behalf of the accused Dheeran @ Dheeraj that the injuries found on the body of the deceased could be possible by so falling. During the course of arguments, counsel for the accused persons has come out with new plea of exercise of the right to private defence, however, the accused has also failed to prove such plea. The accused Dheeran @ Dheeraj has not led any evidence in his defence. Furthermore, the accused Dheeran @ SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 65 of 66 Dheeraj has not tendered any reasonable explanation of his conduct.
119. To sum up, in view of above discussion, the prosecution has proved beyond reasonable doubt the charge under section 302 of the Indian Penal Code against the accused, Dheeran @ Dheeraj, so the accused Dheeran @ Dheeraj is found guilty of having committed the said offence and hence, he is convicted of offence punishable under sections 302 of the Indian Penal Code, 1860. However, the prosecution has failed to prove beyond reasonable doubt the charge under section 302 of the Indian Penal Code against the accused Birju, so the benefit of doubt is given to accused Birju and hence, he is acquitted of the offence punishable under section 302 of the Indian Penal Code, 1860.
120. Let the convict Dheeran @ Dheeraj be heard on the question of sentence.
Pronounced in the open Court (DR. RAKESH KUMAR) th on 8 of November, 2024. Additional Sessions Judge, (FTC)-02, South District, Saket Courts, New Delhi SC No.12/2018 FIR No.508/2017 PS Jaitpur State v. Dheeran @ Dheeraj & Ors Page 66 of 66