Delhi District Court
State vs Ajit on 30 November, 2023
:1:
IN THE COURT OF MS.NEHA PALIWAL SHARMA,
ADDITIONAL SESSIONS JUDGE-05, WEST, TIS HAZARI
COURTS, DELHI.
CNR No. DLWT01- 000543-2013
Sessions Case No. 56664-16
FIR No. 281-13
PS Uttam Nagar
State
v.
(1) Ajit
S/o Sh. Shiv Nandan,
R/o Village Balia, PS Balbadda
District Godda, Jharkhand.
(2) Jyoti
W/o Late Sh. Vinod
R/o 57, Om Vihar Phase-1A,
Uttam Nagar, Delhi.
Date of Institution : 24.08.2013
Date of committal : 06.09.2013
Date of reserving Judgment : 23.11.2023
Date of Decision : 30.11.2023
Final Judgment : Accused persons namely
Ajit and Jyoti are
convicted for the offence
punishable under section
302 IPC read with section
34 IPC.
FIR No: 281/13; PS Uttam Nagar Page 1 of 62
State v.Ajit & Anr.
:2:
JUDGMENT
Accused persons namely Ajit (herein after referred to as 'A1') and Jyoti (herein after referred to as 'A2') were arraigned for trial by the prosecution on the ground that on 25.05.2023, in between 07:00 pm to 12 am, at house no. 57, Om Vihar, Phase- 1A, Uttam Nagar, Delhi, they both in furtherance of their common intention committed murder of Sh. Vinod (deceased), who was the husband of A2, by manually throttling him.
Case of the Prosecution in brief :
1. Succinctly put, the case of the prosecution is that DD no. 3 A dated 26.05.2013 (Ex. PW5/A) was received from DDU hospital at 12:45 am in the night that deceased Vinod was brought dead in the hospital and was examined vide MLC no.
13029/13. The statement (Ex.PW1/A) of sister of deceased namely Ms Savita (PW-1) was recorded on 26.05.2013. However as there was no visible injury on the dead body of deceased and the cause of death was not clear, the matter was kept pending. Post mortem examination on the body of deceased was got conducted.
2. In the post mortem examination report (Ex.PW21/A) dated 27.05.2013, the doctor opined that cause of death was asphyxia caused by manual throttling. There were around nine external FIR No: 281/13; PS Uttam Nagar Page 2 of 62 State v.Ajit & Anr.
:3:injuries on the body and all the injuries were antemortem in nature and of the same duration.
3. Therefore, on the basis of complaint of sister of deceased (PW-1) and the PM report (Ex.PW21/A), FIR under section 302/34 IPC was registered and the matter was investigated.
4. Sister of deceased namely Ms Savita (PW-1) in her complaint (Ex.PW1/A) expressed suspicion over A2 and A1 behind the death of her deceased brother Vinod. It was stated by her that family relations of deceased Vinod and A2 had deteriorated due to A1. A1 used to work and also reside in the house of Vinod and A2. Deceased Vinod had even ousted A1 from his house and work, 15-20 days prior to the date of incident, due to which there were frequent quarrels between deceased Vinod and A2. On 25.05.2013, after serving food to her brother, when PW-1 was going to her house, A2 told PW-1 that A2 will make PW-1 write on the next day that if something happened to Vinod, PW-1 will be responsible. On 26.05.2013, at around 04:30 am she received call from mother of A2 that Vinod had expired and thereafter A2 talked to her on telephone and asked her not to state anything before the police and to be brief in her statement. When she went to the house of deceased Vinod, she came to know that Vinod had expired and A1 had also come in the night in the house of Vinod. She expressed her suspicion FIR No: 281/13; PS Uttam Nagar Page 3 of 62 State v.Ajit & Anr.
:4:that both A2 and A1 were responsible behind the murder of deceased Vinod.
5. Statement of witnesses were recorded by the IO under section 161 Cr.P.C. One DVR was seized from the spot of occurrence. Site plan was prepared. Accused persons were arrested, interrogated pursuant to their arrest and their disclosure statements were recorded. Call detail records of accused persons were obtained. It was indicated from the CDR of A1 that A1 on 24.05.2023 had left his village and had come to the house of deceased Vinod/spot of occurrence. One reservation cum cancellation form and one metro card were also recovered from the possession of A1. Viscera of deceased was sent for examination to FSL. The DVR which was seized was also sent to FSL for the purpose of retrieval of data. Charge sheet was filed before the Court pending FSL result qua A1 and A2 for the offence punishable under section 302/34 IPC.
Trial Proceedings:
Charge:
6. Vide order dated 12.02.2014, both accused persons were charged for the commission of offence punishable under section 302 read with section 34 IPC.FIR No: 281/13; PS Uttam Nagar Page 4 of 62
State v.Ajit & Anr.
:5:Prosecution Evidence:
7. FSL report dated 19.09.2016 was received on 13.10.2016 in the Court during trial as per which no data could be retrieved from Digital Video Recorder (DVR) and its hard disk, which were seized in the present case by the investigating agency from the scene of crime. On 26.11.2019, the deposition of FSL expert Sh. Hemant Kumar was dropped by prosecution on the ground that his statement was irrelevant as the data could not be retrieved by FSL.
8. Child witness namely Ishu (PW-23), though was not cited as prosecution witness in the charge sheet, however pursuant to the application moved by the State under section 311 Cr.P.C, he was allowed by the Court to be examined as PW-23.
9. The prosecution in support of its case had examined 23 witnesses.
10. PW-1 Smt. Savita/sister of deceased had deposed on the same lines as that of her complaint Ex. PW1/A. She had deposed that there used to be quarrels between deceased Vinod and his wife/ A2 due to illicit relations of A2 with A1, who was an employee of her brother Vinod. She used to visit the house of her brother Vinod. Prior to the murder of Vinod, for 4-5 days, she was continuously visiting the house of deceased Vinod. On FIR No: 281/13; PS Uttam Nagar Page 5 of 62 State v.Ajit & Anr.:6:
25.05.2013, when she left the house of Vinod at about 07:00 pm, A2 stated to her that when she will come tomorrow, A2 will make her write that if something happens to Vinod, A2 will not be responsible.
11. She further deposed that she received telephonic information from mother of A2 on 26.05.2013 at about 04:30 am that Vinod had expired. A2 also talked with her on telephone and told her that police had come to the house and had further asked her not to state anything to the police. When she came to the house of deceased Vinod, she came to know that one person was apprehended. She had suspicion that A2 and A1 had murdered her brother deceased Vinod. She correctly identified A2 and A1 before the Court.
12. She, in her cross-examination, stated that she knew A1 as A1 used to work for her brother and she used to visit the house of her brother. A2 had informed her about the quarrels between A2 and deceased Vinod, because of A1. On 26.05.2013 in the morning, by the time she had reached at the house of deceased Vinod, till then A1 was not apprehended by the police. She was informed by neighbors that A1 was apprehended by police.
13. PW-2 Smt. Poonam Gupta is neighbor of deceased Vinod and A2. She had deposed that on 25.05.2013 at around 09:45 pm FIR No: 281/13; PS Uttam Nagar Page 6 of 62 State v.Ajit & Anr.
:7:when she was about to go to sleep, she heard a distress call of help and a loud sound of groaning, indicating that some one was in pain. She ran out of her house immediately, after opening the gate of her house. The house of A2 and deceased Vinod was just opposite to her house. She thereafter went and rang the door bell of house of A2 and continuously rang the same. After about 6-7 minutes, A2 came out in the balcony of the first floor of her house and when she asked her what had happened and why so much noise had come from her house, A2 told her that deceased Vinod suffered from fits. She asked A2 whether A2 required any help, to which A2 declined by stating that she had already telephoned. Thereafter, she returned to her house after shutting the gate. However at that time A2 was talking to another neighbor Rekha (PW-3) and was informing her that Vinod was suffering from TB and Cancer. She heard the same as she again came out of her house as she was concerned being neighbour and wanted that deceased Vinod be alright. A2 went upstairs after about 4-5 minutes. A2 had come downstairs to talk to Rekha (PW-3). The witness referred to deceased Vinod as Ishu's father.
14. She further deposed that she alongwith her neighbor Rekha (PW-3), children of Rekha and her mother continued to talk for some time but they all were in agreement that there was some problem and wanted to get the gate of the house of A2 opened in order to go upstairs and therefore she, her mother and FIR No: 281/13; PS Uttam Nagar Page 7 of 62 State v.Ajit & Anr.
:8:Rekha(PW-3) called A2. A2 came down to open the gate but firstly she was not opening the gate. After about ½ minute, when A2 opened the gate, she herself fell down. Then she (PW-2), Rekha (PW-3) and her mother (mother of PW-2) made A2 stand up and then Rekha (PW-3) and her mother (mother of PW-2) went upstairs. She had not gone upstairs. Husband of Rekha namely Sh. Chand (PW-6) and another neighbour Sh. Harish (PW-9) also accompanied Rekha (PW-3) and her mother(PW-2's mother) and brought Vinod down and thereafter Vinod was taken to the hospital in the auto of a neighbour by Harish (PW-9), Chand (PW-6) and A2 to the hospital. She correctly identified A2 before the Court.
15. She, in her cross-examination, deposed that she alongwith her mother had come outside from their house on hearing sound from the house of deceased Vinod. Elder son of Rekha and Rekha (PW-3) had also come out from their house. She was apprised by A2 that deceased Vinod/her husband suffered from fits. Vinod was unconscious at the time when he was brought down by Harish (PW-9) on his shoulders and was taken in the auto by Chand (PW-6) and Harish (PW-9) to hospital. She was not aware that Vinod used to suffer from fits. She had never heard such noises earlier from the house of Vinod. Other neighbors were also standing outside at the time when Vinod was taken to the hospital.
FIR No: 281/13; PS Uttam Nagar Page 8 of 62State v.Ajit & Anr.
:9:16. PW-3 Rekha is the another neighbour of deceased Vinod and A2. She had deposed that on 25.05.2013 at about 09:30 pm when she had come out from her house after providing meals to her husband, she saw that her neighbour/ PW-2 Poonam was standing. PW-2 Poonam told her that a distress call of 'help-help' was coming from the house of Vinod. Thus, Poonam (PW-2), mother of Poonam and she stood outside on the road in front of house of A2 and Vinod. She saw that A2 was standing on the first floor on the grill of her house. She asked A2 what happened, to which A2 replied that Vinod had suffered from fits and he is also suffering from TB and cancer. She volunteered for help, however A2 declined by stating that A2 had informed her sister-in-law, who was coming. She, mother of Poonam and Poonam (PW-2) continued to stand for 5-7 minutes outside the house of A2 but sister-in-law of A2 did not come. Thereafter she rang the bell of the house of A2. A2 came down after 1-2 minutes. As soon as she came down, she fell down. They made A2 stand up and asked her what happened, to which A2 stated that ' ववननद कन बचच लन' (rescue Vinod). Thereafter they picked up A2 and took her upstairs to the first floor and asked her to take them to Vinod. Her husband (PW-3's husband), Harish (PW-9) and other persons also collected behind them. There was light in the first room. The light and fan in the room behind the first room were not on. Vinod was in the room where light and fan were not on. As they FIR No: 281/13; PS Uttam Nagar Page 9 of 62 State v.Ajit & Anr.
: 10 :entered in that room, light was switched on by someone and they saw that Vinod was lying on the floor. As A2 had told them that Vinod suffered from fits, they presumed that Vinod was suffering from fits and was lying unconscious. Thereafter, Harish (PW-9) put Vinod on his shoulders and brought him down with the help of other persons. Harish(PW-9) and A2 took Vinod in the three wheeler scooter belonging to another neighbour Bittoo, who resided in the house adjacent to Poonam (PW-2). Crowd had gathered at the spot.
17. She further deposed that thereafter one girl named Lata, who resided at a distance of 3-4 houses from the house of A2, came down and asked whether something had happened in A2's house. They informed her that Vinod was unwell and had been taken. Lata informed them that there was someone who had climbed on the water tank on the roof of house of A2. She was present when Lata informed about the same alongwith other persons. Seema(PW-19), who was another neighbour, took her mobile phone and called at 100 number. Police came and brought that person from water tank and inquired from that person in her presence and in the presence of other persons. That boy told his name to the police as Ajit. She correctly identified A1 before the Court as that boy.
18. She further deposed that after some time Vinod was FIR No: 281/13; PS Uttam Nagar Page 10 of 62 State v.Ajit & Anr.
: 11 :brought back in a car and was taken up to his house. A voice was heard from upstairs that Vinod was alive and thereafter Vinod was again brought down and was taken in a car to the hospital where it was learnt that Vinod had expired. She correctly identified A2 and A1 before the Court.
19. She, in her cross-examination, stated that she had not heard the distress sound of 'help-help'. There was a distance of one house between her house and the house of A2, on the same side of the road. A2 had never told her before the date of incident that deceased Vinod used to suffer from fits.
20. PW-4 HC Ishwar Singh is the duty officer and had deposed regarding registration of FIR Ex. PW4/A on 27.05.2013 pursuant to receipt of rukka at 02:30 pm on that day. He further deposed that vide DD no. 37 A Ex. PW4/C, the copy of FIR was sent to Senior officials through constable Vikas at 03:10 pm.
21. PW-5 HC Jitender is also another duty officer and had deposed regarding recording of DD no. 3A (Ex. PW5/A) that on 26.05.2013 at 12:45 am information was received from DDU hospital that deceased Vinod was brought to the hospital by his relative Sanjay, he was admitted vide MLC no 13029/13 and was declared 'brought dead'.
FIR No: 281/13; PS Uttam Nagar Page 11 of 62State v.Ajit & Anr.
: 12 :22. PW-6 Sh. Chand Prakash is also neighbour of deceased Vinod and A2. He had deposed that he knew Vinod being neighbour and Vinod used to make cameras in his house. On 25.05.2013 at about 09:30 pm, he was having meals in his house. His wife was outside the house. He heard the voices of 3-4 ladies and commotion from outside and therefore went outside and saw that A2 was talking to his wife. His wife informed him that A2 informed her that Vinod had suffered from fits. Thereafter, he alongwith his another neighbour Harish (PW-9) went to the second floor of the house of A2. They first went to the front room and thereafter went to the room at back. There was no light in the room which was at the back and thereafter he and Harish (PW-9) put on the light and fan and saw that Vinod was lying on the floor. He alongwith Harish (PW-9) brought down Vinod to the ground floor and then Harish (PW-9) and A2 took Vinod to hospital in the auto of another neighbour namely Bittoo.
23. He further deposed that after some time, hue and cry was raised in the vicinity that there was a boy in the water tank on the terrace of the second floor of the house and a lady Seema (PW-
19) telephoned police at 100 number. Police came and took A1 out from the water tank from the terrace and took A1 away with them in his presence. Thereafter A2 alongwith neighbour Harish brought back Vinod to the spot from hospital in auto and Harish informed that Vinod had expired. After some time, relatives of FIR No: 281/13; PS Uttam Nagar Page 12 of 62 State v.Ajit & Anr.
: 13 :Vinod came and informed that Vinod is still alive and thereafter they took Vinod in their car to the hospital in his presence. Thereafter after some hours and after some time, it was informed that Vinod had expired. Witness correctly identified A1 as the person who was taken out from the water tank. He denied the suggestion of State that light and fan were put on by him on the first floor of the house. He, in his cross-examination, deposed that when he had gone to house of Vinod on first floor, there was no one in the house. They took Vinod to the hospital at around 10:15/10:30 pm. Police had come to the spot before A2 returned from hospital. No statement was recorded by police at that time. Police had gone to the terrace. His statement was recorded by police after two months of the incident. Vinod used to run business of CCTV cameras from his residence, however he had not seen any customer of Vinod coming at night. Post death of Vinod, the father of deceased Vinod had started residing in his house and sister of deceased Vinod had resided there for some time.
24. PW-7 Ms Rama Devi is another public witness. She had deposed that her mother resided at Uttam Nagar and on 25.05.2013 she had come to her mother's house. On that day, after hearing noises, she came out from her house and saw that neighbors were knocking at the door of A2. She was told by A2 that her husband used to suffer from fits and was sick. The FIR No: 281/13; PS Uttam Nagar Page 13 of 62 State v.Ajit & Anr.
: 14 :neighbors told A2 that they would take her husband to the hospital. One neighbour namely Harish (PW-9) took husband of A2 to the hospital. She correctly identified A2 before the Court. This witness was cross-examined by the State with the permission of the Court and was confronted with her entire previous statement given to the police, Ex. PW7/A. She admitted the entire contents of the statement Ex. PW7/A and stated that she had given statement Ex. PW7/A to the police.
25. Perusal of statement Ex. PW7/A reveals that it is written that PW-7 had stated to the police that she saw in the night that one person was climbing the roof via stairs. She thought that the said person might be Vinod. After some time, she saw that Vinod was brought down in an unconscious condition by Harishanker and when she asked them from where Vinod was brought, then they told her that they had brought Vinod from first floor and then she again asked from them, that who had gone to the terrace. Thereafter she came to know that that the said person was A1 who used to work with deceased. Even A2's sister told her that they had already ousted A1 from their house then how he had came there.
26. She further deposed that the house of her mother is immediately opposite to the house of A2 and her mother is neighbour of A2 and she occasionally used to visit her mother's FIR No: 281/13; PS Uttam Nagar Page 14 of 62 State v.Ajit & Anr.
: 15 :house.
27. PW-8 Smt. Krishna @ Veena is the mother of A2. She had deposed that she used to use mobile number 9213857073. She was cross-examined by the State with the permission of the Court. She had deposed in her cross-examination that when her daughter/A2 had came to stay her house on the occasion of Rakhi, A2 had given a missed call to A1, however she again stated that she does not know to whom call was made by her daughter. She stated in her cross-examination that sister and brother-in-law of Vinod used to well behave with them.
28. PW-9 Sh. Harish Chawla is also neighbour of deceased Vinod and A2. He had also deposed that on 25.05.2013, at around 09:45 pm, when he was present at his house, his wife informed him that some persons were going to the house of Vinod. He also went to the house of Vinod and reached at first floor and saw that Vinod was lying on the floor. neighbors Chand (PW-6), Rekha (PW-3) and 2-3 other neighbors were standing there. Rekha (PW-3) informed him that Vinod had suffered from fits. He with the assistance of Chand (PW-6) picked up Vinod on his shoulder and brought him down. He thereafter alongwith A2 and Ishu (PW-23) took Vinod to the hospital in the auto of neighbour Bittoo. A2 was wife of deceased Vinod and Ishu was son of Vinod. He had told A2 that they should take Vinod to FIR No: 281/13; PS Uttam Nagar Page 15 of 62 State v.Ajit & Anr.
: 16 :Gandhi Nursing home but A2 asked him to take Vinod to Central hospital on the pretext that Vinod was being treated in Central hospital at Tilak Nagar. At the gate of Central hospital, doctors checked Vinod and conducted his ECG and declared him dead. A2 telephoned and called for a vehicle from a relative and he and Bittoo came back in the three wheeler. They had left Vinod at Central hospital. They had taken the gas for the three wheeler on the way and on reaching home, he was informed by the neighbors that Vinod was taken to hospital again. He, in his cross-examination, deposed that distance between his house and house of Vinod was about 50 meters. He had taken Vinod to the hospital within 5-10 minutes of his reaching at the house of Vinod and had reached the hospital at about 10:15 pm. He had returned from the hospital leaving A2 and Vinod at the hospital. The relatives of A2 had came to the hospital on being called by A2. His statement was recorded after 2 - 2.5 months after death of Vinod. Vinod used to manufacture and sell CCTV cameras. He admitted that suppliers and purchasers used to visit at the house of Vinod during night time also and stock was also kept at his residence.
29. PW-10 Sh. Vinay Kumar Chaudhary had deposed that he had given his ID proof to his room mate Sh. Sunil Kumar Sah (PW-11) in order to enable him to get new mobile phone connection.
FIR No: 281/13; PS Uttam Nagar Page 16 of 62State v.Ajit & Anr.
: 17 :30. PW-11 Sh. Sunil Kumar Sah had deposed that in year 2013, he had obtained a mobile phone connection on the ID of Sh. Vinay Kumar (PW-10), who was his friend. A1 was his friend. A1 had came to Delhi from his village for work. He had given the SIM card of IDEA company, which was obtained by him on the basis of ID of his friend/PW-10 alongwith one mobile, which was in his possession, to A1 for the use of A1. Deceased Vinod was his distant Fufa (uncle) as per his village relations and A1 used to work at Uttam Nagar with Vinod. He deposed, in his cross-examination, that when ever he visited house of Vinod, he found that the relations between Vinod and his wife were very good. Vinod was having a flourishing business of CCTV cameras and he used to deal with Income Tax filing of deceased Vinod. Vinod used to show his annual turn over as Rs. 15-20 lacs. Vinod was distant brother-in-law of A1 and A1 used to work with him.
31. PW-12 constable Brijsu Kumar had deposed that he had deposited exhibits in FSL, Rohini on 19.08.2013 vide RC no. 134/21/13 after taking the same from malkhana.
32. PW-13 SI Govind Singh is the initial IO and had deposed in consonance with the final report. He had deposed qua initial investigation conducted by him post receipt of DD no. 3 A Ex.
FIR No: 281/13; PS Uttam Nagar Page 17 of 62State v.Ajit & Anr.
: 18 :PW5/A. He had deposed qua collection of MLC of deceased Vinod from DDU hospital; recording of statement of PW-1/sister of deceased Smt. Savita; giving request Ex. PW13/B for conduction of the PM proceedings on the body of deceased Vinod and getting post mortem conducted, preparation of rukka Ex. PW13/A and registration of FIR. He had further deposed that after post mortem, the doctor had handed over the clothes, viscera, blood on gauze piece and three sample seals to him which were seized by him, vide seizure memo Ex. PW13/C. He had filled inquest form Ex. PW13/D and had also recorded the statements of Harish Chawla, Kush Luthra, Chand Luthra, Poonam, A2, Master Ishu, Raj Kumar, Ashok and Yogender Mandal, Ex. PW13/E to Ex. PW13/M respectively, during inquest proceedings. He deposed in his cross-examination that he recorded statement of PW-1 Savita at about 10-10:30 am in PS.
33. PW-14 Ct. Vikas /DD writer had deposed qua recording of DD no. 82 B Ex. PW14/A, on 25.05.2013 at about 10:40 pm, to the effect that at 578, Om vihar, Phase-I, a person was inflicted knife blow, injured was taken to hospital and the person who had inflicted knife blow was hiding there itself.
34. PW-15 Insp. Mahesh Kumar is draughtsman and had deposed qua preparation of site plan Ex. PW15/A on 18.06.2013 at request of IO Insp. Ram Niwas (PW-22) after visiting the spot FIR No: 281/13; PS Uttam Nagar Page 18 of 62 State v.Ajit & Anr.
: 19 :at house no. 57A, Om Vihar, Uttam Nagar, Delhi alongwith IO.
35. PW-16 HC Shyam Nandan is the MHC(M) and had deposed that on 27.05.2013, IO/Insp. Ram Niwas (PW-22) had deposited sealed pullanda and personal search articles of A1 and A2 Ex. PW16/6 and Ex. PW16/7 respectively, and SI Govind Singh had deposited viscera and sample seal of DDU hospital, in the malkhana, vide entries Ex. PW16/1 and Ex. PW16/2 respectively. He had further deposed that on 20.06.2013, viscera and sample seal were sent to FSL Rohini and on 19.08.2013 sealed parcel was sent to FSL Rohini containing blank hard disk of 500 GB, vide road certificates Ex. PW16/3 and Ex. PW16/4 respectively and were received in FSL vide receipt Ex. PW16/5.
36. PW-17 woman constable Mukesh Kumari had deposed that on 27.05.2013, on directions of IO/PW-22 Insp. Ram Niwas, she had conducted the personal search of A2 and had signed on her personal search memo, Ex. PW17/A. A2 was arrested vide memo Ex. PW17/B and was also interrogated and her disclosure statement Ex. PW17/C was recorded. She deposed that A2 was arrested on 27.05.2013 at about 05:00 pm.
37. PW-18 HC Rajesh Kumar had deposed that on 25.05.2013 on receipt of DD no. 82 B, Ex. PW14/A, at about 10:40 pm, regarding stabbing at house no. 57, Om Vihar, Phase-1, Uttam FIR No: 281/13; PS Uttam Nagar Page 19 of 62 State v.Ajit & Anr.
: 20 :Nagar, Delhi, he reached at the spot and conducted inquiry. He was informed that one person namely Vinod was taken to hospital by his wife/A2, he being ill. He contacted A2, who informed him that she was taking her husband to hospital, however A2 did not inform him the name of the hospital. He thereafter went to DDU hospital, where SI Govind met him, who informed him that a call was received by him qua the admission of a person. He then co-related the incidents and came to know that Vinod(deceased) was admitted in DDU hospital by one Sanjay and the dead body of deceased was preserved. Thereafter he returned to PS.
38. He further deposed qua getting FIR registered on the basis of rukka of IO on 27.05.2013, qua joining investigation with subsequent IO/ Insp. Ram Niwas, qua arrest of A1 vide arrest memo Ex. PW18/A pursuant to his personal search vide memo Ex. PW18/B and recording his disclosure statement Ex. PW18/C and qua arrest of A2 by IO in presence of lady Ct. Mukesh. He further deposed that at the instance of A1, one railway ticket of Magadh Express Ex.P-1 and one metro smart card Ex. P-2 were recovered which were taken into possession vide seizure memo Ex. PW18/D and that from the ground floor of house of deceased one DVR, mouse, two cables, one black and white(Ex.P- 3(colly)) were seized vide seizure memo Ex. PW18/E. FIR No: 281/13; PS Uttam Nagar Page 20 of 62 State v.Ajit & Anr.
: 21 :39. He, in his cross-examination, deposed that when he reached at the spot on 25.05.2013, A1 and A2 had met him alongwith some neighbors whose name he is not aware of. He went to DDU hospital without any prior confirmation about the presence of injured in the hospital and had gone there as the same was the only government hospital in the vicinity. He admitted that metro card does not reflect the name of the person by whom it was purchased. He admitted that no railway ticket of Magadh Express was recovered from A1 and only form for applying reservation in railway, Ex.P-1, was recovered.
40. PW-19 Ms Seema Batra is another neighbour. She had deposed that she knew deceased Vinod and his wife/A2 as they used to reside at a distance of 2-4 houses from her house. A1 also used to reside at the house of A2 and deceased Vinod. On 25.05.2013, there was no electricity in the area and she was walking in the street near the house of A2. In the meantime, electricity came at around 10:30 pm and she heard cries from the house of A2. She saw that PW-9/Harish was taking an unconscious Vinod from his house. She also saw that A1 was trying to hide himself behind the water tank on the top floor of the house of A2. She dialed at 100 number after taking phone of one of her neighbour. Police came at the spot and A1 was apprehended by the police. She had shown the spot to the police. A1 was taken out from the water tank by police.
FIR No: 281/13; PS Uttam Nagar Page 21 of 62State v.Ajit & Anr.
: 22 :41. She deposed, in her cross-examination, that she knew the sister of deceased Vinod. She admitted that marriage of deceased Vinod and A2 was a love marriage and after the death of deceased Vinod, his sister and her husband started residing at the the house of deceased Vinod. Police officials reached at the spot after about 30 minutes after making call at 100 number and remained at the spot for about 1 or 1.5 hours.
42. PW-20 Sh. Sarvesh Kumar is Nodal officer, Idea Cellular Ltd. He had produced the record of mobile phone number 8750525318 from 15.04.2013 to 27.05.2013. He deposed that the CDR of the mobile number is Ex. PW20/A, CAF is Ex. PW20/B, his certificate under section 65 B of Indian Evidence Act qua the said data is Ex. PW20/C and location chart of Idea Cellular phone is Ex. PW20/D.
43. PW-21 Dr. Komal Singh is the autopsy surgeon who had prepared the post mortem report Ex. PW21/A. She had deposed that on 27.05.2013, she had conducted post mortem on the body of deceased Vinod. She further deposed that as per PM report Ex. PW21/A, on external examination, following injuries were found on the body of deceased Vinod:
1) Linear abrasion present over the right side of the lateral aspect of neck of size 7 cm X 1 cm with FIR No: 281/13; PS Uttam Nagar Page 22 of 62 State v.Ajit & Anr.: 23 :
reddish in colour 2) Abrasion of size 3 cmX2cm present on the outer surface of left elbow with reddish in colour 3) Abrasion present over the right elbow of size 2cmX1cm with reddish in colour 4) Abrasion present over the lower part of the right side of hand of size 0.5cmX0.5 cm with reddish in colour.
5) Two abrasions of size 1 cm X 1 cm partly placed over the anterior surface of lower right leg just above the ankle.
6) Bruise of size 2 cm X 1cm present over anterior of mid part of right leg with bluish in colour 7) Pressure abrasion of size 1 cm X1 cm present over right tip of shoulder with reddish in colour. 8) Multiple crescentric nail marks present over the anterior bilateral aspect of neck of size 0.6cm-0.4 cm, placed 5 cm above the upper part of sternum. 9) Abrasion present over mid part of lower lip, about 2 cmX1cm with dark brown in colour
44. PW-21 further deposed that on internal examination on the body of deceased Vinod, following injuries were found :
Head: Sub scalp congested and petechial hemorrhage present Brain, Meninges & Vessels: Highly congested and oedematous FIR No: 281/13; PS Uttam Nagar Page 23 of 62 State v.Ajit & Anr.: 24 :
Neck: Hyoid bond/Thyroid Cartilage/Cricoids Cartilage/Tracheal Rings & Mucosa/Any foreign body in Trachea: Multiple contusion and bruising present over right side of neck below the previous mentioned linear abrasion mark and underneath the nail with collection of clotted blood present over the posterior surface of cricoids cartilage about 10 ml. Both cornua of thyroid cartilage broken and tilted inward with collection of clotted blood of about 2 ml present. The right cornua of hyoid bone fractured and there was collection of clotted blood in and around it. Trachea highly congested and mucosa of trachea contains blood tinged mucoid secretion and its lower rings congested. Lungs: Bilateral lungs highly congested and oedematous.
On cut section and dissection exudating froth mixed with blood.
45. PW-21 further deposed that she had given opinion that the cause of death was asphyxia caused by manual throttling, and all injuries were ante mortem in nature and were of same duration.
46. She further deposed that after perusal of FSL report dated 23.08.2013 qua viscera as per no poison/tranquilizer was found in the body of deceased, the cause of death remains same as mentioned in PM report Ex. PW21/A. She further deposed that the expression nails cyanosed mentioned in the PM report suggests asphyxia. Congestion of lungs is not possible in case of TB patient.
FIR No: 281/13; PS Uttam Nagar Page 24 of 62State v.Ajit & Anr.
: 25 :47. PW-22 Insp. Ram Niwas is the IO. He had deposed on the same lines as that of final report and had deposed regarding the investigation conducted by him and various aspects of case covered by him. He had deposed qua arrest of both accused persons from the place of incident, qua seizure of DVR, cables, metro card, railway reservation cum cancellation form, qua preparation of rough site plan Ex. PW22/A, qua perusal of PM report, qua preparation of pointing out memo Ex. PW22/B at the instance of A1, qua sending exhibits, that is, viscera of deceased on 20.06.2013 and DVR and the wires on 19.08.2013 for expert opinion and qua collection of CDR of mobile phone of A1. He deposed that CDR analysis and location chart analysis reflected that A1 had traveled from his native village Jharkhand and was present at the place of incident.
48. He had further deposed that as per FSL report of viscera Ex. PW22/F, no poison was detected in the viscera of deceased Vinod. Further no data could be retrieved as per expert's report Ex. PW22/G from the examination of DVR and other parts of the computer seized from the spot.
49. He admitted that Ex. P-1 is not a railway reservation ticket and is reservation cum cancellation form and further admitted that blank reservation cum cancellation forms are easily available FIR No: 281/13; PS Uttam Nagar Page 25 of 62 State v.Ajit & Anr.
: 26 :at railway stations. The document was not sent to FSL for comparison with specimen handwriting of A1. He further deposed that Ex. P-2, that is, metro card can be easily obtained by any person from the metro station and same does not bear the name of customer/passenger. He admitted that no mobile phone containing number 8750525318 was recovered from A1.
50. PW-23 child witness Ishu aged about 12 years had deposed that his father died when he was in class one. He used to reside with his parents . There were three floors in his house. On ground floor his father used to do the business of manufacturing cameras, on first floor he used to stock his goods and PW-23 used to live with his parents at the second floor. On the date of incident, his mother pressed the neck of his father. He, his mother, his father and A1, who used to work with his father at the shop of his father were present in the house. He was bolted in a room on the second floor by his mother. His father, his mother and A1 were on the first floor. The incident took place at night time. He saw the incident from iron mesh, which was installed on each floor of the house. The main door of the floor was locked from outside and he could move around on the second floor and could see the incident from iron mesh. A1 caught hold of the legs of his father and his mother had pressed the throat of his father. He and his mother had taken his father to the hospital and A1 had hidden himself in a water tank at terrace. He FIR No: 281/13; PS Uttam Nagar Page 26 of 62 State v.Ajit & Anr.
: 27 :identified A2 being his mother and A1 as the person who used to do work at his father's shop.
51. He deposed in his cross-examination that at the time of deposition, he resided with his paternal Aunt Ms Kumod Devi. He admitted that he had stated to the police in his statement that when his father shouted for help, his mother went down and at that point of time, he was eating bread. He further deposed that he had stated to the police that his mother had sprinkled water on the face of his father.
52. After prosecution evidence was closed, matter was fixed for recording statement of accused persons under section 313 Cr.P.C.
Statement of accused persons:
53. A1 in his statement recorded under section 313 Cr.P.C had affirmed that deceased Vinod was the husband of A2 and they used to reside at house no. 57A, Om Vihar, Phase-1, Uttam Nagar, Delhi. He further affirmed that he was employed by deceased Vinod and stated that he used to live in the house of deceased for last six months from the date of incident. PW-1 /sister of deceased also used to visit the house of deceased Vinod. The name of child of Vinod and A2, was Ishu. Vinod used to suffer from fits and at times he had even provided first aid to FIR No: 281/13; PS Uttam Nagar Page 27 of 62 State v.Ajit & Anr.
: 28 :Vinod. He further stated that on the day of incident, he had a scuffle with Vinod and in the said scuffle Vinod got unconscious. He got scared and ran towards the roof of the house. He affirmed that he was in the water tank, and was brought down by the police from the water tank in the presence of neighbors. He stated that Vinod used to make cameras and he used to help Vinod in his work. He further stated that handing over of mobile phone and SIM by PW-11 Sunil Kumar to him was a matter of record. He stated that ground floor of the house of deceased was used to keep/store goods, second floor was used for residence and he used to stay at the first floor while he was working with deceased Vinod. Vinod alongwith his family used to stay on the second floor. He stated that he had scuffle with deceased Vinod at the first floor of the house on the day of incident and A2, who was on the second floor, came down after she heard noise. He further stated that deceased Vinod became unconscious after he had scuffle with deceased. He had not pressed the neck of deceased, however in the scuffle inadvertently the neck of deceased was pressed by his hands.
54. He further stated in his statement that deceased Vinod used to pay Rs. 8,000/- per month to him alongwith food and permission to stay on the first floor of the house of deceased. However as he was not paid his dues for the last 2-3 months from the date of incident, he had left his job and gone to his FIR No: 281/13; PS Uttam Nagar Page 28 of 62 State v.Ajit & Anr.
: 29 :village. On the request of Vinod, he had come back after 10 days and on the day of incident, he again demanded his dues from deceased Vinod upon which deceased started abusing and hitting him and due to which a scuffle ensued between them and in a fit of anger and rage, inadvertently the neck of deceased was throttled by him and deceased Vinod became unconscious. He thereafter ran away towards terrace. A2 came down from second floor to first floor, where he had scuffled with the deceased. He further stated that incident took place out of anger and rage. He had lost his control and as a result deceased became unconscious whereas he had no intention to kill him. He declined to lead any evidence in his defence.
55. A2, in her statement recorded under section 313 Cr.P.C, had stated that she had told PW-1 Savita that deceased should get proper treatment of fits. She further affirmed that loud noise of bachao-bachao (help-help) and groaning had come from her house, as was deposed by PW-2 Poonam Gupta. She further affirmed that PW-2 Poonam had come to her house and she, after coming to her balcony had told her that Vinod suffered from fits. She affirmed the deposition of PW-2 and PW-3 that she had informed PW-3 also, that her husband was suffering from TB, cancer and fits. She affirmed that she had talked with PW-3 Rekha for 4-5 minutes and thereafter had gone upstairs. She affirmed that she opened the gate after 1-2 minutes after calling FIR No: 281/13; PS Uttam Nagar Page 29 of 62 State v.Ajit & Anr.
: 30 :by PW-2 and PW-3 and on opening the gate fell down and stated that she was nervous and confused as her husband had become unconscious. She stated that she had told the neighbours that her husband had become unconscious. She further stated that the light of the room where her husband was lying was off. She affirmed the deposition of neighbors qua their coming to her house and taking her husband to the hospital. She affirmed that A1 worked with her husband, her house comprised of three floors and she alongwith her husband stayed at the second floor. She further stated that she was happily married with her deceased husband Vinod and was having one son out of the said wed lock. Her husband was earning well to take care of her and her son and he was the owner of the property where incident took place. A1 was relative of her husband and was employee of her husband and his salary was Rs. 8,000/- per month for the last six months from the day of incident. A1 had gone back to his village as he was not paid the total dues of his salary. A1 was again called by her husband from the village to join back his profession with her husband. On the day of incident at the time of incident, she was feeding her son aged about 06 years. She came to the first floor after hearing the noise of her husband and saw that A1 was running upstairs. She immediately called the neighbors and with their help, took her husband to the nursing home and hospital for treatment. Her husband was a chronic patient of fits and other ailments. She further stated that her in-laws wanted to grab the FIR No: 281/13; PS Uttam Nagar Page 30 of 62 State v.Ajit & Anr.
: 31 :property of her husband and therefore, they had falsely implicated her in this case. She also stated that she does not want to lead evidence in her defence.
Final Arguments:
56. I have heard the final arguments as advanced by ld. Addl.
P.P. for the State, duly assisted by the ld. Counsel for the complainant and ld. counsel for both the accused persons and have perused the entire material available on record.
57. It is argued by Ld. Addl. PP for the State that from the deposition of witnesses, the prosecution is able to prove that both A1 and A2 in furtherance of their common intention committed murder of deceased Vinod. The cause of death was asphyxia due to manual throttling. A1 in his statement under section 313 Cr.P.C had even stated that he was the person who had throttled the neck of the deceased. The evidence shows that the offence was committed in a pre-meditated manner. There is no substance in the submission of defence that sudden fight took place between the parties causing death of deceased. The conduct of A2 post commission of offence is explained by public witnesses who are the neighbors of A2 and deceased. Child witness PW-23 had also deposed about the complicity of accused persons in the commission of offence.
FIR No: 281/13; PS Uttam Nagar Page 31 of 62State v.Ajit & Anr.
: 32 :58. It is argued by Ld. Counsel for the complainant that PW-
23 child witness Ishu is a competent witness and he had categorically deposed that A2 had pressed the neck of deceased and A1 had held the legs of deceased, when A2 was pressing his neck. The credibility of the child witness had remained unshaken and inspires confidence. There is nothing on record to show that the child witness was tutored. Thus, it is stated that the accused persons be convicted for the offence of murder of deceased Vinod.
59. Per contra, it is argued by Ld. Counsel for A1 that testimony of PW-21/autopsy surgeon shows that the deceased had died due to manual throttling and no additional weapon like rope or any other ligature material was used by A1 for throttling the deceased. PW-23/child witness Ishu was 12 years old at the time of recording of his deposition before the Court in the year 2019. The incident took place in the year 2013 and at that time, child witness Ishu was aged about 6 years. He was tutored by PW-1/sister of deceased to depose against A1 and A2 as PW-1 wanted to grab the property of deceased. There is contradiction in the previous statement of PW-23 recorded by the IO and his deposition before the Court. The incident took place due to sudden scuffle between deceased and A1, which ensued due to non-payment of dues of A1 by the deceased and in a sudden quarrel A1 had throttled the neck of deceased.
FIR No: 281/13; PS Uttam Nagar Page 32 of 62State v.Ajit & Anr.
: 33 :60. It is further argued by Ld. Counsel for A1 that the matter falls within the category of culpable homicide not amounting to murder as there was no intention to murder the deceased by accused and the incident took place in a sudden quarrel. Deceased Vinod also used to suffer with fits. Thus, the case falls under exception 4 of section 300 IPC as the culpable homicide occurred without pre-meditation in a sudden fight in the heat of passion upon a sudden quarrel and A1 had not taken any undue advantage, nor acted in a cruel or unusual manner. It is further argued that A1 be convicted for the offence under section 304 Part II IPC, as per the provision of section 300 exception 4 IPC.
61. It is argued by Ld. counsel for A2 that the prosecution is not able to prove its case against A2 beyond shadow of all reasonable doubts. PW-23 child witness Ishu was tutored by his paternal aunt/PW-1 to falsely depose against A2 for grabbing the property of A2 and the deceased. The witnesses have deposed that post incident the sister-in-law/PW-1 had started residing in the house of deceased. The deceased had died due to manual throttling. Her conduct post offence shows that she was the person who had taken her husband/deceased to the hospital and therefore, there was no intention or motive on her part to murder her husband. There is no evidence on record to prove alleged illicit relations of her and A1. Thus, it is prayed that A2 be FIR No: 281/13; PS Uttam Nagar Page 33 of 62 State v.Ajit & Anr.
: 34 :acquitted from the offence of murder of deceased Vinod.
Appreciation of law & evidence :
62. It is a fundamental doctrine of criminal law that the onus to prove its case lies on the prosecution. Thus, in a criminal trial, the onus to prove the commission of offence by the accused is always upon the prosecution and the same never shifts upon the accused. The prosecution has to establish before the Court that the accused had committed the offence beyond shadow of all reasonable doubts.
63. The Hon'ble Supreme Court of India in the case of Nanjundappa and Anr. v. State of Karnataka, decided on 17th May, 2022 has reiterated its view taken in the judgment titled as S.L.Goswami v. State of Madhya Pradesh, 1972 Crl.L.J.511 SC that :
'....the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage, does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases, where defence of the accused does not appear to be credible or is palpably false, that burden upon the prosecution does not become any less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused FIR No: 281/13; PS Uttam Nagar Page 34 of 62 State v.Ajit & Anr.: 35 :
even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if, the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution'.
Legal Provisions :
64. Both A1 and A2 have been charged for the offence punishable under section 302 IPC read with section 34 IPC.
65. Offence of Culpable homicide is defined under section 299 IPC.
Section 299 IPC states that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
66. Offence of murder is defined under section 300 IPC.
Section 300 IPC states that except in the cases hereinafter excepted, culpable homicide is murder, if the act by which death is caused is done with the intention of causing death, or - Secondly - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the FIR No: 281/13; PS Uttam Nagar Page 35 of 62 State v.Ajit & Anr.
: 36 :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.
67. There are five exceptions to section 300 IPC. Exception 1 deals with grave and sudden provocation, exception 2 deals with right of private defence, exception 3 deals with acts of public servants/acts in advancement of public justice, exception 4 deals with acts without pre meditation in sudden fight and exception 5 deals with taking the risk of death with one's own consent.
Exception 4 of section 300 IPC reads as under:
Culpable homicide is not murder if it is committed without pre meditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation- It is immaterial in such cases which party offers the provocation or commits the first assault.FIR No: 281/13; PS Uttam Nagar Page 36 of 62
State v.Ajit & Anr.: 37 :
68. In order to invoke this exception four requirements must be satisfied that it was a sudden fight, there was no pre- meditation, the act was done in a heat of passion and assailant had not taken any undue advantage or acted in a cruel manner.
69. Section 34 deals with the principle of joint liability and states that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. The necessary conditions for application of section 34 of the Code are common intention to commit an offence and participation by all the accused in doing act or acts in furtherance of that common intention. Common intention can be developed at the spot and on the spur of the moment.
Receipt of information of offence and registration of FIR :
70. The first PCR call was made at 10:40 pm on 25.05.2013 and was recorded vide DD number 82 B(Ex. PW14/A). PW- 14/DD writer had proved the recording of DD number 82B, Ex.PW-14/A at 10:40 pm on 25.05.2013. PW-19 Seema Batra had deposed that she had called the police, after taking the phone of one of her neighbour, when she saw that A1 was trying to hide himself behind the water tank on the top floor of the house of A2. PW-3 Rekha had also deposed that PW-19 Seema FIR No: 281/13; PS Uttam Nagar Page 37 of 62 State v.Ajit & Anr.
: 38 :had taken her phone and dialed at 100 number when neighbor Lata said that someone had climbed on the water tank, on the roof of house of A2.
71. It is deposed by PW-3 Rekha, PW-6 Chand Prakash and PW-19 Seema Batra that A1 was brought downstairs by the police from the water tank of the roof of house of A2. They correctly identified A1 before the Court as the person who was brought down by the police and was taken by the police alongwith them/was apprehended by the police.
72. Information regarding death of deceased was received by the police vide DD number 3A, Ex.PW-5/A, on 26.05.2013 at 12:45 am. The said information was received from DDU hospital that deceased Vinod was brought to the hospital by his relative Sanjay, admitted vide MLC number 13029 and was declared as 'brought dead'. The statement of sister of deceased/complainant/PW-1 was recorded by the police and she expressed suspicion over A1 and A2 behind the death of her deceased brother Vinod. However, only after autopsy was performed on the body of deceased and it was opined by the autopsy surgeon that the manner of death was homicidal in FIR No: 281/13; PS Uttam Nagar Page 38 of 62 State v.Ajit & Anr.
: 39 :nature, rukka was prepared by the IO on the basis of statement of sister of deceased/PW-1 and postmortem report and FIR no. 281/2013, under section 302/34 IPC, Ex.PW-4/A was registered in PS Uttam Nagar on 27.05.2013 at 02:30 pm. Identity of deceased :
73. The identity of deceased Vinod had remained undisputed during trial. The prosecution witnesses as well as the accused persons in their statements under section 313 Cr.P.C. had stated that deceased was Vinod, who was the husband of A2 and was resident of house number 57, Om Vihar, Phase-I, Uttam Nagar, Delhi.
Medical evidence :
74. As per postmortem report Ex.PW-21/A, the cause of death was given by the autopsy surgeon/PW-21 as asphyxia caused by manual throttling. It was further opined that all the external injuries found on the body of deceased, were antemortem in nature and were of same duration.
75. As per postmortem report Ex.PW-21/A, besides injuries over the neck area, there were injuries in the nature of abrasions on the outer surface of left elbow and right elbow; abrasion over the lower part of the right side of hand; two abrasions over the anterior surface of lower right leg just above the ankle; bruise FIR No: 281/13; PS Uttam Nagar Page 39 of 62 State v.Ajit & Anr.
: 40 :present over mid part of right leg; pressure abrasion over right tip of shoulder and abrasion over mid part of lower lip.
76. It is the case of defence that deceased used to suffer from fits. A2 had stated in her statement under section 313 Cr.P.C. that her husband used to suffer from fits. However, the injuries as reflected in the postmortem report are not possible due to fall from fits alone, as these injuries were in the nature of abrasion over the outer surface of both elbows as well as were over the lower part of hand and over the anterior surface of right leg and abrasion over right tip of shoulder. If due to fit, a person falls down, injury will be sustained either on the back side or front side or towards the sides of the body. In the present case, deceased had suffered injury over the outer surface of both elbows, over the front portion of hand as well as right leg and over the tip of shoulder and mid part of lower lip. Thus, the deceased was subjected to assault.
77. Moreso, there is abrasion over the right side of lateral aspect of neck as well as multiple crecentric nail marks over the anterior bilateral aspect of neck placed 5 cm above the upper part of sternum and the cause of death was opined by the doctor as asphyxia due to manual throttling. The internal examination of neck also revealed that multiple contusions and bruises were present over the right side of neck below the linear abrasion FIR No: 281/13; PS Uttam Nagar Page 40 of 62 State v.Ajit & Anr.
: 41 :mark and underneath the nails. The cornua of thyroid cartilage was broken and tilted inwards, the cornua of hyoid bone was also fractured.
78. Thus, the neck was pressed with human hands with force as a result of which there was fracture in hyoid bone and the thyroid cartilage was also broken and there were multiple contusions and bruises over the neck below the nail marks and abrasion, which were found on external examination on the neck.
79. Thus, from the postmortem report Ex.PW-21/A, which could not be assailed in the detailed cross-examination conducted by defence, it is established that death of deceased Vinod was in the nature of culpable homicide.
80. It is further pertinent to point out that PW-21/autopsy surgeon had deposed in her cross-examination that the congestion of lungs of deceased, mentioned in the P.M report (Ex.PW21/A), was not possible in case of patient suffering from tuberculosis.
81. PW-3 Rekha had deposed that A2 had told her that her husband/deceased Vinod used to suffer from fits, TB and Cancer. PW-2 Poonam had also deposed that in her presence, FIR No: 281/13; PS Uttam Nagar Page 41 of 62 State v.Ajit & Anr.
: 42 :A2 had told PW-3 that her husband/deceased Vinod was the patient of TB and Cancer. PW-2 had deposed that A2 had come downstairs and had talked to PW-3 about the health of her husband and this conversation lasted for 4-5 minutes and thereafter A2 went upstairs. A2 in her statement under section 313 Cr.P.C had also affirmed that she had told PW-3 Rekha in the presence of PW-2 that Vinod suffered from TB and Cancer. This conversation had lasted for 4-5 minutes and she had come downstairs.
82. The deposition of autopsy surgeon/PW-21 shows that congestion of lungs found during the internal examination of deceased was not possible in the case of a TB patient. This indicates that A2 had lied to her neighbors,viz., PW-2 Poonam and PW-3 Rekha qua the health status of her deceased husband when they had gathered outside the house of A2 post hearing the distress call for help at the time of incident.
Ocular evidence :
83. Ocular evidence is considered as the best form of evidence in a criminal trial, given that it is duly corroborated by other evidences and there is no reason to doubt it.
84. PW-23 Child witness Ishu was initially not made a witness by the prosecution, however on the application moved FIR No: 281/13; PS Uttam Nagar Page 42 of 62 State v.Ajit & Anr.
: 43 :under section 311 Cr.P.C, he was allowed to be examined as a prosecution witness. The initial statement of PW-23, Ex. PW23/A, was recorded by the IO during inquest proceedings prior to registration of FIR. At that time, PW-23 was six years old and had stated that when his father started screaming, he was eating bread. Thereafter his mother went downstairs and poured water on the mouth of his father. His father was taken to the doctor by him, his mother, his maternal uncle Vipin and his maternal aunt and his father had received injury on his neck and legs. His mother had asked him not to go downstairs as he will get perturbed. He stated that after hearing screams, his mother had went downstairs and she again came upstairs and prepared maggi for him. Thereafter his father was taken to the hospital. PW-23 was examined in the Court when he was 12 years old. His version before the Court was different from that of his initial statement recorded during inquest proceedings and before the Court he stated that his mother/A2 had strangulated the neck of his father and at that time, A1 had held the hands and legs of his father. He was bolted on the second floor by his mother and he could see the incident from the iron mesh/jaal which was installed on each floor. He was shown his statement Ex. PW23/A and he identified his signatures on the said statement. He stated that A1 had hidden himself in the water tank on the terrace. In his cross-examination, he affirmed his version as stated in statement Ex. PW23/A. FIR No: 281/13; PS Uttam Nagar Page 43 of 62 State v.Ajit & Anr.
: 44 :85. PW-23 Ishu is a child witness. He had deposed before the Court after a considerable gap of 06 years post commission of offence. There are material discrepancies and variations in his testimony from that of his statement Ex. PW23/A recorded during inquest proceedings. Thus, the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial prior to acting upon his evidence. He is neither wholly reliable nor wholly unreliable. He in his examination-in-chief had deposed a totally opposite version from that of his statement Ex. PW23/A, he had also identified his statement Ex. PW23/A and had also affirmed certain portions of that statement in his cross- examination, when confronted with the same.
86. The maxim 'falsus in uno, falsus in omnibus' (false in one thing, false in everything) implying that if part of the evidence given by a witness has been disbelieved, the whole of it should be disbelieved as a rule of law, has no application in India. It has been held by the Hon'ble Supreme Court of India in the case titled as Ram Udagar Singh v. State of Bihar, (2004) 10 SCC 443 as under :
'Even if a major portion of evidence is found to be deficient, in case the residue is sufficient to prove the guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be FIR No: 281/13; PS Uttam Nagar Page 44 of 62 State v.Ajit & Anr.: 45 :
maintained. It is the duty of the Court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the Court to convict an accused notwithstanding the fact that the evidence has been found to be deficient to prove the guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim 'falsus in uno, falsus in omnibus' had no application in India and the witnesses cannot be branded as liars. The maxim 'falsus in uno, falsus in omnibus' has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to is that in such cases testimony may be disregarded, and not that it must be discarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence.' Thus, it is open to the Court to sift the deposition of the prosecution witnesses and accept part thereof, while rejecting the other part.
87. In view of the same, the deposition of PW-23 can be believed to the extent that he had affirmed in his cross-
examination that both A1 and A2 were present in the house at the time of incident. He had heard voice of his father shouting for help. His mother had went downstairs after giving bread to him. His mother had also sprinkled water on the face of his father.
88. Though direct evidence of PW-23 qua the manner in FIR No: 281/13; PS Uttam Nagar Page 45 of 62 State v.Ajit & Anr.
: 46 :which offence was committed is disbelieved by the Court, however in the present matter there are ample circumstantial evidences on record which when read together indicate towards the culpability of A1 and A2 in the commission of murder of deceased Vinod.
89. The prosecution had examined neighbors of deceased and A2, as witnesses, viz. PW-2 Poonam, PW-3 Rekha, PW-6 Chand Prakash, PW-7 Rama Devi, PW-9 Harish Chawla and PW-19 Seema Batra. They are witnesses of events which had occurred outside the house of deceased and A2, post distress call was heard from the house and are witnesses who had the occasion to see the deceased immediately post commission of offence. Some of them had also deposed qua the presence of A1 at the spot (as discussed earlier) and qua the conduct of A2 when approached by them to inquire about the said distress call and when they offered help.
90. It is deposed by PW-2 Poonam that on 25.05.2013 at about 09:45 pm she had heard the distress call for help and loud sound of groaning, indicating that someone was in pain, from the house of A2 and deceased. This deposition of PW-2 was put to A2 in her examination under section 313 Cr.P.C and A2 affirmed the same. Thus, it is established that a distress call for help had come from the house of deceased and A2.
FIR No: 281/13; PS Uttam Nagar Page 46 of 62State v.Ajit & Anr.
: 47 :91. It is further deposed by PW-2 that she continuously rang the door bell of A2. A2 came out in the balcony of her floor after 6-7 minutes. This incriminating fact was also put to A2 in her statement under section 313 Cr.P.C and she did not denied the same.
92. PW-2 Poonam and PW-3 Rekha deposed that A2 told them that Vinod had suffered from fits and A2 also told PW-3 Rekha that Vinod, besides fits, also used to suffer from TB and cancer. A2 had not denied the same as well in her statement under section 313 Cr.P.C.
93. PW-9 Harish Chawla deposed that on the asking of A2 he had taken Vinod to Central hospital as it was stated by A2 that Vinod was getting treatment from that hospital. A2 had also affirmed this deposition in her statement recorded under section 313 Cr.P.C.
94. It is pertinent to point out at this stage that it has come in the cross-examination of PW-21/autopsy surgeon Dr. Komal Singh, on the question put to her by the Ld. Defence counsel, that congestion of lungs is not possible in case of TB patient. As discussed earlier as per PM Report (Ex. PW21/A), both lungs of deceased were found highly congested. Despite the answer FIR No: 281/13; PS Uttam Nagar Page 47 of 62 State v.Ajit & Anr.
: 48 :given to the defence in cross-examination nothing was brought on record by the defence to show that deceased Vinod was suffering from TB and Cancer. As per section 106 of Indian Evidence Act when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him/her. It was the defence of A2 that her husband was ill. He used to suffer from fits. He was suffering from TB and Cancer and even at the time of incident distress call had come from her house as her husband had suffered from fits. However, no documents were provided by A2 to the investigating agency at the time of inquest proceedings nor any documents were produced before the Court by her for substantiating her defence qua the ailments of her husband/deceased.
95. It was further deposed by PW-2 Poonam and PW-3 Rekha, who were the immediate neighbors of deceased and A2, that they had never heard earlier from A2 or deceased that deceased was suffering from fits nor had earlier heard such type of noises coming from the house of deceased.
96. It is further deposed by PW-2 Poonam and PW-3 Rekha that when PW-2 and PW-3 initially offered help to A2 she declined by saying that she had telephonicaly called her sister- in-law. It is further deposed by PW-2 that A2 had come downstairs after she had rang the door bell after hearing distress FIR No: 281/13; PS Uttam Nagar Page 48 of 62 State v.Ajit & Anr.
: 49 :call for help and was talking to PW-3 for 4-5 minutes and then A2 again went upstairs. However as no relative came and they were concerned, they again rang the door bell of A2. A2 came after 1-2 minutes and the moment she opened the gate she fell down and asked them to rescue Vinod.
97. Question arises that if Vinod was screaming for help and A2 knew that he was suffering from fits and neighbors were standing downstairs for offering help, then why initially help was declined by A2. Further question arises that if Vinod was suffering so badly then why A2 came down from the balcony of first floor and talked to PW-3 for 4-5 minutes telling her about the health condition of Vinod and went upstairs. Why she after going upstairs also did not come back and asked for help for substantial period and only when the door bell was rung again by the neighbors, she came down and reluctantly opened the door and why precious time was lost/wasted by her in rescuing her husband.
98. It is deposed by PW-3 and PW-6 that when they went upstairs they found that Vinod was lying unconscious on the floor in a dark room. It was deposed by PW-6 that lights and fan were switched on by him of that room. Their testimonies were not controverted in cross-examination by defence and A2 in her statement under section 313 Cr.P.C had stated that she does not FIR No: 281/13; PS Uttam Nagar Page 49 of 62 State v.Ajit & Anr.
: 50 :remember about the fan however the light of that room where her husband was lying was switched off. Again question arises that if the husband was not well and the incident occurred in the month of May, which is a summer month, then why A2 had allowed her husband who was unconscious to be kept lying on the floor in a dark room in which even fan was not switched on. It is not the case that there was no electricity as it was deposed by the witnesses that lights were on in the first room which came on their way and Vinod was lying on the another room subsequent to that first room.
99. Moreso, A2 had stated in her statement recorded under section 313 Cr.P.C that on the day of incident when she was feeding her son, she came to the first floor after hearing the noise of her husband and saw that A1 was running upstairs. She immediately called the neighbors and with their help took her husband to the nursing home and hospital for treatment.
100. This statement of A2 further indicates towards her complicity in the commission of offence as this statement shows that A2 knew about the presence of A1 in the house. She knew that her husband had cried for help and saw A1 running upstairs. She had stated in her statement that she had immediately called her neighbors for help, however the deposition of her neighbors PW-2 and PW-3, is contrary to the same as they had deposed FIR No: 281/13; PS Uttam Nagar Page 50 of 62 State v.Ajit & Anr.
: 51 :that after PW-2 rang the door bell of the house for 6-7 minutes, A2 came out in the balcony of the first floor and when PW-2 offered help she declined by saying that she had already telephoned. PW-2 had further deposed that A2 had come downstairs to talk to PW-3 about the health of her husband and that conversation took place for about 4-5 minutes. PW-3 had further deposed that after A2 had went to her house, post talking to them about the ill-health of her husband, they stood outside the house of A2 for about 5-7 minutes and as nobody came to the house of deceased and A2, they again rang the door bell and thereafter A2 came after 1-2 minutes. PW-2 Poonam had even deposed qua the conduct of A2 that when she came down she was initially reluctant to open the door and after about ½ minute when she opened the door she fell down. Both PW-2 and PW-3 made A2 stand up with the help of other neighbors.
101. The conduct of A2 indicates towards her complicity in the commission of offence as the said conduct is opposite to natural human conduct when placed in a similar situation. She though had stated that she had immediately called neighbors for help, however her version is falsified by the version of PW-2 and PW-3 who had deposed that despite help was offered, the same was declined initially by A2 stating that she had called her relatives. Further, her conduct is against natural human conduct as if her husband had called for help and she had gone FIR No: 281/13; PS Uttam Nagar Page 51 of 62 State v.Ajit & Anr.
: 52 :downstairs post hearing the said distress call and had seen A1 running upstairs, she had not informed the same to the neighbors who had also immediately reached for help outside her door and had infact mislead the neighbors by making a fake story of ill- health of her husband and had buyed time for A1 to escape from the spot.
102. The legislative intent behind recording statement of accused under section 313 Cr.P.C is to provide him/her an opportunity to explain the circumstances appearing against him/her in trial and for the Court to have an opportunity to examine the accused and to elicit an explanation from him/her which may be free from fear of being trapped for an embarrassing admission or statement. It is settled principle of law that statement of accused made under section 313 Cr.P.C can be used by the Court to the extent it is in line with the case of the prosecution and the case of the prosecution can be substantiated and treated as correct by the Court to that extent. Reliance is placed upon Dharnidhar v State of UP ; 2010 (6) SCJ 662 and Mohan Singh v. Prem Singh; 2003 Crl.J 11 (SC) l.
103. In the case titled as State of UP v. Lakhmi decided on 12.02.1998, it was held by Hon'ble three judge Bench of Hon'ble Supreme Court of India has held as under:
FIR No: 281/13; PS Uttam Nagar Page 52 of 62State v.Ajit & Anr.: 53 :
'As a legal proposition we cannot agree with the High Court that statement of an accused recorded under Section 313 of the Code does not deserve any value or utility if it contains inculpatory admission. The need of law for examining the accused with reference to incriminating circumstances appearing against him in prosecution evidence is not for observance of a ritual in a trial nor is it a mere formality. It has a salutary purpose. It enables the Court to be apprised of what the indicted person has to say about the circumstances pitted against him by the prosecution. Answers to the questions may sometimes be flat denial or outright repudiation of those circumstances. In certain cases, accused would offer some explanations to incriminating circumstances. In vary rare instances, accused may even admit or own incriminating circumstances adduced against him, perhaps for the purpose of adopting legally recognized defences. In all such cases the Court gets the advantage of knowing his version about those aspects and it helps the Court to effectively appreciate and evaluate the evidence in the case. If an accused admits any incriminating circumstance appearing in evidence against him, there is no warrant that those admissions should altogether be ignored merely on the ground that such admissions were advanced as a defence strategy.
Sub section 4 of section 313 of the Code contains necessary support to the legal position that answers given by the accused during such examination are intended to be considered by the Court. The words "may be taken into consideration in such inquiry or trial" in sub section 4 would amount to a legislative guideline for the Court to give due weight to such answers, though it does not mean that such answers could be made the sole basis of any finding.
Time and again, this Court has pointed out that such answer of the accused can well be taken into consideration in deciding whether the prosecution evidence can be relied on, and whether accused is liable to be convicted of the offences charged against him; vide; Sampath Singh v. State of Rajasthan (1969 (1) SCC 367) Jethamal Pithaji v. The Assistant Collector of Customs.
FIR No: 281/13; PS Uttam Nagar Page 53 of 62State v.Ajit & Anr.
: 54 :Bombay and another (1974) 3 SCC 393; Rattan Singh vs State of Himachal Pradesh (1997) 4SCC 161.
We make it clear that answers of the accused, when they contained admission of circumstances against him are not by themselves, delinked from the evidence be used for arriving at a finding that the accused had committed the offence.'
104. The Hon'ble Supreme Court of India in the case of Rafiq Ahmad @ Rafiq v. State of Uttar Pradesh AIR 2011 SC 3114 had held as under:
"It is true that the statement under Section 313 Cr.P.C cannot be the sole basis for conviction of the accused but certainly it can be a relevant consideration for the Court to examine, particularly when the prosecution has otherwise been able to establish the chain of evidence..."
105. Thus, the statement of accused recorded under Section 313 Cr.P.C is not evidence on oath nor can the same be a sole basis of conviction, however, it is relevant consideration and explains the version/stand of accused and helps the Court to effectively appreciate and evaluate evidence.
106. From the non-controverted and overwhelming evidence brought on record the prosecution has been able to prove that there was distress call for help from the house of deceased and A2 pursuant to which neighbors gathered outside the house. A2 concocted a false story that her husband was a patient of tuberculosis. A2 did not immediately asked for help which was readily available even when her husband was lying unconscious.
FIR No: 281/13; PS Uttam Nagar Page 54 of 62State v.Ajit & Anr.
: 55 :She even came downstairs, talked to neighbours for 4-5 minutes and again went upstairs. She initially also opened the door after 6-7 minutes when door bell of her house was rung for 6-7 minutes by PW-2. She still by herself did not asked for help and only when the neighbors again pressed the door bell, she came down and then asked for help. She rather preferred to waste precious time when medical aid could have been provided to her husband. Her conduct indicates that she was in fact buying time for A1 to escape from the spot. She was aware about the presence of A1 in the house. She was aware that A1 had ran upstairs after she had heard a distress call for help of her husband. She had not disclosed about the presence of A1 to the neighbours. She had also allowed her husband to lie on the floor in darkness, despite the fact that electricity was available.
107. It is further proved by the prosecution from the deposition of PW-3 Rekha, PW-6 Chand Prakash and PW-19 Seema Batra that one of the neighbors had seen a person climbing on the roof of the house of deceased and A2 and hiding himself behind the water tank. Thereafter, PW-19 had called the police from the phone of PW-3 and police reached at the spot and brought A1 down from the terrace of the water tank of the house of deceased and A2.
108. A1, in his statement recorded under section 313 Cr.P.C, FIR No: 281/13; PS Uttam Nagar Page 55 of 62 State v.Ajit & Anr.
: 56 :had stated that he was present in the house and had hidden himself behind the water tank because he was scared. He had further stated that a sudden quarrel had taken place between him and deceased because he had demanded his dues from the deceased upon which deceased Vinod started abusing and hitting him leading to a scuffle between them. He, in a fit of anger and rage, inadvertently throttled the neck of deceased and deceased became unconscious.
109. Firstly, the witnesses have corroborated each other qua the fact that A1 was brought down by the police from the roof of the house of deceased and A2, subsequent to PCR call made by PW-19. Secondly, A1 in his statement recorded under section 313 Cr.P.C had also affirmed that he was present at the spot and was brought down by the police from the water tank situated at the terrace/roof of the house of deceased and A2. He had stated that he used to work for deceased Vinod and had further stated that after the scuffle with the deceased he had run away to the top floor because he got scared as deceased had become unconscious. As discussed above, the statement made by accused under section 313 Cr.P.C can be used by the Court to the extent it is in line with the case of the prosecution and the case of the prosecution can be accepted as correct to that extent .
110. In view of the statement of A1 recorded under section 313 FIR No: 281/13; PS Uttam Nagar Page 56 of 62 State v.Ajit & Anr.
: 57 :Cr.P.C and the duly corroborated testimonies of prosecution witnesses it is held that it is established that A1 was hiding himself on the roof of the house of deceased Vinod soon after the incident in question. The presence of A1 at the house of deceased is further proved by the call detail record Ex.PW20/A. It is deposed by IO PW-22 Insp. Ram Niwas that call detail records of mobile phone number 8750525318 was obtained as per which the presence of A1 was found at the spot at the time of incident. His deposition qua the call detail record EX. PW20/A is corroborated by the testimony of nodal officer PW-20. PW-11 Sh. Sunil Kumar Sah had also deposed that he had obtained the said number on the ID of his friend PW-10 Vinay Kumar Chaudhary and had given the said phone number for use to A2.
111. In the case of Sharad Birdhichand Sarda v. State of Maharastra, reported in AIR 1984 SC 1622, the Hon'ble Apex Court has laid down the tests which are pre-requisites before conviction should be recorded, which are as under:
The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
The circumstances should be of conclusive nature and tendency;FIR No: 281/13; PS Uttam Nagar Page 57 of 62
State v.Ajit & Anr.: 58 :
They should exclude every possible hypothesis except the one to be proved; and There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
112. From the above discussions and findings, the testimonies of the prosecution witnesses, the statement of accused persons recorded under section 313 Cr.P.C, the prosecution has been able to prove beyond shadow of all reasonable doubts the following facts that:
(a) deceased was the husband of A2,
(b) A1 used to work and reside in the house of the deceased,
(c) A1 was present in the house of deceased when distress call for help had come from the house of deceased,
(d) A2 was also present in the house when her deceased husband raised distress call and she also saw that A1 was escaping upstairs post distress call of her husband,
(e) A2 made efforts to hide the presence of A1 in the house from the neighbors by not disclosing the same to them, by concocting a false story of fits, TB and cancer and that she had telephoned her relatives and by delaying the entry of neighbors in the house,
(f) no medical documents of deceased were produced or FIR No: 281/13; PS Uttam Nagar Page 58 of 62 State v.Ajit & Anr.: 59 :
proved before the Court by defence,
(g) the neighbors had never earlier heard about the illness of deceased nor had heard such noises/voices from the house of deceased earlier.
(h) the deceased was lying in a dark room where lights and fan were switched off.
(i) A2 tried to persuade the neighbors that things were normal by misleading them that her husband had suffered from fits and she had called her relatives,
(j)only on the insistence of neighbors, when again door bell was rung by the neighbors, she opened the door and the neighbors could come upstairs,
(k) post mortem examination showed that besides injuries on the neck portion, there were injuries on the other parts of body which were consistent of assault besides throttling,
(l) the neck of the deceased was throttled to the extent that cornua of hyoid bone was fractured and cornua of cartilage was broken and there were multiple contusions and bruises over the neck below the nail marks.
(m)medical evidence/post mortem report further falsified the version of A2 that deceased suffered from TB as it was deposed by PW21 that a person suffering from TB cannot have congestion in lungs.FIR No: 281/13; PS Uttam Nagar Page 59 of 62
State v.Ajit & Anr.
: 60 :(n) false version was stated by A2 in her statement recorded under section 313 Cr.P.C that she had immediately called her neighbors for help when she had heard distress call of her husband and saw A1 running upstairs and in fact she had hidden about the presence of A1 and his escaping upstairs from the neighbors and in fact had buyed more time for A1 so that he could hide himself after the commission of offence.
113. In view of the same it can be safely concluded that both A1 and A2 were actively involved in the commission of culpable homicide of deceased Vinod.
114. It has been argued by Ld. Counsel for accused persons that the act was done by A1 in a sudden fight without pre meditation and A1 had not acted in a cruel and barbaric manner, as no other weapon was used to cause death. In the present case, the neck of deceased was pressed to the extent that the thyroid cartilage broke and hyoid bone fractured. Further there were external injuries over the other portions of the body of deceased, consistent with assault. A1 was also medically examined at DDU hospital vide MLC number 13104 on 27.05.2013 at 09:30 pm and as per local examination, there was no external injury or FIR No: 281/13; PS Uttam Nagar Page 60 of 62 State v.Ajit & Anr.
: 61 :bleeding and in fact there were no old injury marks as well.
115. In view of same it cannot be said that there was a sudden fight as in a fight two persons quarrel whereas no injury of any nature was received by A1 nor was alleged by A1 in defence or in crossexamination of witnesses. Furthermore, no evidence has been brought on record to show that dues were not paid.
116. Deceased had suffered injuries over his hand, over his elbows, over his shoulder, below his lip, over his right leg and had also suffered manual strangulation.
117. In view of the same, in the considered opinion of this Court, the case qua A1 and A2 does not fall under exception 4 of section 300 IPC and is squarely covered under the provisions of section 300 IPC because the death of deceased was caused by both A1 and A2 in furtherance of their common intention and their acts indicate that they were having intention to cause the death of deceased, which can be formed even at the spur of moment.
Conclusion/Findings :
118. In view of above discussions & findings, accused persons namely Ajit (A1) and Jyoti (A2) are held guilty and FIR No: 281/13; PS Uttam Nagar Page 61 of 62 State v.Ajit & Anr.
: 62 :convicted for the commission of offence punishable under section 302 IPC read with section 34 IPC.
119. Let they be heard separately on the point of sentence.
120. Copy of the judgment be provided to the convicts free of Digitally signed by cost. NEHA NEHA PALIWAL PALIWAL SHARMA Date: 2023.11.30 ANNOUNCED IN THE SHARMA 18:40:21 +0530 OPEN COURT ON: (NEHA PALIWAL SHARMA) 30th November, 2023 ASJ-05 (West), THC, Delhi.
It is certified that this Judgment contains 62 pages and each page bears my signatures. Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA Date: 2023.11.30 SHARMA 18:40:40 +0530 (NEHA PALIWAL SHARMA) ASJ-05 (West), THC, Delhi 30.11.2023 FIR No: 281/13; PS Uttam Nagar Page 62 of 62 State v.Ajit & Anr.