State vs Birju on 1 August, 2025
IN THE COURT OF SH. KUMAR RAJAT,
ADDL. SESSIONS JUDGE-07, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI
IN THE MATTER OF :
SC No. 126/2019
CNR No. DLSH01-001549-2019
FIR No. 394/2016
PS Anand Vihar
STATE
VS.
(1) BIRJU,
S/o Sh. Jaswant Singh,
R/o H.No. 9, Gali No. 1,
Arya Nagar, near Dayanand Vihar,
Delhi.
(2) SUSHIL,
S/o Sh. Vijay Pratap Singh,
R/o H.No. 10/11, near Post Office,
Gandhi Nagar, Delhi-51.
.... Accused persons
Date of Institution of case 07.03.2019
Date of case reserved for 22.07.2025
Judgment
Judgment Pronounced on 01.08.2025
Decision (i) Both accused Birju and Sushil convicted
u/s 224 IPC and 186/353/323/34 IPC.
(ii) Accused Sushil also convicted u/s 324
IPC.
(iii) Accused Birju and Sushil acquitted u/s
308/34 IPC.
(iv) Accused Sushil is acquitted u/s 174 A
IPC
State Vs Birju & Anr. FIR No. 394/2016 PS Anand Vihar Page 1 of 42
Digitally signed
KUMAR by KUMAR
RAJAT
RAJAT 15:38:53
Date: 2025.08.01
+0530
JUDGMENT
BRIEF FACTS OF THE CASE
1. As per the case of prosecution, complainant Ct. Chet Ram alleged that on 19.08.2016, he and Ct. Mangat had gone to deposit accused Sushil and Birju to KKD Court Lockup at 2 PM in DD No. 6A dated 19.08.2016 u/s 107/151 Cr.P.C. after their production in the SEM Court, which had directed to lodge them in judicial custody till 23.08.2016, but the bus had already left the KKD Court Lockup. Then, they both were waiting for TSR outside PS Anand Vihar to go to lodge them in Tihar Jail. In the meanwhile, accused Birju gestured towards accused Sushil, who immediately had bitten in the left hand of complainant and tried to run away after releasing his hand and hit him on his head with one stone lying nearby due to which complainant started bleeding from head and both the accused persons tried to flee and in the scuffle, the order of their JC got torn and the public persons gathered there and caught them and beaten accused Sushil and handed over them to complainant and both him and other constable took accused persons to PS.
2. On the complaint of the complainant, FIR was registered vide FIR No. 394/2016 dated 19.08.2016 in PS Anand Vihar u/s 186/353/223/308/34 IPC. After investigation, charge sheet was filed against accused Birju and Sushil u/s 186/353/308/224/34 IPC and after filing of charge sheet, cognizance of offences was taken against accused persons.
KUMAR Digitally signed by KUMAR RAJAT RAJAT 15:38:58 +0530 Date: 2025.08.01 CHARGE
3. Charge for the offences punishable u/s 308/186/353/324/34 IPC and 224 IPC was framed against accused Birju and Sushil by Ld. Predecessor on 28.09.2021. Additional charge for the offence punishable u/s 174A IPC was framed against accused Sushil on 23.07.2024. Accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. Prosecution examined 11 witnesses in its favour to prove the case.
5. PW1 ASI Rajesh Kumar deposed that on 19.08.2016, he was posted as HC/DO at PS Anand Vihar and on that day, his duty hours were from 04:00 pm to 12:00 midnight and at about 06:30 pm, SI Vineet Pratap produced a written tehrir/rukka to PW1 for registration of FIR and PW1 had made endorsement vide DD No. 28A dt. 19.08.2016, at about 06:40 pm, Ex.PW1/A and registered the FIR bearing no. 0394/2016, dt. 19.08.2016, PS Anand Vihar u/s 186/353/223/308/34 IPC, Ex.PW1/B (OSR) and also issued certificate u/s 65B IEA regarding the FIR, Ex.PW1/C.
6. PW2 HC Chetram deposed that on 19.08.2016, he was posted as Constable at PS Anand Vihar and on that day at about 02:00 pm, he along with Ct. Mangat vide DD No. 6A dt. 19.08.2016 u/s 107/151 Cr.PC, went to lock-up of KKD Courts Complex to deposit accused Sushil and Birju after their production before the SEM Court, Krishna Nagar, Delhi, which remanded them to judicial custody till 23.08.2016, but the lock- up van/bus had already left the court complex before they reached KUMAR Digitally signed by KUMAR RAJAT RAJAT 15:39:02 +0530 Date: 2025.08.01 there. Thereafter, PW2 and Ct. Mangat started waiting for auto/TSR in front of PS Anand Vihar so that they could produce both accused to Tihar Jail.
7. PW2 further deposed that in between, accused Birju gave some indication to accused Sushil and then he had bitten PW2 on his left hand and tried to run away. As soon as accused Sushil tried to escape from his custody by releasing his hand, he took up a brick and hit the same on the head of PW2. Blood started oozing out from his head and both accused tried to escape from their custody. The judicial order regarding their judicial custody was also got torn during the scuffle between accused and PW2 and Ct. Mangat.
8. PW2 further deposed that some public persons also gathered there. Wearing uniform (shirt) of PW2 also got torn during scuffle with accused persons. Some public persons also gave beating to accused Sushil and they handed him over to PW2 and Ct. Mangat. Thereafter, both accused persons were taken to PS Anand Vihar. PW2 was taken to the Dr. Hedgewar Hospital where his treatment was done. Thereafter, PW2 returned to the PS Anand Vihar and his statement/complaint, dt. 19.08.2016, Ex.PW2/A was recorded by the IO/SI Vineet, who got registered the case.
9. PW2 further deposed that thereafter, he along with Ct. Mangat, both accused and IO/SI Vineet went to the aforesaid spot. Accused Sushil took them to the spot and got recovered one brick, which was blood stained and used by accused Sushil to hit PW2. IO wrapped the above said brick in a white colour cloth KUMAR Digitally signed by KUMAR RAJAT RAJAT 15:39:06 +0530 Date: 2025.08.01 and sealed the same with the seal of 'AV-01' and thereafter, seized the same vide seizure memo, Ex.PW2/B. IO prepared the site plan, Ex.PW2/C.
10. PW2 further deposed that accused Sushil and Birju were arrested vide arrest memos dt. 19.08.2016, Ex.PW2/D and Ex.PW2/E and their personal search were conducted vide personal search memos, Ex.PW2/F and Ex.PW2/G and their disclosure statements were also recorded vide statements, Ex.PW2/H and Ex.PW2/I. Both accused persons were taken to the PS Anand Vihar again. In the PS, PW2 handed over his above said wearing shirt (blood stained) and vest (blood stained) to the IO, who wrapped the same in a white colour cloth and sealed the same with the seal of AV-01. IO seized the same vide seizure memo, dt. 19.08.2016, Ex.PW2/J. IO also seized the wearing t- shirt (green and yellow) on which words 'ARIZONA' were written, after sealing the same in a white colour cloth with the seal of AV-01, vide seizure memo, dt.19.08.2016 Ex.PW2/K. PW2 also handed over above said blood stained torn copy of judicial custody order of accused to IO and he sealed the same after putting it in a yellow colour envelope, with the seal of AV-01 and then seized the same vide seizure memo, dt.19.08.2016, Ex.PW2/L.
11. PW2 had correctly identified one wearing T-shirt (green and yellow) on which words 'ARIZONA' were written, Ex.P1, which was worn by accused Sushil at the time of incident and one piece of brick (half brick) (without any blood stains) upon which words 'BAAT in Hindi were written', Ex.P2, which KUMAR Digitally signed by KUMAR RAJAT RAJAT Date: 2025.08.01 15:39:11 +0530 was used by accused Sushil at the time of incident. PW2 had correctly identified one blood stained shirt (khakhi colour and the same was torn from near the left side pocket and without 2 buttons), one white colour bloodstained vest and one khakhi pant having some blood stains on it, Ex.P3 (colly), which was worn by PW2 and one judicial custody order of accused Sushil, dt. 19.08.2016 passed by Ld. SEM, Krishna Nagar, Delhi, having some blood stains (in two pieces), Ex.P4. PW2 had correctly identified accused Sushil and Birju in the Court.
12. PW3 ASI Mangat Singh deposed that on 19.08.2016, he was posted as Constable at PS Anand Vihar and on that day at about 02:00 pm, he along with Ct. Chetram vide DD No. 6A dt. 19.08.2016 u/s 107/151 Cr.P.C. went to lock-up of KKD Courts Complex to deposit accused Sushil and Birju after their production before the SEM Court, Krishna Nagar, Delhi, which remanded them to judicial custody till 23.08.2016, but the lock- up van/bus had already left the court complex before they reached there. Thereafter, they started waiting for auto/TSR in front of PS Anand Vihar so that they could produce both of them to Tihar Jail. In between, accused Birju gave some indication to accused Sushil and then Sushil had bitten Ct. Chetram on his left hand and started running after releasing himself from the custody of Ct. Chetram.
13. PW3 further deposed that as soon as accused Sushil tried to escape from custody of Ct. Chetram, he took up a brick and hit the same on Ct. Chetram's head. Blood started oozing out from his head. Accused Sushil escaped (hath chhuda ke bhaag KUMAR by KUMAR RAJAT RAJAT Date: 2025.08.01 15:39:16 +0530 gaya) from custody of Ct. Chetram. Some public persons apprehended accused Sushil and gave beating to him. The judicial order regarding their judicial custody also got torn during the scuffle between accused Sushil and Ct. Chetram. Accused Sushil also torn the wearing shirt (uniform) of Ct. Chetram in the scuffle. Accused Sushil was handed over to them again by the public persons. Thereafter, both of them were taken to PS Anand Vihar.
14. PW3 further deposed that Ct. Chetram was taken to the Dr. Hedgewar Hospital where his treatment was done. Both accused remained in the PS in his custody. After sometime, Ct. Chetram returned to PS Anand Vihar and his statement/complaint, dt. 19.08.2016, was recorded by the IO/SI Vineet, who got registered the case. Thereafter, he along with Ct. Chetram, both accused and IO/SI Vineet went to the aforesaid spot i.e. in front of PS Anand Vihar, Main Road.
15. PW3 further deposed that accused Sushil took them to the spot and got recovered one brick, which was blood stained and used by accused Sushil to hit Ct. Chetram. IO wrapped the above said brick in a white colour cloth and sealed the same with the seal of 'AV-01' and thereafter seized the same vide seizure memo, Ex.PW2/B. IO prepared the site plan, Ex.PW2/C at the instance of Ct. Chetram. Accused Sushil and Birju were arrested vide arrest memos dt. 19.08.2016, Ex.PW2/D and Ex.PW2/E, their personal search were conducted vide personal search memos, Ex.PW2/F and Ex.PW2/G and their disclosure statements were also recorded vide statements, Ex.PW2/H and Ex.PW2/I. KUMAR by KUMAR RAJAT RAJAT 15:39:20 Date: 2025.08.01 +0530 Both accused were taken to PS Anand Vihar again. In the PS, Ct. Chetram handed over his above said wearing uniform (shirt and pant) (blood stained) and vest (blood stained) to the IO, who wrapped the same in a white colour cloth and sealed the same with the seal of AV-01. IO seized the same vide seizure memo, dt. 19.08.2016, Ex.PW2/J. IO also seized the wearing t-shirt (green and yellow) on which words 'ARIZONA' were written, after sealing the same in a white colour cloth with the seal of AV-01, vide seizure memo, dt.19.08.2016, Ex.PW2/K.
16. PW3 further deposed that Ct. Chetram also handed over above said blood stained torn copy of judicial custody order of accused to IO and he sealed the same after putting it in a yellow colour envelope, with the seal of AV-01 and then seized the same vide seizure memo, dt.19.08.2016 Ex.PW2/L. PW3 had correctly identified one wearing T-shirt (green and yellow) on which words 'ARIZONA' were written, Ex.P1, which was worn by accused Sushil at the time of incident and one piece of brick (half brick) (without any blood stains) upon which words 'BAAT in Hindi were written', Ex.P2, which was used by accused Sushil at the time of incident. PW3 had correctly identified one blood stained shirt (khakhi colour and the same was torn from near the left side pocket and without 2 buttons), one white colour blood stained vest and one khakhi pant having some blood stains on it, Ex.P3 (Colly), which was worn by Ct. Chetram and one judicial custody order of accused Sushil, dt. 19.08.2016 passed by Ld. SEM, Krishna Nagar, Delhi, having some blood stained (in two pieces), Ex.P4. PW3 had correctly identified accused Birju and KUMAR by KUMAR RAJAT RAJAT 15:39:26 Date: 2025.08.01 +0530 Sushil in the Court.
17. PW4 ASI Sunil Kumar deposed that he had brought order bearing no. 1256-1325/HAR/East District dt. 20.06.2024 of DCP, East District regarding the weeding out of record pertaining to kalandara u/s 107/151 Cr.P.C. for the period from 01.01.2014 to 31.12.2016 and the copy of said order is Ex.PW4/A.
18. PW5 Dr. S D Bisht, Specialist Surgery, Dr. Hedgewar Hospital deposed that he was working as a doctor at Dr. Hedgewar Arogya Sansthan, Delhi since 2003. Dr. Umang (SR Surgery), Dr. Yansul Rathi (SR Surgery) and Dr. Shalini Gupta (CMO) had left the services of the above said hospital and their present whereabouts were not known to PW5. Dr. Umang (SR Surgery), Dr. Yansul Rathi (SR Surgery) and Dr. Shalini Gupta (CMO) had worked in the above said hospital. He was acquainted with their handwriting and signature as he had worked with them and also received letters/applications from them in official discharge of duties. PW5 further deposed that MLC bearing no. 2767/16 dt. 19.08.2016 of patient namely Ct. Chetram, No. 3255/East, Ex.PW5/A, had correctly identified the handwriting of Dr. Shalini Gupta from point A to A1 and her signature at point B. The MLC also bears the handwriting of Dr. Umang from point C to C1 and his signature at point D. The MLC also bears the handwriting of Dr. Yansul Rathi from point E to E1 and his signature at point F.
19. PW6 Insp. Ranveer Mavi deposed that on 17.02.2018, he was posted as SI at PS Anand Vihar. On that day, further investigation of the present case was marked to him and he KUMAR by KUMAR RAJAT RAJAT 15:39:31 Date: 2025.08.01 +0530 collected the case file from MHC(R). During Investigation, PW6 collected the final opinion regarding nature of injuries on the MLC of injured Ct. Chetram from Dr. Hedgewar Hospital and placed it on file. During investigation, he collected the complaint u/s 195 Cr.P.C. from Insp. Satyabir Singh, SHO Anand Vihar regarding the present incident, Ex.PW6/A. After completion of investigation, he prepared the charge-sheet and submitted it before the Court.
20. PW7 SI Vineet Pratap deposed that on 19.08.2016, he was posted as SI at PS Anand Vihar and on that day, he was present at PS and on the directions of SHO PS Anand Vihar, PW7 recorded the statement of Ct. Chetram, Ex.PW2/A and sent him to Dr. Hedgewar Hospital for medical examination. PW7 went to Dr. Hedgewar Hospital and collected the MLC of injured Ct. Chetram. PW7 seized the wearing uniform of Ct. Chetram produced by him, vide seizure memo, Ex.PW2/J after sealing the same in a white colour cloth with the seal of AV-01. PW7 also seized the wearing t-shirt of accused Sushil vide seizure memo, Ex.PW2/K after sealing the same in a white colour cloth with the seal of AV-01 and also seized the judicial custody order of accused Birju and Sushil dt. 19.08.2016 produced by Ct. Chetram (which was in torn condition and blood stained) vide seizure memo, Ex.PW2/L after putting the same in a yellow envelope with the seal of AV-01.
21. PW7 further deposed that he prepared the rukka, Ex.PW7/A and handed over the same to Duty officer for registration of FIR. After registration of FIR, PW7 prepared the KUMAR Digitally signed by KUMAR RAJAT RAJAT 15:39:36 +0530 Date: 2025.08.01 site plan, Ex.PW2/C at the instance of Ct. Chetram. Accused Sushil and Birju were arrested by PW7 vide arrest memos, Ex.PW2/D and Ex.PW2/E and their personal search were also conducted vide memos, Ex.PW2/F and Ex.PW2/G and their disclosure statements were also recorded, Ex.PW2/H and Ex.PW2/I. Thereafter, accused Sushil took PW7, Ct. Chetram and Ct. Mangat to the spot i.e. in front of PS Anand Vihar and got recovered a piece of brick upon which words "baat" were engraved having some blood stains on it from the spot and PW7 wrapped the same in a white colour cloth and then sealed with the seal of AV-01. PW7 seized the same vide seizure memo, Ex.PW2/B. PW7 recorded the supplementary statement of Ct. Chetram, statement of Ct. Mangat and Ct. Jai Narayan, who handed over PW7 copy of FIR and original rukka after registration of FIR, u/s 161 Cr.P.C.
22. PW7 had correctly identified one wearing T-shirt (green and yellow) on which words 'ARIZONA' were written, Ex.P1 which was worn by accused Sushil at the time of incident and one piece of brick (half brick) (without any blood stains) upon which words 'BAAT in Hindi are written', Ex.P2 which was used by accused Sushil and got recovered by accused Sushil. PW7 had correctly identified one blood stained shirt (khakhi colour and the same was torn from near the left side pocket and without 2 buttons), one white colour blood stained vest and one khakhi pant having some blood stains on it, Ex.P3 (colly) which was worn by Ct. Chetram and one judicial custody order of accused Sushil, dt. 19.08.2016 passed by Ld. SEM, Krishna Digitally signed by KUMAR KUMAR RAJAT Date:
RAJAT 2025.08.01
15:39:41
+0530
Nagar, Delhi, having some blood stained (in two pieces), Ex.P4. PW7 had brought attested copy of GD No. 6A (2 pages) dt. 19.08.2016, PS Anand Vihar, Ex.PW7/B. In the above said GD made by PW7, it has been mentioned that accused Sushil and Birju were arrested by him in the Kalandara for offence u/s 107/151 Cr.P.C. on 19.08.2016 at about 01:45 AM, who were quarrelling/ abusing each other in public place i.e. Gali No. 1, Arya Nagar, Anand Vihar, Delhi. After arrest of accused persons in the above said Kalandara, they were sent to the lock-up and in the afternoon i.e. at about 02:00 PM on 19.08.2016, PW7 directed Ct. Mangat and Ct. Chetram to produce both accused before the Court of Ld. SEM, Krishna Nagar, Delhi. Both accused persons were sent to 4 days JC i.e. till 23.08.2016 by Ld. SEM.
23. PW7 further deposed that after arrest of both accused in the present case, they were produced before the Hon'ble Court and sent to JC in the present case. PW7 submitted the MLC of injured Ct. Chetram in the hospital for collection of final opinion regarding nature of injuries. PW7 had correctly identified his handwriting starting from Sl. No. 6 (DD No. 6A) from point A to A1 having his name in column no. 2 as the person, who gave information, which mentioned at page no. 41, Book No. 10233, PS Anand Vihar, time 12:00 midnight to 12:00 midnight dt. 19.08.2016. copy of the said DD No. 6A, Ex.PW7/B(OSR) produced by HC Pradeep Kumar MHC(R), PS Anand Vihar. PW7 had correctly identified accused Birju and Sushil in the Court.
24. PW8 HC Udhay Bhan deposed that on 02.04.2024, he was posted as Head Constable at PS Jaitpur Delhi and on that Digitally signed by KUMAR KUMAR Date:
RAJAT RAJAT 2025.08.01 15:39:46 +0530 day, on receipt of secret information, PW8 reached near Dayanand Park, Karkardooma Village, Delhi where secret informer pointed out towards person and identified him as accused Sushil, who was declared PO in the present case by the Hon'ble Court. PW8 apprehended accused Sushil and he checked and matched his details from the record and after confirmation, PW8 arrested accused Sushil vide arrest memo, Ex.PW8/A, his personal search was also conducted vide personal search memo, Ex.PW8/B and PW8 gave information about his arrest to the duty officer of PS Anand Vihar and he was sent to the lock-up after his medical examination. Accused Sushil was also identified by HC Chetram through video call and PW8 prepared the Kalandara dt. 03.04.2024 on the DD No. 102A dt. 02.04.2024, Ex.PW8/C. Statement of PW8 was recorded u/s 161 Cr.P.C. by IO ASI Pramod Kumar.
25. PW9 HC Guddu Kumar deposed that the process of execution u/s 82 Cr.P.C. in respect of accused Sushil was marked to him. On 07.10.2023, PW9 went to aforesaid house where he met landlord Braham Prakash, S/o Lt. Sh. Budhram, who disclosed that he was the owner of above said house and residing along with his family since his childhood. Braham Prakash further stated that no person with the name of Sushil Kumar, S/o Vijay Pratap Singh had ever resided at the aforesaid house and he did not know about Sushil Kumar. Accused Sushil could not be found at the above said address. PW9 made public announcement with the help of beating drums, after the gathering of neighbours/nearby residents regarding accused Sushil. PW9 also KUMAR by KUMAR RAJAT RAJAT Date: 2025.08.01 15:39:53 +0530 pasted a copy of process u/s 82 Cr.P.C. on the outer wall adjoining to main gate of the above said house and took the photographs of the same. PW9 had correctly identified 3 photographs, Ex.PW9/A(colly) belonging to the aforesaid house. PW9 also recorded the statement of above said Braham Prakash, Ex.PW9/B and prepared his detailed report, Ex.C1 and submitted it before the Hon'ble Court along with above said statement and GD No. 34A dt. 07.10.2023 regarding his departure from the PS Anand Vihar, Ex.C2.
26. PW10 ASI Pramoad Kumar deposed that on 03.04.2024, he was posted as ASI at PS Anand Vihar and on that day, the further investigation qua accused Sushil, S/o Vijay Pratap for offence u/s 174A IPC was marked to him by SHO, PS Anand Vihar vide his endorsement, Ex.PW10/A on the order-sheet dt. 03.04.2024. PW10 collected the relevant documents regarding arrest of accused Sushil, DD No. 102A dt. 02.04.2024 PS Jaitpur, Ex.PW10/B, DD No. 81A dt. 02.04.2024 PS Jaitpur, Ex.PW10/C. PW10 recorded the statement of HC Uday Bhan, PS Jaitpur and HC Guddu Kumar, PS Anand Vihar u/s 161 Cr.P.C. and prepared the supplementary charge-sheet against accused Sushil qua section 174A IPC and submitted it before the Court.
27. PW11 Insp. Satyabir Singh deposed that on 26.11.2018, he was posted as SHO at PS Anand Vihar and on 19.08.2016, one FIR i.e. 394/2016 u/s 186/353/308/224/34 IPC was registered against accused Sushil and Birju. Both of them were being taken from KKD Courts to Tihar Jail in Kalandara for offence u/s 107/151 Cr.P.C. vide DD No. 6A dt. 19.08.2016. Ct.
Digitally
signed by
KUMAR KUMAR RAJAT
Date:
RAJAT 2025.08.01
15:39:57
+0530
Chetram and Ct. Mangat Ram were working under his control and supervision at PS Anand Vihar on 19.08.2016. On the request of IO/SI Ranbir Mavi, PS Anand Vihar, PW11 prepared the complaint dt. 26.11.2018 u/s 195 Cr.P.C. regarding the above said FIR against accused Sushil and Birju, Ex.PW6/A. STATEMENTS OF ACCUSED PERSONS u/s 313 Cr.P.C./351 BNSS
28. Statements of accused Birju and Sushil were recorded u/s 313 Cr.PC (351 BNSS) and they denied the incriminating evidence put to them and stated that all witnesses are interested witnesses and they were falsely implicated by the police officials in the present case without any fault on their part.
Accused Birju stated that at the time of incident, he was not present there as he already left the spot with Ct. Mangat in the other TSR.
Accused Sushil stated that at the time of incident, firstly he complained to the police at 100 number regarding his snatched mobile phone and Rs. 1,000/- by accused Birju and his associate Lucky. Both accused persons prayed for acquittal and claimed trial.
APPRECIATION OF EVIDENCE, ANALYSIS OF WITNESSES AND FINDING ARGUMENTS OF LD. LAC & LD. AMICUS CURIAE FOR ACCUSED PERSONS
29. Ld. counsels for the accused persons argued that they have been falsely implicated by the complainant and they have no KUMAR by KUMAR RAJAT RAJAT Date: 2025.08.01 15:40:02 +0530 role in the commission of crime and they had not caused any injury to the complainant and nothing has been recovered from their possession to connect them with the crime and the said brick, bloodstained cloths of complainant and the blood on the judicial order have been planted by the police and there is no FSL report in this regard. It is also submitted that there is no judicial order pertaining to involvement of accused in DD No. 6A u/s 107/151 Cr.P.C., PS Anand Vihar proved or brought on record by the prosecution and no statement of the concerned person at Karkardooma Court Lockup regarding departure of jail van was recorded by the IO. There is no CCTV footage of the alleged incident or of the production of accused persons in KKD Court Lockup or before SEM Court has been brought on record. It is submitted by Ld. Amicus for accused Birju that he had not gestured (ishara) to accused Sushil and it is not explained by the prosecution as to how he did 'ishara' and what he wanted to convey to the co-accused to do and the alleged brick used in the crime, having bloodstains was not sent to the FSL for opinion regarding the blood of complainant on the same and even bloodstained cloths of the complainant were not sent to the FSL. It is submitted that the alleged place of incident was a public place and no public person was examined and the injury opined to injured Chetram is simple in nature and it could not have caused his death and the injury was caused due to fall on surface by his own and no offence u/s 308 IPC is proved by the prosecution beyond reasonable doubt. The prosecution has not explained as to why the accused persons were not sent to JC KUMAR RAJAT RAJAT Date:
2025.08.01 15:40:06 +0530 despite order of SEM Court. Ld. Counsel for accused Sushil submitted that there is no MLC of accused Sushil proved, which could show that he was beaten by public at the spot and no charge u/s 174A IPC is proved against him as there was no proper compliance of Section 82 Cr.P.C. and there was no publication of proceedings in the newspapers and there was no videography or photography of the said proceedings at the house of accused and he was not aware of such proceedings and the photographs pasted on the house of accused have not been proved in accordance with law as no certificate u/s 65B IEA was proved by PW9.
It is submitted by Ld. Amicus for accused Birju that PW2 admitted that there was no role of accused Birju in causing injuries and both accused persons had not obstructed or caused any hindrance in the official duty of police official.
ARGUMENTS OF LD. ADDL. PP FOR THE STATE
30. Ld. Addl. PP for State argued that the prosecution has proved its case against the accused persons beyond reasonable doubt as accused persons have been correctly identified by the PW2 and PW3, who are the eye-witnesses and injured. PW2 sustained injuries, which were caused by accused with brick, which is deadly weapon and also he was bitten by accused Sushil at the instance of co-accused Birju and the said brick was hit on the head of PW2, which caused injuries on his head, which is vital part of the body and it could have caused his death and brick was recovered and correctly identified by PW2 and PW3. The judicial order was torn having the bloodstains of PW2 and even the bloodstained cloths of PW2 were correctly identified by him.
KUMAR RAJAT
RAJAT Date:
2025.08.01
15:40:11 +0530
Nothing has come in the cross-examination of PW2 and PW3 and it is proved that accused persons had intentionally caused injury to the PW2 in furtherance of their common intention and deterred them from discharging their official duties and also caused hurt to him by accused Sushil by biting him on his hand. The complainant/injured and other witnesses are consistent in their statements and testimonies, which is corroborated by medical evidence.
31. It is also submitted that conviction can be based on the testimony of sole public witness, if it is reliable and trustworthy and the evidence of PW2 and PW3 are credible and they have correctly identified the accused Sushil and Birju, who had caused injuries to the complainant with the said weapon and proceedings u/s 82 Cr.P.C. were duly proved by PW9 and PW10 and the Court has declared accused Sushil as PO after recording the statement of PW9 and he proved his report, Ex.C1 and that there was beating of drum outside his house and photographs of proceedings u/s 82 Cr.P.C. were pasted at the house of the accused. PW6 and PW11 proved the complaint u/s 195 Cr.P.C., Ex.PW6/A.
32. I have heard the rival contentions and perused the records.
33. The charge against the accused persons are u/s 308/186/353/324/34 IPC and 224 IPC.
Section 186 IPC. Obstructing public servant in discharge of public functions.- Whoever voluntarily obstructs any public servant in the discharge of his public KUMAR RAJAT RAJAT Date:
2025.08.01 15:40:15 +0530 functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
Section 224 IPC. Resistance or obstruction by a person to his lawful apprehension.- Whoever intentionally offers any resistance or illegal obstruction to the lawful apprehension of himself for any offence with which he is charged or of which he has been convicted, or escapes or attempts to escape from any custody in which he is lawfully detained for any such offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Section 308 IPC. Attempt to commit culpable homicide- "Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
Section 324 IPC. Voluntarily causing hurt by dangerous weapons or means.- "Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any KUMAR RAJAT RAJAT 2025.08.01 15:40:20 +0530 substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
Section 353 IPC. Assault or criminal force to deter public servant from discharge of his duty.- Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Section 34 IPC. Acts done by several persons in furtherance of common intention:- When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
34. The material witnesses of the prosecution are PW2 and PW3, who are also eye witnesses.
35. The present FIR was registered on the complaint of complainant Chetram, who alleged that on 19.08.2016, he and Ct. Mangat had gone to deposit accused Sushil and Birju to KKD Court Lockup at 2 PM in DD No. 6A dated 19.08.2016 u/s 107/151 Cr.P.C. after their production in the SEM Court, which had directed to lodge them in judicial custody till 23.08.2016, but the bus had already left the KKD Court Lockup. Then, they both were waiting for TSR outside PS Anand Vihar to go to lodge KUMAR Digitally signed by KUMAR RAJAT RAJAT 15:40:24 +0530 Date: 2025.08.01 them in Tihar Jail. In the meanwhile, accused Birju gestured towards accused Sushil, who immediately had bitten in the left hand of complainant and tried to run away after releasing his hand and hit him on his head with one stone lying nearby due to which complainant started bleeding from head and both the accused persons tried to flee and in the scuffle, the order of their JC got torn and the public persons gathered there and caught them and beaten accused Sushil and handed over them to complainant and both him and other constable took accused persons to PS.
36. Complainant Chetram was examined as PW2, who deposed that on 19.08.2016, he along with Ct. Mangat had gone to lock up of KKD Courts to deposit accused Sushil and Birju after their production in SEM Court, Krishna Nagar, Delhi in DD No. 6A dated 19.08.2016 u/s 107/151 Cr.P.C. and when they found that last van/bus had left, they had to take them to Tihar jail in auto and they were waiting for an auto in front of PS Anand Vihar, then accused Birju gave indication (ishra) to accused Sushil, who had bitten on his left hand and tried to run away and also hit brick on the head of PW2, which led to bleeding and both the accused tried to escape and this version is corroborated by PW3 in his examination in chief.
37. The injury sustained by PW2 was simple one on his head and no injury was caused to PW3 Mangat. It is the argument of counsels for accused persons that it is not explained as to how indication (ishara) was done by accused Birju to Sushil and neither PW2 nor PW3 has explained the same, but the said KUMAR RAJAT RAJAT Date:
2025.08.01 15:40:28 +0530 contention is not tenable as no suggestion is given by accused Sushil in cross-examination of PW2 that no 'ishara' was done by accused Birju to Sushil and in his cross-examination by accused Birju, PW2 reiterated that accused Birju gave indication to co- accused Sushil to escape and PW3 in his cross-examination by accused Birju stated that accused Birju had gestured by nodding his head and denied the suggestion that he had not seen Birju making gesture to accused Sushil.
38. The judicial order was identified by PW2 as Ex.P4, which was seized vide seizure memo, Ex.PW2/L and it was of 19.08.2016 pertaining to accused Sushil, who was remanded to JC for 4 days by the SEM concerned on that day, which is corroborated by PW3 and its seizure is also proved and corroborated by PW7/IO. It was a serious lapse in investigation by the IO that he did not collect the said judicial order pertaining to co-accused Birju, but the said Ex.P4 proves that accused Sushil was produced before concerned SEM on 19.08.2016 and he was sent to JC at Tihar Jail, which is also mentioned therein that he was remanded to judicial custody and in the cross-examination, no suggestion is given on behalf of accused Birju to PW2 that he was not produced before SEM Court on 19.08.2016 and he was not remanded to JC from the order of concerned SEM. Thus, there is no objection from accused Birju that he was not produced in the court of SEM concerned and was not remanded to 4 days PC, rather one suggestion was given that accused Birju was in custody of Ct. Mangat Ram during the proceedings at SEM concerned, which was admitted by PW2, which further KUMAR Digitally signed by KUMAR RAJAT RAJAT 15:40:32 +0530 Date: 2025.08.01 strengthened the version of PW2 that accused was brought to the spot from said SEM concerned by Ct. Mangat Ram and such suggestion given in cross binds the accused.
39. In Balu Sudam Khalde & Anr. Vs. State of Maharashtra 2023 Live Law SC 279 Hon'ble Supreme Court held that 'suggestions made to the witness by the defence counsel and reply to the same would definitely form part of the evidence and can be relied upon by the court along with other evidence on record to determine the guilt of the accused and if such suggestions, the answer to those incriminate the accused in any manner, then the same would be binding and could be taken into consideration along with other evidence on record in support of the same'.
40. In his cross-examination, PW2 reiterated that he was standing in the Court of SEM, Krishna Nagar at the time of passing the said order and accused Sushil was standing beside him and he had gone there on the instructions of IO and did not make any departure entry as it was not required and went to said Court in police vehicle and he was accompanied by accused Sushil, Ct. Mangat, accused Birju and the driver of the vehicle and he had taken the police file with them. This version of PW2 in his cross-examination is corroborated by PW3 in his cross- examination as similar questions were asked and PW3 volunteered that last jail van departs from KKD Court Complex at 4.45 PM, but it is of only accused of old cases, who are in JC, but Van of others left at 4 PM. PW2 admitted that no entry was made in the lockup of KKD Court is not fatal to the case as entry would have been required, had the accused persons been submitted in the lockup. Mere not marking of attendance of PW2 or PW3 in the judicial order does not affect the credibility of KUMAR Digitally signed by KUMAR RAJAT RAJAT 15:40:37 +0530 Date: 2025.08.01 order. PW4 proved the order of DCP East dated 20.06.2024, Ex.PW4/A regarding weeding out of record pertaining to Kalandara u/s 107/151 Cr.P.C. from 01.01.2014 to 31.12.2016 and the same is not disputed by any of the accused persons.
41. PW2 in his cross stated that they had taken the accused persons to PS Anand Vihar after they were refused the entry of accused persons at KKD Court Complex lockup at about 4.15 PM, which is corroborated by PW3 and there is nothing to disbelieve that accused persons were not taken to lockup or that police officials there refused entry and that is why they were trying to take them through auto to be picked from outside PS Anand Vihar as no police official would like to take the accused to Tihar Jail, which is far off place from the KKD Court Complex and it would have been easier and convenient for them, if accused would have been sent to JC at Tihar Jail in Jail Van/Bus.
42. PW2 has also deposed that his wearing uniform was torn by the accused persons during scuffle with them and he had correctly identified the same torn uniform i.e. bloodstained khakee shirt, which was torn from left side pocket, white colour bloodstained blood and khakee pant having bloodstains, which were seized vide memo, Ex.PW2/J, which is corroborated by PW3 and they correctly identified the said cloths as Ex.P3, which proves that accused persons had scuffled with PW2 and torn his wearing uniform. PW7 also corroborated the seizure of said uniform
43. PW2 has also deposed that accused Sushil had bitten on his hand and also hit him with brick on his head, which led to KUMAR Digitally signed by KUMAR RAJAT RAJAT Date: 2025.08.01 15:40:42 +0530 bleeding, which is corroborated by PW3 and when coupled with the said torn and bloodstained cloths/uniform and the bloodstained torn judicial order dated 19.08.2016 and the brick used by accused Sushil, which are correctly identified by PW2 and PW3 as Ex.P2, shows that accused Sushil and Birju (who had gestured towards accused Sushil) had used criminal force and voluntary obstructed PW2 Chetram and PW3 Mangat Singh in discharge of their public duty when thet were trying to take accused Sushil and Birju to Tihar Jail and also prevented them from discharging their duties. The versions of PW2 and PW3 are corroborated by MLC of PW2, Ex.PW5/A. PW2 and PW3 have also correctly identified the cloths of accused Sushil, worn by him at the time of incident, Ex.P1, which were seized vide memo, Ex.PW2/K.
44. Ld. Counsels for accused Sushil and Birju have objected that during seizure there were bloodstains, but at the time of exhibition of brick, there were no bloodstains. In seizure memo, Ex.PW2/B dated 19.08.2016, the said brick was seized having bloodstains with words "BAAT" written on it in Hindi and the said brick was recovered at the instance of accused Sushil, which had some splatter of blood meaning thereby that the bloodstains were not strong on it and the brick, which were exhibited in court also had words "BAAT" in Hindi written on it and it may be possible that during the course of more than 9 years, those minute splattered blood faded, which is not visible with naked eye. The said brick, Ex.P2 was correctly identified by PW2 as well as PW3, before whom said brick was seized and it KUMAR RAJAT RAJAT Date:
2025.08.01 15:40:46 +0530 was corroborated by PW 7 SI Vineet Pratap, who seized the same and also correctly identified it in Court and in his cross- examination PW7 reiterated that brick was seized by him, but there was no public witness to the same, but victim/complainant PW2 was witness to the same and it does not matter if he was policeman and no suggestion is given to PW7 that he had not seized any brick by either of the accused and even there is no suggestion in the cross of PW2 that no brick was seized in his presence with words "BAAT" written on it and that brick was not used by accused Sushil, rather PW2 reiterated in his cross that accused Sushil had hit him with brick when he tried to escape from custody. The version of PW2 is also corroborated by PW3, who was also en eye-witness and he has also correctly identified the said brick, Ex.PW2 and seizure memo, Ex.PW2/B and in his cross-examination, no suggestion is given that no such brick was seized in his presence and it was not used by accused Sushil to cause the injury to the complainant. PW2 deposed that said brick was got recovered by accused Sushil, which was seized by IO, Ex.PW2B, which is corroborated by PW3 and PW7.
45. In Appabhai Another Vs. State of Gujarat, AIR 1988 SC 696, Hon'ble Supreme Court held that mere non-joining of independent public witness, where the evidence of prosecution witnesses may be found to be cogent, convincing, credit-worthy and reliable, can't cast a doubt on the version forwarded by the prosecution, if there seems to be no reason on record to falsely implicate the accused and thus it is no ground to throw the prosecution case.
So, non-joining of independent public persons as witnesses will not affect the prosecution case.
KUMAR by KUMAR RAJAT RAJAT 15:40:50 Date: 2025.08.01 +0530
46. Thus, said objection of Ld. LAC is not tenable and seizure and usage of brick by accused Sushil, is proved by the prosecution. PW2 and PW3 have correctly identified the accused persons and PW2 proved the arrest of accused Sushil and Birju vide arrest memos dated 19.08.2016, Ex.PW2/D and Ex.PW2/E, which is also corroborated by PW7.
47. PW2 and PW3 denied that no such incident had occurred and that PW2 Ct. Chetram got injury as he got disbalanced while walking and fell on the road due to which he received injury, but it is not explained as to how accused got to know about it.
MEDICAL EVIDENCE
48. PW5 Dr. S D Bisht deposed on behalf of Dr. Umang, Dr. Yanshul Rathi and Dr. Shalini Gupta, who had left the Dr. Hedgewar Arogya Sansthan, Delhi and he proved the MLC dated 19.08.2016 of PW2 Chetram, Ex.PW5/A and correctly identified the handwriting and signature of said doctors on the same and the objection of Ld. Counsels for accused persons that MLC cannot be exhibited holds no ground as PW5 had worked with said doctors and acquainted with their handwriting and signature. The nature of injury opined by Dr. Yanshul therein is simple in nature and there is a mention of white mark at the hand and there is a lacerated wound at tempo-parietal region of size 2x.5 cm. PW7 collected the said MLC.
Thus, the medical evidence has also corroborated the versions of PW2 and PW3 that PW2 suffered injury at head and bitten at hand by accused Sushil.
KUMAR by KUMAR RAJAT RAJAT Date: 2025.08.01
49. PW11 Inspector Satyaveer Singh proved the complaint u/s 195 Cr.P.C. dated 26.11.2018, Ex.PW6/A regarding FIR against accused persons, which is mandatory, if complaint is given by a public servant and the same is not disputed by the accused persons and the said complaint is corroborated by PW6 Inspector Ranvir Mavi, who collected the same. In the said complaint, the entire episode as deposed by PW2 and PW3 have been mentioned that accused Birju and Sushil were being taken to Tihar Jail and PW2 and PW3 were waiting for TSR and accused Sushil, who was in custody of PW2, had bitten on his hand and also hit him with stone on his head resulting in bleeding and thus, PW6 and PW11 have corroborated the versions of PW2 and PW3 and PW6 and PW11 have not been cross-examined by the accused persons qua contents of said Ex.PW6/A.
50. PW7 proved the rukka, Ex.PW7/A and site plan, Ex.PW2/C prepared by him at the instance of PW2 Ct. Chetram, who had corroborated the same as per which, the spot is correctly shown. PW7 also proved the arrest of accused Sushil and Birju, Ex.PW2/D and Ex.PW2/E, which are corroborated by PW2. PW7 also proved the disclosure statements of accused Sushil and Birju, Ex.PW2/H and Ex.PW2/I, which are corroborated by PW2 and on the basis of it, accused Sushil took PW7, PW2 and PW3 to the spot in front of PS Anand Vihar and got recovered piece of brick with words "BAAT" engraved on it having some bloodstains and the said fact is further corroborated by PW2 and PW3 and they also proved its seizure, Ex.PW2/B. PW7 also correctly identified the cloths worn by accused Sushil, Ex.P1, said brick, Ex.P2 and KUMAR RAJAT RAJAT Date:
2025.08.01 15:41:01 +0530 the torn uniform and other cloths of PW2, seized by PW7, Ex.P3 and the torn judicial order, Ex.P4, which are also correctly identified by PW2 and PW3 and thus, prosecution proved the seizure of said articles. PW7 in his cross-examination also reiterated the said seizure of uniform of PW2.
51. PW7 also proved GD No. 6A dated 19.08.2016, PS Anand Vihar, Ex.PW7/B as he had made the said entry wherein it is mentioned that accused Sushil and Birju were arrested by him in Kalandara u/s 107/151 Cr.P.C. on 19.08.2016 as they were quarreling/abusing each other in public place and on 19.08.2016, he directed PW2 and PW3 to produce them before Ld. SEM, Krishna Nagar, Delhi about 2 PM and they were remanded to JC from said Court till 23.08.2016.
52. In his cross-examination PW7 stated that GD Entry Register is preserved for 10 years and denied that said GD entry was false and fabricated, but since the original register was not produced pertaining to said GD during his cross, but later prosecution with the permission of court brought the original register i.e. Rojnamcha A for period from 10.08.2019 to 02.09.2016, which was correctly identified by PW7 in his own handwriting as Sl. No. 6 in said Ex.PW7/B from Point A to A1 and thus, prosecution proved the same and nothing much has come in the cross-examination of PW7 to doubt his veracity as witness.
53. In order to constitute an offence u/s 308 IPC, it is to be proved that the said act was committed by the accused with the intention or knowledge to commit culpable homicide not KUMAR by KUMAR RAJAT RAJAT Date: 2025.08.01 15:41:06 +0530 amounting to murder and that the offence was committed under such circumstances that if the accused, by that act, had caused death, he would have been guilty of culpable homicide. The intention or knowledge on the part of the accused, is to be deducted from the circumstances in which the injuries had been caused as also the nature of injuries and the portion of the body where such injuries were suffered.
54. From the MLCs of PW2, Ex.PW5/A, the nature of injury is simple in nature. There was only single injury sustained by PW2, which itself is an indication that there was no intention or knowledge present while causing injury to kill PW2.
55. The brick used in the crime has been recovered, and it along with the bloodstained cloths of PW2 are corroborative evidence that injury was caused to PW2 with brick voluntarily by accused Sushil.
56. In Ved Kumari and Anr. Vs. State & Anr, 96 (2002) DLT 820, it has been held that in order to constitute offence u/s 308 IPC, it must be proved:-
i) That the accused had committed an act,
ii) That the said act was committed with the intention or knowledge to commit culpable homicide not amounting to murder and,
iii) That the offence was committed under such circumstances, the accused by that act had caused death, he would have been guilty of culpable homicide.
57. The intention has to be gathered from the acts committed by the accused and the awareness of the consequences as it is a question of facts. Similar view has been taken in Sunder KUMAR Digitally signed by KUMAR RAJAT Date: 2025.08.01 Vs. State, Manu/DE/0331/2010 and the conviction from section 308 IPC was altered to section 323 IPC.
58. In Raju @ Rajpal and Ors. Vs. State of Delhi, 2014 (3) JCC 1894, Hon'ble Delhi High Court altered the conviction from section 308 IPC to section 323 IPC by holding that nature of injuries were simple and they were not caused with the avowed object or knowledge to cause death. Similarly, in Ashok Kumar & Anr. Vs. State of Delhi in Criminal Appeal No. 17/2011 dt. 20.02.2015, the conviction was altered from section 308 IPC to section 323 IPC considering the simple injuries as opined by the doctor.
59. Recently, in State Vs. Kamlesh Bahadur in Criminal LP No. 515/2019 decided on 12.09.2023, The Hon'ble High Court considered the injuries in the MLC of the complainant i.e.
(i) CLW 8x2x.5 cms over central parieto occipital region.
(ii) Swelling and tenderness right forearm and wrist.
(iii) Abrasion 1x1 cm over right wrist.
The Hon'ble High Court held that the Trial court convicted the appellant u/s 308 IPC as he hit complainant with sariya and again given a blow with a wooden leg of cot on the vital part of the body i.e. head, but there was no premeditation and incident took place on the spur of the moment and injuries were simple in nature and convicted the accused u/s 323 IPC and not u/s 308 IPC.
60. In this case, no previous enmity or dispute between the accused and the complainant could be proved and there was no premeditation and incident took place on the spur of the moment when Sushil had bitten on the hand of PW2 and also hit KUMAR by KUMAR RAJAT RAJAT Date: 2025.08.01 15:41:15 +0530 on his head with a piece of brick. The injury was not caused with the avowed object or knowledge to cause the death of PW2 as it was caused only by piece of brick.
61. The nature of injuries in the present case is single injury of lacerated wound 2x.05 cm caused to PW2 on the head area by piece of brick and in the case of Kamlesh Bahadur (supra), the nature of injury was a bit wide and still accused was not convicted u/s 308 IPC. It is doubtful from the case of prosecution that PW2 was hit with brick by accused Sushil with intention or knowledge that by that act, he would commit culpable homicide as the nature of injury is simple in nature which could never have caused death/culpable homicide of the injured.
62. In this case, the accused Birju is charged with the aid of Section 34 that he gestured co-accused Sushil, then accused Sushil caused injury to PW2, but it is mentioned by PW3 in his cross that it was by nodding of head and it is not stated by any witness that accused Birju pointed out towards brick while making gesture to accused Sushil and thus, it cannot be proved that accused Birju had acted in furtherance of common intention to cause injury to PW2 by brick on his head and it was the individual act of accused Sushil, but the gesture of accused Birju shows that he along with co-accused Sushil wanted to escape from the lawful custody of PW2 and PW3 and in pursuance of the same, accused Sushil had bitten on the hand of PW2. In his cross, PW2 admitted that no injury was caused by accused Birju to him.
KUMAR by KUMAR RAJAT RAJAT 15:41:20 Date: 2025.08.01 +0530 Section 222 Cr.P.C. When offence proved included in offence charged.
"(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it."
63. Since accused Sushil was involved in causing injury on the head of PW2 by piece of brick, which is a weapon, which could have caused the death if hit with extreme power and depending upon the physical make of a person, but in this case since there is only one single injury and as discussed above, there was no intention or knowledge to cause death of PW2 and thus, the accused Sushil cannot be held liable for the offence u/s 308 IPC and rather, he may be convicted u/s 324 IPC, which is a minor offence in view of Section 222 Cr.P.C. though he was not charged in this Section as prosecution has proved the case u/s 324 IPC beyond reasonable doubt against accused Sushil.
64. In Shakeel Ahmed Vs. State of Delhi (2004) 10 SCC 103, Hon'ble Supreme Court held that human teeth cannot be considered as deadly weapon as per the description of deadly weapon enumerated u/s 326 IPC.
65. In Tanaji Shivaji Solankar & Ors. Vs. State of Maharashtra & Anr. 2025 Live (Bom) 143, Hon'ble Bombay KUMAR RAJAT RAJAT Date:
2025.08.01 15:41:25 +0530 High Court considered another case on similar factual matrix, wherein the court considered that the medical reports are not sufficient to showcase the dimensions of the injury, moreover human 'teeth' cannot be considered to be a dangerous weapon for the purpose of Section 324 IPC.
66. Both the accused are also charged u/s 324/34 IPC as accused Sushil had bitten on the hand of PW2 by teeth, but since teeth cannot be treated as a weapon, which could have caused death in normal circumstances to treat it as dangerous weapon, though accused Sushil had acted on the gesture of accused Birju and thus, both acted in furtherance of their common intention and thus, the offence u/s 323/34 IPC is proved against them as there is only a simple injury.
67. Since both the accused tried to escape from the custody of PW2 and PW3, which have been proved by the acts of the accused and the unrebutted testimonies of PW2 and PW3 and thus, the prosecution proved the charge of Section 224 IPC against both accused Birju and Sushil. Both PW2 and PW3 were the public servants at the time of offence as defined u/s 21 of IPC as they were police officials working under the government and being covered under clause VIII and XII of Section 21 IPC and both these accused persons had obstructed them voluntarily in discharge of their public functions, which is apparent from the testimonies of PW2, PW3 and other witnesses discussed above and thus, prosecution proved the charge against both u/s 186/34 IPC.
KUMAR by KUMAR RAJAT RAJAT Date: 2025.08.01 15:41:30 +0530
68. Accused Sushil had bitten on the hand of PW2 after the gesture was made by accused Birju and then, both tried to escape from the lawful custody of PW2 and PW3 and thus, they acted in furtherance of common intention and assaulted and used criminal force to deter PW2 and PW3 to discharge their duty as public servant and as such the prosecution proved the charge u/s 353/34 IPC against both of them.
69. Another charge against the accused Birju is u/s 174-A IPC that he had absconded and was declared proclaimed offender on 13.12.2023 by the Ld. Predecessor after process u/s 82 Cr.P.C. was issued against him as he failed to appear.
Section 174A IPC reads as under:
Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub- section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.
70. The crux of Section 174A IPC is that proclamation u/s 82 Cr.P.C. has to be executed in terms of the procedure as mentioned in 82 Cr.P.C. and if the accused does not appear at a specified date and time mentioned in the proclamation, then he is liable under this Section. Before proceeding further, I would like to advert to Section 82 Cr.P.C., which reads as under:
KUMAR by KUMAR RAJAT RAJAT Date: 2025.08.01 15:41:35 +0530 "82. Proclamation for person absconding -
(1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.
(2) The proclamation shall be published as follows :-
(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
(c) a copy thereof shall be affixed to some conspicuous part of the Court House;
(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides. (3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day. (4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under Sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, Digitally signed by KUMAR KUMAR Date:
RAJAT RAJAT 2025.08.01 15:41:40 +0530 pronounce him a proclaimed offender and make a declaration to that effect.
(5) The provisions of sub-section (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1).
71. As per Section 82 (2) Cr.P.C., the said proclamation u/s 82 Cr.P.C. shall be affixed on the conspicuous place of town, village or home, where such person ordinarily reside and shall be publically read in conspicuous part of such town or village and shall also be affixed on conspicuous part of Court House and Court may also direct the same to be published in daily newspapers. This shows that all the sub-clauses of 82 (2) Cr.P.C. are mandatory in nature except the last one, which is the discretion of the Court as in the last sub-clause, the word ' may' has been used and in the previous clauses, the word ' shall' has been used.
72. In case titled as "Rajesh Ebrahimkutty Majidhabeevi Vs. State (Govt. of NCT of Delhi) & Anr., in Crl. M.C. 2514/2020 decided on 07.10.2021, Hon'ble Delhi High Court had relied upon the Judgment of G.Sagar Suri Vs. State & Anr., 2003 SCC Online Del, 759, where the importance of recording reasons by the Magistrate before issuing written proclamation has been noted, besides highlighting that the process illustrated in Section 82 Cr.P.C. may first be exhausted before directing attachment of property of the person absconding :
"13. It is manifest from the provisions of Section 82 Cr.P.C. that before publishing the written proclamation requiring the accused to appear under the provisions of Section 82 Cr.P.C., KUMAR RAJAT RAJAT Date:
2025.08.01 15:41:45 +0530 the Court has to record the reasons either after taking evidence or without evidence that a person against whom warrants have been issued has absconded or is concealing himself so that such warrants cannot be executed. The procedure for publication of the proclamation is laid down in sub-section (2) of Section 82. Sub-section (1) provides that the Court shall wait for thirty days after publication of the proclamation for appearance of the accused and it is only after processes under Section 82 Cr.P.C. are exhausted that the next step under Section 83 is to be taken by the Court ".
and held that the provisions of 82(1) and (2) Cr.P.C. should be construed strictly.
73. As per 82(3) Cr.P.C., the Court issuing proclamation should make a statement in writing to the effect that the proclamation was duly published on a specified day as per Section 82(2)(i) Cr.P.C.
74. PW9 HC Guddu Kumar deposed that execution of process u/s 82 Cr.P.C. against Sushil was marked to him and on 07.10.2023, he went to the house of said accused at H.No. 82, Gali No. 2, Arya Nagar, Delhi and met landlord Braham Prakash, who stated that accused Sushil had never resided there and he did not know him and accused was not found there and he made public announcement with the help of beating drums after gathering the neighbours and nearby residents and pasted copy of process u/s 82 Cr.P.C. on the outer wall of the main gate of said house. The statement of said Braham Prakash is Ex.PW9/B. The prosecution has not examined said Braham Prakash to prove the veracity of the report of HC Guddu Kumar, Ex.C1 in this regard. PW2 has brought 3 photographs, Ex.PW9/A, which were the Digitally signed by KUMAR KUMAR Date:
RAJAT RAJAT 2025.08.01 15:41:49 +0530 photocopy and objected to by Ld. Defence Counsel and the said photographs were not accompanied with any certificate u/s 65 Indian Evidence Act nor any negatives were proved by the prosecution nor PW9 stated as to how he took those photographs and as such the prosecution failed to prove these photographs as per the settled law.
75. PW9 in his cross-examination admitted that he himself had beaten the drum after taking it from nearby Jhuggi, but no such person has been examined. There is no photography or videography of the said beating of drum nor any independent witness has been examined though it was a residential area. PW9 has not deposed if he had also pasted the said proclamation outside the Court.
76. The prosecution has not examined any witness to prove the NBW against the accused nor the order of Court declaring accused Sushil as PO could be exhibited, but this Court can take judicial notice of the same, but the proclamation has also not been exhibited.
77. PW9 has not deposed that proclamation u/s 82 Cr.P.C.
was read publically in some conspicuous place of the town or village, where the accused Sushil used to reside ordinarily and even he has not deposed that he had affixed the same on the conspicuous part of the Court House.
78. Since the provisions of 82(2) Cr.P.C. have not been complied by the PW9, which is the mandatory requirement for completion of proceedings u/s 82 Cr.P.C., and the photographs produced regarding affixation have not been proved as per law KUMAR RAJAT RAJAT Date:
2025.08.01 15:41:54 +0530 and in view of Rajesh (supra), the Prosecution could not prove the charge of Section 174A IPC against accused Sushil.
79. PW8 proved the arrest of accused Sushil vide arrest memo, Ex.PW8/A after he was declared PO and he prepared the Kalandara vide DD no. 102A dated 02.04.2024, Ex.PW8/C and PW10 proved the collection of said documents and filing of charge-sheet u/s 174A against accused Sushil, so these witnesses are not of much help to prosecution.
DEFENCE OF THE ACCUSED PERSONS
80. In their statements, u/s 313 Cr.PC (351 BNSS), accused Sushil and Birju had denied the incriminating evidence put to them and stated that all witnesses are interested witnesses and they were falsely implicated by the police officials in the present case without any fault on their part.
81. Accused Birju stated that at the time of incident, he was not present there as he already left the spot with Ct. Mangat in the other TSR, but he has not examined any witness in this regard nor it was admitted by any witness, so this defence appears to be an afterthought. Accused Birju had also taken defence that he had not caused any injury and it was admitted by PW2 and PW3 and thus, it is established that no injury was caused by accused Birju, but he had gestured accused Sushil to escape and in consequence of same, accused Sushil had bitten PW2 and both had obstructed PW2 and PW3 in their official duties in furtherance of common intention.
82. The accused persons had also taken defence that they were not taken to Tihar Jail and no injury was caused to PW2, KUMAR RAJAT RAJAT Date:
2025.08.01 15:41:58 +0530 rather he fell on his own and got injury, which are contrary defences and nowhere proved or admitted by any witness nor these defences have any basis and thus, are not tenable. PW2 and PW3 proved their presence at the spot at the time of offence and non examination of any independent witness is not fatal to the case of prosecution as PW2 himself is a victim/injured.
83. There is no proper explanation of false implication of accused persons given by them in their statements u/s 313 Cr.PC and that their defence that police had implicated them in false case is neither probable nor plausible in the absence of specific evidence as their presence at the scene of crime and quarrel and causing injury to PW2 is proved by the prosecution.
CONCLUSION
84. In the totality of the circumstances brought on record by way of evidence, it is observed that the prosecution has failed to prove its case, beyond reasonable doubt against the accused Sushil and Birju u/s 308/34 IPC, but proved the offence against accused Sushil u/s 324 IPC beyond reasonable doubt qua causing injury to PW2 by brick and also proved against accused Sushil and Birju u/s 224 IPC and 186/353/323/34 IPC.
85. Consequently, accused Sushil and Birju are convicted u/s 224 IPC and 186/353/323/34 IPC. Accused Sushil is also convicted u/s 324 IPC.
Accused Birju and Sushil are acquitted of the offence u/s 308/34 IPC.
Accused Sushil is acquitted of the offence u/s 174A IPC.
KUMAR by KUMAR RAJAT RAJAT 2025.08.01 Date:
15:42:06 +0530 Bail bonds cancelled. Surety stands discharged. The accused persons shall be heard separately on sentence. KUMAR by KUMAR RAJAT RAJAT Date: 2025.08.01 15:42:12 +0530 PRONOUNCED IN OPEN COURT (KUMAR RAJAT) ON THIS DAY 1 OF AUGUST 2025 ASJ-07, Shahdara, KKD st Courts, Delhi/01.08.2025
No comments:
Post a Comment