Delhi District Court
State vs Aashu on 20 December, 2024
IN THE COURT OF SH. VINEET KUMAR:
ADDITIONAL SESSIONS JUDGE; E COURT: SHAHDARA:
KARKARDOOMA COURT: DELHI.
SESSIONS CASE No. 09/2017
FIR No. 778/2016
U/S: 307/34 IPC
& S. 25/27 Arms Act.
P.S: Nand Nagri
State Versus 1. Aashu
S/o Sh. Ram Kishan
R/o C-295, Main Road,
Telephone Exchange,
Saheed Nagar, Ghaziabad, UP.
2. Arjun Vedi
S/o Late Sh. Raj Singh
R/o H. No. 329, Dr. Ambedkar
Basti, Ghonda, Delhi.
Date of Committal to Sessions Court : 26.12.2016
Date on which Judgment reserved : 30.09.2024
Date of pronouncement of judgment : 20.12.2024
Accused Aashu represented : Ld. Counsel Mr. A.K. Dubey
by
Accused Arjun Vedi represented : Ld. Counsel Mr. V.K. Rana
by
State represented by : Addl. PP Mr. Parmod Kumar
Digitally signed
by VINEET
VINEET KUMAR
Date:
KUMAR 2024.12.20
16:14:49
+0530
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FIR No. 778/16 State vs. Ashu Etc Page No.1/56
JUDGMENT
SUMMARY OF FACTS
1. Briefly, the case of prosecution is that on 03.09.2016
upon receiving DD no.112-B, SI Dinesh Kumar along with Ct.
Pardeep reached E-2 Block Chowk, Nand Nagri, Delhi, where they
found one chopper, one knife/Chhura, one pair of slippers and
blood lying on the spot and they also came to know that injured
had been taken to GTB Hospital. Thereupon, SI Dinesh Kumar left
Ct. Pardeep at the spot for its preservation and went to GTB
Hospital and collected the MLC of injured Mahesh Gupta and
recorded his statement. The gist of statement is that complainant
along with his family is residing at E-3/387, Nand Nagri, Delhi and
runs the shop of water and namkeen at E-Block Theka; that earlier
complainant along with Neetu and Subhash used to run Delhi
Chicken Point where Arjun used to visit and Ashu i.e. cousin of
Subhash also used to work there; that complainant had lent an
amount of Rs.3/4 lacs to Subhash and Arjun; that complainant had
asked his money back from Subhash, who had assured him to
return his money upon coming to his shop; that on 03.09.2016 at
about 9:30 pm, when Subhash, Arjun and Ashu were coming to E-2
Block from the side of shop of complainant, he called all of them
and asked kitne paise lekar aaye ho, then Subhash abused him and
said aaj tera hisab chukta kar dete hain; that Ashu caught hold of
complainant and Subhash took out one Chopper from the back side
of his pant and attacked him; that Arjun attacked the complainant
with knife/ chhura and complainant tried to escape from his hands;
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VINEET by VINEET KUMAR
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that Subhash gave multiple blows on the head of complainant with
chopper, due to which blood started oozing out and he fell down
and all of them fled away from there; that while fleeing from the
spot, Subhash and Arjun left the chopper and knife/chhura
respectively at the spot. Consequently, FIR was registered and
accused persons i.e. Aashu, Subhash Chand and Arjun Vedi were
arrested on 04.09.2016 at 4 pm, 09.09.2016 at 6:30 am and
24.09.2016 at 4:50 pm respectively. After completion of
investigation, charge-sheet was filed by IO before the court.
2. After cognizance was taken and compliance of section
207 Cr.P.C. was done, this case was committed to Sessions Court.
Charge was framed under Section 307/34 IPC r/w S. 25/27 Arms
Act against the accused persons, to which they pleaded not guilty
and claimed trial.
PROSECUTION EVIDENCE
3. In order to substantiate the charges, evidence was led
by prosecution during the course of which, 20 witnesses were
examined. Brief summary of the deposition of prosecution
witnesses is as under:
4. PW-1 Mahesh Gupta, who is the complainant, has
deposed that on 03.09.2016, upon receiving missed call from
accused Subhash, he called accused Subhash back, who told the
complainant to reach at the said Chicken Point to take money from
him, but he refused and told him that he would take money on next
day; that thereafter, he received phone from Neetu, who told him
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FIR No. 778/16 State vs. Ashu Etc
VINEET KUMAR
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KUMAR Date:
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that accused persons were angry and there is a likelihood of quarrel
between him and them; that thereafter he closed his shop before
routine time and when he reached near the gate of Mandi near the
shop of halwai, he saw Ashu and Subhash there; that he called
Subash and Ashu and they came near him; that in the meanwhile,
one of his known namely Aamir came there on a motor-cycle on
which Arjun was sitting as a pillion rider and Aamir after alighting
Arjun from his motor-cycle left from there after shaking hand with
him; that when he asked the accused persons as to what was the
hurry as they could return the money to him on the next day, the
accused persons requested him to walk on a side as they wanted to
talk with him; that he accompanied the accused persons to the side,
where there was dark and Ashu started talking with him, but
accused Subhash took out one Chopper and he made a blow of
chopper on his head; that accused Subhash also gave blow of
chopper on his right-side face and accused Arjun also stabbed him
with knife which he was carrying knife with him, due to which, he
sustained injuries on his hands, left side face and back; that
accused Subhash tried to make a blow of chopper on his neck and
he raised his right hand in his defence, but the chopper hit over his
right hand, due to which, he fell down and raised alarm; that some
public persons, who were present near the spot started pelting
stones over the accused persons and thereafter, all three of them ran
away while throwing their weapons; that complainant’s wife was
informed about the incident by one public person, when she had
called on his mobile and it was told to her by the public person that
the person to whom she had made a call has died, as the public
person was presuming the complainant to be dead due to the
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FIR No. 778/16 State vs. Ashu Etc VINEET KUMAR
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KUMAR Date:
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injuries suffered by him; that complainant was shifted to GTB
Hospital by some residents of his locality and his nephew Jatin
Gupta made call at 100 number; that police recorded his statement
i.e. Ex. PW-1/A and took his thumb impression when he was
unconscious in the hospital, however, again said, as a result of
injuries, since he was not in position to sign, therefore, police
obtained his thumb impression; that on 09.09.2016, IO called him
and upon his identification, IO apprehended and arrested accused
Subhash vide arrest memo Ex. PW1/B; that IO arrested accused
Arjun from his house vide arrest memo i.e. Ex.PW1/C; that
accused Arjun & Subhash had borrowed Rs. 3-4 lacs from him,
however, he does not have any receipt regarding money borrowed
by them at present. He has correctly identified all the accused
persons during the course of his examination-in-chief.
During cross-examination on behalf of accused Arjun
Vedi, PW-1 has deposed that Arjun is known to him three years
prior to the incident and Arjun used to come at his shop for having
eatables including drinks; that after 7-8 months, Arjun met him
with co-accused Subhash, who was known to him previously; that
he had introduced Arjun with Subash as they both used to come at
his shop; that he had not given any document regarding his
partnership with Neetu in respect of Delhi Chicken Point. He has
further deposed that he had paid Rs.3-4 lacs in cash to accused
Subash and Arjun and he paid them in installments. He has further
deposed that accused Arjun had borrowed approximately Rs.1.5
lacs while accused Subhash had borrowed around Rs.2.5 lacs from
him without interest; that at one time, he paid amount to accused
Arjun in the presence of his friend Salim and ArjunDigitally
had returned
signed
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VINEET KUMAR
by VINEET
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KUMAR Date:
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some amount one or two time in between to him; that on
16.08.2016, he met with accused Arjun at Delhi Chicken Point and
from 16.08.2016, till the day of incident, he had talked with
accused Arjun on 17.08.2016 telephonically 2-3 times; that as far
as he recollect, he did not talk with accused Arjun telephonically;
that on the day of incident, he had talked with Neetu telephonically
two times within 3-4 minutes; that in first call, Neetu told him not
to come at Delhi Chicken Point as there was apprehension of
quarrel and in second call, he told him to leave his shop after
closing the same; that he told him that accused Subhash and Arjun
had consumed liquor and asked him not to come at Delhi Chicken
Point; that he did not go to any other place prior to the incident
from his shop; that Amir, who came alongwith accused Arjun is his
friend for last 5-6 years; that at the time of incident, accused
Subhash was standing behind him and accused Arjun was on his
left side while accused Ashu caught hold of him from front; that
accused Arjun was not owing any money regarding purchase of
any food articles from shop; that although he introduced accused
Arjun with Subhash but later on they became close; that he
received the phone call from Neetu prior to accused person’s taking
him to a side; that he cannot tell the numbers of public persons,
who were pelting stone upon the accused persons as he was in
badly injured condition at that time. He has denied to a suggestion
that he narrated the facts in his statement dt. 09.09.2016 to
implicate accused Arjun or that neither he had any money
transaction with accused Arjun nor he was present at the spot; or
that he falsely implicated accused Arjun due to being jealous of
Digitally signed
closeness to accused Subash. VINEET by VINEET
KUMAR
KUMAR Date: 2024.12.20
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16:16:12 +0530
FIR No. 778/16 State vs. Ashu Etc Page No.6/56
During cross examination on behalf of accused Ashu,
he has deposed that he had no money transaction with accused
Ashu, who is son of Mausi of accused Subash and he used to work
as waiter at Delhi Chicken Point; that Delhi Chicken point was in
partnership between him and Neetu; that when he saw accused
Ashu near the shop of Halwai, same was lying open, but he did not
inform the police in his statements that the shop of Halwai was
lying open; that the place of incident is a residential-cum-
commercial area and in his presence, IO did not record the
statement of any shopkeeper, halwai or other public person
regarding the incident; that he had told the police that Ashu was
talking with him at the time of incident. (Confronted with
Ex.PW1/A, where it is not so recorded); that when accused Ashu
was employed at Delhi Chicken Point, he was being paid Rs.250/-
per day, however, there was no such record being maintained; that
accused Ashu caught hold of him and did not attack on him; that he
told the police that accused Ashu was working with him but he had
not given his address as he was not aware of the residential address
of accused Ashu; that he does not know who made call to police at
100 number. He has denied to the suggestion that he did not pay
the dues of accused Ashu for the period he worked with him and as
he is the cousin of accused Subhash, he falsely implicated him in
the present case or that he did not give any photograph of accused
Ashu to the police after the incident and accused Ashu was not
arrested in his presence.
During cross examination on behalf of accused
Subash, he has deposed that Subhash is known to him 3-4 years
prior to the incident; that no written document was executed
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KUMAR
KUMAR Date: 2024.12.20
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regarding loan of Rs.2-2.5 lacs as given by him to accused
Subhash; that he did the business in Delhi Chicken Point for about
one and half months and as there was no good income, he closed
the said business; that he did not file any suit for recovery against
accused Subhash in respect of the amount lent to him. He has
denied the suggestion w.r.t. any such incident of causing injury to
him with chopper or that he falsely implicated the accuse Subhash
due to monetary transactions or that he has falsely implicated the
accused as he did not return his money.
5. PW2 is ASI Prithavi Singh,who deposed that in the
intervening night of 03/04.09.2016, he was posted as duty officer at
PS Nand Nagri and recorded the present FIR i.e. Ex.PW2/A. He
further proved endorsement on rukka which is Ex. PW2/B. He
deposed that after registration of FIR, he gave the copy of FIR and
rukka to Ct. Pradeep for handing over the same to SI Amit Kumar.
PW2 further proved the certificate u/s 65-B of Indian Evidence Act
as Ex. PW2/C.
During cross-examination on behalf of accused Aashu,
PW2 has deposed that his signatures are not appearing on the FIR
brought by him today. He has admitted that his signatures are not
appearing on the rukka but his name has been mentioned.
6. PW-3 is Manoj Kumar @ Nittu. He has deposed that
Subhash is his friend and he is acquainted with him for last more
than 2½ years as they had met at the shop of Mahesh Kumar
behind Gagan Cinema near liquor shop, Nand Nagri; that he was
running a hotel in partnership with Subhash where some dispute
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by VINEET
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VINEET KUMAR
FIR No. 778/16 State vs. Ashu Etc KUMARPage No.8/56
Date:
2024.12.20
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and differences arose between Subhash and Mahesh and Subhash
told him that Mahesh had been abusing him and therefore, he
would give beating to Mahesh; that on 03.09.2016 at about 9.30
pm when he was present in his hotel with Subhash, Arjun, Ashu
and Saleem, some customers were also present at that time and
Subhash was abusing Mahesh on telephone; that he asked Subhash
to settle the matter after talking with each other and after about 10
minutes Subhash along with Ashu left the hotel and Arjun
remained with him; that he had telephonically called Mahesh
Gupta and informed that he should close his shop and returned to
his house as there is possibility of quarrel; that after about 10 – 15
minutes Arjun also left from there and thereafter, he does not know
anything what had happened and at about 10.00 pm when he was
closing his hotel, meanwhile he received information that a quarrel
had taken place in the market of Nand Nagari and thereafter he
returned back to his house; that later on police had met him and
made enquiries from him and his statement was recorded. During
the course of evidence, PW-3 has correctly identified accused
Arjun, Ashu and Subhash.
During cross-examination by Ld. Addl. PP, PW-3 has
admitted that his hotel /restaurant in partnership was in the name of
Delhi Chicken Point, Shop No. E-8, Priyadarshani Vihar, Delhi and
Subhash had kept his cousin Ashu as a labourer in the restaurant;
that he had stated to the police that some dispute/differences has
arisen on the issue of some money transaction; that at the time of
telephonic conversation with Mahesh, accused Subhash became
angry who took chicken cutter but he snatched and kept the same
but he along with Ashu went away from there; that after some time
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VINEET by VINEET KUMAR
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KUMAR Date: 2024.12.20
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one Amir also came on motorcycle and Arjun had also left stating
that he is going to search out Subhash and Ashu; that later on he
came to know that quarrel had taken place between Mahesh and
Arjun, Subhash and Ashu, but he could not recollect the above
facts due to lapse of time; that he had come to know that Mahesh
had sustained injuries, he was taken to hospital and was medically
examined; that it came to his knowledge that FIR was registered
regarding assault by the accused persons upon Mahesh and accused
persons were also arrested.
During cross-examination on behalf of accused Ashu,
PW-3 has deposed that there was no personal enmity between
accused Ashu and injured Mahesh Kumar and when accused
Subhash was abusing Mahesh on telephone, accused Ashu did not
utter any abuses.
During cross-examination on behalf of accused
Subhash, PW-3 has deposed that prior to this incident, he is not
aware of any quarrel between Subhash and Mahesh Kumar. He has
denied the suggestion that he had made call to Mahesh regarding
refrigerator and not regarding informing Mahesh that quarrel may
take place.
PW-3 was not cross-examined on behalf of accused
Arjun despite opportunity.
7. PW-4 is SI Dinesh Kumar. He has deposed that on
03.09.2016, upon receipt of DD No.112-B regarding assault of the
knife at E- 2 Block Chowk, Nand Nagari, he along with Ct.
Pradeep reached at the spot where one blood stained chopper
(knife), one other blood stained knife, one pair of sleeper as well as
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blood was lying at the spot and he came to know that the injured
had been removed to GTB hospital; that after leaving Ct. Pradeep
at the spot, he reached at GTB hospital where he collected MLC of
injured Mahesh Gupta and recorded statement of injured Mahesh
Gupta i.e. already Ex.PW1/A attested by him under his signature at
point A; that after returning back at the spot, he had called crime
team and accordingly crime team reached at the spot which had
inspected the scene of crime and photographs were taken by them;
that he made his endorsement i.e. Ex.PW4/A on the statement of
complainant Ex.PW1/A and put his signature at point A; that
thereafter, rukka was handed over to Ct. Pradeep with the direction
to get the FIR registered; that thereafter, he lifted chopper and
knife, prepared their sketch which are Ex.PW4/B and Ex.PW4/C
respectively and he had also seized one pair of sleeper (sandal),
blood stained control, earth control as well as blood which were
converted into separate pullandas sealed with the seal of DK and
then took the same into possession vide memo Ex.PW4/D; that Ct.
Pradeep had also reached there during this process and he had also
signed the seizure memo; that Ct. Pradeep had returned at the spot
along with SI Amit who had been entrusted investigation of the
present case; that he had deposited the case property in malkhana
in safe custody and thereafter, his statement was recorded by the IO
and he was discharged from the investigation. During the course of
examination-in-chief, he has identified chopper, knife and one pair
of sleepers as Ex. P-1, Ex. P-2 & Ex. P-3 respectively.
During cross-examination on behalf of accused Ashu,
he has deposed that he had gone through DD No. 112-B regarding
Digitally signed
VINEET
the incident of the present case entrusted to him;
by VINEET
that as KUMAR
per2024.12.20
DD
KUMAR Date:16:17:10 +0530
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No.112-B Ex.PW4/DA the information was regarding murder at E-
1130 Nand Nagari; that he did not contact on mobile number
9953954595 mentioned in DD No.112-B and he did not collect any
information about the caller of DD No.112-B till the investigation
remained with him; that in DD No.112-B, E-2 Block Chowk is not
mentioned, however, he has voluntarily deposed that when he was
proceeding he had found huge gathering at the aforesaid place; that
when he reached at the spot there was gathering of public persons
of about 30-40 in number and police persons were found guarding
the spot; that the spot was surrounded with residential area, but he
did not record statement of any public person as well as police
persons found present, however, he had conversation with those
police persons but did not record their statements; that he had left
Ct. Pradeep to safeguard the spot before leaving for hospital; that
he remained in the hospital for about 60-75 minutes and he had left
the hospital at about 11.15/11.30 pm and returned back at the spot;
that no relative of injured or PCR official met him in the hospital
and the patient Mahesh was already declared fit for statement on
the MLC, however, he does not remember if he had sought
permission from the doctor for recording the statement of injured
Mahesh; that he had returned back at the spot from hospital at
about 11.40/11.45 pm and 5-7 public persons were present there,
however, upon enquiry, they did not tell anything about the
incident; that he cannot tell the name of the occupant of house
situated near the spot and he did not call anyone from the
residential houses. He has denied the suggestion that he had got
registered a false case at the instance of injured Mahesh Kumar and
he had never visited the scene of crime for any purpose.
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VINEET KUMAR
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KUMAR Date:2024.12.20
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The said cross-examination was adopted on behalf of
accused Arjun.
During the course of cross-examination on behalf of
accused Subhash, he has deposed that public persons were present
at some distance from the spot when he had seized chopper, knife
and other articles from the spot; that he had asked public persons to
join the proceedings but none come forward; that he himself had
not taken any photograph of the scene of crime from his mobile,
however, he has voluntarily stated that it was photographer of
mobile crime team who had taken the photographs scene of the
crime. He has denied to a suggestion that he had not investigated
the case properly.
8. PW5 is Mohd. Salim. He has deposed that he is a
scrap dealer by profession and he knew complainant Mahesh Gupta
since last 8-10 years as he was running tea and snacks stall; that he
knows all the accused persons and he has correctly identified all of
them; that there was some money dispute between Mahesh Gupta
and Subhash Chand and Arjun Vedi; that he does not remember the
date and month but it was in the year 2016 and on that day at about
9.00 pm or 10.00 pm, all the accused persons were at the chicken
shop; that he went to take milk from a shop where one Amir met
him and he requested him to give some petrol for his scooty; that
he had seen that owner of chicken shop namely Neetu and all the
three accused were present and thereafter all three accused went to
the other side of the road and he also left for his home; that at about
10:00-10:15 pm, he was telephonically informed by the wife of
Mahesh Gupta that someone stabbed his husband, on receipt of
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KUMAR
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call, he went to the house of Mahesh Gupta and from there he
along with elder brother and nephew of Mahesh Gupta went to
GTB hospital; that he was interrogated by the police and his
statement was recorded.
During the course of cross-examination by Ld. APP
for the State, PW-5 has deposed that he cannot confirm whether the
date of incident was 03.09.2016; that in case of need, Mahesh
Gupta used to lend money to the accused Subhash and Arjun Vedi
and once or twice, Mahesh Gupta demanded his money from the
accused Subhash Chand and Arjun Vedi in his presence; that
accused Arjun Vedi telephonically informed him and warned him
not to go to market because Subhash and Aashu had committed
incident with Mahesh Gupta. He has denied the suggestion that
Mahesh Gupta was also present near the shop of chicken when
accused persons were seen by him or that accused Arjun Vedi went
along with Amir in search of accused Subhash and Aashu when he
requested Amir to give some petrol for his scooty.
During the course of cross-examination on behalf of
accused Subhash Chand, he has deposed that in his presence no
written document regarding money transaction between Mahesh
Gupta and accused persons was prepared. He has denied a
suggestion that he is deposing at the instance of Mahesh Gupta.
During the course of cross-examination on behalf of
accused Arjun Vedi, he has deposed that in his presence, Mahesh
Gupta never demanded money from accused Arjun Vedi and
Mahesh Gupta had not given any money in his presence to accused
Arjun Vedi; that he received the call from accused Arjun Vedi
regarding the incident between 9.00 pm to 10.00 pm but he cannot
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KUMAR
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KUMAR Date: 2024.12.20
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tell the mobile number of accused Arjun Vedi; that IO had not
asked about the mobile number from which call was made to him;
that he went to the IO in the month of October but he does not
remember the date and IO did not ask call detail from him. He has
denied to a suggestion that he had not received any call from Arjun
Vedi regarding the incident or that he has deposed falsely at the
instance of Mahesh Gupta.
During the course of cross-examination on behalf of
accused Aashu, he has denied to a suggestion that he has deposed
falsely at the instance of complainant.
9. PW6 is Mohd. Amir. He has deposed that he is
running a business of manufacturing goods and he knew all
accused persons and he correctly identified all of them; that there
was some dispute between Mahesh Gupta and accused persons on
account of money transactions; that on 03.09.2016 between 9.00
pm to 10.00 pm, he visited Delhi Chicken Point which was being
run by accused Subhash and Neetu and at that time, accused Arjun,
Aashu, one Salim and Neetu were also present there; that after
having chicken from that shop, he was going to his workplace at
Nand Nagri and accused Arjun also requested him to drop him at
Nand Nagri; that thereafter he along with Arjun went towards Nand
Nagri on his bike and when he reached near Subzi Mandi, Nand
Nagri, he saw that Mahesh Gupta @ Pale and accused Subhash
Chand were talking to each other and they also stopped near them;
that in the meantime, accused Aashu also reached there and
thereafter he left the spot after leaving Arjun Vedi with them and at
that time, they were talking to each other; that on 01.10.2016, his
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statement was recorded by the police and on the next day, he came
to know about the incident from the nephew of Mahesh Gupta.
The said witness was not cross-examined on behalf of
accused Subhash Chand despite opportunity.
During the course of cross-examination on behalf of
accused Arjun Vedi, he has deposed that he knows Arjun Vedi prior
to one and half years of the incident; that in his presence,
complainant had not given any money to accused Subash Chand or
Arjun Vedi but he used to demand money from them; that he
remained at Delhi Chicken Point for about half an hour on that day
and during that period, he talked with Neetu, Salim and accused
Arjun Vedi; that he left Delhi Chicken Point along with accused
Arjun Vedi at about 9.30 pm. and he had told the police in his
statement that when he reached near Subzi Mandi, Nand Nagri
along with accused Arjun Vedi, in the meantime, accused Aashu
also reached there. The said fact was confronted with statement
Ex.PW6/DA where it was not so recorded; that no written notice
was given to him by the IO to join investigation but he received a
call from the IO; that there were some shops near the place where
accused Subhash Chand and Mahesh Gupta were talking with each
other but as such no public person was present there; that he had
told to the police in his statement that he came to know from the
nephew of Mahesh Gupta about the incident. He has denied a
suggestion that he narrated the facts in his statement to implicate
accused Arjun Vedi at the instance of complainant or that there was
no money transaction between complainant and accused Arjun Vedi
or that accused Arjun Vedi was not present at the spot or that he
had not given lift to accused Arjun Vedi for Nand Nagri on his
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by VINEET
FIR No. 778/16 State vs. Ashu Etc VINEET KUMAR
Page No.16/56
KUMAR Date:
2024.12.20
16:18:03 +0530
motorcycle at any point of time on the day of incident or that he is
deposing falsely at the instance of Mahesh Gupta.
During the course of cross-examination on behalf of
accused Aashu, he has denied the suggestion that he is deposing
falsely at the instance of complainant.
10. PW-7 is Gaurav. He has deposed that he is working at
Harsh Vihar Jail as housekeeper; that on 03.09.2016 at about 9:30 –
10:00 pm, when he was going on foot towards mandi side of Nand
Nagri via MCD flats, he saw a fighting at mandi chowk; that he
approached towards fighting place and saw three persons running,
while two of them went in the direction from where he was coming
and the third one in the gali on his right side; that then he reached
at the place of incident and saw that one person was lying on the
road in injured condition and he recognized him as uncle namely
Mahesh @ Paale of his friend namely Ravinder Kumar Gupta; that
he made a call to his friend Ravinder Kumar and after some time
he along with his family members reached there and took the
injured to hospital; that his statement was recorded by the police
and he had not seen the faces of those three persons who were
running from there and as such he could not identify them.
No cross-examination was conducted by any of the
accused persons despite opportunity.
11. PW-8 is Jatin Gupta. He has deposed that
complainant Mahesh Gupta is his real uncle; that on 03.09.2016 at
about 10:00 – 10:10 pm, his father received a call that his uncle
was being beaten by some persons; that as his father isDigitally
of old age,
signed
____________________________________________________________________
by VINEET
VINEET KUMAR
FIR No. 778/16 State vs. Ashu Etc Page No.17/56
KUMAR Date:
2024.12.20
16:18:13 +0530
he went to E-2 Chowk, Nand Nagri where he saw that his uncle
was lying in injured condition and blood was oozing from his
injuries; that thereafter, he with the help of some public persons
took his uncle Mahesh Gupta to GTB hospital; that after some time
police also reached at GTB hospital and recorded his statement in
the hospital.
No cross-examination was conducted by any of the
accused persons despite opportunity.
12. PW-9 is Dr. Mritunjay, from General Medicine,
Jipmer, Puducherry. He has deposed that on 03.09.2016, he was
posted at GTB hospital in the Emergency Department as Medical
Officer and on that day, he examined injured Mahesh Gupta vide
MLC Ex.PW9/A; that patient was brought by one Jatin Gupta and
he referred the patient to Surgery Department, Room No.149, GTB
Hospital and Ortho Department.
No cross-examination was conducted by any of the
accused persons despite opportunity.
13. PW-10 is Ct. Deepak. He has deposed that on
14.10.2016, MHC(M) PS Nand Nagri handed over seven
exhibits/pullandas in sealed condition to him for depositing the
same with FSL Rohini vide RC No.217/21/16; that he deposited
aforesaid exhibits at FSL Rohini and handed over copy of receipt
to MHC(M); that exhibits/pullandas were intact while they
remained in his custody.
No cross-examination was conducted by any of the
Digitally signed
accused persons despite opportunity. VINEET by VINEET
KUMAR
KUMAR 16:18:23
Date: 2024.12.20
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+0530
FIR No. 778/16 State vs. Ashu Etc Page No.18/56
14. PW-11 is ASI Sudhir Tomar. He has deposed that on
24.09.2016 at about 4.15 pm, he along with SI Amit Kumar and
complainant went to H. No.329, Dr. Ambedkar Basti, Ghonda; that
accused Arjun Vedi was found in the said house and was identified
by the complainant; that accused Arjun Vedi was apprehended and
his custody was handed over to him by the IO; that then IO arrested
accused Arjun Vedi vide arrest memo i.e. already Ex.PW1/C and
his personal search was conducted vide memo Ex.PW11/A and his
disclosure statement was recorded vide disclosure statement
Ex.PW11/B; that thereafter, accused was sent to police lockup after
his medical examination and his statement was recorded by the IO.
He has correctly identified accused Arjun Vedi during his
examination-in-chief.
During cross-examination by Ld. Counsel for accused
Arjun Vedi, he has deposed that IO made his departure entry and
personally he had not made any departure entry, however, he does
not remember the DD number by which IO had made the departure
entry; that complainant accompanied them from the police station
for conducting raid at the house of accused Arjun Vedi and after
about 4-5 minutes of reaching the complainant in police station,
they left for the house of the accused Arjun Vedi; that they went to
the house of accused Arjun Vedi on private vehicle but he does not
remember whether it was car, tempo, gypsy or any other vehicle;
that at that time, brother of the accused as well as some ladies were
also found present; that they remained for about 20 – 25 minutes at
the house of accused and IO made enquiries from accused at his
house and writing work was also done at the house of accused; that
Digitally signed
____________________________________________________________________
by VINEET
VINEET KUMAR
FIR No. 778/16 State vs. Ashu Etc Page No.19/56
KUMAR Date:
2024.12.20
16:18:35 +0530
accused was in his custody when he was getting interrogated by the
IO. He has denied to the suggestions that complainant did not
accompany them to the house of accused or that accused was called
in the police station or that present case is a false case and his
statement was not written by the IO in his presence or that he did
not join the investigation at any point of time or that I am deposing
falsely at the instance of IO.
He was not cross-examined on behalf of accused
persons i.e. Subhash and Aashu despite opportunity.
15. PW-12 is Saurabh Pathak, Junior Forensic/Chemical
Examiner (Biology), FSL, Rohini. He has deposed that on
14.10.2016, seven sealed parcels with sample seal were deposited
in FSL Rohini and same were marked to him for examination; that
he tallied the parcels with sample seal and found the same intact;
his detailed report of analysis is Ex.PW12/A and his serological
report is Ex.PW12/B, both bearing his signatures at point A
respectively; that after examining, the remnants were sealed with
the seal of SP FSL DELHI and sent to forwarding authority.
PW-12 was not cross-examined by any accused person
despite opportunity.
16. PW-13 is Ct. Pushkar and he has deposed that on
04.09.2016 at about 9.30 am, he along with SI Amit Kumar went to
red light, Dilshad Colony where one secret informer met SI Amit
Kumar and at his pointing out accused Aashu was arrested vide
memo Ex.PW13/A and his personal search was also conducted
vide memo Ex.PW13/B; that IO also recorded disclosure statement
Digitally signed
____________________________________________________________________
VINEET by VINEET
KUMAR
FIR No. 778/16 State vs. Ashu Etc Page No.20/56
KUMAR Date: 2024.12.20
16:18:44 +0530
of accused Aashu i.e. Ex.PW13/C and thereafter, accused Aashu
was put into lockup after getting him medically examined from
GTB hospital; that accused Aashu was produced before the court
and his police custody remand for one day was obtained; that they
also tried to search co-accused Subhash and Arjun but could not
succeed. PW-13 has correctly identified accused Aashu during his
examination-in-chief.
The said witness was not cross-examined on behalf of
accused Subhash and Arjun Vedi despite opportunity.
During the course of cross-examination on behalf of
accused Aashu, PW-13 has deposed that 10-20 public persons were
present at the red light chowk of Dilshad Colony and he was called
by the IO telephonically; that accused Aashu was arrested from red
light, Dilshad Colony and not from Nand Nagri; that he put his
signature on the arrest memo after going through the contents of
the arrest memo; that IO did not ask any public person or any
traffic police official to join the investigation and he is not aware
whether IO made departure entry as well as arrival entry; that he
cannot tell the time for which they remained present at the place of
arrest of accused Aashu; that accused Aashu pointed out some
places regarding the presence of co-accused but no pointing out
memo was prepared; that secret informer was already present at red
light chowk Dilshad Colony when they reached there. He has
denied the suggestion that he did not join the investigation at any
point of time or that he put his signatures on the memos at the
instance of IO. Digitally signed
by VINEET
VINEET KUMAR
KUMAR Date:
2024.12.20
16:18:55 +0530____________________________________________________________________
FIR No. 778/16 State vs. Ashu Etc Page No.21/56
17. PW-14 is HC Kishan Pal. He has deposed that on
04.09.2016 he was posted as MHC(M) at PS Nand Nagari and on
that day SI Dinesh Kumar deposited three sealed cloth pullanda,
three sealed plastic Dibbi (containers) with the seal of DK vide
entry no. 5000 i.e. Ex. PW14/A(OSR); that on 24.09.2016 SI Amit
Kumar deposited one sealed pullanda duly sealed with the seal of
GTB hospital vide entry no. 5040 i.e. Ex. PW14/B(OSR); that on
14.10.2016, he handed over seven pullandas to Ct. Deepak for
depositing the same at FSL Rohini for their inspection vide RC no.
217/21/2016 i.e. Ex. PW14/C (OSR); that after depositing the
same, Ct. Deepak handed over him the acknowledgment of
acceptance of FSL Rohini vide PW14/D(OSR); that on 11.01.2017
Ct. Pushkar was sent to FSL Rohini for taking the result from there
and he accordingly brought the same along with seven sealed
parcel and one sealed report of FSL Rohini; that he also made entry
in this regard in Ex. PW14/A from point X to X1 bears his
signature at point A.
During the course of cross-examination on behalf of
accused Arjun Vedi, PW-14 has admitted that in his statement
recorded U/s 161 Cr.P.C. he has not stated regarding depositing of
sealed pullandas on 04.09.2016.
During the course of cross-examination on behalf of
accused Subhash and Aashu, PW-14 has admitted that the signature
of SI Dinesh Kumar and SI Amit Kumar are not appearing on the
register no. 19; that in his statement the name of Ct. Pradeep is
written as the Constable who took the sealed pullanda to FSL,
however, it has been voluntarily said by the witness that it is due to
Digitally signed
typographical error. VINEET by VINEET
KUMAR
KUMAR 16:19:05
Date: 2024.12.20
____________________________________________________________________
+0530
FIR No. 778/16 State vs. Ashu Etc Page No.22/56
18. PW-15 is Ct. Pradeep Sharma. He has deposed that on
03.09.2016, he was on emergency duty along with SI Dinesh
Kumar from 08.00 p.m. to 08.00 a.m and at about 10-10.30 p.m.
after receiving the PCR call which was recorded as DD no. 112B,
he along with SI Dinesh Kumar went to E-2 block, Chowk Nand
Nagari there they found blood, one chopper, one knife and one pair
of chappal lying on the ground; that they came to know that injured
was taken to GTB hospital and thereafter SI Dinesh after leaving
him to guard the spot went to GTB hospital; that crime team
reached at the spot in the meantime and SI Dinesh Kumar also
returned to the spot; that crime team took photographs at the
instance of SI Dinesh Kumar, IO lifted blood in gauze, blood
stained earth, earth control and put the same in separate small
plastic containers and sealed the same with the seal of DK; that IO
also took the chopper, one knife and pair of chappal and put the
same in separate cloth pullanda and sealed the same with the seal
of DK and took all the aforesaid exhibits in police possession vide
seizure memo already Ex. PW4/D; that SI Dinesh Kumar handed
over him the tehrir with direction to get the FIR registered and
accordingly, he went to PS Nand Nagari and gave the same to duty
officer for registration of FIR; that after registration of FIR,
investigation was assigned to SI Amit Kumar and thereupon he
along with SI Amit Kumar reached at the spot; that SI Amit Kumar
prepared rough site plan of the spot at the instance of SI Dinesh
Kumar i.e. Ex PW15/A and SI Dinesh Kumar handed over all the
sealed exhibits to SI Amit Kumar; that chopper, knife and pair of
Digitally signed by
chappal are already Ex. P1 to Ex. P3. VINEET
During the VINEET
course of
KUMAR
KUMAR 16:19:16 +0530
Date: 2024.12.20
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FIR No. 778/16 State vs. Ashu Etc Page No.23/56
examination-in-chief, leading questions were put to the witness by
Ld. Addl. PP for the State and in response to the same, PW-15 has
admitted that SI Dinesh Kumar also prepared sketch of the
chopper; that SI Dinesh Kumar also brought the MLC of injured
Mahesh Gupta from the hospital.
During the course of cross-examination on behalf of
all the accused persons, PW-15 has deposed that at about 10.30
p.m. he was informed by the SI Dinesh Kumar regarding the
receiving of DD no. 112B and they reached at the spot at about
10.40 p.m. on motorcycle of SI Dinesh Kumar; that he does not
remember whether IO got registered DD regarding their reaching at
the spot and when they reached at the spot 15-20 public persons
were already present there; that when they reached at the spot PCR
van was already present and public persons were standing at a
distance from the chopper, knife etc; that after 10-15 minutes SI
Dinesh went to GTB hospital from the spot and IO requested some
public persons to join the investigation but none agreed; that no
notice was given to those public persons who refused to join the
investigation and he does not know the name of public persons
who informed them that injured was already shifted to GTB
hospital; that he does not remember the time when crime team
reached at the spot as well as the number of the persons who were
in the crime team ; that he does not remember the time when SI
Dinesh returned to the spot from hospital; that no public person
were made a witness of seizure of knife and other exhibits lifted
from the spot; that he does not remember the time when he went to
PS along with rukka as well as the mode of transport used by him
Digitally signed
VINEET by VINEET
for the same, however, he went to PS alone;KUMAR
that he remained
KUMAR
in the
Date: 2024.12.20
16:19:24 +0530
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FIR No. 778/16 State vs. Ashu Etc Page No.24/56
PS for about 30-45 minutes and after getting the case FIR
registered he came back at the spot; that his departure entry was
recorded by duty officer vide recording the DD entry regarding
registration of FIR; that he does not remember how many
photographers were in the crime team as well as how many
photographs were clicked by the photographer, however, IO was
carrying his kit with him; that one secret informer also met SI Amit
Kumar and he informed that one of the accused was present
towards Red Light, Mandoli Road; that complainant Mahesh Gupta
also identified accused Subhash and he was apprehended, enquired
and arrested vide memos i.e. arrest memo, personal search and
disclosure statement i.e. already Ex.PW1/B, Ex.PW16/A and
Ex.PW16/B. He has denied to the suggestion that he has not joined
the investigation at any point of time and reached behind Red
Light, Nand Nagri near Police Station, where complainant Mahesh
met them. PW-16 has correctly identified accused Subhash in his
examination-in-chief.
During the course of cross-examination on behalf of
accused Subhash it was stated that they reached at Red Light Nand
Nagri at 6 am and secret informer met them at the Red Light; that
public persons were passing through the road when secret informer
pointed towards accused Subhash; that complainant came there
after they reached there, however, he does not know whether IO
called the complainant at the spot or not. He has denied to
suggestion that accused had surrendered in the PS or that accused
Subhash had not made any disclosure statement or that all the
writing work was done at the PS. VINEET by
Digitally signed
VINEET
KUMAR
KUMAR 16:19:33
Date: 2024.12.20
+0530
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FIR No. 778/16 State vs. Ashu Etc Page No.25/56
PW-16 was not cross-examined on behalf of accused
persons i.e. Aashu and Arjun despite opportunity.
19. PW-17 is SI Amit Kumar. He has deposed that on the
intervening night of 03/04.09.2016 at about 1.00 am he along with
Ct. Pradeep went to the spot i.e. E-2 Block, Nand Nagri, where
they found that blood was lying spilled on the floor in large
quantity and came to know that injured was already shifted to
hospital; that he prepared rough site plan already Ex.PW15/A and
thereupon, they went to GTB hospital, where they found injured
Mahesh Kumar under treatment and thereupon they returned back
to the police station; that he recorded statement of SI Dinesh and
Ct. Pradeep u/s 161 Cr.PC. and thereafter they started search of
accused persons; that at about 9.30 am, a secret informer met him
who informed him about the presence of accused Aashu near Park,
Red Light Dilshad Colony, Delhi and thereupon, he along with Ct.
Pushkar and secret informer reached at the red light Dilshad
Colony and apprehended accused Aashu from near Park, Red Light
Dilshad Colony, Delhi; that he interrogated him and arrested him
and his personal search was taken vide memos already Ex.PW13/A
and Ex.PW13/B and his disclosure statement already Ex.PW13/C
was also got recorded; that he recorded statement of Ct. Pushkar
and accused Aashu was got medically examined and thereafter
produced before the court; that he obtained one day Police remand
of accused Aashu from the concerned court and they tried to search
co-accused Subhash and Arjun along with accused Aashu but could
not succeed and thereafter he was produced before the court and
Digitally signed
remanded to J/C; that he deposited the MLC VINEET by VINEET
of the injured
KUMAR at GTB
KUMAR Date: 2024.12.20
____________________________________________________________________
16:19:43 +0530
FIR No. 778/16 State vs. Ashu Etc Page No.26/56
hospital for opinion regarding nature of injuries and injured was
under treatment on that day i.e 05.09.2016; that he collected crime
team report and on 09.09.2016, he received secret information
about presence of accused Subhash and thereafter, he along with
Ct. Rinku, complainant and secret informer went at Red light Nand
Nagri and from there at the instance of complainant accused
Subhash was apprehended, interrogated and arrested vide memo
already Ex.PW1/B, his personal search already Ex.PW16/A was
conducted and disclosure statement already Ex.PW16/B was also
recorded; that he recorded statement of Ct. Rinku as well as
supplementary statement of complainant and accused Subhash
Chand was produced before the court from where he was remanded
to judicial custody; that on 24.09.2016, he received secret
information regarding presence of accused Arjun at his house and
thereupon, he along with HC Sudhir and complainant went to his
house No.329, Ambedkar Nagar Basti, from where at the instance
of complainant, he apprehended accused Arjun Vedi; that he was
interrogated and arrested vide memo already Ex.PW1/C, his
personal search already Ex.PW11/A was conducted and his
disclosure statement already Ex.PW11/B was recorded; that
thereafter, they went to GTB hospital from where blood sample of
complainant was also taken by the concerned doctor and handed
over to him in sealed pullanda and he took the same in police
possession vide seizure memo Ex.PW17/A; that thereafter he
recorded statement of HC Sudhir as well as supplementary
statement of complainant and he deposited the blood sample in
sealed condition with MHC(M); that he also recorded statement of
Digitally signed
Manoj @ Neetu, Amir S/o Jahangir and Saleem VINEET by VINEET
and KUMAR
he sent the
KUMAR Date: 2024.12.20
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16:19:55 +0530
FIR No. 778/16 State vs. Ashu Etc Page No.27/56
exhibits to FSL for examination through Ct. Deepak; that he
recorded statement of MHC(M) as well as of Ct. Deepak and
obtained result on the MLC of injured; that he recorded statements
of other witnesses Gaurav and Jatin Gupta as well as
supplementary statement of complainant; that he also collected
CDR of mobile phones of complainant and accused Subhash and
thereafter, he prepared the chargesheet and filed before the court.
All the three accused were correctly identified by the witness
during the course of evidence.
During the course of cross-examination on behalf of
accused Arjun Vedi, the witness has deposed that complainant was
also called in the police station and he came before they made
departure entry but he does not remember whether his presence is
also mentioned in the said DD or not; that they reached within 15
minutes at the house of accused Arjun Vedi after recording their
departure and they went to the house of accused on their private
motorcycle; that he does not remember whether they went on their
Motorcycle or that of HC Sudhir and they parked the motorcycle at
a distance of 30-40 meters away from the house of accused Arjun
Vedi; that house of accused Arjun Vedi is situated in a densely
populated area and wife and brother of accused Arjun Vedi were
also present at that time apart from other family members; that they
remained at the house of accused Arjun Vedi for about 10-15
minutes and accused Arjun Vedi was interrogated for about 5-10
minutes at his house; that complainant was with them therefore
they did not ask any neighbour to join the investigation at the time
of arrest of accused Arjun Vedi. He has denied to the suggestion
Digitally signed
that complainant did not accompany them VINEET by VINEET
to the house
KUMAR of the
KUMAR Date: 2024.12.20
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16:20:07 +0530
FIR No. 778/16 State vs. Ashu Etc Page No.28/56
accused or that accused was called in the police station or that he
had done the writing work while sitting in the PS or that present
case is a false case or that he did not write any statement of any
witness at the house of accused Arjun Vedi or that he recorded false
disclosure statement of accused Arjun Vedi.
No cross-examination of said witness was conducted
on behalf of accused Subhash.
During the course of cross-examination on behalf of
accused Aashu, the witness has deposed that there is no specific
name of the park from where accused Aashu was arrested but it
was near the red light, Dilshad Colony; that he does not remember
whether he had written in the arrest memo the place of arrest of
accused Aashu as near park red light; that there was no police beat
or traffic police available near red light, Dilshad Colony on the day
of arrest of accused Aashu and there were some shops on the
opposite side as well as residential area near the spot; that no
public witness was asked to join the investigation at the time of
arrest of accused Aashu; that he cannot say whether the red light
Dilshad Colony is also known as Mrignayani chowk. He has
denied to the suggestion that he is not aware about the place of
arrest as Mrignayani chowk as accused was not arrested from that
place or that no public witness was called to joined the
investigation as accused was not arrested from red light Dilshad
Colony. He has admitted that he has not placed on record any
memo to show that he along with accused Aashu went in search of
co-accused persons when he was in police remand; that he was not
having photograph of accused Aashu when he received secret
Digitally signed
VINEET by VINEET
information about his presence; that complainant was not present at
KUMAR
KUMAR 16:20:20 +0530
Date: 2024.12.20
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FIR No. 778/16 State vs. Ashu Etc Page No.29/56
that time. He has denied to the suggestion that the proceedings
were conducted only for formalities or that accused Aashu was
lifted from his house and not arrested from red light Dilshad
Colony or that all the writing work was done in the police station.
20. PW-18 Pawan Singh, Alternate Nodal Officer,
Vodafone Idea Ltd has produced the certified copy of customer
application form of mobile no. 9891608103 and he has deposed
that as per CAF i.e. Ex. PW-18/A Subhash Chand is the subscriber
of aforesaid SIM number along with photocopy of voter I. Card;
that Sh. Israr Babu, Alternate Nodal Officer had also supplied the
CDR of mobile no. 8447590448 along with copy of CAF i.e. Ex.
CW-18/B (colly) and ID proof i.e. Ex. CW-18/B (colly) and the
said number was subscribed to Mahesh Kumar Gupta; that the
attested copy of CDR for 03.09.2016 as Ex. CW18/C, certificate
u/s 65-B of Evidence Act as Ex. CW18/D and forwarding letter
isssued by Sh. Israr Babu, Alternate Nodal Officer to SI Amit
Kumar as Ex. CW18/E; that all memos are bearing the signature of
Sh. Israr Babu at point X.
The said witness was not cross-examined on behalf of
any of the accused persons.
21. PW-19 Ct. Mukesh has deposed that on 03.09.2016,
he along with Incharge Crime Team SI Suman Kumar visited on
road in front of E-2/481, Gagan Cinema Road, Delhi and he at the
instance of IO/SI Dinesh Kumar and Incharge Crime Team took 15
photographs of the spot i.e. Ex. PW-19/A1 to A15 from his digital
Digitally signed
VINEET by VINEET
KUMAR
KUMAR Date: 2024.12.20
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16:20:31 +0530
FIR No. 778/16 State vs. Ashu Etc Page No.30/56
official camera and he proved the certificate u/s 65-B of Evidence
Act as Ex. PW-19/B.
During the course of cross-examination on behalf of
accused Arjun Vedi, PW-19 has deposed that upon receipt of an
information on wireless set from control room at about 10:30 pm,
they reached at the spot at about 10:50 pm on our official vehicle,
however, he does not remember its registration number; that when
they reached at the spot, SI Dinesh Kumar along with other staff
met them besides more than 50 public persons; that he took the
photographs as per the directions of IO and they remained at the
spot for about one and half hour, however, his statement was not
recorded by IO.
No cross-examination on behalf of accused Subhash
and Aashu was conducted despite opportunity.
22. PW-20 SI Suman Kumar has deposed that on
03.09.2016 at about 10:30 pm, upon receipt of call from control
room, he reached at the spot i.e. in front of E-2/481, Gagan Cinema
Road, Delhi along with team consisting of SI Shiv Kumar Finger
Print Proficient and Ct. Mukesh, photographer; that SI Dinesh
Kumar along with staff met them and he inspected the spot and
prepared scene of crime report i.e. Ex. PW20/A.
None of the accused persons have conducted the
cross-examination of said witness despite opportunity.
23. Importantly, accused persons had admitted the
following documents vide joint statement u/s 294 Cr.PC recorded
Digitally signed
VINEET by VINEET
on 24.11.2023:
KUMAR
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16:20:42 +0530
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FIR No. 778/16 State vs. Ashu Etc Page No.31/56
(1) Final medical opinion regarding nature of injury given by Dr.
Dheer Singh Rai, SR Department of Surgery, GTB Hospital on the
MLC of patient Mahesh Gupta i.e. PW1, as Ex. A1.
(2) Final medical opinion regarding nature of injury given by Dr.
Sunil Kumar, SR Department of Neurosurgery, GTB Hospital on
the MLC of patient Mahesh Gupta i.e. PW1, as Ex. A2.
(3) Certificate u/s 65-B of IEA as Ex. PW2/C.
24. As a result of above, the evidence of relevant
witnesses was dispensed with. Thereafter, PE was closed.
STATEMENT OF ACCUSED
25. During the course of recording of Statement of
accused u/s 313 Cr.PC, all incriminating evidence was put to the
accused persons Aashu and Arjun Vedi, in response to which, it has
been stated by accused Aashu that he is innocent and has been
falsely implicated in the present case and that he is the cousin of
accused Subhash i.e real son of his Mausi, who got him employed
at Delhi Chicken point which at that point was being run by
Mahesh Gupta and Neetu. He has further stated that Complainant
did not give him wages for two days and thereafter the said hotel
was taken over by accused Subhash and Neetu and he again started
working there for wages of Rs.250 per day.
26. During the course of his statement u/s 313 CrPC,
Accused Arjun Vedi has stated that he is innocent Digitally
and has been
signed by
VINEET VINEET KUMAR
KUMAR Date: 2024.12.20
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falsely implicated in the present case. He has further pleaded that
he used to visit Delhi Chicken Point which was run by accused
Subhash Chand and Neetu and prior to that, said Chicken point was
being run by complainant Mahesh Gupta. He has further pleaded
that thereafter complainant started the said Delhi Chicken Point
with accused Subhash and he used to visit within a week or so. He
has further pleaded that he was having cordial relation with
accused Subhash Chand and due to that, complainant was feeling
jealous from him and therefore he falsely implicated him in the
present case.
27. Also, on 24.11.23 separate Supplementary statements
of accused persons u/s 313 CrPC were recorded.
DEFENCE EVIDENCE
28. Only Accused Aashu expressed his willingness to lead
defence evidence and chose to examine one witness in his
evidence. The testimony of said witness is as follows:
29. DW1 is Smt. Dolly. She has deposed that she is the
wife of accused Aashu. She has further deposed that on
03.09.2016, her husband was not well and he was sleeping at their
house and in the midnight between 12-1 am, 3-4 police officials
knocked the gate of their house. She has further deposed that she
enquired from them for what purpose they came to their house, but
they did not give any answer and took her husband with them. She
has further deposed that she also met with SHO of the concerned
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During the course of cross-examination on behalf of
State, said witness has deposed that she did not make any written
complaint to senior police officers or any other authority that her
husband was lifted from their house during midnight of
03.09.2016. She has denied the suggestion that her husband was
arrested on 04.09.2016 at 9:30 am from Red Light, Dilshad
Colony, Nand Nagari. She has further denied the suggestion that
she did not make any complaint to senior police officers or court as
her husband was not arrested from her house on 03.09.2016. He
has further denied to the suggestion that she was deposing falsely
in order to save her husband. She has admitted that co-accused
Subhash is their relative and that on 03.09.2016, her husband was
working along with co-accused Subhash at Delhi Chicken Point.
30. Thereafter, Defence Evidence (DE) was closed vide
order dated 18.12.2019. At the stage of final arguments, accused
Subhash Chand stopped appearing before the court, therefore, he
was declared Proclaimed Offender by Ld. Predecessor vide order
dated 28.03.2022.
31. I have heard the arguments addressed by Ld. Addl. PP
for the State as well as Ld. Defence Counsels representing the
accused persons. Ld. Defence counsels have argued that accused
persons have been falsely implicated in the present case and there
are many discrepancies in the investigation of the present case and
in addition to it, there are inconsistencies as well as contradictions
galore in the testimony of witnesses inter se. It was further argued
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for the offences under Section 307/34 IPC r/w S. 25/27 Arms Act,
therefore, the accused persons be acquitted of the aforesaid
charges. Whereas, on the other hand, Ld. Addl. PP for the State has
strongly argued that prosecution has been able to prove its case
against the accused persons beyond reasonable doubt, thus the
present case warrants conviction.
ANALYSIS
32. Now this court will consider if the prosecution has
been able to prove its case against the accused persons beyond
reasonable doubt in the light of oral testimonies as well as
documentary evidence on record. But before proceeding further, it
is profitable to get a deeper insight into some concepts as
elucidated by the Hon’ble courts, which are integral to adjudication
of a criminal case and the same are discussed as under:
BEYOND REASONABLE DOUBT
33. It is settled principle of criminal jurisprudence that the
prosecution has to prove the case against the accused beyond
reasonable doubt and the accused has to prove its defence on
preponderance of probabilities. What does the expression ‘beyond
reasonable doubt’ mean? The said expression has been defined by
the Hon’ble Supreme Court in the various judgments. In the matter
of Paramjeet Singh @ Pamma Vs. State of Uttarakhand,
2011CRI.L.J.663, Hon’ble Mr. Justice Dr. B. S. Chauhan,
elaborated the concept of Standard of Proof in a criminal trial in
the following terms: Digitally signed
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“11. A criminal trial is not a fairy tale wherein one is
free to give flight to one’s imagination or fantasy.
Crime is an event in real life and is the product of an
interplay between different human emotions. In
arriving at a conclusion about the guilt of the accused
charged with commission of a crime, the court has to
judge the evidence by the yardstick of probabilities,
intrinsic worth and the animus of witnesses. Every
case, in the final analysis, would have to depend upon
its own facts. The court must bear in mind that
“human nature is too willing, when faced with brutal
crimes, to spin stories out of strong suspicions.”
Though an offence may be gruesome and revolt the
human conscience, an accused can be convicted only
on legal evidence and not on surmises and conjecture.
The law does not permit the court to punish the
accused on the basis of a moral conviction or
suspicion alone. “The burden of proof in a criminal
trial never shifts and it is always the burden of the
prosecution to prove its case beyond reasonable doubt
on the basis of acceptable evidence.” In fact, it is a
settled principle of criminal jurisprudence that the
more serious the offence, the stricter the degree of
proof required, since a higher degree of assurance is
required to convict the accused. The fact that the
offence was committed in a very cruel and revolting
manner may in itself be a reason for scrutinizing the
evidence more closely, lest the shocking nature of the
crime induce an instinctive reaction against
dispassionate judicial scrutiny of the facts and law.
(Vide: Kashmira Singh Vs. State of Madhya Pradesh,
AIR 1952 SC 159; State of Punjab Vs. Jagir Singh
Baljit Singh & Anr. AIR 1973 SC 2407; Shankarlal
Gyarasilal Dixit Vs. State of Maharashtra, AIR 1981
SC 765; Mousam Singha Roy & Ors. Vs.State of West
Bengal, (2003) 12 SCC 377; and Aloke Nath Dutta &
Ors. Vs. State of West Bengal, (2007) 12 SCC. 230.”
In Sarwan Sigh Rattan Singh Vs. State of Punjab, AIR
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1957 SC 637, the court observed (Para12): VINEET by VINEET
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“Considered as a whole the prosecution story may be
true; but between ‘may be true’ and ‘must be true’ there
is inevitably a long distance to travel and the whole of
this distance must be covered by legal, reliable and
unimpeachable evidence (before an accused can be
convicted.”
16. Furthermore, in the judgment of Sucha Singh and
Another Vs. State of Punjab, (2003) 7 SCC 643, the
Hon’ble Supreme Court explained the term Beyond
Reasonable Doubt and observed as under:
21. Exaggerated devotion to the rule of benefit of
doubt must not nurture fanciful doubts or lingering
suspicion and thereby destroy social defence. Justice
cannot be made sterile on the plea that it is better to let
hundred guilty escape, than punish an innocent.
Letting guilty escape is not doing justice according to
law. [See Gurbachan Singh v. Satpal Singh and others,
AIR 1990 SC 209: 1990(1) RCR(Crl.) 297 (SC)].
Prosecution is not required to meet any and every
hypothesis put forward by the accused. [See State of
U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840:
1992(3) RCR(Crl.) 63 (SC)]. A reasonable doubt is not
an imaginary, trivial or merely possible doubt, but a
fair doubt based upon reason and common sense. It
must grow out of the evidence in the case. If a case is
proved perfectly, it is argued that it is artificial; if a
case has some flaws inevitable because human beings
are prone to err, it is argued that it is too imperfect.
One wonders whether in the meticulous
hypersensitivity to eliminate a rare innocent from
being punished, many guilty persons must be allowed
to escape. Proof beyond reasonable doubt is a
guideline, not a fetish. [See Inder Singh and Anr. v.
State of (Delhi Admn.) (AIR 1978 SC 1091)]. Vague
hunches cannot take place of judicial evaluation.
“A judge does not preside over a criminal trial, merely
to see that no innocent man is punished. A judge also
presides to see that a guilty man does not escape. Both
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are public duties.” (Per Viscount Simon inKUMAR
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Director of Public Prosecution (1944 AC (PC) 315)
quoted in State of U.P. v. Anil Singh, AIR 1988 SC
1998). Doubts would be called reasonable if they are
free from a zest for abstract speculation. Law cannot
afford any favourite other than truth.
APPRECIATION OF ORAL EVIDENCE
34. ” The appreciation of ocular evidence is a hard task.
There is no fixed or straight-jacket formula for appreciation of the
ocular evidence. The judicially evolved principles for appreciation
of ocular evidence in a criminal case can be enumerated as under:
“I. While appreciating the evidence of a witness, the
approach must be whether the evidence of the witness
read as a whole appears to have a ring of truth. Once
that impression is formed, it is undoubtedly necessary
for the Court to scrutinize the evidence more
particularly keeping in view the deficiencies,
drawbacks and infirmities pointed out in the evidence
as a whole and evaluate them to find out whether it is
against the general tenor of the evidence given by the
witness and whether the earlier evaluation of the
evidence is shaken as to render it unworthy of belief.
II. If the Court before whom the witness gives
evidence had the opportunity to form the opinion
about the general tenor of evidence given by the
witness, the appellate court which had not this benefit
will have to attach due weight to the appreciation of
evidence by the trial court and unless there are reasons
weighty and formidable it would not be proper to
reject the evidence on the ground of minor variations
or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite
possible for him to make some discrepancies. But
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incompatible with the credibility of his version that
the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching
the core of the case, hyper technical approach by
taking sentences torn out of context here or there from
the evidence, attaching importance to some technical
error committed by the investigating officer not going
to the root of the matter would not ordinarily permit
rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations
falling in the narration of an incident (either as
between the evidence of two witnesses or as between
two statements of the same witness) is an unrealistic
approach for judicial scrutiny. VI. By and large a
witness cannot be expected to possess a photographic
memory and to recall the details of an incident. It is
not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is
overtaken by events. The witness could not have
anticipated the occurrence which so often has an
element of surprise. The mental faculties therefore
cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to
person. What one may notice, another may not. An
object or movement might emboss its image on one
person’s mind whereas it might go unnoticed on the
part of another.
IX. By and large people cannot accurately recall a
conversation and reproduce the very words used by
them or heard by them. They can only recall the main
purport of the conversation. It is unrealistic to expect a
witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time
duration of an occurrence, usually, people make their
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people to make very precise or reliable estimates in
such matters. Again, it depends on the time-sense of
individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall
accurately the sequence of events which take place in
rapid succession or in a short time span. A witness is
liable to get confused, or mixed up when interrogated
later on.
XII. A witness, though wholly truthful, is liable to be
overawed by the court atmosphere and the piercing
cross examination by counsel and out of nervousness
mix up facts, get confused regarding sequence of
events, or fill up details from imagination on the spur
of the moment. The sub-conscious mind of the witness
sometimes so operates on account of the fear of
looking foolish or being disbelieved though the
witness is giving a truthful and honest account of the
occurrence witnessed by him.
XIII. A former statement though seemingly
inconsistent with the evidence need not necessarily be
sufficient to amount to contradiction. Unless the
former statement has the potency to discredit the later
statement, even if the later statement is at variance
with the former to some extent it would not be helpful
to contradict that witness.” [See Bharwada Bhoginbhai
Hirjibhai v. State of Gujarat 1983 Cri LJ 1096: (AIR
1983 SC 753) Leela Ram v. State of Haryana AIR
1995 SC 3717 and Tahsildar Singh v. State of UP
(AIR 1959 SC 1012)]”
35. In Balu Sudam Khalde and Anr. Vs State of
Maharashtra Criminal Appeal No. 1910 Of 2010, the Hon’ble
Supreme Court also dealt with the question as to how the testimony
of any injured eye witness is to be appreciated. The relevant
Digitally signed
observations are reproduced here as under: by VINEET
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“26. When the evidence of an injured eye-witness is to
be appreciated, the under-noted legal principles
enunciated by the Courts are required to be kept in
mind:
(a) The presence of an injured eye-witness at the time
and place of the occurrence cannot be doubted unless
there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence,
it must be believed that an injured witness would not
allow the real culprits to escape and falsely implicate
the accused.
(c) The evidence of injured witness has greater
evidentiary value and unless compelling reasons exist,
their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted
on account of some embellishment in natural conduct
or minor contradictions.
(e) If there be any exaggeration or immaterial
embellishments in the evidence of an injured witness,
then such contradiction, exaggeration or
embellishment should be discarded from the evidence
of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version
must be taken into consideration and discrepancies
which normally creep due to loss of memory with
passage of time should be discarded.
36. In assessing the value of the evidence of the
eyewitnesses, two principal considerations are whether, in the
circumstances of the case, it is possible to believe their presence at
the scene of occurrence or in such situations as would make it
possible for them to witness the facts deposed byDigitally
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secondly, whether there is anything inherently improbable or
unreliable in their evidence. In respect of both these considerations,
circumstances either elicited from those witnesses themselves or
established by other evidence tending to improbabilise their
presence or to discredit the veracity of their statements, will have a
bearing upon the value which a Court would attach to their
evidence. Although in cases where the plea of the accused is a mere
denial, the evidence of the prosecution witnesses has to be
examined on its own merits, where the accused raise a definite plea
or put forward a positive case which is inconsistent with that of the
prosecution, the nature of such plea or case and the probabilities in
respect of it will also have to be taken into account while assessing
the value of the prosecution evidence.”
EVALUATION OF ORAL TESTIMONY OF WITNESSES.
37. In view of the aforesaid legal propositions, this court
shall now analyze and appreciate the testimonies of
complainant/victim along with other witnesses on record. PW-1
Mahesh Gupta /complainant, who had sustained injuries, is the star
witness of the prosecution and he has deposed the entire incident in
a cogent manner. He has categorically deposed that accused Arjun
and Subhash (since P.O.) had borrowed an amount of Rs.3-4 lacs,
which was paid in installments in cash. He has further deposed that
on 03.09.2016, he received a missed call from accused Subhash
and upon calling him back, said accused asked him to take back his
money at Delhi Chicken Point. It has been further deposed that
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when complainant reached near gate of Mandi, he
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persons Ashu and Subhash and he thought Date:
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come to return money. Further, it has been deposed that in the
meanwhile accused Arjun also came there and all the accused
persons took him to a side where there was dark, while accused
Ashu started talking with him, accused Subhash took out one
chopper and said accused gave a blow on the head of complainant
as well as on his right-side face. Also, it has been deposed that
accused Arjun, who was carrying knife with him stabbed him due
to which he sustained injuries on his hand, left side face and back
and thereafter accused Subhash attempted to give a blow of
chopper on complainant’s neck and in order to save himself,
complainant raised his right hand, due to which, he sustained
injuries therein. In addition to this, it is pertinent to mention that
during the course of cross-examination, it has been stated by the
complainant that while accused Subhash was standing behind him
and accused Arjun was on his left side, but he has clarified that
accused Ashu had caught hold of him from the front, which clearly
indicates that the said accused was also acting in furtherance of the
common intention of all the accused persons, as the said accused
was the one, who had initially engaged the complainant in a
conversation when he was taken into a dark corner on the side of
the road, while the other accused persons attacked him thereafter.
It has been further deposed that due to the aforesaid assault/attack,
complainant fell down and raised an alarm, upon which, some
public persons, who were present nearby, started pelting stones at
the accused persons after which all three accused persons ran away
while throwing their weapons. Importantly, it has also been
deposed that complainant’s wife was informed about the incident
by one public person, when she had called on his mobile and it was
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told to her by the public person that the person to whom she had
made a call has died, as the public person was presuming the
complainant to be dead due to the injuries suffered by him.
38. It is worth mentioning that PW-1/complainant is the
victim himself and nothing has come on record to suggest that he
would let the real culprits go away unpunished and would falsely
implicate the accused persons. Moreover, his version with respect
to a money dispute between the accused persons (Subhash and
Arjun) and him i.e. motive in the present case, seems to be
corroborated by the testimony of PW-5/Mohd. Salim, who has
categorically deposed in his examination-in-chief that there was
some money dispute between the complainant and accused
Subhash as well as Arjun. Further, PW-5 has affirmed the
suggestion given by Ld. Addl. PP for the State as correct that
complainant used to lend money to accused Subhash and Arjun.
Also, the said witness has deposed during his cross-examination
that once or twice complainant demanded his money from accused
Subhash and Arjun in his presence. Also, PW-5 has affirmed a
suggestion given by Ld. Addl. PP for the State as correct that
accused Arjun telephonically informed and warned him not to go to
market because accused Subhash and Ashu had committed incident
with the complainant.
39. In addition to the above, the testimony of
PW-1/complainant has been corroborated by PW-3 Manoj Kumar
@ Nittu, who during the course of cross-examination by Ld. Addl.
PP for the State has admitted a suggestion as correct that he had
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stated to the police that there was some dispute between the parties
on the issue of money transaction. Further, he has also stated
during his cross-examination that at the time of telephonic
conversation with Mahesh, accused Subhash had become angry
and took out a chicken cutter, but the said witness snatched and
kept the same and thereafter accused persons i.e. Subhash and
Ashu went away from there. Further, he has also admitted a
suggestion as correct that he came to know that a quarrel had taken
place between complainant and accused persons due to which
complainant sustained injuries. Importantly, the said witness has
also deposed that he had telephonically called the complainant and
informed him that he should close his shop and return to his house
as there was a possibility of quarrel between him and accused
persons. Importantly, nothing has been brought on record to even
remotely suggest as to why the said witness would falsely
implicate the accused persons.
40. The version of the complainant has been further
substantiated by PW-6/Mohd. Amir during the course of his
testimony, wherein he has deposed that he along with accused
Arjun went towards Subzi Mandi where he saw complainant and
accused Subhash talking to each other and in the meantime,
accused Ashu also reached at the spot, while the said witness
dropped accused Arjun there too. During the course of cross-
examination, the said witness has stated that complainant used to
demand money from accused Subhash and Arjun. Also, the
witness has denied the suggestions given to him on behalf of
accused Arjun that there was no money transaction between
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complainant and said accused or that accused Arjun was not
present at the spot or that said witness has not given lift to accused
Arjun on his motor cycle or that he was deposing falsely at the
instance of complainant. Pertinently, there is nothing on record to
indicate that the said witness was deposing at the behest of
complainant or that he has any motive to falsely implicate the
accused persons in the present matter.
41. Further, the version of complainant has also been
corroborated to a certain extent by PW-7 Gaurav, who is an
independent public person, as he has categorically stated during his
examination-in-chief that while he was going on foot towards
Subzi Mandi side of Nand Nagri, he saw a fighting at Mandi
Chowk and when he approached towards the spot, he further saw
three persons running while two of them went in the direction from
where he was coming and the third one in the gali on his right side.
Further, he has deposed that when he reached the place of incident,
he saw one person lying on the road in injured condition and he
could recognize him as Mahesh (complainant) i.e. uncle of his
friend namely Ramesh Kumar Gupta. This witness was not cross
examined on behalf of any of the accused persons. Although, PW7
has not identified the accused persons, but it is clear that in a way,
he has confirmed the incident which took place involving the
complainant.
42. In addition to the above, PW-9 Dr. Mritunjay has
stated that he examined injured Mahesh Gupta and prepared the
MLC which has been proved by him as Ex.PW-9/A. Perusal of the
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said MLC, also corroborates the version of complainant that he was
severely injured while he was attacked by the accused persons, as a
total number of nine injuries were inflicted by the accused persons
upon the complainant as per the said MLC. Further, the version of
complainant that he was attacked by accused persons by a chopper
and knife, which were dropped at the spot, has been substantiated
by reading together the testimonies of PW-4 SI Dinesh Kumar as
well as that of PW-12 Saurabh Pathak, Junior Forensic/Chemical
Examiner (Biology), FSL, Rohini. It has been deposed by PW-4 SI
Dinesh Kumar that he lifted the chopper and knife from the spot,
prepared their sketch which are Ex.PW4/B and Ex.PW4/C
respectively. Further, he has deposed that MHC(M) produced the
chopper and knife during the course of his examination and he
identified the said weapons as Ex. P1 & Ex. P2 respectively and
also stated that said weapons had blood stains on them. Further,
upon sending the aforesaid weapons to the FSL concerned for the
purpose of analysis, a report was filed by PW-12 Saurabh Pathak,
as per which, the blood stains on the chopper as well as knife were
found to be of human origin and the blood on the chopper as well
as that of sample taken from the complainant on a gauge cloth
piece was found to be of the same group i.e. ‘B’. Even though the
aforesaid FSL report does not indicate blood of the same group on
knife as it gave a ‘no reaction’, but the said report when seen in
totality only goes about to lend credence to the version put forth by
the complainant. Also, it is worth mentioning that the accused
persons have simply denied all the incriminating evidence put to
them without offering any explanation in this regard and moreover
none of them have denied the happening of incident with
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complainant in their statement recorded u/s 313 CrPC nor have put
forth any defence in this regard by virtue of any suggestion.
Therefore, in view of above discussion, suffice it to state that
evidence on record has proved beyond reasonable doubt that
accused persons had indeed caused injuries to the complainant in
furtherance of their common intention.
43. Now, the only question that remains for the
consideration of this court is whether the offences with which
accused persons have been charged stand proved or not.
Pertinently, charge was framed under section 307/34 IPC against
the accused persons herein as well as Accused Subhash
(Proclaimed Offender), whereas a charge under sections 25/27
Arms Act was framed against Accused Arjun Vedi and Accused
Subhash (Proclaimed Offender). First of all, this court shall
proceed to ascertain as to whether Offences under S.25/27 Arms
Act have been proved by the prosecution or not. The relevant
provisions are reproduced hereinunder:
Section 25 Arms Act
25. Punishment for certain offences.
1[(1) Whoever–
(a) 2[manufactures, obtains, procures], sells, transfers,
converts, repairs, tests or proves, or exposes or offers for sale
or transfer, or has in his possession for sale, transfer,
conversion, repair, test or proof, any arms or ammunition in
contravention of section 5; or
(b) shortens the barrel of a firearm or converts an imitation
firearm into a firearm 3[or convert from any category of
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firearms mentioned in the Arms Rules, 2016 into any other
category of firearms] in contravention of section 6; or
*****
(d) brings into, or takes out of, India, any arms or
ammunition of any class or description in contravention of
section 11,
shall be punishable with imprisonment for a term which
shall not be less than 5[seven years but which may extend to
imprisonment for life] and shall also be liable to fine.
[(1A) Whoever acquires, has in his possession or carries any
prohibited arms or prohibited ammunition in contravention
of section 7 shall be punishable with imprisonment for a
term which shall not be less than [seven years but which may
extend to fourteen years] and shall also be liable to fine.
[Provided that the Court may, for any adequate and special
reasons to be recorded in the judgment, impose a sentence of
imprisonment for a term of less than seven years.]
XXXXXXX
27. Punishment for using arms, etc.–(1) Whoever uses any
arms or ammunition in contravention of section 5 shall be
punishable with imprisonment for a term which shall not be
less than three years but which may extend to seven years
and shall also be liable to fine.
(2) Whoever uses any prohibited arms or prohibited
ammunition in contravention of section 7 shall be punishable
with imprisonment for a term which shall not be less than
seven years but which may extend to imprisonment for life
and shall also be liable to fine.
(3) Whoever uses any prohibited arms or prohibited
ammunition or does any act in contravention of section 7 and
such use or act results in the death of any other
person, 2[shall be punishable with imprisonment for life, or
death and shall also be liable to fine.] Digitally signed
by VINEET
VINEET KUMAR
Date:
KUMAR 2024.12.20
16:23:41
+0530
____________________________________________________________________
FIR No. 778/16 State vs. Ashu Etc Page No.49/56
44. As per requirement of Section 25 Arms Act, weapons
should have been found in possession of the accused persons,
however, it is worth mentioning that it is not in dispute that
weapons in the present case i.e. Chopper and knife were dropped at
the spot while the accused persons are stated to have run away
from there, which clearly means that the said weapons were not in
possession of anyone. Therefore, Section 25 Arms Act is not made
out by any stretch of imagination. As far as Section 27 Arms Act is
concerned, the said provision pertains to usage of arms in
contravention of Section 5 or 7 Arms Act. However, it pertinent to
mention that no evidence has been led by the prosecution to even
remotely indicate that weapons seized herein fall within the ambit
of relevant provisions of Arms Act. Also, no notification issued by
the concerned administration in this regard has been proved by the
prosecution. Moreover, the said weapons were never put before the
complainant during his evidence, thus it may well be said that
offence u/s 27 Arms Act is also not made out. Accordingly, charges
u/s 25/27 Arms Act remain unproved against Accused Arjun Vedi.
45. Now, this court shall proceed to consider as to whether
charge under section 307 IPC has been proved by the prosecution
or not. The relevant provision i.e. 307 IPC, reads as under:
“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 murder, shall be punished with
imprisonment of either description for a term which may
extend to ten years and shall also be liable to fine; and if hurt
is caused to any person by such act, the offender shall be
liable either to [imprisonment for life], or to such
punishment as is hereinbefore mentioned. VINEET
Digitally signed
by VINEET
KUMARKUMAR Date:
2024.12.20
____________________________________________________________________
16:23:50 +0530FIR No. 778/16 State vs. Ashu Etc Page No.50/56
Attempt by life convicts: When any person offending under
this section is under sentence of [imprisonment for life], he
may, if hurt is caused, be punished with death.
46. Section 307 IPC provides that if a person 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 murder. In
the matter of State of Maharashtra Vs. Kashirao (2003) 10 SCC
434, the Hon’ble Apex Court has laid down the following
ingredients for section 307 IPC:
“The essential ingredients required to be proved in the case
of an offence under Section 307 are:
(i) that the death of a human being was attempted;
(ii) that such death was attempted to be caused by, or in
consequence of the act of the accused; and
(iii) that such act was done with the intention of causing
death; or that it was done with the intention of causing such
bodily injury as : (a) the accused knew to be likely to cause
death; or (b) was sufficient in the ordinary course of nature
to cause death, or that the accused attempted to cause death
by doing an act known to him to be so imminently
dangerous that it must in all probability cause (a) death, or
(b) such bodily injury as is likely to cause death, the accused
having no excuse for incurring the risk of causing such death
or injury.”
47. At this stage, it would be beneficial to refer to the
judgment of Hanif Usmanbhai Kalva Vs. State of Gujarat, 2015
SCC OnLine, Guj 1324 of Hon’ble Mr. Justice J.B. Pardiwala, as
his Lordship was then the Justice of Hon’ble Gujarat High Court.
VINEET VINEET KUMAR
Digitally signed by
KUMAR Date: 2024.12.20
____________________________________________________________________
16:24:00 +0530
FIR No. 778/16 State vs. Ashu Etc Page No.51/56
His Lordship discussed elaborately about the concept of intention
or knowledge for the offence u/s 307 IPC. The relevant
observations are reproduced here as under:
“24. Thus, from the above, the most important ingredient to
constitute the offence of an attempt to commit murder
punishable under section 307 of the Penal Code, 1860 is the
intention and knowledge. To attract the provisions of this
section, it is necessary for the prosecution to establish that
the intention of the accused was one of the three kinds
mentioned in section 300 of the Penal Code, 1860. A person
commits an offence under section 307, IPC when he has the
intention to commit murder, and in pursuance of that
intention, does an act towards its commission irrespective of
the fact whether that act is the penultimate act or not. Section
307 requires that the act must be done with such intention or
knowledge or in such circumstances that if death be caused
by that act, the offence of murder will emerge.
25. At least one thing is very clear that causing such injury
as would endanger life is not an essential condition for the
applicability of section 307 of the Penal Code, 1860. Even if
the injuries inflicted are simple in nature, that by itself
cannot be a ground for acquittal, if the offence otherwise
falls under section 307 of the Penal Code, 1860.
26. The word “intent” is derived from the word archery or
aim. The “act” attempted to must be with “intention” of
killing a man.
27. Intention, which is a state of mind, can never be
precisely proved by direct evidence as a fact; it can only be
deduced or inferred from other facts which are proved. The
intention may be proved by res gestae, by acts or events
previous or subsequent to the incident or occurrence, on
admission. Intention of a person can’t be proved by direct
evidence but is to be deduced from the facts and
circumstances of a case. There are various relevant
circumstances from which the intention can be gathered.
Some relevant considerations are the following:
1. The nature of the weapon used.
2. The place where the injuries were inflicted.
3. The nature of the injuries caused.
4. The opportunity available which the accused gets.”
Digitally signed
____________________________________________________________________
by VINEET
VINEET KUMAR
FIR No. 778/16 State vs. Ashu Etc Page No.52/56
KUMAR Date:
2024.12.20
16:24:10 +0530
48. In view of the aforesaid propositions of law, let us
now see that had the death of deceased been caused by the act of
accused, whether a case of culpable homicide not amounting to
murder or culpable homicide amounting to murder, would have
been made out. During the course of testimony of complainant
Mahesh Gupta, he has categorically deposed that accused Arjun
and Subhash (since P.O.) had borrowed an amount of Rs.3-4 lacs,
which was paid in installments in cash. He has further deposed that
on 03.09.2016, he received a missed call from accused Subhash
and upon calling him back, said accused asked him to take back his
money at Delhi Chicken Point. It has been further deposed that
when complainant reached near gate of Mandi, he saw accused
persons Ashu and Subhash and he thought that perhaps they had
come to return money. Further it has been deposed that in the
meanwhile accused Arjun also came there and all the accused
persons took him to a side where there was dark, while accused
Ashu started talking with him, accused took out one chopper and
accused Subhash gave a blow on the head of complainant as well
as on his right-side face. In addition to this, it has been deposed
that accused Arjun, who was carrying knife with him stabbed him
due to which he sustained injuries on his hand, left side face and
back and thereafter accused Subhash attempted to give a blow of
chopper on complainant’s neck and in order to save himself,
complainant raised his right hand, due to which, he sustained
injuries therein. It has been further deposed that due to the
aforesaid assault/attack, complainant fell down and raised an
Digitally signed
by VINEET
VINEET KUMAR
____________________________________________________________________
Date:
FIR No. 778/16 State vs. Ashu Etc KUMAR 2024.12.20
Page No.53/56
16:24:19
+0530
alarm, upon which, some public persons, who were present nearby,
started pelting stones at the accused persons after which all three
accused persons ran away while throwing their weapons.
Importantly, it has also been deposed that complainant’s wife was
informed about the incident by one public person, when she had
called on his mobile and it was told to her by the public person that
the person to whom she had made a call has died, as the public
person was presuming the complainant to be dead due to the
injuries suffered by him.
49. It is clear from the above evidence that the brutal
attack was an intentional one upon the complainant and it may also
be said that the same was executed after proper planning by all the
accused persons as complainant was deliberately called to a place
by way of a telephonic call. Further, it has also come on record that
there existed sufficient motive in the present case as complainant
had extended a hefty loan amount to two accused persons i.e.
Subhash and Arjun and he was called on the pretext of returning
the same to him. Further, it has also come on record that there was
some bad blood between the complainant and the accused persons
in relation to Delhi Chicken Point. Also, as per evidence on record,
the nature of weapons used to execute the attack on the
complainant were a meat chopper and a big knife, which were
found on the spot and their sketches along with photographs are
Ex. PW-4/B, Ex. PW-4/C & Ex. PW-19/A1 to A15 respectively.
Perusal of the same clearly reveals that the aforesaid weapons were
dangerous in nature and as per the testimony of complainant,
accused persons Subhash and Arjun were already carrying them at
Digitally signed
____________________________________________________________________
by VINEET
VINEET KUMAR
FIR No. 778/16 State vs. Ashu Etc Page No.54/56
KUMAR Date:
2024.12.20
16:24:27 +0530
the time of incident. Further, as per MLC i.e. Ex.PW-9/A on
record, the testimony of complainant/PW-1 is well corroborated as
a total of nine injuries were inflicted by the accused persons upon
the complainant, that too on vital body parts such as face and head
along with other body parts, which seems to indicate that the act
was done with intention to causing death. Pertinently, the number
of injuries sustained by the complainant and the weapons used for
committing the offence clearly points towards the state of mind of
the accused persons and their intention thereof to commit murder
of complainant, which may well be deduced from the facts and
circumstances of the present case. Further, intention of the accused
persons to commit the act can be inferred from the fact that it is not
as if the accused persons had went back on their own after
inflicting one or two injuries, but in the present case, the magnitude
of their ill-will could be ascertained from the fact that even after
inflicting as many as nine injuries, they had to run away out of
compulsion, as stones were being pelted at them by the public
persons when the complainant is stated to have raised an alarm. In
addition to this, the seriousness of injuries sustained/condition of
the complainant at the time of incident can very well be ascertained
from the fact that a public person had informed his wife over a
telephonic call that complainant had already died. Moreover, the
contention on behalf of accused persons that complainant had only
sustained simple injury, therefore, Section 307 IPC is not made out,
is without any merit as it is settled law that the most important
ingredient to constitute an offence u/s 307 IPC is intention and
knowledge and an injury that would endanger life is not an
essential condition for applicability of said provision. Suffice it to
Digitally signed
____________________________________________________________________
by VINEET
VINEET KUMAR
FIR No. 778/16 State vs. Ashu Etc Page No.55/56
KUMAR Date:
2024.12.20
16:24:41 +0530
state that even if the injuries are simple in nature that cannot be a
ground in itself to dilute the aforesaid provision, if otherwise the
offence is made out from the facts and circumstances of the case.
50. Thus, it is crystal clear from the foregoing discussion
that prosecution has been able to prove the offence u/s 307/34 IPC
against the accused persons beyond reasonable doubt.
Accordingly, accused Aashu and Arjun Vedi are convicted for the
offences u/s 307/34 IPC, whereas accused Arjun Vedi is acquitted
for the offence u/s 25/27 A. Act.
51. Let the convicts be heard on the point of sentence.
Digitally signed by VINEET VINEET KUMAR Date: KUMAR 2024.12.20 16:24:53 +0530 Announced in the open (Vineet Kumar) court on 20.12.2024 Addl. Sessions Judge-02 E-court/Shahdara/KKD/Delhi
____________________________________________________________________
FIR No. 778/16 State vs. Ashu Etc Page No.56/56
