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