Delhi District Court
State vs Sunny @ Babe @ Sunny Simon Etc on 23 April, 2025
FIR NO. 54/15
PS: BARAKHAMBA ROAD
IN THE COURT OF MS. KIRAN GUPTA: ADDITIONAL
SESSIONS JUDGE - 04 : NEW DELHI DISTRICT :
PATIALA HOUSE COURTS : NEW DELHI
DLND010019162015
FIR No. 54/15
PS: Barakhamba Road
(Around 10 years old case)
STATE VS. Sunny @ Babe & ors.
SC No. : 9097/2016
Date of offence : 19.05.2015
Accused : Sunny @ Babe @ Sunny Simon
S/o Sh. Soloman Philip
R/o 152/9, Railway Quarters,
Shankar Market,
Connaught Place,
New Delhi
State Vs. Sunny @ Babe & ors. Page no. 1 of 79
Digitally
signed by
Kiran Kiran
Date:
Gupta
Gupta 2025.04.23
14:38:55
+0530
FIR NO. 54/15
PS: BARAKHAMBA ROAD
Satish Kumar
S/o Laxmi Narayan
R/o A-5, H No. -12,
Himgiri Enclave, Sant Nagar,
New Delhi
Jitender @ Babu
S/o Jai Prakash
R/o 378, Unchi Jagah,
in front of Primary School,
Mandawali, Delhi
Saurav Chauhan
S/o Sh. Dalip Kumar
R/o 142/5, Minto Bridge,
Railway Colony, New Delhi
Plea of accused : Pleaded not guilty
Final Order : Accused Sunny @ Babe and
Jitender @ Babu are convicted
for the offence under S. 302/34
IPC.
Accused Saurav and Satish
are acquitted for the offence
under S. 304/34 IPC.
State Vs. Sunny @ Babe & ors. Page no. 2 of 79
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signed by
Kiran Kiran Gupta
Date:
Gupta 2025.04.23
14:39:03
+0530
FIR NO. 54/15
PS: BARAKHAMBA ROAD
Date of committal : 18.08.2015
Date of conclusion of
final arguments : 22.03.2025
Date of judgment : 23.04.2025
JUDGMENT
1. The accused persons are facing trial for the offences
u/s 302/34/304 Part I & Part II IPC.
BRIEF FACTS
2. The case of prosecution is that on 19.05.2015, PCR
call vide DD no. 34-A was received at PS Barakhamba Road. On
receipt of the said DD, when police officials reached at RML
Hospital, they found one person namely Biju Varghese was
brought dead. The IO SI Chander Prakash met the complainant
John Minj in the hospital, who gave the following statement.
” That he alongwith one Vijender are working as field
boys in Capital Express Courier, Stall No. 42, ShankarState Vs. Sunny @ Babe & ors. Page no. 3 of 79
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signed by
Kiran Kiran Gupta
Date:
Gupta 2025.04.23
14:39:09
+0530
FIR NO. 54/15
PS: BARAKHAMBA ROAD
Market, Delhi owned by Biju Varghese. That on
19.05.2015 at around 11 pm, Biju Varghese after ordering
food for them got down from the shop for leaving for his
house. After 5 minutes, they heard some noise from
outside the shop. When he alongwith Vijender came down
from the shop, they saw that four boys had caught hold of
Biju Varghese. One of them had caught hold Biju
Vargehese from the neck and the remaining three were
beating him. When he tried to intervene and save him, one
of the boys who was fat, pushed him. He then pulled Biju
Varghese on the floor and asked the remaining boys to
bring hammer or knife. In the meantime, Vijender also
tried to save Biju Varghese but those four boys continued
to beat him. During this, the fat boy took the helmet of
Biju Varghese and hit on his head several times. On seeing
this, he and Vijender went towards Sadar Bazar for taking
assistance of the police and ran towards the place where
they saw a PCR van. They informed the PCR van officials
about the incident. The PCR van reached with them on the
spot, where Biju Varghese was found lying in pool of
blood. He took Biju Varghese in the PCR to RML Hospital
where he was declared brought dead.”
2.1. On the basis of complaint/ statement of John Minj and
MLC, FIR under S. 302/34 IPC was lodged and investigation
was handed over to Inspector Swadesh Prakash. On spot
inspection, a lot of blood was found scattered on the floor. One
broken helmet and broken pieces of mirror of the helmet
alongwith broken pieces of maala were found on the spot. No eye
State Vs. Sunny @ Babe & ors. Page no. 4 of 79
Digitally signed
Kiran by Kiran Gupta
Date:
2025.04.23
Gupta 14:39:13
+0530
FIR NO. 54/15
PS: BARAKHAMBA ROAD
witness was found on the spot. The place of incident was
preserved and photographed. The exhibits were lifted from the
spot and the postmortem of the deceased was got conducted.
2.2. That on 21.05.2015, IO received DD No. 12A
according to which SI Rajender Kumar ATS, East District had
arrested Sunny Simon @ Babe under S. 41(1) Cr.P.C. He (Sunny
@ Babe) while in custody in kalandra disclosed about the
commission of the offence in the present FIR. Accordingly, copy
of the kalandra was taken and permission for interrogation of
accused Sunny @ Babe was taken and he was arrested in the
present case.
2.3. That on 22.05.2015, he was produced in muffled
face in the court and permission for his TIP was obtained,
however, he refused for the TIP. His PC remand was obtained on
25.05.2015. During PC remand, he disclosed about the
commission of the present offence and further stated that when
he heard the PCR siren after the commission of the offence,
hence, he alongwith his associates namely Satish @ Babbu,
State Vs. Sunny @ Babe & ors. Page no. 5 of 79
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signed by
Kiran Kiran
Date:
Gupta
Gupta 2025.04.23
14:39:18
+0530
FIR NO. 54/15
PS: BARAKHAMBA ROADSaurav @ Gunga and Jitender @ Babu ran away from the spot to
District Hathi Park. There he hid his clothes which he was
wearing at that time. At his instance, pointing out memo was
prepared and his clothes were recovered.
2.4. That on the basis of his disclosure statement, the
other accused persons/ associates namely Satish @ Babbu,
Saurav @ Gunga and Jitender @ Babu were arrested. The co-
accused Jitender @ Babu refused for his TIP. During TIP
proceedings of accused Satish Kumar and Saurav Kumar, they
were not identified by John Minj and Vijender Singh. However,
subsequently, these two witnesses identified accused Jitender as
the person who had caught hold of neck of Biju Varghese.
2.5. After completion of the investigation, charge-sheet
was filed against these four accused persons for the offence under
S. 302/34 IPC.
CHARGE
State Vs. Sunny @ Babe & ors. Page no. 6 of 79
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Kiran Kiran
Date:
Gupta
Gupta 14:39:28
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PS: BARAKHAMBA ROAD
3. After hearing arguments on the point of charge and
finding a prima facie case, charge for the offence u/s 302 IPC
was framed against the accused Sunny @ Babe and for the
offence under S. 304/34 IPC against accused Satish, Jitender and
Saurav, to which they pleaded not guilty and claimed trial.
Subsequently, amended charge for the offence under S. 302/34
IPC was framed against accused Jitender @ Babu on 31.05.2024.
PROSECUTION EVIDENCE
4. ADMITTED DOCUMENTS
a. FIR No. 54/2015 dated 19.05.2015
b. Certificate under S. 65-B Evidence Act regarding
FIR No. 54/2015
c. PM Report no. 233/15 dated 20.05.2015 and
subsequent opinion dated 26.06.2015
d. MLC No. E/1100157/15 of deceased Biju Varghese.
State Vs. Sunny @ Babe & ors. Page no. 7 of 79
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Kiran Kiran
Date:
Gupta
Gupta 2025.04.23
14:39:33
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FIR NO. 54/15
PS: BARAKHAMBA ROAD
5. Prosecution in order to prove its case has examined
following 29 witnesses.
A. PW1 HC Suresh Kumar proved the DD no. 34-A and
DD No. 21 A dated 19.05.2015 and 20.05.2015 as Ex.PW1/A and
Ex.PW1/B.
B. PW-2 Dr. Rahul Band and PW24 Dr. Sukhdeep
Singh
These witnesses proved the postmortem report of the
deceased Biju Varghese as Ex.PW2/A. They deposed that there
were a lot of external injuries found on the body of the deceased
as detailed in the report Ex.PW2/A. The cause of death was
combined effect of multiple injuries to head and contusion on
heart and lungs consequent upon blunt force impact to head and
chest which are collectively sufficient in ordinary course of
nature to cause death. All the injuries were ante-mortem in nature
and fresh in duration.
State Vs. Sunny @ Babe & ors. Page no. 8 of 79 Digitally signed Kiran by Kiran Gupta Date: 2025.04.23 Gupta 14:39:40 +0530 FIR NO. 54/15 PS: BARAKHAMBA ROAD
They further deposed that they received the weapon of
offence i.e. one black helmet for subsequent opinion. They gave
their subsequent opinion as Ex.PW2/B.
PW24 during his cross-examination deposed that out
of 13 injuries, all the injuries except injury no. 4 are possible by
the use of helmet. No single injury mentioned by him is
responsible for the death of deceased, but the death was the result
of combined effect of the aforesaid injuries. The injuries referred
except injury no. 4 can be possible by fist as it also cause blunt
force. Injury no. 4 is a light laceration and can be caused by the
use of nails. The scratches seen on the helmet produced by the IO
could be possible due to wear and tear.
C. PW3 John Minj is the complainant. His testimony in
detail shall be discussed in the later part of the judgment.
D. PW4 HC Rajbir deposed that on 20.05.2015, he was
working as MHC(M) PS B.K. Road. On that day, IO had
deposited with him one pulanda and the same was entered by
State Vs. Sunny @ Babe & ors. Page no. 9 of 79
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Kiran Kiran Gupta
Date:
Gupta 2025.04.23
14:39:50
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FIR NO. 54/15
PS: BARAKHAMBA ROAD
him at SI No. 561 in register no. 19. Again on that day, IO had
deposited with him 7 pulandas duly sealed and the same were
entered by him at SI No. 562 in register no. 19. On 27.05.2015,
IO had deposited with him the personal search of accused
Jitender and the same was entered by him at SI No. 564 in
register no. 19. On 17.06.2015, Pulanda at S No. 17 was sent to
HoD, Department of Forensic Medicine vide RC no. 23/21. On
24.06.2015, the case property belonging to Biju Varghese was
handed over to his wife. On 02.07.2015, vide DD No. 57B, HC
Kailash had deposited the helmet again in the maalkhana and
helmet was sealed with the seal of MT LHMC. On 24.07.2015,
the case property and sample seal were sent to RFSL,
Chanakayapuri, vide RC no. 27/21 through HC Pradeep which
were entered at SI No. 561. Vide the same RC, pulandas
mentioned at S No. 1, 2 & 7 mentioned in SI No. 562 were also
sent to HC Pradeep. On 18.01.2016, the report and the exhibits
were collected from RFSL and the pulanda was deposited in the
maalkhana. He proved the relevant entries in register no. 19 as
Ex.PW4/A and register no. 21 as Ex.PW4/B.
State Vs. Sunny @ Babe & ors. Page no. 10 of 79
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signed by
Kiran
Kiran Gupta
Gupta Date:
2025.04.23
14:39:56
+0530
FIR NO. 54/15
PS: BARAKHAMBA ROADHe during his cross-examination deposed that he had
handed over two copies of RC no. 23/21 and 27/21. He had
obtained a receipt Ex.PW4/DA from the carrier of the pulanda SI
Rajnish Sharma. He had only given the RC certificate and no
other document. He possessed only one copy of the specimen
seal of the IO Inspector Swadesh. The IO had deposited the seal
in original in the maalkhana with him and had also prepared the
copy of the sample seal which was also handed over to him. The
seal of the IO remained with him and it was never taken by the
IO. He had not prepared the memo of the original seal handed
over to him by the IO. The seal handed over by the IO is still
deposited with him. He admitted that there is no copy of the
sample seal in the record of the court file. He admitted that there
is no record whether the sample seal was triangle, quadrilateral,
square or circular.
E. PW-5 Abhilash proved the identification statement of
the dead body of Biju Varghese as Ex.PW5/A and the handing
over memo after postmortem as Ex.PW5/B.State Vs. Sunny @ Babe & ors. Page no. 11 of 79
Digitally signed
Kiran by Kiran Gupta
Date:
Gupta 2025.04.23
14:40:04 +0530
FIR NO. 54/15
PS: BARAKHAMBA ROADF. PW-6 Vijender @ Bijender. His testimony in detail
shall be discussed in the later part of the judgment.
G. PW7 is Ct. Rinku. He is the special messenger who
handed over the copy of the FIR to the concerned MM and other
Sr. Officers.
H. PW8 Ct. Jonny Kumar proved the photographs of
the crime scene as Ex.PW8/A and the negatives of the same as
Ex.PW8/B. He during his cross-examination deposed that he had
not made the said photographs with a digital camera. He deposed
that he had taken photographs Ex.PW8/A [1-11 colly] without
any manipulation of the scene of crime.
I. PW-9 Ct. Rajesh deposed that on 19.05.2015, IO
seized the clothes of the deceased and prepared the rukka and
gave it to him for registration of the case. He got registered the
present case and reached at Shankar Market, where he met the IO
and handed over the copy of FIR and rukka to the IO. He proved
the seizure memo of the pulanda as Ex.PW9/A.State Vs. Sunny @ Babe & ors. Page no. 12 of 79
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Kiran Kiran Gupta
Date:
Gupta 2025.04.23
14:40:19
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PS: BARAKHAMBA ROAD
J. PW-10 Subish A.R. proved the identification memo of
the dead body of Biju Varghese as Ex.PW10/A.
K. PW-11 Ct. Ankur deposed that on 19/20.05.2015, he
was posted at PP RML Hospital as duty constable. In the night,
one call was received by him from the CMO Room. He went
there. At that time, PCR personnel had brought one injured to the
hospital. Thereafter, doctor prepared MLC and handed over one
sealed pulanda having cloth inside the same alongwith one
sample seal. Some documents i.e. RC, voter ID card were also
found from the possession of the injured. He handed over the
sealed pulanda and sample seal alongwith the documents to IO
SI Chander Prakash. IO prepared the seizure memo Ex.PW9/A.During his cross-examination by the ld. Defence
Counsel, he admitted that the time recorded in DD No. 3A dated
20.05.2015 Ex.PW11/DX is 12:22 (00:22) AM and said DD was
written on the basis of his communication from the RML
hospital. At the time of preparation of MLC, there were twoState Vs. Sunny @ Babe & ors. Page no. 13 of 79
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Kiran Kiran
Date:
Gupta
Gupta 2025.04.23
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PS: BARAKHAMBA ROADpolice personnels. However, he does not remember the name of
the PCR police personnel. There was no other person except him,
deceased and the police personnel of the PCR. He admitted the
suggestion that the deceased was identified by two election ID
card, RC of the motorcycle bearing no. DL 6 SV 6779, PAN
cards of Biju Varghese and Reeni Mathew and some ATM cards.
He admitted that initially the identity of the deceased was not
possible, if, the documents of his identity were not found in the
pocket of the deceased.
L. PW-13 ASI Rameshwar deposed that in the
intervening night of 19/20.05.2015, he was working in PCR
New Delhi Zone. On that night, he was working as Incharge at
V-76 from 8 pm to 8 am. On that night they were on checking
duty. At about 11:08 pm, they reached opposite Super Bazar
Market and at that time some persons came running and one
person told them that a quarrel was going behind Shankar Market
and the assailants would kill their owner Biju Varghese. On this
information alongwith other PCR staff, he went in front of Stall
no. 42, Shankar Market. On reaching there, they found that oneState Vs. Sunny @ Babe & ors. Page no. 14 of 79
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Date:
Gupta
Gupta 14:40:32
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PS: BARAKHAMBA ROADperson was lying unconscious in injured condition. They took
him to RML hospital in PCR van and gave the information to
control room through wireless. He does not remember the name
of the person who informed them. They got admitted the injured
Biju Varghese in the RML hospital where he was declared
brought dead. His personal search was taken by the duty
constable. SI Chander Pal reached at the spot from PS
Barakhamba Road. On cross-examination by ld. Addl. PP for the
State, he admitted that the name of the informer was John Minj
who was employee of deceased Biju Varghese. He admitted that
due to lapse of time, he could not tell the name of the informer.
During cross-examination by the ld. Defence counsel,
he deposed that it was 11:05 PM of 19.05.2015 when they
reached to the place of incident. The PCR van no. V-76 had one
more police Ct. who was working as a driver. There were only
two including him and his driver Ct. Rajbir Singh. They had
loaded the injured in Innova in the middle seat. The driver Ct.
Rajbir Singh was driving the vehicle and he sat alongwith the
injured to avoid the situation of felling of injured from the seat toState Vs. Sunny @ Babe & ors. Page no. 15 of 79
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Kiran Kiran Gupta
Date:
Gupta 2025.04.23
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PS: BARAKHAMBA ROAD
the floor of the car. Hardly it might have taken one minute for
then in loading the inured in the police van Innova. He admitted
that there was no third person other than him and his driver and
the injured. He again deposed that for the help of injured (as he
was bulky in body), one another person was taken in the PCR
van. He deposed that he had not told the fact that another person
was taken for help of injured to the IO. He cannot tell any reason
as to why he had not disclosed this fact to the investigating
officer while giving his statement u/s 161 Cr.P.C. He had not
talked to the fourth person which he had taken from the mob
while traveling to the hospital. At that time, they did not feel any
need to know the identity of the fourth person. However, he had
told that he is employee of the injured. He denied that he had
improved his statement in the court. He denied that there was no
fourth person in the van.
He further deposed that after they reached to the
hospital, duty constable took jamatalashi of the injured in the
presence of doctor and his presence. At that time he, doctor, Duty
Ct., and that fourth person were there. The fourth person told himState Vs. Sunny @ Babe & ors. Page no. 16 of 79
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Kiran by Kiran Gupta
Date:
Gupta 2025.04.23
14:40:48 +0530
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PS: BARAKHAMBA ROADthat injured is his employer and also told him the name of the
injured as Biju Varghese. He denied the remaining suggestions
given by the ld. Defence Counsel.
He deposed that he was called at PS for recording his
statement u/s 161 Cr.P.C on 20.05.2015 at about 10-11 AM. His
statement u/s 161 Cr.P.C was not recorded in the hospital but it
was recorded in the PS. His duty hours were 8 PM on 19.05.2015
to 8 AM on 20.05.2015. He admitted that he had not submitted
the copy of the log book of V76 to the IO in reference to the
incident of the case. He had entered the fact in his V76 log book
in his own handwriting. He had entered complete story of taking
the injured to the hospital in the log book. He can show the log
book to the court. He produced the log book Ex.PW13/DA. He
admitted that there is no name of the persons mentioned in the
log book at the place of occurrence at relevant entry. He admitted
that it is not mentioned in the log book about the persons who
met while going to the hospital in PCR.
State Vs. Sunny @ Babe & ors. Page no. 17 of 79
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Kiran Kiran
Date:
Gupta
Gupta 14:40:55
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PS: BARAKHAMBA ROADM. PW14 HC Kailash deposed that on 02.07.2015, he
obtained subsequent opinion regarding weapon of offence with
inquest papers and came back to PS and handed over the
subsequent opinion alongwith inquest papers to IO and deposited
the case property i.e. the helmet vide entry no. 57-B in the
maalkahana.
N. PW15 ASI Jai Bhagwan is the duty officer who
proved the DD no. 3A as Ex.PW15/A, copy of FIR as
Ex.PW15/B, endorsement on rukka as Ex.PW15/C and
certificate under S. 65-B IEA as Ex.PW15/D. The DD no. 4A and
5A as Ex.PW15/E and Ex.PW7/D1. He proved the roznamcha
register DD No. 12A dated 21.05.2015 as Ex.PW15/F.O. PW16 SI Sushila deposed that on 21.05.2015, she was
working as duty officer from 8 am to 4 pm. On that day at 1:17
pm, an information was received from SI Rajender from ATS
regarding arrest of accused Sunny under S. 41(1) Cr.P.C. He
disclosed his involvement in the present FIR. He was produced
before the Ld. MM, Karkardooma. On receiving the saidState Vs. Sunny @ Babe & ors. Page no. 18 of 79
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Kiran
Kiran Gupta
Gupta Date:
2025.04.23
14:41:03
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PS: BARAKHAMBA ROADinformation, she recorded DD no. 12A and handed over the copy
of the same to MHC(R). She also proved the original roznamcha
register DD no. 12A dated 21.05.2015 as Ex.PW15/F.P. PW17 Vireshwar Dayal deposed that on 19.05.2015
he was posted at PCR as computer operator. At about 11:33 pm,
he received a call from ASI Rameshwar, which he recorded vide
PCR form Ex.PW17/A. He proved the certificate under S. 65-B
IEA as Ex.PW17/B on behalf of SI Harish Chand, Nodal Officer.
Q. PW18 Inspector Ajay was the Incharge of the Crime
Team. He deposed that he inspected the spot between 12:50 am
to 2:10 am on 20.05.2015. the injured was already sent to
Hospital. One black color helmet was lying at the spot in damage
condition. After inspection, he prepared his report as
Ex.PW18/A.He during his cross-examination by the ld. Defence
Counsel admitted that no chance finger prints were lifted from
the spot despite efforts.
State Vs. Sunny @ Babe & ors. Page no. 19 of 79
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signed by
Kiran Kiran
Date:
Gupta
Gupta 2025.04.23
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PS: BARAKHAMBA ROADR. PW19 Inspector Rajender Kumar & PW20 HC
PankajPW19 Inspector Rajender Kumar deposed that on
21.05.2015, he was working as SI in AATS East District, New
Delhi. On that day, on receiving the information, he alongwith
PW20 HC Pankaj & other police officials went to Surajmal
Park at about 4:35 am vide DD no. 7A Ex.PW19/B. At Surajmal
Park, he requrested 2-3 public persons to join investigation, but
none agreed. Due to paucity of time, PW19 could not give
written notice to public persons who refused to join
investigation. After about 35-40 minutes, accused Sunny came
from side of Cross River Mall. The secret informer pointed
towards him and identified him as Sunny @ Babe. On pointing
out of the secret informer, they apprehended him. On
interrogation, accused Sunny disclosed that he alongwith his
accomplices Saurav, Babu and Satish had murdered a person last
night in the area of Shankar Market by giving leg, fist and helmet
blows to that person. He was taken to their office and was
interrogated. He told that his accomplice Saurav was residing inState Vs. Sunny @ Babe & ors. Page no. 20 of 79
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Date:
Gupta
Gupta 14:41:21
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PS: BARAKHAMBA ROADDaryaganj and is driver by profession. Satish was residing in
Burari and is having a dhobi ghat at ITO. Babu had a fruit shop
in Shivaji Bridge Fruit Market. After coming back to their office,
they made DD no. 4 Ex.PW19/A regarding their arrival and
arrest of accused Sunny @ Babe. PW19 proved the DD no. 12 as
Ex.PW19/C. PW19 deposed that he informed the PS B.K.Road
regarding the arrest of accused Sunny @ Babe and provided the
relevant documents to the IO of the case.
During cross-examination, PW19 admitted that no
disclosure statement of the accused was recorded by him as
nothing was disclosed by the accused.
S. PW21 Inspector Mahesh proved the scaled site plan
as Ex.PW21/A. He denied all the suggestions given by the ld.
Defence Counsel during cross-examination.
T. PW25 Satender Patwal proved the CAF alongwith
call detail records from 01.01.2015 to 20.05.2015 and location of
mobile numbers 750357701 in the name of Saurav Chauhan asState Vs. Sunny @ Babe & ors. Page no. 21 of 79
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Date:
Gupta
Gupta 14:41:27
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PS: BARAKHAMBA ROADEx.PW25/A to Ex.PW25/B; mobile no. 8285853319 in the name
of Saurav Chauhan as Ex.PW25/C to Ex.PW25/D. He proved the
cell ID chart of the said mobile phone as Ex.PW25/E (colly) and
certificate under S. 65-B IEA as Ex.PW25/F.U. PW26 Inspector Chander Prakash is the initial IO
who proved the DD no. 34A Ex.PW1/A, seizure memo
Ex.PW9/A, statement of John Minj as Ex.PW3/A. He prepared
the rukka Ex.PW26/A and got the FIR registered. He deposed
that from the spot, PW27 seized the exhibits vide memo
Ex.PW26/B. The proved seizure memo of the exhibits received
from the hospital after postmortem of deceased as Ex.PW26/C.
He identified the pieces of tiles having blood stains as
Ex.PW26/P1; piece of cloth having brown stains as Ex.PW26/P2
and Ex.PW26/P3; helmet as Ex.PW26/P4; gauze piece
containing blood of deceased as Ex.PW26/P5; blood stained
earth control as Ex.PW26/P6 and Ex.PW26/P7; three broken
pieces of visor of the helmet as Ex.PW26/P8; 7 small pieces of
broken visor of helmet Ex.PW26/P9; one broken maala of whiteState Vs. Sunny @ Babe & ors. Page no. 22 of 79
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Date:
Gupta
Gupta 2025.04.23
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PS: BARAKHAMBA ROADbeads having symbol of metal cross as Ex.PW26/P10. He
deposed that all these articles were seized from the spot.
V. PW28 Dr. Kanak Lata Verma, Asst. Director, RFSL,
proved her detailed report dated 17.12.2015 as Ex.PW28/A.W. PW29 Dr. V. Sankaranarayanan proved the
biological and serological examination report as Ex.PW29/A and
Ex.PW29/B, respectively.
X. PW12 HC Pradeep, PW14A HC Ramphool , PW22
Inspector Rajnish Sharma, PW23 Inspector Rajesh Kumar
and PW27 Inspector Swadesh KumarPW23 Inspector Rajesh Kumar deposed that on
21.05.2015, he was posted as SI at PS B.K. Road. On that day, he
joined investigation of the case with PW22 and HC Chander
Prakash. They went to Karkardooma Court. IO had collected the
kalandra of accused Sunny from SI Rajender Kumar, SpecialState Vs. Sunny @ Babe & ors. Page no. 23 of 79
Digitally signed
Kiran by Kiran Gupta
Date:
2025.04.23
Gupta 14:41:48
+0530
FIR NO. 54/15
PS: BARAKHAMBA ROADStaff. IO moved the application for interrogation of accused
Sunny and after interrogation, arrested him vide memo
Ex.PW23/A.PW-12 HC Pradeep, PW14A Ramphool & PW22
Inspector Rajnish Sharma & PW23 Rajesh Kumar deposed
that they joined the investigation of the case with PW27
Inspector Swadesh Kumar on 26.05.2015. During
investigation, PW27 interrogated accused Sunny. He gave
disclosure statement Ex.PW12/A. He disclosed that he alongwith
his associates namely Satish @ Pappu, Saurav @ Gunga and
Jitender @ Babu had murdered Biju Varghese. He further
disclosed that accused Jitender @ Babu had caught hold the neck
of the deceased, other accused Saurav had caught hold of his leg,
accused Satish caught hold of the hands and he (accused Sunny)
gave helmet blows on the head of the deceased.
PW14A & PW22 further deposed that on that day,
accused Sunny took them to the place of incident i.e. near stall
no. 42 Shankar Market and pointed out to the place where he
State Vs. Sunny @ Babe & ors. Page no. 24 of 79
FIR NO. 54/15
PS: BARAKHAMBA ROAD
alongwith his associates namely Babu, Satish and Saurav had
committed murder of Biju Varghese. He pointed out the place of
incident vide memo Ex.PW14/A.
PW22 & PW23 further deposed that on 27.05.2015,
they received the call from IO / PW27 who instructed them to
bring accused Sunny under Ranjeet Singh Flyover beside Hotel
Lalit behind PS B.K. Road and other police staff. He alongwith
PW12, PW14A, HC Naveen and accused Sunny reached at the
said place, where IO was present. IO informed them that he had a
secret information that accused namely Babu and Satish wanted
in this case would be gathering at Ramleela Ground, Kamla
Market after about 15-20 minutes and they are trying to leave
Delhi. After that, they and accused Sunny went to main gate
Ramleela Ground in a government vehicle. On reaching there, IO
requested 6-7 public persons to join the investigation but none
agreed. Without wasting time, they entered into Ramleela
Ground from the main gate. Three persons were present behind
the stage. Accused Sunny identified those persons as Babu,
Saurav and Satish who were involved in the murder of Biju
State Vs. Sunny @ Babe & ors. Page no. 25 of 79
Digitally
signed by
Kiran Kiran Gupta
Date:
Gupta 2025.04.23
14:42:30
+0530
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PS: BARAKHAMBA ROAD
Varghese. They were apprehended and arrested and their
personal search was conducted vide memos Ex.PW12/B to
Ex.PW12/G. They further deposed that accused Satish gave
disclosure statement Ex.PW12/H, Saurav and Jitender gave
disclosure statement Ex.PW12/I and Ex.PW12/J.
PW-12, PW14A, PW22, PW23 & PW27 further
deposed that on 30.05.2015, accused Jitender took them to the
place of incident and at his instance, PW27 prepared the pointing
out memo of the place of incident Ex.PW14/B.
PW27 further deposed that before sending accused
Sunny to JC, he moved the TIP application on 22.05.2015
Ex.PW23/B whereby he refused to participate in TIP
proceedings. He proved his application for 3 days PC of accused
Sunny as Ex.PW23/C. He recorded the disclosure statement of
accused Jitender Ex.PW23/J. He moved the application for TIP
of accused Jitender Ex.PW27/D. He identified the helmet which
was seized vide memo Ex.PW26/B as Ex.PW3/P1.
State Vs. Sunny @ Babe & ors. Page no. 26 of 79
Digitally
signed by
Kiran Kiran
Date:
Gupta
Gupta 14:42:36
2025.04.23
+0530
FIR NO. 54/15
PS: BARAKHAMBA ROADPW12 deposed that on 24.07.2015, he deposited the
pulandas in the FSL vide RC no. 27/21 Ex.PW4/B and proved
the receipt Ex.PW12/PA. PW22 further deposed that on
17.06.2015 on the instruction of the IO, he deposited the pulanda
containing one helmet from maalkhana in the Department of
Forensic Science, LHMC vide RC no. 23/21/15.
In addition to the abovesaid documents, PW27 also
proved the site plan Ex.PW27/A. DD no. 57B dated 02.07.2015
as Ex.PW27/B; MLC of deceased dated 19.05.2015 Ex.PW27/C;
his application for subsequent opinion Ex.PW27/D; authorization
letter in favor of HC Kailash Chand for collecting subsequent
opinion Ex.PW27/E; request to issue PCR form addressed to
DCP PCR Ex.PW27/F; PCR form as Ex.PW27/G; copy of TIP
proceedings pertaining to accused Sunny & Jitender as
Ex.PW27/H & Ex.PW27/I, respectively.
PW12 & PW14A during their cross examination
denied all the suggestions given by ld. Defence Counsel.
State Vs. Sunny @ Babe & ors. Page no. 27 of 79
Digitally
signed by
Kiran Kiran
Date:
Gupta
Gupta 2025.04.23
14:42:42
+0530
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PS: BARAKHAMBA ROADPW22 during his cross-examination deposed that IO
recorded his statement four times on 26.05.2015, 27.05.2015,
30.05.2015 & 17.06.2015. The disclosure statement of accused
Sunny was recorded in the police station on 26.05.2015 during
police custody in his presence. The copy of the DD entry of
departure is not on record. That accused Sunny was not in
muffled face when the three other accused were arrested.
PW23 during his cross-examination deposed that on
21.05.2015 complainant was not accompanying him to the
Karkardooma court. The disclosure statement of accused Sunny
Ex.PW12/A was recorded at police station during police custody.
He cannot say whether accused was in muffled face or not when
his PC remand was obtained by the IO. He does not remember,
if, accused Sunny was in muffled face on 27.05.2015 when he
was taken to Ranjeet Singh flyover near C.P. He denied the
remaining suggestions put to him by ld. Defence Counsel.
State Vs. Sunny @ Babe & ors. Page no. 28 of 79
Digitally
signed by
Kiran
Kiran Gupta
Gupta Date:
2025.04.23
14:42:49
+0530
FIR NO. 54/15
PS: BARAKHAMBA ROADPW27 during his cross-examination deposed that he
does not remember the reason as to why he did not send the
weapon of offence i.e. the helmet for serological examination.
He admitted that he had not investigated about the location and
call details of accused Sunny on the date of incident. He had
recorded the disclosure statement of accused Sunny but he does
not remember the date and time when his disclosure statement
was recorded. He admitted that TIP of accused Satish and Saurav
failed.
STATEMENT OF ACCUSED
6. After completion of prosecution evidence, all
incriminating material as appearing in the evidence was put to
the accused persons under Section 313 Cr.PC. They pleaded
innocence and stated they have been falsely implicated in this
case.
Digitally signed
Kiran byDate:Kiran Gupta
Gupta 2025.04.23
14:42:59
+0530
State Vs. Sunny @ Babe & ors. Page no. 29 of 79
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PS: BARAKHAMBA ROAD
ARGUMENTS ON BEHALF OF Ld. ADDL PP FOR THE
STATE
7. It is argued by Ld. Addl. PP for the State that in the
present case, charge against the accused persons is that on
19.05.2015, at about 11:00 pm, all the accused persons in
furtherance of their common intention gave beatings to Biju
Varghese by fists and kick blows and also with the helmet and
committed his murder. That charge u/s 302/34 IPC is framed
against accused Sunny @ Babe and Jitender @ Babu. The
charge u/s 304 Part (I)(II) /34 IPC is framed against accused
Satish and Saurav Chauhan.
7.1. It is submitted that as per postmortem report, in total
13 injuries were found on the body of deceased and all the
injuries were ante-mortem. The doctor also gave the subsequent
opinion that all the injuries except injury no. 4 can be caused by
helmet (weapon of offence). That accused Sunny @ Babe and
Jitender @ Babu refused for their judicial TIP, however, both the
accused persons were duly identified by PW3 and PW6 during
State Vs. Sunny @ Babe & ors. Page no. 30 of 79
Digitally signed
Kiran by Kiran Gupta
Date:
Gupta 2025.04.23
14:43:06 +0530
FIR NO. 54/15
PS: BARAKHAMBA ROAD
investigation and also during trial. Both PW3 and PW6 also
clearly specified the role of both accused Sunny @ Babe and
Jitender @ Babu during their testimony and deposed that accused
Sunny hit the deceased with the helmet and accused Jitender
caught hold of the neck of the deceased. That PW-3 also deposed
that after seeing the incident, he went to inform about the
incident to the nearby PCR van where ASI Rameshwar was
found. PW-13 ASI Rameshwar corroborated the fact that PW-3
John came and informed about the incident and thereafter he took
injured to the hospital. The fact that ASI Rameshwar took
deceased to the hospital is clearly shown in the MLC of the
injured. The fact that ASI Rameswar took the deceased to the
hospital is also corroborated by PW-17 who deposed that he
received a call from ASI Rameshwar Incharge PCR van who
informed that they were taking injured to the hospital and he
reduced the said information in PCR form Ex.PW17/A.
7.2. It is submitted that there is no material contradiction
in the testimony of PW-3 and PW-6. PW26 Chander Prakash also
deposed that it is mentioned in the rukka that when he reached at
State Vs. Sunny @ Babe & ors. Page no. 31 of 79
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signed by
Kiran Kiran Gupta
Date:
Gupta 2025.04.23
14:43:13
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PS: BARAKHAMBA ROAD
the hospital, complainant John Minj was found in the hospital on
the intervening night of 19/20.05.2015 and he recorded his
statement.
7.3. It is submitted that there is no delay in the
registration of FIR. The incident is of 19.05.2015 at 11:05 pm
and FIR was registered on 20.05.2015 at about 01:30 am. The
helmet used in the offence which belonged to the deceased was
also found lying at the spot and it was sent to FSL, where blood
of human was found on it. It is submitted that nothing has come
up in the testimony of PW-3 and PW-6 that they had motive to
falsely implicate the accused persons and also their presence at
the spot is also proved through the testimony of PW-13. PW13
ASI Rameshwar deposed that complainant John Minj was the
person who informed him about the incident and accompanied
him to the hospital. PW-26/IO also deposed that he found
complainant John Minj in the hospital.
7.4. It is prayed that since the prosecution has proved the
case beyond pales of reasonable doubt against the accused
State Vs. Sunny @ Babe & ors. Page no. 32 of 79
Digitally
signed by
Kiran Kiran Gupta
Date:
Gupta 2025.04.23
14:43:28
+0530
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PS: BARAKHAMBA ROAD
persons, they be convicted for the offences for which charges
have been framed against them.
ARGUMENTS ON BEHALF OF LD. DEFENCE COUNSEL
8. It is argued by Ld. Defence Counsels for accused
Sunny and Jitender that they have been falsely implicated in the
present case by the IO. It is argued that the prosecution has relied
upon the testimony of PW3 John Minj, who is stated to be the
eye witness in the present case. It is submitted that the fact that
PW-3 John Minj is not an eye witness is apparent from the
documents relied upon by the prosecution. It is submitted that as
per prosecution, John Minj alongwith the PCR officials took the
injured / deceased to the hospital, however, his name is neither
mentioned in the MLC nor in the testimony of PW-11 Duty
Constable who had categorically deposed that except the PCR
officials, injured and doctor no other person was present in the
hospital. It is submitted that John Minj is neither the witness in
the inquest papers, identification memos and recovery memo of
the articles recovered from the body of deceased. Even PW-13
State Vs. Sunny @ Babe & ors. Page no. 33 of 79
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signed by
Kiran Kiran Gupta
Date:
Gupta 2025.04.23
14:43:36
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PS: BARAKHAMBA ROAD
deposed that he does not remember the name of the person who
informed them. He produced the log book Ex.PW13/DA,
however, the name of the person who informed is not mentioned
in the log book. It is submitted that PW-11 deposed that the
identification of the deceased was done on the basis of
documents recovered from his possession and his identification
could not be possible without the said documents. It is argued
that if John Minj was present at the hospital, the question arises
as to why there was a need for identification of the deceased on
the basis of the documents recovered from the body of deceased.
It is further submitted that no blood was found on the clothes of
John Minj despite the fact that as per prosecution, he had
accompanied the injured to the hospital. It is submitted that all
these facts raise doubt about the presence of John Minj at the
spot, hence, his testimony to the effect that he is the eye witness
is also doubtful. It is further submitted that even the presence of
PW-6 on the spot is doubtful and hence no reliance can be placed
upon his testimony.
State Vs. Sunny @ Babe & ors. Page no. 34 of 79
Digitally
signed by
Kiran Kiran
Date:
Gupta
Gupta 14:43:53
2025.04.23
+0530
FIR NO. 54/15
PS: BARAKHAMBA ROAD8.1. It is further argued that the concerned IO did not
record the statement of the constable on duty in the hospital
namely Ct. Ankur on the date when the injured was taken to the
hospital. It was recorded subsequently. It is argued that the
prosecution has failed to prove any motive by the accused
persons to commit murder of Biju Varghese. The concerned
dhaba owner with whom the deceased had ordered food has not
been cited as witness in the present case. No other public persons
who were present on the spot have been cited as witness. PW-3
and PW-6 who being the employees of the deceased have been
deliberately cited as witnesses. They are interested witnesses.
8.2. It is submitted that as per prosecution, the weapon of
offence is the helmet. The said helmet was never sent for blood
analysis. No effort has been made by the IO to take the
fingerprints on the helmet. As per FSL result, the blood found on
helmet was of human & no reaction could be found on DNA
analysis with the blood of the deceased. It is submitted that the
burden to prove each and every fact independently is on the
prosecution, which the prosecution has failed to prove. It isState Vs. Sunny @ Babe & ors. Page no. 35 of 79
Digitally
signed by
Kiran Kiran Gupta
Date:
Gupta 2025.04.23
14:43:59
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PS: BARAKHAMBA ROAD
submitted that since the prosecution has failed to prove any
offence against accused Sunny and Jitender, they be acquitted for
the offence u/s 302/34 IPC.
8.3. It is argued by the counsels for accused Saurav and
Satish that none of the witnesses i.e. PW-3 and PW-6 have
identified these persons either during TIP proceedings or during
trial. It is submitted that PW-3 and PW-6 have categorically
deposed that Saurav and Satish were not the persons who were
present on the spot at the time of incident alongwith other co-
accused persons. It is prayed that since the material witnesses
have failed to identify accused Satish and Saurav and there is no
incriminating evidence against them, they be acquitted for the
offence u/s 304/34 IPC.
ANALYSIS AND FINDINGS
9. Heard arguments on behalf of ld. Addl. PP for the
State, ld. Defence counsel and perused the complete record file.
The accused Sunny @ Babe and Jitender are facing trial for the
State Vs. Sunny @ Babe & ors. Page no. 36 of 79
Digitally
signed by
Kiran Kiran
Date:
Gupta
Gupta 14:44:05
2025.04.23
+0530
FIR NO. 54/15
PS: BARAKHAMBA ROADoffence u/S. 302/34 IPC. Accused Saurav and Satish are facing
trial for the offence under S. 304(II) IPC. The prosecution in
order to prove the offence U/s.302 IPC against the accused has to
prove :
A. The presence of accused on the spot at the
time of incident.
B. His identification by the eye witness.
C. The injuries caused to the deceased and
medical opinion as regards cause of death.
D. The motive of the accused in causing
death of deceased.
10. The material witnesses of prosecution are PW3 John
Minj and PW6 Vijender @ Bijender. As per prosecution, they are
the eye witnesses of the incident. The entire case of prosecution
is based on the ocular testimony of PW3 and PW6.
11. PW3 John Minj during his testimony deposed that he
is employed with Capital Express Couriers at stall no. 42
Shankar Market, Delhi for the last about 5 years. Apart from him,
Vijender was also employed there. The owner of the said
company was Biju Varghese. He and Vijender were working as
State Vs. Sunny @ Babe & ors. Page no. 37 of 79
Digitally
signed by
Kiran Kiran
Date:
Gupta
Gupta 2025.04.23
14:44:11
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PS: BARAKHAMBA ROADfield boys in the said company. That on 19.05.2015 at about 10
pm, he was asked by Biju Varghese to bring food from nearby
dhaba. Biju Varghese was getting down from the market. After
about 5 minutes, when he came downstairs from the office,
which was situated on the first floor of stall no. 42, he saw that 3-
4 persons had caught hold of Biju Varghese and were beating
him. He tried to intervene in the situation, then accused Sunny
pushed him. Accused Sunny said that “Aaj Biju Varghese ka
kaam tamam kar denge”. Accused Sunny asked the other co-
accused persons to bring a hammer and knife. Accused Jitender
had caught hold of Biju Varghese from the neck from backside.
Accused Sunny picked up the helmet which was kept on the
motorcycle of Biju Varghese and struck the helmet repeatedly on
his head. He got frightened and went near the Super Bazar where
a PCR van met him and he came to the spot with the PCR Van.
Biju Varghese was picked from the spot and was taken to RML
Hospital. After examination in the hospital, he was declared
brought dead. IO recorded his statement Ex.PW3/A. He deposed
that there were other co-accused who were also beating Biju
Varghese but he cannot identify them. He does not know whether
State Vs. Sunny @ Babe & ors. Page no. 38 of 79
Digitally
signed by
Kiran
Kiran Gupta
Gupta Date:
2025.04.23
14:44:19
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FIR NO. 54/15
PS: BARAKHAMBA ROADaccused Saurav and Satish were present at the time of incident or
not. He had shown the place of occurrence to the police. He had
not identified any person, who was put to TIP. He went to Tihar
Jail for purpose of TIP but Jitender and Sunny refused for their
TIP.
11.1. He further deposed that prior to the incident about
1½-2 years ago, one person had come to the office of Biju
Varghese and demanded money. That person told Biju Varghese
that accused Sunny had sent him. He deposed that now he
remembers that the said person is accused Saurav. Biju Varghese
replied that he did not have money at that time and he will pay it
lateron. He deposed that the helmet belonged to deceased Biju
Varghese with which accused Sunny had given blows to the
deceased. He correctly identified the helmet Ex.PW3/P1 to be the
same as belonging to deceased and it to be the same which was
used by accused Sunny to give blows to the deceased.
11.2. Since, the witness was not disclosing complete facts,
he was cross examined by the ld. Addl. PP for the State. HeState Vs. Sunny @ Babe & ors. Page no. 39 of 79
Digitally
signed by
Kiran Kiran Gupta
Date:
Gupta 2025.04.23
14:44:25
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PS: BARAKHAMBA ROAD
during his cross-examination by ld. Addl. PP for the State
admitted the following suggestions:
a) That at about 11 pm, Biju Varghese had ordered for
dinner for him and Vijender.
b) That after 5 minutes, he heard noise of deceased Biju
Varghese and when he tried to intervene and free Biju
Varghese from the clutches of accused persons, one fat
person pushed him and pulled Biju Varghese on the
ground.
c) That even Vijender tried to intervene and help Biju.
d) He had stated to the IO in his statement Ex.PW3/C that
Sunny was a known criminal of the area and had come
back from Tihar Jail few days back. He had fired upon the
police officials at Shankar Market and that is why, Bijju
had not filed complaint against Sunny with police.
e) That on 07.08.2015 he had given statement to the IO
that on 27.05.2015 he had come alongwith Vijender to
Patiala House Court for some work and had identified
accused Sunny @ Babe and co-accused Jitender @ Babu
to be the same persons who were present on 19.05.2015
and accused Sunny as the same person who was saying to
his associates that they should bring hammer and knife
for murder of Biju. The second person identified asState Vs. Sunny @ Babe & ors. Page no. 40 of 79
Digitally
signed by
Kiran Kiran Gupta
Date:
Gupta 2025.04.23
14:44:35
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PS: BARAKHAMBA ROAD
Jitender had caught hold of the neck of Biju while other
two persons were beating him.
He denied following suggestions:
a) That he had identified two persons whose names were
lateron revealed to him as Saurav Chauhan and Satish
Kumar or that Saurav Chauhan was the same person, who
had caught hold the hand of Biju Varghese and that Satish
Kumar was the same person who had caught hold of the
legs of deceased Biju Varghese.
b) That he had stated in his statement under S. 161 Cr.P.C
dated 29.05.2015 Ex.PW3/B that he had otherwise
identified Saurav Chauhan and Satish Kumar in the TIP
proceedings. But on seeing them, he became frightened
and had fear that they might kill him, due to this reason
he did not identify them in TIP proceedings.
c) That he had stated to the IO in his statement dated
30.07.2015 Ex.PW3/C that on one night of February
2015, at about 9-9:30 pm, accused Sunny @ Babe had
come to the office and told Biju that, if, he wanted to
carry out his business in the area, he would have to pay
protection money but Biju refused to pay.
d) That he had told the IO that accused Sunny became
angry and started abusing Biju, on which he and Vijender
State Vs. Sunny @ Babe & ors. Page no. 41 of 79
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signed by
Kiran Kiran Gupta
Date:
Gupta 2025.04.23
14:44:51
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PS: BARAKHAMBA ROAD
intervened. Accused Sunny went away. He does not
remember that Sunny threatened Biju that he would have
to pay for his deeds.
e) That he had told the police in his statement Ex.PW3/C
that on refusal to pay money to Sunny, accused Sunny
alongwith his associates had murdered Biju.
11.3. PW3 during his cross-examination by Ld Defence
Counsel deposed that to avoid the apprehension of death or
attempt of assassination of deceased Biju, he requested accused
Sunny @ Babe, not to kill his employer and leave him. In reply
to his request, accused Sunny pushed him with his hands. After
he pushed him, he did not make any effort to intervene in the
quarrel and took an easy way to run out from the place of
occurrence and went to Super Bazar to call the police. Since, he
had information earlier that PCR van is generally stationed at the
Super Bazar, hence, he went to call the police. Vijender also ran
alongwith him from the place of occurrence to Super Bazar. He
remained at the place of occurrence for around 7-8 minutes.
There were many persons at the place of occurrence. There were
8-10 more persons other than him at the place occurrence. He
State Vs. Sunny @ Babe & ors. Page no. 42 of 79
Digitally
signed by
Kiran Kiran
Date:
Gupta
Gupta 2025.04.23
14:45:07
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PS: BARAKHAMBA ROADcould not retain the identity of the said persons. The accused
persons did not beat him with the helmet. Only one accused was
having the helmet. Three other assailants were not having any
other thing in their hands. The three assailants were without any
weapon of assault except Sunny @ Babe who was holding the
helmet. He deposed that he had categorically stated the identity,
brand, color of the helmet which the accused Sunny was holding
to the IO in his statement Ex.PW3/A and when the helmet was
seized by the IO, he had confirmed the helmet to be the same
which was used by accused Sunny. He further deposed that Biju
left the office after the instruction of the food to be taken by them
as he had some urgent work outside the office. He did not share
the dinner with them. He had eaten his dinner by 11:08 pm and
during the time when they were taking the dinner, Biju left the
office. He was holding his helmet with ISI Mark Black and his
mobile phone when he left the office. The helmet was not chin
covered helmet. It had got a wind glass. He deposed that the
helmet which his employer was carrying was the same which
was brought to the court on 12.07.2016.
State Vs. Sunny @ Babe & ors. Page no. 43 of 79
Digitally
signed by
Kiran Kiran
Date:
Gupta
Gupta 2025.04.23
14:45:14
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FIR NO. 54/15
PS: BARAKHAMBA ROAD11.4. He further deposed that he did not see the time,
when he heard the noise of the quarrel but it was about after 5
minutes of the departure of Biju. During the scuffle, he had lost
his cell phone. Vijender did not had his cell phone at the time of
incident. His cell phone was without number as he had purchased
it a day before. The cell phone of Vijender was out of battery and
was not operational.
11.5. He deposed that when the PCR reached the place of
occurrence, he got the injured into the PCR on one seat with the
help of police officials and sat on the other seat. While getting the
injured in the PCR he was holding the leg of the injured, there
were no blood stains on his clothes or hands and while
deboarding the injured from Gypsy, he was holding the leg side
portion of the injured / deceased. Vijender did not help them in
putting the injured into the PCR as he ran to the house of one of
the friends of injured at Paharganj. He wanted to talk to injured
but he did not answer. He does not know whether at that time,
injured was alive or dead.
State Vs. Sunny @ Babe & ors. Page no. 44 of 79
Digitally
signed by
Kiran Kiran
Date:
Gupta
Gupta 14:45:22
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PS: BARAKHAMBA ROAD11.6. He deposed that one police official was driving the
PCR van and the other was sitting to the left of the driver on the
front seat. When they reached the hospital, the nurses took the
injured inside the hospital and he remained with the PCR
because the nurses stopped him not to follow injured inside the
hospital. PCR police officials also remained with the PCR
vehicle. After about 10-15 minutes, nurses came back and
informed that injured has died. Thereafter, PCR police took him
to police station. After the SHO reached RML hospital, he
recorded his statement. He remained in the hospital continuously
till 1:30 am of 20.05.2015 from the time when he reached
hospital alongwith the injured. Except his statement Ex.PW3/A,
no other investigation was done at his instance in RML hospital.
Thereafter, he was taken to PS by SHO. No relative of Biju or his
friend met him at RML Hospital during the time he remained
there.
11.7. He deposed that it was around 8 strike of the helmet
which the accused had done on the head of deceased. He deposed
that he had stated before the court on 12.07.2016 that accused
State Vs. Sunny @ Babe & ors. Page no. 45 of 79
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Kiran by Kiran Gupta
Date:
2025.04.23
Gupta 14:45:31
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PS: BARAKHAMBA ROAD
Sunny had fired on police official is on basis of hearsey and he
had not seen the incident of firing. He denied the remaining
suggestions.
11.8. On cross-examination by counsel for accused
Jitender @ Babu on 09.07.2024 (recalled for cross-examination
after alteration of charge), he deposed that when he came down
after hearing the noise, he saw that three persons were quarreling
with his owner. 6-7 persons were watching them from some
distance. When he tried to intervene to save his owner, said three
persons threatened him that, if, he would intervene, they would
kill him also. He also suffered some injuries in the said process.
There was a street light near the place of incident, but it was a
little dim as it was covered with leaves of tree. He denied the
suggestion that he could not see the said three persons as there
was no light and it was dark. He and Vijender came downstairs
after 5 minutes of hearing the noise. While they were trying to
save their employer, they requested the other public persons who
were present on the spot to help but none of them came forward,
hence, he alongwith Vijender went to Super Bazar bus stand,
State Vs. Sunny @ Babe & ors. Page no. 46 of 79
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Kiran by Kiran Gupta
Date:
Gupta 2025.04.23
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PS: BARAKHAMBA ROAD
which is near the place of incident to call the PCR. They were
kept in police station for around 1 week. The accused were not
produced in the PS in his presence during the said one week. He
denied that he had identified the accused persons at the instance
of the IO. He volunteered that IO had only disclosed their names
to him after he had identified them. He denied that Jitender was
safai karamchari in the Shankar Market and was not involved in
the incident. He denied all the suggestions given by ld. Defence
Counsel and volunteered that accused Jitender caught hold of the
neck of his employer and usse niche gira diya.
12. PW6 Vijender during his testimony deposed that he
was working with courier company Capital Express alongwith
John Minj and Joseph as field workers. On 19.05.2015, Joseph
was not there as he went to his village in Kerala. It was Tuesday
and they worked till about 10 pm. The owner of the company
Biju Varghese told them that since they have got late, he ordered
food for them. Biju had also eaten some food with them. After
that he told them that he was leaving for his home and asked
them to lock the stall and he left with his helmet. He alongwith
State Vs. Sunny @ Babe & ors. Page no. 47 of 79
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Date:
Gupta 2025.04.23
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PS: BARAKHAMBA ROADJohn started taking meals. After some time they heard noises
“shor sharaba”. He did not go to see as to what had happened,
however, John went to see as to what had happened.
12.1. He further deposed that John also told him that
“maalik ko maar daala”. He immediately went to Paharganj to
get help from Chandran, friend of Biju Varghese and he informed
him that “kisi ne maalik to maar dia”. He made telephone call to
two friends of Biju namely Nand Kumar and another having
mobile number 9310114048 & 9582797001 from the mobile of
Chandran. Thereafter, he alongwith Chandran reached the spot
by auto, where he was informed that deceased has been shifted to
RML Hospital. They reached RML Hospital. Chandran went
inside the hospital and he remained outside. He was informed by
John Minj that Biju Varghese has expired. All the persons whom
they informed had come to the hospital. Thereafter, they went to
PS B.K.Road and remained there for many days for inquiry
purpose and also for their safety. That during investigation when
the police official inquired him about the physical appearance /
hulia of the assailants, he narrated him the hulia. The SHOState Vs. Sunny @ Babe & ors. Page no. 48 of 79
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Kiran Kiran
Date:
Gupta
Gupta 2025.04.23
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PS: BARAKHAMBA ROADconcluded that it was the hulia of accused Sunny. They were
interrogated for around 6-7 days in the police station
continuously. That accused Sunny refused to join the TIP. During
TIP proceedings, he was asked to identify accused persons by ld.
MM but he could not identify them. He had correctly identified
accused Jitender @ Babu & Sunny in the court.
12.2. During cross examination by Ld. Addl. PP, he was
confronted with his statement Ex.PW6/A. He admitted the
following suggestions:
a)That when he went outside the shop on hearing noise,
he had seen two persons assaulting Biju Varghese.
b) That he told the police that one of the boy who was
beating Biju Varghese with fists, his description was
bulky body, dim complexion, curly hair and he was
wearing T-shirt and nikkar and another boy who was thin
built was holding Biju Varghese by neck.
c) That the bulky built boy told that “Jaldi se Hathoda
and Chaku ley kar aao, aaj Varghese ka kaam tamam kar
detey hai”.
State Vs. Sunny @ Babe & ors. Page no. 49 of 79
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Date:
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PS: BARAKHAMBA ROAD
d) That he was pushed also once by the accused
resultantly he fell down.
e) He went along with John Minj to seek the assistance
of the police at Super Bazar.
He denied the following suggestions:
a) That he told to the police that two other boys were also
beating Biju Varghese.
b) That he told to the police that when that bulky built
body boy pushed John Minj he became afraid. He
volunteered that when that boy told about chaku and
hathora he became frightened.
c) That he had told to the police that the four boys had
beaten Biju Varghese mercilessly.
d) That he had told to the police that when that bulky boy
lifted the helmet and started beating Biju Varghese on his
head, he went for help of the police.
e) That he told to the police that he could identify all the
four boys who had beaten Biju Varghese.
12.3. He was also confronted with his statement
Ex.PW6/B from point A to A 1. He denied having made any such
State Vs. Sunny @ Babe & ors. Page no. 50 of 79
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Date:
Gupta
Gupta 14:46:41
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PS: BARAKHAMBA ROADstatement to the police. He denied the suggestion that during TIP
proceedings, he had identified accused Saurav Chauhan who was
holding hand of his owner and Satish Kumar who was holding
leg of his owner but due to fear that they may kill him, he had
not identified them during the TIP. He further denied the
suggestion that accused Saurav Chauhah and Satish Kumar were
involved in the killing of his owner Biju Varghese.
12.4. He was also confronted with his statement
Ex.PW6/C from point A to A 1. He denied having made any such
statement to the police. He denied the suggestion that in the
month of February, 2015 while he alongwith Biju Varghese and
John Minj were working at Stall no. 42, Capital Express Courier
office at around 09:00 to 09:30 PM, accused Sunny Babe came
to office and told Biju Varghese that, if, he had to run office
there, he will have to pay rupees and Biju Varghese refused to
pay rupees to Sunny Babe and thereafter, Sunny Babe became
angry and abused Biju Varghese. He denied the suggestion that
thereafter, Sunny Babe threatened Biju Varghese that he will face
consequences.
State Vs. Sunny @ Babe & ors. Page no. 51 of 79
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signed by
Kiran Kiran
Date:
Gupta
Gupta 14:46:52
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PS: BARAKHAMBA ROAD12.5. He was also confronted with his statement dated
07.08.2015 Ex.PW6/D from point A to A 1. He denied having
made any such statement to the police. Attention of witness was
drawn towards Saurav and Satish present in the court that day but
he failed to identify them as the assailants.
12.6. During his cross-examination by ld. Defence
Counsel, PW6 deposed that he had been the employee of
deceased Biju Varghese for the last 7 years before his
death/incident. That probably John Minj was sent to collect meal
for 2 persons from the dhaba in Shankar Market. After the meal
was brought by John Minj, it was around 10:00 PM when they
were to start consuming it. They had almost eaten half of the
meal when they heard the noise of the incident. He had not gone
down the stairs first of all, it was only John Minj who had gone
down. It was around 10 yards distance from the place where they
had their meals and the place of occurrence of the incident.
State Vs. Sunny @ Babe & ors. Page no. 52 of 79
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signed by
Kiran Kiran Gupta
Date:
Gupta 2025.04.23
14:47:07
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PS: BARAKHAMBA ROAD
12.7. He had given every information about the incident
in Dr. RML Hospital. It was around 12:00 to 12:30 when he had
informed to the police about the incident in Dr. RML Hospital.
He alongwith John Minj were taken by the police from RML
Hospital at around 01:00 AM of 19/20.05.2015, however, he
could not tell the time of reaching the PS. There were 5 persons
in number in the police vehicle and there were 3 police persons
and 2 of them i.e. John Minj and himself. They were kept in the
PS by the IO for the purposes of their interrogation and safety
and on many occasions they slept in the PS in the night and some
time they were let off by the police for their work.
12.8. He further deposed that from the place of occurrence
he went running straight to Pahargunj to the house of Mr
Chandran and brought him at the place of occurrence. Before
bringing Mr. Chandran (the friend of deceased) to the place of
occurrence, he had brought the police from Super Bazar and after
bringing police he had moved for the house of Chandran. When
he came back alongwith Chandran to the place of occurrence, he
did not meet the police official. Police had already taken Biju to
State Vs. Sunny @ Babe & ors. Page no. 53 of 79
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Kiran by Kiran Gupta
Date:
2025.04.23
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PS: BARAKHAMBA ROAD
the hospital alongwith John Minj and he along with Chandran
remained at the place of occurrence and met the Dhabe wala. He
met the dhabe wala and he informed him that the police had
taken John Minj to RML Hospital. He alongwith Chandran and
his son Vishnu went into an auto to the RML Hospital. There was
no other person when he reached the hospital except deceased
Biju Varghese, John Minj, Chandran and himself. At least there
were 15-20 police officials present at the RML when they
reached alongwith Mr. Chandran. Police did not record the
statement of Sh. Chandran.
12.9. He further deposed that when he reached the
hospital alongwith Vishnu and Chandran, he met various persons
including Bobby Joseph, Nand Kumar, Biju Varghese (friend of
deceased Biju Varghese), Aarif (landlord of the office), Fareed,
IO and he was not aware of the names of the rest persons who
were present in RML Hospital. He disclosed everything to the
police officials in the hospital. He and John Minj were
interrogated separately. He does not know whether signatures of
John Minj were obtained by the police officials, however, his
State Vs. Sunny @ Babe & ors. Page no. 54 of 79
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Kiran
Kiran Gupta
Gupta Date:
2025.04.23
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PS: BARAKHAMBA ROADsignatures were not obtained on any document. However, his
narration was recorded by the police.
12.10. He further deposed that police had not asked him
about the physical identification of the accused persons however,
they had collected many boys in the PS and asked him to identify
them. He identified one person in the PS. He had pointed out to
the police officer about the boy who was present among the boys
whose identification test was got done by the Police in the PS.
The accused who was caught by the police was not present on
the day of incident.
12.11. He had disclosed the physical identification [hulia]
of the accused persons involved in the incident. He did not have
the personal information of the refusal of the TIP proceedings by
the accused persons. He denied the suggestion that the accused
persons were identified by him at the behest of the IO. He
deposed that he never went to Patiala House Courts for
identification of accused persons. He had not disclosed in any of
his statement u/s 161 Cr.P.C. to the IO that during the judicialState Vs. Sunny @ Babe & ors. Page no. 55 of 79
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signed by
Kiran
Kiran GuptaGupta Date:
2025.04.23
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PS: BARAKHAMBA ROADremand, he had identified either of the accused persons involved
in the incident. He endeavored to save the life of the deceased
Biju Varghese and his overt act to save the life of the deceased
was verbal and he also tried to de-scuffle the deceased from the
accused, however, accused had pushed him and he was afraid of
pushing by the accused and therefore, he wanted to seek the help
of the police and ran away to the police post. Many staff of the
courier had reached the place of occurrence at his call but all the
courier persons did not save the deceased as they were
themselves frighted.
12.12. He denied the suggestion that neither he nor John
Minj were present at the place of incident. He denied the
suggestion that neither he nor John Minj were present in RML
Hospital on the date of incident i.e. 19.05.2015. He further
denied the suggestion that neither Chandran nor Vishnu had
reached the hospital or the place of occurrence. He denied the
suggestion that they both were not present in the hospital and
because of this reason, police was in difficulty to identify the
deceased. He denied the remaining suggestions.
State Vs. Sunny @ Babe & ors. Page no. 56 of 79
Digitally
signed by
Kiran
Kiran Gupta
Gupta Date:
2025.04.23
14:47:54
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PS: BARAKHAMBA ROAD
13. From the testimony of PW3 and PW6, it is evident that
they were present on the spot at the time of incident. They had
witnessed the entire incident. Both PW3 and PW6 have
described the entire incident that four persons had caught hold of
their employer Biju Varghese and they inflicted injuries to him
with fist blows, leg blows and one of them had caught hold of
Biju Varghese from the neck and the other person hit him with
the helmet multiple times.
ROLE OF ACCUSED SUNNY @ BABE AND JITENDER
14. PW3 and PW6 during their testimony have deposed
that they were present on the spot at the time of incident. PW3
has categorically deposed that when he tried to intervene in the
situation, then accused Sunny pushed him. PW3 further deposed
that accused Sunny said that “Aaj Biju Varghese ka kaam tamam
kar denge” and asked the other co-accused persons to bring a
hammer and knife. PW6 deposed that he saw accused Sunny was
giving blows with legs and fists “laat ghusa” to deceased Biju
State Vs. Sunny @ Babe & ors. Page no. 57 of 79
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Kiran by Kiran Gupta
Date:
2025.04.23
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PS: BARAKHAMBA ROAD
Varghese. He had seen accused Babu @ Jitender had caught hold
of Biju by his neck. Even PW3 categorically deposed that
accused Jitender had caught hold of Biju Varghese from the neck
from backside. PW3 further deposed that accused Sunny picked
up the helmet which was kept on the motorcycle of Biju
Varghese and struck the helmet repeatedly on his head. He
further deposed that accused Sunny gave atleast 8 strikes with the
helmet on the head of Biju Varghese. He further deposed that the
helmet belonged to deceased Biju Varghese with which accused
Sunny had given blows to the deceased. He has specifically
deposed that only one accused was having the helmet. Three
other assailants were not having any other thing in their hands.
The three assailants were without any weapon of assault except
Sunny @ Babe who was holding the helmet. He deposed that he
had categorically stated the identity, brand, color of the helmet
which the accused Sunny was holding.
14.1. Thus, both PW3 and PW6 have categorically
deposed that while accused Jitender had caught hold of Biju
Varghese from the neck, accused Sunny @ Babe gave multiple
State Vs. Sunny @ Babe & ors. Page no. 58 of 79
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Kiran Kiran Gupta
Date:
Gupta 2025.04.23
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PS: BARAKHAMBA ROAD
blows with helmet on his head. The blood stained helmet with
broken pieces of mirror belonging to deceased Biju Varghese was
recovered from the spot. As per the MLC, the deceased had
suffered 13 injuries. As per the postmortem report Ex.PW2/A,
the deceased had suffered following external injuries:
1. Contusion with swelling, builsh red in color of size 4.5
x 4.5 cm, present over left parieto-temporal region.
2. Abraded contusion, bluish red in color of size 3.5 x 3.5
cm, present over left side of forehead, 3 cm above left
supra-orbital margin.
3. Contusion, bluish red in color of size 4 x 3 cm, present
over right side of forehead, 2.5 cm above right supra-
orbital margin.
4. Multiple lacerations varying in size from 0.1 x 0.1 x
0.1 cm to 0.8 x 0.2 x 0.1 cm , with ragged margins,
present in an area of 2.5 x 2.2 cm over mid-forehead,
just above medical end of right supra-orbital margin.
5. Contusion, bluish red in color of size 4.5 x 4 cm
present over right eye witn sub-conjunctival
hemorrhage in underlying bulbar conjunctiva.
6. Contused lacerated wound with ragged margins of size
2 x 0.5 x 0.3 cm, present over left eye lid and left mid-
eyebrow. Lateral end of would is directed supero
laterally.
State Vs. Sunny @ Babe & ors. Page no. 59 of 79
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Date:
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PS: BARAKHAMBA ROAD
7. Contused lacerated wound with ragged margins of size
1.8 x 0.2 x 0.2 cm, present horizontally overlying
inferior orbital margin on left eye.
8. Contused lacerated wound of size 1 x 0.5 x 0.2 cm
with ragged margins, present over right side of root of
nose.
9. Lacerated wound with ragged margins of size 2 x 0.1 x
0.1 cm, present on right aspect of nose behind nasal
ala.
10. Contused lacerated wound with ragged margins of size
1.2 x 0.5 x 0.2 cm present on inner aspect of mid right
half of upper lip.
11. Contused lacerated wound of size 1 x 0.5x 0.2 cm with
ragged margins, present on outer aspect of mid right
half of lower lip.
12. Contused lacerated wound with ragged margins of size
1.1 x 0.5 x 0.2 cm, present on inner aspect of mid right
half of lower lip.
13. Abraded contusion, bluish red in color of size 4.5 x 4
cm present on inferior aspect of chin.
As per the postmortem report, all these injuries were
sufficient to cause death in the ordinary course of nature.
State Vs. Sunny @ Babe & ors. Page no. 60 of 79
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Date:
Gupta
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PS: BARAKHAMBA ROAD14.2. As per the subsequent opinion Ex.PW2/B, the
description of the helmet i.e. weapon of offence is as follows:
” Weight of helmet – 1080 gms, Height – 21 cm.
Dimensions of helmet’s inlet 27 x 21 cm.
Face shield of helmet is absent. Multiple irregular,
multi-directional scratches present all over outer aspect of
helmet. From inside cushion material is torn and stained with
dark brown stains (?blood).”
14.3. As per the opinion Ex.PW2/B, all the 13 injuries
except injury no. 4 alongwith their corresponding internal
injuries are possible with provided weapon of offence. Injury no.
4 could have been caused by hard and rough blunt force impact.
Internal injuries on heart and lungs could have been produced by
forceful blunt impact to chest like punching or kick.
14.4. PW-24 is an independent witness. He has
categorically deposed that these injuries are sufficient to cause
death in the ordinary course of nature and could have been
caused with the helmet i.e. the weapon of offence. Cross-
State Vs. Sunny @ Babe & ors. Page no. 61 of 79
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signed by
Kiran Kiran
Date:
Gupta
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PS: BARAKHAMBA ROADexamination of this witness did not reveal any inconsistencies
that could undermine the credibility of the evidence.
Consequently, it can be concluded that the fatal injuries inflicted
by accused Sunny @ Babe were the direct cause of the death of
Biju Varghese.
14.5. Thus, from the testimony of these witnesses, it is
proved that the cause of death was combined effect of multiple
injuries to head and contusion on heart and lungs consequent
upon blunt force impact to head and chest which are collectively
sufficient in ordinary course of nature to cause death. The
weapon used was the helmet belonging to the deceased. The
blows with the helmet were given by accused Sunny @ Babe
while the co-accused Jitender had caught hold the deceased from
his neck.
15. It had been vehemently argued by the counsel for
accused Sunny @ Babe that no reliance can be placed upon the
testimony of PW3/John Minj as he was neither present at the spot
nor in the hospital. In order to support the said argument, the ld.
State Vs. Sunny @ Babe & ors. Page no. 62 of 79
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signed by
Kiran Kiran Gupta
Date:
Gupta 2025.04.23
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PS: BARAKHAMBA ROADDefence Counsel has submitted that no blood stains were found
on the clothes of John Minj and further his name is not
mentioned either in the MLC or any of the documents prepared
at the hospital and that the deceased was identified on the basis
of the documents recovered from his possession and not on
identification by John Minj.
15.1. These arguments of the ld. Defence Counsel are
without any basis. As discussed above, PW3 John Minj has
vividly described the entire incident and specifically deposed that
on hearing the noise, he immediately came downstairs and saw
that four persons were beating his employer Biju Varghese. He
categorically deposed that when he tried to intervene, one of the
said boys, to whom he identified as accused Sunny pushed him
and asked for hammer or knife and said that “aaj Varghese ka
kaam tamam kar denge”. The fact that PW3 was present on the
spot is corroborated with the testimony of PW6 and PW13. PW6
has categorically deposed that when he heard John saying that
“malik ko kyun maar rahe ho”, he immediately went down. He
saw accused Sunny was giving blows with legs and fists “laat
State Vs. Sunny @ Babe & ors. Page no. 63 of 79
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Kiran by Kiran Gupta
Date:
Gupta 2025.04.23
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PS: BARAKHAMBA ROAD
ghusa” to deceased Biju Varghese. He had seen accused Babu
( Jitender) had caught hold of Biju by his neck. He had seen only
two assailants. Since none of the persons present on the spot,
came for help, he alongwith John went to call the police and they
found one Police gypsy near Super Bazar. He told them that
someone is beating his owner. Thereafter, police came there
alongwith him and John. PW13 is the police official who met
PW3 and PW6 at Super Bazar. He categorically deposed that few
persons came running to him and informed about the incident.
PW13 during his cross-examination categorically deposed that
the employee of injured also accompanied them to the hospital.
Merely because PW13 was unable to disclose the name of the
said employee and that the name of the said employee is not part
of the log book Ex.PW13/DA, is not fatal to the case of the
prosecution as the presence of PW3/ John Minj on the spot is
otherwise duly proved from the testimony of these witnesses.
15.2. Now, coming to the argument of the ld. Defence
Counsel that name of PW3 John Minj is not stated in the MLC
and other allied documents and that the identification of deceased
State Vs. Sunny @ Babe & ors. Page no. 64 of 79
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Date:
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PS: BARAKHAMBA ROADwas not done by him. To this, PW3 has categorically deposed
that when they reached the hospital, the nurses took the injured
inside the hospital and he remained with the PCR because the
nurses stopped him not to follow injured inside the hospital.
Since, PW3 was not allowed inside the hospital, where the
injured Biju Varghese was taken, his name is not mentioned in
the MLC and other documents. Due to this fact, PW11 Ct. Ankur
who was on duty in the hospital did not see him and has deposed
that there was no other person except him, deceased and the
police personnel of the PCR and that the deceased was identified
on the basis of documents found in his possession.
15.3. As regards the argument of ld. Defence Counsel that
the clothes of John Minj did not get stained with the blood of the
deceased, for this also, PW3 has explained that since he had
caught the deceased from the side of his leg and the injury was
on his head, his clothes did not get stained with the blood of the
deceased.
State Vs. Sunny @ Babe & ors. Page no. 65 of 79
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signed by
Kiran Kiran Gupta
Date:
Gupta 2025.04.23
15:12:00
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PS: BARAKHAMBA ROAD
15.4. PW3 has sufficiently explained each and every fact
and circumstance and stood the test of cross examination. Even
PW6 and PW3 have corroborated the testimony of PW3 and
stood the test of cross-examination.
16. It is argued by the ld. Defence Counsel for accused
Sunny @ Babe and Jitender that there is no inquiry as to whom
the helmet belonged. It is clarified that it is the case of
prosecution that the helmet i.e. the weapon of offence, belonged
to the deceased Biju Varghese and he was carrying the same
when he left the office at around 11 pm. PW3 has categorically
deposed that Biju Varghese was carrying his helmet and mobile
phone when he left the office. He correctly identified the helmet
Ex.PW3/P1 in the court to be the same helmet which belonged to
Biju Varghese and with which the injuries were caused to Biju
Varghese. As regards the argument that the blood found on the
helmet did not match with the DNA of deceased, it is clarified
that as per the FSL report Ex.PW29/A and Ex.PW29/B, the blood
found on the helmet was of human. The lapse on the part of the
IO for not asking the DNA of the blood on the helmet is
State Vs. Sunny @ Babe & ors. Page no. 66 of 79
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signed by
Kiran Kiran
Date:
Gupta
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PS: BARAKHAMBA ROADimmaterial and not fatal to the case of prosecution, in view of the
specific testimony of PW3 that accused Sunny @ Babe hit the
deceased with the helmet multiple times and subsequent opinion
Ex.PW2/B.
17. It is argued by the ld. Counsel for accused Sunny @
Babe that as per the postmortem of deceased, half digested food
was found in his stomach. It is submitted that there is
contradiction in the testimony of PW3 and PW6 as to when the
deceased ate his dinner, hence, no reliance can be placed upon
their testimony. I have perused the testimony of PW3 and PW6.
Minor contradiction in the testimony of PW3 and PW6, as to
when the deceased ate his dinner is not fatal to the case of
prosecution and the said contradiction cannot be termed as
material contradiction. The argument of the ld. Defence counsel
on this aspect is without any basis.
18. It is further argued by ld. Defence Counsel that no
other public person who was present on the spot at the time of
incident has been examined by the prosecution and that PW3 and
State Vs. Sunny @ Babe & ors. Page no. 67 of 79
Digitally
signed by
Kiran Kiran
Date:
Gupta
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2025.04.23
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PS: BARAKHAMBA ROADPW6 are interested witnesses. It is common that in heinous
offences, the public refrains from being the witness in order to
avoid multiple court hearings. Further, prosecution has duly
examined PW3, PW6, PW11 and PW13 and their testimony is
sufficient to prove the offence. The argument of ld. Defence
counsel that PW3 and PW6 are interested witnesses is without
any basis. Merely because they are employees of the deceased,
they cannot be said to be interested witnesses. Further, these two
witnesses despite deposing that four persons were present at the
time of incident, had only identified two accused persons and
have failed to identify other two accused persons as the persons
who were present on the spot. The ld. Defence Counsel has failed
to show any motive of false implication by PW3 and PW6.
19. It is submitted by the Ld. Defence Counsel that the
prosecution has failed to prove any motive of the accused
persons to commit the murder of Biju Varghese. In Chandan v.
The State (Delhi Admn.) 2024] 4 S.C.R. 94 : 2024 INSC 271, it
has been held as follows:
State Vs. Sunny @ Babe & ors. Page no. 68 of 79
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signed by
Kiran Kiran Gupta
Date:
Gupta 2025.04.23
15:12:16
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PS: BARAKHAMBA ROAD“The argument of the defence that the prosecution
has not been able to establish any motive on the accused
for committing this dastardly act is in fact true, but since
this is a case of eye-witness where there is nothing to
discredit the eye-witness, the motive itself is of little
relevance. It would be necessary to mention some of the
leading cases on this aspect which are as under:
In Shivaji Genu Mohite v. State of Maharashtra,
AIR 1973 SC 55, it was held that it is a well-settled
principle in criminal jurisprudence that when ocular
testimony inspires the confidence of the court, the
prosecution is not required to establish motive. Mere
absence of motive would not impinge on the testimony of a
reliable eye-witness. Motive is an important factor for
consideration in a case of circumstantial evidence. But
when there is direct eye witness, motive is not significant.
This is what was held:
“In case the prosecution is not able to discover an
impelling motive, that could not reflect upon the
credibility of a witness proved to be a reliable eye-witness.
Evidence as to motive would, no doubt, go a long way in
cases wholly dependent on circumstantial evidence. Such
evidence would form one of the links in the chain of
circumstantial evidence in such a case. But that would not
be so in cases where there are eye-witnesses of credibility,
though even in such cases if a motive is properly proved,
such proof would strengthen the prosecution case and
fortify the court in its ultimate conclusion. But that does
not mean that if motive is not established, the evidence of
an eye-witness is rendered untrustworthy”
State Vs. Sunny @ Babe & ors. Page no. 69 of 79
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Date:
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PS: BARAKHAMBA ROAD
The principle that the lack or absence of motive is
inconsequential when direct evidence establishes the
crime has been reiterated by this Court in Bikau Pandey
v. State of Bihar, (2003) 12 SCC 616; Rajagopal v.
Muthupandi, (2017) 11 SCC 120; Yogesh Singh v.
Mahabeer Singh, (2017) 11 SCC 195.”
19.1. In Manubhai Atabhai vs. State of Gujarat 2007 10
SCC 358, and Arun Nivalaji More vs. State of Maharashtra
2005 12 SCC 613, that when the ocular evidence of eye
witnesses are reliable and well corroborated by medical, and
other evidence also inspires the confidence that the accused had
the intention to cause such fatal injuries, then such evidence is
enough to prove the charge of murder beyond reasonable doubt.
This intention is to be gathered from a number of circumstances
and evidence like the place of injury, the nature of the weapon,
the force applied while inflicting the injury, and other such
considerations. Whether the accused had any intention to kill the
deceased has to be judged upon taking into consideration the
facts of each case.
State Vs. Sunny @ Babe & ors. Page no. 70 of 79
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signed by
Kiran Kiran Gupta
Date:
Gupta 2025.04.23
15:14:57
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PS: BARAKHAMBA ROAD19.2. In Nishan Singh vs.State of Punjab (2008) 17 SCC
505, where the accused person had snatched the weapon carried
by someone else and brutally inflicted injuries on the deceased.
The Court stated that in such a case it cannot be said that he did
not have the intention to cause death.
20. The argument of the Ld. Defence Counsel regarding
absence of intent to commit murder is immaterial in the present
case in view of the testimony of PW3 and PW6. Further the
intent can be inferred from the circumstances surrounding the
act, including the nature and location of the injuries inflicted, the
weapon used, and the actions of the accused persons during the
incident. The injuries were concentrated on the vital parts of the
deceased’s body such as head, forehead, mid-forehead, eyes,
face, lip and chin. As per testimony of PW3, accused Sunny @
Babe gave around 8 strikes with the helmet to the deceased. As
per testimony of PW6, accused Sunny @ Babe also hit the
deceased with fists and blows. The deliberate continuous hitting
multiple times with the helmet on the head and face of the
State Vs. Sunny @ Babe & ors. Page no. 71 of 79
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signed by
Kiran Kiran Gupta
Date:
Gupta 2025.04.23
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PS: BARAKHAMBA ROAD
deceased indicates a clear intent to cause harm that could lead to
death.
21. According to the testimony of PW3 and PW6 who
are the eye witnesses, it is the accused Sunny @ Babe who
inflicted injuries on the head and face of deceased with
considerable force with the helmet while co-accused Jitender @
Babu had caught hold of the neck of the deceased. Under the
provisions of Section 300 IPC, an intention to cause such injuries
that are sufficient in the ordinary course of nature to cause death
qualifies as murder, and even, if, ingredients other than intention
to cause murder are proved, mere knowledge of the result of fatal
actions is enough to ascribe culpability to the accused person.
While the attack may not have been planned in advance, intent
can emerge in the heat of the moment, particularly during a
violent confrontation. PW3 has deposed that while hitting the
deceased, the accused Sunny @ Babe asked the co-accused
persons to bring a hammer and knife. PW3 has further deposed
that when he intervened to save Biju Varghese, accused Sunny
pushed him and said “aaj Biju Varghese ka kaam tamam kar
State Vs. Sunny @ Babe & ors. Page no. 72 of 79
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Date:
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PS: BARAKHAMBA ROAD
denge”. He further deposed that accused Jitender had caught hold
of Biju Varghese from the neck from backside and accused
Sunny picked up the helmet which was kept on the motorcycle of
Biju Varghese and struck the helmet repeatedly on his head. Even
PW6 has deposed that when he went down, he saw accused
Sunny was giving blows with legs and fists to Biju Varghese and
accused Jitender had caught hold of Biju by his neck.
22. The act of accused Sunny using the helmet
belonging to the deceased which was lying near to the place of
incident and targeting his head and face with the said helmet
causing multiple injuries and the act of co-accused Jitender that
he caught hold of the deceased / Biju Varghese by neck during
that time, is sufficient to establish the requisite common intention
and intent for murder or at least knowledge of the possible
consequences of one’s actions and to hold these two accused
persons liable for death of the deceased.
23. In Virsa Singh Vs. State of Punjab 1958 SCR
1495, it has been held that the prosecution must prove that there
State Vs. Sunny @ Babe & ors. Page no. 73 of 79
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Date:
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PS: BARAKHAMBA ROAD
was an intention to inflict that particular injury, that is to say that
the injury was not accidental or unintentional or that some other
kind of injury was intended, and that particular injury was
sufficient in the ordinary course of nature to cause death. The
third clause of section 300 speaks of an intention to cause bodily
injury which is sufficient in the ordinary course of nature to
cause death. It was held that to bring the case under this part of
the section the prosecution must establish objectively:
1. That a bodily injury is present;
2. That the nature of injury must be proved;
3. It must be proved that there was an intention to
inflict that particular bodily injury;
4. That the injury inflicted is sufficient to cause
death in the ordinary course of the nature.
The Court further held that:
“13. Once these four elements are established by the
prosecution (and, of course, the burden is on the prosecution
throughout) the offence is murder under S. 300 (Thirdly). It
does not matter that there was no intention to cause death. It
does not matter that there was no intention even to cause an
injury of a kind that is sufficient to cause death in the ordinary
course of nature (not that there is any real distinction betweenState Vs. Sunny @ Babe & ors. Page no. 74 of 79
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signed by
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Date:
Gupta
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PS: BARAKHAMBA ROADthe two). It does not even matter that there is no knowledge
that an act of that kind will be likely to cause death. Once the
intention to cause the bodily injury actually found to be present
is proved, the rest of the enquiry is purely objective and the
only question is whether, as a matter of purely objective
inference, the injury is sufficient in the ordinary course of
nature to cause death. No one has a licence to run around
inflicting injuries that are sufficient to cause death in the
ordinary course of nature and claim that they are not guilty of
murder. If they inflict injuries of that kind, they must face the
consequences; and they can only escape if it can be shown, or
reasonably deduced that the injury was accidental or otherwise
unintentional.”
24. This position has further been upheld by the Hon’ble
Supreme Court of India in the case of Vinod Kumar vs.
Amritpal (2021) 19 SCC 181, wherein the bench observed that:
“24. Once the prosecution establishes the existence of the three
ingredients forming a part of “thirdly” in Section 300, it is irrelevant
whether there was an intention on the part of the accused to cause death.
Further, it does not matter that there was no intention even to cause the
injury of a kind that is sufficient to cause death in ordinary course of nature.
Even the knowledge that an act of that kind is likely to cause death is not
necessary to attract “thirdly”.”
State Vs. Sunny @ Babe & ors. Page no. 75 of 79
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Date:
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PS: BARAKHAMBA ROAD
25. In the present case, the accused Sunny @ Babe
inflicted multiple injuries on the head and face of deceased Biju
Varghese with the helmet while co-accused Jitender @ Babu had
caught hold of him from his neck. The accused Sunny @ Babe
also gave leg and fist blows to the deceased on his other parts of
the body. As discussed above, the deceased suffered 13 external
injuries and the cause of death was combined effect of multiple
injuries to head and contusion on heart and lungs consequent
upon blunt force impact to head and chest which are collectively
sufficient in ordinary course of nature to cause death. The fatal
nature of these injuries, as confirmed by medical evidence, and
the circumstances of the attack clearly point to an intent to cause
death or at least an intention to inflict injuries with the
knowledge that they were likely to result in death. Even, if, it is
presumed that the accused Sunny @ Babe and Jitender @ Babu
did not have an intention to cause such bodily injury, the act of
causing multiple injuries on the head, face & chest with the
helmet; with the leg & fist blows and co-accused Jitender holding
the neck of deceased during the said act, is reflective of the
State Vs. Sunny @ Babe & ors. Page no. 76 of 79
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Date:
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PS: BARAKHAMBA ROADknowledge that causing such injuries is likely to cause death in
the ordinary course of nature.
26. In view of the above discussion, both accused
Sunny @ Babe and Jitender @ Babu are convicted for the
offence under S. 302/34 IPC.
ROLE OF ACCUSED SAURAV AND SATISH
27. As per record, TIP of both accused Saurav and Satish
was conducted, however, PW3 and PW6 failed to identify both
these persons during TIP as well as in the court as the persons
who were present at the spot alongwith co-accused persons at the
time of commission of the offence.
27.1 PW3 during his testimony deposed that there were
other co-accused who were also beating Biju Varghese, but he
cannot identify them. He does not know whether accused Saurav
State Vs. Sunny @ Babe & ors. Page no. 77 of 79
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Date:
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PS: BARAKHAMBA ROADand Satish were present at the time of incident or not. He had
shown the place of occurrence to the police. He had not
identified any person who was put to TIP. Even on cross-
examination by ld. Addl. PP for the State, he denied all the
suggestions qua accused Satish and Saurav.
27.2. Even PW6 failed to identify accused Saurav and
Satish during TIP as well as in the court. When he was
confronted with his statement Ex.PW6/D dated 07.08.2015, he
denied making any such statement. When his attention was
drawn towards accused Saurav and Satish, he failed to identify
them as assailants.
28. Since, both PW3 and PW6 have failed to identify
accused Saurav and Satish as the persons who were present
on the spot at the time of incident and in the absence of any
other incriminating evidence against them, both accused
Saurav and Satish are acquitted for the offence under S.
304/34 IPC.
State Vs. Sunny @ Babe & ors. Page no. 78 of 79
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signed by
Kiran Kiran Gupta
Date:
Gupta 2025.04.23
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PS: BARAKHAMBA ROAD
CONCLUSION
The accused Sunny @ Babe and Jitender @ Babu are
convicted for the offence under S. 302/34 IPC.
The accused Saurav and Satish are acquitted for the
offence under S. 304/34 IPC.
Digitally
signed by
Kiran Kiran Gupta
Date:
Gupta 2025.04.23
15:16:06
+0530
ANNOUNCED IN THE OPEN (KIRAN GUPTA)
COURT ON 23.04.2025 ADDL. SESSIONS JUDGE-04
NEW DELHI DISTRICT
PATIALA HOUSE COURTS
NEW DELHI
State Vs. Sunny @ Babe & ors. Page no. 79 of 79