CRL.A.--514/2017. Case: VIRENDER @ BIJENDER Vs. STATE. High Court of Delhi (India)
| Case Number | CRL.A.--514/2017 |
| Citation | NA |
| Judgement Date | July 21, 2017 |
| Court | High Court of Delhi (India) |
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 30th May, 2017
Decided on: 21st July, 2017
+ CRL.A. 357/2017
MADHU GUPTA ..... Appellant
Represented by: Mr. Joginder Tuli, Ms. Joshini
Tuli, Advs.
Versus
STATE NCT OF DELHI ..... Respondent
Represented by: Mr. Ravi Nayak, APP for State with SI Ravinder, PS Bawana.
+ CRL.A. 514/2017
VIRENDER @ BIJENDER ..... Appellant
Represented by: Ms. Rakhi Dubey, Adv.
Versus
STATE ..... Respondent
Represented by: Mr. Ravi Nayak, APP for State with SI Ravinder, PS Bawana.
CORAM:
HON’BLE MR. JUSTICE SIDDHARTH MRIDUL HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J.
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Convicted for offences punishable under Section 302 read Section 34 IPC and Section 201 read with Section 34 IPC, Madhu Gupta and Virender @ Bijender challenge the impugned judgment dated 18th
Crl.A. 357/2017 & 514/2017 Page 1
2017 and the order on sentence dated 21st March, 2017 sentencing
life imprisonment and to pay a fine of `10,000/- each for the punishable under Section 302/34 IPC and rigorous imprisonment for a period of seven years and to pay a fine of `1,000/- each for offence
under Section 201/34 IPC.
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Assailing the conviction, learned counsel for Madhu Gupta
that even accepting the case of the prosecution having been proved reasonable doubt, it can at best be held that the appellant caused an injury to the deceased in exercise of her right of private defence as laid down in clause thirdly to Section 100 IPC. It is further submitted that the appellant discharged the burden as required under Section 105 of Evidence proving the existence of circumstances bringing her case within the exception laid down in clause thirdly to Section 100 IPC. The right of private defence of the body of a mother's daughter extends to voluntary causing death, if the offence which occasioned the exercise of the right
assault with intention of committing rape. The appellant in her
under Section 313 Cr.P.C stated that only scuffle had taken place
her and the deceased. As per the post mortem report, cause of death opined to be asphyxia due to manual pressure. Thus even as per the mortem report, no weapon of offence was used. The alleged offence occurred on the spur of the moment. Hence appellant cannot be
for offences punishable under Sections 302 or 201 IPC.
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Learned counsel for Virender @ Bijender submits that even as per the case of prosecution, no intention to kill can be attributed to the
Prior to the incident, Virender, Madhu and the deceased Satender @
all had dinner together, there was no quarrel and no premeditation.
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no other evidence against the appellant except the sole testimony (PW-7) which proves that appellant committed no offence and acted defence of „K‟. He further submits that in the alternative since the appellant had already undergone approximately 8 years and 5 months, he be
on the period already undergone. In order to buttress his submissions learned counsel relies upon the decision of Division Bench of this reported as 2016 IV AD (DELHI) 524 Anuj Kumar Tiwari v. State
NCT of Delhi.
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Learned APP for the State on the other hand submits that prosecution has proved beyond reasonable doubt that the appellants not only committed murder of Satender @ Nanhe but also disguised the body to be of Vijender Gupta thus concealing the offence and destroying the evidence.
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Process of law was set into motion on 12th September, 2008
PCR call was received at about 11:00 P.M. stating that "A-14 Bajitpur stand kirayedar ka makkan do din se band hai darwaje se lal va kala nikal raha hai". The aforesaid information was recorded vide DD No
[Ex. PW-35/A] and assigned to SI Jai Kishan. He along with Ct.
Singh reached the spot i.e. H.No. A-14, Village Bajidpur, Delhi. They found a crowd of people gathered along with Om Kumar. Blood was oozing out of a room situated on the first floor. When they entered the room, they
pot, gadda and an iron box with "MANIPUR VOLUNTARY
ASSN." written on it. When they opened the box, a dead body of a person aged 35 years was found lying in a pool of blood. Dead body decomposed condition and a foul smell was emitting from the dead
Dead body was identified to be of Bijender @ Virender.
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Statement of Om Kumar (PW-4) was recorded vide Ex.
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wherein he stated that he resided at H.No. 207, Village Bajidpur, Delhi
his family and worked as driver. He had another house in village
bearing House No. A-14 which had 12 rooms and number of tenants residing there. Virender Gupta (appellant herein) was residing in
those rooms along with his two sons since last 2-2½ months. On September 2008 around 9:00-10:00 P.M., when he went to the tenanted room for a surprise check, he met the son of Virender Gupta who told him that his mother Madhu Gupta (appellant), who had gone to the village, had
back. On 12th September, 2008 at around 10:30-10:45 P.M., his
tenant namely Dhirender came and told him that the room of Vijender Gupta was locked from outside, blood was coming out of the room from under door and foul smell was also emanating. When he went to house number A-14, he saw that the door was locked from outside and red coloured blood and water was coming out from the room. Thereafter, he called the police crowd also gathered there. In the meantime, PCR van came. The lock
room was broken and it was found that blood was dripping from an iron box in which the dead body of his tenant Virender Gupta was lying in a
blood. However, Madhu Gupta and her children were not present
On the basis of the aforesaid statement, FIR No. 327/2008 [Ex.
was registered under Sections 302/201 IPC at PS Bawana.
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Broken lock was taken into possession vide memo Ex. PW-4/B. Crime team reached the spot and further investigation was handed over to
Ram Avtar. Site plan [Ex. PW-46/A] was prepared. Blood sample bloodstained earth control [Ex.P-3], earth control [Ex.P-4] and iron
[Ex.P-1] were seized vide memo Ex. PW-4/C. Three empty mobile
boxes [Ex.P-6], which were found in the room where the dead body
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lying, were also taken into possession vide memo Ex. PW-4/D.
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On 14th September 2008, Insp. Ram Avtar met Smt. Bimla
who had her plot in front of the house of Om Kumar, who told him
the morning of 11th September, 2008, she had seen Virender along
family leaving on bicycle with all his belongings. On the basis statement of Smt. Bimla, the dead body was identified to be not of
at the mortuary of BJRM Hospital and were shown the dead body. The dead body was identified to be of Satender @ Nanhe who was resident Virender @ Bijender‟s Village i.e. Sungarhi, Etah (U.P.) and lastly
with Virender @ Bijender in the tenanted room. Relatives of Satender Nanhe were informed and called to Delhi for further identification
dead body. Shyam Babu and Anil, brothers of deceased Satender @ identified the dead body as that of Satender @ Nanhe. Dead identification statements of Shyam Babu [Ex. PW-21/A] and Anil [Ex. 24/A] were recorded. Insp. Ram Avtar prepared the inquest papers
request form for conducting autopsy [Ex. PW-46/B], brief facts
46/C] and death report [Ex. PW-46/D].
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On 25th September 2008, one gathri [Ex. PW-36/P-5] containing
on which Goa Chai and Glori Chai was printed containing 58
school bag containing eight books of third standard and six copies, school dress and one bicycle on which sticker of KW Engineering
was affixed were produced by Bansi Lal, uncle of Virender @ Bijender, who stated that these items were left with him on 11th September 2008
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Virender. These items were taken into possession vide seizure memo PW-27/A. On 6th October 2008, Gayadin, relative of Virender Sumit, son of Virender, whose statements were recorded under Sections and 164 Cr.P.C. vide Ex. PW-46/F and Ex. PW-47/A respectively.
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On 26th October, 2008, Virender and Madhu were apprehended Mayur Vihar, Phase III, RTV Bus stand near Police Booth. Virender arrested vide arrest memo Ex. PW-4/E and personal search was carried vide memo Ex. PW-4/G. Madhu was arrested vide arrest memo Ex.
and her personal search was conducted vide memo Ex. PW-22/A. Two cards [Ex.P-7 and Ex.P-8], one belonging to deceased Satender @
and other to Virender @ Bijender, were recovered from Virender which were seized vide seizure memo Ex. PW-37/A. Disclosure statements of
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