Delhi District Court
State vs Shivam @ Shibba on 23 September, 2025
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IN THE COURT OF SH. LALIT KUMAR :
ADDITIONAL SESSION JUDGE (FAST TRACK COURT - 01): SOUTH- EAST
DISTRICT : SAKET COURTS : NEW DELHI
SC No. 1858/2016
STATE Vs Shivam @ Shibba
FIR No.: 60/2010
U/S 302/203 IPC & 174A IPC
PS : C. R. Park
Particulars of the case
a) Date of offence : 28.03.2010
b) Offence complained of : u/s 302/203 IPC & 174A Part II IPC
c) Name of the complainant : Sh. Shivam
d) Name of the accused : Shivam @ Shibba
his parentage s/o Sh. Hukum Singh,
his residential address R/o Village Matohli, PS &
District Tikamgarh,
Madhya Pradesh
e) Plea of accused : Pleaded not guilty
f) Final order : Acquitted
g) Date of Institution : 21.10.2010
h) Date of Judgment reserved on : 12.09.2025
i) Date of Judgment : 23.09.2025
j) Ld. Addl PP for State : Sh. Aditya Trehan
k) Ld. Counsel for accused : Ms. Anshuka
SC No. 1858/2016 FIR No.: 60/2010
State Vs Shivam @ Shibba PS : C. R. Park
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JUDGMENT
1. CHARGE-SHEET 1.1 It is an interesting case wherein the present accused was complainant initially and on the basis of his statement FIR was registered but lateron during the investigation his statement found to be incorrect and he was made an accused.
As per the charge-sheet, on 28.03.2010, Inspector Anil Dureja along with Constable Ram Kishan and Constable Bawinder were present in the police station C.R. Park. At about 10.30 pm Duty Officer HC Rameshwar informed through telephone that one lady was murdered at Narmada Apartment, RWA Office where construction work was going on. On receipt of said information, Inspector along with its staff reached at the spot where SI D.P. Singh and Constable Mukesh were already present there. On reaching RWA office, they found dead body of one young lady aged about 22-23 years whose name was revealed as Sharda lying on a pool of blood and he observed injuries on her face, neck and on her left arm and there was a long cut on her face caused by some sharp weapon. The head of the deceased was on the South direction i.e. towards the Jahan Panah jungle and legs were on north direction i.e. towards Alaknanda side road. Inspector called the photographer and crime team through wireless on which crime team reached at the spot and inspected the spot and photographer took the photographs of the spot. Eye witness Shivam @ Shibba got recorded his statement therein.
SC No. 1858/2016 FIR No.: 60/2010
State Vs Shivam @ Shibba PS : C. R. Park
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1.2 He stated that he was residing in Delhi since last two years and used to do
work of labourer and even reside at the place where he works. His parents used to reside at the village. On 27.03.2010 he came along with his uncle Baliram and his wife Sharda to Narbada Apartment, Alaknanda for doing labourer work and they got the place for residing therein itself. At about 09.00 pm one Rahul who used to reside at Baas Village Fatehpur Beri and he knew him for the last two years and frequently met him belonged to his village along with one fat person came to their site and they hit his chachi Sharda along with the kulhari lying therein. Rahul hit her chachi with the kulhari and the fat guy caught hold of her chachi while sleeping and when her chachi shouted, Rahul hit her chachi on her neck with the kulhari. His chachi was crying in pain but Rahul again hit her chachi many times with the kulhari. Due to which he got scared and ran away from the spot and went to the guard of the gate and narrated the entire incident to him. Thereupon guard and his associate along with him came to the site and stated on seeing the condition of his chachi that she was murdered and after some time police also arrived. His chachi Sharda was killed by Rahul and his associate fat man by a kulhari.
1.3 On the above mentioned statement of Shivam @ Shibba, Investigating Officer got the present case registered through Constable Babinder. I.O. seized the blood sample, blood stained earth, earth control and clothes soaked in blood from the spot. During investigation, I.O. sent the dead body of deceased to AIIMS mortuary for preservation through Constable Mukesh. On the basis of above mentioned statement of Shivam @ Shibba and on the directions of Senior Officers, a raiding party was SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 4 :- prepared for searching Rahul and his associated and reached at Fatehpur Beri, Paharganj etc. as told by Shivam but despite best efforts no clue could be found of Rahul or his associate.
1.4 During investigation on 29.03.2010, autopsy of deceased Sharda was got conducted and her dead body was handed over to her husband Baliram. Thereafter, all exhibits were seized by the police. Doctor has opined the cause of death " shock is due to hemorrhage caused by sharp heavy weapon. Injury no.1, 2, 3, 4 individually or collectively can cause death in ordinary course of nature. " During investigation, it came to know that there was no way to run towards the jungle from the spot. Thereafter, Inspector inquired from the guard on duty at Narmada Apartment and checked his visitor register wherein neither name of any Rahul was written who came to meet Shivam or his chacha.
1.5 As the investigation and statement recorded till now and from the statement of Shivam about the use of kulhari, a suspicion arose and during interrogation, Shivam @ Shibba broke down and disclosed that he had committed the murder of his aunt Sharda. He confessed that on the day of festival of holi, he had seen his chacha Bali Ram and his chachi making love during the night. Since then, he wanted to have sex with his chachi. In the evening of 28.03.2010 he tried to make a physical relations with his chachi Sharda but she slapped him and threatened him to told the entire matter to his chacha. He got scared and then he killed her chachi by hitting her many time with kulhari used for cutting wood. Thereafter on 30.03.2010 accused Shivam @ Shibba was arrested and information of his arrest was given to his elder brother SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 5 :- Manoj. Disclosure statement of Shivam @ Shibba was recorded where he confessed his crime and stated that after committing the crime he climbed over the RWA Office and threw the said axe (kulhari) in Jahan Panah forest adjoining the RWA office. Shivam in order to save himself told the security guards and their owner that somebody had killed his chachi Sharda with kulhari and on seeing the dead body of Sharda, security guard called police on number 100, police came and recorded his disclosure statement. Thereafter, Shivam @ Shibba had taken them to the place of incident and on his pointing out blood stained kulhari was recovered from said jungle. Inspector also seized the clothes worn by Shivam @ Shibba on the day of incident. During Judicial Custody remand of accused Shivam @ Shibba he told his aged as of 14 years and hence, on court's direction education certificate of said accused were called from his house at Madhya Pradesh wherein his date of birth was disclosed as 20.02.1991. Thereafter, statement of witnesses were recorded, site plan was prepared. All the exhibits were sent to FSL, Rohini for examination. After completion of investigation, I.O. Inspector filed the charge-sheet against the accused u/s 302/203 in the court.
1.6 Thereafter, FSL result of the exhibits were filed by way of application. 1.7 Subsequently, accused Shivam @ Shibba ran away from the trial and was declared proclaimed offender from the Court vide order dated 03.11.2022 and thereafter after his re-arrest, a supplementary charge-sheet was filed against him u/s 174-A I.P.C.
SC No. 1858/2016 FIR No.: 60/2010
State Vs Shivam @ Shibba PS : C. R. Park
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1.8 Subsequently FSL result of the exhibits were filed by way of application by the
Investigating Officer.
2. The Ld. Magistrate committed the case to the Court of Sessions after compliance of the relevant provisions.
3. CHARGE 3.1 After hearing the prosecution and the accused and perusal of the charge-sheet along with the documents filed by the prosecution, charge u/s 302/203 IPC was framed against the accused. Accused pleaded not guilty to the said charge and claimed trial. Accordingly, prosecution was directed to lead evidence in support of the charge-sheet.
However, during trial accused absented himself, declared proclaimed offender on 03.11.2022 and again apprehended on 12.02.2023 and accordingly charge u/s 174 Part II IPC was also framed against the accused. Accused pleaded not guilty to the said charge also and claimed trial.
4. PROSECUTION EVIDENCE 4.1 In support of its case, prosecution has examined 24 witnesses.
S. No. Name of the Nature of the evidence witnesses SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 7 :- PW-1 ASI Ved Vir Singh Police official who got conducted the medical examination of accused on IO's instructions. PW-2 Bali Ram Husband of the deceased. PW-3 Ct. Mukesh Police Official who shifted the dead body of deceased Sharda to AIIMS mortuary and got the post-mortem conducted on said dead body and thereafter doctor handed over him nine sealed sample which he handed over to the IO, who seized the same. PW-4 Duli Chand Employer/Contractor who provided a job of mason to the husband of deceased and even accommodation to him. PW-5 Ct. Babinder Police official who on IO's direction got the present case registered. PW-6 Ct. Girdhar Photographer, Crime Team, South East who clicked photographs of spot. PW-7 Ct. Ranjit Police official who delivered the copy of FIR at the residence of Ilaka MM, Addl. DCP, South East, Addl. C.P., S.E. and ACP Ambedkar Nagar. SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 8 :- PW-8 HC Kamal Ram Duty Officer who recorded the present case FIR and also made endorsement on rukka. PW-9 HC Sitaram Police who collected the documents of age proof of accused. PW-9 Inspector Naresh Incharge, Mobile Crime Team, (wrongly Kumar Hauz Khas, New Delhi who numbered prepared his scene of crime ) report. PW-10 HC Rameshwar MHC(M) who made entry in register no.19 regarding deposition of four sealed parcels, nine other sealed parcels, blood sample of accused and a parcel containing an axe in the malkhana and deposited the 15 sealed parcels to FSL, Rohini throgh Ct. Vedveer. PW-10 SI Mahesh Kumar Draftsman who prepared the (wrongly numbered) scaled site plan. PW-11 Inspector Sanjay Police official who joined Kumar Singh investigation with the IO regarding arrest of the accused. PW-12 SI D. P. Singh Police official who accompanied IO in all the proceedings/investigation conducted by him. SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 9 :- PW-13 Rajbir Medical Record Technician who identified the signatures of Dr. Kishan Kumar Shani on the MLC of accused. PW-14 Dr. Skhilesh Raj Doctor who conducted post- Jhamad mortem on the dead body of deceased Sharda and proved his report. PW-15 Santosh Bhardwaj Security guard posted at the gate of Narmada Apartment, Alaknanda where the incident occurred. PW-16 Dr. Krishna Kumar Doctor who got the the Sahnai accused medically examined. PW-17 ACP Anil Dureja IO of the case. PW-18 Amit Rawat, FSL expert who examined the Assisant Director exhibits i.e. Ex.4A, Ex.4B, (chemistry), FSL, Ex.4C, Ex.4D and Ex.4E and Rohini proved his report. PW-19 HC Roshan Kumar Police Offical who rearrested the accused after he was declared proclaimed offender and proved his kalendra u/s 41.1(C) CrPC. PW-20 Retired SI Jagdish Process server who executed process u/s 82 CrPC against the accused. PW-21 Inspector Gianender Police Official who filed the supplementary chargesheet u/s 174A IPC against the accused. SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 10 :- PW-22 Ms. Anita Chhari, FSL expert who examined the Senior Scientific exhibits and proved her Officer (Biology), serological examination FSL, Rohoni, Delhi report. 4.2 The prosecution has exhibited following documents/objects in support of its case:- No. of exhibit Nature of exhibit Ex.PW1/A Seizure memo of sealed blood sample bottle along with sample seal and the MLC of accused Ex.PW2/A Statement of husband of deceased regarding identification of dead body of his wife Ex.PW2/B Handing over memo of dead body of deceased to his husband Bali Ram Ex.PW2/X Supplementary statement of husband of deceased dated 30.03.2010 recorded u/s 161 CrPC Ex.PW4/A Statement of PW4 regarding identification of dead body of Sharda Devi Ex.PW4/B Statement of PW4 Duli Chand recorded u/s 161 CrPC Ex.PW6/A1 to Photographs of the spot of incident Ex.PW6/A5 Ex.PW6/A6 Negatives of above mentioned photographs (colly) Ex.PW8/A FIR of the present case Ex.PW8/B Endorsement on tehrir Ex.PW9/A Seizure memo of documents of age proof of accused Ex.PW9/A Crime scene report SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 11 :- Ex.PW10/A Entry in register no.19 vide serial no. 674 regarding deposition of four sealed parcels and nine other sealed parcels in the malkhana Ex.PW10/A Entry in register no.19 vide serial no. 674 regarding deposition of blood sample of accused and personal search of accused, another parcel duly sealed with the seal of IO and a parcel containing axe Ex.PW10/B Sending of 15 sealed parcels to FSL, Rohini and through Ct. Vedveer vide RC No. 12/21/10 and Ex.PW10/C 13/21/10 on 31.05.2010 Ex.PW10/D Receipt of deposition of above mentioned articles in the FSL Ex.PW10/A Scaled site plan Ex.PW11/A Arrest memo of accused Ex.PW11/B Personal search memo of accused Ex.PW11/C Disclosure statement of accused Ex.PW11/D Pointing out memo of accused Ex.PW11/E Seizure memo of clothes of the accused Ex.PW11/F Seizure memo of axe Ex.P1 & Ex.P2 Shirt and jeans Ex.P3 Axe Ex.PW12/A Seizure memo of blood obtained through cotton gauze from the neck of deceased Ex.PW12/B Seizure memo of blood stained earth from the spot Ex.PW12/C Seizure memo of earth control after breaking the floor from the spot Ex.PW12/D Seizure memo of blood stained shaw of gray colour, one old bed sheet brick colour having blood stains and mattress multi coloured having blood stains on it SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 12 :- Ex.PW12/E Seizure memo of exhibits of deceased Ex.P4 One blood in gauze recovered from the spot Ex.P5 Earth control i.e. blood stained pieces of floor taken out Ex.P6A, One gray shawl, one bed sheet of brick colour Ex.P6B and and multi colour mattress Ex.P6C Ex.P7 Earth control in a piece of cloth Ex.PW13/A MLC of accused Ex.PW14/A Post mortem report of deceased Sharda Ex.PW15/A Statement of PW15 recorded u/s 161 CrPC Ex.PW17/A Statement of accused Shivam Ex.PW17/B Rukka Ex.PW17/B PW18/P1 Detailed report bearing FSL No.2010/C-2333 dated 10.04.2013 of the exhibits Ex.PW19/P1 Rearrest of accused after he was declared PO Ex.PW19/P2 Personal search of accused Ex.PW19/P3 Kalendra u/s 41.1(C) CrPC Ex.PW19/P4 DD No.37A at PS Saket regarding arrest of accused in kalendra u/s 41.1(C) CrPC Ex.CW1/A DD No.22A regarding departure entry of PW20 SI Jagdish Ex.CW1/B Application of PW20 regarding approval of train railway warrants moved by Incharge VB and same was allowed by SHO and ACP Ex.CW1/C Photographs of PW10 taken by him outside the railway station Ex.CW1/D Photographs of one of the shops of the main market Ex.PW20/P1 Photographs of the railway station via which PW10 SI Jagdish returned to Delhi SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 13 :- Ex.CW1/E DD No.36A regarding arrival of PW20 SI Jagdish in the police station C. R. Park Ex.CW1/F Detailed report regarding execution of process u/s 82 CrPC Ex.PW22/P1 Detailed FSL report dated 08.02.2011 regarding examination of exhibits Ex.PW22/P2 Serological report of FSL report regarding examination of exhibits 4.3 Though 24 witnesses have been examined by prosecution but the main witnesses of the case are: i. PW-2 / Bali Ram / husband of the deceased, ii. PW-4 / Duli Chand / Employer/contractor who provided a job of mason to the
husband of deceased and even accommodation to him;
iii. PW-17 / ACP Anil Dureja, IO of the case, iv. PW-20 / SI Jagdish /Process server who executed process u/s 82 CrPC against the accused, v. PW-21 / Inspector Gianender /Police official who filed supplementary charge- sheet u/s 174A IPC against the accused vi. PW-22 / Anita Chhari / Senior Scientific Officer (Biology), FSL, Rohoni, Delhi. 4.4 PW-2 Bali Ram deposed that at the time of incident i.e. 2010 he was residing at
RWA office, Alaknanda, New Delhi and on 28.03.2010 he went Lajpat Nagar for fixing a iron gate. On that day at about 09.00 pm, he received a telephone call of SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 14 :- accused who informed him that someone gave axe (khulardi) blow on his wife Sharda so he immediately reached at RWA office, Alaknanda where he saw her wife Sharda was lying on floor, her neck was cut and blood was oozing out from her neck and she was not responding any more. When he reached at the spot, police officers were also present there. Thereafter, the police officers took the dead body of his wife to the AIIMS hospital where he identified the dead body of his wife Sharda and IO recorded his statement regarding the dead body identification of his wife vide memo Ex.PW2/A. On the next day, after post-mortem dead body was handed over to him and he signed the memo regarding the handing over dead body to his wife vide memo Ex.PW2/B. At the time of investigation, he had suspected upon the accused because no one came in his room, he was not there at that time and he used axe for cutting wood for making food. He knew accused Shivam as he belongs his village and at the time when he was residing at Fatehpur Beri, accused Shivam was also residing as neighbour. At the time of leaving the house at RWA, Alaknanda at about 08.00 am to Lajpat Nagar only accused Shivam and his wife were in the room. Police inquired about the same and recorded his statement. At the time when he reached at the spot, the blood stained axe was lying out of the room. IO recorded his statement in this regard.
As the witness had not stated the true facts and resiled from his earlier given statement, he was cross examined by Ld. Addl. PP for the State.
During his cross examination, he denied the suggestion that he stated to the SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 15 :- police that accused disclosed in his presence that he killed his wife with an axe which he had thrown in Jahapanah jungle confronted with portion A to A in his supplementary statement u/s 161 Cr.P.C dated 30.03.2010 Ex.PW2/X where it was so recorded. The blood stained axe was found lying out the room itself.
PW2 was duly cross examined by Ld. Counsel for accused.
4.5 PW-4 Duli Chand, Employer/Contractor deposed that in the year 2010 he was residing in the house No. F-58, Fatehpur Beri and working as a contractor to provide the labour. On 29.03.2010 he along with Bali Ram reached at AIIMs hospital where he identified the dead body of Sharda Devi as a wife of Bali Ram. IO recorded his statement Ex.PW4/A regarding the identification of dead body of Sharda Devi. After the postmortem, dead body of Sharda Devi was received by Bali Ram and then the dead body was cremated at the cremation place i.e. Chandan Hola, Fatehpur Beri. After seeing the dead body of Sharda Devi in AIIMS hospital, he realized that the murder of Sharda Devi was committed by some one.
He further deposed that on 27.03.2010 Bali Ram was working as a mason in his supervision and he provided the accommodation in Narmada Apartment, Alaknanda for residing there. On 27.03.2010 he along with Bali, his wife Sharda (now deceased) and Shivam, reached at Narmada Apartment and thereafter he left from there at about 04.00-04.30 pm. He further deposed that on 28.03.2010 he reached at Narmada Apartment, Alaknanda at about 08.00/08.30 am and instructed Bali ram, Sharda Devi and Shivam SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 16 :- for construction work. At about 05.30 pm when he left from Alaknanda side, Bali Ram, his wife Sharda and Shivam were present there and after about 45 minutes, he received a call of Bali ram on his mobile pone at about 06.00-06.15 pm that Bali Ram to take permission from him to go for installation oof an iron gate at other site and he told him to go to other side for installation of iron gate. At about 09.00-09.15 pm, he was informed by the Security Guard of Narmada Apartment, Alakhnanda about the murder of Sharda Devi. He immediately reached there where police officials were found present there. Shivam was also present there and thereafter Bali Ram reached there. At the time when Bali Ram left from there and informed him that at the house of Narmada Apartment, Alaknanda, deceased Sharda Devi and Shivam were there. As per best of his knowledge and circumstances, accused Shivam committed the murder of Sharda Devi. During inquiry with the police, accused disclosed the fact that the murder of Sharda Devi was committed by a fatty man, namely Rahul who was residing in Baans Gaon, Bhati Colony so he accompanied with the police officials and Shivam and reached at Baans Gaon, Bhati Colony but no person by the name of Rahul was found there. Accused Shivam was having the eating Gutka, Paan, supari and also liquor. Later on police inquired him and recorded his statement Ex.PW4/B. Ld. Addl. PP for State had put a leading question to the witness wherein he admitted that when he got a contract of work in RAW office, Narmada Apartment, Alaknanda and he along with Baliram and other labours were going at Narmada Apartment, Alaknanda on 27.03.2010. Accused Shivam had also insisted to go with SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 17 :- Bali Ram and Sharda Devi.
During his testimony, PW4 duly identified the accused in the court. PW4 was duly cross examined by Ld. Counsel for accused.
4.6 PW-17 ACP Anil Dureja, IO of the case deposed that on 28.03.2010 he was posted as SHO at police station C.R. Park and on that day while he was on patrolling duty along with Constable Babinder and constable (driver) Ram Kishan in government gypsy bearing registration no.DL1CJ7001. During the patrolling at about 10.30 pm he was informed by the duty officer regarding a call of murder received in the police station in Narmada Apartments, Alaknanda near RWA office and in pursuant to said information, he immediately reached the spot i.e. near under construction RWA office, Narmada Apartments, Alaknanda and found a dead body of a young lady aged about 20-28 years lying on the ground floor of the said under construction RWA office and the body was fully soaked with blood. He observed injuries upon head, face, neck and arms of the deceased. SI D.P. Singh and Constable Mukesh were already present at the spot. One Shivam met him who told that the deceased was Sharda i.e. his aunt (chachi) in relation. The said Shivam had claimed himself to be the eye-witness to the occurrence. He recorded his statement Ex.PW17/A and on the basis of said statement, he prepared rukka Ex.PW17/B, sent the same to police station through Ct. Babinder for registration of FIR. After some time, around 1.50 am in the night, Ct. Babinder brought the copy of FIR along with rukka to the spot and same were handed over to him.
SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 18 :- The accused Shivam had stated before him in his statement Ex.PW17/A that one Rahul who used to reside in the area of Fatehpur Beri came along with a unknown fatty man and said Rahul along with said fatty man killed the deceased Sharda with axe (khulhari). In the meantime, he lifted blood of the deceased from her neck with cotton gauze, the blood stained earth, the earth control, blood soaked clothes i.e. one shawl, one old bed sheet and one mattress and named it as serial no.1, 2, 3 and 4 and seized the same vide seizure memos Ex.PW12/A, Ex.PW12/B, Ex.PW12/C and Ex.PW12/D. He had seized all the above mentioned case property with the seal of AD.
He also called the crime team at the spot who arrived and inspected the spot and took photographs of the crime scene. The crime team comprised of finger print expert as well as photographer and in this regard, Const. Girdhar and SI Naresh were examined and their statements u/s 161 of CrPC weer recorded.
During investigation, he sent the dead body of the deceased to AIIMS mortuary for preservation through Const. Mukesh. He also tried to search for the accused Rahul and the fat guy along with Shivam at different places could not be traced and thereafter they returned to police station and deposited the case property in the malkhana.
In the morning on 29.03.2010 he along with SI D.P. Singh went to AIIMS mortuary where he prepared inquest papers including identification of the dead body through husband of the deceased and another supervisor Dulichand. The identification memos are Ex.PW2/A and Ex.PW4/A. After the post-mortem, the dead SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 19 :- body of deceased was handed over to her relatives vide handing over memo Ex.PW2/B. Const. Mukesh handed over him nine exhibits along with sample seal from the AIIMS hospital, Department of Forensic Medicine and he seized the same vide seizure memo Ex.PW12/E. He further deposed that he had investigated on the point of allegations levelled by complainant Shivam (now accused) against accused Rahul and one fat boy and found those allegations were vague and false. On 30.03.2010 during morning hours, sustained interrogation was carried out with Shivam and he broke down during the investigation and disclosed that he had committed the murder of his aunt Sharda (now deceased). He recorded his disclosure statement Ex.PW11/C. Thereafter, accused Shivam had taken them to the place of incident and pointing out memo was prepared at his instance Ex.PW11/D. During investigation, accused Shivam was arrested vide arrest memo Ex.PW11/A and his personal search was conducted vide memo Ex.PW11/B. At the instance of accused, they recovered shirt and pants which he worn at the time of committing the offence and he seized the said articles vide memo Ex.PW11/E. An axe was also got recovered at the instance of accused and he seized the same vide seizure memo Ex.PW11/F. Thereafter, accused was sent for medical examination through Head Const. Ved Vir Singh and his blood sample was conducted by the doctor and he seized the same vide seizure memo Ex.PW1/A. The accused was produced before the concerned Court and thereafter he was sent to judicial custody.
During investigation, all the exhibits were sent to FSL through HC Ved Vir SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 20 :- Singh for biological and chemical examination and he received the copy of RC and acknowledgment regarding the same Ex.PW10/B, C, D and E. At the directions of the court, he also got verified the age of the accused and obtained the certificates of his school and mark-sheets for the same.
After completion of investigation, he filed the chargesheet against the accused. During his testimony, PW17 correctly identified the accused as well as case properties Ex.P1 to Ex.P7.
4.7 PW-20 Retired SI Jagdish deposed that on 07.08.2022 he was posted at PS C.R. Park as SI and on that day process u/s 82 CrPC against the accused Shivam @ Shibba was marked to him for execution by the SHO. Thereafter, he made a departure entry vide DD No. 22A dated 07.08.2022 PS C.R. Park Ex.CW1/A. An application of approval of Train Railway Warrants Ex.CW1/B was moved by Incharge V-B and same was allowed by the SHO and ACP. Thereafter, he went by train and get down at Tikamgarh Railway Station and took two photographs Ex.CW1/C (collectively) of himself outside the Railway Station. Then he went to the address of accused i.e. village Mathuli, District Tikamgarh, M.P. and he made inquiry about the accused Shivam @ Shibba at village Mathuli but no clue was found. Even no family members of the accused was found there. He made a public announcement at Village Mathuli and he affixed the process u/s 82 of CrPC at the notice board of village market of Mathuli. He had clicked the photographs of the same by his own mobile phone but same were not found. He had also taken the SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 21 :- photographs of one of the shops of the main market Ex.CW1/D. Thereafter, he had also taken the photographs of the Railway Station via which he returned to Delhi i.e. Railway Station Sihor Ex.PW20/P1.
On 13.08.2022 he returned to Delhi and made DD No.36A regarding his arrival in the police station C.R. Park Ex.CW1/E. He also came to Saket Court and affixed the process u/s 82 CrPC outside the notice board of the Court and thereafter he had given a detailed report regarding execution of his process u/s 82 Cr.P.C Ex.CW1/F. PW20 was duly cross examined by Ld. Legal Aid Counsel for the accused.
4.8 PW-21 Inspector Gianender deposed that on 03.01.2024 he was posted at PS Chitranjan Park as Inspector Investigation and accused Shivam @ Shibba was declared Proclaimed Offender (P.O) during the trial of the present case.
On 12.02.2023 the accused Shivam @ Shibba was apprehended by HC Roshan Kumar and thereafter on 03.01.2024 he filed the supplementary chargesheet u/s 174 IPC against the said accused.
PW21 was cross examined by Ld. Legal Aid Counsel for the accused. 4.9 PW-22 Anita Chhari deposed that she has been working in the above- mentioned institute since 1994. Initially, she joined as Lab Assistant and then got promoted as Scientific Assistant, then Senior Scientific Assistant and then Senior Scientific Officer in the year 2012. In the year 2011, she was working as Senior Scientific Assistant (biology), FSL, Rohini, Delhi. On 31.05.2010, 15 sealed parcels received in the office of FSL, Rohini, Delhi. The same were marked to her for SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 22 :- biological/ serological examination. The seals were found intact and were found matching with the forwarding authority's letter. The details of the exhibits found in the parcels have been mentioned in detail in his report. On examination, blood was detected on Ex.1, 2, 3a, 3b, 3c, 5a, 5b, 5c, 5d, 6a, 7, 11, 12, 14 and 15. Blood was insufficient on Ex.6b, 6c and 6g for their serological examination. Human semen was detected on Ex.10B1, 10B2 (both exhibits were two micro slides).
On serological examination, human blood of 'O' group was found on the Ex.1, 2, 3a, 3b, 5a, 5c, 5d, 7, 11 and 15. On serological examination, human blood was found on Ex.3c but the blood group could not be concluded, human blood was found on Ex.5b, 6a and Ex.12 but there was no reaction for blood grouping. The Ex.14 could not be examined for species of origin and blood grouping as sample was purified. The remnants of exhibits were resealed with seal of AC FSL DELHI. Her detailed report dated 08.02.2011 in this regard is now Ex.PW22/P1. The serological examination report regarding the exhibits is now Ex.PW22/P2.
PW-22 was duly cross-examined by Ld. Defence counsel.
5. EXAMINATION OF ACCUSED U/S 313 CrPC 5.1 After conclusion of prosecution evidence, accused Shivam @ Shibba was questioned u/s 313 CrPC regarding incriminating circumstances appearing against him. He stated that he is innocent and has been falsely implicated in the present case.
6. DEFENCE EVIDENCE SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 23 :- 6.1 No defence evidence was led by the accused.
7. The Ld. Additional Public Prosecutor and the Ld. Counsel for the accused advanced the final arguments:
7.1 Thereafter, arguments of both parties were heard.
8. Submissions of Ld. Additional Public Prosecutor :
Ld. Additional Public Prosecutor argued that initially the accused was complainant and on his complaint FIR was registered subsequently during investigation, it was surfaced that accused has committed murder of his chachi which he revealed in his disclosure. The prosecution has been able to prove the case against the accused beyond reasonable doubt and thus, the accused is liable to be convicted for the offence he has been charged with. He argued that though there is no eye-witness to the offence and case is based on circumstantial evidence, however, the prosecution has proved all the circumstances beyond reasonable doubt so as to complete the link in the chain of circumstances. He further argued that from the material on record, it is clear that the story prepared by the accused that one Rahul and one fatty man murdered the deceased Sharda has been proved to be false as it was not possible for anyone to come down into the place of incident and further that during the investigation there was no sign of any forceful entry at the gate of the apartment. He further argued that accused has got recovered the alleged weapon of offence i.e. Axe from the jungle on his instance and it was not possible for anyone to SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 24 :- hide the same at such place except the accused. He further argued that the medical evidence in the form of postmortem report and subsequent opinion which proved that the injuries on the neck of the deceased were possible by the alleged weapon, which got recovered by the accused. Ld. Additional Public Prosecutor further contended that apart from accused and deceased, no one was present in the room of RWA and it was only within the special knowledge of the accused as to how the offence was committed in the close room. It is further argued that during trial accused was declared P.O and committed another offence u/s 174-A of IPC and prosecution witnesses have also proved the case beyond reasonable doubt. Hence, accused may be convicted in all the offences charged against him.
9. Submissions by Ld. Counsel for accused:
On the other hand, Ld. Counsel has argued that the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt. He further argued that there is no eye- witness in this case and the prosecution has not proved all the circumstances against the accused and there is no link in the chain of circumstances and thus, the accused deserves the benefit of doubt. As far as the recovery of the alleged weapon of offence, at the instance of accused is concerned, the Ld. Counsel argued that the said recovery is doubtful because of discrepancies in testimonies of the PWs on the point of recovery and arrest. Moreover, no independent public person from the neighbourhood was examined by the IO, which creates doubt in the recovery. She contended that the prosecution has failed to prove SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 25 :- the motive as to why the accused would commit the murder of his Chachi while submitting that none of the PWs has proved any motive on the point of accused except his own disclosure statement. Moreover there are so many material contradictions, inconsistency, improvements and discrepancies in the testimonies of the PWs which creates doubt in prosecution story. Ld. Defence Counsel argued that the finding of guilty cannot be written against the accused on the basis of circumstantial evidence led by the prosecution. It is further argued that prosecution failed to prove execution of process as per law prescribed in Section 82 of Cr.PC. He further contended that even arrest of the accused has not been made as per law and even supplementary charge-sheet was filed mechanically and in haste manner, therefore, prosecution has failed to bring guilt of accused u/s 174-A of IPC to which accused was charged additionally. Hence requested acquittal of the accused in this case.
10. In the rebuttal, the Ld. Additional Public Prosecutor submits that since the offence had taken place in a close room and deceased was the Chachi of the accused, therefore, the prosecution cannot be expected to lead evidence regarding the motive, which largely remained in the mind of accused only.
11. I have heard the arguments advanced by the Ld. Prosecutor and perused the record carefully.
12. Analysis with appreciation of evidence & Law:
SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 26 :- 12.1 It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. However, the burden on the prosecution is only to establish its case beyond all reasonable doubt and not all doubts. Here, it is worthwhile to reproduce the observations made by Venkatachaliah, J., in State of U.P. Vs. Krishna Gopal and Anr., (1988) 4 SCC 302:
"25. ... Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.
26. The concept of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice." [See also Krishnan Vs. State, (2003) 7 SCC 56; Valson and Anr. Vs. State of Kerala, (2008) 12 SCC 24 and Bhaskar Ramappa Madar and Ors. Vs. State of Karnataka, (2009) 11 SCC 690].
12.2 Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 27 :- the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. [Vide Kali Ram Vs. State of Himachal Pradesh, (1973) 2 SCC 808; State of Rajasthan Vs. Raja Ram, (2003) 8 SCC 180; Chandrappa & Ors. Vs. State of Karnataka, (2007) 4 SCC 415; Upendra Pradhan Vs. State of Orissa, (2015) 11 SCC 124 and Golbar Hussain & Ors. Vs. State of Assam and Anr., (2015) 11 SCC 242].
12.3 However, the rule regarding the benefit of doubt does not warrant acquittal of the accused by resorting to surmises, conjectures or fanciful considerations, as has been held by this Court in the case of State of Punjab Vs. Jagir Singh, (1974) 3 SCC 277:
"A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge, the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy, on grounds which are fanciful or in the nature of conjectures."
12.4 Similarly, in Shivaji Sahebrao Bobade & Anr. Vs. State of Maharashtra, (1973) 2 SCC 793, V.R. Krishna Iyer, J., stated thus:
SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 28 :- "The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community."
12.5 Keeping in mind the aforesaid position of law, we shall examine the arguments advanced and the evidence adduced by the parties as also the materials on record and see in view of the nature of offence alleged to have been committed by the accused in the facts and circumstances of the case.
In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel to the entire distance from 'may have' to 'must have', which warrants the conviction of the accused on the touch stone of the golden principle of criminal jurisprudence that the guilt of the accused has to be proved beyond reasonable doubt. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
13. Now, I proceed with the present case, as the accused has been charged for the commission of offence u/s 302/203 IPC, however, during the course of trial the accused was declared Proclaimed Offender and again arrested, therefore, additional charge u/s 174A Part-II IPC was also framed.
The Section 300 IPC reads as under:-
"300 Murder Except in the cases hereinafter excepted, culpable homicide is SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 29 :- murder, if the act by which the death is caused is done with the intention of causing death, or--
Secondly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
Thirdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
Fourthly.--If the person committing the act knows that it is so im-minently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
The Section 203 IPC reads as under:-
"Giving false information respecting an offence committed:- Whoever knowing or having reason to believe that an offence has been committed, gives any information respecting that offence which he knows or believes to be false, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both"
The Section 174A IPC reads as under:-
"Non-appearance in response to a proclamation under section 82 of Act 2 of 1974. - Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offence, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.
SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 30 :-
14. Now, let us discuss if the prosecution has been able to prove the case against the accused beyond reasonable doubt.
14.1. Admittedly, in this case, there is no eye witness to the incident in question. The case of the prosecution rests upon the circumstantial evidence. The law regarding the circumstantial evidence has been settled by the Hon'ble Supreme Court in its various judgments. In the judgment of Nazir Khan Vs State of Chhatisgarh reported as MANU/CG/1220/2024, the Hon'ble High Court of Chhattisgarh dealt with a case based upon circumstantial evidence and discussed in detail the earlier pronouncements of the Hon'ble Supreme Court on the subject. The relevant observations of the Hon'ble High Court of Chhatisgarh in the aforesaid case. The relevant observations contained in paragraphs 14 to 20 as reported by MANUPATRA, are reproduced hereunder:-
"14. It has been consistently laid down by the Supreme Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan, MANU/SC/0094/1977 : AIR 1977 SC 1063; Eradu and Ors. v. State of Hyderabad, MANU/SC/0116/1955 : AIR 1956 SC 316; Earabhadrappa v. State of Karnataka, MANU/SC/0530/1983 :
1983:INSC:23 : AIR 1983 SC 446; State of U.P. v. Sukhbasi and Ors., MANU/SC/0115/1985 :
AIR 1985 SC 1224; Balwinder Singh v. State of Punjab, MANU/SC/0160/1986 : AIR 1987 SC 350; Ashok Kumar Chatterjee v. State of M.P., MANU/SC/0035/1989 : AIR 1989 SC 1890. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, MANU/SC/0158/1954 : AIR 1954 SC 621, it was laid down by the Supreme Court that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 31 :- negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
15. We may also make a reference to a decision of the Hon'ble Supreme Court in C.Chenga Reddy and Ors. v. State of A.P., MANU/SC/0928/1996 : 1996: INSC :
729 : (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
15. In Padala Veera Reddy v. State of A.P. and Ors., MANU/SC/0018/1990 : AIR 1990 SC 79, it was laid down by the Supreme Court that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
16. In State of U.P. v. Ashok Kumar Srivastava, MANU/SC/0161/1992 : 1992 Crl.LJ 1104, it was pointed out by the Supreme Court that great care must be taken in SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 32 :- evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
17. Five golden principles which constitute Panchseel of proof of case based on circumstantial evidence have been laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, MANU/SC/0111/1984 :
1984:INSC:121 : (1984) 4 SCC 116, which state as under:-
"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be" established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved;
and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
18. In the matter of Trimukh Maroti Kirkan Vs. State of Maharashtra, MANU/SC/8543/2006 : (2006) 1 SCC 681, the Supreme Court has held as under:-
"12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 33 :- that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence."
19. The principles of circumstantial evidence is reiterated in Nizam and another vs. State of Rajasthan, MANU/SC/0964/2015:
2015: INSC:640 : (2016) 1 SCC 550, wherein the Supreme Court has held that:-
"8. Case of the prosecution is entirely based on the circumstantial evidence. In a case based on circumstantial evidence, settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused totally inconsistent with his innocence."
20. Therefore, it is to be seen whether the prosecution has been able to prove the circumstances against the accused in the manner that all the links in the chain of circumstances are complete and there is no other hypotheses than the one that it was the accused only, who committed the offence in this case.
21. At the very outset, it can be seen that prosecution had also tried to build up its case on the statement given by PW-15 to police wherein he stated that accused Shivam who came running in perplexed condition and informed the guard posted at Narmada Apartment gate no.2 that his aunt namely Sharda has been murdered with an axe but PW-15 during his examination in court become hostile on the identity of the accused and other material aspect of the case and thereafter PW-15 was cross SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 34 :- examined by Ld. Addl. PP for the state at length.
Moreover, it can be seen from the testimonies of PWs that there are inconsistencies, improvements, contradictions and embellishments in their testimonies which go to the root of the case and hamper the case of the prosecution which can be seen as under:-
21.1 Contradictions/ discrepancies which makes information and incident doubtful:
It is interesting to note that in the entire charge-sheet the Investigating Officer nowhere mentioned as to who had firstly informed the police and how they came in action and reached at the place of incident along with other police officials. As per the testimony of PW15 Santosh Bhardwaj, he made call to the police from his mobile number 9811805243 and thereafter police came and investigation was initiated. However, PW12 SI D.P. Singh deposed that IO informed him regarding call of murder but PW8 Duty Officer HC Kamal Ram in his entire testimony nowhere mentioned how and who had informed about the incident, even DD entry is silent to the effect that any call or information of murder of deceased Sharda received in the Police Station and pursuant to that police came in action. PW3 Const. Mukesh who was along with IO deposed that after knowing the information about the murder PCR officials were already present on the spot. Then again it is mystery as to who informed the P.C.R. Therefore, prosecution has been failed to bring on record any material which show as to who and how, first informed the police about the occurrence of the incident and set the law into motion, creates doubt and suspicion regarding presence of police officials on the spot and investigation as well.
SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 35 :- 21.2 Unproved recovery of weapon of offence i.e. Axe Ld. Defence counsel argued that the FIR is also defected as the seizure memo of Axe and arrest memo are defected. It is submitted that accused Shivam was in police custody remand for two days and said fact was admitted by PW2 Beliram in his cross examination and during that time the police has framed the offence against the accused and made his arrest in Daily Diary dated 30.03.2010 as shows in arrest memo.
It may be seen that as per the charge-sheet, the Axe with blood stained was recovered at the instance of accused Shivam from the place of incident i.e. Jahan Panah Forest adjacent to the Narmada Apartment. However, as per PW4 Duli Chand in his cross examination has deposed that Axe was lying inside the Narmada Apartment. PW-2 Beliram, during cross examination by Ld. Addl.PP, voluntarily deposed that blood stained Axe was lying outside the room itself. PW-2 Beli Ram during examination in chief become hostile on the aspect that he stated to police that accused disclosed in his presence that he had killed his wife with an Axe which he had thrown in Jahan Panah forest and confronted with his supplementary statement dated 30.03.2010 Ex.PW2/X where it was so recorded. PW-17 (IO) in cross examination admitted that no videography or photography was done regarding the recovery proceeding of the Axe. In cross examination PW17 Anil Dureja (IO) deposed that no public person was joined as witness in recovery of Axe despite his request but no notice was served or action was taken by him. Even IO did not bother to send Axe to match the finger print of the accused on the Axe allegedly used by the SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 36 :- accused. PW-2 Beli Ram in his cross examination admitted that he had stated to the police on 25.03.2010 at about 9 pm he received call of accused Shivam and he informed that someone gave Axe blow on his wife Sharda which is not recorded in his statement u/s 161 CrPC. Therefore, in view of the above there are material contradictions in the testimonies of PW2, PW4 and PW17 regarding the recovery of weapon of offence i.e. Axe which creates suspicion in the recovery of weapon and cast doubt in the prosecution case.
21.3. Contradictions which make recovery of blood stain clothes of accused doubtful.
PW17 in his examination in chief deposed that accused produced the shirt and pant which were worn by him at the time of committing murder which was seized vide seizure memo Ex.PW11/E but in his cross examination PW17 contradicts himself and deposed that clothes produced by the accused have blood stains on them, which is not mentioned in chief examination. It may be seen further that another witness PW11 Sanjay Singh deposed that the accused got recovered his blood stained clothes i.e. shirt off-white with orange spots and faded colour with star print pant from RWA office but PW17 (IO) did not mention about the description of colour and print of the allegedly recovered clothes of accused. PW12 SI D.P. Singh in his cross examination deposed that accused also produced shirt & pant which he was wearing at the time of incident but in further chief of this witness, when sealed parcel no.13 opened and shown to this witness, it was contained one shirt and jean pant having cut SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 37 :- marks but interestingly none of the witness mentioned in their testimony regarding jean pant having cut marks.
It may further be seen that clothes of the accused which were sent to FSL in parcel no.13 for examination by IO PW17 containing in Ex.PW13/A, one dirty shirt kept in polythene bag (which does not find mention about blood stains) Ex.PW13/B, the jeans pant kept in polythene bag but none of the above exhibit find mention about any blood stain on the cloths of the accused.
Moreover regarding result of FSL report Ex.PW17/P-1, PW22 Ms. Anita Acharya, Senior Scientific Official, FSL deposed that the result of the above analysis is that blood stain could not be detected on Ex.PW13/A i.e. shirt of the accused and Ex.PW13/B i.e. pant of the accused which creates serious doubt about the recovery of the alleged blood stain clothes allegedly worn by accused at the time of committing alleged offence and seriously damaged the case of prosecution.
21.4 Improvements in the testimonies of PWs create doubt in prosecution case.
PW4 Duli Chand in his cross examination has been confronting on many aspect on his statement u/s 161 CrPC Ex.PW4/B i.e. on the aspect of private accommodation to PW2 that he along with PW2, his deceased wife Sharda and accused reached at Narmada Apartment and thereafter he left at about 4 to 4.30 pm whereas in his statement u/s 161 CrPC Ex.PW4/B, deceased wife and PW2 Beliram and accused not mentioned. PW4 in his examination in chief deposed that on 28.03.2010 at 5.30 pm when he left from Alaknanda site, PW2, his deceased wife and SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 38 :- accused were present.
It may be seen that PW4 was also cross examination by Ld. Addl. PP for state by putting leading question when he resiled from his statement u/s 161 CrPC Ex.PW4/B wherein he stated that he got contract of work in RWA Office at Narmada Apartment and he along with PW2 Beliram and other labour were going Narmada Apartment, Alaknanda on 27.03.2010, accused Shivam also insisting to go with Beliram and his deceased wife Sharda Devi and this fact was not deposed by the witness in his examination in chief.
It is pertinent to mention that PW2 and PW4 and other witnesses deposed in their testimonies that one security guard was also present but during investigation IO did not bother to make him witness rather he made witness to security Incharge Santosh (PW15) whose presence has not been mentioned by any of the witnesses which cast serious doubt about the way and manner investigation was conducted by PW17. Moreover, PW12 in his cross examination also admitted that security guard was also present but PW17 (IO) made witness PW15 security incharge instead of security guard as witness, reasons best known to him, whereas PW12 in his cross examination does not remember that security incharge has reached there on the spot. Further PW4 in his examination in chief deposed that he was informed by security guard about murder of Sharda Devi at about 9 / 9.15 pm. It is to be seen that the place where incident took place was the gated apartment and security guard was deputed and arrival entry register was also being maintained but IO did not bother to seized the register and investigate on the aspect of entry and exit of the persons on the SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 39 :- day of incident and that too when PW17 in his cross examination admitted that RWA maintained register and they make entry of arrival in RWA area but he did not seize register. He further deposed that some constructions are going on in RWA and accused and his uncle (PW2 Beliram) and contractor (PW4 Duli Chand) hired them and provide them accommodation in RWA office but there is no member of RWA has been examined by the IO or made witness in respect of this fact that the contractor was hired by RWA and PW2 and his deceased wife and accused was there because of the construction activities as labour / mason which creates serious suspicions in prosecution case.
21.5 Contradictions which makes presence of police officials on the spot doubtful.
Surprisingly in this case none of the police witness, even IO PW-17 in their entire testimony nowhere explained as to how PW-11 Inspector Sanjay Kumar Singh had reached on the spot, who called him and his joining of investigation despite presence of PW-11 is doubtful. Interestingly, PW-17 has made him witness in arrest memo Ex.PW11/A, personal search memo Ex.PW1/B, disclosure statement of accused Ex.PW11/C, pointing out memo of place of incident Ex.PW11/D, recovery of pant-shirt of accused Ex.PW11/E, pointing out memo and recovery of Axe Ex.PW11/F. It may be seen that none of the police witnesses have whispered about the presence of PW-11.
After having examined the depositions of PWs, presence of police officials also become doubtful as PW17 (IO) in his examination in chief deposed that PW3 and PW12 were already present on the spot but in his cross examination he deposed SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 40 :- that PW3 and PW12 and other persons were found present along with some members of RWA. Further PW17 admitted in his cross examination that in the statement u/s 161 Cr.PC of PW2 Beliram, the fact regarding making of phone call by accused to him is not mentioned. Even PW2 Beliram in his examination in chief deposed that accused had call him and informed him about murder of his Chachi (wife of PW2) but this fact is not mentioned in this statement u/s 161 Cr.PC Ex.PW2/X. PW17 in his cross examination and PW2 and PW4 in their examination in chief deposed that during investigation it is confirmed that PW2 Beliram was sent to Lajpat Nagar in morning at 8 am by PW4 Duli Chand but this fact is not find mentioned either in the statement u/s 161 CrPC of PW2 and PW4 Ex.PW2/X and Ex.PW4/B respectively, which also raised eyebrow and create doubt about the serious lapse in the investigation on the part of the IO. Further PW17 in his cross examination deposed that only three persons engaged on the construction of RWA office i.e. PW2 Beliram, his deceased wife Sharda and accused Shivam but PW2 Beliram in his cross examination stated that four meson were working and PW4 had appointed them to construct parfet boundary wall.
21.6 Site plan also remained unproved There is a settled proposition of law that site plan is not substantive evidence by itself rather it is a supporting document that must be accepted and get it in the light of the testimony and other evidence. If the testimony of the witness(s) about the site plan is doubtful or contradictory, it weakens the reliability of that site plan. Reliance SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 41 :- can be placed on Sukhdev Singh Vs. State of Madhya Pradesh M.Crl (C) 2726/2017; Ashok Jaiswal Vs. State.
In the case in hand, it may be seen that there are discrepancies in the testimony of PW-10 SI Mahesh Kumar (draftsman), who prepared the site plan Ex.PW10/A. PW-10 deposed that PW-17 (investigating officer) called him on the spot i.e. RWA Office, Narmada Apartment where PW-10 SI Mahesh Kumar prepared rough notes and measurements from the spot. PW-10 further deposed that on 13.05.2010 he prepared scaled site plan in his office and handed over to PW17 Insp. Anil Dureja. PW10 further deposed that he destroyed rough notes after preparing scaled site plan. But in his statement u/s 161 CrPC, PW-10 SI Mahesh Kumar stated that he has handed over on 14.05.2010 to PW17 the scaled site plan which is contrary to his testimony, therefore, there is discrepancy in date of hand over of site plan. Further PW-10 in his statement to PW-17 stated that on the pointing out of PW-17 he has prepared site plan of RWA Office, Narmada Apartment where dead body of Sharda lying and he has also been shown place Jahan Panah forest from where Axe used in crime has been recovered by PW-17. It may be seen that PW-10 has even not uttered single word in his testimony in court regarding of dead body of Sharda lying and even not whispered about showing Axe in Jahan Panah forest but contrary in Ex.PW10/A, he has mentioned the same. Moreover, rough notes and measurements have not been placed on record to show the truthness of scale site plan Ex.PW10/A. Further, PW17 (IO) in his cross examination does not remember whether there was any wire fencing on the boundary wall whereas in scaled site plan Ex.PW10/A SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 42 :- wire fencing has been shown on boundary wall and interestingly site plan got prepared by IO himself, therefore, preparing of site plan also creates suspicion in the prosecution case and seriously damaged the case of prosecution.
21.7 Arrest of accused becomes doubtful.
As per the cross examination of PW-2, he deposed that he reached at the spot about 9 / 9.30 pm and at that time accused Shivam was also found present there. He further deposed that police officials were also present there. He further deposed that he was separated from Shivam by the police and Shivam was not interrogated by police in his presence. Further PW-2 in his cross-examination admitted that the accused Shivam was arrested by police on 28.03.2010. But as per arrest memo Ex.PW11/A, date of arrest shown as 30.03.2010 at 10.15 am.
Further as per PW-4 Dulichand, in his examination in chief deposed that on 28.03.2010 at about 9/ 9.15 when he was informed about murder of Sharda Devi, he immediately reached on the spot where police officials were already present there and Shivam was also present there. PW-4 further deposed in examination in chief that during inquiry by police accused Shivam disclosed the fact that murder of Sharda Devi was committed by one fatty man namely Rahul, who was residing in the Bass Gaon, Bhati Colony, so he accompanied with the police official reached at Bass Gaon.
Regarding non-joining of any independent public witness despite availability during investigation. It may be seen that PW-17 Investigating Officer ACP (the then SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 43 :- Inspector) Anil Dureja in his cross examination deposed that public persons and members of RWA were present at the spot and he asked them to join but none agreed but he did not issue any notice to such public persons. PW-5 Const. Babinder in his cross examination also deposed that 8-10 public persons including RWA officials and guard were present but IO had not made them as witness. PW-12 SI D.P. Singh in his cross examination admitted that IO had asked public persons to join investigation including the RWA people. PW-15 Santosh Bhardwaj in his cross-examination by Ld. Addl. PP deposed that police reached at office of RWA and he along with other persons of RWA had informed the police about who was present there and who gave information of murder. It may be seen that the entire testimonies of the PWs are doubtful as there are no independent corroborative witness has been made despite their availability, therefore, legality and reliability of arrest of accused Shivam significantly affect the credibility of the evidence produced by the prosecution.
22. It is seen that public persons were available at the spot but there was no explanation during trial as to why they were not joined in proceedings. Evidence of police officials which are full of improvements and contradictions, unassociated by testimony of any independent witnesses at the time of alleged arrest of accused, recovery of weapon i.e. Axe (kulhari), recovery of clothes of accused and preparing of site plan of incident do not inspire confidence.
23. In the case of Pradeep Narayan Madgaonkar v. State of Maharasthra reported at (1995) 4SCC 255 it has been held by the Apex Court:
SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 44 :- "11. ... Indeed, the evidence of the officials (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigating or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation, requires greater care to appreciate their testimony. We cannot lose sight of the fact that these police officials did not join any independent witnesses of the locality and made an attempt to create an impression on the courts that both PW 2 and PW 5 were witnesses of locality and were independent, knowing fully well that PW 2 was a witness who was under their influence and „available‟ to them, as he had been joining the raids earlier also and PW 5 was a close associate of PW 2, their friendship having developed during the days of gambling when admittedly the police never conducted any raid at their gambling den.
12. The very fact that the police officers joined PW 2 and PW 5 in the raid creates a doubt about the fairness of the investigation. Coupled with this is the manner in which the confessional statement of A-1 and A-2 was recorded by Hemant Karkare PW 3, which has been rightly discarded by the Designated Court itself. Even if we were to ignore the tell-tale discrepancy in the number of the room i.e. 3323 or 3334, from where the appellants were arrested, accepting the explanation of the prosecution that it was as a result of typographical error, it looks to us rather strange that the discrepancy should have come to the notice of the investigating officer only when he filed his affidavit in the Supreme Court in the special leave petition filed by the absconding accused, yet in the totality of the circumstances of the case and after a careful analysis of the evidence on the record we find it rather unsafe to rely upon PW 1, PW 4 and PW 6 only without there being any independent corroboration of their testimony, to uphold the conviction and sentence of the appellants. We cannot lose sight of the fact that since the mere possession of an arm, as specified in the schedule, without a licence, in a notified area, attracts the provisions of Section 5 of TADA with stringent punishment, the quality of evidence on which the conviction can be based has to be of a much higher order than the one we find available in the present case. Our independent appraisal of the evidence on the record has created an impression on our minds that the prosecution has failed to bring home the charge to the appellants SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 45 :- beyond a reasonable doubt."
24. Since no public witness was joined at the time of arrest as well as recovery even number of public persons were present at the time of arrest of accused and recovery of weapon (Axe). It is thus evident that public persons available could have been joined as witness of recovery and arrest of accused. It would have a different matter had there been no public person available or none was willing to join. Here, as stated above, the public persons were available but no explanation on these lines is forthcoming. Thus, I am of the opinion that it would be unsafe to maintain conviction of the accused for the offences charged u/s 302/203 I.P.C. against them.
25. Charge under Section 174-A of I.P.C remained unproved 25.1 Moreover, in order to establish charge under Section 174A of IPC, the prosecution has to establish that while executing the process under Section 82 of Cr.PC, not only prescribed provisions of under Section 82 of Cr.PC has duly been complied with but also guidelines of the Hon'ble High Court of Delhi in a case, Sunil Tyagi V/S Govt. of NCT of Delhi ( 2021)SC ONLINE Del 3479 has strictly to be followed before the accused is declared as Proclaimed Offender.
25.2 Execution of process under Section 82 of Cr.PC is invalid and in violation of guidelines:
To prove the allegations of the offence under Section 174A of IPC in the present matter, the prosecution has examined three witnesses i.e PW19 HC Rohtash SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 46 :- Kumar, who arrested the accused as P.O, PW-20 retired SI Jagdish who executed the process under Section 82 Cr.PC and PW21, Inspector Gianendra I.O, who has filed supplementary chargesheet.
i) While examining the testimonies of PWs, it may be seen that the PW20 in his examination in chief has deposed that process under Section 82 CrPC against accused Shivam @ Shibba was marked to him for execution by the SHO. Thereafter, he made departure on 07.08.2022 and went to the address of the accused i.e village Mathuli District, Tikamgarh (MP). He further deposed that he made enquiry about the accused at village Mathuli, but no clue was found. No family member of the accused was found there. Thereafter, he had made a public announcement at village Matuili and he fixed the process under Section 82 of Cr.PC at the notice board of the village market at Mathuli and clicked the photographs of the same by his own mobile phone, but same were not found. He also taken the photograph of one of the shop of the main market. Same is Ex.CW1/D. Further, PW-20 deposed that after executing the process, he returned back Delhi on 13.08.2022 and also came to Saket Court and fixed the process under Section 82 of Cr.PC outside the notice board of the concern court. Thereafter, he had given a detailed report, same is already Ex.CW1/F. This witness was cross examined at length by the Ld. Council for the accused and in his cross examination, he admitted that there was no photograph of the spot where he affected the process at the market of village Tikamgarh. He further admitted that photograph Ex.CW1/ D is not having the address of Tikamgarh where he visited for the proceeding of Section 82 of Cr.PC. However, the board display at SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 47 :- the shop mentioned as Onus Agritech Private Limited Mumbai. He further admitted that he had not recorded any statement of any public person where he affixed the process under Section 82 of Cr.PC, he further admitted that his mobile phone is having camera and camera is in working condition. He further admitted that despite he had the option of video recording in his phone, he had not done videography of the process under Section 82 Cr.PC. He further admitted in cross examination that he has not given the certificate under Section 65-B of Indian Evidence Act regarding the said CD pertaining to his voice recording regarding the public announcement. PW20 has further deposed in his cross examination that he made enquiries from several people at village Mathuli, but he had not recorded this statement of said people. He further deposed that he had not placed any estimated record of travel expenses born by him which raises eyebrow and create suspicion in the execution of process under Section 82 of CrPC.
25.3 It is pertinent to mention that prerequisite to publication of proclamation under section 82 (2) of CrPC that publication by all three modes is essential namely (i) public reading in this some conspicuous place of the town / village in which such person ordinarily resides, (ii) fixation at some conspicuous part of the house or homestead and (iii) affixation at some conspicuous part of the court house are mandatory under section 82(2) of CrPC. The failure to comply with all these three modes of publication is to be considered invalid publication, according to law as the three sub clauses (a) to (c) are conjunctive and not disjunctive.
ii) It can be noticed that the process server has not executed the process as per the SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 48 :-
procedure which has been prescribed under Section 82 of CrPC. It remains unproven whether yet pasted and affected the proclamation on the address of the accused as well as on the notice board of the concerned court. It also remained unproved, whether the proclamation was publicly read for want to public persons in whose presence the same was read. No public person in whose presence the proclamation issued was read, made witness what to talk of examination as a witness by the prosecution.
Besides mandatory guidelines, namely mandatory photographs and video recording of proceedings of process under section 82 of CRPC and attachments of the video filed with prosecution material has not been done by PW-20.
iii) It may be seen that while analysing the testimony of PW20, it can easily be said that he had not executed the process under Section 82 Cr.P.C against the accused neither as per the provisions of section 82 CrPC nor in terms of the guideline of the Hon'ble High Court Delhi in Sunil Tyagi v/s Govt of N.C.T Delhi.
iv) It is the basic principle of settled law that if the manner of doing a particular act prescribed under any statute, the act must be done in that manner or not at all, reliance can be placed on "Babu Varghese versus bar Council of Kerala", (1999)3 SCC 422.
In the present case, the proclamation under Section 82 of Cr.PC against the accused Shivam has not been executed and published as per law prescribed in section 82 CrPC and thus, the prosecution has miserably failed to prove its case against the accuse beyond reasonable doubt.
SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 49 :- 25.4 Arrest of accused Shivam @ Shibba as P.O is doubtful:
i) PW-19 HC Roshan Kumar, who arrested the accused as P.O., has deposed in examination in chief that on 12.02.2023, he was informed by informer that accused, namely Shivam @ Shibba, who is PO in the present case, is coming to meet his friend at Sai Solution Phase-2, Bahadurgarh, Haryana. He further shared the information to his senior officers and they instructed him to do the needful. He further deposed that he along with HC Sunil, constable Akhlesh and secret informer went to the said spot in a private vehicle and after reaching there, the secret informer had pointed towards the accused Shivam @ Shibba and they apprehended him and brought to him in their office of a special staff. After verifying the credential, he arrested him vide arrest memo, Ex.PW19/P1 and personal search memo Ex.PW19/P2, both bears his signatures respectively. He further deposed that he prepared the said arrest memo in the presence of HC Sunil. Thereafter, he prepared a Kalandra under Section 41.1(C) Cr.PC and produced the accused before the court concern. Kalandra is Ex.PW19/P3.
ii) This witness was cross examined by the Ld. Counsel for the accused and in his cross examination, he deposed that he did not remember the exact time when he left the office for Bahadurgarh. It may be seen that in the entire supplementary charge-
sheet DD entry of departure and arrival of PW-19 has not been filed, reason best known to the IO which creates doubt about the arrest of the accused in Bahadurgarh (Haryana). He further deposed that he had not joined any local police officer during the proceeding at Bahadurgarh, he further admitted that he did not ask any public SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 50 :- person to join the police proceeding. He further deposed that there was no toll booth on the way to Bahadurgarh.
It may be seen that nothing has been brought on record to show that the accused was arrested as a PO from Bahadurgarh as nothing has been placed on record to show the visit of the PW19 alongwith other police officials, even he did not bother to make his arrival entry in the local police station to accompany him in the arrest proceedings, and that too in the other state, and further he did not ask the public person to join him while arresting the accused to show that the accused was arrested from Bahadurgarh, which again makes suspicion and creates doubt regarding the arrest of the accused as a P.O.
iii) There are other discrepancies surfaced, which can be seen, apparently, that the PW20 Rohtash Kumar left alongwith HC Sunil and constable Akhlesh but in the arrest memo, Ex.PW19/P1 and personal search memo Ex.PW19/P2, only HC Sunil has been made witness and constable Akhlesh has not been made witness which raises eyes brows and create suspicion in the prosecution story. It is further interesting to note that PW19 and PW20 in supplementary chargesheet have only been shown as a witness, but their statements under Section 161 Cr.P.C. has not been recorded by the IO reason best known to IO and they have been directly called in court for deposition which itself causes serious damage to the prosecution case. Further even PW-21 did not bother to record the statement of the senior officers to whom PW-19 had shared information regarding the presence of accused in Bahadurgarh (Haryana) which cast serious doubt about the arrest of the accused SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 51 :- Shivam as P.O in Haryana.
iv) Moreover, another witness, PW-21 Inspector Gyanendra has deposed in his examination in chief that after the arrest of the accused Shivam @ Shibba as P.O by HC Roshan Kumar, he had prepared and filed supplementary chargesheet under Section 174A IPC against the accused Shivam Shibba.
It is interesting to note that PW-21 being IO of supplementary charge sheet, in his cross examination deposed that the accused was not arrested in his presence. This court has failed to understand as to what procedure has been followed by the IO before filing of the supplementary chargesheet. It may be seen that PW21 being a IO of the case, neither arrest of the accused made by him nor personal search of accused was conducted by him, even he did not bother to record any statement of the witnesses and only filed the supplementary chargesheet which is in itself clear violation of the procedure prescribed in Code of Criminal Procedure regarding investigation.
Thus, in view of the above discussion, the prosecution has also failed to prove the case beyond reasonable doubt against the accused Shivam @ Sibba qua offence under section 174 A IPC.
After having examined the testimonies of the aforesaid prosecution witnesses, which are full of contradictions, improvements, discrepancies and embellishment which are material in nature and go to the root of the matter and has shaken the basic version of the prosecution case and impeach the credibility of the witnesses. The testimonies of the witnesses are not only contradictory to that made by them in their SC No. 1858/2016 FIR No.: 60/2010 State Vs Shivam @ Shibba PS : C. R. Park -: 52 :- statement made to the police but also appears to be a deliberate attempt to change and improve upon on the original statement to the prejudice of the accused with regard to his involvement in the alleged incident, his arrest and recovery of weapon.
26. Conclusion Keeping in view the fact and circumstances of the case, I am of the considered opinion that prosecution has miserably failed to prove its case against the accused Shivam @ Sibba beyond the reasonable doubts, accordingly accused is hereby acquitted for the charged offence under Section 302 / 203 of IPC and 174A of IPC. File be consigned to record room after due compliance.
Digitally
signed by lalit
lalit kumar
Date:
kumar 2025.09.23
17:52:55
+0530
(Announced in the Open Court (LALIT KUMAR)
on 23rd September 2025) Additional Sessions Judge (FTC-01):
(This judgment contain 52 pages and South-East: Saket District Court
each page bears my signature) New Delhi
SC No. 1858/2016 FIR No.: 60/2010
State Vs Shivam @ Shibba PS : C. R. Park