Delhi District Court
State vs Surender Sharma on 30 April, 2026
IN THE COURT OF ADDITIONAL SESSIONS JUDGE (FTC)
SOUTH-WEST DISTRICT, DWARKA COURT, NEW DELHI
Presided by: Ms. Swati Gupta-I
Sessions Case No. 440448/2016
CNR No. DLSW01-000040-2012
STATE Vs. SURENDER SHARMA
FIR No : 292/2012
Police Station : Bindapur
Under Section : 302/392/411 IPC
(charges framed U/s 304/411 IPC)
In the matter of :
State
versus
Surender Sharma,
S/o Mr. Chander Pal Sharma,
R/o C-24L/1 Garima Garden Sahibabad,
Ghaziabad, U.P.
Date of institution : 06.12.2012
Date of conclusion of arguments : 30.04.2026
Date of judgment : 30.04.2026
Decision : Accused Surender Sharma is
acquitted for offence U/s
304/411 IPC.
JUDGMENT
1. Accused Surender Sharma has been charge-sheeted in the present case for alleged commission of offence under Section 302/392/411 IPC in respect of causing death of Ms. Divya (w/o Rajesh Sharma) and for committing robbery at the house of deceased and for retaining the stolen SC No.440448/2016 Digitally signed by State Vs. Surender Sharma Page 1 of 52 SWATI SWATI GUPTA GUPTA Date:
2026.04.30 17:28:50 +0530 property of Ms. Divya (deceased) and the complainant (husband of deceased).
SHORT TIMELINE OF THE TRIAL
2. The time line of trial as it proceeded from the date of cognizance till final arguments, is given as follows.
o 10.12.2012- Cognizance of the offence was taken by the Ld. MM, South West District, Dwarka Courts, Delhi.
o 18.12.2012- Case was committed for trial to the Court of Sessions after complying with the provisions of Section 207 of Cr.PC, by the Ld. MM, South West District, Dwarka Courts, Delhi. o 16.05.2013- Charge for the offences punishable under Section 304/411 IPC was framed against accused Surender Sharma, by Ld. ASJ-03, South West, Dwarka Courts, Delhi. The charge was read over and explained to the accused, who pleaded not guilty and claimed trial. o 08.07.2013 to 03.05.2023- A total of 23 witnesses were examined by the Prosecution in its evidence. Prosecution evidence was closed on 03.05.2023. o 24.07.2023- Statement of accused u/s. 313 CrPC was recorded. o 16.10.2023- Defence evidence was closed. No DE was led by accused. o 26.09.2024 till 30.04.2026- Final arguments were heard.
CASE OF PROSECUTION
3. The case of the prosecution, in brief, as disclosed from the chargesheet, is that on 04.09.2012, DD number 23A was received, whereupon SI Rakesh Kumar and Constable Attar Singh went to the spot i.e. H.No. B - 1/43, Sewak Park, Uttam Nagar New Delhi, where it was found that the spot was disturbed by the complainant Rajesh Kumar and other neighbours. It was also found that one lady whose name was later disclosed as Divya, wife of Rajesh Sharma, resident of B-1/43, Digitally signed by SWATI SWATI GUPTA SC No.440448/2016 GUPTA Date:
2026.04.30 State Vs. Surender Sharma Page 2 of 52 17:29:05 +0530 Sewak Park, Uttam Nagar, New Delhi, aged 30 years, was found to be lying on the floor near the bed in the right side room on the ground floor of the said house. As per chargesheet, near the collar bone of the deceased Divya, two marks were seen which seemed like thumb marks (अंगूठे के दबाने जैसे दो निशान) and on her neck, marks were seen which seemed like mark of chunni (चुन्नी से दबाने जैसा निशान). One dupatta/chunni was also found near the dead body on the floor. In the kitchen, it was found that there was tea in the pan and in the sink, there were two cups and other utensils.
4. Thereafter, crime team was called for taking photographs and inspecting the site. Beat Staff was also called at the spot. SI Rakesh Kumar recorded the statement of Rajesh Sharma (husband of deceased). In his statement, Rajesh Sharma stated that he got married with Divya on 18.10.2000. He had one daughter namely Disha aged eight years and one son namely Jatin aged four months. His daughter Disha was studying in second class in Central school in Janakpuri and she used to go to school in the afternoon by van and he used to pick his daughter from school in the evening everyday, while coming back from office. On the fateful day, i.e. 04.09.2012, he left home at about 9:00 am in the morning leaving behind his wife as well as both the kids. He reached home at about 6:15 pm in the evening after picking up his daughter from the school, however, he noted that the main gate of his house was locked from inside. When he knocked on the main gate and called out, nobody responded. He also called his wife on mobile phone but it was found switched off. Then he took his daughter to the back gate which opened in the narrow lane behind the house, then he saw from the window of the master bedroom that his son was lying in the trolley and was covered Digitally signed by SWATI SC No.440448/2016 SWATI GUPTA GUPTA Date: State Vs. Surender Sharma Page 3 of 52 2026.04.30 17:29:15 +0530 with a cloth. There was another gate, which when pushed by the complainant, the said gate got opened. He saw that his wife was lying on the bed inside the room and there was a chunni tied on her neck. He opened the chunni and with the help of his friend Naveen, he took the body of his wife down. He said that on the neck of his wife, near the collar bone, there were two marks as if someone had pressed by thumb and on her neck there was a mark as if someone had pressed by chunni. Then he called at 100 number and on getting his wife checked from neighbourhood doctor, Dr. Amit Rajput, his wife was found to be dead. He alleged that somebody had killed his wife by strangulating her.
5. On the statement of the complainant, FIR under Section 302 IPC was registered and thereafter, investigation was conducted including preparation of site plan, collecting evidence such as chunni and bedsheet. Supplementary statement under Section 161 CrPC of the complainant was also recorded wherein he stated that a sum of ₹40,000 cash, one gold chain, one gold ring, one gold mangalsutra, one Airtel mobile and a bunch of keys were stolen. On the basis of the said statement, Section 392 IPC was added to the FIR. During investigation, it was revealed that the accused Surender Sharma was constantly in touch with deceased Divya through mobile number 8802201854 (deceased) and 9818427140 (accused Surender Sharma). On 03.09.2012 also, they spoke for about 6-7 minutes. On 04.09.2012, there was an SMS received on the mobile number 9818427140 of the accused Surender Sharma at 2:47 pm and at that time his location was found to be of Sewak Park, Uttam Nagar. Thereafter, interrogation was conducted from the accused Surender Sharma, whereupon he confessed to the crime committed by him and his disclosure statement was recorded. As Digitally SC No.440448/2016 signed by SWATI State Vs. Surender Sharma Page 4 of 52 SWATI GUPTA GUPTA Date:
2026.04.30 17:29:22 +0530 per chargesheet, accused Surender Sharma disclosed in his statement that he used to be friendly on phone with the deceased (wife of his brother-in-law) and he used to love her. On 04.09.2012, he went to the house of his brother-in-law, where he found deceased Divya to be alone. He caught her with wrong intention, on which the deceased threatened to tell her husband Rajesh and wife of accused Smt. Poonam. On this, accused felt angry and pushed her with the intention to kill her, upon which she fell on the floor unconscious. Thereafter, with the intention to kill her, he pressed her neck with thumbs and chunni. Further, in order to mislead police, he also took one gold chain, one gold ring, one gold mangalsutra, ₹40,000, one mobile, one bunch of Keys and a piggy bank. Thereafter, he sold the jewellery to his childhood friend namely Bal Kishan and spend the money which was received from the jewellery. Accused was arrested on 08.09.2012.
6. Thereafter, at the instance of accused, ₹40,000 cash, one Airtel SIM number 9818427140 and car bearing number DL5CE3872 make Nano, were recovered. Further, from the shop of Bal Kishan, at the instance of accused, one gold chain, one gold ring and one gold mangalsutra were also recovered in the presence of complainant which were identified by the complainant immediately. Thereafter, Section 411 IPC was also added. On the basis of the investigation, present charge- sheet has been filed under Section 302/392/411 IPC against the accused Surender Sharma.
CHARGE
7. During trial, on the basis of arguments, it was held that there was strong suspicion that the accused had committed offences punishable under Section 304/411 IPC and a prima facie case was made out against Digitally SC No.440448/2016 State Vs. Surender Sharma Page 5 of 52 signed by SWATI SWATI GUPTA GUPTA Date:
2026.04.30 17:29:29 +0530 him for the said offences. Accordingly charge under the said Sections was framed against the accused, to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
8. During the course of trial, in order to prove its case, prosecution examined 23 witnesses, which are summarized as follows.
8.1 PW-3/Rajesh Sharma is the complainant in the present case and husband of deceased Ms. Divya Sharma. Accused is his real brother-in-law (jija). He deposed that he was married to deceased Divya on 18.10.2000 and had two children i.e. daughter namely Disha Sharma and son namely Vedant Sharma. He stated that his daughter Disha Sharma was studying in Class-II at Kendriya Vidyalaya, C-II, Janakpuri, Delhi and she used to go to her school by a private van in the afternoon. In the evening, he used to bring her back. On the day of incident i.e. 04.09.2012, at about 9:00 am, he left his house for his office leaving his wife and children at home and at about 6:15 pm when he returned alongwith his daughter, he found both the doors of the main gate were bolted from inside. He knocked at the gate many times but there was no response and the gate was not opened. Thereafter, he asked his daughter to enquire from the neighbours as to whether his wife was there or not. He rang the mobile phone having dual SIM of his wife bearing mobile No. 9911743744 and 8802201854, from his mobile number 9212005445, but the same was found switched off. Thereafter, he alongwith his daughter Digitally SC No.440448/2016 signed by SWATI SWATI GUPTA State Vs. Surender Sharma Page 6 of 52 GUPTA Date:
2026.04.30 17:29:35 +0530 and the lady neighbour went to the rear side gali of his ground floor flat and found that the window of his bedroom was open and through it, he saw that his 4 months old son Vedant @ Jatin was lying in the trolley for babies, having a cloth over his face. He also found that the light, fan, cooler and TV switched in and the door of the said room was closed. He took a wooden danda and put it through the said window and removed the cloth from the face of his son. Thereafter, he pushed the back side iron door of his flat which used to open towards the gali side and as a result of the said push, the said gate opened towards the gali side and thereafter, he pushed the wooden door which used to open inside the flat and the said door opened. Thereafter, they entered inside his flat and found that on the left side diwan (single bed) his wife Divya was lying on the diwan motionless and one chunni was tied around her neck. He called her many times and tried to shake her body but there was no response and she was motionless. Thereafter, he untied the said chunni from her neck and found that there were two oval shaped strangulation marks of inch each in the neck of his wife near collar bone and there was also mark around the neck which seemed to be due to strangulation by chunni. Thereafter, upon hearing noises, many neighbours gathered there and thereafter, he went to call the neighbour Dr. Amit Rajput and he also called his friend Naveen Sharma at his mobile No. 9212456227 and asked him to come home. After examination, Dr. Amit Rajput declared Digitally SC No.440448/2016 signed by SWATI SWATI GUPTA State Vs. Surender Sharma Page 7 of 52 GUPTA Date:
2026.04.30 17:29:42 +0530 Divya dead. Thereafter, PW3 alongwith his friend Naveen Sharma, removed the body of Divya Sharma from the bed and put it on the floor. Naveen Sharma made phone call to the police. Police came at the spot and recorded his statement Ex.PW3/A and inspected the spot, prepared the site plan Ex.PW3/B and took into possession the bedsheet and chunni from the spot vide memos Ex.PW3/C and Ex.PW3/D. PW3 further stated that he found that the door of the iron almirah kept in the room was closed but the same was not locked and after opening the same, he found that the iron gullak containing one gold chain, ring, mangalsutra and cash amounting to Rs. 45-50,000/- was missing. The bunch of keys of almirah, the mobile phone of deceased with two SIM cards, a bunch of keys of the front doors and back doors of the flat and one lock of the back iron gate were also found missing. He also stated that photographs of crime scene were also taken in his presence. He further stated that after registration of this case, the dead body of his wife was sent to Mortuary of DDU hospital, where he correctly identified the same vide memo Ex.PW3/E and after the postmortem, the dead body was handed over to him vide handing over memo Ex.PW3/F. He further stated that on 08.09.2012, he was called by the IO Inspector Surender Kumar to the PS where he was informed that the offence was committed by Surender Sharma, his real brother-in-law ( jija) and thereafter, accused was arrested by the police in his presence vide arrest memo Ex.PW3/G, his personal search Digitally SC No.440448/2016 signed by SWATI SWATI GUPTA State Vs. Surender Sharma Page 8 of 52 GUPTA Date:
2026.04.30 17:29:50 +0530 was conducted vide memo Ex.PW3/H. He deposed that he was again called to PS in evening where he identified the stolen articles i.e. gold ring, gold mangalsutra, gold chain of his deceased wife and cash of Rs.45,000-50,000/-, which were stolen from his house on the day of incident. Upon production of case property by the MHC(M), PW3 correctly identified the same. However, as regards the currency notes amounting to Rs.40,000/-, PW3 stated that as per IO, recovered amount was between Rs.45,000 to 50,000/-. The said witness was also cross-examined by Ld. Addl. PP for the State, wherein he admitted that the name of his wife before marriage was Chanchal. He also denied the suggestion that on 08.09.2012, he had accompanied the IO and the accused to the shop no.27/8, Babarpur, Shahadara, or the said shop was identified in his presence. He further stated that even though IO had asked him to go but he had got down from the vehicle before going any further. He further denied that the stolen jewellery of his wife was recovered from Bal Kishan/PW12 in his presence or it was seized by the police in his presence. He also denied that he had not accompanied the IO to the house of accused from where the cash of Rs.40,000/- was recovered. Even though PW3 admitted his signatures on seizure memo of currency notes and of gold jewellery but he denied that the recoveries were made in his presence at the instance of accused. He also denied that he was won over by the accused being his near relative. The witness was also cross-examined in detail by ld. Counsel for Digitally signed by SC No.440448/2016 State Vs. Surender Sharma Page 9 of 52 SWATI SWATI GUPTA GUPTA Date:
2026.04.30 17:29:56 +0530 accused.
8.2 PW-5/Naveen Kumar is the friend of complainant PW-3/Rajesh Sharma. He deposed that on the day of incident on 04.09.2012, in the evening at about 5:45-6:00 pm, upon telephonic call from the complainant, he visited the house of complainant, where wife of complainant was found lying on the bed. Thereafter, doctor came at the spot and after medically checking Ms. Divya Sharma, he declared her dead. He also deposed that the almirah which was placed in the adjoining room was found open and he called the police from his mobile number. He was cross-
examined by ld. Addl.PP for the State, wherein he admitted that the body of Ms. Divya Sharma was shifted to the floor of the room from her bed by her husband Rajesh Sharma with his assistance. The said witness was cross-examined and discharged.
8.3 PW-1/Dr. Amit Rajput deposed that on 04.09.2012, he was present in his clinic in Sewak Park, Uttam Nagar and at about 6:50 pm, 2-3 ladies came to his clinic and on their request, he had gone with them to premises at H.No. B-1/43, Sewak Park, Uttam Nagar, New Delhi where he found the body of Divya Sharma who was lying on the bed in a room situated on the right side at the ground floor of the said premises and after examining her, he declared her dead. In his cross-examination, he stated that he had not seen any marks of injury on the dead body of deceased Ms. Divya.
8.4 PW-2/Ct. Pradeep Kumar (Fingerprint Expert) deposed that SWATI SC No.440448/2016 GUPTA State Vs. Surender Sharma Page 10 of 52 Digitally signed by SWATI GUPTA Date: 2026.04.30 17:30:04 +0530 on 04.09.2012, he was posted in crime team, South-West District, Dwarka and on receipt of wireless message, he reached at B-1/43, Sewak Park, Uttam Nagar (with PW4 and PW7) where the crime scene was minutely inspected by him, but despite sincere efforts, no chance prints/finger prints could be lifted from the spot. In his cross- examination, he also stated that no report to the effect that chance prints were removed from the spot was given by him. PW4 ASI Attar Singh (Incharge Mobile Crime Team) also deposed on the same lines and stated that he prepared scene of crime report. PW7 HC Suresh Yadav (Photographer) deposed that he clicked the photographs of the spot and also produced the negatives of the same. 8.5 PW-6/Shishir Malhotra is the Nodal Officer of Aircel Ltd., who had provided the CDR of mobile No. 8802201854 (phone number of deceased), which was issued in the name of one Chanchal, to the IO. He also provided Customer Application Form alongwith copy of Voter ID card of the applicant. He also provided attested Cell ID/location Chart of said mobile number alongwith certificate U/s 65-B of Indian Evidence Act. The said witness was cross-examined and discharged. PW-8/Vishal Gaurav is the Nodal Officer of Bharti Airtel Ltd., who provided the CDR of mobile No. 9818427140, which was issued in name of accused Surender Sharma, alongwith certificate U/s 65-B of Indian Evidence Act. He also produced the CAF alongwith Voter ID Card of applicant and also produced the Cell ID location Chart of said SC No.440448/2016 Digitally signed by State Vs. Surender Sharma Page 11 of 52 SWATI SWATI GUPTA GUPTA Date:
2026.04.30 17:30:25 +0530 mobile number. He also proved Distributor Tele Callings Feedback Form of the said mobile No. 9818427140. The said witness was not cross-examined despite opportunity. 8.6 PW-9/Ct. Amit Kumar was posted at CPCR, PHQ and on 04.09.2012, at about 7:18 pm, he recorded information given by one Nirmala Bhardwaj from mobile No. 9212456227 regarding the murder of one lady by strangulating using a chunni (ek lady ka murder ho gaya hai, gale mein chunni dal ke gala ghota hai ), in Sewak Park, Dwarka Mor and circulated vide PCR Form Ex.PW9/A. He produced certificate U/s 65-B of Indian Evidence Act in this regard. The said witness was not cross-examined despite opportunity. 8.7 PW-10/Ct. Attar Singh deposed that on 04.09.2012, he was on emergency duty and on receipt of DD No.23A, he alongwith SI Rakesh reached at the place of incident where one lady namely Divya was found lying dead on the floor. Site was inspected and crime team was called at the spot. The statement of complainant/husband of deceased was recorded and rukka was prepared and the FIR of present case was got registered. The case property being chunni/dupatta and a bedsheet was seized from the spot by the IO and site plan was prepared at the instance of complainant. The said witness was not cross-examined despite opportunity.
8.8 PW-11/HC Ashok Kumar is the Duty Officer-cum-DD Writer who had recorded the DD No.23A regarding information received about murder of a lady by SC No.440448/2016 State Vs. Surender Sharma Page 12 of 52 Digitally signed by SWATI SWATI GUPTA GUPTA Date:
2026.04.30 17:30:32 +0530 strangulating with chunni, and forwarded the copy of same to SI Rakesh Kumar (PW15) and Ct. Attar Singh (PW10). He also produced the original register no.2 (station daily diary of PS Bindapur). He also recorded the FIR of the present case on receipt of rukka and made his endorsement in this regard and thereafter, entrusted the investigation of this case to Inspector Surender Kumar. The said witness was not cross-examined despite opportunity. PW-14/HC Ramesh Chander deposed that he delivered the copy of FIR at the residence of concerned MM and DCP for their information, on 04.09.2012. The said witness was not cross-examined despite opportunity. 8.9 PW-12/Bal Kishan deposed that he was dealing in jewellery business in the name and style of B.K.Jewellers at Shahdara, Delhi. He stated that on 06.09.2012, accused Surender had come to his shop and mortgaged gold items i.e. chain, mangalsutra and ring and in lieu of said articles, PW12 gave him a sum of Rs.40,000/-. Accused had assured him to repay the said amount within 1-2 months.
On 08.09.2012, police officials came to his shop alongwith accused Surender and one of his relative and upon inquiry, PW12 handed over the said mortgaged gold articles to the police and the same were seized by the police vide memo Ex.PW12/A. He also deposed that the person who accompanied the accused, identified the jewellery but then he again stated that he did not remember by whom the said gold articles were identified. The said witness was cross- examined by ld. Counsel for accused.
Digitally signed by SC No.440448/2016 SWATI SWATI GUPTA State Vs. Surender Sharma Page 13 of 52 GUPTA Date:
2026.04.30 17:30:38 +0530 8.10 PW-13/Dr.B.N.Mishra was the Medical Officer-cum-
Medico Legal Expert and Criminologist, DDU hospital on 05.09.2012. He deposed that he conducted the post mortem examination on the body of deceased Ms.Divya vide PM Report, which is Ex.PW13/A. On 05.12.2012 he gave the subsequent opinion regarding ligature material Ex.PW13/B. On 20.04.2013, he gave subsequent opinion regarding cause of death Ex.PW13/C. The said witness was cross-examined in detail. The testimony of said witness and cross-examination is discussed in detail in later part of the judgment.
8.11 PW-15/SI Rakesh Kumar deposed that on 04.09.2012, he was on emergency duty from 8:00 am to 8:00 pm and at about 7:35 pm, on receipt of DD No.23A Ex.PW11/A, he alongwith Ct. Attar Singh reached at the place of incident i.e. H.No.B-1/43, Sewak Park, Uttam Nagar where dead body of female namely Divya was lying on the floor and husband of deceased namely Rajesh Sharma was also present there and the place of incident was already found disturbed. Two pressure marks were found near the collar bone of deceased and one chunni was found lying on the floor near the dead body. Some ligature marks were also observed on the neck of deceased and some tea was lying in a pot in the kitchen and two cups and other utensils were also lying in the sink of said kitchen. Thereafter, crime team was called and site was got inspected and photographs were taken through government photographer. He also specifically deposed that he Digitally SC No.440448/2016 State Vs. Surender Sharma Page 14 of 52 signed by SWATI SWATI GUPTA GUPTA Date:
2026.04.30 17:30:46 +0530 observed that some quantity of tea was lying in a pot (patila) in the kitchen of the house and two cups and other utensils were also lying in the sink of the said kitchen. Statement of Rajesh Kumar was recorded as Ex.PW3/A, rukka Ex.PW15/A was prepared and FIR was got registered. PW15 further stated that the original tehrir and copy of FIR was handed over to SHO Inspector Surender Kumar to whom the further investigation was entrusted. During investigation, the case property i.e. the bedsheet, chunni, etc. were lifted from spot and same were seized and site plan was prepared. PW15 further stated that on
09.09.2012, he alongwith IO and SI Naresh Kumar reached at PS Sector-9, Dwarka where accused Surender Kumar was found locked who led them to the place of incident where the accused pointed out the place where he had committed murder of deceased Divya and thereafter, accused had stolen Rs.40,000/-, one gold chain, one ring, gold mangalsutra, mobile phone, key bunch, lock and one small cash saving box of a child from the spot and a separate pointing out memo was prepared in this regard. Thereafter, PC remand of accused was obtained from concerned Ld. MM. During PC remand, accused had got recovered one Nano car bearing No. DL5CE3872 which was used by him for commission of offence and said car was seized vide memo Ex.PW15/C and thereafter, accused pointed out the place where he threw the bag containing lock, bunch of key and small cash box belonging to deceased into the Yamuna River and pointing out memo SC No.440448/2016 Digitally signed by SWATI State Vs. Surender Sharma Page 15 of 52 SWATI GUPTA GUPTA Date:
2026.04.30 17:30:53 +0530 Ex.PW15/D was prepared in this regard. PW15 identified the case properties produced by the MHC(M). The said witness was cross-examined by ld. Counsel for accused and discharged.
8.12 PW-16/ASI Rohtash Singh is the witness of investigation who joined investigation with IO Inspector Surender Kumar and SI Naresh Kumar on 08.09.2012. He deposed regarding arrest of the accused, personal search of accused and disclosure statement of accused. He further deposed regarding recovery and seizure of stolen jewellery articles (gold chain, gold ring and mangalsutra) from the shop of Bal Kishan (PW12) at the instance of accused, on 08.09.2012. He also deposed regarding recovery and seizure of stolen money of Rs.40,000/- from the house of accused, and at the instance of accused. The said witness was extensively cross-examined by ld.counsel for the accused.
8.13 PW-17/SI Naresh Kumar is also the witness of recovery who joined the investigation with IO Inspector Surender Kumar, HC Rohtash and SI Rakesh on 08.09.2012 and 09.09.2012 and deposed on the same lines of PW15 SI Rakesh Kumar, PW16 ASI Rohtash and PW18 ACP Surender Kumar.
8.14 PW-18/ACP Surender Kumar is the IO of the case. He deposed in the Court regarding the investigation carried out by him especially regarding inspection of the spot, recording statement of complainant, registration of FIR, seizure of chunni and bedsheet, preserving of dead body Digitally SC No.440448/2016 signed by SWATI State Vs. Surender Sharma Page 16 of 52 SWATI GUPTA GUPTA Date:
2026.04.30 17:31:00 +0530 for conducting postmortem examination and preparation of site plan. He also deposed regarding statements of witnesses recorded by him. It is also stated by him that he obtained the phone numbers of the relatives of the complainant and the deceased, including phone number of the accused. He also deposed that on 06.09.2012, SI Sushil told him that there were a number of conversations between the phone number of deceased and phone number of accused and location of accused was in the Sewak Park colony on the date of incident. Thereafter, a notice was sent to the accused for joining investigation. On sustained interrogation, accused disclosed about his involvement in the commission of offence against deceased Divya and his disclosure statement was recorded. He deposed that accused also made a disclosure that in order to mislead the family members and police, he committed theft of a chain, ring and mangalsutra (all made of gold) and Rs.40,000/-, one phone, one lock and key bunch, one coin box containing some money, to give it a colour of dacoity and murder. Accused further disclosed that he had given the gold items to his childhood friend namely Bal Kishan (PW12) and took Rs.40,000/- as loan against jewellery, which he had spent. Accused also disclosed that he had used his Nano car in the offence and the sum of Rs.40,000/- stolen from the house of deceased was kept in the almirah of his house. Accused also disclosed that the mobile phone, lock and the bunch of keys, etc. had been kept in a bag and thrown by him at the banks of Yamuna Digitally SC No.440448/2016 signed by SWATI State Vs. Surender Sharma Page 17 of 52 SWATI GUPTA GUPTA Date:
2026.04.30 17:31:07 +0530 river near Maharana Pratap, ISBT bridge. Thereafter, at the instance of accused, Nano car was recovered, stolen jewellery articles were recovered and cash of Rs.40,000/- were recovered. All the said articles were seized. PW18 also deposed that accused also led them to ISBT bridge towards Shahadara and pointed out a place from where he threw the bag containing lock, keys, coin box, etc., in Yamuna river and pointing out memo in this regard was prepared. He also deposed regarding the preparation of scaled site plan and collection of CDRs as well as regarding postmortem reports and subsequent opinions. The said witness was cross-examined at length by ld. Counsel for accused.
8.15 PW-19/ASI Karan Singh is the MHC(M) and stated that on 04/05.09.2012, Inspector Surender Kumar had deposited two sealed exhibits i.e. chunni and Chaddar and three other sealed exhibits i.e. viscera, blood, blood guaze and clothes of deceased Divya in Malkhana vide entry No.1206 Ex.PW19/A. On 08.09.2012, IO deposited Rs.40,000/- and jewellery articles in separate sealed pullandas alongwith one Airtel SIM No.9818427140 vide entry No.1217 Ex.PW19/B. On 09.09.2012 IO had again deposited Nano car bearing No. DL5CE3872 vide entry no.1219 Ex.PW19/C and the said vehicle was released to SPA holder Smt. Poonam Sharma on Superdari by the order of Court, for which requisite entry was made. On 18.11.2012, one white polythene containing two jars of viscera and small jar of blood and one envelop containing Digitally SC No.440448/2016 signed by SWATI SWATI GUPTA State Vs. Surender Sharma Page 18 of 52 GUPTA Date:
2026.04.30 17:31:13 +0530 blood on gauze piece alongwith two sample seals of DFMT of DDU hospital, were sent to Director CFSL, Hyderabad through Ct. Mohan vide entry RC No.169/21/12 Ex.PW19/D. Ct. Mohan produced receiving of the case property at CFSL, Hyderabad vide Ex.PW19/D1. On 24.03.2013, Ct. Parvesh had brought CFSL result from Hyderabad regarding which entry was made in register no.19. On 08.04.2013, HC Karan Singh had deposited CFSL result in the court. The said witness was not cross-examined despite opportunity. 8.16 PW-20/Inspector Mahesh Kumar is the Draftsman, Crime Branch, who visited the site on 25.11.2012 and thereafter, prepared the scaled site plan Ex.PW20/A of the place of incident on 27.11.2012 at the instance of IO Inspector Surender Kumar and complainant Rajesh Sharma. The said witness was not cross-examined despite opportunity. 8.17 PW-21/Anil Kumar Srivastava, Deputy Director CFSL, Hyderabad deposed that on 20.11.2012, he examined the exhibits of this case received in his office and prepared detailed examination report Ex.PW21/A. The said witness was not cross-examined despite opportunity. 8.18 PW-22/SI Raj Kumar deposed that on 05.09.2012, he joined the investigation of this case and had gone to DDU hospital where dead body of deceased Divya was identified by her husband Rajesh Sharma and father-in-law Rajender Sharma and got conducted the postmortem on dead body of deceased and thereafter, handed over the dead body to the husband of deceased. Doctor had handed Digitally signed by SC No.440448/2016 State Vs. Surender Sharma Page 19 of 52 SWATI SWATI GUPTA GUPTA Date:
2026.04.30 17:31:20 +0530 over the viscera, blood, blood on gauze piece, clothes of deceased in sealed condition to the IO and said articles were taken into possession by the IO vide memo Ex.PW18/E. The said witness was not cross-examined despite opportunity.
8.19 PW23/Retd. Inspector Sushil Kumar deposed that he had sought the call detail record from the respective operators in respect of mobile No.8802201854 pertaining to deceased Divya and mobile No.9818427140 pertaining to accused. On analyzing the data, it was found that on 04.09.2012, the location of mobile phone of accused was found in Sewak Park, Uttam Nagar at 14:47 hours. The said witness was cross-examined by ld. Counsel for accused.
9. In addition, it may be noted that the following aspects of the investigation and the documents have also been proved during the trial in the evidence of PW1 to PW23.
Particulars of the document Mark Proved by Remarks Witness Statement of complainant/PW3 Ex.PW3/A PW3 Rajesh Nil Sharma Site plan Ex.PW3/B Nil Seizure memo of chunni Ex.PW3/C Nil Seizure memo of bedsheet Ex.PW3/D Nil Dead body identification memo Ex.PW3/E Nil Handing over memo of dead body of Ex.PW3/F Nil deceased Arrest memo of accused Ex.PW3/G Nil Personal search of accused Ex.PW3/H Nil Scene of crime report Ex.PW4/A PW4 ASI Attar Nil Singh Request of IO dated 15.10.2012 Ex.PW6/A PW6 Shishir Nil Attested CDR of mobile number Ex.PW6/B Malhotra Nil 8802201854 for period 23.08.2012 to SC No.440448/2016 Digitally signed by SWATI State Vs. Surender Sharma Page 20 of 52 SWATI GUPTA GUPTA Date:
2026.04.30 17:31:26 +0530 05.09.2012 Attested customer application form Ex.PW6/C Nil (OSR) Copy of Voter ID of the customer of the Ex.PW6/D Nil phone Attested Cell ID/location chart of the Ex.PW6/E Nil phone number 8802201854 Certificate U/s 65B Indian Evidence Act Ex.PW6/F Nil Letter dated 25.10.2012 from PW6 to IO Ex.PW6/G Nil to hand over required documents Negatives of photographs clicked at the Ex.PW7/A1 to PW7 HC Suresh Nil spot Ex.PW7/A10 Yadav Photographs clicked at the spot Ex.PW7/A11 to Nil Ex.PW7/A20 Certificate U/s 65B Indian Evidence Act Ex.PW8/A PW8 Vishal Nil Computer generated CDR of mobile Ex.PW8/B Gaurav Nil number 9818427140 for period (colly) 23.08.2012 to 05.09.2012 Copy of customer application form Ex.PW8/C Nil (OSR) Copy of Election ID card Mark A Nil Copy of distributor telly calling feedback Ex.PW8/D Nil form Computer generated record of Cell Ex.PW8/E Nil ID/location chart of the phone number 9818427140 PCR form Ex.PW9/A PW9 Ct. Amit Nil Certificate U/s 65B of Indian Evidence Ex.PW9/B Kumar Nil Act DD No.23A dated 04.09.2012 Ex.PW11/A PW11 HC Ashok (OSR) Endorsement on rukka Ex.PW11/B Nil Copy of FIR Ex.PW11/C Nil Seizure memo of jewellery articles Ex.PW12/A PW12 Bal Kishan Nil Visiting card Ex.PW12/D1 Nil Photographs of shop Ex.PW12/D2 Nil PM report dated 05.09.2012 Ex.PW13/A PW13 Dr. Nil Subsequent opinion dated 05.12.2012 Ex.13/B B.N.Mishra Nil regarding ligature material Subsequent opinion dated 20.04.2013 Ex.PW13/C Nil regarding cause of death Tehrir dated 04.09.2012 Ex.PW15/A PW15 SI Rakesh Nil Pointing out memo of place of incident at Ex.PW15/B Kumar Nil instance of accused Pointing out memo-cum-seizure memo of Ex.PW15/C Nil car Pointing out memo of place where Ex.PW15/D Nil accused threw the stolen articles Disclosure statement of accused Ex.PW16/A PW16 ASI Nil Seizure memo of stolen amount of Ex.PW16/B Rohtash Singh Nil Rs.40,000/-
Application dated 05.09.2012 for Ex.PW18/A PW18 ACP Nil postmortem of deceased Surender Kumar Form 25-35 Ex.PW18/B Yadav Nil Brief facts of case Ex.PW18/C Nil Copy of FIR and statement of Rajesh Mark A and Nil Sharma Mark B SC No.440448/2016 State Vs. Surender Sharma Page 21 of 52 Digitally signed by SWATI SWATI GUPTA GUPTA Date:
2026.04.30 17:31:32 +0530 Statement of Rajender Kumar regarding Ex.PW18/D Nil dead body identification Seizure memo of four sealed exhibits of Ex.PW18/E Nil deceased handed over by the doctor after the postmortem Seizure memo of Airtel SIM card of Ex.PW18/F Nil accused bearing No. 9818427140 Entry in register no.19 vide serial no.1206 Ex.PW19/A PW19 ASI Karan Nil regarding deposition of sealed exhibits by (OSR) Singh the IO with MHC(M) in the Malkhana Entry in register no.19 vide serial no.1217 Ex.PW19/B Nil regarding deposition of sealed exhibits by (OSR) the IO with MHC(M) in the Malkhana Entry in register no.19 vide serial no.1219 Ex.PW19/C Nil regarding deposition of Nano car by the (OSR) IO with MHC(M) in the Malkhana RC No.169/21/12 dated 18.11.2012 Ex.PW19/D Nil regarding deposit of exhibits at CFSL, (OSR) Hyderabad through Ct. Mohan Receipt of depositing the case property at Ex.PW19/D1 Nil CFSL, Hyderabad Scaled site plan dated 27.11.2012 of the Ex.PW20/A PW20 Inspector Nil spot Mahesh Kumar CFSL examination report dated Ex.PW21/A PW21 Anil Kumar Nil 05.03.2013 Srivastava Gold chain, gold ring and gold Ex.P-1 to Ex.P-3 Identified by PW1 Produced mangalsutra by Currency notes of Rs.500/- each Ex.P-4 (colly) Identified by PW1 MHC(M) amounting to Rs.40,000/-
One blue and white check with yellow Ex.P-5 flowers bedsheet of single bed One pink and green colour chunni Ex.P-6 STATEMENT U/S 313 CRPC AND DEFENCE EVIDENCE
10. After Prosecution evidence was closed, entire incriminating evidence was put to the accused. In his statement recorded under Section 313 Cr.PC, the accused denied the entire incriminating circumstances appearing in the evidence against him. He claimed innocence and stated that he was falsely implicated in this case. He stated that no public witness has deposed against him and the remaining witnesses are interest witnesses. Although accused opted to lead evidence in his defence, but he did not examine any defence witness and closed DE.
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11. The record has been carefully perused. The respective submissions of learned Additional Public Prosecutor for the State and learned counsel for the accused have been heard and duly considered.
11.1 Ld. Addl. PP for the State has argued that the prosecution has proved its case beyond reasonable doubts by leading cogent evidence, which is sufficient to point towards the guilt of the accused. It is contended that the accused had killed the deceased Ms. Divya, wife of his brother in law, as she had threatened to disclose about his bad intentions towards her to her husband and the wife of the accused. It is contended that in order to mislead the police and the family members, the accused had tried to show that a dacoity had taken place with the deceased and that she was killed during the commission of the dacoity. Ld. Addl. PP for the State argued that it is proved on record that the accused had stolen Rs.40,000/-, a gold chain, a gold ring, a gold mangalsutra, a bunch of keys and a piggy bank (gullak) from the house of the deceased, after killing the deceased. It is also argued that the accused had given the stolen jewellery to his childhood friend against Rs.40,000/-, which is proved from the testimony of PW-12. It is contended that pursuant to the disclosure statement of accused Surender Sharma, the stolen Rs.40,000/- were recovered from his own house. Further, the Nano car used in commuting to the house of the deceased was also recovered at the instance of the accused. Further, the gold chain, gold ring and the gold mangalsutra were recovered from Mr. Balkishan/PW-12 at the instance of accused Surender Sharma. It is contended that the CDR record also proves that the accused used to have long conversations with the deceased. The cell location chart is sufficient to prove the presence of the accused in the area where the Digitally SC No.440448/2016 signed by SWATI State Vs. Surender Sharma Page 23 of 52 SWATI GUPTA GUPTA Date:
2026.04.30 17:31:45 +0530 house of the deceased is situated. It is argued that the prosecution has successfully proved all the circumstances from which an inference as to the guilt of the accused can safely be drawn. It is prayed that the accused may be convicted for the offences charged with.
11.2 On the other hand, Ld. Defence Counsel has argued that accused is innocent and has been falsely implicated in the present case. It is argued that the case of the prosecution is essentially based on circumstantial evidence and therefore, the prosecution was essentially required to prove beyond reasonable doubts all the circumstances from which an inference of guilt of accused could be drawn. The prosecution was also required to establish on record 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 none else, however, this is not the case in hand. It is vehemently aruged that in the present case, prosecution has failed to prove the nature of death as homicidal and as such accused is liable to be acquitted on this ground alone. Further, it is contended that the prosecution has not been able to establish any circumstance to prove the guilt of the accused. It is contended that so far as the recovery of the jewellery articles is concerned, as per the case of prosecution, the said recovery was effected the presence of the complainant/husband of the deceased, namely, Mr. Rajesh Sharma, who while appearing in the witness box did not support the case of prosecution in his regard despite being cross-examined by the Ld. Addl. PP for the State. He further argued that so far as the testimony of PW-12 Mr. Bal Kishan is concerned, the same is not sufficient to prove that the jewellery articles which were pledged by the accused with him Digitally signed by SC No.440448/2016 State Vs. Surender Sharma Page 24 of 52 SWATI SWATI GUPTA GUPTA Date:
2026.04.30 17:31:52 +0530 were the jewellery articles of the deceased. He further argued that so far as the motive as alleged by the prosecution is concerned, PW-3 Mr. Rajesh Sharma in his cross-examination by the Ld. Defence Counsel has stated that he never had any doubt that the accused had any romantic relationship with his wife. PW-3 also deposed that his deceased wife never had any long telephonic conversations with the accused. He stated that his wife and his sister used to speak to each other frequently over phone. Ld. Defence Counsel contended that prosecution has failed to prove any motive on the part of the accused. Further, so far as the call records and the location charts are concerned, they stand alone are not sufficient to bring home the guilt of the accused. Even otherwise, it is argued that location of cell phone tower is not conclusive to prove the location of accused at the house of deceased at the time of incident. It is also argued that even the phone conversations do not conclusively prove anything in the case of prosecution. It is argued that the accused deserves to be acquitted in the present case.
ANALYSIS AND FINDINGS
12. LAW REGARDING CIRCUMSTANTIAL EVIDENCE-
12.1 In the present case, accused has been charged for the offence punishable under Section 304 IPC & 411 IPC. As is evident from the above, in the present case there is no eye witness of the incident and the entire case of the prosecution is based on the circumstantial evidence. Even the public witnesses examined by the prosecution have not seen the incident but they have only deposed regarding the circumstances that existed after the occurrence or which occurred or were revealed during the investigation. Further, in the present case, the main circumstances SC No.440448/2016 Digitally State Vs. Surender Sharma Page 25 of 52 signed by SWATI SWATI GUPTA GUPTA Date:
2026.04.30 17:31:58 +0530 being relied upon by the prosecution against the accused are (i) post mortem report of the deceased to prove homicidal death; (ii) CDR of the phone of accused to prove his call details with the deceased and location at the time of incident; and (iii) recovery of stolen cash amount and stolen jewellery articles of the deceased at the instance of deceased.
12.2 Law regarding circumstantial evidence is very well settled and there is no judgment which summarizes it better than the case of Sharad Birdhichand Sarda v. State of Maharashtra , (1984) 4 SCC 116, which is the reference point even till date for each and every case of criminal offence based on circumstantial evidence. It has been laid down in the said case as follows:
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be"
established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(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 SC No.440448/2016 Digitally signed by SWATI State Vs. Surender Sharma Page 26 of 52 SWATI GUPTA GUPTA Date:
2026.04.30 17:32:05 +0530 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.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.
12.3 In light of the above legal position, let us evaluate the circumstances pertinent to the present case one by one.
13. DEATH OF DECEASED AS HOMICIDAL-
13.1 It is the case of the prosecution that the death of deceased in the present case is homicidal which is the basis for charge U/s 304 IPC. In this regard, most important witness is PW-13 Dr. B.N. Mishra and the the documents to be seen are postmortem report Ex.PW13/A alongwith Ex.PW13/B and Ex.PW13/C. From the postmortem report bearing PM No.1168/12, dated 05.09.2012 Ex.PW13/A, it is noted that the cause of death and manner of death was kept pending till the receipt of FSL report of viscera, to rule out any poisoning. In the said report, following three external injuries were noted on the body of the deceased:-
"(i) Faintly and ill defined pressure mark present all around the neck without leaving any grooving or ligature mark. The surface of effected area does not show any abrasion, ecchymosis or parchmentisation. On dissection of the area the under neat tissue appears whitish pale without any bruising or extravasation of blood into soft tissue of neck. The underlined cartilages and hyoid bone remain intact (the findings are suggestive of post mortem constriction of the neck with inappropriate constriction force by means of ligature material present on situ which could be for the purpose of misleading the fact of crime).
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(ii) Two a partly placed pressure mark present over the middle and lateral part of the right collar bone of size 1.5cm x 1cm and 2cm x 1.5cm with yellowish brown in colour and appearing post mortem in nature or post mortem artefact.
(iii) Abrasion of size 4cm x 3cm present on the epigastric region of abdomen. On dissection of the area the subcutaneous tissue i.e. facia found contused of size 5cm x 4cm with reddish brown in colour."
13.2 Thereafter, vide subsequent opinion dated 05.12.2012 Ex.PW13/B regarding the consistency of the ligature material (chunni) in respect of ligature mark present on the neck of deceased, it was opined as follows:
"On opening of the parcel produced, one chunni received. On examination of the same the chunni is made of fine cotton fibres appearing printed and does not bears any knot. The total length have 82 inch and 40 inch in width.
After considering the PM report finding related to ligature mark and observation on the part of chunni produced I am opinion of that there is nothing to suggest that the produced chunni would not have been used to constrict neck after death of the deceased Smt. Divya.
After examination and opinion the same ligature material again packaged in the form of parcel, sealed with seal of "DFMT, DDU Hospital" and handed over to I.O."
13.3 Thus, from the above, it is noted that the external injuries as noted at serial no.(i) and (ii) in Ex.PW13/A have both been stated to be postmortem marks i.e. which occurred after the death of the deceased. As reproduced above, it has been specifically stated with respect to injury at serial no.(i) in the postmortem report (Ex.PW13/A) that the "findings are suggestive of postmortem constriction of the neck with in- appropriate constriction force by means of ligature material, which could be for the purpose of misleading the fact of crime. " With respect to injury at serial no. (ii) also, it is stated that it appears to be postmortem in nature or postmortem artefacts.
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2026.04.30 17:32:17 +0530 13.4 Apart from the said two postmortem injuries, one more injury is noted at serial no.(iii) which is abrasion of size 4 cm x 3 cm present on the epigastric region of abdomen. By way of further subsequent opinion dated 20.04.2013 Ex.PW13/C, regarding cause of death and manner of death of deceased, it was opined that the cause of death could be due to neurogenic shock caused by sudden, forceful blunt impact upon the upper abdomen (epigastric region) like slap, fist/punch, etc. As per the report, the manner of death as homicidal could not be ruled out.
Relevant portion of the report is reproduced hereunder:
"As per FSL report enclosed, reveals that "No any common poisons could be detected in the blood and viscera of deceased."
The PM report shows that the three (3) external injuries were seen on the body of deceased. The injury no. 1 & 2 were appearing post mortem in nature while the injury no. 3 that was present on the epigastric region of abdomen which could be sufficient to caused death in ordinary course of nature. No any obvious or significant internal injuries were observed in the body of deceased.
Keeping in view of above findings and circumstances of the incident I am in the considered opinion of that the cause of death could be due to neurogenic shock caused by sudden, forceful blunt impact upon the upper abdomen (epigastric region) like slap, fist / punch etc. the manner of death as homicidal cannot be ruled out."
13.5 All the three aforesaid reports are given by Dr. B.N.Mishra, Medical Officer, Department of Forensic Medicine, DDU hospital, Delhi. He was examined as PW13 by the prosecution. In his testimony, he has specifically deposed that "As per PM report, there were three external injuries on the body of deceased in which two were appearing postmortem in nature and other third injury sustained on the epigastric region of abdomen (upper part). The third injury was sufficient to cause death in ordinary course of nature by the manner of neurogenic shock.
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2026.04.30 17:32:23 +0530 In this case, the manner of death was homicide in nature."
13.6 In the cross-examination of the said witness, he has deposed as follows:
"............It is correct that I could not ascertain the cause of death of the deceased on day of post-mortem examination and preparation of PM report.
It is correct that the abrasion size 4 cm x 3 cm present on the epigastric region of abdomen is not sufficient to cause death in every person and it is also correct that because of the said reason I did not give my opinion about the death of the deceased due to said injury in my PM report Ex. PW13/A. It is correct that because of this reason I had sought subsequent opinion regarding presence of any poisonous substance from FSL. Vol. It is correct that the injury sustained on the body of the deceased on the abdominal part was not sufficient directly to cause death. However, in indirect manner, caused by neurogenic shock was sufficient to cause death in ordinary course of nature and same outcome is not always associated.
It is correct that I have not given in my report the time as to when said injury might have been caused............... It is correct that in my report Ex.PW13/C I had said that the injury no.3 present on abdomen of the deceased could be sufficient to cause death by the same I mean it may have caused death and it may not have.
.............. The abrasion present on the upper body was not in the superficial nature as the internal fascia of abdomen was also contused at the point of injury. It was a internal contused not abrasion. I am not sure whether the death of the deceased in this case was the result of neurogenic shock. Vol. It could be or it could not be. I was not sure about the cause of death of this patient and that's why I have not given my final report to cause of death. Vol. As I already stated above that the injury was not sufficient to cause death in ordinary course of nature. However, by manner of neurogenic shock the same injury could be sufficient to cause death in ordinary course of nature."
13.7 From the above, it is noted that during the cross-examination, the said witness admitted that the abrasion of size 4 cm x 3 cm present on epigastric region of abdomen was not sufficient to cause death in every person and that is why, he reserved his opinion about the cause and manner of death of deceased vide PM report Ex.PW13/A. He further Digitally signed by SWATI SC No.440448/2016 SWATI GUPTA GUPTA Date:
State Vs. Surender Sharma Page 30 of 522026.04.30 17:32:30 +0530 volunteered to say that the injury sustained on the body of deceased on abdominal part was not sufficient directly to cause death but indirectly it was sufficient to cause death in ordinary course of nature if neurogenic shock was to be caused. Further, the said witness also admitted in his cross-examination that in the report Ex.PW13/C, he had stated that injury no.3 present on abdomen of the deceased could be sufficient to cause death and he meant that it may have caused death or it may not have caused death. Most importantly, he also stated in his cross- examination that he was not sure whether the death of deceased in this case was the result of neurogenic shock and he said that it could or it not be.
13.8 Thus, PW13 has repeatedly stated in his evidence that injury no.3 was not sufficient to cause death in ordinary course of nature but by manner of neurogenic shock, the same injury could be sufficient to cause death in ordinary course of nature. At the same time, he has also admitted that he was not sure as to whether the death of deceased in this case was the result of neurogenic shock or not. Even in the postmortem report Ex.PW13/A, it is nowhere mentioned that the deceased had suffered neurogenic shock. Only in Ex.PW13/C, it is stated that cause of death could be due to neurogenic shock caused by sudden, forceful blunt impact upon the upper abdomen (epigastric region) like slap, fist/punch etc. and that the manner of death as homicidal could not be ruled out. It is not clear as to how an opinion regarding possibility of death of due neurogenic shock could be given when the doctor himself was not sure about the same. Moreover, the opinion given in PM report is that the manner of death as homicidal 'could not be ruled out.' It implies that (as also deposed by PW13 in cross-examination), that the death of deceased Digitally SC No.440448/2016 signed by SWATI State Vs. Surender Sharma Page 31 of 52 SWATI GUPTA GUPTA Date:
2026.04.30 17:32:37 +0530 may or may not have been homicidal. It follows that prosecution has failed to prove beyond reasonable doubt that the manner of death in the present case was homicidal.
14. Injuries 14.1 It must be noted that in the evidence of PW1/Dr. Amit Rajput, he stated that he had gone to the spot at about 6:50 pm and declared the deceased to be dead. He stated in his cross-examination that he had not seen any marks of injury on the dead body of deceased Ms. Divya. He has also deposed in his chief examination that he found the body lying on the bed in a room situated on the right side at ground floor of the premises. In the evidence of PW3/complainant, it has further come on record that after the body had been examined by Dr. Amit Rajput (PW1), his friend Naveen Sharma came and with his assistance he removed the body of his wife (deceased) from bed and put her on the floor. Even PW5/Naveen Kumar has stated in his cross-examination (by ld. APP for the State) that Ms. Divya Sharma was shifted to the floor of the room from her bed by her husband Rajesh Sharma with his assistance. Further, in the evidence of PW15/SI Rakesh Kumar, it has come on record that the crime scene was found to be disturbed.
14.2 It is not clear as to why the dead body was removed by the complainant from the bed to the floor, in the first place. The fact that Dr. Amit Rajput did not depose regarding any injury marks being the thumb marks or the ligature marks also raises suspicion, specially clubbed with the fact that dead body was removed (from bed to floor) by complainant and crime scene was found to be disturbed.
Digitally signed by SWATI SC No.440448/2016 SWATI GUPTA GUPTA Date: State Vs. Surender Sharma Page 32 of 52 2026.04.30 17:32:43 +0530 14.3 It may also be noted that though as per the case of the prosecution, it was disclosed by accused that he pushed the deceased with the intention to kill her and thereafter he strangulated the deceased with thumbs and chunni with intention to kill her. However, as per the post mortem report, the said injuries are found to be caused after the death of the deceased. If death of the deceased was not caused due to pushing by accused or by strangulating the deceased by accused, as alleged by prosecution, then again prosecution has even failed to impute the necessary ingredients of the offence of culpable homicide/Section 304 IPC on the accused. Prosecution has not explained how the injury of abrasion on epigastric region was caused to the deceased.
15. MOTIVE-
15.1 As regards motive, the settled legal position is that in a case of circumstantial evidence, if the entire chain is convincing and points towards the guilt of the accused, then absence of motive by itself may not come to the rescue of the accused. But if the chain of circumstance is itself not complete, then absence of motive weighs in favour of the accused. It has been held in the case of Subhash Aggarwal v. State (NCT of Delhi), (2025) 8 SCC 440 at page 449, as follows:
"29. The declaration in the cited decisions and the decisions relied on therein, is to the effect that if the case is built solely upon circumstantial evidence, absence of motive will be a factor that weighs in favour of the accused. Just as a strong motive does not by itself result in a conviction, the absence of motive on that sole ground cannot result in an acquittal. When the eyewitnesses are not convincing, a strong motive cannot by itself result in conviction, likewise when the circumstances are very convincing and provide an unbroken chain leading only to the Digitally signed by SC No.440448/2016 SWATI SWATI GUPTA State Vs. Surender Sharma Page 33 of 52 GUPTA Date:
2026.04.30 17:32:50 +0530 conclusion of guilt of the accused and not to any other hypothesis; the total absence of a motive will be of no consequence.
30. We extract para 17 from a three-Judge Bench decision, Jan Mohammad v. State of Bihar [Jan Mohammad v. State of Bihar, (1953) 1 SCC 5] ;
which also is of vintage flavour, succinctly putting forth the proposition: (SCC p. 12) "17. Motive is a relevant fact under the Evidence Act (Section 8). It is an important element in a chain of presumptive proof where the evidence is purely circumstantial, but it may lose importance in a case where there is direct evidence by witnesses implicating the accused. In a case such as the present where the prosecution evidence itself shows that the relations between the deceased and the appellants were cordial, the absence of an apparent motive, though not necessarily fatal to the prosecution case, may reasonably be regarded as a fact in favour of the accused. We think, therefore, that the attempt to prove a motive against any of the appellants has failed. [sic]"
31.Suresh Chandra Bahri v. State of Bihar [Suresh Chandra Bahri v. State of Bihar, 1995 Supp (1) SCC 80 : 1995 SCC (Cri) 60] held that in a case based on circumstantial evidence, proof of motive would "supply a link in the chain of circumstances" but all the same, absence of motive cannot be a ground to altogether reject the prosecution case. Para 21 reads as follows: (SCC p. 95) "21. At the very outset we may mention that sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to SC No.440448/2016 State Vs. Surender Sharma Page 34 of 52 Digitally signed by SWATI SWATI GUPTA GUPTA Date:
2026.04.30 17:32:57 +0530 achieve that intention. In a case where there is clear proof of motive for the commission of the crime it affords added support to the finding of the court that the accused was guilty of the offence charged with. But it has to be remembered that the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to a certain course of action leading to the commission of the crime."
(emphasis supplied) 15.2 It has also been held in the case of Amitava Banerjee v. State of W.B., (2011) 12 SCC 554 : (2012) 1 SCC (Cri) 624 : 2011 SCC OnLine SC 1103 at page 565
41. Motive for the commission of an offence no doubt assumes greater importance in cases resting on circumstantial evidence than those in which direct evidence regarding commission of the offence is available. And yet failure to prove motive in cases resting on circumstantial evidence is not fatal by itself. All that the absence of motive for the commission of the offence results in is that the court shall have to be more careful and circumspect in scrutinising the evidence to ensure that suspicion does not take the place of proof while finding the accused guilty.
42. Absence of motive in a case depending entirely on circumstantial evidence is a factor that shall no doubt weigh in favour of the accused, but what the courts need to remember is that motive is a matter which is primarily known to the accused and which the prosecution may at times find difficult to explain or establish by substantive evidence.
15.3 In the present case, as regards the motive of the alleged offence, it is the case of the prosecution that the accused was in love with the Digitally SC No.440448/2016 State Vs. Surender Sharma Page 35 of 52 signed by SWATI SWATI GUPTA GUPTA Date:
2026.04.30 17:33:08 +0530 deceased and that on the date of the incident, he had gone to the house of the deceased at H.No.B - 1/43, Sewak Park, Uttam Nagar, New Delhi, knowing that she would be alone. When he made advances to the deceased, she stated that she would tell her husband as well as wife of accused and thus, the accused first pushed the deceased with the intention to kill her, on which she became unconscious and thereafter, he pressed her neck with thumbs and chunni, with the intention to kill her. Thus, as per prosecution, accused killed the deceased because she threatened to tell about his advances to her husband and wife of accused.
15.4 However, in order to prove motive, Prosecution has merely relied upon the disclosure statement of the accused. The law regarding disclosure statement is also clear. As per S. 25 of the Indian Evidence Act, any inculpatory statement made by the accused to the police officer cannot be relied upon. The said part of the disclosure statement which only contains the confession of the crime regarding going to the house of the deceased, making advances to her about his feelings, and deceased threatening him to tell this to her husband and wife of accused and finally accused first pushing her and then strangulating her, cannot be relied upon. Apart from the same, there is no eye-witness or any other documentary evidence to prove any motive. Thus, motive has not been proved by the Prosecution.
16. CDRs
16.1 Prosecution has examined PW-6/Shishir Malhotra, Nodal Officer of Aircel Ltd., to prove CDR of mobile number 8802201854 (mobile number of deceased) for the period 23.08.2012 to 05.09.2012. In addition, prosecution has also examined PW-8/Vishal Gaurav, Nodal Digitally SC No.440448/2016 signed by SWATI State Vs. Surender Sharma Page 36 of 52 SWATI GUPTA GUPTA Date:
2026.04.30 17:33:18 +0530 Officer of Bharti Airtel to prove CDR of mobile number 9818427140 (mobile number of accused) for the period 23.08.2012 to 05.09.2012. As per the case of prosecution, the call detail records of the mobile numbers of accused and deceased show that they used to talk over phone and location of accused is further shown to be around the house of the deceased on the date of the incident. However, it must be noted in this regard that firstly, as accused and deceased were related, so there is nothing unusual in them having phone conversations. Moreover, as per the call detail records, there were following calls between the phone number of accused and the deceased:
(i) 25.08.2012, at 9:50 am, for 223 seconds (almost 3-4 minutes)
(ii) 25.08.2012 at 3:31 pm for 117 seconds (almost 1-2 minutes)
(iii) 27.08.2012, at 3:30 pm for 95 seconds (almost 1.5 minutes)
(iv) 27.08.2012 at 4:29 pm for 22 seconds (almost ½ minute)
(v) 03.09.2012 at 12:33 pm for 411 seconds (almost 6-7 minutes) 16.2 The aforesaid number and duration of conversations alleged are also not unusually frequent or unusually long. Accused is the brother-in-
law (jija) of the complainant. By that relation, it is also possible that complainant or his wife (deceased) and accused or his wife could have had those conversations. In this regard, it may also be relevant to refer to cross-examination of PW3, wherein he has stated that he never had any doubt that accused had any romantic relationship with his wife. He further stated that his wife never had any long telephonic conversation with the accused. He also stated that his wife and his sister used to speak to each other frequently on telephone. Thus, the telephonic calls between the phone number of accused or phone number of deceased do not add up to any circumstance that would corroborate the case of SC No.440448/2016 Digitally signed by SWATI State Vs. Surender Sharma Page 37 of 52 SWATI GUPTA GUPTA Date:
2026.04.30 17:33:25 +0530 prosecution.
17. CDRs/Location of accused-
17.1 Prosecution has tried to prove the location of the accused with the help of the CDRs. As regards the location of the accused, prosecution has examined PW-6/Shishir Malhotra, Nodal Officer of Aircel Ltd. The said witness was examined by prosecution to prove CDR of mobile number 8802201854 (mobile number of deceased) for the period 23.08.2012 to 05.09.2012 alongwith Cell ID/location chart of the said mobile phone number. Prosecution also examined PW-8/Vishal Gaurav, Nodal Officer of Bharti Airtel to prove CDR of mobile number 9818427140 (mobile number of accused) for the period 23.08.2012 to 05.09.2012 alongwith Cell ID/location chart of the said mobile phone number.
17.2 It has been vehemently argued on behalf of the prosecution that the location of the accused at the time of the offence was found to be in the vicinity of the house of the deceased i.e. Sewak Park, Uttam Nagar. However, it cannot be ignored that the cell towers only point towards the approximate location of the caller and not at the exact location. The evidence of CDR, if believed, can at best place the accused in the vicinity of the spot and not at the spot itself. As per the case of prosecution, the location of accused as per CDR (Ex.PW8/B) was around tower located at A-19, Sewak Park, New Delhi, on 04.09.2012 at about 2:47 pm. The said CDR cannot be considered to be conclusive evidence of the presence of accused at the spot i.e . H.No. B - 1/43, Sewak Park, Uttam Nagar New Delhi.
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2026.04.30 17:33:32 +0530 17.3 It is also interesting to note that as per the CDRs and cell tower location relied upon, the time of location of accused in the Sewak Park Colony is 2:47 pm. However, as per the PM report, the time of death has not been precisely stated. As per Ex.PW13/A, time of death is stated as "Time since death is approx. 1 day prior to postmortem examination (the death took place of the 2 to 3 hours from the time of last meal taken by the deceased)". Now to say that death took place 2-3 hours from the time of last meal taken, leaves a lot to the imagination in as much as if deceased ate lunch at around 1-2 pm, time of death could be anytime between 3-5 pm. It cannot be said with certainty that time of death was around 2:47 pm when the location of accused was found to be in Sewak Park, Uttam Nagar. Thus, the medical evidence has not fixed the time of death with enough precision, so as to conclusively correlate the presence of accused in the locality with the time of commission of the offence.
18. LAST SEEN / PRESENCE OF ACCUSED AT THE SCENE OF OCCURRENCE-
18.1 There is no evidence to show that the accused was seen in the locality or near the house of the deceased at any time on the day of the incident. It is not even the case of the Prosecution that anyone has seen the accused entering or exiting the house of the deceased or that the deceased was last seen alive with the accused by anyone. No CCTV footage whatsover has been collected during the investigation. There is nothing on record to show that prosecution even tried to obtain CCTV footage of the place near the house of the deceased to show his presence there. There is no statement either of the complainant or any of the neighbours to show the presence of accused at the spot or near the SC No.440448/2016 State Vs. Surender Sharma Page 39 of 52 Digitally signed by SWATI SWATI GUPTA GUPTA Date:
2026.04.30 17:33:38 +0530 house of the deceased.
18.2 It is the case of the prosecution that the accused had used his Nano car bearing number DL5CE3872 on the date of the incident.
However, no evidence has been brought forth by the Prosecution to show that the Nano car of the accused was parked or seen outside or around the house of the deceased on the date of the incident.
18.3 Another important fact to be noted is that prosecution has not even tried to explain how the accused may have exited from the house. Admittedly, the front door of the house was locked from inside. Thus, it cannot be the case of the prosecution that accused escaped from the front door. Reference must be made to the evidence of PW3/Rajesh Sharma/complainant, who has deposed that when the door was not opened by anyone and mobile phone of his wife was switched off, he along with his daughter went to the backside gali of his ground floor flat. He found that window of his bedroom was open and he used one wooden danda to remove the cloth from the face of his son through the window. He has also deposed that "Thereafter, I pushed the backside iron door of my flat, which used to open towards the gali side and as a result of said push the said gate opened towards the gali and thereafter, I pushed the wooden door which used to open inside the flat, the said door was opened." In his cross-examination, PW3 further stated that "Initially I knocked the door of back entrance which was closed and thereafter, pushed the same as a result of which the doors got opened." He has also stated in his cross-examination "When I banged the iron door (which was closed, but not bolted) of back entrance of my house, due to the impact, the door slightly went inside and after touching the SC No.440448/2016 Digitally State Vs. Surender Sharma Page 40 of 52 signed by SWATI SWATI GUPTA Date:
GUPTA 2026.04.30 17:33:47 +0530 iron "chokhat" (frame of door), opened outward in the Gali." He also clarified that there was no latch on in the iron door, hence, the question of opening of latch by his pushing the door does not arise. He also stated in cross-examination that after the back iron door got opened, he pushed the adjoining wooden door forcefully and the same got opened with jerk. He said that the wooden door was closed from inside and he was not sure whether the latch on the door was on or not.
18.4 Testimony of PW3 seems a bit confusing, to say the least. It is understandable that there were two doors at the back side of the flat, one is iron gate which could open towards the gali and the other is wooden door which could open inside the house. As regards the outer door (iron door), which could open in the gali, PW3 says he pushed it but he also says that there was no 'latch on' in the iron door. If that be so, why could the door could not simply be opened in first place, instead of looking through the window or pushing the door. The first instinct of the complainant should have been to try to pull open the iron door which opened in the gali, to enter into the house. Another important thing is that PW3 has stated in his cross examination that wooden door which opened in the room was closed from inside. Now, if the back side wooden door was closed from inside and even the front door was closed from inside, then how can one explain the exit/escape of the accused from the house after the incident. Case of prosecution is totally silent on this aspect.
18.5 No other witness has been examined by the prosecution to depose regarding the circumstances in which backside door of the house was opened. Pertinently, even the child witness (daughter of the complainant Digitally SC No.440448/2016 State Vs. Surender Sharma Page 41 of 52 signed by SWATI SWATI GUPTA GUPTA Date:
2026.04.30 17:33:54 +0530 and deceased) was not examined by the IO, even though as per complainant, she was present at the time of making entry into the house from backside gali.
18.6 Evidently, no chance prints were recovered from the spot.
PW2/Ct. Pardeep Kumar has deposed in his examination that he reached the place of incident on 04.09.2012 at about 8:00 pm and the place of incident was minutely inspected by him and despite his sincere efforts, no chance prints/finger prints could be lifted from the spot and he prepared the report in this regard. He also stated in his cross- examination that no report to the effect that chance prints were removed from the spot was given by him. His testimony is also corroborated by PW4/ASI Attar Singh who stated that on 04.09.2012 at about 8:00 pm, he reached the spot with PW2 and PW7. He also deposed that no chance prints could be detected from the spot by finger print proficient i.e. PW2. He also prepared scene of crime report Ex.PW4/A. In his cross-examination, he has also stated that the finger print expert tried to lift chance print from kitchen, door of said room and from drawer of dressing table of other room, but no such chance print was found. Thus, neither any chance prints were lifted from the spot nor it is the case of the prosecution that finger prints were removed.
18.7 It may be noted that PW10/Ct. Attar Singh and PW15/SI Rakesh Kumar also deposed in their examination that during site inspection they found that there was some quantity of tea in a pot ( patila) in the kitchen and there were two cups and other utensils lying in the sink of the kitchen. It is also the case of the prosecution that in order to give Digitally SC No.440448/2016 signed by SWATI State Vs. Surender Sharma Page 42 of 52 SWATI GUPTA GUPTA Date:
2026.04.30 17:34:00 +0530 the incident of culpable homicide not amounting to murder, a colour of robbery or theft, accused stole various items like phone of the deceased, a bunch of keys, jewellery, cash, a piggy bank, from the house of the deceased. If the case of prosecution is to be believed, then accused must also have managed to escape the house somehow. It is difficult to imagine that on one hand the prosecution is alleging that the accused had gone to the house of the deceased, had a cup of tea with the deceased, pushed the deceased, lay down her body on the bed, took the keys, phone, jewellery and cash from the house of the deceased and thereafter, escaped from the house. On the other hand, as per the case of prosecution, accused managed to escape without leaving any finger prints at the spot. This seems to be highly unbelievable and improbable, considering that accused is not a habitual offender and the death of deceased, even assuming to be homicidal, was not pre- meditated.
18.8 Interestingly, in this regard reference may also be made to the cross-examination of PW3/complainant wherein he stated that police officials never tried to lift finger marks in his presence from any place in his house and he again said that fingerprints were taken from the Godrej almirah which was lying in his master bedroom. This shows that if police officials did not try to lift finger marks from any place in the house of the complainant, then it is contrary to the testimony of witnesses PW2 and PW4, as both of them have stated that chance prints were not found despite efforts. Further, if it is to be believed as per PW3/complainant that fingerprints were taken from Godrej almirah, then that is also contrary to the case of prosecution that no chance prints were found despite efforts. Contradiction in the Digitally SC No.440448/2016 signed by SWATI State Vs. Surender Sharma Page 43 of 52 SWATI GUPTA GUPTA Date:
2026.04.30 17:34:08 +0530 testimonies of PW2 and PW4 on one hand and testimony of PW3 on the other hand also raises serious doubts on the investigation conducted in the present case.
18.9 It may also be noted that while as per the postmortem report, the thumb mark near the collar bone and the ligature mark on the neck of the deceased have been opined to be post-mortem, but no chance print were detected from the spot. Thus, prosecution has failed to prove who had used the chunni for tying it around the neck of the deceased or who has made the thumb marks near the collar bone of the deceased. Hence, prosecution has failed to prove any material to show the presence of accused at the spot.
19. Crime Scene-
19.1 There is also some contradiction in the manner in which the events have been deposed by PW3 and PW5. While as per PW3/complainant, Dr. Amit Rajput came at the spot and examined his wife and declared her dead and, after 5-10 minutes, his friend Naveen Sharma came with his wife. Thus, as per PW3, Dr. Amit Rajput came at the spot first and later his friend Naveen Sharma came at the spot. However, PW5 has deposed that when he reached at the house of the complainant, he saw that complainant's wife Ms. Divya Sharma was lying on the bed in her bedroom and thereafter, a doctor came at the spot and he declared her dead after medically checking her. Thus, as per PW5, he reached at the spot before Dr. Amit Rajpoot. The said witness, in his cross-examination, also stated that he did not remember when the doctor came i.e. before he reached the place of incident or after that.
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2026.04.30 17:34:16 +0530 19.2 It is also noted that while as per PW3, he found that the door of the iron almirah kept in the room was closed but the same was not locked and after opening the same, he found that the iron gullak containing gold chain, ring and Mangalsutra and Rs. 45,000/-50,000/-
cash were missing. But PW5 deposed that the almirah, which was placed in the adjoining room, was found open.
20. RECOVERY FROM THE ACCUSED-
20.1 Now coming to the most important circumstance that is being relied upon by the prosecution i.e. recovery of currency notes and jewellery articles, stolen from the house of deceased, at the instance of accused.
20.2 Before delving into the veracity of the recoveries made from the accused, it is pertinent to discuss the law relating to recovery pursuant to a disclosure statement of the accused. Section 27 of Indian Evidence Act provides as follows :-
"27. How much of information received from accused may be proved.-- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
20.3 In the light of Section 27 of the Indian Evidence Act, 1872 whatever information is given by the accused in consequence of which a fact is discovered only that would be admissible in the evidence, regardless of the fact that such information amounts to confession or not. The basic idea embedded under Section 27 of the Evidence Act is the doctrine of confirmation by the subsequent events. The doctrine is SC No.440448/2016 Digitally signed by State Vs. Surender Sharma Page 45 of 52 SWATI SWATI GUPTA Date:
GUPTA 2026.04.30 17:34:22 +0530 founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from an accused; such a discovery is true and admissible. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes reliable information. The Apex Court in a catena of judgments has extensively discussed the law related to the admissibility of recovered articles at the instance of the accused and has held that recovery which directly links the accused person to the commission of the alleged offence is relevant and admissible in the eyes of the law. The Apex Court in the case of Debapriya Pal vs. State of West Bengal reported at (2017) 11 SCC 31 has held as under: -
"7. ...Under Section 27 of the Evidence Act only so much of recovery, as a result of the disclosure statement, which directly pertains to the commission of crime is relevant. Otherwise, such an evidence is barred Under Section 25 of the Evidence Act. Recovery of laptop does not have any bearing. It is neither the weapon of crime nor it has any cause of connection with the commission of crime. The law on this aspect is succinctly said in the case "Jaffar Hussain Dastagir v. State of Maharashtra: (1969) 2 SCC 872 in the following manner:
5. Under Section 25 of the Evidence Act no confession made by an Accused to a police officer can be admitted in evidence against him. An exception to this is however provided by Section 26 which makes a confessional statement made before a Magistrate admissible in evidence against an Accused notwithstanding the fact that he was in the custody of the police when he made the incriminating statement. Section 27 is a proviso to Section 26 and makes admissible so much of the statement of the Accused which leads to the discovery of a fact deposed to by him and connected with the crime, irrespective of the question whether it is confessional or otherwise. The essential ingredient of the Section is that the information given by the Accused must lead to the discovery of the fact which is the direct outcome of such information. Secondly, only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. Thirdly, the discovery of the fact must relate to the Digitally SC No.440448/2016 signed by SWATI SWATI GUPTA State Vs. Surender Sharma Page 46 of 52 GUPTA Date:
2026.04.30 17:34:30 +0530 commission of some offence."
20.4 PW15/SI Rakesh Kumar deposed that on 09.09.2012, he joined investigation of the present case along with IO and SI Naresh Kumar. He further deposed that the accused led them to the Yamuna Bridge on the road leading towards (Shahdara) from ISBT and the place was pointed out by the accused by disclosing that after the commission of offence in question, he had gone there and threw a bag containing lock, bunch of keys and a small cash box belonging to the deceased into the Yamuna river. Similar deposition is also made by PW17/SI Naresh Kumar and PW18/ACP Surender Kumar.
20.5 It has further come in the evidence of PW18 that the bunch of keys were not recovered despite efforts. Thus, this part of the disclosure statement that phone of deceased, bunch of keys, lock, etc. were stolen by him from the house of the deceased and dumped in a bag at Yamuna bank from the Maharana Pratap ISBT bridge, cannot be said to be proved.
20.6 As regards the recovery of currency notes of Rs. 40,000/- alleged to be stolen money recovered from the house of the accused, at the instance of the accused, Prosecution has relied upon testimony of PW16/ASI Rohtash Singh. PW16 stated that on 08.09.2012, accused led them to his own house at C-24-L/1, Garima Garden, Sahibabad, Ghaziabad, UP where he took out ₹40,000 from an Almira lying in a room and stated that the said amount was the same which he had stolen from the house of his brother-in-law/complainant on 04.09.2012. The currency notes were sealed and seized vide seizure memo Ex.PW16/B. PW17 and PW18 have also deposed on the same lines as regards SC No.440448/2016 Digitally signed by SWATI State Vs. Surender Sharma Page 47 of 52 SWATI GUPTA GUPTA Date:
2026.04.30 17:34:36 +0530 recovery of ₹40,000 from the house of the accused.
20.7 However, it must be noted that it cannot be concluded with certainty that the money recovered from the house of the accused is the same as stated to be stolen from the house of deceased. When PW3/complainant was being cross examined and 80 currency notes of denomination of ₹500 (total ₹40,000) less was produced by MHC(M), the said witness stated that " IO had claimed that the said amount is between Rs.45,000 to Rs. 50,000 which was recovered from the possession of the accused. He had not counted the said amount on that day but the said amount were in the denomination of ₹500 each.
Aforesaid ₹40,000 appears to be the same which was shown to him by the IO. The currency notes are collectively Ex.P-4 (colly) " it implies that there is contradiction in the testimony of PW3 as regards the recovery of the currency notes from the house of the accused. PW3 has specifically deposed that he was told by the IO that the amount between ₹45,000 to ₹50,000 was recovered from the possession of accused. Moreover, there is no evidence that the numbers of the stolen currency notes were taken down and matched with the currency recovered from the house of the accused.
20.8 It is also the case of the prosecution that the accused had stolen gold jewellery articles of the deceased (chain, ring and mangalsutra) from the spot, in order to give the incident a colour of robbery. It is further the case of prosecution that the said jewellery articles were mortgaged by the accused with a jeweller and were recovered at the instance of the accused. In this regard, prosecution has examined PW12/Bal Kishan.
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2026.04.30 State Vs. Surender Sharma Page 48 of 52 17:34:42 +0530 20.9 In order to substantiate the said recovery, the prosecution has also examined PW16/ASI Rohtash Singh that on 08.09.2012, he joined the investigation along with Inspector Surender Kumar and SI Naresh Kumar. On the said date, after making the disclosure statement, accused led them to Babarpur where he pointed out at shop number 27/8 vide pointing out memo Ex.PW3/DX2 and accused disclosed that the person sitting inside the shop namely Bal Kishan was his friend and on 06.09.2012, he had given stolen gold chain, ring and one mangalsutra to him. At that time complainant and as well as one secret informer were also accompanying the police officers. He also deposed that they went to the shop of Bal Kishan, who took out small box (dibbi) from his safe which contained stolen gold chain, ring and mangalsutra and on seeing said jewellery articles, complainant identified the same as belonging to his deceased wife. As such, the said articles were taken into possession and seized vide seizure memo Ex.PW12/A. PW17 and PW18 have also deposed on the same line as regards the recovery of stolen jewellery articles from the shop of Bal Kishan.
20.10 As regards the said alleged recovery of gold articles from PW12 Bal Kishan, it is pertinent to note that the case of prosecution is that the complainant had also accompanied the police officers at the time of said recovery and the complainant had immediately identified the jewellery articles recovered from the shop of PW12 Bal Kishan, as the jewellery articles of his wife. However, PW3/Rajesh Sharma has not supported the same in his chief examination and in fact he has stated that he was called to the PS in the evening whereupon IO showed him the articles recovered at the instance of accused. In his cross-
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2026.04.30 17:34:48 +0530 examination by ld. Addl.PP for the State he specifically denied that he accompanied the IO the the shop of Bal Kishan for recovery of the stolen jewellery articles of his wife. It is only in his cross-examination by ld. Counsel for accused that he stated that the recovery of gold chain, ring and mangalsutra was effected in his presence and he had accompanied the police for the same in a private vehicle. When he was specifically questioned by the court regarding the contradiction in his two versions, he stated that he could not tell the correct facts on this point during his examination in chief and cross-examination by ld. Addl. PP for the State as he was nervous due to court environment and also in view of the fact that his children were small and some harm may be caused to them. However, the said explanation does not inspire the confidence of the court as the accused is a close relative of the complainant and there is nothing on record to show that any threat was extended to him or his children at any time during trial. He has also been examined in chief in detail and cross-examined by Ld. Addl. PP for the State as well as ld. Counsel for accused, wherein he has patiently deposed and it does not appear from his testimony that any point of time he was nervous because of court environment. Thus, considering his testimony in chief examination that he had not accompanied the police officers during the recovery of alleged stolen jewellery articles, coupled with the fact that there is no documentary evidence to show that the jewellery articles recovered from PW12 actually belonged to the deceased, reasonable doubt is cast on the recovery as well as identification of the jewellery.
21. FINDINGS AND CONCLUSIONS 21.1 In view of the aforesaid discussion, it can be summarized as follow:
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(i) Prosecution has failed to prove beyond reasonable doubt that the death of deceased was homicidal.
(ii) Prosecution has failed to co-relate the ante-mortem injury i.e. abrasion on the epigastric region of abdomen to the accused, while the injuries alleged to be given by accused i.e. strangulation marks are found to be postmortem injuries. So, prosecution has not proved beyond reasonable doubt as to who had caused the injury which was ante-mortem in nature.
(iii) Prosecution has failed to prove beyond reasonable any motive on the part of the accused to kill the deceased.
(iv) CDRs relied upon by the prosecution do not even add up as one of the chain in the circumstance to point towards the guilt of the accused.
(v) Prosecution has also failed to prove beyond reasonable doubt the location of the accused at the house of deceased at the time of commission of offence.
(vi) There is no evidence to show accused was last seen with the deceased or inside the house or outside the house of the deceased.
There is also no material on record in the form of either oral or documentary evidence or in the form of scientific evidence to place the accused at the scene of crime.
(vii) Admittedly, the crime scene was found to be disturbed. First caller namely Nirmala Bhardwaj has not been examined by prosecution. Even the child witness namely Ms. Disha has not been examined by prosecution.
(viii) Recoveries, as alleged to be made at the instance of accused, do not inspire the confidence of the court in view of the discussion in preceding paragraphs.
Digitally SC No.440448/2016signed by SWATI State Vs. Surender Sharma Page 51 of 52 SWATI GUPTA GUPTA Date:
2026.04.30 17:35:02 +0530 21.2 It is settled law that suspicion, however grave, cannot take the place of proof. It is also equally settled that though prosecution case may be true but criminal jurisprudence requires that prosecution case must be true. There is a long distance between "may be true" and "must be true". It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute.
After analyzing the entire evidence on record, it can be safely concluded that the evidence in the present case falls short of the standard of proof required in a criminal case based on circumstantial evidence and it does not exclude every reasonable hypothesis consistent with the innocence of the accused. Accordingly, benefit of doubt has to be extended to the accused.
22. Resultantly, accused Surender Sharma is hereby acquitted for the offences punishable U/s 304/411 IPC.
Announced in the open Court SWATI by Digitally signed SWATI on 30th April, 2026 GUPTA GUPTA Date: 2026.04.30 17:35:10 +0530 (Swati Gupta-I) ASJ(FTC)/South-West District Dwarka Courts/New Delhi/30.04.2026
It is certified that this Judgment contains 52 (Fifty two) pages and each page bears my initials / signatures.
Digitally signedSWATI by SWATI GUPTA GUPTA 17:35:17 +0530 Date: 2026.04.30 (Swati Gupta-I) ASJ(FTC)/South-West District Dwarka Courts/New Delhi/30.04.2026 SC No.440448/2016 State Vs. Surender Sharma Page 52 of 52