Delhi District Court
State vs Brij Mohan Sharma @ Gabbar And Others on 8 December, 2025
IN THE COURT OF SH. PARVEEN SINGH,
ADDL. SESSIONS JUDGE - 03 (NORTH EAST DISTRICT)
KARKARDOOMA COURT : DELHI.
CNR No. DLNE01-003430-2020
SC No. 162/2020
FIR No. 95/20
PS New Usmanpur
U/s. 147/148/149/308/302/201/188/174-A IPC
State
Versus
1. Brij Mohan Sharma @ Gabbar,
s/o Sh. Harish Chand,
r/o J-301/A Gali No. 13,
Kartar Nagar, Delhi.
2. Sunny @ Lalla
s/o Sh. Mahendra Singh,
r/o J-200/7B, Gali No. 2,
Kartar Nagar, Delhi.
3. Pankaj Shukla,
s/o Sh. Satish Shukla,
r/o J-305, Gali No. 1,
Kartar Nagar, Delhi.
4. Rohit Shukla,
s/o Sh. Pramod Shukla,
r/o J-305, Gali No. 1,
Kartar Nagar, Delhi. ...Accused
FIR No. 95/20
PS New Usmanpur 1 of 56
Digitally signed
by PARVEEN
PARVEEN SINGH
Date:
SINGH 2025.12.08
17:21:53
+0530
Date of Committal : 22.12.2020.
Date of Arguments : 04.12.2025.
Date of Pronouncement : 08.12.2025.
(Section 481 BNSS complied with by all the accused )
JUDGMENT
Facts of Prosecution Case as per Charge Sheet 1.1 The brief facts as per the case of the prosecution are, that on 26.02.2020, GD No. 164A was received in PS NU Pur from Jag Pravesh Chandra Hospital. This GD was to the effect that one injured namely Irfan had been admitted in the hospital by one Nafees. This GD was marked to ASI Naushad, who alongwith Ct. Ravinder, went to JPC Hospital, obtained the MLC of the injured and found that the injured had been taken to higher centre for treatment. On the same day, another DD No. 167-A was received in PS NU Pur which was to the effect that 'caller bol raha hai gharo ke gate tod diye hai, dande wale ghar me ghus rahe hai, incident address -4 th pushta, kartar nagar, gali no. 2, pahari hotel vali gali, fulon wali masjid'. On receipt of this DD, ASI Naushad went to the place of incident. However, he could find the complainant at the place of incident. On the basis of this DD, ASI Naushad got the present FIR registered. 1.2 During the course of investigation, ASI Naushad went to GTB Hospital, where injured Irfan was admitted for treatment. The FIR No. 95/20 PS New Usmanpur 2 of 56 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2025.12.08 17:22:04 +0530 injured was unfit for statement. However, ASI Naushad met Kuresha, mother of injured who alleged that her son had been beaten by some boys and she could identify those boys. Thereafter, IO ASI Naushad made inquiries from Nafees who had taken injured to the hospital. At the instance of Nafees, IO prepared site plan of the place of incident. During the treatment, injured Irfan expired, this information was recorded vide DD No. 24, and section 302 IPC was added in the FIR. Thereafter, the investigation of the matter was assigned to Insp. Vijay Kumar.
1.3 During the course of further investigation, Insp. Vijay recorded the statement of Smt. Kuresha, mother of deceased. She alleged that on 26.02.2020 at about 7.30 p.m, she and her son Irfan had gone to fetch milk. When they reached in gali no. 2, Pahari wali gali, her son had been beaten by some boys and of those boys she named four persons i.e. Gabbar, Pankaj, Lalla and one Sabjiwala.
During the investigation, post mortem report of the deceased was collected and exhibits were sent to FSL. Thereafter, the further investigation was transferred to Crime Branch and investigation was assigned to Insp. Rajeev Kumar.
1.4 During the course of further investigation, Insp. Rajeev Kumar got the place of incident inspected by FSL team. Kuresha's statement u/s 164 Cr.P.C was recorded wherein she named Gabbar, Lalla, Pankaj and Rohit. Accused Brij Mohan Sharma and Sunny @ FIR No. 95/20 PS New Usmanpur 3 of 56 Digitally signed by PARVEEN PARVEEN SINGH Date: SINGH 2025.12.08 17:22:13 +0530 Lalla were apprehended from their houses and after interrogation, they were arrested in this case. The CDRs of the mobile phones of these accused were checked and on the day of incident, their location was found in Kartar Nagar. Accused Pankaj and Rohit could not be apprehended and NBWs were got issued against them. Exhibits were sent to FSL and thereafter, charge sheet for offences punishable u/s 147/148/149/308/302/201/188 IPC was filed against accused Brij Mohan Sharma @ Gabbar and Sunny @ Lalla. 1.5 Thereafter, accused Rohit Shukla moved an application for grant of anticipatory bail before Hon'ble High Court of Delhi and anticipatory bail was granted to him. Accused Rohit Shukla was interrogated and his mobile phone was seized and sent to FSL. During further investigation, accused Pankaj Shukla surrendered before Duty MM and after interrogation, he was arrested in this case. After completion of investigation, a supplementary charge sheet u/s 147/148/149/308/302/201/188/174-A IPC was filed against accused Rohit Shukla and Pankaj Shukla.
1.6 Thereafter, vide another supplementary charge sheet, FSL results were filed before the court.
Charges 2.1 On 31.03.2021, charge for offences punishable u/s 143/147/148 r/w section 149 IPC; under section 188 IPC; under section 302 IPC and under section 201 IPC was framed against all the FIR No. 95/20 PS New Usmanpur 4 of 56 Digitally signed by PARVEEN PARVEEN SINGH Date:
SINGH 2025.12.08 17:22:23 +0530 accused, to which they pleaded not guilty and claimed trial. On the same day, another charge u/s 174-A IPC was framed against accused Pankaj Shukla, to which he pleaded not guilty and claimed trial. Prosecution Evidence
3.1 The prosecution has examined 24 witnesses to prove its case.
3.2 PW1 is Mohd. Furkan. He is the brother of deceased. He deposed that on 29.02.2020, he alongwith his brother Nafees had gone to the mortuary of GTB Hospital where, vide his statement (Ex.PW1/A), he identified the dead body of Irfan. Thereafter, on the basis of request form (Ex.PW1/B), post mortem of the deceased was conducted and after the post mortem, dead body was handed to him and to his brother.
3.3 PW2 is Smt. Kuresha. She is the mother of the deceased. She was the eye witness of the incident. Her detailed testimony shall be discussed at a later stage as and when required. 3.4 PW3 is ASI Naushad. He was the first IO of the case. His detailed testimony shall be discussed at a later stage as and when required.
3.5 PW4 is Nafees, cousin of deceased. He deposed that on 26.02.2020 at about 7-7.30 p.m, he heard commotion and noise in the gali. When he went out, he saw that his aunt Kuresha was crying and coming towards his house. She told him that about 9-10 persons had FIR No. 95/20 PS New Usmanpur 5 of 56 Digitally signed by PARVEEN PARVEEN SINGH Date:
SINGH 2025.12.08 17:22:32 +0530 surrounded Irfan near H. No. J-336. He went to that place and found that Irfan was lying on the road and was bleeding from his head. He, alongwith other boys, took Irfan to JPC Hospital in a TSR. In the JPC Hospital, Irfan was referred to GTB Hospital and they took Irfan to GTB Hospital. In his presence, clothes of Irfan were given to the police. He further deposed that on 27.02.2020, at his instance, police prepared site plan of the place of incident. On 27.02.2020, Irfan had expired. On 29.02.2020, he alongwith Furkan had gone to GTB Hospital and identified the dead body of Irfan and the dead body was handed to them.
3.6 PW5 is Pramod Kumar. He deposed that on 26.02.2020, he was at his house in Kartar Nagar. On that day, he heard a lot of noise outside his house. He went to the terrace of his house and saw that a lot of persons were present in front of his adjacent house. From the balcony of first floor, he saw that a male person was lying on the road in the gali. Thereafter, he made a PCR call. He further deposed that on 17.04.2020, he had visited the office of police at R.K Puram and his statement was recorded by the police. 3.7 PW6 is ASI Rajvir Singh. He deposed that on 26.02.2020, he was on duty from 12 midnight till 8.00 a.m of 27.02.2020. At about 02.23 a.m, ASI Naushad handed him a rukka (Ex.PW3/A) for registration of FIR. On the basis of rukka, he recorded FIR, Ex.PW6/A. After registration of FIR, the investigation was assigned to FIR No. 95/20 PS New Usmanpur 6 of 56 Digitally signed by PARVEEN PARVEEN SINGH Date:
SINGH 2025.12.08 17:22:41 +0530 ASI Naushad.
3.8 PW7 is Pawan Singh. He was the nodal officer from Vodafone Idea Ltd. He proved the the CDR, CAF, certificate u/s 65B of Evidence Act and cell ID chart of mobile no. 9990771050 and 7289844320 w.e.f. 15.02.2020 to 31.03.2020. As per EKYC (Ex.PW7/B), mobile no. 7289844320 was in the name of Rohit Shukla. As per DKYC (Ex.PW7/C), mobile number 9990771050 was in the name of Rohit Shukla. The certified copies of CDR of mobile no. 9990771050 and 7289844320 were Ex.PW7/D and Ex.PW7/E. The location chart was Ex.PW7/F. He also proved the CDRs of mobile no. 9266871924 and 9711101239 as Ex.PW7/I and Ex.PW7/J. As per the EKYC (Ex.PW7/K), mobile no. 9266871924 was registered in the name of Brij Mohan Sharma. As per the EKYC (Ex.PW7/L), mobile no. 9711101239 was in the name of Sunny. Certified copy of the cell ID / location chart was Ex.PW7/M and the certificate u/s 65B of IE Act was Ex.PW7/N. 3.9 PW8 is Ajay Kumar, Nodal Officer from Bharti Airtel Ltd. He proved the CDR w.e.f 15.02.2020 to 25.03.2020, CAF and Cell ID chart of mobile number 8826081906 as Ex.PWPW8/A to Ex.PW8/E. 3.10 PW9 is Jitender, Asstt. Chemical Examiner (Biology) from FSL. He deposed that on 24.03.2020, on the instruction if IO Insp. Rajeev Kumar, he went to the spot i.e. gali in front of H. No. FIR No. 95/20 Digitally signed by PARVEEN PS New Usmanpur 7 of 56 PARVEEN SINGH Date:
SINGH 2025.12.08 17:22:52 +0530 J-336, Kartar Nagar. He inspected the place of incident and prepared a report, Ex.PW9/A. 3.11 PW10 is Parveen Kumar, Alternate Nodal Officer from Reliance Jio Infocom. He proved the certified copy of CDR for the period w.e.f. 15.02.2020 to 25.03.2020, CAF/ EKYC, certificate u/s 65B of Evidence Act and Cell ID chart of mobhile no. 8368210630 as Ex.PW10/A to Ex.PW10/D. 3.12 PW11 is Dr. Arvind Kumar from GTB Hospital. He deposed that on 29.02.2020, he, Dr. N.K Aggarwal and Dr. Pankaj Malia conducted post mortem on the body of Irfan and prepared post mortem report, Ex.PW11/A. 3.13 PW12 is HC Imran Ali. He deposed that on 27.02.2020, he was assigned duty at the mortuary of GTB Hospital. He deposed that on 29.02.2020, Insp. Vijay alongwith ASI Naushad Haider and one photographer came to the mortuary. Before post mortem examination, dead body of Irfan was identified by Nafees and Furkan, vide identification memos Ex.PW12/A and Ex.PW1/A. The post mortem examination was videographed by the photographer and after the post mortem, dead body was handed to Furkan, vide memo Ex.PW12/B. 3.14 PW13 is ACP Mahesh. He deposed that on 07.04.2020, at the instance of Insp. Rajeev, he prepared scaled site plan, Ex.PW13/A. 3.15 PW14 is SI Sandeep. He was a witness to the arrest of the FIR No. 95/20 PS New Usmanpur 8 of 56 Digitally signed by PARVEEN PARVEEN SINGH Date: SINGH 2025.12.08 17:23:01 +0530 accused persons. His detailed testimony shall be discussed at a later stage as and when required.
3.16 PW15 is HC Sushil Kumar. He deposed that on 21.04.2020, on the directions of Insp. Rajeev, vide RC No. 48/21/20 (Ex.PW15/A), he had collected three sealed exhibits from malkhana of PS NU Pur and deposited them in FSL. After depositing the exhibits in FSL, he had given the copy of receiving (Ex.PW15/B) in the malkhana. He further deposed that on 08.10.2020, he, HC Manoj, ASI Jai Prakash and Insp. Rajeev Malik had taken accused Pankaj Shukla to Safderjung Hospital for medical examination. Thereafter, they all went to dossier cell where the dossier of accused Pankaj Shukla was prepared. He further deposed that thereafter, they went to the place of incident and IO prepared site plan of the spot. When they were at that place, mother of deceased had also come there and she had identified Pankaj, stating that he had killed her son. 3.17 PW16 is Sh. Gaurav Sharma, Jr. Forensic/Assistant Chemical Examiner from FSL Rohini. He deposed that on 12.01.2021, he received one sealed parcel containing one Samsung mobile phone and two SIM cards. He examined the exhibits and prepared report, Ex.PW16/A. 3.18 PW17 is ASI Rajender Kumar. He deposed that on 28.03.2020, he joined the investigation with Insp. Rajeev, SI Sandeep, SI Jai Prakash, HC Sushil and HC Manoj. They went to 4 th pusta, FIR No. 95/20 PS New Usmanpur 9 of 56 Digitally signed by PARVEEN PARVEEN SINGH Date: SINGH 2025.12.08 17:23:09 +0530 Kartar Nagar. One secret informer met IO at that place and he informed IO that accused Brij Mohan @ Gabbar and Sunny @ Lalla, would be present at their respective homes. The secret informer took them to J-200/7B, gali no.1, Kartar Nagar and informed that it was house of Sunny @ Lalla. On knocking the door, a person opened the door and introduced himself as Sunny. IO interrogated him and thereafter IO took him along. Thereafter Sunny led them to J-301-A, gali no.13, Kartar Nagar. On knocking the door, the person, who opened it, introduced himself as 'Brij Mohan @ Gabbar'. Thereafter both the accused were brought to the office. He further deposed that on 25.09.2020, on the instructions of Insp. Rajeev, vide RC, Ex.PW17/D, he had taken one exhibit, containing a mobile phone, from malkhana and deposited it in FSL Rohini. After depositing the exhibit in FSL, he handed the acknowledgment (Ex.PW17/E) in malkhana. On 07.10.2020, he accompanied IO/Insp. Rajiv and SI Jai Prakash to Mandoli Jail. Accused Pankaj Shukla had surrendered before Duty MM at Mandoli jail. IO moved application seeking permission to interrogate accused Pankaj Shukla. After interrogation, accused Pankaj was arrested vide arrest memo Ex.PW17/A. Personal search of accused was prepared, which was Ex.PW17/B. He further deposed that accused had given his mobile phone. IO switched it off and seized it vide memo Ex.PW17/C. 3.19 PW18 is HC Rishi. He deposed that on 19.10.2020, on FIR No. 95/20 PS New Usmanpur 10 of 56 Digitally signed by PARVEEN PARVEEN SINGH Date: SINGH 2025.12.08 17:23:16 +0530 the directions of Insp. Rajeev, vide RC (Ex.PW18/A), he had taken one exhibit of this case from malkhana and deposited it in FSL Rohini.
After depositing the exhibit in FSL, he was given a receipt, which was Ex.PW18/B. 3.20 PW19 is Sanjay Sharma. He was the photographer who had videographed the post mortem examination of deceased Irfan. He had also given certificate u/s 65B of Evidence Act, which was Ex.PW19/A. 3.21 PW20 is Retd. SI Jai Prakash. He deposed that on 24.03.2020, he alongwith IO/Insp. Rajeev Kumar and HC Manoj, went to the place of incident i.e. H.No. J-336, gali no.1, Kartar Nagar. FSL team was also present at the place of incident. The mother of the deceased namely Kuresha, his brother Furkan and his father also reached there. FSL team collected blood stains from the outside wall of the said house by peeling up the wall plaster, kept the same in a paper envelope and handed the same to IO, who seized the same vide a seizure memo Ex.PW20/A. There was a photographer with the FSL team, who took the photographs of the place of incident. Thereafter, the exhibits were deposited in the malkhana of PS New Usmanpur. He further deposed that on 28.03.2020, he alongwith IO, SI Sandeep, HC Sushil, HC Manoj and HC Rajender went to Kartar Nagar in search of accused persons. They searched for accused Pankaj Shukla and Rohit Shukla in the gali near their home, but they could not be located.
FIR No. 95/20PS New Usmanpur 11 of 56 Digitally signed by PARVEEN PARVEEN SINGH Date: SINGH 2025.12.08 17:23:23 +0530
Thereafter secret informer informed IO that accused Brij Mohan and Sunny @ Lala, were available at their respective houses and could be apprehended. First they went to the house of Sunny @ Lala at H.No. J-200, gali no.8, Kartar Nagar and apprehended him. Thereafter they went to the house of Brij Mohan and apprehended him. In the office, IO interrogated both these accused and arrested them. He further deposed that on 01.04.2020, I alongwith IO, HC Manoj and ASI Priyavrat took both the accused persons to Metro Station, Gokalpuri, where Brij Mohan led them to a wall near drain and looked for iron rod, which was thrown by him, but the same was not found. Accused Sunny @ Lala also led them to a place near the wall of drain (nala) before the Metro Station and informed that he had thrown at that place the cricket bat used by him, in the present case. They looked for the said bat there, but the same was not found. Both the accused pointed the place of incident i.e. J-336, gali no.1, Kartar Nagar. IO prepared pointing out memo, Ex.PW20/B and Ex.PW20/C respectively. At that time, mother of the deceased Kuresha came at that place and she identified both these accused persons as killer of her son. She also disclosed name of both these accused persons while identifying them. Thereafter they went to Safdarjung Hospital, where accused persons were medically examined and doctor collected blood sample of both the accused persons. IO seized the blood samples of both the accused persons vide a seizure memo. On 09.12.2020, IO had called accused FIR No. 95/20 PS New Usmanpur 12 of 56 Digitally signed by PARVEEN PARVEEN SINGH Date: SINGH 2025.12.08 17:23:31 +0530 Rohit Shukla to the office. IO interrogated Rohit Shukla and formally arrested him. Rohit was discharged with direction to appear in Karkardooma Courts on same day at about 3.30 p.m. On same day, he alongwith IO went to Karkardooma Courts. Rohit had also come to the court. IO moved an application for TIP of accused Rohit. However, Rohit refused to participate in TIP, before the court. Thereafter Rohit was directed to reach the place, where he had disclosed about throwing the danda used by him . They tried to trace the danda, but could not find there. Thereafter they went to the place of incident where accused Rohit pointed the place of incident. IO prepared a pointing out memo Ex.PW20/D. Kuresha had also reached that place and she identified Rohit as one of the killers of her son. He further deposed that on 22.12.2020, on the directions of IO, vide RC (Ex.PW20/E), he had taken exhibits from malkhana and deposited all the materials in FSL Rohini. In FSL, he was given a receiving (Ex.PW20/F). He brought back aforesaid receiving and a copy of RC and handed over the same to MHC(M).
3.22 PW21 is Insp. Vijay Kumar Badiwal. He is one of the IOs of the case. His detailed testimony shall be discussed at a later stage as and when required.
3.23 PW22 is Insp. Sunil. He deposed that on 31.05.2022, he had filed a supplementary charge sheet no. 2 in the court.
3.24 PW23 is HC Ravinder Giri. He deposed that on FIR No. 95/20 PS New Usmanpur 13 of 56 Digitally signed by PARVEEN PARVEEN SINGH Date: SINGH 2025.12.08 17:23:38 +0530
26.02.2020, he alongwith ASI Naushad had gone to Jag Pravesh Hospital. ASI Naushad obtained MLC no.692/20 of Irfan. ASI Naushad again received another call from PS and they both went to the police station. From the police station, they went to 4 th pusta, Pahari hotel wali gali. ASI Naushad made telephonic call to the PCR caller, but he said that he could not come before them. Thereafter ASI Naushad prepared a rukka on the basis of DD no.167A for registration of FIR. On the basis of the rukka, FIR in present case was registered. Thereafter, they went to GTB Hospital and met Ms.Quresha (mother of Irfan) and Nafees (brother of injured). ASI Naushad made enquiry from Quresha and she stated that she could not give complete statement at that time and that she would give her statement subsequently. Thereafter they alongwith Nafees (brother of injured) went to gali no.2, Kartar Nagar. Nafees pointed out a place in that gali. ASI Naushad lifted the blood stained cemented/concrete material from the road, in a transparent plastic box. He also lifted earth control in another plastic box. He seized both the boxes vide a seizure memo, already Ex.PW3/D. He further deposed that in GTB hospital, doctor had handed over a sealed cloth pullanda to the IO which was seized vide Ex.PW3/B. 3.25 PW24 is Insp. Rajeev Kumar. He is the IO of the case. His detailed testimony shall be discussed at a later stage as and when required.
FIR No. 95/20PS New Usmanpur 14 of 56 Digitally signed by PARVEEN PARVEEN SINGH Date:
SINGH 2025.12.08 17:23:45 +0530 Statement of Accused
4.1 Thereafter, on 19.07.2025, statements u/s 313 Cr.P.C of all the accused were recorded. Accused Brij Mohan Sharma and Sunny @ Lalla had preferred to lead evidence in their defence. However, on 23.09.2025, both the accused closed their evidence in defence.
Contentions of ld. SPP and of ld. counsels for accused 5.1 I have heard ld. Addl. PP for State as well as ld. counsel for accused and perused the record as well as the written submissions very carefully.
5.2 In the written submissions filed by ld. SPP, it has been contended that through testimony of PW2, the prosecution has proved its case. PW2, the mother of the accused, clearly described the role played by each accused and detailed how they had assaulted the deceased. She also identified all the accused in the court. It has further been contended that PW2 was cross examined at length, however, no material contradiction could emerge in her cross examination which could impeach her credibility. It has further been contended that any minor discrepancies/ inconsistencies will not discredit the whole testimony of the eye witness. In this regard, reliance has been placed on the judgment of Hon'ble Supreme Court in Rammi v. State of M.P (1999) 8 SCC 649 and Edakkanadi Dineshan v. State of Kerala (2025) 3 SCC 273. On the point of eye witness, reliance has been placed on FIR No. 95/20 PS New Usmanpur 15 of 56 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2025.12.08 17:23:53 +0530 the judgment of Hon'ble High Court of Delhi in Mohd. Nasim v. State, 2023 SCC Online Del 7073 and the judgment of Hon'ble Supreme Court in State of Madhya Pradesh v. Balveer Singh, 2025 SCC Online SC 390. It has further been contended that in view of the ocular evidence of PW2 and other corroborating witnesses, the prosecution has proved its case beyond all reasonable doubts. 5.3 In the written submissions filed on behalf of accused Rohit Shukla and Pankaj Shukla, it has been contended that during the interrogation, PW Kuresha stated that the boys, who had beaten her son, were from her gali. However, she did not give the names of the assailants. On the other hand, in the inquest papers, it has been mentioned that the incident had taken place in Shastri Park and Irfan was killed by pelting of stones. It has further been contended that PW2 Smt. Kuresha, in her statement u/s 161 Cr.P.C stated the names of four persons i.e. Gabbar, Pankaj Shukla, Lalla & Sabjiwala. However, in her statement u/s 164 Cr.P.C, she gave the name of Rohit Shukla in place of Sabjiwala. No explanation was given why the name of Rohit Shukla was given. It has further been contended that the incident had happened on 26.02.2020 whereas the statement of Kuresha (PW2) was recorded on 28.02.2020. It has further been contended that Kuresha improved her statement u/s 164 Cr.P.C and implicated Rohit Shukla.
Later she again made improvements in her examination in chief and changed her version again and again during the cross examination.
FIR No. 95/20PS New Usmanpur 16 of 56 Digitally signed by PARVEEN PARVEEN SINGH Date:
SINGH 2025.12.08 17:23:59 +0530 Thus, in view of the improvements in the statement of PW2, benefit should be given to the accused. In this regard, reliance has been placed on the judgments of Hon'ble Supreme Court in Khem Singh (D) through LRs v. State of Uttaranchal, Cr. Appeal No. 1330-1332 of 2017; V. K Mishra v. State of Uttrakhand; Shyam Lal Ghosh v. State of West Bengal; Radha Mohan Singh v. State of U.P and Ashok Vishnu Davare v. State of Maharashtra. It has further been contended that IO intentionally and deliberately got Pankaj Shukla declared as PO. HC Manoj never pasted the proceedings u/s 82-83 Cr.P.C. In absence of statement of HC Manoj, no proceedings can be initiated against accused Pankaj.
5.4 In the written submissions filed on behalf of accused Sunny @ Lalla, it is submitted that the prosecution has only based its case only on the testimony of PW2. However, there are contradictions in the statement and testimony of PW2. In her statement u/s 161 Cr.P.C, PW2 stated that her son was going to fetch milk and she accompanied him. In her statement u/s 164 Cr.P.C, she stated that she told her son not to go to fetch milk and that she would get the milk.
She further stated that she told her son that she was having pain to which her son asked her to go to doctor. In her testimony before the court, she stated that she told her son that she would accompany him as she had to take some medicine due to pain in her knee. Thus, there is contradiction in the statements u/s 161 Cr.P.C, u/s 164 Cr.P.C and FIR No. 95/20 PS New Usmanpur 17 of 56 Digitally signed by PARVEEN PARVEEN SINGH Date:
SINGH 2025.12.08 17:24:07 +0530 the testimony of PW2. She did not even provide the name of the doctor where she was going. It is further contended that PW4, who was the relative of PW2, was running a milk dairy and thus, there was no reason for the deceased to go to fetch milk from any other person. It has further been contended that with regard to the number of assailants also, there is contradiction in the statement u/s 161 Cr.P.C, statement u/s 164 Cr.P.C and the testimony of PW2. In her statement u/s 161 Cr.P.C, she stated that she saw 8-10 boys whereas in her statement u/s 164 Cr.P.C, she stated that some boys had come out of their houses and in her testimony before the court, she deposed that she had seen 10-15 boys at the place of incident. Thus, the witness has been changing her version with regard to the number of assailants. It has further been contended that PW2 in her examination in chief deposed that her son fell down after being hit by Lalla and Rahul whereas in her statement u/s 161 Cr.P.C, she stated that Lalla and Sabjiwala were hitting her son after he fell down on the ground. It has further been contended that in her statement u/s 161 Cr.P.C, she did not name Rahul as one of the assailants. It has further been contended that with regard weapons carried by the accused, there is contradiction in the statements of PW2. In her testimony, PW2 deposed that accused Sunny was carrying an iron bat whereas in her statement u/s 161 Cr.P.C, she stated that accused Sunny was carrying a hockey bat/ haathi ka bat and in her statement u/s 164 Cr.P.C, she had not FIR No. 95/20 PS New Usmanpur 18 of 56 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2025.12.08 17:24:14 +0530 mentioned any specific weapon being carried by accused Sunny and stated that the assailants were carrying lathi, talwar and rod. It has further been contended that PW2 has given different versions of her immediate acts after the deceased was attacked. It has further been contended that PW2 has not explained the delay of giving her statement on 28.02.2020. It has further been contended that PW2 is a planted witness and thus, her testimony cannot be relied upon. 5.5 On behalf of accused Brij Mohan, it has been contended by ld. Counsel that from the Call ID/ location chart, the exact location of the accused cannot be established as the accused is a resident of the area where the incident had happened. It has further been contended that there are improvements in the testimony of PW2, if compared to her statement u/s 161 Cr.P.C and statement u/s 164 Cr.P.C. It has further been contended that PW2 in her examination in chief deposed that when her son was beaten, she ran towards the house and informed Nafees about the incident. However, in her cross examination, she deposed that when her son was beaten, she became unconscious and regained consciousness after 3-4 minutes and then went to her house and informed Nafees about it. In later part of her cross examination, she deposed that when she regained consciousness, she found that Nafees, Anwar and Rashid were present there. Thus, in view of the contradictions in the testimony of PW2, accused are entitled to acquittal.FIR No. 95/20
PS New Usmanpur 19 of 56 Digitally signed by PARVEEN PARVEEN SINGH Date:
SINGH 2025.12.08 17:24:21 +0530 Findings 6.1 I have considered the rival submissions and carefully perused the record as well as the judgments cited by both sides at bar. 6.2 The first question which needs to be decided is, whether the death of Irfan is a homicide?
6.3 To prove this fact, prosecution had examined PW11 dr.
Arvind. He deposed that on 29.02.2020, autopsy on the dead body of Irfan was conducted by him, Dr. N. K. Aggarwal (Director Professor) and Dr. Pankaj malia (Sr. Resident). During the external examination, following injuries were found:-
1. Reddish abrasion of size 12.0 cm x 0.3 cm present over left side of back, horizontal, 6.0 cm lateral to midline and 10.0 cm below inferior angle of scapula.
2. Reddish abrasion of size 12.0 cm x 2.5 cm present over posterior axillary fold, 11.0 cm below top of shoulder.
3. Reddish abrasion of size 8.0 cm x 0.5 cm present over left side of back, 17.5 cm lateral to midline and 7.5 cm below shoulder top.
4. Reddish abrasion of size 9.0 cm x 1.0 cm present over posterolateral aspect of left arm 15.0 cm below shoulder top.
5. Reddish purple bruise of size 3.0 cm x 3.0 cm present over left shoulder top.
6. Lacerated wound of size 2.0 cm x 1.0 cm, muscle deep, oblique present over lateral aspect of left forearm surrounded by linear reddish abrasion of size 8.5 cm x 0.5 cm, 13.0 cm below elbow joint.
7. Reddish brown scabbed abrasion of size 4.5 cm x 0.5 cm, oblique present over lateral aspect of left thigh 19.0 cm above left knee joint.
8. Reddish abrasion of size 1.1 cm x 1.0 cm present over left knee joint.FIR No. 95/20
PS New Usmanpur 20 of 56 Digitally signed by PARVEEN PARVEEN SINGH Date:
SINGH 2025.12.08 17:24:28 +0530
9. Surgical stapled lacerated wound of size 6.0 cm x 0.5 cm, bone deep, vertically placed present over right frontoparietal region, anterior end is 4.0 cm above right eyebrow and 3.0 cm lateral to midline.
10. Surgical stapled lacerated wound of size 5.0 cm x 0.5 cm, bone deep present over left frontoparietal region, anterior end is 2.5 cm above right eyebrow and
4.0 cm lateral to midline.
11. Surgical stapled lacerated wound of size 5.0 cm x 0.5 cm, bone deep, obliquely placed present over left parietal region with fracture of underlying parietal bone, anterior end is 11.0 cm above left eyebrow and 5.0 cm lateral to midline.
12. Surgical staple lacerated wound of size 4.0 cm x 0.5 cm, bone deep, horizontally placed over vertex of skull crossing midline, 13.0 cm above glabella.
13. Surgical stapled lacerated wound 'L' shaped measuring 6.0 cm x 0.5 cm and 2.0 cm x 0.5 cm, muscle deep present over left parietal eminence, 10.0 cm above left ear.
14. Surgical stapled lacerated wound of size 3.0 cm x 0.5 cm, bone deep present 2.0 cm lateral to injury no.13.
15. Tram track bruise of size 7.0 cm x 2.0 cm with normal intervening area of size 0.8 cm, oblique present over left side of face, 3.0 cm medial to left ear surrounded by reddish abrasion of size 5.0 cm x 1.0 cm.
16. Reddish brown scabbed abrasion of size 0.8 cm x 0.2 cm, present over forehead in midline 3.0 cm above root of nose.
17. Reddish abrasion with purplish bruise of size 9.0 cm x 0.9 cm, horizontal present over epigastric region, 8.0 cm below xiphisternum, 7.0 cm above umbilicus.
6.4 The internal examination of head and neck revealed that:
Head and Neck:-
Scalp and Skull:- Extravasation of blood present in FIR No. 95/20 PS New Usmanpur 21 of 56 Digitally signed by PARVEEN PARVEEN SINGH Date: SINGH 2025.12.08 17:24:35 +0530 right parietal and diffusely in left side of scalp. Fracture of left parietal bone with separation of coronal suture present. Fracture of sphenoid and ethmoid bones present in anterior cranial fossa at base, fracture of left temporal bone present in middle cranial fossa. Brain:- 1625 gm, Extradural hemorrhage present over left parietotemporal lobe, subdural hemorrhage present diffusely over right cerebral hemisphere and left frontal lobe. Hemorrhagic contusions present over right frontal and temporal lobes, left frontoparieto and temporal lobes.
Neck and Vertebrae: NAD 6.5 The opinion of the autopsy board was that the cause of death was the shock as a result of ante mortem injuries on head produced by blunt force impact and the injuries mentioned at sl. no.9 to 14 were sufficient to cause death individually and collectively. All these injuries were ante mortem in nature produced by blunt force impact. He proved the post mortem report as Ex.PW11/A. 6.6 During his cross examination, nothing has emerged which would make me disbelieve the testimony of this witness as well as the post mortem report. I accordingly find that the death of Irfan was caused by the injuries as observed in the post mortem report and was homicide in nature.
6.7 The next question which needs to be decided is, whether the accused has caused the injuries which resulted in death of deceased and thus, had committed culpable homicide? 6.8 The prosecution has sought to prove its case against the accused on the sole testimony of Ms. Kuresha, who appeared as PW2.FIR No. 95/20
PS New Usmanpur 22 of 56
Digitally
signed by
PARVEEN
PARVEEN SINGH
SINGH Date:
2025.12.08
17:24:45
+0530
6.9 With regard to appreciation of testimony of an eye
witness, Hon'ble Supreme Court in State of State of M.P v. Balveer Singh (supra) had held as under:-
65. The appreciation of testimony of a witness is a hard task. There is no fixed or straitjacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
65.1. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken a to render it unworthy of belief.
65.2. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations infirmities in the matter of trivial details.FIR No. 95/20
PS New Usmanpur 23 of 56 Digitally
signed by
PARVEEN
PARVEEN SINGH
SINGH Date:
2025.12.08
17:24:52
+0530
65.3. When eyewitness is examined at length it is quite possible for him to make some discrepancies.
But courts should bear in mind that it is only when discrepancies in the evidence of a witness are incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
65.4. Minor discrepancies on trivial matters not touching the core the case, hypertechnical approach by taking sentences torn out context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of matter would not ordinarily permit rejection of the evidence as a whole.
65.5. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
65.6. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
65.7. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
65.8. The powers of observation differ from person to person, What one may notice, another may not.
FIR No. 95/20PS New Usmanpur 24 of 56
Digitally
signed by
PARVEEN
PARVEEN SINGH
SINGH Date:
2025.12.08
17:25:00
+0530
An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
65.9. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
65.10. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
65.11. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
65.12. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination by the counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence FIR No. 95/20 PS New Usmanpur 25 of 56 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2025.12.08 17:25:07 +0530 witnessed by him.
65.13. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.
65.14. The evidence of an interested and/or related witnesses should not be examined with a coloured vision simply because of their relationship with the deceased. Though it is not a rule of law, it is a rule of prudence that their evidence ought to be examined with greater care and caution to ensure that it does not suffer from any infirmity. The court must satisfy itself that the evidence of the interested witness has a ring of truth. Only if there are no contradictions and the testimony of the related/Interested witness is found to be credible, consistent and reasonable, can it be relied upon even without any corroboration. At the end of the day, each case must be examined on its own facts. There cannot be any sweeping generalisation. (See Bharwada Bhoginbhai, Hirjibhai v. State of Gujarat;
Leela Ram v. State of Haryana; Tahsildar Singh v. State of U.P.)
66. To put it simply, in assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts FIR No. 95/20 PS New Usmanpur 26 of 56 Digitally signed by PARVEEN PARVEEN SINGH Date: SINGH 2025.12.08 17:25:14 +0530 deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a court would attach to their evidence. Although in cases where the plea of the accused is a mere bald assertion of tutoring, yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raises a definite plea or puts forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence.
6.10 Further, in the judgment of Rammi v. State of Madhya Pradesh (supra), Hon'ble Supreme Court had held as under:-
24. When an eye-witness is examined at length it is quite possible for him to make some discrepancies.
No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration FIR No. 95/20 PS New Usmanpur 27 of 56 Digitally signed by PARVEEN PARVEEN SINGH Date: SINGH 2025.12.08 17:25:22 +0530 of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
25. It is a common practice in trial courts to make out contradictions from previous statement of a witness for confronting him during cross- examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of inconsistent former statement. But a reading of the Section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the Section is extracted below: 155. Impeaching credit of witness.- The credit of a witness maybe impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him (1) -(2) .....
(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.
26. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be contradicted would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross-examiner to use any former statement of the witness, but it cautions that if it is intended to contradict the witness the cross-examiner is enjoined to comply with the formality prescribed FIR No. 95/20 PS New Usmanpur 28 of 56 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2025.12.08 17:25:28 +0530 therein. Section 162 of Code also permits the cross- examiner to use the previous statement of the witness (recorded under Section 161 of the Code) for the only limited purpose, i.e. to contradict the witness.
27. To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness, (vide Tahsildar Singh and anr. vs. State of U.P., AIR 1959 SC 1012).
6.11 Further, in Edakkandi Dineshan @ P. Dineshan & Ors (supra), Hon'ble Supreme Court had held as under:-
16. The abovementioned settled position of law in Rammi was again reiterated by this Court in the judgment of Birbal Nath vs State of Rajasthan wherein it was held as under:
"21. No doubt statement given before police during investigation under section 161 are "previous statements" under section 145 of the Evidence Act and therefore can be used to cross examine a witness. But this is only for a limited purpose, to "contradict" such a witness. Even if the defence is successful in contradicting a witness, it would not always mean that the contradiction in her two statements would result in totally discrediting this witness. It is here that we feel that the learned judges of the High Court have gone wrong. ......
26. In the landmark case of Tehshildar Singh v State of UP, this Court has held that to contradict a witness would mean to "discredit" a witness.FIR No. 95/20
PS New Usmanpur 29 of 56
Digitally
signed by
PARVEEN
PARVEEN SINGH
SINGH Date:
2025.12.08
17:25:35
+0530
Therefore, unless and until the former statement of this witness is capable of discrediting" a witness, it would have little relevance. A mere variation in the two statements would not be enough to discredit a witness. This has been followed consistently by this Court in its later judgment, including Rammi.
17. Bearing in mind the abovementioned settled position of law, this court is of the considered opinion that though there is a variance in the statements of the witnesses, it is minor and not of such a nature which would drive their testimony untrustworthy. This court finds the deposition of witnesses PW1, 2 and 4 to be honest, truthful, and trustworthy. Hence, the observations made by the High Court in this regard are well reasoned.
6.12 To prove this fact, the prosecution has produced PW2 Kuresha, who is the mother of the deceased. 6.13 PW2 Kuresha deposed that on 26.02.2020 at about 7.30 p.m, her son Irfan was leaving the house to fetch milk. She told him that she wanted to accompany him for getting some medicine as she was having knee. Both of them left their house. Irfan was about 10 to 15 paces ahead of her. On reaching the crossing of Gali No. 4, she saw that there were some 10 to 15 boys standing at that place. All of them raised cries "Maro Is Muslim Ko" (Kill this Muslim Boy). She knew all those boys. Their names were Gabbar, Pankaj, Rahul and Lalla. Gabbar was having a thick iron rod in his hand, Pankaj was having an iron pipe in his hand, Lalla was having an iron bat in his hand and Rahul was having a rod (danda) in his hand. First it was Gabbar who FIR No. 95/20 PS New Usmanpur 30 of 56 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2025.12.08 17:25:42 +0530 hit her son Irfan on his head with the iron rod, Thereafter, Pankaj also hit Irfan with the iron pipe but she did not recollect which part of Irfan's body was hit by Pankaj. Thereafter, Lalla and Rahul also hit Irfan. Upon receiving these blows, her son Irfan fell on the ground. At that stage, she stated that the name of one of the boys was Rohit and not Rahul, as earlier stated by her. She ran towards her house and narrated the incident to Nafees, who was the son of her brother in law. On hearing about it, Nafis alongwith Anwar and Rashid (son of her Jeth) accompanied her to the spot where Irfan was lying on the ground. They took Irfan to Zero Pusta Hospital in an auto rickshaw and she returned home. From that hospital, Irfan was referred to GTB Hospital. However, he expired during the same time in the hospital.
She correctly identified all the four accused in the court. 6.14 During her cross examination on behalf of accused Brij Mohan Sharma @ Gabbar, she deposed that she did not know that there had been riots on or around 24.02.2020 and 25.02.2020. She had heard on 26.02.2020, that riots were taking place around her house. She came to know about the riots after leaving her house with her son on that day. She had been residing in that house for the last 30 to 35 years. On 26.02.2020, when she left her house alongwith Irfan, her husband, her daughter-in-law (wife of Irfan) and her grandson were present in the house. The distance between her house and the spot of incident might have been around 25 to 30 meters. When she left her FIR No. 95/20 PS New Usmanpur 31 of 56 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2025.12.08 17:25:52 +0530 house alongwith my son, she did not know that there are riots outside. At that time, it was not completely dark and there was moon light. She denied that after the incident in question, she had given an interview to a TV Channel.
6.15 During her further cross examination, a pen drive was produced by the defence stating it to be containing a video footage of the interview given by her to 'Live TV Channel'. The pen drive was played and in that footage, at 00:01:12, a female was seen in the video alongwith two other females and a child. She stated that the said female seen in the video was not her, but it was observed by my learned predecessor, that the face of the lady seen in that video totally resembled with the witness. Then she stated that the lady wearing the pink chunni was her daughter and the child in the video was her grandson. She further stated that the lady, who was seen from 00:02:00 till 00:03:45 speaking about the incident in which her son Irfan was lost, was not her. It was observed by my learned predecessor, that the face and voice of the lady in the footage resembled the face and voice of the witness. She denied that in the aforesaid video she, alongwith her daughter-in-law, were seen talking about the incident in which her son Irfan suffered fatal injuries, to the reporter of the Channel on 01.03.2020. She denied that she had deliberately not recognized herself as well as her voice in the above video as she had taken legal advise. The pen drive was exhibited as FIR No. 95/20 PS New Usmanpur 32 of 56 Digitally signed by PARVEEN PARVEEN SINGH Date: SINGH 2025.12.08 17:25:59 +0530 Ex.P-1 and the video was exhibited as Ex.P-2. 6.16 Further during her cross examination, she denied that when she alongwith her devar and son of jeth returned to the spot, no one was present and stated that several persons were present with her son Irfan. They were the residents of the same gali. She denied that the persons present there were rioters who had come from outside and for that reason, she did not know any of them. She denied that as she was not present at the spot at that time, she did not identify any of the persons present there. An auto rickshaw had been called by Nafees.
She admitted that the auto rickshaw driver was a Hindu. Irfan was accompanied to the hospital by Nafees, Rashid and Anwar. On reaching the hospital, Nafees and Anwar had made a call to her asking her to reach the hospital. At around 12 midnight, a police official had come to her house and had taken her to the hospital. She had not made any call to the police. The police official had come on his own. It was around 12 midnight that she had left with the police official. On the day of incident, she had not talked about the incident to anyone except her family members. She had narrated the incident to Nafees on the way from her house to the place of incident. She deposed that she had stated in her statement u/s 161 Cr.P.C that on the day of incident at about 7.30 p.m, she had left the house with Irfan for getting some medicine as she was having pain in her knee. She was confronted with her statement u/s 161 Cr.P.C, where it was not mentioned that she was FIR No. 95/20 PS New Usmanpur 33 of 56 Digitally signed by PARVEEN PARVEEN SINGH Date:
SINGH 2025.12.08 17:26:06 +0530 having knee pain and had to get medicine. She further deposed that she had mentioned in her statement to the police that when they reached the crossing of gali no. 4, she saw 10-15 boys standing at that place. She was confronted with her statement u/s 161 Cr.P.C where fact was not recorded. She further deposed that she had mentioned in her statement u/s 161 Cr.P.C that Lalla was having an iron bat in his hand. She was confronted with her statement u/s 161 Cr.P.C wherein it was mentioned, that Lalla was having a 'haathi ka bat' in his hand. She further deposed that police official had never taken her to the court and never produced her before any Magistrate and that no Magistrate had recorded her statement during the investigation of this case. She was shown her statement u/s 164 Cr.P.C dated 24.03.2020 and she denied that it had her thumb impression. She deposed that no such statement was recorded by the Magistrate. She denied that she was produced by the police before Magistrate on 24.03.2020, who recorded her statement. She denied that she was deposing falsely in the court as she had been legally advised to do so. She denied that she had deliberately concealed the factum of this statement from the court because, contents of the statement were absolutely contrary to what she had deposed before the court and the contents of that statement were true and correct. She further deposed that by the time she reached GTB Hospital, her son had expired. She denied that her son was alive till 9.00 a.m of 27.02.2020 and at that time, he was in JPC FIR No. 95/20 PS New Usmanpur 34 of 56 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2025.12.08 17:26:14 +0530 Hospital. She denied that she had falsely deposed that she was present at the place of incident on 07.30 p.m or that no incident had happened in her presence or that on account of pressure from her community members as well as police, she had falsely taken the names of accused. She denied that she did not know the name of assailants who had attacked her son till 01.03.2020 and for that reason, she did not make any PCR call or lodge any complaint with the police till that day. 6.17 During her cross examination on behalf of accused Lalla, she deposed that they used to fetch milk for household use from a dairy at 4th Pushta. She did not know the name of that dairy and they used to fetch milk only from that dairy and pay him on daily basis in cash. On the day of incident, the deceased had to go to the same dairy for fetching milk. At the time of incident, her son was having a container of 2.5 litres capacity in his hand. She denied that neither her son was going to fetch milk nor had she accompanied him and it was for this reason, no milk container was found at the place of incident by the police. She could not tell the duration for which attack continued and stated that the mob had come from the front side of her son. She was at a distance of 8-10 yards. She was shown a photograph during her cross examination and she deposed that the photograph was of the same gali in which the incident had happened. However, she was unable to identify the exact place in the photograph at which the incident had taken place and the photograph was exhibited as FIR No. 95/20 PS New Usmanpur 35 of 56 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2025.12.08 17:26:23 +0530 Ex.PW2/D-1. She denied that she could not identify the exact place of incident because she was not accompanying her son when he was attacked. When her son was attacked, she pleaded with the attackers not to beat her son. Soon she fell unconscious. She regained consciousness after about three or four minutes and found her son lying unconscious at the spot. She saw that he was having the injuries on his head and his right upper arm. Flesh had come out from the injury on his right arm. She tried to lift him but she could not. She had kept her dupatta of cream colour on the wound on his head. The dupatta was on his head when he was taken to the hospital and she did not know what happened to that dupatta later on. She denied that that she had deposed falsely about the said dupatta. The police officials did not demand from her the clothes, which she was wearing at the time of incident. The attackers had not surrounded her. She had fallen unconscious right near the spot where her son was attacked. After she regained consciousness, she reached her home in about ten minutes. When she reached home, Nafis was at home and was milking the cows/buffaloes. Nafis operated his own dairy. His house was adjacent to her house. She denied that since there was a dairy in her own house, she had fabricated a false story in collusion with the police officials that her son was going to fetch milk and for this reason, no milk container was found at the spot. When she reached the house, she narrated the incident to Nafees, his parents, his wife and his children, Digitally signed by FIR No. 95/20 PARVEEN PARVEEN SINGH PS New Usmanpur 36 of 56 SINGH Date:
2025.12.08 17:26:32 +0530 who were present at his house. Her husband and her daughter in law were also present in the house at that time. Her husband, her brother- in-law and Nafis were having mobile phones at that time. The house of Rashid was adjacent to her house. The house of Anwar was in another gali. Anwar was returning from his work and he met her on the way to her home. She had no relation with Anwar and she knew him only as a neighbour. She alongwith Nafis, Anwar and Rashid reached the spot together. As soon as they reached the spot, her son was removed to the hospital in an auto rickshaw. As soon as Irfan reached the hospital, she immediately returned to her house and was accompanied by Naushad, Mehraj and 2-3 more boys. Her husband was at home. Her daughter in law Gulista had also gone to the spot and she returned home with her. Irfan used to have mobile phone which he left at home. Her husband was also using the mobile phone. She had made calls to Nafis from the mobile phone of Irfan. Police had reached the spot in her presence. Only one police official reached the spot as soon as Irfan was taken to hospital. She did not talk to that police official. She denied that she did not talk to that police official as she was not present at the spot at the time of incident. Apart from the police official, she had disclosed the name of the assailants for the first time to Nafis. She had disclosed the names of the assailants to the police official as well as Nafis on 27.02.2020 in the police station. She denied that she had deposed falsely about the entire incident and that FIR No. 95/20 PS New Usmanpur 37 of 56 Digitally signed by PARVEEN PARVEEN SINGH Date: SINGH 2025.12.08 17:26:42 +0530 she had taken the names of the accused falsely, being members of another community, in order to implicate them falsely in this case. She denied that she had taken the names of the accused as an after thought and in connivance with the members of her community and police officials.
6.18 During her cross examination on behalf of accused Pankaj and Rohit Shukla, she deposed that she did not mention in her statement to the police that they used to fetch milk from a dairy near the pusta. Police officials did not ask her about the same. She had not shown that dairy to the police officials during the investigation of this case. She denied that she did not do so because they never used to purchase milk from any dairy and that her nephew Nafis used to sell milk himself. The milk container went missing from the spot after the incident and was not found thereafter. She did not complain about the container having gone missing. She denied that she did not make such complaint because no such container had gone missing. She further deposed that on the day of incident, Irfan was wearing maroon colour shirt and almond colour pant. She admitted that on 26.02.2020, there were riots in North East, Delhi. She deposed that tried to save her son.
No one else was there to save her son. The house, in front of which Irfan was attacked, belonged to a Hindu. She did not know that person's name. There was only one vegetable shop near the spot and it was open at that time. The vegetable vendor had seen the incident. She FIR No. 95/20 PS New Usmanpur 38 of 56 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2025.12.08 17:26:49 +0530 did not tell about the vegetable vendor to the police officials as they did not make enquiry about him. She denied that there was no shop of vegetable in the locality and that it was not open on that day or that the police did not make any inquiries from vegetable seller regarding the incident because he had never seen the incident. Anwar, Rashid and Nafis reached the spot after about 10 minutes of Irfan being attacked. She had no idea about the time. She stated that she could say that these three persons had come to the spot immediately after Irfan was attacked. She was unconscious and therefore, she did not become aware about arrival of these persons. She denied that she never became unconscious on 26.02.2020 at any point of time. She did not talk to Anwar, Rashid and Nafis at that time. She denied that there was no conversation between her and Anwar, Rashid & Nafis and she was not present at the spot. She deposed that she had not mentioned the name of Rahul to the police and denied that at the time of recording of her chief, she improved her statement and willfully gave the name of Rahul as an assailant. She had mentioned the name of Rohit as an assailant in her statement to the police. She was confronted with her statement u/s 161 Cr.P.C wehre name of Rohit was not mentioned. She knew the father's name of Rohit but she was not asked about it by the police. She did not know the full name of the father of accused Pankaj. She knew him only by the name Shukla. Lalla was carrying a hockey stick in his hand. She did not mention the FIR No. 95/20 PS New Usmanpur 39 of 56 Digitally signed by PARVEEN PARVEEN SINGH Date:
SINGH 2025.12.08 17:26:56 +0530 name of any vegetable seller who was having a danda in his hand to the police in her statement. She was confronted with the statement u/s 161 Cr. P.C wherein it was so recorded. There were number of houses belonging to Shuklas in their gali. She did not point the house of Pankaj Shukla and Rohit to the police at any point of time during the investigation. She denied that she had never taken the name of Rohit Shukla in her statement to the police during the investigation. At the time of identifying the accused during her deposition in the court, four accused were present and she identified the accused despite them having worn mask. She denied that that IO was present in the court on that day and he had pointed out the accused to her outside the court and it was on his instance only that she had identified all the accused in the court on that day. Whatever she had stated in her examination before this court was stated by her to the police on 27.02.2020. She denied that her statement was not recorded on 27.02.2020 either in police station or by any investigating agency. She denied that the names of the accused persons were fabricated only to extort the money.
6.19 The testimony of this witness has to be evaluated on following legal propositions, as have been laid down by Hon'ble Supreme Court in State of M.P v. Balveer Singh (supra); Rammi v.
state of M.P (Supra) and Eddakandi Dineshan @ P Dineshan & Ors. (supra):-
FIR No. 95/20PS New Usmanpur 40 of 56 Digitally signed by PARVEEN PARVEEN SINGH Date: SINGH 2025.12.08 17:27:06 +0530
(a) Whether her testimony as a whole appears to have a ring of truth?
(b) Whether her former statements, with which she had been confronted, have the effect of discrediting her testimony on the points of confrontation?
(c) Whether the contradictions in her testimony, as stressed upon by the defence, are of the nature that will discredit her and make her testimony unbelievable, or these are mere variations and embellishments which would come naturally in the testimony of a truthful witness?
(d) Whether it is possible and believable that PW2 could have been present at the scene of crime during the commission of offence? 6.20 The first question needs to be decided is, whether there are serious contradictions in the testimony of PW2, or these are mere variations and embellishments which should be ignored as her overall testimony has a strong ring of truth around it? 6.21 On this account, I find that in her testimony before the court, there have been improvements and departures in the stand of PW2 when compared to her statement u/s 161 Cr.P.C and her statement u/s 164 Cr.P.C.
6.22 While appearing as PW2, she deposed that on 26.02.2020 at around 07.30 p.m, her son Irfan was leaving house to get milk and she decided to accompany him as he was having pain in her knee. However, in her statement u/s 161 Cr.P.C, she did not state the reason FIR No. 95/20 PS New Usmanpur 41 of 56 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2025.12.08 17:27:13 +0530 why she had decided to accompany the deceased and merely stated that she also got ready to accompany him. However, her statement u/s 164 Cr.P.C, on this account, is similar to her testimony before the court where she stated that she decided to accompany him because she was having pain and she had to take medicine. So this far, it can merely be said to be a minor variation which shall not effect the credibility of the testimony of this witness. 6.23 With regard to the actual incident, while appearing as PW2, she deposed that when she reached the crossing of gali no. 4, they saw 10-15 boys standing at that place who raised a cry ' Maro is muslim ko'. Her statement u/s 161 Cr.P.C is also on similar lines that when they reached gali no. 4, 8-10 boys were standing there and the attack had happened after they stated 'maro is muslim ko'. However, if her statement u/s 164 Cr.P.C is seen, she does not state that these assailants were already present and waiting for them or that they had attacked the deceased after raising a cry that being a muslim, he should be killed. On the contrary, in the statement u/s 164 Cr.P.C, with which she was confronted and which she denied making, she stated that suddenly some boys came out of the houses and while stating that they should kill/ beat the drunkard, they attacked her son.
She also stated that she pleaded with the assailants that it was her son and he was not a drunkard.
6.24 Thus, in her statement u/s 164 Cr.P.C, there is a departure FIR No. 95/20 PS New Usmanpur 42 of 56 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date: 2025.12.08 17:27:20 +0530
in the manner in which the assailants had emerged. In two of her statements i.e. statement u/s 161 Cr.P.C and testimony before the court, she had stated that the assailants had already assembled when she and the deceased reached the place where the attack had happened and in her statement u/s 164 Cr.P.C, she stated that they suddenly emerged from the houses and attacked her son. What is noticeable is that, she was confronted with her statement u/s 164 Cr.P.C and instead of putting forward an explanation, she out rightly denied making such statement or appearing before the Magistrate for making this statement. It is also noticeable that in her statement u/s 164 Cr.P.C, she states about her son being attacked because the assailants claimed that he was a drunkard but in her statement u/s 161 Cr.P.C and the testimony before the court, the reason for attack was stated to be of communal hatred.
6.25 Furthermore, in her statement u/s 164 Cr.P.C, apart from other weapons, she talks about the assailants being armed with swords and her son being hit by the sword but in her statement u/s 161 Cr.P.C as well as in her testimony before the court, there is no mentioning of anyone having a sword or using it.
6.26 It is further to be noticed that in her statement u/s 161 Cr.P.C, she identified three of the assailants namely Gabbar son of Hari, Pankaj s/ o Shukla and Lalla s/o Kamla. The fourth assailant in her statement u/s 161 Cr.P.C was a vegetable vendor. However, when FIR No. 95/20 PS New Usmanpur 43 of 56 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2025.12.08 17:27:27 +0530 her statement u/s 164 Cr.P.C was recorded, she omitted the vegetable vendor and stated another name which is of accused Rohit. While testifying before the court also, she did not state about the vegetable vendor but stated, that the assailants were Gabbar, Lalla, Pankaj and Rohit. She was confronted with her statement u/s 161 Cr.P.C but instead of putting forward any explanation, she denied that she had stated about the role of vegetable vendor. On the other hand, IO Insp. Rajiv Kumar admitted that in the statement u/s 161 Cr.P.C of PW2, there was a reference of a vegetable vendor. He continuously tried to search for that vegetable vendor but could not find any such vendor. 6.27 Thus, in her account of assailants, initially PW2 in her statement u/s 161 Cr.P.C stated three names and that one vegetable vendor was also a part of the assailants. This fact was omitted by her in her statement u/s 164 Cr.P.C and during her testimony in the court and rather than giving an explanation that why, in her statement u/s 161 Cr.P.C, she had stated that a vegetable vendor was also amongst the assailants and why she omitted to state about him in her statement u/s 164 Cr.P.C and in her testimony before the court, she flatly denied that she had even stated about any vegetable vendor being an assailant.
6.28 It is also to be noticed that in her initial statement u/s 161 Cr.P.C, she had not named accused Rohit but when she gave a statement u/s 164 Cr.P.C, she stated that one of the boys was Rohit, FIR No. 95/20 PS New Usmanpur 44 of 56 Digitally signed by PARVEEN PARVEEN SINGH Date:
SINGH 2025.12.08 17:27:38 +0530 who was the son of Shukla.
6.29 During her cross examination on this point, she deposed that she had stated the name of Rohit in her statement to the police.
She was confronted with her statement u/s 161 Cr.P.C in which this name was not recorded. Still, she did not put forward any explanation. This ommission of the name of Rohit Shukla in the statement u/s 161 Cr.P.C becomes more important in view of the fact that that she had claimed that she had been residing in that area for around 30-35 years and knew all the assailants. This was despite the fact that the statement u/s 161 Cr.P.C was given two days after the incident when according to her, she had gathered her nerves. Importantly, it was after 24 days when for the first time, she named Rohit Shukla in her statement u/s 164 Cr.P.C. In her statement u/s 164 Cr.P.C, she had stated, that there was one person by the name of Shukla who asked others in the street to close the doors of their houses. She further stated that those, who had beaten her son, were also the sons of Shukla. One of whom was Pankaj s/o Shukla and other was Rohit s/o Shukla. Therefore, when she had first made her statement u/s 161 Cr.P.C, the fourth assailant was named as a vegetable vendor whereas, she could have very well known the name of the fourth assailant, which she later on named in her statement u/s 164 Cr.P.C and reiterated in her testimony before the court. Therefore, an explanation for this omission was expected and should have been given and a mere denial cannot suffice.
FIR No. 95/20PS New Usmanpur 45 of 56
Digitally
signed by
PARVEEN
PARVEEN SINGH
SINGH Date:
2025.12.08
17:27:46
+0530
6.30 There are further contradictions which have emerged in
her testimony with regard to how the events unfolded. 6.31 According to her statement u/s 161 Cr.P.C, when her son was attacked and had fallen down, she ran home to seek help. In her statement u/s 164 Cr.P.C, she stated that she had asked for help whereas, as per cross examination, when her son was attacked, she pleaded with the attackers not to beat her son and soon she fell unconscious. She regained consciousness after about 3-4 minutes and found her son lying at the spot. She noticed his injuries and put her dupatta on his head.
6.32 The facts that she had pleaded with the attackers or she had sought help were completely missing from her initial statement and so was missing the fact that she had fallen unconscious and remained unconscious for about 3-4 minutes. This addition to her original statement becomes a larger contradiction in view of another part of her testimony. At a later part of her cross examination, she stated that she did not know when Nafis and others arrived at the spot because, at that time she was unconscious and was not aware about the arrival of these persons. Hence, on the one hand in her statement u/s 161 Cr.P.C as well as in her examination in chief before the court, she states that she was at a distance from her son and from that distance, she watched her son being attacked, ran towards her house for help and informed about the incident to Nafis whereafter, she, alongwith FIR No. 95/20 PS New Usmanpur 46 of 56 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2025.12.08 17:27:54 +0530 Nafis, Rashid and Anwar reached the place of incident. On the other hand, during her cross examination, she stated that she was close to her son, she pleaded with the attackers not to attack her son, soon she fell unconscious and regained consciousness after about 3-4 minutes and it is then, that she went and brought Nafis and others along. However, if her further cross examination is seen, it was to the effect that she never went to narrate anything to Nafis and did not return to the place of incident with Nafis and others because, at the time of their arrival at the place of incident, she was still lying unconscious beside her son.
6.33 There is also a difference in her stand with regard to the manner in which the attack had unfolded. In her statement u/s 161 Cr.P.C, she stated that accused Gabbar was having a thick TMT bar.
Pankaj was having an iron pipe. Lalla was having hathi ka bat and vegetable vendor was having a danda. Gabbar attacked her son with TMT bar on his head and Pankaj also attacked her son with iron pipe whereafter, her son fell down and when crying out of fear, she turned towards her house, she saw that her son had fallen down and Lalla and vegetable vendor were beating him with dandas. 6.34 When she gave her statement u/s 164 CR.P.C, which had been admitted by the accused as Ex.A-10 and during her testimony was marked as mark A, she had stated that initially her son was hit with a lathi by one of the assailants on his leg whereafter he fell down FIR No. 95/20 PS New Usmanpur 47 of 56 Digitally signed by PARVEEN PARVEEN SINGH Date: SINGH 2025.12.08 17:28:01 +0530 and thereafter, one of them hit him with a rod and another person hit him with sword on his head. Some were having rods and some were having swords and all of them repeatedly hit her son on his head. 6.35 While appearing as PW2, she deposed that first of all Gabbar hit her son on his head with iron pipe, thereafter Pankaj also hit her son with pipe but she did not recollect on which part of Irfan's body and thereafter, Lalla and Rohit also hit Irfan and upon receiving the hits, her son had fallen on the ground. It is thereafter that she ran towards her house.
6.36 Thus, in her statement u/s 161 Cr.P.C, she states that after being hit by Pankaj and Gabbar, her son had fallen down and she ran towards her house and while turning back, she saw that Lalla and vegetable vendor were beating her son. However, in her statement u/s 164 Cr.P.C, she does not provide these details as to who had hit her son first or who had hit her son second and in that statement, her son had fallen because first he was hit on his leg. She also stated in this statement about the sword and its use in the attack. 6.37 These departures and improvements in her testimony, if read in isolation, would seem minor variations and embellishments which can come naturally in the testimony of a witness. However, if seen in totality, these departures and improvements become contradictions which can shake the credibility of this witness. It is correct that there could a difference or a variation between the FIR No. 95/20 Digitally signed by PS New Usmanpur 48 of 56 PARVEEN PARVEEN SINGH SINGH Date:
2025.12.08 17:28:10 +0530 sequence of events as narrated by a witness as the witness is not expected to accurately recall the sequence or the act of each individual accused especially when there are more one accused. In the circumstances of this case, it could also have been possible that PW2, being the mother of the deceased, on seeing her son would have been so overwhelmed and scared that she might not have been able to absorb the details of the attack with complete accuracy or it is possible that during her cross examination, she could have been overawed by the court atmosphere and in nervousness, she might have mixed up the facts.
6.38 I have considered all these possibilities and I am of the opinion that her testimony before the court is not a case of somebody mixing up the facts due to the overawing court atmosphere or nervousness. I say so because when she was confronted with her statement u/s 164 Cr.P.C, she denied making any such statement. Not only she denied making such statement, she denied even appearing before a magistrate for recording of her statement or a magistrate recording her statement. The fact that she was produced before a magistrate is a matter of judicial record and I cannot accept that it would have slipped of her mind that she had appeared before a magistrate and given a statement. Therefore, if she had stated that she did not remember the contents of the statement but had admitted appearing before magistrate for giving such statement, it could have FIR No. 95/20 Digitally signed PS New Usmanpur 49 of 56 by PARVEEN PARVEEN SINGH Date:
SINGH 2025.12.08 17:28:18 +0530 been accepted as a lapse of memory but her denial of even appearing and giving a statement to the magistrate, to my mind, is a lie because it is not everyday that a person is produced before a magistrate for recording his/ her statement u/s 164 Cr.P.C and such one in a lifetime experience would always remain etched in memory. Thus, it cannot be said that she was nervous or was overawed by the court atmosphere because she had the strength or if I can say so, the audacity to lie about an undisputed fact. At the same time, as noticed above, she has chosen to testify on the lines of statement u/s 161 Cr.P.C as well as 164 Cr.P.C but wherever she made a departure or a statement contradictory to these two statements, she out rightly denied making these statements. What is noticeable is that apart from her statement u/s 164 Cr.P.C, the police did not have any other evidence to proceed against Rohit Shukla and thus, the entire case against accused Rohit Shukla, as detailed in the charge sheet, was based on her statement u/s 164 Cr.P.C and a later statement of identifying him. Had it not for this statement u/s 164 Cr.P.C, accused Rohit Shukla would not even have been investigated or charge sheeted. However, this witness denied making this statement u/s 164 Cr.P.C in its entirety but followed that statement in her testimony to the extent that Rohit Shukla was also one of the assailants. Thus, apparently, the witness chose to follow the previous statements given by her either u/s 161 Cr.P.C or u/s 164 Cr.P.C where it suited her narration of the events and declined stating FIR No. 95/20 PS New Usmanpur 50 of 56 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2025.12.08 17:28:27 +0530 certain portions of statement u/s 161 Cr.P.C and the entire statement u/s 164 Cr.P.C where it did not suit her narration of events. 6.39 In totality, when these differences and departures are looked into, it appears that the witness had changed the reason for accompanying her son on 26.02.2020, she had changed the manner in which the attackers came, she changed the manner in which the attack had happened and the weapons that were used especially the introduction of sword. She had added the fact that she had fallen unconscious and then she went on to state that she did not know when Nafis and others arrived because at the time of their arrival, she was unconscious. Thus, it would mean that she never went to call Nafis and others. So in totality these contradictions seriously raise doubts about PW2, being an eye witness.
6.40 What is more probable is, that she might have arrived immediately after the incident, a fact which could be corroborated by the testimony of PW5 Pramod Kumar, who during his cross examination, stated that he had seen the mother of Irfan amongst the persons who had lifted Irfan from that place and she had arrived at that place within 2-4 minutes of PCR call being made by him. 6.41 As far as the question, that whether PW2 could have been present at the scene of crime during the commission of offence, is concerned; on the face of it as the place of incident was merely 25-30 meters from her house, she could have been present at that place.FIR No. 95/20
PS New Usmanpur 51 of 56 Digitally signed by PARVEEN PARVEEN SINGH Date: SINGH 2025.12.08 17:28:33 +0530 6.42 However, the court cannot lose sight of the fact that the
entire area, including her house and the scene of crime, had been engulfed by heavy rioting for about 02 days prior to the date of incident as well as on the date of incident. Therefore, it has to be either shown that unaware of the riots, she and the deceased had ventured out of the house, or that there were compelling reasons for her and deceased to leave the house in such a dangerous situation. 6.43 During her cross examination, as has been reproduced above, she deposed that she had heard on 26.02.2020 i.e. on the day of incident, that riots were happening around her house and then, she went on to state that on that day, after leaving her house alongwith her son, she came to know about the riots. However, in a later part of her cross examination, she admitted that on 26.02.2020, there were riots in North East Delhi. Hence, it stands established from her own testimony that she was aware about the riots going on around her house and that being the case, she had to show the circumstances under which she and the deceased had to leave their house. 6.44 The reason has been stated by her is, that the deceased was going to fetch milk from a dairy at 4th Pushta and she decided to accompany him as she wanted to get some medicine for her knee pain. 6.45 First of all, on the face of it, when the entire North East Delhi was burning under riots, it would be unlikely that somebody would want to leave the house for taking milk and it would even be FIR No. 95/20 PS New Usmanpur 52 of 56 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2025.12.08 17:28:40 +0530 more unlikely that he or she would expect that the dairy selling the milk would be found open.
6.46 The reason for the deceased leaving the house is also the reason that PW2 could have accompanied him. 6.47 However, this reason does not inspire confidence for two simple reasons. One is, that PW4 Nafees, who is the nephew of PW2 and as per whose testimony, he was residing in the same house, was engaged in the business of milk. Furthermore, PW2, in her cross examination also deposed that when she reached home for informing Nafees and others, Nafees was at home and was milking cows/ buffaloes and he ran his own dairy.
6.48 What is further noticeable is, that her own second son i.e. PW1 Furkan, who resided in the same house in which she and deceased resided (J-308), was also engaged in the business of selling milk.
6.49 Hence, firstly it is improbable that when the real brother of deceased and his cousin were engaged in the business of milk, the deceased would go out of house for buying milk from some other dairy.
6.50 For the sake of arguments, even if it is admitted that he had been buying milk from somebody outside the family, it would be improbable that in the circumstances that were existing on 26.02.2020 i.e. that there were marauding hordes of rioters on the streets, the FIR No. 95/20 PS New Usmanpur 53 of 56 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2025.12.08 17:28:47 +0530 deceased and PW2 would venture out to buy milk taking such a great risk when milk was available in their own house. Hence, the explanation of PW2 for venturing out of her house on 26.02.2020 is not believable and thus, it will be hard to believe that on that day, deceased had left the house to buy milk and resultantly, it also becomes unbelievable that as the deceased was going out to buy milk, PW2 decided to accompany him for buying medicine for knee pain. 6.51 Thus, what emerges from the aforesaid discussion is, that there are serious improvements and contradictions in the testimony of PW2 which she deliberately chose not to explain and there is a very little probability of her being present at the scene of crime and during the crime. Therefore, in my considered opinion, it will highly unsafe to rely upon her sole testimony to arrive at a finding of guilt against the accused with regard to them forming an unlawful assembly, attacking the deceased as a common object of that unlawful assembly and causing his death.
6.52 Coming on to the offences u/s 143/147/148 r/w section 149 IP Cand section 188 IPC, I find that the only evidence that these accused had formed an unlawful assembly was the evidence of PW2 which has not been found by the court to be believable. Even otherwise, with regard to section 188 IPC, the accused had admitted the issuance of order u/s 144 Cr.P.C. However, this admission could only have the effect that the accused admitted that such an order was FIR No. 95/20 PS New Usmanpur 54 of 56 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2025.12.08 17:28:54 +0530 passed. However, it still did not absolve the prosecution of the duty that the order u/s 144 Cr.P.C was widely announced, as is the mandate of law. No evidence of such announcement had been brought on record.
6.53 Coming onto the offence u/s 201 IPC. Evidently, there is nothing on record either in the form of documents or in the form of testimony of witnesses which could show that there is any evidence which these accused had tried to destroy. 6.54 Then there is charge u/s 174-A IPC against accused Pankaj Shukla. It was alleged that despite the publication of proclamation sub section 1 of section 82 Cr.P.C., this accused failed to comply with it and was declared a proclaimed offender vide order of the court dated 10.09.2020. The fact that proclamation was published in the manner required u/s 82 Cr.P.C was required to be proved during the trial and it is only thereafter, the question whether the accused complied with the said proclamation or not would have arisen. However, for the reasons best known to the prosecution, the prosecution did not examine any witness which could have proved the proper publication of this proclamation as required u/s 82 Cr.P.C.
Hence, during the trial, no evidence has been brought on record to prove the commission of this offence by accused Pankaj Shukla. 6.55 In view of my aforesaid discussions, I find that the prosecution has failed to prove the charges against the accused beyond FIR No. 95/20 PS New Usmanpur 55 of 56 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2025.12.08 17:29:01 +0530 all reasonable doubts and the accused are entitled to benefit of doubt. All the accused are accordingly acquitted for the offences u/s 143/147/148 r/w section 149 IPC; section 188 IPC; section 201 IPC and section 302 IPC r/w section 149 IPC. Accused Pankaj Shukla is also acquitted for offence u/s 174-A IPC. The bail bonds of the accused are cancelled. Their sureties stand discharged. File be consigned to record room. Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2025.12.08 17:29:14 +0530 Pronounced in open court (Parveen Singh) on 08.12.2025. ASJ-03, North East Distt., (This judgment contains 56 pages Karkardooma Court, Delhi.
and each page bears my signatures)
FIR No. 95/20
PS New Usmanpur 56 of 56