Delhi District Court
State vs 1 Raja 2 Dharmender @ Sultan 3 Dinesh ... on 31 May, 2025
IN THE COURT OF SH. VIRENDER KUMAR KHARTA,
ADDITIONAL SESSIONS JUDGE (FTC)-02, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
In the matter of:-
(Sessions case no. 28140/2016)
FIR No. 272/2015
Police Station Nabi Karim
Charge-sheet filed under Sections Sec. 302/34 IPC.
Charges framed against accused Sec. 302/34 IPC.
persons.
State Versus 1. Raja,
S/o Sh. Moti Lal,
R/o MSC-250, Mohalla
Yogmaya, Bagichi Allauddin,
Nabi Karim, Delhi.
2. Dinesh @ Sunny @ Suresh,
S/o Sh. Lekhraj,
R/o H. No. 6096, Gali No. 15,
Gali Ravidas, Nabi Karim,
Delhi.
3. Ricky @ Budhram,
S/o Sh. Chiranji Lal,
R/o H. No. BB-375, Ashoka
Basti, Neemwala Chowk,
Nabi Karim, Delhi.
...Accused Persons.
Date of Institution of case 08.09.2015
Date of Arguments 26.05.2025
Judgment reserved on 26.05.2025
Judgment pronounced on 31.05.2025
Decision Acquitted
FIR No. 272/2015, PS: Nabi Karim, Page No. 1 of 65
State Vs. Raja & Ors.
JUDGMENT
1. Accused persons namely Raja, Dinesh @ Sunny @ Suresh and Ricky @ Budhram are facing trial for the offence punishable under Sec. 302/34 IPC.
2. Today in the morning, the factum of death of accused Dharmender @ Sultan was reported by the Ld. Counsel and same was verified through SHO PS Nabi Karim and accordingly, proceedings against accused Dharmender @ Sultan were abated vide separate order of even date before the pronouncement of this judgment.
3. The case of the prosecution is that on 23.05.2015 at about 06:00 pm in the street opposite to premises no. 5997/2, Shankar Market, Nabi Karim, Delhi, all the aforesaid accused persons along with co-accused Dharmender @ Sultan (since deceased) in furtherance of their common intention committed murder of Sh. Sheeshpal by stabbing him with knives.
4. The brief facts which are borne out from the record of the case are that on 23.05.2015, on receiving DD No. 29A, Ex. PX-5, regarding stabbing a person at Shankar Market, Nabi Karim, Delhi, PW-15/IO Retd. SI Virender Kumar (then ASI) along with PW-14 Ct. Pushpender reached at the spot of incident i.e. Gali Opposite to premises no. 5997/2, Shankar Market, where PW-6 Ct. Dinesh met them who informed him that he had seen assailants running from the spot and the injured had been shifted to hospital by Ct. Vijay Kumar. Blood was also found scattered at FIR No. 272/2015, PS: Nabi Karim, Page No. 2 of 65 State Vs. Raja & Ors.
the spot of incident. Thereafter, PW-15/IO Retd. SI Virender Kumar directed PW-6 Ct. Dinesh to trace accused immediately by following the path taken by assailants and PW-14 Ct. Pushpender was left at the spot to safeguard the same. Thereafter, PW-15/IO Retd. SI Virender Kumar went to the Lady Harding Medical College and collected the MLC, Ex. PW-9/A of injured and as per MLC, injured was declared brought dead. Later on name of deceased was revealed as Sheeshpal, S/o Sh. Gulzari Lal. Thereafter IO recorded statement of complainant/PW-2 Ct. Vijay, prepared rukka, Ex. PW-15/A and got the present FIR registered at PS Nabi Karim through PW-2 Ct. Vijay. IO also collected the clothes and belongings of the deceased sealed with the seal of LHMCH and returned to scene of crime after preserving the dead body of deceased in mortuary. Thereafter further investigation of the present case was entrusted to PW-18 ACP Dhirendra Sharma (then Inspector). During investigation, IO got inspected the spot of incident through Crime Team, lifted the exhibits from spot of incident and prepared site plan at instance of Ct. Vijay. Thereafter IO went to the hospital and got conducted postmortem on the body of deceased, recorded dead body identification statements of witnesses and handed over the dead body to relative of deceased. IO also seized the exhibits of deceased along with sample seal from the hospital.
5. During investigation, accused Raja was apprehended from the Railway Washing yard, New Delhi on the basis of secret information and thereafter IO arrested him in the present case, FIR No. 272/2015, PS: Nabi Karim, Page No. 3 of 65 State Vs. Raja & Ors.
conducted his personal search and recorded his disclosure statement in which he confessed his involvement in murder of deceased Sheeshpal along with his friends namely Dharmender @ Sultan, Dinesh @ Sunny and Ricky @ Budhram. On 24.05.2015, information was received through DD No. 20B, Ex. PW-18/A regarding arrest of accused persons namely Dharmender @ Sultan and Dinesh @ Sunny by Special Staff, South-East District and thereafter IO moved application for production warrants of accused persons and on 25.05.2015, accused Dinesh and Dharmender were formally arrested in the present case by the IO while they were produced before Ld. Concerned court. IO also conducted their personal search and recorded their disclosure statements. During investigation, accused Ricky @ Budh Ram was also apprehended by the IO at instance of accused Dharmender and thereafter IO arrest him in the present case, conducted his personal search and recorded his disclosure statement. During investigation, IO also got conducted the TIP of accused Dharmender @ Sultan and Raja, obtained subsequent opinion regarding weapon of offence and collected postmortem report. During investigation, IO also seized the blood stained uniform of Ct. Vijay, collected copies of relevant DD entries, got prepared scaled site plan, collected PCR form, collected relevant CDRs and sent the exhibits to FSL Rohini. On completion of investigation, charge-sheet was filed by the IO before the Court through the SHO. After obtaining FSL result, same was also filed before the court.
FIR No. 272/2015, PS: Nabi Karim, Page No. 4 of 65 State Vs. Raja & Ors.
6. Vide order dated 24.08.2015 copy of the charge-sheet was supplied to accused persons under Section 207 Cr.P.C was and v i d e order dated 02.09.2015 the case was committed to the Court of Sessions under Sec. 209 Cr.P.C.
7. Vide order dated 02.12.2015, the Ld. Predecessor Court was pleased to frame charges under Sec 302/34 IPC against all the three accused persons as well as co-accused Dharmender @ Sultan (since deceased) to which they pleaded not guilty and claimed trial.
8. To prove its case, prosecution has examined 20 witnesses. The testimonies of presecution witnesses along with its nature has been discussed briefly in the following paragraphs.
9. PW-1 Ms. Jyoti @ Prerna, was the wife of deceased. She deposed that 2-3 days prior to 22.05.2015, a quarrel had taken place between his husband Sheeshpal and his friend Dharmender. She further deposed that on 22.05.2015, phone call of Raja was received on the mobile phone of her husband Sheeshpal and Raja was calling her husband but he refused as he was busy in Puja of the shop. She further deposed that on 22.05.2015 in the evening hours, her husband told her that quarrel took place between him and Dharmender and he had apprehension of his life with Manohar, uncle (chacha) of Dharmender. She also deposed that on 23.05.2015 at about 11:00 am, phone call of Raja came on the mobile of her husband and on attending the call of Raja, her husband left the house. She also deposed that she did not know what happened after that. She also deposed that on the same day, FIR No. 272/2015, PS: Nabi Karim, Page No. 5 of 65 State Vs. Raja & Ors.
in the night hours, she received phone call of police officials and they informed her about the death of her husband. She also deposed that before leaving the house upon receiving phone call from Raja, her husband told her that he was going to meet him. She also deposed that Manohar Chacha of Dharmender used to run the gang of pick-pocketers. In her cross-examination, she deposed that her husband was involved in 2-3 criminal case. She also deposed that she could not deny that even her husband was a pick-pocketer and was working for the gang of the accused persons. She also deposed that no complaint was made by her or by her husband against the danger to the life of her husband from Dharmender. She admitted that her husband Sheeshpal and Manohar were together working but it was 2-3 years before the incident. She denied the suggestion that all the accused persons had been falsely implicated in this case.
10. PW-2 Ct. Vijay Kumar, was complainant in the present case. He deposed that on 23.05.2015 at about 05:52 pm, one call regarding quarrel was received by ASI Hari Kishan and he along with him reached Multani Dhanda. He further deposed that thereafter he proceeded to Satya Narain Gali where one unknown person informed him that a quarrel was taking place at some distance. He further deposed that he reached in front of H. No. 5999 and on seeing him, 3-4 boys ran away and he was knowing one of them namely Sunny @ Suresh being the known criminal in the area. He further deposed that he ran behind the said boys but could not apprehend them due to the large crowd in the street.
FIR No. 272/2015, PS: Nabi Karim, Page No. 6 of 65 State Vs. Raja & Ors.
He also deposed that when he returned and reached in front of H. No. 5999, he found that one person was lying in injured condition outside the shutter of the said premises and he was profusely bleeding on his left thigh. He also deposed that he brought one TSR and made him lie down on the back seat and removed him to LHMC Hospital. He also deposed that on the way, the injured told him that injury on his persons was caused by Dharmender, Sunny and his associates and thereafter he became unconscious. He also deposed that he was declared brought dead by the doctor in LHMC Hospital. He further deposed that SHO along with other staff and ASI Virender reached the hospital and ASI Virender recorded his statement, Ex. PW-2/A, prepared rukka and handed over the same to him for registration of FIR. He narrated about the proceedings conducted by the IO at the spot of incident, viz. preparation of site plan, Ex. PW-2/B at his instance, seizure of exhibits from the spot of incident vide seizure memo Ex. PW-2/C, recording of statement of wife of deceased and seizure of his blood stained uniform vide seizure memo Ex. PW-2/D. He also narrated about TIP proceedings of accused persons namely Raja and Dharmender in which he correctly identified accused Raja while he could not identify accused Dharmender. He also narrated about identification of accused Dharmender in the lock of PS. This witness correctly identified all the four accused persons as well as case properties during his deposition in the court. In his cross- examination, he deposed that there was crowd when he reached at the place where injured was lying but he could not tell the FIR No. 272/2015, PS: Nabi Karim, Page No. 7 of 65 State Vs. Raja & Ors.
number of the persons gathered there. He also deposed that while he was taking the injured in the auto, he was alone with him and his wearing uniform also sustained blood stains. He denied the suggestion that injured was unconscious while he was shifting him from the spot to the hospital. He also denied the suggestion that injured did not name the accused persons namely Dharmender, Sunny and his associates. He also deposed that he had seen those boys from the distance of three meters and at that time he was present at shop no. 5999. He also deposed that he did not know if the mobile phone of the injured was in his pocket while he was shifting him to the hospital. He denied the suggestion that he identified accused Raja in the TIP proceedings as he had already seen him in the hospital on 23.05.2015. He denied the suggestion that there was CCTV cameras in the said market including at shop no. 5999 or that he was not disclosing the said facts deliberately. He also denied the suggestion that all the accused persons had been falsely implicated in this case.
11. PW-3 Ct. Deepak, was the Photographer at Mobile Crime Team. He proved the photographs (14 nos.), Ex. PW-3/A-1 to Ex. PW-3/A-14 of the the spot of incident from different angles. Negatives of aforesaid photographs could not be found in the judicial file as the envelope on which 14 negatives were mentioned was empty. In his cross-examination, he deposed that he took the photographs, Ex. PW-3/A-1 to Ex. PW-3/A-14 with Camera and it took around 45 minutes in completing the proceedings.
FIR No. 272/2015, PS: Nabi Karim, Page No. 8 of 65 State Vs. Raja & Ors.
12. PW-4 Sh. Priyanshu Kanagwal, was the brother-in-law of deceased. He deposed that on 23.05.2015 at about 07:00 pm, he came to know that his Jija had met with an accident, while he was present at his showroom. He further deposed that he went to the house of his sister and took her to Lady Harding Hospital where his Jija was got admitted by the police. He further deposed that on the way his sister Jyoti told him that 8-10 days back a quarrel had taken place between deceased Sheeshpal and his friend namely Raja. He further deposed that his sister had told him that on 23.05.2015 in the morning at about 11:00 am, his Jija Sheeshpal had gone to meet Raja upon receiving his phone call. He correctly identified accused Raja and Dharmender in the court during his deposition. This witness was cross-examined by Ld. Addl. PP for the State in which he was confronted with his statement recorded under Sec. 161 Cr.PC, Ex. PW-4/A on various points. He denied the suggestion that he had been won over by the accused persons and in order to save the accused persons from punishment, he was deposing falsely. In his cross- examination on behalf of accused persons, he deposed that he did not know if his Jija was involved in criminal case. He denied the suggestion that his Jija was a pick-pocketer. He also deposed that her sister never told him of any quarrel between accused Raja and his brother-in-law Sheeshpal. He denied the suggestion that his sister never told him regarding any phone call received by his Jija from accused Raja.
13. PW-5 Sh. Ajay, deposed that on 23.05.2015 at about FIR No. 272/2015, PS: Nabi Karim, Page No. 9 of 65 State Vs. Raja & Ors.
01:00-01:30 pm, Raja, Sheeshpal and Vicky met him at Nabi Karim near a park and thereafter they all went to Gandhi Nagar where they roamed and thereafter they went to Sadar Bazar. He further deposed that at about 05:30 pm, they reached at Main Market Singhara Chowk and he asked Vicky and Sheeshpal to take a particular street but they refused to accompany him in the said street and they proceeded to other street situated in their left side. He further deposed that when he reached near his house, accused Raja met him and they were talking to each other while sitting near his house. He further deposed that Vicky came there after about 5-7 minutes and told them that Sheesh Pal had been caught by some persons and they were quarreling with Sheeshpal. He further deposed that Raja made a telephone call to Sheeshpal with his mobile which was attended by some other person, who told that there had been some accident with Sheeshpal and they were taking him to hospital. He further deposed that Raja had made the said telephone call using his mobile phone as his mobile phone was not having sufficient balance. He also deposed that after some time police made telephone call on his mobile and asked about telephone call and he narrated the incident to the police and police told him that Sheeshpal had been murdered by using knife. He also deposed that he had identified the dead body of Sheeshpal in the hospital. This witness was cross-examined by Ld. Addl. PP for the State but nothing incriminating could be brought on record. This witness was confronted with his statement recorded under Sec. 161 Cr.PC, Ex. PW-5/A on various points. In cross-examination FIR No. 272/2015, PS: Nabi Karim, Page No. 10 of 65 State Vs. Raja & Ors.
on behalf of accused persons, he deposed that they remained at the hospital for about one/one and half hours. He also deposed that he did not know if constable Vijay Kumar was present in the hospital.
14. PW-6 Ct. Dinesh, deposed that on 23.05.2015, he was on patrolling duty in civil clothes and at about 06:00 pm, during patrolling, he reached at Satya Narain Gali, Shankar Market, some unknown persons told him that a quarrel was taking place at some distance. He further deposed that he went forward and reached in front of Shop No. 5999, Shankar Gali, Nabi Karim where he saw that four persons were running and two of them were having knives in their hands. He also deposed that he knew all four of them being the known criminals of the area and their names were Raja, Dharmender, Sunny and Ricky. He also deposed that accused Dharmender and Sunny were having knives in their hands and their clothes were also having blood stains. He further deposed that he chased the said accused persons but they managed to run away. He also deposed that he returned back at the spot and came to know from the public persons that injured had already been removed to hospital by some constable of PS Nabi Karim. In his cross-examination, he deposed that he had seen the faces of the accused persons when they started running. He also deposed that the injured was present at the place of quarrel when he reached there. He admitted that he had not mentioned the physical description of accused persons in his statement. He also deposed that he had run behind the accused FIR No. 272/2015, PS: Nabi Karim, Page No. 11 of 65 State Vs. Raja & Ors.
persons for 50-60 meters. He denied the suggestion that he was deposing falsely at the instance of IO. He also denied the suggestion that he was not present at the spot at any point of time on 23.05.2015.
15. PW-7 Sh. Rajesh Kumar, deposed that he was running a Ladies purse shop at shop bearing no. 5999, Shankar Market, Nabi Karim. He further deposed that on 23.05.2015 at about 06:00 pm, he heard a noise outside his shop and he opened the gate of shop and saw that one person had fallen outside after striking with the gate. He further deposed that said person was in injured condition and was bleeding. He also deposed that he called the police at no. 100 and later on he came to know the name of injured as Sheeshpal. In his cross-examination, he deposed that he had made call at number 100 to the police from his landline phone no. 65544267. He denied the suggestion that he had not made any call at no. 100.
16. PW-8 Sh. Vicky, deposed that on 23.05.2015 at about 01:00 pm, Ajay, Sheeshpal, Raja and some other boys whose name he did not know had met him at Nabi Karim. He further deposed that they went to Gandhi Nagar and thereafter, they went to Sadar Bazar. He also deposed that when they reached in the gali of Sadar Bazar, he, Ajay and Sheeshpal separated from other boys and when they were in the gali, Sheeshpal went in the left direction whereas he and Ajay proceeded to the right direction of the street. He further deposed that he went to his house and at about 11:00 pm, two police officials came to his house and took FIR No. 272/2015, PS: Nabi Karim, Page No. 12 of 65 State Vs. Raja & Ors.
him to PS. He also deposed that they made inquiry in the PS and he had told the police that he was not aware of any incident. He further deposed that he was sent to his home at about 04:00 am and on next day at 11:00 am, he was again called at the PS and again inquiry was made from him. This witness was cross- examined by Ld. Addl. PP for State in which this witness turned hostile and confronted with his statement recorded under Sec. 161 Cr.PC, Ex. PW-8/A but nothing incriminating could be brought on record against accused persons. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
17. PW-9 Dr. Mukhtar Naved, Senior Resident, has proved the MLC of deceased Sheeshpal, Ex. PW-9/A on behalf of Dr. Dhruba Jyoti. He also deposed that as per MLC, said victim/deceased was brought as 'dead' by the police. He also proved CR No. 38058, Ex. PW-9/B, prepared by Dr. Dhruba Jyoti. In his cross-examination, he deposed that he had no personal knowledge about the injuries on the deceased. He admitted that as per record, the police official did not disclose the name of deceased at the time of preparation of MLC.
18. PW-10 Dr. Kuldeep Panchal, Assistant Professor, Department of Forensic Medicines, has proved his detailed postmortem report of deceased as Ex. PW-10/A. He also opined the cause of death was 'haemorrhagic shock consequent upon stab injury over the thigh caused by sharp pointed weapon'. He also deposed that all injuries (1 to 4) were ante-mortem in nature, FIR No. 272/2015, PS: Nabi Karim, Page No. 13 of 65 State Vs. Raja & Ors.
fresh in duration, homicidal in manner and injury no. 2 was sufficient to cause death in ordinary course of nature. He also proved application, Ex. PW-10/B moved by IO for providing subsequent opinion regarding weapon of offence and his subsequent opinion regarding weapon of offence as Ex. PW-10/C. In his cross-examination, he deposed that he had mentioned the name of deceased Sheeshpal on the basis of papers submitted by the police. He also deposed that injury no. 4 mentioned in the postmortem report could be caused by the weapon found in Parcel-C. He denied the suggestion that injuries mentioned in the postmortem report could be caused by the weapon found in parcel A, B & C.
19. PW-11 SI Sandeep Godara, deposed that on 24.05.2015 he was posted as Sub-Inspector at Special Staff, South-East District, Madangir, Delhi and on that day he received a secret information that accused persons namely Dharmender @ Sultan (since deceased) and Dinesh @ Sunny who were wanted in murder case of PS Nabi Karim would come in the area of Dakshinpuri and they were planning to leave Delhi and if raid is conducted, they could be apprehended. He further deposed that on direction of Senior officers, he constituted a raiding party and they went to Peepal Chowk, Dakshinpuri where they apprehended accused persons namely Dharmender @ Sultan (since deceased) and Dinesh @ Sunnuy and on their personal search three knives were recovered from them. He proved sketches of knives and their seizure memos as Ex. PW-11/A to Ex. PW-11/E. He also proved FIR No. 272/2015, PS: Nabi Karim, Page No. 14 of 65 State Vs. Raja & Ors.
arrest memos, personal search memos and disclosure statements of accused persons namely Dharmender @ Sultan (since deceased) and Dinesh as Ex. PW-11/F to PW-11/L. He also proved the seizure memo of clothes of accused persons namely Dharmender @ Sultan (since deceased) and Dinesh as Ex. PW-11/M. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
20. PW-12 Ct. Arvind, deposed that on 23.05.2015, he delivered the copy of FIR to Ld. MM, ACP, DCP Central, and ACP Paharganj. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
21. PW-13 Ct. Anand Kumar, deposed that on 24.05.2015 he joined the investigation in the present case along with Inspector Virender Nath and SI Munish Kumar and went to Lady Harding Mortuary where IO prepared the documents of postmortem, got identified the dead body of deceased through his wife Jyoti and other relatives and after postmortem, dead body was handed over to Jyoti @ Prerna, wife of deceased vide memo Ex. PW-13/A. He also narrated about apprehension of accused Raja on the basis of secret information by IO from Railway Washing Ward, New Delhi and proved his arrest memo, personal search and disclosure statement as Ex. PW-13/B, Ex. PW-13/C & Ex. PW-13/C-1. He further deposed that on 25.05.2015, he again joined the investigation in the present case along with IO and he went to Tis Hazari Court where IO interrogated accused Dharmender @ Sultan (since deceased) and Dinesh with permission of Ld. Court FIR No. 272/2015, PS: Nabi Karim, Page No. 15 of 65 State Vs. Raja & Ors.
and arrested them in the present case. He proved arrest memos and disclosure statements of accused Dharmender @ Sultan and Dinesh as Ex. PW-13/D, Ex. PW-13/E, Ex. PW-13/F & Ex. PW-13/F-1. He further deposed that on 30.05.2015, he again joined the investigation in the present case along with IO. He narrated about apprehension of accused Budh Ram @ Ricky at instance of accused Dharmender @ Sultan from Sainik Vishram Ghar, Railway Yard, Delhi. He also proved his arrest memo, personal search memo and disclosure statement as Ex. PW-13/G, Ex. PW-13/G-1 & Ex. PW-13/G-2. In his cross-examination, he denied the suggestion that accused persons had been falsely implicated in the present matter since they were involved in criminal cases. He also denied the suggestion that accused Raja was friend of deceased or that he used to remain in contact with deceased telephonically or that accused Ricky had been falsely implicated being BC of the area or that they were not arrested in the manner stated above.
22. PW-14 Ct. Pushpender, deposed that on 23.05.2015, on receiving DD No. 29A by ASI Virender, he along with ASI Virender reached Shankar Market, where Ct. Dinesh met them who informed him that he had seen assailants running from the spot and injured had been shifted to hospital by Ct. Vijay Kumar. He further deposed that ASI Virender left him at the spot and directed Ct. Dinesh to trace accused persons. He further deposed that after some time, Inspector Dhirender Nath Sharma, SHO came at the spot and got inspected the spot of incident through FIR No. 272/2015, PS: Nabi Karim, Page No. 16 of 65 State Vs. Raja & Ors.
Mobile Crime Team. He further deposed that Ct. Vijay came to the spot with copy of FIR, original rukka and handed over the same to SHO. He narrated about the proceedings conducted by the IO at the spot of incident viz. preparation of site plan at instance of Ct. Vijay, seizure of blood in gauze, seizure of one pair blood stained hawai chappal, seizure of blood stained earth control, seizure of earth control without blood stain and seizure of blood stained left leg shoe of black colour. He also proved their seizure memo as Ex. PW-2/C. He also proved the seizure memo of blood stained uniform of Ct. Vijay as Ex. PW-2/D. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
23. PW-14 HC Dhiraj Singh, has been examined as PW-14 though PW-14 Ct. Pushpender had already been examined as PW-14. For the sake of clarity, let PW-14 HC Dhiraj Singh be read as PW-14A. He deposed that on 24.07.2015, on direction of SHO, he had collected 14 pullanda duly sealed with the seal of SHO and deposited the same at FSL, Rohini. He also deposed that he came to PS Nabi Karim and handed over the receipt regarding deposition of pullanda to FSL, Rohini. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
24. PW-15 Retd. SI Virender Kumar deposed that on 23.05.2015, on receiving DD No. 29A, Ex. PX-5, regarding stabbing at Shankar Market, Nabi Karim, Delhi, he along with Ct. Pushpender reached at the spot of incident i.e. Gali Opposite FIR No. 272/2015, PS: Nabi Karim, Page No. 17 of 65 State Vs. Raja & Ors.
to premises no. 5997/2, Shankar Market, where Ct. Dinesh met them who informed him that he had seen assailants running from the spot and injured had been shifted to hospital by Ct. Vijay Kumar. He further deposed that blood was also found scattered at the spot of incident. He also deposed that he directed Ct. Dinesh to trace accused immediately by following the path taken by assailants and Ct. Pushpender was left at the spot to safeguard the same. He further deposed that he went to the Lady Harding Medical College and collected the MLC, Ex. PW-9/A of injured and as per MLC, injured was declared brought dead. He also deposed that later on name of deceased was revealed as Sheeshpal, S/o Sh. Gulzari Lal. He further deposed that in the meanwhile, SHO PS Nabi Karim also reached in the hospital who inspected the dead body of deceased and found deep wounds on the left thigh of deceased. He further deposed that he recorded statement of PW-2 Ct. Vijay, Ex. PW-2/A, prepared rukka, Ex. PW-15/A and got the present FIR registered at PS Nabi Karim through Ct. Vijay. He also deposed that he got preserved the dead body of deceased vide application, Ex. PW-15/B and collected the clothes and belongings of the deceased sealed with the seal of LHMCH and returned to scene of crime and handed over the same to IO which was seized by IO vide seizure memo, Ex. PW-15/C. He narrated about proceedings conducted by the IO at the spot of incident viz. seizure of exhibits vide seizure memo Ex. PW-2/C. He also narrated about seizure of blood stained uniform of Ct. Vijay vide seizure memo, Ex. PW-2/D. In his cross-examination, he deposed that they FIR No. 272/2015, PS: Nabi Karim, Page No. 18 of 65 State Vs. Raja & Ors.
reached at the spot of incident within 5-7 minutes of receiving call and there were many public persons were found gathered at the spot, apart from Ct. Dinesh. He also deposed that MLC had been prepared by the time he reached in the hospital. He also deposed that trouser of deceased was already removed when he reached in the hospital and hence he noticed deep wounds on his thigh. He denied the suggestion that he had not received any information regarding stabbing or that he had not visited the spot or that he had not gone to the hospital or that no item/exhibits were lifted from the spot or that Ct. Vijay had not handed over his uniform to IO.
25. PW-16 Sh. Pawan Singh, Nodal Officer, Vodafone Idea Ltd., has proved CAF, voter id card of subscriber, CDR of the period from 20.05.2015 to 30.05.2015 supported with certificate under Sec. 65B of The Indian Evidence Act of mobile phone no. 9873602086 issued in name of Sunil Kumar as Ex. PW-16/A, Ex. PW-16/A1, Ex. PW-16/A2 Ex. PW-16/A3. He also proved CAF, ID of subscriber, CDR of the period from 20.05.2015 to 12.06.2015 supported with certificate under Sec. 65B of The Indian Evidence Act of mobile phone no. 8750533839 issued in name of Sheeshpal, S/o Sh. Guljari Lal as Ex. PW-16/B, Ex. PW-16/B1, Ex. PW-16/B2 Ex. PW-16/B3. In his cross- examination, he admitted that there was no call either on mobile no. 8750533839 or from this number on 23.05.2015 from/to 8368514864, 9643589534, 9289611902, 8860269805, as per Ex. PW-16/B2.
FIR No. 272/2015, PS: Nabi Karim, Page No. 19 of 65 State Vs. Raja & Ors.
26. PW-17 Inspector Munish Kumar, deposed that on 24.05.2015, he joined the investigation in the present case and went to Mortuary, Lady Harding Medical College where he seized two sealed exhibits along with sample seal vide seizure memo Ex. PW-17/A, after postmortem on the dead body of deceased. He also deposed that he went to Shyamji Mal Lane, Motia Khan, Paharganj, Delhi where he inquired from witness Vicky. He narrated about apprehension of accused Raja from Railway Washing Centre, New Delhi on the basis of secret information on the lines of PW-13 Ct. Anand and proved his arrest memo, personal search memo and disclosure statement. He also narrated about apprehension of accused Budh Ram @ Ricky at instance of accused Dharmender @ Sultan from Sainik Vishram Ghar, Railway Yard on the lines of PW-13 Ct. Anand and proved his arrest memo, personal search memo and disclosure statement. In his cross-examination, he denied the suggestion that accused persons had been falsely implicated, just to work out the case. He also denied the suggestion that no public person was requested to join the investigation. He admitted that no recovery was got effected from the abovementioned accused persons in the present case. He also denied the suggestion that signatures of accused persons were obtained on blank papers/blank proforma or the same were converted into different memos.
27. PW-18 ACP Dhirender Sharma, was the Investigating Officer in the present case. He deposed that on 23.05.2015 on FIR No. 272/2015, PS: Nabi Karim, Page No. 20 of 65 State Vs. Raja & Ors.
receiving call regarding quarrel, which was entrusted to ASI Virender Singh, he reached at the spot and found that injured was transported to LHMC Hospital where he was declared brought dead. He further deposed that ASI Virender Singh collected the MLC and clothes of deceased and returned to spot of incident after preserving the dead body in mortuary. He also deposed that ASI Virender Singh recorded the statement of Ct. Vijay and got registered the present FIR. He narrated about proceedings conducted by him at the spot of incident viz. seizure of exhibits and preparation of site plan at instance of Ct. Vijay. He also narrated about conducting of postmortem on the dead body of deceased and handing over the same after postmortem to its relatives. He also narrating about apprehension of accused Raja from Railway Washing yard, on the basis of secret information and proved his arrest memo, personal search memo and disclosure statement. He also narrated about information received vide DD No. 20B, Ex. PW-18/A, on 24.05.2015, regarding arrest of accused persons namely Dharmender and Dinesh by Special Staff, South-East District and proved their arrest memos, personal search memos and their disclosure statements. He also narrated about apprehension of accused Ricky @ Budh Ram instance of accused Dharmender and proved his arrest memo, personal search memo and disclosure statement. He also narrated about TIP of accused Dharmender @ Sultan and Raja, obtaining of subsequent opinion regarding weapon of offence and collection of postmortem report. He also narrated about seizure of the blood stained uniform of Ct. Vijay, collecting of copies of FIR No. 272/2015, PS: Nabi Karim, Page No. 21 of 65 State Vs. Raja & Ors.
relevant DD entries, preparation of scaled site plan, collection of PCR form, collection of relevant CDRs and sending of the exhibits to FSL Rohini. This witness has correctly identified all the four accused persons as well as case properties during his deposition before the court. In his cross-examination, he deposed that he did not remember who had informed PCR. He also deposed that he did not know which weapon was recovered from which accused. He admitted that he did not prepare personal search memo of accused Dharmender and Dinesh. He denied the suggestion that arrest memo and personal search memo were fabricated. He also deposed that he did not remember exactly how many public persons were examined by him during investigation.
28. PW-19 Dr. Garima Chaudhary, Senior Scientist, DNA has proved her detailed biological/DNA report as Ex. PW-19/A. In her cross-examination, she deposed that exhibits could be examined for DNA upto any time if they were preserved properly.
29. PW-20 Inspector Antriksh Alok, had filed FSL report, Ex. PW-19/A before the court during May, 2017. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
30. During trial of the case, all the four accused persons have admitted the genuineness of followings documents under Sec. 294 Cr.PC.:-
FIR No. 272/2015, PS: Nabi Karim, Page No. 22 of 65 State Vs. Raja & Ors.
(a) TIP proceedings of accused Raja conducted by Ld. MM Ms. Ambika Singh as Ex. PX-1.
(b) TIP proceedings of accused Dharmender @ Sultan as Ex.
PX-2.
(c) FIR no. 272/2015, under Sec. 302/34 IPC, PS Nabi Karim recorded by HC Upender Singh as Ex. PX-3 and certificate issued under Sec. 65B of The Indian Evidence Act by DO/HC Upender Singh as Ex-3/A.
(d) Scaled site plan prepared by Inspector Mahesh Kumar as Ex. PX-4.
(e) DD No. 29A, dated 23.05.2015 as Ex. PX-5.
(f) DD No. 32A dated 23.05.2015 as Ex. PX-6.
(g) PCR Form as Ex. PX-7.
(h) SOC Report prepared by SI Rupesh Khatri as Ex. PX-8.
(i) Inquest papers of deceased Sheeshpal (running into 11 pages) i.e. request for autopsy, form 25.35, copy of FIR, copy of statement of Ct. Vijay Kumar, copy of DD No. 32A, copy of DD No. 29A, medical papers i.e. OPD card, statement of Balraj and statement of Jyoti @ Prerna regarding identification of dead body of deceased Sheeshpal and application regarding preservation of dead body, collectively exhibited as Ex. PX-9.
(j) Kalandra under Sec. 41.1B Cr.PC, DD No. 20B dated 24.05.2015 PS Nabi Karim, DD No. 25A dated 24.05.2015 PS Ambedkar Nagar, DD No. 4 dated 24.05.2015 PS Special Staff SD (running into six pages) as Ex. PX-10 (colly).
FIR No. 272/2015, PS: Nabi Karim, Page No. 23 of 65 State Vs. Raja & Ors.
(k) TIP of accused Budh Ram @ Ricky conducted by Dr. Jagminder Singh, Ld. MM as Ex. PW-11.
(l) MLC of accused Dharmender @ Sultan and MLC of accused Dinesh as Ex. PX-12 & Ex. PX-13.
(m) Copy of register no. 19 pertaining to deposition of case properties of this case in Malkhana (running into seven pages) as Ex. PX-14, copy of acknowledgment of case acceptance at FSL Rohini as Ex. PX-15, copy of RC No. 94/21/15 (running into two pages) as Ex. PX-16, copy of RC No. 112/21/15 as Ex. PX-17.
(n) Statement of SI Rupesh Khatri as Ex. PX-18.
(o) Statement of HC Hari Kishan, fingerprint proficient as Ex. PX-19.
(p) Statement of DO/HC Upender Singh as Ex. PX-20.
(q) Statement of Ct. Vijay No. 1820/C as Ex. PX-21.
(r) Statement of HC Rakesh No. 278/C as Ex. PX-22.
(s) Statement of HC Ashok, MHC(M) as Ex. PX-23.
31. After closing of prosecution evidence, separate statements of all the four accused persons were recorded under Sec. 313 Cr.PC, wherein they denied all the charges against them. Accused persons stated that that one of their common friend namely Ajay informed them about beating to Sheeshpal by some persons. They further stated that they made call to Sheeshpal but same was not attended and they kept on making call to him and one of the call was attended by a policeman who informed that FIR No. 272/2015, PS: Nabi Karim, Page No. 24 of 65 State Vs. Raja & Ors.
Sheeshpal had met an accident and he was being removed to Lady Harding Hospital. They further stated that they along with their wife and friends went to hospital but later on police officials apprehended them from their houses and implicated them in the present matter.
32. Accused persons have examined three defence witnesses. The nature and testimony of the defence witnesses has been briefly discussed as under.
33. DW-1 Ms. Neetu Singh was the landlady of accused Raja. She deposed that one boy namely Ajay came to her house at around 06:00 pm in the month of May, 2015 and called Raja who was residing as tenant and informed that Sheeshpal was assaulted and he had been taken to Lady Harding Hospital. She further deposed that Raja requested her to accompany him to the hospital and she along with her mother-in-law went to hospital and found Sheeshpal dead in hospital. She further deposed that Sheesh Pal was friend of Raja. In her cross-examination, she deposed that Raja was provided rented accommodation prior to two and two and half months of the day of death of Sheeshpal and she had not got conducted police verification of Raja. She denied that she did not know where was Raja around half an hour prior to coming of Ajay to her house. She also deposed that no lease agreement was executed between her and Raja. She admitted that there was no enmity/grudge between Raja and the police official who arrested him. She denied the suggestion that Raja was not her tenant during that period.
FIR No. 272/2015, PS: Nabi Karim, Page No. 25 of 65 State Vs. Raja & Ors.
34. DW-2 Ms. Pooja, was the wife of accused Budh Ram @ Ricky. She deposed that around ten years back, police officials visited her house and asked for her husband and on her inquiry, police official told her that murder of a person had been committed by her husband and he had to be interrogated. She further deposed that she informed the police officials that her husband had already been admitted to Nasha Mukti Kendra around two months prior to visit of police officials. She also deposed that on regular visit of police officials, she brought her husband from Nasha Mukti Kendra and produced him before police officials. In her cross-examination, she deposed that she could not produce any document showing that her husband was admitted in Nasha Mukti Kendra during that period. She admitted that there was no enmity/grudge between Raja and the police official who arrested him. She denied the suggestion that her husband was not admitted in Nasha Mukti Kendra since she did not have any document or that deposing deliberately that her husband was admitted in Nasha Mukti Kendra during that period.
35. DW-3 Sh. Praveen, was the colleague of accused Dharmender @ Sultan (since deceased) and Dinesh @ Sunny. He deposed that he was working in a band company in Gurugram and accused persons namely Dharmender @ Sultan (since deceased) and Dinesh @ Sunny were also working with him. He further deposed that mother of Dharmender (since deceased) had shifted to Gurugram during that period and Dharmender (since deceased) also started residing with her. He further deposed that FIR No. 272/2015, PS: Nabi Karim, Page No. 26 of 65 State Vs. Raja & Ors.
on 23.05.2015, 4-5 police personnel came at around 09:00-09:30 pm and took both Dharmender @ Sultan and Dinesh @ Sunny and assured to return after some time. In his cross-examination, he deposed that he had no document to show that he along with Dharmender and Dinesh was working in band company. He denied the suggestion that he was deliberately deposing that Dharmender @ Sultan and Dinesh @ Sunny were working with him. He admitted that there was no enmity/grudge between Dharmender @ Sultan and Dinesh @ Sunny and the police official who arrested them. He also denied the suggestion that he had been tutored by accused persons.
36. Final arguments were advanced by Sh. Pankaj Kumar Ranga, Ld. Addl. PP for the State and Sh. Yogender Kumar, Ld. Counsel for all the four accused persons.
37. Ld. Addl. PP for the State argued that the prosecution has proved its case beyond reasonable doubt and all the prosecution witnesses have supported the prosecution story and have corroborated each other's version. To substantiate his submissions, he argued that PW-2 Ct Vijay has completely supported the case of prosecution and he had seen the accused persons running from the spot of incident. He also argued that the version of PW-2 Ct. Vijay has been corroborated by PW-6 Ct. Dinesh. He also argued that weapon of offence has been recovered from possession of accused persons. He also argued that the blood on knives has matched with the blood of deceased. He also argued that accused persons have not taken any specific FIR No. 272/2015, PS: Nabi Karim, Page No. 27 of 65 State Vs. Raja & Ors.
defence. He also argued that motive for the commission of offence has been proved by the prosecution. He further argued that the IO as well as the other police officials have duly proved the proceedings conducted by them. He also argued that since the prosecution has proved its case against all the accused persons beyond reasonable doubt, all the accused persons should be convicted for the offence punishable under Sec. 302/34 IPC.
38. Per Contra Ld. Defence Counsel argued that the prosecution has miserably failed to prove its case against accused persons beyond reasonable doubt. To substantiate his points, he argued that the investigation in the present case has been conducted in an arbitrary manner. He further argued that all the accused persons have been falsely implicated in the present case. He further argued that neither PW-2 Ct. Vijay nor PW-6 Ct. Dinesh have witnessed the incident. He also argued that no DD entry with respect to presence of PW-2 Ct. Vijay and PW-6 Ct. Dinesh has been proved by the prosecution. He also argued that the incident took place at a public place but no independent eyewitness has been joined in the investigation by the IO. He also argued that no CCTV footage has been collected by the IO. He also argued that the motive of commission of offence has not been proved by the prosecution. He also argued that the alleged phone call between accused Raja and deceased has been proved by the prosecution. He also argued that since the prosecution has failed to prove its case against the accused persons beyond the reasonable doubt, all the accused persons should be acquitted for the offence punishable under Sec. 302/34 IPC.
FIR No. 272/2015, PS: Nabi Karim, Page No. 28 of 65 State Vs. Raja & Ors.
39. In the present case, charges under Sec. 302/34 IPC have been framed against all the accused persons. These Sections have been defined as follows:-
Section 302 IPC provides punishment for the commission of offence of murder which has been defined U/s 300 IPC.
300 Murder Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1 When culpable homicide is not murder. Culpable homicide is not murder if the offendor, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person my mistake or accident.
FIR No. 272/2015, PS: Nabi Karim, Page No. 29 of 65 State Vs. Raja & Ors.
The above exception is subject to the following provisos:-
First-That the provocation is not sought or voluntarily provoked by the offendor as an excuse for killing or doing harm to any person.
Secondly- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of the public servant.
Thirdly-That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanations: Whether the provocation was grave and sudden enough to prevent the offence amounting to murder is a question of fact.
Exception 2: Culpable homicide is not murder if the offendor, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm then is necessary for the purpose of such defence.
Exception 3: Culpable homicide is not murder if the offendor, being a public servant or adding a public servant acting for the advancement of public justice, exceeds the power given to him by law and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4: Culpable homicide is not murder if it is FIR No. 272/2015, PS: Nabi Karim, Page No. 30 of 65 State Vs. Raja & Ors.
committed without pre meditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offendor's having taken undue advantage or acted in a cruel or unusual manner.
Explanation : It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5: Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years suffers death or takes the risk of death with his own consent.
34. Acts done by several persons in furtherance of common intention When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
40. I have thoughtfully considered the arguments advanced, perused the material available on record, scrutinized the evidence led by the prosecution and gone through the relevant provisions of law. I have also considered the judgments relied upon by the Ld. Addl. PP for the State as well as Ld. Counsel for accused persons.
41. As per the case of prosecution, the alleged incident took place on 23.05.2015 at about 06:00 pm, in front of shop no. 5997/2, Shankar Market, Nabi Karim, Delhi. To prove the alleged incident, prosecution has cited several witnesses out of which FIR No. 272/2015, PS: Nabi Karim, Page No. 31 of 65 State Vs. Raja & Ors.
PW-2/complainant Ct. Vijay Kumar, PW-4 Sh. Priyanshu Khanagwal, PW-5 Sh. Ajay, PW-6 Ct. Dinesh & PW-8 Sh. Vicky are the star witnesses of the prosecution who have either witnessed the alleged incident or they have seen the scuffle or they have seen the accused persons running from the spot of incident. The testimonies of these witnesses are to be appreciated as per the established principles of law.
42. PW-2/Ct. Vijay Kumar is the complainant in the present case on whose statement, the FIR in the present case was registered. PW-2/complainant Ct. Vijay Kumar deposed that on 23.05.2015, when he reached, Satya Narain Gali, one unknown person told him that quarrel was taken place at some distance and thereafter he reached in front of house no/shop no. 5999 and on seeing him, 3-4 boys ran away. Thus, PW-2/complainant Ct. Vijay Kumar had not seen any of the said boys committing the said offence or having scuffle with the deceased or stabbing the deceased. PW-2/complainant Ct. Vijay Kumar is also not sure about the number of such persons. As per the PCR form, Ex. PX-7, the public persons told them that four boys were quarreling and three boys had stabbed the deceased and they ran away from the spot of incident. Thus, as per contents of PCR form, Ex. PX-7, three persons were involved in the commission of offence. In the present case, four accused persons are facing trial and from the testimony of PW-2/complainant Ct. Vijay Kumar and PCR form, Ex. PX-7, it has become doubtful whether four persons were involved in the commission of offence or three persons FIR No. 272/2015, PS: Nabi Karim, Page No. 32 of 65 State Vs. Raja & Ors.
were involved in the commission of offence. This raises serious doubts on the prosecution story.
43. PW-6 Ct. Dinesh deposed that on 23.05.2015 at about 06:00 pm, during patrolling he reached at Sataya Narain Gali, Shankar Market and some unknown person told him that a quarrel had taken place at some distance. He further deposed that he went forward and reached in front of shop no. 5999, Shankar Gali, Nabi Karim and saw that four persons were running and two of them were having knives in their hands. Thus, even PW-6 Ct. Dinesh had not witnessed the commission of offence by the accused persons. Running of some persons in itself cannot connect them to the commission of offence. PW-6 Ct. Dinesh further deposed that he knew all four of them being the known criminals of the area and they were Raja, Dharmender, Sunny and Ricky. He further deposed that he chased the said persons but they managed to ran away. In his cross-examination, PW-6 Ct. Dinesh specifically deposed that accused persons started running opposite to him. If the accused persons were already running in the opposite direction, it may not have been possible to see their faces by PW-6 Ct. Dinesh. In his cross-examination he deposed that he saw the faces of accused persons when they started running but in his examination-in-chief, PW-6 Ct. Dinesh had deposed that he saw that four persons were running and he has contradicted himself in his cross-examination which raises serious doubt on his veracity.
FIR No. 272/2015, PS: Nabi Karim, Page No. 33 of 65 State Vs. Raja & Ors.
44. PW-2/complainant Ct. Vijay Kumar deposed that he reached in front of house/shop no. 5999 and on seeing him, 3-4 boys ran away. Similarly, PW-6 Ct. Dinesh deposed that public persons met him in front of shop no. 5999 and he had seen the faces of accused persons when they started running. Thus, as per the versions of PW-2/complainant Ct. Vijay Kumar and PW-6 Ct. Dinesh, they both were present in front of Shop No. 5999 at the same time and they had chased the accused persons in the same direction. However, PW-2/complainant Ct. Vijay Kumar has not deposed that any other person including PW-6 Ct. Dinesh had chased the accused person. Similarly, PW-6 Ct. Dinesh has also not deposed that he had seen PW-2/complainant Ct. Vijay Kumar chasing the accused persons. This raises serious doubts regarding the presence of PW-2/complainant Ct. Vijay Kumar and PW-6 Ct. Dinesh at the spot of incident at the time of presence of accused persons at the spot of incident.
45. As per the prosecution story, PW-2/complainant Ct. Vijay Kumar and PW-6 Ct. Dinesh were present near the spot of incident at about 06:00 pm. As per rules, whenever any police officials leaves the Police Station for patrolling or any other purpose, a specific DD entry is made mentioning the time of leaving of PS and its purpose. No DD entry with respect to leaving of PS by PW-6 Ct. Dinesh showing his presence at the spot of incident has been proved by the prosecution. Similarly, no DD entry showing the leaving of PS by PW-2/complainant Ct. Vijay Kumar has been proved by the prosecution. In the absence FIR No. 272/2015, PS: Nabi Karim, Page No. 34 of 65 State Vs. Raja & Ors.
of proving of specific DD entries, showing the presence of PW-2/complainant Ct. Vijay Kumar and PW-6 Ct. Dinesh has become doubtful and it has weakened the case of the prosecution.
46. PW-6 Ct. Dinesh has specifically deposed that while the accused persons were running, two of them were having knives in their hands and he had chased them. PW-2/complainant Ct. Vijay Kumar has also deposed that he had chased the accused persons but he had not deposed that any of the accused persons was having any knife in his hand. Thus, there is material contradiction in the testimonies of PW-2/complainant Ct. Vijay Kumar and PW-6 Ct. Dinesh with respect to the same fact, which raises serious doubts on the veracity of PW-2/complainant Ct. Vijay Kumar and PW-6 Ct. Dinesh as well as on the prosecution story.
47. PW-2/complainant Ct. Vijay Kumar deposed that on 23.05.2015 at about 05:52 pm, one call regarding quarrel was received by ASI Hari Kishan and he along with him went to Multani Dhanda and thereafter he proceeded to Satya Narain Gali. He has not deposed about the specific time of alleged incident. As per complaint, Ex. PW-2/A of PW-2/complainant Ct. Vijay Kumar, he reached Satya Narain Gali at about 06:10 pm. However, PW-6 Ct. Dinesh deposed that he reached at the spot of incident at about 06:00 pm and he saw the accused persons running and he had followed them upto 50-60 meters only. The distance of 50-60 meters can be covered by running in a period of less than one minute approximately. Thus, the alleged incident FIR No. 272/2015, PS: Nabi Karim, Page No. 35 of 65 State Vs. Raja & Ors.
took place at about 06:00 pm and accused persons also ran away from the spot of incident at that time. Thus, PW-2/complainant Ct. Vijay Kumar had seen the accused persons running after 06:10 pm while PW-6 Ct. Dinesh had seen them running at about 06:00 pm which is not possible as both the witnesses have deposed that they had seen the accused persons running from the spot.
48. PW-7 Sh. Rajesh Kumar, owner of shop no. 5999 deposed that on 23.05.2015 at about 06:00 pm, he heard a noise outside his shop and thereafter he opened the gate of the shop and saw that one person had fallen outside after striking with the gate of shop. He also deposed that the said person was in injured condition and was bleeding. He also deposed that he made call at 100 number from his landline number 65544267. As per the case of the prosecution, DD No. 29A, Ex. PX-5 was registered on 23.05.2015 at 06:12 pm on receiving call from phone no. 65544267. Thus, DD No. 29A, Ex. PX-5 was registered at PS Nabi Karim on the call of PW-7 Sh. Rajesh Kumar. As per the contents of DD No. 29A, Ex. PX-5, one person having stab injury had fallen while running near the caller. Thus, PW-7 Sh. Rajesh Kumar had seen that the deceased came near his shop while running in injured condition and he had fallen. PW-7 Sh. Rajesh Kumar had not deposed that he had seen any of the accused persons near his shop or near the deceased. He has also not deposed about the presence of PW-2/complainant Ct. Vijay Kumar and PW-6 Ct. Dinesh at the spot of incident or chasing of FIR No. 272/2015, PS: Nabi Karim, Page No. 36 of 65 State Vs. Raja & Ors.
accused persons by them. This raises serious doubts about the presence of PW-2/complainant Ct. Vijay Kumar and PW-6 Ct. Dinesh at the spot of incident when the injured had fallen in front of shop no. 5999 or at the time when call was made at 100 number by PW-7 Sh. Rajesh Kumar.
49. The present FIR has been registered on the complaint of PW-2 Ct. Vijay Kumar. In his complaint, Ex. PW-2/A, PW-2/complainant Ct. Vijay Kumar has stated that one person was lying near the shutter of shop no. 5997. However, in his examination-in-chief, PW-2/complainant Ct. Vijay Kumar has deposed that the injured was lying in front of shop no. 5999. Thus, there is material contradictions in two versions of PW-2/complainant Ct. Vijay Kumar with respect to the spot where the deceased was found in injured condition. This raises serious doubts on the prosecution story.
50. After the arrest of accused persons, TIP of accused persons namely Raja and Dharmender (since deceased) was got conducted through PW-2/complainant Ct. Vijay Kumar. Prosecution has proved TIP proceedings of accused Raja and Dharmender (since deceased) exhibited as Ex. PX-1 & PX-2. As per the TIP proceedings of accused Dharmender, Ex. PX-2, PW-2/complainant Ct. Vijay Kumar failed to identify accused Dharmender (since deceased) and the Ld. MM who conducted the TIP proceedings has specifically mentioned the said fact in the TIP proceedings. PW-2/complainant Ct. Vijay Kumar in his examination-in-chief deposed that on 27.05.2015, he participated FIR No. 272/2015, PS: Nabi Karim, Page No. 37 of 65 State Vs. Raja & Ors.
in the judicial TIP and identified accused Raja but could not identify accused Dharmender as it was the first time he participated in the TIP proceedings and got perplexed. The reason given by PW-2/complainant Ct. Vijay Kumar for not identifying accused Dharmender in TIP proceedings is vague and evasive in nature as on the same day, he had identified accused Raja in the TIP proceedings. The purpose of TIP proceedings is to fix the identity of accused persons under judicial supervision. Identification of accused Dharmender in the court after failing of TIP proceedings has weakened the case of the prosecution and it also raises serious doubts as to whether accused Dharmender was involved in the incident or not. Moreover, TIP of accused persons was not got conducted through PW-6 Ct. Dinesh nor accused persons were arrested in presence of PW-6 Ct. Dinesh. After the incident, accused persons were identified by PW-6 Ct. Dinesh in the court itself without fixing their identity through him during the investigation and this has weakened the case of the prosecution.
51. As per the case of prosecution, PW-5 Sh. Ajay and PW-8 Sh. Vicky had seen the alleged incident and due to fear, they ran away from the spot. However, PW-5 Sh. Ajay and PW-8 Sh. Vicky have turned hostile and have not supported the case of prosecution. PW-5 Sh. Ajay deposed that he along with Raja was sitting near his house and at that time Vicky came there and told them that Sheeshpal had been caught by some persons and they were quarreling with Sheeshpal. He also deposed that Raja made FIR No. 272/2015, PS: Nabi Karim, Page No. 38 of 65 State Vs. Raja & Ors.
a telephone call to Sheeshpal and the phone call on the mobile of Sheeshpal was attended by some other person who told that Sheeshpal had met with an accident and he had been taken to hospital. Similarly, PW-8 Sh. Vicky deposed that on 23.05.2015 at about 01:00 pm, he met with Ajay, Sheeshpal, Raja and some other boys at Nabi Karim and when they reached in gali of Sadar Bazar, he, Ajay and Sheeshpal separated from other boys and thereafter Sheeshpal went in left direction whereas he and Ajay went in right direction. He further deposed that at about 11:00 pm, two police officials came to his house and took him to the Police Station. PW-5 Sh. Ajay and PW-8 Sh. Vicky have specifically denied their presence at the spot of incident at the time of incident. As per testimony of PW-5 Sh. Ajay, accused Raja was with him at the time of commission of offence. Nothing incriminating came on record against the accused persons in the cross-examination of PW-5 Sh. Ajay and PW-8 Sh. Vicky by the Ld. Addl. PP for the State. The testimonies of PW-5 Sh. Ajay and PW-8 Sh. Vicky have created serious doubts on the prosecution story.
52. The prosecution has also relied upon the dying declaration made by deceased Sheesh Pal to PW-2/complainant Ct. Vijay Kumar. The victim, Sh. Sheeshpal in the present case could not be examined as prosecution witness as he expired on his way to the hospital and was declared brought dead at the time of preparation of MLC, exhibited as Ex. PW-9/A. PW-2/complainant Ct. Vijay Kumar deposed that he took injured FIR No. 272/2015, PS: Nabi Karim, Page No. 39 of 65 State Vs. Raja & Ors.
Sheeshpal to the hospital and on the way, injured told him that he had been caused injuries by Dharmender, Sunny and his associates. However, deceased Sheeshpal did not give the complete particulars of Dharmender (since deceased) and Sunny and there may be a number of persons with the said names. PW-2/complainant Ct. Vijay Kumar deposed that he already knew accused Sunny @ Suresh being the known criminal of the area. The question before this court is that as to whether the version given by deceased Sheeshpal to PW-2/complainant Ct. Vijay Kumar can be considered as dying declaration and if same is considered as dying declaration, whether the same is reliable and admissible as per the established principles of law. Section 32 of Indian Evidence Act deals with dying declaration which reads as under :
"Section 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant - Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases : -
(1) when it relates to cause of death - When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the FIR No. 272/2015, PS: Nabi Karim, Page No. 40 of 65 State Vs. Raja & Ors.
person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
(2) xxxxxxxxx (3) xxxxxxxx
53. Section 32 of the Indian Evidence Act 1872 deals with two kinds of statements i.e. (i) statement by a person as to cause of his death and (ii) statement by a person as to any of the circumstances of the transaction which resulted into his death. The deceased Sh. Sheeshpal in the present case sustained injuries in the alleged incident due to which the he expired on his way to the hospital on 23.05.2015. The present case is duly covered under both the situations i.e. the injuries sustained in the incident are the cause of death as well as indicate the circumstances which resulted in the death of deceased Sh. Sheeshpal.
54. The admissibility of the oral version of deceased Sh. Sheeshpal is to be seen in the light of law laid down by the Hon'ble Supreme Court of India. Hon'ble Supreme Court of India in landmark judgment of 'Mukesh and others Vs. State for NCT of Delhi and others cited as AIR 2017 SC 2161' has observed as under :
"173. A dying declaration is an important piece of evidence which, if found veracious and voluntary by the court, could be the sole basis for conviction. If a dying declaration is found to be voluntary and made in fit mental condition, it can be relied upon even without any corroboration. However, the court, while FIR No. 272/2015, PS: Nabi Karim, Page No. 41 of 65 State Vs. Raja & Ors.
admitting a dying declaration, must be vigilant towards the need for 'Compos Mentis Certificate' from a doctor as well as the absence of any kind of tutoring. In Laxman v. State of Maharashtra MANU/SC/0707/2002 : (2002) 6 SCC 710, the law relating to dying declaration was succinctly put in the following words:
3. ... A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording.
Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind.
Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification FIR No. 272/2015, PS: Nabi Karim, Page No. 42 of 65 State Vs. Raja & Ors.
by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.
174. The legal position regarding the admissibility of a dying declaration is settled by this Court in several judgments. This Court, in Atbir v. Government of NCT of Delhi MANU/SC/0576/2010 : (2010) 9 SCC 1, taking into consideration the earlier judgment of this Court in Paniben v. State of Gujarat MANU/SC/0346/1992 : (1992) 2 SCC 474 and another judgment of this Court in Panneerselvam v. State of Tamil Nadu MANU/SC/7726/2008 : (2008) 17 SCC 190, has exhaustively laid down the following guidelines with respect to the admissibility of dying declaration:
(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
FIR No. 272/2015, PS: Nabi Karim, Page No. 43 of 65 State Vs. Raja & Ors.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.
175. It is well settled that dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various other tests. In a case where there are more than one dying declaration, if some inconsistencies are noticed between one and the other, the court has to examine the nature of inconsistencies as to whether they are material or not. The court has to FIR No. 272/2015, PS: Nabi Karim, Page No. 44 of 65 State Vs. Raja & Ors.
examine the contents of the dying declarations in the light of the various surrounding facts and circumstances. In Shudhakar v. State of Madhya Pradesh MANU/SC/0590/2012 : (2012) 7 SCC 569, this Court, after referring to the landmark decisions in Laxman (supra) and Chirra Shivraj v. State of Andhra Pradesh MANU/SC/0992/2010 : (2010) 14 SCC 444, has dealt with the issues arising out of multiple dying declarations and has gone to the extent of declining the first dying declaration and accepting the subsequent dying declarations. The Court found that the first dying declaration was not voluntary and not made by free will of the deceased; and the second and third dying declarations were voluntary and duly corroborated by other prosecution witnesses and medical evidence. In the said case, the accused was married to the deceased whom he set ablaze by pouring kerosene in the matrimonial house itself. The smoke arising from the house attracted the neighbours who rushed the victim to the hospital where she recorded three statements before dying. In her first statement given to the Naib Tehsildar, she did not implicate her husband, but in the second and third statements, which were also recorded on the same day, she clearly stated that the accused poured kerosene on her and set her on fire.
The accused was convicted Under Section 302 Indian Penal Code. In this regard, the Court made the following observations:
21. Having referred to the law relating to dying declaration, now we may examine the issue that in cases involving multiple dying declarations made by the deceased, which of the various dying declarations should be believed by the court and what are the FIR No. 272/2015, PS: Nabi Karim, Page No. 45 of 65 State Vs. Raja & Ors.
principles governing such determination. This becomes important where the multiple dying declarations made by the deceased are either contradictory or are at variance with each other to a large extent. The test of common prudence would be to first examine which of the dying declarations is corroborated by other prosecution evidence. Further, the attendant circumstances, the condition of the deceased at the relevant time, the medical evidence, the voluntariness and genuineness of the statement made by the deceased, physical and mental fitness of the deceased and possibility of the deceased being tutored are some of the factors which would guide the exercise of judicial discretion by the court in such matters".
55. The first and foremost condition of the dying declaration is that the person making the dying declaration must be in fit state of mind at the time of making such statement. In the present case, the deceased was brought dead to the hospital and hence the deceased could not be examined by the doctor with respect to the fitness of state of mind at the time of making statement to PW-2/complainant Ct. Vijay Kumar. Thus, the first and foremost condition of relying the dying declaration is missing in the present case and hence in absence of fitness certificate, it cannot be ascertained whether the deceased was fit state of mind at the time of making dying declaration to PW-2/complainant Ct. Vijay Kumar. Thus, in absence of certificate with respect to fitness of mind, the dying declaration in the present case cannot be relied upon. Moreover, deceased Sheeshpal had not stated about the parentage and addresses of Dharmender & Sunny to fix their FIR No. 272/2015, PS: Nabi Karim, Page No. 46 of 65 State Vs. Raja & Ors.
identity. Thus, the dying declaration given by deceased cannot be read in favour of prosecution.
56. The alleged incident took place at a public place i.e. in the market during evening time. PCR Form, Ex. PX-7 reads as follows:-
"Public ne bataya ki chaar boys jhagra karte huye aaye the and theen boys ne ek boy ko kuchh maar diya aur bhaag gaye".
Thus, as per contents of PCR Form, Ex. PX-7, the public persons were present at the spot of incident and they had witnessed the alleged incident. PW-2/complainant Ct. Vijay Kumar as well as PW-6 Ct. Dinesh have deposed that some unknown persons had told them that quarrel was going at the spot of incident. PW-18/IO ACP Dhirender Sharma has not joined any independent witness nor he served any notice under Sec. 160 Cr.PC to the public persons who might have refused to join the investigation. The independent public persons could have corroborated the versions of PW-2/complainant Ct. Vijay Kumar and PW-6 Ct. Dinesh. Moreover, IO has not collected any CCTV footage in which the alleged incident might have been covered or the accused persons might have been seen running from the spot of incident. Non-joining of any independent eyewitness in the investigation despite availability and non-collection of CCTV footage of the area has weakened the case of prosecution.
57. Ld. counsel for accused persons have argued that prosecution has failed to prove the motive of commission of FIR No. 272/2015, PS: Nabi Karim, Page No. 47 of 65 State Vs. Raja & Ors.
offence and the benefit of same should be given to accused persons. Per contra, Ld. Addl. PP for the State has argued that PW-1 Smt. Jyoti and PW-4 Sh. Priyanshu Khanagwal have explained the motive of commission of offence and hence motive for commission of offence has been duly proved by the prosecution.
58. Motive is relevant under Sec. 8 of Indian Evidence Act. Motive is the force that moves a man to do a particular work. Generally there can be no action without any motive. Under Section 8 of Evidence Act, several factors including preparation, previous threat, previous altercation, previous litigation between the accused and the victim becomes relevant. The mere existence of motive is by itself is not an incriminating circumstance. Motive cannot be a substitute of proof, however, it is an corroborating factor in proving the case of the prosecution. The motive for the commission of offence is of vital importance in a criminal trial and in cases based on circumstantial evidence motive itself will be a circumstance which the Court has to consider deeply. The existence of motive which operates in the mind of perpetrator may not be known to others and hence it has to be inferred from the facts and circumstances of this case.
59. Hon'ble Supreme Court of India in judgment titled as Sheo Shankar Singh Vs. State of Jharkhand and Anr cited as (2011) 3 SCC 654 observed as under:-
"15. The legal position regarding proof of motive as an essential requirement for bringing home the guilt FIR No. 272/2015, PS: Nabi Karim, Page No. 48 of 65 State Vs. Raja & Ors.
of accused is fairly well settle by a long line of decision of this Court. These decisions have made a clear distinction between cases where the prosecution relies upon the circumstantial evidence on one hand and those were relies upon the testimonies of the eye witnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into background in cases where the prosecution relies upon and eye witness account of the occurrence. That is because if the Court upon a proper appraisal of the deposition of the eye witnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely, even if the prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eye witnesses is found unreliable or unworthy of credit, existence of motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eye witness account does not lend strength to the prosecution case or fortify the Court in its ultimate conclusion proof of motive in such a situation certainly helps the prosecution and supports the eye witnesses."
60. Hon'ble Supreme Court of India in Judgment tilted as Raghubir Singh Vs. State of Punjab cited as (1996) 9 SCC 233 observed as under:-
FIR No. 272/2015, PS: Nabi Karim, Page No. 49 of 65 State Vs. Raja & Ors.
"7.... The motives may be minor but nonetheless they did provide occasion for attack on the deceased by the appellants. That apart, even in absence of motive, the guilt of culprit can be established in a given case if the other evidence on record is trustworthy in the absence of proof of motive has never been considered as fatal to the prosecution case where the ocular evidence is found reliable".
61. As per the case of the prosecution, a quarrel had taken place between deceased Sheeshpal and accused Dharmender (since deceased) and due to the said reason, accused Dharmender (since deceased) along with co-accused persons committed murder of deceased Sheeshpal. PW-1 Ms. Jyoti @ Prerna who was wife of deceased deposed that a quarrel took place between deceased Sheeshpal and accused Dharmender (since deceased), 2-3 days prior to 22.05.2015 and this fact was told to her by deceased on the evening of 22.05.2015. She further deposed that due to the said reason, deceased had the apprehension of his life from Manohar, who was uncle of Dharmender. Thus, PW-1 Smt. Jyoti @ Prerna is not the witness of the alleged quarrel which might have taken place between deceased and accused Dharmender. PW-1 Smt. Jyoti @ Prerna has not explained the reason of said quarrel. PW-1 Smt. Jyoti @ Prerna in her cross- examination has specifically deposed that no complaint was made by her and her deceased husband against the danger of life FIR No. 272/2015, PS: Nabi Karim, Page No. 50 of 65 State Vs. Raja & Ors.
to deceased from accused Dharmender. Prosecution has not examined any independent witness, who might have seen the said quarrel. In these circumstances, the prosecution has failed to prove the factum of any quarrel and enmity between deceased and accused Dharmender (since deceased).
62. PW-4 Sh. Priyanshu Khanagwal, who is brother of PW-1 Smt. Jyoti @ Prerna deposed that after the incident on 23.05.2015, his sister PW-1 Smt. Jyoti @ Prerna told him that 8- 10 days back, a quarrel had taken place between deceased Sheeshpal and accused Raja. Thus, there are material contradictions in the testimonies of PW-1 Smt. Jyoti @ Prerna and PW-4 Sh. Priyanshu Khanagwal with respect to the probable day of quarrel as well as the person with whom the alleged quarrel might have taken place as PW-1 Smt. Jyoti @ Prerna and PW-4 Sh. Priyanshu Khanagwal have named different persons and they have stated different days with respect to the alleged quarrel. In absence of any injury on the person of deceased Sheeshpal in the alleged quarrel which took place 2-3 days back or 8-10 days back with accused Dharmender or accused Raja, not informing the police regarding the alleged quarrel, apprehension of life and non-examining of any independent witness with respect to the alleged quarrel and non-production of any other evidence, the prosecution has failed to prove the motive for the commission of offence which is relevant under Sec. 8 of The Indian Evidence Act, 1872.
FIR No. 272/2015, PS: Nabi Karim, Page No. 51 of 65 State Vs. Raja & Ors.
63. PW-1 Smt. Jyoti @ Prerna deposed that on 22.05.2015, deceased Sheeshpal received phone call from accused Raja but deceased refused to go as he was busy in the Puja of his shop. She further deposed that on 23.05.2015, at about 11:00 am, accused Raja called deceased on his mobile phone and after attending the said call, deceased left the house. As per the case of prosecution, the alleged incident took place at about 06:00 pm on 23.05.2015 i.e. after about seven hours of his leaving the house. No evidence has been produced by the prosecution to show that deceased Sheeshpal was in company of accused Raja and his associates from 11:00 am till 06:00 pm and he was called by accused Raja with intention to kill him.
64. PW-1 Smt. Jyoti @ Prerna deposed that on 22.05.2015, her husband deceased Sheeshpal got phone call from accused Raja but he refused to go on that day. She further deposed that on 23.05.2015 at 11:00 am, deceased Sheeshpal again got phone call from accused Raja. PW-16 Sh. Pawan Singh, Nodal Officer, Vodafone Idea Ltd. has proved the CDR & CAF of mobile phone no. 9873602086 issued in name of Sh. Sunil Kumar, S/o Sh. Lakhi Chand and of mobile phone no. 8750533839 issued in name of deceased Sheeshpal S/o Sh. Gulzari Lal. None of the prosecution witness has deposed as to how the CDR & CAF of mobile phone no. 9873602086 issued in name of Sunil Kumar is relevant in the present case nor Sh. Sunil Kumar has been examined as PW to show as to who was using the mobile phone issued in his name. Ld. Addl. PP for the State has also submitted FIR No. 272/2015, PS: Nabi Karim, Page No. 52 of 65 State Vs. Raja & Ors.
that there is nothing on record to show as to how the CDR and CAF of mobile phone no. 9873602086 issued in name of Sunil Kumar is relevant in the present case. IO has not collected the CDR and CAF of mobile phone number issued in name of accused Raja or of any mobile phone number through which he had made call to deceased Sheeshpal on 22.05.2015 and 23.05.2015. Thus, the prosecution has failed to prove the fact that any phone call was made by accused Raja to deceased Sheeshpal on 22.05.2015 and on 23.05.2015 and after the said call, deceased Sheeshpal had left his house to meet accused Raja. This raises serious doubts on the prosecution story.
65. As per prosecution story, one blood stained knife was recovered from possession of accused Dinesh @ Sunny and two blood stained knives were recovered from possession of accused Dharmender @ Sultan (since deceased). The recovery of the case property has to be proved by the prosecution beyond reasonable doubt in compliance with the law laid down in this regard by Hon'ble Supreme Court of India. Section 27 of Indian Evidence Act is an exception to Section 25 and Section 26 of the said Act. Section 27 is based on the doctrine of confirmation by subsequent events. The principle under Sec. 27 of Indian Evidence Act is based on the principle that if any fact is discovered on the basis of disclosure statement of accused, the discovery of said fact is a guarantee that the information given by the accused in his disclosure statement is true. Such information may be confessional or non-inculpating in nature but if any new FIR No. 272/2015, PS: Nabi Karim, Page No. 53 of 65 State Vs. Raja & Ors.
fact is discovered from such information it will be considered as a reliable information.
66. The fact discovered on the basis of disclosure of statement of accused must be relevant facts. Such information must be given by the person who is accused of an offence and the recovery of article or discovery of fact must be based upon the information given by such accused.
67. Hon'ble High Court of Delhi in Judgment titled as Mohammad Burhan Vs. Directorate of Revenue Intelligence, cited as 'MANU/DE/3131/2017' has held that:- joining of "independent public witness is not mere a formality; it is a vital safeguard to avoid false implication of individual. In number of cases either no independent public witnesses are associated on the pretext that none of them is available; in some cases only passerbyes are requested to join the investigation. Non-
examination of independent public witness in the instant case is serious flaw and adverse inference is to be drawn against the prosecution for withholding them.
68. Similarly Hon'ble Supreme Court of India in Judgment titled as Ramanand@Nand Lal Bharti Vs. State of Uttar Pradesh cited as 2022 SCC online SC 1396 has observed as under:-"52.
FIR No. 272/2015, PS: Nabi Karim, Page No. 54 of 65 State Vs. Raja & Ors.
Section 27 of the Evidence Act, 1872 reads thus:-
'27 How much of information received from the 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.
If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire, in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by FIR No. 272/2015, PS: Nabi Karim, Page No. 55 of 65 State Vs. Raja & Ors.
the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of that independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two particular place anything like the weapon of offence of blood stained clothes or any other article is discovered then the part of the entire process expects the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter."
69. PW-11 SI Sandeep Godara deposed that on 24.05.2015 at about 07:45 am, he received secret information regarding the accused persons and thereafter he constituted a raiding party and apprehended accused persons namely Dharmender @ Sultan and Dinesh @ Sunny. He also deposed that one blood stained knife FIR No. 272/2015, PS: Nabi Karim, Page No. 56 of 65 State Vs. Raja & Ors.
was recovered from possession of accused Dinesh @ Sunny while two blood stained knives were recovered from possession of accused Dharmender @ Sultan which were seized by him vide seizure memo Ex. PW-11/B & Ex. PW-11/E. PW-11 SI Sandeep Godara did not join any independent public person at the time of recovery of blood stained knives Ex. P-11/1 to Ex. P-11/3 and the seizure memos do not bear signature of any independent witness despite the fact that the secret information was received by him well in advance. PW-11 SI Sandeep Godara had also not served any notice to the public persons who might have refused to join the investigation. Accused persons have taken the defence that the knives Ex. P-11/1 to Ex. P-11/3 have been planted upon them and nothing was recovered from their possession. Non-joining of any independent public person at the the recovery of knives and the defence taken by accused persons has put a serious dent on the prosecution story. Applying the law laid down by the Hon'ble Supreme Court of India in Mohammad Burhan (Supra) and Ramanand@Nand Lal Bharti (Supra), this Court is of considered opinion that due to non-joining of independent public person at the time of recovery of knives, the recovery of knives Ex. P-11/1 to Ex. P-11/3 has become doubtful. Thus, the prosecution has failed to prove the recovery of knives Ex. P-11/1 to Ex. P-11/3 from possession of accused persons namely Dharmender @ Sultan and Dinesh @ Sunny beyond reasonable doubt.
70. PW-18 IO/ACP Dhirender Sharma deposed that on 23.05.2015, a call regarding quarrel of few people at Shankar FIR No. 272/2015, PS: Nabi Karim, Page No. 57 of 65 State Vs. Raja & Ors.
Market was received at PS Nabi Karim and the said call was entrusted to ASI Virender Singh. No DD entry with respect to any call regarding the quarrel among few people has been placed on record by the IO for the reasons best known to him. PW-15 Retd. SI Virender deposed that on 23.05.2015, a call regarding stabbing vide DD No. 29A, Ex. PX-5 was received by him and thereafter he along with Ct. Pushpender reached at the spot i.e. gali opposite to 5999/2, Shankar Market. As per the contents of DD No. 29A, Ex. PX-5, one person who had sustained knife stab injury came running and fell down near the caller. DD No. 29A, Ex. PX-5 does not talk about any quarrel among few people. Thus, PW-18 IO/ACP Dhirender Sharma is not even aware about the call received at the PS and he has deposed before the court in a casual manner, which has weakened the case of prosecution.
71. PW-19 Dr. Garima Chaudhary has proved the FSL/DNA report, Ex. PW-19/A. As per report, Ex. PW-19/A, the blood of deceased Sheeshpal was found on the knives recovered from possession of accused persons namely Dharmender @ Sultan and Dinesh @ Sunny but blood could not be detected on the clothes of accused persons. Since the recovery of knives Ex. P-11/1 to Ex. P-11/3 has become doubtful, the DNA report, Ex. PW-19/A regarding the matching of blood of deceased with the blood found on the knives is of no consequences, as per the law laid down by Hon'ble High Court of Delhi in judgment titled as 'Pitambar Bishwakarma Vs. State of NCT of Delhi, Crl. Appeal No. 639/2023, decided on 10.01.2025'.
FIR No. 272/2015, PS: Nabi Karim, Page No. 58 of 65 State Vs. Raja & Ors.
72. PW-10 Dr. Kuldeep Panchal has proved the postmortem report of deceased Sheeshpal, Ex. PW-10/A. PW-10 Dr. Kuldeep Panchal deposed that all the injuries were ante-mortem in nature, fresh in duration, homicidal in manner and injury no. 2 was sufficient to cause death in ordinary course of nature. PW-10 Dr. Kuldeep Panchal also proved his subsequent opinion report regarding the weapon of offence, exhibited as Ex. PW-10/C. He further deposed that injuries no. 1, 2 & 4 could be caused by weapon found in parcel no. B and injuries no. 1, 2 & 3 could not have been caused by weapon found in parcel no. C. Since the recovery of weapon of offence in the present case has become doubtful, the accused persons cannot be connected with the injuries caused by the said knives.
73. To prove the prosecution case, the testimony of the prosecution witnesses must be reliable. It is not the quantity but the quality of the testimony of the witness that helps a court in arriving at a conclusion in any case. The test in this regard is that the evidence adduced by the parties must have a ring of truth. In a criminal trial, the prosecution has to prove the case beyond reasonable doubt and it is possible only when the testimony of prosecution witnesses is cogent, trustworthy and credible. To secure a conviction of accused, the testimony of the prosecution witness must be of sterling quality.
74. In case titled as 'Rai Sandeep @ Deepu Vs. State (NCT of Delhi), (2012) 8 SCC 21', it is held that :-
FIR No. 272/2015, PS: Nabi Karim, Page No. 59 of 65 State Vs. Raja & Ors.
"22. In our considered opinion, the "sterling witness" should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-
examination of any length and howsoever strenuous it may be and under no circumstances should given room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have corelation with FIR No. 272/2015, PS: Nabi Karim, Page No. 60 of 65 State Vs. Raja & Ors.
each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of very other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only, if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness' whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve FIR No. 272/2015, PS: Nabi Karim, Page No. 61 of 65 State Vs. Raja & Ors.
the other supporting materials for holding the offender guilty of the charge alleged."
75. Similarly, in case of Ramdas Vs. State of Maharashtra, (2007) SCC 170, it is held that :
"23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances with cast of shadow of doubt over her veracity. It the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not fine her evidence to be of such quality."
76. Thus, from the above said judgments, it is clear that the version of the witness should be natural one and it must corroborate the prosecution case. Such version must match with the testimony of other prosecution witnesses. It should be of such a quality that there should not be any shadow of doubt upon it.
77. Due to turning of hostile of PW-5 Sh. Ajay and PW-8 Sh. Vicky with respect to role of accused persons and material contradictions in the testimonies of PW-2/complainant Ct. Vijay Kumar and PW-6 Ct. Dinesh, failing of TIP of accused Dharmender @ Sultan by PW-2/complainant Ct. Vijay Kumar FIR No. 272/2015, PS: Nabi Karim, Page No. 62 of 65 State Vs. Raja & Ors.
and non-seeing of commission of offence by PW-2/complainant Ct. Vijay Kumar and PW-6 Ct. Dinesh serious doubts have been created upon the prosecution story. The versions of PW-2/ complainant PW-2/complainant Ct. Vijay Kumar and PW-6 Ct. Dinesh are not natural one. The things appears to have not happened in the manner these have been projected. In the light of aforesaid discussion, this court is of the considered opinion that the testimonies of PW-2/complainant Ct. Vijay Kumar and PW-6 Ct. Dinesh are not clear, cogent, credible and trustworthy and same are not corroborated by other material evidence. The testimonies of PW-2/complainant Ct. Vijay Kumar and PW-6 Ct. Dinesh in the present case cannot be said to be of sterling quality to secure the conviction of the accused persons.
78. It is established principle of law that if two views are possible, the view favourable to the accused must be accepted. The benefit of doubt must always go to the accused as the prosecution has to prove the case beyond reasonable doubt.
79. The Hon'ble Apex court in Rang Bahadur Singh Vs. State of U.P. reported in AIR 2000 SC 1209 has held as follows:
"The timetested rule in that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, FIR No. 272/2015, PS: Nabi Karim, Page No. 63 of 65 State Vs. Raja & Ors.
without having at least a reasonable level of certainty that the appellants were the real culprits."
80. In yet another decision in State of U.P. Vs. Ram Veer Singh and Another reported in 2007(6) Supreme 164 the Hon'ble Apex Court has held as follows:
"The golden thread which runs through the web of administration of justice in criminal cases is that if two view are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to reappreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not."
81. In the present case, due to turning of hostile of PW-5 Sh. Ajay and PW-8 Sh. Vicky with respect to role of accused FIR No. 272/2015, PS: Nabi Karim, Page No. 64 of 65 State Vs. Raja & Ors.
persons, material contradictions in the testimonies of PW-2/ complainant Ct. Vijay Kumar and PW-6 Ct. Dinesh, failing of TIP of accused Dharmender @ Sultan by PW-2/complainant Ct. Vijay Kumar, not conducting of TIP of accused persons through PW-6 Ct. Dinesh, non-seeing of commission of offence by PW-2/complainant Ct. Vijay Kumar and PW-6 Ct. Dinesh, non- examination of any independent witness, doubtful recovery of weapons of offence and non-proving of motive of commission of offence, serious doubts have been created on the prosecution story and two views are possible in this case and hence the benefit of the same must go to the accused persons.
82. For the reasons stated above, this court is of the considered opinion that the prosecution has failed to prove the ingredients of offence punishable under Section 302/34 IPC, against all the three accused persons beyond reasonable doubt.
83. Accordingly in view of the aforesaid discussion, accused persons namely Raja, Dinesh @ Sunny @ Suresh and Ricky @ Budhram are hereby acquitted for offence punishable under Section 302/34 IPC.
84. File be consigned to Record Room after due compliance.
Digitally signed
VIRENDER by VIRENDER
Announced in the open court KUMAR
KUMAR
KHARTA
on 31st day of May, 2025 KHARTA Date: 2025.05.31
16:07:31 +0530
(Virender Kumar Kharta)
ASJ/FTC-02(CENTRAL)
TIS HAZARI COURTS:DELHI:31.05.2025
FIR No. 272/2015, PS: Nabi Karim, Page No. 65 of 65
State Vs. Raja & Ors.