Delhi District Court
State vs Sharvan Kumar @ Ashu Ors on 19 April, 2025
IN THE COURT OF SH. KUMAR RAJAT,
ADDL. SESSIONS JUDGE-07, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI
IN THE MATTER OF :
CNR No. DLSH01-008155-2020
SC No. 249/2020
FIR No. 68/2020
PS Anand Vihar
STATE
VS.
1. SHARVAN KUMAR @ ASHU,
S/o Sh. Chhatar Singh,
R/o H.No. 435, Teliwada,
Shahdara, Delhi.
2. SACHIN KUMAR @ GANJA,
S/o Sh. Anand Kumar,
R/o H.No. 328, Gali No. 3,
Harsh Bhagat Vihar,
Karawal Nagar,
Delhi.
......Accused Persons
Date of Institution of case 19.12.2020
Date of case reserved for 05.04.2025
Judgment
Judgment Pronounced on 19.04.2025
Decision Acquitted
State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 1 of 48
Digitally signed
KUMAR by KUMAR
RAJAT
RAJAT Date: 2025.04.19
16:10:00 +0530
JUDGMENT
BRIEF FACTS OF THE CASE
1. As per the case of prosecution, on 19.02.2020, one dead body was recovered near Aditya Mall, Karkardooma and DD No. 30A in this regard was assigned to ASI Harender Singh, who reached the spot at CBD Ground and the deceased was identified as Jaipal Singh. Crime team was called, photographs were taken and dead body was sent to Dr. Hedgewar Hospital where he was declared brought dead. As per PMR, the cause of death was hemorrhagic shock consequent to inquiry to the abdomen. All injuries are ante mortem in nature, fresh in duration prior to death and caused by blunt force impact.
2. Complainant Seema, W/o deceased Jaipal stated that deceased was driver and he was searching for work and on 18.02.2020 at about 8.30 AM, he received a call on his phone and he left on his motorcycle bearing no. DL 14SF 5463 saying that somebody had called for trial and he was carrying Oppo Mobile Phone having 2 SIM cards and he had ATM Card (BOI), RC, DL etc. in his purse and at about 10.30 AM, he called her and told that he was giving trial and would come in the evening and his phone switched off after 2 PM and on 19.02.2020, she received phone from police about the death of Jaipal and she identified his body at Dr. Hedgewar Hospital.
3. On the said statement and the considering the nature of injury of the deceased, the FIR was registered vide FIR No. 68/2020 dated 21.02.2020 in PS Anand Vihar u/s 302 IPC. After investigation, charge sheet was filed against accused Sharvan State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 2 of 48 Digitally signed KUMAR by KUMAR RAJAT RAJAT 16:10:06 Date: 2025.04.19 +0530 Kumar @ Ashu and Sachin Kumar @ Ganja u/s 302/34 IPC and after filing of charge sheet, cognizance of offences was taken against the accused persons.
CHARGE
4. Charge for the offences punishable u/s 302 r/w 34 IPC and u/s 394/397 r/w 34 IPC and Section 411 IPC was framed against accused Sharvan Kumar @ Ashu and Sachin Kumar @ Ganja by Ld. Predecessor on 09.11.2021. Accused persons pleaded not guilty and claimed trial.
ADMISSION / DENIAL OF DOCUMENTS
5. Admission/denial of documents u/s 294 Cr.P.C. (330 BNSS) was conducted on 14.02.2023, 28.09.2024 & 15.01.2025. Accused persons, vide their separate statements recorded on the abovesaid date, had not disputed the following documents:
(i) MLC No. 661/2020 dt. 19.02.2020 of deceased Jaipal Singh prepared by Dr. Shishir Vishwakarma, CMO, Hedgewar Hospital, Ex.P/AD1.
(ii) Post-mortem Report No. 220/2020 dt. 20.02.2020 of the deceased Jaipal Singh and subsequent opinion upon it dt. 02.05.2020 prepared by Dr. Sandeep Garg, Senior Department of Forensic, Aruna Asif Ali Hospital, Ex.P/AD2 and Ex.P/AD3.
(iii) Letter No. BOI/SHAH/ADMN/SKR2 019-2020 dt. 11.03.2020 in respect of ATM Card No. 6521659906049598, Ex.P/AD4.
(iv) Statement of witnesses Surender Srivastava @ Sonu and Ashish Thapa dt. 22.02.2020 recorded u/s 161 Cr.PC (without admitting the contents in the statements) recorded by Sh. Abhinav Jain, Ld. MM-05, State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 3 of 48 Digitally signed by KUMAR KUMAR RAJAT Date:
RAJAT 2025.04.19 16:10:11 +0530 SHD, KKD Court, Ex.P/AD5 and Ex.P/AD6.
(v) DD No. 30A dt. 19.02.2020 recorded by W/HC Renu PS Anand Vihar, Delhi, Ex.P/AD7.
(vi) RC No. 24/21/2020 for deposition of the viscera sample in sealed glass jar and blood sample of deceased in sealed plastic tube, Ex.PA8.
(vii) Acknowledgment receipt dt. 06.03.2020, Ex.PA9.
(viii) RC No. 42/21/2020 pertaining to FIR No. 68/2020 u/s 302/34 IPC of PS Anand Vihar regarding subsequent opinion on sealed stone i.e. weapon of offence recovered on the pointing out of accused dt. 02.05.2020, Ex.PA10.
(ix) Entries in Register No. 19/21 (colly), Ex.PA11.
(x) PCR form dt. 19.02.2020, Ex.PA12.
(xi) FSL Report dt. 06.07.2020 prepared by Saurabh Pathak (JR), FSL Rohini, Delhi, Ex.PA13.
(xii) FSL Report dt. 20.07.2020 prepared by Prem Pal Singh, SR, FSL Rohini, Delhi, Ex.PA14.
(xiii) CDR, CAF of mobile No. 8447608754 (vodafone) along with certificate u/s 65B IEA, Ex.PA15 (colly).
(xiv) CDR, CAF of mobile No. 8700053662 (JIO) along with certificate u/s 65B IEA, Ex.PA16 (Colly).
In view of above-said admission, the requirement of evidence of following witnesses was dispensed with :
(a) Dr. Shishir Vishwakarma(mentioned at Sl. No. 9 in the list of witnesses),
(b) Dr. Sandeep Garg (mentioned at Sl. No. 10 in the list of witnesses),
(c) Sunil Kumar (mentioned at Sl. No. 11 in the list of witnesses),
(d) Sh. Anubhav Jain, Ld.MM (mentioned at Sl.State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 4 of 48 Digitally signed
KUMAR by KUMAR RAJAT RAJAT 16:10:15 Date: 2025.04.19 +0530 No. 12 in the list of witnesses),
(e) W/HC Renu (mentioned at Sl. No. 23 in the list of witnesses),
(f) Ct. Nahar Singh (mentioned at Sl. No. 18 in the list of witnesses), (g) MHCM, Anand Vihar (mentioned at Sl. No. 22 in the list of witnesses).
(h) Ct. Sanju Yadav (mentioned at Sl. No. 24 in the list of witnesses).
(i) Ct. Gaurav (mentioned at Sl. No. 16 in the list of witnesses).
(j) Sh. Saurabh Pathak (JR), FSL, Rohini, (mentioned at Sl. No. 2 in the supplementary list of witnesses).
(k) Sh. Prem Pal Singh (SR), FSL, Rohini, Delhi (mentioned at Sl. No. 1 in the supplementary list of witnesses).
(l) Nodal Officer, Vodafone, Delhi Circle (mentioned at Sl. No. 3 in the supplementary list of witnesses).
(m) Nodal Officer, JIO, Delhi Circle (mentioned at Sl. No. 4 in the supplementary list of witnesses).
(n) Inspector Jaishree (mentioned at Sl. No. 6 in the supplementary list of witnesses).
PROSECUTION EVIDENCE
6. Prosecution examined 15 witnesses in its favour to prove the case.
7. PW1 Surender Srivastava @ Sonu deposed that in the year 2020, his father was running a tea stall (khokha) opposite to exit gate of Aditya Mall and Cross River Mall, CBD Ground, near BSES, Anand Vihar and PW1 used to help his father at the above said tea stall (khokha). On 18.02.2020, at about 12:00 noon, he along with his sister Sunita was playing in CBD Ground near his tea stall (khokha). In the meantime, one unknown person came there and he sat between the place where they were State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 5 of 48 Digitally signed by KUMAR KUMAR RAJAT Date: RAJAT 2025.04.19 16:10:22 +0530 playing. PW1 asked him to move from there, but he refused. Thereafter, PW1 along with his sister went away from there and they reached at their tea stall. Thereafter, at about 12:30 pm, he along with his sister left their tea stall for going to their rented room which was situated at H. No. 21/1, Arya Nagar, Anand Vihar, Delhi. Next day at about 10:00-10:30 am, when PW1 reached at his tea stall, his father was not found there and security guard of the mall informed PW1 that his father was taken to the PS by police officer and police officers obtained his signatures on 3-4 pages.
8. PW1 further deposed that 3-4 police officers of PS Anand Vihar had threatened him that his father would be implicated in the murder case. PW1 stated that he had not seen the murder of the person, who came to them on 18.02.2020 when they were playing at CBD Ground. On 21.02.2020 at about 08:00-08:30 pm, one police officer recorded his statement at PS Anand Vihar. Later on, his statement was also recorded before Ld. MM, who recorded his statement in the chamber and at that time, himself and Ld. MM were present inside the chamber and there was no other person present inside there. PW1 had correctly identified the signature on the statement u/s 164 Cr.PC, Ex.PW1/A. PW1 has deposed that he did not know accused persons and stated that he did not make such long statement, Ex.PW1/A and did not identify either of them.
9. PW1 admitted in the cross-examination of Ld. Addl. PP that on 22.02.2020, his statement was recorded by Ld. MM, wherein he had not stated that he was giving the statement before State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 6 of 48 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2025.04.19 16:10:27 +0530 him under any pressure and threat. PW1 had stated to Ld. MM that on 18.02.2020 at about 12:30 pm, he along with his brother and sister was playing cricket at CBD Ground, near Cross-river mall and on that day, liquor shops were closed due to dry day.
10. PW1 further admitted that he stated to Ld. MM that he knew accused Sharvan Kumar and Ganja @ Sachin Kumar prior to the present incident and they were selling the liquor in black and used to roam around near his shop after consuming liquor and on that day, one quarter bottle of liquor of accused persons was stolen or that thereafter, accused persons had caught hold a man in CBD Ground and made allegation of stealing the quarter bottle or that they started beating him. PW1 further admitted during cross-examination by Ld. Addl. PP that he had stated in a different manner i.e. he and his sister were playing there. PW1 stated to Ld. MM that accused Sharvan Kumar had picked a big and heavy stone and hit the said man on his chest and abdomen or that accused Ganja had also hit the said man with the same stone several times or that the said man fell down in unconscious (adhmara) condition or that thereafter, accused persons took out ATM, key of vehicle and mobile of the said person and went away or that accused Ganja had also torn his pant or that they had threatened PW1 and his brother and sister, not to disclose about the incident to anyone and due to threat, they were frightened and went away from there. PW1 reiterated the statement made by him before the Ld. MM u/s 164 Cr.PC before the IO on 21.02.2020, Ex.PW1/B, in which he had told that there was scuffle between accused persons and the deceased, who stated that he had not State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 7 of 48 KUMAR Digitally signed by KUMAR RAJAT RAJAT 16:10:31 +0530 Date: 2025.04.19 stolen any quarter bottle, but still the accused persons had beaten him with fist and leg blows.
11. PW2 ASI Ajay Kumar deposed that on 21.02.2020, he was posted as ASI at PS Anand Vihar. On that day, he was working as duty officer and his duty hours were from 04:00 pm to 12:00 midnight. At about 06:30 pm, ASI Harender handed over rukka to PW2. On the basis of said rukka, FIR was registered, Ex.PW2/A (OSR), on the directions of SHO and investigation of the present case was marked to Insp. Ranjan Kumar. Original rukka and copy of FIR were handed over to Insp. Ranjan Kumar and copies of FIR were sent to concerned ACMM, Joint CP and DCP through Special Messenger Ct. Gaurav. PW2 made endorsement on the rukka, Ex.PW2/B and also issued certificate u/s 65B IEA pertaining the present FIR, Ex.PW2/C.
12. PW3 Seema deposed that she was running a beauty parlour and her husband Lt. Sh. Jaipal Singh was driver by profession. On 18.02.2020 at about 08:30 - 09:00 am, her husband left the house on his motorcycle. At about 10:30 am, she received a phone from her husband, who told her that he was going for a trial of a vehicle as driver for a new job. At that time, her husband was having a mobile phone of OPPO Company having two SIMs, one ATM card of Bank of India, school fee slip of her son Gaurav, some money, his driving licence and RC of motorcycle.
13. PW3 further deposed that perhaps only one SIM/mobile number was active. She did not remember the State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 8 of 48 KUMAR Digitally signed by KUMAR RAJAT RAJAT 16:10:36 +0530 Date: 2025.04.19 mobile number of her husband, but she could tell the same after going through the contact list of her mobile phone. At around 04:00 - 04:30 pm, she tried to call her husband, but his mobile was not reachable. On 19.02.2020 at about 02:00 - 02:30 pm, some police persons visited her house and told her about a dead body. Her brother-in-law (jeth) along with his son and other persons went to Dr. Hedgewar Hospital and identified the dead body as body of her husband Jaipal Singh. Later on, she came to know that her husband was murdered by someone, who was arrested by police. PW3 could have identified the OPPO mobile phone, ATM Card of BOI, motorcycle and its key, belonging to her husband, but same were not disputed by accused persons.
14. PW4 Master Ashish Thapa deposed that he was student of class 6th and he did not recollect the date, month and year, but about one or two years back, he along with Sonu Bhaiya had gone to police station as he was crying as his father was taken away by the police to PS from his tea shop at Cross River Mall. They went to the PS at around 06:00-07:00 pm. PW4 remained in the PS till 08:00-09:00 pm. Statement of PW4 was recorded by the Ld. MM.
15. PW5 Virender Singh deposed that he was working as Section Supervisor in MTNL Delhi and on 19.02.2020 in the afternoon, he received information from the police that one dead body has been found in Anand Vihar and from his possession one RC and DL in the name of Jaipal Singh has also been found. PW5 immediately reached at CBD Ground, Anand Vihar where he identified the dead body of his younger brother Jaipal Singh.
State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 9 of 48 Digitally signedKUMAR by KUMAR RAJAT RAJAT 16:10:41 Date: 2025.04.19 +0530 PW5 along with wife of his younger brother Jaipal Singh reached at Hedgewar Hospital and on 20.02.2020, he identified the dead body of his younger brother Jaipal Singh in the mortuary vide memo, Ex.PW5/A. After postmortem, the body of his younger brother was handed over and his cremation was conducted. He came to know from the postmortem report that his brother died due to injuries.
16. PW6 Retd. SI Rajender Singh deposed that on 21.02.2020, he was posted as SI at PS Anand Vihar and on that day, he joined the investigation of the present case along with IO/Insp. Ranjan Kumar, who recorded the statement of wife of deceased namely Smt. Seema u/s 161 Cr.PC. PW6 along with Insp. Ranjan Kumar, Ct. Mahesh and ASI Harinder went to the place of incident i.e. in front of Aditya Mall, near CBD Ground where IO/Insp. Ranjan Kumar prepared the site plan at the instance of ASI Harinder Singh. IO searched for the eye- witnesses nearby. Two persons Surender Srivastava and Ashish Thapa met them at Tea Shop nearby. IO interrogated both of them, who were the eye-witnesses of the incident and recorded their statements. Both of them stated that accused Sharvan Kumar and Sachin Kumar @ Ganja had killed the deceased Jaipal Singh. They along with Surender Srivastava went in search of accused Sharvan Kumar and Sachin Kumar @ Ganja and at about 10:15 pm, reached at T-point near Cross-River Mall (CR Mall), CBD Ground, Delhi. Surender @ Sonu pointed towards accused Sharvan Kumar and Sachin Kumar and on his identification, they were apprehended and interrogated by the IO State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 10 of 48 Digitally signed KUMAR by KUMAR RAJAT RAJAT 2025.04.19 Date:
16:10:47 +0530 in his presence and they were arrested in this case and arrest memo of accused Sharvan Kumar and Sachin Kumar @ Ganja, Ex.PW1/D and Ex.PW1/C. They were personally searched vide memos, Ex.PW6/A and Ex.PW6/B and their disclosure statements were recorded by the IO vide disclosure statements, Ex.PW6/C and Ex.PW6/D respectively. At the time of above said proceedings, IO had asked the public persons to join the proceedings, but they refused the same stating their reasonable causes and left from there without disclosing their names and addresses.
17. PW6 further deposed that they all came back to the PS Anand Vihar and in the PS, accused Sharvan Kumar stated to the IO that he was not feeling well, so he was taken to LNJP Hospital for his treatment and Sachin Kumar @ Ganja was taken to Dr. Hedgewar Hospital for his medical examination. After medical examination, accused Sachin Kumar @ Ganja was brought to the PS and kept in the lock-up, while accused Sharvan Kumar remained admitted in the LNJP Hospital. On 22.02.2020 at about 02:00 pm, he joined the investigation with the IO. During the course of investigation, accused Sachin Kumar @ Ganja led the police party i.e. IO/Insp. Ranjan Kumar, himself and Ct. Amit in front of Aditya Mall, CBD Ground behind BSES Office from where accused Sachin Kumar @ Ganja pointed out the place of incident in CBD Ground and produced a piece of concrete stone, which was used in the incident before the IO, who kept the said concrete stone in a white cloth and converted it into pulanda and sealed with the seal of RK, vide seizure memo, Ex.PW6/E and State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 11 of 48 Digitally signed KUMAR by KUMAR RAJAT RAJAT 2025.04.19 Date:
16:10:52 +0530 seal after use, was handed over to PW6.
18. PW6 further deposed that IO also prepared the site plan of recovery of said concrete stone, vide site plan, Ex.PW6/F. At the time of above said proceedings, IO had asked the public persons to join the proceedings, but they refused the same stating their reasonable causes and left from there without disclosing their names and addresses. Two days PC remand of Sachin Kumar @ Ganja was obtained and he was medically examined in Dr. Hedgewar Hospital and above said pulanda of the case property was deposited in malkhana. Thereafter, in the evening time on the same day, accused Sachin led the said police party to his house i.e. H. No. 328, Gali No. 3, Bhagat Vihar, Karawal Nagar, Delhi from where he produced key of the bike of deceased after taking it out from the drawer of dressing table, before the IO, who seized it, vide seizure memo, Ex.PW6/G after converting it into a pulanda and sealed with the seal of RK. IO prepared the site plan of the place of recovery of the said key, Ex.PW6/H and at that time no public person joined the proceedings citing their excuses and did not disclose their names.
Seal after use, was handed over to PW6. Thereafter, they came back in the PS Anand Vihar and sealed pulanda of the case property was deposited in malkhana.
19. PW6 further deposed that on 23.02.2020, he along with Ct. Sompal joined the investigation with the IO. On that day, at about 10:00 am, accused Sachin Kumar @ Ganja led the above said police party to the Shivam Enclave in front of CBD Ground from where he took them to the puliya of Nala at T-point and State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 12 of 48 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2025.04.19 16:10:57 +0530 pointed out towards the Nala and told IO that he had thrown mobile phone of deceased in the said nala. Accused Sachin took out the mobile phone of deceased in damaged condition from the said nala and produced before the IO, who seized it after converting it into pulanda and sealed with the seal of RK vide seizure memo of damaged/broken mobile phone make OPPO, Ex.PW6/I. IO prepared site plan of recovery of said mobile phone, Ex.PW6/J. At the time of above said proceedings, IO asked the public persons to join the proceedings, but they refused the same stating their reasonable causes and left from there without disclosing their names and addresses. Seal after use, was handed over to PW6. Thereafter, they came back in the PS Anand Vihar and sealed pulanda of the case property was deposited in the malkhana.
20. PW6 further deposed that on 29.02.2020, he again joined the investigation with the IO and Ct. Sompal. One day PC remand of accused Sharvan Kumar was obtained and he led police to CBD Ground in front of Aditya Mega Mall and he pointed out the place of incident and pointing out memo, Ex.PW6/K, was prepared by the IO at his instance. Thereafter, accused Sharvan Kumar took them in front of Park Plaza Hotel in CBD Ground from where he got recovered ATM Card of the deceased from near a tree and produced it before the IO, who seized the same after converting it into a pulanda and sealed with the seal of RK, vide seizure memo of ATM Card (BOI), Ex.PW6/L. State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 13 of 48 Digitally signed KUMAR by KUMAR RAJAT RAJAT 16:11:02 Date: 2025.04.19 +0530
21. PW6 further deposed that IO prepared the site plan of place of recovery of the said ATM Card, Ex.PW6/M. At the time of above said proceedings, IO had asked the public persons to join the proceedings, but they refused the same stating their reasonable causes and left from there without disclosing their names and addresses. Seal after use, it was handed over to PW6. Thereafter, they came back in the PS Anand Vihar and sealed pulanda of case property was deposited in the malkhana. PW6 had correctly identified one piece of concrete stone (pathar), Ex.P1, two keys along with a challa (on the key words Honda were engraved), Ex.P2 (colly) and one broken mobile, Ex.P3, which were got recovered by accused Sachin Kumar @ Ganja and also identified one ATM Card, Bank of India, Ex.P4, which was got recovered by accused Sharvan Kumar. PW6 had correctly identified accused Sharvan Kumar and Sachin Kumar @ Ganja in the court.
22. PW7 Rohit Singh deposed that on 19.02.2021 at about 12:30 pm, he along with his friend Deepak went to Makika Bar/Restaurant at CR Mall, Karkardooma, Delhi (in which he was working as a cleaner) for washroom. PW7 saw that in front of above said restaurant i.e. CBD Ground, one person was lying, covered with the blanket and he tried to awake that person and found him unconscious and he called at 100 number from his mobile number.
23. PW8 HC Naresh Kumar deposed that on 19.02.2020, he was posted as HC in Crime Team, District Shahdara and working as photographer. On that day, at about 02:00 pm, on State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 14 of 48 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2025.04.19 16:11:07 +0530 receiving DD No. 30A, PS Anand Vihar, he along with HC Rajesh and HC Ashok went to the spot i.e. CBD Ground, Near CR Mall, Anand Vihar where on the instructions of ASI Harinder, PW8 took the 18 photographs from different angles of the spot and nearby area, which are Ex.PX1 (Colly). PW8 prepared a CD of the above said photographs and handed over the same along with certificate u/s 65B IEA, Ex.PW8/A.
24. PW9 Retd. ACP Mahesh Kumar deposed that on 17.04.2020, he was posted as Inspector Draftsman, Crime Branch, Police Headquarters, Delhi. On that day, on the request of Insp. Ranjan Kumar of PS Anand Vihar, PW9 visited the place of incident i.e. CBD Ground, Opposite Aditya Mega Mall, Delhi and took measurement of spot and prepared the rough notes at the instance of Insp. Ranjan Kumar. Thereafter, on 30.04.2020, he prepared the scaled site plan, Ex.PW9/A and handed over the same to Insp. Ranjan Kumar and destroyed the rough notes of the same.
25. PW10 Ct. Amit deposed that on 22.02.2020, he was posted as Constable at PS Anand Vihar and on that day, he joined the investigation of the present case along with IO/Insp. Ranjan Kumar and SI Rajinder and on that day at about 02:00 pm, Sachin Kumar was in police custody and he took them to CBD Ground, Anand Vihar and he pointed out the place of incident i.e. CBD Ground, behind BSES Office, in front of Aditya Mall, Anand Vihar, Delhi and got recovered one piece of concrete stone and he disclosed that he had used the same for committing murder of deceased.
State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 15 of 48 Digitally signedKUMAR by KUMAR RAJAT RAJAT Date: 2025.04.19 16:11:12 +0530
26. PW10 further deposed that IO wrapped the above said piece of stone in a white colour cloth and then sealed the same with the seal of 'RK' and seized it vide seizure memo/pointing out memo, Ex.PW6/E. IO also prepared sketch of the place of recovery of above said stone, Ex.PW6/F. Accused Sachin Kumar took them to his house i.e. H. No. 328, Gali No. 3, Bhagat Vihar, Karawal Nagar, Delhi and disclosed that he could get recover the key of bike from his house and he took out the same key along with challa from dressing table from his room, which was at the 2nd floor, which was seized by the IO vide seizure memo, Ex.PW6/G after sealing the same with the seal of 'RK'. Thereafter, they returned to the PS and case property was deposited in the malkhana. Seal after use was handed over to the IO. PW10 had correctly identified one concrete stone (patthar), Ex.P1 and one key along with challa (upon which word Honda are engraved), Ex.P2 which were got recovered by accused Sachin. PW10 had correctly identified accused Sachin Kumar @ Ganja in the court.
27. PW11 HC Sompal deposed that on 23.02.2020, he was posted as Constable at PS Anand Vihar and on that day, he joined the investigation of the present case along with IO/Insp. Ranjan Kumar and SI Rajinder. On that day at about 10:00 am, accused Sachin Kumar @ Ganja, who was in police custody, took them to Shivam Enclave, Near Guru Govind University Gate. Then he pointed out towards the place i.e. at the corner of open drain (naala) at T-point, in front of Shivam Enclave, Near Guru Govind University Gate, Delhi where he had thrown away the State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 16 of 48 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2025.04.19 16:11:17 +0530 robbed mobile phone and got recovered one broken mobile phone (make OPPO) and disclosed that it was the same mobile which was thrown away by him after the incident.
28. PW11 further deposed that IO put the same in a transparent plastic box and wrapped it with doctor tape and then sealed the same with the seal of 'RK' and seized it vide seizure memo/pointing out memo, Ex.PW6/I. Seal after use was handed over to SI Rajinder. On 29.02.2020, he along with SI Rajinder joined the investigation of the present case with IO/Insp. Ranjan Kumar. On that day, one day PC remand of accused Sharvan Kumar was taken and he was medically examined at Dr. Hedgewar Hospital. Accused Sharvan Kumar took them to the place of incident i.e. CBD Ground, behind BSES Office, in front of Aditya Mall, Anand Vihar, Delhi and disclosed that it was the place where he along with accused Sachin had committed the murder of deceased on 18.02.2020. IO prepared the pointing out memo, Ex.PW6/K. Thereafter, accused Sharvan Kumar took them to the bushes situated in CBD Ground, in front of Park Plaza Hotel, Anand Vihar, Delhi and disclosed that he could get recover the robbed ATM Card of deceased and thereafter, he produced one ATM card (Bank of India, Platinum International Debit Card No. 6521659906049598) from the above said bushes.
29. PW11 further deposed that then IO put it in a plastic container/box and wrapped it with doctor tape and then sealed the same with the seal of 'RK' and seized the same vide seizure memo, Ex.PW6/L. Seal after use was handed over to SI Rajinder. PW11 had correctly identified one broken mobile phone, Ex.P3 State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 17 of 48 Digitally signed by KUMAR KUMAR RAJAT Date:
RAJAT 2025.04.19
16:11:22
+0530
(make OPPO and the other details mentioned as per the seizure memo, Ex.PW6/I were mentioned on the battery of it), which was got recovered by accused Sachin Kumar and also correctly identified said ATM card of BOI, Ex.P4, which was got recovered by accused Sharvan Kumar. PW11 had correctly identified accused Sharvan Kumar and Sachin Kumar @ Ganja in the court.
30. PW12 HC Pramod deposed that on 11.03.2020, he was posted as Constable at PS Anand Vihar. On that day as per direction of the IO/Insp. Ranjan Kumar, he collected one sealed pullanda and one sealed envelope from MHC(M) vide RC No. 28/21/2020, Ex.PW12/A and deposited the same in FSL Rohini and handed over the acknowledgment receipt to the MHC(R), Ex.PW12/B. There was no tampering with the above said pullanda and envelope during the period it remained in his possession.
31. PW13 HC Mahesh Kumar deposed that on 19.02.2020, he was posted as Constable at PS Anand Vihar and on that day, he was present in his beat area. At about 01:15 pm, information about one dead body being found near Aditya Mall, CBD Ground was received. PW13 went to the spot i.e. behind BSES Office, CBD Ground, Delhi. In the meantime, ASI Harender also reached there and they found that one dead person, aged about 40 years and height of 5 feet having blood on his mouth, was found lying there and one old green and white colour blanket was spread over him.
State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 18 of 48 Digitally signed by KUMAR KUMAR RAJAT
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32. PW13 further deposed that there was one black colour purse containing some visiting cards, RC and one DL were found at a distance of around 5 ft. from the body. The DL was found to be in the name of Jai Pal Singh, S/o Malkhan Singh. One sports shoes (blue colour), one pair of socks (blue colour) and one dark grey colour pant's piece were found at a distance around 7 ft. from the body. From the DL and RC, IO/ASI Harender came to know about Virender (brother of deceased) and he was called at the spot and identified his brother. IO called crime team at the spot, who had taken photographs of the spot and also inspected the spot. IO seized the above said purse (containing some visiting cards, RC and one DL), sports shoes, socks, piece of pant and blanket after wrapping the same in a white colour cloth and sealed it with the seal of 'JS' vide seizure memo, Ex.PW13/A. PW13 took the dead body of deceased to Dr. Hedgewar Hospital and that person was declared as brought dead vide MLC No. 640/2020 and thereafter, the dead body was taken to Subji Mandi Mortuary.
33. PW13 further deposed that he returned back to the spot where one motorcycle bearing no. DL14SF5463 along with one helmet were found parked in the parking area of cross river mall, which was seized vide seizure memo, Ex.PW13/B. On 21.02.2020, PW13 again joined the investigation of the present case along with Insp. Ranjan Kumar (2 nd IO), ASI Harender and SI Rajender and they went to the spot and on the identification of 1st IO Harender, site plan was prepared by Insp. Ranjan Kumar at the instance of ASI Harender and search for the eye-witnesses State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 19 of 48 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2025.04.19 16:11:33 +0530 was made. Two boys Surender Srivastava and Ashish Thapa disclosed that on 18.02.2020 at about 12:00 noon, when they were standing behind BSES Office, CBD Ground, Aditya Mega Mall and accused Sharvan Kumar and Sachin Kumar @ Ganja, known to them, were roaming there and after consuming liquor, they had beaten one person with fist and blows and also with stone and they had taken away the articles of that person.
34. PW13 further deposed that IO/Insp. Ranjan Kumar recorded the statement of eye-witnesses Surender Srivastav and Ashish Thapa. Thereafter, they along with Surender Srivastav made search of the accused persons nearby Cross River Mall and at about 10:00 pm, accused Sharvan Kumar and Sachin Kumar @ Ganja were apprehended at T-point, CR Mall near CBD Ground on the identification of Surender @ Sonu. Accused Sharvan and Sachin Kumar @ Ganja were arrested vide arrest memos, Ex.PW1/D and Ex.PW1/C and personally searched vide memos, Ex.PW6/A and Ex.PW6/B and their disclosure statements were also recorded, Ex.PW6/C and Ex.PW6/D respectively. Both accused persons were taken to the Hedgewar Hospital for medical examination and during medical examination of accused Sharvan Kumar, he was found ill, so he was taken to LNJP Hospital for his medical treatment.
35. PW13 had correctly identified one black colour purse (containing some visiting cards, RC and one DL), one blanket (green and white colour), one sports shoes (black colour), one pair of socks (blue and grey colour) and one piece of pant (dark grey colour), Ex.P5 (Colly). PW13 had correctly identified State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 20 of 48 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2025.04.19 16:11:40 +0530 accused Sharvan @ Ashu and Sachin Kumar @ Ganja in the court.
36. PW14 Insp. Ranjan Kumar Singh deposed that on 21.02.2020, he was posted as Inspector (ATO) at PS Anand Vihar and further investigation was marked to him. During course of investigation, he recorded the statement of Smt. Seema, u/s 161 Cr.PC. PW14 along with SI Rajender, ASI Harender and Ct.
Mahesh reached at the spot i.e. CBD Ground opposite Aditya Mega Mall, Anand Vihar and he prepared the site plan, Ex.PW14/A at the instance of ASI Harender and also inquired from the nearby persons and from the inquiry, two persons Surender Srivastava and Ashish were found nearby the jhuggis from the spot. PW14 interrogated above said persons and recorded their statements as they were eye-witnesses of the incident. As per their statements, accused Sharvan Kumar @ Ashu and Sachin Kumar @ Ganja had murdered the deceased Jaipal Singh on the date of incident i.e. 18.02.2020. As per the statement of Surender Srivastava, his father was running a tea stall near the aforesaid spot and also used to help his father in his work.
37. PW14 further deposed that witness Surender disclosed that on 18.02.2020 at about 12:00 noon, one person came at their shop and after some, accused Sharvan Kumar and Sachin Kumar @ Ganja came there in drunken condition and started abusing the said person and started beating him and accused Sharvan Kumar @ Ashu lifted a stone from nearby and gave blow to that person with it in his stomach and accused Sachin Kumar @ Ganja took State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 21 of 48 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2025.04.19 16:11:45 +0530 out purse, mobile and key of bike from his wearing pant and while fleeing from there and they threatened him and his friend Ashish not to disclose the incident to anyone.
38. PW14 further deposed that on the identification of Surender Srivastava, accused Sharvan @ Ashu and Sachin Kumar were apprehended from T-point, CBD Ground, Anand Vihar and arrested vide memo, Ex.PW1/D and Ex.PW1/E and personally searched, vide memos, Ex.PW6/A and Ex.PW6/B respectively and their disclosure statements were recorded, vide Ex.PW6/C and Ex.PW6/D and they were medically examined at Hedgewar Hospital and accused Sharvan Kumar was referred to LNJP Hospital.
39. PW14 further deposed that on 22.02.2020, accused Sachin @ Ganja took police to place of incident and got recovered piece of concrete stone behind BSES Office, CBD Ground which was used for committing murder of deceased Jaipal Singh. PW14 prepared site plan of recovery Ex.PW6/F and wrapped stone in white cloth and sealed with seal of RK and seized vide memo, Ex.PW6/E. Accused Sachin @ Ganja took police to his house i.e. 328, Gali NO. 3, Bhagat Vihar, Karawal Nagar, Delhi and got recovered bike key from dressing table in his room from 2nd floor and disclosed that it was snatched by him from deceased at the time of incident and there was ring/challa with two keys with words Honda engraved on it, which was seized by the IO vide memo, Ex.PW6/G and kept in plastic container sealed with the seal of RK and deposited in malkhana.
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40. PW14 further deposed that on 23.02.2020, accused Sachin took them to the Shivam Enclave T-Point, Nale ki pulia opposite Guru Govind Singh University Gate and got recovered one broken mobile phone (make Oppo) from there i.e. Nala. PW14 prepared the site plan of recovery of mobile, Ex.PW6/J and put the mobile in a plastic container and sealed it with the seal of RK and then seized it vide seizure memo, Ex.PW6/I. Accused was sent to the lock-up and case property was deposited in the malkhana and sealed was handed over to SI Rajender.
41. PW14 further deposed that on 29.02.2020, one day PC remand of accused Sharvan Kumar was obtained from the Hon'ble Court and he took them to CBD Ground, Near Park Plaza Hotel, Anand Vihar and got recovered one ATM Card, Bank of India, which was put in a plastic container and sealed it with the seal of RK and then seized vide seizure memo, Ex.PW6/L. PW14 prepared the site plan of place of recovery, Ex.PW6/M and also prepared pointing out memo of place of incident, Ex.PW6/K and deposited the property in the malkhana.
42. PW14 further deposed that on the next date, accused Sharvan Kumar was produced before the Hon'ble Court and sent to JC. On 06.03.2020, he got deposited the exhibits (viscera) at FSL Rohini through Ct. Nahar Singh vide RC No. 24/21/2020 and on 11.03.2020, he got deposited the exhibits (clothes) at FSL through Ct. Pramod vide RC No. 28/21/2020 and on 02.05.2020, he obtained subsequent opinion regarding weapon of offence. PW14 prepared the charge-sheet and submitted it before the Court. PW14 had correctly identified accused Sachin Kumar and State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 23 of 48 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2025.04.19 16:11:54 +0530 Sharvan Kumar in the court. The identity of mobile phone, ATM Card, Key and motorcycle was not disputed by accused.
43. PW15 ASI Harender deposed that on 19.02.2020, he was posted as ASI at PS Anand Vihar and he was on emergency duty. On that day, at about 01:00 - 01:15 pm, a call was received vide DD No. 30A dt. 19.02.2020 regarding a dead body lying near Aditya Mall, Cross River Mall, KKD, Delhi and he reached there where he met Ct. Mahesh. At the spot, a dead body was found with blanket (green and white colour) over it and that person was aged about 40 years. At some distance, purse containing DL and RC of motorcycle was lying and name of that person came to be known as Jai Pal Singh, R/o M S Park, Delhi. At around distance of 7 ft., one pair of sports shoes (blue colour), one sock (blue colour) and one piece of dark green colour pant were also lying. Crime team was called at the spot by PW15 and informed the DO of PS M S Park. After some time, deceased's brother namely Virender also reached at the spot. Crime team inspected the spot and took the photographs of the spot.
44. PW15 further deposed that he wrapped the above said purse, pair of shoes, socks, piece of pant and above said blanket in a white colour clothes and sealed it with the seal of 'JS' and seized it vide seizure memo dt. 19.02.2020, Ex.PW13/A. PW15 sent the dead body of deceased to Dr. Hedgewar Hospital, Delhi through Ct. Mahesh where deceased was declared brought dead. His MLC was got prepared and the dead body was sent to Sabzi Mandi Mortuary, Delhi through Ct. Mahesh. One motorcycle no. DL14SF5463 belonging to deceased Jaipal and one helmet, were State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 24 of 48 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2025.04.19 16:11:59 +0530 also found in the parking of CR Mall, which was seized vide memo, dt. 19.02.2020, Ex.PW13/B. PW15 deposited the above said sealed pulanda in the malkhana. The above said DD entry was kept pending as no eye-witnesses could be found.
45. PW15 further deposed that on 20.02.2020, dead body of deceased was identified by Virender Singh and Narayan Singh vide their statements, Ex.PW5/A and Ex.PW15/A respectively. PW15 got conducted the postmortem of deceased at Sabzi Mandi Mortuary. Two viscera jars and one sample seal of Sabzi Mandi Mortuary, one sealed pulanda containing cloths of deceased were handed over to PW15 at Sabzi Mandi Mortuary and he seized the same, vide seizure memo, dt. 21.02.2020, Ex.PW15/B. PW15 prepared the rukka, Ex.PW15/C and got registered the FIR. After registration of FIR, further investigation of the present case was marked to Insp. Ranjan Kumar and he along Inspector Ranjan Kumar, Ct. Mahesh and SI Rajender joined the further investigation of the present case and went to the house of deceased i.e. J-Block, M S Park, Shahdara, Delhi. 2 nd IO/Insp. Ranjan Kumar recorded the statement of deceased's wife Seema. Thereafter, they returned to the aforesaid spot and Insp. Ranjan prepared the site plan of place of incident at his instance, vide memo dt. 21.02.2020, Ex.PW14/A. IO searched for the eye- witnesses near the spot and 2 public witnesses Surender Srivastava and Ashish Thapa were found, who disclosed that they were the eye-witnesses of the deceased Jaipal's murder and narrated all the incident to the IO/Insp. Ranjan Kumar, who recorded their statements. Thereafter, they along with above said State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 25 of 48 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2025.04.19 16:12:04 +0530 Surender Srivastava reached near T Point, CR Mall, CBD Ground, Delhi and on his identification, accused Sharvan Kumar Sachin Kumar @ Ganja were apprehended and said witness identified both of them, as the persons, who had committed murder of deceased Jaipal. IO arrested accused Sharvan Kumar and Sachin Kumar @ Ganja vide arrest memos dt. 21.02.2020, Ex.PW1/D and Ex.PW1/C respectively and personally searched vide memos, dt. 21.02.2020, Ex.PW6/A and Ex.PW6/B respectively. Disclosure statements of accused Sharvan Kumar and Sachin Kumar were recorded vide statements, Ex.PW6/C and Ex.PW6/D respectively. Both accused persons were medically examined at Dr. Hedgewar Hospital. Accused Sharvan Kumar was admitted at LNJP Hospital due to his medical condition.
46. PW15 had correctly identified one black colour purse (containing some visiting cards, RC and one DL), one blanket (green and white colour), one sports shoes (black colour), one pair of socks (blue and grey colour) and one piece of pant (dark grey colour), Ex.P5 (colly) which were found at the spot and seized by PW15 vide seizure memo, Ex.PW13/A. PW15 had correctly identified accused Sharvan Kumar and Sachin Kumar @ Ganja in the court.
STATEMENTS OF ACCUSED PERSONS U/S 313 Cr.P.C.(351 BNSS)
47. Statements of the accused Sharvan Kumar @ Ashu and Sachin Kumar @ Ganja were recorded u/s 313 Cr.P.C. (351 BNSS) on 28.03.2025 and they denied the incriminating evidence put to them and stated that all the witnesses are State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 26 of 48 KUMAR Digitally signed by KUMAR RAJAT RAJAT Date: 2025.04.19 16:12:09 +0530 interested witnesses and they were falsely implicated by the police officials in the present case without any fault on their part and they are innocent and praying for acquittal.
APPRECIATION OF EVIDENCE, ANALYSIS OF WITNESSES AND FINDING ARGUMENTS OF LD. COUNSEL FOR ACCUSED PERSONS
48. Ld. Counsel for the accused persons argued that they have been falsely implicated by the police and they were lifted from their homes and they had not committed any robbery and murder of deceased nor used any weapon and false recovery has been planted upon them by the police to solve the case as real culprits were not found by the police and the deceased was not known to the accused persons, so there was no motive to commit the murder of deceased. There are contradictions in the testimony of prosecution witnesses. The entire story has been fabricated by the police and they have no role in the commission of crime and they have no criminal history. It is also submitted that main material witnesses Surender Srivastava and Ashish Thapa have not supported the case of prosecution despite them being examined by the prosecution as eye-witnesses of the case and none of them has identified any of the accused persons, who had committed the murder of deceased and turned hostile in their cross-examination and nothing came out in the cross-examination by Ld. APP and as such their whole testimony cannot be relied upon as it is not corroborated by any other witness or documents. There is no CCTV footage of the incident. False disclosure State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 27 of 48 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2025.04.19 16:12:13 +0530 statements of the accused persons were recorded by the IO and site plan was not prepared at the instance of public witnesses. It is also submitted that accused persons were not present at the spot on the alleged date, time and place and the recovery of articles & weapons i.e. stone have been planted on the accused persons.
ARGUMENTS OF LD. ADDL. PP FOR THE STATE
49. Ld. Addl. PP for the State argued that accused Sharvan Kumar @ Ashu and Sachin Kumar @ Ganja had committed robbery with deceased Jaipal and when he resisted, they had committed his murder and his personal articles i.e. his purse containing his DL and RC have been recovered from the accused persons. Accused persons have disclosed about their involvement in crime and accused Sharvan Kumar got recovered ATM card of deceased and accused Sachin got recovered key of bike of deceased from his house and also the mobile phone of deceased from the Nala and accused persons also got recovered the stone, which was used in the crime and these articles were in the exclusive knowledge of the accused persons. PW1 has admitted the contents of his statement u/s 164 Cr.P.C. wherein he has made allegations that accused persons were known to him and he had seen them beating and killing the deceased with the stone by hitting him on his chest and stomach with it and the motive was that deceased had stolen their liquor bottle. The evidence of PW1 is corroborated by other police witnesses and dead body is identified by PWs Virender Singh and Narayan.
State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 28 of 48 Digitally signedKUMAR by KUMAR RAJAT RAJAT Date: 2025.04.19 16:12:18 +0530 PW1 has also stated that he had told the correct contents in his statement u/s 164 Cr.P.C. and police officials had correctly identified these recovered articles and there is no requirement of any independent witness to prove the recovery, which is corroboration of crime by the accused .
50. I have heard the rival contentions and perused the records.
51. The prosecution has examined 15 witnesses including two eye-witnesses.
394 IPC. Voluntarily causing hurt in committing robbery.
If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. 397 IPC. Robbery, or dacoity, with attempt to cause death or grievous hurt:-
"If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years".
411 IPC. Dishonestly receiving stolen property:-
Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 29 of 48 Digitally signed KUMAR by KUMAR RAJAT RAJAT 2025.04.19 Date:
16:12:24 +0530 years, or with fine, or with both.
34 IPC. 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.
52. As per the case of prosecution, on 19.02.2020, one DD No. 30A was received regarding one dead body near Aditya Mall, Karkardooma, Delhi and the said person was aged 40 years with 5 ft. height and his black colour purse was found near his body having RC and DL and from that his name came to be known as Jaipal Singh. An FIR was registered u/s 302 IPC on the complaint of ASI Harender Singh at PS Anand Vihar.
There were two eye-witnesses, PW1 Surender Srivastava and PW4 Ashish Thapa examined by the prosecution to prove its case.
53. PW1 Surender Srivastava @ Sonu deposed that his father was running Tea Stall opposite exit gate of Aditya Mall, Anand Vihar, Delhi in 2020 and he used to help him and on 18.02.2020, he was playing with his sister there and unknown persons came and sat near them and did not move despite asking and they returned to their Tea Stall and his sister went to their nearby rented house at 12.30 PM and on the next day at 10-10.30 AM, he did not find his father at the said stall and was told that he was taken by police to PS Anand Vihar and when he went there, the police officials obtained his signatures and threatened him that his father would be implicated in a murder case. PW1 categorically deposed that he had not seen the murder of the State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 30 of 48 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2025.04.19 16:12:28 +0530 person, who came to them on 18.02.2020 when they were playing at CBD Ground and PW1 stated that there was no pressure or coercion or allurement to him at the time of deposition.
54. PW1 identified his signature on his statement u/s 164 Cr.P.C., Ex.PW1/A and stated that some of the version in the said statement was not made by him and that he did not make such long statement and despite warning of penal consequences, the witness remained firm in his statement. He stated that he did not know accused Sharvan Kumar @ Ashu and Sachin Kumar @ Ganja and failed to identify them.
55. PW1 was declared hostile and during cross- examination by Ld. Addl. PP, he admitted that his statement, Ex.PW1/A was recorded by Ld. MM and he stated that on 18.02.2020 at 12.30 PM, he along with his brother and sister were playing cricket at CBD Ground and liquor shops were closed due to dry day, but he denied that he had stated in Ex.PW1/A that he knew the said accused persons prior to the incident, even after he was confronted with the same. Later, he admitted that he told Ld. MM that he knew both accused prior to the incident and they used to sell liquor in black and used to roam around his shop after consuming liquor and that on the day of incident, one quarter bottle of liquor of accused was stolen and they had caught hold of a man in CBD Ground on the allegation of stealing said bottle and started beating him. PW1 also admitted that he told Ld. MM that Ashu had picked a big and heavy stone and hit the said man on his chest and abdomen and Ganja hit him State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 31 of 48 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2025.04.19 16:12:33 +0530 with said stone several times, which made him unconscious and they took away his ATM, mobile and key of the vehicle and they had threatened him and his brother and sister not to disclose the incident. PW1 admitted that he had reiterated the said facts in his statement before IO on 21.02.2020, Ex.PW1/B wherein he stated that there was scuffle between accused persons and deceased, who stated that he had not stolen the quarter bottle, but he was beaten by fist and leg blows by accused persons.
56. PW1 denied that accused persons were arrested on his identification from Tea Point, CR Mall, CBD Ground, even after he was confronted with his statement, Mark PW1/X from point A to A1, though he identified his signature on arrest memo, which creates doubt on the place and manner of arrest of accused persons. PW1 also denied that he had identified the deceased from his photograph being shown by the IO, even after he was confronted with his statement, Mark PW1/Y from point A to A1.
57. PW1 also denied that he along with sister had not gone to the spot near their Tea Stall and that at 12.30 PM, he along with his sister had not left the said Tea Stall for their rented house at Arya Nagar, Anand Vihar, Delhi or that on next day police had not taken his father to PS Anand Vihar nor took his signatures on 3-4 papers and not threatened him to implicate his father in murder case. PW1 denied that he had seen murder of deceased on 18.02.2020 and deliberately did not identify the accused persons, but later stated that whatever he had witnessed was told by him to Ld. MM.
During cross-examination by accused, PW1 stated State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 32 of 48 KUMAR Digitally signed by KUMAR RAJAT RAJAT Date: 2025.04.19 16:12:38 +0530 that he was asked to make statement before Ld. MM and his father was apprehended by police at that time and he was threatened by police that his father would be arrested.
58. PW1 has admitted the role of accused persons in his statement u/s 164 Cr.P.C., Ex.PW1/A and denied some of the facts written therein and from his evidence, it transpires that he had made the statement due to threat that his father would be implicated in a case and his testimony is self-contradictory on many points regarding the incident. PW1 has not identified accused Sharvan Kumar @ Ashu and Sachin Kumar @ Ganja as the assailants, who had committed the murder of deceased Jaipal and PW1 deposed that he is not the eye-witness of the incident and even in cross by Ld. APP, he denied the suggestion that he knew both the accused prior to the incident despite confrontation with statement, Ex.PW1/A.
59. The Hon'ble Supreme Court in Rai Sandeep @ Deepu Vs. State of NCT of Delhi, AIR 2012 SC 3157, held the concept of sterling witness and observed in para-22 as under:-
"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 State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 33 of 48 Digitally signed KUMAR by KUMAR RAJAT RAJAT 2025.04.19 Date:
16:12:43 +0530 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 circumstance should give 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 co-relation with 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 every 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 the other supporting materials for holding the offender guilty of the charge alleged".
From the testimony of PW2 Vinod, it is apparent that he is not a witness of 'sterling quality' .
60. In Lallu Vs. State, (2003) 2 SCC 401, it was held that oral testimony may be classified into three categories (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. In the third category of cases, the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony.
State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 34 of 48KUMAR Digitally signed by KUMAR RAJAT RAJAT 16:12:48 +0530 Date: 2025.04.19 The evidence of PW1 falls under the category (iii) as mentioned in Lallu (Supra) and corroboration is required.
61. Another eye-witness PW4 Master Ashish Thapa deposed that he did not know the date, month and year of the alleged offence and that he along with PW1 had gone to PS as he was crying as his father was taken away by police from his Tea Shop at Cross River Mall and PW4 is not aware of the incident as no incident had taken place in his presence and he had not given any statement to the police and he was tutored by police to give statement before Ld. MM. PW4 was also declared hostile.
62. During cross-examination by Ld. Addl. PP, he denied that on 18.02.2020, he along with his friend Sonu were playing at CBD Ground near Aditya Mall and sister of Sonu also came there and one person came drunk there and used inappropriate language and at about 12 noon, both accused persons, who were known to him, came there and started arguing with said drunk person and blamed him for stealing their quarter bottle of liquor and that person denied the same and then, accused persons had beaten him and accused Ashu hit him with big stone and then accused Ganja hit him with the said stone on his chest and Ganja had stolen the mobile phone, wallet and bike key of said person, who fell down and both of them fled the spot threatening PW4 and PW1 not to disclose the incident to anyone. PW4 denied these facts even after being confronted with his statement u/s 161 Cr.P.C., Ex.PW4/PX.
63. PW4 identified his signatures on his statement u/s 164 Cr.P.C., Ex.PW4/PX1 and denied that he was not tutored by State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 35 of 48 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2025.04.19 16:12:53 +0530 police to give said statement and also denied that on 13.03.2020, he identified the deceased from the photographs shown by the police even after he was confronted with his statement, Ex.PW4/PX2. PW4 categorically denied that accused persons are the same persons, who were seen by him on 18.02.2020, who had given beatings to drunk person that day and he was deliberately not identifying them.
64. Thus, PW1 and PW4, who are the eye-witnesses have deposed that they had not seen the incident nor seen the accused persons beating the deceased with stone and even no stone, used in the crime or any article of the deceased recovered by the police near the spot, was put to any of these witnesses by the prosecution for identification and they have also not identified the accused persons in the Court and stated that they had given their statements u/s 164 Cr.P.C. under the tutoring and threat from the police to implicate the father of PW1. Thus, PW1 and PW4 are not reliable witnesses at all. Nothing has come in their cross-examination by Ld. APP to fasten liability of the present case on the accused persons.
65. In George & Ors. Vs. State of Kerala & Anr. AIR 1998 SC 1376, Hon'ble Supreme Court held that:
36. "From the judgment of the Trial Court, be noticed that the substantial parts of its comments are based on the statement of PW50 recorded u/s 164 Cr.P.C. and not his evidence in Court. The said judgment was treated as substantive evidence; as would be evident from the following amongst other observations made by the Ld. Trial Court:-
"If Ex.P42 (Section 164 Cr.P.C. statement) is found to be a genuine statement it can be used as an important piece of evidence to State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 36 of 48 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2025.04.19 16:12:58 +0530 connect the accused with the crime".
In making the above and similar comments the Trial Court again ignored a fundamental rule of criminal jurisprudence that a statement of witness recorded u/s 164 Cr.P.C. cannot be used as a substantive evidence and can be used only for the purpose of contradicting or corroborating him........"
It is settled law that statement u/s 164 Cr.P.C. is not a substantive evidence and can be used only for corroboration and contradiction as defence has no opportunity to cross-examine the witnesses, whose statements are recorded u/s 164 Cr.P.C.
66. PW1 has deposed that his statement u/s 164 Cr.P.C., Ex.PW1/A was recorded and he admitted the contents of his statements though he denied some of the contents, but the witness has not deposed against the accused persons or identified them as assailants and denied that he had seen them committing the crime by beating the deceased and killing him with stone by injuring him and denied that he was an eye-witness and thus, much reliance cannot be placed upon the said statement especially without any corroboration from another eye-witness PW4, who also denied to see the accused committing the crime against deceased and witnesses stated that they had to give statement before Ld. MM under the pressure of police as father of PW1 was taken to PS by police and PW2 denied the suggestion of Ld. APP that he was not tutored by police to give statement u/s 164 Cr.P.C. Thus, the statements of witnesses u/s 164 Cr.P.C., Ex.PW1/A and Ex. PW4/PX1 cannot be solely relied upon to convict the accused.
State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 37 of 48 Digitally signed by KUMAR KUMAR RAJAT
RAJAT Date:
2025.04.19
16:13:03 +0530
67. PW2 has proved the registration of FIR, Ex.PW2/A. PW3 is the wife of deceased, who has only proved that on 18.02.2020, her husband has left the house by saying that he was going for trial for new job and was carrying Oppo mobile, ATM of BOI, DL and RC and later on 19.02.2020, she came to know through police that one dead body was found and she identified it to be of her husband and also identified said articles. This witness has no knowledge as to how crime was committed or who committed the same. PW5 Virender Singh had identified the dead body of Jaipal Singh, Ex.PW5/A.
68. PW6 SI Rajender Singh deposed about recording of statement of PW3 and that he along with main IO visited the spot at Aditya Mall where IO Ranjan Kumar prepared the site plan at the instance of ASI Harinder and two eye-witnesses PW1 and PW4 were found near Tea Shop and they stated that accused persons killed deceased Jaipal Singh and at the instance of PW1, accused persons were apprehended near T Point, Cross River Mall, CBD Ground, Delhi, but PW1 has denied that the accused persons were apprehended at his instance and also disowned his statement u/s 161 Cr.P.C. recorded by the IO and there is contradiction in the testimony of PW1 and PW6. Accused persons have denied their disclosure statements, Ex.PW6/C and Ex.PW6/D recorded by IO.
RECOVERY OF WEAPON OF OFFENCE AND OTHER ARTICLES OF DECEASED
69. PW6, PW10 Ct. Amit and PW14/IO have deposed that on 22.02.2020, accused Sachin Kumar @ Ganja led police in front of Aditya Mall, CBD Ground and pointed towards a place State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 38 of 48 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2025.04.19 16:13:08 +0530 and produced piece of concrete stone, which was used in the incident to the IO,which was seized vide memo, Ex.PW6/A and sealed and site plan of recovery, Ex.PW6/F was prepared, but there was no public witness to the said recovery nor any photograph or videography of the same was done. PW6, PW10 and PW14 have also deposed that accused Sachin took police to his house at H.No. 328, Gali No. 3, Bhagat Vihar, Karawal Nagar, Delhi and produced key of bike of deceased after taking it out from drawer of dressing table, which was seized vide memo, Ex.PW6/G and sealed and its site plan of recovery, Ex.PW6/H was prepared. On 23.02.2020, accused Sachin Kumar got recovered the mobile phone Oppo of deceased in damaged condition from the Nala at T Point near Shivam Enclave in front of CBD Ground, which was seized vide memo, Ex.PW6/I and sealed and its site plan of recovery, Ex.PW6/J was prepared. PW6, PW10 and PW14 correctly identified the said stone, Ex.P1 and key Ex.P2.
70. PW 6, PW11 HC Sompal and PW14/IO had also deposed that accused Sachin Kumar got recovered mobile phone from open drain nala T Point in front of Shivam Enclave, which was broken and make Oppo and accused Sharvan Kumar got recovered the ATM of BOI near bushes of CBD Ground.
71. In his cross-examination, PW6 admitted that on 22.02.2020, 23.02.2020 and 29.02.2020 when they were taken by accused Sachin for recovery of said article from the PS, he had not made any departure entry, did not give any notice to any public person to join the investigation nor conducted any State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 39 of 48 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2025.04.19 16:13:13 +0530 photography or videography of the recovery of said articles and similar answers given by PW10 and PW11 in their cross- examination.
72. PW6, PW10 and PW11 have not deposed that accused persons in their disclosures had told that they would get recover the stone used in the crime, mobile phone (Oppo) and key of deceased and the said ATM Card and that it was not known to police or any person prior to the recovery that the said stone, mobile phone, key and ATM were hidden by accused persons at a particular place, which was in the exclusive knowledge of accused Sachin Kumar and Sharvan Kumar and as per settled law, these facts have to be specifically deposed by police witnesses of recovery including IO.
73. PW6 also deposed that on 29.02.2020, accused Sharvan Kumar @ Ashu took police to CBD Ground in front of Aditya Mega Mall and got prepared pointing out memo, Ex.PW6/K and took them in front of Park Plaza Hotel, CBD Ground and got recovered ATM Card of deceased near tree, which was seized vide memo, Ex.PW6/L and sealed and its site plan of recovery, Ex.PW6/M was prepared. No public person joined the said recovery proceedings and no notice was issued to any such public person regarding the same and no photography or videography of recovery was admittedly done and ATM Card was recovered from an open place near tree, which makes the recovery of the said articles at the instance of accused persons are doubtful. IO and other police witnesses had not deposed specifically that they had recovered the said articles after the State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 40 of 48 Digitally signed KUMAR by KUMAR RAJAT RAJAT 16:13:18 Date: 2025.04.19 +0530 accused disclosed them that he could get the said articles recovered from the place known to him.
74. No independent public person was made a witness during any of the recovery proceedings and stereo type answers were given by police officials that no public person joined the investigation.
In Ravindra Nath Prusty Vs. State of Orissa, 1984 Cr.LJ 1392, Hon'ble Orissa High Court held that "10.... One of the formalities that has to be observed in searching a person is that searching officer and others assisting him should give their personal search to the accused before searching the person of accused. ..... This rule is meant to avoid the possibility of implanting the object, which was brought by the search. There is no evidence on record whatsoever, that the raiding party gave their personal search to the accused before the latter's person was searched..... No independent witness had witnessed the search. In the above premises, my conclusion is that search was illegal and consequently, the conviction based thereon is also vitiated."
75. Even if the recovery is said to be proved as per law, then also it is settled law that mere recovery of articles i.e. weapon and the articles of deceased, is not sufficient to prove the case against the accused particularly if identify of assailants is not established.
In Radhey Shyam & Ors. Vs. State of Rajasthan Criminal Appeal No. 2203/2010 decided on 12.04.2023, Hon'ble Supreme Court held that:
7. Thus, PW4, who claims to be an eye witness, could not identify a single accused by name in the Court though she claimed that she was in a position to identify the accused by their names as well as their respective father's name.State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 41 of 48 Digitally signed by KUMAR
KUMAR RAJAT
RAJAT Date:
2025.04.19
16:13:24 +0530
9. We are therefore, of the considered opinion that the identity of the named accused as assailants of the deceased has not been established in the Court beyond a reasonable doubt. Then what remains is the evidence of the alleged recovery of the weapons of assault at the instance of the accused. The conviction cannot be sustained only on the basis of the alleged recovery.
76. In Babu Sahebagouda Rudragoudar & Others Vs. State of Karnataka, Criminal Appeal No. (S). 985 OF 2010 dated 19.04.2024, it was held by Hon'ble Supreme Court that:
60. Thus, when the Investigating Officer steps into the witness box for proving such disclosure statement, he would be required to narrate what the accused stated to him. The Investigating Officer essentially testifies about the conversation held between himself and the accused which has been taken down into writing leading to the discovery of incriminating fact(s).
63. In the case of Mohd. Abdul Hafeez v. State of Andhra Pradesh, 1983 (1) SCC 143, it was held by this Court as follows: -
"5. ....If evidence otherwise confessional in character is admissible under Section 27 of the Indian Evidence Act, it is obligatory upon the Investigating Officer to state and record who gave the information; when he is dealing with more than one accused, what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against that person."
64. Further, in the case of Subramanya v. State of Karnataka 2022 SCC Online SC 1400, it was held as under: -
84. 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 State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 42 of 48 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2025.04.19 16:13:30 +0530 of offence, the site of burial of the dead body, clothes etc., 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 would 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 etc. 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 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 for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the 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 independent witnesses (panch-witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama.
This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter."
65. Similar view was taken by this Court in the case of Ramanand @ Nandlal Bharti v. State of Uttar Pradesh 2022 SCC Online SC 1396, wherein this Court held that mere exhibiting of memorandum prepared by the Investigating Officer during investigation cannot tantamount to proof of its contents. While testifying on oath, the State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 43 of 48 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2025.04.19 16:13:34 +0530 Investigating Officer would be required to narrate the sequence of events which transpired leading to the recording of the disclosure statement.
69. Thus, we are of the firm opinion that neither the disclosure memos were proved in accordance with law nor the recovery of the weapons from open spaces inspire confidence and were wrongly relied upon by the High Court as incriminating material so as to reverse the finding of the acquittal recorded by the trial Court.
Thus, the recovery of weapon and articles of deceased from the possession/at the instance of accused persons have not been proved as per law and even if it is considered as proved, then also the recovery alone is not sufficient to convict an accused in the absence of other corroborating evidence.
77. PW7 Rohit Singh only proved that he had seen one person at the spot lying covered with blanked and he called at 100 number. PW8 proved the photographs of the spot, Ex.PX1 and PW9 ACP Mahesh Kumar proved the scaled site plan, Ex.PW9/A, but the place of occurrence is not disputed. PW12 proved that he had deposited the sealed exhibits in the FSL Rohini and proved RC, Ex.PW12/A and acknowledgment, Ex.PW12/B.
78. PW13 and PW15 proved that DL and RC, one black colour purse of the deceased Jaipal containing visiting card, RC and DL and one sport shoes, one pair shocks, one dark gray colour pant piece were found near the dead body and identified them as Ex.P5, but these documents only proved the identity of the deceased and PW15 deposed that dead body was also identified by Virender Singh and Narayan Singh vide statements, Ex.PW5/A and Ex.PW15/A respectively. PW15 proved rukka, State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 44 of 48 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date:
2025.04.19 16:13:39 +0530 Ex.PW15/C and recording of disclosure of accused persons and their arrest, but since identity of assailants is not established from testimony of eye-witnesses, the disclosures and the said recovery of the articles cannot be read against the accused persons to prove the case of prosecution.
79. PMR is admitted as Ex.P/AD2 and cause of death is hemorrhagic shock due to injury on abdomen and injuries were consistent with severe beating prior to death and as per subsequent opinion, Ex.P/AD3, injuries were possible from recovered stone, but such evidence is only corroborative and identity of accused is not established. The disclosure statements of accused persons have limited acceptance subject to recovery, which alone is not sufficient to convict the accused. The CDRs and CAF of the mobile phone are also admitted regarding the mobile phone of deceased Jaipal Singh, Ex.PA15 and also the CAF of accused Sharvan Kumar, Ex.PA16 along with CDR, but in the absence of hostility of the eye witnesses, even mere presence of accused at the spot does not prove any offence against him. As per FSL Report, Ex.PA13, DNA Profile of the cloth piece of deceased accounted in the alleles of DNA profile generated from shirt of deceased and as per FSL, Ex.PA14, Ethyl Alcohol was found in the blood of deceased, but the same was inconsequential and as per report of Forensic Science Division dated 08.02.2021, the damaged mobile could not be examined. Thus, there is no forensic evidence against the accused persons to connect them with the crime.
State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 45 of 48KUMAR Digitally signed by KUMAR RAJAT RAJAT 16:13:44 +0530 Date: 2025.04.19 DEFENCE OF THE ACCUSED PERSONS
80. Accused Sharvan Kumar @ Ashu and Sachin Kumar @ Ganja stated in their statements u/s 313 Cr.P.C. (351 BNSS) that all the witnesses are interested witnesses and they were falsely implicated by the police officials in the present case without any fault on their part and they are innocent and praying for acquittal.
The prosecution has not laid the foundational facts required for the offences charged for the accused persons to rebut the same as eye-witnesses failed to identify any of the accused persons as assailant and thus, the defence of the accused persons is not that important considering the testimonies of prosecution witnesses as discussed above.
81. In Kailash Gour and Ors. Vs. State of Assam reported in MANU/SC/1505/2011, Apex Court has observed that an accused is presumed to be innocent till he is proved guilty beyond a reasonable doubt is a principle that cannot be sacrificed on the altar or inefficiency, inadequacy or inept handling of the investigation by the police.
82. In Subramanya Vs. State of Karnataka, dt. 13.10.2022, in Crl. Appeal No. 242/2022, Hon'ble Supreme Court of India has held that it is settled principle of law that when two views are possible from the prosecution evidence, the one which is favourable to the accused shall have to be taken and the benefit of doubt shall have to be given to the accused.
83. The Hon'ble Supreme Court has time and again held that onus and duty to prove the case against the accused is upon the prosecution and prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 46 of 48 Digitally signed by KUMAR KUMAR RAJAT Date: RAJAT 2025.04.19 16:13:50 +0530 jurisprudence that if there is a reasonable doubt with regard to the accused, the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may be made to the Judgments titled as 'Nallapati Sivaiah Vs. Sub Divisional Officer, Guntur', reported as VIII (2007) SLT 454 (SC) in this respect. Reference may also be made to the Judgment titled as 'Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan', reported as (2013) 5 SCC 722, wherein it was held that the large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied and the Court must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused.
84. The evidence led by prosecution is not reliable, cogent and has lot of infirmities as there are lot of material variations, omissions, inconsistencies and contradictions in the testimonies of all the public witnesses led by the prosecution and thus, prosecution could not prove all the ingredients of Section 302/394/397/411/34 IPC against accused persons beyond reasonable doubt.
CONCLUSION
85. In the totality of the circumstances brought on record by way of evidence, it is observed that the prosecution has failed to prove its case beyond reasonable doubt against the accused Sharvan Kumar @ Ashu and Sachin Kumar @ Ganja qua offence State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 47 of 48 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2025.04.19 16:13:55 +0530 punishable u/s 302/394/397/411/34 IPC, thus, a benefit of doubt is given to the accused persons on the basis of above-noted principles and facts established on record.
86. Consequently, the accused Sharvan Kumar @ Ashu and Sachin Kumar @ Ganja are acquitted of the offence u/s 302/394/397/411/34 IPC.
Bail bonds cancelled. Surety stands discharged. The Bond u/s 481 BNSS in the sum of Rs. 20,000/- with one Surety of like amount furnished by the accused persons on 05.04.2025, shall remain in force for a period of six months.
File be consigned to Record Room after necessary Digitally signed compliance. by KUMAR KUMAR RAJAT PRONOUNCED IN OPEN COURT RAJAT Date:
2025.04.19 ON THIS 19th DAY OF APRIL 2025. 16:14:00 +0530 (KUMAR RAJAT) ASJ-07, Shahdara, KKD Delhi/19.04.2025 State Vs Sharvan Kumar @ Ashu & Anr. FIR No. 68/2020 PS Anand Vihar Page 48 of 48