Delhi District Court
State vs Nand Kishor Etc on 23 January, 2026
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
SC No. 28370/2016 CNR No. DLCT01-001771-2013
FIR No. 53/2012
U/Sec. 308/326/323/34 IPC
P.S. Timarpur
STATE VERSUS NAND KISHORE & ORS.
(i) SC No. of the case : 28370/2016
(ii) Date of commission of offence : 08.03.2012
(iii) Name, parentage and address : 1. Nand Kishore
S/o Sh. Chandeshwar Dass
R/o N-62/35 A, Partrachar
Jhuggi, Timarpur, Delhi.
2. Vijay Dass
S/o Sh. Chandeshwar Dass
R/o N-62/35 A, Partrachar
Jhuggi, Timarpur, Delhi.
3. Nishant
S/o Sh. Moti Dass
R/o N-62/35 A, Partrachar
Jhuggi, Timarpur, Delhi.
4. Ram Pratap Singh @
Pratap
S/o Sh. Vishawanath
R/o H.No. A-58/4
Gali No. 7, Village
Khajuri Khas, Delhi
5. Bijender Dass
(Proclaimed Offender)
SC No. 28370/2016
FIR No. 53/2012
State Vs. Nand Kishore & Ors. Page 1 of 42
S/o Sh. Ravi Dass
R/o H.No. 440
J.J. Colony, Pandav Nagar
Near Shadhi Pur Depot
Delhi.
(iv) Offence complained of : Under Section
308/34 IPC
(v) Plea of the accused : Pleaded not guilty.
(vi) Final order : ACQUITTAL
Date of Institution : 10.01.2013
Date of Judgment reserved on : 26.11.2025
Date of Judgment : 23.01.2026
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
1. The present case was registered on the complaint of Sh.
Rajmani/PW-1 which is Ex.PW1/A dated 08.03.2012. As per the complainant he is doing business of sand, Badarpur, Rodi, cement and construction material and he also has rickshaw garage from where he let out rickshaw on rent. His younger brother Sehdev/PW-2 is also staying in Jhuggi with him. His nephew/ Bhanja namely Dharamvir /PW-4, elder brother of PW-1 namely Anuj Pandit/PW-13, PW-2 Sehdev and the complainant namely Rajmani/PW-1 are together doing the business of rickshaw garage and construction material. PW-13 is resident of SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 2 of 42 Nathupura where he is staying with his family. On 08.03.2012 around 6:45 PM, PW-1 with PW-2, PW-4 and PW-13 were present at his shop. At that time PW-1 was going to drop his 3 years old son Jindal at his home in the Gali when accused No.4 Ram Pratap Singh who also has a shop of construction material and has enmity towards PW-1 due to business rivalry had obstructed the way of PW-1 and started throwing abuses. Accused No.4 Ram Pratap Singh had hit punch on his chin and started fighting with PW-1. Hearing the noise PW-13 Anuj Pratap and PW-2 Sehdev with PW-4 Dharmender had also reached at the spot and tried to intervene. In the meanwhile other accused person namely accused No.1 Nand Kishore, accused No.2 Vijay and accused No.3 Nishant also reached there, all of whom had iron rod and shovel/ Belcha in their hands. Accused No.4 Ram Pratap had hit PW-1 with shovel on head and accused No.2 Vijay had hit PW-1 with iron rod on the head. Accused No.3 Nishant had hit iron rod on the hand of PW-1. In the meanwhile 1-2 relative of accused No.1 also reached there and accused person together started beating PW-1, PW-2, PW-4 and PW-13. In the meanwhile many person from nearby Jhuggi gathered there when the accused person ran away from the spot. PCR van reached and took PW- 1, PW-2, PW-4 and PW-13 at Trauma Centre Hospital. PW-1 had suffered fracture in hand. FIR Ex.PW5/A dated 09.03.2012 was registered in the matter under Section 308/323/34 IPC. IO had seized the blood stained clothes of PW-1 and arrested accused No.1 Nand Kishore. Thereafter accused No.2 Vijay Dass was arrested. After that accused no. 5 Bijender Dass (since PO), accused No.3 Nishant were arrested. All the 4 accused got recovered the iron rod from Jhuggi No.N-62/35A, Patrachar Jhuggi, Timarpur, Delhi. Thereafter accused No.4 Ram Pratap SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 3 of 42 Singh was arrested who got recovered one shovel/ Belcha from shop No. N-62/1A. The Doctor had given opinion that PW-1 has suffered grievous injuries on which Section 326 IPC was added and all the remaining 03 victim namely PW-2, PW-4 and PW-13 had suffered simple injuries.
2. After investigation of the case chargehseet was filed and accused persons were summoned after taking cognizance only under Section 308/34 IPC. The charge was given to all the accused under Section 308/34 IPC on 22.01.2013. All the accused pleaded not guilty to the charge and claimed trial. Vide order dated 26.08.2016 accused No.5 Bijender Dass was declared PO after recording statement of HC Bhopal Singh dated 26.08.2016.
3. The prosecution had led PW-1 to PW-14 as witness to substantiate their case against all the accused. The statements of accused persons were recorded under Section 313 Cr.P.C. On 03.12.2019 all the accused had preferred to lead evidence in defence. Accused had led DW-1 to DW-6 in their defence evidence. The evidence in defence was closed and matter was listed for final argument.
4. Final arguments are heard on behalf of both the parties and record perused.
5. The Hon'ble High Court of Delhi in case titled The State ( NCT of Delhi) vs Varun Dass & Anr on 20 September, 2022 CRL.REV.P. 368/2018 = 2022 SCC OnLine Del 2992 has laid down as under:
7. This Court deems it appropriate to reproduce Section 308 IPC, which reads as under:SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 4 of 42
"308. Attempt to commit culpable homicide.--Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Illustration A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he thereby caused death he would be guilty of culpable homicide not amounting to murder. A has committed the offence defined in this section."
8. It is clear from the reading of the Section itself that to constitute an offence under Section 308 IPC, the following conditions should be fulfilled:
(a) that a person does an act;
(b) that the act is done with an intention or knowledge to commit culpable homicide not amounting to murder;
(c) that the person concerned commits the offence under such circumstances that in case the act so done by that person causes death, he would be guilty of culpable homicide not amounting to murder
(d) in case hurt is caused while committing this offence, the person concerned shall be awarded enhanced punishment.
9. Therefore, Section 308 IPC does not make it mandatory that for an offence to be covered under Section 308 IPC, hurt should have been caused by that person. Causing hurt is, therefore, not an essential condition to attract the provisions of Section 308 IPC.
10. The second part of Section 308 IPC further explains that in case hurt is caused to any person by an act falling within the purview of section 308 IPC, the accused shall be punished with imprisonment of either description for a term which may extend to 7 years or with fine or with both.
11. There is no confusion regarding the settled position of law and the definition of Section 308 IPC itself that causing hurt by the act committed under Section 308 IPC and no hurt being caused are both covered under Section 308 IPC itself, attracting different punishments. What is crucial to note while deciding a case at the stage of charge under Section 308 IPC is that the act should have been caused with such intention or knowledge and under such circumstances that in case said act caused death, he would be SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 5 of 42 guilty of culpable homicide not amounting to murder.
12. It was observed in Narinder Kaur Oberoi v. State 2015 SCC Online Del. 7864. The observations read as under:
"6. Offence punishable under Section 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. What the court is to see whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in Section 308 IPC. It depends upon the facts and circumstances of each case whether the accused had the requisite intention or knowledge......."
13. It was observed by Hon‟ble Supreme Court in Roop Chand @ Lala vs. State (NCT) of Delhi (Criminal Appeal No. 2204 of 2010) as under:
"11. The distinction between attempt to commit culpable homicide not amounting to murder, and voluntarily causing hurt with a sharp-edged weapon, is subtle and nuanced. Under the former (Section 308), injuries must be such as are likely to cause death, but in the latter (Section 324) the injuries may or may not endanger one's life....."
14. In the present case, the very cryptic order of learned ASJ rests on four lines on the basis of which the opinion seems to have been formed to discharge the accused persons under Section 308/34 IPC. No reasons have been given in the order as to why learned ASJ has reached the conclusion that Section 308 IPC is not made out in the present case except for the fact that simple injuries had been suffered by the complainant on his head apart from some abrasions on his abdomen and back. The learned ASJ failed to take note of the fact that the nature of injury alone sustained by the victim at the time of commission of offence cannot be the sole criteria to discharge a person from the offence under Section 308 IPC. The most relevant criteria for framing charge under Section 308 IPC is that the commission of any act by an accused with intention or knowledge that under such circumstances death could have been caused. What was relevant at the stage of framing of charge in this case was that the victim had suffered injuries caused by an iron rod on his head which is vital part of the body and the injuries so caused with the iron rod twice could have caused his death, making them guilty of culpable homicide not amounting to murder.
15. Even causing of hurt is not relevant for this purpose. A similar view was taken by the Hon‟ble Supreme Court in the case of Sunil SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 6 of 42 Kumar vs. NCT of Delhi, 1998 8 SCC 557, the relevant portion reads as under:
"4. The view taken by the High Court is obviously erroneous because offence punishable under Section 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. It is the attempt to commit culpable homicide which is punishable under Section 308 IPC whereas punishment for simple hurts can be meted out under Sections 323 and 324 and for grievous hurts under Sections 325 and 326 IPC............"
16. In the present case, the accused had hit the victim twice on head with iron rod. A person hitting a victim on his head with iron rod twice cannot be presumed not to have knowledge or intention that such hitting on the head of the victim with an iron rod could result into death of a person. The nature of injury being simple was thus not relevant at the stage of consideration of charge. In this case an iron rod was used to cause injuries on the vital part of body of victim, the severity of blows and conduct of accused and their behavior, motive etc will be clear only during trial and they could not have been discharged.
6. The first ingredient the prosecution has to prove that the act of causing injuries on Raj Mani, Anuj, Sehdev and Dharamvir with rod and Belcha was committed by the accused person. In the complaint made by Raj Mani/PW-1 Ex.PW1/A it is stated that he is doing business at Lucknow road, Dhobi Ghat of construction material including sand and cement and he is also doing business of running rickshaw garage which he was giving on rent. He with his brother Sehdev, maternal nephew Dharamvir/Bhanja, are staying with him in a Jhuggi and his elder brother Anuj Pandit is staying at Nathupura. The three brothers and the Dharamvir together running business of rickshaw garage and also of construction material. Around 6:45 PM on 08.03.2012 he alongwith his two brothers and nephew Dharamvir were present at their shop. When PW-1 Raj Mani was going to drop his son Jindal aged about 3 years and SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 7 of 42 passing through Gali then the accused no. 4 Ram Pratap Singh @ Pratap who is also having business of construction material had obstructed his way. Accused no. 4 had abused him and started fighting with him. Hearing his voice his brother Anuj and Sehdev had reached there. The accomplice accused no. 1 Nand Kishore, accused no. 2 Vijay Das and accused no. 3 Nishant had also reached there who had Belcha and iron rod in their hand. Accused no. 4 Ram Pratap had hit Belcha on the head of PW-1 Raj Mani and thereafter accused no. 2 Vijay Dass had also hit iron rod on the head of PW-1. Rod had also hit on the hand of PW-1. Few relatives of accused person had also reached there and started beating them. Many person from other Jhuggi had also gathered and the accused person had ran away from the spot. It is stated by PW-1 in the complaint that the bone of his hand was broken/fractured.
7. It is alleged by the complainant that there is business rivalry as both the accused and victim have business of construction material. In cross-examination dated 08.07.2019 PW-4 has deposed that the rickshaw garage is run by them since last about 8-9 months from the date of incident which was run in the name of Shiv Shakti. There are about 10- 15 rickshaw in the garage. They do not have licence to run the rickshaw garage. The distance between the shop of accused no. 4 Ram Pratap Singh and the rickshaw garage is about 100 mtr. and the distance between the said rickshaw garage from his house is about 50 mtr. in the Gali. Hence as per deposition of PW-4 the shop of accused person is further 50 mtr. away where the offence has allegedly occurred. PW-4 is aware that accused no. 4 Ram Pratap Singh is residing at Khajuri Khas, Delhi. PW-4 at first page of his cross-examination dated 04.10.2019 had SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 8 of 42 denied that accused no. 4 Ram Pratap was returning alongwith his friend to his house after celebrating the festival of Holi. It is denied that the accused no. 4 Ram Pratap had passed in front of his garage and on seeing him the complainant alongwith other person had started assaulting accused no. 4 Ram Pratap by obstructing his way towards his house. It is denied that the complainant/PW-1 had given fist blow on the face of accused no. 4 Ram Pratap or that accused no. 4 has raised alarm "Bachao-Bachao".
8. The business rivalry is claimed by the prosecution and such motive is claimed to commit assault. Now it has to be seen that when both the parties are admittedly doing the business of construction work then which of the party was keeping grudge in the nature of business rivalry against the other. It is alleged by the accused person that the business of the complainant of building material is 5-6 months old only and accused person were running the business of construction material last since 5-6 years back. PW-13 at page no. 3 of his cross-examination dated 04.10.2019 has deposed that he was running business of rickshaw garage in the name of Shiv Shakti. There were 20-25 rickshaw in the garage. He had started business of building material in the name of Shiv Shakti. The distance between his garage and the shop of Ram Pratap is 200 mtr. There was no previous altercation or quarrel between them and the accused person. It is admitted that the neighbours of accused no. 4 were also present at the spot when the quarrel started between PW-1 who is brother of PW-13 and the accused person. He has deposed that some public person had made the call at 100 number and PCR van had reached within 10 minutes who immediately took them to hospital.
SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 9 of 429. PW-13 in his examination-in-chief dated 04.10.2019 has deposed at page 1 that accused no. 4 Ram Pratap Singh was doing business of building material supply near rickshaw garage Lucknow road, Patrachar Jhuggi. He had started business of supply of building material around 5- 6 months ago prior to the occurrence of this case. Accused no. 4 did not like such starting of business and therefore developed enmity. It is also deposed that accused no. 4 had been doing the business of supplying of building material for about 5-6 months prior to occurrence of the present case. Such deposition of PW-13 on development of enmity has to be on some basis. Some incident has to be pointed out prior to the date of incident from which it can be inferred that such enmity has developed. In cross-examination PW-13 has deposed that there was no prior altercation or quarrel in between them and the accused. The above deposition rebuts the claim of enmity between accused and the victims. There is no prior complaint shown on record by the parties with each other from which the alleged grudge of running the same business by accused and the victim could be inferred. PW-4 has improved in his deposition that accused no. 4 Ram Pratap was threatening to close their shop of building material and asked to them to run garage only. It is further improved that accused no. 4 Ram Pratap has threatened them to close the work of building material "Tumhe Khatam Kar Denge Aur Aisa Kar Denge Ki Khane Kamane Layak Nahi Rahoge". The same is material omission which is not recorded in statement of PW-4 recorded under Section 161 Cr. PC which is Ex.PW2/DA on record and hence such material omission is in the nature of contradiction. PW-1 in cross-examination dated 08.07.2019 at first page has deposed that he is not running any garage of rickshaw.
SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 10 of 42He had only 2-3 rickshaw which he rent out. It is deposed that he did not tell the police that he was running a rickshaw garage. It is deposed that accused no. 4 Ram Pratap has started the shop of building material around 06 years ago backward from the year 2012. He has opened his shop about 6 months back from the Holi festival in the year 2012. Hence there is contradictory deposition of PW-1 about his running of rickshaw garage business for how long and how much big. It shows that the deposition PW-1 has to be read carefully and cautiously.
10. In the evidence of PW-13 one contradiction has come to light. At page 1 of his examination-in-chief dated 04.10.2019 it is deposed that at about 6:45 PM when PW-1 Rajmani had left the house after leaving his minor child at the house of PW-13 then accused Pratap started using abusive language against Rajmani. Upon hearing the noise of quarrel PW-13 had went to the place of occurrence and upon reaching at the spot he saw accused Nand Kishore holding a iron pipe, accused Nishant holding iron pipe and accused Ram Pratap holding Belcha. The above deposition proves that the quarrel had not started at the door of the house of PW-13 and it was also not just outside the house of PW-13. The view of quarrel was also not available just standing at the house of PW-13 and which could be ascertained by PW-13 only after reaching at the spot. Therefore the above deposition of PW-13 proves that the child and PW-1 Rajmani were far apart when the alleged altercation has occurred and therefore they were not together. To the contrary PW-1 Rajmani has deposed that accused no. 4 Ram Pratap had intercepted him around 6:45 PM when he was taking his son Jindal aged about 3 years to his Jhuggi. The above contradiction creates doubt that in what manner the SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 11 of 42 fight/quarrel had started. The contradiction remained unexplained and this creates doubt in the case of the prosecution that accused person were aggressor or that accused no. 4 Ram Pratap had attacked PW-1 Rajmani while he was holding his son Jindal.
11. Secondly, as per PW-1 he was stopped near/front of shop of accused no. 4 Ram Pratap and on his way gave a fist blow on his chin and also abused him. In complaint Ex.PW1/A it is stated by PW-1 that on 08.03.2012 around 6:45 PM he was present at the shop with his two brothers and Dharamvir. Immediately when he was leaving with his son Jindal towards Gali then accused no. 4 Ram Pratap had obstructed his way. Accused had thrown abuses and gave a punch on his chin. Hence as per PW-1 the alleged offence had occurred immediately outside his shop. Whereas as per PW-13 the child was already dropped by PW-1 at the house of PW-13 in the Jhuggi. Hence there was no reason for PW-1 to come out of his shop. The site plan Ex.PW1/B shows that the altercation had occurred at point E which is between point A and B. At point A is the shop of accused no. 4 Ram Pratap and at point B is the shop of PW-1 Rajmani.
12. In the statement under Section 161 Cr. PC of Dharamvir/PW-4 which is Ex.PW4/DX1 it is stated that accused no. 1 Nand Kishore had lifted Belcha from the shop of Pratap and gave it to Pratap/accused no. 4. Accused no. 4 had hit the Belcha on the head of PW-1/Rajmani. Whereas PW-1 at page 3 of his cross-examination dated 08.07.2019 has deposed that he had not told the police that accused Nand Kishore had lifted Belcha from the shop of accused Ram Pratap and gave to accused Ram SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 12 of 42 Pratap. It is deposed voluntarily that accused Ram Pratap took Belcha from his shop and hit it on the head of PW-1. When PW-4 tried to save PW-1 then accused no. 1 Nand Kishore had hit iron rod on the head of PW-4 and accused no. 3 Nishant had also hit PW-4 with iron rod on the head. In complaint Ex.PW1/A it is deposed by PW-1 that accused no. 1 Nand Kishore, accused no. 2 Vijay and accused no. 3 Nishant had reached at the spot with Belcha and iron rod in their hand. Pratap had taken Belcha from them and hit it on the head of PW-1. Hence PW-1 has not deposed that the Belcha was brought by accused no. 1 Nand Kishore from the shop of Pratap. To the contrary PW-4 has deposed at page 1 of his examination-in-chief dated 08.07.2019 that accused Pratap had taken Belcha from his shop and started beating his maternal uncle PW-1 with the said Belcha. Hence PW-4 has not deposed that the Belcha was either given by accused no. 1 to accused no. 4 or that accused no. 4 had taken the said Belcha from any other accused at the spot. Hence the above deposition is contradictory to each other that how the Belcha which is weapon of offence had reached in the hands of accused no. 4 Ram Pratap. PW-1 at page 3 of his cross-examination dated 08.07.2019 has deposed that accused no. 4 Ram Pratap took Belcha from his shop.
13. It is deposed by PW-2 Sehdev that accused no. 3 Nishant is employee of accused no. 4 Ram Pratap and Bijender is relative of accused no. 4 Ram Pratap. When he had heard noise then he came out and he had seen that his brother was lying in the gali who was bleeding from his head and accused no. 4 Ram Pratap was having Belcha in his hand. All the remaining accused no 1, 2, 3 and 5 were giving beatings to PW-1. In the complaint Ex.PW1/A the PW-1 does not mention that SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 13 of 42 Bijender was present whereas Bijender had allegedly hit PW-1 as per deposition of PW-2. Hence deposition of PW-2 is in contradiction to deposition of PW-1. In the complaint Ex.PW1/A the name of accused no. 5 Bijender is not mentioned in that he had reached at the spot. Nor there is any specific act which is mentioned in respect of accused no. 5 Bijender that he had reached at the spot. Whereas in his examination-in- chief PW-1 has improved his version that accused Bijender @ Vijender had reached at the spot with iron pipe and iron rod and gave beating to him. Not mentioning the same in complaint Ex.PW1/A is a material omission which is in the nature of contradiction and hence the involvement of accused no. 5 in the alleged commission of offence is highly doubtful and the same cannot be believed. Benefit of doubt hence arose in favour of accused no. 5 which is given to him and therefore it is held that on this ground alone it cannot be said that accused no. 5 is involved in the offence in any manner. With such material omission made by PW-1 in Ex.PW1/A in respect of accused no. 5 Bijender Dass/PO shows that PW-1 and prosecution witness PW-2 and PW-4 had animosity/grudge against the accused person otherwise they would not have wrongly named accused no. 5 Bijender Dass during their deposition when his name was absent in complaint Ex.PW1/A. Hence it has come on record that the complainant has grudge against the accused person and the reason for that grudge is that both the person were doing the same business of supplying of construction material. The business of garage was not running fairly due to inconsistent statement of prosecution witnesses at different places about the number of rickshaw running in the said garage which is already discussed in the evidence above. Hence the business of running of rickshaw garage appears to be SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 14 of 42 not running well due to which the complainant side had a reason to established themselves in the business of supply of construction material. The grudge against accused person is established due to the facts discussed in para above which shows that the complainant wanted to dispel the accused person from supplying building construction material.
14. PW-3/Ms. Dhanwati @ Dhanno has totally turned hostile to the case of the prosecution and in cross-examination she has deposed as correct that she was not present at the time of commission of offence.
15. PW-13 has deposed that on 08.03.2012 the day when the incident had occurred at about 6:45 PM was the day when there was festival of Holi. The same is also deposed by PW-1 at first page of his examination- in-chief and it is admitted as correct at page 3 of his cross-examination dated 08.07.2019 that the day of incident was Holi festival and all the shops were closed on that day. When the shops on that day are closed then it is difficult to believe that both the complainant and accused person were opening their shop on the day of Holi festival.
16. At page 5 of cross-examination dated 08.07.2019 PW-1 has deposed that around 200-300 person might have gathered at the spot. However PW-1 did not call the police at 100 number and he is not aware that who had called the police at 100 number. Police came at the spot within 5-10 mins.
17. At page 5 of cross-examination dated 08.07.2019 PW-1 has deposed that all the accused person have fled away from the spot.
SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 15 of 4218. At page 5 of cross-examination dated 08.07.2019 PW-1 has deposed that at Aruna Asaf Ali hospital, again said at Trauma Centre the doctor had told him to get treatment from an private doctor after receiving first aid treatment. He cannot produce any document to show such advice given by doctor to him.
19. At page 6 of cross-examination dated 08.07.2019 PW-1 has deposed that the site plan was not prepared by the police in his presence. However he had informed everything to police and the site plan Ex.PW1/B (at page no. 77 of document file) was prepared at his instance. Hence correct preparation of site plan is itself in doubt. The site plan is Ex.PW1/B and it does not record that it is prepared at the instance of PW-1. PW-14 has deposed that he had prepared the site plan at the instance of PW-1. The PW-14 has deposed that Ct. Surender had went to PS for registration of FIR. After that Ct. Surender returned back to the spot and handed over copy of FIR and Rukka to PW-14 where PW-14 had already reached with PW-1. The information was received at 0:05 AM on 09.03.2012 as per FIR Ex.PW5/A. The incident had occurred around 6:45 PM and within 10 mins the police had reached there. That means by 7 PM the incident was over between the parties and why there was delay of about 5 hours in recording the FIR in the matter has remained unexplained by the prosecution. Vide Ex.PW6/A DD No. 46B dated 08.03.2012 the information was already given to the PS (at page no. 79 of document file). The MLC of PW1 is Ex.PW8/B and his time of arrival at Sushruta Trauma Centre was 7:30 PM on 08.03.2012. He was brought by PCR. In the MLC it is recorded that assault was reported by the patient. However the name of the assailants was not disclosed. By SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 16 of 42 not mentioning the name of all the assailants despite knowing the assailants before hand shows that sufficient time was available with the PW-1 to improve upon his story. Only physical assault is reported. Similarly PW-13 Anuj Pandit in MLC Ex.PW9/A has not reported the name of the assailants. PW-2/Sehdev in his MLC Ex.PW10/A has also not reported the name of the assailants. It cannot be a matter of chance that PW-1, PW-2 and PW-13 have not reported the name of assailants in their MLC. Nor in the MLC it is alleged that they were assaulted by Belcha or iron rod. Hence non disclosure of the name of assailants and not disclosing the nature of weapon in the MLC creates serious doubt in the case of the prosecution that the accused person has allegedly caused injuries with such weapons on the victims.
20. In the chargesheet the IO records that the PW-1 had reported that bone of his hand was broken. PW-8 Dr. Sumit Raj has deposed that the Dr. Anand had examined PW-1 Rajmani. He has deposed on the basis of X-ray report Ex.PW8/A. He has identified the signature and handwriting of Dr. Anand. Dr. Anand had observed fracture in proximal third ulna bone and opined the nature of injury as grievous in the MLC Ex.PW8/B.
21. As per Ex.PW1/A the complaint the accused no. 4 Ram Pratap and accused no. 2 Vijay Dass had hit Belcha and iron rod respectively on the head of PW-1 and accused no. 3 Nishant had hit PW-1 on the hand. Hence the injury of fracture on the hand of PW-1 came from the blow struck by accused no. 3. Medical evidence has shown that the injury was received on the hand of PW-1 on the assault caused by accused no. 3 Nishant by iron rod. PW-13 at page 2 of his examination-in-chief has SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 17 of 42 deposed that he saw accused Nand Kishore holding iron pipe, accused Nishant holding iron pipe and accused Ram Pratap holding Belcha. In the road certificate Ex.PW7/B (at page no. 285 of document file) shows that four iron rods were in different Pulanda and one Belcha was in different Pulanda. Hence four iron rods and one Belcha were recovered. Initially in the complaint ExPW1/A name of four accused were mentioned and not of accused no. 5 Bijender Dass. The disclosure of accused Nand Kishore is Ex.PW12/J who has deposed that he can get recovered the Pipenuma rod from his jhuggi under the Charpai. However the disclosure statement of any of the accused is not recorded under signature of an independent Panchnama witness though there was sufficient time available with the police official to call Panchnama witness and record disclosure statement as per law laid down in the citation titled Ramanand @ Nand Lal Bharti vs. State of Uttar Pradesh 2022 SCC OnLine SC 1396 (Coram:3). Para No.51 to 76 with specific reference to Para 53, the relevant para of which are reproduced hereasunder:
51. It is the case of the prosecution that on 24.01.2010 the accused appellant was picked up by the investigating officer from nearby a bus stand and was arrested in connection with the alleged crime.
After the arrest of the accused appellant and while he being in the custody at the police station, he is said to have on his own free will and volition made a statement that he would like to point out the place where he had hidden the weapon of offence (Banka) and his blood-stained clothes after the commission of the alleged crime. According to him, after such statement was made by the accused appellant, he along with his subordinates set forth for the place as led by the accused. There is something very unusual, that we have noticed in the oral evidence of the investigating officer. According to him while the police party along with the accused were on their way, all of a sudden, the investigating officer realized that he should have two independent witnesses with him for the purpose of drawing the panchnama of discovery. In such circumstances, while on the way the investigating officer picked up PW-2, Chhatarpal Raidas and Pratap to act as the panch witnesses. According to the SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 18 of 42 investigating officer the accused led them to a coriander field and from a bush he took out the weapon of offence (Banka) and the blood-stained clothes. The weapon of offence and the blood- stained clothes were collected in the presence of the two panch witnesses and the panchnama Exh. 5 was accordingly drawn. The weapon of offence and the blood stained clothes thereafter were sent for the Serological Test to the Forensic Science laboratory. We are of the view that the Courts below committed a serious error in relying upon this piece of evidence of discovery of a fact, i.e., the weapon & clothes at the instance of the accused as one of the incriminating circumstances in the chain of other circumstances. We shall explain here below why we are saying so.
In the aforesaid
52. Section 27 of the Evidence Act, 1872 reads thus:
"27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
53. 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 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.
SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 19 of 42If 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.
54. The reason why we are not ready or rather reluctant to accept the evidence of discovery is that the investigating officer in his oral evidence has not said about the exact words uttered by the accused at the police station. The second reason to discard the evidence of discovery is that the investigating officer has failed to prove the contents of the discovery panchnama. The third reason to discard the evidence is that even if the entire oral evidence of the investigating officer is accepted as it is, what is lacking is the authorship of concealment. The fourth reason to discard the evidence of the discovery is that although one of the panch witnesses PW2, Chhatarpal Raidas was examined by the prosecution in the course of the trial, yet has not said a word that he had also acted as a panch witness for the purpose of discovery of the weapon of offence and the blood stained clothes. The second panch witness namely Pratap though available was not examined by the prosecution for some reason. Therefore, we are now left with the evidence of the investigating officer so far as the discovery of the weapon of offence and the blood stained clothes as one of the incriminating pieces of circumstances is concerned. We are conscious of the position of law that even if the independent witnesses to the discovery panchnama are not examined or if no witness was present at the time of discovery or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the discovery evidence unreliable. In such circumstances, the Court has to consider the evidence of the investigating officer who deposed to the fact of discovery based on the statement elicited from the accused on its own worth.
55. Applying the aforesaid principle of law, we find the evidence of the investigating officer not only unreliable but we can go to the extent to saying that the same does not constitute legal evidence.
56. The requirement of law that needs to be fulfilled before accepting the evidence of discovery is that by proving the contents of the panchnama. The investigating officer in his deposition is obliged in law to prove the contents of the panchnama and it is only if the investigating officer has successfully proved the contents of the discovery panchnama in accordance with law, then SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 20 of 42 in that case the prosecution may be justified in relying upon such evidence and the trial court may also accept the evidence. In the present case, what we have noticed from the oral evidence of the investigating officer, PW-7, Yogendra Singh is that he has not proved the contents of the discovery panchnama and all that he has deposed is that as the accused expressed his willingness to point out the weapon of offence the same was discovered under a panchnama. We have minutely gone through this part of the evidence of the investigating officer and are convinced that by no stretch of imagination it could be said that the investigating officer has proved the contents of the discovery panchnama (Exh.5). There is a reason why we are laying emphasis on proving the contents of the panchnama at the end of the investigating officer, more particularly when the independent panch witnesses though examined yet have not said a word about such discovery or turned hostile and have not supported the prosecution. In order to enable the Court to safely rely upon the evidence of the investigating officer, it is necessary that the exact words attributed to an accused, as statement made by him, be brought on record and, for this purpose the investigating officer is obliged to depose in his evidence the exact statement and not by merely saying that a discovery panchnama of weapon of offence was drawn as the accused was willing to take it out from a particular place.
57. Let us see what has been exactly stated in the discovery panchnama (Exh.5) drawn on 24.01.2010. We quote the relevant portion as under:
"Today on 24.1.2010, the arrested accused Ramanand alias Nandlal Bharti son of Late Shri Gobre, resident of Naamdar Purwa, HamletAmethi, original resident of village Basadhiya, Police Station Isanagar, District Lakhimpur Kheri has been taken out of the lockup, taken in confidence and then interrogated by me the Station House Officer Yogendra Singh before Hamrah S.S.I. Shri Uma Shankar Mishra, S.I. Shri Nand Kumar, Co. 374 Mo. Usman, Co. 598 Prabhu Dayal, Co. 993 Santosh Kumar Singh, Co. 394 Shrawan Kumar then he confessed the offence occurred in the incident and weepingly said in apologizing manner that, "I myself have committed this crime to get government grant for being a rich man and to marry Km. Manju D/o Kanhai, resident of Pakadiya, Police Station Tambaur, District Sitapur regarding whereof the detailed statement has been recorded by you. The baanka used in the incident and the pantshirt, on which blood spilled from the bodies of deceased persons got stained and which had been put off by me due to fear, have been kept hidden at a secret place by me which I can get recovered by going there." In expectation of recovery of murder weapon and blood stained clothes, I the Station House Officer Yogendra Singh alongwith aforesaid Hamrahis SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 21 of 42 departed carrying accused Ramanand alias Nandlal Bharti by official jeep UP70AG0326 alongwith driver Raj Kishor Dixit for the destination pointed out by the accused, vide Rapat No.7 time 07.15..." [Emphasis supplied]
58. We shall now look into the oral evidence of the PW7, Investigating Officer wherein, in his examination in chief, he has deposed as under:
"In January 2010 I was posted as Station House Officer, Kotwali Dhaurahara. On 22.1.10, I myself had taken the investigation of aforesaid case. On that day I had copied chik, rapat and recorded the statements of chik writer H. Constable Dhaniram Verma and complainant of the case. After recording the statement of complainant of the case Shambhu Raidas I inspected the occurrence spot on his pointing out and prepared the site plan which is present on record; on which Exhibit Ka6 has been marked. And I had also recorded the statement of hearsay witnesses Ahmad Hussain and Nizamuddin. On 23.1.10, I recorded the statements of witnesses Kshatrapal, Rustam Raidas. On 24.1.10, I arrested accused Ramanand and recorded his statement and when he expressed that he may get recovered the murder weapon used in the incident, I recovered the murder weapon baanka before the witnesses on his pointing out; which had been sealedstamped at the spot and its recovery memo had been prepared at the spot itself, which is present on record as Exhibit Ka5...." [Emphasis supplied]
59. We shall also look into the oral evidence of the PW6, Uma Shankar Mishra who at the relevant point of time was serving as a SubInspector Chowki Incharge Bahjam, Police Station. It appears that the PW6 had also participated in the proceedings of discovery panchnama. He has deposed in his examination in chief as under:
"On 24.11.2010, I was posted at Police Station Dhaurahara. That day, Ramanand S/o Gobre Rio Naamdar Purwa, Police Station Dhaurahara, domicile of village Basadhiya, Police Station Isha Ganj, DistrictKheri, the arrested accused of Crime No. 49/10 U/S 302 State versus Ramanand alias Nandlal Bharti, was taken out of male lock up by the then Incharge Inspector and followers S.I. Nand Kumar, Co. Mo. Usman, Co. Prabhu Dayal, Co. Santosh Kumar Singh and Co. Shravan Kumar, and interrogated by the Incharge Inspector in my presence, during which he confessed and told that he would get recovered the murder weapon used in the murder and his blood stained pantshirt which he had kept hidden at a secret place. On this, expecting the recovery of murder weapon and blood stained clothes, the SHO along with followers and force, carrying accused Ramanand with him, departed on an official jeep ~ vide GD No. 7 time 7:15 a.m dated 24.01.2010. On the way, he SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 22 of 42 picked up public witnesses Chhatrapal S/o Rameshwar and Pratap S/o Asharfi Lal, both residents of Naamdar Purwa, HamletAmethi for the purpose of recovery." [Emphasis supplied]
60. From the aforesaid two things are quite evident. In the original panchnama (Exh.5), the statement said to have been made by the accused appellant figures, however, in the oral evidence of the PW- 7, investigating officer & PW-6, Sub-Inspector the exact statement has not been deposed, more particularly when it comes to the authorship of concealment. The contents of the panchnama cannot be read into evidence as those do not constitute substantive evidence.
61. Further, the examination in chief of the PW6, Sub Inspector and PW7, investigating officer does not indicate that they were read over the panchnama (Exh.5) before it was exhibited, since one of the panch witnesses was not examined and the second panch witness though examined yet has not said a word about the proceedings of the discovery panchnama. Everything thereafter fell upon the oral evidence of the investigating officer and the Sub Inspector (PW6).
62.In the aforesaid context, we may refer to and rely upon the decision of this Court in the case of Murli v. State of Rajasthan reported in (2009) 9 SCC 417, held as under:
"34. The contents of the panchnama are not the substantive evidence. The law is settled on that issue. What is substantive evidence is what has been stated by the panchas or the person concerned in the witness box......." [Emphasis supplied]
63. One another serious infirmity which has surfaced is in regard to the authorship of concealment by the person who is said to have discovered the weapon.
64. The conditions necessary for the applicability of Section 27 of the Act are broadly as under:
(1) Discovery of fact in consequence of an information received from accused;
(2) Discovery of such fact to be deposed to;
(3) The accused must be in police custody when he gave information; and (4) So much of information as relates distinctly to the fact thereby discovered is admissible -Mohmed Inayatullah v. The State of Maharashtra: AIR (1976) SC 483
65. Two conditions for application -
(1) information must be such as has caused discovery of the fact;SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 23 of 42
and (2) information must relate distinctly to the fact discovered -
Earabhadrappa v. State of Karnataka: AIR (1983) SC 446"
66. We may refer to and rely upon a Constitution Bench decision of this Court in the case of State of Uttar Pradesh v. Deoman Upadhyaya reported in AIR (1960) SC 1125, wherein, Paragraph- 71 explains the position of law as regards the Section 27 of the Evidence Act:
"71. The law has thus made a classification of accused persons into two: (1) those who have the danger brought home to them by detention on a charge; and (2) those who are yet free. In the former category are also those persons who surrender to the custody by words or action. The protection given to these two classes is different. In the case of persons belonging to the first category the law has ruled that their statements are not admissible, and in the case of the second category, only that portion, of the statement is admissible as is guaranteed by the discovery of a relevant fact unknown before the statement to the investigating authority. That statement may even be confessional in nature, as when the person in custody says: "I pushed him down such and such mineshaft", and the body of the victim is found as a result, and it can be proved that his death was due to injuries received by a fall down the mineshaft." [Emphasis supplied]
67. The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Pulukuri Kottaya and Others v. Emperor, AIR 1947 PC 67, which have become locus classicus, in the following words:
"10. ....It is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
68. What emerges from the evidence in the form of panchnama is SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 24 of 42 that the appellant stated before the panch witnesses to the effect that "I will show you the weapon used in the commission of offence". This is the exact statement which we could read from the discovery panchnama and the Investigating Officer also could not have deposed as regards the exact statement other than what has been recorded in the panchnama. This statement does not suggest that the appellant indicated anything about his involvement in concealment of the weapon. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source. He may have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered weapon, he was the person who concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the panchnama of the discovery of weapon and the evidence in this regard is that he disclosed that he would show the weapon used in the commission of offence. In the same manner we have also perused the panchnama Exh.32 wherein the statement said to have been made by the accused before the panchas in exact words is "the accused resident of Roghada village on his own free will informs to take out cash and other valuables".
69. What emerges from the evidence of the investigating officer is that the accused appellant stated before him while he was in custody, "I may get discovered the murder weapon used in the incident". This statement does not indicate or suggest that the accused appellant indicated anything about his involvement in the concealment of the weapon. It is a vague statement. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source also. He might have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the substantive evidence as regards the discovery of weapon is that the appellant disclosed that he would show the weapon used in the commission of offence.
70.In Dudh Nath Pandey v. State of U. P., AIR (1981) SC 911, this Court observed that the evidence of discovery of pistol at the instance of the appellant cannot, by itself, prove that he who pointed out the weapon wielded it in the offence. The statement accompanying the discovery was found to be vague to identify the authorship of concealment and it was held that pointing out of the SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 25 of 42 weapon may, at the best, prove the appellant's knowledge as to where the weapon was kept.
71. Thus, in the absence of exact words, attributed to an accused person, as statement made by him being deposed by the investigating officer in his evidence, and also without proving the contents of the panchnama (Exh.5), the trial court as well as the High Court was not justified in placing reliance upon the circumstance of discovery of weapon.
72. If it is the case of the prosecution that the PW2, Chhatarpal Raidas, s/o Rameshwar Raidas had acted as one of the panch witnesses to the drawing of the discovery panchnama, then why the PW2, Chhatarpal Raidas in his oral evidence has not said a word about he having acted as a panch witness and the discovery of the weapon of the offence and blood stained clothes being made in his presence. The fact that he is absolutely silent in his oral evidence on the aforesaid itself casts a doubt on the very credibility of the two police witnesses i.e. PW6 and PW7 respectively.
73. In the aforesaid context, we may also refer to a decision of this Court in the case of Bodhraj alias Bodha and Others v. State of Jammu and Kashmir reported in (2002) 8 SCC 45, as under:
"18. .....It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 26 of 42 doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of the Privy Council in Pulukuri Kottaya v. Emperor [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. (See State of Maharashtra v. Damu Gopinath Shinde [(2000) 6 SCC 269 : 2000 SCC (Cri) 1088 : 2000 Cri LJ 2301] .) No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given." [Emphasis supplied]
74. Mr. Upadhyay, the learned counsel for the State would submit that even while discarding the evidence in the form of discovery panchnama the conduct of the appellant herein would be relevant under Section 8 of the Evidence Act. The evidence of discovery would be admissible as conduct under Section 8 of the Evidence Act quite apart from the admissibility of the disclosure statement under Section 27 of the said Act, as this Court observed in A.N. Venkatesh vs. State of Karnataka, (2005) 7 SCC 714:
"9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.) [(1979) 3 SCC 90 : 1979 SCC (Cri) 656 : AIR 1979 SC 400] . Even if we hold that the disclosure statement made by the accusedappellants (Exts. P15 and P16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 27 of 42
8....." [Emphasis supplied]
75. In the aforesaid context, we would like to sound a note of caution. Although the conduct of an accused may be a relevant fact under Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder. Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. What we are trying to convey is that the conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction.
76. Thus, in view of the aforesaid discussion, we have reached to the conclusion that the evidence of discovery of the weapon and the blood stained clothes at the instance of the accused appellant can hardly be treated as legal evidence, more particularly, considering the various legal infirmities in the same.
22. Similarly the disclosure statement Ex.PW12/K of accused Nishant, Ex.PW12/L of accused Bijender Dass, Ex.PW12/M of accused Vijay Dass, Ex.PW12/P of accused Ram Pratap is not recorded before any Panchnama witness nor any public witness is joined at the time of recovery. Hence public witness is not joined while making recovery vide seizure memo Ex.PW12/Q to Ex.PW12/U. Even the recovery was shown to be effected from accused no. 5 Bijender vide memo Ex.PW12/T. Though in the complaint Ex.PW1/A he was not present at the spot at the time of commission of the crime. Sehdev/PW-2 has stated in his statement under Section 161 Cr. PC that accused Bijender has came to the spot later on and he had hit on his head with iron rod. Whereas in his examination-in-chief he has deposed that when he had reached at the spot then accused no. 1 to 4 were giving beating to his brother PW-1 with iron pipes and he does not speak that accused no. 4 Ram Pratap was giving beating with Belcha. It is deposed that on seeing him all the accused started beating him and accused Nand Kishore had hit him on SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 28 of 42 his forehead. Nishant had hit him due to which bone of his nose got fractured. Accused Vijay, Vijender/Bijender and Pratap gave him beating with iron pipe and he started bleeding from his thigh and nose. The nature of injury on MLC of PW-2 Sehdev vide Ex.PW10/A is reported as simple. Hence no fracture of bone of PW-2 is proved on record. PW-14/Insp. Vikram Dahiya at page 4 of his examination-in-chief has deposed that accused Ram Pratap had got recovered one Belcha from under the Takht of his jhuggi no. N-62/1/A, whereas as per disclosure memo of accused no. 4 Ram Pratap vide Ex.PW12/P the accused Ram Pratap Singh is resident of A-58/4, Gali no. 7, village Khajuri Khas, Delhi and he is not resident or owner of the jhuggi from where the recovery was effected. In his statement under Section 313 Cr. PC the address of accused Ram Pratap is mentioned as N-62/1A, Patrachar Jhuggi, Timarpur, Delhi. In the chargesheet after verification by IO the address of accused no. 4 is mentioned as A-58/4, Gali no. 7, village Khajuri Khas, Delhi. Therefore it was incumbent on the part of prosecution to prove that accused Ram Pratap was in ownership and possession of N-62/1A, Patrachar Jhuggi, Timarpur, Delhi. When the same is not proved by the prosecution then the recovery of Belcha from accused Ram Pratap has become doubtful.
23. PW-1 at page 5 of his cross-examination dated 08.07.2019 has deposed that 200-300 person might have gathered at the spot at the time of incident and none of the above 200-300 person came forward to intervene. PW-14/Insp. Vikram Dahiya at page 6 of his cross- examination has deposed that he had reached at the spot at 7:10 PM after marking of DD No. 46B to him at 7:05 PM. It means that he had SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 29 of 42 reached at the spot within 5 minutes of marking of case to him. He has deposed that 20-30 person have found gathered at the spot and none of them had given any clue about the manner in which quarrel had taken place. He had not found any blood spot at the place of occurrence. No crime team was called by him. It is admitted by him that no public witness is signatory to seizure memo Ex.P4 to Ex.P8. He had examined only one public witness Ms. Dhanwati/PW-3 apart from injured witness. Ms. Dhanwati has turned hostile to the case of the prosecution and it is deposed that she was not present at the place of occurrence when the Jhagda had taken place. She has deposed that she was at the shop and not at the place of incident. The suggestion of not so recording of statement of witness Dhanwati is denied by PW-14 and hence the statement of witness Dhanwati is confronted to the IO/PW-14. The name and address of such public witness is not recorded by the IO. Hence non-joining of public witness both during inspection of the spot and also during recovering the article of offence Ex.P4 to Ex.P8 has created doubt in the case of the prosecution if the investigation was conducted fairly. The relevant citation titled Mustakeen @ Bhura vs. State (Govt. of NCT Delhi) on 2nd November, 2020 in CRL. A. 419/2018 & CRL. M. (BAIL) 6459/2020 in this regard is reproduced hereasunder:
56. It is a settled principle of law that the prosecution has to stand on its own legs and cannot draw strength from the lacuna in the defence case. The appellant may have taken a wrong defence, but it was for the prosecution to prove its case. In "Sharad Birdhichand Sarda Vs. State of Maharashtra", Criminal Appeal No. 745 of 1983 decided on 17.07.1984 by the Supreme Court of India it has been held that the absence of explanation and /or post explanation, or a false plea taken by an accused was not sufficient to convict the accused. It was observed in this case that "it is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence". This is trite law SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 30 of 42 and no decision has taken a contrary view. What some cases have held is only that:
"where various links in a chain are in themselves complete, then a false plea for a false decence may be called for aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by the Court." In the instant case, we have already held that PW 11 is not an eye witness of this case. Considering PW 11 to be the eye witness of this case, and throwing all settled principles of law relating to TIP to winds, constable Kuldeep was joined in the raiding party alongwith secret informer and other police officials for apprehending the accused persons of the incident which took place on 6.3.2011, but PW 11 has categorically stated to PW 44 SI Bhim Sain that appellant Arshad was not involved in the crime which took place on 6.3.2011, but despite that his disclosure statement was recorded and recovery of Rs. 40,000/- was effected from him. No doubt, the appellant has not been able to give proper explanation as to how he was in possession of Rs. 40,000/-, but burden was upon the prosecution to prove that the appellant was involved in the crime which took place on 6.3.2011, which the prosecution has miserably failed to do, as discussed hereinabove. Therefore, the Ld. Trial Court was not correct in drawing presumption against the appellant Arshad U/s 114 of the Indian Evidence Act and to convict him. The only evidence which remains on record against appellant Arshad is his disclosure statement which is not admissible in evidence. Apart from this, there is not even an iota of evidence against appellant Arshad to connect him with the crime which took place on 6.3.2011.
62. We are aware that there is no rule of law or evidence, which lays down that unless and until the testimony of the police official is corroborated by some independent evidence, the same cannot be believed. But it is a Rule of Prudence, that a more careful scrutiny of the evidence of the police officials is required, since they can be said to be interested in the result of the case projected by them.SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 31 of 42
63. In the instant case, we have already observed hereinabove in the judgment that PW 11 Ct. Kuldeep who has been projected as an eye witness by the IO of this case, is not an eye witness and has been planted in order to "solve" the case. Therefore, we have find it hard to believe the testimonies of the police officials in the absence of corroboration from any public witness, looking into the facts and circumstances of this case and also the manner in which the IO and the SHO have conducted themselves. For the sake of repetition, the IO had made no efforts to join the public witnesses. Had he made any such efforts, then the things would have been different, but in the instant case, the manner in which the investigation has been done and the non joining of any public witnesses reduces the arrest and search of the appellant untrustworthy, and the same does not inspire confidence.
65. We fail to understand as to why a person who had allegedly killed a man and is the BC of the area would be carrying with him all the articles mentioned hereinabove with him, that too after 11 days of the incident. In our opinion, 11 days were sufficient for the appellant Mustakeem to get rid of these articles but, strangely enough, as per the prosecution, he was roaming around with all this stuff of the deceased attached to his chest. It is also a matter of common sense that whenever an offence is committed in the jurisdiction of a police station, as a matter of routine, the concerned SHO places suspicion on the local goons and specially BC of the area. So, when such is the situation, we fail to digest the theory of the prosecution that on the day of his arrest-which is after 11 days of the date of the incident, appellant Mustakeem would be carrying with him the articles of the deceased. There would have been record of the accused maintained in the Police Station and the same could be used to identify him and establish his involvement. Where was the necessity of involving a secret informer?
69. In order to connect the appellant Mustakeem with the offence, again the Ld. Trial Court has raised presumption U/s 114
(a) of the Indian Evidence Act. The presumption U/s 114 (a) of the Indian Evidence Act may be available if the goods in question found in possession of the person in question after the theft, are proved to be stolen property. Unless the goods are proved to be stolen property, the presumption U/s 114 (a) of the Act is not available. In the instant case, the prosecution has not been able to prove that it was the appellant who had committed the offence on the date of the incident as alleged by the prosecution. It was also not justified on the part of the Ld. Trial Court to draw presumption U/s 114 (a) of the Evidence Act as the possession, if any, cannot be said to be recent possession.SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 32 of 42
Therefore, if the prosecution has not been able to prove that the sum of Rs. 70,000/- which according to the prosecution was allegedly recovered from the appellant Mustakeem, was the looted amount, the appellant cannot be convicted with the crime by raising presumption U/s 114 (a) of the Indian Evidence Act.
24. The ld. Counsel for accused has submitted that between the same parties cross FIR is also registered vide FIR no. 54/2012. It is submitted that accused no. 4 Ram Pratap has suffered grievous hurt. Accused no. 1 Nand Kishore has suffered simple injuries. Accused Bijender has suffered grievous injuries and accused Vijay Dass has also suffered injury. DW-2 Dr. Debashish has deposed that on 23.03.2012 he had examined accused no. 4 Ram Pratap at Hindu Rao hospital vide OPD slip Mark DW2/1 which has reported pain in left ankle since last 15 days. Trauma has occurred and X-ray of left leg is prescribed. The present Court has also called the necessary medical record at the stage of defence evidence. Vide order dated 26.09.2022 it is recorded that Sh. Gaurav Kumar Yadav, Jail Supdt. Tihar Jail has appeared with Sr. Medical Officer Dr. Ramesh and another SMO who had submitted that the medical record of accused Nand Kishore and Vijay Dass have already been destroyed for the year 2012 and it is not available. However the medical prescription slip of accused Nand Kishore dated 12.03.2012 vide Mark DW1/D records assault dated 08.03.2012 who has reported pain on right shoulder and X-ray of right shoulder was prescribed. Swelling was found on right upper portion of the shoulder. The injury was recorded as fresh injury. Swelling and tenderness was seen on the right shoulder. The patient was conscious and oriented. No orthopedic surgeon was available and he was referred to DDU hospital for further management. DW-1 Sh. Raj Kumar, Supdt. Tihar Jail no. 4 has deposed SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 33 of 42 that as per report of the concerned doctor at Tihar jail inmate Ram Pratap and Nand Kishore has alleged history of receiving injuries due to assault in August 2012 outside the jail and the patient ticket are Mark DW1/C and Mark DW1/B respectively. DW-3 Ms. Shashi Dass has deposed that on 08.03.2012 around 7 PM she had gone to public toilet when she heard noise. When she came out then she saw Nand Kishore lying on the ground in unconscious condition. She had informed the police by taking mobile of a person. She brought mobile phone from her house and took photograph of Nand Kishore. She has identified PW-1 Rajmani standing at the spot and other person were there who were holding Saria/iron rod, one Belcha, one axle with them. Two photographs were taken by her which are Ex.PW1/G in the connected case file. The defence Counsel is asked to file certified copy of said documents/photo which were taken from Nokia mobile phone. It is deposed that in 10-15 mins police vehicle Tata 407 came at the spot who lifted Nand Kishore and Vijay and taken them to the hospital. However original of the said mobile phone is not brought by DW-3 before the present Court for the reason that the screen of the said mobile phone was damaged and thereafter she had purchased the another mobile phone. She has also not filed certificate under Section 65B of Evidence Act of the photo taken. She does not know the name of the police official who took Nand Kishore and Vijay to the hospital. She saw Saria, Belcha and axle from a distance of 60-70 mtrs. and street lights were there on the stretch of the road but they were not beaming as they were out of order. It was dusk time. Hence the photographs are not proved by DW-3 by best evidence. She has also not proved having called the police. Streets lights were out of order and having witnessed the incident from a distance in dark place does not make reliable the SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 34 of 42 testimony of DW-3. The certified copy of photograph are seen on record as Ex.PW1/G in which the accused is seen lying on the road and other person are also standing around him. The state has not disputed that above accused have not suffered such injuries. However the mode of proof of photographs are disputed. The accused person have to probabilise its defence and not to prove it beyond reasonable doubt. The examination of accused Nand Kishore at Central Jail Tihar vide Ex.DW1/D and of accused no. 4 Ram Pratap Singh at Hindu Rao hospital vide Mark DW2/1 is not disputed by the state neither it is disputed that the X-ray was recommended in respect of both the above accused. The above evidence is corroborated by unproved evidence of DW-3 Ms. Shashi Dass that she had seen accused Nand Kishore lying on the ground in unconscious condition at 7 PM on 08.03.2012. the presence of DW-3 is not disputed in cross-examination by the state and it is only disputed that she had not seen weapon/article at the spot or that photographs were not taken by her. Hence DW-3 has sufficiently corroborated that on 08.03.2012 at about 7 PM injuries were also suffered by accused Nand Kishore and when the same is read with evidence of DW-1 then it also shows that injuries were also suffered by accused no. 4 Ram Pratap.
25. In view of such suffering of injuries by the accused person the chargesheet filed by the prosecution is seen wherein it is recorded that when the accused person has allegedly hit the victims then the people residing in Jhuggi had gathered there and accused person had ran away from the spot. It shows that as per prosecution story there is no article of offence in possession of the victims. PW-14 has deposed that he had SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 35 of 42 reached at the spot by 7:10 PM and by that time all the injured were already taken to the hospital. The information was received by the police vide DD no. 46B dated 08.03.2012 vide Ex.PW6/A. The information was received from PCR Ct. Sanjeev from mobile no. 9289525782. When the victim had no arms with them then in that event the serious injuries reportedly suffered by the accused person are required to the explained by the prosecution. The injuries on accused Nand Kishore are reported as fresh injuries. The prosecution has filed photocopy of MLC of accused in four pages. The said MLC are filed from Aruna Asaf Ali Government hospital. Hence the said MLC can be perused and relied upon even when the prosecution has not brought the said MLC in the evidence. The MLC of accused Ram Pratap records nature of injury as blunt and he was brought by Ct. Surender Rathi on 09.03.2012. The accused Vijay Dass was also examined at Aruna Asaf Ali hospital and nature of his injuries were reported as simple while examined on 08.03.2012 at 8:35 PM. Accused no. 5 Bijender was examined on 08.03.2012 at Aruna Asaf Ali hospital and nature of injuries are reported as grievous which supports the argument made by ld. Counsel for the accused that accused Ram Pratap had suffered fracture due to assault on 08.03.2012. The nature of injuries are blunt. Accused Nand Kishore was also examined at Aruna Asaf Ali hospital on 08.03.2012 and nature of injuries reported upon him are simple. The accused no. 5 Bijender has suffered grievous injuries and accused Ram Pratap has also suffered injuries opinion of which were not filed by the prosecution on record. It was incumbent duty on the part of prosecution to bring such evidence on record as the investigation has to be fair and impartial and by withholding such relevant evidence presumption has drawn that had such evidence been produced on record SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 36 of 42 then it would be in favour of accused under Section 114(g) of Indian Evidence Act keeping in view the arguments made by ld. Counsel for accused that accused Ram Pratap has suffered fracture. Hence the unexplained injuries on the accused which are serious in nature creates serious doubt in the case of the prosecution keeping in view the fact that accused no. 4 Ram Pratap in his statement under Section 313 Cr. PC has stated that on the day of incident when he was going to his house from the house of accused no. 1 and 2 after celebrating Holi festival then the victim in this case came preplanned to attack him having enmity due to running common business of construction material. The victim in this case came armed with weapon who surrounded them and attacked them. When they had raised alarm then accused no. 1 Nand Kishore came for their help and accused no. 4 Ram Pratap fled from the spot and reached straight to the hospital. It is deposed that he is falsely implicated in this case. The accused persons have by the nature of injuries suffered by them and with their defence evidence have probabilise the defence that the victims were probable aggressors. It is also noted that after their medical examination accused and the victim have met only once at the spot in this incident and keeping in view the serious nature of injury which is fracture by accused no. 4 Ram Pratap and accused no. 5 Bijender Dass with simple injuries on other accused which are not explained by the prosecution creates serious doubt in the case of the prosecution. The relevant citation titled Kannaiya Vs. State of M.P. 2025 SCC Online SC 2270 wherein it is laid down that when the both the parties have rivalry and which is not in dispute then the prosecution witness has to be examined with great care. It is also laid down that when there is significant contradiction in the genesis of occurrence of the SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 37 of 42 offence then the accused cannot be convicted. It is unsafe to rely and rest conviction when the evidence produced by the prosecution does not have quality nor credibility. Once the prosecution is found to have suppressed the genesis of the occurrence then the only proper course is to grant the accused benefit of doubt. The relevant para no. 27, 48 to 60 are reproduced hereasunder:
27. At the outset, we may take note of the fact that the factum of the complainant party and the accused party belonging to rival political factions is not in dispute. It is in this background that we will have to test the veracity of evidence of the prosecution witnesses with greater care and circumspection.
48. Clearly thus, the very substratum of the prosecution case regarding the genesis of the incident and the place of occurrence has been materially altered in the testimony of the witness (PW-5).
49. Madho Singh (PW-5) was an attesting witness to the site inspection plan (Exh. P-6) wherein, the fact regarding the incident having taken place in the field of Gopya is recorded. His version that the incident started when the assailants started acting aggressively in front of the house of Narsingh is contradicted by the fact that there is no reference to any such house in the site inspection plan (Exh. P-6) to which Madho Singh (PW-5) himself was an attesting witness.
Xxxxxxxxxxxx
54.At the cost of repetition, we may reiterate that contrary to the version of Madho Singh (PW-5) that he alone lifted Ramesh and took him to the house, the FIR records that the first informant, Gobariya (PW-2) and, Madho Singh (PW-5), together picked up Ramesh and brought him home.
57. The site inspection plan (Exh. P-6) does not record availability of any source of light at the crime scene and hence, it is hard to believe that the alleged eyewitnesses (PW-5 and PW-12) could have accurately identified the particular weapon being used by the accused to assault Ramesh. Both the alleged eyewitnesses (PW-5 and PW-12) have tried to supress the genesis of occurrence and also changed the crime scene and hence, their presence at the spot becomes doubtful.
SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 38 of 4258. In this regard, reference may be made to the decision of this Court in Pankaj v. State of Rajasthan9, wherein it was emphasised that when the genesis and manner of the incident itself are doubtful, conviction cannot be sustained. The Court held as under:
--
"25. It is a well-settled principle of law that when the genesis and the manner of the incident is doubtful, the accused cannot be convicted. Inasmuch as the prosecution has failed to establish the circumstances in which the appellant was alleged to have fired at the deceased, the entire story deserves to be rejected. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence. After having considered the matter thoughtfully, we find that the evidence on record in the case is not sufficient to bring home the guilt of the appellant. In such circumstances, the appellant is entitled to the benefit of doubt."
(Emphasis Supplied)
59. Similarly, in Bhagwan Sahai v. State of Rajasthan10, this Court reiterated that once the prosecution is found to have suppressed the origin and genesis of the occurrence, the only proper course is to grant the accused the benefit of doubt. The Court observed as follows:--
"8. The aforesaid view of the High Court is devoid of legal merits. Once the Court came to a finding that the prosecution has suppressed the genesis and origin of the occurrence and also failed to explain the injuries on the person of the accused including death of father of the appellants, the only possible and probable course left open was to grant benefit of doubt to the appellants. The appellants can legitimately claim right to use force once they saw their parents being assaulted and when actually it has been shown that due to such assault and injury their father subsequently died. In the given facts, adverse inference must be drawn against the prosecution for not offering any explanation much less a plausible one. Drawing of such adverse inference is given a go-by in the case of free fight mainly because the occurrence in that case may take place at different spots and in such a manner that a witness may not reasonably be expected to see and therefore explain the injuries sustained by the defence party. This is not the factual situation in the present case."
[Emphasis Supplied]
60. In the present case, the prosecution has failed to establish the genesis of the occurrence and the place of incident with any degree SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 39 of 42 of certainty. The FIR speaks of the demolition of a hut by the accused persons near the residence of Jagya (PW-3). However, Madho Singh (PW-5) shifted the crime scene to nearby his own house and denied any demolition. Puniya (PW-12) claimed that the assault occurred in the field of Gopya. Both of these witnesses (PW-5 and PW-12) have contradicted each other as well as the documentary evidence, viz. the site inspection plan (Exh. P-6). They do not acknowledge each other's presence at the crime scene. Such conflicting versions cannot co-exist within a credible narrative. The suppression of the genesis of occurrence and the shifting of the place of incident demolish the very substratum of the prosecution case.
26. The deposition of prosecution witness is contradictory. PW-1 at one place at first page of cross-examination dated 08.07.2019 has deposed that he is not running any garage of rickshaw. Then he has deposed again that he is running three rickshaw which he has rented out. Then he has deposed that he did not tell the police that he is running a rickshaw garage. Hence the business of PW-1 of rickshaw garage was not running well and he was making contradictory statements in this regard. Name of one of the accused Bijender Dass is missing in complaint Ex.PW1/A. The victims have not given any information at the PS. The injuries on the accused have remained unexplained. All the above facts shows that there is doubt that accused persons were aggressors and they had done the act as claimed by the prosecution. Accordingly it is held that the prosecution has failed to prove the first ingredient that accused persons have committed the act as aggressors or that the incident had happened the way the prosecution witness have deposed.
27. The second ingredient the prosecution has to prove that the accused person has done the act with such intention or knowledge to SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 40 of 42 commit culpable homicide not amounting to murder. When the first ingredient which is act on the part of the accused has remained unproved on record then it cannot be said that accused as aggressor have intention or knowledge to commit culpable homicide not amounting to murder. The proof of act which is first ingredient is sine qua non to prove intention or knowledge. The recovery of Belcha from accused no. 4 Ram Pratap is doubtful and similarly the recovery from other accused is also not proved as per law as discussed under first ingredient and which is not repeated herein for the sake of brevity. The remaining ingredients are dependent only on satisfaction of the first ingredient under Section 308 IPC discussed above. Therefore in absence of proof of act the dependent ingredients that the act so done by the accused person causes death he would be guilty of culpable homicide not amounting to murder or that in case hurt is caused while committing this offence the person concerned shall be awarded enhanced punishment cannot be held to be proved on behalf of the prosecution. Accordingly it is held that prosecution has failed to prove all the ingredients of the offence under Section 308 IPC. The case of the prosecution has inherent inconsistency and has improbabilities which has created multiple doubt benefit of which is granted to all the accused. The evidence against accused Bijender/Vijender who is Proclaimed Offender (PO) is common and same which are inseparable. Hence same inference/conclusion is drawn in his favour and benefit of doubt is extended to him.
28. In such view of the matter, it is held that prosecution has failed to prove the charges levelled against accused no.1 to accused no. 5. Hence accused no. 1 Nand Kishore, accused no. 2 Vijay Dass, accused no. 3 SC No. 28370/2016 FIR No. 53/2012 State Vs. Nand Kishore & Ors. Page 41 of 42 Nishant, accused no. 4 Ram Pratap Singh @ Pratap and accused no. 5 Bijender Dass (PO) stands acquitted for the offence under Section 308/34 IPC. The earlier personal bond of the accused no. 1 to 4 stands cancelled and surety bond stands discharged. The documents, if any, be returned to the surety and endorsement on security documents is allowed to be de-endorsed. In terms of Section 481 of BNSS/437A Cr. P.C, accused no. 1 to 4 have furnished their bail bond as directed which will be in force for period of six months from the date of this judgment. Case property be confiscated to the State.
File be consigned to Record Room.
Announced in the open Court on 23.01.2026.
Digitally signed by JOGINDER JOGINDER PRAKASH
PRAKASH NAHAR
Date: 2026.01.23 15:49:06
NAHAR +0530
(JOGINDER PRAKASH NAHAR)
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL/TIS HAZARI COURT
DELHI
SC No. 28370/2016
FIR No. 53/2012
State Vs. Nand Kishore & Ors. Page 42 of 42