Delhi District Court
State vs Irfan on 19 July, 2025
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
ADDITIONAL SESSIONS JUDGE (FAST TRACK COURT-01)
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CNR No. DLCT01-008493-2018
SC No. 448/2018
FIR No. 70/2018
U/Sec. 302/307/34 IPC
P.S. Pahar Ganj
STATE VERSUS IRFAN & ORS.
(i) SC No. of the case : 448/2018
(ii) Date of commission of offence : 09.03.2018
(iii) Name, parentage and address : 1. Irfan
S/o Sh. Jumman Sheikh
Address: Vagabond New
Delhi Railway Station
Also at:- Village Beria,
PS- Gor, District Rotahat
Nepal
2. Shyamu Diwakar
@ Sonu @ Chikna
S/o Sh. Kishan Pal
Diwakar
R/o Village Maharaha
Tehsil Bindki
PS Kalyanpur
District Fatehpur, U.P.
Also at:- Vagabond New
Delhi Railway Station
3. Manohar Kumar
Sharma
S/o Sh. Ramakant Sharma
Address: Vagabond New
Railway Station Delhi
Also at:- Village Meerpur
Patad, PS Sarai
SC No. 448/2018
FIR No. 70/2018
State Vs. Irfan & Ors. Page 1 of 52
PO Dumri
District Vaishali, Bihar
4. Mukesh @ Zulfi
(Proclaimed Offender)
S/o Sh. Vibha Rai
@ Devanand Raj
R/o Village Fakdolia
PS Kushewsersthan
District Darbanga Bihar
Also at: Vagabond
New Delhi Railway
Station
5. Rajan
S/o Late Sh. Ram Singh
Address: Vagabond Urdu
Park, Meena Bazar
Jama Masjid, Delhi
(iv) Offence complained of : 302/307/34 IPC and
Section 25 of Arms Act
(v) Plea of the accused : Pleaded not guilty
(vi) Final order : Accused namely Irfan,
Shyamu Diwakar @ Sonu
@ Chikna, Manohar
Kumar Sharma and Rajan
stands acquitted.
Date of Institution : 03.07.2018
Date of Judgment reserved on : 01.07.2025
Date of Judgment : 19.07.2025
JUDGMENT
SC No. 448/2018
FIR No. 70/2018
State Vs. Irfan & Ors. Page 2 of 52
BRIEF FACTS AND REASONS FOR DECISION :-
1. FIR in the present matter was registered on the complaint of Sh.
Ranjit Kumar who is vagabond and sleeps anywhere at New Delhi Railway Station. Victim Raju @ STD @ Liyaqat was friend of PW-3 Ranjit. Deceased used to sell water packets at NDRS. They used to work as informer of the police and spent their last time together. Around 1 AM in the morning of 09.03.2018 which was night time the PW-3 alongwith the deceased Raju and one another person namely Sh. Rinku went to Kabadi gali Amrit Kaur market in front of exit gate to have tea. Around 2 AM when PW-3 was returning to sleep towards NDRS and reached upto gali then at that time accused no. 1 Irfan with his accomplice accused no. 5 Mukesh, accused no. 4 Rajan, accused no. 2 Shyamu @ Sonu and accused no. 3 Manohar together came in auto rickshaw who were sitting in that auto. On seeing the PW-3 the complainant Irfan said alongwith all the accused that PW-3 is acting as informer of police. With such statement the said accused proceeded to beat the PW-3 and came towards PW-3. Accused no. 1 Irfan, accused no. 2 Shyamu @ Sonu and accused no. 5 Mukesh @ Zulfi were having knife in their hands. Accused no. 4 Rajan was having Ustara in his hand and accused no. 3 Manohar had a hammer in his hand. On seeing them PW-3 started running inside towards NDRS to save himself. On hearing the voice of PW-3 the deceased Raju and Rinku also came out of the street. On seeing the deceased Raju and Rinku the accused shouted to leave PW-3 and to see the deceased Raju and Rinku who are friend of PW-3. The accused person had surrounded the deceased Raju and Rinku and started hitting repeatedly with knife and hammer on them. PW-3 had raised alarm on which accused no. 1 Irfan alongwith his accomplice SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 3 of 52 ran away towards Pul Paharganj. In the meanwhile one person by the name of Akhil/PW-6 who was also working with PW-3 at NDRS reached near the exit gate. The victim Raju soaked in blood was taken to Lady Hardinge Hospital. The clothes of PW-3 were also soaked in blood of victim Raju. The doctor at Lady Hardinge hospital had declared the victim brought dead. The accused person have revengefully killed the victim Raju and tried to kill Sh. Rinku/PW-4. FIR was registered in the matter under Section 302/307/34 IPC which is Ex.PW18/B. The certificate under Section 65B of the FIR is Ex.PW18/D. The crime team was called at the spot and photographs were taken. Blood was collected from the spot as evidence with six exhibits. Hammer, sandal, slipper, lighter was also seized from the spot. The blood stained Jean pant of the deceased was also seized. Site plan was prepared vide Ex.PW20/B and the scaled site plan is Ex.PW10/A. The site plan of seizure memo of knife is Ex.PW9/D. Statement of witnesses was recorded. After investigation the chargesheet was filed.
2. Supplementary chargesheet was filed against accused no. 4 Mukesh @ Zulfi. Accused Mukesh @ Zulfi was declared proclaimed offender by ld. ACMM, Central, District Tis Hazari Court vide order dated 11.07.2019. With the said supplementary chargesheet against the accused Mukesh @ Zulfi FSL report Ex.A1 and Ex.A2 was also filed.
3. Another supplementary chargesheet was filed against accused Rajan with which TIP proceedings Ex.PW20/I and other relevant evidence was also filed.
4. Charge was given to all the accused namely Irfan, Shyamu Diwakar SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 4 of 52 @ Sonu and Manohar Kumar Sharma under Section 302/307/34 IPC on 10.09.2018 to which they had pleaded not guilty and claimed trial. Accused Irfan was given further separately charged under Section 25 of Arms Act dated 10.09.2018 to which he had pleaded not guilty and claimed trial. After filing of supplementary chargesheet accused Rajan was separately charged under Section 302/307/34 IPC on 30.08.2022 to which he had pleaded not guilty and claimed trial. Prosecution has examined PW-1 to PW-25 as entire prosecution evidence against the accused person. Statement under Section 313 Cr. PC of accused no. 1 Irfan was recorded on 04.01.2025. Statement under Section 313 Cr. PC of accused no. 2 Shyamu Diwakar @ Sonu @ Chikna and accused no. 3 Manohar Kumar Sharma were recorded on 14.01.2025 and Statement under Section 313 Cr. PC of accused no. 5 Rajan was recorded on 23.12.2024. Accused Rajan has preferred not to lead evidence in defence. Accused no. 1, 2 and 3 have led evidence as DW-1 and on separate statement of accused no. 1, 2 and 3, DE was closed on 03.03.2025.
5. Final arguments are heard from both the parties and record perused.
6. The Hon'ble Madhya Pradesh High Court in case titled Suresh Ahirwar vs State Of M.P. on 22 June, 2022 in CRIMINAL APPEAL NO. 51 OF 2012 (DB) (underlining and formatting is as per the present Court) has laid down the Law under Section 302 IPC as under:
(9) It would be appropriate to throw light on relevant provisions of Sections 299 and 300 of Indian Penal Code.The Law Commission of United Kingdom in its 11th Report proposed the following test :
"The standard test of 'knowledge' is, Did the person whose conduct is in issue, either knows of the relevant circumstances or has no substantial doubt of their existence?"SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 5 of 52
[See Text Book of Criminal Law by Glanville Wiliams (p.125)] "Therefore, having regard to the meaning assigned in criminal law the word "knowledge" occurring in clause Secondly of Section 300 IPC imports some kind of certainty and not merely a probability. Consequently, it cannot be held that the appellant caused the injury with the intention of causing such bodily injury as the appellant knew to be likely to cause the death of Shivprasad. So, clause Secondly of Section 300 IPC will also not apply."
The enquiry is then limited to the question whether the offence is covered by clause Thirdly of Section 300 IPC. This clause, namely, clause Thirdly of Section 300 IPC reads as under:-
''Culpable homicide is murder, if the act by which the death is caused is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death."
The argument that the accused had no intention to cause death is wholly fallacious for judging the scope of clause Thirdly of Section 300 IPC as the words "intention of causing death" occur in clause Firstly and not in clause Thirdly. An offence would still fall within clause Thirdly even though the offender did not intend to cause death so long as the death ensues from the intentional bodily injury and the injuries are sufficient to cause death of the deceased in the ordinary course of nature. This is also borne out from illustration (c) to Section 300 IPC which is being reproduced below:-
"(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z's death."
Therefore, the contentions advanced in the present case and which are frequently advanced that the accused had no intention of causing death of deceased is wholly irrelevant for deciding whether the case falls in clause Thirdly of Section 300 IPC. (10) The scope and ambit of clause Thirdly of Section 300 IPC was considered by the Supreme Court in the decision in Virsa Singh Vs. State of Punjab, AIR 1958 SC 465 and the principle enunciated therein explains the legal position succinctly. The accused Virsa Singh was alleged to have given a single spear blow and the injury sustained by the deceased was "a punctured wound 2"x ="
transverse in direction on the left side of the abdominal wall in the lower part of the iliac region just above the inguinal canal. Three coils of intestines were coming out of the wound." After analysis of the clause Thirdly, it was held: -SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 6 of 52
"The prosecution must prove the following facts before it can bring a case under S. 300 "Thirdly"; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type, just described, made up of the three elements set out above, is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout), the offence is murder under S. 300 "Thirdly". It does not matter that there was no intention to cause death, or that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (there is no real distinction between the two), or even that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death."
(11) In the case of Arun Nivalaji More vs. State of Maharashtra (Case No. Appeal (Cri.) 1078-1079 of 2005), it has been observed as under :-
"11. First it has to be seen whether the offence falls within the ambit of Section 299 IPC. If the offence falls under Section 299 IPC, a further enquiry has to be made whether it falls in any of the clauses, namely, clauses 'Firstly' to 'Fourthly' of Section 300 IPC. If the offence falls in any one of these clauses, it will be murder as defined in Section 300IPC, which will be punishable under Section 302 IPC. The offence may fall in any one of the four clauses of Section 300 IPC yet if it is covered by any one of the five exceptions mentioned therein, the culpable homicide committed by the offender would not be murder and the offender would not be liable for conviction under Section 302 IPC. A plain reading of Section 299 IPC will show that it contains three clauses, in two clauses it is the intention of the offender which is relevant and is the dominant factor and in the third clause the knowledge of the offender which is relevant and is the dominant factor. Analyzing Section 299 as aforesaid, it becomes clear that a person commits culpable homicide if the act by which the death is caused is done SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 7 of 52
(i) with the intention of causing death; or
(ii) with the intention of causing such bodily injury as is likely to cause death; or
(iii) with the knowledge that the act is likely to cause death."
If the offence is such which is covered by any one of the clauses enumerated above, but does not fall within the ambit of clauses Firstly to Fourthly of Section 300 IPC, it will not be murder and the offender would not be liable to be convicted under Section 302 IPC. In such a case if the offence is such which is covered by clauses (i) or (ii) mentioned above, the offender would be liable to be convicted under Section 304 Part I IPC as it uses the expression "if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death" where intention is the dominant factor. However, if the offence is such which is covered by clause (iii) mentioned above, the offender would be liable to be convicted under Section 304 Part II IPC because of the use of the expression "if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death" where knowledge is the dominant factor.
12. What is required to be considered here is whether the offence committed by the appellant falls within any of the clauses of Section 300 IPC.
13. Having regard to the facts of the case it can legitimately be urged that clauses Firstly and Fourthly of Section 300 IPC were not attracted. The expression "the offender knows to be likely to cause death" occurring in clause Secondly of Section 300 IPC lays emphasis on knowledge. The dictionary meaning of the word 'knowledge' is the fact or condition of being cognizant, conscious or aware of something; to be assured or being acquainted with. In the context of criminal law the meaning of the word in Black's Law Dictionary is as under: -
"An awareness or understanding of a fact or circumstances; a state of mind in which a person has no substantial doubt about the existence of a fact. It is necessary ... to distinguish between producing a result intentionally and producing it knowingly. Intention and knowledge commonly go together, for he who intends a result usually knows that it will follow, and he who knows the consequences of his act usually intends them. But there may be intention without knowledge, the consequence being desired but not foreknown as certain or even probable. Conversely, there may be knowledge without intention, the consequence being foreknown as the inevitable concomitant of that which is desired, SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 8 of 52 but being itself an object of repugnance rather than desire, and therefore not intended."
In Blackstone's Criminal Practice the import of the word 'knowledge' has been described as under: -
'Knowledge' can be seen in many ways as playing the same role in relation to circumstances as intention plays in relation to consequences. One knows something if one is absolutely sure that it is so although, unlike intention, it is of no relevance whether one wants or desires the thing to be so. Since it is difficult ever to be absolutely certain of anything, it has to be accepted that a person who feels 'virtually certain' about something can equally be regarded as knowing it."
(12) Section 299 of Indian Penal Code runs as under :-
"299. Culpable homicide.--
Wheoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
(13) Section 299 of IPC says, whoever causes death by doing an act with the bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Culpable homicide is the first kind of unlawful homicide. It is the causing of death by doing :
(i) an act with the intention of causing death;
(ii) an act with the intention of causing such bodily injury as is likely to cause death; or
(iii) an act with the knowledge that it is was likely to cause death.
Without one of these elements, an act, though it may be by its nature criminal and may occasion death, will not amount to the offence of culpable homicide. 'Intent and knowledge' as the ingredients of Section 299 postulate, the existence of a positive mental attitude and the mental condition is the special mens rea necessary for the offence.The knowledge of third condition contemplates knowledge of the likelihood of the death of the person. Culpable homicide is of two kinds : one, culpable homicide amounting to murder, and another, culpable homicide not amounting to murder. In the scheme of the Indian Penal Code, culpable homicide is genus and murder is species. All murders are culpable homicide, but not vice versa. Generally speaking, culpable homicide sans the special characteristics of murder is culpable homicide not amounting to murder. In this section, both SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 9 of 52 the expressions 'intent' and 'knowledge' postulate the existence of a positive mental attitude which is of different degrees. (14) Section 300 of Indian Penal Code runs as under :-
"300. Murder.-- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
Secondly.-- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
Thirdly.-- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-- Fourthly.-- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
(15) ''Culpable Homicide'' is the first kind of unlawful homicide. It is the causing of death by doing ;
(i) an act with the intention to cause death;
(ii) an act with the intention of causing such bodily injury as is likely to cause death; or,
(iii) an act with the knowledge that it was likely to cause death. (16) Indian Penal Code recognizes two kinds of homicide :
(1) Culpable homicide, dealt with between Sections 299 and 304 of IPC (2) Not-culpable homicide, dealt with by Section 304-A of IPC. There are two kinds of culpable homicide;
(i) Culpable homicide amounting to murder (Section 300 read with Section 302 of IPC), and
(ii) Culpable homicide not amounting to murder (Section 304 of IPC).
(17) A bare perusal of the Section makes it crystal clear that the first and the second clauses of the section refer to intention apart from the knowledge and the third clause refers to knowledge alone and not the intention. Both the expression "intent" and "knowledge" postulate the existence of a positive mental attitude which is of different degrees. The mental element in culpable homicide i.e., mental attitude towards the consequences of conduct SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 10 of 52 is one of intention and knowledge. If that is caused in any of the aforesaid three circumstances, the offence of culpable homicide is said to have been committed.
(18) There are three species of mens rea in culpable homicide (1) An intention to cause death;
(2) An intention to cause a dangerous injury;
(3) Knowledge that death is likely to happen.
(19) The fact that the death of a human being is caused is not enough unless one of the mental state mentioned in ingredient of the Section is present. An act is said to cause death results either from the act directly or results from some consequences necessarily or naturally flowing from such act and reasonably contemplated as its result. Nature of offence does not only depend upon the location of injury by the accused, this intention is to be gathered from all facts and circumstances of the case. If injury is on the vital part, i.e., chest or head, according to medical evidence this injury proved fatal. It is relevant to mention here that intention is question of fact which is to be gathered from the act of the party.
Along with the aforesaid, ingredient of Section 300 of IPC are also required to be fulfilled for commission of offence of murder. (20) In the scheme of Indian Penal Code, "Culpable homicide" is genus and "murder" is its specie. All "Murder" is "culpable homicide" but not vice versa. Speaking generally 'culpable homicide sans special characteristics of murder' if culpable homicide is not amounting to murder.
(21) In the case of Anda vs. State of Rajasthan reported in 1966 CrLJ 171, while considering "third" clause of Section 300 of IPC, it has been observed as under:-
"It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. The emphasis here is on sufficiency of injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature and when this exists and death ensues and causing of such injury was intended, the offence is murder. Sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused, and sometimes both are relevant. The determinant factor is the intentional injury which must be sufficient to cause death in the ordinary course of nature."
(22) In the case of Mahesh Balmiki vs. State of M.P. reported in (2000) 1 SCC 319, while deciding whether a single blow with a knife on the chest of the deceased would attract Section 302 of IPC, it has been held thus :-
SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 11 of 52"There is no principle that in all cases of single blow Section 302 I.P.C. is not attracted. Single blow may, in some cases, entail conviction under Section 302 I.P.C., in some cases under Section 304 I.P.C and in some other cases under Section 326 I.P.C. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case, the deceased was disabled from saving himself because he was held by the associates of the appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the appellant had intention to kill the deceased. In any event, he can safely be attributed knowledge that the knife blow given by him is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death."
(23) In the case of Dhirajbhai Gorakhbhai Nayak vs. State of Gujarat (2003) 9 SCC 322, it has been observed as under :-
"The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 12 of 52 apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused
(a) without premeditation,
(b) in a sudden fight;
(c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and
(d) the fight must have been with the person killed.
To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'.'' (24) In the case of Pulicherla Nagaraju @ Nagaraja vs. State of AP (2006) 11 SCC 444, while deciding whether a case falls under Section 302 or 304 Part-I or 304 Part-II, IPC, it was held thus :-
"Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 13 of 52 punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances :
(i) nature of the weapon used;
(ii) whether the weapon was carried by the accused or was picked up from the spot;
(iii) whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury;
(v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight;
(vi) whether the incident occurs by chance or whether there was any pre- meditation;
(vii) whether there was any prior enmity or whether the deceased was a stranger;
(viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation;
(ix) whether it was in the heat of passion;
(x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;
(xi) whether the accused dealt a single blow or several blows.
The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may."
(25) In the case of Sangapagu Anjaiah v. State of A.P. (2010) 9 SCC 799, Hon'ble Apex Court while deciding the question whether a blow on the skull of the deceased with a crowbar would attract Section 302 IPC, held thus:-
"16. In our opinion, as nobody can enter into the mind of the accused, his intention has to be gathered from the weapon used, the part of the body chosen for the assault and the nature of the injuries caused. Here, the appellant had chosen a crowbar as the weapon of offence. He has further chosen a vital part of the body i.e. the head for causing the injury which had caused multiple fractures of skull. This clearly shows the force with which the appellant had used the weapon. The cumulative effect of all these factors irresistibly leads to one and the only conclusion that the appellant intended to cause death of the deceased."
(26) In the case of State of Rajasthan v. Kanhaiyalal reported in SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 14 of 52 (2019) 5 SCC 639, this it has been held as follows:-
"7.3 In Arun Raj [Arun Raj v. Union of India, (2010) 6 SCC 457 :
(2010) 3 SCC (Cri) 155] this Court observed and held that there is no fixed rule that whenever a single blow is inflicted, Section 302 would not be attracted. It is observed and held by this Court in the aforesaid decision that nature of weapon used and vital part of the body where blow was struck, prove beyond reasonable doubt the intention of the accused to cause death of the deceased. It is further observed and held by this Court that once these ingredients are proved, it is irrelevant whether there was a single blow struck or multiple blows.
7.4 In Ashokkumar Magabhai Vankar [Ashokkumar Magabhai Vankar v. State of Gujarat, (2011) 10 SCC 604 : (2012) 1 SCC (Cri) 397] , the death was caused by single blow on head of the deceased with a wooden pestle. It was found that the accused used pestle with such force that head of the deceased was broken into pieces. This Court considered whether the case would fall under Section 302 or Exception 4 to Section 300 IPC. It is held by this Court that the injury sustained by the deceased, not only exhibits intention of the accused in causing death of victim, but also knowledge of the accused in that regard. It is further observed by this Court that such attack could be none other than for causing death of victim. It is observed that any reasonable person, with any stretch of imagination can come to conclusion that such injury on such a vital part of the body, with such a weapon, would cause death.
7.5 A similar view is taken by this Court in the recent decision in Leela Ram (supra) and after considering catena of decisions of this Court on the issue on hand i.e. in case of a single blow, whether case falls under Section 302 or Section 304 Part I or Section 304 Part II, this Court reversed the judgment and convicted the accused for the offence under Section 302 IPC. In the same decision, this Court also considered Exception 4 of Section 300 IPC and observed in para 21 as under: (SCC para 21) "21. Under Exception 4, culpable homicide is not murder if the stipulations contained in that provision are fulfilled. They are:
(i) that the act was committed without premeditation;
(ii) that there was a sudden fight;
(iii) the act must be in the heat of passion upon a sudden quarrel; and
(iv) the offender should not have taken undue advantage or acted in a cruel or unusual manner."
(27) In the case of Bavisetti Kameswara Rao v. State of A.P. SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 15 of 52 reported in (2008) 15 SCC 725, it is observed in paragraphs 13 and 14 as under:-
"13. It is seen that where in the murder case there is only a single injury, there is always a tendency to advance an argument that the offence would invariably be covered under Section 304 Part II IPC. The nature of offence where there is a single injury could not be decided merely on the basis of the single injury and thus in a mechanical fashion. The nature of the offence would certainly depend upon the other attendant circumstances which would help the court to find out definitely about the intention on the part of the accused. Such attendant circumstances could be very many, they being (i) whether the act was premeditated; (ii) the nature of weapon used; (iii) the nature of assault on the accused. This is certainly not an exhaustive list and every case has to necessarily depend upon the evidence available. As regards the user of screwdriver, the learned counsel urged that it was only an accidental use on the spur of the moment and, therefore, there could be no intention to either cause death or cause such bodily injury as would be sufficient to cause death. Merely because the screwdriver was a usual tool used by the accused in his business, it could not be as if its user would be innocuous.
14. In State of Karnataka Vedanayagam [(1995) 1 SCC 326 : 1995 SCC (Cri) 231] this Court considered the usual argument of a single injury not being sufficient to invite a conviction under Section 302 IPC. In that case the injury was caused by a knife. The medical evidence supported the version of the prosecution that the injury was sufficient, in the ordinary course of nature to cause death. The High Court had convicted the accused for the offence under Section 304 Part II IPC relying on the fact that there is only a single injury. However, after a detailed discussion regarding the nature of injury, the part of the body chosen by the accused to inflict the same and other attendant circumstances and after discussing clause Thirdly of Section 300 IPC and further relying on the decision in Virsa Singh vs. State of Punjab [AIR 1958 SC 465] , the Court set aside the acquittal under Section 302 IPC and convicted the accused for that offence. The Court (in Vedanayagam case [(1995) 1 SCC 326 : 1995 SCC (Cri) 231] , SCC p. 330, para
4) relied on the observation by Bose, J. in Virsa Singh case [AIR 1958 SC 465] to suggest that: (Virsa Singh case [AIR 1958 SC 465], AIR p. 468, para 16) "16. With due respect to the learned Judge he has linked up the intent required with the seriousness of the injury, and that, as we have shown, is not what the section requires. The two matters are quite separate and distinct, though the evidence about them may sometimes overlap."
The further observation in the above case were: (Virsa Singh case [AIR 1958 SC 465] , AIR p. 468, paras 16 & 17) "16. The question SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 16 of 52 is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there.
The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question....
17. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact."
7. The first ingredient the prosecution has to prove is that an act was done by the accused with which such bodily injury has caused upon the victim with an intention for causing death. Hence prosecution has to prove that act was committed by the accused. One of the eye witness produced on behalf of prosecution is PW-3 Sh. Ranjit Kumar. PW-3 has deposed that he stayed at New Delhi Railway Station (NDRS) and also sleeps there. Deceased Raju @ STD @ Liyakat was his good friend who SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 17 of 52 used to sell water pouches at NDRS. Around 1 AM in the night between 08/09.03.2018 PW-3 alongwith deceased Raju and Rinku went to bring tea in Kabadi gali which is in front of exit gate of NDRS. In Ex.PW10/A site plan as per scale the exit gate no. 1 and exit gate no. 2 are shown. Around 2 AM when the said three person were going back to NDRS for sleeping then at that time outside the gali PW-3 had seen all the accused sitting together in an auto rickshaw. Accused no. 1 Irfan had indicated towards PW-3 informing the other co-accused that PW-3 used to give information to the police. After that all the accused person came towards PW-3 with the intention to kill him. Accused no. 1 Irfan, accused no. 2 Shyamu Diwakar @ Sonu and accused no. 4 Mukesh @ Zulfi were armed with knife. Accused no. 5 Rajan was armed with Ustara and accused no. 3 Manohar was armed with hammer. When the said accused ran after PW-3 then to save himself PW-3 ran towards NDRS while raising alarm. On hearing this the deceased Raju and Rinku also came out of gali on seeing whom accused no. 1 Irfan had asked to leave PW-3. After that they surrounded Rinku and deceased Raju and started attacking both of them with knife, Utsara and hammer. When PW-3 started raising alarm then people started gathering there on which accused person ran towards Pul Paharganj.
7.1 In the meanwhile the friend of PW-3 Akhil @ Itawa who is a rag picker also reached there. Victim Raju was smeared in blood to whom PW-3 had taken to Lady Hardinge hospital in auto rickshaw. Akhil @ Itawa had taken Rinku to Lady Hardinge hospital. The injured Raju was declared brought dead by doctor. The site plan was prepared at the instance of PW-3. The blood stained hammer is Ex.PW3/P1 which was SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 18 of 52 seized vide memo Ex.PW3/C. 7.2 In cross-examination PW-3 has deposed that he knew the deceased since childhood. He is facing trial in one case. Earlier he was acquitted in three cases. He knew accused no. 1 Irfan and accused no. 2 Shyamu Diwakar @ Sonu since last about 04 months prior to the incident. Some of the shops were open between 1 AM to 2 AM in the dark at the time of incident. The shop of tea vendor is inside the gali. It is deposed by PW-3 that he was at a distance of about 20 paces (an average person pace is roughly 2.5 feet) while running when accused person had surrounded the deceased Raju. Hence as per deposition of PW-3 he was about 50 feet away from point A. The distance between point E to point A in site plan Ex.PW10/A is 500 cm and whereas 1 cm is equal to 200 cm as per the scale taken in the site plan. Which means the distance between point E to point A was about 100 meters. Whereas as per deposition of PW-3 he was within the range of 15 to 16 meter away from point A. The site plan does not show the presence of PW-3 within 15 to 16 meter from point A and whereas as per own deposition of PW-3 at page 6 of his cross- examination dated 16.05.2019 he did not enter the gate leading towards platform when the accused had surrounded the deceased Raju and Rinku on the road. At the same page he has deposed that he knew the accused about 6-7 months prior to the incident contrary to his deposition at page 5 in the same deposition that he knew accused no. 1 Irfan and accused no. 2 Shyamu Diwakar @ Sonu four months prior to the incident. In cross-examination dated 30.01.2023 by ld. APP for the State PW-3 has failed to identify accused no. 5 Rajan by deposing that he does not know the accused Rajan shown to him during his deposition and it is further SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 19 of 52 deposed that he does not know him and he is not the same Rajan.
8. Strangely the IO has not shown presence of PW-3 either in site plan Ex.PW20/B or in the site plan Ex.PW10/A which is an important fact to see whether PW-3 was in a position to look at the commission of an offence. The said area is busy area and usually have a number of vehicles inside it and the IO has not shown any vehicle inside the said site plan and only blank space is shown.
9. PW-4 Sh. Rinku is a rag picker who sleeps at footpath at NDRS. He has deposed that at around 1 AM in the intervening night of 08/09.03.2018 he alongwith deceased Raju and PW-3 went to drink tea at Kabadiwali gali in front of exit gate of NDRS. Around 2 AM PW-3 Ranjit had stated that he was going to sleep at railway station therefore he started going back. Immediately thereafter they heard noise of PW-3 and thereafter PW-4 came back with deceased Raju out of the gali and they had seen that accused no. 1, 2, 3, 5 and accused Mukesh @ Zulfi were chasing PW-3. On seeing PW-4 and deceased Raju the accused had left PW-3 and surrounded PW-4 and the deceased Raju. Accused no. 1 Irfan, accused no. 2 Shyamu @ Sonu and accused no. 4 Mukesh were armed with knife and accused no. 5 Rajan was armed with Ustara. Accused no. 3 Manohar was armed with hammer. Accused no. 1, 2 and 4 had attacked deceased Raju with knife and Ustara and accused no. 3 and 5 started attacking PW-4 with hammer and knife. PW-4 and deceased Raju had sustained serious injuries. PW-3 had raised alarm due to which public had gathered at the spot on seeing whom accused person ran towards Pul Paharganj. During cross-examination by ld. APP in putting SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 20 of 52 leading question to the witness it is deposed by PW-4 that police had wrongly recorded that accused no. 2 Shyamu Diwakar had attacked PW- 4 instead of accused no. 5 Rajan. PW-4 knew accused no. 1 Irfan and accused no. 2 Shyamu since the age of 08 years. PW-4 is confronted with his statement under Section 161 Cr. PC where it is not recorded that PW- 3 Ranjit had told that he was going to sleep at 2 AM. PW-4 knew accused no. 3 Manohar a year prior to the incident. It is deposed that PW-4 had not seen the accused person sitting in auto rickshaw. Akhil came to the spot later on who took PW-4 to the hospital. It is deposed that only PW-3 had seen accused person sitting in an auto whereas PW-4 had seen only that accused person were chasing PW-3.
10. PW-4 in cross-examination dated 30.01.2023 has deposed that he has failed to identify accused no. 5 Rajan in the Court and on the said date he had turned hostile deposing that under influence of alcohol he could not see the accused person and could not identify them. PW-4 did not identify accused no. 5 Rajan. It is noted that in examination-in-chief dated 16.05.2019 PW-4 Rinku at page no. 1 has deposed that accused Rajan and Manohar had attacked him with hammer and knife and he had also sustained injuries. Hence PW-4 must have sustained injuries by such hammer and knife. However no medical injuries by hammer and knife are proved on record by the prosecution on PW4 either in his evidence dated 16.05.2019 and also in evidence recorded on 30.01.2019. There was no reason with the prosecution to not prove such injuries on PW-4 if he sustained so. The non proof of such injuries despite of claim of sustenance of such injuries creates doubt about the presence of PW-4 at the spot and having seen commission of murder on deceased Raju.
SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 21 of 5211. As per deposition of PW-3 the witness PW-6 Akhil came at the spot after the accused person had surrounded and gave beating to deceased Raju and Rinku. However PW-3 did not notice when PW-6 had reached at the spot. PW-6 has deposed that he had heard the voice of PW-3 and he had also seen the accused person running from the spot namely accused no. 4 Mukesh and accused no. 5 Rajan running towards bridge/Pul and crossing the bridge from underneath. PW-6 had also seen PW-4 in injured condition. He hired an auto and took PW-4 to Lady Hardinge hospital. PW-3 had taken the deceased Raju to the hospital. The two boys he had seen running from the spot are not identified by PW-6 before the Court while deposing that the said two boys are not present in the Court. Ld. APP for the state had cross-examined the witness on the aspect that in statement under Section 161 Cr. PC dated 10.03.2018 PW-6 had named five boys and now he is not naming three remaining boys. Hence on this aspect PW-6 has remained hostile to the case of the prosecution.
12. Ld. LAC for the accused has submitted that auto rickshaw driver and the auto rickshaw is not produced in evidence by the prosecution in which the five accused person were allegedly sitting before commission of the attack. That auto was not seized nor the owner of the said auto was examined. The above submission appears to have merit. The said auto rickshaw and its driver is an important piece of evidence to show presence of accused person at the spot immediately before the incident and also to show that why the said accused person were sitting in said auto rickshaw if they were not going anywhere. It would have shown SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 22 of 52 that the accused person were sitting in the said auto rickshaw with a planning. Hence the relevant evidence as to prior planning though available is not produced by the prosecution on record. It is not the case of the prosecution that the deceased alongwith PW-3 and PW-4 used to regularly come at night around 2 AM to drink tea. If this was not known to the accused person beforehand then it would be difficult to believe that accused person will be sitting prepared at that place to kill either PW-3 or the deceased. Hence the presence of accused person at the spot at untoward hour without any basis has become doubtful. The tea vendor who sold tea to the deceased Raju, PW-3 and PW-4 is also not produced in evidence to show that they together went to drink tea.
13. As per PW-3 accused no. 1 Irfan, accused no. 2 Shyamu @ Sonu, accused no. 4 Mukesh @ Zulfi and accused no. 5 Rajan were having Ustara. The same is deposition of PW-4. Now the injuries have to be seen whether they can be caused by the above instruments produced on record.
14. The site plan is Ex.PW9/D in reference to recovery of knife. Ld. LAC for the accused has submitted that the accused no. 1 Irfan has allegedly led to vacant plot near Paharganj where he threw a knife and from where the knife stained with blood was recovered. The site plan Ex.PW9/D shows vacant plot under Pul Paharganj allegedly from where the knife was recovered. PW-20 has deposed at page 4 of examination- in-chief that the secret information was received at 6 PM near Paharganj Pul. The accused no. 1 Irfan and accused no. 2 Shyamu were coming at 8/9 PM at NDRS from Connaught Place via CF road. However police SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 23 of 52 person have sufficient time to join public witness to act on such public information. No public witness was joined. The place from where the accused were arrested had many Government office nearby. It is possible that after 6 PM it is difficult to join public witness from Government office which are usually closed by 6 PM. However it is not the case of the prosecution that such effort was made to join the public witness moresowhen the accused person were taken to vacant plot on the next day on 13.03.2018 whereas the secret information was received on 12.03.2018. The disclosure Ex.PW2/E and Ex.PW2/F were recorded on 12.03.2018. Hence this creates doubt in the case of the prosecution about recovery of knife when there was sufficient time and availability of public witness despite which public witness were not joined. Hence the disclosure and the consequent recovery thereafter has become doubtful. The relevant citation for non-joining of public witness titled Mustakeen @ Bhura vs. State (Govt. of NCT Delhi) on 2nd November, 2020 in CRL. A. 419/2018 & CRL. M. (BAIL) 6459/2020 at para no. 56, 62, 63, 65, and 69 are 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 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 SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 24 of 52 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.
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 SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 25 of 52 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.
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.
SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 26 of 5215. The disclosure statement of accused Irfan is at page no. 59 of case file which is Ex. PW2/E. As per disclosure statement of accused Irfan he had thrown knife at railway line near bushes. Whereas as per the case of the prosecution the alleged knife was recovered from a vacant plot. The disclosure statement was recorded at the place of arrest of the accused at NDRS. No bushes are shown in the site plan. Adjacent to the plot are trees and there is office of RPFPS, New Delhi and opposite to it after service road there is office of Railway Mazdoor Union. PW-9 has deposed that accused no. 1 Irfan has got recovered the knife from a vacant plot under heap of garbage. The knife was blood stained. Hence there is no such recovery of knife as per disclosure of accused no. 1 Irfan. Secondly, the disclosure of accused no. 1 Irfan is not recorded as per requirement of law and no public witness was joined. Therefore recovery of knife from accused no. 1 Irfan is doubtful. The recovery as to disclosure statement is also not proved keeping in view the reference of Section 27 of Indian Evidence Act, 1872. The relevant para of citation titled Ramanand @ Nand Lal Bharti vs. State of Uttar Pradesh 2022 SCC OnLine SC 1396 (Coram:3) in this regard are reproduced hereasunder:
EXTRA JUDICIAL CONFESSION
76. It is the case of the prosecution that on 23.01.2010 the accused appellant is said to have visited the house of the PW-3, Babu Ram Hans at about 9:00 o'clock in the morning and sought his help.
While seeking help from the PW-3, Babu Ram Hans, the accused appellant is said to have made an extra judicial confession that he had brutally killed his wife Sangeeta for not giving consent to him to marry Manju. The accused appellant is also said to have made an extra judicial confession to the PW-3, Babu Ram Hans that he had also killed his four daughters viz. Tulsi, Lakshmi, Kajal and Guddi and thereby had committed a huge mistake. The trial court and the High Court have believed the so called extra judicial SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 27 of 52 confession said to have been made by the accused appellant before the PW-3, Babu Ram Hans. However, the trial court as well as the High Court should have put a question to themselves before believing the extra judicial confession whether the accused appellant was a free man on 23.01.2010 so as to reach the house of PW-3, Babu Ram Hans at 9:00 o'clock in the morning and make an extra judicial confession. This is one of the basic infirmities we have noticed in the judgment of both the Courts. There is cogent evidence on record to indicate that on 22.01.2010, the accused appellant first visited the house of PW-1, Shambhu Raidas (first informant) and narrated about the incident. The PW-1, Shambhu Raidas thereafter lodged the First Information Report (FIR) at the police station and as deposed by him, the accused appellant all throughout was at the police station. If on 22.01.2010 the accused is sent for medical examination along with a police yadi accompanied by a police constable to the hospital then how does it lie in the mouth of the prosecution to say that after the medical examination the accused appellant was allowed to go home and move around freely. The witnesses have said in their oral evidence that the accused appellant was picked up by the police on 22.01.2010 in the early morning itself. This entire case put up by the prosecution that an extra judicial confession was made by the accused appellant before the PW-3, Babu Ram Hans on 23.01.2010 appears to be fabricated and engineered only to bolster up the case of the prosecution.
77. It is also the case of the prosecution that similar such extra judicial confession was made by the accused appellant before the PW-4, Ram Kumar, S/o Paanchoo on the very same day of the incident itself i.e. 22.01.2010 at 06:30 in the morning. If we peruse the oral evidence of the PW-4, Ram Kumar then according to him at the relevant point of time he was a member of the District Panchayat. According to PW-4, Ram Kumar, the accused appellant had visited his house at 06:30 in the morning and made an extra judicial confession that he had committed a serious crime. How does the prosecution expect us to believe even the second extra judicial confession alleged to have been made before the PW-4, Ram Kumar? How does the prosecution expect us to believe that the accused appellant was present at three different places on or about the same time. Either we believe PW-1, Shambhu Raidas (first informant) that the accused appellant visited his house at 06:30 in morning or we believe the PW-2, Chhatrapal Raidas, who has deposed that the accused appellant had visited his house at 07:00 o'clock in the morning or we believe the PW-4, Ram Kumar that the accused appellant had visited his house at 06:30 in the morning. How is it possible for the accused appellant to be SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 28 of 52 present at three different places in or around between 06:30 A.M. to 07:30 A.M. One another aspect that makes the oral evidence of the PW-4, Ram Kumar very doubtful is that his house is situated at a distance of 6-7 kilometers from Dhaurhara and according to the PW-4, the accused appellant visited his house all the way walking from his own house. The PW-4, Ram Kumar also appears to be a 'got up' witness only for the purpose of creating evidence in the form of extra judicial confession. At this stage, we may once again go back to the oral evidence of the PW-1, Shambhu Raidas (Exh.1). In his evidence, he has said, "the inspector had not interrogated me at the police station. The inspector had visited the place of the incident in his vehicle. I left the police station at the 02:00 o'clock in the night. I had stayed at the police station right from the time I lodged the FIR in the morning till 02:00 o'clock in the night and Ramanand also stayed with me at the police station. The police official had challaned Ramanand on the third day. Till then Ramanand was continuously staying at the police station. [Emphasis supplied]
78. The PW-2, Chhatrapal Raidas in his evidence has deposed, "I came to know about the incident at 07:00 o'clock in the morning. I came to know through Ramanand. Ramanand had come to my house at 07:00 o'clock. Ramanand was alone then. Ramanand told me that his wife and children were burning in the house; someone had killed and set them on fire. Saying this Ramanand left for his home. Thereafter, Pratap and Shambhu reached the place of Ramanand on a bicycle and I reached walking. When I reached the house of Ramanand, Pratap and Shambhu were dousing the fire at the house with water. Ramanand was warming his body sitting over here and villagers were standing outside. The clothes of Ramanand were soaked with blood. The Inspector reached sometime thereafter. Thereafter, I, Shambhu and Pratap went with the inspector to the police station in a jeep. It took half an hour for the inspector to arrive at the spot. It was about 8-9 o'clock in the morning the police officials took Ramanand to the police station before us."
79. Thus, it is very difficult for us to believe that the accused appellant could have made extra judicial confession on 23.01.2010 before the PW-2 and also before the PW-4 on 22.01.2010 at 06:30 A.M. i.e. on the date of incident. We have reached to the conclusion that the investigating officer has deliberately shown arrest of accused appellant on 24.01.2010 and that too from a place like bus stand. As discussed above, the accused appellant was arrested and taken in custody in the morning of 22.01.2010 SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 29 of 52 itself. One Police Constable along with a police yadi had taken the accused appellant to the hospital in the morning itself for medical examination. Only with a view to show that between 22.01.2010 and 24.01.2010 the accused appellant made extra judicial confession before two witnesses, the investigating officer has shown arrest of the accused appellant on 24.01.2010 which is just unbelievable.
80. Confessions may be divided into two classes, i.e. judicial and extra judicial. Judicial confessions are those which are made before Magistrate or Court in the course of judicial proceedings. Extra judicial confessions are those which are made by the party elsewhere than before a Magistrate or Court. Extra judicial confessions are generally those made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the CrPC or a Magistrate so empowered but receiving the confession at a stage when Section 164 does not apply. As to extra judicial confessions, two questions arise: (i) were they made voluntarily? And (ii) are they true? As the Section enacts, a confession made by an accused person is irrelevant in a criminal proceedings, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, (1) having reference to the charge against the accused person, (2) proceeding from a person in authority, and (3) sufficient, in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. It follows that a confession would be voluntary if it is made by the accused in a fit state of mind, and if it is not caused by any inducement, threat or promise which has reference to the charge against him, proceeding from a person in authority. It would not be involuntary, if the inducement, (a) does not have reference to the charge against the accused person, or (b) it does not proceed from a person in authority; or (c) it is not sufficient, in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that, by making it, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Whether or not the confession was voluntary would depend upon the facts and circumstances of each case, judged in the light of Section 24 of the Evidence Act. The law is clear that a confession cannot be used against an accused person unless the Court is satisfied that it was voluntary and at that stage the question whether it is true or SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 30 of 52 false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the Court may refuse to act upon the confession, even if it is admissible in evidence. One important question, in regard to which the Court has to be satisfied with is, whether when the accused made confession, he was a free man or his movements were controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession. The question whether a confession is voluntary or not is always a question of fact. All the factors and all the circumstances of the case, including the important factors at the time given for reflection, scope of the accused getting a feeling of threat, inducement or promise, must be considered before deciding whether the Court is satisfied that its opinion, the impression caused by the inducement, threat or promise, if any, has been fully removed. A free and voluntary confession is deserving of highest credit, because it is presumed to flow from the highest sense of guilt. [See R. V. Warwickshall: (1783) Lesch 263)]. It is not to be conceived that a man would be induced to make a free and voluntary confession of guilt, so contrary to the feelings and principles of human nature, if the facts confessed were not true. Deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in law. An involuntary confession is one which is not the result of the free will of the maker of it. So, where the statement is made as a result of the harassment and continuous interrogation for several hours after the person is treated as an offender and accused, such statement must be regarded as involuntary. The inducement may take the form of a promise or of threat, and often the inducement involves both promise and threat, a promise of forgiveness if disclosure is made and threat of prosecution if it is not. (See Woodroffe Evidence, 9th Edn. Page 284). A promise is always attached to the confession, alternative while a threat is always attached to the silence-alternative; thus, in the one case the prisoner is measuring the net advantage of the promise, minus the general undesirability of a false confession, as against the present unsatisfactory situation; while in the other case he is measuring the net advantages of the present satisfactory situation, minus the general undesirability of the confession against the threatened harm. It must be borne in mind that every inducement, threat or promise does not vitiate a confession. Since the object of the rule is to exclude only those confessions which are testimonially untrustworthy, the inducement, threat or promise must be such as is calculated to lead to an untrue confession. On the aforesaid analysis the Court is to determine the absence or presence of inducement, SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 31 of 52 promise etc. or its sufficiency and how or in what measure it worked on the mind of the accused. If the inducement, promise or threat is sufficient in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil, it is enough to exclude the confession. The words 'appear to him' in the last part of the section refer to the mentality of the accused. (See State of Rajasthan v. Raja Ram, (2003) 8 SCC 180)
81. An extra judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any Court to start with a presumption that extra judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who spea15.k to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility.
82. Extra judicial confession is a weak piece of evidence and the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. It is considered to be a weak piece of evidence as it can be easily procured whenever direct evidence is not available. In order to accept extra judicial confession, it must be voluntary and must inspire confidence. If the court is satisfied that the extra judicial confession is voluntary, it can be acted upon to base the conviction.
83. Considering the admissibility and evidentiary value of extra judicial confession, after referring to various judgments, in SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 32 of 52 Sahadevan and Another v. State of Tamil Nadu, (2012) 6 SCC 403, this Court held as under:-
"15.1. In Balwinder Singh v. State of Punjab [1995 Supp (4) SCC 259 : 1996 SCC (Cri) 59] this Court stated the principle that: (SCC p. 265, para 10) "10. An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance."
xxxx 15.4. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra-judicial confession, this Court in State of Rajasthan v. Raja Ram [(2003) 8 SCC 180 : 2003 SCC (Cri) 1965] stated the principle that: (SCC p. 192, para 19) "19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made."
The Court further expressed the view that: (SCC p. 192, para 19) "19. ... Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused...." xxxx 15.6. Accepting the admissibility of the extra-judicial confession, the Court in Sansar Chand v. State of Rajasthan [(2010) 10 SCC 604 : (2011) 1 SCC (Cri) 79] held that: (SCC p. 611, paras 29-30) "29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra- judicial confession should be corroborated by some other material. Vide Thimma and Thimma Raju v. State of Mysore [(1970) 2 SCC 105 : 1970 SCC (Cri) 320] , Mulk Raj v. State of SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 33 of 52 U.P. [AIR 1959 SC 902 : 1959 Cri LJ 1219] , Sivakumar v. State [(2006) 1 SCC 714 : (2006) 1 SCC (Cri) 470] (SCC paras 40 and 41 : AIR paras 41 and 42), Shiva Karam Payaswami Tewari v. State of Maharashtra [(2009) 11 SCC 262 : (2009) 3 SCC (Cri) 1320] and Mohd. Azad v. State of W.B. [(2008) 15 SCC 449 : (2009) 3 SCC (Cri) 1082] ]"" [Emphasis supplied]
84. It is well settled that conviction can be based on a voluntarily confession but the rule of prudence requires that wherever possible it should be corroborated by independent evidence. Extra judicial confession of accused need not in all cases be corroborated. In Madan Gopal Kakkad v. Naval Dubey and Another, (1992) 3 SCC 204, this Court after referring to Piara Singh and Others v. State of Punjab, (1977) 4 SCC 452, held that the law does not require that the evidence of an extra judicial confession should in all cases be corroborated. The rule of prudence does not require that each and every circumstance mentioned in the confession must be separately and independently corroborated.
85. The sum and substance of the aforesaid is that an extra judicial confession by its very nature is rather a weak type of evidence and requires appreciation with great deal of care and caution. Where an extra judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance like the case in hand. The Courts generally look for an independent reliable corroboration before placing any reliance upon an extra judicial confession.
16. The sketch of knife is shown at page 87 of the case file vide Ex.PW9/A one side of which is blunt and the other side is sharp. The sketch of same knife in a diagram not to scale is Ex.PW22/C. However in both the sketches the design of handle has varied. Now it has to be seen that whether the injuries on the deceased were caused by such knife. It is claim of the prosecution that on the knife recovered blood stains were found. However no such blood stain are confirmed in evidence on the said knife much less any blood stain relevant to the blood group of the deceased. This further creates doubt in the case of the prosecution regarding involvement of the accused in the present case.
SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 34 of 5216.1 The subsequent opinion filed on postmortem report is Ex.PW22/B(page 119 of the document file) which records that none of the injury could be possible with the weapon (hammer) retrieved in Ex.2. The sketch of hammer is Ex.PW22/D. Had PW-3 and PW-4 seen the accused person beating the deceased with hammer then some injuries from hammer must have been found on the body of the deceased. When no such injuries from hammer were found on the body then it cannot be said that PW-3 or PW-4 had eye witnessed the causing the injury on the body of the deceased. The above doubt is further substantiated by the evidence of PW-23 Dr. Vivek Kumar Chouksey that the injuries found on the body of the deceased could not even be inflicted from the knife recovered. It would have been another case had there been no weapon of offence recovered but when the weapon of offence is recovered it is claimed that only with this weapon the injuries were inflicted on the deceased then it cannot be said that PW-3 or PW-4 had eye witnessed the commission of offence in view of the fact that the said knife or hammer recovered was not used in the commission of the offence. The FSL report is PA-2 at (page no. 37 of the document file) which is about examination of viscera of deceased Raju, pieces of liver, spleen and kidney, blood sample and the saturated sample. Ethyl alcohol of 1.25 ml in 100 ml of blood was found in Ex.1C. Ex.1D gave negative result for all common poison. The FSL Ex.PA-1 which has found that DNA profile was generated from the source Ex.10 gauge cloth piece of deceased is similar to DNA profile generated from Ex.5 and Ex.6 which are pieces of cemented material from the spot, Ex.9 is cloth of the deceased, Ex.11 and Ex.12 nail clipping of the deceased, Ex.13 is weapon of offence SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 35 of 52 which is hammer. Ex.14 is knife. The DNA profiling was done of knife Ex.14. However in the result the matching profiling is not shown to be generated from the said Ex.14 which is knife. The knife Ex.14 which was sent with few dirty browny stains was claimed as blood by the prosecution. However the blood was not detected in FSL report Ex.PA-1. The above evidence though proves that the injuries were inflicted on the deceased Raju at point A as per site plan Ex.PW10/A. However it does not prove that the injuries were inflicted by the accused person or by the said knife. Hence it is held that prosecution has failed to prove that the knife allegedly recovered from the spot was used as weapon of offence in the commission of assault on the deceased.
17. PW-23 Dr. Vivek Kr. Chouksey had prepared postmortem report on deceased Raju vide Ex.PW22/A. He had recorded injuries on the body of the deceased. Total 13 injuries were found on the body. Three of which were stab wound. Injury no. 3 measuring 3.5x1x11cm present vertical over right side of the chest situated 5 cm above nipple and 9 cm from midline. The injury is spindle in shape with both angle acute, margins are clean cut. Injury no. 11 measuring 5x1x8.5 cm present horizontally over the left gluteal region situated 88 cm from left heel and midial and situated 3 cm lateral to midline. It is spindle in shape and both angle are acute. Similarly in the injury no. 12 measuring size 5x1x10.5 cm present obliquely over the posterio lateral surface of left thigh lower end is midial then upper end. Situated 25 cm below posterior illiac spine and 7.5 cm lateral to midline. It is spindle in shape and both angle are acute. It is further deposed that rest of the injury incised wound with both end with double edged weapon or spindle in shape. The death has SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 36 of 52 occurred due to hemorrhagic shock consequent upon incised stabbed wound to chest via injury no. 3 which could be produced by sharp double edged weapon. All injuries are ante mortem and fresh in duration. Injury no. 3 is sufficient for death in ordinary course of nature. It is further deposed that none of the injury would be possible with the hammer retrieved. On injury no. 2 opinion in respect of which was given subsequently vide Ex.PW22/B and the diagram of weapon of offence is Ex.PW22/C and of the hammer is Ex.PW22/D.
18. Hence as per deposition of PW-23 the injuries recorded on the body of the deceased Raju @ Liyakat Ali were not caused by the knife recovered from the accused no. 1 Irfan sketch of which is Ex.PW9/A as it is not a double edged weapon. Nor it is proved by the prosecution on record that such injury could be caused by this knife. To the contrary all the stab injuries are caused by double edged knife/weapon. Hence the alleged knife allegedly recovered from the spot which is also claimed to be blood stained at the time of recovery by the prosecution cannot have caused injuries upon the deceased Raju @ Liyakat Ali. The injuries are also not caused by the hammer which is allegedly possessed by accused no. 3 Manohar Kumar Sharma. Hence doubt has arisen in the case of the prosecution if the alleged injuries were caused by accused upon the deceased by the alleged hammer or the knife allegedly recovered from accused no. 1 Irfan. At page no. 119 of the document file which is ExPW22/B the subsequent opinion from department of forensic medicine from Dr. Vivek Kumar Chouksey mentions that none of the injury on the injured could be possible with the weapon/hammer retrieved in Ex.2. Hence there is no evidence on record that accused no.
SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 37 of 523 Manohar who was allegedly armed with a hammer had caused any injury on the deceased victim though the weapon of offence i.e. hammer which was allegedly recovered from the place of offence on the same day. It shows that neither the knife nor the hammer recovered had caused any injury on the deceased and that they were not used in commission of the said offence. To dispel the case of the prosecution ld. LAC has argued that this hammer were picked by the police surrounding the place of incident to falsely implicate the accused as this is used for breaking the road during the construction process of the road. It is submitted that the police had taken blood sample from the spot vide Ex.PW3/B which mentions the seizure of the said article. In collecting the said earth hammer was used and this hammer was falsely implanted by the police person on the accused person.
19. PW-9 Insp. Anant has deposed that accused no. 1 Irfan had got recovered a blood stained knife from the heap of garbage. It is further deposed that accused no. 1 Irfan had also told that he had the day before informed wrongly to mislead the police that he had thrown the knife in the bushes. Hence with the above deposition there is no recovery in consequence of disclosure allegedly made by the accused. The knife which is claimed to be blood stained whereas in the sketch of knife Ex.PW9/A it is not shown anywhere that it has any blood stains. If there were blood stains then they have to be examined if such blood stains have matched with the blood group of deceased. No such blood stains are proved on knife are on record. Ustara could not be recovered from accused no. 5 Rajan in respect of which pointing out memo Ex.PW3/X4 was prepared. In the site plan Ex.PW9/A the blood stained knife was SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 38 of 52 recovered from the heap of garbage whereas in the site plan Ex.PW9/D the heap of garbage is not shown allegedly from where the knife was recovered. The request for two days police custody for accused no. 1 Irfan and accused no. 2 Shyamu dated 13.03.2018 is available on record at page no. 239 of document file as per which accused no. 1 Irfan has disclosed that he had thrown knife in bushes near railway line and accused no. 2 Shyamu had thrown knife near railway line. It also mentions that the blood stained knife was recovered at the instance of accused no. 1 Irfan from the bushes near railway line. Hence contradictory evidence has come on record by the prosecution whether the knife is recovered from the bushes or railway line or from vacant land even if taking that in the said application dated 12.03.2018 for custody remand mistake could have been committed in typing. However in another application to HOD, Forensic and Toxicology dated 12.09.2018 it again mentions that accused no. 1 Irfan had disclosed throwing of knife in bushes near railway line and accused no. 2 Shyamu had thrown the knife near railway line and that from accused no. 1 Irfan blood stained knife was recovered near the railway line. Hence contradictory deposition as to such recovery of weapon of offence has come on record. At page no. 181 of the document file vide which list of exhibits were sent for examination mentions that the blood stained knife was recovered at the instance of accused no. 1 Irfan from the bushes near the railway line.
20. The postmortem report Ex.PW22/A at page 6 records that time since death was about two days. Hence the victim Raju has expired on 09.03.2018. PW-4 Rinku has not identified accused Rajan and he has SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 39 of 52 turned hostile in this respect. In examination-in-chief dated 16.05.2019 PW-3 at page 3 has deposed that he can identify accused Rajan and Mukesh if they are shown to him. On 16.05.2019 the order records that accused Manohar was present who was in J/C. Accused Irfan and Shyamu Diwakar @ Sonu were present who were in J/C. However accused Rajan and Mukesh were not present for the reason that their supplementary chargesheet was filed on 16.03.2020 and on 06.08.2019 respectively. Hence it was for the prosecution to recall PW-3 for identification of accused Rajan and Mukesh and to conduct their fresh examination-in-chief in respect of accused Rajan and Mukesh. During examination dated 30.01.2023 the identification only of accused Rajan was conducted. The order sheet dated 30.01.2023 reflects presence of accused Rajan from J/C and accused Mukesh was PO vide order dated 11.07.2019. Hence accused Rajan was not identified by PW-3 during recording of evidence. Hence both PW-3 and PW-4 have not identified the accused no. 5 Rajan during recording of evidence and therefore it remains unproved that accused no. 5 Rajan was present at the spot.
21. PW-3 has deposed that accused no. 1 Irfan and accused no. 2 Shyamu were armed with knife. PW-4 has also deposed that accused no. 1 Irfan and accused no. 2 Shyamu were armed with knife. In the complaint Ex.PW3/A PW-3 has stated that around 2 AM he was going towards NDRS for the purpose of sleeping whereas in his examination- in-chief he has deposed that at around 2 AM on the said night "we" which means the three victim namely the deceased Raju and PW-3 with PW-4 were returning back for going to NDRS for sleeping. In the same sentence at the first page of examination-in-chief PW-3 has repeated that SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 40 of 52 "we" came out of gali which shows that all the three person were coming together. Hence PW-3 has improved his version that all the three victim came together whereas complaint mentioned that first PW-3 came out and after that remaining two victim came out. PW-4 has deposed in his evidence that he had sustained serious injuries when deceased Raju and PW-4 were attacked after running towards PW-3. However the injuries on PW-4 are not proved in evidence of PW-4 nor they are proved in evidence of PW-23 Dr. Vivek Kumar Chouksey. It is deposed by PW-4 that his friend Akhil had taken PW-4 to Lady Hardinge hospital where he remained hospitalised. However nature of injuries are not proved in evidence of PW-4. During cross-examination PW-4 was also confronted with his statement under Section 161 Cr. P.C that it is not mentioned in his statement that PW-3 had told that he was going to sleep at about 2 AM. Hence the presence of PW-4 at the spot in absence of proof of injuries on him and due to improvement in his statement under Section 161 Cr. PC read with his deposition referred above has created doubt about his presence at the spot. It is deposed by PW-4 at third page that when they reached at the spot after hearing voice of PW-3 Ranjit then at that time Ranjit had already reached railway station footover bridge who was ahead of accused person. He had not seen accused person sitting in an auto rickshaw. PW-3 has deposed that they returned together around 2 AM and when they were returning then PW-3 had seen the accused person sitting in auto rickshaw.
22. PW-4 in his statement under Section 161 Cr. PC which is Ex.PW4/A at page 281 of document file has stated that when they were returning to sleep then all the accused person were sitting in an auto. The SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 41 of 52 above statement of PW-4 is contradictory to his deposition dated 16.05.2019 at page 3 that he had not seen the accused person sitting in an auto. This creates doubt about presence of PW-4 at the spot at the time of commission of offence or that he had seen the accused person attacking the victim/deceased Raju. In complaint Ex.PW3/A, PW-3 has used the word "I" and not "we" while returning at 2 AM for sleeping when going towards NDRS and at that time he had seen the accused person in an auto. Whereas in evidence PW-3 has used the word "we" in his examination-in-chief and not "I". To the contrary PW-4 has deposed that they did not come together but they came after hearing alarm raised by PW-3 Ranjit and they had seen PW-3/Ranjit when he had already reached at footover bridge.
23. PW-6 has deposed that he had seen accused no. 4 Mukesh @ Zulfi and accused no. 5 Rajan running towards the direction of the bridge/Pul and crossing the same from underneath. PW-3 does not depose that the accused person ran underneath the Pul and it is deposed that accused person ran towards Pul Paharganj. PW-4 in his examination-in-chief has similarly deposed that accused person ran towards Pul Paharganj and it is not deposed that accused person went underneath or over Pul Paharganj. The chargesheet also does not mention that when accused person ran away underneath Pul Paharganj or over the said Pul. PW-6 has deposed that he knew Irfan earlier and he can identify two accused person running. He can also identify boys who were running away. PW-6 does not identify any of the accused person before the Court and he turned hostile to the case of the prosecution. By confronting with his statement under Section 161 Cr. PC Mark 6/A wherein PW-6 had denied that he SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 42 of 52 had named five boys before the police.
24. PW-5 Ms. Anita is wife of deceased Raju and as per the case of the prosecution in the night of 08/9.03.2018 around 2:30 AM accused no. 1 Irfan from his mobile number 9599856236 has dialled at mobile number of PW-5 bearing no. 7834912450. After calling on the mobile number of PW-5 accused no. 1 had told that today he had went to take revenge from PW-3 Ranjit and at that time the victim Raju had intervened on which accused no. 1 had attacked on victim Raju. It is also claimed that accused no. 1 Irfan had informed to PW-5 that the deceased Raju was admitted at Lady Hardinge Medical College (LHMC) hospital and only after which PW-5 had reached at LHMC. Same is deposition of PW-5. Suggestion is given to PW-5 that no such call was made by the accused no. 1 Irfan to PW-5. It is also admitted as correct that there is no enmity between all the accused and deceased Raju. It is also admitted as correct that name of accused Manohar was not disclosed to PW-5 during phone call. PW-5 was recalled after arrest of the remaining accused. Now on 30.08.2022 PW-5 has changed the time of phone call to 4:30 AM. The PW-5 has improved her version about the time of phone call and that PW-3 had also made a phone call to PW-5 informing that the husband of PW-5 is admitted at LHMC hospital. She is not aware if CDR of her mobile phone was taken out by the police. PW-5 has improved upon her deposition to the suggestion that there was no enmity between accused person and her husband and it is denied by PW-5. This shows that now PW-5 has claimed enmity between accused person and her husband. The CDR of the mobile phone is not proved by the prosecution on record and therefore it cannot be said that the alleged mobile phone belonged to PW-5 at all or that such phone call was received by PW-5 from accused SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 43 of 52 no. 1 Irfan. Hence the only relevant evidence after commission of offence in reference to PW-5 is the phone call which is not proved on record.
25. It is pointed out by the ld. LAC for the accused that the police had received the information at 3:35 AM vide Ex.PW1/A which is DD No. 5 dated 09.03.2018. The PW-3 had not given intimation to the police who had mobile phone with him which is mentioned in the page annexed with MLC Ex.PW21/A of the deceased Raju and which is at page no. 99 of the case file. It mentions the phone number of PW-3 as 8585585768. The patient was brought dead by PW-3 who claimed himself as brother of the deceased. The patient was declared dead at 2:30 AM. The alleged incident had occurred at about 2 AM and when PW-3 had took the deceased Raju to the hospital by 2:30 AM then it is a normal course of time during which he could have taken the victim/deceased Raju to the hospital. Hence no delay is seen in taking the victim to the hospital by PW-3. The facts were reported to the doctor that the victim was so attacked/assaulted with a knife. In the MLC it is mentioned that the victim was assaulted at NDRS near gate no. 2 at about 2:10 AM. However it is not mentioned in the MLC that how many person have assaulted. The casualty report annexed with the MLC at page no. 99 of the case file does not mention that how many person have assaulted the deceased. Assault was claimed only by knife both in MLC and in the casualty report. However in MLC of PW-4 Rinku vide Ex.PW21/B records that how many person have committed assault which were five in number. This MLC of PW-4 does not record that this assault was also committed on the deceased Raju and also on PW-3 Ranjit. The assault SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 44 of 52 was committed near gate no. 2 of NDRS. The nature of injuries in the MLC of PW-4 are recorded as simple. However these injuries are not proved by calling a doctor in witness box and PW-21 Sh. Satish Kumar the record clerk has proved that this MLC was prepared by Dr. Mohan Kumar and he can identify his handwriting and signature as he had seen Dr. Mohan Kumar writing and signing during the course of his service. Hence the preparation of MLC is proved. However the nature of injuries are not proved on PW-4 if they could be caused by weapon of offence. In his examination-in-chief PW-4 has deposed that he knew all the accused person before hand as they were staying near NDRS. He had also named the accused before the police. It is also deposed voluntarily that police has wrongly recorded that accused no. 2 Shyamu @ Sonu attacked PW-4 in place of accused no. 5 Rajan. Hence despite knowing the name of all accused person PW-4 has not named the said accused person in his MLC. It is also not recorded in the MLC which of the accused has given stab wound to PW-4. PW-3 has also not stated while getting admitted deceased Raju about the name of the accused and even the total number of accused was not mentioned. The information was received at PS as mentioned in the FIR at about 6:35 AM on 09.03.2018 which was entered in Roznamcha vide entry no. 12A around 6:45 AM. The complainant is PW-3 Sh. Ranjit Kumar. Hence it was expected from PW- 3 that he would immediately intimate not only the total number of accused and name of accused when they were known to him beforehand in view of his deposition in cross-examination that he knew accused Irfan and Sonu since last four months from the date of incident. Hence there is delay in recording of FIR and there is delay in giving information to police by PW-3. In cross-examination he has deposed by SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 45 of 52 an improved version that he knew accused about 6-7 months prior to the incident. Hence it creates doubt in the case of the prosecution about presence of PW-3 at the spot in view of the fact that had he immediately seen accused person then such accused person must have been named immediately in the MLC itself and when mobile phone was available with him then he would have immediately called the police about the incident. It is deposed by PW-3 in cross-examination dated 16.05.2019 at page 5 that he was 20 paces away when the accused person had surrounded the deceased Raju. He did not come to rescue Raju and PW-4 Rinku because the accused person were armed with deadly weapon. Hence PW-3 could have clearly seen that which one of the accused was hitting on which part of body of the victim Raju by the knife or by the hammer.
26. Having discussed the facts above the deposition of PW-3 and PW- 4 when read together with the medical evidence proves that injuries were caused upon the deceased Raju. However the presence of all the five accused or the same five accused as named by the prosecution is doubtful. The presence of accused Rajan and Manohar is doubtful. There is delay in registration of FIR. When the victim Raju was declared dead at 2:30 AM then the first call to the police was reached at 3:30 AM. No information was given to the police by PW-3 and there was ample time with the PW-3 or PW-4 to improve upon their story. PW-3 already knew beforehand the name of accused person then there was no reason to disclose such names in the MLC of the deceased. Further, even total number of accused are also not disclosed during such preparation of MLC at 2:30 AM on 09.03.2018. This creates doubt regarding presence SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 46 of 52 of PW-3 at the spot and doubt becomes deeper when read with the paras discussed above. The same history of number of accused and name of accused is also not recorded in the casualty, brief history sheet available on the record. In the MLC at 2:30 AM records that the pupils of the deceased were dilated not related to age. The patient was declared brought dead. In the postmortem report Ex.PW22/A which was received for postmortem for 11.03.2018 at 11.55 AM. For the first time in medical history sheet in the post morterm report it was recorded that the assault was by five person. The FIR Ex.PW18/B dated 09.03.2018 records that the information was received at PS at 6:35 AM. The approximate time of death is before two days and still before those two days the exact time of death cannot be calculated and it may vary for a period of 12 hours or more keeping in view the condition in which the body remained, the weather and other environmental factors according to which rigor mortis can develop. The pupils of the body were already dilated when it reached at the hospital at 2:30 AM. Hence the death may or may not occur in presence of PW-3 and PW-4. When there is doubt about a fact and two conclusion can be drawn from it when one in favour of the accused and other is against the accused than the conclusion in favour of accused is drawn keeping in view the overall facts and circumstances of the case. Since the hammer and knife were not found used against the deceased by the accused therefore the above conclusion is drawn in favour of accused and doubt has arisen that assault was made in presence of the eye witnesses of the prosecution.
27. The weapon of offence recovered from accused person does not match with the injuries sustained by the victim and the medical evidence SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 47 of 52 led by the prosecution does not support the weapon of offence produced by the prosecution.
28. The case of the prosecution is that the accused person have motive to kill the deceased as PW-3 has acted as police informer against the accused person. In citation titled Subramanya Vs. State of Karnataka in Criminal Appeal No. 242 of 2022 dated 13.10.2022 it is laid down at para no. 92 that motive is a important circumstance which is a circumstantial evidence but it cannot take place of conclusive proof that the person concerned was author of the crime. It may create strong suspicion but it cannot be a substitute for proof of the guilt of the accused beyond reasonable doubt. Though the prosecution is not required to name before the present Court that PW-3 had acted as police informer. It is the case of the prosecution witness that only since last 6-7 months PW-3 came to know about the accused person and any police case registered against the accused person by the police in those last 6-7 months is not produced on record by any kind of evidence. Hence motive is not proved on record by the prosecution against the accused person that they had to attack PW-3 and in consequence they had to kill deceased Raju.
29. The case of the prosecution is based on direct evidence and not on circumstantial evidence. Keeping in view the facts, circumstances and evidence discussed above it is held that prosecution has failed to prove conclusively that accused no. 1 Irfan, accused no. 2 Shyamu Diwakar, accused no. 3 Manohar Sharma and accused no. 5 Rajan has committed murder upon deceased Raju on 09.03.2018 at 2 AM in front of exit gate SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 48 of 52 at NDRS, Delhi.
30. Section 25 of Arms Act, 1959 is reproduced hereasunder for ready reference.
25. Punishment for certain offences.―1[(1) Whoever--(a) manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(b) shortens the barrel of a firearm or converts an imitation firearm into a firearm in contravention of section 6;
or 2** * * *
(d) brings into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
3[(1A)Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which may extend to ten years and shall also be liable to fine.
(1AA) whoever manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer or has in his possession for sale, transfer, conversion, repair, test or proof, any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.] 4[(1AAA)] Whoever has in contravention of a notification issued under section 24A in his possession or in contravention of a notification issued under section 24B carries or otherwise has in his possession, any arms or ammunition shall be punishable with imprisonment for a term which shall not be less than 2[three years, but which may extend to seven years] and shall also be liable to fine.
(1B) Whoever--(a) acquires, has in his possession or carries any firearm or ammunition in contravention of section 3; or
(b) acquires, has in his possession or carries in any place specified by notification under section 4 any arms of such class or description as SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 49 of 52 has been specified in that notification in contravention of that section; or
(c) sells or transfers any firearm which does not bear the name of the maker, manufacturer's number or other identification mark stamped or otherwise shown thereon as required by sub-section (2) of section 8 or does any act in contravention of sub-section (1) of that section; or
(d) being a person to whom sub-clause (ii) or sub-clause (iii) of clause
(a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section; or
(e) sells or transfers, or converts, repairs, tests or proves any firearm or ammunition in contravention of clause (b) of sub-section (1) of section 9; or
(f) brings into, or takes out of, India, any arms or ammunition in contravention of section 10; or
(g) transports any arms or ammunition in contravention of section 12; or
(h) fails to deposit arms or ammunition as required by sub-section (2) of section 3, or sub-section (1) of section 21; or
(i) being a manufacturer of, or dealer in, arms or ammunition, fails, on being required to do so by rules made under section 44, to maintain a record or account or to make therein all such entries as are required by such rules or intentionally makes a false entry therein or prevents or obstructs the inspection of such record or account or the making of copies of entries therefrom or prevents or obstructs the entry into any premises or other place where arms or ammunition are or is manufactured or kept or intentionally fails to exhibit or conceals such arms or ammunition or refuses to point out where the same are or is manufactured or kept, shall be punishable with imprisonment for a term which shall not be less than 3[one year] but which may extend to three years and shall also be liable to fine:
Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than 3[one year].
[(1C) Notwithstanding anything contained in sub-section (1B), whoever commits an offence punishable under that sub-section in any disturbed area shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 50 of 52 and shall also be liable to fine.
Explanation.―For the purposes of this sub-section, "disturbed area"means any area declared to be a disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order, and includes any areas specified by notification under section 24A or section 24B.] (2) Whoever being a person to whom sub-clause (i) of clause (a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both. 1[(3) Whoever sells or transfers any firearm, ammunition or other arms--
(i) without informing the district magistrate having jurisdiction or the officer in charge of the nearest police station, of the intended sale or transfer of that firearm, ammunition or other arms; or
(ii) before the expiration of the period of forty-five days from the date of giving such information to such district magistrate or the officer in charge of the police station, in contravention of the provisions of clause (a) or clause (b) of the proviso to sub-section (2) of section 5, shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.] (4) Whoever fails to deliver-up a licence when so required by the licensing authority under sub-section (1) of section 17 for the purpose of varying the conditions specified in the licence or fails to surrender a licence to the appropriate authority under sub-section(10) of that section on its suspension or revocation shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.
(5) Whoever, when required under section 19 to give his name and address, refuses to give such name and address or gives a name or address which subsequently transpires to be false shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to two hundred rupees, or with both.
31. In the evidence discussed above it was found that the prosecution has failed to prove recovery of knife from accused Irfan. The alleged SC No. 448/2018 FIR No. 70/2018 State Vs. Irfan & Ors. Page 51 of 52 knife is also not proved under prohibited category under Section 25 of Arms Act, 1959 with the relevant notification.
32. In such view of the matter, it is held that prosecution has failed to prove all the charges levelled against accused no. 1, 2, 3 and 5. Hence accused no. 1 Irfan, accused no. 2 Shyamu Diwakar @ Sonu @ Chikna, accused no. 3 Manohar Kumar Sharma and accused no. 5 Rajan stands acquitted for the charges levelled against them. The earlier personal bond of above accused 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) above accused person 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.
33. Accused Mukesh @ Zulfi is proclaimed offender (PO) before filing of chargesheet. Prosecution is at liberty to file chargesheet separately against the said accused as and when the occasion arise.
Hence the file against accused Mukesh @ Zulfi is kept pending and adjourned SINE-DIE which would be taken up again on such apprehension of accused Mukesh @ Zulfi.
File be consigned to Record Room.
Digitally signed byAnnounced in the open Court JOGINDER JOGINDER
on 19.07.2025 PRAKASH PRAKASH NAHAR
Date: 2025.07.19
NAHAR 15:10:16 +0530
(JOGINDER PRAKASH NAHAR)
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL/TIS HAZARI COURT
DELHI
SC No. 448/2018
FIR No. 70/2018
State Vs. Irfan & Ors. Page 52 of 52