Delhi District Court
State vs Salman@Guddu on 18 December, 2024
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR,
ADDL. SESSIONS JUDGE (FTC)-01, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No.DLCT01-011911-2018
SC No.699/2018
FIR No.213/2018
U/s 302/34 IPC
P. S. Sarai Rohilla
STATE VERSUS SALMAN @ GUDDU
(i) SC No. of the case : 699/2018
(ii) Date of commission of offence : 30.05.2018
(iii) Name, parentage and address : Salman @ Guddu
of accused S/o Sh. Mukim
R/o Jhuggi No.29,
Behind Furkaniya
Masjid,
Shahzadabagh,
Delhi
(iv) Offences complained of : 302/34 IPC
(v) Plea of the accused : Pleaded not guilty
(vi) Final order : Acquittal
(vii) Date of such order : 18.12.2024
Page 1 of 50
SC No.699/2018
FIR No.213/2018
P. S. Sarai Rohilla
State vs. Salman @ Guddu
Date of Institution : 14.09.2018
Date of Judgment reserved on : 28.11.2024
Date of Judgment : 18.12.2024
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
1. The present case was registered on the complaint of Mohd.
Akhtar vide complaint Ex.PW1/A. The complainant is father of the deceased Rashid. It is stated in the complaint that the name is his second son is Rashid. When PW-1 was returning on 30.05.2018 around 11:00 PM behind Furkaniya Masjid towards his jhuggi then he had seen that his son Rashid was caught hold from behind by accused Salman @ Guddu resident of Jhuggi No.29, Zakhira, Delhi. They had caught Rashid at the Railway Line. Another CCL who was staying in the neighbouring jhuggi of PW-1 was stabbing the victim Rashid with knife. Accused Salman was exhorting that let us finish him / Rashid today. The victim Rashid was shouting for help despite which the CCL was again and again stabbing the victim with knife and he was shouting that today he will leave Rashid only after killing him. When PW-1 ran to save his son then both the assaulters ran inside jhuggi. The victim Rashid had fallen down on Railway Page 2 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu Track soaked in blood. PW-1 immediately lifted the victim from the Railway Track with the help of other jhuggi dwellers and put him in an auto. PW-1 took victim Rashid to Hindu Rao Hospital where victim Rashid was declared dead. FIR Ex.PW5/A was registered in the matter on 31.05.2018 at 2:40 AM. The certificate under Section 65B of Evidence Act is Ex.PW5/C. The endorsement on Rukka is Ex.PW5/B sent by ASI Ashok Kumar through HC Surender. Ct. Rajesh has delivered the FIR to learned Area MM. DD No.29PP dated 30.05.2018 was registered in the matter at 11:35 PM which is Ex.PW20/B and intimation was given by HC Sanjeev from Hindu Rao Hospital that victim Rashid was brought by his father Mohd. Akhtar and the victim was declared brought dead by the Doctor. Hence the information had reached at PS first vide Ex.PW20/B, DD No.29PP dated 30.05.2018 at 11:35 PM and the information vide DD No.2PP dated 31.05.2018 had reached at PS at 00:26 AM vide Ex.PW20/C. Vide Ex.PW20/B the information was given to IO/ASI Ashok and SI Pankaj Tomar to proceed with investigation in the matter.
2. After completion of investigation charge-sheet was filed on 27.08.2018. Cognizance of the offence was taken and charge was given to the accused Salman @ Guddu under Section Page 3 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu 302/34 IPC on 01.10.2018. Prosecution has led PW-1 to PW-23 as prosecution evidence against the accused. The statement of accused under Section 313 Cr. P. C. was recorded on 16.12.2023. However PW-19 was recalled for examination on the request of accused and thereby additional supplementary statement under Section 313 Cr. P. C. was recorded on 26.09.2024. The accused has preferred to lead evidence in defence. Accused has led one evidence in defence who is DW-1 Ms. Nasima and they are brother and sister. Defence evidence was closed vide separate statement of accused without oath on 25.10.24.
3. Final arguments are heard on behalf of both the parties and record perused.
4. Learned Counsel for the accused has relied on the following citation:
(i) Telewar Sharma vs. State & Ors. Crl Rev P No.292/2001 decided by the Hon'ble High Court of Delhi on 20.11.2012;
(ii) Pradeep @ Raju vs. State Crl. A No.516/2018 decided by Hon'ble High Court of Delhi on 10.07.2018;
(iii) Pawan Kumar vs. The Delhi Administration decided by the Page 4 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu Hon'ble High Court of Delhi dated 17.08.1987;
(iv) Ramanand @ Nandlal Bharti vs. State of Uttar Pradesh Crl.
A No.64-65 of 2022;
(v) Mohammad Burhan vs. Directorate of Revenue Intelligence Crl. A. 167/2013, Crl. M A No.12446/13 & 3396/17;
(vi) State of Uttar Pradesh vs. Ram Veer Singh and Ors. AIR 2007 Supreme Court 3075; and
(vii) Sohan and Anr. vs. State of Haryana and Anr. AIR 2001 Supreme Court 1380.
5. 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 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?"
[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 Page 5 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu 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: -
"The prosecution must prove the following facts before it can bring a case under S. 300 "Thirdly"; First, it must establish, quite Page 6 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu 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 Page 7 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu 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
(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 Page 8 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu 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, 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 Page 9 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu 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 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."Page 10 of 50 SC No.699/2018 FIR No.213/2018
P. S. Sarai Rohilla State vs. Salman @ Guddu (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 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 Page 11 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu 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 :-
"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 Page 12 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu 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 Page 13 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu 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 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 Page 14 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu 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 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."
Page 15 of 50 SC No.699/2018 FIR No.213/2018P. S. Sarai Rohilla State vs. Salman @ Guddu (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 (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 Page 16 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu 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. 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 Page 17 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu 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 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.
Page 18 of 50 SC No.699/2018 FIR No.213/2018P. S. Sarai Rohilla State vs. Salman @ Guddu 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."
6. The case of the prosecution is that in front of PW-1 the victim was stabbed whereas the accused herein had caught hold of deceased Rashid during the process of commission of offence. The injures were inflicted on the victim by stabbing. The Section 34 IPC is also put in against the accused by the prosecution. Illustration (c ) to Section 300 IPC is relevant to understand the applicability of clause thirdly of Section 300 IPC. Hence the accused is charged with clause thirdly of Section 300 IPC. The prosecution has to prove the first Page 19 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu ingredient is that there is a bodily injury present. PW-16 Dr. Neha has deposed that she had conducted post-mortem on deceased Rashid vide Ex.PW16/A and the deceased had sustained 19 external injuries. The cause of death was haemorrhagic shock as a result of ante-mortem injury to the chest and abdomen produced by single edged weapon. All the injuries were ante-mortem in nature. Injury No.1, 7 and 15 are collectively and individually sufficient to cause to death in the ordinary course of nature. The time of death is about 18 hours. The deceased was examined for post-mortem on 31.05.2018. It is further deposed by PW-16 that on 16.01.2019 she had received a request for subsequent opinion on the weapon of offence which was in a parcel which was containing knife. It is deposed that injury No.1 to 9 and 14 to 18 can possibility be given by a knife and her subsequent opinion in this regard in Ex.PW16/B. She had also prepared the sketch of knife which is Ex.PW16/C. Hence PW-16 has proved beyond reasonable doubt the first ingredient under Section 302 IPC that bodily injuries were present on the body of deceased Rashid.
7. The second ingredient the prosecution has to prove is that the nature of injuries. The nature of injuries are also proved by PW-16 by deposing and already discussed above in previous Page 20 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu para and reproduced hereasunder:
"The cause of death was hemorrhagic shock as a result of ante mortem injury to the chest and abdomen produced by single edged weapon. All the injuries were ante- mortem in nature. Injury No.1, 7 and 15 are collectively and individually sufficient to cause to death in the ordinary course of nature. The time of death is about 18 hours. The deceased was examined for post-mortem on 31.05.2018. It is further deposed by PW-16 that on 16.01.2019 she had received a request for subsequent opinion on the weapon of offence which was in a parcel which was containing knife. It is deposed that injury No.1 to 9 and 14 to 18 can possibility be given by a knife and her subsequent opinion in this regard in ExPW16/B. She hd also prepared the sketch of knife which is Ex.PW16/C."
8. The third ingredient which the prosecution has to prove is that there was an intention to inflict that particular bodily injury such that it was not accidental or unintentional or some other kind of injury was intended. Hence under this ingredient the prosecution has to prove that accused had participated in the crime and in such participation there was infliction of that Page 21 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu bodily injury.
9. The learned Counsel for the accused has submitted that it is not the accused who had caused the injury and accused was not part of the crime. It is submitted that the deceased must be having many enemies as it has come on record in cross examination of PW-1 dated 22.05.2019 at page 1 where PW-1 has deposed that he knew that his son Rashid was facing one murder trial.
9.1 It is submitted on behalf of accused that there is delay in lodging the First Information Report. The FIR was lodged at PS vide Ex.PW5/A which records 2:40 AM as the time when the information was received at PS. It is noted that PW-1 who was father of the deceased and also eye witness had reached at the hospital with his son at 11:30 PM which is recorded in post- mortem report Ex.PW16/A. The information was given by HC Sanjeev at PS vide DD No.29PP dated 30.05.2018 at 11:35 PM vide Ex.PW20/B. At this time was intimated that the deceased Rashid was brought dead by the Doctor. On the information of HC Sanjeev FIR was not registered but it was registered on the complaint of PW-1 while claiming receipt of information at PS at 2:40 AM. The complaint is Ex.PW1/A. Hence by 11:35 PM the deceased was declared brought dead and FIR was registered Page 22 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu on the complaint of PW-1 at 2:40 AM which is after a gap of about 3 hours. PW-7 Ms. Armana has deposed that on 30.05.2018 she came to know that her brother was stabbed with a knife at Patri (Railway) by accused Salman. It is admitted as correct by PW-7 that she had not seen the occurrence of the offence. It is also admitted as correct that she did not inform the name of assailants to the PCR while making a call at 100 number. Vide DD No.2PP Ex.PW20/C the PW-7 has intimated to police through wireless set available with the police that at Jhuggi No.42, Daya Basti, Shahazadbagh, behind Sindhi Gate House, her brother was stabbed who was taken to Bara Hindu Rao Hospital. PW-7 has not stated in her entire deposition that how she had received the intimation and from whom. Her entire evidence is hearsay and therefore her evidence to the fact of stabbing of accused Salman cannot be relied upon as hearsay evidence. However information was already received at PS at 11:35 PM and accused has failed to show any prejudice on registration of FIR at 2:40 AM on next day.
9.2 It is argued on behalf of the accused that Ms. Armana did not intimate in Ex.PW20/C that accused had hit her brother with a knife and she has specifically stated a different place of occurrence than Railway Track and therefore it is claimed that Page 23 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu the place of incident is different. Other then this accused Salman is known to Ms. Armana / PW-7. PW-7 has deposed that deceased Rashid was her brother in relation and not her real brother. Accused Salman is staying in nearby Jhuggi and by not naming the accused Salman in Ex.PW20/C shows that PW-7 by that time was not aware that who had stabbed her brother. In her statement under Section 161 Cr. P. C. PW-7 has stated that she had called PCR from her mobile phone. However she has not disclosed that how the information about stabbing of deceased Rashid was received by her. It is argued on behalf of learned Counsel for the accused that PW-7 was not an eye witness and it is further argued that PW-1 was also not eye witness to the offence. As per deposition of PW-7 it is held that she is not eye- witness to the offence and her evidence is hearsay.
9.3 The site plan Ex.PW23/A shows signature of Inspt. Rajesh Kumar/IO. At point A inside the Railway Track stabbing was done to the Rashid and from point B adjacent to Railway Track the father of the victim had lifted him and taken him to hospital. Ex.PW6/A is another site plan prepared afresh on the basis of scale. In the fresh site plan prepared there is a cemented boundary near the Railway Line. Just adjacent to point A are Jhuggi to the other side of the cemented boundary line. Learned Page 24 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu Counsel for the accused has submitted that this is an improved site plan. The site plan Ex.PW6/A is not seen as an improved site plan as no difference in the area shown is seen in Ex.PW23/A when compared with Ex.PW6/A whereas Ex.PW6/A shows the broad picture of the spot and there is no contradiction between the two site plans and it is consistent with the initial complaint Ex.PW1/A that the accused person ran away in their Jhuggi near railway line after stabbing the deceased Rashid.
9.4 One important fact to be noted is that in Ex.PW1/A which was written on 31.05.2018 Ravangi of which was done at 2:20 AM mentions the name of accused Salman which shows that PW-1 and his family members were well aware of the name of accused Salman. Comparing Ex.PW1/A with PCR Form No.1 available on record and not brought in evidence by the prosecution is marked as Ex.P1 at the stage of dictation of judgment for the purpose of identification. It does not mention the name of accused Salman even though accused Salman was staying near her Jhuggi. This PCR Form was filled on information given by PW-7. The MLC of Rashid is Ex.PW16/A which records that the deceased Rashid was brought by his father and it mentions that deceased was brought dead at Page 25 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu hospital at 11:30 PM on 30.05.2018. However this MLC does not record if the deceased was stabbed by the accused Salman. The PW-1 was present at Hospital at that time. Hence this creates doubt in the case of the prosecution that whether PW-1 was present at the time on the spot when his son Rashid was stabbed.
9.5 It is also noted that there is no call at 100 number by PW-1 after 11:30 PM. However at 11:35 PM information was received at PS from Bara Hindu Rao Hospital and it can be understood that PW-1 was busy in trying to save his son by taking him to the hospital between 11:00 PM to 11:30 PM. The post-mortem report records that the time since death was 18 hours and the post-mortem was conducted at 3:00 PM on 31.05.2018. The case of the prosecution is that the offence was committed on 30.05.2018 at 11:00 PM. According to the prosecution the time since death from the time of conducting the post-mortem is 15 and ½ hours.
9.6 It is argued on behalf of the accused that there was no men's rea with the accused to stab the victim Rashid. There is no public witness to the incident. PW-16 has deposed that time since death is about 18 houses counting backwards from 31.05.2018 at 3:00 PM which comes to 9:00 PM on 30.05.2018.
Page 26 of 50 SC No.699/2018 FIR No.213/2018P. S. Sarai Rohilla State vs. Salman @ Guddu Hence according to the deposition of PW-16 the stabbing was done before 9:00 PM so that death could occur by 9:00 PM. This fact therefore creates doubt in the case of the prosecution if act of stabbing was witnessed by PW-1 at 11:30 PM when death had already occurred at 9:00 PM on 30.05.2018. Further PW-1 has not deposed that in which Jhuggi the accused had ran immediately after stabbing the deceased if he had seen the accused running. The site plan Ex.PW23/A was not prepared at the instance of PW-1 as it does not bear the signature of PW-1. PW-1 has also not proved the site plan on record. PW-21 ASI Ashok Kumar has deposed that IO had prepared the site plan at the instance of complainant. PW-22 has deposed that Inspt. Rajesh had prepared the site plan at the instance of complainant. PW-23 has deposed that he had prepared the site plan at the instance of complainant. Whereas the site plan does not bear the signature of PW-1/complainant. PW-1 does not say that the site plan was prepared at his instance nor the site plan bear his signature and therefore PW-1 could not have proved the site plan. Hence how the police had acquired the knowledge of place of incident has become doubtful though PW-1 had shown the place of incident to the police as per his deposition.
9.7 Learned Counsel for the accused has pointed out Page 27 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu Ex.PW19/A which is seizure memo of the knife dated 31.05.2018 and Ex.PW19/B is the sketch of the knife of the same date. This sketch of knife does not bear any special design either on the blade of the knife or on the handle of the knife. However there is another knife available on the record which was examined at FSL for subsequent opinion. The subsequent opinion is Ex.PW16/B behind which the sketch of knife Ex.PW16/C is prepared. In Ex.PW16/C the sketch of knife had a abrasion design on the blade and also a curve design on the handle which is absent in Ex.PW19/B. The support below the handle also varies in size in both the knifes. Other than this the width of knife in Ex.PW19/A is 5CM whereas it is 4.8CM in Ex.PW16/C. The handle length of knife in Ex.PW19/A is 13 CM whereas it is 13.4 CM in Ex.PW16/C. Hence it cannot be said that the knife seized vide Ex.PW19/B is the same knife which was received at FSL vide Ex.PW16/C. The FSL report is Ex.PW18/A which mentions that blood was detected in Ex.1 to 9 from which male DNA Profile was generated. Whereas Ex.1 is knife. The conclusion of the FSL is that the DNA (STR) analysis from Ex.1 to 9 when compared with Ex.9 are similar in DNA Profile except Ex.3 which are stone pieces from the spot. However due to difference in size and design in knife actually seized from the spot and received at FSL it has become doubtful Page 28 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu that this was the same knife which was seized from the spot. Hence on this account the FSL report could not be relied upon and benefit of doubt has to be given to the accused.
9.8 Learned Counsel for the accused has submitted that no public witness was joined at the time of arresting the accused. PW-1 at page 2 of his examination in chief has deposed that when he was present with the police then one person had given information to the police that the accused Salman was sitting in the jungle near Furkaniya Masjid. PW-1 accompanied the police. It is submitted that the IO was required to join a public witness which was not joined. It is further submitted that the knife was seized from the CCL /MA and not from the present accused. There is non-compliance of Section 100 (4) Cr. P. C. which requires that before making a search the officer shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated and in this respect an order in writing can also be issued to such inhabitant/ witness who are not willing to attend the search. It is also argued that at the time when alleged disclosure was made by the accused then by that time accused was not arrested by the police and therefore he was not an accused at that time and Section 27 of Evidence Act, 1872 does not come into operation.
Page 29 of 50 SC No.699/2018 FIR No.213/2018P. S. Sarai Rohilla State vs. Salman @ Guddu Initially the accused was apprehended as CCL vide Ex.PW19/G and the disclosure was recorded on 31.05.2018 between 10:20 AM to 10:33 AM. The submission of the learned Counsel for the accused that the accused was not arrested at the time of disclosure and therefore Section 27 of the Evidence Act does not come into operation is rejected in view of the fact that being CCL at the time of "apprehension" the accused could not be "arrested" however the disclosure made by the accused shall continue to be a relevant fact. However in continuation of this disclosure Ex.PW19/G no such evidentiary fact was discovered by the IO on the basis of which application of Section 27 of the Evidence Act, 1872 could be brought into operation. Hence as to the discovery against the accused Salman Section 27 of the Evidence Act, 1872 has not became operation keeping in view the citation titled Ramanand @ Nand Lal Bharti vs. State of Uttar Pradesh 2022 SCC OnLine SC 1396 (Coram:3) . The relevant paras of which No.76 to 85 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 PW3, Babu Ram Hans at about 9:00 o'clock in the morning and sought his help.
While seeking help from the PW3, 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 Page 30 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu an extra judicial confession to the PW3, 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 confession said to have been made by the accused appellant before the PW3, 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 PW3, 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 PW1, Shambhu Raidas (first informant) and narrated about the incident. The PW1, 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 PW3, 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 PW4, Ram Kumar then according to him at the relevant point of time he was a member of the District Panchayat. According to PW4, 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 Page 31 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu does the prosecution expect us to believe even the second extra judicial confession alleged to have been made before the PW4, 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 PW1, 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 PW4, 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 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 PW4, Ram Kumar very doubtful is that his house is situated at a distance of 67 kilometers from Dhaurhara and according to the PW4, the accused appellant visited his house all the way walking from his own house. The PW4, 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 PW1, 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 PW2, 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 Page 32 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu 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 89 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 PW2 and also before the PW4 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 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 Page 33 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu 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 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 Page 34 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu 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, 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) Page 35 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu
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 speak 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 Sahadevan and Another v. State of Tamil Nadu, (2012) 6 SCC 403, this Court held as under:
Page 36 of 50 SC No.699/2018 FIR No.213/2018P. S. Sarai Rohilla State vs. Salman @ Guddu "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 extrajudicial 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 extrajudicial 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 extrajudicial 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 extrajudicial 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 extrajudicial 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 2930) "29. There is no absolute rule that an extrajudicial confession can never be the basis of a conviction, although ordinarily an Page 37 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu extrajudicial 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 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.
9.9 The seizure memo of pant of accused is Ex.PW19/C. It is submitted that in the seizure memo thumb impression of mother of accused is recorded who was not present at the spot. As per Page 38 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu deposition of PW-19 at page 3 when the accused Salman and another CCL were found sitting behind the bushes then at that time the accused Salman was wearing jean pant having buckle of G Star and in the seizure memo it is mentioned that blood was there on the pant which was worn at the time of commission of offence by accused Salman. Hence the said pant was seized at the place of arrest of accused Salman and it is not clear how the mother of the accused came to be present at that spot when she was not present with the police team as PW-1 has deposed that on receipt of secret information he accompanied the police and had apprehended two accused in the bushes. Police had also taken into possession the blood stained T-shirt/Ex.PW22/F which he was wearing at the time of incident and it also bears thumb impression of mother of accused Salman. Hence the recovery of blood stained T-shirt and Pant of the accused become doubtful not only on this aspect but also on the another aspect that the incident is dated
30.05.2018 at 11:00 PM whereas the seized items were recovered on 31.05.2018 after 10:00 AM and it is difficult to believe that the accused person will continue to wear blood stained clothes for such a long time while sitting in the bushes behind Furkaniya Masjid to be apprehended with blood stained clothes.
Page 39 of 50 SC No.699/2018 FIR No.213/2018P. S. Sarai Rohilla State vs. Salman @ Guddu 9.10 It is deposed by PW-19 that IO had asked 4-5 persons to join the investigation but none has agreed however IO did not gave notice to any public person to join the investigation in terms of Section 100 (4) Cr. P.C. It is deposed by PW-19 at page 3 of cross examination dated 10.07.2024 as correct that the IO had not given any notice to said 4-5 public person who refused to join investigation. PW-22 in cross examination dated 05.11.2022 at page 3 has deposed that after reaching Furkaniya Masjid IO had asked 3-4 passerbyes to join investigation but none agreed who left without disclosing their name and address. Same is deposition of IO/PW-23 at page No. 2 of his examination in chief dated 29.05.2023. However keeping in view the glaring infirmities noted above in the case of the prosecution it has become incumbent on the prosecution to have joined the public witness which is not joined and in this respect the prosecution's case has become doubtful. The relevant citation in this regard is reproduced hereasunder:
High Court of Delhi in case titled Mustakeen @ Bhura vs State (Govt.of NCT Delhi) on 2 November, 2020 CRL.A. 419/2018 & CRL.M.(BAIL) 6459/2020
16. The Ld. Trial Court has mainly based the conviction on 3 points:
(a) Testimony of PW 11 (eye witness) Page 40 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu
(b) Recoveries
(c) Presumption U/s 114 of the Evidence Act.
26. Before proceeding any further, we must not forget that PW 11 is a police official who has received police training before joining the police force, so keeping this in mind, we have to analyze his testimony. According to PW 11, he had tried to stop 4 persons who were escaping on the motorcycle. The time of the incident is around 8:15 p.m. on early March (6th March) and it was night time, PW 11 had only a very brief encounter with the persons who were escaping on the motorcycle. So in such a short period of time, it is very difficult for anyone to remember the faces of 4 persons at a go and that too when he claims to have seen them at night time on the road. In his statement U/s 161 Cr.P.C. recorded on 07.03.2011, PW 11 has not given any description/facial features in regard to any one of the person escaping on the motorcycle what to talk of 4 persons. According to this witness, he chased the motorcycle for about 50-60 yards but he nowhere states that he had seen the faces of the persons, who were escaping on the motorcycle while he was chasing them on foot, and there is nothing in his testimony to suggest that the persons on the motorcycle were looking back at him while they were making good their escape. According to PW 11 he had tried to trace the accused persons on his motorcycle, but we fail to understand why he did not alert the other beats of his area when, according to his testimony, there were other 11 beats in the said area.
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:
Page 41 of 50 SC No.699/2018 FIR No.213/2018P. S. Sarai Rohilla State vs. Salman @ Guddu "where various links in a chain are in themselves complete, then a false plea for a false defence may be called for aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by the Court." In the instant case, we have already held that PW 11 is not an eye witness of this case. Considering PW 11 to be the eye witness of this case, and throwing all settled principles of law relating to TIP to winds, constable Kuldeep was joined in the raiding party alongwith secret informer and other police officials for apprehending the accused persons of the incident which took place on 6.3.2011, but PW 11 has categorically stated to PW 44 SI Bhim Sain that appellant Arshad was not involved in the crime which took place on 6.3.2011, but despite that his disclosure statement was recorded and recovery of Rs. 40,000/- was effected from him. No doubt, the appellant has not been able to give proper explanation as to how he was in possession of Rs. 40,000/-, but burden was upon the prosecution to prove that the appellant was involved in the crime which took place on 6.3.2011, which the prosecution has miserably failed to do, as discussed hereinabove. Therefore, the Ld. Trial Court was not correct in drawing presumption against the appellant Arshad U/s 114 of the Indian Evidence Act and to convict him. The only evidence which remains on record against appellant Arshad is his disclosure statement which is not admissible in evidence. Apart from this, there is not even an iota of evidence against appellant Arshad to connect him with the crime which took place on 6.3.2011.
62. We are aware that there is no rule of law or evidence, which lays down that unless and until the testimony of the police official is corroborated by some independent evidence, the same cannot be believed. But it is a Rule of Prudence, that a more careful scrutiny of the evidence of the police officials is required, since they can be said to be interested in the result of the case projected by them.
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 Page 42 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu been planted in order to "solve" the case. Therefore, we have find it hard to believe the testimonies of the police officials in the absence of corroboration from any public witness, looking into the facts and circumstances of this case and also the manner in which the IO and the SHO have conducted themselves. For the sake of repetition, the IO had made no efforts to join the public witnesses.
Had he made any such efforts, then the things would have been different, but in the instant case, the manner in which the investigation has been done and the non joining of any public witnesses reduces the arrest and search of the appellant untrustworthy, and the same does not inspire confidence.
65. We fail to understand as to why a person who had allegedly killed a man and is the BC of the area would be carrying with him all the articles mentioned hereinabove with him, that too after 11 days of the incident. In our opinion, 11 days were sufficient for the appellant Mustakeem to get rid of these articles but, strangely enough, as per the prosecution, he was roaming around with all this stuff of the deceased attached to his chest. It is also a matter of common sense that whenever an offence is committed in the jurisdiction of a police station, as a matter of routine, the concerned SHO places suspicion on the local goons and specially BC of the area. So, when such is the situation, we fail to digest the theory of the prosecution that on the day of his arrest-which is after 11 days of the date of the incident, appellant Mustakeem would be carrying with him the articles of the deceased. There would have been record of the accused maintained in the Police Station and the same could be used to identify him and establish his involvement. Where was the necessity of involving a secret informer?
69. In order to connect the appellant Mustakeem with the offence, again the Ld. Trial Court has raised presumption U/s 114 (a) of the Indian Evidence Act. The presumption U/s 114 (a) of the Indian Evidence Act may be available if the goods in question found in possession of the person in question after the theft, are proved to be stolen property. Unless the goods are proved to be stolen property, the presumption U/s 114 (a) of the Act is not available. In the instant case, the prosecution has not been able to prove that it was the appellant who had committed the offence on the date of the incident as alleged by the prosecution. It was also not justified on the part of the Ld. Trial Court to draw presumption U/s 114 (a) of Page 43 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu 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.
73. To sum up, the Trial Court has failed to appreciate the testimony of PW 11 Ct. Kuldeep in its right earnest, and has wrongly placed reliance on his testimony for the reasons discussed hereinabove in the judgment; the Trial Court has also erred in believing the arrest version of the appellants and the recoveries effected from them; the Trial Court has wrongly relied on the provisions of Section 114 (a) of the Indian Evidence Act while coming to the conclusion of guilt against the appellants; the Trial Court has further erred in not looking to the fact as to whether on the date of the incident the deceased was carrying the amount as alleged by the prosecution; the Ld. Trial Court has also wrongly relied upon the case of the prosecution in regard to the recovery of the country made pistol and its connection with the appellant Mustakeem, and the Trial Court has further failed to appreciate that except the disclosure statement, there is no evidence against the appellants.
9.11 Another fact pointed out by the learned Counsel for accused against the case of the prosecution is that PW-1 in his deposition dated 11.03.2019 at page 2 where the MHC(M) has produced one sealed parcel with the seal of FMHRH which is opened and found containing one big knife having brown stains on its blade. The knife is Ex.P1. It is argued that the seal of FSL should be SGFSL and not FMHRH as PW-18 Ms. Sunita Gupta from FSL, Rohini has deposed that the exhibits were sealed with the seal of SGFSL, Delhi and her report is Ex.PW18/A. Page 44 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu PW-19 in his examination in chief at page 4 has in his evidence that MHC(M) has produced one parcel of yellow colour having seal of FSL. It is pointed out that when the said FSL seal had already been broken in the deposition of PW-1 then how the same seal can be affixed again whereas in the deposition of PW-19 the seal has to be of the Court and not of the FSL.
9.12 On the jean pant seized of the accused PW-1 at page 3 of his examination in chief has mentioned seal of FMHRH in Ex.P1 which is knife whereas at page 3 of same deposition the seal on jean pant having brown stains is SGFSL. Hence there is difference in the seal whereas both the articles were sealed by PW-18. Other than this PW-19 at page 4 of his deposition has deposed that the seal on knife/churra Ex.PW19/A1 is of FSL and the seal on jean pant is also of FSL which is ExPW19/A2 whereas the FSL seal is already broken during the deposition of PW-1 and now it has to be the seal of the Court. This creates doubt in the case of the prosecution whether they are the same knife or jean pant allegedly recovered from the accused.
9.13 Ex.PW19/E is apprehension memo of the accused who was initially apprehended as CCL. His place of arrest is shown at Railway Line behind Furkaniya Masjid. PW-1 at page 2 has deposed that the accused was arrested when he was found Page 45 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu sitting with CCL "MA" in a jungle near Furkaniya Masjid. Both the said accused were sitting in the bushes. Hence the place of apprehension of the accused differs as per Ex.PW19/E and as per deposition of PW-1 which creates doubt in the case of the prosecution about the place of arrest of the accused. At the time of apprehension vide memo Ex.PW19/E the signatures of the guardian are taken in the name of "Shammo". PW-19 in his examination in chief dated 1703.2021 at page 2 has deposed that the accused were found sitting behind Furkaniya Masjid in bushes. It is submitted that as per deposition of PW-19 about 5:00 AM the investigation team had reached first at Daya Basti Railway Station and thereafter at jhuggi of CCL "MA" which was found locked. Whereas PW-22 at page 2 of his examination in chief has deposed that at about 5:00 AM raid was conducted at the house of accused Salman @ Golu and CCL "MA". It is argued that the above deposition shows that the accused were apprehended at their residence as raid was conducted at their house respectively and they were not arrested either at Railway Line or in a jungle or in bushes. It is deposed at page 2 by PW-22 that at about 10:15 AM they had reached at Railway Track behind Furkaniya Masjid and saw two boys sitting behind the bushes. It is noted that in the site plan Ex.PW23/A does not show anywhere any bushes or jungle near Railway Line nor Page 46 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu bushes or jungle is shown in another site plan prepared upto scale which is Ex.PW6/A. Hence this creates doubt in the case of the prosecution that from where the accused persons were arrested in the present case and this substantiate the claim of the defence that the accused were arrested from their house.
9.14 It is further pointed out by learned Counsel for the accused that PW-21/ ASI Ashok has failed to depose that he was present at the time of arrest whereas PW-23 has deposed that ASI Ashok was in the police investigation team.
9.15 Another fact pointed out by learned Counsel for the accused is that in deposition of PW-11 HC Hari Jesh it is stated that on 24.07.2018 FSL result alongwith parcels of the case property were received and he had deposited them in the malkhana whereas the FSL result Ex.PW18/A at page No.297 of case file is dated 26.07.2018. It is argued that when the result was prepared on 26.07.2018 only then how PW-11 could have deposited them earlier in malkhana on 24.07.2018. This fact also creates doubt about the manner in which the investigation was conducted in this matter.
9.16 Ex.PW19/G is the disclosure statement of the accused Salman at page No. 123 of case file. This disclosure statement Page 47 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu was recorded in the presence of PW-1 and it does not bear the signature of PW-1 though he was present at the time of apprehension of accused. In the disclosure statement it is mentioned that the CCL "MA", the accused Salman and the deceased Rashid were sitting on Railway Line on yesterday night and they had a quarrel regarding some looted valuables. Deceased Rashid was saying that he seek to have half share in the looted articles on which they had scuffle with each other. Deceased Rashid started beating CCL "MA" on which the accused caught the deceased Rashid from behind. However there is no investigation by the police regarding looted valuables which is a material fact in the case. It can disclose the motive of the crime. It can also disclose if all the accused with deceased were present at the spot at such time and may support the last scene theory. However there is no investigation in this respect that what was the looted valuables and what were those valuables and in whose possession they are. This also creates doubt in the story of the prosecution as the most material fact was not investigated in the case. The motive to kill the deceased by the accused is also not proved which creates doubt in the case of the prosecution. Other than this PW-1 has nowhere stated that what clothes were worn by the accused persons at the time of commission of crime in his complaint Ex.PW1/A and Page 48 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu therefore the recovery of such clothes from the accused has again become doubtful and it has also become doubtful that PW-1 has seen the accused person holding and stabbing the deceased. The identity of the accused was disclosed by PW-1 at 2:30 AM on 31.05.2018 whereas by 11:30 PM on 30.05.2018 the deceased was declared dead at hospital. The accused was not named in history of MLC Ex.PW15/A. 9.17 Hence it is seen that it is doubtful that PW-1 had witnessed the commission of offence keeping in view the fact that there is gap of about 2 hours in the time at which the deceased was medically found dead and when PW-1 had seen the accused stabbing the deceased. The case of the prosecution is largely based on circumstantial evidence in which motive plays an important role. The motive is not investigated in this case nor proved on record. The case of the prosecution is rendered with inherent inconsistencies and improbabilities. There are numerous gap in the chain of circumstances in the judgment discussed above. The case of the prosecution has many infirmities and inconsistencies benefit of which must go to the accused.
10. In view of the discussion held above it is held that the Page 49 of 50 SC No.699/2018 FIR No.213/2018 P. S. Sarai Rohilla State vs. Salman @ Guddu prosecution has failed to prove that the offence was committed by accused Salman @ Guddu under Section 302/34 IPC. Hence the accused Salman @ Guddu is acquitted of the offence charged against him under Section 302/34 IPC. Accordingly, the accused Salman @ Guddu stands acquitted. Accused Salman @ Guddu who is in Judicial Custody in this case has also furnished his personal bond only in a sum of Rs.20,000/- under Section 437A Cr. P. C. as directed which will be in force for period of six months from the date of this judgment. He be released henceforth if not wanted in any other case. Jail Superintendent to comply immediately and accordingly.
File be consigned to the record room.
JOGINDER Digitally signed by
JOGINDER PRAKASH
Announced in the open court PRAKASH NAHAR
on dated 18.12.24 NAHAR
Date: 2024.12.18
14:49:36 +0530
(JOGINDER PRAKASH NAHAR)
Additional Sessions Judge (FTC-I)
Tis Hazari Court/Delhi/18.12.24
Page 50 of 50
SC No.699/2018
FIR No.213/2018
P. S. Sarai Rohilla
State vs. Salman @ Guddu