Delhi District Court
State vs Istekar @ Sanu on 28 April, 2025
FIR NO. 391/2021
PS: VASANT KUNJ SOUTH
IN THE COURT OF MS. KIRAN GUPTA: ADDITIONAL
SESSIONS JUDGE - 04 : NEW DELHI DISTRICT :
PATIALA HOUSE COURTS : NEW DELHI
DLND010080112021
FIR NO. 391/2021
PS: VASANT KUNJ SOUTH
STATE VS. ISTEKAR ALI @ SANU
SC No. : 324/2021
Date of offence : 16.07.2021
Accused : Istekar Ali @ Sanu
S/o Sh. Mustaq Ali
R/o Village Sahi,
PS Shishgarh, Bareilly,
State Vs. Istekar Ali @ Sanu Page no. 1 of 40
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signed by
Kiran Kiran Gupta
Date:
Gupta 2025.04.28
13:02:07
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FIR NO. 391/2021
PS: VASANT KUNJ SOUTH
Uttar Pradesh
Plea of accused : Pleaded not guilty.
Final Order : Accused is convicted for the
offence under S. 302 IPC.
Date of committal : 16.11.2021
Date of conclusion of
final arguments : 22.04.2025
Date of judgment : 28.04.2025
JUDGMENT
1. The accused is facing trial for the offences u/s 302 IPC.
BRIEF FACTS
2. The case of prosecution is that a call was received on 16.07.2021 regarding dead body found under Rajokri flyover State Vs. Istekar Ali @ Sanu Page no. 2 of 40 Digitally signed by Kiran Kiran Date:
Gupta Gupta 2025.04.28 13:02:16 +0530 FIR NO. 391/2021 PS: VASANT KUNJ SOUTH going towards Gurgaon. The same was recorded vide DD No.93A. The police officials of PS Vasant Kunj reached the spot and found that blood stained dead body of a male aged 45-50 years was lying on the spot. There were injury marks on the body. Since the body could not be identified, the same was sent to Mortuary. During investigation in the nearby area, the police met one Shikanji Rehdi Vendor, Mohd. Isha, who identified the body from the photograph to be of one of the beggars, who had come in the area 2-3 days prior to the incident. On further investigation, he informed the police officials that other beggar namely Istekar @ Sanu was seen quarreling with the deceased by him on 15.07.2021. On his identification, Istekar @ Sanu / accused was arresed from pedestrian subway Rajokri. He disclosed the commission of the offence and was arrested. At his instance, the weapon of offence and his blood stained clothes were recovered. After investigation, present charge-sheet was filed against him under S. 302 IPC.
State Vs. Istekar Ali @ Sanu Page no. 3 of 40
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Date:
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PS: VASANT KUNJ SOUTH
CHARGE
3. After hearing arguments on the point of charge and finding a prima facie case, charge for the offence u/s 302 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. Prosecution in order to prove its case has examined following 15 witnesses.
A. PW1 Mohd. Isha deposed that on 17.07.2021, he was running a Shikanji Rehdi at the corner of Sheela Farm, Rajokri Flyover towards Gurgaon to New Delhi Service Lane from 8 am to 6 pm. There is a park under the Rajokri Flyover. At that time, accused Sanu was residing in the park near a pillar of the Rajokri Flyover. He further deposed that accused was living there for last 2-3 months and used to come to his rehdi for having water. That 2-3 days prior to the incident, he had seen another beggar who State Vs. Istekar Ali @ Sanu Page no. 4 of 40 Digitally signed by Kiran Kiran Gupta Gupta Date:
2025.04.28 13:05:57 +0530 FIR NO. 391/2021 PS: VASANT KUNJ SOUTH also started living there. That on 17.07.2021 police officials from PS Vasant Kunj showed him a photograph of one person and inquired about him. He identified said person in the photograph as the second beggar living under the flyover. He further deposed that on 15.07.2021 at about 4-4:30 pm while he was closing his rehdi, he saw said beggar and accused were quarreling. That on 17.07.2021, accused was arrested in his presence from Rajokri Subway Gurgaon Delhi side vide memo Ex.PW1/A. He identified the photograph of the deceased Ex.P1 as the same person with whom accused was seen quarreling on 15.07.2021 by him.
B. PW3 Dr. Rajnish Dagar, proved the MLC of accused with no fresh complaint or injury as Ex.PW3/A. C. PW4 Dr. Surya Kiran proved the postmortem report of the deceased as Ex.PW4/A. He deposed that during external examination of the body, he found various injuries on the body as mentioned in the report. Upon internal examination, he found head injury and hemorrhage. He further deposed that injury State Vs. Istekar Ali @ Sanu Page no. 5 of 40 Digitally signed by Kiran Kiran Date:
Gupta Gupta 13:06:07 2025.04.28 +0530 FIR NO. 391/2021 PS: VASANT KUNJ SOUTH described as injury no. 1, 2 and 3 of external examination had resulted in the death of the victim and it was sufficient to cause death in the ordinary course of nature both individually and collectively with other injuries. He further deposed that injury could have been caused by blunt force impact.
D. PW5 Ashwani Kumar proved the letters vide which he provided the information to Insp. Ajay Kumar regarding the name of the staff deployed under the flyover and in the control room as Ex.PW5/A and that no CCTV camera is installed under the flyover Ex.PW5/B. E. PW6 Sonu Pathak, finger print expert deposed that on 20.07.2021, finger prints of one person, who could not be identified by the police was placed before him for identification. He checked the records, but could not find any information regarding the said finger prints Ex.PW6/A (colly). He proved his report as Ex.PW6/B. State Vs. Istekar Ali @ Sanu Page no. 6 of 40 Digitally signed by Kiran Kiran Gupta Gupta Date:
2025.04.28 13:06:12 +0530 FIR NO. 391/2021 PS: VASANT KUNJ SOUTH F. PW2 SI Ravinder Kumar, PW7 ASI Naresh Chand and PW15 Insp. Ajay Kumar PW2 deposed that on 16.07.2021 he received a GD No. 93A Ex.PW2/A. On receipt of the said GD, he alongwith Ct. Birender reached the spot, where they found dead body of a male aged about 45-50 years lying in the pedestrian park under Rajokri Flyover. At the spot, PW7 ASI Naresh Chand was already present. PW2 further deposed that one pair of blood stained slippers and two blood stained wooden sticks were lying near the body. Crime Team was called who collected 7 exhibits and handed over the same to him which were seized by him vide memo Ex.PW2/B. PW2 tried to get the dead body identified, however, the same could not be identified, hence, the body was sent to Mortuary Safdarjung Hospital. He prepared rukka on DD No. 93A Ex.PW2/C and got the FIR registered through Ct. Birender.
PW2 and PW7 further deposed that in the meantime, PW15 IO Inspector Ajay Kumar reached the spot and the State Vs. Istekar Ali @ Sanu Page no. 7 of 40 Digitally signed by Kiran Kiran Date:
Gupta Gupta 13:06:18 2025.04.28 +0530 FIR NO. 391/2021 PS: VASANT KUNJ SOUTH exhibits were handed over to him i.e blood sample on gauze Ex.PW2/P1; blood stained earth control Ex.PW2/P2, earth control Ex.PW2/P3; blood stained white cloth / dhoti Ex.PW2/P4; blood stained pair of slippers Ex.PW2/P5; one blood stained wooden stick measuring 3 ft. 2 inches Ex.PW2/P6 and small piece of wooden stick measuring 7 inches Ex.PW2/P7, alongwith seizure memo. PW15 prepared the site plan Ex. PW7/B at instance of PW2. PW15 also seized blood stained gatta Ex.PW2/P8 on which dead body was lying vide memo Ex.PW7/A. PW2 further deposed that on 30.08.2021, ASI Jai Bhagwan prepared the scaled site plan of the spot at his instance.
PW7 & PW15 further deposed that on next day i.e. 17.07.2021, they alongwith Ct. Birender reached at the spot.
There was one Sheela Farm near the spot, where one Mohd. Isha met them. He used to run a shikanji rehdi near Sheela Farm Gate. Mohd. Isha on seeing the photograph of the dead body identified him as the beggar who had recently started staying in the area 2- 3 days prior to the incident. He further told to PW15 that a beggar named Sanu used to reside in the park where the body State Vs. Istekar Ali @ Sanu Page no. 8 of 40 Digitally signed Kiran by Kiran Gupta Date: 2025.04.28 Gupta 13:06:28 +0530 FIR NO. 391/2021 PS: VASANT KUNJ SOUTH was found and he also used to carry one danda with himself. Mohd. Isha also told them that 3-4 days prior to the incident, another beggar started living in the said park, due to which there used to be altercation between accused and that beggar. He told them that he saw both of them fighting with each other in the evening of 15.07.2021 and after that he had not seen accused there. When the photograph of the deceased was shown to Mohd. Isha, he confirmed the same to be of the beggar, who had come there 3-4 days before the incident. They started searching for accused.
While searching alongwith Mohd. Isha, they reached subway of Rajokri towards Gurgaon. In the subway, accused was found sitting. He was identified by Mohd. Isha as Sanu. After interrogation, he was arrested vide memo Ex.PW1/A and his personal search was conducted vide memo Ex.PW7/B. PW15 further deposed that accused gave the disclosure statement Ex.PW7/C that he had committed murder of deceased as he did not want any other person to occupy his place State Vs. Istekar Ali @ Sanu Page no. 9 of 40 Digitally signed by Kiran Kiran Gupta Gupta Date:
2025.04.28 13:06:38 +0530 FIR NO. 391/2021 PS: VASANT KUNJ SOUTH under the flyover. He further disclosed that he committed his murder as he used to snatch away food and other articles from him. He beat the deceased with the danda which was broken into two pieces during the incident and he had thrown one piece of danda at some distance from the place of incident towards Delhi side and other piece on the other side of flyover going towards Gurgaon.
PW7 and PW15 further deposed that accused lead them to the park under the Rajokri flyover. From the last pillar of the flyover, at the end of the park, he pointed towards a danda lying on the ground and told them that it was broken piece of the same danda which was used in the commission of the offence and the same had been thrown by him at that spot. They further deposed that the length of the danda was found to be 81 cm Ex.PW2/P6 and both its ends were found broken. PW15 seized the said danda vide memo Ex.PW7/D. Accused identified the place of recovery vide memo Ex.PW7/E. They further deposed that accused again led them to the other side of flyover i.e. about State Vs. Istekar Ali @ Sanu Page no. 10 of 40 Digitally signed by Kiran Kiran Gupta Date:
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200 meters away from the spot under Rajokri flyover towards Gurgaon. In the park on the other side, near the pillar of the flyover towards the end of the park, accused pointed towards another broken piece of danda and informed that it was the other piece of the said danda Ex.PW15/P1. Blood was present on it. It was found to be 47 cm in length and its both ends were broken.
The same was seized vide memo Ex.PW7/F. They further deposed that accused pointed towards the clothes lying on the floor near the danda and informed that those were the clothes were worn by him at the time of incident. The said clothes were one orange color shirt Ex.PW7/P3 and yellow color lower Ex.PW7/P4 and were having blood stains on them. They were seized vide memo Ex.PW7/G. PW15 further deposed that after postmortem of the deceased, doctor handed over exhibits of the deceased to him which were seized by him vide memo Ex.PW15/A. He completed the investigation and filed the charge-sheet in the court. That on receipt of the FSL result Ex.PW9/B and State Vs. Istekar Ali @ Sanu Page no. 11 of 40 Digitally signed by Kiran Kiran Gupta Date:
Gupta 2025.04.28 13:07:12 +0530 FIR NO. 391/2021 PS: VASANT KUNJ SOUTH Ex.PW9/A (also Ex.PW15/B), he filed the supplementary chargesheet.
G. PW-8 ASI Jeet Pal deposed that he was posted at beat officer in Rajokri farm beat since January 2021. On 17.07.2021, he had seen accused in the police station. He used to beg at Rajokri under the flyover area. He had seen accused number of times during his official work being beat officer. That accused used to carry one danda with him. He tried to take his picture but he used to run away from the spot wherever he met him.
H. PW-9 Ms. Seema Nain, Assistant Director (Biology) FSL proved the DNA examination report as Ex.PW9/A and allelic data report as Ex.PW9/B. I. PW-10 HC Sachin Tomar deposed that on 16.07.2021, he was posted at PCR control room from 02:00 pm to 08:00 pm. At about 04:42 pm, he received a call from mobile No. 9311188850 i.e. NHAI Control Room that under Rajokri State Vs. Istekar Ali @ Sanu Page no. 12 of 40 Digitally signed by Kiran Kiran Gupta Date:
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flyover going towards Gurgaon, one dead body was found. He recorded the said information in the PCR form Ex.PW10/A. J. PW-11 Dr. Vikas Sharma, Medical Officer proved the MLC of deceased as Ex.PW11/A on behalf of Dr. Mohd. Dilshad Alam.
K. PW-12 Insp. Kumar Rajeev deposed that on the basis of the subsequent opinion about the cause of death viz-a-viz the wooden stick, he filed the supplementary charge-sheet.
L. PW-13 Ms. Monisha Pradhan, Professor, Forensic Medicine Toxicology proved her report Ex.PW13/A to the effect that the injury No. 1, 2, 3 and 1 to 10 mentioned in the PM report could have been caused by the branch of a tree / wooden stick and any weapon similar to it.
M. PW-14 HC Ram Singh is the MHC(M) who proved the RC No. 84/21/23 as Ex.PW14/A regarding depositing the case property in forensic department, Safdarjung Hospital.
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Date:
Gupta 2025.04.28
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PS: VASANT KUNJ SOUTH
STATEMENT OF ACCUSED
5. After completion of prosecution evidence, all incriminating material as appearing in the evidence was put to the accused under Section 313 Cr.PC. He admitted the commission of the offence that he had committed the murder of an unknown beggar on 16.07.2021 by giving stick blows on his vital parts. He also admitted that he had got recovered his bloodstained clothes and the wooden stick with which he caused murder of the said unknown person / beggar. He was explained the consequences of admitting his guilt by the court as well as his counsel, but he remained consistent about his admission. He stated that he had committed the mistake.
ARGUMENTS ON BEHALF OF Ld. ADDL PP FOR THE STATE
6. It is argued by Ld. Addl. PP that the case of prosecution is based on circumstantial evidence. The material witness of prosecution i.e. PW-1 Mohd. Isha, who was running a State Vs. Istekar Ali @ Sanu Page no. 14 of 40 Digitally signed by Kiran Kiran Gupta Date:
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Shikanji rehdi near the spot, has deposed that accused was beggar and was living at the spot for the last 2-3 months prior to the incident and about 2-3 days prior to the incident, he had seen another beggar i.e. deceased who started living at the place where the accused was living. PW-8 ASI Jeet Pal corroborated the fact that accused used to beg at Rajokri under flyover area (i.e. the spot) and he had seen him number of times during his official work being beat officer and accused used to keep danda with him.
6.1. It is further submitted that PW-1 Mohd. Isha had deposed that on 15.07.2021, at about 04:00 - 04:30 pm, when he was closing his rehdi, he saw that the deceased and the accused were quarreling. PW-1 during his cross-examination by Ld. Defence Counsel deposed that accused used to live in the park i.e. spot permanently and there was no other Khokha or rehdi near his rehdi. He further deposed that nobody was present at the spot where the quarrel between the deceased and accused took place. It is submitted that the accused was arrested at the instance of PW-1. That on the basis of disclosure statement of accused, State Vs. Istekar Ali @ Sanu Page no. 15 of 40 Digitally signed by Kiran Kiran Date:
Gupta Gupta 13:07:49 2025.04.28 +0530 FIR NO. 391/2021 PS: VASANT KUNJ SOUTH the weapon of offence i.e. the bloodstained broken danda - two pieces were recovered at his instance. The blood was found on the danda as per the FSL and it matched with the DNA of deceased. It is submitted that PW-13 Ms. Monisha Pradhan, Professor, Medicine and Toxicology, deposed that injuries 1, 2, 3 as well as 1 to 10 as mentioned in the post-mortem report could have been caused by the said dandas.
6.3. It is submitted that the entire chain of circumstances point towards the accused as the person who committed murder of deceased as no one except the accused was residing at the spot. Moreover, the accused himself in his statement u/s 313 Cr.P.C. admitted that he committed murder of deceased with the danda and got recovered the pieces of danda and his clothes having blood stains.
6.5. It is further argued that the evidence adduced by the prosecution alongwith the admission made by accused under S. 313 Cr.P.C. is sufficient to link accused with the murder of the unknown person. All the circumstances in the present case point State Vs. Istekar Ali @ Sanu Page no. 16 of 40 Digitally signed by Kiran Kiran Gupta Date:
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only towards the guilt of the accused. It is further argued that the prosecution has established chain of circumstances indicating towards guilt of accused. It is prayed that since the prosecution has proved the case beyond pales of reasonable doubt against the accused, he be convicted for the offence U/s.302 IPC.
ARGUMENTS ON BEHALF OF LD. DEFENCE COUNSEL
7. It is argued by Ld. Defence Counsel that the entire case of prosecution is based on circumstantial evidence. The accused has been falsely implicated in the present case to solve a blind murder case. The prosecution has failed to prove the chain of events to show that the offence was committed by the accused. It is submitted that the prosecution had alleged that the recovery of the broken pieces of the wooden stick / danda and blood stained clothes of the accused was made at the instance of accused, however, as per the recovery memo of the wooden stick Ex.PW7/D, the same was done from a park beneath the Rajokri Flyover, which is an open area and easily accessible to general public. That despite the fact that the alleged place of recovery State Vs. Istekar Ali @ Sanu Page no. 17 of 40 Digitally signed Kiran by Kiran Gupta Date: 2025.04.28 Gupta 13:08:02 +0530 FIR NO. 391/2021 PS: VASANT KUNJ SOUTH was a busy road with lot of people around, there is no public witness to the recovery of the said wooden sticks except the police officials. It is submitted that the weapon of offence i.e. wooden stick / wooden danda is easily available in the market and it cannot be said with certainty that the wooden stick recovered was the same, which was used during the incident. No public person was joined during the recovery of the clothes of the accused vide memo Ex.PW7/G. 7.1. It is further submitted that PW1 during his cross- examination deposed that he heard some voice coming from across the road and he cannot say, regarding what kind of sound he heard. It is further submitted that the concerned doctor who prepared the postmortem report was not shown the weapon of offence. Even no DNA was generated from the clothes of the accused as per the report Ex.PW9/A. 7.2. It is further submitted that though the accused in response to the questions put to him under S. 313 Cr.P.C., confessed of having committed the offence, however, the same State Vs. Istekar Ali @ Sanu Page no. 18 of 40 Digitally signed by Kiran Kiran Date:
Gupta Gupta 2025.04.28 13:08:15 +0530 FIR NO. 391/2021 PS: VASANT KUNJ SOUTH cannot be the sole basis of conviction. It is submitted that the effect of any such admission can be considered only in the light of other evidence brought on record. It is submitted that the prosecution has otherwise failed to prove any offence against the accused. It is further submitted that no reliance can be placed upon the admission of the accused under S. 313 Cr.P.C. as it is not on oath. It is prayed that the accused be acquitted in the present case.
ANALYSIS AND FINDINGS
8. Heard arguments on behalf of ld. Addl. PP for the State, ld. Defence counsel and perused the complete record file. The accused is facing trial for the offence u/S. 302 IPC. The prosecution in order to prove the offence U/s.302 IPC against the accused has to prove :
A. The presence of accused on the spot at the time of incident.
B. His identification by the eye witness. C. The injuries caused to the deceased and medical opinion as regards cause of death.
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D. The motive of the accused in causing
death of deceased.
9. In the present case, there is no eye-witness to the incident. The case of the prosecution rests on circumstantial and scientific evidence. The normal approach in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion, that within all human probability, the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence. [Reliance placed on Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 & Mohd. Arif v. State (NCT of Delhi) (2011) 13 SCC 621 & Darshan Singh v. State of Punjab (2024) 1 SCR 248].
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10. Let me therefore, examine whether the prosecution had proved beyond reasonable doubt, the entire chain of circumstances, not leaving any link missing for the accused to escape from the clutches of law. The circumstances which are said to have been proved on behalf of the prosecution are as follows:
1. Last seen together
2. Presence of accused at the spot
3. Recovery of blood stained clothes of accused
4. Recovery of danda (weapon of offence) at the instance of accused
5. Scientific evidence -FSL Result of the dandas
6. Cause of death (subsequent opinion)
7. Admission by accused in his statement u/s 313 CrPC State Vs. Istekar Ali @ Sanu Page no. 21 of 40 Digitally signed by Kiran Kiran Date:
Gupta Gupta 2025.04.28 13:09:15 +0530 FIR NO. 391/2021 PS: VASANT KUNJ SOUTH PRESENCE OF ACCUSED AT THE SPOT AND LAST SEEN TOGETHER
11. The most important circumstance relied upon by prosecution is that accused and deceased were last seen together quarreling with each other by PW1. On the issue of last seen together evidence, in State of U.P. v. Satish (2005) 3 SCC 114, the Hon'ble Supreme Court has held as follows:
"The last-seen theory comes into play where the time- gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the part of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long time gap and possibility of other person coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. "
11.1. This position was reiterated in Hatti Singh v. State of Haryana (2007) 12 SCC 471.
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Gupta Gupta 13:09:20 2025.04.28 +0530 FIR NO. 391/2021 PS: VASANT KUNJ SOUTH 11.2. Bearing in mind the settled position of law regarding the applicability of the last seen theory, the Court has to examine the evidence of last seen available in the present case. The prosecution has relied upon the testimony of PW1. PW-1 during his testimony deposed that at that time one beggar namely Shanu (accused) was residing in the park near pillar of the Rajokri flyover for last 2-3 months.
11.3. PW1 deposed that about 2-3 days prior to the incident, he had seen another beggar who had also started living there. He identified the said new beggar in the photograph shown to him by the police officials on 17.07.2021. He deposed that on 15.07.2021 at about 4-4:30 pm, while he was closing his rehdi, he saw the said beggar (deceased in photograph Ex P1) and accused were quarreling.
11.4. He during his cross-examination deposed that he identified the accused as beggar, as he used to come to his rehdi for having Shikanji. He used to place his rehdi at one fixed place everyday. Accused used to live in the park permanently, however, State Vs. Istekar Ali @ Sanu Page no. 23 of 40 Digitally signed by Kiran Kiran Gupta Date:
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he used to roam for begging. The distance between the park and his rehdi is about 60-70 feet and the park is across the road from his rehdi. There is no other khokha or rehdi near his rehdi. On the alleged day, he was leaving for his home a little earlier than usual owing to ill health. It was evening time and he heard hue and cry.
There was nobody present at the spot except the two beggars where the alleged quarrel was taking place. He just heard some voices coming from across the road. He cannot say anything regarding what kind of sound he heard. He only recognized the deceased by face. He guessed that both were beggars. He denied the remaining suggestions given by the Ld. Defence Counsel.
11.5. Thus, PW-1 during his testimony has categorically deposed that except the accused and the deceased, nobody was living in the said park. The accused was living in the said park for 2-3 months and the deceased had come to the park 2-3 days prior to the incident. He heard the noise of quarrel between them in the evening of 15.07.2021. Thereafter, the other person (beggar) was found dead in the morning of 16.07.2021.
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11.6. The testimony of PW1 that accused was living in the said park is corroborated with the testimony of PW8 ASI Jeet Pal who has deposed that accused used to beg under Rajokri Flyover area. He had seen him number of times during his official work being Beat Officer. He used to carry one danda with him. Even during his cross-examination, he deposed that accused was abled person amongst all the beggars found there.
11.7. The accused during his statement recorded u/s 313 Cr.P.C. has admitted that he was living in the park near Rajokri flyover for the last 2-3 months. He also admitted that he used to take water from one rhedi and that one person (deceased) had started living at that place where he was living 2-3 days prior to the incident. Thus, the fact that the accused was residing at the place where the body of deceased was found is duly proved through the testimony of PW-1, PW8 and is also otherwise not disputed / denied by the accused during trial and in his statement u/s 313 Cr.P.C. The prosecution through the testimony of PW-1 has also proved that he had seen the accused and the deceased together quarreling with each other in the evening of 15.07.2021.
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The Ld. Defence Counsel has failed to show the reason for false implication by PW-1 who is an independent witness.
RECOVERY OF ARTICLES AT THE INSTANCE OF ACCUSED:
12. Before discussing in detail the articles which were recovered at the instance of the accused, it is relevant to discuss the law on this aspect. The conditions necessary for the applicability of Section 27 of the Act are broadly as under:
(1) Discovery of fact in consequence of an information received from accused; (2) Discovery of such fact to be deposed to; (3) The accused must be in police custody when he gave information; and (4) So much of information as relates distinctly to the fact thereby discovered is admissible - Mohd. Inayatullah v. The State of Maharashtra: AIR (1976) SC 483 State Vs. Istekar Ali @ Sanu Page no. 26 of 40 Digitally signed by Kiran Kiran Date:
Gupta Gupta 13:09:43 2025.04.28 +0530 FIR NO. 391/2021 PS: VASANT KUNJ SOUTH Two conditions for application -
(1) information must be such as has caused discovery of the fact; and (2) information must relate distinctly to the fact discovered − Earabhadrappa v. State of Karnataka: AIR (1983) SC 446"
12.1. It is no more res-integra that need of examining independent witnesses, while making recoveries pursuant to the disclosure statement of the accused is a rule of caution evolved by the Judiciary, which aims at protecting the right of the accused by ensuring transparency and credibility in the investigation of a criminal case.
12.2. In the landmark case of Pulukuri Kottaya v. King- Emperor AIR 1947 PC 67, the Privy Council has laid down the relevance of information received from the accused for the purpose of Section 27 of the Evidence Act. Relevant extracts from the judgment are as under:
"10. Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a State Vs. Istekar Ali @ Sanu Page no. 27 of 40 Digitally signed by Kiran Kiran Gupta Date:
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person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate."
RECOVERY OF BLOOD STAINED CLOTHES OF ACCUSED
13. The prosecution has relied upon the recovery of blood-stained clothes of accused Ex.PW7/P3 and Ex.PW7/P4 at his instance. The accused has admitted that the clothes Ex.PW7/P3 and Ex.PW7/P4 which were seized vide memo Ex.PW7/G were recovered at his instance and they belong to him. Merely because no public person was joined during the State Vs. Istekar Ali @ Sanu Page no. 28 of 40 Digitally signed by Kiran Kiran Gupta Gupta Date:
2025.04.28 13:10:01 +0530 FIR NO. 391/2021 PS: VASANT KUNJ SOUTH recovery of the clothes of the accused is not fatal to the prosecution.
13.1. It is argued by the Ld. Defence Counsel that the blood stains on the clothes did not match as per the FSL result. I have perused the FSL result Ex.PW9/A. The concerned expert has been examined as PW-9. She deposed that no DNA could be found on the clothes due to contamination.
RECOVERY OF BROKEN PIECES OF DANDA
14. The prosecution has relied upon the recovery of two broken pieces of danda from the spot Ex.PW2/P6 and Ex.PW2/P7 seized vide memo Ex.PW2/B and other two broken pieces of danda recovered at the instance of accused Ex.PW15/P1 and Ex.PW15/P2, seized vide memo Ex.PW7/D and Ex.PW7/F. The accused during his SA recorded on 28.03.2025 admitted that the said two dandas were recovered at his instance. During the recording of the SA on 22.04.2025 when he was shown the danda Ex.PW15/P1 and Ex.PW15/P2, he State Vs. Istekar Ali @ Sanu Page no. 29 of 40 Digitally signed by Kiran Kiran Gupta Gupta Date:
2025.04.28 13:10:07 +0530 FIR NO. 391/2021 PS: VASANT KUNJ SOUTH stated that they are not the same dandas with which he had caused injuries to the deceased. The prosecution has relied upon the FSL report Ex.PW9/A (also Ex.PW15/B) and Ex.PW9/B. As per the said FSL report, the blood on the danda has matched with the DNA of deceased.
14.1. The prosecution has relied upon the testimony of PW-13 that the injury No. 1, 2 and 3 as well as 1 to 10 as mentioned in the post mortem report could have been caused by the said weapon / wooden stick and any weapon similar to it.
There is no cross-examination of the said witness by the Ld. Defence Counsel.
14.2. Thus, the prosecution has proved that the blood stained clothes of the accused and the weapon of offence i.e. the broken pieces of danda were recovered at the instance of accused.
State Vs. Istekar Ali @ Sanu Page no. 30 of 40
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CAUSE OF DEATH
15. Now, coming to the cause of death. The prosecution in order to prove the cause of death has examined PW-4 Dr. Surya Kiran, who proved the post-mortem report of deceased as Ex.PW4/A. He deposed that upon internal examination of the body, he found head injury and hemorrhage in the brain. In his opinion, the injury described as injury No. 1, 2 and 3 of external examination had resulted in the death of the victim and was sufficient to cause death in ordinary course of nature both individually and collectively with the other injuries. The injury could have been cause by blunt force impact.
15.1. The cause of death in the present case is due to cerebral damage as a result of injury sustained to head consequent to blunt force impact. The injury No. 1, 2 and 3 are sufficient to cause death in ordinary course of nature both individually and collectively.
State Vs. Istekar Ali @ Sanu Page no. 31 of 40 Digitally signed by Kiran Kiran Date:
Gupta Gupta 13:10:18 2025.04.28 +0530 FIR NO. 391/2021 PS: VASANT KUNJ SOUTH Ante Mortem - External Injuries -
"1. V shaped lacerated wound of size 10 cm x 0.6 cm x bone deep present over left parietal region, situated 5 cm away from midline and 9.5 cm above left mastoid process.
2. Lacerated wound of size 3 cm x 1 cm x bone deep present over left occipital region, situated 9 cam away from occipital protuberance and 2 cm medial to mastoid process.
3. Lacerated wound of size 5 cm x 1.5 cm x muscle deep present over left occipital region, situated 2 cm medial to above injury.
4. Reddish abraded contusion of size 10cm x 4.5cm present over right side of face, situated over right angle of mandible and 8cm below right ear lobe.
5. Reddish abraded contusion of size 4cm x 2cm present over lower aspect of left side of back of head, situated 10cm below external occipital protuberance and 3cm beside left ear.
6. Reddish abrasion of size 2cm x 1cm present over left ear antihelix.
7. Reddish abraded contusion of size 5cm x 4cm present over left side of face, situated below left eye and 1cm away from midline.
8. Lacerated would of size 1cm x 0.5cm x muscle deep present over left side of face, situated 1cm below lateral end of left eye.
9. Reddish abrasion of size 4cm x 1.5cm present over tip of left shoulder.
10. Reddish abrasion of fize 6cm x 5cm present over back of left shoulder, situated 4cm behind left shoulder tip.
State Vs. Istekar Ali @ Sanu Page no. 32 of 40
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15.2. The weapon of offence in the present case is the broken wooden stick. As per the subsequent opinion, Ex.PW13/A, the injury no. 1, 2 and 3 as well as 1 to 10 as mentioned in the post mortem report could have been caused by the wooden sticks Ex.PW15/P1 and Ex.PW15/P2. Both the sticks showed chipping of pieces of wood with branching at the ends.
15.3. As discussed above, the accused has admitted the commission of the offence. Ld. Defence counsel has failed to lead any cogent evidence that the wooden sticks were planted upon the accused. Merely, because the IO has not sent the wooden sticks for fingerprint analysis is not fatal to the case of prosecution as prosecution has proved the recovery of the said dandas at the instance of the accused and further through the subsequent opinion of the doctor Ex.PW13/A, has proved that the injuries no. 1, 2, 3 and 1 to 10 could have been possible with the wooden sticks sent for analysis and that these were sufficient to cause death in the ordinary course of nature.
State Vs. Istekar Ali @ Sanu Page no. 33 of 40 Digitally signed by Kiran Kiran Date:
Gupta Gupta 2025.04.28 13:10:30 +0530 FIR NO. 391/2021 PS: VASANT KUNJ SOUTH ADMISSION BY ACCUSED IN HIS STATEMENT U/S 313 Cr.P.C.
16. As discussed above, the accused during his statement recorded u/s 313 Cr.P.C. was put all the incriminating evidence available against him on record. He admitted the commission of the offence and all the incriminating evidence put to him. He was explained the consequences of admitting the offence by the court as well as by his counsel, however, he still admitted the offence and the recovery made at his instance by the IO. It is argued by the Ld. Defence Counsel that even though the accused has admitted the commission of offence and the incriminating evidence put to him, however, no reliance can be placed upon the admission made u/s 313 Cr.P.C. as it is without any oath and further the admission u/s 313 Cr.P.C. cannot be the sole basis for conviction of any person. The law u/s 313 Cr.P.C. has been discussed in detail in various judgments by the Superior Courts. In Dharnidhar vs. State of U.P. and Ors. 2010 AIR SC W 5685, it has been held as follows:
State Vs. Istekar Ali @ Sanu Page no. 34 of 40
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signed by
Kiran Kiran Gupta
Date:
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"It is a settled principle of law that the statement made by the accused under Section 313 of the Cr.P.C. can be used by the Court to the extent that it is in line with the case of the prosecution. The same cannot be the sole basis for convicting an accused. In the present case, the statement of accused before the Court, to some extent, falls in line with the case of the prosecution and to that extent, the case of the prosecution can be substantiated and treated as correct by the Court. The legislative intent behind this section appears to have twin objects. Firstly, to provide an opportunity to the accused to explain the circumstances appearing against him. Secondly, for the Court to have an opportunity to examine the accused and to elicit an explanation from him, which may be free from the fear of being trapped for an embarrassing admission or statement. The proper methodology to be adopted by the Court while recording the statement of the accused under Section 313 of the Cr.P.C. is to invite the attention of the accused to the circumstances and substantial evidence in relation to the offence, for which he has been charged and invite his explanation. In other words, it provides an opportunity to an accused to state before the Court as to what is the truth and what is his defence, in accordance with law. It was for the accused to avail of that opportunity and if he fails to do so then it is for the Court to examine the case of the prosecution on its evidence with reference to the statement made by the accused under Section 313 of the Cr.P.C."
16.1. In State of Maharashtra Etc. vs. Sukhdeo Singh and Anr. AIR 1992 SC 2100, it is held as under:
State Vs. Istekar Ali @ Sanu Page no. 35 of 40 Digitally signed by Kiran Kiran Date:
Gupta Gupta 2025.04.28 13:10:56 +0530 FIR NO. 391/2021 PS: VASANT KUNJ SOUTH "Section 313 of the Code is a statutory provision and embodies the fundamental principle of fairness based on the maxim audi alteram partem. It is trite law that the attention of the accused must be specifically invited to inculpatory pieces of evidence or circumstances laid on record with a view to giving him an opportunity to offer an explanation if he chooses to do so. The section imposes a heavy duty on the court to take great care to ensure that the incriminating circumstances are put to the accused and his response solicited. The words `shall question him' clearly bring out the mandatory character of the clause and cast an imperative duty on the court and confer a corresponding right on the accused to an opportunity to offer his explanation for such incriminating material appearing against him.
..................................................................... ...................................................................... That brings us to the question whether such a statement recorded under section 313 of the Code can constitute the sole basis for conviction. Since no oath is administered to the accused, the statements made by the accused will not be evidence stricto sensu. That is why sub-section (3) says that the accused shall not render himself liable to punishment if he gives false answers. Then comes sub- section (4) which reads :
"(4). The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed."
Thus the answers given by the accused in response to his examination under section 313 can be taken into State Vs. Istekar Ali @ Sanu Page no. 36 of 40 Digitally signed by Kiran Kiran Gupta Gupta Date:
2025.04.28 13:11:13 +0530 FIR NO. 391/2021 PS: VASANT KUNJ SOUTH consideration in such inquiry or trial. This much is clear on a plain reading of the above sub-section. Therefore, though not strictly evidence, sub-section (4) permits that it may be taken into consideration in the said inquiry or trial. See State of Maharasthra v. R.B. Chowdhari, [1967] 3 SCR 708. This court in the case of Hate Singh v. State of Madhya Bharat, 1953 Crl.L.J. 1933 held that an answer given by an accused under section 313 examination can be used for proving his guilt as much as the evidence given by a prosecution witness. In Narain Singh v. State of Punjab. [1963] 3 SCR 678 this Court held that if the accused confesses to the commission of the offence with which he is charged the Court may, relying upon that confession, proceed to convict him. To state the exact language in which the three-Judge Bench answered the question it would be advantageous to reproduce the relevant observations at pages 684-685 :
"Under section 342 of the Code of Criminal Procedure by the first sub-section, insofar as it is material, the Court may at any stage of the enquiry or trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence shall put questions to the accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him. Examination under section 342 is primarily to be directed to those mattes on which evidence has been led for the prosecution to ascertain from the accused his version or explanation - if any, of the incident which forms the subject-matter of the charge and his defence. By sub-section (3), the answers given by the accused may "be taken into consideration" at the enquiry of the trial. If the accused person in his examination under section 342 confesses to the commission of the offence State Vs. Istekar Ali @ Sanu Page no. 37 of 40 Digitally signed by Kiran Kiran Date:
Gupta Gupta 2025.04.28 13:11:19 +0530 FIR NO. 391/2021 PS: VASANT KUNJ SOUTH charges against him the court may, relying upon that confession, proceed to convict him, but if he does not confess and in explaining circumstance appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety." (Emphasis supplied) Sub-section (1) of section 313 corresponds to sub- section (1) of section 342 of the old Code except that it now stands bifurcated in two parts with the proviso added thereto clarifying that in summons cases where the presence of the accused is dispensed with his examination under clause (b) may also be dispensed with. Sub-section (2) of section 313 reproduces the old sub-section (4) and the present sub-section (3) corresponds to the old sub-
section (2) except for the change necessitated on account of the abolition of the jury system. The present sub-section (4) with which we are concerned is a verbatim reproduction of the old sub-section (3). Therefore, the aforestated observations apply with equal force."
16.2. Thus, the statement of accused made under S. 313 Cr.P.C. can be used for proving his guilt as much as the evidence given by the prosecution witness. The accused during his statement under S. 313 Cr.P.C. has specifically admitted the commission of the offence and the consequent recovery of his blood stained clothes as well as broken piece of danda/ weapon State Vs. Istekar Ali @ Sanu Page no. 38 of 40 Digitally signed by Kiran Kiran Date:
Gupta Gupta 13:11:31 2025.04.28 +0530 FIR NO. 391/2021 PS: VASANT KUNJ SOUTH of offence at his instance by the police. The prosecution through the testimony of PW1 has proved that he had last seen the accused and deceased quarreling with each other on 15.07.2021 at around 4:30 pm. The body of deceased was found on 16.07.2021. The prosecution through the testimony of PW13 has proved that the death could be caused with the danda recovered at the instance of accused. Thus, the admission of the accused made under S. 313 Cr.P.C. is in line with the prosecution evidence.
18. In view of the above discussed facts and circumstances, in my considered opinion, the prosecution has successfully completed the chain of evidence that it is the accused who had committed the murder of an unknown person.
The accused led to discovery of the clothes which he was wearing at the time of incident and the weapon of offence. The accused had motive to kill that unknown person as he tried to occupy the place where the accused used to sit and beg. In view of the evidence led by the prosecution, the answers given by the accused under S. 313 Cr.P.C. and his conduct, which falls in line State Vs. Istekar Ali @ Sanu Page no. 39 of 40 Digitally signed by Kiran Kiran Gupta Gupta Date:
2025.04.28 13:11:39 +0530 FIR NO. 391/2021 PS: VASANT KUNJ SOUTH with the case of the prosecution, the chain of evidence is so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused. All the circumstances point out towards the accused only to have committed the alleged offences. Hence, this court is of the considered opinion that it is the accused Istekar @ Sanu who has committed the murder of an unknown person. Accordingly, accused Istekar @ Sanu is convicted for the offence under S. 302 IPC.
Digitally signed by Kiran Kiran Date:
Gupta Gupta 2025.04.28 13:11:55 +0530 ANNOUNCED IN THE OPEN (KIRAN GUPTA) COURT ON 28.04.2025 ADDL. SESSIONS JUDGE-04 NEW DELHI DISTRICT PATIALA HOUSE COURTS NEW DELHI State Vs. Istekar Ali @ Sanu Page no. 40 of 40