Delhi District Court
State vs 1 Raja 2 Dharmender @ Sultan 3 Dinesh … on 31 May, 2025
IN THE COURT OF SH. VIRENDER KUMAR KHARTA,
ADDITIONAL SESSIONS JUDGE (FTC)-02, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
In the matter of:-
(Sessions case no. 28140/2016)
FIR No. 272/2015
Police Station Nabi Karim
Charge-sheet filed under Sections Sec. 302/34 IPC.
Charges framed against accused Sec. 302/34 IPC.
persons.
State Versus 1. Raja,
S/o Sh. Moti Lal,
R/o MSC-250, Mohalla
Yogmaya, Bagichi Allauddin,
Nabi Karim, Delhi.
2. Dinesh @ Sunny @ Suresh,
S/o Sh. Lekhraj,
R/o H. No. 6096, Gali No. 15,
Gali Ravidas, Nabi Karim,
Delhi.
3. Ricky @ Budhram,
S/o Sh. Chiranji Lal,
R/o H. No. BB-375, Ashoka
Basti, Neemwala Chowk,
Nabi Karim, Delhi.
...Accused Persons.
Date of Institution of case 08.09.2015
Date of Arguments 26.05.2025
Judgment reserved on 26.05.2025
Judgment pronounced on 31.05.2025
Decision Acquitted
FIR No. 272/2015, PS: Nabi Karim, Page No. 1 of 65
State Vs. Raja & Ors.
JUDGMENT
1. Accused persons namely Raja, Dinesh @ Sunny @ Suresh
and Ricky @ Budhram are facing trial for the offence punishable
under Sec. 302/34 IPC.
2. Today in the morning, the factum of death of accused
Dharmender @ Sultan was reported by the Ld. Counsel and same
was verified through SHO PS Nabi Karim and accordingly,
proceedings against accused Dharmender @ Sultan were abated
vide separate order of even date before the pronouncement of this
judgment.
3. The case of the prosecution is that on 23.05.2015 at about
06:00 pm in the street opposite to premises no. 5997/2, Shankar
Market, Nabi Karim, Delhi, all the aforesaid accused persons
along with co-accused Dharmender @ Sultan (since deceased) in
furtherance of their common intention committed murder of Sh.
Sheeshpal by stabbing him with knives.
4. The brief facts which are borne out from the record of the
case are that on 23.05.2015, on receiving DD No. 29A, Ex. PX-5,
regarding stabbing a person at Shankar Market, Nabi Karim,
Delhi, PW-15/IO Retd. SI Virender Kumar (then ASI) along with
PW-14 Ct. Pushpender reached at the spot of incident i.e. Gali
Opposite to premises no. 5997/2, Shankar Market, where PW-6
Ct. Dinesh met them who informed him that he had seen
assailants running from the spot and the injured had been shifted
to hospital by Ct. Vijay Kumar. Blood was also found scattered at
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State Vs. Raja & Ors.
the spot of incident. Thereafter, PW-15/IO Retd. SI Virender
Kumar directed PW-6 Ct. Dinesh to trace accused immediately
by following the path taken by assailants and PW-14 Ct.
Pushpender was left at the spot to safeguard the same. Thereafter,
PW-15/IO Retd. SI Virender Kumar went to the Lady Harding
Medical College and collected the MLC, Ex. PW-9/A of injured
and as per MLC, injured was declared brought dead. Later on
name of deceased was revealed as Sheeshpal, S/o Sh. Gulzari
Lal. Thereafter IO recorded statement of complainant/PW-2 Ct.
Vijay, prepared rukka, Ex. PW-15/A and got the present FIR
registered at PS Nabi Karim through PW-2 Ct. Vijay. IO also
collected the clothes and belongings of the deceased sealed with
the seal of LHMCH and returned to scene of crime after
preserving the dead body of deceased in mortuary. Thereafter
further investigation of the present case was entrusted to PW-18
ACP Dhirendra Sharma (then Inspector). During investigation,
IO got inspected the spot of incident through Crime Team, lifted
the exhibits from spot of incident and prepared site plan at
instance of Ct. Vijay. Thereafter IO went to the hospital and got
conducted postmortem on the body of deceased, recorded dead
body identification statements of witnesses and handed over the
dead body to relative of deceased. IO also seized the exhibits of
deceased along with sample seal from the hospital.
5. During investigation, accused Raja was apprehended from
the Railway Washing yard, New Delhi on the basis of secret
information and thereafter IO arrested him in the present case,
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State Vs. Raja & Ors.
conducted his personal search and recorded his disclosure
statement in which he confessed his involvement in murder of
deceased Sheeshpal along with his friends namely Dharmender
@ Sultan, Dinesh @ Sunny and Ricky @ Budhram. On
24.05.2015, information was received through DD No. 20B, Ex.
PW-18/A regarding arrest of accused persons namely
Dharmender @ Sultan and Dinesh @ Sunny by Special Staff,
South-East District and thereafter IO moved application for
production warrants of accused persons and on 25.05.2015,
accused Dinesh and Dharmender were formally arrested in the
present case by the IO while they were produced before Ld.
Concerned court. IO also conducted their personal search and
recorded their disclosure statements. During investigation,
accused Ricky @ Budh Ram was also apprehended by the IO at
instance of accused Dharmender and thereafter IO arrest him in
the present case, conducted his personal search and recorded his
disclosure statement. During investigation, IO also got conducted
the TIP of accused Dharmender @ Sultan and Raja, obtained
subsequent opinion regarding weapon of offence and collected
postmortem report. During investigation, IO also seized the
blood stained uniform of Ct. Vijay, collected copies of relevant
DD entries, got prepared scaled site plan, collected PCR form,
collected relevant CDRs and sent the exhibits to FSL Rohini. On
completion of investigation, charge-sheet was filed by the IO
before the Court through the SHO. After obtaining FSL result,
same was also filed before the court.
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State Vs. Raja & Ors.
6. Vide order dated 24.08.2015 copy of the charge-sheet
was supplied to accused persons under Section 207 Cr.P.C was
and v i d e order dated 02.09.2015 the case was
committed to the Court of Sessions under Sec. 209 Cr.P.C.
7. Vide order dated 02.12.2015, the Ld. Predecessor Court
was pleased to frame charges under Sec 302/34 IPC against all
the three accused persons as well as co-accused Dharmender @
Sultan (since deceased) to which they pleaded not guilty and
claimed trial.
8. To prove its case, prosecution has examined 20 witnesses.
The testimonies of presecution witnesses along with its nature
has been discussed briefly in the following paragraphs.
9. PW-1 Ms. Jyoti @ Prerna, was the wife of deceased. She
deposed that 2-3 days prior to 22.05.2015, a quarrel had taken
place between his husband Sheeshpal and his friend Dharmender.
She further deposed that on 22.05.2015, phone call of Raja was
received on the mobile phone of her husband Sheeshpal and Raja
was calling her husband but he refused as he was busy in Puja of
the shop. She further deposed that on 22.05.2015 in the evening
hours, her husband told her that quarrel took place between him
and Dharmender and he had apprehension of his life with
Manohar, uncle (chacha) of Dharmender. She also deposed that
on 23.05.2015 at about 11:00 am, phone call of Raja came on the
mobile of her husband and on attending the call of Raja, her
husband left the house. She also deposed that she did not know
what happened after that. She also deposed that on the same day,
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State Vs. Raja & Ors.
in the night hours, she received phone call of police officials and
they informed her about the death of her husband. She also
deposed that before leaving the house upon receiving phone call
from Raja, her husband told her that he was going to meet him.
She also deposed that Manohar Chacha of Dharmender used to
run the gang of pick-pocketers. In her cross-examination, she
deposed that her husband was involved in 2-3 criminal case. She
also deposed that she could not deny that even her husband was a
pick-pocketer and was working for the gang of the accused
persons. She also deposed that no complaint was made by her or
by her husband against the danger to the life of her husband from
Dharmender. She admitted that her husband Sheeshpal and
Manohar were together working but it was 2-3 years before the
incident. She denied the suggestion that all the accused persons
had been falsely implicated in this case.
10. PW-2 Ct. Vijay Kumar, was complainant in the present
case. He deposed that on 23.05.2015 at about 05:52 pm, one call
regarding quarrel was received by ASI Hari Kishan and he along
with him reached Multani Dhanda. He further deposed that
thereafter he proceeded to Satya Narain Gali where one unknown
person informed him that a quarrel was taking place at some
distance. He further deposed that he reached in front of H. No.
5999 and on seeing him, 3-4 boys ran away and he was knowing
one of them namely Sunny @ Suresh being the known criminal
in the area. He further deposed that he ran behind the said boys
but could not apprehend them due to the large crowd in the street.
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He also deposed that when he returned and reached in front of H.
No. 5999, he found that one person was lying in injured
condition outside the shutter of the said premises and he was
profusely bleeding on his left thigh. He also deposed that he
brought one TSR and made him lie down on the back seat and
removed him to LHMC Hospital. He also deposed that on the
way, the injured told him that injury on his persons was caused
by Dharmender, Sunny and his associates and thereafter he
became unconscious. He also deposed that he was declared
brought dead by the doctor in LHMC Hospital. He further
deposed that SHO along with other staff and ASI Virender
reached the hospital and ASI Virender recorded his statement,
Ex. PW-2/A, prepared rukka and handed over the same to him for
registration of FIR. He narrated about the proceedings conducted
by the IO at the spot of incident, viz. preparation of site plan, Ex.
PW-2/B at his instance, seizure of exhibits from the spot of
incident vide seizure memo Ex. PW-2/C, recording of statement
of wife of deceased and seizure of his blood stained uniform vide
seizure memo Ex. PW-2/D. He also narrated about TIP
proceedings of accused persons namely Raja and Dharmender in
which he correctly identified accused Raja while he could not
identify accused Dharmender. He also narrated about
identification of accused Dharmender in the lock of PS. This
witness correctly identified all the four accused persons as well
as case properties during his deposition in the court. In his cross-
examination, he deposed that there was crowd when he reached
at the place where injured was lying but he could not tell the
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State Vs. Raja & Ors.
number of the persons gathered there. He also deposed that while
he was taking the injured in the auto, he was alone with him and
his wearing uniform also sustained blood stains. He denied the
suggestion that injured was unconscious while he was shifting
him from the spot to the hospital. He also denied the suggestion
that injured did not name the accused persons namely
Dharmender, Sunny and his associates. He also deposed that he
had seen those boys from the distance of three meters and at that
time he was present at shop no. 5999. He also deposed that he did
not know if the mobile phone of the injured was in his pocket
while he was shifting him to the hospital. He denied the
suggestion that he identified accused Raja in the TIP proceedings
as he had already seen him in the hospital on 23.05.2015. He
denied the suggestion that there was CCTV cameras in the said
market including at shop no. 5999 or that he was not disclosing
the said facts deliberately. He also denied the suggestion that all
the accused persons had been falsely implicated in this case.
11. PW-3 Ct. Deepak, was the Photographer at Mobile Crime
Team. He proved the photographs (14 nos.), Ex. PW-3/A-1 to Ex.
PW-3/A-14 of the the spot of incident from different angles.
Negatives of aforesaid photographs could not be found in the
judicial file as the envelope on which 14 negatives were
mentioned was empty. In his cross-examination, he deposed that
he took the photographs, Ex. PW-3/A-1 to Ex. PW-3/A-14 with
Camera and it took around 45 minutes in completing the
proceedings.
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12. PW-4 Sh. Priyanshu Kanagwal, was the brother-in-law of
deceased. He deposed that on 23.05.2015 at about 07:00 pm, he
came to know that his Jija had met with an accident, while he
was present at his showroom. He further deposed that he went to
the house of his sister and took her to Lady Harding Hospital
where his Jija was got admitted by the police. He further deposed
that on the way his sister Jyoti told him that 8-10 days back a
quarrel had taken place between deceased Sheeshpal and his
friend namely Raja. He further deposed that his sister had told
him that on 23.05.2015 in the morning at about 11:00 am, his Jija
Sheeshpal had gone to meet Raja upon receiving his phone call.
He correctly identified accused Raja and Dharmender in the court
during his deposition. This witness was cross-examined by Ld.
Addl. PP for the State in which he was confronted with his
statement recorded under Sec. 161 Cr.PC, Ex. PW-4/A on various
points. He denied the suggestion that he had been won over by
the accused persons and in order to save the accused persons
from punishment, he was deposing falsely. In his cross-
examination on behalf of accused persons, he deposed that he did
not know if his Jija was involved in criminal case. He denied the
suggestion that his Jija was a pick-pocketer. He also deposed that
her sister never told him of any quarrel between accused Raja
and his brother-in-law Sheeshpal. He denied the suggestion that
his sister never told him regarding any phone call received by his
Jija from accused Raja.
13. PW-5 Sh. Ajay, deposed that on 23.05.2015 at about
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01:00-01:30 pm, Raja, Sheeshpal and Vicky met him at Nabi
Karim near a park and thereafter they all went to Gandhi Nagar
where they roamed and thereafter they went to Sadar Bazar. He
further deposed that at about 05:30 pm, they reached at Main
Market Singhara Chowk and he asked Vicky and Sheeshpal to
take a particular street but they refused to accompany him in the
said street and they proceeded to other street situated in their left
side. He further deposed that when he reached near his house,
accused Raja met him and they were talking to each other while
sitting near his house. He further deposed that Vicky came there
after about 5-7 minutes and told them that Sheesh Pal had been
caught by some persons and they were quarreling with
Sheeshpal. He further deposed that Raja made a telephone call to
Sheeshpal with his mobile which was attended by some other
person, who told that there had been some accident with
Sheeshpal and they were taking him to hospital. He further
deposed that Raja had made the said telephone call using his
mobile phone as his mobile phone was not having sufficient
balance. He also deposed that after some time police made
telephone call on his mobile and asked about telephone call and
he narrated the incident to the police and police told him that
Sheeshpal had been murdered by using knife. He also deposed
that he had identified the dead body of Sheeshpal in the hospital.
This witness was cross-examined by Ld. Addl. PP for the State
but nothing incriminating could be brought on record. This
witness was confronted with his statement recorded under Sec.
161 Cr.PC, Ex. PW-5/A on various points. In cross-examination
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State Vs. Raja & Ors.
on behalf of accused persons, he deposed that they remained at
the hospital for about one/one and half hours. He also deposed
that he did not know if constable Vijay Kumar was present in the
hospital.
14. PW-6 Ct. Dinesh, deposed that on 23.05.2015, he was on
patrolling duty in civil clothes and at about 06:00 pm, during
patrolling, he reached at Satya Narain Gali, Shankar Market,
some unknown persons told him that a quarrel was taking place
at some distance. He further deposed that he went forward and
reached in front of Shop No. 5999, Shankar Gali, Nabi Karim
where he saw that four persons were running and two of them
were having knives in their hands. He also deposed that he knew
all four of them being the known criminals of the area and their
names were Raja, Dharmender, Sunny and Ricky. He also
deposed that accused Dharmender and Sunny were having knives
in their hands and their clothes were also having blood stains. He
further deposed that he chased the said accused persons but they
managed to run away. He also deposed that he returned back at
the spot and came to know from the public persons that injured
had already been removed to hospital by some constable of PS
Nabi Karim. In his cross-examination, he deposed that he had
seen the faces of the accused persons when they started running.
He also deposed that the injured was present at the place of
quarrel when he reached there. He admitted that he had not
mentioned the physical description of accused persons in his
statement. He also deposed that he had run behind the accused
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State Vs. Raja & Ors.
persons for 50-60 meters. He denied the suggestion that he was
deposing falsely at the instance of IO. He also denied the
suggestion that he was not present at the spot at any point of time
on 23.05.2015.
15. PW-7 Sh. Rajesh Kumar, deposed that he was running a
Ladies purse shop at shop bearing no. 5999, Shankar Market,
Nabi Karim. He further deposed that on 23.05.2015 at about
06:00 pm, he heard a noise outside his shop and he opened the
gate of shop and saw that one person had fallen outside after
striking with the gate. He further deposed that said person was in
injured condition and was bleeding. He also deposed that he
called the police at no. 100 and later on he came to know the
name of injured as Sheeshpal. In his cross-examination, he
deposed that he had made call at number 100 to the police from
his landline phone no. 65544267. He denied the suggestion that
he had not made any call at no. 100.
16. PW-8 Sh. Vicky, deposed that on 23.05.2015 at about
01:00 pm, Ajay, Sheeshpal, Raja and some other boys whose
name he did not know had met him at Nabi Karim. He further
deposed that they went to Gandhi Nagar and thereafter, they went
to Sadar Bazar. He also deposed that when they reached in the
gali of Sadar Bazar, he, Ajay and Sheeshpal separated from other
boys and when they were in the gali, Sheeshpal went in the left
direction whereas he and Ajay proceeded to the right direction of
the street. He further deposed that he went to his house and at
about 11:00 pm, two police officials came to his house and took
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State Vs. Raja & Ors.
him to PS. He also deposed that they made inquiry in the PS and
he had told the police that he was not aware of any incident. He
further deposed that he was sent to his home at about 04:00 am
and on next day at 11:00 am, he was again called at the PS and
again inquiry was made from him. This witness was cross-
examined by Ld. Addl. PP for State in which this witness turned
hostile and confronted with his statement recorded under Sec.
161 Cr.PC, Ex. PW-8/A but nothing incriminating could be
brought on record against accused persons. This witness was not
cross-examined on behalf of accused persons despite opportunity
given to them.
17. PW-9 Dr. Mukhtar Naved, Senior Resident, has proved the
MLC of deceased Sheeshpal, Ex. PW-9/A on behalf of Dr.
Dhruba Jyoti. He also deposed that as per MLC, said
victim/deceased was brought as ‘dead’ by the police. He also
proved CR No. 38058, Ex. PW-9/B, prepared by Dr. Dhruba
Jyoti. In his cross-examination, he deposed that he had no
personal knowledge about the injuries on the deceased. He
admitted that as per record, the police official did not disclose the
name of deceased at the time of preparation of MLC.
18. PW-10 Dr. Kuldeep Panchal, Assistant Professor,
Department of Forensic Medicines, has proved his detailed
postmortem report of deceased as Ex. PW-10/A. He also opined
the cause of death was ‘haemorrhagic shock consequent upon
stab injury over the thigh caused by sharp pointed weapon’. He
also deposed that all injuries (1 to 4) were ante-mortem in nature,
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State Vs. Raja & Ors.
fresh in duration, homicidal in manner and injury no. 2 was
sufficient to cause death in ordinary course of nature. He also
proved application, Ex. PW-10/B moved by IO for providing
subsequent opinion regarding weapon of offence and his
subsequent opinion regarding weapon of offence as Ex.
PW-10/C. In his cross-examination, he deposed that he had
mentioned the name of deceased Sheeshpal on the basis of papers
submitted by the police. He also deposed that injury no. 4
mentioned in the postmortem report could be caused by the
weapon found in Parcel-C. He denied the suggestion that injuries
mentioned in the postmortem report could be caused by the
weapon found in parcel A, B & C.
19. PW-11 SI Sandeep Godara, deposed that on 24.05.2015 he
was posted as Sub-Inspector at Special Staff, South-East District,
Madangir, Delhi and on that day he received a secret information
that accused persons namely Dharmender @ Sultan (since
deceased) and Dinesh @ Sunny who were wanted in murder case
of PS Nabi Karim would come in the area of Dakshinpuri and
they were planning to leave Delhi and if raid is conducted, they
could be apprehended. He further deposed that on direction of
Senior officers, he constituted a raiding party and they went to
Peepal Chowk, Dakshinpuri where they apprehended accused
persons namely Dharmender @ Sultan (since deceased) and
Dinesh @ Sunnuy and on their personal search three knives were
recovered from them. He proved sketches of knives and their
seizure memos as Ex. PW-11/A to Ex. PW-11/E. He also proved
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State Vs. Raja & Ors.
arrest memos, personal search memos and disclosure statements
of accused persons namely Dharmender @ Sultan (since
deceased) and Dinesh as Ex. PW-11/F to PW-11/L. He also
proved the seizure memo of clothes of accused persons namely
Dharmender @ Sultan (since deceased) and Dinesh as Ex.
PW-11/M. This witness was not cross-examined on behalf of
accused persons despite opportunity given to them.
20. PW-12 Ct. Arvind, deposed that on 23.05.2015, he
delivered the copy of FIR to Ld. MM, ACP, DCP Central, and
ACP Paharganj. This witness was not cross-examined on behalf
of accused persons despite opportunity given to them.
21. PW-13 Ct. Anand Kumar, deposed that on 24.05.2015 he
joined the investigation in the present case along with Inspector
Virender Nath and SI Munish Kumar and went to Lady Harding
Mortuary where IO prepared the documents of postmortem, got
identified the dead body of deceased through his wife Jyoti and
other relatives and after postmortem, dead body was handed over
to Jyoti @ Prerna, wife of deceased vide memo Ex. PW-13/A. He
also narrated about apprehension of accused Raja on the basis of
secret information by IO from Railway Washing Ward, New
Delhi and proved his arrest memo, personal search and disclosure
statement as Ex. PW-13/B, Ex. PW-13/C & Ex. PW-13/C-1. He
further deposed that on 25.05.2015, he again joined the
investigation in the present case along with IO and he went to Tis
Hazari Court where IO interrogated accused Dharmender @
Sultan (since deceased) and Dinesh with permission of Ld. Court
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State Vs. Raja & Ors.
and arrested them in the present case. He proved arrest memos
and disclosure statements of accused Dharmender @ Sultan and
Dinesh as Ex. PW-13/D, Ex. PW-13/E, Ex. PW-13/F & Ex.
PW-13/F-1. He further deposed that on 30.05.2015, he again
joined the investigation in the present case along with IO. He
narrated about apprehension of accused Budh Ram @ Ricky at
instance of accused Dharmender @ Sultan from Sainik Vishram
Ghar, Railway Yard, Delhi. He also proved his arrest memo,
personal search memo and disclosure statement as Ex. PW-13/G,
Ex. PW-13/G-1 & Ex. PW-13/G-2. In his cross-examination, he
denied the suggestion that accused persons had been falsely
implicated in the present matter since they were involved in
criminal cases. He also denied the suggestion that accused Raja
was friend of deceased or that he used to remain in contact with
deceased telephonically or that accused Ricky had been falsely
implicated being BC of the area or that they were not arrested in
the manner stated above.
22. PW-14 Ct. Pushpender, deposed that on 23.05.2015, on
receiving DD No. 29A by ASI Virender, he along with ASI
Virender reached Shankar Market, where Ct. Dinesh met them
who informed him that he had seen assailants running from the
spot and injured had been shifted to hospital by Ct. Vijay Kumar.
He further deposed that ASI Virender left him at the spot and
directed Ct. Dinesh to trace accused persons. He further deposed
that after some time, Inspector Dhirender Nath Sharma, SHO
came at the spot and got inspected the spot of incident through
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State Vs. Raja & Ors.
Mobile Crime Team. He further deposed that Ct. Vijay came to
the spot with copy of FIR, original rukka and handed over the
same to SHO. He narrated about the proceedings conducted by
the IO at the spot of incident viz. preparation of site plan at
instance of Ct. Vijay, seizure of blood in gauze, seizure of one
pair blood stained hawai chappal, seizure of blood stained earth
control, seizure of earth control without blood stain and seizure
of blood stained left leg shoe of black colour. He also proved
their seizure memo as Ex. PW-2/C. He also proved the seizure
memo of blood stained uniform of Ct. Vijay as Ex. PW-2/D. This
witness was not cross-examined on behalf of accused persons
despite opportunity given to them.
23. PW-14 HC Dhiraj Singh, has been examined as PW-14
though PW-14 Ct. Pushpender had already been examined as
PW-14. For the sake of clarity, let PW-14 HC Dhiraj Singh be
read as PW-14A. He deposed that on 24.07.2015, on direction of
SHO, he had collected 14 pullanda duly sealed with the seal of
SHO and deposited the same at FSL, Rohini. He also deposed
that he came to PS Nabi Karim and handed over the receipt
regarding deposition of pullanda to FSL, Rohini. This witness
was not cross-examined on behalf of accused persons despite
opportunity given to them.
24. PW-15 Retd. SI Virender Kumar deposed that on
23.05.2015, on receiving DD No. 29A, Ex. PX-5, regarding
stabbing at Shankar Market, Nabi Karim, Delhi, he along with
Ct. Pushpender reached at the spot of incident i.e. Gali Opposite
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to premises no. 5997/2, Shankar Market, where Ct. Dinesh met
them who informed him that he had seen assailants running from
the spot and injured had been shifted to hospital by Ct. Vijay
Kumar. He further deposed that blood was also found scattered at
the spot of incident. He also deposed that he directed Ct. Dinesh
to trace accused immediately by following the path taken by
assailants and Ct. Pushpender was left at the spot to safeguard the
same. He further deposed that he went to the Lady Harding
Medical College and collected the MLC, Ex. PW-9/A of injured
and as per MLC, injured was declared brought dead. He also
deposed that later on name of deceased was revealed as
Sheeshpal, S/o Sh. Gulzari Lal. He further deposed that in the
meanwhile, SHO PS Nabi Karim also reached in the hospital
who inspected the dead body of deceased and found deep
wounds on the left thigh of deceased. He further deposed that he
recorded statement of PW-2 Ct. Vijay, Ex. PW-2/A, prepared
rukka, Ex. PW-15/A and got the present FIR registered at PS
Nabi Karim through Ct. Vijay. He also deposed that he got
preserved the dead body of deceased vide application, Ex.
PW-15/B and collected the clothes and belongings of the
deceased sealed with the seal of LHMCH and returned to scene
of crime and handed over the same to IO which was seized by IO
vide seizure memo, Ex. PW-15/C. He narrated about proceedings
conducted by the IO at the spot of incident viz. seizure of
exhibits vide seizure memo Ex. PW-2/C. He also narrated about
seizure of blood stained uniform of Ct. Vijay vide seizure memo,
Ex. PW-2/D. In his cross-examination, he deposed that they
FIR No. 272/2015, PS: Nabi Karim, Page No. 18 of 65
State Vs. Raja & Ors.
reached at the spot of incident within 5-7 minutes of receiving
call and there were many public persons were found gathered at
the spot, apart from Ct. Dinesh. He also deposed that MLC had
been prepared by the time he reached in the hospital. He also
deposed that trouser of deceased was already removed when he
reached in the hospital and hence he noticed deep wounds on his
thigh. He denied the suggestion that he had not received any
information regarding stabbing or that he had not visited the spot
or that he had not gone to the hospital or that no item/exhibits
were lifted from the spot or that Ct. Vijay had not handed over
his uniform to IO.
25. PW-16 Sh. Pawan Singh, Nodal Officer, Vodafone Idea
Ltd., has proved CAF, voter id card of subscriber, CDR of the
period from 20.05.2015 to 30.05.2015 supported with certificate
under Sec. 65B of The Indian Evidence Act of mobile phone no.
9873602086 issued in name of Sunil Kumar as Ex. PW-16/A, Ex.
PW-16/A1, Ex. PW-16/A2 Ex. PW-16/A3. He also proved CAF,
ID of subscriber, CDR of the period from 20.05.2015 to
12.06.2015 supported with certificate under Sec. 65B of The
Indian Evidence Act of mobile phone no. 8750533839 issued in
name of Sheeshpal, S/o Sh. Guljari Lal as Ex. PW-16/B, Ex.
PW-16/B1, Ex. PW-16/B2 Ex. PW-16/B3. In his cross-
examination, he admitted that there was no call either on mobile
no. 8750533839 or from this number on 23.05.2015 from/to
8368514864, 9643589534, 9289611902, 8860269805, as per Ex.
PW-16/B2.
FIR No. 272/2015, PS: Nabi Karim, Page No. 19 of 65
State Vs. Raja & Ors.
26. PW-17 Inspector Munish Kumar, deposed that on
24.05.2015, he joined the investigation in the present case and
went to Mortuary, Lady Harding Medical College where he
seized two sealed exhibits along with sample seal vide seizure
memo Ex. PW-17/A, after postmortem on the dead body of
deceased. He also deposed that he went to Shyamji Mal Lane,
Motia Khan, Paharganj, Delhi where he inquired from witness
Vicky. He narrated about apprehension of accused Raja from
Railway Washing Centre, New Delhi on the basis of secret
information on the lines of PW-13 Ct. Anand and proved his
arrest memo, personal search memo and disclosure statement. He
also narrated about apprehension of accused Budh Ram @ Ricky
at instance of accused Dharmender @ Sultan from Sainik
Vishram Ghar, Railway Yard on the lines of PW-13 Ct. Anand
and proved his arrest memo, personal search memo and
disclosure statement. In his cross-examination, he denied the
suggestion that accused persons had been falsely implicated, just
to work out the case. He also denied the suggestion that no public
person was requested to join the investigation. He admitted that
no recovery was got effected from the abovementioned accused
persons in the present case. He also denied the suggestion that
signatures of accused persons were obtained on blank
papers/blank proforma or the same were converted into different
memos.
27. PW-18 ACP Dhirender Sharma, was the Investigating
Officer in the present case. He deposed that on 23.05.2015 on
FIR No. 272/2015, PS: Nabi Karim, Page No. 20 of 65
State Vs. Raja & Ors.
receiving call regarding quarrel, which was entrusted to ASI
Virender Singh, he reached at the spot and found that injured was
transported to LHMC Hospital where he was declared brought
dead. He further deposed that ASI Virender Singh collected the
MLC and clothes of deceased and returned to spot of incident
after preserving the dead body in mortuary. He also deposed that
ASI Virender Singh recorded the statement of Ct. Vijay and got
registered the present FIR. He narrated about proceedings
conducted by him at the spot of incident viz. seizure of exhibits
and preparation of site plan at instance of Ct. Vijay. He also
narrated about conducting of postmortem on the dead body of
deceased and handing over the same after postmortem to its
relatives. He also narrating about apprehension of accused Raja
from Railway Washing yard, on the basis of secret information
and proved his arrest memo, personal search memo and
disclosure statement. He also narrated about information received
vide DD No. 20B, Ex. PW-18/A, on 24.05.2015, regarding arrest
of accused persons namely Dharmender and Dinesh by Special
Staff, South-East District and proved their arrest memos,
personal search memos and their disclosure statements. He also
narrated about apprehension of accused Ricky @ Budh Ram
instance of accused Dharmender and proved his arrest memo,
personal search memo and disclosure statement. He also narrated
about TIP of accused Dharmender @ Sultan and Raja, obtaining
of subsequent opinion regarding weapon of offence and
collection of postmortem report. He also narrated about seizure
of the blood stained uniform of Ct. Vijay, collecting of copies of
FIR No. 272/2015, PS: Nabi Karim, Page No. 21 of 65
State Vs. Raja & Ors.
relevant DD entries, preparation of scaled site plan, collection of
PCR form, collection of relevant CDRs and sending of the
exhibits to FSL Rohini. This witness has correctly identified all
the four accused persons as well as case properties during his
deposition before the court. In his cross-examination, he deposed
that he did not remember who had informed PCR. He also
deposed that he did not know which weapon was recovered from
which accused. He admitted that he did not prepare personal
search memo of accused Dharmender and Dinesh. He denied the
suggestion that arrest memo and personal search memo were
fabricated. He also deposed that he did not remember exactly
how many public persons were examined by him during
investigation.
28. PW-19 Dr. Garima Chaudhary, Senior Scientist, DNA has
proved her detailed biological/DNA report as Ex. PW-19/A. In
her cross-examination, she deposed that exhibits could be
examined for DNA upto any time if they were preserved
properly.
29. PW-20 Inspector Antriksh Alok, had filed FSL report, Ex.
PW-19/A before the court during May, 2017. This witness was
not cross-examined on behalf of accused persons despite
opportunity given to them.
30. During trial of the case, all the four accused persons have
admitted the genuineness of followings documents under Sec.
294 Cr.PC.:-
FIR No. 272/2015, PS: Nabi Karim, Page No. 22 of 65
State Vs. Raja & Ors.
(a) TIP proceedings of accused Raja conducted by Ld. MM
Ms. Ambika Singh as Ex. PX-1.
(b) TIP proceedings of accused Dharmender @ Sultan as Ex.
PX-2.
(c) FIR no. 272/2015, under Sec. 302/34 IPC, PS Nabi Karim
recorded by HC Upender Singh as Ex. PX-3 and
certificate issued under Sec. 65B of The Indian Evidence
Act by DO/HC Upender Singh as Ex-3/A.
(d) Scaled site plan prepared by Inspector Mahesh Kumar as
Ex. PX-4.
(e) DD No. 29A, dated 23.05.2015 as Ex. PX-5.
(f) DD No. 32A dated 23.05.2015 as Ex. PX-6.
(g) PCR Form as Ex. PX-7.
(h) SOC Report prepared by SI Rupesh Khatri as Ex. PX-8.
(i) Inquest papers of deceased Sheeshpal (running into 11
pages) i.e. request for autopsy, form 25.35, copy of FIR,
copy of statement of Ct. Vijay Kumar, copy of DD No.
32A, copy of DD No. 29A, medical papers i.e. OPD card,
statement of Balraj and statement of Jyoti @ Prerna
regarding identification of dead body of deceased
Sheeshpal and application regarding preservation of dead
body, collectively exhibited as Ex. PX-9.
(j) Kalandra under Sec. 41.1B Cr.PC, DD No. 20B dated
24.05.2015 PS Nabi Karim, DD No. 25A dated
24.05.2015 PS Ambedkar Nagar, DD No. 4 dated
24.05.2015 PS Special Staff SD (running into six pages)
as Ex. PX-10 (colly).
FIR No. 272/2015, PS: Nabi Karim, Page No. 23 of 65
State Vs. Raja & Ors.
(k) TIP of accused Budh Ram @ Ricky conducted by Dr.
Jagminder Singh, Ld. MM as Ex. PW-11.
(l) MLC of accused Dharmender @ Sultan and MLC of
accused Dinesh as Ex. PX-12 & Ex. PX-13.
(m) Copy of register no. 19 pertaining to deposition of case
properties of this case in Malkhana (running into seven
pages) as Ex. PX-14, copy of acknowledgment of case
acceptance at FSL Rohini as Ex. PX-15, copy of RC No.
94/21/15 (running into two pages) as Ex. PX-16, copy of
RC No. 112/21/15 as Ex. PX-17.
(n) Statement of SI Rupesh Khatri as Ex. PX-18.
(o) Statement of HC Hari Kishan, fingerprint proficient as
Ex. PX-19.
(p) Statement of DO/HC Upender Singh as Ex. PX-20.
(q) Statement of Ct. Vijay No. 1820/C as Ex. PX-21.
(r) Statement of HC Rakesh No. 278/C as Ex. PX-22.
(s) Statement of HC Ashok, MHC(M) as Ex. PX-23.
31. After closing of prosecution evidence, separate statements
of all the four accused persons were recorded under Sec. 313
Cr.PC, wherein they denied all the charges against them. Accused
persons stated that that one of their common friend namely Ajay
informed them about beating to Sheeshpal by some persons.
They further stated that they made call to Sheeshpal but same
was not attended and they kept on making call to him and one of
the call was attended by a policeman who informed that
FIR No. 272/2015, PS: Nabi Karim, Page No. 24 of 65
State Vs. Raja & Ors.
Sheeshpal had met an accident and he was being removed to
Lady Harding Hospital. They further stated that they along with
their wife and friends went to hospital but later on police officials
apprehended them from their houses and implicated them in the
present matter.
32. Accused persons have examined three defence witnesses.
The nature and testimony of the defence witnesses has been
briefly discussed as under.
33. DW-1 Ms. Neetu Singh was the landlady of accused Raja.
She deposed that one boy namely Ajay came to her house at
around 06:00 pm in the month of May, 2015 and called Raja who
was residing as tenant and informed that Sheeshpal was assaulted
and he had been taken to Lady Harding Hospital. She further
deposed that Raja requested her to accompany him to the hospital
and she along with her mother-in-law went to hospital and found
Sheeshpal dead in hospital. She further deposed that Sheesh Pal
was friend of Raja. In her cross-examination, she deposed that
Raja was provided rented accommodation prior to two and two
and half months of the day of death of Sheeshpal and she had not
got conducted police verification of Raja. She denied that she did
not know where was Raja around half an hour prior to coming of
Ajay to her house. She also deposed that no lease agreement was
executed between her and Raja. She admitted that there was no
enmity/grudge between Raja and the police official who arrested
him. She denied the suggestion that Raja was not her tenant
during that period.
FIR No. 272/2015, PS: Nabi Karim, Page No. 25 of 65
State Vs. Raja & Ors.
34. DW-2 Ms. Pooja, was the wife of accused Budh Ram @
Ricky. She deposed that around ten years back, police officials
visited her house and asked for her husband and on her inquiry,
police official told her that murder of a person had been
committed by her husband and he had to be interrogated. She
further deposed that she informed the police officials that her
husband had already been admitted to Nasha Mukti Kendra
around two months prior to visit of police officials. She also
deposed that on regular visit of police officials, she brought her
husband from Nasha Mukti Kendra and produced him before
police officials. In her cross-examination, she deposed that she
could not produce any document showing that her husband was
admitted in Nasha Mukti Kendra during that period. She
admitted that there was no enmity/grudge between Raja and the
police official who arrested him. She denied the suggestion that
her husband was not admitted in Nasha Mukti Kendra since she
did not have any document or that deposing deliberately that her
husband was admitted in Nasha Mukti Kendra during that period.
35. DW-3 Sh. Praveen, was the colleague of accused
Dharmender @ Sultan (since deceased) and Dinesh @ Sunny. He
deposed that he was working in a band company in Gurugram
and accused persons namely Dharmender @ Sultan (since
deceased) and Dinesh @ Sunny were also working with him. He
further deposed that mother of Dharmender (since deceased) had
shifted to Gurugram during that period and Dharmender (since
deceased) also started residing with her. He further deposed that
FIR No. 272/2015, PS: Nabi Karim, Page No. 26 of 65
State Vs. Raja & Ors.
on 23.05.2015, 4-5 police personnel came at around 09:00-09:30
pm and took both Dharmender @ Sultan and Dinesh @ Sunny
and assured to return after some time. In his cross-examination,
he deposed that he had no document to show that he along with
Dharmender and Dinesh was working in band company. He
denied the suggestion that he was deliberately deposing that
Dharmender @ Sultan and Dinesh @ Sunny were working with
him. He admitted that there was no enmity/grudge between
Dharmender @ Sultan and Dinesh @ Sunny and the police
official who arrested them. He also denied the suggestion that he
had been tutored by accused persons.
36. Final arguments were advanced by Sh. Pankaj Kumar
Ranga, Ld. Addl. PP for the State and Sh. Yogender Kumar, Ld.
Counsel for all the four accused persons.
37. Ld. Addl. PP for the State argued that the prosecution has
proved its case beyond reasonable doubt and all the prosecution
witnesses have supported the prosecution story and have
corroborated each other’s version. To substantiate his
submissions, he argued that PW-2 Ct Vijay has completely
supported the case of prosecution and he had seen the accused
persons running from the spot of incident. He also argued that the
version of PW-2 Ct. Vijay has been corroborated by PW-6 Ct.
Dinesh. He also argued that weapon of offence has been
recovered from possession of accused persons. He also argued
that the blood on knives has matched with the blood of deceased.
He also argued that accused persons have not taken any specific
FIR No. 272/2015, PS: Nabi Karim, Page No. 27 of 65
State Vs. Raja & Ors.
defence. He also argued that motive for the commission of
offence has been proved by the prosecution. He further argued
that the IO as well as the other police officials have duly proved
the proceedings conducted by them. He also argued that since the
prosecution has proved its case against all the accused persons
beyond reasonable doubt, all the accused persons should be
convicted for the offence punishable under Sec. 302/34 IPC.
38. Per Contra Ld. Defence Counsel argued that the
prosecution has miserably failed to prove its case against accused
persons beyond reasonable doubt. To substantiate his points, he
argued that the investigation in the present case has been
conducted in an arbitrary manner. He further argued that all the
accused persons have been falsely implicated in the present case.
He further argued that neither PW-2 Ct. Vijay nor PW-6 Ct.
Dinesh have witnessed the incident. He also argued that no DD
entry with respect to presence of PW-2 Ct. Vijay and PW-6 Ct.
Dinesh has been proved by the prosecution. He also argued that
the incident took place at a public place but no independent
eyewitness has been joined in the investigation by the IO. He
also argued that no CCTV footage has been collected by the IO.
He also argued that the motive of commission of offence has not
been proved by the prosecution. He also argued that the alleged
phone call between accused Raja and deceased has been proved
by the prosecution. He also argued that since the prosecution has
failed to prove its case against the accused persons beyond the
reasonable doubt, all the accused persons should be acquitted for
the offence punishable under Sec. 302/34 IPC.
FIR No. 272/2015, PS: Nabi Karim, Page No. 28 of 65
State Vs. Raja & Ors.
39. In the present case, charges under Sec. 302/34 IPC have
been framed against all the accused persons. These Sections have
been defined as follows:-
Section 302 IPC provides punishment for the commission of
offence of murder which has been defined U/s 300 IPC.
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.
Exception 1 When culpable homicide is not murder.
Culpable homicide is not murder if the offendor,
whilst deprived of the power of self control by grave
and sudden provocation, causes the death of the
person who gave the provocation or causes the death
of any other person my mistake or accident.
FIR No. 272/2015, PS: Nabi Karim, Page No. 29 of 65
State Vs. Raja & Ors.
The above exception is subject to the following
provisos:-
First-That the provocation is not sought or
voluntarily provoked by the offendor as an excuse for
killing or doing harm to any person.
Secondly- That the provocation is not given by
anything done in obedience to the law, or by a public
servant in the lawful exercise of the powers of the
public servant.
Thirdly-That the provocation is not given by
anything done in the lawful exercise of the right of
private defence.
Explanations: Whether the provocation was grave and
sudden enough to prevent the offence amounting to
murder is a question of fact.
Exception 2: Culpable homicide is not murder if the
offendor, in the exercise in good faith of the right of
private defence of person or property, exceeds the
power given to him by law and causes the death of the
person against whom he is exercising such right of
defence without premeditation, and without any
intention of doing more harm then is necessary for the
purpose of such defence.
Exception 3: Culpable homicide is not murder if the
offendor, being a public servant or adding a public
servant acting for the advancement of public justice,
exceeds the power given to him by law and causes
death by doing an act which he, in good faith, believes
to be lawful and necessary for the due discharge of
his duty as such public servant and without ill-will
towards the person whose death is caused.
Exception 4: Culpable homicide is not murder if it isFIR No. 272/2015, PS: Nabi Karim, Page No. 30 of 65
State Vs. Raja & Ors.
committed without pre meditation in a sudden fight in
the heat of passion upon a sudden quarrel and without
the offendor’s having taken undue advantage or acted
in a cruel or unusual manner.
Explanation : It is immaterial in such cases which
party offers the provocation or commits the first
assault.
Exception 5: Culpable homicide is not murder when
the person whose death is caused, being above the age
of eighteen years suffers death or takes the risk of
death with his own consent.
34. Acts done by several persons in furtherance of common
intentionWhen a criminal act is done by several persons, in
furtherance of the common intention of all, each of such persons
is liable for that act in the same manner as if it were done by him
alone.
40. I have thoughtfully considered the arguments advanced,
perused the material available on record, scrutinized the evidence
led by the prosecution and gone through the relevant provisions
of law. I have also considered the judgments relied upon by the
Ld. Addl. PP for the State as well as Ld. Counsel for accused
persons.
41. As per the case of prosecution, the alleged incident took
place on 23.05.2015 at about 06:00 pm, in front of shop no.
5997/2, Shankar Market, Nabi Karim, Delhi. To prove the alleged
incident, prosecution has cited several witnesses out of which
FIR No. 272/2015, PS: Nabi Karim, Page No. 31 of 65
State Vs. Raja & Ors.
PW-2/complainant Ct. Vijay Kumar, PW-4 Sh. Priyanshu
Khanagwal, PW-5 Sh. Ajay, PW-6 Ct. Dinesh & PW-8 Sh. Vicky
are the star witnesses of the prosecution who have either
witnessed the alleged incident or they have seen the scuffle or
they have seen the accused persons running from the spot of
incident. The testimonies of these witnesses are to be appreciated
as per the established principles of law.
42. PW-2/Ct. Vijay Kumar is the complainant in the present
case on whose statement, the FIR in the present case was
registered. PW-2/complainant Ct. Vijay Kumar deposed that on
23.05.2015, when he reached, Satya Narain Gali, one unknown
person told him that quarrel was taken place at some distance and
thereafter he reached in front of house no/shop no. 5999 and on
seeing him, 3-4 boys ran away. Thus, PW-2/complainant Ct.
Vijay Kumar had not seen any of the said boys committing the
said offence or having scuffle with the deceased or stabbing the
deceased. PW-2/complainant Ct. Vijay Kumar is also not sure
about the number of such persons. As per the PCR form, Ex.
PX-7, the public persons told them that four boys were quarreling
and three boys had stabbed the deceased and they ran away from
the spot of incident. Thus, as per contents of PCR form, Ex.
PX-7, three persons were involved in the commission of offence.
In the present case, four accused persons are facing trial and from
the testimony of PW-2/complainant Ct. Vijay Kumar and PCR
form, Ex. PX-7, it has become doubtful whether four persons
were involved in the commission of offence or three persons
FIR No. 272/2015, PS: Nabi Karim, Page No. 32 of 65
State Vs. Raja & Ors.
were involved in the commission of offence. This raises serious
doubts on the prosecution story.
43. PW-6 Ct. Dinesh deposed that on 23.05.2015 at about
06:00 pm, during patrolling he reached at Sataya Narain Gali,
Shankar Market and some unknown person told him that a
quarrel had taken place at some distance. He further deposed that
he went forward and reached in front of shop no. 5999, Shankar
Gali, Nabi Karim and saw that four persons were running and
two of them were having knives in their hands. Thus, even PW-6
Ct. Dinesh had not witnessed the commission of offence by the
accused persons. Running of some persons in itself cannot
connect them to the commission of offence. PW-6 Ct. Dinesh
further deposed that he knew all four of them being the known
criminals of the area and they were Raja, Dharmender, Sunny
and Ricky. He further deposed that he chased the said persons but
they managed to ran away. In his cross-examination, PW-6 Ct.
Dinesh specifically deposed that accused persons started running
opposite to him. If the accused persons were already running in
the opposite direction, it may not have been possible to see their
faces by PW-6 Ct. Dinesh. In his cross-examination he deposed
that he saw the faces of accused persons when they started
running but in his examination-in-chief, PW-6 Ct. Dinesh had
deposed that he saw that four persons were running and he has
contradicted himself in his cross-examination which raises
serious doubt on his veracity.
FIR No. 272/2015, PS: Nabi Karim, Page No. 33 of 65
State Vs. Raja & Ors.
44. PW-2/complainant Ct. Vijay Kumar deposed that he
reached in front of house/shop no. 5999 and on seeing him, 3-4
boys ran away. Similarly, PW-6 Ct. Dinesh deposed that public
persons met him in front of shop no. 5999 and he had seen the
faces of accused persons when they started running. Thus, as per
the versions of PW-2/complainant Ct. Vijay Kumar and PW-6 Ct.
Dinesh, they both were present in front of Shop No. 5999 at the
same time and they had chased the accused persons in the same
direction. However, PW-2/complainant Ct. Vijay Kumar has not
deposed that any other person including PW-6 Ct. Dinesh had
chased the accused person. Similarly, PW-6 Ct. Dinesh has also
not deposed that he had seen PW-2/complainant Ct. Vijay Kumar
chasing the accused persons. This raises serious doubts regarding
the presence of PW-2/complainant Ct. Vijay Kumar and PW-6
Ct. Dinesh at the spot of incident at the time of presence of
accused persons at the spot of incident.
45. As per the prosecution story, PW-2/complainant Ct. Vijay
Kumar and PW-6 Ct. Dinesh were present near the spot of
incident at about 06:00 pm. As per rules, whenever any police
officials leaves the Police Station for patrolling or any other
purpose, a specific DD entry is made mentioning the time of
leaving of PS and its purpose. No DD entry with respect to
leaving of PS by PW-6 Ct. Dinesh showing his presence at the
spot of incident has been proved by the prosecution. Similarly, no
DD entry showing the leaving of PS by PW-2/complainant Ct.
Vijay Kumar has been proved by the prosecution. In the absence
FIR No. 272/2015, PS: Nabi Karim, Page No. 34 of 65
State Vs. Raja & Ors.
of proving of specific DD entries, showing the presence of
PW-2/complainant Ct. Vijay Kumar and PW-6 Ct. Dinesh has
become doubtful and it has weakened the case of the prosecution.
46. PW-6 Ct. Dinesh has specifically deposed that while the
accused persons were running, two of them were having knives
in their hands and he had chased them. PW-2/complainant Ct.
Vijay Kumar has also deposed that he had chased the accused
persons but he had not deposed that any of the accused persons
was having any knife in his hand. Thus, there is material
contradiction in the testimonies of PW-2/complainant Ct. Vijay
Kumar and PW-6 Ct. Dinesh with respect to the same fact, which
raises serious doubts on the veracity of PW-2/complainant Ct.
Vijay Kumar and PW-6 Ct. Dinesh as well as on the prosecution
story.
47. PW-2/complainant Ct. Vijay Kumar deposed that on
23.05.2015 at about 05:52 pm, one call regarding quarrel was
received by ASI Hari Kishan and he along with him went to
Multani Dhanda and thereafter he proceeded to Satya Narain
Gali. He has not deposed about the specific time of alleged
incident. As per complaint, Ex. PW-2/A of PW-2/complainant Ct.
Vijay Kumar, he reached Satya Narain Gali at about 06:10 pm.
However, PW-6 Ct. Dinesh deposed that he reached at the spot of
incident at about 06:00 pm and he saw the accused persons
running and he had followed them upto 50-60 meters only. The
distance of 50-60 meters can be covered by running in a period
of less than one minute approximately. Thus, the alleged incident
FIR No. 272/2015, PS: Nabi Karim, Page No. 35 of 65
State Vs. Raja & Ors.
took place at about 06:00 pm and accused persons also ran away
from the spot of incident at that time. Thus, PW-2/complainant
Ct. Vijay Kumar had seen the accused persons running after
06:10 pm while PW-6 Ct. Dinesh had seen them running at about
06:00 pm which is not possible as both the witnesses have
deposed that they had seen the accused persons running from the
spot.
48. PW-7 Sh. Rajesh Kumar, owner of shop no. 5999 deposed
that on 23.05.2015 at about 06:00 pm, he heard a noise outside
his shop and thereafter he opened the gate of the shop and saw
that one person had fallen outside after striking with the gate of
shop. He also deposed that the said person was in injured
condition and was bleeding. He also deposed that he made call at
100 number from his landline number 65544267. As per the case
of the prosecution, DD No. 29A, Ex. PX-5 was registered on
23.05.2015 at 06:12 pm on receiving call from phone no.
65544267. Thus, DD No. 29A, Ex. PX-5 was registered at PS
Nabi Karim on the call of PW-7 Sh. Rajesh Kumar. As per the
contents of DD No. 29A, Ex. PX-5, one person having stab
injury had fallen while running near the caller. Thus, PW-7 Sh.
Rajesh Kumar had seen that the deceased came near his shop
while running in injured condition and he had fallen. PW-7 Sh.
Rajesh Kumar had not deposed that he had seen any of the
accused persons near his shop or near the deceased. He has also
not deposed about the presence of PW-2/complainant Ct. Vijay
Kumar and PW-6 Ct. Dinesh at the spot of incident or chasing of
FIR No. 272/2015, PS: Nabi Karim, Page No. 36 of 65
State Vs. Raja & Ors.
accused persons by them. This raises serious doubts about the
presence of PW-2/complainant Ct. Vijay Kumar and PW-6 Ct.
Dinesh at the spot of incident when the injured had fallen in front
of shop no. 5999 or at the time when call was made at 100
number by PW-7 Sh. Rajesh Kumar.
49. The present FIR has been registered on the complaint of
PW-2 Ct. Vijay Kumar. In his complaint, Ex. PW-2/A,
PW-2/complainant Ct. Vijay Kumar has stated that one person
was lying near the shutter of shop no. 5997. However, in his
examination-in-chief, PW-2/complainant Ct. Vijay Kumar has
deposed that the injured was lying in front of shop no. 5999.
Thus, there is material contradictions in two versions of
PW-2/complainant Ct. Vijay Kumar with respect to the spot
where the deceased was found in injured condition. This raises
serious doubts on the prosecution story.
50. After the arrest of accused persons, TIP of accused persons
namely Raja and Dharmender (since deceased) was got
conducted through PW-2/complainant Ct. Vijay Kumar.
Prosecution has proved TIP proceedings of accused Raja and
Dharmender (since deceased) exhibited as Ex. PX-1 & PX-2. As
per the TIP proceedings of accused Dharmender, Ex. PX-2,
PW-2/complainant Ct. Vijay Kumar failed to identify accused
Dharmender (since deceased) and the Ld. MM who conducted
the TIP proceedings has specifically mentioned the said fact in
the TIP proceedings. PW-2/complainant Ct. Vijay Kumar in his
examination-in-chief deposed that on 27.05.2015, he participated
FIR No. 272/2015, PS: Nabi Karim, Page No. 37 of 65
State Vs. Raja & Ors.
in the judicial TIP and identified accused Raja but could not
identify accused Dharmender as it was the first time he
participated in the TIP proceedings and got perplexed. The reason
given by PW-2/complainant Ct. Vijay Kumar for not identifying
accused Dharmender in TIP proceedings is vague and evasive in
nature as on the same day, he had identified accused Raja in the
TIP proceedings. The purpose of TIP proceedings is to fix the
identity of accused persons under judicial supervision.
Identification of accused Dharmender in the court after failing of
TIP proceedings has weakened the case of the prosecution and it
also raises serious doubts as to whether accused Dharmender was
involved in the incident or not. Moreover, TIP of accused persons
was not got conducted through PW-6 Ct. Dinesh nor accused
persons were arrested in presence of PW-6 Ct. Dinesh. After the
incident, accused persons were identified by PW-6 Ct. Dinesh in
the court itself without fixing their identity through him during
the investigation and this has weakened the case of the
prosecution.
51. As per the case of prosecution, PW-5 Sh. Ajay and PW-8
Sh. Vicky had seen the alleged incident and due to fear, they ran
away from the spot. However, PW-5 Sh. Ajay and PW-8 Sh.
Vicky have turned hostile and have not supported the case of
prosecution. PW-5 Sh. Ajay deposed that he along with Raja was
sitting near his house and at that time Vicky came there and told
them that Sheeshpal had been caught by some persons and they
were quarreling with Sheeshpal. He also deposed that Raja made
FIR No. 272/2015, PS: Nabi Karim, Page No. 38 of 65
State Vs. Raja & Ors.
a telephone call to Sheeshpal and the phone call on the mobile of
Sheeshpal was attended by some other person who told that
Sheeshpal had met with an accident and he had been taken to
hospital. Similarly, PW-8 Sh. Vicky deposed that on 23.05.2015
at about 01:00 pm, he met with Ajay, Sheeshpal, Raja and some
other boys at Nabi Karim and when they reached in gali of Sadar
Bazar, he, Ajay and Sheeshpal separated from other boys and
thereafter Sheeshpal went in left direction whereas he and Ajay
went in right direction. He further deposed that at about 11:00
pm, two police officials came to his house and took him to the
Police Station. PW-5 Sh. Ajay and PW-8 Sh. Vicky have
specifically denied their presence at the spot of incident at the
time of incident. As per testimony of PW-5 Sh. Ajay, accused
Raja was with him at the time of commission of offence. Nothing
incriminating came on record against the accused persons in the
cross-examination of PW-5 Sh. Ajay and PW-8 Sh. Vicky by the
Ld. Addl. PP for the State. The testimonies of PW-5 Sh. Ajay and
PW-8 Sh. Vicky have created serious doubts on the prosecution
story.
52. The prosecution has also relied upon the dying declaration
made by deceased Sheesh Pal to PW-2/complainant Ct. Vijay
Kumar. The victim, Sh. Sheeshpal in the present case could not
be examined as prosecution witness as he expired on his way to
the hospital and was declared brought dead at the time of
preparation of MLC, exhibited as Ex. PW-9/A.
PW-2/complainant Ct. Vijay Kumar deposed that he took injured
FIR No. 272/2015, PS: Nabi Karim, Page No. 39 of 65
State Vs. Raja & Ors.
Sheeshpal to the hospital and on the way, injured told him that he
had been caused injuries by Dharmender, Sunny and his
associates. However, deceased Sheeshpal did not give the
complete particulars of Dharmender (since deceased) and Sunny
and there may be a number of persons with the said names.
PW-2/complainant Ct. Vijay Kumar deposed that he already
knew accused Sunny @ Suresh being the known criminal of the
area. The question before this court is that as to whether the
version given by deceased Sheeshpal to PW-2/complainant Ct.
Vijay Kumar can be considered as dying declaration and if same
is considered as dying declaration, whether the same is reliable
and admissible as per the established principles of law. Section
32 of Indian Evidence Act deals with dying declaration which
reads as under :
“Section 32. Cases in which statement of relevant
fact by person who is dead or cannot be found,
etc., is relevant – Statements, written or verbal, of
relevant facts made by a person who is dead, or
who cannot be found, or who has become
incapable of giving evidence, or whose
attendance cannot be procured without an amount
of delay or expense which, under the
circumstances of the case, appears to the Court
unreasonable, are themselves relevant facts in the
following cases : –
(1) when it relates to cause of death – When the
statement is made by a person as to the cause of
his death, or as to any of the circumstances of the
transaction which resulted in his death, in cases in
which the cause of that person’s death comes into
question.
Such statements are relevant whether the
FIR No. 272/2015, PS: Nabi Karim, Page No. 40 of 65
State Vs. Raja & Ors.
person who made them was or was not, at the
time when they were made, under expectation of
death, and whatever may be the nature of the
proceeding in which the cause of his death comes
into question.
(2) xxxxxxxxx
(3) xxxxxxxx
53. Section 32 of the Indian Evidence Act 1872 deals with two
kinds of statements i.e. (i) statement by a person as to cause of
his death and (ii) statement by a person as to any of the
circumstances of the transaction which resulted into his death.
The deceased Sh. Sheeshpal in the present case sustained injuries
in the alleged incident due to which the he expired on his way to
the hospital on 23.05.2015. The present case is duly covered
under both the situations i.e. the injuries sustained in the incident
are the cause of death as well as indicate the circumstances which
resulted in the death of deceased Sh. Sheeshpal.
54. The admissibility of the oral version of deceased Sh.
Sheeshpal is to be seen in the light of law laid down by the
Hon’ble Supreme Court of India. Hon’ble Supreme Court of India
in landmark judgment of ‘Mukesh and others Vs. State for NCT
of Delhi and others cited as AIR 2017 SC 2161′ has observed as
under :
“173. A dying declaration is an important
piece of evidence which, if found veracious
and voluntary by the court, could be the sole
basis for conviction. If a dying declaration is
found to be voluntary and made in fit mental
condition, it can be relied upon even without
any corroboration. However, the court, whileFIR No. 272/2015, PS: Nabi Karim, Page No. 41 of 65
State Vs. Raja & Ors.
admitting a dying declaration, must be
vigilant towards the need for ‘Compos
Mentis Certificate’ from a doctor as well as
the absence of any kind of tutoring. In
Laxman v. State of Maharashtra
MANU/SC/0707/2002 : (2002) 6 SCC 710,
the law relating to dying declaration was
succinctly put in the following words:
3. … A dying declaration can be oral or in
writing and any adequate method of
communication whether by words or by
signs or otherwise will suffice provided the
indication is positive and definite. In most
cases, however, such statements are made
orally before death ensues and is reduced to
writing by someone like a Magistrate or a
doctor or a police officer. When it is
recorded, no oath is necessary nor is the
presence of a Magistrate absolutely
necessary, although to assure authenticity it
is usual to call a Magistrate, if available for
recording the statement of a man about to
die. There is no requirement of law that a
dying declaration must necessarily be made
to a Magistrate and when such statement is
recorded by a Magistrate there is no
specified statutory form for such recording.
Consequently, what evidential value or
weight has to be attached to such statement
necessarily depends on the facts and
circumstances of each particular case. What
is essentially required is that the person who
records a dying declaration must be satisfied
that the deceased was in a fit state of mind.
Where it is proved by the testimony of the
Magistrate that the declarant was fit to make
the statement even without examination by
the doctor the declaration can be acted upon
provided the court ultimately holds the same
to be voluntary and truthful. A certification
FIR No. 272/2015, PS: Nabi Karim, Page No. 42 of 65
State Vs. Raja & Ors.
by the doctor is essentially a rule of caution
and therefore the voluntary and truthful
nature of the declaration can be established
otherwise.
174. The legal position regarding the
admissibility of a dying declaration is settled
by this Court in several judgments. This
Court, in Atbir v. Government of NCT of
Delhi MANU/SC/0576/2010 : (2010) 9 SCC
1, taking into consideration the earlier
judgment of this Court in Paniben v. State of
Gujarat MANU/SC/0346/1992 : (1992) 2
SCC 474 and another judgment of this Court
in Panneerselvam v. State of Tamil Nadu
MANU/SC/7726/2008 : (2008) 17 SCC 190,
has exhaustively laid down the following
guidelines with respect to the admissibility of
dying declaration:
(i) Dying declaration can be the sole basis of
conviction if it inspires the full confidence of
the court.
(ii) The court should be satisfied that the
deceased was in a fit state of mind at the time
of making the statement and that it was not
the result of tutoring, prompting or
imagination.
(iii) Where the court is satisfied that the
declaration is true and voluntary, it can base
its conviction without any further
corroboration.
(iv) It cannot be laid down as an absolute
rule of law that the dying declaration cannot
form the sole basis of conviction unless it is
corroborated. The rule requiring
corroboration is merely a rule of prudence.
FIR No. 272/2015, PS: Nabi Karim, Page No. 43 of 65
State Vs. Raja & Ors.
(v) Where the dying declaration is
suspicious, it should not be acted upon
without corroborative evidence.
(vi) A dying declaration which suffers from
infirmity such as the deceased was
unconscious and could never make any
statement cannot form the basis of
conviction.
(vii) Merely because a dying declaration
does not contain all the details as to the
occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be
discarded.
(ix) When the eyewitness affirms that the
deceased was not in a fit and conscious state
to make the dying declaration, medical
opinion cannot prevail.
(x) If after careful scrutiny, the court is
satisfied that it is true and free from any
effort to induce the deceased to make a false
statement and if it is coherent and consistent,
there shall be no legal impediment to make it
the basis of conviction, even if there is no
corroboration.
175. It is well settled that dying declaration
can form the sole basis of conviction
provided that it is free from infirmities and
satisfies various other tests. In a case where
there are more than one dying declaration, if
some inconsistencies are noticed between
one and the other, the court has to examine
the nature of inconsistencies as to whether
they are material or not. The court has to
FIR No. 272/2015, PS: Nabi Karim, Page No. 44 of 65
State Vs. Raja & Ors.
examine the contents of the dying
declarations in the light of the various
surrounding facts and circumstances. In
Shudhakar v. State of Madhya Pradesh
MANU/SC/0590/2012 : (2012) 7 SCC 569,
this Court, after referring to the landmark
decisions in Laxman (supra) and Chirra
Shivraj v. State of Andhra Pradesh
MANU/SC/0992/2010 : (2010) 14 SCC 444,
has dealt with the issues arising out of
multiple dying declarations and has gone to
the extent of declining the first dying
declaration and accepting the subsequent
dying declarations. The Court found that the
first dying declaration was not voluntary and
not made by free will of the deceased; and
the second and third dying declarations were
voluntary and duly corroborated by other
prosecution witnesses and medical evidence.
In the said case, the accused was married to
the deceased whom he set ablaze by pouring
kerosene in the matrimonial house itself. The
smoke arising from the house attracted the
neighbours who rushed the victim to the
hospital where she recorded three statements
before dying. In her first statement given to
the Naib Tehsildar, she did not implicate her
husband, but in the second and third
statements, which were also recorded on the
same day, she clearly stated that the accused
poured kerosene on her and set her on fire.
The accused was convicted Under Section
302 Indian Penal Code. In this regard, the
Court made the following observations:
21. Having referred to the law relating to
dying declaration, now we may examine the
issue that in cases involving multiple dying
declarations made by the deceased, which of
the various dying declarations should be
believed by the court and what are theFIR No. 272/2015, PS: Nabi Karim, Page No. 45 of 65
State Vs. Raja & Ors.
principles governing such determination.
This becomes important where the multiple
dying declarations made by the deceased are
either contradictory or are at variance with
each other to a large extent. The test of
common prudence would be to first examine
which of the dying declarations is
corroborated by other prosecution evidence.
Further, the attendant circumstances, the
condition of the deceased at the relevant
time, the medical evidence, the voluntariness
and genuineness of the statement made by
the deceased, physical and mental fitness of
the deceased and possibility of the deceased
being tutored are some of the factors which
would guide the exercise of judicial
discretion by the court in such matters”.
55. The first and foremost condition of the dying declaration is
that the person making the dying declaration must be in fit state
of mind at the time of making such statement. In the present
case, the deceased was brought dead to the hospital and hence the
deceased could not be examined by the doctor with respect to the
fitness of state of mind at the time of making statement to
PW-2/complainant Ct. Vijay Kumar. Thus, the first and foremost
condition of relying the dying declaration is missing in the
present case and hence in absence of fitness certificate, it cannot
be ascertained whether the deceased was fit state of mind at the
time of making dying declaration to PW-2/complainant Ct. Vijay
Kumar. Thus, in absence of certificate with respect to fitness of
mind, the dying declaration in the present case cannot be relied
upon. Moreover, deceased Sheeshpal had not stated about the
parentage and addresses of Dharmender & Sunny to fix their
FIR No. 272/2015, PS: Nabi Karim, Page No. 46 of 65
State Vs. Raja & Ors.
identity. Thus, the dying declaration given by deceased cannot be
read in favour of prosecution.
56. The alleged incident took place at a public place i.e. in the
market during evening time. PCR Form, Ex. PX-7 reads as
follows:-
“Public ne bataya ki chaar boys jhagra karte huye aaye
the and theen boys ne ek boy ko kuchh maar diya aur bhaag
gaye”.
Thus, as per contents of PCR Form, Ex. PX-7, the public
persons were present at the spot of incident and they had
witnessed the alleged incident. PW-2/complainant Ct. Vijay
Kumar as well as PW-6 Ct. Dinesh have deposed that some
unknown persons had told them that quarrel was going at the spot
of incident. PW-18/IO ACP Dhirender Sharma has not joined any
independent witness nor he served any notice under Sec. 160
Cr.PC to the public persons who might have refused to join the
investigation. The independent public persons could have
corroborated the versions of PW-2/complainant Ct. Vijay Kumar
and PW-6 Ct. Dinesh. Moreover, IO has not collected any CCTV
footage in which the alleged incident might have been covered or
the accused persons might have been seen running from the spot
of incident. Non-joining of any independent eyewitness in the
investigation despite availability and non-collection of CCTV
footage of the area has weakened the case of prosecution.
57. Ld. counsel for accused persons have argued that
prosecution has failed to prove the motive of commission of
FIR No. 272/2015, PS: Nabi Karim, Page No. 47 of 65
State Vs. Raja & Ors.
offence and the benefit of same should be given to accused
persons. Per contra, Ld. Addl. PP for the State has argued that
PW-1 Smt. Jyoti and PW-4 Sh. Priyanshu Khanagwal have
explained the motive of commission of offence and hence motive
for commission of offence has been duly proved by the
prosecution.
58. Motive is relevant under Sec. 8 of Indian Evidence Act.
Motive is the force that moves a man to do a particular work.
Generally there can be no action without any motive. Under
Section 8 of Evidence Act, several factors including preparation,
previous threat, previous altercation, previous litigation between
the accused and the victim becomes relevant. The mere existence
of motive is by itself is not an incriminating circumstance.
Motive cannot be a substitute of proof, however, it is an
corroborating factor in proving the case of the prosecution. The
motive for the commission of offence is of vital importance in a
criminal trial and in cases based on circumstantial evidence
motive itself will be a circumstance which the Court has to
consider deeply. The existence of motive which operates in the
mind of perpetrator may not be known to others and hence it has
to be inferred from the facts and circumstances of this case.
59. Hon’ble Supreme Court of India in judgment titled as Sheo
Shankar Singh Vs. State of Jharkhand and Anr cited as (2011) 3
SCC 654 observed as under:-
“15. The legal position regarding proof of motive as
an essential requirement for bringing home the guiltFIR No. 272/2015, PS: Nabi Karim, Page No. 48 of 65
State Vs. Raja & Ors.
of accused is fairly well settle by a long line of
decision of this Court. These decisions have made a
clear distinction between cases where the
prosecution relies upon the circumstantial evidence
on one hand and those were relies upon the
testimonies of the eye witnesses on the other. In the
former category of cases proof of motive is given
the importance it deserves, for proof of motive itself
constitutes a link in the chain of circumstances upon
which the prosecution may rely. Proof of motive,
however, recedes into background in cases where
the prosecution relies upon and eye witness account
of the occurrence. That is because if the Court upon
a proper appraisal of the deposition of the eye
witnesses comes to the conclusion that the version
given by them is credible, absence of evidence to
prove the motive is rendered inconsequential.
Conversely, even if the prosecution succeeds in
establishing a strong motive for the commission of
the offence, but the evidence of the eye witnesses is
found unreliable or unworthy of credit, existence of
motive does not by itself provide a safe basis for
convicting the accused. That does not, however,
mean that proof of motive even in a case which rests
on an eye witness account does not lend strength to
the prosecution case or fortify the Court in its
ultimate conclusion proof of motive in such a
situation certainly helps the prosecution and
supports the eye witnesses.”
60. Hon’ble Supreme Court of India in Judgment tilted as
Raghubir Singh Vs. State of Punjab cited as (1996) 9 SCC 233
observed as under:-
FIR No. 272/2015, PS: Nabi Karim, Page No. 49 of 65
State Vs. Raja & Ors.
“7…. The motives may be minor but nonetheless
they did provide occasion for attack on the
deceased by the appellants. That apart, even in
absence of motive, the guilt of culprit can be
established in a given case if the other evidence on
record is trustworthy in the absence of proof of
motive has never been considered as fatal to the
prosecution case where the ocular evidence is found
reliable”.
61. As per the case of the prosecution, a quarrel had taken
place between deceased Sheeshpal and accused Dharmender
(since deceased) and due to the said reason, accused Dharmender
(since deceased) along with co-accused persons committed
murder of deceased Sheeshpal. PW-1 Ms. Jyoti @ Prerna who
was wife of deceased deposed that a quarrel took place between
deceased Sheeshpal and accused Dharmender (since deceased),
2-3 days prior to 22.05.2015 and this fact was told to her by
deceased on the evening of 22.05.2015. She further deposed that
due to the said reason, deceased had the apprehension of his life
from Manohar, who was uncle of Dharmender. Thus, PW-1 Smt.
Jyoti @ Prerna is not the witness of the alleged quarrel which
might have taken place between deceased and accused
Dharmender. PW-1 Smt. Jyoti @ Prerna has not explained the
reason of said quarrel. PW-1 Smt. Jyoti @ Prerna in her cross-
examination has specifically deposed that no complaint was
made by her and her deceased husband against the danger of life
FIR No. 272/2015, PS: Nabi Karim, Page No. 50 of 65
State Vs. Raja & Ors.
to deceased from accused Dharmender. Prosecution has not
examined any independent witness, who might have seen the said
quarrel. In these circumstances, the prosecution has failed to
prove the factum of any quarrel and enmity between deceased
and accused Dharmender (since deceased).
62. PW-4 Sh. Priyanshu Khanagwal, who is brother of PW-1
Smt. Jyoti @ Prerna deposed that after the incident on
23.05.2015, his sister PW-1 Smt. Jyoti @ Prerna told him that 8-
10 days back, a quarrel had taken place between deceased
Sheeshpal and accused Raja. Thus, there are material
contradictions in the testimonies of PW-1 Smt. Jyoti @ Prerna
and PW-4 Sh. Priyanshu Khanagwal with respect to the probable
day of quarrel as well as the person with whom the alleged
quarrel might have taken place as PW-1 Smt. Jyoti @ Prerna and
PW-4 Sh. Priyanshu Khanagwal have named different persons
and they have stated different days with respect to the alleged
quarrel. In absence of any injury on the person of deceased
Sheeshpal in the alleged quarrel which took place 2-3 days back
or 8-10 days back with accused Dharmender or accused Raja, not
informing the police regarding the alleged quarrel, apprehension
of life and non-examining of any independent witness with
respect to the alleged quarrel and non-production of any other
evidence, the prosecution has failed to prove the motive for the
commission of offence which is relevant under Sec. 8 of The
Indian Evidence Act, 1872.
FIR No. 272/2015, PS: Nabi Karim, Page No. 51 of 65
State Vs. Raja & Ors.
63. PW-1 Smt. Jyoti @ Prerna deposed that on 22.05.2015,
deceased Sheeshpal received phone call from accused Raja but
deceased refused to go as he was busy in the Puja of his shop.
She further deposed that on 23.05.2015, at about 11:00 am,
accused Raja called deceased on his mobile phone and after
attending the said call, deceased left the house. As per the case of
prosecution, the alleged incident took place at about 06:00 pm on
23.05.2015 i.e. after about seven hours of his leaving the house.
No evidence has been produced by the prosecution to show that
deceased Sheeshpal was in company of accused Raja and his
associates from 11:00 am till 06:00 pm and he was called by
accused Raja with intention to kill him.
64. PW-1 Smt. Jyoti @ Prerna deposed that on 22.05.2015, her
husband deceased Sheeshpal got phone call from accused Raja
but he refused to go on that day. She further deposed that on
23.05.2015 at 11:00 am, deceased Sheeshpal again got phone call
from accused Raja. PW-16 Sh. Pawan Singh, Nodal Officer,
Vodafone Idea Ltd. has proved the CDR & CAF of mobile phone
no. 9873602086 issued in name of Sh. Sunil Kumar, S/o Sh.
Lakhi Chand and of mobile phone no. 8750533839 issued in
name of deceased Sheeshpal S/o Sh. Gulzari Lal. None of the
prosecution witness has deposed as to how the CDR & CAF of
mobile phone no. 9873602086 issued in name of Sunil Kumar is
relevant in the present case nor Sh. Sunil Kumar has been
examined as PW to show as to who was using the mobile phone
issued in his name. Ld. Addl. PP for the State has also submitted
FIR No. 272/2015, PS: Nabi Karim, Page No. 52 of 65
State Vs. Raja & Ors.
that there is nothing on record to show as to how the CDR and
CAF of mobile phone no. 9873602086 issued in name of Sunil
Kumar is relevant in the present case. IO has not collected the
CDR and CAF of mobile phone number issued in name of
accused Raja or of any mobile phone number through which he
had made call to deceased Sheeshpal on 22.05.2015 and
23.05.2015. Thus, the prosecution has failed to prove the fact that
any phone call was made by accused Raja to deceased Sheeshpal
on 22.05.2015 and on 23.05.2015 and after the said call,
deceased Sheeshpal had left his house to meet accused Raja. This
raises serious doubts on the prosecution story.
65. As per prosecution story, one blood stained knife was
recovered from possession of accused Dinesh @ Sunny and two
blood stained knives were recovered from possession of accused
Dharmender @ Sultan (since deceased). The recovery of the case
property has to be proved by the prosecution beyond reasonable
doubt in compliance with the law laid down in this regard by
Hon’ble Supreme Court of India. Section 27 of Indian Evidence
Act is an exception to Section 25 and Section 26 of the said Act.
Section 27 is based on the doctrine of confirmation by
subsequent events. The principle under Sec. 27 of Indian
Evidence Act is based on the principle that if any fact is
discovered on the basis of disclosure statement of accused, the
discovery of said fact is a guarantee that the information given by
the accused in his disclosure statement is true. Such information
may be confessional or non-inculpating in nature but if any new
FIR No. 272/2015, PS: Nabi Karim, Page No. 53 of 65
State Vs. Raja & Ors.
fact is discovered from such information it will be considered as
a reliable information.
66. The fact discovered on the basis of disclosure of statement
of accused must be relevant facts. Such information must be
given by the person who is accused of an offence and the
recovery of article or discovery of fact must be based upon the
information given by such accused.
67. Hon’ble High Court of Delhi in Judgment titled as
Mohammad Burhan Vs. Directorate of Revenue Intelligence,
cited as ‘MANU/DE/3131/2017’ has held that:- joining of
“independent public witness is not mere a
formality; it is a vital safeguard to avoid false
implication of individual. In number of cases
either no independent public witnesses are
associated on the pretext that none of them is
available; in some cases only passerbyes are
requested to join the investigation. Non-
examination of independent public witness in the
instant case is serious flaw and adverse inference
is to be drawn against the prosecution for
withholding them.
68. Similarly Hon’ble Supreme Court of India in Judgment
titled as Ramanand@Nand Lal Bharti Vs. State of Uttar Pradesh
cited as 2022 SCC online SC 1396 has observed as under:-“52.
FIR No. 272/2015, PS: Nabi Karim, Page No. 54 of 65
State Vs. Raja & Ors.
Section 27 of the Evidence Act, 1872 reads thus:-
’27 How much of information received from the
accused may be proved-Provided that, when any fact
is deposed to as discovered in consequence of
information, received from a person accused of any
offence, in the custody of a police officer, so much of
such information, whether it amounts to a confession
or not as relates distinctly to the fact thereby
discovered may be proved.
If, it is say of the investigating officer that the
accused appellant while in custody on his own free
will and volition made a statement that he would
lead to the place where he had hidden the weapon of
offence along with his blood stained clothes then the
first thing that the investigating officer should have
done was to call for two independent witnesses at the
police station itself. Once the two independent
witnesses arrive at the police station thereafter in
their presence the accused should be asked to make
an appropriate statement as he may desire, in regard
to pointing out the place where he is said to have
hidden the weapon of offence. When the accused
while in custody makes such statement before the
two independent witnesses (panch witnesses) the
exact statement or rather the exact words uttered byFIR No. 272/2015, PS: Nabi Karim, Page No. 55 of 65
State Vs. Raja & Ors.
the accused should be incorporated in the first part
of the panchnama that the investigating officer may
draw in accordance with law. This first part of the
panchnama that the investigating officer may draw in
accordance with law. This first part of the
panchnama for the purpose of Section 27 of the
Evidence Act is always drawn at the police station in
the presence of that independent witnesses so as to
lend credence that a particular statement was made
by the accused expressing his willingness on his own
free will and volition to point out the place where the
weapon of offence or any other article used in the
commission of the offence had been hidden. Once the
first part of the panchnama is completed thereafter
the police party along with the accused and the two
particular place anything like the weapon of offence
of blood stained clothes or any other article is
discovered then the part of the entire process expects
the investigating officer then it is clear that the same
is deficient in all the aforesaid relevant aspects of the
matter.”
69. PW-11 SI Sandeep Godara deposed that on 24.05.2015 at
about 07:45 am, he received secret information regarding the
accused persons and thereafter he constituted a raiding party and
apprehended accused persons namely Dharmender @ Sultan and
Dinesh @ Sunny. He also deposed that one blood stained knife
FIR No. 272/2015, PS: Nabi Karim, Page No. 56 of 65
State Vs. Raja & Ors.
was recovered from possession of accused Dinesh @ Sunny
while two blood stained knives were recovered from possession
of accused Dharmender @ Sultan which were seized by him vide
seizure memo Ex. PW-11/B & Ex. PW-11/E. PW-11 SI Sandeep
Godara did not join any independent public person at the time of
recovery of blood stained knives Ex. P-11/1 to Ex. P-11/3 and the
seizure memos do not bear signature of any independent witness
despite the fact that the secret information was received by him
well in advance. PW-11 SI Sandeep Godara had also not served
any notice to the public persons who might have refused to join
the investigation. Accused persons have taken the defence that
the knives Ex. P-11/1 to Ex. P-11/3 have been planted upon them
and nothing was recovered from their possession. Non-joining of
any independent public person at the the recovery of knives and
the defence taken by accused persons has put a serious dent on
the prosecution story. Applying the law laid down by the Hon’ble
Supreme Court of India in Mohammad Burhan (Supra) and
Ramanand@Nand Lal Bharti (Supra), this Court is of considered
opinion that due to non-joining of independent public person at
the time of recovery of knives, the recovery of knives Ex. P-11/1
to Ex. P-11/3 has become doubtful. Thus, the prosecution has
failed to prove the recovery of knives Ex. P-11/1 to Ex. P-11/3
from possession of accused persons namely Dharmender @
Sultan and Dinesh @ Sunny beyond reasonable doubt.
70. PW-18 IO/ACP Dhirender Sharma deposed that on
23.05.2015, a call regarding quarrel of few people at Shankar
FIR No. 272/2015, PS: Nabi Karim, Page No. 57 of 65
State Vs. Raja & Ors.
Market was received at PS Nabi Karim and the said call was
entrusted to ASI Virender Singh. No DD entry with respect to
any call regarding the quarrel among few people has been placed
on record by the IO for the reasons best known to him. PW-15
Retd. SI Virender deposed that on 23.05.2015, a call regarding
stabbing vide DD No. 29A, Ex. PX-5 was received by him and
thereafter he along with Ct. Pushpender reached at the spot i.e.
gali opposite to 5999/2, Shankar Market. As per the contents of
DD No. 29A, Ex. PX-5, one person who had sustained knife stab
injury came running and fell down near the caller. DD No. 29A,
Ex. PX-5 does not talk about any quarrel among few people.
Thus, PW-18 IO/ACP Dhirender Sharma is not even aware about
the call received at the PS and he has deposed before the court in
a casual manner, which has weakened the case of prosecution.
71. PW-19 Dr. Garima Chaudhary has proved the FSL/DNA
report, Ex. PW-19/A. As per report, Ex. PW-19/A, the blood of
deceased Sheeshpal was found on the knives recovered from
possession of accused persons namely Dharmender @ Sultan and
Dinesh @ Sunny but blood could not be detected on the clothes
of accused persons. Since the recovery of knives Ex. P-11/1 to
Ex. P-11/3 has become doubtful, the DNA report, Ex. PW-19/A
regarding the matching of blood of deceased with the blood
found on the knives is of no consequences, as per the law laid
down by Hon’ble High Court of Delhi in judgment titled as
‘Pitambar Bishwakarma Vs. State of NCT of Delhi, Crl. Appeal
No. 639/2023, decided on 10.01.2025’.
FIR No. 272/2015, PS: Nabi Karim, Page No. 58 of 65
State Vs. Raja & Ors.
72. PW-10 Dr. Kuldeep Panchal has proved the postmortem
report of deceased Sheeshpal, Ex. PW-10/A. PW-10 Dr. Kuldeep
Panchal deposed that all the injuries were ante-mortem in nature,
fresh in duration, homicidal in manner and injury no. 2 was
sufficient to cause death in ordinary course of nature. PW-10 Dr.
Kuldeep Panchal also proved his subsequent opinion report
regarding the weapon of offence, exhibited as Ex. PW-10/C. He
further deposed that injuries no. 1, 2 & 4 could be caused by
weapon found in parcel no. B and injuries no. 1, 2 & 3 could not
have been caused by weapon found in parcel no. C. Since the
recovery of weapon of offence in the present case has become
doubtful, the accused persons cannot be connected with the
injuries caused by the said knives.
73. To prove the prosecution case, the testimony of the
prosecution witnesses must be reliable. It is not the quantity but
the quality of the testimony of the witness that helps a court in
arriving at a conclusion in any case. The test in this regard is that
the evidence adduced by the parties must have a ring of truth. In
a criminal trial, the prosecution has to prove the case beyond
reasonable doubt and it is possible only when the testimony of
prosecution witnesses is cogent, trustworthy and credible. To
secure a conviction of accused, the testimony of the prosecution
witness must be of sterling quality.
74. In case titled as ‘Rai Sandeep @ Deepu Vs. State (NCT
of Delhi), (2012) 8 SCC 21′, it is held that :-
FIR No. 272/2015, PS: Nabi Karim, Page No. 59 of 65
State Vs. Raja & Ors.
“22. In our considered opinion, the “sterling
witness” should be of a very high quality and
caliber whose version should, therefore, be
unassailable. The court considering the
version of such witness should be in a
position to accept it for its face value without
any hesitation. To test the quality of such a
witness, the status of the witness would be
immaterial and what would be relevant is the
truthfulness of the statement made by such a
witness. What would be more relevant would
be the consistency of the statement right from
the starting point till the end, namely, at the
time when the witness makes the initial
statement and ultimately before the court. It
should be natural and consistent with the
case of the prosecution qua the accused.
There should not be any prevarication in the
version of such a witness. The witness should
be in a position to withstand the cross-
examination of any length and howsoever
strenuous it may be and under no
circumstances should given room for any
doubt as to the factum of the occurrence, the
persons involved, as well as the sequence of
it. Such a version should have corelation withFIR No. 272/2015, PS: Nabi Karim, Page No. 60 of 65
State Vs. Raja & Ors.
each and every one of other supporting
material such as the recoveries made, the
weapons used, the manner of offence
committed, the scientific evidence and the
expert opinion. The said version should
consistently match with the version of very
other witness. It can even be stated that it
should be akin to the test applied in the case
of circumstantial evidence where there should
not be any missing link in the chain of
circumstances to hold the accused guilty of
the offence alleged against him. Only, if the
version of such a witness qualifies the above
test as well as all other such similar tests to
be applied, can it be held that such a witness
can be called as a “sterling witness’ whose
version can be accepted by the court without
any corroboration and based on which the
guilty can be punished. To be more precise,
the version of the said witness on the core
spectrum of the crime should remain intact
while all other attendant materials, namely,
oral, documentary and material objects
should match the said version in material
particulars in order to enable the court trying
the offence to rely on the core version to sieveFIR No. 272/2015, PS: Nabi Karim, Page No. 61 of 65
State Vs. Raja & Ors.
the other supporting materials for holding the
offender guilty of the charge alleged.”
75. Similarly, in case of Ramdas Vs. State of Maharashtra,
(2007) SCC 170, it is held that :
“23. It is no doubt true that the conviction in a
case of rape can be based solely on the testimony
of the prosecutrix, but that can be done in a case
where the court is convinced about the truthfulness
of the prosecutrix and there exist no circumstances
with cast of shadow of doubt over her veracity. It
the evidence of the prosecutrix is of such quality
that may be sufficient to sustain an order of
conviction solely on the basis of her testimony. In
the instant case we do not fine her evidence to be
of such quality.”
76. Thus, from the above said judgments, it is clear that the
version of the witness should be natural one and it must
corroborate the prosecution case. Such version must match with
the testimony of other prosecution witnesses. It should be of such
a quality that there should not be any shadow of doubt upon it.
77. Due to turning of hostile of PW-5 Sh. Ajay and PW-8 Sh.
Vicky with respect to role of accused persons and material
contradictions in the testimonies of PW-2/complainant Ct. Vijay
Kumar and PW-6 Ct. Dinesh, failing of TIP of accused
Dharmender @ Sultan by PW-2/complainant Ct. Vijay Kumar
FIR No. 272/2015, PS: Nabi Karim, Page No. 62 of 65
State Vs. Raja & Ors.
and non-seeing of commission of offence by PW-2/complainant
Ct. Vijay Kumar and PW-6 Ct. Dinesh serious doubts have been
created upon the prosecution story. The versions of PW-2/
complainant PW-2/complainant Ct. Vijay Kumar and PW-6 Ct.
Dinesh are not natural one. The things appears to have not
happened in the manner these have been projected. In the light of
aforesaid discussion, this court is of the considered opinion that
the testimonies of PW-2/complainant Ct. Vijay Kumar and PW-6
Ct. Dinesh are not clear, cogent, credible and trustworthy and
same are not corroborated by other material evidence. The
testimonies of PW-2/complainant Ct. Vijay Kumar and PW-6 Ct.
Dinesh in the present case cannot be said to be of sterling quality
to secure the conviction of the accused persons.
78. It is established principle of law that if two views are
possible, the view favourable to the accused must be accepted.
The benefit of doubt must always go to the accused as the
prosecution has to prove the case beyond reasonable doubt.
79. The Hon’ble Apex court in Rang Bahadur Singh Vs. State
of U.P. reported in AIR 2000 SC 1209 has held as follows:
“The timetested rule in that acquittal of a
guilty person should be preferred to conviction of
an innocent person. Unless the prosecution
establishes the guilt of the accused beyond
reasonable doubt a conviction cannot be passed
on the accused. A criminal court cannot afford to
deprive liberty of the appellants, lifelong liberty,FIR No. 272/2015, PS: Nabi Karim, Page No. 63 of 65
State Vs. Raja & Ors.
without having at least a reasonable level of
certainty that the appellants were the real
culprits.”
80. In yet another decision in State of U.P. Vs. Ram Veer
Singh and Another reported in 2007(6) Supreme 164 the Hon’ble
Apex Court has held as follows:
“The golden thread which runs through the web
of administration of justice in criminal cases is
that if two view are possible on the evidence
adduced in the case, one pointing to the guilt of
the accused and the other to his innocence, the
view which is favourable to the accused should
be adopted. The paramount consideration of the
Court is to ensure that miscarriage of justice is
prevented. A miscarriage of justice which may
arise from acquittal of the guilty is no less than
from the conviction of an innocent. In a case
where admissible evidence is ignored, a duty is
cast upon the appellate Court to reappreciate
the evidence where the accused has been
acquitted, for the purpose of ascertaining as to
whether any of the accused really committed any
offence or not.”
81. In the present case, due to turning of hostile of PW-5 Sh.
Ajay and PW-8 Sh. Vicky with respect to role of accused
FIR No. 272/2015, PS: Nabi Karim, Page No. 64 of 65
State Vs. Raja & Ors.
persons, material contradictions in the testimonies of PW-2/
complainant Ct. Vijay Kumar and PW-6 Ct. Dinesh, failing of
TIP of accused Dharmender @ Sultan by PW-2/complainant Ct.
Vijay Kumar, not conducting of TIP of accused persons through
PW-6 Ct. Dinesh, non-seeing of commission of offence by
PW-2/complainant Ct. Vijay Kumar and PW-6 Ct. Dinesh, non-
examination of any independent witness, doubtful recovery of
weapons of offence and non-proving of motive of commission of
offence, serious doubts have been created on the prosecution
story and two views are possible in this case and hence the
benefit of the same must go to the accused persons.
82. For the reasons stated above, this court is of the considered
opinion that the prosecution has failed to prove the ingredients of
offence punishable under Section 302/34 IPC, against all the
three accused persons beyond reasonable doubt.
83. Accordingly in view of the aforesaid discussion, accused
persons namely Raja, Dinesh @ Sunny @ Suresh and Ricky @
Budhram are hereby acquitted for offence punishable under
Section 302/34 IPC.
84. File be consigned to Record Room after due compliance.
Digitally signed
VIRENDER by VIRENDER
Announced in the open court KUMAR
KUMAR
KHARTA
on 31st day of May, 2025 KHARTA Date: 2025.05.31
16:07:31 +0530
(Virender Kumar Kharta)
ASJ/FTC-02(CENTRAL)
TIS HAZARI COURTS:DELHI:31.05.2025
FIR No. 272/2015, PS: Nabi Karim, Page No. 65 of 65
State Vs. Raja & Ors.