Delhi District Court
State vs Dharmbir Nishad on 30 May, 2025
IN THE COURT OF MS. SAUMYA CHAUHAN,
ASJ (FTC)-02, WEST DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No. DLWT01-007088-2018
SC 518/2018
STATE Vs. DHARMBIR NISHAD
FIR No.142/2018
PS:(Tilak Nagar)
U/s : 302/404/411 IPC
JUDGMENT
Date of commission of offence 11.04.2018
Date of Committal in the Court of 27.07.2018
Sessions
Name of the complainant Sh. Kishor Kumar
Name of accused and addresses Dharmbir Nishad S/o Munshi
Nishad R/o Village Pakarpura,
P.O. Darsi, District
Gorakhpur, U. P.
Offence complained of or proved Under Section 302/404/411
IPC
Plea of the accused Not pleaded guilty.
Final Order Acquittal
Date of announcing of judgment 30.05.2025
BRIEF FACTS
1. The case of the prosecution in brief is that on 12.04.2018,
PCR call was received vide DD no.24A at PS Tilak Nagar
that near Subhash Nagar Mor, Ganda nala, regarding death
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 1 of 36
of driver of truck no.HR-55A-3471. Police officials reached
the spot, where complainant Kishore Kumar met them. The
deceased Deepak Kumar S/o Jasram, was found dead on the
back seat in driver’s cabin of the truck. There was a ligature
mark around his neck and one small piece of printed cloth
was lying near the seat. It was revealed by the complainant
Kishore Kumar that the deceased was employed as driver in
their company while the accused was his helper. On
11.04.2018, their cashier Mukesh had given Rs.15,000/- to
the deceased at about 12:00 Noon and the helper i.e. the
accused Dharambir Nishad was missing. The mobile phone
of the deceased and Rs.15,000/- were also missing. Wife of
the deceased also disclosed that the deceased had told her on
phone in the evening of 11.04.2018 that he had an
altercation with the accused over money.
INVESTIGATION & OTHER PROCEEDINGS
2. On basis of the statement of the complainant, the present
FIR was registered under Section 302 IPC. Accused
Dharambir Nishad was arrested on 15.04.2018 and the sim
card of the deceased was recovered from his possession.
The mobile phone and sim card of the deceased were
recovered from Dehradun at his instance. Hence, offence u/s
404/411 IPC were also added in the present case.
3. After completion of investigation, charge-sheet U/s
302/404/411 IPC was filed in the Court of Ld. MM against
the accused. After completion of proceedings U/s 207
Cr.P.C., Ld. MM committed the case to Learned Sessions
Court.
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 2 of 36
CHARGE
4. Vide order dated 19.09.2018, charge under Section
302/404/411 IPC was framed against the accused, to which
he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
5. To prove the charge against the accused, the prosecution has
examined 28 witnesses in total.
6. PW-6/Ayush Jain deposed that he alongwith his brother
PW-8/Anuj Jain was running a transport company in the
name and style of ‘Ayush Transport Company’ situated at
Sanjay Gandhi transport Nagar, Delhi. In the year 2018, the
deceased Deepak was their driver while accused Dharambir
was helper in their truck having registration
no.HR-55K-3471, make Ashoka Leyland. He further
deposed that on 10.04.2018, the said truck was loaded with
cold drinks from Surajpur, Greater Noida and reached
Pacific Mall on 11.04.2018. The driver Deepak informed
him at around 07:00 pm that the truck was unloaded. He
asked Deepak to go to the plant at Greater Noida, where the
truck was loaded. On the next day i.e. 12.04.2018, he
checked the location of the truck through GPS and found the
truck was still parked behind Pacific Mall. He dropped his
driver/PW-4 Kishore outside Pacific Mall to check the truck
and left for his office. After sometime, Kishore informed
him telephonically that dead body of Deepak was lying in
the cabin of the truck. The witness asked him to
immediately call police by dialing 100 number. He also
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 3 of 36
informed his brother Anuj Jain about the incident. The
witness correctly identified the accused before the court. He
deposed that he suspects that Deepak was killed by accused
Dharambir as he was present with the deceased in the truck
and was not found with the truck after the incident. The
truck bearing number HR-55K-3471 is Ex.MO-2.
7. During cross examination, PW-6 deposed that deceased
Deepak had kept the accused as his helper. He did not have
any record (including photo or identity card) that the
accused was helper in the truck. He admitted that it cannot
be ruled out that the death might have been caused by some
outsider from the jhuggies situated near the place where the
truck was parked. He admitted that he had never heard about
any dispute between the deceased and the accused from his
other drivers.
8. PW-4/Kishore Kumar, employee of PW-6 Ayush Jain had
discovered the dead body of the deceased Deepak and had
informed PW-6/Ayush Jain as well as the police on 100
number. He deposed that IO seized the cloth/dhoti of orange
colour in a white cloth pullanda and truck in question vide
seizure memo Ex.PW4/B and Ex.PW4/C respectively. IO
recorded his statement Ex.PW4/A. The second IO prepared
the site plan Ex.PW4/D. The witness duly identified the
piece of printed cloth as Ex.MO1.
9. PW7/Kavita, wife of the deceased deposed that on
11.04.2018, at about 07.00-07.30 p.m., the deceased had
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 4 of 36
called her on her mobile phone number XXXX29 from
mobile no. XXXXX15 and informed her that he had earned
Rs. 1000/- for the family on that day. However, the accused
Dharambir Nishad had taken out currency note of Rs. 2000/-
from his pocket and purchased a mobile phone with the said
money, due to which an altercation had taken place between
them. Deepak then told her that he was going to have food
and would call later. She did not receive any further call
from her husband. On the next morning i.e 12.04.2018,
when she tried to call the deceased, she could not contact
him. On the same day, she came to know that her husband
had died. She deposed that accused Dharambir Nishad had
killed her husband on the issue of money.
10. PW-1/Subhash, elder brother of deceased Deepak deposed
that he went to PS Tilak Nagar on 12.04.2018 on receiving
news of his murder. He called Kavita, wife of the deceased
and asked her when she had lastly talked to deceased. She
told him that she had talked with deceased Deepak on his
mobile phone at about 7.30 p.m. on 11.04.2018 and that
Deepak told her that the conductor/helper of the truck
namely Dharambir had stolen Rs. 2000/- from his
possession and had bought one mobile phone and due to this
an altercation had taken place between Deepak and
Dharambir. Kavita also told him that Deepak had called her
lastly at about 08.45 p.m on 11.04.2018 and thereafter she
could not contact him. On 13.04.2018, he and his father
PW-3/Jasram identified the dead body of Deepak at the
mortuary of DDU hospital vide their statement Ex.PW-1/A
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 5 of 36
and Ex.PW3-A. After postmortem, the dead body was
handed over to them vide receipt Ex.PW1/B.
11. PW-9/Sh. Shakeel Khan, store manager at SPAR, Hyper
Market, Pacific Mall, Tilak Nagar deposed that on
11.04.2018, beverage was received from Varun Beverage
Limited vide invoice dated 10.04.2018. The helper of the
truck namely Dharambir handed over the document/builty
on behalf of the driver Deepak to their staff at the reception.
On 28.04.2018, he handed over the consignment documents
i.e the vendor discrepancy note dated 11.04.2018 (Ex.
PX2/1), builty of truck no. HR55K-3471 dated 10.04.2018
(Ex. PX2/2), invoice dated 10.04.2018 by Varun Beverage
Ltd. (Ex. PX2/3) and proof of delivery dated 10.04.2018
(Ex. PX2/4), to the police vide seizure memo Ex. PW9/A.
12. PW-5/Mukesh, Accountant at Ayush Transport company
deposed that on 11.04.2018, PW-8 Anuj Jain had given him
Rs.60,000/- for handing over to the truck drivers of their
company and specifically instructed him to handover
Rs.15,000/- to deceased Deepak, driver of truck no.
HR-55K-3471. He went to Pacific Mall, Subhash Nagar at
about 12:00 Noon, where the truck was parked. Accused
Dharambir and deceased Deepak were present near the
truck. He handed over Rs.15,000/-to Deepak in the presence
of accused.
13. PW-11/Bhushan Kapoor, owner of the mobile shop ‘Future
Fones’ at shop no. WZ-9A, Ground Floor, Punjabi Market,
Part-1 Vishnu Garden, New Delhi, deposed that on
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 6 of 36
11.04.2018 at about 7.00 P.M, the accused had come to his
shop and purchased one mobile phone for Rs.800/. He had
mentioned the name of the accused, mobile number given
by the accused, IMEI number of the phone etc. on the
original bill. Witness correctly identified the accused before
the court. He further deposed that after 2-3 days, SHO PS
Tilak Nagar came to his shop alongwith the accused and
seized the duplicate bill of the said mobile phone
(Ex.PW11/B) vide seizure memo Ex.PW11/A. Pointing out
memo of his shop is Ex.PW11/C. The model of the mobile
phone is Infocus Hero Smart IF-9010.
14. PW-12/ASI Manoj Kumar was on duty on 12.04.20018 at
Central Police Control Room from 2.00 P.M. to 8.00 P.M.
He deposed that at around 2.15 P.M., a PCR call was
received from mobile no. 9717571787 regarding intimation
of death of the driver in a vehicle near nala, Subash Nagar
Mall. The said call was recorded and duly dispatched to PS
Tilak Nagar. The PCR form is Ex.PW12/A (colly).
15. PW-23 HC/Virender and PW-25/ASI Brahmanand reached
the spot on 12.04.2018 at about 02:37 p.m upon receiving
the DD entry. PW-25 checked the deceased and informed
the SHO. SI Rajbir (since expired) reached the spot
alongwith police staff including SHO.
16. PW-21/Retired SI Kalyan Singh, Incharge, Mobile Crime
team, West inspected the crime scene. One cloth piece of
firozi/bengni colour was lying near the deceased and it had
glass pieces engraved in it. No chance prints were found at
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 7 of 36
the spot. He prepared crime team report Ex.PW21/A and
handed it over to IO. PW-22/HC Satish, Photographer,
Crime Team, West clicked 4 photographs of the Crime
Scene which are Ex.PW22/P1 to Ex.PW22/P4. The CD
containing the photographs is Ex.PW22/B and the certificate
under Section 65-B Indian Evidence Act is Ex.PW22/A.
17. PW-25/ASI Brahmanand deposed that SI Rajbir recorded
statement of Kishore Kumar and prepared rukka. He took
the rukka to the PS and handed it over to PW-15/Retired SI
Madan Lal, who made endorsement on the rukka vide
Ex.PW15/A. FIR was recorded by the computer operator.
The computerized FIR is Ex.PW15/B and certificate under
Section 65 B of Indian Evidence Act is Ex.PW15/C.
18. PW-27 IO/Retired Inspector Sandeep deposed that on
12.04.2018, the investigation of case was handed over to
him. He inspected the truck and seized it vide seizure memo
Ex.PW4/C. He measured the piece of cloth found on the
seat of driver cabin, and sealed it in a cloth pullanda, and
seized it vide seizure memo Ex.PW4/B. He prepared the
rough site plan of the place of occurrence Ex.PW4/D. He
searched for conductor/helper of the deceased driver but he
was not found. On 13.04.2018, he got conducted the post-
mortem examination of the deceased Deepak at DDU
hospital vide request letter Ex.PW27/B. The post-mortem
examination of the deceased was videographed in the
mortuary. The clothes, blood sample and viscera of the
deceased, duly sealed with the hospital seal were seized vide
memo Ex.PW23/A and Ex.PW23/B respectively.
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 8 of 36
19. PW-27/IO further deposed that on 14.04.2018, the mobile
numbers of deceased and the conductor/helper were kept on
surveillance as the mobile phone of the deceased was
missing and the conductor/helper was absconding. In the
intervening night of 14-15/04/2018, he received secret
information that the accused would come near ATM, Bank
of Baroda, New Friends Colony at night and can be
apprehended. He along with his staff reached the said ATM
and at the pointing out of the secret informer, apprehended
the accused. The accused was arrested vide arrest memo
Ex.PW27/E and his personal search was conducted vide
personal search memo Ex.PW27/F. He recorded the
disclosure statement of the accused, Ex.PW27/G. The
accused disclosed that he had purchased a mobile phone
from Punjabi Market, Vishnu Garden, Delhi before the
incident; and that after the incident, he had gone to
Dehradun. He disclosed that he sold the mobile phone of
deceased at Dehradun and purchased a new sim card.
20. At the time of his arrest, the mobile phone of the accused
black colour, make Infocus containing a sim card was seized
vide seizure memo Ex.PW23/C. Accused was also found in
possession of one Vodafone sim card, which was seized vide
seizure memo Ex.PW27/H. The carry bag of the accused
containing clothes which he was wearing at the time of
incident but which he had already washed in Dehradun, was
seized vide seizure memo Ex.PW23/D.
21. Accused pointed out the place of occurrence vide pointing
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 9 of 36
out memo, Ex.PW23/E. He led the police to the shop from
where he had purchased the mobile phone make Infocus.
The pointing out memo of the said shop is Ex.PW11/C.
PW-27/IO seized the duplicate bill of the said mobile phone
from shop owner Bhushan Kapoor vide seizure memo
Ex.PW11/A.
22. PW-27/IO further deposed that the accused was taken to
Dehradun after obtaining his PC remand. The accused led
them to the shop namely ‘Professional Hair Dresser’ and at
his instance, the mobile phone of the deceased, make Intex,
red and black colour was seized vide seizure memo
Ex.PW23/F. The owner of shop namely Shahnawaj signed
the said seizure memo at point C. Thereafter, accused led
them to a dug place situated near the said shop where he had
thrown the sim card of the deceased. The sim card of BSNL
company was found by the accused and it was seized vide
seizure memo Ex.PW23/G.
23. PW-27/IO Sandeep further deposed that he seized the
consignment documents of truck from the PW-9/Shakeel
Khan vide seizure memo Ex.PW9/A. He sent the case
property to the FSL from Malkhana through Ct. Jagdish. He
also obtained the subsequent opinion from the department of
Forensic Medicine, DDU hospital by sending the sealed
pullanda containing the piece of cloth seized from the truck
through PW-13/ASI Mange Ram. Copy of his application to
the hospital authority is Ex.PW27/K.
24. PW-27 also seized the relevant CCTV footage of the CCTV
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 10 of 36
camera installed at the place near the spot of crime in a CD
vide seizure memo Ex. PW19/A. The certificate issued by
PW-28 Oswin Issac, Manager, Pacific Mall is Ex.PW28/B.
He also obtained the Customer Application Form and CDR
of all the relevant mobile numbers. He identified the case
property i.e. (i) One sky blue white and violet colour printed
cloth seized from the driver cabin of the truck, Ex.MO1 (ii)
One blue colour jeans pant and red/pinkish colour full
sleeves shirt seized from the accused, Ex.PW23/Article-1
(iii) One sim card of make BSNL seized from outside the
shop of saloon at Dehradun, Ex.PW23/Article-3 (iv) One
sim card of make Vodafone seized at the time of arrest of the
accused and which was used by the deceased when he was
alive, Ex.PW23/Article-2 (v) Mobile phone, red and black
colour, of make Intex seized from the saloon at Dehradun,
Ex.PW23/Article-4 (vi) Mobile phone, black colour, make
InFocus alongwith Airtel sim card, Ex.PW23/Article-5.
25. PW-27 also identified the CD containing the CCTV footage
of gate no. 5 of Pacific Mall. Same is Ex.PW27/Article-1.
The CD was played in the court and in the said CCTV
footage, at 10:10:35 am of 11.04.2018, the accused was seen
entering in gate no.5 in red/pinkish shirt and at 10:17:15 am,
he is seen coming out of the same gate.
26. During cross examination, PW-27/IO admitted that there is
a cluster area near the place where the truck was parked and
people are residing there. He admitted that he did not
deposit his seal in the Malkhana at the time of depositing
the seized case property. On 14/15-04-2018 he had asked
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 11 of 36
public persons to join investigation but they declined citing
personal difficulty. No notice was issued to such public
persons nor their details were noted down. He denied that
the accused was produced in the PS on 15.04.2018 at about
10:00 a.m. by person called Panna, who was known to the
accused. He denied the suggestion that for this reason
neither any public witness was joined in the investigation on
the night of 14-15/04/2018 nor the CCTV footage of the
ATM was obtained. They reached at Dehradun on
16.04.2018 in a hired private vehicle after taking permission
from the senior officers. He admitted that he did not file on
record the documents pertaining to the permission to leave
the station. He admitted that no local police had joined
investigation with them in Dehradun. He voluntarily stated
that he was verbally told that in case there is need for local
police assistance, the same would be provided. He could not
recall the number of general diary entry of their arrival in
the local PS. No specific reason of law-and-order situation
was told by the local police officials, however, it was told
that due to reason of law-and-order heavy police
arrangement was done. He denied that they had not visited
the local police station or that due to this reason he was not
able to tell the time of their arrival and departure from there
and the general diary number of the same. He admitted that
no photography and videography of the recovery made at
Professional Hair Dresser was done. He admitted that
handing over memo of seal after use was not prepared.
27. PW-19 HC Dheeraj deposed on the same lines as PW-27 IO
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 12 of 36
Inspector Sandeep and corroborated his testimony qua
seizure of documents from PW-9/Shakil Khan on
28.04.2018 and seizure of CD containing CCTV footage
from PW-28/Oswin Issac.
28. PW-23/HC Virender had joined the investigation on
12.04.2018 with IO SI Rajbir (since deceased) and then with
PW-27 IO Sandeep. He got the dead body of the deceased
preserved at the mortuary of DDU hospital. He deposed on
the same lines as PW-27/IO Sandeep Singh and
corroborated his testimony. He also deposed that during
police remand, accused led the police team headed by
Inspector Sandeep Kumar to Dehradun. On reaching
Dehradun, the police team made entry in the local PS and
from there accused took the police team to a hair saloon
shop no.39, Aarhat Bazar, Sahranpur Chowk, Dehradun
owned by Shahnawaz. The accused told the IO that since he
was not able to pay for the shave and haircut, he gave the
Intex mobile phone to the salon owner in lieu of the services
availed. The shop owner produced the said mobile phone,
and it was seized vide seizure memo Ex.PW23/F. The said
mobile phone belonged to deceased and it was found
containing one sim of BSNL company. The said sim was
also seized by the IO vide seizure memo Ex.PW23/G.
29. During cross examination, PW-23 admitted that no
videography of the proceedings from the mobile phone of
any police official was conducted at Bharat Nagar. He
denied that one Panna Lal, known to the accused had
produced the accused before the IO on 15.04.2018 or that all
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 13 of 36
the documents, which have been shown to be prepared at
the spot, were actually prepared by the IO in the PS. He was
not aware whether any police official from the local PS of
Dehradun had joined investigation with them.
30. PW-17 Retired SI Om Prakash, Assistant Draftsman,
Mapping Section West District, PS Punjabi Bagh prepared
scaled site plan of the crime scene, which is Ex.PW17/A.
CAF AND CDRs OF MOBILE PHONE NUMBERS:-
31. PW-2/Israr Babu, Alternate Nodal Officer, Vodafone Idea
Ltd. proved the eKYC customer application form of the
mobile number 9643008615, issued in the name of the
accused Dharambir Nishad. Same is Ex.PW-2/A (colly).
CDR of the said mobile number from 01.04.2018 to
16.04.2018 is Ex.PW2/B. Certificate u/s 65-B of Indian
Evidence Act is Ex.PW-2/C. The cell ID chart is
Ex.PW-2/D. He also proved the CAF pertaining to mobile
no.7055099829, subscribed in the name of Ms. Kavita w/o
the deceased. The eKYC application form is Ex.PW-2/E;
Call Detail Record for the period 01.04.2018 to 16.04.2018
is Ex.PW-2/F; and certificate u/s 65 B Evidence Act is
Ex.PW-2/G.
32. PW-16/Sh. Pawan Singh, Nodal Officer, Vodaphone Idea
Ltd. proved the CDR and CAF of mobile no.7055099829
issued in the name of Kavita, wife of the deceased, along
with Certificate under Section 65 B Indian Evidence Act, as
Ex.PW16/A, Ex.PW16/B and Ex.PW16/C respectively.
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 14 of 36
33. PW-18 Sh. Ashwani Kumar, proved the Customer
Application Form of mobile no.9411910274, belonging to
the deceased Deepak Kumar; the letter dated 05.07.2018;
and certificate under Section 65-B Indian Evidence Act as
Ex.PW18/A (colly).
34. PW-28 Oswin Issac, Manager, Pacific Mall deposed that the
police wanted CCTV footage of the exit road of Pacific
Mall facing towards the HT meter room. He copied the
CCTV footage in a CD from the CCTV room, Pacific Mall
and handed it over to the police official vide covering letter
Ex.PW28/A. The certificate under Section 65-B Indian
Evidence Act is Ex.PW28/B. The CD along with its contents
is Ex.PW27/Article-1.
35. Vide his separate statement under Section 294 Cr.P.C,
accused admitted the following documents: –
1. The FSL report dated 06.06.2018 prepared by FSL
expert Ms. Amita Raghav (Ex.PA-1).
2. The FSL report dated 27.06.2018 regarding
examination of the viscera of the deceased, Ex.PA-2.
3. Factum of videography and photography of post-
mortem examination. The photographs are Ex.PA-3
(colly.) and the CD is Ex.PA-4.
MEDICAL EVIDENCE
36. PW-14/Dr. Sandeep Kumar, CMO, DDU Hospital identified
the handwriting and signature of Dr. Sachin Patel on the
MLC of the deceased, Ex.PW14/A.
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 15 of 36
37. PW-10/Dr. V.K. Ranga conducted the post mortem
examination on the body of deceased Deepak on 13.04.2018
vide PM Report Ex.PW-10/A. During post mortem, he
found the following injuries:-
(i) External injuries – 1. Ligature mark was a pressure
abrasion, reddish brown in colour, dry hard and
parchmentized, incompletely encircling the neck and
situated at the level of thyroid cartilage over the neck
on right side, at a distance of 11 cm above the
suprasternal notch and 7 cm below the chin. Ligature
mark measured 20 cm in length. Width of ligature mark
in midline over front of the neck was 2.0 cm. On right
side it was present transverse, 7 cm below the right
mastoid. On left side ligature mark was situated 6 cm
below the left mastoid. Width of ligature mark varied
from 1.5 cm to 2.0 cm. Total neck circumference was
40 cm at the level of thyroid cartilage.
2. Old burn marks present over both side of lower face.
(ii) Internal examination:- Effusion of blood was
present in the neck structure. Inward fracture of both
side of hyoid bone.
38. As per PW-10, the cause of death was asphyxia secondary
to constriction of neck structures as a result of strangulation
via injury no. 1 which was sufficient to cause death in
ordinary cause of nature. All the injuries were ante-mortem
in nature and fresh in nature. He preserved the blood in
gauze, clothes of deceased and viscera.
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 16 of 36
39. During cross examination, PW-10 stated that apart from the
injury on the neck, no other injury marks, including
struggling marks were seen during post mortem
examination.
40. After conclusion of Prosecution Evidence, statement of
accused was recorded under Section 313 Cr.P.C. The
accused denied the entire prosecution evidence and stated
that he has been falsely implicated in the present case. He
stated that he was not employed by Ayush Jain or his
company as helper, and it was the deceased Deepak who
had asked him to become his helper. He admitted that on the
day of incident, he had accompanied Deepak in the truck
loaded with goods to Pacific Mall. He completed his duty
and asked Deepak to give him Rs.2000/-. Deepak gave him
Rs.2000/- and at around 08:00 PM, he left from the said
Pacific Mall. He purchased a mobile phone for Rs.800/-
from a shop situated near Pacific Mall and thereafter he left
for Dehradun by train. After two days he contacted Panna,
his acquaintance for job. Panna called him to Delhi offering
him employment. On the intervening night of 14-15/4/2018
he got down at Maharana Pratap Bus Stand alongwith one
bag containing his clothes. He took a TSR to reach the
office of Panna Lal situated at Bharat Nagar. As soon as he
got down from the said TSR at Bharat Nagar, he was
apprehended by the police officials and Panna Lal identified
him. No dispute or quarrel had taken place between him and
the deceased Deepak regarding money or any other issue.
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 17 of 36
FINAL ARGUMENTS
41. Ld. Counsel for accused has submitted that the accused has
been falsely implicated in the present case. The accused was
admittedly working as helper in the truck Ex.MO-2, being
employed by the deceased Deepak. He also admits his
presence at Pacific Mall on 11.04.2018. However, he had
remained there only till the evening and after receiving his
dues i.e. Rs.2000/- from the deceased, he left the place at
about 07:00-08:00 p.m.
42. It has been further submitted that the prosecution has not
been above to prove the allegations against the accused
beyond reasonable doubt. The testimony of PW-7 Kavita
cannot be read in evidence being hearsay. No chance prints
were found inside the truck. The FSL report also does not
establish any link between the crime and the accused. The
CCTV footage also shows the presence of the accused at the
spot at about 10:17 a.m. on 11.04.2018. There is no CCTV
footage of the evening of 11.04.2018 till morning of
12.04.2018, to establish the presence of accused at the spot
after 07:00-08:00 p.m. on 11.04.2018.
43. It has been submitted by Ld. Counsel that no intimation
regarding the arrest of the accused was given to his family
members. There is no independent witness to the recovery
allegedly made at the instance of the accused. The accused
had come to Delhi on assurance of his acquaintance Panna
Lal, who had promised him employment and his signatures
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 18 of 36
appears on his arrest memo. This proves his defence that he
he had come to Delhi for employment.
44. Per contra, Learned Addl. PP for the state has submitted that
the prosecution has proved its case beyond reasonable doubt
and the accused is liable to be convicted. It is submitted that
in the matters of circumstantial evidence, motive becomes
crucial, and in this case, PW-7 Kativa, wife of deceased has
proved that an altercation had taken place between the
accused and the deceased over money. Hence, the accused
had the motive to kill the deceased. Further, the accused was
the last person in whose company the deceased was seen
alive. The mobile phone of the deceased as well as his sim
card have been recovered at the instance of the accused
from Dehradun. The sim card which was being used by the
deceased was also recovered from the possession of the
accused. Hence, the accused is liable to be convicted for the
offences alleged.
COURT FINDINGS
45. I have heard the final arguments addressed on behalf of the
accused as well as the State and perused the entire record
carefully.
46. Let us first examine the relevant provisions of law for the
purpose of this case. The accused has been charged under
Section 302/404/411 IPC. Section 302 IPC prescribes the
punishment for offence of murder. The offence of ‘murder’
is defined under Section 300 IPC. As per the said Section,
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 19 of 36
culpable homicide is murder if-
i) the act is done with the intention of causing
death, or
ii) the act is done with the intention of causing
such bodily injury as the offender knows to be
likely to cause death of the person to whom
the harm is caused, or
iii) the act is done with the intention of causing
bodily injury to any person and such bodily
injury intended to be inflicted is sufficient in
the ordinary course of nature to cause death, or
iv) if the person committed the act knows that
it is so imminently dangerous that it must in all
probability, cause death or such bodily injury
and is likely to cause death.
47. Section 404 IPC prescribes punishment for dishonest
misappropriation of property possessed by deceased person
at the time of his death. Section 411 IPC prescribes
punishment for dishonestly receiving stolen property or
retaining the same in one’s possession, knowing it to be
stolen property.
48. It is a settled principle of criminal jurisprudence that in a
criminal trial, a duty is cast upon the prosecution that it has to
prove the guilt of the accused beyond reasonable doubt. Even
an iota of doubt in the prosecution story entitles the accused
to the benefit of doubt. In the case titled as “Anand
Ramachandra Chougule v. Sidarai Laxman Chogula” AIR
2019 SC 3871, it was held by Hon’ble Supreme Court,
“The burden lies on the prosecution to prove the
allegations beyond all reasonable doubt. In
contradistinction to the same, the accused has
only to create a doubt about the prosecution
case and the probability of its defence. An
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 20 of 36
accused is not required to establish or prove his
defence beyond all reasonable doubt, unlike the
prosecution. If the accused takes a defence,
which is not improbable and appears likely,
there is material in support of such defence, the
accused is not required to prove anything
further. The benefit of doubt must follow unless
the prosecution is able to prove its case beyond
all reasonable doubt.”
49. In the present case, there is no eye witness or direct evidence
to establish the case of the prosecution. The entire case of the
prosecution is based on circumstantial evidence. It is a settled
law that in a case based on circumstantial evidence, the
prosecution must prove the circumstances from which the
conclusion of guilt is drawn, and it must be conclusive in
nature. All the circumstances should be complete, forming a
chain and no gap should be left. Further, the proved
circumstances must be consistent only with the hypothesis of
the guilt of the accused and totally inconsistent with his
innocence [Reliance placed on C.Chenga Reddy V. State of
AP‘ (1996) 10 SCC 193].
50. In the case titled as ‘Sharad Birdhichand Sarda v. State of
Maharashtra‘ (AIR 1984 SC 1622) Hon’ble Apex Court laid
down the conditions precedent which must be fully
established before conviction could be based on
circumstantial evidence. They are-
(i) the circumstances from which the
conclusion of guilt is to be drawn should be
fully established. The circumstances
concerned “must” or “should” and not “may
be” established;
(ii) the facts so established should be
consistent only with the hypothesis of the guilt
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 21 of 36
of the accused, that is to say, they should not
be explainable on any other hypothesis except
that the accused is guilty;
(iii) the circumstances should be of a
conclusive nature and tendency;
(iv) they should exclude every possible
hypothesis except the one to be proved; and
(v) there must be a chain of evidence so
complete as not to leave any reasonable
ground for the conclusion consistent with the
innocence of the accused and must show that
in all human probability the act must have
been done by the accused.
51. Similarly, in the case titled as ‘Madhu @ Madhuranatha &
Another V. State of Karnatka’ IV (2013) CCR 530 (SC), it
was held by Hon’ble Supreme Court,
“6. This Court has dealt with the case of
circumstantial evidence time and again. It has
consistently been held that a conviction can be
based solely on circumstantial evidence. The
prosecution’s case must stand or fall on its own
legs and cannot derive any strength from the
weakness of the defence put up by the accused.
However, a false defence may be called into aid
only to lend assurance to the court where various
links in the chain of circumstantial evidence are
complete in themselves. The circumstances from
which the conclusion of guilt is to be drawn
should be fully established. The facts so
established should be consistent only with the
hypothesis of the guilt of the accused, that is to
say, they should not be explainable or point to
any other hypothesis except that the accused is
guilty. The circumstances should be of a
conclusive nature and tendency. The evidence
produced by the prosecution should be of such a
nature that it makes the conviction of the accused
sustainable.”
52. Hence, to prove the allegations against the accused, the
prosecution is required to successfully prove the complete
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 22 of 36
chain of circumstances establishing his guilt. It is the case of
the prosecution that the deceased was last seen alive in the
company of the accused and no one had seen him alive
thereafter. It has been alleged that the accused ran away after
murdering the deceased, alongwith his mobile, 2 sim cards
and Rs.15,000/-. The absence of the accused from the spot is
a tell-tale sign of his guilt and the accused has failed to
explain his absence under Section 106 Indian Evidence Act.
Per contra, learned counsel for accused has submitted that the
accused had left from Pacific Mall after receiving Rs. 2000/-
from the deceased, in search of a better employment as the
salary paid to him by the deceased was meager and the
deceased was also not regular in paying his dues to him. He
proceeded to Dehradun to find job. Hence, the accused has
very well explained his absence from the spot.
53. The theory of ‘Last seen together’ has been explained by
Hon’ble Supreme Court in the case titled as ‘Bodh Raj @
Bodha Vs. State of Jammu and Kashmir‘ AIR 2002 SC 3164,
that the last seen theory comes into play where the time gap
between the point of time when the accused and deceased
were seen last alive and when the deceased is found dead is
so small that possibility of any person other than the accused
being the author of crime becomes impossible. It would be
difficult in some cases to positively establish that the
deceased was last seen with the accused when there is a long
gap and possibility of other persons coming in between
exists.
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 23 of 36
54. In the present case, PW-9 Shakeel Khan has proved that the
accused was present at the Pacific Mall on 11.04.2018. As
per the CCTV footage, which was played during the
testimony of PW-27/IO, the presence of the accused at
Pacific Mall at about 10:17 a.m. on 11.04.2018 has been
established. PW-5 Mukesh has also deposed that the accused
was present alongwith the deceased at the time of payment of
Rs.15,000/- to the deceased. Even the accused has admitted
in his statement u/s 313 Cr.P.C. that he was present at the
spot alongwith the deceased Deepak on 11.04.2018.
However, as per the accused, he left Pacific Mall at about
07:00-08:00 p.m after receiving Rs.2000/- from the deceased.
55. Time of discovery of dead body of the deceased- There is
discrepancy in the testimony of PW-6 and PW-4 regarding
the time of discovery of the dead body of the deceased.
While PW-4/complainant Kishore Kumar, who first
discovered the dead body of the deceased has deposed that he
had visited the place where the truck was parked on the night
of 11.04.2018; PW-6/Ayush Jain, Employer of the deceased
has deposed that he had dropped PW-4 outside Pacific Mall
with instructions to check the truck on 12.04.2018. Be that as
it may, as per 000PW-12/ASI Manoj Kumar the PCR call
regarding death of the deceased was received at around 02:15
pm on 12.04.2018. Hence, it is presumed that the dead body
of the deceased was first seen at around 02:00 p.m. on
12.04.2018. In the post-mortem report Ex.PW10/A, the time
of death has not been specified. However, it has been
mentioned that death had taken place 1½ days prior to the
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 24 of 36
time of conducting the post-mortem. The post-mortem
examination was conducted on 12.04.2018 from 10:45a.m.
to 12:15 p.m. Hence, it can be presumed that the death had
occurred at around midnight of 11-12/04/2018. It is admitted
by PW-6 Ayush Jain that the accused was employed by
Deepak and that they do not have any record of employment
of accused with their company.
56. However, In the case titled as ‘Jaswant Gir v. State of
Punjab’ (2005) 12 SCC 438, Hon’ble Apex Court held that
in the absence of any other links in the chain of
circumstantial evidence, it is not possible to convict the
appellant solely on the basis of the ‘last-seen’ evidence. In
the case titled as ‘Surajdeo Mahto v. State of Bihar‘ (2021)
8 SCR 911, it was held by Hon’ble Supreme Court,
“29. The case of the prosecution in the present
case heavily banks upon the principle of ‘Last
seen theory’. Briefly put, the last seen theory is
applied where the time interval between the
point of when the accused and the deceased
were last seen together, and when the victim is
found dead, is so small that the possibility of
any other person other than the accused being
the perpetrator of crime becomes impossible.
Elaborating on the principle of “last seen
alive”, a 3-judge bench of this Court in the
case of Satpal v. State of Haryana has,
however, cautioned that unless the fact of last
seen is corroborated by some other evidence,
the fact that the deceased was last seen in the
vicinity of the accused, would by itself, only
be a weak kind of evidence…………..
…………… Succinctly stated, it may be a
weak kind of evidence by itself to found
conviction upon the same singularly. But when
it is coupled with other circumstances such as
the time when the deceased was last seen with
the accused, and the recovery of the corpse
being in very close proximity of time, the
accused owes an explanation under Section
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 25 of 36
106 of the Evidence Act with regard to the
circumstances under which death may have
taken place. If the accused offers no
explanation, or furnishes a wrong explanation,
absconds, motive is established, and there is
corroborative evidence available inter alia in
the form of recovery or otherwise forming a
chain of circumstances leading to the only
inference for guilt of the accused,
incompatible with any possible hypothesis of
innocence, conviction can be based on the
same. If there be any doubt or break in the link
of chain of circumstances, the benefit of doubt
must go to the accused. Each case will
therefore have to be examined on its own facts
for invocation of the doctrine.”
57. Hence, it is clear that principle of last-seen-together must be
proved with certainty that no other person except the accused
had the opportunity to kill the deceased. Though accused
should offer an explanation as to when he left the last
company of deceased to eliminate all doubts of his
involvement, yet accused may not be convicted merely
because he failed to offer an explanation, provided there is
no other evidence or circumstance against him to indicate his
involvement. In a case where the other links have been
satisfactorily made out and the circumstances point to the
guilt of the accused, the circumstance of last seen together
and absence of explanation would provide an additional
link which completes the chain. However, in absence of
proof of other circumstances, the only circumstance of last
seen together and absence of satisfactory explanation
cannot be made the basis of conviction. As such, only
circumstance of last-seen-togetherness is not a deciding
factor to convict an accused for murder of deceased (reliance
placed on ‘In Re:Naina Mohamed v. Unknown’ 1959 SCC
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 26 of 36
OnLine Mad 173 and ‘Anjan Kumar Sharma v State of
Assam’ (2017) 14 SCC 359).
58. In the present case, admittedly, the accused was present at the
spot alongwith the deceased atleast by 08:00 p.m on
11.04.2018. However, there is no evidence on record to prove
the presence of the accused at the spot thereafter. Chances of
presence of a third person during that period i.e. from 08:00
p.m. to midnight cannot be ruled out, especially when it has
been admitted by PW-6, PW-4 and PW-27/IO that there are
jhuggis near the place where the truck was parked. Infact,
PW-6 Ayush Jain has admitted in his cross examination that
chances of crime by some other person from the
jhuggies/cluster area situated near the spot could not be ruled
out. The place where the truck was parked was an open space
and not a closed or private one or in exclusive possession of
the accused. Further, the amount of Rs.15,000/-, which the
deceased had in his possession, and which was found missing
at the time of his death, has also not been recovered from the
possession of the accused. Hence, chances of intervention of
a third person cannot be ruled out.
59. In view of the above discussion, the court is of the considered
opinion that the accused cannot be convicted solely on the
ground that the deceased was last seen alive in his company,
unless corroborated by other evidence on record.
MOTIVE
60. As per the prosecution, the accused has killed the deceased
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 27 of 36
due to money dispute between them and had escaped
thereafter alongwith Rs.15,000/-, which were in possession
of the deceased. The prosecution has relied on the testimony
of PW-7 Kavita, who deposed that her husband (deceased)
had called her at about 07-07:30 p.m. on 11.04.2018 and
informed her that the accused had taken out the currency note
of Rs.2000/- from his pocket and purchased a mobile phone,
due to which an altercation had taken place between him and
the accused. However, the testimony of PW-7 cannot be read
in evidence being hearsay evidence as far as the factum of
quarrel between the accused and the deceased is concerned.
Apart from the testimony of PW-7 Kavita, there is no other
evidence to prove that any altercation or quarrel had taken
place between the accused and the deceased on issue of
money.
61. Ld. Addl. PP for state has relied upon the CDR of the
deceased to prove the communication between the deceased
and his wife had taken place before his death. However, the
said CDR only establishes the factum of communication
having taken place between the deceased and his wife on
11.04.2018. at about 07:40 p.m., but, by no means it proves
that a quarrel had taken place between the accused and the
deceased pertaining to Rs.2000/-. Hence this court is of the
considered opinion that the prosecution has not been able to
establish any motive in the present case.
Recovery from the accused:-
62. As per the prosecution, the following recoveries were made
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 28 of 36
from the possession or at instance of the accused:-
(i) Mobile phone of the deceased as well as his sim card
were recovered from Dehradun at the instance of the
accused:- It is the story of the prosecution that the accused
got a haircut and shave at Professional Hair Salon,
Dehradun. He gave the mobile phone of the deceased
Ex.PW23/Article-4 to the barber namely Shahnawaz in lieu
to the said services. The said mobile phone as recovered
from the possession of the barber Shahnawaz, and he was
also made a witness to the recover memos Ex.PW23/F and
Ex. PW23/G (pertaining to the SIM card of the deceased).
However, the said barber Shahnawaz has not been examined
as the prosecution witness. Also, admittedly, no
photography or videography of the recovery of deceased’s
mobile phone and SIM was done. Also, no site plan of the
place of recovery of the mobile phone and SIM card of the
deceased was prepared by the IO.
63. The story of the prosecution regarding recovery of the
mobile phone and sim card of the deceased further becomes
doubtful for the reason that there is no DD entry regarding
departure of police team from Delhi to Dehradun or arrival
at the local PS at Dehradun. Both PW-23 and PW-27 have
stated that DD entry was made at the PS in Dehradun.
However, no such DD entry has been placed on record. No
police official of the local PS of Dehradun was made part of
the investigation team by the IO. In his cross-examination,
PW-27 explained that no local police official accompanied
them to join investigation as there was some law-and-order
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 29 of 36
arrangement on that day. PW-23 could not recall whether
any local police official had joined the investigation or not.
No document of IO’s request to provide local police
assistance or any refusal on behalf of local police to provide
police officials due to law-and-order duty has been placed
on record.
64. Also, there is discrepancy in the testimony of PW-23 and
PW-27 regarding the seizure of the BSNL SIM card from
the accused. As per PW-23/HC Virender, the mobile phone
of the deceased was seized from the possession of the salon
owner, and it was found containing one SIM of BSNL
company, which was seized vide memo Ex.PW23/G.
However, as per PW-27/IO Inspector Sandeep, the SIM card
of make BSNL was seized from a dug place near the salon
where the accused had thrown it.
(ii) As per the prosecution, the SIM number
89911190185271707508sy Vodafone 4G having mobile no.
9643008615 was recovered from the possession of the
accused at the time of his arrest on 15.04.2018. Admittedly,
the said SIM was issued in the name of the accused,
however, it was being used by the deceased in his mobile
phone. However, again there is doubt regarding recovery of
this SIM card from the accused. As per column no.9 of the
arrest memo Ex.PW27/E, the information regarding arrest
of the accused was given to one Panne Lal. His signature
appears on the arrest memo just below his name. The mobile
number of Panne Lal is mentioned as 9953253897. It has
not been specified in the arrest memo how Panne Lal was
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 30 of 36
related to the accused. Also, IO has failed to explain as to
why despite presence of this independent witness at the
spot, he was not made him witness to the recovery memo of
the above said SIM card of Vodafone. No photography or
videography of the said recovery was conducted. This raises
a doubt regarding recovery of SIM card from the accused.
65. Also, the accused has stated in his statement under Section
313 Cr.P.C. that he has contacted his acquaintance Panna
Lal to find a job for him. He was called to Delhi by Panna
Lal for job and on his arrival in Delhi, he was apprehended
by the police. As already observed, in the arrest memo of
the accused, the name and address of Panna Lal is
mentioned and his mobile number is 9953253897. A perusal
of the CDR of accused’s mobile number 8755967085
transpires that several calls were exchanged between him
and the mobile no. 9953253897, which apparently belongs
to the said Panna Lal, on 12.04.2018, 13.04.2018 and
14.04.2018. Infact, on 14.04.2018, the last call made from
the mobile phone of the accused was to the above said
mobile phone number of the said Panne Lal at 22:56:34.
Hence, the defence of the accused seems probable that he
had come to Delhi to look for a job.
66. In view of the above discussion, in absence of the
corroborated testimony of the salon owner Shahnawaz,
absence of any departure/arrival entry at the local police
station of Dehradun with respect to the visit of the police
team from PS Tilak Nagar, Delhi, failure of IO to join any
police official from local PS of Dehradun; discrepancies in
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 31 of 36
the statements of PW23 and PW27 regarding seizure of SIM
card of BSNL; failure to join Pannalal as witness to the
recovery memo Ex. PW-27/H despite his presence, this
court is of the considered opinion that the recoveries shown
by the accused have become susceptible to doubts and
questions regarding its accuracy and credibility.
CALL DETAIL RECORDS OF THE MOBILE PHONE
NUMBERS OF TH ACCUSED, DECEASED, WIFE OF
THE DECEASED AND THE COMPLAINANT:-
67. The prosecution has proved and relied upon the CDRs of
the following mobile numbers:-
(i) Mobile no.9411910274 (of the deceased).
(ii)Mobile no.8755957085 (mobile number/SIM
card taken by the accused from Dehradun).
(iii)Mobile no. 9643008615 (issued in the name of
the accused but being used by the deceased).
(iv)Mobile no.7055099829 (wife of the deceased).
(v)Mobile no. 9717571787 (the complainant).
68. However, nothing material could be culled out from the
above said CDRs so as to prove the allegations against the
accused. The CDR of PW-7 Kavita is relevant only to prove
that the deceased had called her lastly on 11.04.2018 at
around 07:40 p.m. There is nothing in the said CDR to
prove that the mobile phone of the deceased was in
possession of the accused or that the location of the said
mobile phone was in Dehradun at any point of time. There
is no evidence on record that the salon owner Shahnawaz
had switched on the mobile phone of the deceased and
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 32 of 36
inserted his SIM card in the same.
69. Further as per the prosecution, an amount of Rs.15,000/-
was also missing from the possession of the deceased. In
fact, it is the case of the prosecution that the motive behind
the alleged crime is altercation between the accused and the
deceased over money. However, no money has been
recovered from the possession of the accused or at his
instance. Rs.15,000/- is not a small amount and since the
accused had not gone to his house, he had no occasion to
hide the said money or to deposit it with bank or with any
other person. Also, it is beyond the comprehension of this
court as to why the accused would give mobile phone of the
deceased to the salon owner on the ground that he does not
have money to pay him, if was already in possession of
Rs.15,000/-.
70. It is a settled law of criminal jurisprudence that the accused
“must be proved” to have committed the offence and not
“may be proved”. At this juncture, this court thinks it
appropriate to refer to the judgment in ‘Digambar Vaishnav
v. State of Chhattisgarh‘ AIR 2019 SC 1367, wherein it was
observed by Hon’ble Supreme Court that conviction cannot
be based on surmises and conjectures or suspicion,
howsoever grave it may be. Strong suspicion, strong
coincidences and grave doubt cannot take the place of legal
proof. The onus of the prosecution cannot be discharged by
referring to very strong suspicion and existence of highly
suspicious factors to inculpate the accused. The relevant
portion of the said judgment is reproduced below,
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 33 of 36
“16. This Court in ‘Jaharlal Das v. State of
Orissa‘, (1991) 3 SCC 27, has held that even if
the offence is a shocking one, the gravity of
offence cannot by itself overweigh as far as
legal proof is concerned. In cases depending
highly upon the circumstantial evidence, there
is always a danger that the conjecture or
suspicion may take the place of legal proof.
The court has to be watchful and ensure that
the conjecture and suspicion do not take the
place of legal proof. The court must satisfy
itself that various circumstances in the chain of
evidence should be established clearly and that
the completed chain must be such as to rule
out a reasonable likelihood of the innocence of
the accused. In order to sustain the conviction
on the basis of circumstantial evidence, the
following three conditions must be satisfied:
i.) the circumstances from which an inference
of guilt is sought to be drawn, must be
cogently and firmly established;
ii.) those circumstances should be of a definite
tendency unerringly pointing towards the guilt
of the accused; and iii.) the circumstances,
taken cumulatively, should form a chain so
complete that there is no escape from the
conclusion that within all human probability
the crime was committed by the accused and
none else, and it should also be incapable of
explanation on any other hypothesis than that
of the guilt of the accused.
17. In Varkey Joseph v. State of Kerala, 1993
Suppl (3) SCC 745, this Court has held that
suspicion is not the substitute for proof. There
is a long distance between ‘may be true’ and
‘must be true’ and the prosecution has to travel
all the way to prove its case beyond reasonable
doubt.
18. In Sujit Biswas v. State of Assam, (2013)
12 SCC 406, this Court, while examining the
distinction between ‘proof beyond reasonable
doubt’ and ‘suspicion’ has held as under:
“13. Suspicion, however grave it may be,
cannot take the place of proof, and there is a
large difference between something that “may
be” proved, and something that “will be
proved”. In a criminal trial, suspicion no
matter how strong, cannot and must not be
permitted to take place of proof. This is for the
reason that the mental distance between “may
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 34 of 36
be” and “must be” is quite large, and divides
vague conjectures from sure conclusions. In a
criminal case, the court has a duty to ensure
that mere conjectures or suspicion do not take
the place of legal proof. The large distance
between “may be” true and “must be” true,
must be covered by way of clear, cogent and
unimpeachable evidence produced by the
prosecution, before an accused is condemned
as a convict, and the basic and golden rule
must be applied. In such cases, while keeping
in mind the distance between “may be” true
and “must be” true, the court must maintain the
vital distance between mere conjectures and
sure conclusions to be arrived at, on the
touchstone of dis- passionate judicial scrutiny,
based upon a complete and comprehensive
appreciation of all features of the case, as well
as the quality and credibility of the evidence
brought on record. The court must ensure, that
miscarriage of justice is avoided, and if the
facts and circumstances of a case so demand,
then the benefit of doubt must be given to the
accused, keeping in mind that a reasonable
doubt is not an imaginary, trivial or a merely
prob- able doubt, but a fair doubt that is based
upon reason and common sense”.
71. In the present case, the prosecution has not been able to
prove the complete chain of evidence against the accused.
The only reason that the deceased was last seen alive in the
company of the deceased is not sufficient in itself to prove
the charges against the accused, especially in absence of any
corroborative evidence. The FSL report also does not
establish any link between the crime and the accused.
Hence, the court is of the considered opinion that the
prosecution has not been able to prove the charges against the
accused beyond reasonable doubt. It has not been proved that
an altercation had taken place between the accused and the
deceased over Rs.2000/-. It has not been proved that the
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 35 of 36
accused had murdered the deceased by strangulation and
escaped with his mobile phone, 02 sim cards and
Rs.15,000/-. It has further not been proved that the accused
had handed over the mobile phone of the deceased to one
barber at Dehradun in lieu of haircut and shave service. It has
further not been proved that the accused was found in
possession of the sim card of the deceased or that he
criminally misappropriated the property in possession of the
deceased Deepak Kumar i.e. his mobile phone and
Rs.15000/-. It has further not been proved that the accused
was found in possession of stolen property, which he had
dishonestly received/retained in his possession, knowing it to
be stolen property.
72. In view of the above said discussion, accused Dharambir
Nishad S/o Munshi Nishad is acquitted for the offence
punishable under Section 302/404/411 IPC.
73. Copy of order be given dasti to the accused or his counsel
free of cost.
74. File be consigned to the record room after due compliance.
Digitally signed
by SAUMYA
SAUMYA CHAUHAN
CHAUHAN Date: 2025.06.05
16:36:39 +0530
Announced in the open court (Saumya Chauhan)
today i.e. 30.05.2025 ASJ/FTC)-02, West
Tis Hazari Courts/Delhi
Certified that this judgment contains 36 pages and each page Digitally signed by
SAUMYA
bears my signatures. CHAUHAN
SAUMYA CHAUHAN
Date: 2025.06.05
16:36:47 +0530
(Saumya Chauhan)
ASJ/FTC)-02, West
Tis Hazari Courts/Delhi
30.05.2025
State Vs. Dharmbir Nishad SC No.518/18 FIR No. 142/2018 Page 36 of 36