Delhi High Court
Hans Kumar vs The State (Govt. Of Nct Of Del on 16 July, 2025
Author: Subramonium Prasad
Bench: Subramonium Prasad
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 16th JULY, 2025
IN THE MATTER OF:
+ CRL.A. 171/2002
HANS KUMAR .....Appellant
Through: Ms. Suruchi Suri, Adv.
versus
THE STATE (GOVT. OF NCT OF DEL .....Respondent
Through: Mr. Laksh Khanna, APP for the State
+ CRL.A. 243/2002
RAJPAL .....Appellant
Through:
versus
STATE N.C.T. OF DELHI .....Respondent
Through: Mr. Laksh Khanna, APP for the State
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
SHANKAR
JUDGMENT
SUBRAMONIUM PRASAD, J.
1. The instant appeals have been preferred by the Appellants herein
challenging the impugned judgment and order dated 25.01.2002 passed by
the Additional District and Sessions Court, Tis Hazari, New Delhi
(hereinafter referred to as “Trial Court”), convicting the Appellants for the
offences under Section 302/34 of the IPC in SC No. 93/2000 arising out of
FIR No. 723/95 registered at Police Station Janak Puri, Delhi. Vide order of
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sentence dated 01.02.2002, which is also under challenge in the present case,
the Trial Court sentenced the Appellants herein to rigorous life
imprisonment and a fine of Rs. 5,000/- and in case of default in payment of
the fine, each of the convict to undergo further rigorous imprisonment of 1
year.
2. Shorn of unnecessary details, the facts leading to the filing of the
instant appeal are as follows –
a. It is stated that one Shakuntala (PW-5) was married to one
Brahm Dutt, who was serving in UP Police and was posted in
Pillibhit, UP in the year 1988. However, due to unknown
reasons, Shakuntala’s husband disappeared for 8 years, for
which she received a compensation of Rs. 50,000/- from the
Government.
b. It is stated that one Pramod, who is the main accused in the
instant case, living in the same neighbourhood of Shakuntala
started demanding the amount of compensation of Rs. 50,000/-.
It is alleged that Pramod had threatened to kill Shakuntala if she
does not part with the said amount. Upon receiving several
demands, Shakuntala transferred the entire amount to her
brother, Suresh Sharma (hereinafter referred to as the
“deceased”), and started living with him in Delhi. After
knowing her whereabouts, Pramod also moved to the same
neighbourhood and started threatening to kill the deceased if the
said amount is not given to him.
c. On the fateful night of 08.10.1995, DD No. 18A was received
by the Police Station, Matiala and SI Swadesh Prakash (PW-11)
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and Constable Satish Kumar (PW-7) rushed to the spot and
found the dead body of Suresh Sharma lying between Plot No.
D-7 and D-1, Bajaj Enclave. It is stated that the deceased had
stab injuries in his chest as well as his stomach.
d. When the police reached the place of incident, one Sumer Singh
(PW-1) and one Mahesh were already at the scene, however, it
was not them who had informed the police about the incident.
e. Thereafter, the police conducted the investigation and identified
the five accused persons. The police arrested four accused
persons namely – Hans Kumar, Raj Pal, Shamsher Allam and
Virender Singh on 31.10.1995. Pramod Kumar was declared a
proclaimed offender (PO). The role assigned to Hans
Kumar/Appellant herein, is that he aided Pramod in killing the
deceased by holding his hands and the role assigned to Raj
Pal/Appellant herein is that he threatened the sister and wife of
the deceased with a knife not to inform about this incident to
anyone.
f. All the accused persons were charged under Section 302/34 of
the IPC and Sections 24, 54, 59 of the Arms Act, 1959. All the
accused persons pleaded not guilty and chose to be put on trial.
g. Vide impugned judgment and order 25.01.2002, the Trial Court
acquitted accused persons Shamsher Allam and Virender Singh
for lack of evidence against them. The Trial Court, however,
convicted the Appellants herein i.e., Hans Kumar and Raj Pal
under Sections 302/34 of the IPC and were sentenced to
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rigorous imprisonment of life along with a fine of Rs. 5,000/-
vide order of sentence dated 01.02.2002.
h. It is these orders which are under challenge in the instant
appeal.
3. Learned Counsel for the Appellants submitted that the Trial Court has
not appreciated the evidence on record in the correct perspective and has
solely relied on the testimony of the deceased’s wife, Jagwati (PW-6) while
convicting the Appellants herein. It is contended that the Trial Court has
erroneously considered PW-5 and PW-6 as eye-witnesses, when there was
no one present at the scene when the incident took place. It is stated that
there are serious discrepancies in the statements of the witnesses. It is stated
that the testimony of PW-6 is not supported by the testimonies of PW-1 and
PW-5. PW-1 deposed that he found the body of the deceased and has
informed PW-5 and PW-6 about the same. The same stance has been taken
by PW-5 as well in her examination, thereby eliminating the possibility of
PW-5 and PW-6 being the eye-witnesses of the incident. PW-6 has deposed
that the she has witnessed the entire incident from her house, along with her
sister-in-law i.e., PW-5, and saw her husband getting killed by Pramod with
the help of the Appellants herein which is contrary to the testimony of PW-1
who is an independent witness.
4. PW-6 has deposed that she was a witness to the entire incident from
the place of the deceased. Material on record shows that the place of
incident cannot be seen from the house of the deceased. It was stated that the
incident took place on a pitch dark night, where there was no electricity in
the neighbourhood and therefore, it is impossible for PW-6 to witness the
entire incident from the deceased’s house and identify the perpetrators and
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the weapon used by them. Moreover, it is brought to the Court’s attention
that there are 4 houses situated in a row next to the deceased’s house, with
two built-up plots and three vacant plots and that the boundary walls are
about 5-6ft in height. It is also stated that the site plan prepared by the police
merely mentions the spot of the incident and does not point out the position
of the eye-witnesses. Therefore, the contention of PW-6 that she has
witnessed the incident is unreliable as there is no material basis to the same.
5. It is further contended that the prosecution failed to prove that there is
a direct nexus of the Appellants here to the incident or failed to show any
motive or intention on the Appellants’ part. The prosecution also failed to
corroborate the testimony of PW-6 with substantial material, and therefore,
the instant case was not proven beyond reasonable doubt against the
Appellants herein and that they must be acquitted.
6. Per Contra, learned APP for the State submitted that the Trial Court
was right in convicting the Appellants herein under Sections 302/34 of the
IPC based on the testimony of PW-6 as she is a reliable and a material
witness in the instant case. It is stated that both PW-5 and PW-6 recorded
their statements under Sections 161 of the IPC, wherein they have
categorically mentioned the involvement of the Appellants herein in the
commission of the offence, thereby supporting the case of the prosecution.
However, while giving her statement under oath, PW-5 turned hostile
indicating that she has been influenced and PW-6 reiterated the same
narrative, proving that there is credibility in her testimony.
7. It is also submitted that the testimony of witnesses cannot be
disregarded merely on the basis that they are interested/related witnesses.
Although PW-6 is an interested/related witness, she was placed in such a
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position that she witnessed the commission of the offence and was able to
identify the accused persons as well as the weapon involved. PW-1, in his
cross-examination, stated that PW-6 was present at the place of incident
when the police arrived. Therefore, the Trial Court had evaluated the
evidence appropriately and the prosecution also proved the case against the
Appellants herein beyond reasonable doubt, and hence, were rightly
convicted under Section 302/34 of the IPC.
8. Heard learned counsel for the parties and perused the material on
record.
9. The case of the prosecution is that Shakuntala, sister of the deceased,
received Rs. 50,000/- as compensation from the Government for the
disappearance of her husband for more than 8 years. Pramod, who is the
main accused and proclaimed offender in the instant case, was living in her
neighbourhood and had started demanding the said money from her. Upon
receiving life threats and repeated demands, Shakuntala transferred the
amount to her deceased brother and later, also moved in with him in Delhi.
Pramod also shifted to the said neighbourhood to stay close to Shakuntala.
He along with the other accused persons threatened to kill the deceased
brother if he fails to part with the said amount. On the intervening night of
08.10.1995, at around 9:30 PM, Pramod with the aid of four co-accused
persons, killed the deceased by inflicting multiple stabs on his chest and
stomach.
10. It is the case of the prosecution that while the incident was taking
place, Shakuntala and Jagwati were waiting for the deceased to reach home
and while waiting at the front door, witnessed the entire incident. Upon
seeing the incident, Jagwati became unconscious and by the time she
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regained her consciousness, the police had been informed. Jagwati, who was
an eye-witness to the incident, stated that she saw Hans Kumar holding the
hands of the deceased by restricting him from defending himself while
Pramod stabbed the deceased multiple times. She also stated that Raj Pal
threatened to kill both Shakuntala and Jagwati with a knife if they ever
revealed this incident and their identities to the police. Moreover, the house
of the deceased was merely 500 metres from the place of incident and
therefore, there is a strong possibility that Jagwati had not only witnessed
the incident but has also in a position to identify the perpetrators as well as
the weapon carried by Raj Pal.
11. On the contrary, it is the case of the Appellant that the prosecution
failed to prove the case beyond reasonable doubt against the Appellants
herein and the Appellants have been falsely implicated. Further, the
testimonies are contradictory in nature, thereby defeating the veracity and
credibility of the PW-6’s testimony. Material on record also does point out
that the testimony of PW-6 cannot be believed.
12. Before adverting to the merits of the case, it is apposite for this Court
to examine and evaluate the testimonies of the witness statements give
before the Trial Court.
13. Sumer Singh, PW-1, stated that a few days before Diwali of 1995, at
about 10:00 PM, he was returning from his job when he found the dead body
of the deceased on the road. He stated that the deceased was his neighbour
and upon finding his body, he informed the deceased’s family. In his cross
examination, he stated that he has been living in the neighbourhood for
around 1.5 years prior to the incident. In the cross-examination, he stated
that the wife of the deceased was also present at the spot. Regarding the
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proximity of the incident to the deceased’s house, he stated that there is one
house between his house and deceased’s house and that there are 4 houses
situated in a row near the deceased’s house with 3 vacant plots and 2 built-
up plots from plot bearing No. D-14 and D-10.
14. PW-2, HC Shishu Pal, in his testimony, stated that on 08.10.1995, at
about 11:30PM, he received a rukka sent by SI Swadesh Prakash (PW-11)
and Ct. Satish Kumar (PW-7), based on which he registered an FIR bearing
No. 723/95 for the offence under Section 302 of the IPC.
15. PW-3, Dr. L.K. Baruah, conducted the post-mortem of the deceased
on 09.10.1995 at the Civil Hospital, Delhi. He stated that the body of the
deceased was brought by Ct. Satish Kumar at around 10:15 PM with stab
injuries on his body. Upon examination of the body, he observed the
following external injuries, which are as follows –
16. He stated that the Injury No. 1 was sufficient to cause death in
ordinary course of nature. He further stated that the time since death was
approximately 15-16 hours and that death was due to haemorrhagic shock
resulting from Injury no. 1.
17. SI Mahesh Kumar, PW-4, prepared a Site Plan of the place of incident
based on the rough notes and measurements he had taken when he visited
the site. In his cross examination, he testified that the height of the boundary
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walls were about 5 to 6 feet. He also stated that he does not remember taking
any measurements of the distance between the road and the place of
incident.
18. PW-5, Shakuntala, the sister of the deceased deposed that she was
married to Brahm Dutt about twenty years back. While her husband was
posted in Pilibhit, UP, he disappeared in 1988. Due to his disappearance, the
Government gave her a compensation of Rs. 50,000/-. Pramod, who stays in
her neighbourhood, started demanding the said amount from her and also
threatened to kill her if she does not part the money with him. She
transferred the said amount to her deceased brother and moved in with him
in Kakrola Mor, Delhi. Upon receiving this information, Pramod took a
room near to the house of the deceased. He alone visited the deceased to
demand the money from him. She stated that her brother usually returns
home around 9 PM, however, on 08.10.1995, he did not return home at the
normal time. She stated that one person came to the house of the deceased to
inform them that the deceased was lying on the road unconscious. When she
and her sister-in-law i.e., PW-6 reached the place of incident, they saw
Pramod fleeing the scene.
19. In her cross-examination, she stated that she does not know whether
the co-accused persons lived with Pramod. She specifically stated that it was
incorrect to suggest that the co-accused persons threatened to kill the
deceased and demanded money from him. She further stated that it was false
to suggest that the deceased died while she was standing at the door along
with her sister-in-law at around 9:45 PM. She denied that Hans Kumar held
the hands of the deceased and that Raj Pal threatened her with a knife.
Although she conceded that the sister-in-law was unconscious at the spot,
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she denied that the reason for the same was due to her husband being
stabbed in front of her eyes. She further denied all the recorded statements
given to the police under Section 161 of the CrPC.
20. Jagwati, PW-6, is the wife of the deceased. In her chief examination,
she stated that PW-5 received a total compensation of Rs. 70,000/- which
was kept in the Bank. Once PW-5 started living with them, the five accused
persons came to the deceased’s house and threatened to kill him if the said
amount does not reach them. She stated that on 08.10.1995, at around 9:30
PM, she and PW-5 came out of the house to look for the deceased, when
they witnessed that Hans Kumar held the hands of the deceased while
Pramod was stabbing her deceased husband. Upon noticing their presence
on the scene, Raj Pal threatened them with a knife to leave the spot without
making any noise, whereas the other two accused persons were keeping a
watch. She stated that she became unconscious on the spot and that none of
the accused persons were arrested in her presence. It is recorded in her
testimony that she identified four accused persons – Hans Kumar, Raj Pal,
Shamsher Allam and Virender Singh in Court as well as the weapon used by
Raj Pal for threatening her and PW-5.
21. She stated in her cross-examination that she did not meet PW-1 on the
date of the incident and neither did he inform her about the deceased lying
on the road unconscious. She stated that the deceased was lying about 5-6
yards away from their house. It was stated that she did not cry for help when
the deceased was getting killed due to being threatened by Raj Pal. Further,
she does not know in which direction the accused persons ran after the
incident as she fell unconscious. It was further testified that by the time she
regained her consciousness, the deceased’s body was already removed. It
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was stated that on the intervening night, there was no electricity in the
neighbourhood. She stated that the deceased’s body was found in another
street other than that of her house. She also stated that she did not give any
statement to the police on the intervening night. It was also stated that she
identified the accused persons because they visited the house of the deceased
along with Pramod.
22. PW-7, Constable Satish Kumar, testified that on 08.10.1995, at about
10:15 PM, a copy of DD No. 18A was received by him and SI Swadesh
Prakash (PW-11). When they reached the place of incident, the deceased was
found between D1 and D7 plots in Bajaj Enclave and was identified as one
Suresh. It was also recorded that by the time they reached the place of
incident, public persons were present at the scene. Thereafter, the rukka was
prepared and was handed over to the duty officer,
23. PW-8, Inder Pal, is the brother-in-law of the deceased. He stated that
the dead body was received by him after the conduct of post-mortem.
24. Constable Narinder, PW-9, stated in his examination that on
31.10.1995, at about 1:00PM, he along with other police officers
interrogated PW-6, wherein she mentioned that the accused persons are
living in the same neighbourhood. She disclosed the accused persons names
as Raj Pal, Shamsher Allam, Varinder and Hans Kumar. She pointed out the
room to him and all the four accused persons living in the room were
identified and arrested. It is also stated that they have recovered a knife from
Raj Pal and the same was seized by them.
25. Constable Kishan Singh, PW-10, who is a photographer, stated that on
the direction of the SHO, he took photographs of the place of incident.
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26. PW-11, SI Swadesh Prakash, deposed that he received DD No. 18 on
08.10.1995 at about 10:15 PM. Upon reaching the place of incident, he
found the deceased’s body lying in a pool of blood and was identified as one
Suresh. He stated that he made enquiries in the neighbourhood and recorded
statements of the witnesses i.e., Jagwati, Shakuntala and Sumer Singh. It is
also stated that on 31.10.1995, he arrested Raj Pal, Varinder, Hans Kumar
and Shamsher Aalam based on Jagwati’s statement. It was also stated that a
knife was recovered from an almirah at Raj Pal’s room. However, it was
stated that he could not arrest Pramod as he was untraceable and therefore,
declared a proclaimed offender. He further stated that Jagwati’s house is
situated 0.5 km away from the place of incident and the same cannot be seen
from her house due to a turn. Moreover, he stated that Jagwati was not
present at the time of recovery of the weapon.
27. It is pertinent to mention that the Appellants herein have pleaded not
guilty and claimed trial.
28. After perusing the foregoing witness testimonies and the material on
record, this Court is of the view that there are serious discrepancies in the
case of the prosecution. Upon reading the impugned judgment and order
dated 25.01.2002, it is clear that the conviction of the Appellants herein
under Section 302/34 of the IPC was based solely on the testimony of PW-6,
who happened to be an “eye-witness” in the instant case. However, the
veracity and the credibility of PW-6’s testimony is disputed.
29. For the sake of convenience, the list of discrepancies in the case of
prosecution are as follows –
i. As per PW-6, on 08.10.1995, at around 9:30 PM, she has
witnessed killing of her deceased husband by one Pramod. She
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also explained in detail that Hans Kumar held the hands of the
deceased while the deceased was subjected to stabbing and that
Raj Pal threatened her and PW-5 with a knife to not make any
noise. However, the said statement cannot be found to be
reliable as on the date of incident, there was no electricity in the
neighbourhood and it was pitch dark. There arises little to no
possibility of PW-6 witnessing not only the entire incident but
also the identification of the accused persons as well as the
weapon carried by Raj Pal. Moreover, as per PW-11, the house
of the deceased is situated 0.5km away from the place of
incident and it has come on record that the place of incident
cannot be seen from the deceased’s house.
ii. According to PW-6’s statement, she along with her sister-in-law
were present at the scene of incident. However, as per PW-1
and PW-5, it was Sumer Singh who informed both of them
about the death of the deceased, which defeats the credibility of
her statement.
iii. Regarding the identification of the weapon, the scenario seems
to be staged as PW-6 could not have observed the details of the
weapon carried by Raj Pal. Moreover, the police has not seized
the weapon in front of PW-6, therefore, questions on reliability
of PW-6 further arises.
iv. The motive as brought forward by the prosecution is that
Pramod had a motive to kill the deceased as he had demanded
compensation received by PW-5. However, in her testimony,
PW-5 has not mentioned about this and, in fact she admitted it
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to be false, that the Appellants herein were involved in
threatening or demanding money from the deceased. No
intention or motive has been proved by the prosecution.
v. The site plan prepared by PW-4 merely mentions where the
body of the deceased is found but does not mention the place
from where the eye-witness would have witnessed the incident.
Only a rough site plan has been prepared, the same cannot be
relied on for corroboration.
30. Throwing light on the veracity of related and sole eye-witnesses, the
Apex Court in the case of Anil Phukan v. State of Assam, (1993) 3 SCC
282, observed as under –
“3. This case primarily hinges on the testimony of a
single eyewitness Ajoy PW 3. Indeed, conviction can be
based on the testimony of a single eyewitness and there
is no rule of law or evidence which says to the contrary
provided the sole witness passes the test of reliability.
So long as the single eyewitness is a wholly reliable
witness the courts have no difficulty in basing
conviction on his testimony alone. However, where the
single eyewitness is not found to be a wholly reliable
witness, in the sense that there are some circumstances
which may show that he could have an interest in the
prosecution, then the courts generally insist upon some
independent corroboration of his testimony, in material
particulars, before recording conviction. It is only
when the courts find that the single eyewitness is a
wholly unreliable witness that his testimony is
discarded in toto and no amount of corroboration can
cure that defect. It is in the light of these settled
principles that we shall examine the testimony of PW 3
Ajoy.
4. Ajoy PW 3, on his own showing, is the nephew of the
deceased. He had accompanied the deceased to theSignature Not Verified
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place of occurrence when the latter went to recover the
loan from Anil, appellant. This witness, therefore, is a
relative of the deceased and an interested witness. Of
course, mere relationship with the deceased is no
ground to discard his testimony, if it is otherwise found
to be reliable and trustworthy. In the normal course of
events, a close relation would be the last person to
spare the real assailant of his uncle and implicate a
false person. However, the possibility that he may also
implicate some innocent person along with the real
assailant cannot be ruled out and therefore, as a matter
of prudence, we shall look for some independent
corroboration of his testimony, to decide about the
involvement of the appellant in the crime. Since, there
are some doubtful aspects in the conduct of Ajoy PW 3,
it would not be safe to accept his evidence without
some independent corroboration, direct or
circumstantial.”
31. In the present case, PW-6 is the wife of the deceased and is a related
witness. However, the Trial Court has examined her as an eye-witness and
relied solely on her testimony while convicting the Appellants, finding her
version believable. Since PW-5 tuned hostile, no reliance has been placed on
her testimony even though she claimed to have seen Pramod fleeing the
place of incident.
32. It is a well settled principle of criminal jurisprudence that the case
must be proven beyond reasonable doubt. However, the foregoing list of
discrepancies show that the prosecution has failed to prove their case beyond
reasonable doubt and he should not have been convicted based on the sole
testimony of PW-6, which according to this Court is unreliable. From the
material on record, it is apparent that she was not an eye-witness in the
present case.
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33. On an analysis of the material on record, this Court is of the opinion
that the prosecution has failed in proving their case against the accused
beyond reasonable doubt.
34. Resultantly, the impugned judgment is set aside. The Appellants are
acquitted. They are directed to be released forthwith.
35. Copy of this order be sent to the concerned Jail Superintendent for the
immediate release of the Appellants herein.
SUBRAMONIUM PRASAD, J
HARISH VAIDYANATHANSHANKAR, J
JULY 16, 2025
RJ/SM
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