Delhi District Court
State vs Ashish Kapoor Others 7B on 19 August, 2025
IN THE COURT OF ANURAG THAKUR
ADDITIONAL SESSIONS JUDGE (FTC)
EAST DISTRICT, DELHI
Session Case No.: 978/2016
State Vs : Ashish Kapoor & Ors.
FIR No. : 218/2010
U/s : 302/120B IPC
PS : Preet Vihar
CNR No.: DLET01-000717-2010
Date of Institution : 26.10.2010
Date of Judgment reserved on 21.07.2025
Date of Judgment : 19.08.2025
Name(s) of the accused : (i) Ashish Kapoor
S/o Ramesh Chand Kapoor
R/o F/182-AA, Mangal Bazar,
Laxmi Nagar, Delhi.
(ii) Anish Khan @ Munnu
S/o Babu Khan
R/o E-40/2, East Guru Angad
Nagar, Delhi.
Also at:- 181/A, Parwana Road,
Khureji Khas, Delhi.
(iii) Santosh @ Ashwani
S/o Moti Ram Damodar
R/o E-40/89, East Guru Angad
Nagar, Radhu Palace, Delhi.
(iv) Gaurav @ Rajeev
S/o Chander Kumar
R/o B-223, Vill. Jhhreda, Delhi.
Digitally
signed by
ANURAG
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THAKUR Date:
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(v) Imran Khan
S/o Sanaullaha Khan,
R/o Munnu ka Makan,
Gali No.4, Badi Masjid,
Khureji Khas, Delhi.
(vi) Devender @ Babloo
S/o Rohtash
R/o 61L, East Laxmi Market,
Near Radhu Palace, Delhi.
(vii) Nazrul
S/o Mohd. Yameen
R/o 40/372, Jhuggi Radhu
Palace, East Guru Angad Nagar,
Delhi.
(viii) Asif Teli @ Asif Malik
S/o Alladiya
R/o 39, Gali No.4, Aram Park,
Delhi.
Offence complained of : 302/120B IPC
Plea of the accused : Pleaded not guilty
Final order : Acquitted
JUDGMENT
1. The nub of the prosecution case is as follows:-
(a) An information regarding quarrel and firing near Radhu
Palace was received at PS Preet Vihar on 15.06.2010 at 4:42 hrs
which was recorded as DD No.5A. At 5:17 a.m. information was
received about firing by two boys near Radhu Palace and the
same was reduced into writing at DD No.6A. Both the DDs were
marked to SI Anant Kiran for necessary action. He reached at the Digitally
signed by
ANURAG
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THAKUR Date:
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spot where he found one person lying on the ground in face
down position with blood oozing out from back of his head. He
sent the injured to LBS hospital in the PCR van. He found three
used cartridges at the spot. He informed SHO Preet Vihar and
also called the crime team at the spot. Upon arrival of SHO at
the spot, he along with Inspector Pankaj Malik left for LBS
hospital. The injured was declared brought dead by the doctor.
MLC of deceased was collected.
(b) An eyewitness namely Sarfaraz s/o Jamasher met them and
he identified the dead body in the mortuary as that of his cousin
brother Shakeel @ Aqeel s/o Salim r/o Jitar Nagar, Gali No. 18
who earlier resided at Jhuggis near Radhu Palace. Munnu @
Anish Khan was his childhood friend. Later, Shakeel married
Munnu’s elder sister Shakeela which enraged Munnu and he
along with his family members had beaten up Shakeel’s family.
A rivalry started and around 2 years ago, Shakeel had fired upon
Munnu. Shakeel remained in jail for a long time and was later
released on bail. About 3-4 days ago, Shakeel had told him that
he had been receiving calls from Munnu for reconciliation and
for ending their enmity. He also mentioned receiving of phone
calls from Asif Teli and Ashish Kapoor. Last night at around 10
p.m., he and Shakeel went on his CBZ motorcycle and parked it
near the Jhuggis in East Guru Angad Nagar and they went to
Ashish Kapoor’s hostel as Munnu had asked Shakeel to meet
him there. At the hostel, they met Ashish Kapoor and Asif Teli.
At around 11:30 p.m., Munnu @ Anish, Gaurav, Imran, Babloo,
Digitally
signed by
ANURAG
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ANURAG THAKUR
THAKUR Date:
2025.08.19
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Santosh, and Nazrul arrived. Reconciliation talks occurred
between Shakeel and Munnu. Munnu called for bottles of beer
from his house and they all drank the same. At about 02:00 a.m
Shakeel and Munnu arrived at a settlement and they embraced
each other. Thereafter, Munnu took all of them to Jama Masjid
for dinner. Shakeel and Munnu lost their mobile phones when
they were having dinner at Jama Majid so Munnu reported the
same to PCR. Policeman from PS Jama Masjid reached there
and recorded their statements and then at about 04:30 a.m, they
all came back near East Guru Angad Nagar. When they were
about to go to their respective houses, then the plug of the
motorcycle of Shakeel was found broken and upon this Munnu
told him to take his motorcycle. In the mean time Babloo took
out a country made pistol and fired on Shakeel but the bullet did
not hit him. Shakeel left the motorcycle and started running to
save himself. Babloo, Anis @ Munnu, Imran and Nazrul chased
him for about 50 steps and caught hold of him near Gali no.1,
East Guru Angad Nagar chauraha (crossroad). They punched and
kicked Shakeel. Gaurav, Nazrul, Babloo and Imran told Munnu
‘kya dekh raha hai, goli maar saale ko or khatam kar ke badla le
le’ and on that Munnu fired 3-4 bullets from his pistol on
Shakeel. Shakeel tried to save himself but because of injuries
sustained, he fell face down on the ground. Thereafter, all those
persons came towards him (Sarfaraz) and he ran away from the
spot and went to Shakeel’s elder sister Shama’s house at Jitar
Nagar and informed the police. He along with mother and sister
of Shakeel went to PS Preet Vihar where they came to know thatFIR No.218/2010 PS Preet Vihar State vs. Ashish Kapoor & Ors. 4 of 39 Digitally
signed by
ANURAG
ANURAG THAKUR
THAKUR Date:
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Shakeel had been taken to LBS hospital. They reached the
hospital where they came to know that Shakeel had already died.
All those persons had conspired together to satisfy their old
grudge and had murdered his cousin brother by calling him on
the pretext of entering into a compromise.
(c) Rukka was prepared on the basis of MLC of deceased and
statement made by eye-witness Sarfaraz. The rukka was handed
over to Ct. Sunil for registration of FIR and the present FIR was
registered u/s 307, 302, 34 IPC and 25, 27 Arms Act.
(d) On 16.06.2010 (upon receiving a tip-off) accused Ashish
Kapoor was apprehended from near PSK, Preet Vihar. On
17.06.2010 information was received from Crime Branch, Nehru
Place, about arrest of accused Gaurav @ Rajee, Anish @
Munnu, Imran Khan, Devender and Santosh in FIR No. 87/10
u/s 186, 353, 307, 34 IPC and 25, 27 Arms Act, at PS Crime
Branch, Nehru Place, and they had disclosed their involvement
in FIR No. 218/10 of PS Preet Vihar. During investigation of
FIR No. 87/10, PS Crime Branch, Nehru Place, the following
items were recovered from the culprits:
• From Anish @ Munnu – a pistol with four live
cartridges and one fired cartridge
• From Gaurav @ Rajee – one pistol with four live
cartridges and one fired cartridge
• From Santosh – one country-made pistol and two
live rounds Digitally
signed by
ANURAG
ANURAG THAKUR
THAKUR Date:
2025.08.19
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• From Devender @ Babloo – one pistol and three live
rounds
• From Imran – one pistol with two live rounds
These weapons were allegedly used in the murder of Shakeel. A
Honda City car No. UP 14 AC 7188 and two motorcycles, used
for travel from Ashish Kapoor’s hostel to Jama Masjid and from
there to East Guru Angad Nagar and then used to flee after
killing Shakeel, were also recovered.
(e) On 30/08/2010, accused Nazrul surrendered before the Court.
After obtaining permission and conducting interrogation and
upon emergence of sufficient evidence, he was arrested in the
present case.
(f)Accused Asif Teli joined investigation in compliance of the
order passed by the Hon’ble High Court of Delhi and a
supplementary charge sheet was filed against him.
2. The court of Ld. Metropolitan Magistrate took cognizance of
the offence. After supply of copy of charge sheet to accused and
upon completion of necessary legal formalities the case was
committed to the Court of Sessions. Pursuant to order of Ld.
Principal District & Sessions Judge, East, the matter was fixed
for hearing on point of charge. The charge for offence
punishable u/s 302,120B IPC was framed against the accused
persons to which they pleaded not guilty and claimed trial.
3. In order to establish its case, prosecution examined forty two
(42) witnesses which are tabulated as under:- Digitally
signed by
ANURAG
ANURAG THAKUR
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Rank Name Brief DescriptionPW-1 Sarfaraz s/o Jamasher
Eyewitness
PW-2 Shama w/o Naushad
Sister of deceased
PW-3 Salim Father of deceased
PW-4 Wasim @ Sajid
Brother of deceased
PW-5 Dr. B.N.Acharya
Conducted postmortem
PW-6 HC Rojailia DO, Crime Branch
PW-7 WCt. Kavita Received PCR call
PW-8 WCt. Anita Received PCR call
PW-9 Ct. Naim Pal Singh
Delivered copy of FIR to Ilaqa
MM
PW-10 Dr. Sushil Kumar Prepared MLC of deceased
PW-11 Ct. Jagbir Singh Photographer, Crime Team
PW-12 SI Mohd. Faiyaz Inquired into DD 4A PS Jama
Masjid marked to him
PW-13 HC Ali Haider DO (recorded present FIR)
PW-14 HC Fateh Mohammad DD Writer, PS Preet Vihar
PW-15 HC Harpal PCR Official
PW-16 Retd. SI Kedarnath Mechanical Inspector
PW-17 ASI Shri Gopal Received pullandas (parcels)
from doctor
PW-18 Ct. Sunil Took rukka to PS and got FIR
registered
PW-19 HC Raja Ram Part of team of ARC, Crime
Branch, Nehru Place
PW-20 SI Naveen Kumar Incharge Crime Team, East
PW-21 Ct. Pramod Kumar Participated in arrest of
accused Ashish Kapoor.
PW-22 Insp. Pankaj Malik Recorded statement of Sarfaraz
and prepared rukka.
PW-23 HC Johnson MHC(M), Preet Vihar
PW-24 HC Shaji Participated in PC proceedings
of accused Anish.
Digitally
signed by
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ANURAG THAKUR
THAKUR Date:
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PW-25 Sushil Kumar Ahlmad in court of Sh.
R.L.Meena Ld. ASJ, Dwarka
PW-26 Sh. R. L. Meena Ld. ASJ, Dwarka Courts.
PW-27 ASI Bajrang Lal Part of team of ARC, Crime
Branch, Nehru Place
PW-28 HC Ashok Kumar Part of team of ARC, Crime
Branch, Nehru Place
PW-29 Surender Kumar Nodal Officer, Bharti Airtel
Ltd.
PW-30 Pawan Singh Nodal Officer, Idea Cellular
Ltd.
PW-31 SI Sumer Singh IO of FIR No. 87/10, PS Crime
Branch
PW-32 ASI Ranvir Singh Paritcipated in investigation of
accused Nazrul
PW-33 HC Sanjay Kumar Deposited the Parcels
(pullandas) at FSL
PW-34 Insp. Anant Kiran Inquired into DD No. 5A PS
Preet Vihar
PW-35 HC Nihal Singh Part of team of ARC, Crime
Branch, Nehru Place
PW-36 Insp. Mahesh Kumar Draughtsman, Crime Team
Made scaled site plan of spot
PW-37 Insp. Sanjay Neolia Part of team of ARC, Crime
Branch, Nehru Place
PW-38 HC Prem Singh Produced previous criminal
record of accused Ashish
PW-39 Pawan Singh Alternate Nodal Officer,
Vodafone Idea Ltd.
PW-40 HC Himat Singh Produced previous criminal
record of accused Gaurav
PW-41 HC Paramvir Singh Brought register no.19 of PS
Crime Branch qua FIR 87/2010
PW-42 Dr. N. P.Waghmare Asst. Director (Ballistics)
proved his FSL reports
FIR No.218/2010 PS Preet Vihar State vs. Ashish Kapoor & Ors. 8 of 39
(a) Dead body identification witnesses:-PW-3 and PW-4
identified the dead body of Shakeel at Mortuary of LBS Hospital
and after postmortem the dead body was handed over to them.
(b) Witnesses qua Investigation of FIR No.87/2010 PS Crime
Branch:- PW-19, PW-27, PW-28, PW-35 and PW-37 were part
of the Anti-Robbery Cell, Crime Branch team constituted by
Inspector Richhpal which purportedly nabbed Anish, Gaurav,
Santosh, Devender and Imran near Malwa Farmhouse, Bijwasan
Near IOC Depot. PW-19 and PW-35 together apprehended
accused Anish and they recovered one pistol, four live cartridges
and one used cartridge from him. PW-27 snatched pistol from
hand of accused Gaurav after Gaurav had fired upon HC
Sandeep. PW-28 apprehended accused Imran and recovered one
pistol alongwith two live cartridges from him. PW-37
apprehended one Rohit (not connected to the present case). He
also prepared seizure memos of arms and ammunition recovered
from accused Gaurav, Santosh, Devender, Imran and Anish. He
prepared the rukka which lead to registration of FIR no.87/10 PS
Crime Branch. The FIR was recorded by Duty Officer who
deposed as PW-6. After registration of FIR at Crime Branch, the
further investigation of that case was taken over by PW-31.
(c) Witnesses of Crime Team who inspected the spot of incident
in present FIR:- PW-11 was part of Mobile Crime Team, he took
8 photographs of the spot. PW-20 was Incharge, Mobile Crime
Team who inspected the spot and prepared Scene of Crime VisitFIR No.218/2010 PS Preet Vihar State vs. Ashish Kapoor & Ors. 9 of 39
Report and handed over the same to IO. PW-36 inspected the
spot and prepared the scaled site plan of the spot.
(d) Medical Experts:- PW-10 was CMO casualty who declared
Shakeel as brought dead and prepared his MLC. PW-5
conducted postmortem of Shakeel, enlisted the injuries suffered
and opined about the cause of his death.
(e) Formal Witnesses:- PW-29, PW-30 & PW-39 are Nodal
Officers of Telecom Providers who were summoned to produce
CAFs and CDRs pertaining to various mobile numbers. Though
they produced the CAFs but they did not produce the CDRs as
the same had been weeded out by the time the summons were
received by them to produce the same. PW-25 was Ahlmad in
the court where trial of FIR No.87/2010 PS Crime Branch was
conducted and he produced the case file of that trial. PW-38 and
PW-40 produced the previous conviction record of accused
Ashish and Gaurav respectively.
(f) Remaining other witnesses were involved at one stage or
other in the investigation of the present case.
4. A brief account of the depositions made by the material
witnesses of prosecution is reproduced herein below:-
(a) Evidence of Eye Witness:- PW-1 Sarfaraz i.e. the
complainant of the case deposed that Shakeel @ Akeel was his
cousin who used to live at Radhu Palace. He was an auto-
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rickshaw driver. He did not know Munnu @ Anish. Shakeel was
married and name of his wife was Parveen. He did not know the
names of her brother or parents. He did not know if Shakeel was
having enmity with anyone including Munnu @ Anish as
Shakeel had married elder sister of Munnu. He did not know if
about two years ago Munnu had received gun shot injury at the
hands of Shakeel and that Shakeel had remained in jail for some
time. He further deposed that he had gone to LBS Hospital on
receiving information that Shakeel had died as he had been shot
at. He went to the hospital where police met him and obtained
his thumb impressions on some blank papers. He did not know
how Shakeel sustained bullet injuries and how he died or who
killed him. He stated that he had not given any statement to the
police. He further stated that no accused of the case was arrested
in his presence nor he had identified any accused. He had not
identified accused Nazrul. He did not know accused Babloo @
Devender, Imran Khan, Santosh, Gaurav @ Rajee nor he could
identify them. PW-1 further stated that he had not joined any
investigation with respect to the present case. He further stated
that he had appeared before the court upon summons. He refused
to identify the accused persons as well as the case properties as
he was not present at the time of the incident.
(b) Ld. Additional PP was allowed to cross-examine the witness
as he was resiling from his previous statement. During cross-
examination by ld. Addl. PP for the State he denied that a report
was lodged in PS Preet Vihar upon his statement Mark P1
bearing his thumb impression at point X. He denied that Munnu
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ANURAG
ANURAG THAKUR
THAKUR Date:
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@ Anish was friend of Shakeel @ Akeel and Shakeel had
married with the sister of Munnu namely Shakeela and due to
this marriage Munnu got annoyed and he had also beaten the
family members of Shakeel (Portion A to A of Mark P1). He
denied that he had stated to the police in his statement that
Shakeel fired on Munnu and for that Shakeel had remained in
jail for sometime and released on bail (Portion B to B of Mark
P1). He denied that Shakeel had told him that he received a
phone call from Munnu and stated that they should compromise
the matter and for that reason Asif Teli and Ashish Kapoor were
contacting him on phone. (Portion C to C of Mark P1). He
denied that on 14.06.2010 at 10:00 p.m., he along with Shakeel
on his motorcycle CBZ went to the hostel of Ashish Kapoor near
jhuggies of East Guru Angad Nagar as Munnu had told Shakeel
to come to the hostel of Ashish Kapoor and they parked their
motorcycle near that place where Ashish Kapoor and Asif Teli
met them (Portion D to D of Mark P1). He denied that they had
talked about their compromise to settle the dispute and at about
11:30 p.m, Munnu @ Anish, Gaurav, Imran, Babloo @
Devender, Santosh, Nazrul (all of them known to him by their
names) and Shakeel were trying to patch up their differences
(Portion E to E of Mark P1). He further denied that Munnu had
called for bottles of beer from his house, they all drank the same
and at about 02:00 a.m, Shakeel and Munnu reached at a
settlement and thereafter, Munnu took all of them to Jama
Masjid for a dinner (Portion F to F of Mark P1). He denied that
he himself with Shakeel, Munnu, Gaurav, Asif and Ashish had
Digitally
signed by
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ANURAG THAKUR
THAKUR Date:
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gone in the Honda City Car of Munnu and Imran, Babloo,
Santosh and Nazrul had gone on the motorcycles (one
motorcycle of Munnu) (Portion G to G of Mark P1). He further
denied that Shakeel and Munnu lost their mobile phones when
they were taking dinner at Jama Masjid and after that, Munnu
called PCR, police of PS Jama Masjid reached and recorded
their statement and then at about 04:30 a.m, they all ccame back
near East Guru Angad Nagar where they parked their
motorcycles (Portion H to H of Mark P1). He further denied that
when they were preparing to go to their houses, the plug of the
motorcycle of Shakeel was found broken and upon this Munnu
told him to take his motorcycle and Babloo had taken out a
country made pistol and fired on Shakeel but the bullet did not
hit him, Shakeel left the motorcycle and started running to save
himself. Babloo, Anish @ Munnu, Imran and Nazrul also chased
him for about 50 steps and near Gali no.1, East Guru Angad
Nagar Chauraha, Shakeel was caught by all these persons and
they had given fist and kicks blows to Shakeel (Portion I to I of
Mark P1). He denied that Gaurav, Nazrul, Babloo and Imran told
Munnu ‘kya dekh raha hai, goli maar saale ko or khatam kar ke
badla le le’ and on that Munnu had fired 3-4 bullets from his
pistol on Shakeel (Portion J to J of Mark P1). He further denied
that Shakeel was trying to save himself from their clutches but
because he was badly injured so he had fallen on the ground
with his face downwards near the chauraha and thereafter all
those persons came towards him and he ran away from the spot
for saving himself and went to Shakeel’s elder sister Shama at
Digitally
signed by
ANURAG
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THAKUR Date:
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Jitar Nagar and informed the police (Portion K to K of Mark
P1). He further denied that he along with mother and sister of
Shakeel went to PS Preet Vihar where they came to know that
Shakeel had been taken to LBS hospital and they therefore went
to the said hospital where they came to know that Shakeel had
already died (Portion L to L of Mark P1). He further denied that
all those persons had conspired together to satisfy their old
grudge and had murdered his cousin brother after calling him on
the pretext of entering into a compromise and that Ashish
Kapoor and Asif Teli were also having hand in the said murder
(Portion M to M of Mark P1).
(c) He denied that on 15.06.2010 police recorded his statement.
Statement Mark P2 was read over to him. Witness denied that he
had given such statement. He also denied that he had stated to
the police in his statement Mark P2 that police had prepared the
site plan on his instance at Gali No.1, Chauraha, East Guru
Angad Nagar (Portion A to A of Mark P2). He also denied that
he had stated to the police in his statement Mark P2 that
motorcycle of Shakeel make CBZ Hero Honda was taken into
possession by the police (Portion B to B of Mark P2). He
admitted that seizure memo Ex.PW1/A bore his thumb
impression at point A. He voluntarily stated that police had
obtained his thumb impressions on some blank papers. He
denied that police also recorded his supplementary statement on
17.06.2010. Statement Mark P3 was read over to the witness.
Witness denied that he had given such statement. He denied that
Digitally
signed by
ANURAG
ANURAG THAKUR
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he came in the court in his other case and identified Ashish
Kapoor who along with the accused persons had conspired to
commit the murder of Shakeel (Portion A to A of Mark P3). He
denied that on 20.06.2010 his supplementary statement was
recorded by the police (Portion B to B of Mark P3). He further
denied that police also recorded his supplementary statement on
29.06.2010. Statement Mark P4 was read over to the witness.
Witness denied that he had given such statement. He denied that
he came to Karkardooma Court and identified accused Babloo
@ Devender, Imran Khan, Santosh and Gaurav when they came
outside the court (Portion A to A of Mark P4). He denied that
police recorded his statement Mark P5 which was read over to
him. He also denied that on 31.08.2010 he went to the PS
Jagatpuri and he identified the accused Nazrul who along with
accused Anish and other accused had committed the murder of
Shakeel in the intervening night of 14/15.06.2010 (Portion A to
A of Mark P5).
(d) He denied that he had been won over by the accused persons
and he had not intentionally identified the accused persons in the
court. He further denied that he had seen the incident and he was
present with the accused persons at the time of the incident.
(e) Evidence of Witness (who called at 100 number):- PW-2
Shama had deposed that the incident had occurred in the month
of June, 2010. On that day Sarfaraz came to her house in the
morning and informed that Shakeel had sustained bullet injury.
She along with Sarfaraz reached at PS Preet Vihar where she
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came to know that her brother was taken to LBS Hospital. They
reached the hospital where doctor declared him dead. Police had
not recorded her statement. She further stated that she did not
know anything about the case and Sarfaraz did not tell her
anything as to how Shakeel had sustained injuries or who killed
him.
(f) Ld. Additional PP was allowed to cross-examine the witness
as she was resiling from her previous statement. During cross-
examination by ld. Addl. PP for the State, she denied that Munnu
@ Anish was friend of Shakeel @ Akeel and Shakeel had
married the sister of Munnu namely Shakeela and due to this
marriage Munnu got annoyed and he had also beaten the family
members of Shakeel. She denied that Shakeel had told her that
he was pressurized by Asif Teli and Ashish Kapoor for entering
into a compromise with Munnu @ Anish but she told Shakeel
not to do so on the asking of Ashish Kappor and Asif Teli as they
may get him killed in the grab of compromise (Portion A to A of
Mark B). She denied that Sarfraz told her that her brother was
caught hold of and beaten by the accused persons namely Anish
@ Munnu, Devender, Gaurav, Santosh, Nazrul and Imran and
her brother Shakeel @ Akeel had sustained bullet injury and
Sarfaraz had ran away from there in order to save his life
(Portion B to B of Mark B).
(g) She further denied that she had made a call at 100 number to
police (Portion C to C of Mark B). She further denied that
Sarfaraz told her that Ashish Kapoor and Asif Teli called Shakeel
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for entering into a compromise at the hostel of Ashish and they
reached there, thereafter, Munnu and his companions talked
about the compromise and thereafter, Munnu took them for
dinner to Jama Masjid. She further denied that Sarfaraz told her
that as they were preparing to go to their houses, the plug of the
motorcycle of Shakeel was found broken and upon that Munnu
asked that his motorcycle be taken and Babloo had taken out a
country made pistol and fired on Shakeel but the bullet did not
hit him and thereafter Shakeel left the motorcycle and started
running to save himself. Babloo. Anish @ Munnu, Imran and
Nazrul also chased him for about 50 steps and near Gali no.1,
East Guru Angad Nagar Chauraha, Shakeel was caught by all
those persons and they had given fist and kick blows to Shakeel.
She further denied that Sarfaraz had told her that Gaurav,
Nazrul, Babloo and Imran asked Munnu ‘Kya dekh raha hai, goli
maar saale ko aur khatam kar ke badla le le’ and on this Munnu
had fired 3-4 bullets from his pistol on Shakeel and that Shakeel
was trying to save himself from their clutches but because he
was badly injured as such he had fallen on the ground with the
face downwards near the chauraha and thereafter, all those
persons came towards him and Sarfaraz started running away
from the spot for saving himself (Portion C to C of Mark B). She
denied that her brother Shakeel @ Akeel was married to
Shakeela. She further denied that she had been won over by the
accused persons.
FIR No.218/2010 PS Preet Vihar State vs. Ashish Kapoor & Ors. 17 of 39
5. (a) PW-5 Dr. B.N.Acharya had deposed that on 16.06.2010 he
had conducted the postmortem of deceased Shakeel @ Akeel s/o
Saleem aged 26 years male. Body was identified by Ct. Sunil
and Saleem (father of Shakeel). Deceased was wearing jeans
pant (black), underwear, baniyan (white), shirt black check. On
external examination there was:- (1) abrasion below left eye 3.5
x 1 cm. (2) CLW below lower chin of size 2.5 cm x 1.5 cm. (3)
Star shaped wound present on mid-occipital region of size 0.8cm
x 0.5 cm. 14 cm above the hair line and 164 cm above the right
heel. Entry wound of the fire arm. (4) Oval shaped on back of
right ear present 2.5 cm below top of of size 0.8 cm x 0.5 cm and
CLW on back of right ear of size 1.5 cm x 0.5 cm Entry wound
of the fire arm. It is situated 153.5 cm above the right heel on
right temporal region. (5) Oval shaped wound on back of right
armpit 14 cm below top of shoulder of 22 cm from mid-line 129
cm from right heel. Entry wound of the firearm. Abrasion collar
present. No ringing, tattooing of the area. Margin inverted.
(b) The bullet had entered through skin, subcutaneous tissue and
through intercostal space between 3rd and 4th and passes
through the lung and passes out of the body and forearm wound
on back of chest of size 1 cm x 0.8 cm which is 125 cm from
head. Second bullet was also seen passing through the same
entry wound and entered the lung tissue through skin,
subcutaneous tissue same intercostal space. In the lung tissue it
entered from another track passing out of the body through
injury on the back of size 1 cm x 0.8 cm which is 121 cm from
FIR No.218/2010 PS Preet Vihar State vs. Ashish Kapoor & Ors. 18 of 39
heel and 3.5 cm from mid line. There were two exit wounds on
the back and on entry wound. Direction of fire left to right and
slightly obliquely downwards.
(c) The other two bullets entered the brain cavity by fracturing
the scalp bone and fractured the base of skull anterior carnial
fossa and another in maxillary area. Both bullets were recovered
and sealed and handed over to the police. Direction of fire was
back to front and obliquely downwards. He opined the cause of
death to be due to coma and hemorrhagic shock consequent to
head injury and right lung laceration. Firearm injury no. 3, 4 & 5
were sufficient to cause death individually and collectively in
ordinary course of nature. Range of fire was close range and all
injuries were antemortem in nature. His detailed postmortem
report, Ex. PW5/A bearing his signature at Point A. He correctly
identified two fired cartridges Ex.P1 (colly), the bullets which
were taken out from the body of the deceased.
(d) During cross-examination by ld. Counsels for the accused
persons, PW-5 deposed that he had not prepared the sketch of
the bullets recovered from the body of the deceased. He had also
not taken their measurements. No photographs of those bullets
were taken. By close range fire he mean that the bullet must had
been fired from a distance of 5-6 ft or less. He had not seen any
blackening or tattooing mark on the entry of the wound. He
denied the suggestion that he had mentioned close range fire
only at the behest of the IO or that no bullets were recovered
Digitally
signed by
ANURAG
ANURAG THAKUR
THAKUR Date:
2025.08.19
FIR No.218/2010 PS Preet Vihar State vs. Ashish Kapoor & Ors. 19 of 39 18:34:01
+0530
from the body of the deceased and they were planted at the
behest of the IO.
6. Accused Gaurav @ Rajeev passed away on 06.05.2021 at
GTB Hospital due to Covid-19 and accordingly, the proceedings
against him abated. The prosecution evidence was closed on
07.10.2023.
7. Statements u/s 313 Cr.P.C of accused Ashish Kapoor, Anish
Khan, Santosh, Imran Khan, Devender @ Babloo and Nazrul
were recorded wherein all incriminating materials were put to
each of these accused persons. In their explanations they stated
that the allegations were false. baseless and the documents were
false. They stated that nothing was recovered from them. They
denied making any disclosures. They also stated that the
pointing out memos were not made at their instance. Statement
u/s 313 Cr.P.C of accused Asif Teli @ Asif Malik was not
recorded as no incriminating material was found against him.
The accused persons elected not to lead defence evidence.
Thereafter, final arguments were heard.
8. Ld. Addl. PP for State submitted that except PW-1 and PW-2,
all the other PWs have fully supported the case of the
prosecution. He claimed that cogent documentary evidence has
also been adduced to substantiate the charges levelled against the
Digitally
signed by
FIR No.218/2010 PS Preet Vihar State vs. Ashish Kapoor & Ors. 20 of 39 ANURAG
ANURAG THAKUR
THAKUR Date:
2025.08.19
18:33:51
+0530
accused persons. He stated that even the Medical and Forensic
evidence duly tie in with the case canvassed by the State. He
contended that presence of accused Anish with the deceased an
hour prior to his death has been established but no credible
explanation has been given by Anish about his whereabouts after
being last seen with Shakeel. He further submitted that the
weapon used for commission of offence was recovered from
accused Anish on the very next day of the incident. He claimed
that the case against the accused persons is proved beyond a
shadow of doubt, so the accused persons be convicted for the
offence(s) punishable u/s 302, 120B IPC.
9. Per-contra ld. defence counsel submitted that the only eye-
witness has not supported the case of the prosecution. He further
argued that even the sister of the deceased has not supported
prosecution’s case. He pointed out that in the FIR of Crime
Branch (in which the weapon used for killing Shakeel was
recovered) all accused have been acquitted. He claimed that not
even an iota of evidence has come on record regarding the
alleged criminal conspiracy to kill Shakeel. He contended that
no circumstantial evidence has come on record against the
accused persons. He claimed that the prosecution has miserably
failed to prove the case against the accused persons. He prayed
that the accused persons be acquitted of all the charges framed
against them. Digitally signed
by ANURAG
ANURAG THAKUR
Date:
THAKUR 2025.08.19
18:33:30
+0530FIR No.218/2010 PS Preet Vihar State vs. Ashish Kapoor & Ors. 21 of 39
10. I have given my thoughtful consideration to the submissions
of both the sides and have perused the record. In the present
case, accused persons have been charged for commission of
offence(s) punishable under Section 302, 120B IPC. Section 302
IPC is reproduced as under:-
302.Punishment for Murder- Whoever commits murder shall
be punished with death, or imprisonment for life and shall
also be liable to fine.
The relevant portion of Section 300 IPC which defines ‘Murder’
reads as follows:-
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 is aforesaid.
Further, the relevant portion of Section 299 Indian Penal Code
which defines “Culpable homicide”, having reference in the
definition of ‘Murder’ reads as follows:-
299. Culpable homicide-Whoever causes death by doing an
act with the intention of causing death, or with the intention
of causing such bodily injury as is likely to cause death,
commits the offence of culpable homicide.
FIR No.218/2010 PS Preet Vihar State vs. Ashish Kapoor & Ors. 22 of 39
The relevant portion of Section 120B IPC is reproduced as
follows:-
120B. Punishment of Criminal Conspiracy
(1) Whoever is a party to a criminal conspiracy to commit an
offence punishable with death, [imprisonment of life] or
rigorous imprisonment for a term of two years or upwards,
shall, where no express provision is made in this Code for
the punishment of such a conspiracy, be punished in the
same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a
criminal conspiracy to commit an offence punishable as
aforesaid shall be punished with imprisonment of either
description for a term not exceeding six months, or with fine
or with both.]
11. (a) The complainant and the only purported eyewitness i.e.
Sarfaraz (PW-1) had not at all supported the case of the
prosecution. PW-1 had supposedly disclosed the details of the
incident (shortly after the occurrence) to Shama (PW-2) who
also did not substantiate the case of the prosecution. Both these
witnesses were cross-examined at length by Ld. Prosecutor,
however they denied having made any statement to police. PW-1
also failed to identify the accused persons as perpetrators of
crime.
(b) How the testimony of a witness who has turned hostile,
should be appreciated has been discussed by the Supreme Court
of India in the case of Satpaul v. Delhi Administration1, in the
following words:
52. From the above conspectus, it emerges clear that even in
a criminal prosecution when a witness is cross-examined1 (1976) 1 SCC 727
FIR No.218/2010 PS Preet Vihar State vs. Ashish Kapoor & Ors. 23 of 39
and contradicted with the leave of the court, by the party
calling him, his evidence cannot, as a matter of law, be
treated as Washed off the record altogether. It is for the
Judge of fact to consider in each case whether as a result of
such cross-examination and contradiction, the witness stands
thoroughly discredited or can still be believed in regard to a
part of his testimony. If the Judge finds that in the process,
the credit of the witness has not been completely shaken, he
may, after reading and considering the evidence of the
witness, as a whole, with due caution and care, accept, in the
light of the other evidence on the record, that part of his
testimony which he finds to be creditworthy and act upon it.
If in a given case, the whole of the testimony of the witness
is impugned, and in the process, the witness stands squarely
and totally discredited, the Judge should, as matter of
prudence, discard his evidence in toto.
In the case of Khujji v. State of MP2, the Apex Court laid down
the following proposition of law about the evidentiary value of
testimony of a hostile witness:-
But counsel for the State is right when he submits that the
evidence of a witness, declared hostile, is not wholly effaced
from the record and that part of evidence which is otherwise
acceptable can be acted upon. It seems to be well settled by
the decisions of this Court Bhagwan Singh v. State of
Haryana, [1976] 2 SCR 921; Rabinder Kumar Dey v. State
of Orissa, [1976] 4 SCC 233 and Syed lqbal v. State of
Karnataka, [1980] 1 SCR 95 that the evidence of a
prosecution witness cannot be rejected in toto merely
because the prosecution chose to treat him as hostile and
cross-examined him. The evidence of such witnesses cannot
be treated as effaced or washed off the record altogether but
the same can be accepted to the extent their version is found
to be dependable on a careful scrutiny thereof.
In Rajesh Yadav v. State of UP3 the Apex Court made the
following observation about the appreciation of deposition of a
witness who had turned hostile:-
2 (1991) 3 SCC 627
3 (2022) 12 SCC 200FIR No.218/2010 PS Preet Vihar State vs. Ashish Kapoor & Ors. 24 of 39
22. The expression “hostile witness” does not find a place in
the Indian Evidence Act. It is coined to mean testimony of a
witness turning to depose in favour of the opposite party. We
must bear it in mind that a witness may depose in favour of a
party in whose favour it is meant to be giving through his
chief examination, while later on change his view in favour
of the opposite side. Similarly, there would be cases where a
witness does not support the case of the party starting from
chief examination itself. This classification has to be borne
in mind by the Court. With respect to the first category, the
Court is not denuded of its power to make an appropriate
assessment of the evidence rendered by such a witness. Even
a chief examination could be termed as evidence. Such
evidence would become complete after the cross
examination. Once evidence is completed, the said
testimony as a whole is meant for the court to assess and
appreciate qua a fact. Therefore, not only the specific part in
which a witness has turned hostile but the circumstances
under which it happened can also be considered, particularly
in a situation where the chief examination was completed
and there are circumstances indicating the reasons behind
the subsequent statement, which could be deciphered by the
court. It is well within the powers of the court to make an
assessment, being a matter before it and come to the correct
conclusion.
(c) In view of the aforesaid judgments of Apex Court, it is trite
law that the testimony of a hostile witness cannot be eschewed
from consideration. The evidence of such witness remains
admissible and there is no bar in convicting an accused by
relying upon the testimony of a witness who has been treated as
a hostile witness and subjected to cross-examination by the party
calling it. Only that part of the testimony can be used which is
found to be trustworthy and corroborated by other evidence on
record. However, if the credit of a witness is completely
impeached then as a matter of prudence, his entire testimony is
to be rejected.
FIR No.218/2010 PS Preet Vihar State vs. Ashish Kapoor & Ors. 25 of 39
12. In the instant case, both PW-1 and PW-2 did not affirm the
prosecution case even during their respective examination in
chief. However, PW-1 admitted that he went to LBS hospital
upon coming to know about the death of Shakeel. PW-2 testified
that Sarfaraz had come to her house and informed that Shakeel
had sustained bullet injury and she along with Sarfaraz reached
PS Preet Vihar where they came to know that Shakeel had been
taken to LBS hospital. They reached LBS hospital where doctor
declared him dead. These parts of testimonies of PW-1 and PW-
2 are supported by other independent evidence.
13. In the absence of the eye-witness account or ocular evidence
regarding the commission of crime, the prosecution has to rely
upon indirect evidence which is known as circumstantial
evidence. Such indirect evidence is deduced from existing facts
and inferences drawn from proved facts. Circumstantial
evidence, though admissible in a criminal trial but the same has
to be treated with caution and circumspection by the court
because of the inherent subjectivity in drawing conclusions. The
Apex Court in the case of Hanumant v. State of Madhya
Pradesh4, while dealing with circumstantial evidence held that
the circumstances should be of a conclusive nature and tendency
and they should be such as to exclude every hypothesis but the
one proposed to be proved. It must be such as to show that
within all human probability the act must have been done by
Digitally
signed by
4 1953 Cr.L.J 129 ANURAG
ANURAG THAKUR
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2025.08.19
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accused. The apex court in the case of Sharad Birdhi Chand
Sarda v. State of Maharashtra5, propounded the following
principles regarding circumstantial evidence:-
(1) The circumstances from which the conclusion of guilt is
to be drawn should be fully established.
(2) 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 on any other hypothesis except
that the accused is guilty,
(3) The circumstances should be of a conclusive nature and
tendency.
(4) They should exclude every possible hypothesis except
the one to be proved, and
(5) 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.
The scrutiny of the indirect evidence adduced during trial is to
be conducted by keeping in mind the aforementioned principles.
14. HC Harpal (PW-15) was the first police official to reach at
the spot. He noticed one person lying in pool of blood. He took
that person to LBS Hospital where the doctor declared him
brought dead. Dr. Sushil Kumar (PW-10) also testified that on
15.06.2010 HC Harpal had brought an unknown male with
alleged history of assault to hospital and upon examination he
declared him ‘brought dead’ and prepared MLC Ex.PW10/A.
PW-3 and PW-4 identified the dead body to be that of Shakeel
s/o Salim. Dr. B.N.Acharya (PW-5) conducted postmortem of
5 AIR1984 SC 1622 ANURAG
FIR No.218/2010 PS Preet Vihar State vs. Ashish Kapoor & Ors. 27 of 39
THAKUR
Digitally signed by
ANURAG THAKUR
Date: 2025.08.19
18:30:48 +0530
Shakeel @ Akeel. He opined the cause of death as ‘coma and
hemorrhagic shock consequent to head injury and right lung
laceration.’ He also opined that firearm injury no.3, 4 and 5 were
sufficient to cause death individually and collectively in ordinary
course of nature. Taken together, the evidence tendered by the
PWs (discussed in the earlier part of this paragraph) lead to the
conclusion that Shakeel @ Akeel was killed by using firearm.
15. As regards the firearm used, PW-42 in his report dated
16.11.2010 Ex.PW22/Z2 had opined that the firing pin and
breech face marks present on empty cartridge cases recovered
from the spot were similar with firing pin and breech face marks
present on test cartridge cases fired through improvised pistol
F2. (F2 was the pistol recovered from accused Anish in FIR No.
87/2010 PS Crime Branch.). However, it is worthwhile to
mention that after trial in that FIR, all the accused including
Anish were acquitted by the court of Ld. ASJ-02, South-West,
Dwarka Courts, Delhi vide a judgment dated 07.02.2023. The
Ld. ASJ concluded that the case set up against the accused was
flimsy and did not appeal to reasoning.
16. HC Raja Ram (PW19) had testified that on 16.06.2010 one
pistol along with four cartridges were recovered by him from
accused Anish but during production of case property five test
fired cartridges were shown to PW19 who identified the same as
recovered from Anish. He was unable to tell the make, colour or
FIR No.218/2010 PS Preet Vihar State vs. Ashish Kapoor & Ors. 28 of 39
Digitally signed
by ANURAG
THAKUR
ANURAG Date:
THAKUR 2025.08.19
18:30:39
+0530
registration number of private vehicle in which he along with
other policemen and secret informer had gone to the spot from
where accused Anish and other co-accused in FIR No.87/10
were apprehended. He was not able to tell the particulars of the
weapons recovered from other accused except Anish. He was
also not able to recall as to which of the police official had
apprehended which of the accused on that day. He testified that
the proceedings were conducted at the spot while sitting on the
pavement, whereas Inspector Sanjay Neolia (PW-37) deposed
that he prepared some documents while sitting in his car and the
other were prepared while keeping the papers on the bonnet of
the car. PW-37 was not able to recall whether his statement was
recorded by the IO in FIR No.87/2010 or not. He also admitted
that in his statements recorded by IO in FIR No.87/2010
specifications of recovered arms were not mentioned. Not only
this, the non-joining of public witnesses despite their availability
at the spot also raises doubts on the alleged recovery of firearms
etc. from accused Anish and other co-accused in FIR
No.87/2010 PS Crime Branch. The other material contradictions
have been eloquently highlighted by the then Ld. ASJ-02, South-
West in the judgment rendered by him.
17. It is the case of prosecution that accused Anish @ Munnu
was the last person seen with the deceased Shakeel shortly
before his death. SI Mohd. Faiyaz (PW-12) had testified that on
15.06.2010 upon receipt of information at 3:42 AM about theft
Digitally
signed by
FIR No.218/2010 PS Preet Vihar State vs. Ashish Kapoor & Ors. 29 of 39 ANURAG
ANURAG THAKUR
THAKUR Date:
2025.08.19
18:30:29
+0530
of mobile phone from Hotel Al-Jawahar, DD No.4A was
recorded at PS Jama Masjid and the same was marked to him.
During inquiry into the same he met Anish and Shakeel who told
him that they had some verbal altercation but no mobile phone
had been stolen. He returned back to PS and lodged DD No.6A
in that regard. At about 4:42AM information about quarrel and
firing near Radhu Palace, East Guru Angad Nagar was received
at PS Preet Vihar, where Shakeel was found in injured condition
who died shortly thereafter.
18. In the case of Arvind @ Chotu v. State6, the High Court of
Delhi had explained the legal proposition with regard to the last
seen theory in the following manner:-
103. We may summarize the legal position as under:-
(i) Last-seen is a specie of circumstantial evidence and the
principles of law applicable to circumstantial evidence are
fully applicable while deciding the guilt or otherwise of an
accused where the last-seen theory has to be applied.
(ii) It is not necessary that in each and every case
corroboration by further evidence is required.
(iii) The single circumstance of last-seen, if of a kind, where
a rational mind is persuaded to reach an irresistible
conclusion that either the accused should explain, how and
in what circumstances the deceased suffered death, it would
be permissible to sustain a conviction on the solitary
circumstance of last-seen.
(iv) Proximity of time between the deceased being last seen
in the company of the accused and the death of the deceased
is important and if the time gap is so small that the
possibility of a third person being the offender is reasonablyDigitally
signed by
6 Crl.A. No. 362/2001 decided on 10.08.2009 ANURAG
ANURAG THAKUR
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2025.08.19
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ruled out, on the solitary circumstance of last-seen, a
conviction can be sustained.
(v) Proximity of place i.e. the place where the deceased and
the accused were last seen alive with the place where the
dead body of the deceased was found is an important
circumstance and even where the proximity of time of the
deceased being last seen with the accused and the dead body
being found is broken, depending upon the attendant
circumstances, it would be permissible to sustain a
conviction on said evidence.
(vi) Circumstances relating to the time and the place have to
be kept in mind and play a very important role in evaluation
of the weightage to be given to the circumstance of
proximity of time and proximity of place while applying the
last-seen theory.
(vii) The relationship of the accused and the deceased, the
place where they were last seen together and the time when
they were last seen together are also important
circumstances to be kept in mind while applying the last
seen theory. For example, the relationship is that of husband
and wife and the place of the crime is the matrimonial house
and the time the husband and wife were last seen was the
early hours of the night would require said three factors to
be kept in mind while applying the last-seen theory.
The above circumstances are illustrative and not exhaustive.
At the foundation of the last-seen theory, principles of
probability and cause and connection, wherefrom a
reasonable and a logical mind would unhesitatingly point the
finger of guilt at the accused, whenever attracted, would
make applicable the theory of last-seen evidence and
standing alone would be sufficient to sustain a conviction.
19. It is also worthwhile to reproduce the observation made by
the Apex Court regarding the last seen theory in the case of
Reena Hazarika v. State of Assam7, which reads as follows:-
Mere invocation of the last seen theory, sans the facts and
evidence in a case, will not suffice to shift the onus upon the
accused under Section 106 of the Evidence Act, 1872 unless7 2019 (13) SCC 289 Digitally
signed by
ANURAG
FIR No.218/2010 PS Preet Vihar State vs. Ashish Kapoor & Ors. 31 of 39 ANURAG THAKUR
THAKUR Date:
2025.08.19
18:30:14
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the prosecution first establishes a prima facie case. If the
links in the chain of circumstances itself are not complete
and the prosecution is unable to establish a prima facie case,
leaving open the possibility that the occurrence may have
taken place in some other manner, the onus will not shift to
the accused, and the benefit of doubt will have to be given.
The last seen theory as adumbrated by the prosecution does not
bring home the guilt of the accused Anish. Firstly, Anish was
seen with deceased Shakeel in Jama Masjid Area which is more
than 5 km away from the place of incident. Secondly, it is the
case of prosecution that 7-8 persons along with the deceased had
gone for eating dinner at Jama Masjid and they all had returned
back to East Guru Angad Nagar. Thirdly, there is a gap of about
an hour between the last seen time and the time of occurrence,
so the possibility of any third person (like Sarfaraz) being the
offender cannot be ruled out. Fourthly, it is not established that
after having dinner, the deceased and accused persons including
Anish came back to East Guru Angad Nagar. The links in the
chain of circumstances are not complete and the possibility that
the occurrence may have happened in some other manner,
cannot be negated. The benefit of the gaps in the prosecution
case must accrue to the accused persons.
20. The CDRs of mobile phones of accused Ashish Kapoor,
Anish and deceased Shakeel were exhibited as Ex.PW22/Z3,
Ex.PW22/Z4 and Ex.PW22/Z5 respectively. PW-29, PW-30 and
PW-39 were summoned to produce CDRs and CAFs of mobile
phones of Shakeel, Ashish Kapoor and Anish respectively,
Digitally
signed by
ANURAG
FIR No.218/2010 PS Preet Vihar State vs. Ashish Kapoor & Ors. 32 of 39 ANURAG THAKUR
THAKUR Date:
2025.08.19
18:30:06
+0530
however they could only produce the CAFs but they could not
produce the CDRs as the same had been weeded out as per the
extant applicable guidelines.
21. CDRs are form of electronic record and a printout of the
same ought to be accompanied by the requisite certificate u/s
65B(4) of the Evidence Act, 1872 for the printouts of CDRs to
be classified as ‘document’ as per the evidence act. Reliance in
this regard is placed upon the judgment of Apex Court in the
case titled as Arjun Panditrao Khotkar v. Kailash Kushanrao
Gorantyal8, which reads as follows:-
30.Coming back to Section 65B of the Indian Evidence Act,
subsection (1) needs to be analysed. The sub-section begins
with a non-obstante clause, and then goes on to mention
information contained in an electronic record produced by a
computer, which is, by a deeming fiction, then made a
“document”. This deeming fiction only takes effect if the
further conditions mentioned in the Section are satisfied in
relation to both the information and the computer in
question; and if such conditions are met, the “document”
shall then be admissible in any proceedings. The words “…
without further proof or production of the original…” make
it clear that once the deeming fiction is given effect by the
fulfilment of the conditions mentioned in the Section, the
“deemed document” now becomes admissible in evidence
without further proof or production of the original as
evidence of any contents of the original, or of any fact stated
therein of which direct evidence would be admissible.
31.The non-obstante clause in sub-section (1) makes it clear
that when it comes to information contained in an electronic
record, admissibility and proof thereof must follow the drill
of Section 65B, which is a special provision in this behalf –
Sections 62 to 65 being irrelevant for this purpose. However,
Section 65B(1) clearly differentiates between the “original”
document – which would be the original “electronic record”
8 AIR 2020 SC 4908
Digitally
signed by
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ANURAG THAKUR
THAKUR Date:
2025.08.19
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contained in the “computer” in which the original
information is first stored – and the computer output
containing such information, which then may be treated as
evidence of the contents of the “original” document. All this
necessarily shows that Section 65B differentiates between
the original information contained in the “computer” itself
and copies made therefrom – the former being primary
evidence, and the latter being secondary evidence.
The printouts of CDRs exhibited by PW-22 in his testimony do
not aid the case of the prosecution as no deeming fiction can be
attached to those printouts and thus they are eschewed from
consideration while deciding the facts in issue. In the absence of
the printouts of CDRs, the offence of criminal conspiracy can
also not be proved as the allegation that accused Ashish Kapoor
and Asif Teli were making phone calls to deceased Shakeel to
pressurize him to enter into settlement with Anish, cannot be
established especially when the complainant did not depose
anything regarding the criminal conspiracy.
22. To conclude, the suspicion however grave, can not form the
basis for convicting a person. There is no ocular evidence on
record to connect the accused persons with the crime scene. No
PW deposed that they saw any of the accused persons at the
crime scene on 15.06.2010. The recovery of firearms and
ammunition from accused Anish, Gaurav, Santosh, Devender
and Imran was not substantiated before the court concerned. The
CDRs of mobile phones of deceased, Anish and Ashish could
not be proved. There is no evidence available on record to
suggest that there was a prior agreement between the accusedFIR No.218/2010 PS Preet Vihar State vs. Ashish Kapoor & Ors. 34 of 39
Digitally signed
by ANURAG
THAKUR
ANURAG Date:
THAKUR 2025.08.19
18:29:47
+0530
persons to murder Shakeel and in pursuance of the same Asif
Teli and Ashish were calling Shakeel for reconciling his
differences with accused Anish. The evidence was so weak that
the recording of statement of accused Asif Teli was dispensed
with as no incriminating evidence was found against him. The
circumstantial evidence in the case is extremely feeble and there
are glaring gaps in the same. The evidence on record is grossly
insufficient to record a finding of guilt of accused persons,
accordingly, all the accused persons are acquitted of the offences
punishable u/s 302, 120B IPC.
Digitally signed
by ANURAG
THAKUR
Dictated and announced ANURAG Date:
in open Court on 19th August, 2025 THAKUR 2025.08.19
18:29:38
+0530(Anurag Thakur)
Addl. Sessions Judge (FTC) (East)
Karkardooma Courts, DelhiThis judgment consists of 39 pages
and each and every page of this
judgment is signed by me.
____________________________________________________
Endnote:-
LIST OF PROSECUTION EXHIBITS
S. Nos Exhibit Number Description
1 Ex.PW3/A Dead body identification statement
2 Ex.PW3/B Dead body handed over memoFIR No.218/2010 PS Preet Vihar State vs. Ashish Kapoor & Ors. 35 of 39
3 Ex.PW4/A Dead body identification statement
4 Ex.PW5/A Postmortem Report
5 Ex.P1 (colly) Two fired cartridges
6 Ex.PW6/A FIR No.87/2010 PS Crime Branch
7 Ex.PW7/A PCR Form qua call by Ashish
8 Ex.PW8/A PCR Form qua call by Shama
9 Ex.PW10/A MLC of Shakeel
10 Ex.11/A1 to A8 Eight Photographs
11 Ex.11/B1 to B8 Negatives of photographs
12 Ex.PW12/A DD No.4A of PS Jama Masjid
13 Ex.PW12/B DD No.6A of PS Jama Masjid
14 Ex.PW13/A Copy of FIR No.218/10 PS Preet Vihar
15 Ex.PW13/B Endorsement on Rukka
16 Ex.PW13/C DD No.10A PS Preet Vihar
17 Ex.PW13/D1 to D5 Arrest memos of accused Gaurav,
Imran, Santosh, Devender and Anish
18 Ex.PW13/E Disclosure Statement of accused Anish
Khan
19 Ex.PW14/A DD No.5A of PS Preet Vihar
20 Ex.PW14/B DD No.6A of PS Preet Vihar
21 Ex.PW15/A Diary of Correspondence/Call book
22 Ex.PW15/B Entry in call book
23 Ex.PW16/A Mechanical Inspection Report of
motorcycle no. HR-51K-8303
24 Ex.PW17/A Seizure memo of pullandas received
from LBS Hospital
25 Ex.PW18/DA Statement of Ct. Sunil recorded u/s 161
Cr.P.C
26 Ex.PW25/K Copy of seizure memo of pistol and
cartridges recovered from Anish Khan
27 Ex.PW19/Article-1 (colly) Pistol and cartridges recovered from
Anish Khan
28 Ex.PW20/A Crime Visit Report
29 Ex.PW21/A Arrest memo of Ashish
30 Ex.PW21/B Personal search memo of Ashish
31 Ex.PW21/C Disclosure Statement of Ashish
32 Ex.PW21/D Pointing-out memo of place of incident
prepared at instance of Ashish
33 Ex.PW21/E Pointing-out memo of place of
conspiracy, prepared at instance of
Ashish
34 Ex.PW22/A Statement of eye-witness Sarfaraz
35 Ex.PW22/B Endorsement on statement of SarfarazFIR No.218/2010 PS Preet Vihar State vs. Ashish Kapoor & Ors. 36 of 39
Digitally signed
by ANURAG
THAKUR
ANURAG Date:
THAKUR 2025.08.19
18:29:27
+0530
36 Ex.PW22/C Site plan prepared at instance of
Sarfaraz
37 Ex.PW22/D Seizure memo of three empty cartridges
38 Ex.PW22/E Seizure memo of blood
39 Ex.PW22/F Seizure memo of earth control
40 Ex.PW22/G Seizure memo of Blood stained portion
of road
41 Ex.PW22/H Seizure memo of one kada
42 Ex.PW22/J Sketch memo of the empty cartridges
43 Ex.PW22/K Form No.25.35(B) Inquest Report
44 Ex.PW22/L Request for postmortem on the dead
body of the deceased
45 Ex.PW22/M Pointing out memo of place of incident
prepared at instance of Anish Khan @
Munnu
46 Ex.PW22/N Pointing out memo of Hostel prepared
at instance of Anish Khan @ Munnu
47 Ex.PW22/P Disclosure Statement of Imran
48 Ex.PW22/Q Disclosure Statement of Devender
49 Ex.PW22/R Disclosure Statement of Gaurav
50 Ex.PW22/S Disclosure Statement of Santosh
51 Ex.PW22/T Pointing out memo of place of
occurrence prepared at instance of
accused Imran
52 Ex.PW22/T-1 Pointing out memo of hostel prepared at
instance of Imran
53 Ex.PW22/U Pointing out memo of place of
occurrence prepared at instance of
accused Santosh
54 Ex.PW22/U-1 Pointing out memo of hostel prepared at
instance of Santosh
55 Ex.PW22/V Pointing out memo of place of
occurrence prepared at instance of
accused Devender
56 Ex.PW22/V-1 Pointing out memo of hostel prepared at
instance of Devender
57 Ex.PW22/W Pointing out memo of place of
occurrence prepared at instance of
accused Gaurav
58 Ex.PW22/W-1 Pointing out memo of hostel prepared at
instance of Gaurav
59 Ex.PW22/Y Arrest memo of accused Mohd. Nazrul
60 Ex.PW22/Y-1 Personal search memo of accused
Mohd. Nazrul
61 Ex.PW22/Y-2 Disclosure Statement of accused Mohd.
FIR No.218/2010 PS Preet Vihar State vs. Ashish Kapoor & Ors. 37 of 39 Digitally
signed by
ANURAG
ANURAG THAKUR
THAKUR Date:
2025.08.19
18:29:18
+0530
Nazrul
62 Ex.PW22/Y-3 Pointing out memo of place of
occurrence prepared at instance of
accused Mohd. Nazrul
63 Ex.PW22/Y-4 Pointing out memo of hostel prepared at
instance of Mohd. Nazrul
64 Ex.PW22/Z FSL Report No. 2010/B-2389
65 Ex.PW22/Z-1 Biology Division Report
66 Ex.PW22/Z-2 Ballistics Division Report dt.
16.11.2010
67 Ex.PW22/Z-3 CDR of mobile no.9891021123
(colly.7 pages)
68 Ex.PW22/Z-4 CDR of mobile no.9999881178
(colly. 28 pages)
69 Ex.PW22/Z-5 CDR of mobile no.9910239184
(colly. 6 pages)
70 Ex.PW22/P-1 (colly.) Three Empty cartridges found at spot
71 Ex. Article PW22/P-2 Two Jacket Bullets
(colly.)
72 Ex.PW23/A (colly.) Relevant entries of Register no. 19 of
PS Preet Vihar
73 Ex.PW23/B (OSR) Copy of RC No.27/21/10
74 Ex.PW23/C (OSR) Copy of RC No.28/21/10
75 Ex. PW23/D (OSR) Copy of RC No.41/21/10
76 Ex.PW25/A (OSR) Disclosure statement of accused Anish
Khan @ Munnu
77 Ex.PW25/B (OSR) Disclosure Statement of accused
Devender @ Babloo
78 Ex.PW25/C (OSR) Disclosure Statement of accused Gaurav
79 Ex.PW25/D (OSR) Disclosure Statement of accused
Santosh
80 Ex.PW25/E (OSR) Disclosure Statement of accused Imran
Khan
81 Ex.PW25/F (OSR) Seizure memo of Car No.UP-14AC-
7188
82 Ex.PW25/G (OSR) Seizure memo of motorcycle no. DL-
8SAA-1214
83 Ex.PW25/H (OSR) Seizure memo of motorcycle no. DL-
7SAB-6108
84 Ex.PW25/J (OSR) Seizure memo of country made pistol
and round (Sr. no.1)
85 Ex.PW25/K (OSR) Seizure memo of pistol and round (Sr.
no.2)
86 Ex.PW25/L (OSR) Seizure memo of pistol and round (Sr.
no.3)
Digitally signed
FIR No.218/2010 PS Preet Vihar State vs. Ashish Kapoor & Ors. 38 of 39 by ANURAG
THAKUR
ANURAG Date:
THAKUR 2025.08.19
18:29:09
+0530
87 Ex.PW25/M (OSR) Seizure memo of country made
pistol/katta and round (Sr. no.4)
88 Ex.PW25/N (OSR) Seizure memo of country made
pistol/katta and round (Sr. no.5)
89 Ex.PW25/P (OSR) Seizure memo of country made pistol
without magazine and round (Sr. no.6)
90 Ex.PW25/Q FSL report no. FSL2010/F-2730
91 Ex.PW26/A Application for TIP proceedings
92 Ex.PW26/B TIP proceedings
93 Ex.PW26/C TIP proceedings of accused Devender
Kumar @ Babloo
94 Ex.PW26/D TIP proceedings of accused Gaurav
95 Ex.PW26/E TIP proceedings of accused Santosh
96 Ex.PW26/F TIP proceedings of accused Imran Khan
97 Ex.PW26/G to Ex.PW26/J TIP proceedings refusal by accused
persons.
98 Ex.PW28/Article 1 Pistol recovered from Imran
99 Ex.PW28/Article 2 (colly) Two cartridges recovered from Imran
100 Ex.PW29/A (OSR) Copy of CAF of 9910239184
101 Ex.PW29/B Reply as to non-availability of CDR of
9910239184
102 Ex.PW30/A Copy of CAF of 9891021123
103 Ex.PW30B Reply as to non-availability of CDR of
9891021123
104 Ex.PW34/Article A1 One golden kara
105 EX.PW36/A Scaled site plan of place of occurrence
106 Ex.PW37/Article A1 Desi Katta with the cartridges
recovered from Rohit
107 Ex.PW37/Article A2 Desi Katta with the cartridges
recovered from Devender
108 Ex.PW37/Article A3 Desi Katta with the cartridges
recovered from Gaurav
109 Ex.PW37/Article A4 Desi Katta with the cartridges
recovered from Santosh
110 Ex.PW38/A (OSR) FIR register regarding FIR No. 138/08
PS Shakarpur, Delhi
111 Ex.PW38/B Previous criminal record of accused
Ashish
112 Ex.PW40/A (six pages) Criminal record of accused Gaurav @
Ajay @ Rajeev @ Raju
113 Ex.PW41/A (OSR) (12 Entry no.193/10 in register no.19 of PS
pages) Crime BranchDigitally signed
by ANURAG
ANURAG THAKUR
THAKUR Date:
2025.08.19
FIR No.218/2010 PS Preet Vihar State vs. Ashish Kapoor & Ors. 39 of 39 18:28:49 +0530