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Delhi District Court
State vs Akbar Etc on 28 April, 2025
IN THE COURT OF SH ATUL AHLAWAT
ADDL. SESSIONS JUDGE (FTC), NORTH-EAST
KARKARDOOMA COURTS: DELHI
IN RE:
SC No. 44384/2015
CNR No. DLNE01-000092-2014
FIR No. 277/14
PS Seelampur
U/s 302/307/34 of IPC, 1860.
STATE VERSUS AKBAR @ BHOLA & ANR.
Date of Committal : 12.08.2014
Date of Arguments : 07.04.2025 &
21.04.2025
Date of Judgment : 28.04.2025
INDEX
S. No. Contents Page No.
1. Brief Details of the Case & Memo of Parties 2
2. Brief Case of the Prosecution 3
3. Prosecution Evidence 6
4. Admitted Documents & Plea of the Accused 23
Person
5. Submissions made on behalf of the State 24
6. Submissions made on behalf of the Accused 27
Person
7. Relevant Law & the Case Laws 32
8. Appreciation of Evidence 39
9. Conclusion & Findings 53
Digitally
signed by
ATUL
(ATUL AHLAWAT) ATUL AHLAWAT
AHLAWAT Date:
ASJ (FTC)/North-
2025.04.28
12:16:00
+0530
East/KKD Courts/
Delhi/28.04.2025
CNR No. DLNE01-000092-2014 State Vs. Akbar @ Bhola & Anr. FIR No. 277/14 Page no. 1/55
IN THE COURT OF SH ATUL AHLAWAT
ADDL. SESSIONS JUDGE (FTC), NORTH-EAST
KARKARDOOMA COURTS: DELHI
SC No. 44384/2015
CNR No. DLNE01-000092-2014
FIR No. 277/14
PS Seelampur
U/s 302/307/34 of IPC, 1860.
Brief Details of the Case & Memo of Parties
STATE VERSUS AKBAR @ BHOLA & ANR.
Brief details of the case
A) Case FIR No. : 277/14
B) Charges framed under section : 302/307/34 of IPC,
1860 against both the
accused persons.
C) Name of the complainant/Informant : Rahul (since
deceased)
S/o Sh. Chokhey @
Sajjan
R/o H.No. F-197, Old
Seemapuri, Delhi.
D) Name of the accused persons : (1) Akbar @
Bhola,
S/o Sh. Mohd. Yasin,
R/o H. No. M-87, M-
Block, Welcome,
Delhi. Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
12:16:11
CNR No. DLNE01-000092-2014 State Vs. Akbar @ Bhola & Anr. FIR No. 277/14 Page no. 2/55 +0530
(2)Hansraj @
Sonu,
S/o Sh. Late Ram
Babu, R/o Z-22, Lakdi
Market, Welcome,
Delhi.
E) Plea of the accused persons : Not guilty
F) Final Order : Acquittal
G) Date of Order : 28.04.2025
JUDGMENT
(Pronounced on the 28th day of April, 2025)
Brief Case of the Prosecution:
1. The criminal law machinery was set into motion on 01.05.2014,
when DD no. 15A, Ex. PW1/A was registered at PS Seelampur at 12:02
PM, wherein it was recorded that ” Seelampur Red Light Babarpur ki
taraf jate huye ek ladke ko chaku maar diya” . The said call was made
from mobile no. 9818068145 and the same was marked to SI Naveen
Kumar for further action.
2. The IO SI Naveen Kumar reached the spot. The SHO Inspector
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
CNR No. DLNE01-000092-2014 State Vs. Akbar @ Bhola & Anr. FIR No. 277/14 Page no. 3/55 12:16:20
+0530
Anand Sagar also reached the spot alongwith the other police staff and
they found that at the side of the road, towards the area where the
garbage was lying, next to the sewer pipes, one dead body in a pool of
blood was lying and one other person, who had released injuries on the
right side of his back was also found present. The police officials called
the CATs Ambulance on the spot and the injured was given treatment at
the spot itself. Furthermore, upon preliminary examination, it was found
that the dead body of the deceased was having one deep wound on the
left side of the neck. Furthermore, blood was found scattered near the
wall of the ganda nala and near the neck of the dead body, blood stained
banyan and one white shirt was also found lying.
3. That upon preliminary inquiries the injured informed his name as
Rahul S/o Sajjan @ Chokhey and the IO Inspector Anand Sagar recorded
his statement, Ex. PW5/A on the spot itself. In the said statement, the
complainant had stated that he was working as a boot polisher and the
deceased Anil was his distant uncle and was also working in the same
line as him. He further stated that both the deceased and him were drug
addicts and were accustomed to taking smack and when the said drugs
were not available, they used to consume the drugs from injections as
well.
4. It was further stated by the complainant in his statement, Ex.
PW5/A that on 01.05.2014, during the afternoon hours, he alongwith the
deceased Anil went to 66 Foota Road and below the kuda khatta
(mounds of the garbage), near the ganda nala, to answer the nature’s call
ATUL
AHLAWAT
Digitally signed by
ATUL AHLAWAT
Date: 2025.04.28
CNR No. DLNE01-000092-2014 State Vs. Akbar @ Bhola & Anr. FIR No. 277/14 Page no. 4/55 12:16:26 +0530
and thereafter, they were consuming the drugs contained in injection. At
about 11:45 AM, two young men aged about 21-22 years came next to
the complainant and the deceased and started demanding the drugs from
them. The said persons were also appearing to be drug addicts and when
the complainant and the deceased refused to handover their drugs, the
said persons took out the knives and the assailant with wheatish coloured
complexion gave a blow on the neck of the deceased and the other
assailant having comparatively fairer skin gave a blow on the back of the
complainant.
5. It was further stated by the complainant in his statement, Ex.
PW5/A that after receiving the knife blows, both the complainant and the
deceased received grievous injuries and blood started oozing out from
the said injuries. The complainant and the deceased tried to escape from
there, in order to save their lives and plying the wall situated next to the
ganda nala and jumped towards the 66 Foota Road. As soon as they
jumped towards the road, deceased Anil collapsed and since, a lot of
blood was running out from his neck, the complainant took out his shirt
and banyan and tried to control the bleeding. The public persons saw
them in injured condition and someone made a call to the police on 100
number. Thereafter, the police officials and the ambulance reached the
spot and the concerned doctor of the ambulance had declared Anil to be
dead and primary treatment was given to the complainant.
6. Upon the basis of the statement, Ex. PW5/A, the commission of an
offence punishable u/s 302/307/34 IPC, 1860 was found out and the Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
12:16:37
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present case FIR, Ex. PW1/C was registered at PS Seelampur on
01.05.2014. After completing the investigation, IO filed the chargesheet
before the Court of Ld. Metropolitan Magistrate u/s 302/307/34 IPC,
1860 against the accused persons.
7. After compliance of section 207/208 Cr.PC, 1973, the case was
committed by the Court of Ld. MM before this Court on 12.08.2014.
Thereafter, the charges were framed by my Ld. Predecessor on
23.09.2014 u/s 302/307/34 of IPC, 1860 against both the accused
persons. The accused persons pleaded not guilty and they had claimed
trial.
Prosecution Evidence:
8. To prove its case, the prosecution has examined 22 (Twenty One)
witnesses and out of the said witnesses, there are 4 Public Witnesses
including the injured/complainant; 1 Medical Witness and 17 formal
witnesses including the 2 Investigating Officers:
9. Public Witnesses:-
(9.1.1) PW-5 is Rahul and he is the ocular injured witness. He had
deposed that deceased Anil was his distant uncle ( chacha) and both the
deceased and him were addicted to drugs and used to take the said drugs
through injections.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
12:16:44
+0530
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(9.1.2) PW-5 Rahul had further deposed that on 01.05.2014, he
alongwith the deceased went near the ganda nala, where the garbage
used to be dumped, to relieve themselves owing to nature’s call and
thereafter, they were consuming the drugs through an injection and in the
meantime, accused Akbar @ Bhola and accused Hansraj @ Sonu came
there and started demanding the drugs from them. When the deceased
and PW5 refused to handover their drugs to the accused persons, both
the accused persons took out knives (cutter) and accused Hansraj @
Sonu attacked upon PW5 with the said cutter/knife and he sustained the
injury above his right thigh. Furthermore, accused Akbar @ Bhola
attacked the deceased with the cutter and had slit the throat of the
deceased.
(9.1.3) PW-5 Rahul had further deposed that after receiving the
injuries, both the deceased and PW5 started running away from there and
scaled the wall of the nala and deceased Anil fell down and became
unconscious, while blood was oozing out from his neck. He further
deposed that he raised the alarm, however, no one came to their help and
later on someone made a call to the police on 100 number and the CATS
ambulance reached there alongwith the police officials.
(9.1.4) PW-5 Rahul had further deposed that prior to the arrival of
the police officials and the ambulance, he tried to stop the bleeding by
wrapping his banyan and t-shirt around the neck of the deceased.
However, when the ambulance reached there, the concerned official
declared the deceased to be dead and the police official recorded his
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
CNR No. DLNE01-000092-2014 State Vs. Akbar @ Bhola & Anr. FIR No. 277/14 Page no. 7/55 12:16:51
+0530
statement, Ex. PW5/A.(9.1.5) PW-5 Rahul had further deposed that the IO seized the
chappals of the deceased vide seizure memo, Ex. PW4/D; the blood
soaked t-shirt and banyan of PW5 vide seizure memo, Ex. PW4/C;
injections through which they were consuming drugs vide seizure memo,
Ex. PW4/F; blood from the wall and from the place where the dead body
of the deceased was lying alongwith earth control vide seizure memo,
Ex. PW4/A and Ex. PW4/B; the blood stained jeans pant of PW5 vide
seizure memo, Ex. PW4/G; and one blood stained broken cardboard
(fatti) vide seizure memo, Ex. PW4/E.(9.1.6) PW-5 Rahul had further deposed that the dead body of the
deceased was removed to the hospital and even he received medical
attention at the hospital and thereafter, he was discharged from there.
(9.1.7) PW-5 Rahul had further deposed that on 04.05.2014, he
joined the investigation alongwith the IO and other police officials and
the accused persons were apprehended at his instance, from the Dhobi
Ghat area. The accused persons were arrested vide arrest memo, Ex.
PW5/F and Ex. PW5/G. Their personal search were conducted vide
memos, Ex. PW5/F-1 and Ex. PW5/F-2 and the IO recorded their
disclosure statements, Ex. PW5/H and Ex. PW5/I.
(9.1.8) PW-5 Rahul had further deposed that during the formal
search of the accused persons, one cutter each was recovered from the
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
CNR No. DLNE01-000092-2014 State Vs. Akbar @ Bhola & Anr. FIR No. 277/14 Page no. 8/55 2025.04.28
12:16:57
+0530
pocket of their wearing pants and the IO prepared the sketch of the said
cutters, Ex. PW5/B and Ex. PW5/C and they were both seized vide
memos, Ex. PW5/D and Ex. PW5/E. He further deposed that the accused
persons had pointed out the spot of incident to the IO and the IO
prepared the pointing out memos, Ex. PW5/J and Ex. PW5/K.(9.1.9) PW-5 Rahul during his examination-in-chief had correctly
identified the cutter, Ex. P-7, which was duly recovered from accused
Hansraj @ Sonu and the cutter, Ex. P-8, which was recovered from the
possession of accused Akbar @ Bhola. He also correctly identified the
clothes of the deceased, Ex. P-9; his own jeans, Ex. P-6; chappals of the
deceased, Ex. P-1, his t-shirt, Ex. P-2 and banyan, Ex. P-3, the syringe,
needle and glass bottles, Ex. P-4 (colly); the blood stained cardboard, Ex.
P-5 and had also correctly identified the accused persons as the assailants
who had caused injuries to him and the deceased.
(9.1.10) PW-5 Rahul during his cross examination conducted by Ld.
Amicus Curiae for the accused Hansraj @ Sonu had deposed that he was
not having any specific shop of boot polish and used to sit on a thhiya at
Tahirpur and his general work time was from 09:00 AM to 05:00-06:00
PM. He further deposed that he never used to consume drugs at his
workplace and the deceased and him used to go to an isolated place for
consuming the same. He could not tell the exact distance between his
place of work and the place of incident, however, he went on to
voluntarily depose that they had gone to the spot situated at Seelampur in
a Bus and if they would have gone by foot, it would have taken them
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
CNR No. DLNE01-000092-2014 State Vs. Akbar @ Bhola & Anr. FIR No. 277/14 Page no. 9/55 12:17:03
+0530
about 2 hours to reach there.
(9.1.11) PW-5 Rahul during his cross examination conducted by Ld.
Amicus Curiae for the accused Hansraj @ Sonu had deposed that
although the deceased and him were used to taking norphin injections,
however, on the day of the incident, they had taken mild drugs. At about
11:45 AM, they were injecting the drugs in their veins and they were
taking the said drugs after hiding themselves from the public gaze of the
traffic and the passerbyes. They were sitting near the garbage dump,
between the two ganda nalas and when the accused persons reached
there, both the deceased and him had already consumed 5 ml each, of the
said drugs from the 11 ml bottle.
(9.1.12) PW-5 Rahul during his cross examination conducted by Ld.
Amicus Curiae for the accused Hansraj @ Sonu had deposed that the
accused persons were not known to them prior to the incident and after
reaching the spot, where the deceased and him were sitting, accused
Akbar @ Bhola demanded the injection from the deceased. At that time,
both the accused persons were armed with knives and that he had told
the IO at the time of recording of statement that the accused persons
were carrying paper cutters. He was duly confronted from his earlier
statement, Ex. PW5/A where it was not recorded that the accused
persons were armed with paper cutters and wherein the knives were
mentioned instead.
(9.1.13) PW-5 Rahul during his cross examination conducted by Ld.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
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+0530
Amicus Curiae for the accused Hansraj @ Sonu had deposed that
accused Akbar @ Bhola had cut the throat of the deceased and after the
attack committed by the accused persons, they both ran towards the wall
of the nala and since there was a heap of garbage lying next to the said
wall, they managed to climb the wall easily, however, deceased Anil had
fallen down on the opposite side of the wall and he had raised the alarm,
however, no one came to help them out and the deceased collapsed in his
lap.
(9.1.14) PW-5 Rahul during his cross examination conducted by Ld.
Amicus Curiae for the accused Hansraj @ Sonu had deposed that he did
not make any call to the police on 100 number, since, he was not
carrying mobile phone at that time. He further deposed that the police
officials did not take him to the hospital and he was given first aid on the
spot itself, by the medical staff of the ambulance.
(9.1.15) PW-5 Rahul during his cross examination conducted by Ld.
counsel for the accused Akbar @ Bhola had deposed that he did not
remember the exact date or the day of the week, when the incident had
taken place, however, the same took place at about 12:00 Noon. He
further deposed that his signatures/thumb impressions were never
obtained by the police officials on blank papers.
(9.1.16) PW-5 Rahul during his cross examination conducted by Ld.
counsel for the accused Akbar @ Bhola had deposed that the deceased
and him had not used the place of incident for relieving themselves,
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
12:17:18
CNR No. DLNE01-000092-2014 State Vs. Akbar @ Bhola & Anr. FIR No. 277/14 Page no. 11/55 +0530
however, in the next breath, he had deposed that on the date of the
incident, they had gone to the spot for taking drugs and they also did
latrine there. He further deposed that he did not remember the exact time
of reaching near the spot, on the day of the incident, however, it was
during the evening time and may be it was around 04:00 to 05:00 PM.
(9.1.17) PW-5 Rahul during his cross examination conducted by Ld.
counsel for the accused Akbar @ Bhola had deposed that the deceased
and him used to give the drug injections to each other and when the
accused persons had attacked upon them, they were both consuming
drugs and he was injecting the drugs in the veins of the deceased.
(9.1.18) PW-5 Rahul during his cross examination conducted by Ld.
counsel for the accused Akbar @ Bhola had deposed that out of the two
accused persons, accused Akbar @ Bhola was having fairer complexion.
He further deposed that both the accused persons were arrested by the
police officials on 04.05.2014 from Dhobi Ghat and they were both
found present together.
(9.2.1) PW-7 Jai Ram and PW9 Deep Chand are both the uncles of
the deceased and they had merely identified the dead body vide their
statements, Ex. PW7/A and Ex. PW9/A, respectively. PW7 had also
identified his signatures on the dead body handing over memo, Ex.
PW7/B.(9.3.1) PW-13 is Vinod Kumar and he is the informer who had
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
12:17:25
CNR No. DLNE01-000092-2014 State Vs. Akbar @ Bhola & Anr. FIR No. 277/14 Page no. 12/55 +0530
called the police on 100 number. He had deposed that on 01.05.2014,
while he was going to Gandhi Nagar on foot, and when he reached
Seelampur Red Light on the Babarpur Road at about 11:30-11:45 AM,
he saw that one person was lying in the injured condition and blood was
oozing out from his neck. There was another person sitting there and the
said person was crying at that time and was saying someone had stabbed
his brother and begged for him to be saved and also for calling the
police. He further deposed that he made the call on 100 number from his
mobile phone 9818068145 and later on he left the said place for Gandhi
Nagar.
(9.3.2) PW-13 Vinod Kumar during his cross examination
conducted by Ld. Amicus Curiae for the accused Hansraj @ Sonu had
deposed that he had seen the injured and other person from a distance of
about 10-15 feet and at that time several other persons were also
standing there. He had not noticed whether any blood was lying there or
not or as to how many injuries were suffered by the said injured person.
He further deposed that the injured was lying in the lap of the other
person.
10. Medical Witnesses:
(10.1.1) PW-20 is Dr. Yogesh Kumar Gupta and he had deposed on
behalf of Dr. Pamposh Rajdan, the then CMO, JPC Hospital and had
identified the handwriting and signature of the said doctor on the MLC,
Ex. PW20/A of patient Rahul S/o Sajjan. In the said MLC, it was
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
12:17:30
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mentioned by the concerned doctor that upon examination, patient Rahul
was found to be conscious and oriented with an incised superficial
wound over right lateral lower abdomen measuring 6 x 2 cm and the said
wound was having a spindle shape. As per the MLC, the nature of injury
was opined to be “Simple” and it was also observed that the said injury
was a fresh one and not an older wound.
11. Formal Witnesses:-
(11.1.1) Through the testimony of PW1 W/ASI Mary Rose, who was
the Duty Officer posted at PS Seelampur, the prosecution has brought on
record the DD entry no. 15A, Ex. PW1/A and the endorsement made by
her on the rukka, Ex. PW1/B and the FIR, Ex. PW1/C.(11.2.1) PW-6 is Ct. Siya Ram and he is the Special Messenger and
through him the copy of the present case FIR were delivered to the
superior police officials and the Ld. Ilaka Magistrate.
(11.3.1) PW-18 is ACP Mahesh Kumar and he is the Droughtsman
and during his testimony he had proved the scaled site plan, Ex.
PW18/A, which was prepared by him on the basis of rough notes and
measurements of the spot, taken on 26.07.2014.
(11.4.1) PW-11 is Ct. Devendra and he was the Channel Operator in
PCR HQ and on 01.05.2014, he had received the PCR call made by the
caller from mobile number 9818068145 by one Vinod Kumar regarding
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
12:17:42
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a stabbing incident near the Seelampur Red Light and he had filled up
the PCR form, Ex. PW11/A.(11.5.1) The crime team report, Ex. PW2/A was brought on record
through the testimony of In-charge Mobile Crime Team, PW2 SI E. S.
Yadav and he had deposed that after receiving the wireless message at
about 11:30 AM on 01.05.2014, he alongwith the other members of the
crime team reached near 66 Foota Road, near Seelampur Red Light,
Kuda Khatta for conducting the inspection of the place of the incident.
He had also deposed that upon reaching the place of incident, he found
dead body of one Anil Kumar and one injured namely Rahul was also
found present there. He further deposed that he had prepared his report,
Ex. PW2/A after conducting the inspection from 12:30 PM to 01:30 PM
and had handed over the said report to the IO.
(11.5.2) PW2 SI E. S. Yadav during his cross examination conducted
by Ld. Counsel for the accused persons had deposed that he was not
aware whether the IO had called any public person to join the
investigation or not and had also feigned his ignorance as to whether the
IO had called any person from the family of the deceased or the injured
to the spot or not. He further specifically deposed that no relative of the
deceased or the injured were present on the spot and he was not aware as
to whether any ocular witness was present there or not.
(11.6.1) Through the testimony of PW3 Ct. Sanjay (Photographer
Crime Team), the prosecution has sought to prove the photographs of the
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
12:17:50
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crime scene which were exhibited as Ex. PW3/A-1 to Ex.PW3/A-29. He
had also brought on record the 29 negatives of the said photographs and
the same were exhibited as Ex. PW3/B-1 to Ex. PW3/B-29.
(11.7.1) PW-9A is Mahesh Kumar Sharma and he is the paramedical
staff at CATS ambulance and Incharge of CATS ambulance. He had
deposed that on 01.05.2014, at about 12:00 Noon, he received a wireless
call regarding a stabbing incident which took place at 66 Foota Road
near Khatta and Nala, Seelampur, Delhi. After receiving the said call, he
alongwith the ambulance reached the spot and found that two injured
persons, wherein, one was lying on the ground and the other was sitting
with the said person, were found on the spot. He conducted the
preliminary examination of the deceased and found that he was already
dead and the other injured person was having injuries on the right side of
his abdomen. He gave the first aid to injured Rahul and since the police
officials were already present on the spot, he left after giving the primary
treatment to the injured.
(11.7.2) PW-9A Mahesh Kumar Sharma during his cross
examination conducted by Ld. Counsels for the accused persons had
deposed that the public persons were present on the spot, however, he
was not aware whether the local police officials reached the spot in his
presence or not. He further deposed that there was only one cut injury
mark on the left side of the neck of the deceased. Furthermore, he had
noticed only one injury on the abdomen of injured Rahul. He further
deposed that he had made an entry in the Patient Assessment Performa
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
12:17:56
CNR No. DLNE01-000092-2014 State Vs. Akbar @ Bhola & Anr. FIR No. 277/14 Page no. 16/55 +0530
regarding his reaching the spot from his base point and that he remained
at the spot for about 45 minutes.
(11.8.1) PW-12 is Retd. SI Raj Pal and he had deposed that on
02.06.2014, upon the directions of the SHO PS Seelampur, he had
collected the viscera petty and the photocopy of the postmortem report
from GTB Hospital and same were taken into possession by him vide
memo, Ex. PW12/A and he had deposited the same with the MHCM.
(11.9.1) PW-15 is Ct. Amit Kumar and he had deposed that on
27.06.2014, upon the directions of the SHO PS Seelampur, he had
collected the postmortem report of deceased Anil from GTB Hospital
alongwith one sealed pullanda sealed with the seal of “SR” and two
sample seals and the same were handed over by him to the IO, who had
then seized the same vide seizure memo, Ex. PW15/A.(11.10.1) PW-16 is HC Kailash and he had deposed that on
04.07.2014, upon the directions of the IO, he had collected two sealed
parcels one sealed viscera box and one sealed envelop with the sample
seal from the then MHCM HC Gajender vide RC No. 138/21 for
depositing the same at FSL Rohini. He then deposited the said sealed
parcels and sample seal with FSL Rohini and handed over the
acknowledgment and receipt of copy of RC to the MHCM and so long as
the exhibits remained in his possession, they were not tampered.
(11.11.1) PW-17 is HC Sachin and he had deposed that on
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
12:18:02
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04.07.2014, upon the directions of the IO, he had collected sixteen sealed
parcels and two sample seals from the then MHCM HC Gajender vide
RC No. 137/21 for depositing the same at FSL Rohini. He then deposited
the said sealed parcels and sample seal with FSL Rohini and handed over
the acknowledgment and receipt of copy of RC to the MHCM and so
long as the exhibits remained in his possession, they were not tampered.
(11.12.1) PW-21 is ASI Gajender and he is the MHCM. During his
testimonies the relevant entries in register no. 19 and 21 were brought on
record as Ex. PW21/A (colly) and the two road certificate entries
pertaining to RC No. 137/21 and 138/21 were exhibited as Ex. PW21/B
(colly).
(11.13.1) Through the testimony of PW4 SI Naveen Kumar (the
Inquiry Officer), PW-8 Ct. Ram Kumar and PW-10 Ct. Sanjeev, the
prosecution has sought to prove that DD No. 15A, Ex. PW1/A was
marked to PW4 and the same was handed over to PW8 by the DO and
the PW8 then went to JPC Hospital and handed over the same to PW4.
(11.13.2) PW4 SI Naveen Kumar (the Inquiry Officer), PW-8 Ct. Ram
Kumar and PW-10 Ct. Sanjeev, had further deposed that after the DD
No. 15A was received by PW4, all of them went to the spot and met ASI
Yogesh and Ct. Dhanesh, who were already found present there. On the
edge of the road near the wall of the ganda nala and near the two sewer
pipes, one dead body of a male was found lying smeared with blood with
a cut injury on the neck and one other person was found sitting near the
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
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said dead body. One pair of chappal was found lying next to the dead
body and one banyan and one t-shirt, smeared with blood were also lying
near the dead body. They had further deposed that the wall of the ganda
nala was also having blood spots. In the meantime, SHO PS Seelampur,
Inspector Anand Sagar alongwith Ct. Manoj reached there. Furthermore,
the crime team was called at the spot by the IO and the CATS
Ambulance had reached the spot and given the first aid to the injured
Rahul. Thereafter, Inspector Anand Sagar recorded the statement of
complainant Rahul and prepared the rukka for getting the present case
FIR registered. The rukka was sent to the PS through PW8 and after
getting the FIR registered, he returned back to the spot and handed over
the copy of the FIR and the original rukka to the IO.
(11.13.3) PW4 SI Naveen Kumar (the Inquiry Officer), PW-8 Ct. Ram
Kumar and PW-10 Ct. Sanjeev, had correctly identified the case
properties seized by the IO from the spot in their presence.
(11.14.1) Through the testimony of PW-14 IO ACP Anand Sagar,
PW-19 HC Dhanesh Kumar and PW-8 Ct. Ram Kumar, the prosecution
has sought to prove that on 04.05.2014, upon the information received
from secret informer, PW14 had constituted a police party for raid and
arrest of the accused persons and complainant Rahul was made to join
the said search. At about 04:30 PM, the police party and the complainant
reached Dwarka Mandir, GT Road, Welcome and met the secret informer
and upon his information, they reached Dhobi Ghat with the said secret
informer and at the pointing out of the secret informer and the
ATUL
AHLAWAT
Digitally signed by
CNR No. DLNE01-000092-2014 State Vs. Akbar @ Bhola & Anr. FIR No. 277/14 Page no. 19/55 ATUL AHLAWAT
Date: 2025.04.28
12:18:13 +0530
complainant, the accused persons were apprehended.
(11.14.2) PW-14 IO ACP Anand Sagar, PW-19 HC Dhanesh Kumar
and PW-8 Ct. Ram Kumar had further deposed that during the search of
accused Akbar @ Bhola one cutter was found in the right side pocket of
his wearing pant. The said cutter, Ex. P-8 was measured by the IO and it
was found having the length of 14.5 cm, with the length of the blade to
be 10.5 cm and the width of the blade was 1.5 cm. The said cutter was
converted into pullanda and was seized by the IO vide seizure memo,
Ex. PW5/E. Thereafter, he was arrested vide arrest memo, Ex. PW5/G
and his personal search was conducted vide memo, Ex. PW5/G-1 and the
IO recorded his disclosure statement, Ex.PW5/H.(11.14.3) PW-14 IO ACP Anand Sagar, PW-19 HC Dhanesh Kumar
and PW-8 Ct. Ram Kumar had further deposed that during the search of
accused Hansraj @ Sonu one cutter was found in the right side pocket of
his wearing pant. The said cutter, Ex. P-7 was measured by the IO and it
was found having the length of 12.2 cm, with the length of the blade to
be 8.2 cm and the width of the blade was 0.9 cm. The said cutter was
converted into pullanda and was seized by the IO vide seizure memo,
Ex. PW5/D. Thereafter, he was arrested vide arrest memo, Ex. PW5/F
and his personal search was conducted vide memo, Ex. PW5/F-1 and the
IO recorded his disclosure statement, Ex.PW5/I.(11.15.1) PW-14 IO ACP Anand Sagar is the main Investigating
Officer of the present case. He had deposed that he had prepared the site
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
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12:18:19
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plan, Ex. PW14/A at the instance of the complainant/injured Rahul on
01.05.2014 itself. Thereafter, he prepared an application, Ex. PW14/B
for preserving the dead body of the deceased Anil at GTB Hospital
Mortuary. He had also prepared the inquest papers i.e. Form No. 25.35,
Ex. PW14/C and also prepared the application, Ex. PW14/D seeking
conducting the postmortem of the deceased.
(11.15.2) PW-14 IO ACP Anand Sagar had further deposed that after
recording the statement of the injured Rahul, Ex. PW5/A, he made an
endorsement, Ex. PW14/A and prepared the rukka and sent it for
registration of FIR through Ct. Ram Kumar. He lifted the exhibits from
the spot and seized the same and recorded the statement of the witnesses
and deposited the case property with the MHCM. He also gave the
certificate u/s 65-B of the Indian Evidence Act, 1872, Ex. PW14/G
regarding the correctness of the computerized copy of the FIR. During
his examination-in-chief the copy of the postmortem report no. 528/14
was merely brought on record as Mark X-1.
(11.15.3) PW-14 IO ACP Anand Sagar during his cross examination
conducted by Ld. Counsels for the accused persons had deposed that
after receiving the information regarding the present case, he had
reached the spot at around 12:35 to 12:40 PM and family members of the
deceased Anil were not present at the spot. He further deposed that he
had met the injured/complainant Rahul at the spot, however, he had not
informed the family members of deceased and injured person. He went
on to depose that he had informed the family members of the deceased
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
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12:18:26
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later in the same evening.
(11.15.4) PW-14 IO ACP Anand Sagar during his cross examination
conducted by Ld. Counsels for the accused persons had deposed that
public persons were passing near the scene of incident, however, he had
not called them to join the investigation. He further deposed that
about10-15 minutes of reaching the spot, he started recording the
statement of the complainant, Ex. PW5/A. Although, other public
persons were present near the spot, he had not taken their signatures on
the seizure memos and only the signature of the complainant were taken.
(11.15.5) PW-14 IO ACP Anand Sagar during his cross examination
conducted by Ld. Counsels for the accused persons had deposed that he
saw one injury mark on the left side of the neck of the dead body and the
blood was lying under the neck of the said dead body. The blood was
also found on the wall, on the cardboard fatti and glass viol (bottle for
injection).
(11.15.6) PW-14 IO ACP Anand Sagar during his cross examination
conducted by Ld. Counsels for the accused persons had deposed that on
04.05.2014, both the accused persons were apprehended at Dhobi Ghat,
where they were found sitting. He further categorically deposed that the
accused persons could not run away, since they were immediately
apprehended by them and no public person was present at the time of
apprehension of the accused persons. He further deposed that he had
searched the accused persons, however, he did not offer his own search
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
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to the accused persons.
Admitted Documents & Plea of Accused Persons:-
12. On 24.02.2024, the accused persons had suffered a statement u/s
294 Cr.PC, 1973, wherein, they had admitted the FSL Biology report
dated 28.04.2015, prepared by Ms. Imrana and the same was exhibited as
Ex. PX-1.
13. On 24.02.2024, the accused persons had suffered a statement u/s
294 Cr.PC, 1973, wherein, they had admitted the FSL Chemistry report
dated 27.08.2014, prepared by Dr. Adesh Kumar and the same was
exhibited as Ex. PX-2.
14. On 24.02.2024, the accused persons had suffered a statement u/s
294 Cr.PC, 1973, wherein, they had admitted the relevant entries in
register no. 19 and 21 of the Malkhana of PS Seelampur, regarding the
present case and the same were exhibited as Ex. PX-3 (colly).
15. After completion of prosecution evidence, PE was closed. The
statements of the accused Akbar @ Bhola and Hansraj @ Sonu were
recorded under Section 313 Cr.P.C. 1973, in which they had pleaded
innocence.
16. The accused persons chose not to lead any Defense Evidence.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
12:18:44
+0530
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17. I have heard the arguments advanced by Sh. Mukul Kumar, Ld.
Additional PP for the State and Sh. Raj Kamal Arya, Ld. Amicus Curiae
for the accused persons. I have minutely gone through the evidence
brought on record and the material aspects of the case.
Submissions made on behalf of the State:
18. It has been argued by the Ld. Addl. PP for the State that the
prosecution has proved beyond reasonable doubt that on 01.05.2014, at
about 11:45 AM, when the deceased Anil and injured Rahul had gone
near the ganda nala, situated next to the kura khatta, adjacent to 66 Futa
Road, Seelampur, Delhi to relieve themselves for answering the nature’s
call and when they had sat down away from the public gaze, to consume
drugs, the accused Akbar @Bhola and accused Hansraj @ Sonu came
there and demanded the deceased to hand over the drug injections and
when the deceased refused to accede to their demands, the deceased and
injured Rahul were attacked by the accused persons with a blade cutter.
The motive of the accused persons was to grab the drugs from the
deceased and the injured, however, when they were not successful,
accused Hansraj @ Sonu gave a blow on the back of the
complainant/injured Rahul and accusd Akbar @ Bhola gave the fatal
blow with the blade cutter on the neck of the deceased.
19. It is further submitted by Ld. Addl. PP for the State that the accused
persons had committed the murder of deceased Anil, in pursuance of
their common intention shared with each other. Furthermore, they had Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
12:18:52
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also caused an injury upon the body of the complainant with a blade
cutter, in such circumstances that if by the said act, they would have
caused the death of the complainant, then they would also be guilty of
committing the offence of attempt to murder.
20. It is further submitted by Ld. Addl. PP for the State that the
categorical testimony of the injured eye witness, PW-5 Rahul is
clinching in nature and he had specifically deposed qua the role
committed by the accused persons and his entire testimony had gone
unrebutted. Furthermore, the law attaches special importance to the
testimony of injured eye witness, since his presence on the place of
occurrence cannot be doubted and his statement is generally considered
to be very reliable and it is highly unlikely that he would spare the actual
assailant in order to falsely implicate someone else. His testimony has its
own relevancy and efficacy, as he had himself sustained the injuries.
This special status given to the testimony of injured eye witness comes
with a built in guarantee unless there is convincing evidence to discredit
him, the same must be relied upon and in the present case, there are no
major contradictions in the testimony of PW-5 Rahul and therefore, the
prosecution has been able to discharge its burden beyond reasonable
doubt. The reliance is placed upon the decision of the Hon’ble Supreme
Court of India in “Bhajan Singh Vs. State of Haryana” (2011) 7 SCC
421.
21. It is further submitted by Ld. Addl. PP for the State that the
testimony of the injured eye witness is duly corroborated with the Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
12:19:01
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medical evidence i.e. his own MLC, Ex. PW20/A, wherein the
concerned doctor had duly recorded that PW5 has sustained an incised
wound of 6×2 cm and the said wound was having a spindle shape, which
could have only be caused with a sharp object like a blade cutter.
Furthermore, the postmortem report of the deceased, Mark X-1 also
mentioned that the deceased had received an injury upon his neck and
the associated blood vessels in the neck were protruded with a sharp
edged weapon and it lead to asphyxia and aspiration of blood and blood
clots. The said injury also duly corroborates the ocular testimony of
PW5.
22. It is further submitted by the Ld. Addl. PP for the state that the blade
cutters Ex. P7 and Ex. P8 were duly recovered through the possession of
accused Hansraj @ Sonu and accused Akbar @ Bhola. The said blade
cutters were correctly identified by the injured witness PW5 Rahul and it
had clearly established the crucial link between the offences in question
and the role played by the accused persons.
23. It is further submitted by the Ld. Addl. PP for the state that the
identity of the accused persons was fully established through the
testimony of the injured witness PW5 Rahul and other formal
prosecution witnesses. Therefore, the prosecution has been able to prove
the case beyond reasonable doubt that the accused persons had
committed the murder of Anil and had also caused injuries upon PW5
Rahul, with an intention to kill him. Therefore, they had both committed
the offences punishable u/s 302/34 IPC, 1860 and u/s 307/34 IPC, 1860. Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
12:19:12
+0530
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Submissions made on behalf of the Accused Persons:
24. It is submitted by the Ld. Amicus Curiae for the accused persons
that the prosecution had initially cited as many as 24 witnesses to prove
its case. Out of the said 24 witnesses, there was only 1 alleged eye
witness, namely PW5 Rahul, who is also the complainant of the present
case. However, since PW5 had expired during the trial and his cross
examination could not be completed, therefore, his entire testimony
vanishes from the ken of evidence and the same cannot be relied upon to
convict the accused persons for the offences they are charged with. The
Ld. Counsel had placed the reliance upon the decision of Hon’ble High
Court of Delhi in “DRI Vs. Satyanarayan Agarwal” 2012 (2) JCC 1043.
25. It is submitted by the Ld. Amicus Curiae for the accused persons
that the prosecution could not bring on record any other circumstantial
evidence to support their case and to link the accused persons with the
offence in question. Since there was no other ocular witness testimony or
CCTV footage, except for the testimony of PW5 Rahul, which could not
be relied upon, since he was only partly cross examined by the accused
persons, therefore, the prosecution had relied upon the alleged recovery
of the weapons of offence to link the accused persons. However, there
are material contradictions in the testimony of the recovery witnesses
and reasonable doubts are created upon the entire recovery process and
the benefit of the said doubt must be given to the accused persons.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
12:19:30
+0530
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26. It is submitted by the Ld. Amicus Curiae for the accused persons
that as per the genesis of the prosecution’s case, i.e the statement of the
complainant, Ex. PW5/A, he had leveled specific allegations of the
accused persons being armed with knives ( chaku) or that they had
attacked upon the deceased and the complainant with the said
knives/chaku. However, there is no recovery of any knives/ chaku in the
present case and as per the case of the prosecution, on 04.05.2014, the IO
had recovered two cutters from the possession of the accused persons
and it is absolutely clear from the sketches, Ex. PW5/B and Ex.PW5/C,
respectively, that the said cutters did not correspond with the description
of the weapons mentioned in the complaint. Therefore, the benefit of the
said doubt must go the accused persons.
27. It is submitted by the Ld. Amicus Curiae for the accused persons
that the prosecution could not establish the essential link pertaining to
the call made on 100 number by the informant, which led to the
registration of DD no. 15A, Ex. PW1/A, since the IO had not procured
the CAF /CDR /Cell Location ID chart of the mobile number
9818068145. It had merely sought to prove the same to the testimony of
PW13 Vinod Kumar that he was the caller who had informed the police
about the incident in question, however, there is no document to prove
that the said call was made by him or that the number in question even
belonged to him.
28. It is submitted by the Ld. Amicus Curiae for the accused persons
that the prosecution could not even prove the death or the reasons /cause
Digitally
signed by
ATUL
ATUL AHLAWAT
CNR No. DLNE01-000092-2014 State Vs. Akbar @ Bhola & Anr. FIR No. 277/14 Page no. 28/55
AHLAWAT Date:
2025.04.28
12:19:39
+0530
of the death of deceased Anil, since the postmortem report was merely
brought on record through the formal witness, i.e IO /ACP Anand Sagar.
The said witness is not the maker of the document marked as Mark X1
and the concerned doctor who had prepared the said report after
conducting the postmortem of the deceased, was never examined by the
prosecution. Therefore, the most essential link of the prosecution’s case
had gone begging. Furthermore, even the injuries caused to the
complainant Rahul, could not be corroborated with any medical
evidence, since his MLC Ex. PW20/A was sought to be brought on
record through the testimony of PW20 Dr. Yogesh Kumar Gupta, who
was not the maker of the said document. Mere identification of the
signature and the handwriting of the concerned doctor, who had prepared
the MLC, does not prove the contents of the said report and the same
cannot be admitted into evidence. To substantiate his averments, the Ld.
Counsel has relied upon the decision of the Hon’ble Supreme Court of
India in “LIC of India and Anr. Vs. Ram Pal Singh Bisen” 2010 (2)
CCC 315 (S.C.).
29. It is submitted by the Ld. Amicus Curiae for the accused persons
that there are material contradictions in the prosecution story regarding
site plan being prepared by the IO. As per his testimony, PW14 IO/ACP
Anand Sagar had deposed that he had prepared the site plan, at the
instance of the complainant Rahul. However, bare perusal of the said
document, Ex. PW14/A clearly reflects that it is no where mention by
the IO in the marginal notes that the same was prepared by him at the
instance of the complainant. Furthermore, the entire testimony of the
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
12:19:47
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complainant was silent upon the site plan being prepared at his instance,
therefore, a shadow of doubt is created upon the entire investigation
conducted in the present case.
30. It is submitted by the Ld. Amicus Curiae for the accused persons
that the prosecution could not even prove the copy of the FIR,
Ex.PW1/C as the same was not supported with the mandatory certificate
U/s 65 B of Indian Evidence Act, 1872, since the computer operator or
the DO had not given the said certificate and it was merely brought on
record by the IO and the same does not fulfill the requirements of the
law.
31. It is submitted by the Ld. Amicus Curiae for the accused persons
that the entire prosecution story is rendered doubtful, since as per their
case, the deceased and the injured were consuming drugs at the time of
the incident and the injured was already under the influence of the said
intoxicating substances, however, prior to recording his statement, Ex.
PW5/A, the IO made no efforts to get him medically examined, so as to
ensure himself that whether the complainant was within his senses to
give the said statement or not.
32. It is submitted by the Ld. Amicus Curiae for the accused persons
that as per the testimony of the IO, PW14 ACP Anand Sagar, there were
public persons present, when he reached the spot and also when the
arrest of the accused persons were effected, however, to the reasons best
known to him, he chose not to make the said public persons as a witness
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
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12:19:56
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to the proceedings carried out by him. Therefore, the entire case of the
prosecution is rendered even more doubtful and is highly suspicious.
33. It is submitted by the Ld. Amicus Curiae for the accused persons
that the entire proceedings qua the recovery of the alleged weapons and
the clothes of the accused persons which were having blood marks,
three days after the incident is highly suspicious and no reasonable
prudent person would believe that the accused persons would still be
roaming around with their clothes being smeared with the blood of the
deceased and the complainant or that they would still be carrying the
alleged weapons in their respective pockets.
34. It is submitted by the Ld. Amicus Curiae for the accused persons
that the blood stained clothes of the accused persons were sent to the
FSL, however, as per the FSL report, Ex. PX2, the blood group could not
be detected on the said clothes and the prosecution failed to relate the
said clothes with the accused persons and the deceased. Therefore, yet
another link of the prosecution’s case has gone missing.
35. It is submitted by the Ld. Amicus Curiae for the accused persons
that mere recovery of the alleged weapons is not enough to prove the
guilt of the accused persons, in absence of other circumstances
incriminating them. The FSL reports, Ex. PX1 and Ex.PX2 are not
incriminating piece of evidence, since the ABO blood grouping on the
alleged weapon i.e the blade cutters could not be detected and same
could not match, with the blood of the deceased. Furthermore, the IO
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
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chose not to send the said weapons to the concerned doctor, who had
conducted the postmortem of the deceased or to the doctor who had
medically examined the complainant, so as to give their respective
opinions as to whether the said injuries could have been caused by the
recovered weapons or not. Therefore, the benefit of the said faulty
investigation must go to the accused persons. The Ld. Counsel had relied
upon the decisions of the Hon’ble Supreme Court of India in “Gurcharan
Singh Vs. State of Himachal Pradesh” 2021 (1) RCR (Cr.) 778 SC and
in ” Kailash Gour Vs. State” 2012 (1) LRC 81 SC and the decision of the
Hon’ble High Court of Delhi in ” Riaz Ali Vs. State” 2012 (2) JCC
1092 Delhi (DB).
Case Laws & Relevant Law:
36. It is trite law that the accused persons can be convicted on the basis
of credible evidence brought on record and the appreciation of the said
evidence must be done in correct and true perspective manner and in the
natural course of events, what would have been occurred. Appreciation
of evidence beyond reasonable doubt does not mean that it should be
assessed beyond any iota of doubt. Beyond Reasonable Doubt means
that the prosecution is required to place evidence at a higher degree of
preponderance of probabilities compared to what is degree of
preponderance of probability in civil cases. The theory of Beyond
Reasonable Doubt means expecting higher degree of preponderance of
probabilities and the natural conduct of human beings, as held by the
Hon’ble High Court of Karnataka in “State of Karnataka Vs Venkatesh Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
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+0530
@ Venkappa & Anr” , Criminal Appeal No. 100492 of 2021, decided on
18.12.2023.
37. Section 3 of the Indian Evidence Act defines “evidence”. The
evidence can be broadly divided into oral and documentary. “Evidence”
under the Act can be said to include the means, factor or material,
lending a degree of probability through a logical inference to the
existence of a fact. It is an adjective law highlighting and aiding the
substantive law. Thus, it is neither wholly procedural nor substantive,
though trappings of both could be felt. Reliance is placed upon the
decision of the Honble Supreme Court of India in “Rajesh Yadav &
Anr. Vs. State of U.P”, Criminal Appeal No. 339-340 of 2014, date of
decision 04.02.2022.
38. The definition of the word “proved” though gives an impression of
a mere interpretation, in effect, is the heart and soul of the entire Act.
This clause, consciously speaks of proving a fact by considering the
“matters before it”. The importance is attached to the degree of
probability in proving a fact through the consideration of the matters
before the court. What is required for a court to decipher is the existence
of a fact and its proof by a degree of probability, through a logical
inference.
39. Matters are necessary, concomitant material factors to prove a fact.
All “evidence” would be “matters” but not vice versa. In other words,
matters could be termed as a genus of which evidence would be a Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
12:20:27
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species. Matters also adds strength to the evidence giving adequate
ammunition in the Court’s sojourn in deciphering the truth. Thus, the
definition of “matters” is exhaustive, and therefore, much wider than that
of “evidence”. However, there is a caveat, as the court is not supposed to
consider a matter which acquires the form of an evidence when it is
barred in law. Matters are required for a court to believe in the existence
of a fact.
40. Matters, do give more discretion and flexibility to the court in
deciding the existence of a fact. They also include all the classification of
evidence such as circumstantial evidence, corroborative evidence,
derivative evidence, direct evidence, documentary evidence, hearsay
evidence, indirect evidence, oral evidence, original evidence,
presumptive evidence, primary evidence, real evidence, secondary
evidence, substantive evidence, testimonial evidence, etc.
41. In addition, they supplement the evidence in proving the existence
of a fact by enhancing the degree of probability. As an exhaustive
interpretation has to be given to the word “matter”, and for that purpose,
the definition of the expression of the words “means and includes”,
meant to be applied for evidence, has to be imported to that of a “matter”
as well. Thus, a matter might include such of those which do not fall
within the definition of Section 3, in the absence of any express bar.
42. What is important for the court is the conclusion on the basis of
existence of a fact by analyzing the matters before it on the degree of
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
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probability. The entire enactment is meant to facilitate the court to come
to an appropriate conclusion in proving a fact. There are two methods by
which the court is expected to come to such a decision. The court can
come to a conclusion on the existence of a fact by merely considering the
matters before it, in forming an opinion that it does exist. This belief of
the court is based upon the assessment of the matters before it.
Alternatively, the court can consider the said existence as probable from
the perspective of a prudent man who might act on the supposition that it
exists. The question as to the choice of the options is best left to the court
to decide. The said decision might impinge upon the quality of the
matters before it.
43. The word “prudent” has not been defined under the Act. When the
court wants to consider the second part of the definition clause instead of
believing the existence of a fact by itself, it is expected to take the role of
a prudent man. Such a prudent man has to be understood from the point
of view of a common man. Therefore, a judge has to transform into a
prudent man and assess the existence of a fact after considering the
matters through that lens instead of a judge. It is only after undertaking
the said exercise can he resume his role as a judge to proceed further in
the case.
44. The aforesaid provision also indicates that the court is concerned
with the existence of a fact both in issue and relevant, as against a whole
testimony. Thus, the concentration is on the proof of a fact for which a
witness is required. Therefore, a court can appreciate and accept the
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ATUL AHLAWAT
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testimony of a witness on a particular issue while rejecting it on others
since it focuses on an issue of fact to be proved. However, the evidence
of a witness as whole is a matter for the court to decide on the
probability of proving a fact which is inclusive of the credibility of the
witness. Whether an issue is concluded or not is also a court’s domain.
45. While appreciating the evidence as aforesaid along with the matters
attached to it, evidence can be divided into three categories broadly
namely, (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly
reliable nor wholly unreliable. If evidence, along with matters
surrounding it, makes the court believe it is wholly reliable qua an issue,
it can decide its existence on a degree of probability. Similar is the case
where evidence is not believable. When evidence produced is neither
wholly reliable nor wholly unreliable, it might require corroboration, and
in such a case, court can also take note of the contradictions available in
other matters. The aforesaid principle of law has been enunciated in the
authority of Hon’ble Supreme Court of India in “Vadivelu Thevar v.
State of Madras“, 1957 SCR 981 wherein it is held as under:
“In view of these considerations, we have no hesitation in holding
that the contention that in a murder case, the court should insist
upon plurality of witnesses, is much too broadly stated. Section 134
of the Indian Evidence Act has categorically laid it down that “no
particular number of witnesses shall in any case, be required for the
proof of any fact”. The legislature determined, as long ago as 1872,
presumably after due consideration of the pros and cons, that it shall
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not be necessary for proof or disproof of a fact to call any particular
number of witnesses. In England, both before and after the passing
of the Indian Evidence Act, 1872, there have been a number of
statutes as set out in Sarkar’s Law of Evidence — 9th Edn., at pp.
1100 and 1101, forbidding convictions on the testimony of a single
witness. The Indian Legislature has not insisted on laying down any
such exceptions to the general rule recognized in s.134 quoted
above. The section enshrines the well-recognized maxim that
“Evidence has to be weighed and not counted”. Our Legislature has
given statutory recognition to the fact that administration of justice
may be hampered if a particular number of witnesses were to be
insisted upon. It is not seldom that a crime has been committed in
the presence of only one witness, leaving aside those cases which
are not of uncommon occurrence, where determination of guilt
depends entirely on circumstantial evidence. If the Legislature were
to insist upon plurality of witnesses, cases where the testimony of a
single witness only could be available in proof of the crime, would
go unpunished. It is here that the discretion of the presiding judge
comes into play. The matter thus must depend upon the
circumstances of each case and the quality of the evidence of the
single witness whose testimony has to be either accepted or
rejected. If such a testimony is found by the court to be entirely
reliable, there is no legal impediment to the conviction of the
accused person on such proof. Even as the guilt of an accused
person may be proved by the testimony of a single witness, the
innocence of an accused person may be established on the
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testimony of a single witness, even though a considerable number
of witnesses may be forthcoming to testify to the truth of the case
for the prosecution. Hence, in our opinion, it is a sound and well-
established rule of law that the court is concerned with the quality
and not with the quantity of the evidence necessary for proving or
disproving a fact. Generally speaking, oral testimony in this context
may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in
coming to its conclusion either way — it may convict or may
acquit on the testimony of a single witness, if it is found to be
above reproach or suspicion of interestedness, incompetence or
subornation. In the second category, the court, equally has no
difficulty in coming to its conclusion. It is in the third category of
cases, that the court has to be circumspect and has to look for
corroboration in material particulars by reliable testimony, direct
or circumstantial. There is another danger in insisting on plurality
of witnesses. Irrespective of the quality of the oral evidence of a
single witness, if courts were to insist on plurality of witnesses in
proof of any fact, they will be indirectly encouraging subornation
of witnesses. Situations may arise and do arise where only a single
person is available to give evidence in support of a disputed fact.
The court naturally has to weigh carefully such a testimony and if
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it is satisfied that the evidence is reliable and free from all taints
which tend to render oral testimony open to suspicion, it becomes
its duty to act upon such testimony. The law reports contain many
precedents where the court had to depend and act upon the
testimony of a single witness in support of the prosecution. There
are exceptions to this rule, for example, in cases of sexual
offences or of the testimony of an approver; both these are cases
in which the oral testimony is, by its very nature, suspect, being
that of a participator in crime. But, where there are no such
exceptional reasons operating, it becomes the duty of the court to
convict, if it is satisfied that the testimony of a single witness is
entirely reliable. We have, therefore, no reasons to refuse to act
upon the testimony of the first witness, which is the only reliable
evidence in support of the prosecution.”
Appreciation of Evidence:
Medical Evidence & Cause of Death:-
46. In the background of the abovesaid decisions, I shall now appraise
the evidence brought on record. In the present case, the prosecution has
sought to prove the death of deceased Anil through testimony of the sole
ocular witness namely PW5 Rahul and other formal witnesses such as
PW9A Mahesh Kumar Sharma, who was the paramedical staff of the
CATS ambulance, who had responded on the spot. However, the
concerned doctor who had allegedly conducted the postmortem of Digitally
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deceased Anil, was never examined before this Court. The prosecution
not only failed to examine the concerned doctor, namely Dr. Shalney
Razdan, however, no one had deposed on her behalf as well to identify
her handwriting and signatures. Moreover, the original postmortem
report was never filed by the IO before this Court and the same was
merely brought on record through the testimony of the formal witness,
i.e. the IO PW14 ACP Anand Sagar as Mark X-1.
47. It is trite law, as propounded by Hon’ble Apex Court in “Mohd.
Zahid Vs. State of Tamil Nadu” AIR 1999 SC 2416 that only the doctor
is the sole competent witness to speak about nature of injuries and cause
of death. However, the postmortem report is not itself a substantive piece
of evidence in itself and the said postmortem report is like any other
document and it is the testimony of the concerned doctor, who conducted
the postmortem, which has the credibility of substantive evidence and
not the report in itself.
48. The postmortem report, Mark X-1 was merely brought on record
through a formal witness, namely PW14 IO ACP Anand Sagar and not
through the testimony of the concerned doctor who had conducted the
examination. Therefore, the said report is inadmissible in evidence.
Reliance is placed upon the decision of the Hon’ble Supreme Court of
India in “Munshi Prasad Vs. State of Bihar” AIR 2001 SC 3031.
Therefore, the most essential link of the case of the prosecution that the
death of deceased Anil was caused by asphyxia as a result of antemortem
aspiration of blood and blood clots consequent upon injury to the neck Digitally
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ATUL AHLAWAT
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and associated blood vessels produced by sharp edged weapon or that the
said injury was sufficient to cause death in ordinary course of nature,
could not be proved by the prosecution. Since, the concerned doctor who
had examined the dead body and conducted the postmortem of the
deceased was not examined, the said contents of the PM report could not
be proved beyond reasonable doubt and the benefit of the same must go
to the accused persons.
49. For the reasons best known to the IO, the alleged cutters, Ex. P-7
and P-8 were never sent to the concerned doctors, who had prepared the
postmortem report of the deceased Anil and to the doctor who had
examined patient Rahul and prepared his MLC, Ex.PW20/A, for seeking
subsequent opinion, as to whether the injuries in question could have
been caused by the weapons allegedly recovered through the accused
persons. Therefore, one more crucial link of the prosecution’s case could
not be established and the recovery of the alleged weapons of the
offence, could not be linked to the injuries in question. Therefore, the
decision of the Hon’ble High Court of Delhi in “Arjun Pandit Vs. State“
2014 (7) LRC 338 (Del) (DB), as relied upon by the Ld. Amicus Curiae
for the accused persons, is squarely applying to the facts of the present
case. Therefore, the benefit of the same must also go to the accused
persons.
50. Even the FSL report, Ex. PX-1, which is an admitted document is
concerned, blood could not be detected on one of the metallic blade
cutter and although the blood could be detected on the other, however,
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ATUL AHLAWAT
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even on the said blade cutter, no reaction as to the ABO blood grouping
was found and the same could not match with the blood of the deceased.
Furthermore, the prosecution could not link the clothes recovered during
the investigation to the blood of the deceased. Therefore, even the
alleged blood stained clothes worn by the accused persons at the time of
their arrest could not be of any consequence, since, the same could not
be linked with the blood group of the deceased. Therefore, the judgment
cited by the Ld. Amicus Curiae for the accused persons in “Bikal Bhanot
@ Vicky Vs. State of NCT of Delhi” 2013 V AD (CRI.) (DHC) 343, is
also is squarely applying to the facts of the present case on this aspect.
51. Furthermore, the concerned doctor who had medically examined
the injured eye witness/complainant Rahul, namely Dr. Pamposh Razdan
was not examined by the prosecution and the said MLC was brought on
record through the testimony of PW20 Dr. Yogesh Kumar Gupta, who
had merely identified the hand writing and signatures of the concerned
Dr. Pamposh Razdan. The said identification does not prove the contents
of the report and same cannot be admitted into evidence. The case law as
cited by Ld. Amicus Curiae for the accused persons i.e. “State of Punjab
Vs. Bir Singh” 2002(3) RCR (Criminal) 496 is also squarely applying to
the facts of the present case on this point and the benefit of the said lapse
on the part of the prosecution, must go to the accused persons.
52. As far as the case of the prosecution is concerned, the complainant
PW5 Rahul and the deceased Anil were consuming narcotic drugs
through injections, at the time of the incident and at the time of accused
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ATUL AHLAWAT
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persons showing up at the spot, the complainant PW5 Rahul had
administered the injection to the deceased. However, when the viscera
samples of the deceased were sent to FSL for forensic analysis, the
report, Ex. PX-2, prepared by the Chemistry Division of FSL Rohini, no
metallic poisons, ethyl and methyl alcohol, cyanide, phosphide,
alkaloids, barbiturates tranquilizers and pesticides could be detected in
the preserved samples of the deceased. Furthermore, in the blood of the
deceased, only ethyl alcohol could be detected and in the viscera samples
only ethyl alcohol was found and no traces of barbiturates tranquilizers
could be detected. Therefore, the said report is also running counter to
the case of the prosecution that the deceased had consumed drugs
immediately prior to his death.
53. Therefore, none of the medical/forensic reports/documents are
coming to the aid of the prosecution and the essential links regarding the
same are completely missing in the facts of the present case.
Linking the accused persons to the Act which caused the death of the
deceased:-
54. As per the case of the prosecution, there was only one ocular witness
who had seen the incident in question. There was no CCTV footage of
any camera, which had recorded the said incident. Therefore, the entire
case of the prosecution was based upon the testimony of said ocular
witness, namely PW5 Rahul.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
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55. As per the submissions made by Ld. Amicus Curiae for the accused
persons, since, the complete cross examination of PW5 Rahul could not
be completed, as he had already expired before the conclusion of his
testimony, therefore, the entire testimony of PW5 vanishes from the ken
of evidence and the same cannot be relied upon in the present case. In
support of the said contentions the Ld. Amicus Curiae has relied upon
the decision of the Hon’ble High Court of Delhi in “DRI Vs.
Satyanarayan Agarwal” 2012 (2) JCC 1043. The facts of the said case
are distinguishable from the circumstances surrounding the testimony of
PW5 Rahul in the present case. Since, in the said case before the Hon’ble
High Court of Delhi, the complainant did not appear before the Ld. Trial
Court to face the full cross examination conducted by the accused
persons and was only partly cross examined, therefore, it was held that
his part testimony could not be read at all, either in the favour of
prosecution or in favour of the accused persons. However, in the facts of
the present case, it was not that the complainant PW5 Rahul did not
subject himself for further cross examination, however, the remaining
cross examination could not be conducted on behalf of accused Akbar @
Bhola, since, PW5 Rahul had expired in the meantime.
56. The circumstances of the present case are squarely covered in the
decision passed by the Hon’ble High Court of Delhi in “Tunda Ram
Dagar Vs. State” 2011 SCC OnLine 1526, wherein, it was held that if a
witness has expired before his cross examination is recorded, his
testimony is still admissible in evidence, however, a weight to be
attached to such evidence would vary and depend upon the
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circumstances of each case. The Hon’ble High Court of Delhi in the said
case had relied upon the earlier decision passed by our own Hon’ble
High Court in “Krishan Dayal Vs. Chanu Ram” ILR (1969) 1 Del 1090,
wherein, after analyzing the judgments passed by the Hon’ble Madras
High Court in “Maharaja of Kolhapur Vs. S. Sundaram Ayyar & Ors.”
AIR 1925 Mad. 497; the decision of the Division Bench of the Hon’ble
Allahabad High Court in “Ahmad Ali Vs. Joti Prasad” AIR 1944 All 188
; and the finding given by the Hon’ble Punjab and Haryana High Court
in “Ram Sarup Vs. State of Haryana” 1975 SCC OnLine 75, that the
only provision of law, on the basis of which an incomplete statement of a
witness can be held to be admissible in evidence or not, is contained in
section 33 of the Indian Evidence Act, 1872. As per the said provision,
the evidence given by a witness in a judicial proceedings is relevant for
the purpose of proving in a later stage of the same judicial proceedings,
the truth of the facts , which it states, when the witness is dead, provided
that the proceeding was between the same parties.
57. It was also held by Hon’ble High Court of Delhi in “Krishan Dayal
Vs. Chandu Ram” 1969 SCC OnLine Del 134, that the statement of a
witness in examination-in-chief, which was admissible at the time it was
recorded, cannot become inadmissible by reason of the subsequent death
of the witness before cross examination. The absence of cross
examination would undoubtedly affect the value and weight to be
attached to the statement to be of the witness, but it would not render the
statement inadmissible or result in affacement.
Digitally
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ATUL
ATUL AHLAWAT
AHLAWAT Date:
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58. Applying the ratios of the aforementioned case laws, the case of the
testimony of the complainant, PW5 Rahul stands on a better footing,
since, prior to his death, he was fully cross examined on behalf of
accused Hansraj @ Sonu and he was also cross examined in detail on
behalf of accused Akbar @ Bhola on two separate occasions and the
majority of his testimony, as deposed by him during his examination-in-
chief, was covered in the cross examination conducted on behalf of
accused Akbar @ Bhola and merely the suggestions were not given,
before the testimony was adjourned owing to his ill health on
03.04.2018. Therefore, there is no merit in the submissions of Ld.
Amicus Curiae for the accused persons that since, his complete cross
examination on behalf of accused Akbar @ Bhola could not be
completed owing to his death, therefore, leading to affacement of his
entire testimony. However, his remaining testimony has to be appreciated
carefully.
59. As per the genesis of the prosecution’s case, the IO recorded the
statement of the complainant Rahul on 01.05.2014 and he had leveled
specific allegations of two assailants, one being of darker complexion
and the other being fair skinned. Furthermore, there were specific
allegations of the assailants being armed with chaku (knives). As per his
statement, the darker skinned assailant had attacked the deceased on his
neck and the fairer one had attacked the complainant with the knife and
he had received an injury on his back due to the said assault.
60. However, when the complainant entered into the witness box as
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PW5, he had materially altered his testimony and had contradicted
himself from his previous statement, Ex. PW5/A and now he had leveled
the allegations of the accused persons were armed with cutter knives. He
had leveled specific allegations of accused Akbar @ Bhola giving the
blow upon the throat of the deceased and accused Hans Raj @ Sonu
giving a blow to him. During his cross examination conducted on behalf
of accused Akbar @ Bhola on 03.04.2018, he had specifically deposed
that out of the two accused persons, accused Akbar @ Bhola is the one
with fairer complexion, as compared to accused Hans Raj @ Sonu.
Therefore, he had contradicted himself as to his previous statement, with
respect to the role assigned to the accused persons.
61. Furthermore, as per his statement, Ex. PW5/A, the complainant
Rahul received an injury on his back due to the knife blow. However,
when he deposed before this Court as PW5, he had changed the place of
injury to the right side, above his right thigh. Furthermore, the
paramedical staff, PW9A Mahesh Kumar Sharma had deposed that the
complainant was having injuries on the right side of his abdomen. Lastly,
in his MLC, Ex. PW20/A, the injury is being mentioned to be a
superficial incised wound over right lateral lower abdomen. Therefore,
there are number of contradictions regarding the injury received by the
injured PW5 Rahul is concerned. Therefore, serious doubts regarding his
credibility as a witness are raised and necessary corroboration to his
testimony could not be received.
62. There are contradictions in the testimony of PW5 Rahul regarding Digitally
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ATUL AHLAWAT
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the timeline of the alleged incident in question. In his statement, Ex.
PW5/A, he had stated before the IO that during the afternoon hours on
01.05.2014, while the deceased Anil and him were consuming drugs near
the kuda khatta, situated next to ganda nala on 66 Foota Road,
Seelampur, the accused persons came to the spot and gave the fatal blow
to the deceased and another blow was given to him. When he entered
into the witness box, he had deposed during his cross examination
conducted on behalf of accused Hansraj @ Sonu that deceased Anil and
him had reached near the ganda nala at about 10:20 AM and they were
injecting the drugs at about 11:45 AM. Furthermore, the incident took
place at around 12:00 Noon. However, when he was subjected to cross
examination conducted on behalf of accused Akbar @ Bhola, he had
changed his stand and had deposed that the deceased Anil and him
reached at the spot in the evening time and it might be between 04:00 to
05:00 PM. Therefore, further doubts regarding his credibility are created.
63. As per the case of the prosecution, the complainant and the
deceased had already consumed drugs, immediately prior to the alleged
incident in question. During his cross examination conducted on behalf
of the accused Hansraj @ Sonu, he had categorically deposed that both
the deceased and him had already consumed 5 ml each, out of the 11 ml
bottle of the spurious liquid/drug, prior to the arrival of the accused
persons. The similar fact was stated by him in his statement, Ex. PW5/A
that at the time of the alleged incident, he was already under the
influence of intoxicating drugs, yet the IO made no efforts to ensure that
the complainant was having sane mind, at the time of giving his Digitally
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ATUL
ATUL AHLAWAT
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statement. Furthermore, the MLC, Ex. PW20/A, although not proved as
per the law, does not mention any fact regarding the complainant Rahul
being under the influence of drugs or liquor. He was stated to be
conscious and oriented and his pulse and B.P. was also within the normal
limits. Therefore, further doubts regarding the prosecution’s story is
being raised.
64. The circumstances surrounding the medical examination of the
injured witness/complainant PW5 Rahul are also suspicious, since, he
had categorically deposed during his examination-in-chief that after the
dead body of the deceased was removed from the spot, he was also taken
to the hospital and after receiving the treatment, he was discharged.
However, when the paramedical staff, PW9A Mahesh Kumar Sharma
entered into the witness box, he had merely deposed about the
complainant having received injury on his abdomen and he had already
given the first aid and the dressing on the said injuries were done by him,
prior to leaving the spot. However, when the complainant PW5 was
cross examined on behalf of accused Hansraj @ Sonu, he had
categorically deposed that the police officials had not taken him to the
hospital, since, he had been given first aid on the spot itself by the
medical staff of the ambulance and that only the deceased was taken to
the hospital. He further went on to depose that he was directly taken to
the PS from the spot. Therefore, the entire story regarding his medical
examination is rendered highly suspicious and it has further casted
shadows of doubt on his credibility as a witness.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
12:23:10
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Arrest and recovery proceedings:
65. As per the case of the prosecution, the alleged incident took place
on 01.05.2014, and after giving the knife/cutter blows to the deceased
and the complainant, the accused persons had fled from the spot.
Furthermore, the accused persons were not known to the complainant
from before, however, he could have identified them, if they were
produced before him. As per the testimony of the complainant PW5
Rahul, the IO PW14 ACP Anand Sagar and other recovery witnesses i.e.
PW8 Ct. Ram Kumar, there were other police witnesses, namely Ct.
Hemraj, Ct. Dhanesh and Ct. Kuldeep, who had all taken part in the
raiding team, constituted by the IO, in pursuance of the information
received from a secret informer. However, the prosecution had not cited
the said witnesses namely Ct. Hemraj, Ct. Dhanesh and Ct. Kuldeep and
the necessary corroboration to the testimonies of the other members of
the raiding team had gone missing.
66. As per the testimony of PW5 Rahul, the IO PW14 ACP Anand
Sagar and PW8 Ct. Ram Kumar, the accused persons were arrested on
04.05.2014, i.e. 3 days after the alleged incident in question. The said
arrest and recovery proceedings were effected after the IO had received
the information regarding the whereabouts of the accused persons from a
secret informer. Both the accused persons were allegedly found present
together in Dhobi Ghat area in Seelampur and after they were pointed
out by the secret informer and duly identified by the complainant, they
were overpowered and arrested in the present case.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
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67. What is highly suspicious and beyond comprehension of this Court
and the same would not be believed by any reasonable prudent person, is
the fact that even after expiry of around 72 hours (3 days) from the
commission of the offence in question, the accused persons were still
roaming around in a public area, allegedly wearing the clothes which
were smeared with the blood of the deceased/injured complainant.
Furthermore, the accused persons were still carrying the same blade
cutters in their respective pockets of wearing pants, with which they had
allegedly given the blows to the deceased and the complainant. This fact
alongwith the FSL report, Ex. PX-1, wherein, no ABO grouping qua the
blood group of the deceased could be found on the clothes being
allegedly worn by the accused persons during the time of the
commission of the offence in question and the blood could not be
detected on one of the cutters, had made the prosecution story even less
believable. The facts of the present case are fully covered in the
decisions of the Hon’ble Supreme Court of India in “Gurcharan Singh
Vs. State of Himachal Pradesh” 2021(1) RCR (Criminal) 778 and the
decision of the Division Bench of our own Hon’ble High Court in
“Naveen Chauhan @ Chussi Vs. State” 2011 (1) Crime 529 Delhi (DB).
This coupled with the fact that the IO chose not to send the alleged
weapons of the offence for the subsequent opinion from the concerned
doctor who had conducted the postmortem, has given the final blow to
the coffin of the prosecution’s case.
68. In a case based on circumstantial evidence, the settled law is that Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
12:23:28
CNR No. DLNE01-000092-2014 State Vs. Akbar @ Bhola & Anr. FIR No. 277/14 Page no. 51/55 +0530
the circumstantial from which the conclusion of guilt is drawn should be
fully proved and such circumstances must be conclusive in nature.
Moreover, all the circumstances should be complete and there should be
no gap left in the chain of evidence. Further, the proved circumstances
must be consistent only with the hypothesis of the guilt of the accused
and totally inconsistent with his innocence, as held by the Hon’ble
Supreme Court of India in “Hanuman Govind Nargundkar Vs. State of
MP ” AIR 1952 SC 343, “Bodh Raj Vs. State of J&K” AIR 2002 SC
3164 and “Sharad Birdhichand Sarda Vs. State of Maharashtra ” AIR
1984 SC 1622 and “C. Chenga Reddy and Ors. Vs. State of A.P. ” (1996)
10 SCC 193.
69. It is also settled law that accused has to only proboblized the
defense and he is presumed to be innocent till he is proved to be guilty.
Suspicion, however, strong can never take place of proof. There is
indeed a long distance between accused “May have committed the
offence” and “Must have committed the offence”, which must be
traversed by the prosecution by adducing reliable evidence. Emphasis is
supplied on the decision of the Hon’ble Supreme Court of India in
“Kailash Gaur Vs. State of Assam” (2012) 2 SCC 34 and “Padala Veera
Reddy Vs. State of Andhra Pradesh” AIR 1990 SC 79.
70. There is another golden thread which runs through the web of
administration of justice in criminal cases, is that if two views are
possible on the evidence adduced in the case, one pointing to the guilt of
the accused and other to his innocence, the view which is favourable to
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
CNR No. DLNE01-000092-2014 State Vs. Akbar @ Bhola & Anr. FIR No. 277/14 Page no. 52/55 12:23:42
+0530
the accused should be adopted, as held by the Hon’ble Supreme Court of
India in “Kali Ram Vs. State of Himanchal Pradesh” AIR 1973 SC 2773.
Conclusion & Findings:
71. The improvements and the inherent contradictions in the testimony
of the sole injured eye witness, PW5 Rahul had certainly raised doubts in
the mind of this Court and the effort of the Criminal Court is not to be
prowl for imaginative doubts, unless is doubt is of a reasonable
dimension and is what judicially conscientious mind entertains with
some objectivity, otherwise no benefit can be claimed by the accused. In
the present case the doubts raised from the testimony of the prosecution
witnesses cannot be set to be merely imaginative and the same has been
borne from the record of the present case. The said doubts are not merely
imaginary or trivial in nature and it has dented the entire case of the
prosecution. The burden of proof cast upon the accused persons is
governed by the principle of ” preponderance of probabilities” and in
light of the discussion above, the accused persons in the present case
have been able to raise reasonable doubts against the prosecution version
of events and the hypothesis as propounded by the accused persons that
they have been falsely implicated in the present case by the IO, since it
was a blind murder case and instead of searching for the real culprits, the
accused persons were roped in by the IO, since, they were known drug
addicts of the area. With the evidence brought on record, wherein, firstly,
the enire cross examination of the sole injured eye witness could not be
completed owing to his death, prior to his testimony be fully recorded,
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
CNR No. DLNE01-000092-2014 State Vs. Akbar @ Bhola & Anr. FIR No. 277/14 Page no. 53/55 12:23:51
+0530
coupled with the improvements and glaring contradictions in his
testimony; Secondly, the postmortem report was not proved in
accordance with the law and the photocopy of the said report was merely
brought on record through the testimony of the IO; Thirdly, the MLC of
the complainant/injured witness was not proved in accordance with the
law; Fourthly, the alleged weapons of the offence i.e. the cutters were
not sent to the concerned doctors for the subsequent opinion by the IO;
Fifthly, the doubts surrouding the highly suspicious arrest and recovery
proceedings; Sixthly, the Biological Report prepared by the FSL,
wherein, the blood of the deceased could not match from the blood found
on the cutter, the clothes of the deceased, clothes of the injured, the
clothes of the accused persons, or from the earth material, the chappals
of the deceased, the cardboard/fatti, and the glass bottles of the injection;
Lastly, the CDR, CAF and Cell Location ID chart of the mobile phone of
the informant/caller not being proved by the prosecution, therefore, it
cannot be said that the chain of prosecution witnesses and the evidence
brought on record was so complete, so as to not leave any reasonable
ground consistent with the innocence of the accused person.
72. When the entire evidence of the present case is cumulatively read
and appreciated in the background of the settled principle of law and in
the light of the evidence adduced by the prosecution, there is a shadow
of doubt cast upon it and not worthy of inspiring any confidence. Hence,
they strike at the very root of the prosecution story rendering it to be
improbable and unbelievable. Therefore, in the opinion of this Court,
there is no doubt that the prosecution has miserably failed to prove its
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
12:23:59
CNR No. DLNE01-000092-2014 State Vs. Akbar @ Bhola & Anr. FIR No. 277/14 Page no. 54/55
+0530
case beyond reasonable doubt and hence, accused Akbar @ Bhola S/o
Mohd. Yasin and Hansraj @ Sonu S/o Late Ram Babu are acquitted of
the charges for committing the offences punishable u/s 302/307 R/w
section 34 of Indian Penal Code, 1860 and they shall be set at liberty.
73. The accused persons are directed to file their bail bonds u/s 437A
Cr.PC and the same shall remain in force for a period of six months from
today. All the other bail bonds/surety bonds stands canceled and the
earlier surety except for surety given u/s 437A Cr.PC stands discharged.
74. The case property, if any, be released to the rightful owner as per the
law and the applicable rules.
75. File be consigned to the record room after due compliance.
Announced in the open court on 28.04.2025.
This judgment consists of 55 pages and all
of them have been digitally signed by me.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.04.28
12:24:09
+0530
(ATUL AHLAWAT)
ASJ (FTC)/North-
East/KKD Courts/
Delhi/28.04.2025
CNR No. DLNE01-000092-2014 State Vs. Akbar @ Bhola & Anr. FIR No. 277/14 Page no. 55/55
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