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Runeet Gulathi vs State on 20 September, 2019

$~R-12-15

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on:2nd August,2019
Judgment pronounced on:20th September,2019

+ CRL.A. 1175/2018 CRL.M.(BAIL) 1815/2018
RUNEET GULATHI ….. Appellant
Through: Mr. Maninder Singh, Ms. Smriti
Asmita and Mr.Sarthak Garg, Advs.
versus
STATE ….. Respondent
Through: Ms. Aashaa Tiwari, APP for State
with Insp. Madan Mohan, PS
Maurya Enclave
AND

CRL.A. 1268/2018 CRL.M.(BAIL) Nos.1997/2018, 536/2019
ABHAY DEWAN alias GAPPY ….. Appellant

Through: Mr. Hrishikesh Baruah and
Mr.Siddhant Kaushik, Advs.
versus
STATE ….. Respondent
Through: Ms. Aashaa Tiwari, APP for State
with Insp. Madan Mohan, PS
Maurya Enclave
AND
CRL.A. 27/2019
MAHIMA DEWAN ….. Appellant
Through: Mr. Maninder Singh, Ms.Smriti
Asmita and Mr.Sarthak Garg, Advs.
versus
STATE (GOVT OF NCT OF DELHI) ….. Respondent
Through: Ms. Aashaa Tiwari, APP for State
with Insp. Madan Mohan, PS
Maurya Enclave

CRL.A. 1175/2018 other connected matters Page 1 of 159
AND

CRL.A. 60/2019 CRL.M.(BAIL) 107/2019
JATIN ….. Appellant
Through: Mr. Ajay Kr. Pipaniya and
Ms.Pallavi Pipaniya, Advs.
versus
STATE ….. Respondent
Through: Ms. Aashaa Tiwari, APP for State
with Insp. Madan Mohan, PS
Maurya Enclave
CORAM:
HON’BLE MR. JUSTICE MANMOHAN
HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL, J
1. Present appeals arise out of a common judgment dated 15.09.2018
and order on sentence dated 19.09.2018 passed by the learned
Additional Sessions Judge, North West, Rohini Courts, Delhi in
Sessions case No. 52223/2016, in FIR No. 180/2012, registered
under Sections 302/201/364/120B of the Indian Penal Code
(hereinafter referred to as ‘IPC’) read with Sections 25/27 of the
Arms Act at Police Station Maurya Enclave, whereby the Learned
Sessions Judge found the Appellants guilty and sentenced them as
follows:
“Keeping in view all the facts and
circumstances of the case and the mitigating
circumstances as mentioned above, all the convicts are
sentenced to:-
i. undergo rigorous imprisonment for life
each and pay fine of Rs.30,000/- (each), in default of
payment of fine, to undergo SI for 06 months (each) for
the offence punishable u/s 120B IPC.

CRL.A. 1175/2018 other connected matters Page 2 of 159
ii. undergo rigorous imprisonment for 09
years (each) and pay fine of Rs.15,000/- (each), in
default of payment of fine, to undergo SI for 03 months
for the offence punishable u/s 364/120B IPC.
iii. undergo rigorous imprisonment for life
(each) and pay fine of Rs.30,000/- (each), in default of
payment of fine, to undergo SI for 06 months (each) for
the offence punishable u/s 302/120B IPC.
iv. undergo rigorous imprisonment for 07
years (each) and pay fine of Rs.10,000/- (each), in
default of payment of fine, to undergo SI for 02 months
(each) for the offence punishable u/s 201/120B IPC.
The convict no. 1 is also sentenced to:
‘rigorous imprisonment for a period of 05 years
and pay fine of Rs.5000/- in default of payment of fine,
to undergo SI for 01 month for the offence punishable
u/s 27 Arms Act.’
Benefit of section 428 Cr.P.C be given to all the
convicts”

2. Cause title of the CRL.A. 1175/2018 shows ‘Runeet Gulathi vs
State’, whereas in the impugned judgment, the name of appellant has
been referred as ‘Runeet Gulati’. For the purpose of disposal of the
present appeal, we will refer the appellant as ‘Runeet Gulati’. The
brief facts necessary for disposal of the present appeals are that in the
intervening night of 17.07.2012 and 18.07.2012 at about 10:30 p.m.,
Shivam (since deceased) and PW-19/Vishal Verma met
Appellant/Abhay Dewan and Appellant/Runeet Gulati, who were in
white colour Swift Car bearing registration No. DL-2CAN-3335, at
Malka Ganj Chowk, Delhi. Appellant/Runeet Gulati insisted that
Shivam should meet him alone. Shivam dropped PW-19/Vishal
Verma at his residence and returned after telling him that he was
going to meet Appellant/Runeet Gulati. Shivam did not return home

CRL.A. 1175/2018 other connected matters Page 3 of 159
till 11:00 p.m. His brother Deepak called him on his mobile No.
8586807081 and Shivam told him that he would return within 15
minutes. Since, Shivam did not come back and his phone was
switched off, Deepak Kapoor along with his father and cousin started
contacting the friends of Shivam. At about 11:30 p.m., Deepak
Kapoor called PW-19/Vishal Verma and inquired about the
whereabouts of Shivam. At about 11:40 pm, Deepak Kapoor along
with his father and cousin visited the house of PW-19/Vishal Verma,
who disclosed about their meeting with Appellant/Runeet Gulati.
Thereafter, they visited the house of Appellant/Runeet Gulati but did
not find him there but met his mother, who gave them his mobile
number. They tried to contact Appellant/Runeet Gulati on his mobile
number but the same was found to be switched off. They searched
for Shivam at different places. In the meanwhile, Sanjeev Kapoor,
father of Shivam found the scooter of Shivam without key, parked at
Gurudwara Chowk, Malkaganj and informed the same to Deepak
Kapoor. On 18.07.2012, at about 2:45 a.m., when they failed to trace
Shivam, they reported the matter at Police Station – Sabzi Mandi and
a missing report Ex.PW3/A was registered.
3. On 18.07.2012, at about 4:30 am, a call was received at Police
Control Room regarding dead body lying near VIPS College.
Investigating Officer as well as Crime Team reached at the spot.
Spot was inspected and photographed. Nothing was recovered to
identify the deceased and the dead body was sent to mortuary. Later,
the body was identified as Shivam Kapoor @ Pandey S/o Sanjeev
Kapoor. During the course of the investigation, Appellants were

CRL.A. 1175/2018 other connected matters Page 4 of 159
arrested and they got recovered various articles pursuant to their
disclosure statements.
4. As per the case of the prosecution, when Shivam met
Appellant/Abhay Dewan and Appellant/Runeet Gulati, they took him
in a Swift car bearing registration no. 3335 and on their way, asked
him about the money kept at his home. Shivam expressed his
reluctance to which they inflicted injuries on his body with a paper
cutter and Appellant/Abhay Dewan shot a bullet on his abdomen.
Subsequently they arrived at the residence of Appellant/Abhay
Dewan at Sector-15, Rohini where Appellant/Abhay Dewan asked
his wife Appellant/Mahima Dewan for the keys of their Accent Car
bearing registration No. DL-4CAJ-9666. Appellant/Abhay Dewan
also contacted Appellant/Jatin, resident of Faridabad.
Appellant/Abhay Dewan and Appellant/Mahima Dewan went to
Faridabad in the said Accent Car to pick Appellant/Jatin. In the
meanwhile, Appellant/Runeet Gulati remained at Sector-15, Rohini
and was in constant touch with Appellant/Abhay Dewan on phone.
While returning Delhi from Faridabad, Appellant/Mahima Dewan
purchased bandages and Suthol liquid from Apollo Pharmacy at
Sector-9, Rohini, Delhi. Since by that time, Shivam was alive,
Appellant/Jatin fired a bullet on his temple region. A combined
effect of two bullet injuries resulted in death of Shivam. Eventually,
they took the dead body of deceased in Swift Car to Ekta Camp
Jhuggi, AU Block, Near VIPS College, Delhi where they threw the
dead body and set the same on fire.

CRL.A. 1175/2018 other connected matters Page 5 of 159
5. To bring home the guilt of the accused persons, the prosecution has
examined 52 witnesses in all. The incriminating evidence and
circumstances were put to the Appellants under Section 313 of Code
of Criminal Procedure wherein they denied all of them and pleaded
to have been falsely implicated in the case and examined six
witnesses in their defence.
Submissions of Appellant/Runeet Gulati Appellant/Mahima Dewan
6. Mr. Maninder Singh, learned counsel for the Appellant/Runeet
Gulati in Crl.A. 1175/2018 Appellant/Mahima Dewan in Crl.A.
27/2019 opened his submissions by contending that the impugned
judgment dated 15.09.2018 is based on conjectures and surmises and
the same is against the facts and the settled proposition of law.
7. He further contended that the learned Trial Court has ignored and
omitted the material evidence and has disregarded the cogent
evidence in favor of the Appellants and has failed to appreciate the
basic issue, as to how the Appellants have been categorized as the
actual perpetrators of the crime because the entire case is based on
circumstantial evidence and there is no direct evidence on record to
establish the involvement of the Appellant/Runeet Gulati
Appellant/Mahima Dewan in the commission of the alleged offence.
8. He further contended that since the case of the prosecution is based
on circumstantial evidence, the entire chain of events had to be
proved in a manner to arrive at a just conclusion of guilt of the
accused persons without any hypothesis of guilt, which has not been
done in the present case and if the chain of events is broken, in that
case the benefit of doubt has to be given to the accused/Appellants.

CRL.A. 1175/2018 other connected matters Page 6 of 159
In support of his contention he relied on the case of Anant
Chintamanlagu Vs State of Bombay reported in AIR 1960 SC 500,
Hanumant and Others Vs . State of Madhya Pradesh reported in
AIR 1952 SC 343 and Sharad Birdhichand Sarda Vs State of
Maharashtra, reported in AIR 1984 SC 1622.
9. Learned Counsel for the Appellants further contended that the
learned Trial Court failed to take note of the fact that PW-23 (Indal)
did not support the case of the prosecution and he categorically
stated in his examination-in-chief as well as in his cross examination
that he had never witnessed the alleged offence committed by the
Appellants, as set up by the prosecution.
10. Learned counsel for the Appellants further contended that the learned
Trial Court erred in relying upon the testimony of PW-19 (Vishal),
who cannot be termed as last seen witness as he never saw
Appellant/Runeet and Deceased/Shivam together. He further
contended that deceased neither called Appellant/Runeet in his
presence nor saw the deceased travelling with the Appellant/Runeet
in his car. Learned counsel labored hard to contend that as per the
case of the prosecution, PW-19 (Vishal) also accompanied PW-18
(Sanjeev Kapoor) to search for the deceased but the missing report
Ex. PW-3/A lodged by PW-18 (Sanjeev Kapoor) nowhere disclosed
that he had met PW-19. He further contended that there are various
contradictions in the testimony of PW-19 (Vishal) with regard to
identification of the alleged swift car and also the mobile phone
number of the Appellant/Runeet Gulati. Hence the testimony of PW-
19 (Vishal) cannot be relied upon. In support of his contention he

CRL.A. 1175/2018 other connected matters Page 7 of 159
relied on the case of Kanhaiya Lal Vs State of Rajasthan reported in
(2014) 4 SCC 715.
11. Learned Counsel for the Appellants further contended that as per the
Post mortem report (Ex. PW-37/A) which was conducted on
19.07.2012 from 12:45 pm to 06:40 pm, the probable time of death
was one day prior and the death occurred after 2-3 hours of the last
meal and as such the time of death was 12:45 pm on 18.07.2012
instead of 12:00 midnight to 02:45 am on 18.07.2012.
12. Learned counsel for the Appellants further contended that the learned
Trial Court failed to take note of the fact that there was no motive on
the part of the Appellants to commit the alleged offence. As per the
prosecution, the Appellants had conspired to abduct the deceased for
a ransom of Rs. 25 lacs, however, the prosecution failed to prove any
ransom call at the instance of the Appellants and had also failed to
prove any enmity between the deceased and the Appellants, as such
the prosecution had miserably failed to prove the motive for
commission of the alleged offence. In support of his contention he
relied on the case of Pankaj Vs State of Rajasthan reported in
(2016) 16 SCC 192.
13. Learned counsel for the Appellants further contended that learned
Trial Court erred in relying on the testimonies of material witnesses
being PW-16 (Deepak Kapoor), PW-17 (Shruti Kant Kapoor), PW-
18 (Sanjeev Kapoor) and PW-19 (Vishal) as there were various
contradictions in their testimonies and the evidence of PW-16
(Deepak Kapoor), PW-17 (Shruti Kant Kapoor), PW-18 (Sanjeev
Kapoor) and PW-19 (Vishal) was all hearsay evidence. In support of

CRL.A. 1175/2018 other connected matters Page 8 of 159
his contention he relied on the case of Md. Abdul Sufan laskar and
Ors. Vs State of Assam reported in 2008(9)SCC 333, Mousam
Singha Roy and Others Vs State of W.B. reported in (2003) 12 SCC
377, and Namdeo Daulata Dhayagude ors Vs State of
Maharashtra reported in (1976) 4 SCC 441.
14. Learned Counsel for the Appellants further contended that, it is the
duty of the police to investigate fairly and thoroughly and collect all
the evidence whether they are for or against the suspect, however, in
the present case, there are serious discrepancies in the investigation
which go to the root of the matter and the learned Trial Court erred
in ignoring the effect of the defective investigation. Learned counsel
highlighting the lacunae in the investigation pointed out: –
• That as per the prosecution a plastic bottle with petrol
was found at the spot but the same was missing in the
site plan (Ex.PW-49/B) and there was no investigation
pertaining to the purchase of the petrol.
• That no justification was given by the investigating
officer as to how he came to know about the number of
the alleged vehicle as 3335 contrary to vehicle no. 4654
mentioned in PCR Form (Ex. PW-8/A).
• That the local police station was not informed while
effecting recovery of the car at the instance of the
Appellants.
• That there is no site plan of place of alleged recovery of
purse or keys of the deceased and recovery of clothes of
Mahima.

CRL.A. 1175/2018 other connected matters Page 9 of 159
• That no memo was prepared by the Investigating
Officer regarding handing over the seal to PW-25 (HC
Manoj) at the time of sealing of purse and keys (Ex.
PW25/L) and again no memo was prepared when PW-
25 handed over the seal back to the Investigating
officer.
• That the CDR of the mobile phone of Vishal
Verma/PW19 was not collected and produced by the
Investigating Officer who was the main link between
the deceased and the Appellant/Runeet.
• That no independent witnesses were called by the
Investigating officer at the time of alleged recoveries
and as such the recoveries cannot be relied upon.
15. Learned counsel for the Appellants further contended that no Test
Identification Parade of the Appellants was conducted and they were
identified by the witnesses PW-19 (Vishal), PW-23 (Indal) and PW-
25 (HC Manoj) for the first time in Court and as such the
identification of the Appellants in the Court for the first time
becomes completely inadmissible in law. In support of his contention
he relied on the case of State of U.P. Vs Ashok Dixit anr reported
in (2000) 3 SCC 70 and Kanan and others vs. State of Kerala
reported in (1979) 3 SCC 319.
16. Learned counsel for the Appellants further contended that the
footage obtained from Apollo Pharmacy which was produced by the
prosecution in order to show the involvement of Appellant/Mahima
in the commission of crime is not admissible in the eyes of law as the

CRL.A. 1175/2018 other connected matters Page 10 of 159
certificate stipulated under Section 65-B of the Evidence Act was not
furnished by the prosecution. In support of his contention, the
learned counsel for the Appellants relied upon the case of Anvar
P.V. vs. P.K. Basheer and Ors reported in (2014) 10 SCC 473. He
further contended that authenticity of the alleged CCTV footage is
also doubtful as the CD of the CCTV footage was neither sent for
FSL examination nor the original DVR was seized by the
Investigating Officer.
17. While concluding his arguments, learned counsel for the Appellants
contended that learned Trial Court erred in convicting
Appellant/Mahima for the offence punishable under Section 302 of
the IPC as no charge was framed against her under Section 302 of
the IPC.
18. Lastly, it was urged by the learned counsel for the Appellants that in
view of the aforesaid facts and circumstances, the prosecution has
failed to prove the case against the Appellants beyond reasonable
doubt and had failed to complete the chain of events and sought
acquittal of the Appellants.
Submissions of Appellant/Abhay Dewan
19. Mr. Hrishikesh Baruah, learned counsel for the Appellant/Abhay
Dewan in CRL.A. 1268/2018 submitted that the present case is
based on circumstantial evidence and in such cases it is a well settled
law that prosecution must establish a complete chain of events which
is conclusive in nature and consistent with the hypothesis of guilt of
the accused and the prosecution in the present case has not been able

CRL.A. 1175/2018 other connected matters Page 11 of 159
to prove the guilt and incriminate Appellant/Abhay Dewan in the
commission of the alleged offence.
20. He further contended that the case of prosecution revolves around
two-star witnesses, i.e. PW-19 (Vishal Verma) and PW-23 (Indal).
With regard to the testimony of PW-23 (Indal), he has categorically
denied going to the ‘Nahar’ around 3:45 – 4:00 am on 18.07.2012
and his testimony is of complete denial. To substantiate his
arguments learned counsel for the Appellant relied upon the case of
Raja Ram Vs. State of Rajasthan reported in 2005 (5) SCC 272 and
the case of Girdhari Vs. State NCT of Delhi reported in 2011 (15)
SCC 373.
21. Learned counsel for the appellant further contended that no Test
Identification Parade was conducted and the Appellant/Abhay
Dewan was identified for the first time by the star witness, PW-19
(Vishal Verma) in Court, which has no value and cannot be relied
upon. He further contended that PW-19 (Vishal Verma) is a planted
witness and the testimony of the said witness is purely hearsay
evidence and the same cannot be relied upon for convicting the
Appellants in the present case as: –
• there was no mention of PW-19 (Vishal Verma) in the
missing report (Ex. PW3/A).
• that the statement of PW-19 (Vishal Verma) recorded
under Section 161 Cr.P.C. was only recorded on
23.07.2012 which proves that he was introduced as
last seen witness at a later stage.

CRL.A. 1175/2018 other connected matters Page 12 of 159
• that PW-19 (Vishal Verma) had disclosed the
registration number of Swift car as DL2C AN 3335
only on 23.07.2012, however, PW-49 (Inspector Anil
Sharma) deposed that he came to know about the non-
involvement of Swift car bearing registration no. DL
CAN 4654 only on 25.07.2012, which proves that the
statement of PW-19 (Vishal Verma) under Section
161 Cr. P.C. was not even recorded on 23.7.2012.
22. In support of his contention, learned counsel for the Appellant relied
upon the case of V.C. Shukla ors Vs. State (Delhi
Administration) reported in 1980 (2) SCC 665; Rameshwar Singh
vs. State of Jammu Kashmir reported in 1971 (2) SCC 715;
Sheikh Hasib vs. State of Bihar reported in 1972(4) SCC 773 and
Girdhari vs. State (NCT of Delhi) reported in (2011) 15 SCC 373.
23. The learned counsel for the Appellant further contended that there is
no motive for the Appellant to commit the alleged offence. He
contended that as per the case of the prosecution the alleged offence
had been committed by the Appellant in order to extort an amount of
Rs.25 lacs by way of ransom from the father of the deceased,
however, the prosecution failed to produce any documentary
evidence that the parents of the deceased were having money out of
the sale proceeds of a property, situated in Malkaganj. He further
contended that the allegation of motive was based on the testimony
of PW-18 (Sanjeev Kapoor), however, the witness in his statements
dated 19.07.2012, 30.07.2012 and 15.10.2012 recorded under
Section 161 of the Cr.P.C and in his examination-in-chief failed to

CRL.A. 1175/2018 other connected matters Page 13 of 159
raise any allegation of motive and the same has been introduced only
for the first time on 06.10.2016 during his cross examination. He
further contended that the importance of motive in a case of
circumstantial evidence is paramount and the absence of motive in a
case of circumstantial evidence is critical to the version of the
prosecution and since no motive has been proved by the prosecution
in the present case, the Appellant deserves acquittal. To substantiate
his arguments learned counsel for the Appellant relied upon the case
of Surinder Pal Jain Vs. Delhi Administration reported in 1993
Supp. 3 SCC 681; Arjun Marik Vs. State of Bihar reported in 1994
Supp 2 SCC 372 and Sukhram Vs. State of Maharashtra reported in
2007 (7) SCC 502.
24. He further contended that the Appellant/Abhay Dewan,
Appellant/Mahima Dewan and Appellant/Jatin were apprehended
from Nepal Border on 23.07.2012 and kept in illegal detention from
25.07.2012 to 26.07.2012, even, the Call Detail Records of Appellant
clearly depicts that at the relevant time they were at Nepal Border
which proves that the documents prepared by the Investigating
Agency i.e. arrest memos, search memos and seizure memos were all
fabricated documents and were an afterthought. He further contended
that the learned Trial Court erred in not giving equal weightage to
the defence witnesses, which evidently sustains the fact that the
prosecution has manipulated the records of arrest. To substantiate his
arguments, learned counsel for the Appellant relied upon the case of
Adambhai Sulemanbhai Ajmeri and Others vs. State of Gujarat
reported in 2014 (7) SCC 716.

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25. Learned counsel for the Appellant further contended that it is
important to point out that a person cannot be convicted on the sole
basis of recovery effected pursuant to disclosure statement made by
the Appellant/accused. He further contended that as per Section 25
Section 26 of the Indian Evidence Act any confession made before a
police officer is not admissible and the recoveries pursuant to
disclosure are also barred under Section 27 of the Evidence Act, if
the fact discovered, are not in consequence of the statement of the
accused; and also, if the fact discovered, are not otherwise accessible
to all and sundry. Learned counsel further contended that the
recoveries effected at the instance of the Appellant are doubtful as: –
• there were 31 documents being arrest memos,
disclosure statements and seizure memos which were
executed on 25.07.2012 but only three police
witnesses i.e. PW49 (Anil Sharma), PW25 (Manoj
Raghav) and Pyarelal have signed these documents
and out of these three police witnesses, Pyarelal was
never examined which proves that the documents
have been fabricated.
• That at the time of recovery of pistol and clothes from
the house of Abhay Dewan (C2/16, Sector 15, Rohini,
Delhi) despite the family members being present,
none of them were made witness to the recovery.
• That no local police were informed and nor were they
made part of the investigation during the recovery
proceedings from the areas (Amar Colony, Rohini,

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Prem Bari) wherein the investigating officer of P.S
Maurya Enclave had no territorial jurisdiction.
• That no site plan during the recovery proceedings was
prepared and the only site plan which is available on
record was of the place from where the dead body of
the deceased was recovered vide Ex.PW4/A and place
from where the mobile phone of the deceased was
recovered vide Ex. PW25/Z.
• That the disclosure statement and the recovery memo
clearly depict that no blood-stained clothes were
recovered. However, while describing the clothes of
the accused persons at S. No. 10 ‘a’ and ‘b’ of the
DNA Report (Ex.PW-1/B), it erroneously brings forth
that the clothes are blood stained, pointing to the
conclusion that evidence and records had been
manipulated by the police authorities.
• That the recovery from the Maruti Swift car no. 3335
from DMC Booth, opposite H.No.B-140/141, Amar
Colony, Lajpat Nagar-4, Delhi is doubtful as various
articles(one clip of bandage, one bandage, one empty
cartridge case lying in the middle of both front seats,
one front pellet lying inside the adjacent seat of the
driver seat of the car, some coins, three SIM cards,
one paper cutter and one water bottle) were recovered
from the aforesaid swift car and the same were
planted against the Appellant because the smaller

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window pane on the right rear side of the swift car
was broken.
26. He further contended that the abovementioned recoveries are not
admissible as evidence in the eyes of law because no genuine and
sincere efforts were made by the investigating officer to validate the
recoveries with the presence of any Independent/Public witnesses.
To substantiate his arguments, learned counsel for the Appellant
relied upon the case of Surendra vs. State of Rajasthan reported in
2011(15) SCC 78 and Mohmed Inayatullah vs. State of
Maharashtra reported in (1976) 1 SCC 828.
27. Learned counsel for the Appellant further contended that the medical
scientific evidence is not corroborating with the version of the
prosecution because there is a huge time gap between the recovery of
Pistol and Bullets and their forensic examination. He further
contended that the Ballistic expert Dr. N.P. Waghmare who prepared
the report had not been examined and instead PW-52 (R. Enivyan)
had proved the report, who was not the actual author of the ballistic
analysis report. He further contended that there were two ballistic
reports and both are contradictory to each other and had been
wrongly relied upon by the Trial Court. To substantiate his
arguments, learned counsel for the Appellant relied upon the case of
Murarilal vs. State of M.P. reported in AIR 1980 SC 531 and Santa
Singh vs. State of Punjab reported in AIR 1956 SC 526.
28. Counsel for the Appellant lastly urged that the Trial Court had not
correctly appreciated the facts and circumstances of the case; hence,
the impugned judgment was liable to be set aside.

CRL.A. 1175/2018 other connected matters Page 17 of 159
Submissions on behalf of Appellant/Jatin
29. Mr. Ajay Pipaniya, learned counsel for the Appellant/Jatin in
CRL.A. 107/2019 adopted the arguments advanced by the learned
counsel for the co-Appellants. In addition to the arguments
addressed by other counsel, Mr. Pipaniya contended that as per the
testimony of PW-45 (Amit Bhatia), Toll Officer, the Hyundai accent
DL 4CAJ 9666 crossed the Faridabad toll way to Delhi at 01:57:23
and as per the Post mortem report (Ex. PW-37/A), Shivam Kapoor
(the deceased) was dead by this time, which establishes the fact that
Appellant/Jatin had been falsely implicated in the present case.
30. He further contended that the charge under Section 120-B IPC and
364 IPC are baseless as the record reveals that the case of the
prosecution is that Appellant/Abhay Dewan and Appellant/Runeet
Gulati conspired to abduct the deceased for ransom and during the
course of commission of crime/abduction they fired one bullet in the
stomach of the deceased which as per the testimony of PW-37 (Dr.
Vijay Dhankar) was sufficient enough to cause death in ordinary
course of nature, hence, the Trial Court erred in convicting
Appellant/Jatin for the aforesaid offences.
31. Learned counsel for the Appellant relied on the impugned judgment
passed by the Trial Court to the extent that the Trial Court has
acquitted the Appellant for the offence punishable under Section 27
of the Arms Act on the ground that the prosecution failed to establish
that the second bullet was fired by the Appellant and contended that
since no charge is made under Section 27 of the Arms Act,

CRL.A. 1175/2018 other connected matters Page 18 of 159
conviction of the Appellant – Jatin under Section 302 IPC rendered
by the Trial Court, is illegal and arbitrary.
32. He further contended that the present case is based on circumstantial
evidence and in such cases it is a well settled law that prosecution
must establish a complete chain of evidence which is conclusive in
nature and consistent with the hypothesis of guilt of the accused and
the prosecution in the present case had not been able to prove the
guilt and incriminate Appellant/ Jatin in the commission of the
alleged offence and as such he deserves acquittal.
Submissions on behalf of the State
33. Ms. Aashaa Tiwari, learned APP for State, on the other hand,
strongly refuted the submissions made by the counsel for the
Appellants and submitted that the impugned judgment is based on
proper appreciation of the facts and evidence, no interference in the
impugned judgment is called for by this Court; that the statements of
prosecution witnesses and medical/scientific evidence are
corroborative in nature and the prosecution has been able to prove its
case beyond reasonable doubt.
34. Ms. Tiwari, further submitted that the test identification parade is
only a procedural aspect and failure to hold the said parade in the
present case for the identification of the Appellants will not be fatal
to the case of prosecution and it will not make the evidence of their
identification in Court inadmissible. She further submitted that
Appellant/Runeet Gulati was a childhood friend of PW-19 (Vishal
Verma) and was specifically named as a suspect in the missing report
(Ex.PW3/A), hence there was no need for conducting a TIP for the

CRL.A. 1175/2018 other connected matters Page 19 of 159
identification of Appellant/Runeet Gulati. To substantiate her
arguments learned APP for State relied upon the case of Mukesh vs.
state(NCT of Delhi) reported in 2017 (6) SCC 1; Malkhan Singh vs.
State of MP reported in JT 2003(5) SC 323; [email protected] vs.
State NCT of Delhi reported in 2017 LawSuit(SC) 1542; Rafikul
Alam Others Vs The State of West Bengal reported in 2008 Crl.
L.J 2005 and Noor Ahammad ors Vs State of Karnataka reported
in (2016) 3 SCC 325.
35. Learned APP for State further submitted that the prosecution had
placed on record the CCTV footage of Apollo Pharmacy, situated at
A-16, Sector 9, Rohini, Delhi which clearly indicates that
Appellant/Mahima Dewan in the intervening night of 17.07.2012 and
18.07.2012 had entered the said pharmacy at 2:43:30 hrs and had
purchased certain items (one liquid Suthol four bandages) and left
at 2:46:29 hrs. The said fact is also corroborated with the testimony
of the Pharmacist, PW-40 (Varun Kumar) who was on duty at the
said outlet in the intervening night of 17.07.2012 and 18.07.2012.
Subsequently, no objection has been raised to prove the CCTV
footage neither at the time of exhibiting the CDs nor at any other
stage prior to the pronouncement of judgment of the Trial Court. As
such, the Appellants may not raise an objection to the mode of proof
of the CCTV footage at the stage of appeal because the CCTV
footage is admissible in the eyes of law. To substantiate her
arguments learned APP for State relied upon the case of Kundan
Singh Vs State reported in 2016(1) DLT (CRI), Sonu @ Amar vs.

CRL.A. 1175/2018 other connected matters Page 20 of 159
State Of Haryana reported in 2017 8 SCC 570; Shafhi Mohammad
vs. State of Himachal Pradesh reported in (2018) 2 SCC 801.
36. Learned APP for State further submitted that motive is a relevant
factor in all criminal cases, whether based on direct or circumstantial
evidence, but the inability to establish motive in a case of
circumstantial evidence is not always fatal to the prosecution
version. To substantiate her arguments learned APP for State relied
upon the case of State of Uttar Pradesh vs. Babu Ram reported in
AIR 2015 SC 1735; State of Himachal Pradesh vs. Jeet Singh
reported in AIR 1999 SC 1293 and Ranganayaki vs. State by Insp of
Police reported in (2004) 12 SCC 521.
37. She further submitted that the prosecution has relied upon various
recoveries which were pointed out at the instance of the Appellants
and there is no cogent reason to doubt the aforementioned recoveries
on the ground that the same are effected in the presence of the police
witnesses and the same are inadmissible as the same were not
supported with the presence of an independent witness. To
substantiate her arguments learned APP for State relied upon the
case of State Govt of NCT of Delhi Vs. Sunil Anr reported in
(2001) 1 SCC 652 and Gian Chand ors vs. State of Haryana
reported in JT 2013(10) SC 515.
38. Ms. Tiwari, further submitted that the medical/scientific evidence are
corroborating the testimony of prosecution witnesses, however, there
is a minute variance between medical evidence and oral evidence in
the present case because Dr. Vijay Dhankar (who conducted the post
mortem of the deceased) has deposed in his cross examination that

CRL.A. 1175/2018 other connected matters Page 21 of 159
the time of death of the deceased was 12:45 pm on 18.07.2012,
which is contradictory to his own post-mortem report(Ex.PW-37/A),
wherein it is stated that death occurred approximately 2-3 hours after
the last meal. She points out that as per the oral evidence (testimony
of police witnesses) the deceased had died in the intervening night of
17.07.2012 18.07.2012. She further submitted that it is a settled
law that in case of a conflict between oral evidence and medical
evidence, the former is to be preferred, wherein medical evidence is
only suggestive and not conclusive in nature and to substantiate her
arguments learned APP for State relied upon the case of Umesh
Singh vs. State of Bihar reported in (2013) 4 SCC 360 and Rakesh
ors vs. State of Madhya Pradesh reported in (2011) 9 SCC 698;)
39. Learned APP for State further submitted that there is no
manipulation in the records pertaining to the arrest of the Appellants
as the police witnesses PW-25 (HC Manoj Raghav), PW-43 (Ct
Rakhi) and PW-49 (Insp. Anil Sharma)) who arrested the Appellants
have consistently deposed on the same lines and there is no cogent
reason to doubt the credibility of the alleged arrest memos. She
further submitted that it is the case of the Appellants that
Appellant/Abhay Dewan, Appellant/Mahima Dewan Appellant/
Jatin were apprehended at Nepal Boarder and were illegally detained
in the police station from 24.07.2012 and Appellant/Runeet Gulati
was illegally detained from 18.07.2012 to 25.07.2012 at PS Maurya
Enclave. However, the Appellants are completely silent in their
statements recorded under Section 313 Cr.P.C regarding their illegal
detention and arrest from Nepal Border, which eventually

CRL.A. 1175/2018 other connected matters Page 22 of 159
demolishes their version leading to an adverse inference against
them. To substantiate her arguments learned APP for State relied
upon the case of Prahlad vs. State of Rajasthan reported in 2018
SCC OnLine SC 2148 and Raj Kumar vs. State of MP reported in
2014(2) JCC 1217.
40. She further submitted that it cannot be held as a rule of universal
application that the testimony of prosecution witnesses becomes
unreliable merely because there is a delay in recording the statement
of prosecution witness under Section 161 Cr.P.C and in support of
her argument she relied upon the case of V.K Mishra and ors vs.
State of Uttarakhand and ors, reported in (2015) 9 SCC 588.
41. Learned APP for the State further contended that vide amended
charge dated 05.02.2013, Appellant/Mahima was charged under
Section 302 Cr. P.C. and was also charged under Section 120-B of
the IPC hence no interference in the impugned order on sentence is
called for by this Court.
42. Counsel for the state lastly urged that the evidence produced on
record as well as the circumstances proved by the prosecution, form
a complete chain pointing unequivocally towards establishing the
guilt of the accused. Based on these submissions counsel for the
State urged that this Court may not interfere with the well-reasoned
order passed by the learned Trial Court convicting the Appellants for
the alleged offence.

CRL.A. 1175/2018 other connected matters Page 23 of 159
Credibility of Material witnesses/ Last Seen/ Testimonies
43. In the present case the police machinery was set into motion when
the father of the deceased PW-18 (Sanjeev Kapoor) made a missing
report at about 2:45 am (Ex.PW3/A) which was registered vide DD
No. 8A at Police Station Subzi Mandi. English translation of the
relevant portion of Missing report (Ex.PW3/A) registered vide
DD No. 8A is reproduced herein below:

DD NO. 8A DATED 18.07.12 P.S. SUBZI MANDI, DISTT.
NORTH DELHI
Sanjeev Kapoor S/o Shadi Lal Kapoor
R/o 14, Gandhi Square, Malka Ganj
Delhi-110007
Information regarding
Missing and handing over
Time: 2.45 AM: At this time, it is entered that the person
mentioned in Column No.2 came present at the Police Station
and got recorded to the following effect: “My son namely
Shivam aged 20 years had left for an excursion at 9.30 PM in a
usual manner by a Scooter No. DL 1SS 2887 and had not
returned till 12 O’Clock in the night. We, therefore, contacted
him on his mobile no. 8586807081 but the same was switched
off. We made a search of him and found parked his scooter
near Malka Ganj Gurudwara. I could’t know anything about
my son. We kept on making a search of him in our own way till
now. My report may be lodged and the whereabouts of my son
may be ascertained. The description of my son is as follows:
height 5′ 7”, complexion fair, stout body. He is wearing T-shirt
and ‘Pajama’ and slippers of NIKE in his feet. My son is
mentally fit. There is a cut mark on the right side of the
forehead of my son. Some people have told me that my son
was seen in the company of Runeet who resides in our
neighborhood at about 11.00 PM. I suspect him. The
information regarding missing was entered in the
‘Rojnamacha’ and a call was made at No. 100 which was
attended on Channel No. 116 by Constable Ankur Tomar, No.
1914/ PCR. After lodging a report regarding missing, a copy of

CRL.A. 1175/2018 other connected matters Page 24 of 159
the same after having been separated is being handed over to
SI Sombir as per the directions of the SHO who will initiate
proper action in the said regard.
Scribed by: HC/DO
Note: It is a true copy.
Sd/-Illegible
HC Bheem Singh
No. 394-N/(-sic-)
DO, P.S. Subzi Mandi

44. It is relevant to point out here that perusal of the missing report,
(Ex.PW3/A) shows that the complainant i.e PW-18 (Sanjeev Kapoor)
father of the deceased raised suspicion against the
accused/Appellant/Runeet Gulati in the complaint who resided in
their neighborhood. The Missing Report has been proved by HC
Bhim Singh, who stepped into the witness box as PW-3 and deposed
as under:
“On 18.07.2012, I was posted at Police Station Subzi
Mandi and was working as Duty Officer from 12 at
Night to 8 AM. On that day, at about 2:45 (night)
Sanjeev Kapoor S/o Shadi Ram R/o 14, Gandhi
Square, Malkaganj, Delhi, came to the police station
and gave a missing report of his son Shivam aged 20
years. I recorded the DD vide DD No. 8A dated
18.07.2012 at 2:34 AM and handed over the same to
SI Somvir Singh. The copy of the said DD is
Ex.PW3/A bearing my signatures at point A.”

45. At about 4:27 am, PW-8 (Constable Ravinder) received a call from
the mobile phone number 9990787947 informing that “VIPS College
ke samne Haider Pur Water Plant Ekta Camp Jhuggi ke pass AE
Block Pitam Pura ek dead body padi hui hai”. The relevant portion
of PCR form (Ex.PW-8/A) is reproduced herein below:-
“PCR. No. received 136

CRL.A. 1175/2018 other connected matters Page 25 of 159
Report received from VAN
18/07/2012 04:55:29 HALAT KE LIYE WAIT HAI
18/07/2012 05:11:59 CALL IS TRUE EK MALE AGE
ABOUT 28 YEAR HT 5 FOOT 7 INCH RANG GORA
HEALTHY BODY HAI FACE PER KAPDA BANDHA HAI
AUR HATH BANDH RAKHE HAI BLUE JEANS AUR
BLACK AND GREEN T SHIRT PAHNI HAI MITTI KA
TEL DALKAR JALANE KI KOSHISH KI HAI LEKIN HAL
KA JALA NAHI ISKE LEFT GARDAN AUR RIGHT SIDE
PATE ME KOI NUKILI CHIJJ MARI HAI EK CHOTA
BACHOHA NAME INDAL AGE 8 YEARS JO PADOSH KI
JHUGGI ME RAHTA HAI NE BATAYA EK WHITE
COLOUR KI GADI NO. 4654 ME ISKO FAKE KAR
MACHIS KI TILLI FAKE KAR BHAG GAYE QRT STAFF
MOKE PAR C/ROOM INF 18/07/2012 05:15:24 ACP
AND SHO WITH STAFF MOKE PAR C/ROOM INF
18/07/2012 05:39:27 MOKA HAWALE CRIME TEAM
BHI MOKA PAR C/ROOM INF.”

46. The said PCR form (Ex.PW8/A) has been proved by PW-8 (Constable
Ravinder), who deposed that:
“On the intervening night of 17/18.7.2012 I was
posted as constable in PCR/PHQ from 8 PM to 8AM.
On that day at about 4.27 AM, I received a call from
mobile No. 9990787947 that VIP College ke samne
Haiderpur water plant Ekta Camp Jhuggi ke paas
AE Block Pitampura ek dead body padi hui hai.” I
forwarded the said message through computer on
commander net of PCR for circulation. On

CRL.A. 1175/2018 other connected matters Page 26 of 159
01.09.2012 at 4 PM my statement was recorded by
the IO. Copy of PCR form is Ex.PW8/A.”

47. As per the PCR Form the call was made from mobile phone number
9990787947 which was registered in the name of Munshi Singh
Yadav, who was examined as PW-36. PW-36 (Munshi Singh
Yadav) during his examination-in-chief deposed that:

“I had seen working in a Water Treatment Plant,
Sonepat, Haryana in the year 2012. On 18.07.2012, I
was at my said house and at about 4.00 AM one boy
with the name of Inder (Court observation: name
given by the witness has been cross-checked and
witness reiterates that name was Inder) came to my
jhuggi along with other persons and informed me that
one dead body had been thrown from one car by
someone near the gate of VIP College. I was at that
time Pradhan of Jhuggies of Ekta Camp. I also went
there and saw a dead body of a young male whose
hands were found tied with the help of garam patti
(crape bandage) and were above the head. His eyes
and mouth were also similarly covered with white
tape. That deceased was wearing jeans pants and T-
shirt (half sleeves). I informed the police from my
mobile number 9990787947. Police had reached at
the spot in my presence. Police had also recorded my
statement.”

48. Pursuant to the information given by PW-36 (Munshi Singh Yadav),
PW-9 (HC Rishipal) received an information at 04:30 am from
Control Room, North-West ‘that a dead body is lying at Water Tank
Ekta Camp, AE Block, near the Jhuggis of Haiderpur, VIPS College’
and the same was registered as DD No. 6A (Ex.PW-9/A). English

CRL.A. 1175/2018 other connected matters Page 27 of 159
translation of the relevant portion of DD No. 6A (Ex.PW-9/A)
registered at PS Maurya Enclave is reproduced herein below: –
“DD No. 6A Dated 18.07.12 PS Maurya Enclave
Information received through
PCR Call and departure
Time 4.30 AM. At this time,it is entered that Control Room
North West has informed through telephone that a dead
body is lying at Water Tank Ekta Camp, AE Block, near
the Jhuggis of Haiderpur, VIPS College. From Constable
Ravinder No. 7547/PCR Tel. No. 9990787947. The
information so received through PCR Call was entered
into the Rojnamacha and a copy of the report was handed
over to ASI Satdev who along with Constable Sandeep, No.
2101/NW left for the spot and will initiate proper legal
action. Inspector Anil Kumar has also left for the place of
occurrence.
Scribed by : HC/DO
Sd/-Kapil
(In Hindi)
HC Kapil
332/NW”

49. On receipt of DD No. 6A (Ex.PW-9/A), PW-42 SI Satya Dev
alongwith Constable Sandeep went to the place of incident which was
a cemented road near VIPS Institute and found a dead body of young
male, who was wearing jeans and T-shirt of blue colour. PW-49
(Inspector Anil Sharma) joined the team of PW-42 (SI Satya Dev) at
the spot, who in his testimony deposed that “I found a male dead body
lying there. The age of the deceased was approximately 20-25 years
and height was 5 feet and 6 inches, wearing blue jeans and blue T-
Shirt which were in semi-burnt condition. Both the hands of the
deceased were found tied with crape bandage and his mouth and eyes

CRL.A. 1175/2018 other connected matters Page 28 of 159
were also found wrapped with doctor tape. The legs of dead body
were facing towards the cemented road and the head was on the
conrete. One burnt plastic bottle was also found lying on the spot. Its
make was Kinley. Its cap was also lying separately at the spot. There
were cut marks over the face, temple region and elbow of the said
body. PCR team had reached at the spot before my arrival.”
PW-49 (Inspector Anil Sharma) prepared the site plan (Ex.-PW-49/B)
and also preapred rukka which was exhibited as (Ex-PW49/A).
Relevant portion of Rukka (Ex-PW49/A) reads as under:-
“Note: It is true copy of original.
To
The Duty Officer
P.S. Maurya Enclave
Delhi
Sir,
It is submitted that while on government duty today on
receipt of aforesaid DD No. 6A I, the Inspector, along with
the accompanying staff left for the place of occurrence via
Outer Ringh road, VIPS Institute, Pitampura towards the
Jhuggis of Ekta Camp, AU Block Pitampura and reached
the road at a distance of about 100 Mtrs. from the Outer
Ringh Road where a male dead body aged about 25-30
years, height about 5 Ft. 6 Inches, stout build, round face,
wheatish complexion was found. The deceased is waring a
blue coloured jeans (make Mufti) having a white coloured
cloth belt on the buckle whereof, the words “Numero Uno”
are written, a blue green coloured T-shirt, white vest and a
brown underwear having a red coloured broad elastic
bearing the words “Chromozome” in English. A ‘Kara’
made of steel and a red coloured thread are present on the
right hand of the deceased and he is bare feet. The legs of
the deceased are towards cemented road whereas the
remaining portion of the body was lying in flat condition
on the graveled ground. The hands of the deceased were

CRL.A. 1175/2018 other connected matters Page 29 of 159
tied with crepe bandage and a white coloured doctor tape
was present on the eyes and mouth of the deceased. The
Pants, T-Shirt and vest of the aforesaid deceased were
found to be in half burnt condition. A plastic bottle on the
lid whereof the words “KINLEY” are written was found
near the deceased in melted condition. The smell of
burning and that of oil was emanating therefrom. The
Crime Team was called at the spot and the same was got
inspected and photograhed. An inspection of the dead body
was made. The hands, face and scalp of the deceased were
found to be in half burnt condition. A punctured wound
was found in the abdomen over the navel of the deceased
along with a cut mark on the left forearm and many cut
marks on the biceps of left arm of the deceased. When tape
was removed from the mouth and eye of the deceased, a
deep cut mark was found on the left temple and while
removing the tape, blood started oozing out from there.
The exhibits were lifted from the place of occurrence and
those were taken into Police possession as a piece of
evidence by means of this memo. The dead body has not
yet been identified. The dead body has been got preserved
in the mortuary of BJRM Hospital. No eye witness could
be found at the spot. The inspection of the spot and the
circumstances prevailing over there disclose the
commission of an offence punishable under Sections
302/201 IPC. Hence, the aforesaid writing has been sent to
the Police station through ASI Satyadev for the purpose of
registration of a Case (FIR) and the number of the same
may please be intimated after its registration. The
information in the aforesaid regard may be sent to the
higher officers through special messenger. I, the Inspector,
am busy at the spot commencing investigations.
Date and time of offence: 18.07.12 time unknown’
Place of occurrence: Road leading towards Ekta Camp
Jhuggi, AU Block, Pitampura from VIPS Institute (at a
distance of about 100 Mtrs.), Outer Ring Road
Date and time of dispatch 18.07.12 at 7.50 AM

CRL.A. 1175/2018 other connected matters Page 30 of 159
of writing:

Sd/- Anil Sharma
(In English)
Insp. Anil Sharma
P.S. Maurya Enclave
DD No. 9A at 8.10 AM
FIR No. 180/12 u/s 302/201
IPC, P.S. Maurya Enclave
Dt. 18.04.12
Sd/- Illegible
HC/DO Anita, No. 44/NW
PIS NO. 28940602
P.S. Maurya Enclave”

50. A message was transmitted from the control room to the Mobile
Crime Team, North West District and on reciept of the aforesaid
information, SI Ramesh Chand along with HC Sudhir (photographer)
and Ct. Tinu Pal (fingerprint proficient) arrived at the spot and
prepared a detailed crime team report (Ex.PW-29/A). English
translation of the Crime Team Report (Ex.PW29/A) is reproduced
herein below: –
“Brief of SOC and any other advice to IO: On receipt of
the call, I reached the place of occurrence i.e. Near Ekta
Camp, Ekta Camp Road where a male unknown dead body
was laying aside the road leading towards camp from Ring
Road. The age of the deceased was about 30 years and had
a stout built. The hands of the deceased were tied with red
crepe bandage (used in pain). White doctor tape was
present on the head and eyes of the deceased and he was
wearing blue coloured T-shirt and blue Jeans. The
deceased was set ablaze by way of pouring inflammable
material between the face and the legs as a result whereof
the face and legs were charred. A ½ Ltr. Half burnt bottle

CRL.A. 1175/2018 other connected matters Page 31 of 159
of KINLEY was lying near the deceased and its blue
coloured lid and three coins of Rs. 2/- each was lying aside
road. There was a small hole on the stomach of the
deceased which seems to be a bullet injury. There was an
injury mark on the head of the deceased on which doctor
tape was tied. On removing the bandage, a sharp cut mark
of about 7 CM was found on the left side of the forehead.
Photographs of the spot were taken.

Sd/- Illegible
SI Ramesh Chand
D-1537
PIS 16040055”

51. Perusal of the Crime Team Report (Ex.PW29/A) reveals that the
crime team reached at the spot and carried out the inspection during
which, they took the photographs (Ex.PW-30/A1 to A10) and lifted
the pieces of burnt clothes of the deceased, one semi burnt crape
bandage (garam patti), white doctor tape stained with blood which
was used for tying the mouth and eyes of deceased. Further various
articles (semi burnt plastic bottle along with its lid, bloodstained
concrete, three coins of Rs. 2/) lying near the dead body and earth
control samples were lifted from the spot and were seized vide
seizure memo (Ex. PW-42/A) and (Ex. PW42/B). Subsequently, one
hue and cry notice (EX. PW-49/C) was also issued and a wireless
message was also flashed regarding the details of dead body on ZIP
net. PW-49 (Inspector Anil Sharma) received information that the
dead body was identified as of Shivam Kapoor son of Sanjeev
Kapoor and relatives of the deceased were called to identify the dead
body. Corroborating the version of the aforesaid police witnesses,

CRL.A. 1175/2018 other connected matters Page 32 of 159
PW-49 (Inspector Anil Sharma) investigating officer has deposed
that: –
“PCR team had reached at the spot before my arrival.
I informed my seniors about the recovery of
abovesaid dead body and called staff from the PS.
Inquiry was made from various people of that area to
ascertain the identity of the deceased. I also tried to
contact PCR but could not contact him. I also learnt
through PCR officials that they had come to know
that dead body had been thrown from a Swift car of
white color. Crime team was also summoned.
Crime team inspected the said spot and also took the
photographs of the spot from various angles.
Nothing was recovered from the clothes of the
deceased for his identification. I collected the
exhibits from the sports i.e., pieces of burnt clothes,
piece of semi-burnt crape bandage, one blood
smeared doctor tape, one plastic bottle along with its
lid, bloodstained concrete, burnt concrete and earth
control. Separate pullandas of these articles were
prepared and sealed with the seal of “AS” and gave
them serial no. 1 to 7. Same were seized vide seizure
memo already Ex.PW42/A which bears my signatures
at point B.
Three coins of two rupees each were also found
lying at the spot. Same were kept in a plastic box
which was sealed with the seal of “AS” and was
taken into possession vide seizure memo already
Ex.PW42/B which also bears my signatures at point
B. Dead body was sent to the mortuary of BJRM
hospital through Ct Sandeep to get it preserved at the
mortuary.
I prepared rukka Ex.PW49/A which bears my
signatures at point A and same was sent through ASI
Daya to PS for registration of the case. I prepared
site plan Ex.PW49/B which bears my signatures at

CRL.A. 1175/2018 other connected matters Page 33 of 159
point A. I contacted CIPA operator for getting the
details of any missing person matching to the said
recovered dead body but identification of the dead
body could not established at that time. Meanwhile,
ASI Satya Dev, after getting registered the FIR, came
back to the spot and handed over me copy of FIR and
rukka. I mentioned the FIR number in the aforesaid
seizure memos. I also got issued the Hue and Cry
notice and tried to gather the local information
about the deceased. The same is Ex.PW49/C. I also
deposited the abovesaid exhibits seized from the spot
in the malkhana of PS Maurya Enclave. Wireless
message was flashed and also got uploaded the
details of dead body on ZIP net. I also recorded the
statement of ASI Satya Dev u/s 161 Cr.P.C.
Ct. Sandeep informed me that the said recovered dead
body was identified as Shivam Kapoor. I also came
to know that the missing report of deceased had
been lodged vide DD No. 8A dated 18/07/2012 at PS
Subzi Mandi which is already Ex.PW3/A. I also
contacted the concerned IO SI Sombir of PS Subzi
Mandi. The relatives of deceased were informed to
reach the mortuary of BSA hospital next day.
Next day, Ct. Sandeep brought the dead body to said
hospital from BJRM hospital. There are dead body
was identified by his father and brother. Their
identification statements were recorded. Inquest
papers were also prepared which are Ex.PW49/D
(nine pages) bearing my signatures at point X.
Postmortem was got conducted and after post-
mortem, the dead body was handed over to the
father of deceased. Statement to that effect were
also recorded.”

52. As per the testimony of PW-49 (Inspector Anil Sharma) during
investigation, he made inquiries from PW-23 (Indal), eye witness, PW-

CRL.A. 1175/2018 other connected matters Page 34 of 159
28 (Gautam Taneja) and also from Appellant/Runeet Gulati to
ascertain the identification of the perpetrators of the crime. The
relevant portion of his testimony is as under: –
“Thereafter, I made inquiries from eyewitness Indal,
Gautam Taneja and also from suspect Runeet Gulati.
I also obtained CDRs of mobile phones of suspect
Runeet Gulati and deceased Shivam @ Shivam
Pandey. I also made inquiries from the family
members of the suspects alleged to have been with
Runeet Gulati on the day of incident. Accused Abhay
Dewan and Jatin were not found present at their
respective addresses.
On 24.07.2012 accused Runeet, Jatin as well
as Abhay came to PS and were interrogated
thoroughly and that they were confronted with
regard to their locations on the date of incident. All
three accused were interrogated separately and their
versions were confronted with each other. Again on
25.07.2012, they were called at PS Maurya Enclave
and sustained interrogation was conducted. Finally,
they confessed about their involvement in the
aforesaid case and having satisfied their role in the
present case. I arrested them.”

53. Learned counsel for the Appellants contended that PW-19 (Vishal)
cannot be termed as last seen witness as he has not seen
Appellant/Runeet and Deceased/Shivam together. Learned counsel
further contended that the child witness PW-23 (Indal) only
identified a white car bearing No. 4654 moreover, PW-19 (Vishal
Verma) had disclosed, the registration number of Swift car as DL2C
AN 3335 only on 23.07.2012, however, PW-49 (Inspector Anil
Sharma) deposed that he came to know about the non-involvement of

CRL.A. 1175/2018 other connected matters Page 35 of 159
Swift car bearing registration no. 4654 on 25.07.2012, which prove
that the statement of PW-19 (Vishal Verma) under Section 161 Cr.
P.C. was not recorded even on 23.7.2012, hence, all the instances
prove that there was nothing on record to prove the involvement of
the Appellants in the commission of crime. At this stage, we deem it
appropriate to peruse the testimonies of relevant witnesses. Deepak
Kapoor (brother of the deceased) who stepped into witness box as
PW-16 deposed that:
“I am doing BBA from Delhi Institute of Rural
development at Nangli Puma and I am in the final
year. Shivam Kapoor @ Pandey (since deceased)
was my brother. On 17.07.2012 at about 10.30 PM
my brother Shivam Kapoor @ Pandey went away on
his two wheeler scooter in a usual way. He did not
return to house upto 11 PM thereafter at about 11-
11:15 PM I made a mobile phone to him by my
mobile phone No. 9871410509 on the mobile
phone number of my brother i.e. 8586807081. My
brother Shivam told me that he was returning to
house within 15 minutes. We waited for him upto
11:30 PM and at about 11:30 PM, I again made a
call on his mobile phone by my mobile phone but
his mobile phone was found switched off.
Thereafter I made calls to his friends and also
made call to his friend Vishal who informed me
that Shivam was with him at last time upto 11 PM
and he further informed me that Runeet met them
on the way and thereafter Shivam went away with
Runeet. Thereafter I along with my father went to
the house of Vishal. He met me and thereafter I
along with Vishal went to the house of Runeet.
Runeet was not present at his house, his mother
gave mobile number of Runeet to us. I made call
at the mobile number of Runeet many times but the

CRL.A. 1175/2018 other connected matters Page 36 of 159
same was found switched off. Thereafter I along
with Vishal was going to search my brother in the
areas of Vijay Nagar, Ashok Vihar, Model Town,
NSP where my brother usually go. When we
reached at Vijay Nagar, then I received mobile call
from my father and he informed me that the
scooter of Shivam was found at Malkaganj
Gurudwara without key. Thereafter we searched
my brother in the Vijay Nagar, Ashok Vihar, Model
Town, NSP for about 2-3 hours with my other
friends but my brother was not found and thereafter
we returned back to our house. At about 2:45 AM
(midnight) my father and my cousin Shrutikant
went to PS Subji Mandi for lodging the FIR about
the missing of my brother Shivam and we have
suspicion on Runeet. I again searched my brother
at the above said four places and I again returned
back to our house at around 5-6 AM. My all family
members had already gone to PS Subzi Mandi. I
also reached at PS Subzi Mandi. At about 3-4 PM
we came to know that a dead body was found at the
Jahangirpuri. My father and some relatives went
to Jahangirpuri to identify the dead body. I also
reached there and I also identified the dead body of
my brother Shivam. I can identify the accused
Runeet who is present in the Court today (Correctly
identified by the witness).”
54. Sanjeev Kapoor (father of the deceased) was examined as PW-18
who in his examination- in-chief deposed that:-
“I have a shop of utensils at Kamla Nagar. Shivam
was my son who used to help me at my shop and he
used to remained with me from 9AM to 9PM and he
was studying through correspondence of BA Ist year.
He was in habit of going to out of the house to meet
his friends after taking dinner at about 9-9:30 PM on
his scooter bearing No. DL 1 SS-2887.

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On 17.07.2012 at about 9:45-10 PM Shivam
went away from the house on his scooter after taking
dinner. He did not return back upto 10:30 PM
thereafter I asked my another son Deepak to call
Shivam and thereafter Deepak made a call to the
Shivam at about 10:45 PM and Shivam told that he
was coming to the house within 15 minutes. He did
not return back to the house to the next 25-30
minutes. Again Deepak made a call to Shivam but
his mobile phone was found switched off. Mobile
phone number of Shivam was 8586807081. We
were worried as Shivam never switched off his
mobile phone. Thereafter, we made call to his
friends and inquired about his whereabouts and we
also made a call to the Vishal who informed us that
Shivam had left him at his house. Thereafter I
along with Deepak, Shrutikant reached at the house
of Vishal. Vishal told us that Shivam was with him
upto 11-11:30 PM and Shivam had left him at his
house and at the golechakkar of Gurudwara,
Malkaganj Runeet met them with an another
person who was not known to him, in a white color
Swift Maruti car and Runeet was saying that he
wanted to talk something with Shivam and Runeet
further told him that to left Vishal at his house and
thereafter they will talk. Thereafter we all
including Vishal reached at the house of Runeet but
he was not present at his house and his mother gave
his mobile number and we made a call to Runeet
for about 7-8 times but his mobile phone was found
switched off. Runeet did not returned to his house
at about 1:30-2 AM. Thereafter we searched Shivam
in the area. I along with Shrutikant searched my son
Shivam in the Malkaganj area on scooty. Deepak and
Vishal were on motorcycle and they searched Shivam
in the different area. We found the scooter of
Shivam in the Malkaganj near the Gurudwara
without key. Shivam was not found by us and

CRL.A. 1175/2018 other connected matters Page 38 of 159
thereafter we all went to the PS Subzi Mandi for
lodging the missing report at about 2:30-2:45 AM
(midnight) and we suspected Runeet. Again we
reached at PS Subji Mandi at the morning time on
18.07.2012 but Shivam and Runeet were not
traceable. At about 7:30 AM on 18.07.2012 Runeet
came at PS Subzi Mandi. He was interrogated by the
police but he did not disclose anything about Shivam.
Thereafter we left the police station. At about 3PM
police of PS Subzi Mandi informed me about the
recovery of dead body and thereafter we went to the
BJRM hospital Mortuary where I identified the
dead body of my son Shivam which was brutally
murdered. I identified the dead body of my son vide
Ex.PW18/A bearing my signatures at point B and we
conducted the last rites of my son.”
55. The statement of Vishal Verma, under Section 161 Cr. P.C., was
recorded by the Investigating Officer on 23.07.2012, who stated as
under:-
“I reside at the aforesaid address with my family
and recently I have got admission in 1st year. I am
acquainted with Shivam Kapoor @ Pandey for
about one year and know Runeet since childhood
who studies in Bangalore and for last few days has
been roaming in Malka Ganj in Swift Car No. DL
2C AN 3335. On 17.07.2012 at about 11 PM, I
along with Shivam was roaming on his Scooter
while sitting on rear seat at Malka Ganj Chowk.
Meanwhile, I met Runeet along with a boy in the
aforesaid car while eating Maggi. Runeet was
driving the car slowly. When he saw us on scooter,
he stopped his car and told Shivam that he wanted
to talk to him. Whereupon Shivam asked as to what
he had to talk? Then he told that not right now,
later. Thereafter, Runeet slowly moved his car and
Shivam Dropped me at my home by his scooter. He

CRL.A. 1175/2018 other connected matters Page 39 of 159
told me that he was going to meet Runeet and he
immediately left. When he did not return home at
night, his brother Deepak and some other people
came at my home and enquired about Shivam.
Whereupon, I told that I and Shivam had met
Runeet at the Chowk who was in a white Swift Car
with a boy and was asking Shivam to have some
talk with him. Then Shivam had gone to meet
Runeet while leaving me at my home by his scooter.
Thereafter, I, Deepak and some other people went
to Runeet’s house for an enquiry. Runeet was not
present at his home. His mother told that he comes
late at night. Then Deepak made a telephonic call
to Runeet while taking his mobile number from his
mother. His mobile was switched off and Shivam’s
mobile was also switched off. Then we along with
other people of the locality searched for Shivam
and found Shivam’s scooter parked at Malka Ganj,
Gurudwara. But no information was found about
Shivam. Thereafter, his family members got lodged
a report regarding missing at Subzi Mandi Police
Station in the night itself. In the later evening of
18th July, we came to know that Shivam’s dead
body has been found at Ekta Camp near Jhuggis,
Pitampura and lying in Mortuary at Jahangirpuri.
Today dated 23.7.2012, as per your instructions, I
have come at Police Station, Maurya Enclave and
told you all the circumstances. I have heard the
statement and the same is correct.”
Sd/-
23.07.2012
Insp. Anil Sharma
P.S. Maurya Enclave”

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56. Vishal Verma (friend of the deceased), the star witness of the
prosecution was examined as PW-19, wherein he deposed as under:-
“I am doing BA first year by correspondence. I knew
Shivam Kapoor @ Pandey since one year as he also
used to come for tuitions. On 17.07.2012 at about
10:30 PM Shivam Kapoor came at my house on his
scooter. Thereafter I along with Shivam Kapoor to
hand over the camera to the brother of our friend at
Metro Station Pulbangash and thereafter we reached
at Vijay Nagar and we ate sandwich there.
Thereafter we reached at Malkaganj and at the
chowk of Gurudwara, Runeet Gulati met us and he
was in a Swift car and Abhay Dewan was sitting with
him in the Swift car whose name came to know me
later on. I already knew Runeet Gulati since my
childhood and he was studying at Bangalore.
Runeet Gulati and Abhay Dewan were taking
Maggie inside of the Swift car. Runeet Gulati told
Shivam Kapoor that he wanted to talk with him but
he insisted that he will talk with Shivam Kapoor in
my absence. Thereafter Shivam Kapoor left me at
my house at about 11 PM and he went away from
there by saying that he was going to talk with Runeet
Gulati. At about 11:30 I received phone call from
the brother of Shivam Kapoor and asked me about
the whereabouts of Shivam Kapoor then I informed
him that Shivam Kapoor had left me at my house.
After some time at about 11:40 PM father and
brothers of Shivam Kapoor came at my house and
asked me about the whereabouts of Shivam Kapoor,
then I informed them that Shivam Kapoor had left
me at my house and Shivam Kapoor went away by
saying that he was going to meet Runeet Gulati and
Runeet Gulati met us at the gole chakkar Chowk
Gurudwara where Runeet Gulati asked Shivam as
he wanted to talk with Shivam Kapoor. Thereafter
we reached at the house of Runeet Gulati but he was

CRL.A. 1175/2018 other connected matters Page 41 of 159
not present at his house and his mother gave mobile
number of Runeet Gulati to Deepak, brother of
Shivam Kapoor. Deepak made a call on the mobile
phone of Runeet Gulati but the same was found
switched off. I along with Deepak searched Shivam
Kapoor in the area of Vijay Nagar on the motorcycle
but he was not found there. Thereafter we came to
know from the father of Shivam Kapoor that scooter
of Shivam Kapoor without key was found at the
Gurudwara Malkaganj. We searched the Shivam
Kapoor the whole night but he was not traceable. On
the next day on 18.07.2012 at about 3-4pm, I came
to know from the father of Shivam Kapoor that dead
body of Shivam Kapoor was recovered.
At this stage the witness states he has been
threatened by two person on motorcycle in front of
Mandir at G-Block, Malka Ganj on 30.3.2013 at
evening time by saying that ‘Apni Gawahi Tod De
Warna Jaan Se Maar Denge’. I made a complaint
to SHO PS Subji Mandi on 31.03.2013. Photocopy
of the same is Ex. PW-19/B hearing my signatures at
point A.”
57. During cross-examination PW-19 (Vishal Verma) deposed as under:-
“My three statements were recorded in this case but
I do not remember the dates when the said
statements were recorded. I knew deceased Shivam
since about one year prior to the incident. I and
Shivam were taking tuitions from the same Tuition
Center. I knew family of deceased Shivam as well. I
was doing B.A. 1st Year (Correspondence) from the
same college from Shivam was doing B.A. IInd Year
(Correspondence).
It took us five minutes by scooter to reach
Pulbangash Metro Station from my house. We met
Shalu at Publbangash Metro Station and handed
over camera to him. It took us about 5 to 10 minutes
to go from Pulbangash Metro Station to Vijay Nagar

CRL.A. 1175/2018 other connected matters Page 42 of 159
where we ate sandwich. The scooter belonged to
Shivam. Shivam was not wearing helmet at that
time. When we finished eating sandwich, it was
about 10 minutes to 11:00 pm.
I do not remember when my first statement
was recorded by the police. It was probably 4-5
days after the incident. During the said period of
4-5 days, police met me and made inquiries from
me but my statement was not recorded by the
police…………
I had mobile phone number of Runeet Gulati
but it was in my other mobile phone. I had given the
said mobile number to the police on the night o
17/18.07.2012 when I was with the family of Shivam
searching for him. The Swift car was being driven
by Runeet Gulati. I had told the police in my
statement u/s 161 Cr. P.C. that Runeet Gulati told
Shivam Kapoor that he wanted to talk with him but
he insisted that he will talk with Shivam Kapoor in
my absence. Confronted with statement u/s 161
Cr.P.C dated 23.07.2012 where it is not so recorded
but it is recorded that ‘phir Shivam ko kaha tumse
kuch baat karni hai, jab Shivam ne kaha ha bol, tab
usne kaha ab nahi, phir aur uske bad Runeet ne
dhire dhire gadi aage bada di’. It is wrong to
suggest that I have deposed before the Court on
09.04.2013 that Runeet Gulati told Shivam Kapoor
in my absence, at the instance of Police and the
family of the deceased or that due to this reason, this
fact does not find mentioned in my statement u/s 161
Cr.P.C dated 23.07.2012 that he wanted to talk with
him but insisted that he will talk with Shivam
Kapoor in my absence…
XXXX XXXX XXXX
At 11:40 pm, only father and one brother of
Shivam Kapoor came to my house. I do not
remember my phone number, on which, I had
received call from brother of Shivam Kapoor at

CRL.A. 1175/2018 other connected matters Page 43 of 159
11:30 pm. I have changed the said number. I also
do not remember the number from which, the call
was made at my mobile phone at 11:30 pm. My
number at that time, was perhaps from Vodafone
company and I surrendered it either about 10 days
of the phone call. I do not remember, for how long,
I continued with the said phone number. I do not
remember, on whose name, the said connection was,
which I was using. Shivam Kapoor was having my
above mentioned number and he used to give me
calls on it. I had perhaps spoken to Shivam Kapoor
on my mobile phone on the day of the incident i.e.,
17.07.2012
XXXX XXXX XXXX
When we went to the house of accused Runeet
after 11:45 pm on 17.07.2012, at that time, I,
brother and father of Shivam had gone there. The
phone number of Runeet was given to us by the
mother of Runeet, which was written by us. I do
not remember, as to what time, the missing report
was lodged at the Police Station Subzi Mandi. We
found the scooter of Shivam before lodging of the
missing report with the police. I do not know, if
family members of Shivam had given a call at 100
number, when the Shivam’s scooter was found, but I
did not given any such call. I do not remember the
time, when the scooter was found. Vol. we were
busy in searching for Shivam, so I did not keep track
of time. It is wrong to suggest that I am unable to
give the time, when the Shivam’s scooter was found
or that when the report was filed, as I was not
present with the brother and father of Shivam. It is
further wrong to suggest that I am a planted witness.
I do not know, if family members of Shivam had
mentioned Runeet’s phone number in the DD as I
had not accompanied them to PS for lodging the
report”

CRL.A. 1175/2018 other connected matters Page 44 of 159
58. From the perusal of the aforesaid testimonies, it is evident that when
the deceased did not return home by 10:30 PM, Deepak (brother of
the deceased) made a call to Shivam at 10:45 pm who informed that
he will be getting back in 15 minutes. Since, the deceased did not
return to his house for the next 25-30 minutes and mobile phone of
the deceased bearing no. 8586807081 was switched off, the family
members started searching for the deceased. As per the testimony of
PW-18, (Sanjeev Kapoor), he deposed: ‘we made call to his friends
and inquired about his whereabouts and we also made a call to the
Vishal who informed us that Shivam had left him at his house.
Thereafter I along with Deepak, Shrutikant reached at the house of
Vishal. Vishal told us that Shivam was with him upto 11-11:30 PM
and Shivam had left him at his house and at the gole chakkar of
Gurudwara, Malkaganj. Runeet met them with an another person
who was not known to him, in a white color Swift Maruti car and
Runeet was saying that he wanted to talk something with Shivam
and Runeet further told him that to left Vishal at his house and
thereafter they will talk.’ PW-19 (Vishal) also corroborated the
testimony of PW-18 (Sanjeev Kapoor) and deposed that ‘After some
time at about 11:40 PM father and brothers of Shivam Kapoor
came at my house and asked me about the whereabouts of Shivam
Kapoor, then I informed them that Shivam Kapoor had left me at
my house and Shivam Kapoor went away by saying that he was
going to meet Runeet Gulati and Runeet Gulati met us at the gole
chakkar Chowk Gurudwara where Runeet Gulati asked Shivam as
he wanted to talk with Shivam Kapoor. Thereafter we reached at

CRL.A. 1175/2018 other connected matters Page 45 of 159
the house of Runeet Gulati but he was not present at his house and
his mother gave mobile number of Runeet Gulati to Deepak,
brother of Shivam Kapoor. Deepak made a call on the mobile
phone of Runeet Gulati but the same was found switched off. ‘.
59. Learned counsel for the Appellants labored hard to contend that PW-
19 (Vishal) was a planted witness. PW-19 (Vishal) was cross
examined at length by the defence counsel to establish that the
witness was not present at the spot and has been introduced later by
the prosecution. It is evident from the testimony of PW-19 (Vishal)
that he had not seen the deceased in the company of
Appellant/Runeet Gulati Appellant/Abhay Dewan after the
deceased had dropped him at his residence. But a close scrutiny of
the cross-examination of the PW-19 (Vishal) reveals that he deposed
on same lines what has been deposed by him in his examination-in-
chief and the same corroborates with the version of the PW-16,
Deepak Kapoor (brother of the deceased) and PW-18, Sanjeev
Kapoor, (father of the deceased). Further, in order to establish that
PW-19 (Vishal) was a planted witness, learned counsel for the
Appellants laid great emphasis on the missing report (Ex.PW3/A).
From the perusal of the record we find that the name of the PW-19
(Vishal) has not been mentioned in the missing report (Ex.PW3/A).
However, we cannot ignore the testimony of PW-16, Deepak Kapoor
(brother of the deceased) and PW-18, Sanjeev Kapoor, (father of the
deceased) who have categorically deposed that PW-19 (Vishal) was
with them the whole night searching for the deceased (Shivam) and
even went to the house of the Appellant/Runeet Gulati where they

CRL.A. 1175/2018 other connected matters Page 46 of 159
met Appellant/Runeet Gulati’s Mother who gave them Runeet’s
phone number. As such the fact that the name of PW-19 (Vishal) was
not mentioned in the missing report does not discard the story of the
prosecution that at 11:00 pm on the intervening night of
17/18.07.2012, the deceased dropped PW-19 (Vishal) at his house
and left after saying that he is going to meet Runeet Gulati.
Moreover, the main ingredient of the missing report is the description
of the person who is missing and the details relating to the
disappearance, the last contact with the individual, what they were
wearing when they disappeared and any details relating to possible
reasons behind their disappearance. Missing report is not a catalogue
to mention each and every detail and it is not possible for a
complainant to give each and every detail in the missing report. As
such the reliance placed by the learned counsel for the Appellant on
the missing report (Ex.PW3/A) holds no ground.
60. It is well settled in law that the minor discrepancies are not to be
given undue emphasis and the evidence is to be considered from the
point of view of trustworthiness. The Hon’ble Supreme Court of
India in the case of Mritunjoy Biswas Vs. Pranab @ Kuti Biswas
and Anr., reported at (2013) 12 SCC 796, has held as under:
“28. As is evincible, the High Court has also taken
note of certain omissions and discrepancies treating
them to be material omissions and irreconcilable
discrepancies. It is well settled in law that the minor
discrepancies are not to be given undue emphasis and
the evidence is to be considered from the point of view

CRL.A. 1175/2018 other connected matters Page 47 of 159
of trustworthiness. The test is whether the same inspires
confidence in the mind of the Court. If the evidence is
incredible and cannot be accepted by the test of
prudence, then it may create a dent in the prosecution
version. If an omission or discrepancy goes to the root
of the matter and ushers in incongruities, the defense
can take advantage of such inconsistencies. The
omission should create a serious doubt about the
truthfulness or creditworthiness of a witness. It is only
the serious contradictions and omissions which
materially affect the case of the prosecution but not
every contradiction or omission (See Leela Ram vs.
State of Haryana and another, Rammi alias Rameshwar
v. State of M.P. and Shyamal Ghosh v. State of West
Bengal).
(emphasis supplied)

61. In the present case nothing has been brought on record to prove that
the evidence of the prosecution witnesses cannot be believed and
relied upon or they have falsely implicated the Appellants due to
some personal vengeance or have implicated the Appellants in the
present case at the instance of the prosecution. In all criminal cases,
normal discrepancies are bound to occur in the depositions of the
witnesses due to normal errors in observations, namely, error of
memory due to lapse of time or due to mental disposition such as
shock and horror at the time of the incident. Hence, the argument of
the counsel for the Appellant with regard to the contradictions in the
testimonies of material prosecution witnesses holds no ground.

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Arrest of Accused Persons
62. As per the deposition of PW-49 (Inspector Anil Sharma)
Appellants/Runeet, Jatin as well as Abhay came to Police Station on
24.07.2012 and were interrogated thoroughly and were confronted
about their location on the date of incident. All three accused were
interrogated separately and their versions were later confronted with
each other. Again on 25.07.2012, they were called to Police Station
Maurya Enclave and sustained interrogation was conducted. Finally,
they confessed to their involvement in the murder of the deceased
Shivam and after being satisfied about their involvement they were
arrested. From the perusal of the Arrest memos (Ex, PW-25/A), (Ex.
PW-25/D) and (Ex. PW-25/G), we find that Appellant/ Runeet Gulati
was arrested on 25.07.2012 at 05:15 pm at Police Station, Maurya
Enclave (Ex, PW-25/A) in the presence of HC, Manoj Raghav and Ct.
Pyare Lal; Appellant/ Abhay Dewan was arrested on 25.07.2012 at
05:30 pm at Police Station, Maurya Enclave (Ex, PW-25/D) in the
presence of HC, Manoj Raghav and Ct. Pyare Lal; Appellant/ Jatin
was arrested on 25.07.2012 at 05:45 pm at Police Station, Maurya
Enclave (Ex, PW-25/G) in the presence of HC, Manoj Raghav and Ct.
Pyare Lal and Appellant/Mahima Dewan was arrested on 26.07.2012
at 07:00 am from House no. C-2/16, Sector-15, Rohini, Delhi (Ex,
PW-25/Z-4) in the presence of Ct. Rakhi and HC, Manoj Raghav.
63. Learned counsel for the Appellants did not dispute the presence of the
Appellants on the intervening night of 17th – 18th July, 2012 in Delhi.
However, they contended that the Appellant/Abhay Dewan,

CRL.A. 1175/2018 other connected matters Page 49 of 159
Appellant/Mahima Dewan Appellant Jatin were apprehended from
Nepal Border when they were enjoying their vacations and were
brought to Delhi on 24.07.2012 where they were kept in illegal
detention. Their arrests were shown on 25.07.2012 and 26.07.2012. In
order to establish the arrest of the Appellants from the Nepal Border,
learned counsel for the Appellants relied on the testimony of DW-5
(Bharat), who deposed that:-
“I was on business trip in Chhattisgarh in July 2012.
There I got a telephonic call from my home informing
me that police has taken my younger son Ankush at
Police station. At that time, my son Ankush was
sleeping at the residence of Govind Dewan. IN
response thereto, I came back to Delhi. Thereafter, I
visited PS Maurya Enclave. There I met one police
official namely Paliwal and inquired from him as to
why he had picked my son. He asked for the
whereabouts of Abhay Dewan and stated that only
thereafter, he would leave my son. I informed him
that the accused Abhay Dewan and Mahima Dewan
had taken my Civic Car registration no. 6589 from my
son Ankush and had gone to Nepal for outing.
XXXX XXXX XXXX
On 23.07.2012, when I was coming from Rohini
towards PS Maurya Enclave, near Sachdeva Public
School, I got a call who inquired about me and asked
me whether I knew Abhay Dewan and Mahima

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Dewan. I said yes and asked about the identity of the
said person. He replied he was one SI Kunsal from
Nepal Border and he had called as my car no. No.
6589 was parked for the last two days. My mobile no.
is 9312252885 and the same is my name.”

64. From the testimony of DW-5 it emerges that some inquiries about
Honda Civic Car registration no. 6589 were made as the same was
found parked at Nepal border by one SI Kunsal from Nepal Border,
beyond which neither DW-5 gave any information nor the accused
persons produced any credible evidence for substantiating their claim
of illegal detention from Nepal Border.
65. To the contrary, as per the case of the prosecution, the Appellants i.e.
Abhay Dewan, Runeet Gulati and Jatin came to the police station on
24.07.2012 and were again called on 25.07.2012, wherein they were
interrogated and confessed about their involvement in the present
case. These Appellants were arrested vide arrest memo Ex.PW25/A,
Ex.PW25/D and Ex.PW25/G and their personal search was
conducted vide memo Ex.PW25/B, Ex.PW25/E and Ex.PW25/H and
Appellant/Mahima Dewan was arrested from her residence at Sector-
15, Rohini, Delhi vide arrest Memo Ex.PW25/Z4. In this context, we
find from the record that the prosecution has examined, PW-49
(Inspector, Anil Sharma) who during his examination-in-chief
deposed that:-
“On 24.07.2012 accused Runeet, Jatin as well as
Abhay came to PS and were interrogated
thoroughly and they were confronted with regard to

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their locations on the date of incident. All three
accused were interrogated separately and their
versions were confronted with each other. Again
on 25.07.2012, they were called at PS Maurya
Enclave and sustained interrogation was
conducted. Finally, they confessed about their
involvement in the aforesaid case and having
satisfied their role in the present case, I arrested
them.”

66. PW-25 (HC Manoj Raghav), during his examination-in-chief
deposed as under:-
“On 25.07.2012 I was posted at PS Maurya Enclave
and on that day I joined the investigation of this case
with IO-Insp. Anil Sharma at PS. Other police
officials had also joined the investigation. IO
arrested accused Runeet Gulati present in Court
today (correctly identified) and prepared arrest
memo Ex.PW25/A. IO took the personal search of
accused Runeet Gulati. One visiting card, three
passport size photograph of accsed Abhay Dewan
and Rs.100 were recovered from the personal search
of accused Runeet Gulati. IO prepared personal
search memo which is Ex.PW25/B. It bears my
signature at point A. One mobile phone made
Samsung of silver color (dual sim) was also
recovered from the personal search of accused
Runeet Gulati. IO kept the said mobile phone on a
piece of cloth and after preparing pullanda duly
sealed with the seal of AS and was taken into
possession through separate seizure memo
Ex.PW25/C which also bears my signatures at point
A. Thereafter, IO arrested accused Abhay Dewan
@ Gappy present in Court today (correctly
identified) in this case and prepared arrest memo
Ex.PW25/D which also bears my signature at point
A. IO took personal search of accused Abhay
Dewan and one voter ID card, one credit card of

CRL.A. 1175/2018 other connected matters Page 52 of 159
HDFC Bank, visiting card casino Nepal and one
metro card and cash Rs.1000/-. One mobile phone
make Nokia E-63 was also recovered. IO prepared
the personal search memo in this regard. Same is
Ex.PW25/E which also bears my signatures at point
A. Aforesaid mobile phone was separately kept in a
piece of cloth and after preparing pullanda and
sealed with the seal of AS was taken into possession
through seizure memo Ex.PW25/F which also bears
my signatures at point A. Thereafter, IO arrested
accused Jatin present in Court today (correctly
identified) and prepared arrest memo Ex. PW25/G.
IO took the personal search of accused Jatin in
which two visiting cards and cash Rs.500/- and two
mobile phones, one make Samsung of white color
and one make spice of black color were recovered.
IO prepared the personal search memo. Same is
Ex.PW25/H. Aforesaid two mobile phones were kept
in piece of cloth and after preparing pullanda duly
sealed with the seal of AS and was taken into
possession through seizure memo Ex.PW25/J which
bears my signatures at point A. IO thoroughly
interrogated all the three accused persons
separately and recorded their disclosure
statements. Same are Ex.PW25/K1, Ex.PW25/K2
Ex.PW25/K3 of accused Runeet Gulati, Abhay
Dewan and Jatin respectively.

67. Further as far as arrest of Appellant/Mahima Dewan is concerned,
she was arrested vide arrest Memo (Ex.PW-25/Z4), wherein the
deposition of PW-43 (Ct. Rakhi) corroborates the testimonies of PW-
25 (HC Manoj Yadav) and PW-49 (Inspector, Anil Sharma).
Relevant portion of the testimony of Ct. Rakhi is as under:-
“On 26.07.2012, I was posted at PS Maurya
Enclave. I joined investigation of the case with IO
Inspector Anil Sharma. At about 6:00 am, IO his

CRL.A. 1175/2018 other connected matters Page 53 of 159
team and myself had gone to H.No. C-2/16, Sector
15, Rohini in official gypsy. We had gone to second
floor where accused Mahima Dewan, present in
Court (correctly identified), was found present with
her parents-in-law. IO made interrogations from
accused and arrested her at about 7:00 a.m. As per
the instructions of IO, I took her personal search by
taking her to another room. Nothing was recovered
from her such personal search. Her arrest memo is
already Ex.PW25/Z4. Her personal search memo
is already Ex.PW25/Z3.
She also handed over her white color mobile phone
to the IO which also contained SIM. IO seized the
same and prepared a pullanda and sealed the same
with the seal of “AS”. Seizure memo in this regard
is already Ex.PW25/Z6. Her disclosure statement
was also recorded which is already Mark
.PW25/Z5.
Accused Mahima also taken out one white color top
having blue color (cheenth) design and black color
lower from wardrobe of her second floor house
claiming that she had been wearing the same at the
time of the incident. These were also seized by IO
in the similar manner vide memo already
Ex.PW25/Z7. All these memos were signed by me
also as attesting witness.”

68. It is pertinent to mention here that during the trial the Appellants
moved an application before the Trial Court for production of Call
Detail Records of the members of Investigating Team. However, on
06.02.2018 all the Appellants withdrew their prayers for providing
the Call Detail Records of PW-49 (Inspector Anil Sharma). On
15.02.2018 the following order was passed: –
“8. In the present case, the accused moved an
application under Section 91 Cr. P.C. seeking

CRL.A. 1175/2018 other connected matters Page 54 of 159
preservation of the CDR data of the above
mentioned persons. Vide order dated 04.07.2013,
Ld. Predecessor of this Court directed the
preservation of the CDR data of the persons
mentioned in the above list from 18.07.2012 to
26.07.2012. Simultaneously, it was clarified that
whether or not permission to summon the said
record be given and the conditions therefore and
also the issue whether the same could be relied upon
by the accused persons in their defence evidence
would be seen at the appropriate stage. Hence, vide
the said order, only the CDE data of the said police
officials was directed to be preserved and the issue
of their relevancy/admissibility in defence evidence
was left upon. Therefore, it can be held that mere
preservation of the CDR data shall not amount to
grant of permission to the accused to lead the same
in their defence evidence.
9. Now the question arises whether the CDR
data of the police officials mentioned at serial no. 6
to 10 of the above list can be summoned by the
accused in their defence.
10. In the judgment passed by Hon’ble Delhi
High Court in Attar Singh (supra), the petitioner
herein sought direction for the supply of the call
details of the calls made from the mobile phone of
the Investigating officer. The grievance of the
petitioner was that the calls made from the mobile
of the investigating officer would indicate the
presence, location and the activities of the
investigating officer. The Hon’ble Delhi High
Court rejected the said submission holding that the
details of personal telephone of IO of the case
would amount to intrusion in the privacy of the
investigating officer.
11. In view of the above mentioned judgment, it
can be held that the CDR of the Investigating
Officer cannot be summoned for the reason that the

CRL.A. 1175/2018 other connected matters Page 55 of 159
same shall amount to intrusion in the privacy of the
Investigating Officer. On he same analogy, it can
be held that the CDR data of the other police
officials i.e. the said police officials who helped him
in arrest of the accused no. 1,2 and 4 as alleged by
the said accused, cannot be summoned for the
purpose of the defence evidence as the same shall
amount to intrusion in their privacy. Therefore, the
prayer of the accused to summon the CDR data of
the police officials mentioned at serial no. 3 and 4
when they were out of Delhi on 24.07.2012.”

69. Against the above mentioned order dated 15.02.2018, the Appellants
preferred Crl. M.C. 2018/18 before the High Court of Delhi, which
was dismissed vide order dated 28.05.2018, and the order attained
finality with regard to production of CDR details of the Investigation
Team.
70. Though, learned counsel for the Appellants vehemently argued that
the Appellants Abhay Dewan, Mahima Dewan and Jatin were
arrested from Nepal Border, but the deposition made by the
Appellants, during their statements recorded under Section 313 of
Code of Criminal Procedure, failed to disclose about their visit to
Nepal, which needs to be examined threadbare. The Appellants
deposed as follows:-

APPELLANT/ABHAY DEWAN
“Question 43 : Further that on 24.07.2012 you
accused Abhay Dewan and your co-accused Runeet
and Jatin came to PS and were interrogated
thoroughly and you and your co-accused were
confronted with regard to your locations on the date
of incident and you and your co-accused were

CRL.A. 1175/2018 other connected matters Page 56 of 159
interrogated separately and versions of you and your
co-accused were confronted with each other and
again on 25.07.2012, you and your co-accused were
called at PS Maurya Enclave and sustained
interrogation was conducted and you and your co-
accused confessed your involvement in the present
case vide disclosure statements Ex.PW25/K1,
Ex.PW25/K2 and Ex.PW25/K. What do you have to
say?
Answer : Police took me to the police station
Maurya Enclave on 25.07.2012 only. No
interrogation was made from me on 24.07.2012. I
did not made any discloure statement. I do not know
about Runit and Jatin whether they made any
disclosure statement. I do not know about Runit and
Jatin whether they made any disclosure statement or
not.
Question 44 : Further that you and your co-accused
were arrested vide arrest memos Ex.PW25/A,
Ex.PW25/D Ex.PW25/G and personal search
memos of you and your co-accused are Ex.PW25/B,
Ex.PW25/E and Ex.PW25/H. What do you have to
say?
Answer : Police arrested myself and Runit and Jatin.
Police searched me.
Question 65 : Further that your co-accused
Mahima was arrested vide arrest memo Ex.PW25/Z4
and she disclosed her involvement in the present case
vide disclosure statement Mark PW25/Z5. What do
you have to say?
Answer : Police arrested Mahima Dewan.

APPELLANT / MAHIMA DEWAN

CRL.A. 1175/2018 other connected matters Page 57 of 159
Question 44 : Further that your said co-accused
were arrested vide arrest memos Ex.PW25/A,
Ex.PW25/D Ex.PW25/G and personal search
memos of you and your co-accused are Ex.PW25/B,
Ex.PW25/E and Ex.PW25/H. What do you have to
say?
Answer : I do not know.
Question 65 : Further that you accused Mahima
were arrested vide arrest Memo Ex.PW-25/Z4 and
you disclosed your involvement in the present case
vide disclosure statement Mark PW25/Z5. What you
have have to say?
Answer : Police took myself, my husband Abhay
Dewan and Jatin to the police station and kept all of
us for 2 to 3 days in the police station. Thereafter,
police arrested us. I did not make any disclosure
statement.
APPELLANT/RUNEET GULATI
Question 44 : Further that you and your said co-
accused were arrested vide arrest memos
Ex.PW25/A, Ex.PW25/D and Ex.PW25/G and
personal search memos of you and your said co-
accused are Ex.PW25/B, Ex.PW25/E and
Ex.PW25/H. What do your have to say?
Answer : It is correct. I was kept in the PS Sabji
Mandi on 18.07.2012 in the evening I came back to
my house. Next morning I visited the PS Sabji
Mandi and police made inquiries from me and I
again came back to my house. Thereafter, I was
taken to PS Maurya Enclave and was arrested on
19.07.2012 itself.

APPELLANT / JATIN

CRL.A. 1175/2018 other connected matters Page 58 of 159
Question 44 : Further that you and your said co-
accused were arrested vide arrest memos
Ex.PW25/A, Ex.PW25/D and Ex.PW25/G and
personal search memos of you and your said co-
accused are Ex.PW25/B, Ex.PW25/E and
Ex.PW25/H. What do your have to say?
Answer : I was arrested but not in the manner as
stated by the police. I was brought from Nepal
Border. I do not remember the date when I brought
from Nepal Border.
71. Perusal of the statement of Appellant/Abhay Dewan recorded under
section 313 of the Code of Criminal Procedure reveals that he
remained silent on this issue for the reasons best known to him.
Similarly, Appellant/Mahima Dewan denied having knowledge of
the arrest of her co-accused and in the same breath, she claimed that
she along with other accused persons was detained by the police for
2-3 days and were shown as arrested in the record, wherein she failed
to disclose anything with regard to her arrest from the Nepal Border
72. While answering the questions under Section 313 of Code of
Criminal Procedure, the Appellant/Jatin though claimed that he had
been arrested from Nepal Border but failed to disclose the date of
arrest. Hence, the defence took up a vague plea and failed to bring
any substantial piece of evidence on record to suggest that the
Appellants Abhay Dewan, Mahima Dewan and Jatin were arrested
from Nepal Border.
73. Section 313 Cr.P.C. provides direct interaction of the Court with an
accused to personally enable him to explain each and every
incriminating evidence and circumstances appearing against him.

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Though every accused has a right to keep silent or deny the
incriminating circumstance emerged against them in evidence, but in
such circumstances an adverse inference could be drawn against
them.
74. The Apex Court in the case of Prahlad vs. State of Rajasthan
reported in 2018 SCC Online SC 2548 held that silence of the
accused in the statement recorded under Section 313 Cr.P.C about
matters he/she is expected to explain leads to an adverse inference
against them. Germane portion of the judgment is extracted below –
“9. No explanation is forthcoming from the statement
of the accused under Section 313 Cr.P.C. as to when
he parted the company of the victim. Also, no
explanation is there as to what happened after
getting the chocolates for the victim. The silence on
the part of the accused, in such a matter wherein he
is expected to come out with an explanation, leads
to an adverse inference against the accused.”

(emphasis supplied)

75. According to the prosecution, the Appellants were arrested on
25.02.2018 and 26.02.2018 in Delhi as the prosecution has proved the
following documents (Ex, PW-25/A), (Ex. PW-25/D), (Ex. PW-25/G)
and (Ex.PW25/Z4). Though the Appellants took up a plea that they
have been arrested from Nepal Border for the reasons best known to
them, it is clear and evident that in their statements recorded under
Section 313 Cr. P.C., they chose to remain silent about their

CRL.A. 1175/2018 other connected matters Page 60 of 159
apprehension and arrest in Nepal Border, rather, Appellant/Mahima
Dewan stated that Appellant/Abhay Dewan and Appellant/Jatin were
taken to the police station and were kept in the Police Station for 2-3
days, nowhere, she has mentioned about their illegal detention from
Nepal Border, even Appellant/Jatin stated that he was produced from
Nepal Border but failed to give the details of the same. The Appellants
though took up a plea that they were apprehended/arrested from Nepal
Border but despite opportunity provided to them they failed to raise
any defence and as such the case set up by the prosecution in relation
to the arrest of the Appellants cannot be disbelieved.
Recovery of Material Objects
76. Learned counsel for the Appellants labored hard to bring forth that
the recoveries effected at the instance of the Appellants are doubtful
as there were 31 documents being arrest memos, disclosure
statements and seizure memos which were executed on 25.07.2012
and only three police witnesses i.e. PW49 (Anil Sharma), PW25
(Manoj Raghav) and Pyarelal have prepared these documents in a
short while and out of these three police witnesses, Pyarelal was
never examined which proves that the documents have been
fabricated; that the disclosure statement and the recovery memo
clearly depicts that no blood stained clothes were recovered.
However, while describing the clothes of the accused persons at
S. No. 10 ‘a’ and ‘b’ the DNA Report (Ex.PW-1/B) erroneously
bring forth that the clothes are blood stained, indicating that evidence
and records have been manipulated by the police authorities; that the

CRL.A. 1175/2018 other connected matters Page 61 of 159
recovery from the Maruti Swift car no. 3335 from DMC Booth,
opposite H.No.B-140/141, Amar Colony, Lajpat Nagar-4, Delhi is
doubtful as various articles (one clip of bandage, one bandage, one
empty cartridge case lying in the middle of both front seats, one front
pellet lying inside the adjacent seat of the driver seat of the car,
some coins, three SIM cards, one paper cutter and one water bottle)
were recovered from the aforesaid swift car and the same were
planted against the Appellant because the smaller window pane on
the right rear side of the swift car was broken.
77. Thus, on the basis of disclosure statement pointing out memo,
recovery of material objects as well as the weapon of the offence was
effected. However, according to Section 25 of the Indian Evidence
Act 1860, no credence can be placed upon the confession made by
the accused which reads as under:
“25. Confession to police officer not to be proved
No confession made to a police officer shall be
proved as against a person accused of any offence.”

78. However, Section 27 of the Indian Evidence Act is in the nature of a
proviso or an exception which partially lifts the prohibition imposed
by Section 25 and reads as under:
“Section 27 of the Indian Evidence Act:
27. How much of information received from
accused may be proved.–Provided that, when any
fact is deposed to as discovered in consequence of
information received from a person accused of any

CRL.A. 1175/2018 other connected matters Page 62 of 159
offence, in the custody of a police officer, so much
of such information, whether it amounts to a
confession or not, as relates distinctly to the fact
thereby discovered, may be proved.”

79. In the light of Section 27 of the Indian Evidence Act, 1872 whatever
information is given by the accused in consequence of which a fact is
discovered only that would be admissible in the evidence, regardless
of the fact that such information amounts to confession or not. The
basic idea embedded under Section 27 of the Evidence Act is the
doctrine of confirmation by the subsequent events. The doctrine is
founded on the principle that if any fact is discovered in a search
made on the strength of any information obtained from an accused;
such a discovery is true and admissible. The information might be
confessional or non-inculpatory in nature, but if it results in
discovery of a fact it becomes reliable information.
80. Further, the Division Bench of this Court in Rakesh Kumar Jha vs.
State of NCT of Delhi (2013) 1 DLT (Cri) 79 has extensively dealt
with the admissibility of the confession made by the accused to the
police. Relevant portion is reproduced hereunder:
“5. Before we proceed further, we need to decide to what
extent confession made by the Appellant, recorded under
DD Entry No. 11A, or the alleged extra judicial
confession to Sriniwas Kumar (PW-20) is admissible. On
record, Appellant’s case is that he made no extra judicial
confession to PW-20, over the telephone. However,
statement of PW-20 needs to be deliberated upon only if
we hold that Sections 25 and 26 of the Evidence Act do

CRL.A. 1175/2018 other connected matters Page 63 of 159
not prohibit or bar admission of the alleged extra
judicial confession.
xxxxx xxxxxxxxx xxxxx
7. In Aghnoo Nagesia v. State of Bihar AIR 1966 SC
119, the accused had himself gone to the police station
and lodged a report, which was in the form of a
confession. The principal question which arose was
whether the said statement, or any portion thereof, was
admissible in evidence. The Supreme Court reproduced
the entire First Information Report and divided it into 18
parts. Sections 24 to 30 of the Evidence Act were
elucidated upon and explained. The term “confession”
was interpreted to mean a statement made by an
accused suggesting that he had committed the crime.
Confession is an admission made by the person who
admits the offence or substantially all the facts which
constitute the offence. It is a statement made by a
person suggesting that he has committed a crime.
Whether a statement which is partly self-exculpatory
amounts to a confession or not, is a question which
need be examined in the present appeal. It was observed
that although a confession may consist of several parts,
and some parts may not relate to actual commission of
offence, but some may relate to the motive, the
cooperation, the opportunity, the provocation, the
weapon used, the intention, concealment of the weapon
and the subsequent conduct of the accused. Elucidating
upon the scope and whether the bar of Sections 25 and
26 of the Evidence Act will apply to such statements, it
was held as under:-
“15. If proof of the confession is excluded by any
provision of law such as s. 24, s. 25 ands. 26 of
the Evidence Act, the entire confessional
statement in all its parts including the admissions
of minor incriminating facts must also be
excluded, unless proof of it is permitted by some
other section such as s. 27 of the Evidence Act.
Little substance and content would be left in

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Sections 24, 25 and 26 if proof of admissions of
incriminating facts in a confessional statement is
permitted.
xxxxx xxxxxxx xxxxxx
18. A little reflection will show that the expression
“confession” in Sections 24 to 30 refers to the
confessional statement as a whole including not
only the admissions of the offence but also all
other admissions of incriminating facts related to
the offence. Section 27 partially lifts the ban
imposed by Sections 24, 25 and 26 in respect of so
much of the information whether it amounts to a
confession or not, as relates distinctly to the fact
discovered in consequence of the information, if
the other conditions of the section are satisfied.
Section 27 distinctly contemplates that
information leading to a discovery may be a part
of the confession of the accused and thus, fall
within the purview of Sections 24, 25 and 26.
Section 27 thus shows that a confessional
statement admitting the offence may contain
additional information as part of the confession.
Again, s. 30 permits the Court to take into
consideration against a co- accused a confession
of another accused affecting not only him but the
other co-accused. Section 30 thus shows that
matters affecting other persons may form part of
the confession.
xxxxx
8. Accordingly, the statement recorded in the First
Information Report was admissible, in respect of the
identity of the accused as the maker of the same i.e. his
name, address and other details and the fact that he had
come to the police station to make the report, which was
recorded and read over to him. The other portions of the
statement recorded in the First Information Report
were not admissible, save and except the portions which

CRL.A. 1175/2018 other connected matters Page 65 of 159
come within the purview of Section 27 of the Evidence
Act. Therefore, the other portions had to be excluded.
xxxxxx xxxxxxx xxxxxxx
13. In Bheru Singh v. State of Rajasthan (1994) 2 SCC
467, there are some observations which purport that the
motive recorded in the self-implicating First Information
Report are admissible and not hit by Section 25 of the
Evidence Act, as they do not amount to confession of
committing any crime. However, as clarified by a
Division Bench of this Court in Mukesh v. State Crl.
Appeal No. 615/2008 decided on 4.5.2010, in Aghnoo
Nagesia (supra) three Judges of the Supreme Court have
firmly held that confession not only includes admission of
the offence but also other admissions of incriminating
facts relating to the offence. Motive, therefore, has to be
excluded.
14. Read in this manner, we have to completely ignore
and discard the extra judicial confession allegedly made
to PW-20 on telephone, on 14th May, 2006 at 1.15 -1.20
P.M., i.e. after the Appellant had gone to Police Station,
Lajpat Nagar and DD entry No. 11A (Ex. PW1/A) was
recorded at 1.00 P.M. The alleged extra judicial
confession to PW-20 is hit by Section 26 of the Evidence
Act. DD entry No. 11-A (Ex. PW1/A) is admissible to the
limited extent that it discloses identity of the Appellant,
address and details of the maker of the First Information
Report. This portion is admissible under Section 8 of
the Evidence Act. Other portions of DD entry 11A have
to be excluded, except the portion(s) which comes
under the purview of Section 27 of the Evidence Act.
This portion, noticed below, will consist of Appellant’s
statement that dead body of Suman Rai was lying in flat
No. E-20, First Floor, Gautam Nagar, New Delhi, and
the knife used and blood stained clothes of the accused
were lying in the same flat.
15. Head Constable Raghubir Prasad(PW-1) was the
duty officer at the Police Station, Lajpat Nagar and had
first interaction with the accused, at Police Station,

CRL.A. 1175/2018 other connected matters Page 66 of 159
Lajpat Nagar, where he had recorded his confessional
statement, vide DD entry No. 11A(Ex. PW1/A). The DD
entry reads as:
“I reside at 50 E, First Floor, Gautam Nagar, New
Delhi in the Flat of Smt. Suman Roy and loved her.
I came to know about her illicit relations with
some other persons, on which some hot arguments
took place between us. As a result whereof I
became furious and today at about 8:00 o’clock in
the morning I finished her by giving knife blows. I
had kept the blood stained knife and clothes at the
locale itself. I have locked the flat and the key of
the flat is in my possession. I have come here at
Lajpat Nagar Police Station to inform you,
because I knew about the Lajpat Nagar Police
Station only. (The underlined portion of the DD
entry is admissible)”
(emphasis supplied)

81. In view of the law discussed above it is clear that, Section 27 of the
Indian Evidence Act, 1872 is applicable, if confessional statement
leads to discovery of some new facts. It is further not in dispute that
a fact discovered on an information supplied by an accused in his
disclosure statement is a relevant fact and that is admissible in
evidence if something new is discovered or recovered from the
accused which was not within the knowledge of the police before
recording the disclosure statement of the accused (Ref:Kamal
Kishore Vs. State (Delhi Administration), (1997) 2 Crimes 169
(Del).
82. From the perusal of the record, we find that the prosecution in the
present case has relied upon various recoveries which were pointed
out at the instance of the Appellants. The version of the prosecution

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is also corroborated with the testimony of police witnesses, HC
Manoj Raghav (PW-25) and Insp Anil Sharma (PW-49). At this
stage, it is relevant to peruse the testimony of PW-49 (Inspector,
investigating officer) which reads as under: –
“Thereafter, I along with all the three accused in
muffled faces went to Prem Bari Pul in official
vehicle TATA 407 with other staff. At the instance of
accused Runeet the vehicle was stopped there.
Runeet pointed out towards the place which was
situated at a distance of 100 mtrs from Prem Bari
Pul where he had thrown purse and key of scooter
of deceased. Such purse and keys were recovered
from the bushes from the same space towards
accused and pointed out.
xxxx xxxx xxxx xxxx
From there, all the three accused led us to the spot
where they had thrown the body. It was a pace near
Haider Pur Water Works near Vivekanand Institute
of Professional Studies (VIPS) adjacent to AU Block
Jhuggies.
xxxx xxxx xxxx xxxx
Accused Abhay Dewan led us to third floor his
house C-2/16, Sector-15, Rohini, and he pointed
out the cistern of the unused bathroom of said third
floor. Cistern was without any water and one pistol
was recovered from such cistern. It was found
wrapped in a black polythene. It was opened and
checked. Pistol was containing one live cartridge in
its chamber. Sketch of pistol as well as cartridge
and magazine was prepared which is already
Ex.PW25/N bearing my signature at point B.
xxxx xxxx xxxx xxxx

CRL.A. 1175/2018 other connected matters Page 68 of 159
He also got recovered keys of the car from one
almirah of same room from its lower shelf. He
claimed that the key of the car number
DL2CAN3335 make Swift and also revealed that
said car was used in the commission of crime.
Accused Abhay Dewan also handed over another
key of Accent car bearing no. Dl4CAJ9666 which
was used to bring co-accused Jatin from Faridabad
during the commission of crime.
xxxx xxxx xxxx xxxx
Thereafter, we all police officials along with all
three said accused reached Ring Road Lajpat
Nagar near Double Storey Market where at the
instance of accused Jatin and Abhay Dewan, we
stopped our official vehicle. Both the accused led us
to the gutter/sewer and got recovered one mobile
phone make Samsung of white color of deceased.
Such mobile phone was lying on a dry place within
the gutter.
xxxx xxxx xxxx xxxx
Accused Jatin took us to a place where they had
washed said Swift car and had thrown one car seat
cover, two head rests and three shades/jaali in the
drain. At the instance of accused Jatin, all the
aforesaid articles were recovered. Same was put in a
plastic katta and sealed with the seal of AS.
xxxx xxxx xxxx xxxx
Thereafter, accused Abhay and Jatin led us to the
place where they had parked said Swift car near
DMS Booth (adjacent to Pump House wall), Amar
colony, Lajpat nagar. Said Swift car was found
parked at the said place. I opened the gate of the
said car with the help of its key and found that there
was bloodstains inside the car. Since the same was
required to be examined by the crime team expert, I

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locked the said car and took the same in possession
vide seizure memo already Ex.PW25/Z2 which
bears my signature at point B.
xxxx xxxx xxxx xxxx
I along with HC Manoj Raghav, Ct. Pyare Lal and
other staff and accused Jatin and Abhay had gone
to Naraina Flyover and made efforts to trace out
the slippers of deceased and other articles as
disclosed by accused persons but the same could not
be recovered. Thereafter, we had gone to Amar
Colony, Lajpat Nagar where said Swift Car was left
in the safe custody of HC Devender. Crime team
was called. SI Sanjeev Verma,I/C Crime team along
with his team reached there and inspected the car
and also took the photographs of the same. From
said car, one bandage clip, one bandage, one empty
cartridge case etc were recovered. Empty cartridge
case was lying on the rear floor behind the front
left side. Fired bullet was lying on the space
between two front seats. Clip was over the
dashboard. Bandage was inside the dashboard and
some coins were also found lying on the floor of the
car in front of the rear seat. Three SIMs were also
recovered from said car which were lying in the slot
of front left side door. One separate memo was
prepared with respect to all the said SIMs which is
already Ex.PW25/Z10 and remaining articles were
seized vide memo Ex.PW25/Z9 ”
83. HC Manoj Raghav stepped into the witness box as PW-25 and
deposed that:
“Thereafter, I along with IO and other police
officials and all the three accused had gone to
Prem Bari Pul in TATA 407 bearing Regn. No.
9989. At that time, all the accused were in
muffled face. At the said place, vehicle was
stopped on the pointing out of accused Runeet

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Gulati. I along with IO, accused Runeet and Ct.
Pyare Lal got down from the tempo and accused
Runeet had led us on the left side of the road
towards Kanhiya Nagar side at a distance of
about 100 mtrs from the flyover and pointed out
the place where he had thrown the purse, key of
scooter of deceased Shivam @ Pandey. We made
search of the said place with the help of
torchlight. One leather purse of black color and
one key ring containing two keys were found
lying there which accused Runeet had handed
over to IO. On checking the purse, driving
license of deceased of Shivam and some visiting
cards were found. Same were again kept in the
said purse and IO kept the said purse and key
ring along with keys in a piece of cloth and after
duly sealing with the seal of AS were taken into
possession through seizure memo Ex.PW25/L
which also bears my signatures at point A. Then
we all came back in the tempo and then all the
three accused persons led us at outer ring road
near Haider Pur Water Works Bus Stand, VIPS
Institute. On the pointing out of accused
persons, tempo was stopped and accused
persons had pointed out the place that was the
left side of the road where they had thrown dead
body of Shivam. IO asked public persons to joint
he investigation but none agreed to join us. All
the three accused one by one in sequence of
Runeet, Abhay Dewan and Jatin had pointed out
the exact place where they had thrown the body
of Shivam and also put petrol on the dead body
and set the same on fire. IO prepared separate
pointing out memos in this regard. Same are Ex.
PW25/M1, Ex. PW25/M2 Ex. PW25/M3
respectively. Thereafter, all the three accused
had led us at H. No.C2/16, Sector-15, Rohini,
Delhi. I along with SI Pushpinder, Ct. Pyare

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Lal, IO and accused Abhay Dewan got down
from the tempo and remaining police officials
and other two accused remained in the said
tempo and accused Abhay Dewan had led us at
third floor of his house C2/16, Sector -15,
Rohini, Delhi. Accused Abhay Dewan had led
us in unused bathroom of the said third floor
and had taken out one pistol which he had
hidden inside the cistern in a black color
polythene. IO checked the said pistol and
separated the magazine from said pistol and one
live cartridge was found in it. IO prepared the
sketch memo of the said recovered pistol, live
cartridge and magazine after putting the same on
a plain paper. Same is Ex.PW25/N which also
bears my signatures at point A. IO measured the
size of the said pistol. “Only for USA Joen” was
engraved on the barrel and “Only for Army
Supply Use USA” was engraved on the upper
side of the barrel. IO again put the said
magazine in the aforesaid pistol kept in the same
polythene and covered the same with the piece of
clothe and prepared pullanda. Said live cartridge
was separately kept in a small plastic container
and same was also covered with a piece of cloth
and prepared pullanda. Both the pullandas were
duly sealed with the seal of AS and seal after use
was handed over to me. Both the sealed pullanda
were taken into possession through seizer memo
Ex. PW25/P which bears my signatures at point
A. Thereafter, accused Abhay Dewan had led us
at the second floor of aforesaid house in the
room adjacent to lobby and from the said room,
he took out one blue color jeans and one green
color T-shirt from one cloth bundle (gathari)
and stated that these were the same clothes
which he was wearing at the time of incident. IO
kept said jeans and T-shirt in a piece of cloth

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and after preparing pullanda and sealed with
the seal of AS, after obtaining the same from me
and were taken into possession through seizure
memo Ex.PW25/Q which bears my signatures at
point A and seal after use was again handed
over to me. Accused Abhay Dewan had also
taken out key of Swift car no. DL-2CAN-3335
from the almirah of the said room and handed
over to IO. IO took into possession through
seizure memo Ex. PW25/R which also bears my
signatures at point A. Thereafter, accused Abhay
Dewan had also handed over another key of
Ascent Car bearing no. DL-4CAJ-9666 to IO.
Then accused had led us on the ground floor in
front of his house where he had parked his
Ascent car. IO took into possession the same
through seizure memo Ex. PW25/S which also
bears my signatures at point A. IO instructed Ct.
Sandeep to take the said car to PS. Accused
Abhay Dewan had also pointed out the place in
front of his house where he along with his
associate Runeet had parked Swift car along with
Shivam. IO prepared the pointing out memo in
this regard. Same is Ex.PW25/T which also bears
my signatures at point A. Accused Abhay Dewan
was again taken in said TATA 407 and then
accused Runeet had led us at the aforesaid place
and pointed out the place where they had parked
the Swift Car after putting Shivam on the back
seat of said car. IO prepared pointing out memo
in this regard. Same is Ex.PW25/U which also
bears my signatures at point A.
xxxx xxxx xxxx
We all police officials along with all the three
accused persons reached at KP complex, Pitam
Pura. At the said place, accused Runeet and
Abhay Dewan had pointed out the place which

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was opposite Nursing SewaSadan, near KP
Complex i.e., the place where accused Abhay
Dewan had caused bullet injury to Shivam in
the car. IO prepared separate pointing out
memos in this regard. The same are Ex.PW25/V
in respect of accused Abhay Dewan and
Ex.PW25/W in respect of accused Runeet Gulati
which bears my signatures at point A.
After that, we police officials along with all the
three accused persons had gone to Malka Ganj
Gurudwara, where accused Runeet Gulati and
Abhay Dewan had got down from the TATA 407
and pointed out the place where they had
kidnapped the accused Shivam @ Pandey in the
car. Such pointing out memo is already exhibited
as Ex.PW25/T (Court observation: it seems that
due to some oversight, said pointing out memo
was exhibited wrongly and therefore, in order to
obviate any confusion, this number is not
changed and the pointing out memo prepared at
the instance of accused Abhay Dewan whereby he
had indicated towards the parking of Swift car in
front of his house is now exhibited as
Ex.PW25/T1. Witness has also confirmed the
aforesaid fact and proxy counsel for accused and
accused have also no objection in this regard).
Separate pointing out memo of accused Runeet
was also prepared by the IO. The same is
Ex.PW25/X.
Thereafter, we all along with all the three
accused persons reached at Ring Road, Lajpat
Nagar near double storey market, where at the
instance of accused Jatin and Abhay Dewan, we
stopped our vehicle and both the accused had
led us to the gutter (sewer) and got recovered
one mobile phone claiming that it was of
deceased. Such mobile was lying on a dry place

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within the gutter. It was seized by the IO and a
pullanda was prepared. It was sealed with the
seal of “AS”. Pointing out cum seizure memo is
Ex.PW25/Y which also bears my signatures at
point A. A sketch of the place was also prepared
by the IO.
Court Q: Did you sign that sketch?
Ans: No.
Such sketch is Ex.PW25/Z.
Then, accused Jatin revealed that a short
distance from there, they had washed the car and
had thrown the car seat cover, two head rest and
three shades in drain. A their pointing out, all
the aforesaid articles were also recovered. All
these articles were put in a plastic katta and
were sealed in the similar manner with the seal f
“AS”. Pointing out cum seizure memo
Ex.PW25/Z1 bears my signatures at point A.
Then, accused Abhay and Jatin led us to the
place where they had parked the car after that.
That car i.e., Swift car was also found parked
near DMS booth. It was seized vide pointing out
cum seizure memo Ex.PW25/Z2 which bears my
signatures at point A. HC Devender was left
there to ensure that such Swift car was not
tampered with by anyone. IO was already having
the key of the same as it was got recovered by
accused Abhay Dewan from his house. Car was
opened and checked also and IO wanted the same
to be kept under vigil as he wanted the same to be
examined through forensic experts as there were
some blood spots inside the car.
From there, we went to Naraina Flyover, Ring
Road for recovery of slippers and clothes of
deceased at the instance of accused Abhay and

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Jatin. We searched for those but those articles
could not be recovered either beneath the flyover
or on the flyover. From there, we returned to the
PS.
Q: Whether the accused persons were muffled or
unmuffled?
Ans: They were muffled throughout during
that period.
IO deposited the recovered case property with the
malkhana. Accused persons were put in lock-up.
IO had handed over the seal to me after use and
after the case property was deposited in
malkhana, I returned the seal to IO.
Then, we associated W/Ct Rakhi in further
investigation. I along with IO and Ct.Pyare Lal
and W/Ct Rakhi along with driver, in a gypsy,
went to the house of accused Abhay Dewan at
Sector-15, Rohini. We met accused Mahima
Dewan present in Court(correctly identified) at
said house and IO interrogated her and
thereafter arrested her through said lady
constable. Her personal search memo is Ex.
PW25/Z3 and arrest memo is Ex. PW25/Z4 which
bear my signatures at point A. IO also recorded
disclosure statement of accused Mahima Dewan.
Same is Mark PW25/Z5 (Objected to by learned
defence counsel). Accused Mahima Dewan had
also produced one mobile phone make I phone on
the demand of IO. IO prepared a separate
pullanda of said mobile phone with the seal of
“AS” and seized the same vide memo Ex.
PW25/Z6 which bears my signatures at point A.
On the demand of IO, accused Mahima Dewan
had also taken out one Top and lower which she
was wearing at the time of incident. IO prepared
pullanda of the said recovered Top and lower

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with the seal of “AS” and seized the same vide
memo Ex. PW25/27 which bears my signatures
at point A.
After that, accused Mahima Dewan had led us at
North-Ex Mall, Sector-9, Rohini, where accused
had pointed out the Apollo Pharmacy, from
where, she had purchased the bandage and
Suthol on the said night of incident. IO prepared
pointing out memo in this regard. The same is Ex
PW25/Z8 and bears my signatures at point A.
After that, accused Mahima Dewan led us to
outer Ring Road near VIPS Institute, the place
where they had thrown the dead body. IO
prepared pointing out memo. Then, we came
back to PS and accused Mahima Dewan, who
was in muffled throughout was put in the lock-up
and IO deposited the case property in the
malkhana.
After that, IO had taken out accused Jatin and
Abhay Dewan from the lock-up and I along with
CtPyare Lal with IO, in TATA 407, had gone to
Naraina Flyover and we made efforts to trace out
the clothes and slippers of deceased once again
but the same could not be recovered.
After that, we had gone to Amar Colony, Lajpat
Nagar, where the Swift car was found parked.
HC Devender was present there. Crime team
officials who were already informed, had reached
at the spot and they had inspected the car and
had also taken the photographs of the car. One
clip of bandage, one bandage, one empty
cartridge case, which was found lying on the
middle of both seats, one front pellet, which was
found lying inside the adjacent seat of the driver
of the car and some coins were also recovered.
IO kept the said recovered coins in an empty

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matchbox. The bandage was kept in a piece of
cloth and total five pullandas of the recovered
articles were prepared with the seal of “AS” and
were taken into possession through seizure memo
Ex. PW25/Z9 which bears my signatures at point
A. Three SIMs of mobile phone were also found
lying in the said car. There were kept in a small
plastic container and it was sealed with the seal
of “AS” and was taken into possession vide
memo Ex PW25/Z10 which bears my signatures
at point A. One paper cutter and one water
bottle, on which, blood spot was found, which
were not separately seized and were kept inside
the car for the purpose of FSL inspection. The
crime team officials had thoroughly inspected the
car and then the car was taken to PS with the
help of crane and the same was deposited by the
IO in the malkhana. After that, all the four
accused persons who were muffled, were taken to
Court and produced before the Court. IO
obtained the police custody remand of accused
Jatin and Abhay and remaining two accused
persons were sent to J.C. IO also recorded my
statement.”
84. Keeping in view the testimonies of PW-25 HC Manoj Raghav and
PW-49 Insp Anil Sharma, various material objects were recovered at
the instance of the Appellant/Abhay Dewan, Appellant/ Mahima
Dewan, Appellant/Runeet Gulati Appellant/ Jatin.
a) Recovery Effected at The Instance of Appellant/Abhay Dewan
• Case of the prosecution is that the Appellant/Abhay Dewan led
the police officials to the unused bathroom on the third floor of
his house situated at C2/16, Sector 15, Rohini, Delhi and got
recovered one pistol, along with its magazine and a live cartridge,

CRL.A. 1175/2018 other connected matters Page 78 of 159
which was hidden inside the cistern in a black color polythene
and was seized vide seizure memo Ex.PW25/P.
• He also led them to the room adjacent to the lobby on the second
floor of aforesaid house and got recovered a blue color jeans and
a green color T-shirt from one cloth bundle (gathari) and stated
that these were the same clothes which he was wearing at the
time of the incident, which were seized vide seizure memo
Ex. PW25/Q.
• Further one key ring containing the key of the swift car and the
key of the accent car were recovered from the almirah of the
same room which were seized vide seizure memo Ex. PW25/R
and Ex. PW25/S.
b) Recovery Effected at The Instance of Appellant/ Mahima Dewan
• Case of the prosecution is that Appellant/ Mahima Dewan got
recovered one Top and (Pyjama) which she was wearing at the
time of the incident and the same were seized vide seizure memo
Ex. PW25/Z7. The top and (Pyjama) of the Appellant/Mahima
Dewan were recovered from the Almirah of the second floor of
the H.No. C2/16, Sector 15, Rohini, Delhi and the same were
identified as Ex. P-12 Ex.P-13.
c) Recovery Effected at The Instance of Appellant/Runeet Gulati
• In pursuance to the disclosure statement made by the Appellant
Runeet Gulati, the police party was led to Kanhiya Nagar, Delhi
wherein he pointed out the place where a purse of black color and
one key ring containing two keys were recovered. The driving

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license of the deceased and some visiting cards were also found
in the purse which were seized vide seizure memo Ex. PW25/L.
d) Recovery Effected at The Instance of Appellant/ Jatin
Appellant/Abhay Dewan
• Case of the prosecution is that the Appellant/Abhay Dewan
Appellant/Jatin had led the police officials to the sewer (gutter)
situated at Ring Road, Lajpat Nagar, near double storey market
and got recovered one mobile phone of the deceased which was
seized vide pointing out cum seizure memo Ex.PW25/Y.
• Further they led them to Lajpat Nagar Flyover and then to a park
opposite Evergreen Medicos, wherein Jatin got recovered one
underwear/burmuda from the corner of the park which was kept
beneath the bushes. The blood-stained underwear/burmuda was
seized and sealed vide memo Ex. PW35/B. Further one seat
cover, two head rest covers and three window jaali (shades) were
recovered from the drain and were seized vide pointing out cum
seizure memo Ex. PW25/Z1
• Later on, the Swift car bearing registration no. DL2CAN3335
which was used in the commission of the offence was recovered
at the instance of the Appellant/ Jatin Appellant/Abhay Dewan
in pursuance to their disclosure statements(Ex.PW-25/K2 and
K3) from DMC Booth, opposite H.No.B-140/141, Amar Colony,
Lajpat Nagar-4, Delhi and were seized vide pointing out cum
seizure memo Ex.PW25/Z2
• From the swift car, various articles (one clip of bandage, one
bandage, one empty cartridge case lying in the middle of both

CRL.A. 1175/2018 other connected matters Page 80 of 159
front seats, one front pellet lying inside the adjacent seat of the
driver seat of the car and some coins) were seized vide seizure
memo Ex. PW25/Z9. Three SIM cards were also found lying in
the said car which were seized vide seizure memo
Ex. PW25/Z10 and certain articles (One paper cutter and one
water bottle) on which blood was detected were not separately
seized and were left inside the car for the purpose of FSL
inspection.
85. Learned counsel for the appellants argued extensively to prove that
the recoveries made at the instance of the Appellants are all
fabricated and tampered. We find from the record that the recoveries
were made in the presence of police officials i.e. PW-20, PW-25,
PW-48 as well as PW-49. There is no ambiguity in the arrest memo,
pointing out memo and seizure memo. Testimonies of all the
material police officials are corroborative and highlight the
involvement of the Appellants in the commission of the crime.
86. As far as possession and control of the swift car no. DL-2CAN-3335
which was used in commission of crime is concerned; we deem it
appropriate to rely on the testimony of PW-15 (Ajay Kumar Taneja)
registered owner of the car, which clearly depicts that the alleged car
was in exclusive control and possession of the appellant/Abhay
Dewan. Relevant portion of his testimony reads as under:-
“Abhay Dewan @ Gappy is friend of my son
Gautam Taneja. My Son Gautam Taneja used to
brought the car of Abhay Dewan to take me to the
hospital whenever we needed the same. On

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15.03.2011 I purchased a Maruti Swift Car bearing
no. DL-2CAN-3335 which was financed by HDFC
Bank. My son Gautam used to drive the above said
Swift car. In the month of November-December,
2011 my son Gautam took about two lacs through
Abhay Dewan @ Gappy from his known person on
interest basis. Five six months after taking the loan
the said money were completely refund. On
26.05.2012 Abhay Dewan @ Gabby came at our
house and took away our above said Maruti Swift
car bearing no. D-2CAN-3335 from my son Gautam
but thereafter he did not return our Maruti Swift car
to us and on our demand he made one pretext or the
other and thereafter he did not respond our mobile
phones.”

87. In relation to recovery of articles at the instance of the Appellants,
the Apex Court by way of a catena of judgments has held that the
recovery and the pointing out memo which directly link with the
commission of the alleged offence is relevant and is admissible in the
eyes of law. While dealing with such a case, the Hon’ble Supreme
Court of India in the case of Debapriya Pal vs. State of West Bengal
reported at (2017) 11 SCC 31 has held as under: –
“7. …Under Section 27 of the Evidence Act only so
much of recovery, as a result of the disclosure
statement, which directly pertains to the commission
of crime is relevant. Otherwise, such an evidence is

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barred Under Section 25 of the Evidence Act.
Recovery of laptop does not have any bearing. It is
neither the weapon of crime nor it has any cause of
connection with the commission of crime. The law on
this aspect is succinctly said in the case “Jaffar
Hussain Dastagir v. State of Maharashtra: (1969) 2
SCC 872 in the following manner:
5. Under Section 25 of the Evidence Act no
confession made by an Accused to a police officer
can be admitted in evidence against him. An
exception to this is however provided by Section
26 which makes a confessional statement made
before a Magistrate admissible in evidence
against an Accused notwithstanding the fact that
he was in the custody of the police when he made
the incriminating statement. Section 27 is a
proviso to Section 26 and makes admissible so
much of the statement of the Accused which
leads to the discovery of a fact deposed to by him
and connected with the crime, irrespective of the
question whether it is confessional or otherwise.
The essential ingredient of the Section is that the
information given by the Accused must lead to
the discovery of the fact which is the direct
outcome of such information. Secondly, only
such portion of the information given as is
distinctly connected with the said recovery is
admissible against the accused. Thirdly, the
discovery of the fact must relate to the
commission of some offence.”
(emphasis supplied)
88. The Apex Court in Asar Mohammad and Ors vs. The State of U.P.
reported in AIR 2018 SC 5264, while discussing the admissibility of
the discovery of a fact under Section 27 of the Evidence Act, 1872
had stated that the word “fact” as contemplated in Section 27 of the
Indian Evidence Act is not limited to the “actual physical possession

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of material object”, wherein the same also includes the ‘mental
awareness and the knowledge’ of the accused persons. The germane
portion of the judgment is extracted below:
“14. It is a settled legal position that the facts need not
be self-probatory and the word “fact” as
contemplated in Section 27 of the Evidence Act is not
limited to “actual physical material object”. The
discovery of fact arises by reason of the fact that the
information given by the accused exhibited the
knowledge or the mental awareness of the informant
as to its existence at a particular place. It includes a
discovery of an object, the place from which it is
produced and the knowledge of the accused as to its
existence. It will be useful to advert to the exposition
in the case of Vasanta Sampat Dupare v. State of
Maharashtra22, in particular, paragraphs 23 to 29
thereof. The same read thus:
“23. While accepting or rejecting the factors
of discovery, certain principles are to be kept
in mind. The Privy Council in Pulukuri
Kotayya v. King Emperor23 has held thus:
(IA p. 77)
“… it is fallacious to treat the ‘fact
discovered’ within the section as equivalent
to the object produced; the fact discovered
embraces the place from which the object is
produced and the knowledge of the accused
as to this, and the information given must
relate distinctly to this fact. Information as to
past user, or the past history, of the object
produced is not related to its discovery in the
setting in which it is discovered. Information
supplied by a person in custody that ‘I will
produce a knife concealed in the roof of my
house’ does not lead to the discovery of a
knife; knives were discovered many years
ago. It leads to the discovery of the fact that

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a knife is concealed in the house of the
informant to his knowledge, and if the knife
is proved to have been used in the
commission of the offence, the fact
discovered is very relevant. But if to the
statement the words be added ‘with which I
stabbed A’, these words are inadmissible
since they do not relate to the discovery of the
knife in the house of the informant.”
24. In Mohd. Inayatullah v. State of
Maharashtra24, while dealing with the ambit
and scope of Section 27 of the Evidence Act,
the Court held that: (SCC pp. 831-32, paras
11-13)
“11. Although the interpretation and scope
of Section 27 has been the subject of
several authoritative pronouncements, its
application to concrete cases is not always
free from difficulty. It will therefore be
worthwhile at the outset, to have a short
and swift glance at the section and be
reminded of its requirements. The section
says:
’27. How much of information received
from accused may be proved.–
Provided that, when any fact is deposed
to as discovered in consequence of
information received from a person
accused of any offence, in the custody of
a police officer, so much of such
information, whether it amounts to a
confession or not, as relates distinctly to
the fact thereby discovered, may be
proved.’
12. The expression ‘provided that’ together
with the phrase ‘whether it amounts to a
confession or not’ show that the section is
in the nature of an exception to the

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preceding provisions particularly Sections
25 and 26. It is not necessary in this case
to consider if this section qualifies, to any
extent, Section 24, also. It will be seen that
the first condition necessary for bringing
this section into operation is the discovery
of a fact, albeit a relevant fact, in
consequence of the information received
from a person accused of an offence. The
second is that the discovery of such fact
must be deposed to. The third is that at the
time of the receipt of the information the
accused must be in police custody. The
last but the most important condition is
that only ‘so much of the information’ as
relates distinctly to the fact thereby
discovered is admissible. The rest of the
information has to be excluded. The word
‘distinctly’ means ‘directly’, ‘indubitably’,
‘strictly’, ‘unmistakably’. The word has
been advisedly used to limit and define the
scope of the provable information. The
phrase ‘distinctly relates to the fact thereby
discovered’ is the linchpin of the provision.
This phrase refers to that part of the
information supplied by the accused which
is the direct and immediate cause of the
discovery. The reason behind this partial
lifting of the ban against confessions and
statements made to the police, is that if a
fact is actually discovered in consequence
of information given by the accused, it
affords some guarantee of truth of that
part, and that part only, of the information
which was the clear, immediate and
proximate cause of the discovery. No such
guarantee or assurance attaches to the rest

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of the statement which may be indirectly or
remotely related to the fact discovered.
13. At one time it was held that the
expression ‘fact discovered’ in the section
is restricted to a physical or material fact
which can be perceived by the senses, and
that it does not include a mental fact (see
Sukhan v. Emperor25; Ganu Chandra
Kashid v. Emperor26). Now it is fairly
settled that the expression ‘fact
discovered’ includes not only the physical
object produced, but also the place from
which it is produced and the knowledge of
the accused as to this (see Pulukuri
Kotayya v. King Emperor27; Udai Bhan v.
State of U.P.28).”(emphasis in original)
25. In Aftab Ahmad Anasari v. State of
Uttaranchal29 after referring to the decision in
Pulukuri Kotayya30, the Court adverted to seizure
of clothes of the deceased which were concealed
by the accused. In that context, the Court opined
that (Aftab Ahmad Anasari case, SCC p. 596, para
40)
“40. … the part of the disclosure statement,
namely, that the Appellant was ready to show
the place where he had concealed the clothes
of the deceased is clearly admissible under
Section 27 of the Evidence Act because the
same relates distinctly to the discovery of the
clothes of the deceased from that very place.
The contention that even if it is assumed for the
sake of argument that the clothes of the
deceased were recovered from the house of the
sister of the Appellant pursuant to the
voluntary disclosure statement made by the
Appellant, the prosecution has failed to prove
that the clothes so recovered belonged to the
deceased and therefore, the recovery of the

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clothes should not be treated as an
incriminating circumstance, is devoid of
merits.”
26. In State of Maharashtra v. Damu31 it has been
held as follows: (SCC p.283, para 35)
“35. … It is now well settled that recovery of
an object is not discovery of a fact as
envisaged in [Section 27 of the Evidence Act,
1872]. The decision of the Privy Council in
Pulukuri Kotayya v. King Emperor32 is the
most quoted authority for supporting the
interpretation that the ‘fact discovered’
envisaged in the section embraces the place
from which the object was produced, the
knowledge of the accused as to it, but the
information given must relate distinctly to that
effect.”
The similar principle has been laid down in
State of Maharashtra v. Suresh33, State of
Punjab v. Gurnam Kaur34, Aftab Ahmad
Anasari v. State of Uttaranchal35, Bhagwan
Dass v. State (NCT of Delhi)36, Manu Sharma
v. State (NCT of Delhi)37 and Rumi Bora
Dutta v. State of Assam38.
27. In the case at hand, as is perceptible, the
recovery had taken place when the Appellant was
accused of an offence, he was in custody of a
police officer, the recovery had taken place in
consequence of information furnished by him
and the panch witnesses have supported the
seizure and nothing has been brought on record
to discredit their testimony.
28. Additionally, another aspect can also be taken
note of. The fact that the Appellant had led the
police officer to find out the spot where the crime
was committed, and the tap where he washed the
clothes eloquently speak of his conduct as the
same is admissible in evidence to establish his

CRL.A. 1175/2018 other connected matters Page 88 of 159
conduct. In this context we may refer with profit to
the authority in Prakash Chand v. State (Delhi
Admn.)39 wherein the Court after referring to the
decision in H.P. Admn. v. Om Prakash40 held
thus: (Prakash Chand case, SCC p.95, para 8)
“8. … There is a clear distinction between the
conduct of a person against whom an offence
is alleged, which is admissible under Section
8 of the Evidence Act, if such conduct is
influenced by any fact in issue or relevant
fact and the statement made to a police officer
in the course of an investigation which is hit
by Section 162 of the Criminal Procedure
Code. What is excluded by Section 162 of the
Criminal Procedure Code is the statement
made to a police officer in the course of
investigation and not the evidence relating to
the conduct of an accused person (not
amounting to a statement) when confronted or
questioned by a police officer during the
course of an investigation. For example, the
evidence of the circumstance, simpliciter, that
an accused person led a police officer and
pointed out the place where stolen articles or
weapons which might have been used in the
commission of the offence were found hidden,
would be admissible as conduct, under Section
8 of the Evidence Act, irrespective of whether
any statement by the accused
contemporaneously with or antecedent to such
conduct falls within the purview of Section 27
of the Evidence Act.”
29. In A.N. Venkatesh v. State of Karnataka41 it
has been ruled that: (SCC p.721, para 9)
“9. By virtue of Section 8 of the Evidence Act,
the conduct of the accused person is relevant, if
such conduct influences or is influenced by any
fact in issue or relevant fact. The evidence of

CRL.A. 1175/2018 other connected matters Page 89 of 159
the circumstance, simpliciter, that the accused
pointed out to the police officer, the place
where the dead body of the kidnapped boy was
found and on their pointing out the body was
exhumed, would be admissible as conduct
under Section 8 irrespective of the fact whether
the statement made by the accused
contemporaneously with or antecedent to such
conduct falls within the purview of Section 27
or not as held by this Court in Prakash Chand
v. State (Delhi Admn.). Even if we hold that the
disclosure statement made by the Appellants-
accused (Exts. P-15 and P-16) is not
admissible under Section 27 of the Evidence
Act, still it is relevant under Section 8. The
evidence of the investigating officer and PWs 1,
2, 7 and PW 4 the spot mahazar witness that the
accused had taken them to the spot and pointed
out the place where the dead body was buried,
is an admissible piece of evidence under Section
8 as the conduct of the accused. Presence of A-
1 and A-2 at a place where ransom demand
was to be fulfilled and their action of fleeing
on spotting the police party is a relevant
circumstance and are admissible under Section
8 of the Evidence Act.” (emphasis supplied)
15. Applying the principle expounded by this Court,
we have no hesitation in affirming the finding of
guilt recorded against Appellant No. 1 – Asar
Mohammed.”
(emphasis supplied)

89. Keeping in view the facts of the present case and applying the
principles laid down by the Hon’ble Apex Court as well as on the
basis of corroborative testimonies of the material police witnesses,

CRL.A. 1175/2018 other connected matters Page 90 of 159
we find no cogent reason to disbelieve the recoveries made by the
Investigating team at the instance of the Appellants.
90. The testimonies of the prosecution witnesses in relation to the
recoveries made pursuant to the disclosure statement are consistent,
trustworthy and corroborative; as such the ground raised by learned
counsel for the Appellants in relation to inadmissibility of the
recoveries made at the instance of the Appellants holds no ground.
a) Effect Of No Independent Witness Present At The Time Of
Recovery
91. It was further contended by learned counsel for the appellants that
the recoveries which were effected in the presence of police officers
are unworthy of acceptance and are inadmissible because the same
do not find support corroboration with the presence of any
independent witness. In support of their contentions, learned counsel
for the Appellants relied upon Akhilesh Kumar Anr v. State, 2016
SCC online All 253.
92. Learned APP for the State, strongly refuted the submissions made by
the learned counsel for the Appellant and submitted that there is no
cogent reason to doubt the aforementioned recoveries on the ground
that the same are effected in the presence of police witnesses and no
independent witness has attested the same. To substantiate her
arguments learned APP for State relied upon (State Govt of NCT of
Delhi Vs. Sunil Anr, (2001) 1 SCC 652; Gian Chand ors vs.
State of Haryana, JT 2013(10) SC 515).

CRL.A. 1175/2018 other connected matters Page 91 of 159
93. Subsequently there is no good reason for this Court to disbelieve the
said recoveries merely because the recovery witnesses PW-25(HC
Manoj Raghav) and PW-49(Insp Vijay Kumar) happen to be police
officers. In this context, we may profitably refer to the case of
Baldev Singh vs. State of Haryana reported as (2015) 17 SCC 554,
wherein the Hon’ble Supreme Court held as follows: –
“10. There is no legal proposition that evidence of
police officials unless supported by independent
evidence is unworthy of acceptance. Evidence of
police witnesses cannot be discarded merely on the
ground that they belong to police force and
interested in the investigation and their desire to see
the success of the case. Prudence however requires
that the evidence of police officials who are interested
in the outcome of the result of the case needs to be
carefully scrutinised and independently appreciated.
Mere fact that they are police officials does not by
itself give rise to any doubt about their
creditworthiness.
11. Observing that no infirmity is attached to the
testimony of police officials merely because they
belong to police force and that conviction can be
based on the testimony of police officials in Girja
Prasad v. State of M.P., (2007) 7 SCC 625, it was
held as under:-
“25. In our judgment, the above proposition does
not lay down correct law on the point. It is well
settled that credibility of witness has to be tested
on the touchstone of truthfulness and
trustworthiness. It is quite possible that in a given
case, a Court of law may not base conviction
solely on the evidence of the complainant or a
police official but it is not the law that police
witnesses should not be relied upon and their
evidence cannot be accepted unless it is

CRL.A. 1175/2018 other connected matters Page 92 of 159
corroborated in material particulars by other
independent evidence. The presumption that every
person acts honestly applies as much in favour of
a police official as any other person. No infirmity
attaches to the testimony of police officials
merely because they belong to police force.
There is no rule of law which lays down that no
conviction can be recorded on the testimony of
police officials even if such evidence is otherwise
reliable and trustworthy. The rule of prudence
may require more careful scrutiny of their
evidence. But, if the Court is convinced that what
was stated by a witness has a ring of truth,
conviction can be based on such evidence.
26. It is not necessary to refer to various decisions
on the point. We may, however, state that before
more than half-a-century, in Aher Raja Khima v.
State of Saurashtra AIR 1956 SC 217,
Venkatarama Ayyar, J. stated:
“40. … The presumption that a person acts
honestly applies as much in favour of a police
officer as of other persons, and it is not
judicial approach to distrust and suspect him
without good grounds therefore. Such an
attitude could do neither credit to the
magistracy nor good to the public. It can only
run down the prestige of the police
administration.’
27. In Tahir v. State (Delhi) (1996) 3 SCC 338,
dealing with a similar question, Dr A.S. Anand, J.

(as His Lordship then was) stated:

‘6. … Where the evidence of the police
officials, after careful scrutiny, inspires
confidence and is found to be trustworthy and
reliable, it can form the basis of conviction
and the absence of some independent witness
of the locality to lend corroboration to their

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evidence, does not in any way affect the
creditworthiness of the prosecution case.”

(emphasis added)

94. The aforesaid principle was reiterated by the Hon’ble Apex Court in
a very recent judgment titled as Kripal Singh v. the State of
Rajasthan reported in (2019) 5 SCC 646. The germane portion of
the judgment is extracted below:

“17. The submission of the learned senior counsel for
the Appellant that recovery has not been proved by any
independent witness is of no substance for the reason
that in the absence of independent witness to support
the recovery in substance cannot be ignored unless
proved to the contrary. There is no such legal
proposition that the evidence of police officials unless
supported by independent witness is unworthy of
acceptance or the evidence of police officials can be
out rightly disregarded.”

(emphasis supplied)

95. We are thus of the opinion that in the instant case, non-joining of any
public witness at the time of recovering the material objects is not a
sufficient ground to doubt the truthfulness of the testimonies of the
police witnesses on the above aspect or discard their evidence
completely. Their testimony inspires confidence and the conviction
of the Appellants in the present case is not based solely on the

CRL.A. 1175/2018 other connected matters Page 94 of 159
testimonies of police witnesses as the same find’s corroboration from
the other independent sources as well.

b) Defective Investigation

96. Another argument raised by the Appellants is that the police while
conducting the investigation failed to follow the procedure
prescribed under the Code of Criminal Procedure and further
contended that the recoveries effected in the presence of police
officers are unworthy of acceptance and are inadmissible. Relying on
the following grounds, the learned counsel for the Appellant
contended that the investigation conducted in the present case was
not fair transparent:

a) No information was given to the local police nor were they
summoned to participate at the time, the recovery of articles from
the areas (Amar Colony, Rohini, Prem Bari) was effected.
Importantly when, the investigating officer had no territorial
jurisdiction.

b) The investigating officer made no endeavor to take the
photographs and videographs of the alleged recoveries and no
genuine and sincere efforts were made by the investigating officer
to validate the recoveries with the presence of any
Independent/Public witnesses.

c) Further no site plan of the place of recovery was prepared and the
only site plan available on record was that of the place from
where the dead body was recovered vide EX.PW4/A and place
from where the mobile phone of the deceased was recovered vide

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EX PW25/Z and for validating the said recoveries no independent
witness had joined the recovery proceedings.

d) As per the information recorded in the PCR form Ex. PW-8/A, the
body of the deceased was thrown out from car
bearing registration number 4654, but this aspect was not
investigated in depth. The car involved in the crime was actually
found to be swift car bearing registration no.3335.

97. A fair investigation is a sine qua non of Article 21 of the
Constitution of India, wherein an investigation has to be unbiased,
and without any prejudice for or against the accused because if the
same is partial and unfair then the whole criminal justice system will
be at stake and the same will erode the confidence of the common
citizen. To discuss the law with regard to defective investigation,
reliance can be placed on State of Karnataka v. K. Yarappa Reddy
reported in 1999 8 SCC 715 wherein, Supreme Court occasioned to
consider the similar question of defective investigation and observed
that criminal justice should not be made a casualty for the wrongs
committed by the investigating officers. Supreme Court, in
Paragraph 19, held as follows:

“19. But can the above finding (that the station house
diary is not genuine) have any inevitable bearing on
the other evidence in this case? If the other evidence,
on scrutiny, is found credible and acceptable, should
the Court be influenced by the machinations
demonstrated by the Investigating Officer in
conducting investigation or in preparing the records
so unscrupulously? It can be a guiding principle that
as investigation is not the solitary area for judicial

CRL.A. 1175/2018 other connected matters Page 96 of 159
scrutiny in a criminal trial, the conclusion of the
Court in the case cannot be allowed to depend solely
on the probity of investigation. It is well-nigh settled
that even if the investigation is illegal or even
suspicious the rest of the evidence must be
scrutinised independently of the impact of it.
Otherwise the criminal trial will plummet to the level
of the investigating officers ruling the roost. The
Court must have predominance and pre-eminence in
criminal trials over the action taken by the
investigation officers. Criminal Justice should not be
made a casualty for the wrongs committed by the
investigating officers in the case. In other words, if
the Court is convinced that the testimony of a witness
to the occurrence is true the Court is free to act on it
albeit the investigating officer’s suspicious role in the
case.”

(emphasis supplied)

98. The Apex Court in the case of Ram Bali v. State of Uttar Pradesh
reported in (2004) 10 SCC 598, reiterating the judgment of Karnel
Singh v. State of M.P reported in (1995) 5 SCC 518 had observed as
under: –

“in case of defective investigation the Court has to be
circumspect while evaluating the evidence. But it
would not be right in acquitting an accused person
solely on account of the defect; to do so would
tantamount to playing into the hands of the
investigation officer if the investigation is designedly
defective”

(emphasis supplied)

CRL.A. 1175/2018 other connected matters Page 97 of 159

99. As a general principle, it can be stated that error, illegality or defect
in investigation cannot have any impact unless miscarriage of justice
is brought about or serious prejudice is caused to the Appellant. If the
prosecution case is established by the evidence adduced, any failure
or omission on the part of the Investigating Officer cannot render the
case of the prosecution doubtful. If direct evidence is credible then
failure, defect or negligence in investigation cannot adversely affect
the prosecution case, though the Court should be circumspect in
evaluating the evidence. Hence, the plea of the counsel for the
Appellant is bereft of merit inasmuch as no defective investigation
has occurred in the present case.

CCTV Footage

100. Learned counsel for the Appellants vehemently argued that the
involvement of the Appellant/Mahima in the alleged offence of
kidnapping murder of the deceased Shivam has not been proved
by the prosecution. It was further emphasized that the best case of
the prosecution can be that the Appellant/Mahima Dewan was hand
in glove with her husband as he had asked her to give him the keys
of their Accent Car bearing registration no. DL-4CAJ-9666, and
accompanied him to Faridabad after leaving Runeet Gulati with the
deceased in Swift Car Registration no. DL-2CAN-3335 and after
picking up Jatin from Faridabad, purchased bandages and Suthol
liquid from Apollo Pharmacy at Sector-9, Rohini, Delhi.

101. Herein it is relevant to highlight that the prosecution has placed on
record the CCTV footage of Apollo pharmacy situated at, A-16,

CRL.A. 1175/2018 other connected matters Page 98 of 159
Sector 9, Rohini, Delhi which shows that Appellant/Mahima Dewan
in the intervening night of 17.07.2012 and 18.07.2012 had entered
the said pharmacy at 2:43:30 hrs and had purchased certain items
(bandages and Suthol liquid) and left at 2:46:29 hrs. The aforesaid
fact is also corroborated by the testimony of Varun Kumar/PW-40
(Pharmacist) who was on duty at the said outlet on the night of
17.07.2012 and 18.07.2012 and he also correctly identified
Appellant/Mahima Dewan. Varun Kumar stepped into the witness
box as PW-40 and deposed that: –

“I was on duty at said outlet on the night interviewing
17.07.2012 and 18.07.2012. One lady customer had
come at about 2:43 am. She purchased one liquid
suthol and four bandates. She looked to be in hurry
and was also looking outside. She brought the same
and paid total sum of Rs. 50 and left the shop. She
must have remained in the shop for approximately
Four minutes.

X X X
I can identify the Lady customer. She is present in
Court(correctly identified)
(At this stage CD Ex.P-11 has been run and witness
states that it contains the footage of same lady
customer i.e. accused Mahima Dewan)”

102. Subsequently, it is relevant to highlight that during the recording of
statement, of Appellant/Mahima Dewan, under Section 313 Cr. P.C,

CRL.A. 1175/2018 other connected matters Page 99 of 159
she was questioned about her presence at the chemist shop during
odd hours on the intervening night of 17.07.2012 and 18.07.2012 but
she failed to offer any plausible or cogent explanation and chose to
remain silent in order to avoid the incriminating evidence placed by
the prosecution against her, hence an adverse inference against her
can be drawn. Relevant portion of her statement under Section 313
Cr. P.C. reads as under:

Q98. Further that on the intervening night of
17.07.2012 and 18.07.2012 PW40 Varun Kumar
was working as Pharmacist at Apollo Pharmacy, A-
16, Sector – 9, Rohini, Delhi and your co-accused
Mahima had come at about 2.43 AM and had
purchased one liquid Suthol and four bandages
and your co-accused Mahima was looking to be in
hurry and was also looking outside the said outlet
and your co-accused Mahima paid Rs.50/- for such
articles. What do you have to say?

Ans. I do not know.

Q101. Further that on 07.09.2012 PW49 Insp. Anil
Sharma along with PW46 HC Baljeet visited Apollo
Pharmacy, North-Ex Mall, Sector -9, Rohini and met
PW38 Sunder Singh and PW40 Varun Kumar and
PW38 Sunder Singh had given CCTV footage which
was played there and PW40 Varun Kumar had also
seen such footage and identified your co-accused
Mahima in such footage claiming that she was the
one who had purchased four bandages and one
Suthol spray from their pharmacy on the night
intervening 17.07.2012 18.07.2012 and PW40
Varun Kumar was also shown dossier of you co-
accused Mahima and he identified that the CCTV
footage contained image of your co-accused
Mahima. CD of such footage was taken into

CRL.A. 1175/2018 other connected matters Page 100 of 159
possession vide memo Ex.PW38/A. CD is Ex. P11.
What do you have to say?

Ans. I do not know.

103. In the case of Raj Kumar vs. State of M.P. reported in 2014 Cri. LJ
1943, the Apex Court observed that where the accused fails to give
any explanation in his statement recorded under Section 313 Cr.P.C.
regarding any incriminating material that has been produced against
him, the Court will be entitled to draw such adverse inference against
the accused as may be permissible in law. Relevant Para of the said
judgment is reproduced as under: –

“The accused has a duty to furnish an explanation in
his statement Under Section 313 Code of Criminal
Procedure regarding any incriminating material that
has been produced against him. If the accused has
been given the freedom to remain silent during the
investigation as well as before the Court, then the
accused may choose to maintain silence or even
remain in complete denial when his statement Under
Section 313 Code of Criminal Procedure is being
recorded. However, in such an event, the Court
would be entitled to draw an inference, including
such adverse inference against the accused as may
be permissible in accordance with law.”

104. As discussed earlier, Section 313 Cr.P.C. provides direct interaction
of the Court with an accused to personally enable him/her to explain

CRL.A. 1175/2018 other connected matters Page 101 of 159
each and every incriminating evidence and circumstances appearing
against him/her. Though every accused has a right to keep silent or
deny the incriminating circumstance emerged against him/her in
evidence, but in such eventualities an adverse inference could be
drawn against Appellant/Mahima Dewan because despite
opportunity provided to her, she failed to raise any defence in her
behalf.

Electronic Evidence Relevance Of Producing In The Present
Case A Certificate Under Section 65B Of The Indian Evidence
Act

105. Further, during the course of argument, an apprehension was
expressed by the learned counsel for the Appellants, that the
Electronic Evidence on record (Compact Disc) is not admissible in
the eyes of law because the certificate under Section 65B of the
Indian Evidence Act was not handed over by PW-39 KK Jha
(Manager Information technology, Apollo Pharmacy) at the time of
handing over the CD to the investigating officer PW-49 Insp. Anil
Sharma on 07.09.2012.

106. Section 65-B of the Indian Evidence Act being an important aspect,
deals with the admissibility of the electronic record and the purpose
of these provisions is to sanctify the source and authenticity of the
secondary evidence, generated by a computer. While discussing the
credibility of electronic evidence and the relevance of producing the
certificate under Section 65B of the Indian Evidence Act, our view is
fortified by the recent judgment of the Hon’ble Apex Court, in the

CRL.A. 1175/2018 other connected matters Page 102 of 159
case of Shafhi Mohammad V. The State of Himachal Pradesh
reported at (2018) 2 SCC 801. The germane portion of the judgment
is extracted below:

“(7) Though in view of Three-Judge Bench
judgments in Tomaso Bruno and Ram Singh
(supra), it can be safely held that electronic
evidence is admissible and provisions under
Sections 65A and 65B of the Evidence Act are by
way of a clarification and are procedural
provisions. If the electronic evidence is authentic
and relevant the same can certainly be admitted
subject to the Court being satisfied about its
authenticity and procedure for its admissibility may
depend on fact situation such as whether the person
producing such evidence is in a position to furnish
certificate under Section 65B(h).

(8) Sections 65A and 65B of the Evidence Act, 1872
cannot be held to be a complete code on the subject.
In Anvar P.V. (supra), this Court in para 24
clarified that primary evidence of electronic record
was not covered under Sections 65A and 65B of
the Evidence Act. Primary evidence is the
document produced before Court and the
expression “document” is defined in Section 3 of
the Evidence Act to mean any matter expressed or
described upon any substance by means of letters,
figures or marks, or by more than one of those
means, intended to be used, or which may be used,
for the purpose of recording that matter.
(9). The term “electronic record” is defined in
Section 2(t) of the Information Technology Act,
2000 as follows:

‘Electronic record” means data, record or
data generated, image or sound stored,
received or sent in an electronic form or
micro film or computer generated micro
fiche.’

CRL.A. 1175/2018 other connected matters Page 103 of 159
(10). Expression “data” is defined in Section 2(o)
of the Information Technology Act as follows.

“Data” means a representation of information,
knowledge, facts, concepts or instructions
which are being prepared or have been
prepared in a formalised manner, and is
intended to be processed, is being processed or
has been processed in a computer system or
computer network, and may be in any form
(including computer printouts magnetic or
optical storage media, punched cards,
punched tapes) or stored internally in the
memory of the computer’
(11). The applicability of procedural requirement
under Section 65B(4) of the Evidence Act of
furnishing certificate is to be applied only when
such electronic evidence is produced by a person
who is in a position to produce such certificate
being in control of the said device and not of the
opposite party. In a case where electronic evidence
is produced by a party who is not in possession of a
device, applicability of Sections 63 and 65 of the
Evidence Act cannot be held to be excluded. In such
case, procedure under the said Sections can
certainly be invoked. If this is not so permitted, it
will be denial of justice to the person who is in
possession of authentic evidence/witness but on
account of manner of proving, such document is
kept out of consideration by the Court in absence of
certificate under Section 65B(4) of the Evidence
Act, which party producing cannot possibly secure.
Thus, requirement of certificate under Section
65B(h) is not always mandatory.

12. Accordingly, we clarify the legal position on the
subject on the admissibility of the electronic
evidence, especially by a party who is not in
possession of device from which the document is
produced. Such party cannot be required to produce

CRL.A. 1175/2018 other connected matters Page 104 of 159
certificate under Section 65B (4) of the Evidence
Act. The applicability of requirement of certificate
being procedural can be relaxed by Court
wherever interest of justice so justifies.”

(emphasis supplied)

107. From the above extracted portion of the judgment of the Hon’ble
Supreme Court, it is evidently established that the requirement of
producing the certificate under Section 65B of the Indian Evidence
Act is a procedural aspect and the requirement of its production can
be relaxed whenever required and justified, in the interest of justice.

In any event in the present case certificate under Section 65B was
produced. Therefore, the argument raised by Learned Counsel for the
Appellants that the aforesaid CD is not admissible as the same was
not supported by a certificate under Section 65B of the Indian
Evidence Act, holds no ground.

108. Keeping in view the facts of the present case and applying the
principles laid down by the Hon’ble Apex Court, the Compact Disc
(CD) exhibited by the prosecution was perused in the Court room
and as per the footage face of Appellant/Mahima Dewan was clearly
visible in Ex.P11, which eventually proves that appellant/Mahima
Dewan had purchased medicine/Bandages at about 2:45 am on
18.07.2012.

Call Details Record

109. As per the case of the prosecution, on 17.07.2012 at about 11:00
p.m., Appellant/Abhay Dewan and Appellant/Runeet Gulati, who
were in white color Swift car met the deceased and his friend
PW19/Vishal Verma at Gurudwara Chowk, Malka Ganj, Delhi.

CRL.A. 1175/2018 other connected matters Page 105 of 159

Appellant/Runeet Gulati insisted the deceased to talk in the absence
of PW19/ Vishal Verma and accordingly the deceased dropped
Vishal at his house and told him that he was going to meet
Appellant/Runeet Gulati. Thereafter, none had seen the deceased and
his dead body was found on 18.07.2019 at about 4:00 a.m.

110. Admittedly, mobile phone Nos. 9999994129, 9811149379 and
9716444448 were issued in the name of the Appellant/Abhay Dewan,
however, mobile phone No. 9811149379 was used by his wife i.e.
Appellant/Mahima Dewan. The prosecution has been able to bring on
record that mobile No. 9999294987 was issued in the name of Seema,
mother of Appellant/Runeet Gulati. DW-4 during cross examination
deposed that “Accused Runeet Gulati was carrying his mobile phone
having mobile No. 9999297987 during stay at my home on
17.07.2012.”

111. As far as mobile phone No. 9990626272 used by the Appellant/Jatin is
concerned, Appellant/Abhay Dewan, admitted in his statement
recorded under Section 313 of Code of Criminal Procedure that mobile
phone of Appellant/Jatin was seized by the police officials in his
presence vide seizure memo Ex.PW25/J. The said seizure memo
depicts the IMEI of the phone as 357125041750930 and CDR of
mobile phone number Ex.PW6/C reveals that the mobile phone No.
9990626272 was also being used in the same mobile set.

112. The prosecution has been able to prove the CDR (Ex.PW2/C) of
mobile phone No. 9999994129 being used by the Appellant/Abhay
Dewan and perusal of the said CDR (Ex.PW2/C) reveals that
Appellant/Abhay Dewan was in constant touch with his wife

CRL.A. 1175/2018 other connected matters Page 106 of 159
Appellant/Mahima Dewan through his mobile phone and made about
fifteen calls within an hour i.e. between 11:30:45 Hrs. (17.07.2012) to
00:27:20 Hrs. (18.07.2012) having location at Sector-15, Rohini,
Delhi. The relevant extract of the Ex.PW2/C showing communication
between mobile No. 9999994129 (mobile of Appellant/ Abhay
Dewan) and mobile No. 9811149379 (mobile No. of
Appellant/Mahima Dewan) from 23:30:45 Hrs. (17.07.2012) to
00:27:20 (18.07.2102) is as under:

A Number B Number Date Time Location
(Hrs.)
9811149379 9999994129 17.07.2012 23:30:45 Sector-15,
Rohini, Delhi
9811149379 9999994129 17.07.2012 23:31:09 Sector-15,
Rohini, Delhi
9999994129 9811149379 17.07.2012 23:31:19 Sector-15,
Rohini, Delhi
9811149379 9999994129 17.07.2012 23:32:48 Sector-15,
Rohini, Delhi
9811149379 9999994129 17.07.2012 23:37:37 Sector-15,
Rohini, Delhi
9811149379 9999994129 17.07.2012 23:38:28 Sector-15,
Rohini, Delhi
9811149379 9999994129 17.07.2012 23:43:29 Sector-15,
Rohini, Delhi
9811149379 9999994129 17.07.2012 23:46:03 Sector-15,
Rohini, Delhi
9811149379 9999994129 18.07.2012 00:12:07 Sector-15,
Rohini, Delhi

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9811149379 9999994129 18.07.2012 00:17:21 Sector-15,
Rohini, Delhi
9811149379 9999994129 18.07.2012 00:18:34 Sector-15,
Rohini, Delhi
9811149379 9999994129 18.07.2012 00:19:51 Sector-15,
Rohini, Delhi
9811149379 9999994129 18.07.2012 00:21:25 Sector-15,
Rohini, Delhi
9999994129 9811149379 18.07.2012 00:26:49 Sector-15,
Rohini, Delhi
9999994129 9811149379 18.07.2012 00:27:20 Sector-15,
Rohini, Delhi

113. Admittedly, both the Appellants (Abhay Dewan Mahima Dewan)
were residing at Sector-15, Rohini, Delhi, wherein they failed to
tender any plausible reply as to what made them contact each other
so frequently within such a short span of time. Further, perusal of the
CDR (Ex.PW2/C) reveal that mobile Nos. 9999994129 and
9716444448 (both registered in the name of the Appellant/Abhay
Dewan) were in constant touch on 18.07.2012 from 00:40:24 hrs. to
02:31:00 hrs. as per details given below:

A Number B Number Date Time Location
(Hrs.)
9999994129 9716444448 18.07.2012 00:40:24 Badli, Delhi

9999994129 9716444448 18.07.2012 00:41:32 Bhalswa Dairy,
Delhi
9999994129 9716444448 18.07.2012 00:52:43 Majnu Ka Tila,
Delhi

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9999994129 9716444448 18.07.2012 01:06:49 DND Flyover

9716444448 9999994129 18.07.2012 01:27:32 Badarpur,
Delhi
9716444448 9999994129 18.07.2012 01:31:36 Faridabad,
Sector-27
9999994129 9716444448 18.07.2012 01:36:26 Faridabad,
Sector-27
9716444448 9999994129 18.07.2012 01:42:14 Faridabad,
Sector-28
9999994129 9716444448 18.07.2012 01:51:44 FBD Sari
Chowk
9716444448 9999994129 18.07.2012 01:54:17 FBD Sari
Chowk

9716444448 9999994129 18.07.2012 01:55:39 FBD Sari
Chowk

9716444448 9999994129 18.07.2012 01:58:18 FBD Sari
Chowk

9716444448 9999994129 18.07.2012 01:59:38 FBD Sector 27
Market
9716444448 9999994129 18.07.2012 02:03:34 SD MCYE
Airtel
9716444448 9999994129 18.07.2012 02:09:54 New Friends
Colony
9716444448 9999994129 18.07.2012 02:19:05 Gole Market

9716444448 9999994129 18.07.2012 02:22:18 SP Mukherjee
Market
9716444448 9999994129 18.07.2012 02:27:06 Ganeshpura

9716444448 9999994129 18.07.2012 02:31:10 City Park
Hotel

CRL.A. 1175/2018 other connected matters Page 109 of 159

114. The CDR (Ex.PW2/C) further reveals that the location of mobile No.
9999994129 (mobile of Appellant/Abhay Dewan) kept on changing
from Delhi at 00:40:24 hrs. (18.07.2012) to Faridabad Sector – 37
Market (01:59:38 hrs) which returned to Pitam Pura, Delhi at
02:34:14 Hrs. Thereafter, the said mobile phone was switched off.
Appellant/Abhay Dewan failed to tender any plausible reply as to
how his phone as per the CDR was in Faridabad. Further, a joint
reading of the CDR Ex.PW2/C of mobile No. 9999994129 and CDR
Ex.PW6/C of mobile No. 9990626272 reveals that the location of
both mobiles was same i.e. Sector-21, Faridabad at 01:37:15
(18.07.2012). The aforesaid call detail records corroborate and
strengthen the story set up by the prosecution that Appellants (Abhay
Dewan Mahima Dewan) accompanied each other to Faridabad and
after picking up Jatin from Faridabad, around 01:30 am, Mahima
purchased bandages and Suthol liquid from Apollo Pharmacy at
Sector-9, Rohini, Delhi.

Test Identification Parade

115. The learned counsel for the Appellants vehemently argued that the
identification of the Appellants (Runeet Gulati; Abhay Dewan;
Mahima Dewan; Jatin) in commission of crime is of paramount
importance and the same should not be ignored.

116. It was further contended by the learned counsel for the Appellants
that the Investigating Officer failed to conduct the TIP of the
Appellant/Runeet Gulati at the instance of Vishal Verma (PW-19)

CRL.A. 1175/2018 other connected matters Page 110 of 159
who had allegedly met him along with the deceased at Gurudwara
Malkaganj Chowk. It was further emphasized that the other
Appellant/Abhay Dewan was for the first time identified in the Court
and no test identification parade was conducted by the investigating
officer during the investigation, rendering his identification as
unreliable. To substantiate their arguments learned counsel for the
Appellants relied upon (V.C. Shukla Vs. State reported in 1980 (2)
SCC 665; Rameshwar Singh Vs. State of Jammu Kashmir
reported in 1971 (2) SCC 715; Sheikh Hasib Vs. State of Bihar
reported in 1972 (4) SCC 773; Girdhari Vs. State reported in 2011
(15) SCC 373; State of UP vs. Ashok Dixit, (2003) 3 SCC 70;
Kanan and Others vs. State of Kerala reported in (1979) 3 SCC

319).

117. Test Identification Parades do not constitute substantive evidence
and these parades are essentially governed by Section 162 of the
Code of Criminal Procedure and the procedural law does not oblige
the investigating agency to necessarily hold a test identification
parade nor is there any provision under which the accused may claim
a right to the holding of a test identification parade.

118. The Apex Court in the case of Kanta Prashad v. Delhi
Administration reported in AIR 1958 SC 350 has held as under: -.

“As for the test identification parade, it is true that
no test identification parade was held. The Appellants
were known to the police officials who had deposed
against the Appellants and the only persons who did
not know them before were the persons who gave
evidence of association, to which the High Court did
not attach much importance. It would no doubt have

CRL.A. 1175/2018 other connected matters Page 111 of 159
been prudent to hold a test identification parade
with respect to witnesses who did not know the
accused before the occurrence, but failure to hold
such a parade would not make inadmissible the
evidence of identification in Court. The weight to be
attached to such identification would be a matter for
the Courts of fact and it is not for this Court to
reassess the evidence unless exceptional grounds
were established necessitating such a course.”

(emphasis supplied)

119. The aforesaid judgment was followed by the Apex Court in the case
of Raju Manjhi vs. State of Bihar reported in AIR 2018 SC 3592.

The relevant para is reproduced as under:

“15. The identification parade belongs to the stage
of investigation, and there is no provision in the
Code which obliges the investigating agency to hold
or confers a right upon the accused to claim, a test
identification parade. They do not constitute
substantive evidence and these parades are
essentially governed by Section 162 of the Code.
Failure to hold a test identification parade would
not make inadmissible the evidence of identification
in Court. The weight to be attached to such
identification should be a matter for the Courts of
fact. In appropriate cases it may accept the evidence
of identification even without insisting on corroborati
on [See: Kanta Prashad v. Delhi
Administration, 1958 CriLJ 698
and Vaikuntam Chandrappa and Ors. v. State of Andh
ra Pradesh, AIR 1960 SC 1340].”

(emphasis supplied)

120. Keeping in view the facts of the present case and applying the
principles laid down by the Hon’ble Apex Court, it was not

CRL.A. 1175/2018 other connected matters Page 112 of 159
necessary to conduct a Test Identification Parade of the
Appellant/Runeet Gulati because it is evident from the record, that
Appellant/Runeet Gulati was known to PW-19 (Vishal Verma) from
childhood and was specifically named as a suspect in the missing
report (Ex.PW-3/A). In any event, the failure to hold the TIP could
be a mere irregularity and not fatal to the prosecution case.

Motive in a Case of Circumstantial Evidence

121. During the course of argument, an apprehension was expressed by
the learned counsel for the Appellants that the motive in a case of
circumstantial evidence is paramount and the absence of motive in a
case of circumstantial evidence is critical to the version of the
prosecution. To substantiate their arguments learned counsel for the
Appellants relied upon (Pankaj vs. State of Rajasthan, (2016) 16
SCC 192; State of Punjab vs. Sucha Singh and Others, (2003) 2
SCC 153; Hakam Singh vs. State of Rajasthan, 2005 SCC Online
Raj 358; Surinder Pal Jain Vs. Delhi Administration reported in
1993 Supp. 3 SCC 681; Arjun Marik Vs. State of Bihar reported in
1994 Supp 2 SCC 372; Sukhram Vs. State of Maharashtra reported
in 2007 (7) SCC 502;)

122. It is settled law that motive is not a necessary element in deciding
culpability but it is equally an important missing link which can be
used to corroborate the evidence where conviction is based on
circumstantial evidence. The Apex Court on several occasions has
considered the law regarding basing of conviction by the Court on
circumstantial evidence. It is useful to refer to the judgment of the

CRL.A. 1175/2018 other connected matters Page 113 of 159
Apex Court in Gambhir v. State of Maharashtra 1982 (2) SCC 351,
wherein the Apex Court had laid down that circumstances from
which an inference of guilt is sought to be drawn, must be cogently
and firmly established. Referring to the above judgment of Gambhir
v. State of Maharashtra (supra), principles were again reiterated by
the Supreme Court in K.V. Chacko v. State of Kerala 2001 (9) SCC
277, wherein following law was laid down in paragraph 5:

“5. The law regarding basing a conviction by the
Courts on circumstantial evidence is well settled.
When a case rests upon the circumstantial evidence,
such evidence must satisfy three tests: (1) the
circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly
established (2) those circumstances should be of a
definite tendency unerringly pointing towards guilt
of the accused; (3) the circumstances, taken
cumulatively, should form a chain so complete that
there is no escape from the conclusion that within
all human probability the crime was committed by
the accused and none else. The circumstantial
evidence in order to sustain conviction must be
complete and incapable of explanation of any other
hypothesis than that of the guilt of the accused. The
circumstantial evidence should not only be

CRL.A. 1175/2018 other connected matters Page 114 of 159
consistent with the guilt of the accused but should
be inconsistent with his innocence.”

(emphasis supplied)

123. With regard to the importance of establishing motive in a case of
circumstantial evidence, the Hon’ble Supreme Court of India in a
very recent judgment titled as Sukhpal Singh Vs State of
Punjab reported in 2019 SCC Online SC 178, has held that the
inability of the prosecution to establish motive in a case of
circumstantial evidence is not always fatal to the prosecution case.

Relevant part from the aforesaid judgment is extracted below:

“15. The last submission which we are called upon to
deal with is that there is no motive established against
the Appellant for committing murder. It is
undoubtedly true that the question of motive may
assume significance in a prosecution case based on
circumstantial evidence. But the question is whether
in a case of circumstantial evidence inability on the
part of the prosecution to establish a motive is fatal to
the prosecution case. We would think that while it is
true that if the prosecution establishes a motive for
the accused to commit a crime it will undoubtedly
strengthen the prosecution version based on
circumstantial evidence, but that is far cry from
saying that the absence of a motive for the
commission of the crime by the accused will

CRL.A. 1175/2018 other connected matters Page 115 of 159
irrespective of other material available before the
Court by way of circumstantial evidence be fatal to
the prosecution. In such circumstances, on account of
the circumstances which stand established by
evidence as discussed above, we find no merit in the
appeal and same shall stand dismissed.”

(emphasis supplied)

124. Herein it is relevant to highlight that in the case based on
circumstantial evidence, proof of motive will be an important
corroborative piece of evidence but the inability of the prosecution to
establish motive in a case of circumstantial evidence is not always
fatal to substantiate their version
Medical Evidence: Time Since Death

125. Learned counsel for the Appellants contended that as per the Post
mortem report (Ex. PW-37/A) which was conducted on 19.07.2012
from 12:45 pm to 06:40 pm, the probable time of death was one day
prior and the death occurred after 2-3 hours of the last meal and as
such the time of death was 12:45 pm on 18.07.2012 instead of 12:00
midnight to 02:45 am on 18.07.2012.

126. To put a rest to this controversy, it is necessary to go through the
testimony of the doctor who conducted the post mortem on the body
of the deceased. Dr. Vijay Dhankar (PW-37) Specialist HOD, BSA
Hospital, Rohini proved the report as Ex. PW37/A wherein he opined
that the ‘death was due to combined effect of cranio-cerebral damage
and hemorrhagic shock consequent to the firearm injury to the head

CRL.A. 1175/2018 other connected matters Page 116 of 159
and abdomen’. The relevant portion of his statement recorded on
04.09.2015 is reproduced below-

“On 19.07.2012 I was on duty and on that day I
conducted post-mortem on the body of one Shivam
Kapoor @ Pandey, 19 years male on the request of
Insp. Anil Sharma, PS Maurya Enclave. I started
post-mortem at 12:45 PM and concluded the
same at 6:40 PM same day. The body was of a
well built and nourished adult male and I also
noticed burn marks present at places all over the
body with singeing of hair at places. There were
stain marks over the skin indicating contact with
corrosive liquid. The base of the burn was pale
and dry friable blisters were present at places.
However, there was no evidence suggestive of vital
reaction with the burns or the margins.
Rigour mortis was complete and evident at the
joints. The probable time since death was about
one day. Body was preserved in cold storage. I
also observed that the approximate time since
death was two three hours after the last meal and
such meal included pieces of potato.
On examination, I found following external
injuries:

(i) Punctured wound 0.7 cm x 0.6 cm present
over the left side of front of forehead. The
margins are inverted and abraded. Tattooing
could not be ascertained due to burns present
in the area.

(ii) Cruciate laceration 2cm x 1cm present over
the front of middle of forehead, 5cm to the
right of injury no. 1. The margins are everted.

(iii) Punctured would 0.5cm x 0.5cm with
contused and abraded margins present over
the front of middle of abdomen just above the
umbilicus. No blackening or tattooing was
present around the wound.

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(iv) Incised would 8cm x 2.5cm present over the
left temporal region.

(v) Multiple parallel superficial incised wounds
present over the front of middle of left arm.

(vi) Laceration 3cm x 1cm present over the back of
left forearm just above the wrist.

(vii) Incised wound 1cm x 0.5cm present over the
back of left forearm just above the wrist.

(viii) Incised wound 1cm x 0.5cm present over the
back of right little finger.

(ix) Superficial to deep burn injuries present over
the front of forehead, top of head, right cheek,
parts of face, front and back of right arm and
forearm, front and back of left arm, forearm
and hand, public region, inner aspect of right
and left thigh and leg, lateral aspect of right
and left side of abdomen. The base is pale and
there is no evidence of vital reaction at the
margins. There is burning and singeing of
hair at places mainly on face and scalp. There
are dry fragile blisters at places on both upper
limbs measuring 2mm to 5mm in size.

As per my examination, injury no. 1 is entry
wound which made its exit through injury no. 2.
Track of such injury has been given in detail in
para – xi(1) of my report. Injury No. 3 was also
entry would of a bullet and track of injury has
been mentioned in para (xi)(2) of my report and
such bullet could not exit and during the post-
mortem, a jacketed bullet around 7mm in
diameter was found lodged in paraspinal muscle
such bullet was preserved, sealed and handed
over to the police and such aspect is also
mentioned in my report in relation to internal
examination of abdomen.

Internal examination of head, neck, chest,
abdomen, pelvis and vertebral column are also
correctly mentioned in my report in para (x).

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In my opinion, death was due to combined effect
of craniocerebral damage and hemorrhagic
shock consequent to the firearm injury to the
head and abdomen. All injuries were anti-
mortem and fresh at the time of death. Injury No.
1 to 3 and corresponding internal injuries were
caused by a projectile discharged through some
firearm. Injury No. 1 to 4 were sufficient to
cause death in the ordinary course of nature
individually as well as combined with other
injuries present on the body. All burn injuries
were post-mortem in nature. My detailed post-
mortem report is Ex.PW37/A (running in eight
pages) and bears my signatures on each page. I
also handed over the sealed pullanda as detail
mentioned in my post-mortem report to the police.
On 23.08.2012 I was asked by the police to give
opinion regarding the weapon used and a parcel
having seven seals of AS was produced before me.
Seals were found intact. I was opened and found
containing a knife. I had also prepared the sketch
of the knife and gave opinion that injury No. 4 to 8
as mentioned in my said report as Ex.PW37/A
were possible with such knife. After such
examination, the weapon was sealed with seal of
the department and handed over to the concerned
police official with sample seal. My such report is
Ex.PW37/B which bears my signatures at point A.
My both the reports are correct.

(At this stage one sealed pullanda having seal of
FSL VSN DELHI has been produced. Opened up.
It contains one open envelope which further
contains one paper cutter/knife. Same is shown to
witness who states that his is the same cutter which
was produced before him and after examining the
same, he prepared report Ex.PW37/B). Cutter is
exhibited as Ex.P-10.

CRL.A. 1175/2018 other connected matters Page 119 of 159

Q. What you mean by word approximate as
mentioned by you in your post-mortem report
Ex.PW37/A with respect to the fact that the time
since death was two-three hours from the last
meal?

Ans. Most likely it was within two-three
hours of last meal. It is because of the presence
of the potatoes and the state in which they were
found. It is not an exact science. It can be more
than three hours also.

Court Q. What would be the outer limit in the
context of present case and observation noted by
you?

Ans. There can be further margin of one
hour.”

127. PW-37 (Dr. Vijay Dhankar) during his cross-examination deposed as
under: –

“I examined the weapon on the basis of request of
the police. Such application is Ex.PW37/DA (two
pages). Police might have mentioned that the
injury was possible with such knife in said letter.
(Vol. I gave opinion on the basis of my
observations). Total length of the knife was 22
cms. I cannot comment whether the police had
shown the length of knife as 21.5 cm when they
seized it.

It is correct that one day as mentioned in the
probable time since death by me would mean
12.45 PM on 18.07.2012.”

128. After examining the testimony of Dr. Vijay Dhankar and the post
mortem report (Ex.PW37/A) it is observed that the version of the
aforesaid doctor with regard to the time of death of deceased has a lot
of astonishing infirmities from its inception. As per his examination-

CRL.A. 1175/2018 other connected matters Page 120 of 159

in-chief he has deposed that the deceased had died after 2-3 hours of
his last meal, thus assuming that the time of the death could have
been between 02:00-03:00 am on 18.07.2012. Contradicting his own
post-mortem report (Ex.PW-37/A) he has deposed in his cross
examination that the time of death of the deceased was 12:45 pm on
18.07.2012

129. However as per the oral evidence (testimony of police witnesses) the
deceased had died in the intervening night of 17.07.2012
18.07.2012; PW-9 (HC Rishipal) received an information at about
04:30 am from Control Room, North-West ‘that a dead body is lying
at Water Tank Ekta Camp, AE Block, near the Jhuggis of Haiderpur,
VIPS College’ and the same was registered vide DD No. 6A (Ex.PW-
9/A). Further on receipt of DD No. 6A (Ex.PW-9/A), PW-42 (SI
Satya Dev) alongwith Constable Sandeep went to the place of
incident and found a dead body of young male, who was wearing
jeans and T-shirt of blue green colour. PW-49 (Inspector Anil
Sharma) joined the team of PW-42 (SI Satya Dev) at the spot, who in
his testimony deposed that ‘I found a male dead body lying there.
The age of the deceased was approximately 20-25 years and height
was 5 feet and 6 inches, wearing blue jeans and blue T-Shirt which
were in semi-burnt condition. Subsequently a message was
transmitted from the control room to the Mobile Crime Team, North
West District and on reciept of the aforesaid information, SI Ramesh
Chand along with HC Sudhir (photographer) and Ct. Tinu Pal
(fingerprint proficient) arrived at the spot and prepared a detailed

CRL.A. 1175/2018 other connected matters Page 121 of 159
crime team report (Ex.PW-29/A) and carried out the inspection
during which they took the photographs (Ex.PW-30/A1 to A10).

130. Keeping in view the facts of the present case, the photographs
(Ex.PW-30/A1 to A10) were perused in the Court room and as per
the photographs which were taken by the crime team during 05:10
am to 06:40 am on 18.07.2012, it was evidently established that the
deceased Shivam had died in the intervening night of 17.07.2012-
18.07.2012.

131. With regard to the evidentiary value of the medical evidence, the
Hon’ble Supreme Court of India in a very recent judgment titled as
Balvir Singh Vs State of Madhya Pradesh reported in 2019 SCC
Online SC 233, has held that oral evidence always has supremacy
over medical evidence as the latter can only be considered as
opinionative in nature. Relevant part from the aforesaid judgment is
extracted below:

“26. It is well settled that the oral evidence has to
get primacy since medical evidence is basically
opinionative. In Ramanand Yadav v. Prabhu Nath
Jha and others (2003) 12 SCC 606, the Supreme
Court held as under: –

“17. So far as the alleged variance between
medical evidence and ocular evidence is
concerned, it is trite law that oral evidence has
to get primacy and medical evidence is
basically opinionative. It is only when the

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medical evidence specifically rules out the
injury as is claimed to have been inflicted as
per the oral testimony, then only in a given case
the Court has to draw adverse inference.”

The same principle was reiterated in State of U.P. v.
Krishna Gopal and another (1988) 4 SCC 302, where
the Supreme Court held “that eyewitnesses’ account
would require a careful independent assessment and
evaluation for their credibility which should not be
adversely prejudged making any other evidence,
including medical evidence, as the sole touchstone
for the test of such credibility.”

(emphasis supplied)

132. The Hon’ble Apex Court in the case of Menoka Malik and Ors. vs.
The State of West Bengal and Ors reported at AIR 2018 SC 4011, it
has been held that the medical evidence is only corroborative in
nature and not conclusive. The germane portion of Menoka Malik
(Supra) is extracted below:

“21. With regard to the conflict between the ocular
testimony and the medical evidence, in our
considered opinion, the High Court has ignored the
fact that lathis were also used while assaulting along
with sharp edge weapons. Moreover, it is by now
well settled that the medical evidence cannot

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override the evidence of ocular testimony of the
witnesses. If there is a conflict between the ocular
testimony and the medical evidence, naturally the
ocular testimony prevails. In other words, where the
eye witnesses account is found to be trustworthy
and credible, medical opinion pointing to
alternative possibilities is not accepted as conclusive
[See State of U.P. v. Krishna Gopal, (1988) 4 SCC
302]. We do not wish to comment further on the
merits of the matter at this stage since the matter
needs remittance to the High Court.”

(emphasis supplied)

133. Hence, relying on the dicta of the Apex Court, we are of the view
that the aforesaid contradiction in the post mortem report and the
testimony of PW-37 does not demolish the version of the prosecution
as the same are countered by the ocular testimonies which have a
better standing than the medical evidence and prove that the
deceased Shivam had died in the intervening night of 17.07.2012-

18.07.2012.

134. Moreover, as per the PCR Call (Ex.PW8/A) Constable Ravinder
(PW-8) received a call that “VIP College ke samne Haiderpur water
plant Ekta Camp Jhuggi ke paas AE Block Pitampura ek dead
body padi hui hai”. Post Mortem Report(Ex.PW37/A) reveals that
the death has occurred three hours from the last meal that is in
between 11:00pm to 03:00am on the intervening night of

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17.07.2012-18.07.2012, which strengthens the case of the
prosecution that when Appellant/Abhay Dewan and
Appellant/Mahima Dewan picked up Jatin at about 01:30 pm from
Faridabad the deceased(Shivam) was alive.

Scientific Evidence

135. As per the version of the prosecution, the Appellants had burnt the
dead body of the deceased after murdering him, to conceal his
identity which fact is corroborated from the post mortem report
(Ex.PW.37/A) wherein it was opined that “there were burn mark
present at places all over the body with singeing of hair at places.
Also there were stain marks over the skin indicating contact with
corrosive liquid. The base of burns was pale and dry friable blisters
were present at places.”

136. Further substantiating the version of the prosecution, PW-32, Dr.
Lingaraj Sahoo, SSO (Chemistry), FSL Rohini carried out the
chemical examination and proved his report as Ex. PW32/A wherein
he opined that the residue of kerosene was detected on exhibit no. 2
(black burnt clothes stated to be of deceased), exhibit no. 3 (partially
burnt crape bandage) and exhibit no. 4 (partially burnt, melted
bulged plastic bottle). Relevant portion of FSL.2012/C-6650
(Ex.PW.32/A) is reproduced below:

Results of Examination Report
On Chemical TLC GC examination

(i) Exhibits 2, 3 4 were found to contain residue
of kerosene.

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(ii) Metallic poisons, ethyl and methyl alcohol,
cyanide, phosphide, alkaloids, barbiturates,
tranquilizers and pesticides could not be detected in
Exhibits 1A, 1B, 1C 1D.

(iii) Petrol Kerosene Diesel or its residue could not
be detected in Exhibits 5 6.

*Exhibit 2 Brownish black burnt cloth pieces stated
to be burnt clothes of deceased.

*Exhibit 3 Brownish black partially burnt crape
bandage stated to be burnt crape bandage
*Exhibit 4 one partially burnt, melted bulged
plastic bottle, stated to be one semi-burnt plastic
bottle

137. PW-37 (Dr. Vijay Dhankar) conducted the post mortem on the body
of the deceased and handed over 9 (Nine) Inquest Papers, Sealed
Viscera along with blood sample, Sealed Scalp hair along with sealed
bullet and DNA Samples of the deceased to PW-49 (Inspector Anil
Sharma). Relevant portion of the post mortem report is reproduced
herein below:-

“Department of Forensic Medicine
Dr. Baba Saheb Ambedkar Hospital
(Govt. of NCT of Delhi)
Rohini, Delhi – 110085
Post Mortem Examination Report
POST MORTEM NO. 391/2012 Dated: 19 July 2012
of Shivam Kapoor @ Pandey S/o Sanjeev Kapoor of P.S. Maurya Enclave
After the post-mortem examination the dead body was handed over to the I.O
P.M. Report in original in 8 (Eight) pages along with:

1. 9 (Nine) Inquest Papers.

2. Sealed Viscera along with blood sample.

3. Sealed Scalp hair.

4. Sealed clothes.

5. Sealed Nail clipping

6. Sealed Teeth for DNA.

7. Sealed Bullet.

CRL.A. 1175/2018 other connected matters Page 126 of 159

8. Sample seal of the department.

Handed over to Police personnel

Signature ……….

Name – Sunil Kumar
Rank P.S. – Constable M/Enclave
Date and Time – 27/7/2012 at 4:00 pm.
P.M. Report handed over by – Surender Tanwar”

138. The facts mentioned by PW-37 (Dr. Vijay Dhankar, Specialist and
HOD, Forensic Medicine, BSA Hospital, Rohini) in the Post Mortem
Report (Ex.PW-37/A) in relation to handing over blood and DNA
samples of the deceased to PW-49 (Inspector Anil Sharma) has also
been reiterated by PW-37 in his testimony which is reproduced as
under:-

“…..My detailed post-mortem report is Ex.PW37/A
(running in eight pages) and bears my signatures on
each page. I also handed over the sealed pullanda as
detail mentioned in my post-mortem report to the
police.

On 23.08.2012 I was asked by the police to give
opinion regarding the weapon used and a parcel
having seven seals of AS was produced before me.
Seals were found intact. It was opened and found
containing a knife. I had also prepared the sketch of
the knife and gave opinion that injury no. 4 to 8 as
mentioned in my said report Ex. PW37/A were
possible with such knife. After such examination, the
weapon was sealed with seal of the department and
handed over to the concerned police official with
sample seal. My such report is Ex. PW37/B which
bears my signatures at point A. My both the reports
are correct.”

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139. Corroborating the aforesaid version, the investigating officer PW-49
(Inspector Anil Sharma) has deposed that:

“After post-mortem, the doctor had handed
over sealed pullandas containing viscera,
clothes of the deceased, blood gauze, left and
right nail clippings and bullet which was
recovered from the body of deceased during
the post-mortem along with sample seal. All
these pullandas were taken into possession
vide seizure memos already Ex.PW47/A1 to
A5. All said memos bear my signatures at
point X. These exhibits were deposited in the
malkhana of PS Maurya Enclave.”

140. Perusal of the testimony of the investigating officer reveals that
‘blood gauze and clothes of the deceased, left and right nail clippings
and the bullet’ which was recovered from the body of the deceased
during the post mortem were sealed in pullandas vide seizure memos
Ex.PW47/A1 to A5 and the same were deposited in the malkhana of
Police Station Maurya Enclave. HC Madan Lal stepped into witness
box as PW-11 and deposed that:

“On 19.07.20102 Inspector Anil Sharma
again deposited two plastic boxes and five
envelopes in sealed condition with the seal
of DEPT.OF FM DR BSAH, GOVT OF
DELHI with sample seal in the malkhana

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and I deposited the same in the malkhana
vide serial no. 1288/12 of register no. 19. The
entry was made by me at Ex.PW11/B.”

141. English translation of Ex. PW-11/B whereby the aforesaid envelope
containing ‘Blood Gauze of the deceased’ which was sealed with the
Seal of ‘DEPT.OF FM DR BSAH, GOVT OF DELHI’ by PW-49
(Inspector Anil Sharma) and was deposited in the malkhana vide
serial no. 1288/12 (Ex.PW11/B) on 19.07.2012, is reproduced
below:-

“……..In the presence of the witnesses
mentioned hereinafter, the Doctor at mortuary
of Dr. B.S.A. Hospital, Rohini after
conducting the Post-Mortem Examination of
deceased Shivam Kapoor, R/o 14, Gandhi
Square, Malka Ganj, Delhi, produced an
envelope duly sealed with the seal of ‘DEPT.
of FM DR. B.S.A. H. GOVT. OF DELHI’
containing ‘Blood on Gauze’ and a sample
seal of “DEPT. OF FM DR. B.S.A. H. GOVT.
OF DELHI”. The same has been taken into
police possession as a piece of evidence by
means of this memo. The seizure memo has
been prepared…….”

CRL.A. 1175/2018 other connected matters Page 129 of 159

142. PW-49 (Inspector Anil Sharma) also recovered the clothes of the
appellants at the instance of the appellants, which were sent for
biological examination to the FSL. Relevant portion of the testimony
of PW-49 (Inspector Anil Sharma) whereby the recoveries which
were effected from Appellant/Abhay Dewan, is reproduced as
under:-

“Thereafter, accused Abhay led us to the
second floor of same building. There was
one gathari of clothes in a room. He took
out one blue jeans and green color T-shirt
from such Gathari claiming that he was
wearing those at the time of incident.
There were blood stains marks over those.
These were also taken into possession vide
memo Ex. PW25/Q which bears my
signature at point B. He also got recovered
keys of the car from one almirah of same
room from its lower shelf. He claimed that
the key of the car number DL2CAN-3335
make Swift and also revealed that said car
was used in the commission of crime…..”

143. PW-1 (Manisha Upadhaya, Senior Scientific Officer (Biology) FSL,
Rohini) examined the 24 parcels deposited by PW-49 (Inspector Anil
Sharma) and deposed that:-

“On 05.09.2012 24 parcels in sealed
condition were received in our office in case
FIR No. 180/12 of PS Maurya Enclave. The
seal was found intact and tallied with the
sample seal. I marked the parcel as parcel
no. 1 to 24.

On opening the parcel No. 1, I found
a dirty blackish brown cloth tape alongwith
the hair kept in a plastic container described

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a blood stain medical/doctor tape and I
marked the same as Ex. 1 . On opening the
parcel No. 2, I found blood stain concrete
and I marked the same as Ex. 2. On opening
the parcel No. 3, I found brownish blackish
banyan and one brownish blackish
underwear and I marked the same as Ex. 3a,
Ex. 3b, Ex. 3C, Ex. 3d respectively. On
opening the parcel No. 4, I found blood on
gauge and I marked the same as Ex. 4. On
opening the parcel No. 5, I found nail
clippings (left) and I marked the same as
Ex.5. On opening the parcel no. 6, I found
nail clippings (right) and I marked the same
as Ex. 6. On opening the parcel No.7, I
found bunch of hairs and I marked the same
as Ex. 7. On opening the parcel No. 8, I
found a dirty metallic piece described as
fired bullet and I marked the same as Ex. 8.
On opening the parcel No. 9, I found a dirty
metallic piece containing in a plastic
contained described as fired bullet (front
side of round) and I marked the same as
Ex.9. On opening the parcel No. 10, I
found one T shirt and one pant (Jeans) and
I marked the same as Ex. 10a and Ex. 10b
respectively. ON opening the parcel No,.11
found one lady’s top and one pajama
(lower) and I marked the same as Ex. 11 and
Ex. 11b respectively. On opening the parcel
No. 12, I found one pant and I marked the
same as Ex. 12. On opening the parcel No.
13, I found one dirty nicker described as
Barmuda/Kacha and I marked the same as
Ex.13………

XXXX XXXX XXX
I examined the above said exhibits
and blood was detected on all the above said

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exhibits. My detailed biological report is
Ex. PW1/B (three pages) bearing my
signatures at point A on each page.”

144. Relevant portion of Serological report (Ex.PW-1/B) prepared by PW-

1 (Manisha Upadhaya, Senior Scientific Officer (Biology) FSL,
Rohini) reads as under:-

“RESULTS OF ANALYSIS
Parcel ‘4’ : One sealed envelope sealed with the
seal of “Dr. BSAH Dept of FM GOVT. OF Delhi”
containing exhibit ‘4’.

XXX XXXX XXXX
Parcel ’10’ : One sealed cloth parcel sealed with
the seal of “AS” containing exhibits ’10a’
’10b’.

Exhibit ’10a’: One T-shirt having very few light
brown stains.

Exhibit ’10b’ :One pant (jeans) having very few
dark brown stains.

XXXX XXXX XXXX
Exhibit ’11b’ :One pyjama (lower) having very
few dark brown stains.

Parcel ’12’ : One sealed cloth parcel sealed with
the seal of “AS” containing exhibit ’12.’
Exhibit ’12’ :One pants having dirty brown
stains
Parcel ’13 : One sealed cloth parcel sealed with
the seal of “AS” containing exhibit ’13.’
Exhibit ’13’ :One dirty Nikker described as
Barmuda/Kachha.

Parcel ’14 : One sealed plastic bag sealed with
the seal of “AS” containing exhibits ’14a’, ’14b’
’14c’.

Exhibit ’14a’:Few dirty muddy netted covers
described as removable sun shade (Jali.)

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Exhibit ’14b’:Two pieces of dirty muddy seat
cover described as head rest cover.
Exhibit ’14c’:Pieces of dirty muddy seat cover
described as car seat cover.

XXXX XXXXXX XXXX

RESULTS OF ANALYSIS

1. Blood was detected on exhibits ‘1’, ‘2’, ‘3a’,
‘3b’, ‘3c’, ‘3d’, ‘4’, ‘5’, ‘6’, ‘7’, ‘8’, ‘9’, ’10a’,
’10b’, ’11a’, ’12’, ’13’, ’14a’, ’14b’, ’14c’, ’15’,
’16’, ’17’, ’18’, ’19’, ’20’, ’21’, ’22’, ’23’
’24’.

2. Report of serological analysis in original is
attached herewith.”

145. PW41 (V. Shankarnarayanan, SSO, Regional Forensic Laboratory)
carried out the biological examination of the clothes of the accused
persons which they were wearing at the time of the incident and
proved his report as Ex.PW41/A wherein he opined that as per the
DNA/STR Analysis report blood of the deceased from the source
exhibit ‘4’(Blood stained gauze cloth piece of deceased) was detected
on ‘exhibit 10′(T-Shirt of accused Abhay Dewan), ‘exhibit
11b'(Pyjama of accused Mahima Dewan), ‘exhibit 12′(Pants of
accused Runeet Gulati) and ‘exhibit 13′(Knickers of accused Jatin).
Relevant portion of the FSL-2012/B-6661(Ex.PW-41/A) is
reproduced herein below: –

“RESULT OF ANALYSIS
Blood was detected on exhibits ‘4’, ’10a’,
’10b’, ’11a’, ’11b’, ’12’, ’13’, ’14’, ’19’ ’24’.

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DNA EXAMINATION
The DNA examination on the Exhibit ‘4’ i.e.,
Blood stained gauze cloth piece of deceased,
exhibits ’10a’ (i.e., T-Shirt of accused, Abhay
Dewan), ’10b’ (i.e. Pants of accused, Abhay
Dewan), ’11a’ (i.e. lady top of accused,
Mahima Dewan), ’11b’ (i.e. Pyajama of
accused, Mahima Dewan), ’12’ (i.e. Pants of
accused, Runeet Gulati), ’13’ (i.e. Knickers of
accused, Jatin) ’24’ i.e. Paper Cutter, were
subjected to DNA isolation. DNA were isolated
from Exhibit ‘4’, Exhibit ’10a’, Exhibit ’10b’,
Exhibit ’11a’, Exhibit ’11b’, Exhibit ’12’,
Exhibit ’13’ Exhibit ’24’ and were amplified
using Amp F/STR Identifier Plus Kits and these
data were analysed by using GeneMapper IDx
software. DNA profile was generated from
Exhibit ‘4’, Exhibit ’10a’, Exhibit “11b’,
Exhibit ’12’, Exhibit ’13’. A complete DNA
profile could not be generated from Exhibit
’10b’, Exhibit ’11a’ and Exhibit ’24’ due to
inhibitors/degradation of samples. However,
DNA could not be isolated from Exhibit ’14’ i.e.,
exhibit said to be recovered from uncovered
Nala Exhibit ’19’ said to be recovered from
car due to degradation of samples.

RESULTS
Alleles from exhibit ‘4’ (i.e. Blood stained
gauze cloth piece of deceased), were accounted
in exhibits ’10a’ (i.e T-shirt of accused, Abhay
Dewan), ’11b’, (i.e. Pyjama of accused,
Mahima Dewan), ’12’ (i.e. pants of accused,
Runeet Gulati) ’13’ (i.e. Knickers of
accused, Jatin).

CONCLUSIONS
The DNA analysis/STR analysis were
performed on the source of exhibit ‘4’ i.e.

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Blood stained gauze cloth piece of deceased are
sufficient to conclude that it is similar with that
of the source of exhibit ’10’ (i.e. T-Shirt of
accused, Abhay Dewan), ’11b’, (i.e. Pyjama of
accused, Mahima Dewan), ’12’ (i.e. Pants of
accused, Runeet Gulati) ’13’ (i.e. Knickers
of accused, Jatin)”

146. In view of the above Forensic Science Laboratory reports, Ex-PW-

32/A Ex-PW-1/B and Ex. PW-41/A coupled with the testimonies of
relevant witnesses, it is evidently established that the residue of
kerosene was detected on the black burnt clothes of the deceased and
the blood of deceased (Exhibit ‘4’) matched with the blood detected
on Exhibit ’10’ (i.e. T-Shirt of accused, Abhay Dewan), Exhibit
’11b’, (i.e. Pyjama of accused, Mahima Dewan), Exhibit ’12’ (i.e.
Pants of accused, Runeet Gulati) Exhibit ’13’ (i.e. Knickers of
accused, Jatin), leading to the conclusion that all the accused
persons had burnt the dead body of the deceased Shivam and
conspired together for the commission of the offence.

Ballistic Division Examination Report

147. As per the Post-mortem report (Ex.PW37/A), a jacketed bullet
around 7.65 mm in diameter was recovered in the ‘para spinal
muscle’ of the deceased and the same was sent to FSL for
examination along with the other bullets recovered from the swift
car.

148. PW-52 R. Eniyavan, Assistant Chemical Examiner (Ballistics), FSL
Rohini, Delhi appeared on behalf of Dr. N.P. Waghmare Assistant

CRL.A. 1175/2018 other connected matters Page 135 of 159
Director (Ballistics) FSL Rohini, Delhi, who had carried out the
Ballistic Examination and proved his report as Ex. PW52/A. The
relevant portion of his statement recorded on 31.03.2017 is
reproduced below-

“Dr. N.P. Waghmare was working as Assistant
Director (Ballistics) in our FSL Rohini, Delhi. He
has since been transferred to Goa as Director (FSL).
I had worked under him and, therefore, I am in a
position to identify his signatures. In the present
case also, I had assisted him. I have now been shown
report No. FSL 2012/F7200 dated 22.11.2012. It
bears his signatures at point A which I identify. Such
report is now exhibited as Ex.PW52/A. As per
report, in the present case, our FSL had received
three pullandas having seal of “AS”.
First pullanda was containing on improvised pistol of
7.65mm which was marked as F1 in the laboratory.
Second pullanda was containing one standard
7.65mm cartridge which was marked as A1 in the
laboratory. It seemed that due to oversight instead
of “cartridge”, the same has been described as
“cartridge case” at portion now encircled in red and
marked X.

Third pullanda was containing one standard
7.65mm cartridge which was marked as A1 in the
laboratory. It seemed that due to oversight instead of
“cartridge”, the same has been described as
“cartridge case” at portion now encircled in red and
marked X.

Third pullanda was containing one standard
7.65mm cartridge case which was marked as EC1 in
the laboratory.

On examination, exhibit F1 was found to be a
firearm capable of chambering and firing. It was
also found in normal working order after test firing

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and cartridge A1 was also found to be live
ammunition before it was test fired.
The pertinent characteristic marks of improvised
pistol F1 present on crime cartridge case i.e., EC1
were compared with the test cartridge case, fired
through same pistol F1. Comparison was done with
the help of comparison microscope and keeping in
mind the firing pin and breech face marks, it was
opined that EC1 had been fired through said
firearm F1. Mark A1 as well as mark EC1 were
accordingly opined as ammunition and part of
ammunition respectively. Exhibits/remnants were
sealed with the seal of “FSL NPW Delhi” and were
sent back to the concerned SHO along with report.
Said report is correct.

I have also been shown report no. FSL2012/CFU-
8426 dated 17/12/2012 given by him. Such report
also bears his signatures at point which I identify.
Such report is exhibited as Ex.PW52/B.”

149. From the perusal of the aforesaid testimony, it is evident that the
pistol (exhibit F1) which was recovered at the instance of
appellant/Abhay Dewan from C2/16, Sec.15, Rohini, Delhi
(residence of Abhay Dewan) was in a normal working condition and
the said firearm was capable of chambering and firing. Further,
keeping in mind the firing pin and breech face marks on exhibit
‘EC1’ it was opined that crime cartridge case marked exhibit ‘EC1’
had been fired through the pistol (exhibit F1). Relevant portion of the
FSL-2012/F-7200 (Ex. PW52/A) is reproduced herein below:

Results of Examination/Opinion
(1) Exhibit ‘F1’ is a firearm as defined in Arms Act. It
is an improvised pistol, capable of chambering
firing standard 7.65mm ammunition.

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(2) The exhibit 7.65mm cartridge marked ‘A1’ one
7.65mm cartridge taken from laboratory stock
were chambered and successfully test fired
through exhibit improvised pistol marked ‘F1’.
Hence, it is opined that exhibit improvised pistol
marked ‘F1’ is in normal working order and
exhibit 7.65mm cartridge marked ‘A1’ was live
ammunition before it was test fired in the
laboratory.

(3) The pertinent characteristic marks of improvised
pistol marked exhibit ‘F1’ present on the crime
cartridge case marked exhibit ‘EC1’ were
compared with test cartridge cases fired through
improvised pistol marked exhibit ‘F1’ under a
comparison microscope. After thorough
examination and comparison, firing pin and
breech face marks present on exhibit ‘EC1’ were
similar with firing pin breech face marks
present on test cartridge cases. Hence, it is opined
that exhibit empty cartridge case marked ‘EC1’
had been fired through the improvised pistol
marked exhibit ‘F1’
(4) The exhibit 7.65mm cartridges marked ‘A1’ is
ammunition as defined in Arms Act, 1959.
(5) The exhibit 7.65mm cartridge case marked ‘EC1’
is a part of ammunition as defined in Arms Act.

150. Further PW50 V.R. Anand, Assistant Director (Ballistic), FSL,
Rohini, Delhi carried out the Ballistic Examination of the improvised
pistol 7.65 mm caliber marked Ex. F1 in FSL No. 2012/F7200 and
proved his report as Ex. PW50/A. The relevant portion of his
statement recorded on 06.02.2017 is reproduced below-

“On 04.01.2013 three sealed parcels in connection
with the present case were duly received in the office
of FSL, Rohini through Ct. Surender Kumar. Parcel

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No. 1 was sealed with seal of NPW FSL Delhi
containing once improvised pistol 7.65 mm caliber
already marked Ex. F1 in case FSL No. 2012/F7200.
Parcel No. 2 was sealed with the seal of MU FSL
Delhi containing one bullet marked Ex.EB1. Parcel
No. 3 was sealed with the seal of MU FSL Delhi
containing one bullet marked Ex.EB2.
On examination, bullets marked Ex.EB1 and
Ex.EB2 corresponded to the bullets of 7.65mm
cartridges. Two 7.65mm cartridges taken from
laboratory stock were test fired through the
improvised pistol marked Ex. F1. The test fired
cartridge cases were marked as TC1 and TC2 and
recovered bullets were marked as TB1 and TB2.
The individual characteristics of rifling
marks/striation marks present on evidence bullets
marked Ex.EB1 and EB2 on test fired bullets TB1
and TB2 were examined under comparison
microscope and were found identical. Hence, the
evidence bullets marked Ex.EB1 and EB2 had been
discharged through the improvised pistol marked
Ex. F1 in case FSL No. 2012/F-7200.

Exhibit EB1 and EB2 were ammunition as defined in
the Arms Act, 1959.

All the exhibits were sealed with the seal of VRA FSL
Delhi after examination. My detailed report dated
05.04.2013 is Ex.PW50/A (three pages) which bears
my signatures at point A on each page. My report is
correct.”

151. From the perusal of the aforesaid testimony, it is evident that three
parcels i.e. ‘Sealed parcel no. 1’ (containing one improvised pistol
7.65 mm caliber marked Ex. F1 in case FSL No.

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2012/F7200), ‘Sealed parcel No. 2’ (containing one bullet
marked Ex. EB1), ‘Sealed Parcel No. 3′(containing one bullet
marked Ex. EB2) were received and on examination, it was evidently
established keeping in mind the rifling marks that the bullets ‘Ex.
EB1 and Ex. EB2’ were ammunition as defined in the Arms Act 1959
and were discharged through the improvised pistol marked ‘Ex. F1’.
Relevant portion of the FSL-2013/F-0121 (Ex. PW50/A) is
reproduced herein below:

Results of Examination/Opinion
(1) The bullets marked exhibits ‘EB1’ ‘EB2’
corresponds to the bullets of 7.65mm cartridges.
(2) The two 7.65mm cartridges taken from laboratory
stock were test fired through the improvised pistol
7.65mm caliber already marked exhibit ‘F1’ in
case FIR No. 180/12, PS: Maurya Enclave (FSL-
2012/F-7200). Test fired cartridge cases were
marked as ‘TC1’ and ‘TC2’ and test fired
recovered bullets were marked as ‘TB1’ and ‘TB2’
respectively.

(3) The individual characteristic of rifling
marks/striation marks present on evidence bullets
marked exhibits ‘EB1’ and ‘EB2’ and on test fired
recovered bullets marked as ‘TB1’ and ‘TB2’
were compared and examined under comparison
microscope model lieca CMC and were found
identical. Hence, the evidence bullets marked
exhibits ‘EB1’ and ‘EB2’ have been discharged
through the improvised pistol 7.65mm caliber
already marked exhibit ‘F1’ in case FIR No.
180/12, PS: Maurya Enclave (FSL-2012/F-7200).
(4) The exhibits ‘EB1’ ‘EB2’ are ammunition as
defined in the Arms Act, 1959

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152. In view of the aforesaid Ballistic division reports, which are
corroborating with the version of the prosecution, it is evidently
established that the pistol (which was recovered at the instance of
Abhay Dewan from C2/16, Sec.15, Rohini, Delhi) was in working
condition and was used to kill the deceased.

Criminal Conspiracy ‘under Section 120-B of the Indian
Penal Code’

153. Learned counsel for the appellants argued that the prosecution failed
to prove any criminal conspiracy among the appellants to hold them
guilty of offence punishable under Section 120-B IPC.

154. To bring an offence within the ambit of criminal conspiracy, the
following factors are necessary to be present there:

i) First, involvement of more than one person and

ii) An agreement/among such persons to do or causing to be
done an illegal act or an act which is not illegal but is
done or causing to be done by illegal means.

155. Therefore, in order to constitute a conspiracy, meeting of mind of
two or more persons to do an illegal act or an act by illegal means is
a must. In other words, it is sine qua non for invoking the plea of
conspiracy against the accused. However, it is not necessary that all
the conspirators must know each and every detail of the conspiracy,
which is being hatched and nor it is necessary to prove their active
part/role in such meeting.

156. In other words, presence and participation of each person in such
meeting alone is sufficient. Its existence coupled with the object for

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which it was hatched has to be gathered on the basis of circumstantial
evidence, such as conduct of the conspirators, the chain of
circumstances leading to holding of such meeting till the commission
of offence by applying the principle applicable for appreciating
circumstantial evidence for holding the accused guilty for
commission of an offence.

157. The Apex Court in the case of Baldev Singh v. State of Punjab
reported in 2009 6 SCC 564 has held as under: –

“17. Conspiracy is defined in Section 120A of the
IPC to mean:

“120A. Definition of criminal conspiracy. –
When two or more persons agree to do, or cause to
be done, —

(1) an illegal act, or
(2) an act which is not illegal by illegal means,
such an agreement is designated a criminal
conspiracy:

Provided that no agreement except an
agreement to commit an offence shall amount to a
criminal conspiracy unless some act besides the
agreement is done by one or more parties to such
agreement in pursuance thereof.

Explanation. –It is immaterial whether the
illegal act is the ultimate object of such agreement,
or is merely incidental to that object.”
An offence of conspiracy which is a separate and
distinct offence, thus, would require involvement of
more than one person. Criminal conspiracy is an
independent offence. It is punishable separately;
its ingredients being: –

                      (i)    an agreement between two or more
persons.

(ii) the agreement must relate to doing or
causing to be done either

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(a) an illegal act;

(b) an act which is not illegal in itself
but is done by illegal means.

It is now, however, well settled that a conspiracy
ordinarily is hatched in secrecy. The court for the
purpose of arriving at a finding as to whether the
said offence has been committed or not may take
into consideration the circumstantial evidence.
While however doing so, it must be borne in mind
that meeting of the mind is essential; mere
knowledge or discussion would not be sufficient.

18. Adverting to the said question once again, we
may, however, notice that recently in Yogesh @
Sachin Jagdish Joshi v. State of
Maharashtra [(2008) 6 SCALE 469], a Division
Bench of this Court held:

"25. Thus, it is manifest that the meeting of
minds of two or more persons for doing an illegal
act or an act by illegal means is sine qua non of
the criminal conspiracy but it may not be possible
to prove the agreement between them by direct
proof. Nevertheless, existence of the conspiracy
and its objective can be inferred from the
surrounding circumstances and the conduct of the
accused. But the incriminating circumstances
must form a chain of events from which a
conclusion about the guilt of the accused could
be drawn. It is well settled that an offence of
conspiracy is a substantive offence and renders the
mere agreement to commit an offence punishable
even if an offence does not take place pursuant to
the illegal agreement."

19. Yet again in Nirmal Singh Kahlon vs. State of
Punjab Ors. [(2008) 14 SCALE 639], this Court
following Ram Lal Narang vs. State (Delhi

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Administration [(1979) 2 SCC 322] held that a
conspiracy may be a general one and a separate
one meaning thereby a larger conspiracy and a
smaller which may develop in successive stages.
For the aforementioned purpose, the conduct of
the parties also assumes some relevance.

20. In K.R. Purushothaman vs. State of
Kerala [(2005) 12 SCC 631], this Court held:

"11. Section 120A of I.P.C. defines 'criminal
conspiracy.' According to this Section when two
or more persons agree to do, or cause to be done

(i) an illegal act, or (ii) an act which is not illegal
by illegal means, such an agreement is designed a
criminal conspiracy. In Major E.G. Barsay v.
State of Bombay, (1962) 2 SCR 195, Subba Rao J.,
speaking for the Court has said:

"31.......The gist of the offence is an
agreement to break the law. The parties to
such an agreement will be guilty of criminal
conspiracy, though the illegal act agreed to be
done has not been done. So too, it is not an
ingredient of the offence that all the parties
should agree to do a single illegal act, It may
comprise the commission of a number of acts."

13. To constitute a conspiracy, meeting of
mind of two or more persons for doing an illegal
act or an act by illegal means is the first and
primary condition and it is not necessary that all
the conspirators must know each and every detail
of conspiracy. Neither it is necessary that every
one of the conspirators takes active part in the
commission of each and every conspiratorial acts.
The agreement amongst the conspirators can be
inferred by necessary implications. In most of the
cases, the conspiracies are proved by the
circumstantial evidence, as the conspiracy is
seldom an open affair, The existence of conspiracy

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and its objects are usually deducted from the
circumstances of the case and the conduct of the
accused involved in the conspiracy. While
appreciating the evidence of the conspiracy, it is
incumbent on the Court to keep in mind the well-
known rule governing circumstantial evidence
viz., each and every incriminating circumstance
must be clearly established by reliable evidence
and the circumstances proved must form a chain
of events from which the only irresistible
conclusion about the guilt of the accused can be
safely drawn, and no other hypothesis against the
guilt is possible. The criminal conspiracy is an
independent offence in Indian Penal Code.

(emphasis supplied)

158. Further the Apex Court in the case of Mukesh And Another vs State
(NCT of Delhi) and Others reported in 2017 6 SCC 1 has held as
under: -

"462. The accused have been charged with the
offence of "conspiracy" to commit the offence of
abduction, robbery/dacoity, gang rape and
unnatural sex, in pursuance of which the accused
are alleged to have picked up the prosecutrix and
PW 1. The charge-sheet also states that in
furtherance of conspiracy, the accused while
committing the offence of gang rape on the
prosecutrix intentionally inflicted bodily injury with
iron rod and inserted the iron rod in the vital parts
of her body with the common intention to cause her
death.

463. The learned Amicus Mr. Sanjay Hegde
submitted that there is no specific evidence to
prove that there was prior meeting of minds of the
accused and that they had conspired together to

CRL.A. 1175/2018 other connected matters Page 145 of 159
commit grave offence by use of iron rod, resulting
in the death of the victim and, therefore,
insertion/use of iron rod by any one of the accused
cannot be attributed to all the accused in order to
hold them guilty of the offence of murder.

464. The essentials of the offence of conspiracy and
the manner in which it can be proved has been laid
down by this Court through a catena of judicial
pronouncements and I choose to briefly
recapitulate the law on the point, so as to
determine whether the offence is made out in this
case or not. Meeting of minds for committing an
illegal act is sine qua non of the offence of
conspiracy. It is also obvious that meeting of
minds, thereby resulting in formation of a
consensus between the parties, can be a sudden
act, spanning in a fraction of a minute. It is neither
necessary that each of the conspirators take active
part in the commission of each and every
conspiratorial act, nor is it necessary that all the
conspirators must know each and every details of
the conspiracy. Essence of the offence of
conspiracy is in agreement to break the law as
aptly observed by this Court in E.G. Barsay v. State
of Bombay [E.G. Barsay v. State of Bombay, AIR
1961 SC 1762 : (1961) 2 Cri LJ 828 : (1962) 2
SCR 195] .

465. So far as the English law on conspiracy is
concerned, which is the source of Indian law,
Kenny has succinctly stated that in modern times
conspiracy is defined as an agreement of two or
more persons to effect any unlawful purpose,
whether as their ultimate aim or only as a means to
it. Stressing on the need of formation of an
agreement, he has cautioned that conspiracy
should not be misunderstood as a purely mental
crime, comprising the concurrence of the intentions

CRL.A. 1175/2018 other connected matters Page 146 of 159
of the parties. The meaning of an "agreement", he
has explained by quoting following words of Lord
Chelmsford [Denis Dowling Mulcahy v. R., (1868)
LR 3 HL 306 (HL)] : (LR p. 328)
"... agreement is an act in advancement of the
intention which each person has conceived in his
mind."

Kenny has further said that it is not mere intention,
but the announcement and acceptance of
intentions. However, it is not necessary that an
overt act is done; the offence is complete as soon
as the parties have agreed as to their unlawful
purpose, although nothing has yet been settled as
to the means and devices to be employed for
effecting it. (Refer Kenny's Outlines of Criminal
Law, 19th Edn., pp. 426-27.)

466. The most important aspect of the offence of
conspiracy is that apart from being a distinct
statutory offence, all the parties to the conspiracy
are liable for the acts of each other and as an
exception to the general law in the case of
conspiracy intent i.e. mens rea alone constitutes a
crime. As per Section 10 of the Evidence Act, once
reasonable ground is shown for believing that two
or more persons have conspired to commit an
offence then, anything done by any one of them in
reference to their common intention, is admissible
against the others. As held in State of
Maharashtra v. Damu [State of
Maharashtra v. Damu, (2000) 6 SCC 269 : 2000
SCC (Cri) 1088] , the only condition for the
application of the rule in Section 10 of the
Evidence Act is that there must be reasonable
ground to believe that two or more persons have
conspired together to commit an offence.

CRL.A. 1175/2018 other connected matters Page 147 of 159

467. The principles relating to the offence of
criminal conspiracy and the standard of proof for
establishing offence of conspiracy and the joint
liability of the conspirators have been elaborately
laid down in Shivnarayan Laxminarayan
Joshi v. State of Maharashtra [Shivnarayan
Laxminarayan Joshi v. State of Maharashtra,
(1980) 2 SCC 465 : 1980 SCC (Cri) 493] , Mohd.
Usman Mohammad Hussain Maniyar v. State of
Maharashtra [Mohd. Usman Mohammad Hussain
Maniyar v. State of Maharashtra, (1981) 2 SCC
443 : 1981 SCC (Cri) 477] , Kehar Singh v. State
(Delhi Admn.) [Kehar Singh v. State (Delhi
Admn.), (1988) 3 SCC 609 : 1988 SCC (Cri) 711]
, State of Maharashtra v. Som Nath Thapa [State of
Maharashtra v. Som Nath Thapa, (1996) 4 SCC
659 : 1996 SCC (Cri) 820] , State (NCT of
Delhi) v. Navjot Sandhu [State (NCT of
Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 : 2005
SCC (Cri) 1715] , State v. Nalini [State v. Nalini,
(1999) 5 SCC 253 : 1999 SCC (Cri) 691]
and Yakub Abdul Razak Memon v. State of
Maharashtra [Yakub Abdul Razak Memon v. State
of Maharashtra, (2013) 13 SCC 1 : (2014) 7 SCC
(Cri) 1] .

468. Another significant aspect of the offence of
criminal conspiracy is that it is very rare to find
direct proof of it, because of the very fact that it is
hatched in secrecy. Unlike other offences, criminal
conspiracy in most of the cases is proved by
circumstantial evidence only. It is extremely rare
that direct evidence in proof of conspiracy can be
forthcoming from wholly disinterested quarters or
from utter strangers. Conspiracy is a matter of
inference, deduced from the words uttered,
criminal acts of the accused done in furtherance of
conspiracy. (Vide Noor Mohammad Mohd. Yusuf
Momin v. State of Maharashtra [Noor Mohammad

CRL.A. 1175/2018 other connected matters Page 148 of 159
Mohd. Yusuf Momin v. State of Maharashtra,
(1970) 1 SCC 696 : 1970 SCC (Cri) 274]
, Firozuddin Basheeruddin v. State of
Kerala [Firozuddin Basheeruddin v. State of
Kerala, (2001) 7 SCC 596 : 2001 SCC (Cri) 1341]
, Ram Narayan Popli v. CBI [Ram Narayan
Popli v. CBI, (2003) 3 SCC 641 : 2003 SCC (Cri)
869] , Yogesh v. State of
Maharashtra [Yogesh v. State of Maharashtra,
(2008) 10 SCC 394 : (2009) 1 SCC (Cri) 51]
, Pratapbhai Hamirbhai Solanki v. State of
Gujarat [Pratapbhai Hamirbhai Solanki v. State of
Gujarat, (2013) 1 SCC 613 : (2013) 1 SCC (Cri)
579] and Chandra Prakash v. State of
Rajasthan [Chandra Prakash v. State of Rajasthan,
(2014) 8 SCC 340 : (2014) 3 SCC (Cri) 457] , etc.)

469. In Yogesh v. State of Maharashtra [Yogesh v.
State of Maharashtra, (2008) 10 SCC 394 : (2009)
1 SCC (Cri) 51] , this Court, after referring to the
law laid down in several pronouncements,
summarised the core principles of law of
conspiracy in the following words: (SCC p. 402,
para 25)
"25. Thus, it is manifest that the meeting of
minds of two or more persons for doing an
illegal act or an act by illegal means is sine
qua non of the criminal conspiracy but it may
not be possible to prove the agreement
between them by direct proof. Nevertheless,
existence of the conspiracy and its objective
can be inferred from the surrounding
circumstances and the conduct of the accused.
But the incriminating circumstances must
form a chain of events from which a
conclusion about the guilt of the accused could
be drawn. It is well settled that an offence of
conspiracy is a substantive offence and

CRL.A. 1175/2018 other connected matters Page 149 of 159
renders the mere agreement to commit an
offence punishable even if an offence does
not take place pursuant to the illegal
agreement."

470. In the present case, there is ample evidence
proving the acts, statements and circumstances,
establishing firm ground to hold that the accused
who were present in the bus were in prior concert
to commit the offence of rape. The prosecution has
established that the accused were associated with
each other. The criminal acts done in furtherance
of conspiracy, is established by the sequence of
events and the conduct of the accused. Existence of
conspiracy and its objects could be inferred from
the chain of events. The chain of events described
by the victim in her dying declarations coupled
with the testimony of PW 1 clearly establish that as
soon as the complainant and the victim boarded the
bus, the accused switched off the lights of the bus.
Few accused pinned down PW 1 and others
committed rape on the victim in the backside of the
bus one after the other. The accused inserted iron
rods in the private parts of the prosecutrix,
dragging her holding her hair and then threw her
outside the bus. The victim has also maintained in
her dying declaration that the accused persons
were exhorting that the victim has died and she be
thrown out of the bus. Ultimately, both the victim
and the complainant were thrown out of the moving
bus through the front door, having failed to throw
them through the rear door. The chain of action
and the act of finally throwing the victim and PW 1
out of the bus show that there was unity of object
among the accused to commit rape and destroy the
evidence thereof.

CRL.A. 1175/2018 other connected matters Page 150 of 159

471. In this case, the existence of conspiracy is
sought to be drawn by an inference from the
circumstances:

(i) the accused did not allow any other
passenger to board the bus after PW 1 and
the prosecutrix boarded the bus;

(ii) switching off the lights; pinning PW 1 down
by some while others commit
rape/unnatural sex with the prosecutrix at the
rear side of the bus;

(iii) exhortation by some of the accused that the
victim be not left alive; and

(iv) their act of throwing the victim and PW 1
out of the running bus without clothes in the
wintery night of December.

Existence of conspiracy and its objects is inferred
from the above circumstances and the words
uttered. In my view, the courts below have rightly
drawn an inference that there was prior meeting of
minds among the accused and they have rightly
held that the prosecution has proved the existence
of conspiracy to commit gang rape and other
offences."

(emphasis supplied)

159. The aforesaid judgments were followed by the Apex Court in the
case of Bilal [email protected] Hameed v. State Rep by Inspector of
Police reported in 2018 SCC OnLine SC 1865. The relevant para's
is reproduced as under:

"27. The expression "criminal conspiracy" is
defined in Section 120-A, Indian Penal Code. It

CRL.A. 1175/2018 other connected matters Page 151 of 159
says that when two or more persons agree or
cause to be done an illegal act or an act, which is
not illegal by illegal means, such an agreement is
designated a "criminal conspiracy". It then
provides an exception to the effect that no
agreement except an agreement to commit an
offence shall amount to a criminal conspiracy
unless some act besides the agreement is done by
one or more parties to such agreement in
pursuance thereof. The explanation appended to
the Section clarifies that it is immaterial whether
the illegal act is the ultimate object of such
agreement or is merely incidental to that object.

28. Section 120-B, Indian Penal Code provides a
punishment for committing an offence of criminal
conspiracy. It says that whoever is a party to a
criminal conspiracy to commit an offence
punishable with death, imprisonment for life, or
rigorous imprisonment for a term of two years or
upwards shall be punished in the same manner as
if he had abetted such offence provided there is no
express provision made in the Code for
punishment of such conspiracy.

29. Sub-section (2) of Section 120-B, Indian Penal
Code, however, provides that a person who is a
party to a criminal conspiracy other than a
criminal conspiracy to commit an offence
punishable as aforesaid shall be punished with an
imprisonment of either for a term not exceeding six
months or with fine or both.

30. Reading of Section 120-A and Section 120-B,
Indian Penal Code makes it clear that an offence
of "criminal conspiracy" is a separate and distinct
offence. Therefore, in order to constitute a
criminal conspiracy and to attract its rigor, two
factors must be present in the case on facts: first,
involvement of more than one person and second,
an agreement between/among such persons to do

CRL.A. 1175/2018 other connected matters Page 152 of 159
or causing to be done an illegal act or an act
which is not illegal but is done or causing to be
done by illegal means.

31. The expression "criminal conspiracy" was
aptly explained by this Court in a case reported in
Major E.G. Barsay v. State of Bombay 1961:
(1962) 2 SCR 195. Learned Judge Subba Rao (as
His Lordship then was and later became CJI)
speaking for the Bench in his distinctive style of
writing said:

31. ...The gist of the offence is an agreement
to break the law. The parties to such an
agreement will be guilty of criminal
conspiracy, though the illegal act agreed to
be done has not been done. So too, it is not
an ingredient of the offence that all the
parties should agree to do a single illegal
act. It may comprise the commission of a
number of acts.

32. Therefore, in order to constitute a conspiracy,
meeting of mind of two or more persons to do an
illegal act or an act by illegal means is a must. In
other words, it is sine qua non for invoking the
plea of conspiracy against the accused. However,
it is not necessary that all the conspirators must
know each and every detail of the conspiracy,
which is being hatched and nor it is necessary to
prove their active part/role in such meeting.

33. In other words, their presence and
participation in such meeting alone is sufficient.
It is well known that a criminal conspiracy is
always hatched in secrecy and is never an open
affair to anyone much less to public at large.

34. It is for this reason, its existence coupled with
the object for which it was hatched has to be
gathered on the basis of circumstantial evidence,
such as conduct of the conspirators, the chain of
circumstances leading to holding of such meeting

CRL.A. 1175/2018 other connected matters Page 153 of 159
till the commission of offence by applying the
principle applicable for appreciating the
circumstantial evidence for holding the Accused
guilty for commission of an offence. (See also
Baldev Singh v. State of Punjab.

35. Keeping in view the aforesaid principle of law
which is consistently followed and reiterated by
this Court in several cases, the issue involved in
this case is required to be examined with a view
to find out as to whether Appellant (A-6) was a
member of a criminal conspiracy which was
hatched on 01.09.1991 to kill Siva on 05.09.1991
or in other words whether there is any evidence
to sustain Appellant's conviction Under Section
120-B, Indian Penal Code and, if so, whether the
evidence adduced by the prosecution is in
conformity with the parameters laid down by this
Court to prove the guilt of the Appellant beyond
reasonable doubt."

(emphasis supplied)

160. In view of the judgments cited above, as well as on the basis of
evidence borne out from the previous part of the judgment, it is
established that all the appellants were in agreement with each other
and were actively involved in the commission of the alleged offence.

Hence, the argument raised by the appellants that the prosecution
failed to prove any criminal conspiracy under Section 120-B IPC
among the appellants holds no ground.

Conclusion

161. In our view, the chain of circumstances as recited above coupled
with the law laid down by the Apex Court unerringly leads to one

CRL.A. 1175/2018 other connected matters Page 154 of 159
conclusion and that is the guilt of the Appellants. The prosecution
has been able to prove the case against the Appellants beyond
reasonable doubt. The testimonies of PW-16 (Deepak Kapoor), PW-
18 (Sanjeev Kapoor) and PW-19 (Vishal Verma) are corroborative
and clearly point out towards the Appellants as the perpetrators of the
crime. The police witnesses PW-25 (HC Manoj Raghav), PW-42 (SI
Satya Dev), PW-48 (Insp. Sanjeev Verma) and PW-49 (Insp. Anil
Sharma) have testified in Court on the basis of the records and
demonstrated the line of investigation and have proved arrest of the
Appellants as well as the recoveries made at the instance of the
Appellants. Though the Appellants took up a plea that they were
apprehended/arrested from Nepal Border but despite opportunity
provided to them they failed to raise any defence. Further there is no
cogent reason to disbelieve the testimonies of the police witnesses
that the recoveries were made pursuant to the disclosure statements
made by the appellants. The conviction of the Appellants in the
present case is not based solely on the testimonies of police witnesses
PW-25 (HC Manoj Raghav) and PW-49 (Insp. Anil Sharma) but the
chain of events has also been clearly established by the prosecution
with support of testimonies of other witnesses as well, which were
corroborated with the testimonies of PW-25 (HC Manoj Raghav) and
PW-49 (Insp. Anil Sharma).

162. The Call Detail Records of the mobile phones used by the Appellants
as well as the CCTV footage obtained by the Investigating Agency
during the course of investigation undoubtedly points out towards the
guilt of the Appellants and strengthen the story set up by the

CRL.A. 1175/2018 other connected matters Page 155 of 159
prosecution that Appellants (Abhay Dewan Mahima Dewan)
accompanied each other to Faridabad and after picking up Jatin at
about 01:30 am from Faridabad, purchased bandages and Suthol
liquid at 02:43 am from Apollo Pharmacy situated at Sector-9,
Rohini, Delhi. Further in view of the testimonies of the prosecution
witnesses (PW-19(Vishal), PW-25 (HC Manoj Raghav) and PW-49
(Insp. Anil Sharma) it is clear that the swift car
bearing registration no. DL2CAN3335 used in the commission of the
offence was being used by Appellant/Abhay Dewan who was
accompanied by the Appellant/Runeet Gulati and the said car was in
exclusive control and possession of Appellant/Abhay Dewan.
Moreover, the Ballistic analysis report and scientific evidence
produced by the prosecution are clear and cogent that the pistol
(which was recovered at the instance of Abhay Dewan from C2/16,
Sec.15, Rohini, Delhi) was in working condition and was used in
commission of the crime. It was further evidently established by the
prosecution that the residue of kerosene was detected on the black
burnt clothes of the deceased and the blood of deceased (Exhibit '4')
matched with the blood detected on Exhibit '10' (i.e. T-Shirt of
accused, Abhay Dewan), Exhibit '11b', (i.e. Pyjama of accused,
Mahima Dewan), Exhibit '12' (i.e. Pants of accused, Runeet Gulati)
Exhibit '13' (i.e. Knickers of accused, Jatin).

163. After considering the entire evidence and re-appreciating the same in
the light of arguments and the reasons given by the Trial Court, we
are of the view that the chain of circumstances is complete, which
rules out any possibility that there can be any other person than

CRL.A. 1175/2018 other connected matters Page 156 of 159
Appellants who had committed the murder. The circumstances from
which an inference of guilt is drawn are cogently and firmly
established and the circumstances have a definite tendency to
unerringly point towards the appellants as the actual perpetrators of
the crime, who had entered into a criminal conspiracy as per section
120-B to commit this gruesome murder; the circumstances, taken
cumulatively, form a chain so complete that there is no escape from
the conclusion that within all human probability the crime was
committed by the Appellants and no one else. In this background,
we are of the view that the prosecution has succeeded in establishing
its case against the Appellants because the evidence adduced by the
prosecution is sufficient, cogent and credible to establish that the
Appellants have committed the crime.

164. In the present case we find that the act of the Appellants reflects
extreme depravity. It is a case of brutal murder involving most
gruesome and barbaric act. The diabolical manner in which crime
was committed leaves one worried as to the pervert mental state of
the accused persons and the brazenness and coldness with which the
act was committed in the night hours. The horrific act reflecting the
in-human extent to which the accused could go to satisfy their greed,
being completely oblivious, not only to the norms of the society, but
also to the norms of humanity. The gruesome manner in which the
Appellants had killed Shivam and dealt with his body, we
unhesitatingly say that the abhorrent act of the Appellants has
definitely shocked our judicial conscience.

CRL.A. 1175/2018 other connected matters Page 157 of 159

165. Keeping in view the facts of the present case and the nature in which
the ghastly offence was committed with highest viciousness wherein
the human greed was allowed to take such a demonic form, we find
no infirmity in the judgment passed by the learned Trial Court and
we see no cogent reason to interfere with the same.

166. However, a perusal of the record transpires that the Trial Court vide
order dated 05.02.2013 has amended the charges against the
Appellants including the charge under Section 302 IPC which read as
under: -

"Thirdly, on the same intervening night of
17/18.07.2012 in furtherance of the above said
criminal conspiracy you all i.e. accused Abhay
Dewan @ Gappy, Runit Gulati, Mahima Dewan
and Jatin committed the murder of Shivam Kapoor
aged 19 years by using force and also by using the
firearm and deadly weapon (cutter) and thus you
(Abhay Dewan, Runit Gulati and Jatin) Committed
an offence punishable U/s 302 r/w section 120B
IPC and within my cognizance."

167. From the perusal of the amended charge under Section 302 IPC we
find that substantive charge under Section 302 of the IPC has not
been framed against the Appellant/Mahima Dewan. In this
background, punishment for the offence punishable under Section
302 IPC against the Appellant/Mahima Dewan without a substantive
charge is unwarranted. Accordingly, the order on sentence in
relation to Appellant/Mahima Dewan is modified to the extent that
the Appellant/Mahima Dewan is sentenced to undergo all the

CRL.A. 1175/2018 other connected matters Page 158 of 159
sentences except for the offence punishable under Section 302 of the
IPC as directed vide order on sentence dated 19.09.2018.

168. Accordingly, the conviction of the Appellants under Sections
302/201/364/120B IPC read with Section 25/27 Arms Act is upheld
except for conviction of Appellant/Mahima Dewan for the offence
punishable under Section 302 IPC and all the appeals are dismissed.

169. Appellant/Mahima Dewan is directed to surrender within 4 weeks
before the Trial Court. Bail Bonds are cancelled and sureties stand
discharged.

170. Copy of the order be communicated to the Trial Court as well as to
the Jail Superintendent, Tihar Jail.

171. Trial Court record be sent back along with a copy of this order.

Crl.M.(B)1815/2018, Crl.M.(B) Nos.1997/2018, Crl.M.(B)536/2019
Crl.M.(B) 107/2019

1. In view of the above order passed in the appeals, the present
applications are rendered infructuous.

2. All pending applications stand disposed off.

SANGITA DHINGRA SEHGAL, J.

MANMOHAN, J.

SEPTEMBER 20, 2019
gr/da*

CRL.A. 1175/2018 other connected matters Page 159 of 159

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