State vs Sunil Kumar And Ors.
- Court
- Punjab and Haryana High Court
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
207
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
Reserved on: 22.09.2026.
Pronounced on: 28.10.2026.
Uploaded on: 28.10.2026.
Whether only the operative part of the
judgment is pronounced or the full
judgment is pronounced.
Operative part/full judgment
(1)
MRC-1-2026 (O&M)
STATE OF HARYANA
...Prosecutor
VERSUS
SUNIL KUMAR AND OTHERS THROUGH DISTRICT AND SESSIONS
JUDGE, KURUKSHETRA,
...Respondent(s)-accused-convict(s)
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-2-
(2)
CRA-D-40-2026 (O&M)
POONAM AND ANOTHER
...Appellant(s)
VERSUS
STATE OF HARYANA
...Respondent(s)
(3)
CRA-D-75-2026 (O&M)
SUNIL KUMAR @ SUNIL
...Appellant(s)
VERSUS
STATE OF HARYANA
...Respondent(s)
(4)
CRA-D-109-2026 (O&M)
VIKRAM @ VICKY AND ANOTHER
...Appellant(s)
VERSUS
STATE OF HARYANA
...Respondent(s)
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-3-
(5)
CRA-AD-132-2026 (O&M)
DR. ATUL ARORA
...Appellant(s)
VERSUS
STATE OF HARYANA AND ANOTHER
...Respondent(s)
CORAM : HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
HON’BLE MR. JUSTICE RAVINDER MALIK
Present :- Mr. Paras Talwar, Sr. DAG, Haryana.
Mr. Aman Pal, Sr. Advocate;
Ms. Neha Rani, Advocate, Ms. Vidyotma Malik, Advocate,
Mr. Mansi, Advocate, Mr. Rajender Kumar, Advocate
Mr. Sanklap Dhanda, Advocate,
Mr. Sidharth Sehgal, Advocate, Mr. Jayditya, Advocate,
Mr. Rishabh Chaudhary, Advocate,
Mr. Vishal Sehgal, Advocate and
Mr. Balraj Sharma, Advocate
for the appellant/convicts in CRA-D-109-2026.
Mr. Gaurav Datta, Advocate,
for the appellant in CRA-D-75-2026.
Mr. Randeep S. Dhull, Advocate,
Mr. Sanjeev Majra, Advocate and
Mr. Navdeep Singh, Advocate,
for the appellant in CRA-D-40-2026.
Mr. P.S. Ahluwalia, Sr. Advocate (Amicus Curiae) with
Dr. (Ms.) Isha Mehta, Advocate,
Ms. Kadambari Bhan, Advocate,
Ms. Natasha, Advocate
Mr. Harkirat Randhawa, Advocate and
Mr. Bhavi Kapur, Advocate.
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-4-
Mr. Siddharth Sharma, Advocate
Ms. Ameesha Goyal, Advocate, and
Ms. Sanjana Garg, Advocate,
for the appellant in CRA-AD-132-2026 and
for the complainant in MRC-1-2026, CRA-D-40-2026,
CRA-D-75-2026 and CRA-D-109-2026.
VINOD S. BHARDWAJ, J.
Vide this common judgment, we decide MRC-1-2026 received
through the District and Sessions Judge, Kurukshetra, titled as ‘State of
Haryana Vs. Sunil Kumar and others for confirmation of the death sentence
awarded by the trial court along with other matters, i.e. CRA-D-40-2026,
titled as ‘Poonam and Another Vs. State of Haryana’, CRA-D-75-2026, titled
as ‘Sunil Kumar @ Sunil Vs. State of Haryana’ and CRA-D-109-2026, titled
as ‘Vikram @ Vicky and Another Vs. State of Haryana’, preferred by the
accused- convicts against the judgment of conviction dated 15.12.2025,
passed in Sessions Case No.89 of 2023 dated 16.05.2023 by the Additional
Sessions Judge (Fast Track Court Special Court to try the offences of rape and
POCSO Act), Kurukshetra, in a case arising out of FIR No.09 dated
10.01.2023, registered under Sections 120-B, 302, 323, 396 397, and 460 of
The Indian Penal Code, 1860 (for short ‘IPC’) and under Section 25 of The
Arms Act 1959, at Police Station City Thanesar, Kurukshetra, whereby the
respondent(s)-accused persons had been convicted for the commission of
offence under Sections 120-B, 323 read with Section 120-B IPC, 396 read
with Section 120-B IPC, 395 read with Section 397 and further read with
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-5-
section 120-B IPC, 201 read with Section 120-B IPC, 25(6) of the Arms Act,
1959, Section 27 of the Arms Act, 1959, Section 460 read with Section 120-
B IPC, and Section 302 read with Section 120-B IPC and to the order of
sentence dated 20.12.2025 whereby capital punishment has been imposed
upon the convicts for the offences under Section 302 read with Section 120-
B of the Indian Penal Code and while varied sentences have been awarded for
the other offences for which the accused have been convicted.
2 Additionally, CRA-AD-132-2026 titled as ‘Dr. Atul Arora Vs.
State of Haryana and Another’ has also been preferred by the complainant Dr.
Atul Arora challenging the acquittal of accused- respondent No.2-Ket Ram
son of Gori Shankar.
3 Hence, all the above five cases are being decided by a common
judgment.
FACTS IN BRIEF
4 The above FIR was registered on the statement of Dr Atul Arora
son of Sh. Ved Parkash, who runs a hospital on the ground floor while the
upper portion of the premises is used by him for his residential purposes,
where stays alongwith his parents and his wife Vanita Arora. The top floor
was being used as the residence of his domestic help. On 09.01.2023, as per
his routine, he went to his residential portion at about 9.20 P.M., and went
straight to his parents' room. While he was talking with his father, he heard
the shriek of his wife Vanita on which he came out of the room of his parents
and as soon as he came out, two youngsters pointed a gun at his head, pushed
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-6-
him to a sofa in the drawing room and asked him about the money and the
jewellery. He took out Rs.1 lakh from his pocket and gave it to one youngster.
He however did not hear the voice of his wife and the youngsters kept beating
him for about fifteen minutes and they also kept making enquiries about the
location of cash and jewellery. Then they made a specific inquiry as to where
was the temple room and they themselves disclosed that the jewellery was
kept in the upper almirah in the temple room. Thereafter, they made the
complainant sit in the kitchen and discussed about killing him. However, on
the pretext of seeing his parents for the last time, the complainant pushed the
youngsters aside and bolted the door of the room of his parents’ from inside.
He could not make any call as the wires of the phone had been snapped and
the intercom was also disconnected by them. He opened the rear door and
jumped into the open courtyard of the adjoining school situated in the back of
his house, from the balcony of the house, and after scaling over the outer
boundary wall of the school, he came on the road. Thereafter, he knocked at
the door of House No. 109, i.e. one of his neighbours, and narrated the
incident. His neighbour Ashok thereafter made a telephone call to the police,
whereupon a PCR van reached at the spot. He accompanied the police officials
to his residence and rushed towards the bakery of his wife in the residential
portion of the house and found her lying dead on the floor. On checking the
house as well as the almirah, he found that the jewellery belonging to his wife,
as well as the jewellery prepared for the wedding of his daughter, was missing.
He also observed that all three almirahs were open. His mother told him that
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-7-
the miscreants had also taken away her gold bangles and cash at gunpoint. He
suspected that one Poonam, who had earlier been engaged with them as a
domestic maid but was removed for being caught stealing valuables from the
house, was aware as to where the cash and jewellery were kept. He suspected
that Poonam had hatched a conspiracy with her friends and had given effect
to the incident. It was further stated by him that the assailants had also taken
away the DVR pertaining to CCTV Cameras installed on the upper floor along
with them, after damaging the same. He further disclosed that upon hearing
the shriek of his wife, his domestic helper Ket Ram along with his wife had
also come downstairs, but they were also held hostage at gunpoint. The dacoits
had committed dacoity of money, jewellery as well as his mobile phone and
they also committed murder of his wife.
5 On recording of the aforesaid statement EX.P1, the FIR was
registered, whereupon the investigation of the case was initiated. The police
prepared the site plan of the place of occurrence and photographs of the dead
body as well as the scene of crime were taken. Videography was also
conducted. Inquest proceedings were also carried out under section 174 Cr. P.
C. and statements were recorded under Section 175 Cr.P.C. Autopsy of the
dead body of Vanita was conducted. As per the opinion of the doctor, she died
as a result of the head injuries and the complications arising therefrom. It was
further opined that the said head injury was sufficient in an ordinary course to
cause her death. The medico-legal examination of the complainant, Dr. Atul
Arora, was also conducted. Four simple blunt injuries were found on his
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-8-
person.
6 Vide supplementary statement, a list of jewellery articles found
missing was also supplied by the complainant. Thereafter, the CCTV footage
of the cameras installed on the ground floor was retrieved and the complainant
identified one of the accused as Vikram and Vicky who picked up Poonam
from the Hospital on three or four occasions.
7 On receipt of a secret information as to the whereabouts of the
accused and in an attempt to arrest the accused persons, a nakabandi was done
and the accused were intercepted. They were asked to stop but they opened
fire upon the police party, for which incident a separate FIR no. 13, for
offence under Section 307 of the Indian Penal Code as well as the Arms Act
had been registered against them. During interrogation after their arrest, they
confessed to their crime and suffered disclosure statements to the effect that
they had concealed the jewellery, robbed from the complainant’s house, at a
house in Cheeka. Their separate disclosures were recorded. All the accused
persons were taken to the place where the jewellery items had been concealed
by them and the same were recovered at their instance. Additionally, one
mobile phone was also recovered at the instance of Munish. The jewellery and
other articles were identified by the complainant. The police obtained the
Customer application Forms as well as the call detail records of the mobile
phone that was used by the respondent-accused. The clothes worn by the
respondent-accused at the time of commission of the offence were also seized
and sent to the FSL for detecting any blood on the same.
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-9-
8 A chemical examination of the same was also conducted. As per
the report of the chemical examiner, blood was detected on the clothes worn
by the deceased at the time of occurrence and on the grey striped and blue
towel collected from the scene of the crime. Further, blood was also detected
on the swabs as well as gauze that was collected from the scene of the crime.
All these samples carried human blood of B group, except the underwear of
the deceased, on which the blood was inconclusive and the blood on the socks
was disintegrated. Blood however could not be detected on the clothes of the
accused persons.
9 After the arrest, a Test Identification Parade of the respondent
accused was conducted in the presence of the Chief Judicial Magistrate,
Kurukshetra, wherein the complainant identified all four accused persons
namely Vikramjeet Singh @ Bittu, Vikram @ Vicky, Manish Kumar and
Sunil.
10 The police were of the view that the aforesaid four accused
persons had given effect to an armed dacoity and murder of Vanita wife of the
complainant. A firearm was also alleged to have been used by the aforesaid
four accused persons at the time of committing the offence. The said firearm
had been seized in the other case viz FIR no. 13 registered under Section 307
of IPC and it was later taken in possession in the present case as well. Sketches
of the weapons and cartridges were also prepared and taken on record.
11 A sanction order was obtained for prosecution of the respondent
accused persons for commission of offence under the Arms Act. Currency
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-10-
notes worth Rs.1,50,000/- were recovered from the possession of Vikram
Singh, Sunil Kumar, Vikramjeet and Manish Kumar. An inventory of the
seized items was prepared and the same, on identification, was released in
favour of the complainant. There were no third-party claims pertaining to the
same.
12 A final report was filed under Section 173(2) Cr.P.C. and copies
of the documents relied upon by the investigating agency were supplied to the
accused free of cost for compliance of Section 207 Cr.P.C.
13 The offences being triable exclusively by the Court of Sessions,
the Illaqa Magistrate committed the case to the Court of Sessions vide order
dated 9th of May, 2023.
14 Since a prima facie case for commission of offence under Section
120-B, 323, 396, 395, 302, 201 and 460 IPC read with Sections 25(6), 25(7)
and 27 of the Arms Act. 1959, was made out against the respondent accused
persons, hence, a charge was framed against them to which they pleaded not
guilty and claimed trial.
15 In order to bring home the guilt of the accused persons, the
prosecution examined as many as 32 witnesses and also adduced documentary
evidence. The details of the witnesses examined by the prosecution are as
under: -
S. Name of Designation/Description Relevance
No. Witness
PW-1 Dr. Atul Arora Complainant
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-11-
PW-2 Amit Kumar Relative of complainant Son in law of
complainant who
provided CCTV
Footage of place
of occurence
PW-3 Dr. Randeep Crime scene report
Kumar
PW-4 Dalbir Singh Exemptee Head
Constable
PW-5 Dr. Naresh Medical officer Performed PMR
Kumar
PW-6 Dr. Dinesh Medical Officer
Sharda,
PW-7 Gaurav Head Constable
Kumar
PW-8 Ms. Neha Reader to District
Rani Magistrate
PW-9 Satyawan Sub Inspector
PW- Manoj Pal, R.C. Clerk
10
PW- Ms. Navjeet Chief Judicial Magistrate Conducted T.I.P
11 Klair,
PW- Sh. Harish Judicial Magistrate
st
12 Sabbarwal 1 Class
PW- Nar Singh Sub Inspector
13
PW- Jodha Ram Head Constable
14
PW- Jagdeep Head Constable
15
PW- Dalbir Singh Head Constable
16
PW- Virender Assistant Sub Inspector
17 Vikram
PW- HC Pardeep Head Constable
18 Kumar
PW- ASI Surender Assistant Sub Inspector Registered other
19 Kumar FIR on secret
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-12-
information
PW- Labh Singh Head Constable
20
PW- Devender Pal Nodal Officer, Vodafone-
21 Idea
PW- Subash Exemptee Sub Inspector
22 Chander
PW- Sudeep Assistant Sub Inspector
23 Kumar
PW- Sher Singh Assistant Sub Inspector
24
PW- Mahender Retired Inspector
25 Singh
PW- Joginder Assistant Sub Inspector
26 Singh
PW- Jasbir Singh Private witness Hostile Witness-
27 Conspirator
Poonam
Allegedly used
his phone
PW- Adesh Nodal Officer, Reliance
28 Chauhan Jio
PW- Rohit Kumar Nodal Officer, Airtel
29
PW- Satish Kumar Inspector Initial I.O
30
PW- Rishi Pal Inspector
31
PW- Parteek Inspector Second I.O –
32 Kumar CIA Incharge
16 The details of the documentary evidence tendered by the
prosecution is tabulated as under: -
Sr. Document(s) Exhibited as
No.
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-13-
1 Complaint Ex.P1
2 List of robbed articles Ex.P2
3 Statement of Dr. Atul Arora U/s 175 Ex.P3
Cr.P.C.
4 Receipt of dead body Ex.P4
5 Postmortem report of Ms. Vanita Arora Ex.P5
6 MLR of Dr. Atul Arora Ex.P6
7 Identification memo of jewellery items Ex.P7
8 Application for superdari Ex.P8
9 Superdarinama Ex.P9
10 Photographs Ex.P10
11 Photographs Ex.P11
12 Photographs Ex. P12
13 Photographs Ex. P13
14 Photographs Ex. P14
15 Photographs Ex. P15
16 Photographs Ex. P16
17 Photographs Ex. P17
18 Photographs Ex. P18
19 Photographs Ex P19
20 Photographs Ex. P20
21 Photographs Ex. P21
22 Photographs Ex. P22
23 Photographs Ex. P23
24 Photographs Ex. P24
25 Photographs Ex. P25
26 Photographs Ex. P26
27 Photographs Ex. P27
28 Photographs Ex P28
29 Photographs Ex. P29
30 Photographs Ex. P30
31 Photographs Ex. P31
32 Certificate U/s 65-B Evidence Act Ex. P32
33 Possession memo of pen drive Ex. P33
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-14-
34 Crime scene visit report Ex. P34
Possession memo of pen drive Ex. P34 (again)
35 Certificate U/s 65-B evidence Act Ex. P35
36 Affidavit in evidence by Dr. Naresh Kumar Ex. P36
(with PW5)
37 Application to SMO LNJP Hospital,
Kurukshetra
Ex. P37
38 Ruqa Ex. P38
39 MLR of Manish Ex. P39
40 FIR Ex. P40
41 Endorsement on complaint Ex. P1 Ex. P41
42 Sanction Order Ex. P42
43 Application to In-charge Registration Ex. P43
Authority
44 Vehicle Particulars of No. Ex. P44
HR05AL-5459
45 FSL Report Ex. P45
46 FSL Report Ex. P46
47 Application for Identification Parade Ex. P47
48 Copy of order dated Ex. P48
11.01.2023
49 Copy of order on Test Identification Ex. P49
Report
50 Copy of order dated Ex. P50
11.01.2023
51 Application for taking certified copy of
order dated
11.01.2023
Ex. P51
52 Copy of order dated Ex. P52
11.01.2023
53 Application for transfer of case property Ex. P53
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-15-
54 Copy of order dated Ex. P54
21.03.2023
55 Application for Certified copy of order
regarding transfer of
case property
Ex. P55
56 Possession Memo of parcel Ex. P56
57 Possession Memo of parcel Ex. P57
58 Envelope Ex. P58
59 Possession Memo of parcel Ex. P59
60 Affidavit in evidence by HC Jodha Ram Ex. P60
(with PW14)
61 Possession Memo of parcel Ex. P61
62 Possession Memo of parcel Ex. P62
63 Possession Memo of parcel Ex. P63
64 Possession Memo of parcel Ex. P64
65 Demarcation Memo Ex. P65
66 Memo regarding search of Hard Disk and Ex. P66
Mobiles
67 Disclosure statement of Ex. P67
Vikram @ Vicky
68 Disclosure Statement of Sunil Ex. P68
Kumar
69 Disclosure Statement of Vikramjit Singh Ex. P69
70 Disclosure Statement of Ex. P70
Manish Kumar
71 Demarcation Memo Ex. P71
72 Disclosure statement of Ex P72
Vikram @ Vicky
73 Disclosure Statement of Sunil Ex. P73
Kumar
74 Disclosure Statement of Vikramjit Singh Ex. P74
75 Disclosure Statement of Ex. P75
Manish Kumar
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-16-
76 Disclosure statement of Ex. P76
Umesh Kumar
77 Inventory of Currency notes Ex. P77
78 Possession Memo of currency notes Ex. P78
79 Sketch of Pistol Ex. P79
80 Sketch of Pistol Ex. P80
81 Sketch of Pistol Ex. P81
82 Sketch of Pistol Ex. P82
83 Possession Memo Ex. P83
84 Inventory of currency notes Ex. P84
85 Possession Memo Ex. P85
86 Disclosure Statement of Ket Ex. P86
Ram
87 Sample Seal (Case property) Ex. P87
88 Affidavit in Evidence by HC Labh Singh Ex. P88
(with PW20)
89 Certificate U/s 65B of Evidence Act Ex. P89
90 Customer Application Form of No. 80532- Ex. P90
24069
91 CDR of No. 80532-24069 Ex. P91
92 Customer Application Form of No. 99925- Ex. P92
04355
93 CDR of No. 99925-04355 Ex. P93
94 Letter by Nodal Officer VI to DSP Ex. P94
Kurukshetra
95 Affidavit in Evidence by ESI Subhash Ex. P95
Chand (with PW-22)
96 Scaled Site Plan Ex. P96
97 Application to Armohar Kurukshetra Ex. P97
98 Test Report Ex. P98
99 Copy of register No.19 Ex. P99
100 Copy of register No.19 Ex P100
101 Possession memo Ex. P101
102 Certificate U/s 65B of Evidence Act Ex.P102
103 Customer Application Form of Mobile Ex. P103
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-17-
No.8168939863
104 Customer Application Form of Mobile Ex. P104
No.83076-74705
105 Call details report of Mobile Ex. P105
No.8168939863
106 Call Details report of Ex. P106
Mobile No.83076-74705
107 Statement of HC Labh Singh u/S 161 Ex. P107
Cr.P.C.
108 Statement of HC Labh Singh u/S 161 Ex. P108
Cr.P.C.
109 Customer application Form of Mobile Ex. P109
No.98962-48064
110 Call details report of Mobile Ex. P110
No.98962-48064
111 Customer application Form of Mobile Ex. P111
No.89300-09024
112 Call detail report of Mobile Ex. P112
No.89300-09024
113 Customer application Form of Mobile Ex. P113
No.8950036800
114 Call details report of Mobile Ex. P114
No.8950036800
115 Customer application Form of Mobile Ex. P115
No.90342-37639
116 Call detail report of Mobile Ex. P116
No.90342-37639
117 Rough site plan Ex. P117
118 Police Proceeding on complaint Ex.P1 Ex. P118
119 Inquest proceedings Ex. P119
120 Application for scaled site plan Ex. P120
121 Statement of Jasbir Singh Ex. P121
122 Arrest form of Umesh Ex. P122
123 Disclosure statement of accused Poona, Ex. P123
124 Rough site plan Ex. P124
125 Application to Incharge Police Control Ex. P125
Room
126 Application to Incharge Police Control Ex. P126
Room
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-18-
127 Copy of wireless Log Ex. P127
128 Report of Emergency response support Ex. P128
system
129 Finger Print report Ex. P129
130 Copy of order dated 21.02.2023 by CJM, Ex. P130
Kurukshetra
131 Endorsement on order dated 21.02.2023 Ex. P131
132 Detail of articles Ex. P132
133 Rough site plan Mark-A
134 Inquest Report Mark-PA
135 FIR with Ex. P-40 Mark-PB
136 Copy of page from Modi’s Medical Mark-A
Jurisprudence
17 Additionally, the case property proved during the trial is
tabulated as under: -
Sr. No. Document(s) Exhibited as
1 Pen-drive Ex.MO1
2 Pen Drive Ex.MO2
3 X-ray films Ex.MO3 to Ex.MO7
4 Clothes of the deceased Ex.MO8 to Ex.MO14
5 Stripes towel Ex.MO15
6 Gause Piece Ex.MO16
7 Outer case of DVR Ex.MO17
8 Clothes of accused Vikram @ Ex.MO18 to Ex.MO21
Vicky
9 Clothes of accused Manish Ex.MO22 and Ex.MO23
10 Clothes of accused Sunil Ex.MO24 to Ex.MO26
11 Cloths of accused Vikramjeet Ex.MO27 to Ex.MO29
12 Currency notes Ex.MO30 to Ex.MO36
13 Mobile Phone of accused Ex.MO37
Manish
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-19-
14 Country-made pistol
recovered from accused
Vikram alias Vicky
Ex.MO38
15 One live Cartridge recovered
from accused Vikram alias
Vicky
Ex.MO39
16 Country-made pistol
recovered from accused
Manish
Ex.MO40
17 One live Cartridge recovered Ex.MO41
from accused Manish
18 Empty cartridge from Ex.MO42
accused Manish
19 One lead from accused Ex.MO43
Manish
20 Country-made pistol
recovered from accused Sunil
Ex.MO44
21 One live Cartridge recovered Ex.MO45
from accused Sunil
22 Country made pistol
recovered from accused
Vikramjeet Singh
Ex.MO46
23 One live Cartridge recovered
from accused Vikramjeet
Singh
Ex.MO47
24 Empty cartridge from Ex.MO48
accused Vikramjeet Singh
25 Country-made pistol
recovered from Gian Singh,
accused in another case
Ex.MO49
26 Missed cartridge recovered
from Gian Singh, accused in
another case
Ex.MO50
18 Prosecution gave up PW Dr. Ananya Arora, PW Neelam,
Director RFSL Moginand, Panchkula, ASI Sanjeev Kumar, ASI Pardeep
Kumar, Head Constable Dinesh and Head Constable Mahesh Kumar, SI
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-20-
Daljeet Singh, Head Constable Lalit Kumar, EHC Sanjay, Sudarshna, Ashok
Kumar, Dr. Deepali Goyal, Head Constable Ram Kumar, ASI Randhir Singh,
Lady Constable Sonia, Head Constable Sanjeev Kumar and Lady SI Sunita
and closed the prosecution evidence after exhausting its list.
19 The entire incriminating evidence was put to the respondent-
accused persons and their statements were recorded under Section 313 of
Cr.P.C. They denied the entire incriminating material and pleaded false
implication while claiming their innocence.
20 Despite availing a number of opportunities, no evidence was led
in defence.
21 After hearing the parties and upon consideration of their
respective submissions as well as the evidence brought on record, the Trial
Court concluded that the prosecution succeeded in proving its case against the
respondent-accused namely (1) Sunil Kumar, (2) Manish Kumar, (3)
Vikramjeet @ Bittu, (4) Vikram @ Vicky and (5) Poonam for the commission
of offences punishable under Sections 120-B and 323, 395, 396, 397, 302, 460
and 201 of Indian Penal Code beyond reasonable doubt. Accused Sunil
Kumar, Manish Kumar, Vikramjeet @ Bittu and Vikram @ Vicky were also
held guilty for the commission of offences punishable under Section 25 (6) of
the Arms Act. Further, accused Vikram @ Vicky and Manish were also held
guilty for the commission of offences punishable under Section 27 of the
Arms Act. The other two accused, Ket Ram and Umesh Kumar, were,
however, acquitted of the charges framed against them.
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-21-
22 The case was fixed for hearing the convicted accused on the
quantum of sentence.
23 After granting an opportunity of hearing and considering all
mitigating and aggravating circumstances, the trial court imposed the
following sentence on the respondent accused persons: -
Sentence in
Default of
Payment of
Sr.
Under Section Punishment Fine
No.
Fine
All the convicts are
sentenced to undergo
Rigorous
Imprisonment for
life.
Section 120-B
1 of the Indian
Penal Code
Rs.
10,000/-
each
Simple
Imprisonment
for six months
Section 323
read with
Section 120-B
of the Indian
Penal Code
All the convicts are
sentenced to undergo
Rigorous
Imprisonment for one
year.
Simple
Imprisonment
for fifteen
days
Rs. 1,000/-
each
2
Section 396
read with
Section 120-B
of the Indian
Penal Code
All the convicts are
sentenced to undergo
Rigorous
Imprisonment for
life.
Rs.
10,000/-
each
Simple
Imprisonment
for six months
3
Section 395
read with
Section 397
and further
read with
Section 120-B
of the Indian
Penal Code
All the convicts are
sentenced to undergo
Rigorous
Imprisonment for
life.
Rs.
10,000/-
each
Simple
Imprisonment
for six months
4
Section 201
read with
Section 120-B
of the Indian
Penal Code
All the convicts are
sentenced to undergo
Rigorous
Imprisonment for
three years.
Rs.
10,000/-
each
Simple
Imprisonment
for six months
5
6 Section 25(6) Convicts namely (1) Rs. Simple
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-22-
Sentence in
Default of
Payment of
Sr.
Under Section Punishment Fine
No.
Fine
of Arms Act, Sunil Kumar, (2)
1959 Manish Kumar, (3)
Vikramjeet @ Bittu,
(4) Vikram @ Vicky
are sentenced to
undergo Rigorous
Imprisonment for
fourteen years.
10,000/- Imprisonment
each for six months
Convicts namely
Vikram @ Vicky and
Manish are sentenced
to undergo Rigorous
Imprisonment for five
years.
Section 27 of
7 Arms Act,
1959
Rs.
10,000/-
each
Simple
Imprisonment
for six months
Convicts namely (1)
Sunil Kumar, (2)
Manish Kumar, (3)
Vikramjeet @ Bittu,
(4) Vikram @ Vicky
are sentenced to
undergo Rigorous
Imprisonment for ten
years.
Section 460 of
Indian Penal
Code read with
Section 120-B
of Indian Penal
Code
Rs.
10,000/-
each
Simple
Imprisonment
for six months
8
Section 302 of
Indian Penal
Code read with
Section 120-B
of Indian Penal
Code
All the convicts:
death penalty
To be hanged by the
neck till death
9
-- --
24 Hence, the reference was sent before this Court. While the
convicted accused have preferred their separate appeals, the complainant has
also preferred an appeal against the acquittal of Ket Ram bearing CRA-AD-
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-23-
132-2026 titled as Dr Atul Arora Vs. State of Haryana and another.
ARGUMENTS ON BEHALF OF THE ACCUSED
ABSENCE OF DIRECT EVIDENCE
25 Learned Senior Counsel appearing on behalf of the accused
contends that the present case suffers from material inconsistencies,
deficiencies and contradictions in the testimonies of the witnesses examined
by the prosecution. He contends that the aforesaid contradictions and
deficiencies are prime and raise grave apprehensions with respect to the
quality and fairness of the investigation conducted by the respondent-State
and establish that the prosecution has not been able to complete its chain of
events against the accused persons. It is contended that the present case is not
that of an eyewitness account and is rather based on circumstantial evidence.
As per the judgment and the law laid down by the Supreme Court in the matter
of Sharad Birdhichand Sarda v. State of Maharashtra reported as 1984(4)
SCC 116, in a case based upon circumstantial evidence, the prosecution has
to complete the chain of events in a manner as would lead to an inescapable
conclusion against the accused persons for the commission of offence and by
no one else. The relevant extract of the judgment reads thus: -
“152. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against an
accused can be said to be fully established: -
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-24-
(1) the circumstances from which the conclusion of guilt is to be
drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned 'must or should' and not 'may be'
established. There is not only a grammatical but a legal
distinction between 'may be proved' and 'must be or should be
proved' as was held by this Court in Shivaji Sahebrao Bobade v.
State of Maharashtra, (1973) 2 SCC 793 where the following
observations were made:
"certainly, it is a primary principle that the accused must
be and not merely may be guilty before a Court can
convict. The mental distance between 'may be' and 'must
be' is long and divides vague conjectures from sure
conclusions."
(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should
not be explainable on any other hypothesis except that the
accused is guilty.
(3) the circumstances should be of a conclusive nature and
tendency.
(4) they should exclude every possible hypothesis except the one
to be proved, and
(5) there must be a chain of evidence so complete as not to leave
any reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human
probability the act must have been done by the accused.
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-25-
153. These five golden principles, if we may say so, constitute
the panchsheel of the proof of a case based on circumstantial
evidence.”
26 Referring to the above learned Senior counsel contends that the
discrepancies and contradictions in the present case create serious doubts with
respect to the completion of the chain of events. The link evidence leading to
the solitary hypothesis of the involvement of only the accused persons in the
commission of the offence is grossly amiss. The case of the prosecution is
liable to fail on the said ground alone.
27 Learned Senior Counsel further contends that the prosecution
case, being founded substantially upon circumstantial evidence, must be
tested with greater care and that each circumstance relied upon by the
prosecution must be proved independently and must form an unbroken chain
pointing only towards the guilt of the accused. It is argued that the
complainant neither witnessed the actual infliction of the fatal injury upon
Vanita nor did he identify all the persons, who had entered the house, in
circumstances free from doubt. The alleged recoveries, CCTV footage, call
detail records and disclosure statements, according to learned counsel, do not
independently establish the participation of each accused and cannot be
aggregated to cure the deficiencies in one another. It is thus submitted that
suspicion, however strong, cannot substitute proof beyond reasonable doubt
and that any missing link in the chain should enure to the benefit of the
accused.
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-26-
28 He submits that the entire case of the prosecution stands on three
foundational pillars and none of them have been lawfully established. The
foundational pillars of the prosecution case and evidence are: -
I Naming and identification of one of the suspects i.e.
Vikram @ Vicky by the complainant and its corroboration
by way of the identification of the accused in the Test
Identification Parade;
II The disclosure of the accused leading to the recovery of the
loot; and
III The electronic evidence i.e. the CCTV footage from the
ground floor showing the 04 accused who entered the
house and corroborated by the Call Data Records.
29 He contends that none of the above said evidence is credible or
admissible as per law. The prosecution is thus relying solely on probability
and possibility rather than the probative value of the evidence. He elaborates
his arguments and the same are set out as under: -
TEST IDENTIFICATION PARADE
30 Learned Senior counsel contends that the complainant Dr. Atul
Arora identified one Vikram Alias Vicky, who had visited the hospital a few
time to pick up his domestic help (co-accused/conspirator) Poonam. He
expressed an apprehension that since all four accused persons specifically
inquired about the location of the almirah in the temple (where the jewellery
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-27-
and other articles had been kept) and as the said location was known only to
a handful of persons including Poonam and Ket Ram, hence, their
involvement in the offence could not be ruled out. It is submitted that only a
suspicion was expressed and the accused were not previously known to the
complainant, hence, the Test Identification Parade of the accused was required
to be conducted. It is submitted that on the very next day, i.e. on 10th of
January, 2023, the accused persons were arrested by the investigating agency
after intercepting them on Kaithal/Cheeka Road by the police in staged
encounter for which a separate FIR No.13 dated 10.01.2023 was also
registered for commission of offences including under Section 307 IPC and
Arms Act. He contends in respect of FIR No. 13 dated 10.01.2023 that the
accused persons have already been acquitted and a finding was recorded
against the investigating agency to the effect that the encounter had been
staged and that the allegations of cross-firing against the respondent-accused
persons were false, after noticing that the gunshot injury sustained by one of
the accused, namely, Manish Kumar, was caused from point-blank range. He
contends that in the said circumstances, the arrest of the accused in the present
case and recovery of the arm alleged to have been used in the commission of
the present offence also stand vitiated.
31 He further submits that out of the four persons who committed
the offence, the person with a muffled face was identified as Vikram @ Vicky
while the other three were complete strangers. Their identification has not
been established as per law. He contends that in such circumstances, Test
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-28-
Identification Parade was a crucial piece of evidence to establish the identity
but the same itself fails to satisfy the judicial satisfaction.
32 It is vehemently contended that the mandatory procedure
required to be followed for a Test Identification Parade, so as to preserve its
sanctity and evidentiary value, was not followed in the present case. Reference
is made to the provisions as specified in the High Court Rules and Orders
as well as the Punjab Police Rules as applicable to Haryana for conduct of
Test Identification Parade.
33 The relevant extract of the Punjab and Haryana High Court Rules
and Orders, Volume III, Chapter 11-C, Part C reads as under: -
“The following instructions have been issued by the Punjab
Government for the guidance of Magistrates in their conduct of
identification parades (Punjab Government circular letter No.
6091-J, 36/39829 (Η. Judl.); dated the 19th December, 1936, to
all District Magistrates in the Punjab): -
(1) The Magistrate in charge of an identification parade should
prepare a list of all persons, including the accused, who form
part of the parade. This list should contain the parentage,
address and occupation of each member of the parade.
(2) When any witness identifies a member of the parade, the
Magistrate should note in what connection he is identified. A note
should also be made if the witness identifies a person wrongly;
in such a case it is incorrect to note that the witness identified
nobody. All persons identified must be mentioned, whether the
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-29-
identification is right or wrong. If a witness, on being called for
the purpose, states that he cannot make any identification, a note
should be recorded by the Magistrate to this effect.
(3) Should the accused make any complaint or statement it should
be recorded by the Magistrate. If, from his personal knowledge,
the Magistrate is able to decide beyond doubt that the complaint
is false or futile, a note to this effect should be made, but in other
cases it is advisable to leave any decision as to the value to be
attached to the objection to the court trying the case. The
Magistrate should also record any statement made by a witness
before making identification.
(4) The Magistrate should state-
(a) What precautions he has taken to ensure-
(i) that the witnesses do not see the person to be identified
by them before the identification proceedings commence;
(ii) that no communication which would facilitate
identification is made to any witness who is awaiting his
turn to identify; and
(iii) that after making identification the witnesses do not
communicate with other witnesses who have yet to do so;
(b) Whether the person to be identified is hand-cuffed or is
wearing fetters; and if so, whether or not other persons taking
part in the parade are handcuffed or are wearing fetters, and also
whether or not they are inmates of the Jail.
(5) At the end of the Magistrate should append a certificate.
RAJ KUMAR ARORA
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I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-30-
2. The following further instructions have been issued by
the Punjab Government on the subject. (Punjab Government
circular letter No. 6546-J-43/33844 (Н. Judl.), dated the 17th
December, 1943, to all District Magistrates in the Punjab) :-
In cases where the identification of the accused is disputed and
is a matter of importance, the request of an accused for an
identification parade should not be refused. Such a request
should not also be rejected merely because it is regarded as a
measure to create delay, as it should be possible to arrange an
identification parade without delay. Again a request to hold such
a parade should not be refused on the ground that it is some
considerable time since the witnesses last saw the accused and
the accused may have changed in appearance in the meantime,
and in such cases in his report on the parade the magistrate can
record when the witnesses did see the accused last.
3. In districts in which the experiment of separation of judiciary
from the executive is being tried, the work relating to the holding
of identification parades should be done by the Judicial
Magistrates.
(Punjab Government Letter No. 16848-G-55/ 11327, dated 16th
February, 1956, to all Deputy Commissioners in Punjab.”
34 The relevant extract of the Punjab Police Rules, 1934, (as
applicable to Haryana) reads as under: -
Rule 26.32. Identification of suspects.-
(1) The following rules shall be strictly observed in confronting
arrested suspects with the witnesses, who claim to be able to
RAJ KUMAR ARORA
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integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-31-
identify them.
(a) The suspect, who is to be subjected to an identification
parade, shall be informed about it at the time of their arrest to
enable them to take necessary precautions by way of keeping
their faces covered and a request shall be made to the Magistrate
to record a note in the remand papers regarding such
precautions having been taken by them so as to eliminate any
subsequent objection by the suspects that they had been shown to
the witnesses before the identification parade was held. The
proceedings shall be conducted by a Magistrate; if no Magistrate
is available and the case is of great urgency then, by a Sarpanch
who may summon one or two independent and literate, if
possible, persons or reliable characters, not interested in the
case, to assist him and to certify that the identification has been
conduct under conditions precluding collusion. Such
proceedings shall not be conducted by a Police Officer. The
Police Officer concerned, before inviting a Sarpanch to conduct
the proceedings must ensure that the Sarpanch is not biased or
interested in or against accused or suspect and that he
understands the rules of the proceedings. Every effort should be
made to secure the presence of a Magistrate and services of
Sarpanch only secures when absolutely necessary. In the absence
of a Sarpanch, a Lambardar may be invited to do the needful.
b) Arrangements shall be made, whether the proceedings are
being held inside a jail or elsewhere, to ensure that the
identifying witnesses shall be kept separate from each other and
at such a distance from the place of identification as shall render
it impossible for them to see the suspect, or any of the persons
concerned in the proceedings, until they are called up to make
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-32-
their identification.
(c) Identification shall be carried out as soon as possible after
the arrest of the suspects.
(d) The suspects shall be placed among other persons similarly
dressed and of the same religion and social status, in the
proportion of 8 or 9 such person to one suspect. Each witness
shall then be brought up separately to attempt his identification.
Care shall be taken that the remaining witnesses are still kept out
of sight and hearing and that no opportunity is permitted for
communications to pass between witnesses who have been called
up and those who have not. If it is desired, through fear of
revenge of for other adequate reasons, that witnesses shall not
be seen by the suspects, arrangements shall be made for the
former, when called up to stand being a screen or be otherwise
placed so that can see clearly without being seen.
(e) The results of the tests shall be recorded by the Magistrate or
other person conducting the test in Form 26.32(1)(e) as each
witness views the suspect. On conclusion, the Magistrate or the
Sarpanch or the Lambardar and the witnesses, if any, shall sign
the form and certify that the test has been carried out correctly
and that no collusion between the police and witnesses of among
the witnesses themselves was possible. It is advisable that,
whenever possible, an independent and reliable person, un-
connected with the Police, should be present throughout the
proceedings at the place where the witnesses are kept, and should
be required to devote his attention to the prevention of collusion.
It is important that once the arrangements for the proceedings
have been undertaken, no police officer whatsoever shall have
RAJ KUMAR ARORA
2026.10.28 18:06
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integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-33-
any access whatever either to the suspects or to the witnesses.]
(2) Proceedings of the nature described above are extra-judicial.
It is not the duty of the officer conducting them or of the
independent witnesses to record statements or cross examine
either suspects or identifying witnesses, but they should be
requested to question the latter as to the circumstances in which
they saw the suspect whom they claim to identify, and to record
the answer in column 4 of the form. While every precaution shall
be taken to prevent collusion, the identifying witnesses must be
given a fair chance, and conditions must not be imposed, which
would make it impossible for a person honestly capable of
making an identification to do so. In this connection attention is
invited to paragraph 814 of the Punjab Jail Manual, which
strictly prohibits the alteration in any way of the personal
appearance of un-convicted prisoners, so as to make it difficult
to recognize them.”
35 Learned Senior Counsel contends that, as per the High Court
Rules and Orders as well as the Police Rules applicable to the State, at the
time of conducting a Test Identification Parade, it is mandatory to maintain a
ratio of 8:1, and that all persons so assembled for identification must be of
similar height and appearance. Apart therefrom, they are also required to be
similarly dressed. Further, the investigating officer is also to maintain a
detailed list of the persons who had been joined in the test identification
parade in the presence of the Magistrate.
36 It is argued with vehemence that the aforesaid safeguards have
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-34-
been prescribed to maintain the sanctity of the test identification parade and
to rule out any possibility of a wrong person being identified and tried for
commission of the offence.
37 It is contended that even though four persons were to be
identified, as per the deposition of PW11-the Chief Judicial Magistrate,
Kurukshetra, there were only 8 persons who were joined in the Test
Identification Parade. The accused persons were placed at even numbers, i.e.
2, 4, 6 and 8, and that even though it may not be disputed that all the persons
were identified but the identification of Vikram alias Vicky could not be done
in first attempt. He refers to the specific extracts of the deposition and cross-
examination of the Chief Judicial Magistrate, Kurukshetra, wherein it is
admitted by him that there is no detailed record maintained with respect to the
identity and names and addresses of the persons who were joined in the test
identification parade along with the accused persons and also that they were
not similarly dressed.
38 It is vehemently contended that, in the aforesaid circumstances,
the Test Identification Parade conducted by the prosecution was not in
conformity with the mandatory procedure and safeguards prescribed under the
statutory rules and reiterated through a catena of judicial pronouncements.
Consequently, the Test Identification Parade deserves to be accorded no
evidentiary weight.
39 Learned counsel contends that another aspect of the TIP which
needs to be kept in mind is that after the arrest of the accused persons in FIR
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No.13 dated 10th January 2023, their photographs were printed in Newspaper.
They were seen wearing the clothes which carried identifiable insignia logo
and colour. He contends that the police took the clothes worn by the accused
persons in their possession only on 16th January 2023 ( corroborated from the
deposition of the investigating officer to the effect that the accused were made
to take off their clothes and were given other clothes on 16.01.2023). Hence,
on the date of the test identification parade, they were wearing the clothes that
had already been known to the general public after publication of the
photographs of the accused persons. Learned Senior Counsel places reliance
on the judgment of the Supreme Court in the matter of Rajesh @ Sarkari and
another Vs. State of Haryana, reported as 2021(1) SCC 118 . The relevant
extract of the judgment reads thus: -
“36. The prosecution has submitted that an adverse inference
should be drawn against the appellants for refusing to submit
themselves to a TIP. Before we deal with the circumstances in
which the appellants declined a TIP, it becomes essential to
scrutinize the precedent from this Court bearing on the subject.
A line of precedent of this Court has dwelt on the purpose of
conducting a TIP, the source of the authority of the investigator
to do so, the manner in which these proceedings should be
conducted, the weight to be ascribed to identification in the
course of a TIP and the circumstances in which an adverse
inference can be drawn against the accused who refuses to
undergo the process. The principles which have emerged from
the precedents of this Court can be summarized as follows:
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(i) The purpose of conducting a TIP is that persons who
claim to have seen the offender at the time of the occurrence
identify them from amongst the other individuals without tutoring
or aid from any source. An identification parade, in other words,
tests the memory of the witnesses, in order for the prosecution to
determine whether any or all of them can be cited as eye-witness
to the crime;
(ii) There is no specific provision either in the CrPC or the
Indian Evidence Act, 1872 which lends statutory authority to an
identification parade. Identification parades belong to the stage
of the investigation of crime and there is no provision which
compels the investigating agency to hold or confers a right on the
accused to claim a TIP:
(iii) Identification parades are governed in that context by
the provision of section 162 of the CrPC, 1973;
(iv) A TIP should ordinarily be conducted soon after the
arrest of the accused, so as to preclude a possibility of the
accused being shown to the witnesses before it is held;
(v) The identification of the accused in court constitutes
substantive evidence;
(vi) Facts which establish the identity of the accused
person are treated to be relevant under Section 9 of the Evidence
Act;
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(vii) A TIP may lend corroboration to the identification of
the witness in court, if so required;
(viii) As a rule of prudence, the court would, generally
speaking, look for corroboration of the witness' identification of
the accused in court, in the form of earlier identification
proceedings. The rule of prudence is subject to the exception
when the court considers it safe to rely upon the evidence of a
particular witness without such, or other corroboration;
(ix) Since a TIP does not constitute substantive evidence,
the failure to hold it does not ipso facto make the evidence of
identification inadmissible;
(x) The weight that is attached to such identification is a
matter to be determined by the court in the circumstances of that
particular case;
(xi) Identification of the accused in a TIP or in court is not
essential in every case where guilt is established on the basis of
circumstances which lend assurance to the nature and the quality
of the evidence; and
(xii) The court of fact may, in the context and
circumstances of each case, determine whether an adverse
inference should be drawn against the accused for refusing to
participate in a TIP. However, the court would look for
corroborating material of a substantial nature before it enters a
finding in regard to the guilt of the accused.”
40 Reliance is also placed on the judgment of the Supreme Court in
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the matter of Gireesan Nair Vs. State of Kerala, 2022 SCC Online SC
1558 . The relevant part of the judgment is extracted as under: -
“26. TIPs belong to the stage of investigation by the police. It
assures that investigation is proceeding in the right direction. It
is a rule of prudence which is required to be followed in cases
where the accused is not known to the witness or the complainant
(Matru alias Girish Chandra v. State of U.P.20 ; Mulla and Anr.
v. State of U.P.21 and C. Muniappan and Ors. v. State of Tamil
Nadu22 ). The evidence of a TIP is admissible under Section 9 of
the Indian Evidence Act. However, it is not a substantive piece of
evidence. Instead, it is used to corroborate the evidence given by
witnesses before a court of law at the time of trial. Therefore,
TIPs, even if held, cannot be considered in all the cases as
trustworthy evidence on which the conviction of an accused can
be sustained ( State of H.P. v. Lekh Raj and Anr.23 ; and C.
Muniappan and Ors v. State of T.N.24 ). 19 (2010) 3 SCC 508
(Paras 44, 45 and 55) 20 (1971) 2 SCC 75 (Para 17) 22 (2010)
9 SCC 567 (Para 42) 23 (2000) 1 SCC 247 (Para 3)
xxx xxx xxx
28. In cases where the witnesses have had ample opportunity to
see the accused before the identification parade is held, it may
adversely affect the trial. It is the duty of the prosecution to
establish before the court that right from the day of arrest, the
accused was kept “baparda” to rule out the possibility of their
face being seen while in police custody. If the witnesses had the
opportunity to see the accused before the TIP, be it in any form,
i.e., physically, through photographs or via media (newspapers,
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television etc…), the evidence of the TIP is not admissible as a
valid piece of evidence ( Lal Singh and Ors v. State of U.P.27 ).
29. If identification in the TIP has taken place after the accused
is shown to the witnesses, then not only is the evidence of TIP
inadmissible, even an identification in a court during trial is
meaningless ( Shaikh Umar Ahmed Shaikh and Anr. v. State of
Maharashtra 29). Even a TIP conducted in the presence of a
police officer is inadmissible in light of Section 162 of the Code
of Criminal Procedure, 1973 ( Chunthuram v. State of
Chhattisgarh30 and Ramkishan Mithanlal Sharma v. State of
Bombay31 ).
30. It is significant to maintain a healthy ratio between suspects
and nonsuspects during a TIP. If rules to that effect are provided
in Prison Manuals or if an appropriate authority has issued
guidelines regarding the ratio to be maintained, then such
rules/guidelines shall be followed. The officer conducting the TIP
28 (1989) 3 SCC 24 30 (2020) 10 SCC 733 31 (1955) 1 SCR 903
is under a compelling obligation to mandatorily maintain the
prescribed ratio. While conducting a TIP, it is a sinequanon that
the nonsuspects should be of the same agegroup and should also
have similar physical features (size, weight, color, beard, scars,
marks, bodily injuries etc.) to that of the suspects. The concerned
officer overseeing the TIP should also record such physical
features before commencing the TIP proceeding. This gives
credibility to the TIP and ensures that the TIP is not just an empty
formality ( Rajesh Govind Jagesha v. State of Maharashtra32 and
Ravi v. State33 ).
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31. It is for the prosecution to prove that a TIP was conducted in
a fair manner and that all necessary measures and precautions
were taken before conducting the TIP. Thus, the burden is not on
the defence. Instead, it is on the prosecution ( Rajesh Govind
Jagesha v. State of Maharashtra34 ).”
41 Adverting to the above, learned Senior counsel contends that in
the present case, not only has the prescribed statutory ratio not been adhered
to but also that the identification is not based upon recollection from the
incident. Rather, it is based upon the earlier meeting/exposure. The
complainant also does not give any specific instance as to when he had
actually seen or met the accused Vikram @ Vicky. Besides, no specific
questions as to identity had been put, in reference to the roles attributed to
them such as who gave the beating, who held the gun, who asked for the
almirah, who brought the jewellery, etc. Hence, it is not a complete Test
Identification Parade. He further contends that the prosecution witness had the
opportunity to hear the accused but yet, the voice recognition was not
undertaken. Rather, the specific question was also disallowed by the Court.
Apart therefrom, the complainant had also seen the CCTV footage. Hence,
considering it from any angle, the Test Identification Parade does not inspire
confidence and is liable to be disregarded.
ABSENCE OF DOCK IDENTIFICATION
42 Additionally, learned Senior Counsel for the accused submitted
that at the time of recording of the evidence, the specific Dock identification
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had not been undertaken. He contends that since the complainant had levelled
specific attributions against individuals, it was incumbent upon him to identify
the named specific individual at the time of deposition in Court. In the absence
thereof, it cannot be safely concluded that the persons facing trial were in fact
the same persons who were charged with the commission of an offence. He
places reliance on the judgment of the Supreme Court in the matter of P.
Sasikumar Vs. State rep. by Inspector reported 2024 INSC 474, wherein the
prosecution failed on account of absence of Dock identification. The relevant
paragraph of the same are extracted as under: -
“10. The admitted position in this case is that the test
identification parade (hereinafter referred to as ‘TIP’) was not
conducted. All the prosecution witnesses who identified the
accused in the Court such as PW-1 and PW-5 were not known to
the present appellant i.e., accused no.2. They had not seen the
present appellant prior to the said incident. He was a stranger to
both of them. More importantly, both of them have seen the
appellant/accused No. 2 on the date of the crime while he was
wearing a “green colour monkey cap”
11. Now, as one is familiar a monkey cap covers the entire face,
chin and cheek of a person, leaving only his eyes and nose and
part of forehead exposed. These two witnesses (PW-1 and PW-
5), had seen the appellant wearing a monkey cap and that too
from a distance. Under these circumstances, TIP had become
necessary particularly when both the accused, who are alleged
to have committed this murder were arrested within two days.
The incident is of about 7:00 pm on 13.11.2014 and both of them
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were arrested at around 10 pm on 15.11.2014. The case of the
prosecution is that while they were being arrested, they received
injuries as they tried to escape and consequently, they were taken
to the Hospital for treatment. It was in the hospital, that PW-1
i.e. father of the deceased and the complainant and PW-5 were
taken by the Investigating Officer who are said to have identified
the two accused as the one who had committed the crime. No
explanation whatsoever has been given by the prosecution as to
why TIP was not conducted in this case before a Magistrate as it
ought to have been done. In fact, the High Court has recorded
this flaw in the investigation at more than one place in its
judgment. It has again observed that the Investigating Officer
(PW-24) was before the Court and in spite of being questioned
as to what the reasons were for not holding TIP in this case, no
satisfactory reply was given by him.
12. It is well settled that TIP is only a part of Police
investigation .
The identification in TIP of an accused is not a substantive piece
of evidence. The substantive piece of evidence, or what can be
called evidence is only dock identification that is identification
made by witness in Court during trial. This identification has
been made in Court by PW-1 and PW-5. The High Court rightly
dismisses the identification made by PW-1 for the reason that the
appellant i.e., accused no.2 was a stranger to PW-1 and PW-1
had seen the appellant for the first time when he was wearing a
monkey cap, and in the absence of TIP to admit the identification
by PW-1 made for the first time in the Court was not proper.
However, the High Court has believed the testimony of PW-5 who
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has identified accused no.2 under similar circumstances! The
appellant was also stranger to PW-5 and PW-5 had also seen the
accused i.e., the present appellant for the first time on that fateful
day i.e. on 13.11.2014 while he was wearing a green colour
monkey cap. The only reason assigned for believing the testimony
of PW-5 is that he is after all an independent witness and has no
grudge to falsely implicate the appellant. This is the entire
reasoning. We are afraid the High Court has gone completely
wrong in believing the testimony of PW-5 as to the identification
of the appellant. In cases where accused is a stranger to a witness
and there has been no TIP, the trial court should be very cautious
while accepting the dock identification by such a witness (See:
Kunjumon v. State of Kerala (2012) 13 SCC 750).
13. After considering the peculiar facts of the present case, we
are of the opinion that not conducting a TIP in this case was a
fatal flaw in the police investigation and in the absence of TIP in
the present case the dock identification of the present appellant
will always remain doubtful. Doubt always belongs to the
accused. The prosecution has not been able to prove the identity
of the present appellant i.e. A-2 beyond a reasonable doubt.
The relevance of a TIP, is well-settled. It depends on the fact of
a case. In a given case, TIP may not be necessary. The non
conduct of a TIP may not prejudice the case of the prosecution
or affect the identification of the accused. It would all depend
upon the facts of the case. It is possible that the evidence of
prosecution witness who has identified the accused in a court is
of a sterling nature, as held by this Court in the case of Rajesh v.
State of Haryana (2021) 1 SCC 118 and therefore TIP may not
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be necessary. It is the task of the investigation team to see the
relevance of a TIP in a given case. Not conducting TIP in a given
case may prove fatal for the prosecution as we are afraid it will
be in the present case.
14. The relevance of TIP has been explained by this Court in a
number of cases (Please see: Ravi Kapur v. State of Rajasthan
(2012) 9 SCC 2841, Malkhansingh and Ors. v. State of Madhya
Pradesh (2003) 5 SCC 7462).
15. In the facts of the present case, the identification of the
accused before the court ought to have been corroborated by the
previous TIP which has not been done. The emphasis of TIP in a
given case is of vital importance as has been shown by this Court
in recent two cases of Jayan v. State of Kerala (2021) 20 SCC 38
and Amrik Singh v. State of Punjab (2022) 9 SCC 402. In Jayan
(supra), this Court disbelieved the dock identification of the
accused therein by a witness and while doing so, this Court
discussed the aspect of TIP in the following words:
“It is well settled that TI parade is a part of investigation
and it is not a substantive evidence. The question of
holding TI parade arises when the accused is not known to
the witness earlier. The identification by a witness of the
accused in the Court who has for the first time seen the
accused in the incident of offence is a weak piece of
evidence especially when there is a large time gap between
the date of the incident and the date of recording of his
evidence. In such a case, TI parade may make the
identification of the accused by the witness before the
Court trustworthy….” (Para 18) 1 Para 35 2 Para 16"
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CRA-D-75-2026 (O&M)
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DISCLOSURE STATEMENTS AND RECOVERIES
43 Learned counsel contends that the other piece of incriminating
evidence relied upon by the prosecution pertains to the disclosure statements
allegedly made by the accused persons and the consequential recoveries
effected pursuant thereto.
44 It is vehemently contended that, at this stage, the said
simultaneous disclosure statements and the consequential recoveries cannot
be taken into consideration, as they prima facie do not appear to be in
conformity with the mandate of law. It is submitted that as per Section 27 of
the Indian Evidence Act, 1872, the disclosure statement is to be read only with
respect to the discovery of a fact which emerges from the disclosure statement
of an accused, recorded while in police custody. If the disclosure statement is
joint or simultaneous and all statements are identical extracts of each other, it
cannot be discerned as to whose’s disclosure led to the discovery of the fact.
In such an eventuality, only the first disclosure may be protected under
Section 27 of the Indian Evidence Act, 1872. The other disclosures recorded
later thus do not reveal any new fact that was not already known to the
investigating agency. There being no separate recovery pursuant to the other
disclosures, they would be nothing more than confessions of an accused,
recorded by a Police Officer, whilst the accused is in his custody and it would
thus be inadmissible in evidence.
45 In support of his contention, learned Senior Counsel places
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reliance on the judgment of the Supreme Court in the matter of Mohmed
Inayatullah Vs. State of Maharashtra, reported as 1976(1) SCC 828 . The
relevant part of the judgment is extracted as under: -
10. Although the interpretation and scope of sec. 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 remained of its requirements. The
Section says:
"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."
11. The expression "Provided that" together with phrase
"whether it amounts to a confession or not" shows that the section
is in the nature of an exception to the preceding provisions
particularly Secs. 25 and 26. It is not necessary in this case to
consider if this section qualifies, to any extent, Sec. 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
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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 proveable 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 of the statement
which may be indirectly or remotely related to the fact
discovered.
12. 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. Crown,(1) Rex v. Ganee) (2). 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
Palukuri Kotayya and ors. v. Emperor(3), Udai Bhan v. State of
Uttar Pradesh .”
46 Reliance is also placed on the judgment of the Supreme Court in
the matter of Nagamma @ Nagarathna and others, reported as 2025 SCC
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Online SC 2038 . The relevant extract of the same reads thus: -
“27. Disclosure statements taken from one or more persons in
police custody do not go out of the purview of Section 27
altogether, as held in State (NCT of Delhi) v. Navjot Sandhu @
Afsan Guru and reiterated in Kishore Bhadke v. State of
Maharashtra . While asserting that a joint or simultaneous
disclosure would per se be not inadmissible under Section 27 , it
was observed that it is very difficult to place reliance on such an
utterance in chorus; which was also held to be, in fact, a myth.
Recognising that there would be practical difficulty in placing
reliance on such evidence, it was declared that it is for the Courts
to decide, on a proper evaluation of evidence, whether and to
what extent such a simultaneous disclosure could be relied upon.
In Kishor Bhadke, while affirming the above principles in Navjot
Sandhu, the facts revealed were noticed, wherein the information
given by one, after the other, was without any break, almost
simultaneously and such information was followed up by
pointing out the material thing by both the accused, in which
circumstance it was held that there is no reason to eschew such
evidence.”
47 Further reliance is also placed on the judgment of the Supreme
Court in the matter of Anand Jakkappa Pujari @ Gaddaddar Vs. The State
of Karnataka, reported as 2026 INSC 417 . The relevant part of the judgment
reads as under: -
“58. Insofar as joint disclosure statement is concerned, the
position of law is well settled as explained by this Court in the
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case of Navjot Sandhu (supra). We quote the relevant paragraph
as under:-
“145. Before parting with the discussion on the subject of
confessions under Section 27 , we may briefly refer to the
legal position as regards joint disclosures.[…]Some of the
High Courts have taken the view that the wording “a
person” excludes the applicability of the section to more
than one person. But, that is too narrow a view to be taken.
Joint disclosures, to be more accurate, simultaneous
disclosures, per se, are not inadmissible under Section 27 .
“A person accused” need not necessarily be a single
person, but it could be plurality of the accused. It seems to
us that the real reason for not acting upon the joint
disclosures by taking resort to Section 27 is the inherent
difficulty in placing reliance on such information supposed
to have emerged from the mouths of two or more accused
at a time. In fact, joint or simultaneous disclosure is a
myth, because two or more accused persons would not
have uttered informatory words in a chorus. At best, one
person would have made the statement orally and the other
person would have stated so substantially in similar terms
a few seconds or minutes later, or the second person would
have given unequivocal nod to what has been said by the
first person or two persons in custody may be interrogated
separately and simultaneously and both of them may
furnish similar information leading to the discovery of fact.
Or, in rare cases, both the accused may reduce the
information into writing and hand over the written notes to
the police officer at the same time. We do not think that
such disclosures by two or more persons in police custody
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go out of the purview of Section 27 altogether. If
information is given one after the other without any break,
almost simultaneously, and if such information is followed
up by pointing out the material thing by both of them, we
find no good reason to eschew such evidence from the
regime of Section 27 . However, there may be practical
difficulties in placing reliance on such evidence. It may be
difficult for the witness (generally the police officer), to
depose which accused spoke what words and in what
sequence. In other words, the deposition in regard to the
information given by the two accused may be exposed to
criticism from the standpoint of credibility and its nexus
with discovery. Admissibility and credibility are two
distinct aspects, as pointed out by Mr Gopal
Subramanium. Whether and to what extent such a
simultaneous disclosure could be relied upon by the Court
is really a matter of evaluation of evidence. With these
prefatory remarks, we have to refer to two decisions of this
Court which are relied upon by the learned defence
counsel.”
(Emphasis supplied)
xxx xxx xxx
62. Section 27 of the Evidence Act is in the nature of an exception
to the general rules contained in the two preceding Sections 25
and 26 , respectively. Section 25 makes inadmissible any
confession by an accused person to a police officer. Under
Section 26 , no confession by any person while he is in the custody
of a police officer shall be proved against such person unless it
be made in the presence of a Magistrate. Section 27 says that
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such part of the information given by an accused person while in
the custody of a police officer may be proved against him as
distinctly relates to the fact which is thereby discovered. It
therefore makes admissible a confession made while in police
custody if the other conditions laid in it are fulfilled. Being an
exception to the general rule it has to be strictly construed.
Section 27 of the Evidence Act does not permit the admission in
evidence of the whole of the confession, but of such portion only
of it as can be said to relate distinctly to the fact discovered.
xxx xxx xxx
65. We can, of course, envisage a situation wherein more than
one accused makes an oral statement giving the same type of
information one after the other in quick succession. But even in
such a case, unless the guarantee of the truth and voluntary
nature of such statements is obtained by the discovery of a
distinct fact, the provisions of Section 27 would not, in any
manner, help the prosecution. Take for instance, two or three
accused persons make statements in quick succession giving an
information of some or similar nature, and then proceed to
discover different facts from different places. In such a case even
though the statements made by them is treated as “joint” yet the
discovery is not joint because it is the discovery of different facts
from different places. Such discoveries guarantee the protection
contemplated by Section 27 and therefore can be of good use to
the prosecution. In our opinion, the cases of Lachhaman Singh
(supra) and Chhotelal Mohanlal (supra ) referred above were the
cases of this type.
66. It is important to note that in Lachhman Singh (supra) this
Court had doubted the correctness of some High Courts’
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decisions on the question of joint and simultaneous statements.
Referring to the facts of that case, this Court clearly observed
that even if several accused gave information to the police that
dead bodies could be recovered in the “Sakinala” the said
information was indefinite, and could not have led to any
discovery unless the accused followed it up by leading the police
to the actual spot from where the parts of the dead bodies were
recovered. In the Chhotelal Mohanlal (supra), different facts
were discovered from different places by different accused. Thus,
in both these cases discovery evidence was accepted only
because it could be said that the statement made by each accused
related to the facts thereby discovered “distinctly”.
67. At one stage of the hearing of these appeals, the learned AAG
appearing for the State tried to read some of the contents of the
panchanama and confessional statements of the appellants as
well. We are afraid this is something impermissible in law. The
contents of the panchanama are not substantive evidence. The
law is settled on that issue. What is substantive evidence is what
has been stated by the panchas or the persons concerned in the
witness box. [See: Murli v. State of Rajasthan , (2009) 9 SCC 417]
68. In the case before us, the evidence is purely of a joint
discovery of the same mental fact said to have been made by all
the four accused simultaneously with the result that it is not
possible to say which statement of a particular accused relates
distinctly to the discovery of a particular mental fact. Thus, in the
present case, the safeguards contemplated by Section 27 are not
evident, and in the absence of these safeguards, the discovery
evidence of two particular places i.e., the place where the
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deceased was killed and the place where her dead body was burnt
cannot be utilized against the appellants.”
48 Referring to the above, learned Senior counsel submits that the
ratio of the above judgments would be applicable to the facts of the present
case as well. The recovery having been effected from only one spot, hence, it
cannot be said with precision as to statement of which accused relates
distinctly to the discovery of a particular fact. Hence, the safeguards of Section
27 of the Indian Evidence Act, 1872, are not evident.
49 It is further contended that although the respondent-accused
persons disclosed that the jewellery articles were concealed in a room situated
in Subhash Nagar, Guhla, PW.19-ASI Surinder Kumar, on the other hand, has
stated that the said house was situated at village Salempur, Cheeka. It is
contended that the testimony of the prosecution witness thus disclose material
discrepancies with regard to the location of the place wherefrom the alleged
recovery was effected.
50 It is further contended with vehemence that, apart from the
aforesaid discrepancy, the prosecution did not even take pains to identify as
to who was the owner of the property in question. The statement of the
landlord had also not been recorded, hence, the exclusive possession of the
accused over the property wherefrom recovery was effected does not stand
established. Besides, no explanation has also been offered by the prosecution
as to why the said person had not been associated with the investigation. The
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possession of the house/place wherefrom recovery had been effected could be
linked to the accused persons only upon such a statement and in absence
thereof the recovery cannot be fastened against the accused persons.
51 It is further argued that disclosure statements are identical and
verbatim reproductions of each other. The same cannot thus be perceived as a
voluntary disclosure. Besides, that the recovery in question was joint, since
all the accused persons were taken together to the place from where the
alleged recovery was effected.
52 He contends that in such circumstances, the disclosure would not
be a safe piece of evidence to be relied upon and that the recovery so effected
pursuant to such joint disclosures or sequential disclosures would have no
bearing. An investigating officer, in such circumstances, is required to give
detailed elaboration of the sequence in which the disclosures were made and
as to how the same were recorded. Once the needful has not been done, the
recovery should not be accepted.
53 Reliance is also placed on the judgment of the Rajasthan High
Court in the matter of Mohan Vs. State, passed in S.B. Criminal Revision
No.173 of 1956 decided on 02.01.1957 , and the Nagpur High Court in the
matter of State Govt. M.P. Vs. Chhotelal Mohanlal and another, reported as
1955 AIR Nagpur 71 . The relevant paragraph of the above reads thus: -
“ 9. Point No. (ii) :
The next question is whether the simultaneous statements can be
used against either of the accused. The learned Counsel for the
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respondents contends that such a joint statement cannot be used
against any of the accused. Reliance is placed on cases reported
In 'Kudaon v. Emperor' AIR 1925 Nag 407 (A); 'Emperor v.
Yeshaba ' AIR 1938 Bom 463 (B); 'Puttu v. Emperor ' AIR 1945
Oudh 235 (C) and 'Poshaia V, State' .
20. It is not possible to accept this contention of the counsel for
the respondents. We are of the view that the joint or simultaneous
statements of the accused persons are not inadmissible in
evidence. In our opinion, the scheme of Section 27 Evidence Act,
is, to put it in the words ot their Lordships of the Privy Council
in a case reported in 'Pulukuri Kottaya v. Emperor ' AIR 1947 PO
67 (E).
The condition necessary to bring the section into operation is that
discovery of a fact in consequence of information received from
a person accused of any offence in the custody of a Police Officer
must be deposed to, and thereupon so much of the information as
relates distinctly to the fact thereby discovered may be proved.
The section seems to be based on the view that if a fact is actually
discovered in consequence of information given, some guarantee
is afforded thereby that the information was true, and
accordingly can be safely allowed to be given in evidence.
That is to say, the information received from the first source i5
admissible in evidence if it leads to a discovery consequent upon
that information against that source when by the fact discovered
some guarantee is afforded that the information supplied by the
accused is true. Once that information is in the possession of a
Police Officer and the fact is discovered by police thereby any
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subsequent similar information received by the police officer
cannot be said to be such information as leading to the discovery
of the same fact. There cannot be rediscovery of the same fact.”
54 Reliance in also placed on the judgments in the matter of Faqira
Vs. Emperor, 1929 AIR Lahore 665, Durlav Namasudra Vs. Emperor 1932
AIR Calcutta, 297, Rafiqueuddin Ahmad Vs. Emperor, 1935, AIR Calcutta
184, and Putta Vs. Emperor, 1945, AIR Audh, 235 in support of the
contentions.
TEST IDENTIFICATION OF STOLEN JEWELLERY
55 Learned Senior Counsel appearing on behalf of the accused also
contends that not only that the recovered articles of Jewellery are in no way
related to the accused persons but also that the identity of the recovered
articles or the ownership of the complainant has also not been proved. There
was no special knowledge with the complainant or ability with him to identify
the said jewellery articles. Merely because there was no third party objections
raised, the same would not amount to proving ownership of the articles. Thus,
the recovery evidence is unsafe for drawing any adverse inference against the
appellant-accused herein.
ADMISSIBILITY OF ELECTRONIC EVIDENCE
56 Learned Senior Counsel for the accused contends that the
prosecution has placed reliance upon the CCTV footage and the certificate
Ex.P32 issued under section 65-B of the Indian Evidence Act, 1872, by Amit
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Kumar, who is the son-in-law of Dr. Atul Kumar Arora. It is contended that
the CCTV footage retrieved from the DVR of the Camera installed on the
ground floor would be inadmissible in evidence for the following reasons: -
(i) That the aforesaid certificate has been issued by Amit
Kumar PW.2 who was neither the owner nor in
management, control or supervision of the aforesaid
CCTV footage. Hence, he was not competent to issue a
certificate under Section 65 B of the Indian Evidence Act,
1872. The said evidence thus becomes inadmissible in
evidence on account of being non-compliant with the
mandate of Section 65 B of the Indian Evidence Act, 1872.
Reliance is placed by the counsel for the accused on the
judgment of the Supreme Court in the matter of Arjun
Pandit Rao Khotkar Vs. Kailash Kushanrao Gorantyal
reported as AIR 2020 SC 4908 , to contend that the
conditions as outlined in section 65B(4) of the Indian
Evidence Act, 1872, have been held to be satisfied in their
entirety. The expression “any” used in section 65B(4) has
been interpreted to mean “all.” Hence, all the conditions
set forth, including the conditions as prescribed in section
65B (2) of the Indian Evidence Act, 1872, had to be
satisfied, before the CCTV footage could be relied upon.
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(ii) That the certificate (Ex.P32) issued by PW.2 Amit Kumar
is, however, deficient on the said account and does not
conform to the norms as specified. The only declaration
made is that at the time of copying, there was no tampering
of the evidence, whereas the original DVR has not been
produced. On the functionality of the CCTV footage or
that there was no tampering in and with the original
recording device having not been certified, the certificate
is non-compliant of the statutory mandate and hence
inadmissible in evidence.
Reliance is placed on the judgment in the matter of Anvar
P. V. Vs. P.K. Basheer and others, reported as 2014 (10)
SCC 473 . The relevant extract of the same reads thus: -
Any documentary evidence by way of an electronic record
under the Evidence Act , in view of Sections 59 and 65A,
can be proved only in accordance with the procedure
prescribed under Section 65B. Section 65B deals with the
admissibility of the electronic record. The purpose of these
provisions is to sanctify secondary evidence in electronic
form, generated by a computer. It may be noted that the
Section starts with a non obstante clause. Thus,
notwithstanding anything contained in the Evidence Act ,
any information contained in an electronic record which
is printed on a paper, stored, recorded or copied in optical
or magnetic media produced by a computer shall be
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deemed to be a document only if the conditions mentioned
under sub- Section (2) are satisfied, without further proof
or production of the original. The very admissibility of
such a document, i.e., electronic record which is called as
computer output, depends on the satisfaction of the four
conditions under Section 65B(2). Following are the
specified conditions under Section 65B(2) of the Evidence
Act:
(i) The electronic record containing the information
should have been produced by the computer during the
period over which the same was regularly used to store or
process information for the purpose of any activity
regularly carried on over that period by the person having
lawful control over the use of that computer;
(ii) The information of the kind contained in electronic
record or of the kind from which the information is derived
was regularly fed into the computer in the ordinary course
of the said activity;
(iii) During the material part of the said period, the
computer was operating properly and that even if it was
not operating properly for some time, the break or breaks
had not affected either the record or the accuracy of its
contents; and
(iv) The information contained in the record should be a
reproduction or derivation from the information fed into
the computer in the ordinary course of the said activity.
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Under Section 65B(4) of the Evidence Act, if it is desired
to give a statement in any proceedings pertaining to an
electronic record, it is permissible provided the following
conditions are satisfied:
(a) There must be a certificate which identifies the
electronic record containing the statement;
(b) The certificate must describe the manner in which the
electronic record was produced;
(c) The certificate must furnish the particulars of the
device involved in the production of that record;
(d) The certificate must deal with the applicable conditions
mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a
responsible official position in relation to the operation of
the relevant device.
It is further clarified that the person need only to state in
the certificate that the same is to the best of his knowledge
and belief. Most importantly, such a certificate must
accompany the electronic record like computer printout,
Compact Disc (CD), Video Compact Disc (VCD), pen
drive, etc., pertaining to which a statement is sought to be
given in evidence, when the same is produced in evidence.
All these safeguards are taken to ensure the source and
authenticity, which are the two hallmarks pertaining to
electronic record sought to be used as evidence. Electronic
records being more susceptible to tampering, alteration,
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transposition, excision, etc. without such safeguards, the
whole trial based on proof of electronic records can lead
to travesty of justice.
Only if the electronic record is duly produced in terms of
Section 65B of the Evidence Act, the question would arise
as to the genuineness thereof and in that situation, resort
can be made to Section 45A – opinion of examiner of
electronic evidence.
The Evidence Act does not contemplate or permit the proof
of an electronic record by oral evidence if requirements
under Section 65B of the Evidence Act are not complied
with, as the law now stands in India.
It is relevant to note that Section 69 of the Police and
Criminal Evidence Act, 1984 (PACE) dealing with
evidence on computer records in the United Kingdom was
repealed by Section 60 of the Youth Justice and Criminal
Evidence Act, 1999. Computer evidence hence must follow
the common law rule, where a presumption exists that the
computer producing the evidential output was recording
properly at the material time. The presumption can be
rebutted if evidence to the contrary is adduced. In the
United States of America, under Federal Rule of Evidence,
reliability of records normally go to the weight of evidence
and not to admissibility.
Proof of electronic record is a special provision
introduced by the IT Act amending various provisions
under the Evidence Act . The very caption of Section 65A
of the Evidence Act, read with Sections 59 and 65B is
sufficient to hold that the special provisions on evidence
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relating to electronic record shall be governed by the
procedure prescribed under Section 65B of the Evidence
Act. That is a complete code in itself. Being a special law,
the general law under Sections 63 and 65 has to yield.
In State (NCT of Delhi) v. Navjot Sandhu alias Afsan
Guru[1], a two-Judge Bench of this Court had an occasion
to consider an issue on production of electronic record as
evidence. While considering the printouts of the
computerized records of the calls pertaining to the
cellphones, it was held at Paragraph-150 as follows:
“150. According to Section 63 , secondary evidence
means and includes, among other things, “copies
made from the original by mechanical processes
which in themselves insure the accuracy of the copy,
and copies compared with such copies”. Section 65
enables secondary evidence of the contents of a
document to be adduced if the original is of such a
nature as not to be easily movable. It is not in dispute
that the information contained in the call records is
stored in huge servers which cannot be easily moved
and produced in the court. That is what the High
Court has also observed at para 276. Hence,
printouts taken from the computers/servers by
mechanical process and certified by a responsible
official of the service-providing company can be led
in evidence through a witness who can identify the
signatures of the certifying officer or otherwise
speak of the facts based on his personal knowledge.
Irrespective of the compliance with the requirements
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of Section 65-B, which is a provision dealing with
admissibility of electronic records, there is no bar to
adducing secondary evidence under the other
provisions of the Evidence Act , namely, Sections 63
and 65 . It may be that the certificate containing the
details in sub-section (4) of Section 65-B is not filed
in the instant case, but that does not mean that
secondary evidence cannot be given even if the law
permits such evidence to be given in the
circumstances mentioned in the relevant provisions,
namely, Sections 63 and 65 .” It may be seen that it
was a case where a responsible official had duly
certified the document at the time of production
itself. The signatures in the certificate were also
identified. That is apparently in compliance with the
procedure prescribed under Section 65B of the
Evidence Act. However, it was held that irrespective
of the compliance with the requirements of Section
65B, which is a special provision dealing with
admissibility of the electronic record, there is no bar
in adducing secondary evidence, under Sections 63
and 65 , of an electronic record.
The evidence relating to electronic record, as noted herein
before, being a special provision, the general law on
secondary evidence under Section 63 read with Section 65
of the Evidence Act shall yield to the same. Generalia
specialibus non derogant, special law will always prevail
over the general law. It appears, the court omitted to take
note of Sections 59 and 65A dealing with the admissibility
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of electronic record. Sections 63 and 65 have no
application in the case of secondary evidence by way of
electronic record; the same is wholly governed by Sections
65A and 65B. To that extent, the statement of law on
admissibility of secondary evidence pertaining to
electronic record, as stated by this court in Navjot Sandhu
case (supra), does not lay down the correct legal position.
It requires to be overruled and we do so. An electronic
record by way of secondary evidence shall not be admitted
in evidence unless the requirements under Section 65B are
satisfied. Thus, in the case of CD, VCD, chip, etc., the same
shall be accompanied by the certificate in terms of Section
65B obtained at the time of taking the document, without
which, the secondary evidence pertaining to that
electronic record, is inadmissible.”
(iii) Learned Senior Counsel has further contended that for the
sake of argument and without conceding to the same, even
if the said CCTV footage is seen in its entirety, the same
does not establish the presence of the accused persons at
the time of the commission of the offence. The images
therein are blurred and the visuals do not establish the
identity of the persons who entered into the house. He
contends that in the above circumstances, the Test
Identification Parade assumed much significance and that
in the absence of a proven Test Identification Parade, the
participation of the accused in the commission of the
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offence remains an issue which was required to be proved
by the prosecution by leading cogent, convincing and
trustworthy evidence.
(iv) Counsel further contends that PW.2-Amit Arora gave a
contradictory evidence. He initially stated that the Camera
and DVR were managed by him and he had the password
but admitted in his cross-examination that he did not hold
any managerial position and that the CCTV Cameras,
DVR and the LED Screens were not in his sole custody.
Even his father-in-law (PW.1) also had the same. Since
there was no exclusively of the possession and control, it
materially weakens the evidentiary value of the document
as it raises doubts as to the sanctity of the evidence and
raises an issue regarding integrity of the evidence and
possibility of an alteration.
(v) It is further argued that the evidence is further impeached
since PW.2 as he gave a contradictory answer regarding
whether the timelines shown in the CCTV footage could
be edited. He initially admitted to such possibility but later
denied such suggestion. It is argued that there was
admittedly a timeline discrepancy of half an hour in the
footage supplied.
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(vi) As a repetitive upshoot of the argument noticed earlier, it
is submitted that since the exclusive control over CCTV
system has not been established, the evidence being non-
responsive as to who extracted the footage, when and from
which device it was extracted, whether the pen drive was
an exact copy of original DVR recording or not, creates a
substantial gap in an unbroken chain of custody.
(vii) Further, a parting argument has been raised that there is
discrepancy in the testimony of the prosecution witnesses
in as much as, the complainant initially mentioned only
about three persons, however, later, in the complaint he
mentioned about the presence of four persons. However,
the prosecution nominated as many as seven persons. As
per the case of the prosecution, accused persons entered
into the house after being signalled by Ket Ram, however,
Ket Ram has been found innocent along with Umesh
Kumar (who allegedly supplied the fire arm).
(viii) It is further submitted that so far as the participation of
Poonam in the commission of the offence is concerned, the
same has also not been established. The only role
attributed to her is that she made a phone call from the
mobile number of Jasbir (PW.27) to Vikram @ Vicky,
however, the above witness did not support the case of the
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prosecution. Hence, even the allegation of the prosecution
about the involvement of Poonam in the commission of the
offence remains unestablished as neither the phone
number belonged to her nor there is any evidence to the
effect that she made any phone call to Vikram @ Vicky on
or soon before or after the day of the incident.
(ix) Learned Senior counsel further contends that there is also
no evidence that any signal was given by Ket Ram to any
person and hence, there would have been no occasion for
giving a safe passage to the accused. In the said
circumstances, the testimony of the prosecution loses its
credibility.
DISCREPANCIES IN MEDICAL EVIDENCE
57 Learned Senior counsel further argues with vehemence that at
this juncture, the prosecution story seems incorrect in as much as the case of
the prosecution is that the complainant was given beatings by the accused
persons and that he later pushed the assailants and entered into the room of
their parents, which he bolted from inside and then jumped from the house
onto the adjacent school compound and after finding a ladder, he scaled the
wall so as to reach the house of the neighbour. It is contented that the site plan
does not establish any of the said circumstances. The ladder which were used
by the complainant for scaling the school's wall have not been taken into
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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possession. There is complete absence of any specific particulars about the
height from which the complainant jumped from his house onto the roof of
the adjacent school building and corroboration of the subsequent statement.
The said version thus cannot be accepted as gospel truth.
58 It is argued that apart from the medical of the complainant not
corroborating the prosecution version, even the injuries on the deceased have
not been explained. Medical evidence reflects material contradictions and
discrepancies. While the inquest report reflects of an injury mark on the left
side of the head, corroborated by PW.5, post-mortem report shows the injury
to exist on the right temporal occipital region. Similarly, the inquest does not
mention about the blood stains on the clothes of the deceased but while
appearing as PW.5, he stated of blood on sweater, shirt and blazer, which is
also mentioned in the post-mortem report (EX.P36).
59 Referring to the above, counsel contends that the said
discrepancies are vital missing links which render the prosecution case
doubtful and suspect. The judgment of conviction thus deserves to be set
aside.
NON-EXAMINATION OF MATERIAL WITNESSES
60 Learned Senior counsel further contends that there were other
witnesses i.e., Nurse Neelam and Gudiya wife of Ket Ram, who were present
at the place of occurrence, but have not been examined as witnesses. Apart
from that, the other witnesses, namely the parents of the complainant, have
RAJ KUMAR ARORA
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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also not been examined in the present case. It is submitted that after the
complainant Dr. Atul Arora scaled down and jumped over to the roof of the
adjacent school building and escaped, none of the proceedings which
transpired in the house was known to him and said deposition by him would
only be hearsay evidence at best. He went to his neighbour and a phone call
was made but even the said neighbour was not examined.
ARREST OF THE ACCUSED IS SHROUDED IN DOUBT
61 The arrest of the accused persons is shrouded in suspicious
circumstances. As per the case of the prosecution, the accused were arrested
after an encounter. Another FIR No.13 was registered separately qua the
above incident. The accused however have been acquitted in the same. Thus,
the manner in which the appellants have been arrested is itself without merit.
62 It is further argued that as per the undisputed case of the
prosecution and as per the details which are reflected through FIR No.13 dated
10th of January, 2023, one of the accused, Viz Manish Kumar, had sustained
a bullet injury on his leg. The same was thus a fresh injury and hence, he
would have sustained a limp in his body and it was clearly identifiable; hence,
the identity of the accused was compromised at the time when the Test
Identification Parade was conducted.
OFFENCE OF DACOITY NOT MADE OUT
63 It is argued that the evidence is found to be severely deficient qua
involvement of accused Poonam in the commission of the offence; the number
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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of participants in the present case, thus, reduces to less than five, hence, the
offence of dacoity would not be attracted in the present case. It is submitted
that the prosecution case itself alleged that only four persons were present at
the spot. Accused Poonam was undisputedly not present at the spot. In the
absence of five or more persons conjointly having committed or attempted to
commit the robbery, the offence of dacoity is not made out. Since there is
absolutely no evidence, leave apart any credible material, hence, the
foundational circumstances to make out the offence remain unproved. The
CDR has also not established the location of Poonam and there is no
circumstantial evidence as to her participation in the offence or being a part
of the conspiracy.
OFFENCE OF MURDER NOT MADE OUT
64 Learned Senior Counsel further contends that none of the
witnesses has levelled any attribution against any accused of having caused
any injury to Vanita. Hence, the charge for commission of offence under
Section 302 IPC has not been established. It is submitted that even though
there is no dispute that Vanita wife of Dr. Arul Arora, died on 9th of January
2023, however, unless there is a specific attribution or explanation offered by
the prosecution that the said injuries were sustained as a result of any act of
omission on the part of the accused persons, the conviction for commission of
offence under Section 302 IPC cannot be fastened against them.
65 He contends that in this regard, there is no evidence other than an
alleged disclosure of accused Vikram which was recorded by the police. It is
RAJ KUMAR ARORA
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
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contended that the same has not led to any discovery of fact and as such, the
aforesaid statement remains nothing more than a confession of the accused,
recorded while in custody, and thus would be inadmissible in evidence in view
of Section 26 of the Indian Evidence Act, 1872.
66 Further, even though the accused are stated to be armed with
pistol but no firearm was used either against the deceased or any other person.
Thus, there was no intent to cause death. The surrounding circumstances are
crucial for deriving the intent of the assailants. There is no instance or
evidence of any multiple blows or cruelty or even of causing of any injury.
67 Learned Senior counsel contends that the capital punishment has
been awarded for the offence under Section 302 IPC and in the absence of any
evidence to establish any injury having been caused by any of the persons, the
said offence would not be attracted.
68 Learned Senior counsel contends that even though it is not in
dispute that there was a blood mark on the wall and the body was found in the
bakery room of the deceased, the sole explanation offered by the prosecution
is that when Vanita tried to shriek and attract attention, she was pushed by
Vikram, as a result whereof, she sustained injuries. It is contended that the
door of the bakery, however opened outwards towards the lobby; hence, in an
event any person would have pushed, the door would have shut, and there was
no occasion in which she could have sustained an injury by striking of the
head against the wall. Needless to mention that in case the push would have
been straight, the injury and blood stains on a side wall would not have been
RAJ KUMAR ARORA
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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sustained and she would have fallen straight. Thus, the explanation offered,
although an afterthought, is not established when the said explanation is seen
in light of the contemporaneous evidence and the circumstances as well as the
site plan prepared by the police.
OFFENCE OF LURKING HOUSE TRESPASS
69. Learned Senior Counsel submits that the ingredients of Section 460 IPC
have not been established merely because the accused are alleged to have
entered the complainant’s residence and an offence occurred therein. It is
argued that the prosecution must first prove the foundational requirement of
lurking house-trespass by night or house-breaking by night, including the
requisite concealment or other statutory ingredients, and must further
establish that the accused were jointly concerted in the commission of that
particular offence. The evidence, according to the defence, does not establish
the manner of entry, any precaution taken to conceal the trespass, or the
individual participation of each accused in such entry. It is further contended
that Section 460 IPC cannot be invoked as a substitute for proof of murder
and merely because death has taken place within the premises, does not
automatically fasten constructive liability upon every person alleged to have
participated in the robbery. The conviction under the said provision is,
therefore, stated to be unsustainable.
OFFENCE UNDER SECTION 395 AND 397 OF IPC AND ARMS ACT
70 Learned Senior Counsel contends that the conviction for dacoity
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
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cannot be sustained unless the prosecution proves that five or more persons
conjointly committed or attempted to commit robbery, or that the number of
persons committing or attempting the robbery together with those present and
aiding it was five or more. It is submitted that the prosecution itself attributes
the physical entry to four persons, while the alleged role of Poonam as a
conspirator or facilitator is not supported by reliable evidence; the acquittal of
Ket Ram and Umesh, according to the defence, further weakens the
prosecution theory as to the number and identity of the participants. It is
further argued that Section 397 IPC requires proof of the use of a deadly
weapon, the causing of grievous hurt, or an attempt to cause death or grievous
hurt at the time of robbery or dacoity, and that the mere allegation that an
accused was armed does not dispense with proof of the statutory ingredients.
As regards the Arms Act, the defence challenges the reliability and legal effect
of the alleged firearm recoveries, particularly in view of their seizure and
treatment in the separate FIR, and submits that the prosecution has not
established beyond reasonable doubt the requisite possession, use and nexus
of the weapons with the occurrence in question.
ARGUMENTS ON BEHALF OF COUNSEL FOR THE STATE,
COMPLAINANT AS WELL AS AMICUS CURIAE
TEST IDENTIFICATION PARADE
71 Learned counsel for the State, counsel for the complainant as well
as Mr. P.S. Ahluwalia, Sr. Advocate-Amicus Curiae, however, contend that
the arguments advanced on behalf of the accused-appellant are misplaced. It
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
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is contended that the prosecution has successfully established its case beyond
reasonable doubt against the accused persons and that the settled position in
the law fully covers the exigencies and the circumstances in hand. They are
thus not in the nature of any discrepancy or contradiction.
72 While responding to the specific arguments raised by the counsel
for the accused-appellant in relation to the non-compliance of the procedure
for Test Identification Parade as per the mandate of Rule 26.32 (d) of the
Punjab Police Rules as applicable to Haryana as well as the High Court Rules
and Orders, learned Senior Counsel contends that the submission is bereft of
merit. He contends that the reference to Volume 3 Chapter XI-C, Part C of the
High Court Rules and Orders is based upon the instructions issued by the
Government of Punjab vide Circular letter No. 6091/J/36/39829 dated 19th of
December 1936 to all District Magistrates. There was no provision in the
Criminal Procedure code then, however, an amendment was carried out in the
Criminal Procedure Code, incorporating Section 54A w.e.f. 23.06.2006. The
same reads thus: -
“54A. Identification of person arrested .—
Where a person is arrested on a charge of committing an offence
and his identification by any other person or persons is
considered necessary for the purpose of investigation of such
offence, the Court, having jurisdiction may, on the request of the
officer in charge of a police station, direct the person so arrested
to subject himself to identification by any person or persons in
such manner as the Court may deem fit:
RAJ KUMAR ARORA
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
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[Provided that, if the person identifying the person
arrested is mentally or physically disabled, such process of
identification shall take place under the supervision of a Judicial
Magistrate who shall take appropriate steps to ensure that such
person identifies the person arrested using methods that person
is comfortable with:]
Provided further that if the person identifying the person
arrested is mentally or physically disabled, the identification
process shall be videographed.”
73 Referring to the above, it is submitted that the Court having
jurisdiction in this regard may, on the request of the officer in charge of a
Police Station, direct the person arrested to subject himself to identification in
such manner as the Court may deem fit. It is argued that after the arrest of the
accused persons in the present case on 10th of January 2023, at about 10:00
P.M., they were required to be immediately presented before the Chief
Judicial Magistrate lest their identity is exposed.
74 An application Ex.P47 was moved by the investigating officer
for carrying out a Test Identification Parade on 11.01.2023, before lunch, and
the same was allowed by the Chief Judicial Magistrate vide his order dated
11.01.2023 (EX.P48). It is submitted that the Test Identification Parade was
conducted in the presence of the Chief Judicial Magistrate himself and that,
as the law prescribes that the Test Identification Parade may be conducted in
such manner as the Court may deem fit, hence, the presence of the Chief
Judicial Magistrate at the time of the Test Identification Parade itself
RAJ KUMAR ARORA
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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obliterates all apprehensions as may be expressed by the counsel for the
accused. He contends that the judgments relied upon by the counsel for the
accused do not take into consideration the statutory provision and provided in
Cr.P.C. and the impact thereof once the TIP has been conducted in the
presence of the Chief Judicial Magistrate himself. No abnormality was
pointed out by the Chief Judicial Magistrate. Had there been any breach of the
rules of prudence, such an aberration or anomaly would have been noticed.
Hence, the procedure adopted by the Chief Judicial Magistrate with respect to
a Test Identification Parade carried out in his presence should not be tested on
the touchstone of the non statutory instructions that had been issued in 1936.
The provision as prescribed in the Cr.P.C. shall supersede the instructions
issued by the Government on an executive side.
75 Learned counsel contends that the Chief Judicial Magistrate has
recorded a finding that the persons joined in the TIP were similar in their
appearance and gait with the accused and that no other hypothesis, founded
merely upon conjectural apprehensions expressed by the accused-appellant
can be taken into consideration to impeach the validity of the Test
Identification Parade. He refers to the judgment in the matter of State of
Maharashtra Vs. Suresh reported as 2000 (1) RCR (Crl.P) 149 , and contends
that the Supreme Court observed that no test identification period can escape
from one or two lapses. A scrutiny cannot be made from that angle alone and
the Test Identification Parade cannot be treated as having been vitiated on
such lapses, as in such circumstances, every TIP would become unusable. He
RAJ KUMAR ARORA
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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contends that the Test Identification Parades are not primarily meant for the
Court, rather, they are meant for investigation purposes. The object behind
conducting a Test Identification Parade is twofold, i.e. first to enable the
witnesses to satisfy themselves that the prisoner whom they suspect is really
the one who was seen by them in connection with the commission of the crime
and secondly to satisfy the investigating authorities that the suspect is the real
person whom the witnesses had seen in connection with the said occurrence.
So, the Test Identification Parade is required to be carried out keeping the
aforesaid object in mind. The judge keeps the guidelines in mind and the only
requirement is that any relaxation should not impair the purpose for which
the Test Identification Parade is held. The relevant extract of the judgment
reads thus: -
“20. The last reasoning of the Division Bench is based on a
criticism of the modes adopted by the Executive Magistrate who
held the test identification parade. The aforesaid criticism was
based on the evidence of two witnesses who said that the accused
were taken on foot from police station to the place where the
parade was conducted and that their faces were not covered
during such transit.
xxx xxx xxx
22. If potholes were to be ferreted out from the proceedings of
the magistrates holding such parades possibly no test
identification parade can escape from one or two lapses. If a
scrutiny is made from that angle alone and the result of the parade
is treated as vitiated every test identification parade would become
RAJ KUMAR ARORA
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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unusable. We remind ourselves that identification parades are not
primarily meant for the court. They are meant for investigation
purposes; The object of conducting test identification parade is
two fold. First is to enable the witnesses to satisfy themselves that
the prisoner whom they suspect is really the one who was seen by
them in connection with the commission of the crime. Second is to
satisfy the investigating authorities that the suspect is the real
person whom the witnesses had seen in connection with the said
occurrence. So the officer conducting the test identification parade
should ensure that the said object of the parade is achieved. If he
permits dilution of the modality to be followed in a parade, he
should see to it that such relaxation would not impair the purpose
for which the parade is held, vide Budhsen v. State of Uttar
Pradesh , [1970] 2 SCO 128 and Ramanathan V. State of Tamil
Nadu, [1978] 3 SCC 86.”
76 It is also argued by him that the substantive evidence in a criminal
prosecution is the evidence of identification in Court and the Test
Identification Parade merely provides a corroboration to the identification of
the witnesses in Court. The relevant extract of the judgment reported as
Malkhana Singh and others Vs. State of Madhya Pradesh, 2003 (3) RCR
(Crl.) 550 , and relied in support thereof reads thus: -
“15. It is well settled that the substantive evidence is the evidence
of identification in court and the test identification parade
provides corroboration to the identification of the witness in
court, if required. However, what weight must be attached to the
evidence of identification in court, which is not preceded by a test
identification parade, is a matter for the courts of fact to examine.
RAJ KUMAR ARORA
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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In the instant case the courts below have concurrently found the
evidence of the prosecutrix to be reliable and, therefore, there
was no need for the corroboration of her evidence in court as she
was found to be implicitly reliable. We find no error in the
reasoning of the courts below. From the facts of the case it is
quite apparent that the prosecutrix did not even know the
appellants and did not make any effort to falsely implicate them
by naming them at any stage. The crime was perpetrated in broad
daylight. The prosecutrix had sufficient opportunity to observe
the features of the appellants who raped her one after the other.
Before the rape was committed, she was threatened and
intimidated by the appellants. After the rape was committed, she
was again threatened and intimidated by them. All this must have
taken time. This is not a case where the identifying witness had
only a fleeting glimpse of the appellants on a dark night. She also
had a reason to remember their faces as they had committed a
heinous offence and put her to shame. She had, therefore,
abundant opportunity to notice their features. In fact on account
of her traumatic and tragic experience, the faces of the appellants
must have got imprinted in her memory, and there was no chance
of her making a mistake about their identity. The occurrence took
place on March 4, 1992 and she deposed in Court on August 27,
1992. The prosecutrix appears to be a witness on whom implicit
reliance can be placed and there is no reason why she should
falsely identify the appellants as the perpetrators of the crime if
they had not actually committed the offence. In these
circumstances if the courts below have concurrently held that the
identification of the appellants by the prosecutrix in court does
not require further corroboration, we find no reason to interfere
with the finding recorded by the courts below after an
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CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
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appreciation of the evidence on record.”
77 Reliance is also placed on the judgment of the Supreme Court in
the matter of Anil Kumar v. State of UP, reported as 2003 (1) RCR (Crl.) 820
wherein the Supreme Court dealt with an issue as to whether a delay in the
Test Identification Parade would be a sufficient reason to discard the
identification. It was held that when an incident is gruesome, it is likely to
lead to an etched memory which would help a witness to recall the identity of
the person who committed the offence. In the above-said case, the Supreme
Court noticed that such identification can also be conducted after 7½ years.
The Supreme Court reiterated that the identification of an accused in the Court
is the substantive evidence and that if the same is found to be reliable, then
even the absence of corroboration by the test identification is not material.
The relevant extract of the judgment reads thus: -
“9. xxx xxxx xxx
It is to be seen that apart from stating that delay throws a doubt
on the genuineness of the identification parade and observing
that after lapse of such a long time it would be difficult for the
witnesses to remember the facial expressions, no other reasoning
is given why such a small delay would be fatal.
. xxx xxxx xxx
12. We are unable to accept these submissions. In the case of Brij
Mohan v. State of Rajasthan reported in AIR (1994) SC 739 the
test identification parade was held after 3 months. The argument
was that it was not possible for the witnesses to remember, after
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
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a lapse of such time, the facial expressions of the accused. It was
held that generally with lapse of time memory of witnesses would
get dimmer and therefore the earlier the test identification
parade is held it inspires more faith. It is held that no time limit
could be fixed for holding a test identification parade. It is held
that sometimes the crime itself is such that it would create a deep
impression on the minds of the witnesses who had an occasion to
see the culprits. It was held that this impression would include
the facial impression of the culprits. It was held that such a deep
impression would not be erased within a period of 3 months.
13. In the case of Daya Singh vs. State of Haryana reported in
AIR 2001 SC 1188 the test identification parade was held after a
period of almost 8 years inasmuch as the accused could not be
arrested for a period of 7-1/2 years and after the arrest the test
identification parade was held after a period of 6 months. The
cases of Hari Nath (supra) as well as Soni (supra) were relied
upon on behalf of the accused in that case . Both these cases were
considered by this Court. The injured witnesses had lost their son
and daughter-in-law in the incident. It was pointed out that the
purpose of test identification parade is to have the corroboration
to the evidence of the eye witnesses in the form of earlier
identification. It was held that the substantive evidence is the
evidence given by the witness in the Court. It was held that if that
evidence is found to be reliable then the absence of corroboration
by the test identification is not material. It was further held that
the fact that the injured witnesses had lost their son and
daughter-in-law showed that there were reasons for an enduring
impression of the identity on the mind and memory of the
witnesses. Reliance was also placed upon the following
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MRC-1-2026 (O&M) with
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CRA-D-75-2026 (O&M)
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paragraph in the case of State of Maharashtra v. Suresh reported
in (2000) 1 SCC 471:
"We remind ourselves that identification parades are not
primarily meant for the Court. They are meant for
investigation purposes. The object of conducting a test
identification parade is twofold. First is to enable the
witnesses to satisfy themselves that he prisoner whom they
suspect is really the one who was seen by them in
connection with the commission of the crime. Second is to
satisfy the investigating authorities that the suspect is the
real person whom the witnesses had seen in connection
with the said occurrence."
This Court therefore concurred with the High Court that the
categorical evidence of the witnesses received corroboration
from the test identification parade even though it was held late.
The conviction of the Appellants in that case was upheld.”
78 He submits that in the matter of Pargan Singh Vs. State of Punjab and
another, reported as 2014 (14) SCC 619 , the Supreme Court examined the
aspect of Test Identification Parade and held that depending upon the nature
of the offence, even a small exposure for a brief duration of 90 seconds may
also leave a lasting impression in the minds of the witnesses and that he may
still identify the accused.
79 Referring to the above, counsel contends that in the present case,
the TIP was got conducted without any delay and as per law, even though the
exposure of the complainant to the accused persons may be of short duration,
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
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where the victim/complaint was staring in the face of death and is recalling
horrors of an offence which not only resulted in loss of his wife, but also of
an offence of dacoity, the identification of the accused by the complainant
should not be doubted. Relevant extract of the judgment reads thus: -
“14. Let us first discuss the testimonies of PW-2 and PW-3 who
are stated to be the eye-witnesses. Both of them have narrated
the incident in unison and their version is almost the same. PW-
2, who is the injured witness, has even in his cross-examination,
narrated that deceased was attacked first by the accused and
after firing the shot at him, the accused fired PW- 2 when they
were flee with the bag of money. The occurrence lasted for 1½
minutes. He has further stated that few seconds after the receipt
of injury, he became unconscious and regain consciousness after
4 days of receipt of the injury. The testimony of this witness is
sought to be discredited by arguing that when the incident lasted
for only 90 seconds, it was difficult to remember the faces of the
accused persons after 7½ years of the incident, particularly in
the absence of previous acquaintance.
15. Before entering upon the discussion on this aspect specific to
this case, we would like to make some general observations on
the theory of “memory”. Scientific understanding of how
memory works is described by Geoffrey R. Loftus while
commenting upon the judgment dated January 16, 2002 rendered
in the case of Javier Suarez Medina v. Janie Cockrell by United
States Court of Appeals, Fifth Circuit in Case No.01-10763. He
has explained that a generally accepted theory of this process
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was first explicated in detail by Neisser (1967) and has been
continually refined over the intervening quarter-century. The
basic tenets of the theory are as follows: First, memory does not
work like a video recorder. Instead, when a person witnesses
some complex event, such as a crime, or an accident, or a
wedding, or a basketball game, he or she acquires fragments of
information from the environment. These fragments are then
integrated with other information from other sources. Examples
of such sources are: information previously stored in memory
that leads to prior expectations about what will happen, and
information-both information from external sources, and
information generated internally in the form of inferences- that
is acquired after the event has occurred. The result of this
amalgamation of information is the person's memory for the
event. Sometimes this memory is accurate, and other times it is
inaccurate. An initial memory of some event, once formed, is not
“cast in concrete.” Rather, a memory is a highly fluid entity that
changes, sometimes dramatically, with the passage of time.
Every time a witness thinks about some event-revisits his or her
memory of it-the memory changes in some fashion. Such changes
take many forms. For instance, a witness can make inferences
about how things probably happened, and these inferences
become part of the memory. New information that is consistent
with the witness's beliefs about what must have happened can be
integrated into the memory. Details that do not seem to fit a
coherent story of what happened can be stripped away. In short,
the memory possessed by the witness at some later point (e.g.,
when the witness testifies in court) can be quite different from the
memory that the witness originally formed at the time of the
event. Memory researchers study how memory works using a
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variety of techniques. A common technique is to try to identify
circumstances under which memory is inaccurate versus
circumstances under which memory is accurate. These efforts
have revealed four major sets of circumstances under which
memory tends to be inaccurate. The first two sets of
circumstances involve what is happening at the time the to-be-
remembered event is originally experienced, while the second
two sets of circumstances involve things that happen after the
event has ended. The first set of circumstances involves the state
of the environment at the time the event is experienced. Examples
of poor environmental conditions include poor lighting, obscured
or interrupted vision, and long viewing distance. To the degree
that environmental conditions are poor, there is relatively poor
information on which to base an initial perception and the
memory that it engenders to begin with. This will ultimately result
in a memory that is at best incomplete and, as will be described
in more detail below, is at worst systematically distorted. The
second set of circumstances involves the state of the observer at
the time the event is experienced. Examples of suboptimal
observer states include high stress, perceived or directly inflicted
violence, viewing members of different races, and diverted
attention. As with poor environmental factors, this will ultimately
result in a memory that is at best incomplete and, as will be
described in more detail below, is at worst systematically
distorted. The third set of circumstances involves what occurs
during the retention interval that intervenes between the to-be-
remembered event and the time the person tries to remember
aspects of the event. Examples of memory-distorting problems
include a lengthy retention interval, which leads to forgetting,
and inaccurate information learned by the person during the
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retention interval that can get incorporated into the person's
memory for the original event. The fourth set of circumstances
involves errors introduced at the time of retrieval, i.e., at the time
the person is trying to remember what he or she experienced.
Such problems include biased tests and leading questions. They
can lead to a biased report of the person's memory and can also
potentially change and bias the memory itself.
16. While discussing the present case, it is to be borne in mind
that the manner in which the incident occurred and description
thereof as narrated by PW-2, has not been questioned on the
ground that narration should not be believed because of lapse of
time. Instead, the appellants have joined issue on a very limited
aspects viz. their identification on the ground that faces of the
culprits could not have been remembered after 7½ years of the
occurrence as memory fades by that time.
17. We are of the opinion that under the given circumstances and
keeping in view the nature of incident, 90 seconds was too long
a period which could enable the eye-witness (PW-2) to watch the
accused persons and such a horrible experience would not be
easily forgotten. Death of a friend and near death experience by
the witness himself would be etched in the memory for long.
Therefore, faces of accused persons would not have been
forgotten even after 7½ years.
18. Whether a particular event or the faces of a person could be
remembered would depend upon the circumstances under which
those faces are seen. One cannot lose sight of the fact that here
is a case where the two accused persons are the assailants who
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had shot dead Varun Kumar, companion of PW-2. Thereafter,
they had fired at PW-2 as well. For PW-2, it was clearly a horror
scene resulting into traumatic experience. In a case like this, even
when these two assailants had remained before his face for 90
seconds, these 90 seconds was sufficiently long time to observe
them closely and the person encountering such an event would
not forget those faces even for a life time, what to talk for 7½
years that have elapsed in between. We would like to support our
hypothesis with an anecdote. Once a friend of Einstein, the
renowned scientist who invented the theory of relativity, asked
him to explain that theory. Mr. Newton explained it in a simple
manner for common man's understanding as under: If a boy is
sitting with his girlfriend/lover, he would feel the time fly away
and 60 minutes would seem as 60 seconds. On the other hand, if
a person puts his finger in a hot boiling water, 60 seconds would
feel like 60 minutes. This is the theory of relativity.
19. In the present case, the circumstances on which the PW-2
seen the accused persons even for 90 seconds, that was sufficient
to absorb their faces. In contrast, things would be different if it is
a case of some large get together where two unknown persons
have a chance meeting for 90 seconds. Therefore, we reject the
argument of learned counsel for the appellants that PW-2 could
not recollect the face of the appellants after 7½ years and thus,
he was not telling the truth. We have to keep in mind that PW-2
suffered serious injury because of the shot fired at him by the
assailants and seriousness of the injury has resulted into
conviction under Section 307 IPC as well. The testimony of an
injured witness requires a higher degree of credibility and there
have to be strong reasons to describe the same. The appellants
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have not been able to demonstrate that the courts below
unreasonably reached the conclusion as to the admissibility of
the testimony of PW-2. Apart from a very feeble submission that
this witness identified the appellants 7½ years after the incident,
their arguments do not address the issue of whether testimony of
PW-2 was false. We are, thus, not at all impresses by this
argument of the learned counsel for the appellants. Except that
PW-3 is not an injured eye- witness, he has also seen the
occurrence and the reasons given in support of attaching
credibility to the statement of PW-2 would apply in his case as
well.
80 Learned counsel contends that the Supreme Court has placed a
heavier reliance on the Test Identification Parade conducted in the presence
of a Magistrate and has kept it at a high pedestal. He submits that in the matter
of Ram Nath Mahto Vs. State of Bihar, reported as 1997(1) RCR (Crl.), 54,
the Supreme Court has even placed reliance on the deposition of identification
of the accused by the Magistrate, against the accused persons, notwithstanding
that the victim did not identify the accused person in Court. The Supreme
Court held that once the identification of the witnesses was done during the
Test Identification Parade and in the presence of the Magistrate, if on account
of intervening circumstances, he does not support his statement at the time of
deposition before the Court, yet the Test Identification Parade conducted in
the presence of the Magistrate, where the accused were identified, would be
sufficient unto itself to record a finding of conviction. Hence, there is no
reason to doubt the TIP witnessed by the Magistrate. The relevant extract of
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the judgment reads thus: -
“2. It was a night robbery in a running train. The appellant was
allegedly one of the dacoits. A person was killed during the
course of commission of dacoity and the dacoits caused hurts to
others and looted their property. P.W.6, Diwakar Yadav, was one
such person who was robbed. The Train Ticket Examiner, P.W.3,
was also one of the occupants in the train who was injured. The
occurrence took place shortly after the train left Keshar station
for its onward journey to Calcutta. This incident happened in the
State of Bihar. The matter was reported to the police by P.W.3.
The appellant, was later arrested as one of the culprits. He was
put to identification parade conducted by Judicial Magistrate.
Bharatji Misra, P.W.7. Thereat, P.W.6 was able to identify the
appellant as one of the dacoits besides others, with whom we are
presently not concerned with, and claimed that he was the one
who had a revolver with him which he employed during the
course of the occurrence.
3. At the trial P.W.7 fully supported the prosecution case,
deposing that P.W.6 had before him identified the appellant as
the dacoit carrying a revolver. P.W.6, however, chose not to
identify the appellant at the trial and rather said that he could
not recognize the accused whom he had identified at the
identification parade. When his pointed attention was drawn
towards the appellant, he did not identify him. At that juncture,
the trial judge recorded his remarks as to his demeanor that the
witness perhaps was afraid of the accused. It thus became evident
that the witness was frightened to accord recognition to the
appellant at the trial. Despite such bend in the prosecution case,
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the trial court as also the High Court relied on the statement of
the Magistrate, P.W.7 as to P.W.6 having identified the appellant
before him at the identification parade and held the prosecution
case proved beyond doubt. Added thereto was the remark of the
trial court about the demeanor of the witness P.W.6.
4. As was done before the courts below, learned counsel for the
appellant has relied upon a decision of this Court in Budhsen &
Anr. vs. State of U.P. - AIR 1970 SC 1321 to contend that the
evidence of identification parade does not constitute by itself
substantive evidence which is governed essentially by the
provisions of Section 162 of the Code of Criminal Procedure. In
that case, this Court took the view that on the facts established,
the Test Identification Parade could not be considered to provide
safe and trustworthy evidence on which conviction could be
sustained. That case was distinguished by the courts below and
in our view rightly, by taking into account the substantive
evidence of the Magistrate, P.W.7, supported by the remarks of
the trial court regarding demeanor of P.W.6 there can be no
dispute to the proposition that oral evidence led at the trial may
by itself be substantive evidence whereas evidence of Test
Identification Parade may per se be not. In that situation, the
Court would certainly be entitled to rely upon such evidence as
that would be relevant under Section of the Evidence Act. Here
have, as said before, the evidence of the Magistrate, P.W.7 to
support the prosecution evidence to that he conducted the
identification parade and before him P.W.6 had correctly
identified Ram Nath to be one of the dacoits. And the word of
P.W.7 In the context has been believed by the courts below.”
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81 Learned counsel contends that in the present case, not only was
the Test Identification Parade conducted in the presence of the Chief Judicial
Magistrate, the victim also identified all the four accused persons. The very
fact that all four accused, who had entered the house, had been identified
during the Test Identification Parade and were also identified in the Court,
there would be no reason to suspect the validity of the Test Identification
Parade or to extend any benefit to the accused persons on an assumption of
the identity being compromised. He submits that the judgment of Budhsen
Vs. State of U.P. AIR 1970 Supreme Court 1321 referred to by the counsel
for the accused rather supports the prosecution since it reiterates that Test
Identification Parade is merely corroborative.
82 It is submitted that the reference to the judgment in the matter
Rajesh @ Sarkari and another Vs. State of Haryana, reported as 2021(1)
SCC 118, wherein the law in relation to Test Identification Parade has been
summarized in Clause 36 also does not support the case of the accused as the
position in law is not disputed. He contends that it is not the suggestive case
of the accused persons that their identity had been revealed or had been
disclosed to the victim. Rather, an assumption is being drawn on the basis of
the alleged photographs published in the Newspaper and that the clothes worn
in the same were taken in possession later to inferring that the said newspaper
photo would have inevitably been seen by the witnesses. He submits that it is
highly unlikely that a victim who has faced the trauma of dacoity and murder
of his wife on a preceding night would actually be having time to go through
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the newspapers as well. Besides, there is nothing on record even to
corroborate that the complainant also subscribed the newspaper in which the
photo had been allegedly published.
83 It is thus argued with vehemence that the primary evidence
having remained unimpeachable and the accused having been identified by
the complainant-prosecution witnesses, the argument based on assumptions
to impeach the identity of the accused is liable to be rejected.
84 He further argues that merely because the ratio of 8 is to 1 as
prescribed in the Government instructions or the Punjab Police Rules as
applicable to the State of Haryana has not been complied with, the same would
not in any manner render the Test Identification Parade conducted in the
presence of a Magistrate liable to be declined. He contends that a reading of
the High Court Rules and Orders pertaining to the Test Identification Parade
makes it clear that while certain aspects of the Test Identification Parade need
to be strictly adhered to, the other aspects are flexible. He contends that the
maintaining of ratio is one such feature which is not mandatory. The
mandatory provisions had been encapsulated in Clause IV of the said Rules.
He contends that so far as the aforesaid mandatory precautions and safeguards
are concerned, the same have been duly adhered to by the Magistrate and they
have not been compromised in any manner whatsoever. Consequently, a mere
failure to maintain a ratio would in no way render the identification conducted
in the presence of a Magistrate liable to be rejected. It is argued that even
otherwise such a mandate may not easily be given effect to since the present
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case reflects the presence of 04 accused persons and maintaining the said ratio
would require 32 persons to be collected immediately and without any further
delay. It would be highly unlikely for any investigating officer to bring 32
persons of similar shapes and sizes. Thus, the guidelines have to be applied
with prudence and pragmatism.
85 Learned counsel argues that the other contentions raised by the
counsel for the accused pertaining to voice identification as well, are in the
nature of prescribing new conditions for TIP and such an argument cannot be
given any legal weightage. He contends that, so far as the contention of the
counsel for the accused that the complainant had seen the CCTV footage much
before the Test Identification Parade, it is contended that the complainant had
physically seen the accused at the time of the commission of the incident and
that as per the CCTV footage, 03 of the 04 persons who entered the building
were without masks. Invariably, once the CCTV footage was being screened
through by the investigating agency, the complainant may have seen the
CCTV footage, but the same cannot ipso facto be held as a circumstance
against the complainant to dislodge the identification which is otherwise
compliant with the legal requirements. More so, the argument is self
contradictory since the counsel for the accused has himself argued that the
video footage was blurred.
DISCLOSURE STATEMENTS AND RECOVERIES
86 While adverting to the above, learned amicus contends that the
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position in law on the argument that joint disclosure or simultaneous
disclosure could not have been recorded and the same would be inadmissible
in evidence and not protected under Section 27 of the Indian Evidence Act,
1872, does not support the accused. He submits that the Supreme Court has
dealt with the said aspect in numerous judgments, including in the judgment
in the matter of State (NCT of Delhi) Vs. Navjot Sandhu @ Afsan Guru,
reported as AIR 2005 SC 3820. The relevant extract of the judgment reads
thus: -
“14. Joint disclosures.
Before parting with the discussion on the subject of confessions
under Section 27 , we may briefly refer to the legal position as
regards joint disclosures. This point assumes relevance in the
context of such disclosures made by the first two accused viz.
Afzal and Shaukat. The admissibility of information said to have
been furnished by both of them leading to the discovery of the
hideouts of the deceased terrorists and the recovery of a laptop
computer, a mobile phone and cash of Rs. 10 lacs from the truck
in which they were found at Srinagar is in issue. Learned senior
counsel Mr. Shanti Bhushan and Mr. Sushil Kumar appearing
for the accused contend, as was contended before the High
Court, that the disclosure and pointing out attributed to both
cannot fall within the Ken of Section 27 , whereas it is the
contention of Mr. Gopal Subramanium that there is no taboo
against the admission of such information as incriminating
evidence against both the informants/accused. Some of the High
Courts have taken the view that the wording "a person" excludes
the applicability of the Section to more than one person. But, that
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is too narrow a view to be taken. Joint disclosures to be more
accurate, simultaneous disclosures, per se, are not inadmissible
under Section 27 . 'A person accused' need not necessarily be a
single person, but it could be plurality of accused. It seems to us
that the real reason for not acting upon the joint disclosures by
taking resort to Section 27 is the inherent difficulty in placing
reliance on such information supposed to have emerged from the
mouths of two or more accused at a time. In fact, joint or
simultaneous disclosure is a myth, because two or more accused
persons would not have uttered informatory words in a chorus.
At best, one person would have made the statement orally and
the other person would have stated so substantially in similar
terms a few seconds or minutes later, or the second person would
have given unequivocal nod to what has been said by the first
person. Or, two persons in custody may be interrogated
separately and simultaneously and both of them may furnish
similar information leading to the discovery of fact. Or, in rare
cases, both the accused may reduce the information into writing
and hand over the written notes to the police officer at the same
time. We do not think that such disclosures by two or more
persons in police custody go out of the purview of Section 27
altogether. If information is given one after the other without any
break almost simultaneously, and if such information is followed
up by pointing out the material thing by both of them, we find no
good reason to eschew such evidence from the regime of Section
27 . However, there may be practical difficulties in placing
reliance on such evidence. It may be difficult for the witness
(generally the police officer), to depose which accused spoke
what words and in what sequence. In other words, the deposition
in regard to the information given by the two accused may be
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exposed to criticism from the stand point of credibility and its
nexus with discovery. Admissibility and credibility are two
distinct aspects, as pointed out by Mr. Gopal Subramanium.
Whether and to what extent such a simultaneous disclosure could
be relied upon by the Court is really a matter of evaluation of
evidence. With these prefaratory remarks, we have to refer to two
decisions of this Court which are relied upon by the learned
defence counsel.
In Mohd. Abdul Hafeez vs. State of Andhra Pradesh [AIR 1983
SC 367], the prosecution sought to rely on the evidence that the
appellant along with the other two accused gave information to
the IO that the ring (MO 1) was sold to the jewellerPW3 in whose
possession the ring was. PW3 deposed that four accused persons
whom he identified in the Court came to his shop and they sold
the ring for Rs.325/- and some days later, the Police Inspector
accompanied by accused 1, 2 and 3 came to his shop and the said
accused asked PW3 to produce the ring which they had sold.
Then, he took out the ring from the showcase and it was seized
by the Police Inspector. The difficulty in accepting such evidence
was projected in the following words by D.A. Desai, J. speaking
for the Court:
"Does this evidence make any sense? He says that accused
1 to 4 sold him the ring. He does not say who had the ring
and to whom he paid the money. Similarly, he stated that
accused 1 to 3 asked him to produce the ring. It is
impossible to believe that all spoke simultaneously. This
way of recording evidence is most unsatisfactory and we
record our disapproval of the same. If evidence otherwise
confessional in character is admissible under Section 27 of
the Indian Evidence Act, it is obligatory upon the
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Investigating Officer to state and record who gave the
information; when he is dealing with more than one
accused, what words were used by him so that a recovery
pursuant to the information received may be connected to
the person giving the information so as to provide
incriminating evidence against the person".
There is nothing in this judgment which suggests that
simultaneous disclosures by more than one accused do not at all
enter into the arena of Section 27 , as a proposition of law.
Another case which needs to be noticed is the case of Ramkishan
vs. Bombay State [AIR 1955 SC 104]. The admissibility or
otherwise of joint disclosures did not directly come up for
consideration in that case . However, while distinguishing the
case of Gokuldas Dwarkadas decided by Bombay High Court, a
passing observation was made that in the said case the High
Court "had rightly held that a joint statement by more than one
accused was not contemplated by Section 27 ". We cannot
understand this observation as laying down the law that
information almost simultaneously furnished by two accused in
regard to a fact discovered cannot be received in evidence under
Section 27 . It may be relevant to mention that in the case of
Lachhman Singh vs. The State [1952 SCR 839] this Court
expressed certain reservations on the correctness of the view
taken by some of the High Courts discountenancing the joint
disclosures.
87 Referring to the above, counsel contends that the legal position
as regards the joint disclosure and protection under Section 27 of the Indian
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Evidence Act, 1872, has been minutely examined by the Supreme Court and
it has been held that there would be numerous practical difficulties in applying
the suggestive argument that simultaneous disclosure/joint disclosure should
not be admissible as the recoveries pursuant to the disclosure cannot be linked
to any specific accused. The Court held that such a view would be too narrow.
The expression “a person accused” need not necessarily refer to a single
individual and may encompass a plurality of accused persons. Where such
information is furnished one after another, without any intervening break and
almost simultaneously, and is thereafter followed by the accused persons
jointly pointing out the material object or to the place leading to its recovery,
there is no justification for excluding such evidence from the purview of
Section 27 of the Indian Evidence Act, 1872.
88 Referring to the above, counsel contends that in the present case,
the investigation has been quick-paced. The incident in question took place
on 09.01.2023. It was followed by the incident of the encounter and arrest of
accused on 10.01.2023 at about 10:00 P.M. and the consequent recovery on
11.01.2023 upon a disclosure made by the accused appellants. It cannot thus
be held that the recovery made pursuant to the simultaneous disclosure would
not be protected under Section 27 of the Indian Evidence Act, 1872. He also
places reliance on the judgment of the Supreme Court in the matter of Kishore
Bhadke Vs. State of Maharashtra, reported as 2017 INSC 14. The relevant
extract thereof reads thus: -
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“19. It was contended by the counsel for the accused No.3 that
the evidence regarding discovery of the dead body of Raman
cannot be used against accused No.3. Inasmuch as, when
accused No.3 gave his statement and recorded in the form of
Memorandum under Section 27 of the Evidence Act, the Police
already knew about the spot where the dead body was thrown as
it was disclosed by accused No.2. It was contended that the
statement made by accused No.2 can be used only against
accused No.2. This argument has been negatived by the Trial
Court after analyzing the decisions which were brought to its
notice, as can be discerned from para 46 to para 53 of the
judgment. The Trial Court found that in the present case the
accused Nos.2 and 3 made disclosure (about the spot where dead
body of Raman was thrown by them) one after another in quick
succession and that their statement came to be recorded
separately. The only thing that had happened was a joint
discovery made at the instance of both the accused Nos.2 and 3,
on proceeding to the spot along with the police. Section 27 of the
Evidence Act is an exception to Section 25 of the Act. Section 25
mandates that no confession to a Police Officer while in police
custody shall be proved as against a person accused of any
offence. Section 27 , however, provides that any fact deposed to
and 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. The fact where the dead body of deceased Raman was
disposed, was disclosed by both the accused Nos.2 and 3 to the
Investigating Officer in the presence of SK Idris (PW 2) one after
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another on 12th May 2003 at 3.05 hrs and 3.25 hrs. respectively.
The discovery was made only after accused Nos.2 and 3 were
taken together by the police to the spot in the neighbouring State
(Madhya Pradesh), where the recovery Panchnama was
recorded bearing Exh.76A. In other words, the disclosure of the
relevant fact by accused No.3 to the Investigating Officer
preceeded the discovery of dead body from the disclosed spot at
the instance of both the accused Nos. 2 and 3. It was not a case
of recording of statement of accused No.3 after discovery nor a
joint statement of accused Nos.2 and 3, but disclosure made by
them separately in quick succession to the Investigating Officer,
preceding the discovery of the fact so stated. The fact disclosed
by them, therefore, and the discovery made at their instance, was
admissible against both the accused in terms of Section 27 of the
Evidence Act.”
89 It is contended that in the aforesaid judgment, a three-judge
Bench of the Supreme Court dealt with the earlier law and held that joint
discovery made at the instance of more than one accused, on proceeding to
the spot along with the police, would not vitiate the recovery. He submits that
it being a case where the disclosures had been recorded separately and in quick
succession by the investigating officer preceding the discovery of the fact and
the recovery made immediately at the instance of all the accused together
from one place would become admissible against all the accused.
90 Counsel contends that ‘disclosure’ may fall in a category where
it is neither wholly reliable nor wholly unreliable. The Court thus has to look
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into the totality of the circumstances and if the Court is satisfied that the
evidence is free of taint, it becomes the duty of the Court to act on such
testimony.
91 Reference is made to the judgment in the matter of Nagamma @
Nagarathna Vs. State of Karnataka, 2025 INSC 1135 wherein the position
in law as stated in the matter of Navjot Sandhu @ Afsan Guru, (supra) and
reiterated in Kishore Bhadke (supra), was followed yet again.
92 Referring to the above, it is argued that the position in law has
thus remained consistent on the aspect of the simultaneous disclosures
followed by discovery and that it would not be impeached solely because at
one point in time, all the accused got their disclosures recorded one after the
other. A specific link of a respective recovery is thus not a statutory mandate
and where a recovery has been made jointly on the disclosure of all the
accused persons, the same would be a protected and be admissible in evidence.
As a matter of fact, all the accused went to the spot together and the recovery
was effected in their presence. Further, there is no suggestion or argument
that complainant/victim had any ill intention, motive or enmity against the
accused persons to falsely implicate the accused. He argues that similarity of
words or expressions used, or the statement having used identical words and
language, would not in any manner discredit the acts undertaken by the
investigating agency for effecting the recovery.
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TEST IDENTIFICATION OF STOLEN JEWELLERY
93 Adverting to the argument raised by the counsel for the accused
on the issue of identification of the stolen articles, counsel contends that the
victim had identified the gold articles/ornaments and that there is no third
party objection raised to the said identification and no counter claim has ever
been raised. Besides accused have also not brought any evidence as would
show as to how and under what circumstances, they were in possession of the
articles. He contends that the identification by the family members has been
repeatedly accepted by the Supreme Court as valid and admissible.
94 He contends that a detailed reference to the law on the subject
already finds mention in the matter of Earabhadrappa alias Krishnappa
(supra) which has been referred to and extracted in the later paras wherein the
Supreme Court has accepted identification of personal belongings by the
owner as a satisfactory standard of proof.
95 He contends that even otherwise considering the nature of the
stolen articles i.e. the jewellery articles, it is highly unlikely for the
investigating officer to arrange for gold articles which are similar in design
and weight and that too in large numbers to enable the complainant party to
identify the same. He contends that such a test having not been prescribed in
law, should not be prescribed for the present case and that the identification
of the stolen articles by the owner, as accepted by the courts to be a valid proof
be, be accepted as a valid identification.
96 It is contended that the absence of any third party claim or failure
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by the accused to offer a valid and satisfactory explanation as to the
circumstances in which they were in possession of the gold articles, is a
material circumstance that has to be taken into consideration by this Court.
97 Counsel contends that identification by the owners/family
members has been upheld by different High Courts. He refers to Division
Bench judgment of the Delhi High Court in the matter of Ganesh Kumar Vs.
State, in CRl.A. 1440 of 2022, decided on 28.08.2014 , which reads thus: -
“12. The next round of attack is the alleged recoveries of the
clothes and other articles of deceased at the instance of Ganesh.
It is stated that no TIP of the recoveries has been done. Further,
no public witness or local police has been associated for
recovery pursuant to the alleged disclosure statement. Moreover,
the recovery of the clothes etc. has already been disbelieved by
the learned Trial Court. The fact that the recovery of these
clothes of the deceased and camera accessories at the instance
of Ganesh has been disbelieved by the learned Trial Court is not
binding on this Court and this Court is required to appreciate the
facts and the law involved in the present case independently. The
learned Trial Court has disbelieved the recoveries of the clothes
of the deceased and the camera accessories at the instance of the
appellant on the ground that no proper identification of the same
were got conducted and they were first time identified in the
Court. Test identification Parade is only an aid in investigation.
Rakesh Kumar has deposed that in the month of February 2007
he was called by the Police and he was shown the photograph
and clothes of the deceased and camera accessories which he
identified. Though TIP of camera and camera stand was done,
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however the bag containing the clothes of the deceased and the
accessories of the camera were not got identified in the judicial
TIP. The deceased was a cousin brother of Rakesh Kumar and
was working with him. Thus, the two being too close and intimate
he would obviously know about each other's clothes and the
camera accessories which were taken from the shop of Rakesh
Kumar itself. Hence he was in a condition to duly identify the
same. Even in the absence of Test Identification of these articles
we are inclined to rely upon these recoveries.
xxx xxx xxx
14. The second ground to assail the recoveries is that no public
witness or Police official of the local Police Station was
associated with the recovery pursuant to the alleged disclosure
by Ganesh. Mere non-association of a public witness at the time
of recovery pursuant to disclosure under Section 27 of the Indian
Evidence Act does not vitiate the recoveries made and can still
be relied upon. While dealing with this issue the Supreme Court
in ( 2001) 1 SCC 652 State Govt. of NCT of Delhi Vs. Sunil and
Anr. laid down the distinction between recovery pursuant to
disclosure statement under Section 27 Indian Evidence Act and
search under Section 100 Cr.P.C. It was held:
"18. Recovery of the knicker is evidenced by the seizure
memo Ext. PW 10/G. It was signed by PW 10 Sharda
besides its author PW 17 Investigating Officer. The
Division Bench of the High Court declined to place any
weight on the said circumstance purely on the ground that
no other independent witness had signed the memo but it
was signed only by "highly interested persons". The
observation of the Division Bench in that regard is
extracted below:
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"It need hardly be said that in order to lend
assurance that the investigation has been
proceeding in a fair and honest manner, it would be
necessary for the investigating officer to take
independent witnesses to the discovery under
Section 27 of the Indian Evidence Act; and without
taking independent witnesses and taking highly
interested persons and the police officers as the
witnesses to the discovery would render the
discovery, at least, not free from doubt."
19. In this context we may point out that there is no
requirement either under Section 27 of the Evidence Act or
under Section 161 of the Code of Criminal Procedure, to
obtain signature of independent witnesses on the record in
which statement of an accused is written. The legal
obligation to call independent and respectable inhabitants
of the locality to attend and witness the exercise made by
the police is cast on the police officer when searches are
made under Chapter VII of the Code. Section 100(5) of the
Code requires that such search shall be made in their
presence and a list of all things seized in the course of such
search and of the places in which they are respectively
found, shall be prepared by such officer or other person
"and signed by such witnesses". It must be remembered
that a search is made to find out a thing or document about
which the searching officer has no prior idea as to where
the thing or document is kept. He prowls for it either on
reasonable suspicion or on some guesswork that it could
possibly be ferreted out in such prowling. It is a stark
reality that during searches the team which conducts the
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search would have to meddle with lots of other articles and
documents also and in such process many such articles or
documents are likely to be displaced or even strewn helter-
skelter. The legislative idea in insisting on such searches
to be made in the presence of two independent inhabitants
of the locality is to ensure the safety of all such articles
meddled with and to protect the rights of the persons
entitled thereto. But recovery of an object pursuant to the
information supplied by an accused in custody is different
from the searching endeavour envisaged in Chapter VII of
the Code. This Court has indicated the difference between
the two processes in the Transport Commr., A.P.,
Hyderabad v.S. Sardar Ali [(1983) 4 SCC 245 : 1983 SCC
(Cri) 827 : AIR 1983 SC 1225] . Following observations
of Chinnappa Reddy, J. can be used to support the said
legal proposition: (SCC p. 254, para 8) " Section 100 of the
Criminal Procedure Code to which reference was made by
the counsel deals with searches and not seizures. In the
very nature of things when property is seized and not
recovered during a search, it is not possible to comply with
the provisions of sub-sections (4) and (5) of Section 100 of
the Criminal Procedure Code. In the case of a seizure
under the Motor Vehicles Act , there is no provision for
preparing a list of the things seized in the course of the
seizure for the obvious reason that all those things are
seized not separately but as part of the vehicle itself.""
xxx xxx xxx
16. Further after the prosecution has proved its case, the onus
shifted on Ganesh under Section 114 Illustration (a) and Section
106 of the Evidence Act to explain as to how he came in
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possession of the articles of the deceased. This onus has not been
discharged by the accused who has taken the plea in the
statement under Section 313 Cr.P.C. that he has been falsely
implicated.
ADMISSIBILITY OF ELECTRONIC EVIDENCE
98 While adverting to the argument advanced by the counsel for the
accused as regards the validity of Section 65B of the Indian Evidence Act,
1872, and its admissibility, learned counsel contends that undisputedly the
certificate under Section 65-B has been issued by Amit Arora, who is the son-
in-law of the victim. He contends that the said witnesses specifically deposed
that he had the password and access to the CCTV cameras and DVRs, thus,
he was the person who was in management/supervisory capacity of the CCTV
links. It is argued that even otherwise, a hierarchy of control and management,
as ordinarily understood in a structured organisation could not have been
applied to family relations and that all persons who stand in fiduciary
relationships would be deemed to be in supervision, management and control
of the same. In the present case, the fact that the son-in-law Dr. Amit Arora
(PW.2) had the password and access to the entire thing and would frequently
check the CCTV footage clearly shows that he exercised supervision over the
cameras and DVRs. Thus, the certificate under Section 65-B could have been
validly issued by him.
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99 Counsel further contends that while the ratio of law laid down
by the Supreme Court in the precedent judgments i.e. Anvar P. V. Vs. P.K.
Basheer (supra) as well as Arjun Pandit Rao Khotkar (supra) , is not
disputed, however, the Supreme Court has visited the provisions at different
times and it has been held through a catena of judgments that where an
objection is not raised to the mode of proof of the certificate or the footage, at
the time when they were exhibited before the trial Court, such an objection
cannot be taken at an appellate stage.
100 It is submitted that while the Supreme Court did mandate that all
the conditions as specified under Section 65B (4) of the Indian Evidence Act,
1872, are required to be fulfilled, it would be significant to refer to the
aforesaid legal position, as has been applied in previous and subsequent
judgments.
101 In the above judgment(s) of Anwar P.V. (supra) and Arjun
Panditrao Khotekar supra, the Supreme Court dealt with the earlier judicial
pronouncements in the matter of State (NCT of Delhi) Vs. Navjot Sandhu
(2005) 11 SCC 600, Tomaso Bruno and another Vs. State of U.P. (2015) 7
SCC 178, as well as Shafhi Mohammad Vs. State of Himachal Pradesh
(2018) 2 SCC 801 .While the judgment in the matter of Tomaso Bruno (supra)
was held to be per incuriam, the judgment in the matter of Navjot Sandhu
and Shafhi Mohamma d (supra) has been specifically overruled.
102 The Bench although also took judicial notice of the judgment in
the matter of Sonu @ Amar Vs. State of Haryana, (2017) 8 SCC 570 , but did
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not overrule the position in law as expounded in the aforesaid judgment.
103 While dealing with the issue of admissibility of electronic record
under Section 65B of the Indian Evidence Act, 1872, in the matter of Sonu @
Amar (supra), the Supreme Court referred to the judgment in the matter of
Anvar P.V. Vs. P.K. Basheer and others, (2014) 10 SCC 473 , and held that
notwithstanding the aforesaid requirement, in case no objection with respect
to the mode and manner of proof is raised at the time when the document is
exhibited, such an objection cannot be taken at an appellate Stage. The
relevant extract of the judgment reads thus: -
“24. Mr. Luthra contended that the CDRs are not admissible
under Section 65B of the Indian Evidence Act, 1872 as
admittedly they were not certified in accordance with sub-section
(4) thereof. He placed reliance upon the judgment of this Court
in Anvar P.V. v. P.K. Basheer , (2014) 10 SCC 473 by which the
judgment of this Court in State (NCT of Delhi) v. Navjot Sandhu ,
(2005) 11 SCC 600 was overruled. In Navjot Sandhu (supra) this
court held as follows:
“Irrespective of the compliance with the requirements of
Section 65-B, which is a provision dealing with
admissibility of electronic records, there is no bar to
adducing secondary evidence under the other provisions
of the Evidence Act , namely, Sections 63 and 65 . It may be
that the certificate containing the details in sub-section (4)
of Section 65-B is not filed in the instant case, but that does
not mean that secondary evidence cannot be given even if
the law permits such evidence to be given in the
circumstances mentioned in the relevant provisions,
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namely, Sections 63 and 65 ”.
25. In Anvar ’s case, this Court held as under:
“22. The evidence relating to electronic record, as noted
hereinbefore, being a special provision, the general law on
secondary evidence under Section 63 read with Section 65
of the Evidence Act shall yield to the same. Generalia
specialibus non derogant, special law will always prevail
over the general law. It appears, the court omitted to take
note of Sections 59 and 65-A dealing with the admissibility
of electronic record. Sections 63 and 65 have no
application in the case of secondary evidence by way of
electronic record; the same is wholly governed by Sections
65-A and 65-B. To that extent, the statement of law on
admissibility of secondary evidence pertaining to
electronic record, as stated by this Court in Navjot
Sandhu, does not lay down the correct legal position. It
requires to be overruled and we do so. An electronic
record by way of secondary evidence shall not be admitted
in evidence unless the requirements under Section 65-B
are satisfied. Thus, in the case of CD, VCD, chip, etc., the
same shall be accompanied by the certificate in terms of
Section 65-B obtained at the time of taking the document,
without which, the secondary evidence pertaining to that
electronic record, is inadmissible.
23. The appellant admittedly has not produced any certificate in
terms of Section 65-B in respect of the CDs, Exts. P-4, P-8, P-9,
P-10, P-12, P-13, P-15, P-20 and P-22. Therefore, the same
cannot be admitted in evidence. Thus, the whole case set up
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regarding the corrupt practice using songs, announcements and
speeches fall to the ground.”
In view of the law laid down in the case of Anvar, Mr.
Luthra submitted that the CDRs are liable to be eschewed from
consideration.
xxx xxx xxx
27 Refuting the contentions of the learned senior counsel for
the State, Mr. Luthra submitted that the objection raised by him
pertains to inadmissibility of the document and not the mode of
proof. He urged that the CDRs are inadmissible without the
certificate which is clear from the judgment of this Court in
Anvar’s case. He refers to the judgment of RVE Venkatachala
Gounder v. Arulmigu Visweswaraswami , (2003) 8 SCC 752
relied upon by the prosecution to contend that an objection
relating to admissibility can be raised even at the appellate stage.
Mr. Luthra also argued that proof required in a criminal case
cannot be waived by the accused. He relied upon a judgment of
the Privy Council in Chainchal Singh v. King Emperor , AIR
1946 PC 1 in which it was held as under:
“In a civil case, a party can, if he chooses, waive the proof,
but in a criminal case strict proof ought to be given that the
witness is incapable of giving evidence”
28. He further relied upon the judgment of a Full Bench of the
Bombay High Court in Shaikh Farid v. State of Maharashtra ,
1983 CrLJ 487. He also submitted that Section 294 Cr. P.C.
which is an exception to the rule as to mode of proof has no
application to the facts of the present case.
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xxx xxx xxx
32. It is nobody’s case that CDRs which are a form of electronic
record are not inherently admissible in evidence. The objection
is that they were marked before the Trial Court without a
certificate as required by Section 65B (4). It is clear from the
judgments referred to supra that an objection relating to the
mode or method of proof has to be raised at the time of marking
of the document as an exhibit and not later. The crucial test, as
affirmed by this Court, is whether the defect could have been
cured at the stage of marking the document. Applying this test to
the present case, if an objection was taken to the CDRs being
marked without a certificate, the Court could have given the
prosecution an opportunity to rectify the deficiency. It is also
clear from the above judgments that objections regarding
admissibility of documents which are per se inadmissible can be
taken even at the appellate stage. Admissibility of a document
which is inherently inadmissible is an issue which can be taken
up at the appellate stage because it is a fundamental issue. The
mode or method of proof is procedural and objections, if not
taken at the trial, cannot be permitted at the appellate stage. If
the objections to the mode of proof are permitted to be taken at
the appellate stage by a party, the other side does not have an
opportunity of rectifying the deficiencies. The learned Senior
Counsel for the State referred to statements under Section 161 of
the Cr. P.C. 1973 as an example of documents falling under the
said category of inherently inadmissible evidence. CDRs do not
fall in the said category of documents. We are satisfied that an
objection that CDRs are unreliable due to violation of the
procedure prescribed in Section 65 B (4) cannot be permitted to
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be raised at this stage as the objection relates to the mode or
method of proof.”
104 The said issue came up before the Supreme Court yet again in the
matter of State by Karnataka Lokayukta Police Station, Bengaluru, Vs. M.R.
Hiremath, (2019) 7 SCC 515 . The relevant extract of the said judgment reads
thus: -
“ 16 The same view has been reiterated by a two judge Bench of
this Court in Union of India and Others v CDR Ravindra V Desai
(2018) 16 SCC 272. The Court emphasised that non-production
of a certificate under Section 65B on an earlier occasion is a
curable defect. The Court relied upon the earlier decision in Sonu
alias Amar v State of Haryana , in which it was held:-
“32. The crucial test, as affirmed by this Court, is whether
the defect could have been cured at the stage of marking
the document. Applying this test to the present case, if an
objection was taken to the CDRs being marked without a
certificate, the Court could have given the prosecution an
opportunity to rectify the deficiency.” (emphasis supplied)
17. Having regard to the above principle of law, the High
Court erred in coming to the conclusion that the failure to
produce a certificate under Section 65B(4) of the Evidence Act at
the stage when the charge-sheet was filed was fatal to the
prosecution. The need for production of such a certificate would
arise when the electronic record is sought to be produced in
evidence at the trial. It is at that stage that the necessity of the
production of the certificate would arise.”
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105 Significantly, the judgment of M.R. Hiremath (supra) was also
noticed by the Supreme Court in the matter of Arjun Panditrao Khotkar
(supra) in para No.53 thereof and at no point of time, the said judgments have
been over ruled or distinguished or held per incuriam . A reference with
respect to the judgment in the matter of M.R. Hiremath (supra) by the
Supreme Court in the matter of Arjun Panditrao Khotkar (supra) in paras
No.53 and 54 thereof, reads as under: -
“53. In a recent judgment, a Division Bench of this Court in State
of Karnataka v. M.R. Hiremath (2019) 7 SCC 515, after referring
to Anvar P.V. (supra) held:
“16. The same view has been reiterated by a two- Judge
Bench of this Court in Union of India v. Ravindra V. Desai.
54. It is pertinent to recollect that the stage of admitting
documentary evidence in a criminal trial is the filing of the
charge-sheet. When a criminal court summons the accused to
stand trial, copies of all documents which are entered in the
charge-sheet/final report have to be given to the accused. Section
207 of the CrPC, which reads as follows, is mandatory.
Therefore, the electronic evidence, i.e. the computer output, has
to be furnished at the latest before the trial begins. The reason is
not far to seek; this gives the accused a fair chance to prepare
and defend the charges levelled against him during the trial. The
general principle in criminal proceedings, therefore, is to supply
to the accused all documents that the prosecution seeks to rely
RAJ KUMAR ARORA
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upon before the commencement of the trial. The requirement of
such full disclosure is an extremely valuable right and an
essential feature of the right to a fair trial as it enables the
accused to prepare for the trial before its commencement.”
106 Stil further, after the aforesaid judicial declaration of law in the
judgment of Arjun Panditrao Khotkar (supra), the issue of Certificate under
Section 65B of the Indian Evidence Act, 1872, was under consideration of the
Supreme Court in the matter of Sundar @ Sundarrajan Vs. State by Inspector
of Police, (2024) 12 SCC 764 . The relevant extract thereof reads thus: -
“43. While the Court in Arjun Panditrao Khotkar did not directly
deal with the issue of allowing objections against CDRs, due to
a violation of the procedure under Section 65B, being raised at a
belated stage, it kept it open for trial courts, in exceptional cases,
to allow the prosecution to provide such certificate at a later
stage. It held that:
54. Therefore, in terms of general procedure, the
prosecution "is obligated to supply all documents upon
which reliance may be placed to an Accused before
commencement of the trial. Thus, the exercise of power by
the courts in criminal trials in permitting evidence to be
filed at a later stage should not result in serious or
irreversible prejudice to the Accused. A balancing exercise
in respect of the rights of parties has to be carried out by
the court, in examining any application by the prosecution
Under Sections 91 or 311 of the Code of Criminal
Procedure or Section 165 of the Evidence Act. Depending
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on the facts of each case, and the Court exercising
discretion after seeing that the Accused is not prejudiced
by want of a fair trial, the Court may in appropriate cases
allow the prosecution to produce such certificate at a later
point in time. If it is the Accused who desires to produce
the requisite certificate as part of his defence, this again
will depend upon the justice of the case-discretion to be
exercised by the Court in accordance with law.”
(emphasis supplied)
107 It is thus apparent from the perusal of the above that the ratio and
legal principle in the matter of Sonu @ Amar (supra) was reiterated by the
Supreme Court in the above said judgment.
108 Still further, in the matter of Rahil Vs. State (Govt. of NCT of
Delhi), 2025 SCC OnLine SC 1481 , the legal principles, as above were relied
upon yet again. The relevant extract thereof reads thus: -
“ 35. Be that as it may, it is relevant to note the larger bench in
Khotkar (supra) while reiterating PV Anvar (supra) did not hold
that its ratio shall apply prospectively. Furthermore, in Mohd.
Arif @ Ashfaq v. State (NCT of Delhi ), this Court while hearing
a review petition in a death penalty case retrospectively applied
the ratio in Anvar PV to cases decided earlier and eschewed
secondary electronic evidence dehors certificate under section
65-B(4).
36. Though the present case does not involve death penalty, it is
undeniable that appellants were facing a criminal trial and the
prosecutor was required to prove a fact beyond reasonable doubt
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strictly in accordance with law. Appellants during trial raised
objections to admissibility of the secondary electronic evidence
relating to Rahil which was marked as exhibit PW23/B-D.
Thereby the prosecutor was put on due notice and had
opportunity to fill the lacuna by producing the requisite
certificate under Section 65-B(4) but did not do so.
In Sonu (supra), this court held if an objection is taken to CDRs
being marked without a certificate and the same was not cured
by the prosecutor at relevant stage the document shall be
inadmissible in law. In these circumstances we are inclined to
apply the ratio in PV Anvar and Khotkar to the case and hold
that the exhibits are inadmissible in law being secondary
evidence without certification.”
(emphasis supplied)
109 It has thus been reiterated as a legal position that when an
objection is not taken at the stage of producing the electronic document, with
respect to the mode or manner in which it has been exhibited, the same being
a curable defect, such an objection cannot be taken at the appellate stage.
110 From the perusal of the deposition of PW.2-Amit Arora son-in-
law of the complainant, the prosecution witness who proved the certificate
issued under Section 65B of the Indian Evidence Act, 1872, it is evident that
no suggestion or objection with respect to the mode or manner of proof had
been taken by the defence at any stage. The argument is being taken now at
the appellate stage only. Consequently, the argument raised by the counsel for
the accused about the admissibility and acceptance of the electronic evidence,
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in view of the purported defect in the certificate, is liable to be rejected.
111 He further argued that in the present case there were two sets of
CCTV cameras that have been installed, with their separate DVRs. While the
accused persons had taken out the DVR installed on the first floor, damaged
the same, burnt it and had also taken the same along with them, the DVR
pertaining to the CCTV Camera installed on the ground floor escaped their
notice. The said CCTV footage clearly shows the faces of the accused person.
He argues that the accused entered in two groups of two persons each and
only one person is wearing a mask. Further, all four of them are empty handed
and that one of said persons is also seen talking on phone as well. Counsel
argues that at the time when the CCTV footage captures them, while making
an exit out of the hospital, it is evident that while one of them is carrying a
bag, the other person is carrying a cake box. He contends that said bag had the
jewellery items whereas the other box contained the cake that had been
ordered by the respondents-accused for gaining entry to the first floor. It is
argued that burden lay upon the respondent accused to explain as to what was
held by them in the said bag.
112 Counsel contends that merely because there was some
discrepancy in the time as mentioned in the CCTV footage, which was half an
hour behind the actual time, it would not amount to any tampering. He
contends that the tampering would necessarily entail alteration with the actual
time of footage. He contends that if the digital clock in the CCTV footage had
been wrongly set, the same would not be a case of tampering and it would
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only be an error, without effecting its evidentiary value.
113 Counsel contends that the attempt made by the counsel for the
accused to discredit the CCTV footage by raising imaginative apprehensions
and doubts are misplaced. There being no evidence that the CCTV footage
had been tampered with, such an inference cannot be drawn. A satisfactory
explanation having been offered by the prosecution about the timeline and the
visible faces in the said CCTV footage rests all other doubts to rest. He
contends that an empty suggestion about possibility of manipulation, without
any evidence to corroborate the suggestion, is meaningless.
114 Additionally, the sanctity of the chain of possession has also been
duly maintained not only about the source but also after the extraction of the
footage till the time of its production before a Court of law. There would be
thus no reason to discard the CCTV footage which is a valid and admissible
piece of evidence and corroborates the involvement of the accused persons in
the commission of the offence.
ABSENCE OF DIRECT EVIDENCE
115 Adverting to Section 114 of the Indian Evidence Act, 1872,
counsel contends that in matters pertaining to criminal conspiracy, there
would seldom be a direct evidence which might be readily available and that
it is only from the totality of circumstances that inferences are required to be
judicially drawn. He contends that the conspiracies are born in pitch darkness
and are executed by night, hence, there would be scant chance for an
investigating agency to find a complete chain of events to establish individual
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participation and action. He contends that the legislature was cognizant of the
said aspect and it was for the said purpose that Section 114 was incorporated
in the Indian Evidence Act, 1872 which reads thus: -
“114. Court may presume existence of certain facts.
The Court may presume the existence of any fact which it thinks
likely to have happened, regard being had to the common course
of natural events, human conduct and public and private
business, in their relation to the facts of the particular case.
Illustrations:
The Court may presume -(a) that a man, who is in possession of
stolen goods soon after the theft is either the thief or has received
the goods knowing them to be stolen, unless he can account for
his possession.”
116 He contends that it is evident from a perusal of the above that the
Court may presume existence of any fact which it thinks likely to have
happened, regard being had to the common course of natural events, human
conduct etc. Reference is made to illustration A. It is stated that the aforesaid
illustration throws much light on the presumption which may legitimately
flow on account of the recovery having been effected. It is submitted that
when a person is found to be in possession of stolen goods, soon after theft he
is either the thief or has received the goods known by him them to be stolen
unless he can account for his possession.
117 He contends that the jewelry articles belonging to the
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complainant had been recovered at the disclosure of the respondent-accused.
Undisputedly, the identification of the said jewellery articles was carried out
by the complainant party and no objection or third party claim was ever raised
about the said jewellery articles. It was open to the respondent-accused
persons to offer a valid explanation as to how and under what circumstances
the accused persons would have been in possession of the articles which were
robbed from the house of the complainant. They having failed to offer any
explanation, a statutory inference thus flows against them. It is further
contended that the recoveries were effected shortly after the occurrence of the
dacoity and murder and immediately following the arrest of the respondent-
accused persons. The close proximity between the occurrence, the arrests and
the recoveries materially reduces the possibility of any intervening possibility
to fabricate the recoveries or plant the recovered articles upon the respondent-
accused. The circumstances, therefore, render the suggestion of a
subsequently planted recovery inherently implausible. He makes a reference
to the judgment of the Supreme Court in the matter of Earabhadrappa alias
Krishnappa Vs. State of Karnataka, reported as 1983(1) RCR (Crl) 292 . The
Supreme Court set aside the conviction under Section 411 IPC and convicted
for an offence of robbery and murder. The relevant extract thereof reads thus:
-
“7. There is no controversy that the statement made by the
appellant Ex. P-35 is admissible under s. 27 of the Evidence Act.
Under s. 27 only so much of the information as distinctly relates
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to the facts really thereby discovered is admissible. The word
'fact' means some concrete or material fact to which the
information directly relates. As explained by Sir John Beaumont
in Pulukuri Kottaya v. Emperor (1): -
"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".
For the applicability of s. 27 therefore two conditions are
prerequisite, namely (1) the information must be such as has
caused discovery of the fact; and (2) the information must 'relate
distinctly' to the fact discovered. In the present case, there was a
suggestion during the trial that P.W. 26 had prior knowledge
from other sources that the incriminating articles were concealed
at certain places and that statement Ex. P-35 was prepared after
the recoveries had been made and therefore there was no 'fact
discovered' within the meaning of s. 27 of the Evidence Act. We
need not dilate on the question because there was no suggestion
made to P.W. 26 during his cross- examination that he had known
the places where the incriminating articles were kept. That being
so, the statement made by the appellant Ex. P-35 is clearly
admissible in evidence.
8. In Jaffer Hussein Dastgir v. State of Maharasetra , the portion
of the statement with reference to which this question arose read
as follows:
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"I will point out one Gaddi alias Ramsingh of Delhi at
Bombay Central Railway Station at III Class Waiting Hall
to whom I have given a Packet containing diamonds of
different sizes more than 200 in number."
The only question for decision in that case before the Court was
whether the aforesaid statement made by the accused was
admissible in evidence by virtue of s. 27 of the Evidence Act, the
diamonds having been found with the person named. In the facts
of that case the Court came to the conclusion that the police had
already known that the diamonds were with the person named by
the accused with the result that there was no fact discovered by
the police as a result of the statement made by the accused.
However, it was held clearly that, but for such knowledge of the
police, the aforesaid statement of the accused would have been
admissible in evidence.
9. Apart from the question of sentence, two other contentions are
raised, namely: (1) There is no proper identification that the
seized ornaments belonged to the deceased Smt. Bachamma; and
(2) the presumption arising under illustration (a) to s. 114 of the
Evidence Act, looking to the long lapse of time between the
commission of murder and robbery and the discovery of the
stolen articles, should be that the appellant was merely a receiver
of the stolen articles and therefore guilty of an offence punishable
under s. 411 of the Indian Penal Code and not that he was guilty
of culpable homicide amounting to murder punishable under s.
302 as well. We are afraid, none of these contentions can prevail.
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10. Our attention was drawn to the testimony of P.W. 13
Narayanareddy who, during his cross-examination, stated that
ornaments similar to the gold rope chain and the pair of gold
bangles were available everywhere and that other ornaments
were also in his house. From this it is sought to be argued that
the seized ornaments cannot be treated to be stolen property as
they are ordinary ornaments in common use. Nothing really turns
on this because P.W. 2 Smt. Bayamma, mother-in-law of the
deceased, her husband P.W. 13 Makarappa and son P.W. 4 G.M.
Prakash have categorically stated that the seized ornaments
belonged to the deceased Smt. Bachamma. There is no reason
why the testimony of these witnesses should not be relied upon
particularly when P.W. 2 Smt. Baymma was not cross-examined
at all as regards her identification of the seized ornaments and
clothes as belonging to the deceased. Even if the seized
ornaments could be treated to be ornaments in common use, this
witness could never make a mistake in identifying the seized six
silk sarees (M.Os. 10 to 15). It is a matter of common knowledge
that ladies have an uncanny sense of identifying their own
belongings, particularly articles of personal use in the family.
That apart, the description of the silk sarees in question shows
that they were expensive sarees with distinctive designs. There is
no merit in the contention that the testimony of these witnesses as
regards the identity of the seized articles to be stolen property
cannot be relied upon for want of prior test identification. There
is no such legal requirement.
11. This is a case where murder and robbery are proved to have
been integral parts of one and the same transaction and therefore
the presumption arising under illustration (a) to s. 114 of the
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Evidence Act is that not only the appellant committed the murder
of the deceased but also committed robbery of her gold
ornaments which form part of the same transaction. The
prosecution has led sufficient evidence to connect the appellant
with the commission of the crime. The sudden disappearance of
the appellant from the house of P.W.3 on the morning of March
22, 1979 when it was discovered that the deceased had been
strangulated to death and relieved of her gold ornaments,
coupled with the circumstance that he was absconding for a
period of over one year till he was apprehended by P.W. 26 at
village Hosahally on March 29, 1980, taken with the
circumstance that he made the statement Ex. P-35 immediately
upon his arrest leading to the discovery of the stolen articles,
must necessarily raise the inference that the appellant alone and
no one else was guilty of having committed the murder of the
deceased and robbery of her gold ornaments. The appellant had
no satisfactory explanation to offer for his possession of the
stolen property. On the contrary, he denied that the stolen
property was recovered from him. The false denial by itself is an
incriminating circumstance. The nature of presumption under
illustration (a) to s. 114 must depend upon the nature of the
evidence adduced. No fixed time limit can be laid down to
determine whether possession is recent or otherwise and each
case must be judged on its own facts. The question as to what
amounts to recent possession sufficient to justify the presumption
of guilt varies according as the stolen article is or is not
calculated to pass readily from hand to hand. If the stolen articles
were such as were not likely to pass readily from hand to hand,
the period of one year that elapsed cannot be said to be too long
particularly when the appellant had been absconding during that
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period. There was no lapse of time between the date of his arrest
and the recovery of the stolen property.”
(emphasis supplied)
118 Referring to the above, counsel contends that there was proper
identification of the jewellery articles belonging to the complainant party and
that the time gap between the offence of murder and dacoity as well as the
discovery of articles was also not long. Besides, the death also took place at
the same time when the accused persons were at the house of the complainant.
Hence, the Court would be well justified in law to assume not only the offence
having been committed by the respondent-accused persons but also to the
effect that they had committed the murder of Vanita-wife of the complainant.
119 Learned counsel also refers to the judgment of the Supreme Court
in the matter of Limbaji Vs. State of Maharashtra, reported as 2002(1) RCR
(Crl.) 266 , which was based entirely on the recovery of articles. The relevant
part of the judgment reads thus: -
The learned Sessions Judge acquitted the accused of the charges
under Sections 302 and 392 but found them guilty under Section
411 IPC and sentenced each of them to rigorous imprisonment
for two years. On appeal by the State as well as by the accused,
the High Court of Bombay (Aurangabad Bench) having found the
accused guilty of offences punishable under Section 302 read
with Section 34 and Section 392 read with Section 34 , set aside
the judgment of the Sessions Judge. The High Court sentenced
them to life imprisonment for the offence of murder and five years
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rigorous imprisonment for the offence of robbery with the
direction that both the sentences should run concurrently. The
appeal of the State was allowed and the appeal filed by the
accused was dismissed. Questioning the said judgment, the
present appeals are filed. Leave to appeal was granted by this
Court on 11.12.2000.
The case rests on circumstantial evidence of recovery of
ornaments worn by the deceased, pursuant to the information
furnished by the accused to the police. The High Court pressed
into service the presumption under Section 114 (a) of the
Evidence Act in support of its conclusion. It is the correctness of
that view that falls for our consideration in this appeal.
xxx xxx xxx
We are now left with the evidence of recovery of the ornaments
of the deceased on the basis of the confessional statement of
accused under Section 27 of Evidence Act, leaving apart for the
time being the aspect concerning injuries inflicted on the
deceased. The question then is whether there was discovery of
incriminating articles in consequence of information received
from the accused in custody and whether such discovery
warrants a presumption to be drawn under Section 114 and if so,
to what extent that presumption has to be drawn.
III. As the presumption under Section 114 of Evidence Act looms
large in this case, a brief discussion on the basic postulates and
evidentiary implications of presumption of fact may not be out of
place. A presumption of fact is a type of circumstantial evidence
which in the absence of direct evidence becomes a valuable tool
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in the hands of the Court to reach the truth without unduly
diluting the presumption in favour of the innocence of the
accused which is the foundation of our Criminal Law. It is an
inference of fact drawn from another proved fact taking due note
of common experience and common course of events. Holmes J.
in Greer Vs. US [245 USR 559] remarked " a presumption upon
a matter of fact, when it is not merely a disguise for some other
principle, means that common experience shows the fact to be so
generally true that courts may notice the truth". Section 114 of
the Evidence Act shows the way to the Court in its endeavour to
discern the truth and to arrive at a finding with reasonable
certainty. Under the Indian Evidence Act , the guiding rules for
drawing the presumption are set out broadly in the Section.
Section 114 enjoins: "the Court may presume the existance of any
fact which it thinks likely to have happened, regard being had to
the common course of natural events, human conduct and public
and private business, in their relation to facts of the particular
case." Having due regard to the germane considerations set out
in the Section, certain presumptions which the Court can draw
are illustratively set out. It is obvious that they are not exhaustive
or comprehensive. The presumption under Section 114 is, of
course, rebuttable. When once the presumption is drawn, the duty
of producing evidence to the contra so as to rebut the
presumption is cast on the party who is subjected to the rigour of
that presumption. Before drawing the presumption as to the
existence of a fact on which there is no direct evidence, the facts
of the particular case should remain uppermost in the mind of the
Judge. These facts should be looked into from the angle of
common sense, common experience of men and matters and then
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a conscious decision has to be arrived at whether to draw the
presumption or not.
Among the illustrations appended to Section 114 of the Evidence
Act, the very first one is what concerns us in the present case:
"The Court may presume - that a man who is in possession
of stolen goods soon after the theft, is either the thief or has
received the goods knowing them to be stolen, unless he
can account for his possession."
Taylor in his treatise on The Law of Evidence has this to say on
the nature and scope of the presumption similar to the one
contained in Section 114 (a) :
"The possession of stolen property recently after the
commission of a theft, is prima facie evidence that the
possessor was either the thief, or the receiver, according
to the other circumstances of the case, and this
presumption, when unexplained, either by direct evidence,
or by the character and habits of the possessor, or
otherwise, is usually regarded by the jury as conclusive.
The question of what amounts to recent possession varies
according to whether the stolen article is or is not
calculated to pass readily from hand to hand.
This presumption which in all cases is one of fact
rather than of law, is occasionally so strong as to render
unnecessary any direct proof of what is called the corpus
delicti. Thus, to borrow an apt illustration from Maule J.,
if a man were to go into the London Docks quite sober, and
shortly afterwards were found very drunk, staggering out
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of one of the cellars, in which above a million gallons of
wine are stored, "I think," says the learned Judge and most
persons will probably agree with him "that this would be
reasonable evidence that the man had stolen some of the
wine in the cellar, though no proof were given that any
particular vat had been broached, and that any wine had
actually been missed."
xxx xxx xxx
V.(a) In the light of the above discussion, in the instant case the
presumption under Section 114 illustration (a) could be safely
drawn and the circumstance of recovery of the incriminating
articles within a reasonable time after the incident at the places
shown by the accused unerringly points to the involvement of the
accused. Be it noted that the appellants who were in a position to
explain as to how they could lay their hands on the stolen articles
or how they had the knowledge of concealment of the stolen
property, did nothing to explain; on the other hand, they denied
knowledge of recoveries which in the light of the evidence
adduced by the prosecution must be considered to be false. By
omitting to explain, it must be inferred that either they intended
to suppress the truth or invited the risk of presumption being
drawn. Thus, the presumption as to the commission of offence
envisaged by illustration (a) of Section 114 is the minimum that
could be drawn and that is what the trial court did.
V (b). The question then is, applying illustration (a) to Section
114 , whether the presumption should be that the accused stole
the goods or later on received them knowing them to be stolen.
Though the trial court observed that the accused "might have
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robbed" the ornaments of the deceased after he was murdered by
someone else, it found them guilty of the offence under Section
411 IPC only which is apparently self-contradictory. On an
overall consideration of the circumstances established, it is
reasonable to presume that the accused committed the theft of the
articles from the person of the deceased after causing bodily
harm to the deceased. The fact that within a short time after the
murder of the deceased, the appellants came into possession of
the ornaments removed from the person of the deceased and the
1st accused offered one of the stolen articles for sale on that very
day and the further fact that the other articles were found
secreted to the knowledge of appellants coupled with non-
accountal of the possession of the articles and the failure to give
even a plausible explanation vis-à-vis the incriminating
circumstances would go to show that they were not merely the
receivers of stolen articles from another source but they
themselves removed them from the person of the deceased. Thus,
the presumption to be drawn under illustration (a) to Section 114
should not be confined to their involvement in the offence of
receiving the stolen property under Section 411 but on the facts
of the case, it can safely go beyond that. In this context, the three-
Judge Bench decision of this Court in Sanwath Khan Vs. State
of Rajasthan , is quite apposite. While holding that from the
solitary circumstance of unexplained recovery of the articles
belonging to the deceased from the houses of the accused, the
presumption of commission of offence of murder cannot be
raised, the Court nevertheless held that they can be convicted of
theft under Section 380 I.P.C. which was one of the charges
against the accused. Another decision of relevance is Shivappa
Vs. State of Mysore [1970 (1) SCC 487]. That was a case in
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which bundles of cloth being carried in carts were looted by
twenty persons and the accused were charged for dacoity.
Searches which took place within a few days after the incident
led to the recovery of large quantities of stolen clothes from their
houses. On these facts the Court drew the presumption that the
persons with whom the items of clothes were found were the
dacoits themselves and the conviction was sustained.
Hidayatullah, C.J. speaking for the three Judge Bench observed
that "It is only when accused cannot be connected with the crime
except by reason of possession of the fruits of crime that the
presumption may be drawn." Drawing support from these
decisions too, we are of the view that by invoking the presumption
under Section 114 read with Illustration (a) thereto, the
appellants must, as a first step, be held to have committed theft
of ornaments which were removed from the person of the
deceased and that they are not mere receivers of stolen property.
Theft is a component of the offence of robbery and theft becomes
robbery, if, in order to the committing of theft, the offender
causes or attempts to cause death, hurt or wrongful restraint or
instils fear thereof. Whether, on the facts, they shall be convicted
for robbery is yet another aspect which we shall advert to a little
later. We are only pointing out presently that if we stop at
applying illustration (a) to Section 114 , the accused can be safely
convicted for the offence of theft rather than for the offence under
S.411. What is the position if we look beyond illustration (a) is
another aspect.
VI. (a) The above discussion paves the way for consideration of
a more important question whether, having regard to the facts of
this case, the presumption should be extended to the perpetration
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of the offence of robbery or murder or both? Presumption
envisaged by illustration (a) to Section 114 has been stretched in
decided cases to make a similar presumption as the basis for
conviction for graver offences of robbery and murder, if they are
part of the same transaction. Strictly speaking, such presumption
does not come within the sweep of illustration (a), though in some
cases illustration (a) has been referred to while upholding the
conviction for robbery and murder. Extending the presumption
beyond the parameters of illustration (a) could only be under the
main part of the Section. The illustration only provides an
analogy in such a case. With this clarification, let us examine
whether there is scope to presume that the appellants committed
robbery and murder sharing the common intention. While on this
point, we have come across divergent approaches by this Court
in various cases. In some cases, the extended presumption was
drawn while in some cases the Court considered it unsafe to draw
the presumption merely on the basis of recovery of incriminating
articles from the possession of the accused soon after the crime.
The decisions of this Court in Union Territory of Goa Vs.
Beaventura D'Souza [1993 Supp. (3) SCC 304], Surjit Singh Vs.
State of Punjab [AIR 1994 SC 110] and Sanwath Khan Vs. State
of Rajasthan [AIR 1956 SC 54] fall in one line, whereas the
decision in Gulab Chand Vs. State of M.P. [1995 (3) SCC 574)
falls on the other side of the line. In the mid way we find certain
decisions wherein the presumption was invoked as an additional
reason to support the conclusion based on circumstantial
evidence. We shall briefly refer to these decisions.
In Union Territory of Goa Vs. B. D'Souza (supra) a two-Judge
Bench of this Court held that discovery of incriminating articles
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including gold ornaments of the deceased and the absence of
explanation for the possession of stolen articles does not by itself
justify a presumption that the accused committed murder.
Suspicion however strong cannot take the place of proof. The
finding of the Sessions Judge based on the presumption "does not
stand scrutiny in the eye of law". Unless there is something else
to show that the accused alone were in the company of the
deceased, the presumption cannot be drawn. It was held that
there were no circumstances connecting the accused with the
murder. The Court however convicted the accused under Section
411 IPC. In a more recent case, namely, Ronny Vs. State of
Maharashtra [1998 (3) SCC 625 ], the above decision was
referred to and distinguished and the raison d'etre for not
drawing the presumption was said to be that the injured witness
did not implicate the accused and the recovery was after one
month. However, on a perusal of the judgment in D'Souza case,
it is not apparent that the injured witness was in a position to see
and identify the accused at all. As regards the time factor, there
was no categorical observation in D'Souza 's case that the lapse
of one month's time would weaken the presumption. Another
judgment rendered by the same Bench was in the case of Surjit
Singh Vs. State of Punjab (supra). It was held therein that
recovery of watch belonging to the deceased from a pawn broker
after 15 days of the date of occurrence on the basis of the
information furnished by the accused was held to be insufficient
to connect him with murder by invoking Section 114 of the
Evidence Act. At the most, it was held that he can be convicted
under Section 411 and accordingly he was convicted and
sentenced. Another case which broadly falls within first category
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is that of Sanwath Khan (supra). As it is a three-Judge Bench
decision, we may refer to it in some detail.
Two persons who were living in a temple were found lying dead
in the temple premises. They succumbed to axe injuries. The
house was found ransacked and almirahs etc. opened. One of the
accused who was arrested 12 days later produced a gold kanthi
which it was lying buried in his premises. Another accused who
was arrested 17 days later produced a silver plate from his house
where it lay buried in the ground. Both these articles belonged to
the deceased. The High Court upheld the conviction by relying
on the solitary circumstance of the recovery of two articles at the
instance of the accused and the absence of explanation about
their possession. On further appeal, the three-Judge Bench of the
Supreme Court set aside the conviction under Section 302 and
found the appellants guilty under Section 380 IPC. Mahajan, J.
speaking for the Bench observed as under: -
"In the absence of any evidence whatsoever of the
circumstances in which the murders or the robbery took
place, it could easily be envisaged that the accused at some
time or other seeing the Mahant and Ganpatia murdered,
removed the articles produced by them from the temple or
received them from the person or persons who had
committed the murder."
The Court, after having referred to the possibility of someone else
murdering the deceased observed thus :
"Be that as it may, in the absence of any direct or
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circumstantial evidence whatsoever, from the solitary
circumstance of the unexplained recovery of the two
articles from the houses of the two appellants the only
inference that can be raised in view of illustration (a) to
S.114 of the Evidence Act is that they are either receivers
of stolen property or were the persons who committed the
theft, but it does not necessarily indicate that the theft and
the murders took place at one and the same time.
The accused produced these articles about a fortnight after
the theft and the maximum that can be said against them is
that they received these goods knowing them to be stolen
or that they themselves stole them; but in the absence of
any other evidence, it is not possible to hold that they are
guilty of murder as well."
Having referred to the decisions of various High Courts, the
Court concluded as follows: -
"In our judgment no hard and fast rule can be laid down
as to what inference should be drawn from a certain
circumstance. Where, however, the only evidence against
an accused person is the recovery of stolen property and
although the circumstances may indicate that the theft and
the murder must have been committed at the same time, it
is not safe to draw the inference that the person in
possession of the stolen property was the murderer.
Suspicion cannot take the place of proof."
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Now, it is time we refer to Gulab Chand Vs. State of M.P. [1995
(3) SCC 574] case, where presumption under Section 114 of the
Evidence Act was carried to the utmost extent. In that case the
accused were charged under Sections 120-B, 302, 394 and 397
for having committed the murder and robbery. The appellants
were convicted under Section 380. On appeal by the State, the
High Court reversed the order of acquittal and convicted the
appellant Gulab Chand under Sections 302, 394 and 397. The
conviction of the other accused was modified to one under
Section 411. In that case, within a few days after the incident, on
the search of the appellant's house, various articles were found
including ornaments belonging to the deceased. Some of the
ornaments were also recovered from a shop on the basis of the
information given by the accused. The Court started the
discussion with the preface: "it is true that simply on the recovery
of stolen articles, no inference can be drawn that a person in
possession of the stolen articles is guilty of the offence of murder
and robbery. But, culpability for the aforesaid offences will
depend on the facts and circumstances of the case and the nature
of evidence adduced." After referring to the test of time factor for
drawing the presumption under S. 114 (a) as laid down in
Tulsiram Kanu Vs. State (AIR 1954 SC 1), the Court observed, if
the ornaments of the deceased were found in possession of a
person soon after the murder, a presumption of guilt can follow.
But if several months have expired, the presumption may not be
permitted to be drawn. Having regard to the close proximity of
the time of recovery and lack of credible explanation for the
possession thereof and on account of dealing with the ornaments
immediately after the crime, it was held that a reasonable
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inference of commission of offence could be drawn against the
accused. In conclusion, the learned Judges observed:
In the facts of this case, it appears to us that murder and robbery
have been proved to have been integral parts of the same
transaction and therefore the presumption arising under
Illustration (a) of Section 114 Evidence Act is that not only the
appellant committed the murder of the deceased but also
committed robbery of her ornaments."
The above decision was cited with approval in the case of
Mukund vs. State of M.P. (1997 (10) SCC 130). The Court,
having negatived the contention of the appellant's counsel that
mere recovery of stolen articles from the house pointed out by the
accused could only lead to the presumption that the offence was
committed under Section 411 but not the offences under Sections
302 and 394, observed thus: -
"If in a given case as the present one the prosecution can
successfully prove that the offences of robbery and murder
were committed in one and the same transaction and soon
thereafter the stolen properties were recovered, a court
may legitimately draw a presumption not only of the fact
that the person in whose possession the stolen articles
were found committed the robbery but also that he
committed the murder. In drawing the above conclusion
we have drawn sustenance from the judgment of this Court
in Gulab Chand Vs. State of M.P. ".
At the same time, the Court was cautious enough to
say that the other incriminating circumstances detailed
earlier reinforced the ultimate conclusion. Various others
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incriminating circumstances were referred to in the
judgment.
Gulab Chand 's case was also referred to in Ronney Vs. State of
Maharahstra [1998 (3) SCC 625] and Sanjay Vs. State (NCT of
Delhi) [2001 (3) SCC 193]. But it is to be noted that in all the
three cases decided subsequent to Gulab Chand 's case, there
were additional circumstances which shed light on the
involvement of the accused. So also in the case of Earabhadrappa
Vs. State of Karnataka [AIR 1983 SC 446], presumption was
raised that the accused who pointed out the places at which the
ornaments and sarees of the victim were kept committed robbery
and murder. Here again, quite a number of additional
circumstances were noticed, apart from the recovery of stolen
articles. Thus, as far as the factual matrix goes, only Gulab
Chand 's case stands apart. The recovery of the articles of victim
soon after the crime at the instance of the accused and incredible
explanation given by the accused for possession of the articles
were held to be sufficient to raise the presumption of having
committed robbery and murder, if they were otherwise part of the
same transaction.
VI.(c) Whether the presumption could be further stretched to find
the appellants guilty of gravest offence of murder is what remains
to be considered. It is in this arena, we find divergent views of
this Court, as already noticed. In Sanwath Khan 's case, the three-
Judge Bench of this Court did not consider it proper to extend
the presumption beyond theft (of which the accused were
charged) in the absence of any other incriminating
circumstances excepting possession of the articles belonging to
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the deceased soon after the crime. However, we need not dilate
further on this aspect as we are of the view that in the peculiar
circumstances of the case, it would be unsafe to hold the accused
guilty of murder, assuming that murder and robbery had taken
place as a part of the same transaction. The reason is this. Going
by the prosecution case, the deceased Baburao was hit by a heavy
stone lying on the spot. The medical evidence also confirmed that
the fatal injuries would have been inflicted by a heavy stone like
article No.1. It is not the case of the prosecution that the
appellants carried any weapon with them or that the injuries
were inflicted with that weapon. There is every possibility that
one of the accused picked up the stone at that moment and
decided to hit the deceased in order to silence or immobilise the
victim. If the idea was to murder him and take away the
ornaments from his person, there was really no need to forcibly
snatching the ear-rings before putting an end to the victim. It
seems to us that there was no pre-mediated plan to kill the
deceased. True, common intention could spring up any moment
and all the three accused might have decided to kill him
instantaneously, for whatever reason it be. While that possibility
cannot be ruled out, the possibility of one of the accused suddenly
getting the idea of killing the deceased and in furtherance thereof
picking up the stone lying at the spot and hitting the deceased
cannot also be ruled out. Thus two possibilities confront us.
When there is reasonable scope for two possibilities and the
Court is not in a position to know the actual details of the
occurrence it is not safe to extend the presumption under Section
114 so as to find the appellants guilty of the offence of murder
with the aid of S.34 IPC. While drawing the presumption under
Section 114 on the basis of recent possession of belongings of the
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victim with the accused, the Court must adopt a cautious
approach and have an assurance from all angles that the accused
not merely committed theft or robbery but also killed the victim.
VII In the result, we set aside the conviction of the accused under
Section 302 IPC. We find the accused guilty of the offence
punishable under Section 394 read with Section 34 IPC and
accordingly convict the accused under Section 394 and sentence
them to undergo rigorous imprisonment for a period of five years
and to pay a fine of Rs.500/- each and in default to undergo
further imprisonment for a period of three months. The appeals
are thus partly allowed.”
(emphasis supplied)
120 It is contended that the facts and circumstances of the case and
the quick succession of events lead to no other possible inference but for the
commission of the offence by the accused persons themselves. He also refers
to the judgment in the matter of Sonu @ Sunil Vs. State of Maharashtra,
reported as 2002 (2) RCR (Crl.) 631 .
121 Referring to the above, counsel contends that in these cases the
inference with respect to commission of the other offences by the accused
persons had been drawn with the aid of Section 114 of the Indian Evidence
Act, 1872, solely based upon recovery of the material from the accused
persons.
122 Counsel further refers to the judgment of the Supreme Court in
the matter of Baiju Vs. State of Madhya Pradesh, reported as 1978 (1) RCR
(Crl.) 588; Mukund @ Kundu Mishra Vs. State of Madhya Pradesh,
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reported as 1997(3) RCR (Crl.) 79, as well as Dakkata Balaram Reddy and
another Vs. State of Andhra Pradesh and another, reported as 2023 INSC,
411 wherein the Supreme Court had drawn a presumption to the extent of
commission of offence under Section 302 IPC against the accused based upon
the circumstantial evidence.
123 The relevant extract of judgment in case Baiju Vs. State of
Madhya Pradesh reads as under: -
“13. We find that the High Court has made a mention of the
circumstantial evidence which led it to conclude that the murders
were committed by the appellant, including the evidence bearing
on his repeated visits to the house of the deceased, his promise to
beget a child to the family, by sorcery, his winning their
confidence to the extent of persuading them to do whatever he
liked, his ruse to get rid of Smt. Lakhpatiya by sending her to her
parents' house at Narainpur after leaving her husband and her
ornaments behind on promise of meeting her there on January
21, 1975, his failure to fulfil that promise, the death of Smt
Lakhpatiya's husband Ramdayal and his and his other wife Smt.
Fulkunwar at the "nala" where the appellant used to take them
and Smt. Lakhpatiya on the pretext of practising sorcery, the
death of Ramdayals mother Smt. Bhagwanti and his nephew
Rambakas in the house the same night, the ransacking of the
house and the commission of theft of several articles of Ramdayal
including the transistor, the watch, the gold "addhis", the torch
and ornaments etc., and the recovery of those articles either from
the house of the appellant or at his instance. His counsel have
not been able to point out how it could be said that any part of
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this circumstantial evidence has been misread or that any error
of law has been committed in taking the view that it was quite
sufficient to prove the guilt of the appellant. As has been held by
this Court in Wasim Khan v. The State of Uttar Pradesh 1956
SCR 191, recent and unexplained possession of stolen articles
can well be taken to be presumptive evidence of the charge of
murder as well.A similar view has been taken in Alisher v. State
of Uttar Pradesh, (1974)4 SCC 254.
14. As has been stated, the prosecution has succeeded in proving
beyond any doubt that the commission of the murders and the
robbery formed part of one transaction, and the recent and
unexplained possession of the stolen property by the appellant
justified the presumption that it was he, and no one else, who had
committed the murders and the robbery. It will be recalled that
the offences were committed on the night intervening January 20
and 21, 1975, and the stolen property was recovered from the
house of the appellant or at his instance on January 28, 1975.
The appellant was given an opportunity to explain his possession,
as well as his conduct in decoying Smt. Lakhpatiya and the other
persons who died at his hand, but he was unable to do so. The
question whether a presumption should be drawn under
illustration (a) of Section 114 of the Evidence Act is a matter
which depends on the evidence and the circumstances of each
case. Thus the nature of the stolen article, the manner of its
acquisition by the owner, the nature of the evidence about its
identification, the manner in which it was dealt with by the
appellant, the place and the circumstances of its recovery, the
length of the intervening period. the ability or otherwise of the
appellant to explain his possession, are factors which have to be
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taken into consideration in arriving at a decision. We have made
a mention of the facts and circumstances bearing on these points
and we have no doubt that there was ample justification for
reaching the inevitable conclusion that it was the appellant and
no one else who had committed the four murders and the robbery.
In the face of the overwhelming evidence on which reliance has
been placed by the High Court it is futile to argue that the
murders could not have been committed by a single person. As
has been stated there is satisfactory evidence on the record to
show that the dead bodies of Ramdayal and Smt. Fulkunwar were
found at two different places.”
124 The relevant extract of Mukund @ Kundu Mishra Vs. State of
Madhya Pradesh , reads as under: -
9. Mr. Jain, appearing for the appellants, firstly contended that
the prosecution failed to establish that any incriminating article
was recovered from the respective houses of the appellants, far
less, that it was stolen at the time of the murders. We are not
impressed by this contention of Mr. Jain for on perusal of the
record we find that both the Courts below have discussed in
details the entire evidence adduced by the prosecution and given
cogent and convincing reasons for accepting the same. Having
gone through the evidence we are constrained to say that no
other reasonable view of it could have been taken. Mr. Jain next
submitted that even if it was assumed that the articles stolen from
the house of Dubeys were recovered from the appellants it could
at best be said that they committed the offence under Section 411
Indian Penal Code but not the offences for which they stood
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convicted. We do not find any substance in this submission of Mr.
Jain also. If in a given case as the present one the prosecution
can successfully prove that the offences of robbery and murder
were committed in one and the same transaction and soon
thereafter the stolen properties were recovered, a Court may
legitimately draw a presumption not only of the fact that the
person in whose possession the stolen articles were found
committed the robbery but also that he committed the murder. In
drawing the above conclusion we have drawn sustenance from
the judgment of this Court in Gulab Chand v. State of M.P.
1995(3) RCR 134: 1995(3) SCC 574, We hasten to add that the
other incriminating circumstances detailed earlier reinforce the
above conclusions, rightly drawn by the Courts below. We
therefore find no hesitation in upholding the convictions as
recorded by the trial Court and affirmed by the High
Court.”
125 The relevant extract of the judgment in the matter of Dakkata
Balaram Reddy and another Vs. State of Andhra Pradesh and another ,
reads as under: -
“23. In this regard, it may also be noted that A2 was found in
possession of a bag carrying some of the stolen ornaments and,
therefore, such possession itself speaks against him, in terms of
Section 114 (a) of the Indian Evidence Act, 1872. Being a fact
especially within his knowledge, it was for A2 to explain as to
how he came to be in possession of those stolen ornaments, under
Section 106 of the Indian Evidence Act, 1872. However, no
explanation was offered by him. As regards A1, it is the
prosecution’s case that he confessed to commission of the crime
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and upon being questioned as to the stolen gold ornaments, he
himself went into the other room in his house and brought out a
bag containing the gold ornaments. This part of his confession
would, therefore, be admissible under Section 27 of the Indian
Evidence Act, 1872, as it led to the recovery of the stolen gold
ornaments.
xxx xxx xxx
25. Given the totality of the case, which demonstrates that the
sequence of events unfolded in quick succession during the
intervening night of 21.08.2008 and 22.08.2008, leading to not
only identification of the accused by the witnesses present but
also their apprehension and arrest, apart from seizure of the
stolen gold ornaments and cash from their possession, it is amply
clear that there was no time or possibility for the police to hoist
a false case upon them. Minor discrepancies and shortcomings
in the statements made by witnesses after passage of a few years
would necessarily have to be discounted in such a scenario.”
126 Referring to the above, counsel contends that there is
overwhelming evidence – primary, secondary, circumstantial as well as
corroborative in the form of electronic evidence and Test Identification Parade
followed by recovery. The evidence of dacoity and murder were in quick
succession, hence, the tests as prescribed by the Supreme Court through
catena of judgments stand fully satisfied.
DISCREPANCIES IN THE MEDICAL EVIDENCE
127 Learned counsel for the State and the complainant submit that the
discrepancies pointed out by the defence in the medical evidence are neither
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material nor sufficient to discredit the prosecution case. It is contended that
the post-mortem evidence establishes that Vanita sustained a serious head
injury which was sufficient in the ordinary course of nature to cause death,
and that the medical opinion is to be read with the ocular account of the
complainant and the other surrounding circumstances. The difference in the
description of the side or location of the injury in the inquest papers and the
post-mortem record, as also the reference to blood on the clothes, is submitted
to be a matter of description and not a contradiction going to the root of the
case. It is further argued that the absence of corresponding injuries on the
complainant does not negate the occurrence, particularly when the
prosecution case is that the complainant was restrained and assaulted while
the deceased was separately subjected to the fatal impact. The medical
evidence, according to the prosecution, lends assurance to the circumstances
proved on record and does not create a reasonable alternative hypothesis.
NON-EXAMINATION OF MATERIAL WITNESSES
128 It is argued by the counsel that all the circumstances of the case
clearly lead to one unescapable legal inference that the accused persons were
the only ones who were involved in the commission of the offence and there
would be no reason to extend any benefit of doubt to the respondents-accused
herein on account of the failure of the prosecution to examine the father and
mother of the complainant Dr. Atul Arora. He contends that the aforesaid
failure is not fatal, rather, it was inconsequential. Dr. Atul Arora specifically
deposed to the effect that after the clinic hours were over, he had come over
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on the first floor i.e. the residential portion of the house and that he was sitting
in the room along with his parents when he heard the shrieks of his wife and
that upon hearing such a shriek, he came outside where he noticed the accused
persons. They made him a hostage and that, on the pretext of meeting his
parents for the last time, he made good his escape from the room of his parents
in the face of imminent death and bolted the door from inside. It is thus not
the case set up by the prosecution that the parents had been called out or had
been assembled by the accused persons at the place where they committed the
offence or they removed the gold ornaments. Thus, merely because they
happen to be at the place of incident does not in any manner lead to an
assumption that they are witnesses of significance. It not being the case of the
prosecution that the occurrence in question had been seen by the said
witnesses, their non-examination would be immaterial and would have no
bearing on the case of the prosecution. A similar argument has also been raised
with respect to the non-examination of Neelam, the nurse employed at the
clinic. It is argued with vehemence that it is not the number of witnesses but
the quality of evidence which determines the guilt. Once the deposition of the
complainant Dr.Atul Arora, i.e the eyewitness of the incident, had been found
satisfactory to establish the case of the prosecution, merely because the
prosecution has not examined the other witnesses would not by itself render
the case of the prosecution suspicious or doubtful.
129 Learned counsel contends that the argument advanced by the
counsel for the accused that Gudiya i.e. wife of Ket Ram, had not been
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examined even though she had also been called to the place where all persons
were held hostage is misconceived. Undisputedly, Ket Ram i.e. husband of
Gudiya, was one of the suspects in the present case and it would be naïve to
cite his wife as a witness to the incident as she was most unlikely witness to
depose the truth and would instead make attempts to save her husband Ket
Ram. It is contended that there was, however, no bar on the defence to not
lead its evidence and they, having chosen not to examine any evidence in
defence, cannot seek to build up their case on the non-examination of certain
witnesses, whose testimonies would at best have only been corroborative.
130 Similarly, the non-examination of the neighbour, from whose’s
house the telephone call was made, is also inconsequential and has no bearing
on the quality of the evidence or the credit, i.e. the testimony of the injured
witness, i.e. the complainant Dr. Atul Arora.
131 Learned counsel further contends that for the same reasons, it
would be immaterial that the landlord/owner of the house or the room from
which the recovery had been effected was not examined. The prosecution is
not required to establish the chain of ownership of the place from where the
recovery was effected, rather, it was only to be seen as to whether the accused
had exclusive knowledge with respect to the concealment of the proceeds of
the crime. He submits that the recoveries may be effected even from open
spaces or places not under the dominion of any specific individual. Thus, the
ownership of the place wherefrom the recovery was effected is immaterial and
is not crucial for the case of the prosecution and that merely on account of
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non-examination of the owner, the recovery would not be vitiated.
ARREST OF THE ACCUSED SHROUDED IN DOUBT
132 Adverting to the submission by the counsel with respect to the
arrest of the accused being shrouded in doubt and that the encounter itself
having been disbelieved by the Court which acquitted the accused persons in
FIR No.13 registered for offence under Section 307 IPC, vide judgment dated
09.10.2025, it is contended that merely because there is a discrepancy about
the mode and manner in which the accused, would not render the case false.
133 Learned counsel contends that in a worst scenario, the instances
of the police going beyond board, more in an anxiety to restore confidence of
the people, should not be viewed as a suspicious circumstance sufficient to
impeach the entire investigation. An illegal arrest may only give rise to bail
but the same does not lead to a conclusion that the entire investigation out to
be discarded.
OFFENCE OF DACOITY NOT MADE OUT
134 Adverting to the argument raised by the counsel for the accused
that the offence of dacoity is not made out, counsel contends that the totality
of circumstances clearly shows that Poonam was involved in the offence. The
law does not postulate presence of all persons to be physically present at the
time of the offence for making out an offence of dacoity. Even when one of
the persons is operating behind the scenes or have shared the information, the
offence of dacoity may still be made out.
135 He contends that evidence in the case in hand clearly shows that
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the accused persons had distinct knowledge as to where the ornaments had
been kept. As per the deposition of the witnesses, there were only three
outsiders who were aware of the said items which included Khet Ram and his
wife Gudiya and the third person was Poonam. Ket Ram and Gudiya were at
the house at that point in time whereas Poonam was removed after she was
found removing things of the complainant party.
136 One of the accused Vikram @ Vicky was an acquaintance of said
Poonam and he used to often come to the clinic to pick up Poonam. Their
acquaintance and relationship was established by the prosecution witnesses.
He contends that the earlier conduct of Poonam i.e. her removal on account
of dishonest acts and removal of belongings of the complainant party followed
by her link to the accused and disclosure of a specific information, which was
a privileged information, by the accused persons indicates towards the
involvement of the Poonam in the present case. The conclusion is inescapable.
Hence, even if the Court does not find any error in the acquittal of Ket Ram,
it would still make out to a total of 05 persons who were involved in the
offence. Hence, offence of dacoity would be made out along with the offence
under Section 396 IPC.
OFFENCE OF MURDER NOT MADE OUT
137 Learned counsel for the State, the complainant and the learned
Amicus Curiae contend that the absence of an eyewitness to the actual
infliction of the fatal injury is not, by itself, a ground to disbelieve the charge
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of murder, where the circumstances proved on record form a complete chain.
It is submitted that Vanita was alive when the accused entered the house, her
shriek was heard by the complainant; the accused were present inside the
house in the course of the armed robbery; and she was found dead shortly
thereafter, with the medical evidence ruling out a natural or accidental death.
The removal of the jewellery and other articles, the identification of the
accused, the electronic evidence and the recoveries are relied upon as further
corroborative circumstances. It is further argued that where the accused
conjointly participated in the same transaction and the fatal injury was caused
during its course, the prosecution need not establish which particular accused
delivered the fatal blow, provided the requisite common participation and
legal basis for constructive liability are proved. The prosecution accordingly
submits that the circumstances, taken cumulatively and not in isolation,
support the charge under Section 302 IPC.
OFFENCE OF LURKING HOUSE TRESPASS
138 Counsel contends that the law recognises conjoint complicity. He
contends that Section 460 IPC stipulates that when duly armed persons enter
the house of the deceased and even if any of them causes any fatal injury as a
result whereof the person dies, there is no requirement on the prosecution to
establish existence of any common intention as the same is immaterial.
Section 460 IPC, being a substantive offence, hence, conjoint liability is
fastened against all persons who were part of said group. He places reliance
on the judgment of the Supreme Court in the matter of State of Andhra
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Pradesh Vs. Sobhan Babu, reported as 2011 (2) RCR (Crl.) 897 . The
relevant extract thereof reads thus: -
“4. The facts as recapitulated reveal that the accused duly armed
had entered the house of the deceased and when they had been
challenged they had caused one fatal injury to the deceased. The
High Court has found that as the case of the accused was not
covered by Clause thirdly of Section 300 they were liable for
conviction under Section 304 Part I and not Section 302 . While
dealing with this matter, the High Court has observed as under:
-
"That being the settled law, we have to consider whether
the two requirements contemplated by the third clause of
Section 300 IPC have been fulfilled. We have already
noticed that the testimony of direct witnesses pointing to
one thing that A2 dealt a knife blow on the left abdomen of
the deceased - The only question then to be considered is
whether A2 intended to inflict injury that was found on the
dead body of the deceased. It is time to recapitulate the
evidence of P.Ws. 1 to 4 quickly. P.w. 1 testified that by the
time he came on to the balcony of the first floor the
deceased and A-2 were grappling and more particularly
the deceased was on the top of A-2 pinning him down to
the ground. It is to be noted that the deceased was an
internationally renowned cyclist and physically well built
person and whereas A2 is a shorter man. In the situation
in which A-2 was placed made us to believe that he dealt a
knife blow in the process of extricating himself from the
clutches of the deceased and unfortunately the blow landed
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on the vital part of the deceased, which ultimately led to
his death. In these circumstances, the offence committed by
A-2 comes within the purview of Section 304 IPC."
5. We find that in the facts of the case, the observations given
above are not correct. It cannot be ignored that the two accused
had entered the premises at mid night duly armed with the
intention of committing robbery. They were also charged under
Section 460 IPC on that account. It is also in evidence that the
deceased had managed to pin A2 down to the ground and A2 had
caused one injury in the stomach of the deceased while he lay on
top of him. Two injuries were thereafter caused on the thigh of
the deceased by A2 and the other accused. It is also in evidence
that when the neighbours arrived on the scene they too were
caused injuries and threatened with dire consequences. To say,
therefore, that there was no intention on the part of the accused
to cause death would be carrying the matter a little too far. The
High Court has been influenced by the fact that there was no
common intention on the part of the accused to commit murder.
We see, however, that the common intention can be inferred from
the circumstances of the case and that the intention can be
gathered from the circumstances as they arise even during an
incident. The initial purpose was to commit robbery, but as the
accused were armed with knives which they had used repeatedly
and effectively, they were willing to kill as well and that they
could not cause more damage as they were overwhelmed and
pinned down.
139 A reference is also made to the judgment of the Supreme Court
in the matter of Haradhan Das Vs. State of West Bengal, reported as 2013(1)
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RCR (Crl.) 755 . The relevant extract thereof reads thus: -
“24. The accused persons were charged under Section 302 read
with Sections 149 , 148 and 326 as well as Section 460 IPC. The
FIR had been lodged by Somnath Mukherjee son of the deceased
who, as already noticed, expired during the course of the trial.
As per the statement of witnesses, the miscreants were five in
number. The present appellant had duly been identified by the
injured witnesses as well as by other persons who were present
in the house at the time of occurrence. The Trial Court acquitted
three accused primarily on the ground that they had not been
identified and there was no direct evidence implicating the said
three accused in the commission of the crime. This finding of the
Trial Court had attained finality as the State did not challenge
the same. One accused died during the trial.
25. The appellant alone has been found guilty and punished by
the Trial Court and his sentence stands confirmed by the High
Court. Five persons had got together to commit the offence of
lurking house trespass and causing the death of Barindra Nath
Mukherjee. Since there was no evidence of pre-determined mind
of the accused persons to commit such an offence and except the
appellant other accused were not even identified, the Trial Court
acquitted the accused persons except the appellant. Even if other
accused were acquitted in the above circumstances for an offence
under Section 302 / 149 IPC, still there was direct evidence
involving the appellant in committing the offence and
particularly for causing the vital injuries to the deceased. The
appellant had duly been identified by PW9, wife of the deceased
who was present in the room itself. There is no reason to
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disbelieve her statement. The injuries were caused with the
intention to kill the deceased and they were caused on the vital
parts of the body. From the medical evidence on record itself, it
is clear that the ribs of the deceased were fractured, the
abdominal wall was injured and on the head there was an injury
which continued to bleed till death of the deceased. Due
identification of role attributable to the appellant clearly
establishes the ingredients of Section 302 IPC and thus, makes
him liable to be punished for the said offence.
26. If five or more accused are charged with an offence under
Section 302 read with Section 149 IPC and the Court finally finds
that the person’s identification, role and object in participation
against some of those accused is not proved, still other persons
forming the unlawful assembly and against whom the
prosecution is able to prove its case beyond reasonable doubt
can be punished for an offence under Sections 302 / 149 IPC. The
statutory principle provided under the provision of Section 149
IPC will include the persons who were acquitted because that is
the case of the prosecution. The conviction recorded by the Trial
Court cannot be vitiated on that ground. This Court in the case
of Khem Karan and Others v. The State of U.P. and Another [AIR
1974 SC 1567], while discussing somewhat similar
circumstances and dealing with an offence under Section 307
read with Section 149 IPC, applied the principle of constructive
liability and held as under:-
“7. What remains is the question of sentence. It is true that
those assailants who did not receive injuries have escaped
punishment and conviction has been clamped down on
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those who have sustained injuries in the course of the
clash. It is equally true that those who have allegedly
committed the substantive offences have jumped the
gauntlet of the law and the appellants have been held guilty
only constructively. We also notice that the case has been
pending for around ten years and the accused must have
been in jail for some time, a circumstance which is relevant
under the new Criminal Procedure Code though it has
come into operation only from April 1, 1974. Taking a
conspectus of the various circumstances in the case, some
of which are indicated above, we are satisfied that the ends
of justice would be met by reducing the sentence to three
years rigorous imprisonment under S. 307, read with S.
149 , and one year rigorous imprisonment under S. 147 ,
IPC, the two terms running concurrently. With this
modification regarding sentence, we dismiss the appeal.”
27. There is another perspective from which the present case can
be examined. As already noticed, the accused persons were
charged for the offence under Section 460 IPC and were tried for
the same offence. The Trial Court has not returned any finding
as to the guilt of the accused under Section 460 IPC and found
the accused persons guilty of the offence under Section 302 read
with Section 149 IPC. Even the High Court has not dwelled upon
this discussion in the judgment impugned. The provisions of
Section 460 IPC read as follows:-
“460. All persons jointly concerned in lurking house-
trespass or house- breaking by night punishable where
death or grievous hurt caused by one of them.—If, at the
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time of the committing of lurking house- trespass by night
or house- breaking by night, any person guilty of such
offence shall voluntarily cause or attempt to cause death
or grievous hurt to any person, every person jointly
concerned in committing such lurking house- trespass by
night or house- breaking by night, shall be punished with
imprisonment for life, or with imprisonment of either
description for a term which may extend to ten years, and
shall also be liable to fine.”
28. The bare reading of the above provision shows that every
person who is jointly concerned in committing the offence of
lurking house trespass by night or house breaking by night is to
be punished with life imprisonment where death has been caused
or with imprisonment which may extend to ten years where
grievous hurt has been caused to any person. This joint liability
is based upon the principle of constructive liability. Thus, the
person who has actually committed the death or grievous hurt
would be liable to be punished under the relevant provisions i.e.
Section 302 or Section 326, as the case may be, while committing
the offence of lurking house trespass by night. It is possible that
common intention or object be not the foundation of an offence
under Section 460 IPC. Thus, to establish an offence under
Section 460, it may not be necessary for the prosecution to
establish common intention or object. Suffice it will be to
establish that they acted jointly and committed the offences stated
in Section 460 IPC. The principle of constructive liability is
applicable in distinction to contributory liability. This Court in
the case of Abdul Aziz v. State of Rajasthan [(2007) 10 SCC 283],
clearly stated that if a person committing housebreaking by night
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also actually commits murder, he must attract the penalty for the
latter offence under Section 302 and the Court found it almost
impossible to hold that he can escape the punishment provided
for murder merely because the murder was committed by him
while he was committing the offence of housebreaking and that
he can only be dealt with under Section 460.
140 Learned counsel for the State, the complainant and the learned
Amicus Curiae submit that the evidence establishes that the accused entered
the dwelling house at night as part of a concerted plan, were armed, restrained
the occupants and proceeded to commit robbery. Their conduct inside the
house, the manner in which the occupants were controlled and the
circumstances in which the deceased sustained the fatal injury are relied upon
to show preparation for the use of force and joint participation in the
occurrence. It is contended that the liability contemplated by Section 460 IPC
is constructive in nature and does not require proof that every participant
personally inflicted the fatal injury, provided the statutory foundational facts
of the offence and joint participation are established. The prosecution
accordingly submits that the acts of the accused must be viewed as one
transaction and that the consequence caused by one of the persons jointly
concerned cannot be considered in isolation from the common enterprise.
141 He contends that once ingredients of Section 460 IPC are made
out, all persons would be liable to be convicted for commission of the offence
irrespective of absence of specific attribution of specific role to the accused
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persons.
142 Learned amicus finally submits that the present case is a part eye
witness and part circumstantial evidence based account. In the eye witness
account, the accused persons entered into the house of the complainant and
held the complainant as a hostage and asked for the keys to the almirah where
the ornaments had been kept and also to the extent whereby they had snatched
the cash amount of Rs.1,00,000/- from the complainant. The aspect as to the
murder of his wife by the accused persons is based upon circumstantial
evidence, since he is not an eye witness to that part of the incident. However,
considering the fact that he came out of the house only upon hearing the
shrieks of his wife and taking into consideration that the prosecution witness
specifically stated that the injury was homicidal and was not self sufferred. A
specific question in this regard was also put to the doctor, which he
satisfactorily explained that he could not have been self-sustained or be caused
on account of any slippage. The same establishes the involvement of the
accused persons in the commission of the offence and inference has to be
drawn against them with the aid of Section 10 read with Section 114 of the
Indian Evidence Act, 1872.
OFFENCE UNDER SECTIONS 395 AND 397 IPC AND THE ARMS
ACT
143 Learned counsel for the State and the complainant contend that
the evidence establishes a concerted armed robbery in which the occupants
were threatened and restrained, whereas cash and jewellery were forcibly
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removed and the complainant was assaulted while his wife was murdered. It
is submitted that the number of participants must be assessed with reference
to the persons conjointly committing or aiding the robbery and that a
participant who facilitates the offence from behind the scenes need not
necessarily be physically present inside the house. The prosecution relies upon
the alleged prior acquaintance between Poonam and Vikram @ Vicky, the
specific knowledge displayed by the assailants regarding the place where the
jewellery was kept, the CCTV footage, identification, call detail records and
recoveries as circumstances supporting the allegation of concerted
participation. It is further contended that the firearm-related offences are
supported by the recoveries, the sanction and the other evidence led by the
prosecution and that the defence cannot seek for an acquittal merely by
arguing that the weapons were first seized in a separate case.
144 No other arguments have been raised by counsel for either of the
parties.
CONSIDERATION AND CONCLUSION
145 We have heard learned counsel appearing on behalf of the
respective parties and have gone through the evidence as well as the precedent
judgments relied upon by them in support of their respective arguments.
146 The case raises crucial questions as to whether the accused
committed the offences in question and also as to whether a case for infliction
of capital punishment is made out or not. In the said process, issue as to
significance, reliability and admissibility of Test Identification Parade;
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joint/simultaneous disclosure followed by a joint recovery and its legal
significance and admissibility under section 27 of the Evidence Act;
admissibility of the electronic record and the Certificate under Section 65B
and its validity as per the Indian Evidence Act, 1872 when the same is issued
by a family member and not the owner and the conjoint criminal liability
where direct evidence as to some of the offences are not available.
147 Before proceeding further in the matter, it would be apt to refer
to the relevant evidence led by the parties.
148 The complainant Dr. Atul Arora, while appearing as PW.1, gave
a detailed account of the manner in which the incident had taken place. The
same in entirety is, however, not repeated to avoid repetition, and only the
relevant extract necessary for adjudicating the case is being adverted to.
149 In his deposition in the Court, PW.1 Dr. Atul Arora-complainant
stated that he went upstairs to his residential portion on 09.01.2023 at about
9:20 P.M. and came out of the room of his parents on hearing the screams of
his wife Dr. Vanita and as soon as he stepped out of the room of his parents,
he was overpowered by two young men having guns in their hands
respectively. One of them hit him on his head with the gun in his hand, while
the other took him at gunpoint by placing it on his neck. They threatened to
kill him in case the complainant made a noise and pushed the complainant
towards the drawing room and made him sit on the Sofa set. They demanded
the mobile phone and also asked him to hand over the cash and the keys. The
complainant was having Rs.1 lakh in cash and some keys etc. which were
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-163-
handed over by him to the accused persons. Then they asked about the Mandir
in the house and about the keys of the almirah situated just above the Mandir.
They also stated that they knew that all the jewellery was lying in the said
Almirah. Another young man, wearing a muffler on his face, came to the spot
and asked the same questions. The other two persons went in search of his
house while one person stood guard on the complainant. The person with the
muffled face came into the kitchen with the DVR of the CCTV cameras
installed at the house and broke the DVR and took out the hard disc and tried
to burn the same on the Gas stove and later put the same in his jacket. The
second person was holding a bag in his hand containing the jewellery
belonging to his family. The complainant requested them to go away from the
house since they had taken whatever they needed. The accused persons started
looking at each other and from the conversation, the complainant gathered
that they were planning to kill him. He thus requested to meet his parents, who
were in another room, for one last time. The person who was holding him at
gunpoint followed him. The complainant entered the room and bolted it from
inside. When he asked for the mobile phone from his mother, she informed
him that the accused had also taken the same away. The wires of the intercom
had been cut and the telephone had been disconnected. He opened another
door of the room of his parents, which opens towards the back side of the
house. A Government school is adjacent to the back side. He jumped from
the balcony of his house into the said school and scaled the school wall with
the help of a ladder and then informed one of the neighbours, Ashok and
RAJ KUMAR ARORA
2026.10.28 18:06
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integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-164-
narrated the entire incident to him. He made a telephone call to the police,
whereupon PCR reached there. The accused had already left by that time. He
found his wife Vanita lying dead in the bakery of the residence. Blood was
oozing out from her nose as well as her mouth. Seeing the same, the
complainant went into a shock. Certain persons standing by him called his
daughter and intimated her about the incident. Other persons also reached
there. He found the almirah broken and the articles were lying on the floor. It
was informed by him that he suspected his domestic help Poonam and her
boyfriend Vikram. It was also conveyed by him that he had removed the
domestic help Poonam in July 2022, as she was noticed stealing the valuables
from the house and also that she was aware of where the jewellery was kept
in the house by his wife. The other domestic help, Ket Ram and his wife
Gudiya, had also come to the spot. He suspected the person with the muffled
face was Vikram, on the basis of his physique and voice. It is also stated by
him that four persons entered the house. The said witness also proved his
statement as well as the list of articles which was handed over by him on
10.01.2023 to the police and the same was Ex.P2. He also identified and
proved various documents pertaining to the investigation of the case. His
medico-legal examination was proved as Ex.P6. He further stated that he
received a telephonic message on 11.01.2023, from the SHO Satish Kumar to
reach the Court of the Chief Judicial Magistrate, Kurukshetra. He reached
there at about 2:00 P.M. and went inside the Court of the Chief Judicial
Magistrate, who asked him to sit in the adjacent courtroom. He was called
RAJ KUMAR ARORA
2026.10.28 18:06
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-165-
after about 40 minutes by the Chief Judicial Magistrate in the Courtroom
where there were 08 persons with muffled faces standing in the Court. On the
directions of the Chief Judicial Magistrate, all the 08 persons removed the
clothes from their faces and the complainant was asked to identify them as to
whether they were the assailants who entered the house on 09.01.2023. The
complainant identified 04 accused persons out of the said 08 persons and then
left the Courtroom. He also identified the jewellery items belonging to his
family vide memo Ex.P7 and received the same on superdari by moving an
application in the District Court. He also proved that the jewellery was
photographed and photographs of the same were proved as EX.P10 to Ex.P12
and that photographs of the house as Ex.P13 to P.25. He proved the evidence
collected by the police and also deposed that police had taken the CCTV
footage of the camera installed in the hospital premises, from his son-in-law.
The witness specifically answered the questions that he had seen the 04
accused persons at the time of the commission of the crime at his residence
and that at the time of Test Identification in the Court, none of the persons
was moving or walking in the courtroom. A specific query was put to the
witness that the complainant had not specifically identified the person to
whom he had handed over the cash amount of Rs.1 lakh. The complainant
replied that since he was not asked to identify the person to whom he had
given the cash, hence, the same was not done and that he can do it even now.
The defence counsel, however, cut short the cross on the said aspect and did
not seek any specific identification of the offender. It was also stated by the
RAJ KUMAR ARORA
2026.10.28 18:06
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-166-
complainant that the assailants were in the house for about 20 minutes and
one person was continuously guarding him, while others moved around the
house and hence, he has seen them with his own eyes. He stated that he has
CCTV cameras installed in the hospital and residential premises, but he had
not seen the footage because he was perplexed and was in a shock. He thus
asked his son-in-law, Amit, to show the CCTV footage to the police and also
gave him the DVR password, but his son in law already had it. He stated that
he did not see the CCTV footage at any point in time prior to the Test
Identification Parade. The relevant extract of the cross-examination reads
thus: -
“Q. Whether you had got recorded in your statement Ex.P1 as
well as other statements under section 161 Cr.P.C. that you can
identify all the four assailants?
Ans. I had told the police that I had seen all the four accused
when they were committing the crime in my residence.
xxx xxx xxx
Q. Whether you had identified specifically any of the
assailants as the person to whom you had given the cash of about
Rs.1 lakh during the test identification parade in the court of
learned CJM, Kurukshetra?
Ans. Nobody asked me to identify the person to whom I had
handed over the cash during the test identification parade. If you
ask me now, I can tell the same.
xxx xxx xxx
Since the CCTV cameras are installed in my hospital as well as
RAJ KUMAR ARORA
2026.10.28 18:06
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integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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in the residential premises, the general control and supervision
remains with me. Just after the incident, I did not see the CCTV
recording as I was not in a condition to do so being perplexed
and shocked. As far as observing the CCTV footage by the police
is concerned, I had asked my son in law Amit to show the CCTV
footage to the police and I had given the password of the DVR to
him but he already had the password. I had not even seen the
CCTV footage at any point of time prior to test identification
parade.”
150 The witness specifically stated that he had not levelled any
allegation against the accused Ket Ram in any of his statements and that he
had not seen as to which of the accused had robbed his mother. Rather, he
further informed that statement Ex.P1 was recorded on the intervening night
of 9.1.2023/10.1.2023 at about 1:30 to 2:00 A.M. He also stated that one of
the accused was wearing a red T-shirt while another was wearing a T-shirt
having an emblem of ADIDAS. Another accused was wearing a T-shirt
starting with the alphabet ‘SU’, but he does not remember other alphabets. He
stated that at the time of test identification, the accused were not wearing the
same clothes and that 08 persons were wearing a similar type of clothes;
however, none of them was wearing the same/similar clothes as were worn by
the accused at the time of the incident. He was also shown a coloured printout
of a news item and stated that the first two muffled-face persons from left to
right were wearing the same clothes as worn by two of the assailants at the
time of commission of the crime. The witness also fairly stated that he had not
RAJ KUMAR ARORA
2026.10.28 18:06
I attest to the accuracy and
integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-168-
witnessed the accused giving beatings to his wife and parents and could not
give details as regards the pixel of the CCTV cameras installed in the house
or the hospital. He did admit about the presence of PW Neelam, i.e the Nurse
on night duty and pleaded ignorance about the software installed in the DVR
of the CCTV cameras.
151 He further stated that he did not suspect the involvement of Ket
Ram in the conspiracy of the commission of the crime but did state that both
of them i.e. Ket Ram and his wife Gudiya, knew as to where the DVR and
CCTV cameras were installed and where the jewellery was kept.
152 PW2. Amit Kumar, son-in-law of the complainant, proved the
CCTV footage of Dr. Atul Arora Hospital, i.e. the place of occurrence. The
relevant part of the deposition of PW.2 reads thus: -
“Stated that I am married to Dr. Ananya, daughter of Dr. Atul
Arora, resident of House No.105/13, Urban Estate,
Kurukshetra. CCTV cameras along with DVR were installed
by my father in law Dr. Atul Arora but the said camera and
DVR were managed by me as passwords were with me. I had
taken CCTV footage of dated 09.01.2023 because murder of
my mother in law took place along with robbery/dacoity.
CCTV footages were transferred by me in pen drive Ex.MO1
and I also gave certificate under section 65 B of Indian
Evidence Act in this regard Ex.P32 to the police and the same
were taken into possession vide memo Ex.P33, which bears my
signatures.
2. At this stage, pen drive Ex.MO1 is played with the
RAJ KUMAR ARORA
2026.10.28 18:06
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-169-
permission of the court. On seeing the same, the witness states
that these are the same CCTV footages of aforementioned
date.”
153 It is also observed that when the certificate Ex.P32 pertaining to
Section 65-B of the Evidence Act, 1872, was exhibited, no objection was
raised about the mode and manner of proof. The said witness also deposed
that although he was not the owner of the CCTV cameras, he used to operate
the CCTV cameras and the DVR in the hospital and used to visit Kurukshetra
in routine. He also admitted that he was aware of the password. He also
specifically deposed that the time was not changed in the CCTV footage, as
the same showed the time as set in the DVR. He admitted that there is no
mention of any make, model or any type of computer, laptop, etc. in the
certificate but informed that it was an HP make, black colour desktop and the
CCTV footage had been preserved in that. He denied the suggestion that the
footage was not clear and that the assailants could not be seen in the said
CCTV footage.
154 Dr. Randeep Kumar, Senior Scientific Officer/Scene of Crime,
In-charge Mobile Forensic Science Unit, Kurukshetra appeared as PW.3. He
proved the part of the investigation conducted in his presence and the report
prepared by him. He stated that he came to the spot and that he inspected the
ground floor but could not see anything on the walls and floor of the room.
155 Dr. Naresh Kumar, who had performed the post-mortem of
RAJ KUMAR ARORA
2026.10.28 18:06
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-170-
Vanita, appeared as PW.5. He noticed an injury of 7x5 cm on the right
temporo-occipital region on the scalp. There was a reddish contusion of size
2x1 cm over the left side of the nose, which reflected that the nasal bone was
fractured through and through. The fracture ends of the bone showed
infiltration of blood in its bony trabeculae. There was another contusion of
15x2 cm present obliquely over the lateral aspect of the left side of the upper
rd
1/3 of the back. On dissection, underlying soft tissues were ecchymosed. A
reddish abrasion of 14x9cm was also found present obliquely over the lateral
aspect of the left side of the abdominal wall, situated 16cm above the left
anterior superior iliac spine and 30cm left to midline. There was another
rd
contusion 2.5x2 cm over the anterior aspect of the middle 1/3 of the right
thigh.
156 The doctor proved the injuries to be the cause of death and that
all injuries were ante mortem in nature and opined that injury No.1 alone was
sufficient to cause death in an ordinary course.
157 He proved the medical record about the post-mortem and other
evidence and material objects handed over by him to the Investigating Officer.
The doctor specifically deposed that injury No.1 could be seen only after
removing the brain matter and remaining dura from base to skull. He
specifically denied that injuries No.1 and 2 were connected to each other. He
deposed that injury No.2 could be caused by a single fist blow. He, however,
specifically opined that injury No. 1 was caused by a blunt weapon or by use
of blunt force. It is also stated that the possibility of stucking of hair of the
RAJ KUMAR ARORA
2026.10.28 18:06
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-171-
deceased at the site of the wall cannot be ruled out, but the said possibility is
remote. The relevant part of the cross-examination reads thus: -
“Injury No.1 was caused by a blunt weapon or by use of blunt
force. Possibility of stucking of hair of the deceased at the site of
the wall where she was hit, cannot be ruled out. However, the
possibility is remote.”
158 He specifically opined that all the injuries were ante-mortem in
nature and there were no post-mortem bruises as there was no ecchymosis on
dissection of the wounds. It was also opined that the possibility of sustaining
a linear fracture shown as injury No.1 in the PMR cannot be ruled out as being
caused by impact of striking of the person against the wall and the same could
not have been sustained as a result of fall. The relevant extract reads thus: -
“Volunteered that depressed fracture can occur by blunt weapon
but it also varies from force to force by the blunt weapon.
Possibility of sustaining the linear fracture as mentioned in
injury No.1 in PMR Ex.P5 cannot be ruled out being caused by
the impact of striking of the person against the wall. Volunteered
that pattern and distribution of injuries in this case is not
consistent with a fall because injuries were present on the both
sides of body.”
159 The doctor was also cross-examined as to whether the injury, viz.
fracture in the anterior cranial fossa, could also be sustained as a result of
direct impact from a forward wall to which the doctor specifically replied that
even though such an injury could be caused, however, in the present case,
RAJ KUMAR ARORA
2026.10.28 18:06
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-172-
there was no corresponding injury on the head or face, thus, the said injury
could not be the result of a fall. The relevant part of the cross-examination is
extracted as under: -
“Volunteered that if a person fall forward then there must be
corresponding injuries on head or face. In present case, there
were injuries present only on the left side of nose.”
160 In response to the question as to whether injury No.1 could have
been sustained by striking the head into the wall once, the doctor specifically
answered that there is a least possibility that injury No. 1 could be sustained
by striking the head into the wall only once. The relevant part of the cross-
examination reads thus: -
“Q. Whether the whole injury No.1 as mentioned in PMR
can be caused by striking the head into the wall once?
Ans. There is least possibility that injury No.1 could be
sustained by striking the head into wall once.”
161 Dr. Dinesh Sharda, Medical Officer, LNJP Hospital,
Kurukshetra, who medico-legally examined the complainant, appeared as
PW.6 and proved the medico-legal report. He found 04 injuries on the person
of the complainant, which are extracted as under: -
“1. Diffuse swelling present over right parietal region and
complaint of pain at the injury site.
2. Diffuse reddish-blueish contusion with abrasion of size
RAJ KUMAR ARORA
2026.10.28 18:06
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-173-
4 X 4 cm present over right knee on medial aspect.”
3. Diffuse reddish contusion of size of 6 X 5 cm present
over left iliac crest.
4. Complaint of backache.
162 The doctor also opined that the possibility of injuries No.1 to 3
having been sustained due to a jump from a height of 15 feet cannot be ruled
out. The same reads thus: -
“Possibility of injuries No.1 to 3 as mentioned in Ex.P6 being
sustained due to a jump from a height of 15 feet cannot be ruled
out.”
163 Dr. Navjeet Klair, the Chief Judicial Magistrate, appeared as
PW.11 and deposed about the Test Identification Parade undertaken in her
presence. The relevant extract thereof reads thus: -
“That on 11.01.2023, I was posted as Chief Judicial Magistrate,
Kurukshetra. That day, an application Ex.P47 was moved by
police for getting Test Identification Parade. Thereafter, an
order Ex.P48 was passed. Thereafter, Test Identification Parade
was conducted in my presence and I prepared my report Ex.P49.
I had also passed another order Ex.P50 with regard to the
proceedings. On the same day, another application Ex.P51 was
moved for getting certified copies of order and Test Identification
Parade report. Certified copies above-mentioned were supplied
to the police. I also passed an order Ex.P52 with regard to
dispose of application for Test Identification Parade.”
RAJ KUMAR ARORA
2026.10.28 18:06
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-174-
164 The Chief Judicial Magistrate also stated that she has passed the
order for conducting the Test Identification Parade on the application moved
by the investigating officer. The application has been proved as Ex.P47 and
the report has been proved as Ex.P49. She stated that the Test Identification
Parade was conducted in the working hours and all the persons for the Test
Identification Parade had been arranged by the Investigating Agency. She also
deposed that all the four persons were identified, but accused Vikram could
not be specifically identified at the first glance. It was however also admitted
by her that he later identified Vikram @ Vicky as the person who used to pick
up Poonam to the clinic. The relevant part of her deposition reads thus: -
“Investigating Agency had arranged all the eight persons for
conducting Test Identification Parade. I do not recollect exactly
but Inspector Prateek might have been conducting investigation.
During the Test Identification Parade, the complainant had not
identified any of the eight persons as Vikram. However, the
complainant had identified all the accused.”
165 The said witness denied any disclosure of the identity of the
person identified by the complainant. The relevant extract of her cross-
examination reads thus: -
“I proceed to conduct the Test Identification Parade. Eight
persons with muffled faces (with black colour cloth) of similar
height and gait were made to stand in the court room in a line.
The accused namely Vikramjeet @ Bittu was made to stand at Sr.
RAJ KUMAR ARORA
2026.10.28 18:06
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integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-175-
no. 2, accused Vikram @ Vicky was made to stand at Sr. no. 5,
accused Sunil was made to stand at Sr. no. 6 and accused Manish
was made to stand at Sr. no. 8 (i.e. last position) of the line
starting from left to right.
The complainant Dr. Atul Arora was thereafter called
inside the court room from the main entry meant for public and
Advocates. On appearance of the complainant, all the eight
persons, who were standing in the line with muffled faces, were
asked to remove their face clothes. The complainant was then
asked whether he could identify any of the assailants/accused
persons out of the above referred eight persons standing in a line.
The complainant identified the person standing at Sr. no. 2 of the
line starting from left to right being one of the assailants. The
complainant then identified the person standing at Sr. no. 6 of
the line starting from left to right as another assailant and
submitted he is the one who had held him at gun point on the date
of incident in question. The complainant thereafter identified
person standing at Sr. no. 8 of the line starting from left to right
as one of the offending persons. The complainant then looked at
the persons again and identified the person standing at Sr. no. 5
of the line starting from left to right and submitted that on the
date of incident this person had covered his face with muffler but
he recognized him as he came to his clinic thrice with Poonam,
who used to work in their house.
Thereafter, the test identification proceedings stand
completed.
This report be tagged with the remand papers.”
166 The police officials, viz. ASI Surinder Kumar, who registered the
RAJ KUMAR ARORA
2026.10.28 18:06
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-176-
FIR on receipt of information about the movement and whereabouts of the
accused persons, appeared as PW.19, while Jasbir Singh, who is the Jija of
accused Poonam, turned hostile and appeared as PW.27. The first
Investigating Officer, Inspector Satish Kumar, appeared as PW.30, while the
second investigating officer, Inspector Prateek Kumar, STF, Ambala,
appeared as PW.32. The same are, however, not being adverted to at this
juncture.
167 The position in law needs no affirmation that the prosecution
evidence has to be examined as a whole and is not examined in bits and pieces
by searching for every possible infirmity in one individual piece of evidence
divorced from the remaining evidentiary circumstances. The prosecution
evidence has to be seen more as solving a jigsaw puzzle where once the major
pieces are put together, the rest automatically point out to the place of their
fitment. In an investigation as well as evaluation of evidence, a similar
approach is required to be followed and a court of law is to examine whether
the circumstances, when considered cumulatively, constitute a coherent and
complete chain leading to a safe reasonable inference about participation of
the accused in the occurrence and whether such circumstances are consistent
with their guilt and inconsistent with any reasonable hypothesis of innocence.
168 At this juncture, it shall be significant also to keep the
fundamentals of the law of evidence in mind. The provisions of the Evidence
Act may be both substantive and procedural and that while applying the
procedural provisions, it needs to be borne in mind that they are handmaiden
RAJ KUMAR ARORA
2026.10.28 18:06
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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of justice. While it is important that an innocent is not incarcerated, equally
important is the need that a guilty should not escape the gallows of law. Once
an evidence is admissible and satisfies judicial conscience about the existence
of a fact, on the yardstick of ordinary and reasonable prudence, in the normal
course of events, human conduct and business, a Court is entitled to presume
existence of facts and deem it as proved since the Evidence Act, 1872
specifically provides that a fact is said to be proved in court of law when,
after considering the matters before it, the court either believes that it to exist,
or considers its existence so probable that a prudent man ought, under the
circumstances of the case, to act upon the supposition that it exists. The
language of the section signifies a legislative beauty where the prescribed test
is not that a fact has to be proved in a water tight way in its all dimensions,
rather it choses to use the expression ‘probable’ as well as ‘supposition’ as to
the existence of a fact from the yardstick of a prudent man. Hence, the
legislature never directed an extreme test for proving of a fact and it was
conscious that prescribing such a standard of proof would be devastating.
There can be no investigation where some lose end, on an extreme parameter,
would not be left unproved as each fact proved by way of an evidence would
give rise to proving the admissibility of the corroborative evidence as well.
The chain may thus become unending.
169 In this regard, it shall be relevant to make a reference to the
provisions of the Indian Evidence Act, 1872, which have a vital bearing. The
same are extracted as under: -
RAJ KUMAR ARORA
2026.10.28 18:06
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-178-
“Section 3-
xxx xxx xxx
"Fact". - "Fact" means and includes –
(1) any thing, state of things, or relation of things, capable
of being perceived by the senses;
(2) any mental condition of which any person is conscious.
xxx xxx xxx
"Document" - means 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.
xxx xxx xxx
"Proved". - A fact is said to be proved when, after considering
the matters before it, the Court either believes it to exist, or
considers its existence so probable that a prudent man ought,
under the circumstances of the particular case, to act upon the
supposition that it exists.
"Disproved" - A fact is said to be disproved when, after
considering the matter before it, the Court either believes that it
does not exist, or considers its non-existence so probable that a
prudent man ought, under the circumstances of the particular
case, to act upon the supposition that it does not exist.
"Not proved". - A fact is said not to be proved when it is neither
proved nor disproved.
xxx xxx xxx
4. "May presume".
Whenever it is provided by this Act that the Court may presume
a fact, it may either regard such fact as proved, unless and until
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it is disproved, or may call for proof of it.
xxx xxx xxx
10. Things said or done by conspirator in reference to common
design .-Where there is reasonable ground to believe that two or
more persons have conspired together to commit an offence an
actionable wrong, anything said, done or written by any one of
such persons in reference to their common intention, after the
time when such intention was first entertained by any one of
them, is a relevant fact as against each of the persons believed to
so conspiring, as well for the purpose of proving the existence of
the conspiracy as for the purpose of showing that any such
person was a party to it.
xxx xxx xxx
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.
xxx xxx xxx
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.
xxx xxx xxx
56. Fact judicially noticeable need not be proved. No fact of
which the Court will take judicial notice need to be proved.
xxx xxx xxx
59. Proof of facts by oral evidence. All facts, except the [contents
of documents or electronic records], may be proved by oral
evidence.
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60. Oral evidence must be direct . Oral evidence must, in all
cases whatever, be direct; that is to say-
If it refers to a fact which could be seen, it must be the evidence
of a witness who says he saw it;
If it refers to a fact which could be heard, it must be the evidence
of a witness who says he heard it;
If it refers to a fact which could be perceived by any other sense
or in any other manner, it must be the evidence of a witness who
says he perceived it by that sense or in that manner;
If it refers to an opinion or to the grounds on which that opinion
is held, it must be the evidence of the person who holds that
opinion on those grounds:
Provided that the opinions of experts expressed in any treatise
commonly offered for sale, and the grounds on which such
opinions are held, may be proved by the production of such
treatises if the author is dead or cannot be found, or has become
incapable of giving evidence, or cannot be called as a witness
without an amount of delay or expense which the Court regards
as unreasonable:
Provided also that, if oral evidence refers to the existence or
condition of any material thing other than a document, the Court
may, if it thinks fit, require the production of such material thing
for its inspection.
xxx xxx xxx
106. Burden of proving fact especially within knowledge . When
any fact is especially within the knowledge of any person, the
burden of proving that fact is upon him.
xxx xxx xxx
114. Court may presume existence of certain facts.
The Court may presume the existence of any fact which it thinks
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likely to have happened, regard being had to the common course
of natural events, human conduct and public and private
business, in their relation to the facts of the particular case.
Illustrations
The Court may presume -
(a) that a man, who is in possession of stolen goods soon after the
theft is either the thief or has received the goods knowing them
to be stolen, unless he can account for his possession ;
xxx xxx xxx
167. No new trial for improper admission or rejection of
evidence . The improper admission or rejection of evidence shall
not be ground of itself for a new trial or reversal of any decision
in any case, if it shall appear to the Court before which such
objection is raised that, independently of the evidence objected
to and admitted, there was sufficient evidence to justify the
decision, or that, if the rejected evidence had been received, it
ought not to have varied the decision.”
170 Referring to the above, counsel further contends that the recovery
of concealed objects having been made on the basis of the disclosure
statements recorded in quick succession was again upheld as admissible and
protected under Section 27 of the Indian Evidence Act, 1872.
EVIDENCE AND RELIABILITY
47. Before analyzing the evidence on record, we deem it fit to
discuss the relevant principles applicable to the facts and
circumstances of the present appeals. It is the foundational duty
of the Court to make an endeavor and find out the truth. Evidence
is the material for unearthing the truth. In order to do so, a fact
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has to be proved by taking due note of the matters made available
before the Court. To prove a fact, the adequate parameter is the
degree of probability.
Rajesh Yadav and Anr. V. State of U.P., (2022) 12 SCC 200 .
“Principles of law
11. Section 3 of the Evidence Act, 1872:
“3. Interpretation clause.—In this Act the following words and
expressions are used in the following senses, unless a contrary
intention appears from the context—
“Evidence”.—“Evidence” means and includes—
(1) all statements which the Court permits or requires to be made
before it by witnesses, in relation to matters of fact under inquiry;
such statements are called oral evidence;
(2) all documents including electronic records produced for the
inspection of the Court; such documents are called documentary
evidence.
“Proved ”.—A fact is said to be proved when, after considering
the matters before it, the Court either believes it to exist, or
considers its existence so probable that a prudent man ought,
under the circumstances of the particular case, to act upon the
supposition that it exists.
“Disproved” .—A fact is said to be disproved when, after
considering the matters before it, the Court either believes that it
does not exist, or considers its non-existence so probable that a
prudent man ought, under the circumstances of the particular
case, to act upon the supposition that it does not exist.”
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12. Section 3 of the Evidence Act defines “evidence”, broadly
divided into oral and documentary. “Evidence” under the Act is
the means, factor or material, lending a degree of probability
through a logical inference to the existence of a fact. It is an
“adjective law” highlighting and aiding substantive law. Thus, it
is neither wholly procedural nor substantive, though trappings of
both could be felt.
13. The definition of the word “proved” though gives an
impression of a mere interpretation, in effect, is the heart and
soul of the entire Act. This clause, consciously speaks of
proving a fact by considering the “matters before it”. The
importance is to the degree of probability in proving a fact
through the consideration of the matters before the court. What
is required for a court to decipher is the existence of a fact and
its proof by a degree of probability, through a logical influence .
14. Matters are necessary, concomitant material factors to prove
a fact. All evidence would be “matters” but not vice versa. In
other words, matters could be termed as a genus of which
evidence would be a species. Matters also add strength to the
evidence giving adequate ammunition in the Court’s sojourn in
deciphering the truth. Thus, the definition of “matters” is
exhaustive, and therefore, much wider than that of “evidence”.
However, there is a caveat, as the court is not supposed to
consider a matter which acquires the form of an evidence when
it is barred in law. Matters are required for a court to believe in
the existence of a fact.
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15. Matters do give more discretion and flexibility to the court in
deciding the existence of a fact. They also include all the
classification of evidence such as circumstantial evidence,
corroborative evidence, derivative evidence, direct evidence,
documentary evidence, hearsay evidence, indirect evidence, oral
evidence, original evidence, presumptive evidence, primary
evidence, real evidence, secondary evidence, substantive
evidence, testimonial evidence, etc.
16. In addition, they supplement the evidence in proving the
existence of a fact by enhancing the degree of probability. As an
exhaustive interpretation has to be given to the word “matter”,
and for that purpose, the definition of the expression of the words
“means and includes”, meant to be applied for evidence, has to
be imported to that of a “matter” as well. Thus, a matter might
include such of those which do not fall within the definition of
Section 3, in the absence of any express bar.
17. What is important for the court is the conclusion on the
basis of existence of a fact by analysing the matters before it on
the degree of probability. The entire enactment is meant to
facilitate the court to come to an appropriate conclusion in
proving a fact. There are two methods by which the court is
expected to come to such a decision. The court can come to a
conclusion on the existence of a fact by merely considering the
matters before it, in forming an opinion that it does exist. This
belief of the court is based upon the assessment of the matters
before it. Alternatively, the court can consider the said
existence as probable from the perspective of a prudent man
who might act on the supposition that it exists. The question as
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to the choice of the options is best left to the court to decide. The
said decision might impinge upon the quality of the matters
before it .
18. The word “prudent” has not been defined under the Act.
When the court wants to consider the second part of the definition
clause instead of believing the existence of a fact by itself, it is
expected to take the role of a prudent man. Such a prudent man
has to be understood from the point of view of a common man.
Therefore, a Judge has to transform into a prudent man and
assess the existence of a fact after considering the matters
through that lens instead of a Judge. It is only after undertaking
the said exercise can he resume his role as a Judge to proceed
further in the case.
19. The aforesaid provision also indicates that the court is
concerned with the existence of a fact both in issue and
relevant, as against a whole testimony. Thus, the concentration
is on the proof of a fact for which a witness is required.
Therefore, a court can appreciate and accept the testimony of a
witness on a particular issue while rejecting it on others since
it focuses on an issue of fact to be proved. However, we may
hasten to add, the evidence of a witness as whole is a matter for
the court to decide on the probability of proving a fact which is
inclusive of the credibility of the witness. Whether an issue is
concluded or not is also a court’s domain. Appreciation of
evidence
20. We have already indicated different classification of
evidence. While appreciating the evidence as aforesaid along
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with the matters attached to it, evidence can be divided into
three categories broadly, namely, (i) wholly reliable, (ii) wholly
unreliable, and (iii) neither wholly reliable nor wholly
unreliable. If evidence, along with matters surrounding it,
makes the court believe it is wholly reliable qua an issue, it can
decide its existence on a degree of probability. Similar is the
case where evidence is not believable. When evidence produced
is neither wholly reliable nor wholly unreliable, it might require
corroboration, and in such a case, court can also take note of
the contradictions available in other matters .
21. The aforesaid principle of law has been enunciated in the
celebrated decision of this Court in Vadivelu Thevar v. State of
Madras, 1957 SCR 981: AIR 1957 SC 614 : (AIR p. 619, paras
11-12)
“11. In view of these considerations, we have no hesitation
in holding that the contention that in a murder case, the
court should insist upon plurality of witnesses, is much too
broadly stated. Section 134 of the Indian Evidence Act has
categorically laid it down that ‘no particular number of
witnesses shall in any case, be required for the proof of any
fact’. The legislature determined, as long ago as 1872,
presumably after due consideration of the pros and cons,
that it shall not be necessary for proof or disproof of a fact
to call any particular number of witnesses. In England,
both before and after the passing of the Evidence Act,
1872, there have been a number of statutes as set out in
Sarkar’s Law of Evidence — 9th Edn., at pp. 1100 and
1101, forbidding convictions on the testimony of a single
witness. The Indian Legislature has not insisted on laying
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down any such exceptions to the general rule recognized
in Section 134 quoted above. The section enshrines the
well-recognised maxim that “Evidence has to be weighed
and not counted”. Our Legislature has given statutory
recognition to the fact that administration of justice may
be hampered if a particular number of witnesses were to
be insisted upon. It is not seldom that a crime has been
committed in the presence of only one witness, leaving
aside those cases which are not of uncommon occurrence,
where determination of guilt depends entirely on
circumstantial evidence. If the Legislature were to insist
upon plurality of witnesses, cases where the testimony of a
single witness only could be available in proof of the crime,
would go unpunished. It is here that the discretion of the
presiding Judge comes into play. The matter thus must
depend upon the circumstances of each case and the
quality of the evidence of the single witness whose
testimony has to be either accepted or rejected. If such a
testimony is found by the court to be entirely reliable,
there is no legal impediment to the conviction of the
accused person on such proof. Even as the guilt of an
accused person may be proved by the testimony of a
single witness, the innocence of an accused person may
be established on the testimony of a single witness, even
though a considerable number of witnesses may be
forthcoming to testify to the truth of the case for the
prosecution. Hence, in our opinion, it is a sound and
well-established rule of law that the court is concerned
with the quality and not with the quantity of the evidence
necessary for proving or disproving a fact. Generally
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speaking, oral testimony in this context may be classified
into three categories, namely :
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no
difficulty in coming to its conclusion either way — it may
convict or may acquit on the testimony of a single witness,
if it is found to be above reproach or suspicion of
interestedness, incompetence or subornation. In the
second category, the court equally has no difficulty in
coming to its conclusion. It is in the third category of
cases, that the court has to be circumspect and has to look
for corroboration in material particulars by reliable
testimony, direct or circumstantial. There is another
danger in insisting on plurality of witnesses. Irrespective
of the quality of the oral evidence of a single witness, if
courts were to insist on plurality of witnesses in proof of
any fact, they will be indirectly encouraging subornation
of witnesses. Situations may arise and do arise where
only a single person is available to give evidence in
support of a disputed fact. The court naturally has to
weigh carefully such a testimony and if it is satisfied that
the evidence is reliable and free from all taints which tend
to render oral testimony open to suspicion, it becomes its
duty to act upon such testimony. The law reports contain
many precedents where the court had to depend and act
upon the testimony of a single witness in support of the
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prosecution. There are exceptions to this rule, for
example, in cases of sexual offences or of the testimony
of an approver; both these are cases in which the oral
testimony is, by its very nature, suspect, being that of a
participator in crime. But, where there are no such
exceptional reasons operating, it becomes the duty of the
court to convict, if it is satisfied that the testimony of a
single witness is entirely reliable . We have, therefore, no
reasons to refuse to act upon the testimony of the first
witness, which is the only reliable evidence in support of
the prosecution.”
171 The broader principles of law of evidence and the governing
statutory provisions of the Evidence Act, 1872 clearly prescribe that evidence
remains to be examined on the touchstone of the reasonable person.
172 It is in the above background that the arguments raised by the
respective parties are being dealt examined.
I CREDIBILITY OF THE TEST IDENTIFICATION
PARADE
173 Adverting to the issue of the Test Identification Parade not being
conducted in accordance with law and the argument raised by the learned
Senior Counsel for the accused on the points agitated by him about the defects
noticed and the shortcomings in the Test Identification Parade as well as the
response furnished by the respondents.
174 It is not in dispute that instructions had been issued in the year
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1936 and 1946 prescribing guidelines to be followed while conducting the
Test Identification Parade. A perusal of the same shows that the requirements
prescribed in the Test Identification Parade may be classified into two
different categories. While one part of the instructions incorporated in the
High Court Rules and Orders is to be strictly adhered to, the second part may
not be equally sacrosanct. The part of the instructions which is largely
procedural i.e. preparation of lists of persons included in the TIP, the note
about the identification by the witnesses about its being wrong or being in
relation to any specific act and connection or recording of the objections, if
any, by accused or identification witness are largely non mandatory
guidelines. The mandatory precautions prescribed lay down the precuations
to be ensured viz non disclosure of the identity of the accused to the witness,
and the ensure that the identity does not get disclosed by secluding the
witnesses, accused as well the prosecuting agency isolated. The breach of non
mandatory guidelines may not necessarily impact the admissibility of the
evidence.
175 Position in law is well settled that a Test Identification Parade is
merely a corroborative evidence and largely a tool for the investigating
agency and it is not prescribed under the Evidence Act as a part of evidence.
Hence, the issue of burden of proof, as prescribed for a fact in issue, would
not be read into a Test Identification Parade. Its admissibility as a
corroborative secondary evidence, has to be tested on the satisfaction
prescribed for a corroborative evidence and no further. The primary evidence
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is still the identification by the victim/eye-witness.
176 It also flows from a perusal of the instructions issued and
incorporated in Volume 3, Chapter XI-C , Part -C of the High Court Rules and
Orders, that the said instructions had been issued by the Punjab Government
for guidance of the Magistrates, viz the Executive Magistrates. The
instructions were supplied to the District Magistrate for updating the
Executive Magistrate about the procedure to be followed. Subsequently, the
provisions of the Code of Criminal Procedure, 1973 were amended, and
Section 54-A was incorporated empowering the Judicial Magistrates to
conducting of the Test Identification Parade in their presence, as per the
procedure that may be prescribed by the Judicial Magistrate.
177 In the present case, undisputedly, the identification took place in
the presence of the Chief Judicial Magistrate herself and her presence lends
credence to the identification procedure that had been followed. She
specifically deposed that the identity of the accused had not been disclosed to
the complainant and that the same had been zealously preserved. She also
deposed as to the persons being of similar height and looks and also that the
witness identified all the accused. Hence, a mere non-preparation of the list of
the other persons who were joined in the Test Identification Parade as decoys
would thus not vitiate the Test Identification.
178 Needless to reiterate that the position in law is well settled that
the TIP is largely meant as an aid to investigation and not as a primary
evidence for determination of the guilt of the accused. The identification in
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court is still regarded as the primary evidence.
179 A higher degree of sanctity has been attached under to the Test
Identification Parade conducted in the presence of a Judicial Magistrate on
account of a presumed independence and awareness. Needless to mention that
Section 54A Cr.P.C. is a part of a parliamentary statutory Code. The executive
instructions that were issued in the year 1936/1946 or as existed in the State
Police Rules of 1936 would not over-ride a specific clause incorporated in the
Parliamentary Legislation. The legitimacy of the Test Identification Parade,
which has been carried out under the Cr.P.C., would thus not be subject to the
guidelines/instructions prescribed elsewhere. The Legislature, through a
conscious design, has not prescribed the procedural mandate under the Police
rules etc. and has vested confidence, credibility and evidentiary value as to
the fairness of procedure when TIP is conducted in the presence of Judicial
Officer.
180 It is also evident that no objection of any nature whatsoever had
been raised by any of the accused persons to the Test Identification Parade on
any ground. Further, the Chief Judicial Magistrate also did not record any fact
or circumstance on the basis whereof the Test Identification Parade could be
impeached of its admissibility. In the aforesaid report, the Chief Judicial
Magistrate specifically stated that the complainant was called into the court
room only after all the 08 persons had been brought to the court room and that
random placements in the Test Identification Parade had been done.
181 She also stated that all the eight persons were of similar height
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and gait, and they were made to stand in the court room in a line. She further
deposed that the witness identified all the accused persons, including one
assailant at Sr. No.06 viz Sunil being the person who held him at gunpoint on
the date of incident in question. The complainant also identified the person
standing at Sr. No.05 viz Vikram @ Vicky to be the person who had covered
his face with a muffler and that he had come to the clinic thrice with Poonam
who used to work in their house. The submission of the counsel for the
accused that the victim could not identify the accused Vikram @ Vicky is thus
incorrect.
182 Once the identification of the face was clear, merely because it
was done after identifying the other three accused i.e. on the second glance,
the same does not create a doubt about identification. Rather, it may very well
be an act of being sure, by the witness. Vikram @ Vicky was the only person
who was with a muffled face and all the faces had been uncovered when Test
Identification Parade was conducted. It may also be an act of prudence and
rationality to see the other faces as well. Law does not prescribe that all faces
have to be identified only at the time when one passes by it and not thereafter.
Hence, no adverse inference as to identification can be drawn on the said
score.
183 The Test Identification Parade report EX.P49 prepared by the
Chief Judicial Magistrate is specific and there is no breach of any procedural
safeguard pertaining to withholding the identity of the accused persons. A
prescription of a standard higher than the one which satisfies the judicial
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conscience would not be prescribed at the demand of an accused. Prejudice is
not to be assumed but is required to be established from the circumstances and
it may not always be possible to meticulously comply with all the guidelines
suggested in instructions. Like in the instant case, it may not be possible for
the investigating officer to arrange for 32 persons of similar height who may
be similarly or identically dressed and who may be willing to participate in
police proceedings, i.e. a Test Identification Parade. It is also required to be
kept in mind that the Test Identification Parade is to be conducted at the
earliest and that any undue delay may even otherwise impair the credibility of
the Test Identification Parade. The accused persons were arrested on 10th of
January, 2023 at about 10:30 pm in an another case and they were produced
before the Magistrate on 11th of January, 2023 where the Test Identification
Parade was conducted on the same day itself by noon. Their identity was kept
completely concealed. While the defence did try to make a reference to the
newspaper report to show that the accused were pictured in the clothes worn
by them, however, the date of the said newspaper report has not been proved
and the said photograph is only a marked document. Even otherwise the report
of the Magistrate specifically dispels the above objections as the Magistrate
said that they were all similarly dressed. Even otherwise, it is hard to construe
that a person who had suffered such a huge setback and loss would actually
be surfing through the newspapers on the day immediately following the
tragic incident resulting in the loss of his wife. There are far too many social
and police formalities required to be undertaken which would keep the
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CRA-D-40-2026 (O&M)
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complainant occupied for the entire day.
184 Needless to mention that the incident took place at around 9:30
P.M. on the night of 09.01.2023. The statement of PW.1 was recorded around
2:30/3:00 A.M. on 10.01.2023. The accused were arrested in the present case
at around 10:00 P.M. on 10.01.2023 and Test Identification Parade was
conducted on 11.01.2023 around 2:00 P.M. There is a little chance of the
photographs of accused being published on 11.01.2023 and even lesser
chances of complainant seeing them unless it is also established that the
complainant had subscribed to the said newspaper as well. There being no
whisper about the same, the fact as claimed, cannot be judicially inferred.
185 Needless also to mention that the sole issue of identity exposure
is being suggested because the clothes worn in picture were seized later.
Merely because a seizure and possession memo was prepared later does not
mean that they were also wearing the same dress even at the time of Test
Identification Parade. There being no such reference in the report and it being
specifically mentioned that all were wearing similar clothes, no breach of
identity can be assumed against the Chief Judicial Magistrate.
186 At the same time, it is also evident from a perusal of the
judgments relied upon by the learned Amicus appearing on behalf of the
complainant that a test identification parade is not a primary piece of evidence
and is only a corroborative piece of evidence. The same is conducted at the
earliest solely as an aid to the investigating agency as to whether they have
held the correct assailants as captured in the case and whether the investigation
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is headed in the right direction or not. The primary evidence is the
identification of the accused undertaken in a court of law. In the case in hand,
the witness not only identified all the accused persons including specific
identification of the accused with a gun and the person with muffled face
correctly in the Test Identification Parade, but also during the identification
conducted in the Court. He specifically stated and identified all the six persons
present in the Court who were suspected of committing the offence. The
relevant part thereof reads thus: -
“All six persons in the court, conspired with each other and in
pursuance of the conspiracy looted the jewellery, cash and
committed murder of my wife.”
187 Thus, a conjoint reading of the primary evidence i.e.
identification of the accused in court coupled with the specific identification
of all the four assailants arrested by the police, during the Test Identification
Parade, leaves no doubt in the mind of this Court about the involvement of the
accused in the commission of the offence.
188 We have also perused the CCTV footage, which was also played
in Court during the hearing, and it is evident that the images are discernible
and are not just blurred figures and that on a blown up/zoomed picture, the
faces would be clearly visible.
189 We thus fail to find ourselves in agreement with the defence
counsel about the Test Identification Parade being vitiated and unworthy of
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admissibility on account of non-compliance with the instructions/guidelines.
190 It is further evident from the perusal of the testimony of PW1 Dr.
Atul Arora, complainant, that he had not seen the CCTV footage before the
conduct of Test Identification Parade and that the deposition of said witness
would not be held unreliable solely because the investigating officer, while
appearing as PW.30, stated that the complainant had seen CCTV footage
before the Test Identification Parade. There is also no force in the argument
that one of the victims had sustained a bullet injury and thus he could be
identified on the basis of injury sustained by him, since the Chief Judicial
Magistrate did not record any instance about disclosure of disability to reveal
identity of any accused during the Test Identification Parade. We also notice
that the said witness, viz PW.1 complainant, Dr. Atul Arora, had opted and
offered to make individual identification of each person in Court; however,
the defence chose not to tread the said path. We are thus not inclined to
prescribe any higher standard than that of ordinary prudence to be exercised
during a Test Identification Parade merely because some other standard may,
in a given case, be considered preferable. The Hon’ble Supreme Court in State
of Maharashtra v. Suresh, (2000) 1 SCC 471 , has observed that if ‘potholes’
are sought to be ferreted out from the proceedings of Magistrates conducting
such parades, possibly no Test Identification Parade would escape one or two
lapses, and that a parade should not be rendered unusable merely on account
of such minor imperfections. The Court further held that where the safeguards
adopted are sufficient to ensure that the parade has been conducted in a
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reasonably foolproof manner, the same ought not to be discarded. Thus,
merely because certain additional measures could possibly have better served
the object of the Test Identification Parade, the same by themselves, would
not constitute a ground for discarding an otherwise properly conducted parade
under the direct supervision of the Chief Judicial Magistrate.
II DISCLOSURE STATEMENT AND RECOVERIES
191 With respect to the aforesaid submission, although learned Senior
Counsel appearing on behalf of the accused has laid considerable emphasis on
the contention that a joint or simultaneous disclosure followed by a joint or
simultaneous recovery is inadmissible and does not receive the protection of
Section 27 of the Indian Evidence Act, 1872, however, the said proposition,
in such absolute terms, cannot be accepted. The position in law, as
authoritatively laid down by the Hon’ble Supreme Court in State (NCT of
Delhi) v. Navjot Sandhu @ Afsan Guru, (2005) 11 SCC 600 , and reiterated
in Kishore Bhadke v. State of Maharashtra, (2017) 3 SCC 760, is that joint
or, more appropriately, simultaneous disclosures are not per se inadmissible
under Section 27 of the Indian Evidence Act, 1872. The expression “a person
accused” occurring in Section 27 is not necessarily confined to a single
accused and may comprehend a plurality of accused. Where information is
furnished by one accused after the other, without any break and almost
simultaneously, and such information is followed by the accused pointing out
the material object or place leading to its discovery, such evidence does not,
merely by reason of its simultaneous nature, fall outside the ambit of Section
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27 of the Indian Evidence Act, 1872.
192 The aforesaid principle has to be applied having regard to the
facts and circumstances of each case and upon a proper evaluation of the
evidence, particularly as regards the information actually furnished by each
accused and the discovery effected consequent thereto.
193 In the present case, the recovered articles were duly identified by
the complainant, and no dispute of any nature whatsoever has been raised
either by any third party or by any other person claiming ownership or
entitlement in respect of the articles recovered by the police at the disclosure
of the accused. The identification of the recovered articles, by the complainant
constitutes an additional circumstance which is required to be appreciated
along with the other evidence on record.
194 Besides, the accused persons also failed to offer any satisfactory
explanation as to how and under what circumstances they were in possession
of those articles/jewelleries. Illustration (a) to section 114 of the Indian
Evidence Act, 1872, thus, would persuade this court to draw an inference
against the accused persons. Once the accused had every opportunity to offer
a valid explanation about the circumstances in which they were in possession
of the jewellery, a failure on their part to offer a reasonable and satisfactory
explanation for the same would be a circumstance to their disadvantage.
Needless to mention that the recovery had been effected in a quick succession
to the date of occurrence and there being no delay between the date of
occurrence, the date of arrest, recording of the disclosure as well as the
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recovery, the promptitude itself rules out the possibility of any unfair play or
tampering of the evidence by the prosecution. The list of articles stolen from
the household was duly given by the complainant PW.1 Dr. Atul Arora vide
Ex.P2 dated 10th January 2023 while the recovery was effected on 11th
January 2023. Hence, it cannot also be said that the list of articles Ex.P2 was
prepared after the recovery had already been effected. Needless to mention
that the incident took place on 9th January 2023 and the police had recorded
the statement on the intervening night of 9th January 2023 and the process
itself had continued till about 3:00 A.M. in the morning. Invariably, the
complainant, being the husband of the deceased, would be required to verify
the jewellery artefacts which they owned and which were lying in the house
at the time of the incident. It is too well known as a fact that men of the house
would usually not be aware as to what jewellery articles had been kept at a
specific place and that it is largely for the women to be knowing about these
things. Thus, there would be some verification required to be undertaken by
the complainant. Thus, merely because the list of the removed jewellery
articles was submitted later would thus not be a suspicious circumstance in
the facts of the present case; rather, it only reflects a natural conduct.
195 In so far as the contention of the learned Senior Counsel for the
accused that the prosecution has not established the house from which the
recovery was effected to be in possession of the accused, the said argument is
rejected at this stage.
196 Section 27 of the Indian Evidence Act, 1872, gives rise to
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admissibility of a disclosure to the extent whereby a fact has been discovered.
In the present case, the fact discovered is the recovery of jewellery stolen from
the house of the complainant from a place of which the accused had specific
and exclusive information. While under ordinary prudence, it may be desired
that the deposition of a landlord should also have been recorded for
establishing a further chain, however, a mere failure on the part of the
prosecution to do the same would not vitiate a recovery. The establishment of
ownership is not a pre-requisite for discovery of the fact under Section 27 of
the Indian Evidence Act, 1872. While such an aspect may be of significance
in certain cases, however, in the facts of the present case, an absence thereof
is in no way fatal to the case of the prosecution. Even otherwise, people in
small towns and villages are generally not willing to cooperate or join police
proceedings or to offer their statements more-so when it comes to the cases
about armed dacoities/robberies where murder has been committed. The
element of fear looms larger on the witnesses than the public spirit to assist
the police. A Court is required to take the practical realities into consideration
and it would not hasten to throw away a case of the prosecution for any minor
lapse.
197 No investigation can ever be foolproof and complete. There
would always be certain circumstances for which corroborative evidence may
be required. However, the need for corroboration is an exercise of prudence
to be exercised where the evidence adduced by the prosecution fails to inspire
confidence of the Court. Where the aforesaid circumstances are non-existent,
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corroborative evidence to establish the ownership of the house/room may not
be material. The circumstances have to be seen as a whole and not in isolated
patches.
198 Adverting to the additional submission that while one of the
witnesses has named a different locality and stated that the room was situated
in ‘Subhas Nagar, Guhla’, the other witness stated that the locality is in village
‘Salempur Cheeka’. A portrayal has been made as if these are two different
places, however, it is a matter of common knowledge that Guhla and Cheeka
are twin revenue estates that have subsumed into one singular integrated
identity. The administrative name of the unit remains as “Guhla-Cheeka.” The
demarcation of the revenue hadbast estate can only be done by the revenue
officials and that the ordinary residents usually would have no idea as to the
specific revenue estates and use the expressions ‘Guhla’ or ‘Cheeka’
simultaneously/alternatively. Needless to mention that in such suburban areas,
the colonies are usually unapproved and unauthorised and names are given
by the local residents at their own convenience. A reference to the village
where such an unapproved colony may have been carved out, or the Tehsil,
by naming the colony area in the Municipal record, would depend only on the
witness's awareness of the geographical location. Whilst residents of that area
may be better placed to give a more accurate identification, someone not well
conversant with the geographical location would use commonly known
expressions. Thus, the submission of learned Senior Counsel for the accused,
attempting to project as if they are two different areas which may be separated
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by distance, is incorrect and is liable to be rejected.
199 The position in law is well settled that joint recovery may be
effected at the instance of the accused persons jointly and a recovery would
not be hit by a simultaneous nature of the same. Reference in this regard may
be placed on the judgments extracted in the submissions by the respondent.
The judgment relied upon by counsel for the accused rather corroborate only
the above position. There are no intervening circumstances or motives
attributed to either the investigating agency or to the complainant and under
the said circumstances Section 114 of the Indian Evidence Act, 1872, when
read in light of illustration ‘a’, coupled with failure to offer any valid and
satisfactory explanation about how the jewellery was in their possession, leads
to an adverse inference against the accused. The burden lay on the accused
under Section 106 of the Indian Evidence Act, 1872, to dispel the inference
that flows against the accused about being in possession of the looted
jewellery. The same being a fact in their specific and exclusive knowledge,
the onus had to be discharged by the accused and if their failure to do so would
be to their detriment. We find that the argument advanced by the counsel for
the accused lack merit and deserves rejection. Proof of fact has to be seen
from the prism of the definition of ‘proved’ prescribed therein and existence
of a fact is proved when the Court believes its existence to be probable from
the matters placed before it.
200 The requirement prescribed by the laws of evidence is not beyond
every doubt but beyond reasonable doubt. An attempt at indicating a
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semblance of doubt and not establishing any real basis for entertaining any
doubt, renders the assumptive arguments, by the counsel for the accused,
liable to be rejected.
201 When a Court of law finds a doubt in case of prosecution, it has
to be based on some valid and tangible grounds. Merely because the defence
feels that a higher thresh-hold of sanctity, preservation of evidence and
procedure could have better served the purpose, the procedure otherwise
followed and which satisfies judicial conscience and satisfaction, existence of
a doubt shall not be read into the evidence. The yardstick of ‘ordinary
prudence’ is not to be applied as an ‘extra-ordinary prudence’.
202 Further, for a better appreciation of the legal concept, it shall be
apposite to make reference to the judgment in the matter of Kum Shubha @
Shubhashankar Vs. State of Karnataka, 2025 INSC 830 wherein a similar
view was expressed. The relevant extract is as follows:-
“86. From the aforesaid materials, it is impossible for us to come
to any other conclusion, than the one put forth by the prosecution,
as the communications between the accused persons are too
many, having a distinct pattern, following one after the other and
even during odd hours of the night. The sudden rise in
communications on the date of the incident and even a day prior
to it, followed by a sudden drop in the communications on the
very night of the unfortunate incident and days thereafter,
consistently point only towards the guilt of the accused and serve
as proof of the conspiracy that was hatched to murder the
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deceased. At this juncture, we would like to point out that while
CDR data may not be construed as a substantive piece of
evidence, it is certainly to be used for appropriate corroboration.
One has to see the attending circumstances to decide the
evidentiary value of CDR. For example, where the evidence is so
overwhelming and the conduct of an accused is such that he is
bound to give a sufficient explanation for it, but fails to do so, as
in the instant Criminal Appeal No. 1029 of 2011 & Connected
Matters 70 of 132 case, the CDR might even take the position of
substantive evidence. Therefore, in a given factual scenario, the
Court can place heavy reliance upon the same for the purpose of
rendering a conviction. Suffice it is to state that proving the guilt
depends upon the degree of probability.
iv. Recovery of M.O.11 and M.O.12
87. Though substantial arguments have been made on M.O.11
and M.O.12, we are inclined to uphold the recovery. It is the case
of the prosecution that A-2 was the pillion rider who got down
from the scooter (M.O.12) and attacked the deceased using the
steel rod/pipe (M.O.11). It is not in dispute that the recovery of
M.O.11 was made at the instance of A-2. The same was witnessed
by PW-30, who has duly affixed his signature on the seizure
mahazar marked as Exhibit P-87. Both the Courts have rightly
accepted the evidence of PW-30, who is an independent witness.
The evidence of PW-30 cannot be eschewed solely on the ground
that the other panch witness was not examined by the
prosecution, despite being cited as a witness. The recovery of
M.O.11 has been effected from a secluded place in a military
compound. It was picked up from the bush, on being Criminal
Appeal No. 1029 of 2011 & Connected Matters 71 of 132
identified by A-2. Merely because A-1 was also present during
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the recovery, one cannot say that the recovery was effectuated on
the basis of joint disclosure made by A-1 and A-2, and thus, is
inadmissible. Herein, it is pertinent to point out that the
‘voluntary’ statements of A-1 and A-2 were also recorded
separately and marked as Exhibit P-94 and Exhibit P-95
respectively.
Kishore Bhadke v. State of Maharashtra, (2017) 3 SCC 760
“35. In State (NCT of Delhi) v. Navjot Sandhu (SCC pp.
711-12, para 145), this Court has held that a joint
disclosure or simultaneous disclosures, per se, are not
inadmissible under Section 27 of the Evidence Act. A
person accused need not necessarily be a single person,
but it could be a plurality of the accused. The Court held
that a joint or simultaneous disclosure is a myth, because
two or more accused persons would not have uttered
informatory words in chorus. When two persons in custody
are interrogated separately and simultaneously and both
of them may furnish similar information leading to the
discovery of fact which was reduced into writing, such
disclosure by two or more persons in police custody do not
go out of the purview of Section 27 altogether. What is
relevant is that information given by one after the other
without any break, almost simultaneously, as in the present
case and such information is followed up by pointing out
the material things by both of them then there is no good
reason to eschew such evidence from the regime of Section
27. Whether that information is credible is a matter of
evaluation of evidence. The courts below have accepted
the prosecution version in this behalf, being credible.
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Suffice it to say that the disclosure made by Accused 3
about the relevant fact, per se, is not inadmissible.”
(emphasis supplied)”
88. The argument raised by the appellants that the link required
under Section 27 of the IEA is missing due to the absence of the
panch witnesses while recording the disclosure statements of the
accused is also not acceptable, on the facts of the case, as the
presence of the witness to the disclosure statement is not a
mandate and only one of prudence. The mere absence of the
witness to the disclosure statement is hardly sufficient to hold
that the recovery itself is doubtful.”
III TEST IDENTIFICATION OF STOLEN JEWELLERY
203 While responding to the issue of identification of stolen
jewellery, it is undisputed that there is no procedure prescribed for
identification of the personal belongings in the State of Haryana. Although
certain procedures have been prescribed in the State of Rajasthan and the same
had been referred to by the Supreme Court in some of its judgments. The
position in law is however settled in a catena of judgments of the Supreme
Court referred to in the submissions by the respondents, to the effect that in
respect of the personal belongings of any person, an identification of the same
by the said person is a valid and admissible evidence for identification of the
seized belongings. Further, there has also been no third-party claim raised
with respect to the aforesaid jewellery articles.
204 Needless to mention that there would be no reason for the Court
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to assume that the complainant would not be able to identify the jewellery of
his wife. He would be a natural witness to identity them as there would have
been multiple occasions when he would have seen his deceased wife wear
them. The Courts have also repeatedly upheld identification of personal
belongings even by close relatives including cousins, by holding them as
natural witnesses. In the said legal and factual background, we do not find any
valid basis to reject the identification. Merely because the accused dispute the
identification, the same is not a ground to discard the evidence which
otherwise satisfies the judicial conscience. The mandate of section 114 read
with illustration ‘a’ of the Evidence Act, 1872 gives rise to an assumption of
a fact against the accused. Once the prosecution discharges its onus, the
burden falls on the accused to explain his ownership or the circumstances in
which they were in possession of the same. As per Section 106 of the Indian
Evidence Act, 1872, when a person is in in special knowledge of a fact, the
burden of proving the same is on such person failing which a judicial inference
may be drawn against him.
205 We thus do not find ourselves in agreement with the counsel for
the accused that the identification of the belongings carried out by the
complainant himself has not been proved by prosecution or that the recovered
items were not the ones robbed from the complainant.
ADMISSIBILITY OF ELECTRONIC EVIDENCE
206 Learned Senior Counsel for the accused has vehemently argued
against the admissibility of the certificate issued under Section 65B of the
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Indian Evidence Act, 1872, by PW.2 Amit Kumar/son-in-law of the
complainant on the ground that he is not the person who was in management,
control and supervision of the CCTV cameras.
207 A vehement reliance has been placed on the judgments of the
Supreme Court in the matter of Anvar P. V (supra) and as declared in Arjun
Pandit Rao Khotkar (supra) and that a breach of the said mandate would
render the electronic document inadmissible in evidence.
208 The provision has much often raised a thought-provoking debate.
While it has been argued very often that every statute needs to be construed
having regard to the intent of Legislature and the object and purpose it seeks
to achieve as well as the mischief it intends to remedy.
209 Undisputedly, authenticity of an electronic document and its
integrity is foremost point of determination, before it can be held admissible
in evidence. The notification of the Information Technology Act, 2000, also
gave rise to the need to amend the Evidence Act. In its wisdom, the drafting
Committee searched for and noticed a similar provision in the United
Kingdom, under Section 69 of the Police and Criminal Evidence Act, 1984.
The above Act was later repealed by Section 60 of the Youth, Justice and
Criminal Evidence Act, 1999, after the U.K. Law Commission observed that
the special enactment served no useful purpose.
210 Undisputedly, the expression ‘any’ may also be interpreted to
mean ‘all’, in a broader context, statutory purpose or intent of inclusivity
reflected in a Legislation. Where a provision or legislation is an enactment
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about social inclusivity or is meant for eradicating a social evil, the expression
‘any’ has been interpreted to mean ‘all’ so as to bring within its fold, the
beneficiaries or the violators, as the case may be. When the Scheme of the
Legislation desires a comprehensive application, a wider latitude is often
extended to such expression. The Courts thus take a holistic view to ensure
effective implementation of the legislative intent to ensure legislative
efficacy.
211 It has been frequently questioned as to whether the legislature
intended a flexible rule while prescribing the a satisfaction as to any of the
conditions or as to whether law mandated an inflexible rule and a total
compliance of all the conditions, before an electronic record may be assumed
to be free from tampering and be held admissible. Even though the debate
may be raised by any one of the parties in every case where such an issue is
involved however, it is required to be kept in mind that a position of law once
declared by the Supreme Court remains binding and has to be complied with
the investigating agency.
212 The question which however also arises for consideration is as to
whether the argument can be raised at the appellate stage or not ? While
declaring that all conditions specified in section 65B need to be satisfied for
an electronic record/document to be admissible, the Supreme Court has
however held that the electronic document is not per se inadmissible and
hence an objection as to the admissibility of the document needs to be raised
at the time of when it is proved, as to the mode and manner of proof, before
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the trial court, before this objection and argument can be raised at an appellate
stage.
213 It remains undisputed that at the time when the aforesaid
document was exhibited, no objection was raised on behalf of the accused to
the admissibility of the said certificate on the ground of the mode or manner
of proof. The questions that were put to him during the cross were more in the
nature of the difference of the time or the technical specifications of the
computer/ systems and suggestions that he is not incharge of the CCTV
camera. The same were thus not in respect of the non satisfaction of the
mandate. The legal position in this regard is well settled by the Hon’ble
Supreme Court in Sonu @ Amar v. State of Haryana, (2017) 8 SCC 570 ,
wherein it was held that an objection relating to the mode or manner of proof
has to be raised at the time of proving of the document as an exhibit and not
at a subsequent stage and certainly not at the stage of appeal. The Hon’ble
Supreme Court further explained that the crucial consideration is whether the
defect could have been cured at the stage when the document was exhibited.
Where an objection is not raised at the appropriate stage, the party tendering
the evidence is deprived of an opportunity to rectify the deficiency, hence,
objection would not be permitted to be raised for the first time at the appellate
stage.
214 The aforesaid principle has subsequently been reiterated by the
Hon’ble Supreme Court in Sundar @ Sundarrajan v. State by Inspector of
Police, decided on 21 March 2023 , wherein it was held that the mode or
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manner of proof is procedural in nature and that an objection not taken at the
trial would not ordinarily be permitted to be raised at the appellate stage. The
Court further recognized that had the objection been raised at the stage of
marking of the electronic record, the prosecution could have been sought an
opportunity to cure the deficiency by producing the requisite certificate.
215 In the present case, therefore, having regard to the fact that no
objection was raised when the document was tendered and exhibited in
evidence, the accused cannot, at this belated stage, seek to impeach the
admissibility of the electronic document on the ground of an alleged defect
in the mode or manner of proof.
216 Adverting to the issue as to whether the son-in-law (PW.2-Amit)
could be said to be in management, supervision or control of the CCTV or
not.
217 We have given our thought to the argument advanced by the
parties and are of the view that the argument raised by the counsel for the
accused cannot be accepted. In the matter relating the evidence, the court has
to apply and interpret the provisions in a wider manner. Such an interpretation
would not be a prejudicial application since the parties have all the opportunity
to dispute the evidence and prove their defence. Ordinarily, any person who
exercises a direct or indirect power over a subject matter, irrespective of
ownership, can be construed as a person to be in control.
218 It also needs to be kept in mind that strict rules of a structured
organisational hierarchy of control, management and supervision, or
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delineation of powers and duties is not specified in households or amongst
inter-personal relationships. The demarcation line is often non-existent and
there is a multiple, overlapping and simultaneous control. Such possibility
increases as one gets older. Children who stay away keep a constant/regular
vigil over the well-being of their elderly, through access and control over the
CCTV’s. The witness, who is the son-in-law of the complainant, had the
password of the CCTV Camera and the DVR and used to regularly monitor
the place of occurrence. Besides, there is no male offspring of the complainant
who may be present at the house or elsewhere and it natural in such
circumstances that the daughter and son-in-law would be the persons who
would be taking all steps in the control to ensure about the well being of the
parents. The witness would thus be deemed to be in supervision/control of the
CCTV Camera as well.
219 The certificate mentioned about the place where the CCTV was
installed, the number of camera’s, the place where the DVR had been kept,
the time duration for the which the footage had been exported and also that
the footage is the exact copy of what is contained in the DVR and that there
was no tampering in the same. While appearing in the witness box, the
witnesses also proved the contents of the CCTV footage, on its being played
in Court and identified the pen drive as well.
220 We also reiterate that the present case is not a case which is based
on circumstantial evidence alone and/ or that but for CCTV footage, there
would be nothing to link the accused to the offence. The case in hand being a
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part eye witness account and part circumstantial ( only with respect to
commission of some offences and not in relation to the occurrence of the
event), hence, the same is only a corroborative evidence. The victim himself
stepped into the witness box as PW.1 and gave explicit details of the entire
incident. He also identified the accused persons who had entered the
household and had named the suspects even before they were arrested. The
testimony to the effect that the accused entered the house, held the
complainant as a hostage, gave him beatings, the accused taking a sum of Rs.1
Lakh and the keys and that he also saw them come back carrying the bag in
which the stolen articles were present are clearly an eye witness account. The
said part of the allegation stands corroborated by the CCTV footage, which
shows the empty handed entry and the accused persons carrying the cake and
a bag, at the time of the exit.
221 Presence of the accused at the place of occurrence and at the
specified time is also corroborated by the call details record exhibited as
Ex.P91, Ex.P93, EX.P105, EX.P106, EX.P110, EX.P112, EX.P114, and
EX.P116. The certificate issued under Section 65B of the Indian Evidence
Act, 1872, in this regard has also been proved by the witnesses. The same
showed that there had been an exchange of calls between Dr.Vanita and the
telephone number of accused Manish. The customer application form as well
as the CDRs showed their presence at the same spot and even the CCTV
footage corroborated that one of the persons was using a mobile phone at the
time when they entered the clinic and then took the stairs to the first floor, i.e.
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the residence area. The circumstance is not co-incidental to be ignored. Even
though the tower location, as a stand alone evidence, may have its limitations,
however, there should be evidence on record to dispute the CDR detailing the
locations. Besides, even though the CDR and the location only give a general
idea about the location but when the entire evidence is seen together, the
picture is clearly woven together to reflect a complete image.
222 In so far as the argument that there was a wrong time which has
reflected in the CCTV footage is concerned, the same, in our view, is not a
contradiction or a material discrepancy. For an event to be labelled as
contradictory, the existence of one should impeach the presence of the other.
When such consequence does not flow and a clear satisfactory explanation is
available, the same would not be a contradictory deposition. When a wrong
time has been set in the DVR, the same would continue to display in the CCTV
footage and it cannot also be held as a tampering since tampering entails
removal or altering of the original and substituting the same with some other
figures. The discrepancy in the time shown in the CCTV footage has been
satisfactorily explained to the Court and we do not find any grounds to
disbelieve the same.
DISCREPANCIES IN THE MEDICAL EVIDENCE
223 In respect of the arguments with respect to discrepant medical
evidence, there are two fold aspects. Firstly, in relation to the injuries
sustained by the complainant himself. Counsel contends that even though
complainant claims having been given a revolver Butt blow and beatings by
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the accused followed by his jumping from the balcony to the school roof and
then on the ground, but there are no corresponding injuries as per the MLR.
224 The MLR of the complainant is proved on record as Ex.P6. Dr.
Dinesh Sharda appeared as PW.6 and proved four injuries on the complainant
including diffuse swelling over right parietal region, knee, iliac crest and back.
225 The doctor opined that injuries as above could be due to jump
from a height of nearly 15 feet. He also expressed that a blunt weapon too
could have been used. Thus, opinion has been given not only with respect to
the injuries having been caused on account of a butt blow but also from a
jump.
226 So far as other allegations of beatings are concerned, the same
were due to slaps as the accused is not alleged to have used of any weapon.
There is every possibility that there are no leftover marks of slap blows. The
allegations levelled by the complainant about having been caused injuries thus
cannot be disbelieved. We thus find no contradiction or discrepancy.
227 Adverting to the argument that the injury sustained by the
deceased had not been caused by any of the accused nor any person had seen
the accused causing said injuries and that the medical evidence does not
support the argument of the accused.
228 While the suggestive case of the accused had been that the
deceased Dr. Vanita could have sustained the injury as a result of fall/slip and
thus getting her head banged against the wall, however, PW.5 Naresh Kumar,
Medical Officer, who conducted the post-mortem examination of the
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deceased had specifically ruled out the aforesaid suggestion and opined that
the injury could not have been caused by one single blow.
229 The specific questions and suggestions have been responded
through specific detailed replies. It ruled out that injuries could have been
suffered accidentally, rather, he suggested the injuries to be homicidal. The
relevant question and responses already stand extracted in the preceding parts
of the judgment and need no reiteration. There were thus repeated blows by
banging against the wall as the force by which the injury could be sustained
could not be on account of the fall. Besides, it was also recorded that the
injuries were on both sides and hence could not have been as a result of the
fall.
230 Further, so far as injury No.1 pertaining to a fracture is
concerned, the medical evidence was sought to be countered from the absence
of the fracture in the X-ray examination; however, the doctor also explained
the said infirmity and stated that fracture could be detected only after the brain
matter had been removed during the post-mortem examination. Further,
suggestions were also made to the effect that the injuries may possibly have
been sustained at the time when the dead body was kept in the mortuary or in
a refrigerator, however, possibility of the same was also completely ruled out
by the doctor, who stated that injuries were antemortem in nature and that
there was an ecchymosis present and that the same would exist only in
antemortem injuries and would not be present in post-mortem injuries. Thus,
the presumptive arguments raised by learned Senior counsel for the accused
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have been explained by the doctor and all accidental possibility of their
existence has been completely ruled out. There is no reason to discard the said
medical evidence or to hold that the medical evidence was discrepant or
suffered from material contradictions.
231 The medical evidence, therefore, does not merely establish the
factum of death but it also substantially narrows the possible manner in which
the fatal injury could have been caused. The medical evidence is hence
consistent with the ocular account regarding the circumstances prevailing
inside the house and materially rules out any other alternative explanation
suggested by the defence. It consequently furnishes an additional
corroboration to the prosecution version.
NON-EXAMINATION OF MATERIAL WITNESSES
232 Adverting to the argument that certain material witnesses, viz.,
the parents of the complainant, Gudiya- the wife of Ket Ram, Neelam- the
Nurse on night duty as well as several other official witnesses were not
examined by the prosecution, we are of the opinion that a mere non-
examination of said witnesses, in the facts and circumstances of the present
case, is inconsequential and would have no bearing on the prosecution case.
The Hon’ble Supreme Court in Laxmibai (Dead) through LRs v.
Bhagwantbuvā (Dead) through LRs., (2013) 4 SCC 97 , has reiterated the
well-settled principle that, in the matter of appreciation of evidence, it is not
the number of witnesses but the quality of their evidence which is material.
The Court emphasised that evidence is required to be weighed and not counted
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and that there is no requirement in law that any particular number of witnesses
must be examined to prove or disprove a fact. The said principle was reiterated
by the Hon’ble Supreme Court in Gulam Sarbar v. State of Bihar, (2014) 3
SCC 401 .
233 The position in law in this regard flows from Section 134 of the
Indian Evidence Act, 1872, which provides that no particular number of
witnesses shall in any case be required for the proof of any fact. Thus, it is
never a plurality of witnesses which matters but quality of the evidence given
even by the solitary witness.
234 In the light of the aforesaid settled position, the mere fact that the
prosecution has not examined every witness, who may have had some
connection with the occurrence or with the investigation would not by itself,
be a ground to discard an otherwise cogent, credible and trustworthy evidence
available on record. What is material is the intrinsic worth, reliability and
evidentiary value of the testimony adduced before the Court and not the mere
multiplicity or plurality of witnesses.
235 It is indisputable that at the time when the accused persons
entered the house, the parents of PW.1 Dr. Atul Arora, were in a separate room
and he was sitting with them. He rushed out of the house only upon hearing
the shrieks of his wife and he was immediately held hostage by the accused
persons. It is not the case of the prosecution that the parents of the complainant
had come out to the spot, instead, the specific case is that some of the
assailants went to the room of the parents and snatched some money from his
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mother as well as took away the mobile phone from his mother. Thus, the
prosecution never set up a case that the parents had come out of the room and
were present in the dining/kitchen area where the complainant had been held
hostage. Further, after the ornaments had been removed, the accused started
talking to each other which possibly was in relation to the elimination of PW.1
Dr. Atul Arora. Intimidated, he moved to the room of his parents on the pretext
of meeting them for last time and then bolted the room from inside. It would
be highly unlikely that once PW.1 Dr. Atul Arora had bolted the room from
inside, the parents would open the said room when there is a real apprehension
of harm/death to their life and also to the life of their son who attempted to
make good his escape and to call for help. Thus, there was no occasion for
them to open the door from inside and to come outside. The deposition of the
parents would thus at best be with respect to identification of the accused who
had snatched the mobile phone or taken some money from them as well. Since
the said identification had already been done by PW.1 Dr. Atul Arora, there
was no impending necessity for examination of the other witnesses.
236 Similarly, it is also not the case of the prosecution that the Nurse
on night duty, Neelam, had also come upstairs. A person may or may not be
a witness to the incident, despite being at a place of occurrence. It not being a
specific case of the prosecution that Neelam had seen any part of the incident,
her non-examination would thus be immaterial, as she would only be a
hearsay witness and her testimony carried no further weight.
237 So far as non-examination of Gudiya wife of Ket Ram is
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concerned, there was no occasion or reason for the prosecution to bring the
said witness for two reasons, i.e. firstly, her husband was one of the accused
who was being tried as a conspirator with the other accused in the commission
of the offence and that in such circumstances, she was most unlikely to support
the case of the prosecution and, secondly, her testimony would also be a
repetition of the deposition that had already been made by PW.1. Dr. Atul
Arora. There was thus no compelling necessity for having multiplicity of
witnesses for proving the same facts. Hence, non-examination of said witness
also cannot be said to be fatal to the case of the prosecution.
238 Similarly, non-examination of the neighbour is also immaterial
as his evidence would also be hearsay and he could have deposed only with
respect to PW.1 having contacted him. The other official witnesses i.e. Satish
Kumar also did not have any bearing on the case and that failure to examine
him would not be fatal to the case of the prosecution. It has already been dealt
with by us in earlier paragraphs that a mere failure on the part of the
prosecution in not examining the owner of the room/house from which
recovery was made would have no material bearing on the facts of the case.
239 For the said reasons, the argument advanced by the learned
Senior counsel for the accused is rejected as lacking in merits.
ARREST OF THE ACCUSED SHROUDED IN DOUBT
240 The contention of the learned Senior counsel appearing for the
accused had been to the effect that the accused persons were arrested under a
false encounter and a case had been registered against them. The recovery
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effected in the said case was also shown in the present case. Learned Senior
counsel contends that as the accused have been acquitted in the said case vide
judgment dated 09.10.2025, hence, their implication in the present case was
also liable to be set aside as it is only a fallout of the said case.
241 We are, however, disinclined to accept the argument. The
sequence of events has to be taken note of. The registration of the F.I.R. in the
present case precedes the arrest and detention of the accused persons on the
following day. It remains undisputed that another case under Section 307 of
the IPC read with the provisions of the Arms Act, 1959, was registered against
the accused persons for having fired at the police party resulting in an
encounter and that they already stand acquitted in the said case.
242 However, merely because the police registered a second case
about the encounter, against the accused, which they could not prove, would
not be sufficient to draw a judicial inference that the accused person also had
no connection with the case in hand. It would at best be that the recovery of
the weapon effected from the accused, in the said case, and seized in the
present case as well, cannot be relied upon in the present case. There is
however enough material, both factual and circumstantial, which establishes
the participation of the accused persons in the commission of the offence. It
is noticeable that the complainant had disclosed about his suspicion as to the
involvement of certain persons and to one of the accused. It is only later that
the same person was also arrested in quick succession alongwith the other co-
accused. The same was followed by quick identification of the accused and
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recovery of stolen articles. The evidence hence completes the entire chain of
direct account and the links in the circumstantial chain of events. There is no
position in law that if the prosecution fails to prove its one case against the
accused persons, prosecution of the same accused in all other cases is also
liable to fail. Each case has to be seen on the basis of the evidence brought
before a court and a finding is to be recorded based upon the same. Assuming
that even if the arrest of an accused in a specific case is held illegal, yet, the
only consequence that shall flow therefrom is that the accused shall be entitled
to claim bail but it is not a position in law that if an arrest is illegal, the entire
prosecution must fail on account thereof. This is not an illegality that may
vitiate a trial and hence the consequence thereof cannot percolate in any other
proceeding and can only be to the extent that the immediate prejudice caused
on account thereof is removed. Its relevance can only be incase both the
offences or cases are the same. It shall have no bearing when both the cases
are independent of each other and relate to different incidents, even if some
of the witnesses happen to be the same. The said circumstances do not exist
in the present case and hence merits of the case in hand have to be seen on the
basis of the evidence brought before the court in the present case
notwithstanding that the prosecution failed to prove its case about the
incident of cross-firing allegedly committed by the accused persons at the
police party, which led to the registration of the FIR No.13 dated 10.01.2023
and wherein the accused were acquitted vide judgment dated 09.10.2025.
243 The principle of falsus in uno falsus in omnibus is not a followed
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legal jurisprudence in our country and the prosecution case would not be
discarded even when some part of the prosecution version is found to be
incorrect or false, the same in the present case being about the mode and
manner in which the accused were arrested. The judgment (EX.D13) in the
said case can be read only qua the said case and with respect to the issue which
is common and flows in the present case as well, and no further.
244 Even though there is no corresponding provision pertaining to
estoppel, in Criminal law, however, while examining the provision of Section
403 of the Cr.P.C., 1898 (corresponding to section 300 Cr.P.C,1973), it was
held that principle of res judicata is applicable even in a criminal trial, in the
matter of Pritam Singh and another Vs. The State of Punjab, reported as
AIR 1956 SC 415 , Thereafter, in a larger Bench of 05 judges, in a case titled
Manipur Administration Vs. Thokchom Bira Singh, AIR 1965 SC 87 , the
Supreme Court recognized the rule as to issue estoppel. It thus precluded the
reception of evidence to disturb a finding reached in favour of an accused
person in a previous criminal trial. It was held that Section 403 of the Cr.P.C.,
1898, did not preclude the applicability of Rule of issue estoppel since the
Rule is in accord with sound principles and supported by High authority. It
thus re-affirmed the law in the matter of Pritam Singh and another (supra).
The position was reiterated in the matter of Lalta and others Vs. State of U.P.,
AIR 1970 SC 1381 .
245 The above position in law found a favour also in the matter of
Ravinder Singh V/s Sukhbir Singh and others, reported as 2013 (3) SCC
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891 . It was explained that an issue estoppel prevents re-litigation of an issue
which has been determined in a criminal trial between the parties. For
invoking the principle, not only the parties ought to be the same but also the
fact in issue, whether proved or not, must be identical.
246 In the recent case of State (CBI) Vs. Mohd.Salim Zargar @
Fayaz and others, reported as 2025 SCC OnLine SC 591 , held that a
confessional statement held inadmissible in a previous trial cannot be
accepted in subsequent proceedings as it would disturb a finding of fact
already recorded in a previous trial.
247 The weapon of offence allegedly used in the present case was
undipsutedly seized in FIR No.13 (supra). The said weapon was later seized
and taken in possession in the present case as well. The said seizure has been
disbelieved by the Court and the accuse stand acquitted, hence, the said
finding would be binding in the present case as well.
248 Once the State has been unable to prove its case as well as the
seizure of the weapon in the principal case where the weapon was taken in
possession, its recovery in the present case can be no better. Hence, the
recovery of the weapon of offence allegedly used in the crime deserves to be
disregarded. The conviction of the respondents to the above extent thus
deserves to be set aside.
OFFENCE OF DACOITY NOT MADE OUT
249 It has been the contention of the learned Senior counsel for the
accused that there is a requirement of a minimum of 05 persons to make out
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an offence of dacoity and that the present case does not show participation of
05 persons. He contends that originally 07 persons were tried for the
commission of the offence viz Sunil, Vikramjeet @ Bittu, Vikram @ Vicky
and Manish along with Poonam, Umesh and Ket Ram. The said accused
Umesah and Ket Ram have since been found innocent. The allegation against
Umesh was that he had supplied the arms that was used by the accused in the
commission of the offence whereas the allegation against Ket Ram was of
having signalled the accused persons from the rooftop to enter the premises.
The allegations against either of them were not established during trial and
both of them were acquitted by the trial court. It has been argued during the
deposition of witnesses, the case set up by the prosecution was that the
accused persons gained entry to the residential portion on the pretext of
purchasing a cake and not on the basis of any active role of the co-accused
Ket ram to secure their entry to the premises. Besides, there is also no evidence
to show as to how and in what way the co-accused Ket Ram was in contact
with any other person or he signaled the other accused to gain entry to the
premises.
250 It has further been argued that so far as the involvement of
Poonam is concerned, the same has also not been established since the only
allegation against her was that accused Vikram @ Vicky was her acquaintance
and no other role is attributed to her.
251 We have heard learned counsel for the parties and have also gone
through the evidence. Undisputedly, two of the accused persons namely
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Umesh and Ket Ram have been acquitted by the Trial Court, while the
remaining five, including Poonam have been sentenced to death penalty for
the offence under Section 302/120-B IPC and they have been sentenced to
varied sentences for other offences.
252 State of Haryana has not preferred any appeal against the
acquittal of the above two persons. The complainant Dr. Atul Arora has
however filed CRA-AD-132-2026 against the acquittal of Ket Ram only and
even he has chosen not to impugn the acquittal of Umesh Kumar who had
allegedly supplied the weapon to the other accused.
253 It is also undisputed that even though it was alleged that one of
the assailants was holding the weapon that had been used to hold the
complainant as a hostage and the said weapon was origianlly recovered in FIR
No.13. The accused were undeniably acquitted in the said FIR and the said
judgment has not been challenged. No recovery of any weapon had been
effected at the disclosure of the accused Umesh in either the said case or in
the present case and no link evidence could also be collected to prove the
supply chain or the involvement of the accused Umesh. Thus, there is no
reason to interfere with the judgment passed by the trial court to the extent of
his acquittal.
254 Adverting next to the issue of acquittal of co-accused Ket
Ram. The allegation against him, as per the prosecution case is that he
signalled the accused from the rooftop and facilitated their safe entry into the
house. However, there is no evidence to the said effect as to how and in what
RAJ KUMAR ARORA
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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manner, the accused were signalled. Still further, the CCTV footage clearly
showed that none of the accused persons was looking upwards. Besides,
during evidence, the case set up by the prosecution was that the accused
persons had talked to the deceased to purchase a cake from her and gained
entry to the house on the said pretext.
255 The CCTV footage also showed that one of the accused was
talking on the phone at the time when they entered the premises. The
prosecution further relied upon the CDR’s of the mobile number to connect
the presence of the accused persons at the spot. Thus, it was a projected case,
through the evidence during trial, of the accused gaining entry into the house
on a false pretext and the prosecution case was not based on any signal from
the roof top by the accused Ket Ram. Besides, there is no evidence even to
establish any link of the other accused with Ket Ram and as to how he had
come in contact with any other accused or as to how they remained in touch
or became part of the conspiracy. Thus, the entire case against Ket Ram was
based on a suspicion because he, amongst others, knew about where various
jewellery items were kept. A similar attribution is also levelled against
Poonam as well. Hence, the case was based solely on the suspicion that he
might have shared the information with the other accused.
256 During deposition, none of the witnesses however repeated the
allegations or proved any allegation against the accused Ket Ram. He was a
domestic help and hence an easy suspect. The evidence rather shows that at
the time of the offence, accused Ket Ram as well as his wife Gudiya were also
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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held hostage at gunpoint. Besides, had he been in conspiracy with the other
co-accused, there would have been some element of quid pro quo . No reason
or motive for Ket Ram to have joined with the other accused has also come
on record. Hence, the allegations against the accused Ket Ram do not travel
any further and beyond suspicion and the evidence does not depict any
involvement or participation. The position in law needs no reiteration that a
suspicion, how so ever strong, would not be substituted for proof. Hence, no
inference of culpability can be drawn against Ket Ram. Besides, the only basis
for filing the report against Ket Ram was that he had met with Poonam one
day prior to the incident. The Investigating Officer, however failed to divulge
any detail as to where the other accused had met Ket Ram. Investigating
Officer rather fairly conceded that there is no CDR between Ket Ram and
Poonam and there is also no evidence that Ket Ram had met any other accused
at any point or he knew them. As per the deposition, even Poonam knew where
the jewellery had been kept, hence, there was no better information that could
have been shared by Ket Ram. Besides, in none of his statements did the
complainant Dr. Atul Arora level any allegation against Ket Ram. The
mentioning of the name of the Ket Ram was only in the nature of an
information and was not in the nature of an allegation. The same surfaced for
the first time only while deposing in Court. The evidence collected by the
police failed to corroborate any of the allegations that had been levelled
against the accused Ket Ram. Thus the case of the prosecution travelled no
beyond uncorroborated allegations against Ket Ram and the investigation was
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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completely silent on the aspect of motive or actus reus which are two essential
pre-requisites of a criminal offence. There is also no evidence as to the reflect
the accused Ket Ram to be a part of the criminal conspiracy either from any
evidence or from his conduct.
257 In the light of the evidence already discussed above, we find no
error in the impugned judgment also to the extent whereby accused Ket Ram
had been acquitted. In the said circumstances, we have no hesitation in holding
that the impugned judgment suffers from no illegality or infirmity also to the
extent whereby Ket Ram has been acquitted. CRA-AD-132-2026, titled Dr.
Atul Arora Vs. State of Haryana and another, is thus liable to be dismissed.
258 Now, adverting to the aspect of involvement of Poonam in the
offence in question.
259 As per the facts borne out from the record and from the deposition
of the witnesses, accused Vikram @ Vicky was an acquaintance of Poonam
and that he had the occasion to visit the clinic on certain occasions when he
used to pick up Poonam from the clinic. The evidence available on record,
however, falls short of reflecting participation of Poonam in the commission
of the offence as a conspirator. The case set up by the prosecution is that
Poonam had made a telephone call with the accused, on the date of the
incident and also prior thereto, from the phone belonging to PW.27 Jasbir
Singh. Thus the participation of Poonam was sought to be connected by her
conduct and continuous contact with Vikram @ Vicky not only on the date of
the incident but also prior thereo. However, the said witness i.e. PW 27 –
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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Jasbir Singh did not support the case of the prosecution and instead deposed
that Poonam did not make any call from his number to the accused persons.
Hence, the prosecution failed to establish as to how and in what manner the
other accused persons had been in touch with Poonam. The prosecution was
required to establish motive and mode and manner of participation by Poonam
in the offence before she may be held to be a conspiratory. Besides, it also
needs to be established that the information as to the facilitation of the crime
by the other accused was shared after a shared intention to commit an offence.
Merely because accused Vikram @ Vicky was an acquaintance of Poonam
in some way would not be sufficient to assume her involvement in a
conspiracy to commit an offence.
260 We are conscious also of the fact that Poonam may have shared
the information about where the belongings/jewellery was kept by Vanita/Dr.
Atul Arora, however, even the said assumption would be insufficient to infer
her to be a conspirator. Any information may have been shared in good faith
or in a normal conversation and may not necessarily be given with an intent
to entice or aid somebody into commission of an offence.
261 Section 120A of the IPC defines ‘Criminal Conspiracy’ and the
same reads thus: -
“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
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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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.”
262 The ingredient for the commission of the offence is that there has
to be an agreement between two or more parties for doing or causing to be
done either an illegal act or a legal act by illegal means. Hence, evidence must
disclose whether the accused were pursuing the same object. If they are not
joint in the object, a mere sharing of an information may be immaterial for
inferring a culpable state of mine. Besides, the sharing as to an illegal act or
object must precede the sharing of the information and evidence should show
a continued sharing of the purpose even after the information. While it is not
necessary that a conspirator should know each and every detail, but existence
of an agreement amongst the accused has to be established.
263 A conspiracy creates a joint liability, hence, a Court of law has to
prudently and objectively sift through the evidence to determine whether
evidence suggests and establishes existence of a conspiracy, from the primary
as well as circumstantial evidence.
264 The evidence available on record however fails to disclose any
specific role to Poonam in the formation of a conspiracy for commission of
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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the offence. It also fails to show that she had any benefit to be derived from
the sharing of the information or that she induced, abetted or had aided the
other accused persons in any manner whatsoever in commission of the
offence.
265 The prosecution has also failed to collect any evidence to
establish any contact of Poonam, soon before or after the incident, with the
other accused persons, on the basis whereof any specific pattern or suspicious
activities could be gathered so as to draw an inference against the said
accused. Needless to mention that such conduct may have been relevant and
admissible under Section 10 of the Indian Evidence Act, 1872 and could have
been a referring point to draw an inference against her with the aid of Section
114 of the Indian Evidence Act, 1872.
266 Section 10 of the Indian Evidence Act, 1872, has been
incorporated to make acts and statements of co-conspirators admissible
against all the conspirators in circumstances where there are acts done in
furtherance of a common intention, after such an intention was first
entertained by any one of them. Thus, the acts have to commence post
entertaining any such intention.
267 In the present case the police merely recorded the disclosure of
Poonam, where she stated that she used to talk to Vikram @ Vicky on his
mobile Nos.80532-24069 and 81689-39863 from her mobile Phone
No.99925-04355 and she also supplied the number of Dr. Vanita and had
roped in Ket Ram. The entire case against Poonam and Ket Ram is however
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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based only on the disclosure statement but in the absence of discovery of any
fact, the same is at best a confession recorded at the time when they were in
police custody. All recoveries have been effected from the other co-accused.
Besides, the mobile phone No.9992504355 which Poonam allegedly used to
get in touch with the other accused, belonged to PW.27 Jasbir Singh but he
denied having ever given the SIM to Poonam. He stated that his brother-in-
law Satish had been using the said SIM card and that the name of Poonam’s
husband was Darshan. It is also not in dispute that Poonam was arrested after
the other accused had already been arrested and their disclosure statements
had already been recorded. Despite the Investigating Officer admitting that
Ket Ram, his wife Gudiya and Poonam had mobile phones, yet, the CDR did
not establish any inter-se telephonic connection of the abvoe persons with the
other accused or even inter se between them at any time in proximity to the
occurrence or thereafter. The witness viz the Investigating Officer, also
admitted that call details and tower locations of Ket Ram and his wife Gudiya
@ Madhu are not on file.
268 The Investigating Officer further admitted that he did not even
investigate about the place from where Ket Ram gave a signal and has also
not prepared the rough site plan of the place.
269 The Investigating Officer also admitted that there is no evidence
of Poonam meeting Ket Ram outside the house. Significantly, the
Investigating Officer admitted that wife of Ket Ram was employed after
Poonam had been sacked. It seems highly unlikely for Gudiya @ Madhu or
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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even Ket Ram to be on talking terms with Poonam after having replaced her.
270 Hence, accused Poonam is neither linked as an associate or
conspirator with the other accused nor with Ket Ram. She became a prime
suspect being a common link between the victim and the accused.
271 Even though police brought the CDR pertaining to the phone
usage between the phone number allegedly being used by Poonam and the
other accused is shown, however, the number is not established to be under
use by Poonam.
272 We find that in the light of the law discussed earlier and taking
into consideration the evidence that had been adverted to, the prosecution was
short of bringing any credible and admissible evidence to show participation
of Poonam in the commission of the offence or her complicity in the
commission of the offence. Thus, she is entitled to the benefit of doubt as she
cannot be incarcerated for commission of the offence solely on the ground of
strong suspicion on account of being acquainted with one of the main accused.
The judgment of the trial Court is thus liable to be partly modified and to be
set aside to the extent whereby the accused Poonam has been convicted and
sentenced in the present case and she is entitled to be acquitted of the charge
framed against her.
273 The trial court had convicted five persons for commission of the
offence, hence the requirements for the offence of dacoity were fulfilled.
Since, as per the discussion above, accused Poonam is entitled to a benefit of
doubt on account of absence of link evidence in the chain of circumstantial
RAJ KUMAR ARORA
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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evidence to lead to a solitary hypothesis as to the participation of Poonam in
the commission of the offence, hence, the number of accused whoses’
conviction still stands is less than five. The allegations against Poonam are
required to be proved on the parameters of law pertaining to case based on
circumstantial evidence but the chain of evidence is not complete and has
room doubt her involvement in the offence. The position in law is well settled
that in a case based on circumstantial evidence, if the evidence fails to satisfy
the judicial conscience on the legal parameters of Sharad Birdhichand Sarda,
the benefit thereof has to be extended to the accused. Thus, with the extension
of the benefit of doubt to accused Poonam, the number of accused persons
would be less than five, hence, the offence of Dacoity shall also not be made
out and instead it would be an offence or Robbery.
OFFENCE OF MURDER NOT MADE OUT
274 Learned Senior Counsel for the accused had vehemently argued
that the case of the prosecution does not establish the offence of murder
against the accused-appellants herein, and hence, they cannot be held guilty
for commission of the offence under Section 302 IPC. It was further argued
that none of the witnesses has seen any of the accused committing the offence
of murder, thus, they cannot be held liable for commission of the offence as
there is no proof of either commission of murder by any of the accused nor
sharing of any common intention. He reiterated the arguments as have already
been dealt with while dealing with the argument pertaining to the medical
evidence. The said arguments and discussion thereupon are not being
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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repeated.
275 The medical evidence clearly establishes that the injuries
sustained by Vanita were not the result of any fall or accidental slip, rather, it
was on account of a forceful homicidal impact whereby her head had been
struck against the wall. It has also emerged from the evidence of the
complainant that he came out of his parents' room on hearing the shrieks of
his wife, Vanita. Thus, the said evidence is a corroborative circumstantial
evidence. The accused persons were identified as the assailants who were
present at the house at the relevant time, and as per the call data record, they
were the persons who held talk/discussion with the deceased on her telephone
number at the time when they gained entry into the house. The accused were
the only persons who were outside when the complainant came out after
hearing the shriek of his wife. The accused thus owed an explanation to the
events that led to the deceased Vanita having sustained the fatal injuries.
276 In the above undisputed factual scenario, the circumstances of
the case lead to a presumption of facts, which a Court of law thinks as a likely
turn of events to have happened in the common course of natural events and
human conduct. The death in the present case was neither suicidal nor natural.
Hence, it could either be accidental or homicidal. The specific suggestion and
cross of the doctor rules out every possibility of the sustained injury being
accidental by nature. The doctor also establishes the injuries to be homicidal
by nature. The turn of events and natural human conduct gives rise to an
inference that the death was homicidal and had been caused by the accused
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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persons.
277 In the light of the judgments referred to in earlier paras viz in the
matter of State of Andhra Pradesh Vs. Sobhan Babu and Haradhan Das
Vs. State of West Bengal (Supra) pertaining to joint liability and
commission of offence by any individual entailing similar consequences also
against the other accused, it would be immaterial at this juncture to enter into
a debate as to which of the accused persons actually caused the fatal injury to
the deceased. It is proved by the prosecution that all the aforesaid four accused
persons had entered the house under the conspiracy to commit the offence of
robbery and were fully prepared to take all such steps as may be necessary to
execute the offence, including murder. The fact that they were armed with
firearm shows that they had no hesitation to use any extreme force in the event
of any resistance being offered by any person. The circumstances of the case
lead to no other inference but that the death of Vanita was as a result of injury
caused by the accused persons in furtherance of an illegal act and unlawful
purpose by any means. The accused having entered into the house under
criminal conspiracy are thus liable for commission of the offence under
Section 302 read with Section 120-B IPC.
OFFENCE OF LURKING HOUSE TRESPASS
278 In so far as the conviction for the offence under Section 460 IPC
is concerned, we are of the opinion that the ingredients of the offence are not
satisfied. The relevant statutory provisions read thus: -
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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“441. Criminal trespass- Whoever enters into or upon property
in the possession of another with intent to commit an offence or
to intimidate, insult or annoy any person in possession of such
property, or having lawfully entered into or upon such property,
unlawfully remains there with intent thereby to intimidate, insult
or annoy any such person, or with intent to commit an offence, is
said to commit "criminal trespass".
442. House trespass- Whoever commits criminal trespass by
entering into or remaining in any building, tent or vessel used as
a human dwelling or any building used as a place for worship,
or as a place for the custody of property, is said to commit
"house-trespass".
Explanation- The introduction of any part of the criminal
trespasser's body is entering sufficient to constitute house-
trespass.
443. Lurking house-trespass.- Whoever commits house-trespass
having taken precautions to conceal such house-trespass from
some person who has a right to exclude or eject the trespasser
from the building, tent or vessel which is the subject of the
trespass, is said to commit "lurking house-trespass".
450. House-trespass in order to commit offence punishable
with imprisonment for life. Whoever commits house-trespass in
order to the committing of any offence punishable with
¹[imprisonment for life], shall be punished with imprisonment of
either description for a term not exceeding ten years, and shall
also be liable to fine.
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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451 House-trespass in order to commit offence punishable with
imprisonment.— Whoever commits house-trespass in order to
the committing of any offence punishable with imprisonment,
shall be punished with imprisonment of either description for a
term which may extend to two years, and shall also be liable to
fine; and if the offence intended to be committed is theft, the term
of the imprisonment may be extended to seven years.
452. House-trespass after preparation for hurt, assault or
wrongful restraint.—
Whoever commits house-trespass, having made preparation for
causing hurt to any person or for assaulting any person, or for
wrongfully restraining any person, or for putting any person in
fear of hurt, or of assault, or of wrongful restraint, shall be
punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine.
xxx xxx xxx
460 All persons jointly concerned in lurking house-trespass or
house-breaking by night punishable where death or grievous
hurt caused by one of them. —
If, at the time of the committing of lurking house-trespass by
night or house-breaking by night, any person guilty of such
offence shall voluntarily cause or attempt to cause death or
grievous hurt to any person, every person jointly concerned in
committing such lurking house-trespass by night or house-
breaking by night, shall be punished with imprisonment for life,
or with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.”
279 It is evident from a perusal of the above that the accused persons
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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committed the offence of house trespass after preparation for causing hurt,
assault and wrongful restraint, which is punishable under Section 452 IPC
read with Section 442 IPC. Since the accused had entered the house to commit
robbery, which is punishable under Section 392 IPC, which is not punishable
with imprisonment for life, hence, Section 449 IPC, would not be attracted.
Since the accused entered the house through the common passage and without
taking precautions to conceal such trespass, hence, it would not be a case of
lurking house trespass under Section 443 IPC. Besides, it also does not satisfy
the ingredients of house breaking as defined under Section 445 IPC, hence, an
offence under Section 460 IPC would not be made out. Rather, the accused
would be liable to have committed an offence punishable under Section 452
IPC. Undisputedly, all the 04 accused had entered the house with an intent to
commit an offence but the same was not with an intent to commit an offence
punishable with life imprisonment but only happened to commit such an
offence. The offence under Section 449 IPC would thus not be made out.
OFFENCE UNDER SECTIONS 395 AND 397 OF IPC AND ARMS ACT
280 Learned Senior Counsel appearing on behalf of the accused has
contended that the prosecution has failed to establish the essential ingredients
of dacoity and, further, that there is no reliable evidence to establish the
individual role attributed to the respective accused persons in the commission
of the alleged offence. It has also been argued that the alleged recovery of the
articles and the identification thereof by the complainant cannot, in the
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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absence of cogent and reliable evidence connecting each of the accused with
the actual commission of the offence, be made the sole basis for sustaining
their conviction under the aforesaid provisions.
281 In order to appreciate the submission, it would be necessary to
advert to the relevant statutory provisions.
“390. Robbery . In all robbery there is either theft or extortion.
When theft is robbery .-Theft is "robbery" if, in order to the
committing of the theft, or in committing the theft, or in carrying
away or attempting to carry away property obtained by the theft,
the offender, for that end, voluntarily causes or attempts to cause
to any person death or hurt or wrongful restraint, or fear of
instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery - Extortion is "robbery" if the
offender, at the time of committing the extortion, is in the
presence of the person put in fear, and commits the extortion by
putting that person in fear of instant death, of instant hurt, or of
instant wrongful restraint to that person or to some other person,
and, by so putting in fear, induces the person so put in fear then
and there to deliver up the thing extorted.
Explanation. The offender is said to be present if he is sufficiently
near to put the other person in fear of instant death, of instant
hurt, or of instant wrongful restraint.
391. Dacoity . When five or more persons conjointly commit or
attempt to commit a robbery, or where the whole number of
persons conjointly committing or attempting to commit a
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CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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robbery, and persons present and aiding such commission or
attempt, amount to five or more, every person so committing,
attempting or aiding, is said to commit "dacoity".
392. Punishment for robbery . Whoever commits robbery shall
be punished with rigorous imprisonment for a term which may
extend to ten years, and shall also be liable to fine; and, if the
robbery be committed on the highway between sunset and
sunrise, the imprisonment may be extended to fourteen years.
xxx xxx xxx
394. Voluntarily causing hurt in committing robbery . If any
person, in committing or in attempting to commit robbery,
voluntarily causes hurt, such person, and any other person
jointly concerned in committing or attempting to commit such
robbery, shall be punished with [imprisonment for life], or with
rigorous imprisonment for a term which may extend to ten years,
and shall also be liable to fine.
395. Punishment for dacoity . Whoever commits dacoity shall be
punished with imprisonment for life, or with rigorous
imprisonment for a term which may extend to ten years, and shall
also be liable to fine.
396. Dacoity with murder . If any one of five or more persons,
who are conjointly committing dacoity, commits murder in so
committing dacoity, every one of those persons shall be punished
with death, or [imprisonment for life], or rigorous imprisonment
for a term which may extend to ten years, and shall also be liable
to fine.
397. Robbery, or dacoity, with attempt to cause death or
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grievous hurt .- If, at the time of committing robbery or dacoity,
the offender uses any deadly weapon, or causes grievous hurt to
any person, or attempts to cause death or grievous hurt to any
person, the imprisonment with which such offender shall be
punished shall not be less than seven years.”
282 An offence of Dacoity mandates an association of 05 or more
persons, in the commission of the offence, however, it is evident from the
discussion held in the preceding paragraphs that of the seven persons who
were tried for the offence, two were acquitted by the trial Court. We have
found no error in the acquittal of the accused persons by the trial court and
have also dismissed the appeal bearing No.CRA-AD-132-2026 titled Dr. Atul
Arora versus State of Haryana and another.
283 There were thus five persons who were convicted and sentenced
by the trial Court. During our consideration in the preceding paras, it is evident
that the prosecution could not prove its case against co-accused Poonam
beyond reasonable doubt.
284 It is also not in dispute that no recovery has been effected from
the accused Poonam or at her disclosure. Hence, apart from an initial suspicion
expressed by the complainant followed by confession of Poonam recorded
while she was in custody, there is no other evidence. The evidence thus only
gave rise to suspicion and it was not sufficient to prove the offence against
her. Hence, she has been acquitted by us, by giving her the benefit of doubt.
Hence, the prosecution has been able to successfully prove its case beyond
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reasonable doubts, only against 04 persons. Thus, charge of dacoity cannot
subsist and they can only be held liable for offence under Section 392 IPC
read with Section 120B IPC and for offence under Section 394 IPC read with
Section 120B IPC, since complainant specifically attributed beatings having
been caused to him by the accused.
285 It not being a case of attempt to murder or grievous hurt having
been caused during robbery, hence, Section 397 IPC, would not be applicable.
Noticeably, while Section 396 IPC specifically provides for punishment
where a murder is caused during dacoity and conjointly holds everyone liable,
there is no similar provision in IPC where murder is caused during robbery.
Hence, in the absence of any attempt to murder or grievous hurt, ingredients
for Section 397 IPC would not be satisfied.
286 We have also considered as to whether offence under Section 398
IPC is made out or not. The above Section is applicable where robbery/dacoity
is committed when armed with deadly weapons.
287 Undisputedly, as per the allegations, two of the accused were
armed with firearms which would fall in the definition of deadly weapon. But
at the same time, we cannot close our eyes to the undisputed fact that the
firearms had been recovered in FIR No.13 dated 10.01.2023, wherein the
recovery has not been held to be proved. Hence, in view of the judgments of
the Supreme Court in the matter of Pritam Singh and another; Manipur
Admnistration; Lalta and others ; Mohd.Salim Zargar @ Fayaz and others
and Mohd.Salim Zargar @ Fayaz and others (supra), we cannot uphold and
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validate the said recovery in the present case as well. Hence, the allegation
about the accused holding firearm cannot be held proved and evidence exists
only with respect to the use of force, assault and wrong restraint.
Consequently, the offence either under Section 398 IPC or under Section 25
of the Arms Act, 1959 cannot also be held to have been proved. Resultantly,
we set aside the conviction of the accused for offence under Section 396 IPC
read with Section 120B IPC; under Section 395 IPC read with Section 397
read with Section 120B IPC and Sections 25(6) and Section 27 of the Arms
Act, 1959, and instead convict them for offence under Section 394 IPC read
with Section 120B IPC and under Section 392 IPC read with Section 120B
IPC in addition to their conviction for offence under section 302 read with
120B IPC and section 323/120B IPC.
288 In view of the discussion held above while CRA-AD-132-2026
titled as ‘Dr. Atul Arora Vs. State of Haryana and another’ is dismissed; CRA-
D-40-2026, titled as ‘Poonam and another Vs. State of Haryana’, CRA-D-75-
2026, titled as ‘Sunil Kumar @ Sunil Vs. State of Haryana’, and CRA-D-109-
2026, titled as ‘Vikram @ Vicky and another Vs. State of Haryana’, are partly
allowed and accused Poonam-appellant in CRA-D-40-2026, is acquitted. The
judgment of conviction of the other accused-convicts is modified and they are
held liable for the offences punishable under Section 120B IPC; Section 323
read with Section 120B IPC; Section 394 read with Section 120B IPC;
Section 392 read with Section 120B IPC; Section 201 read with Section 120B
IPC; Section 452 read with Section 120B IPC and under Section 302 read
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with Section 120B IPC.
SENTENCE
289 Having held so, the same leads us to examine the issue of
sentencing as awarded by the trial Court vide order dated 20.12.2025 and as
to whether the capital punishment for offence under Section 302 IPC read with
Section 120-B IPC as awarded by the trial Court needs to be confirmed or any
other suitable punishment be awarded taking into consideration the mitigating
circumstances along with the sentence for the other offences.
290 The position in law needs no reiteration that a capital punishment
should be imposed only in a ‘rarest of the rare’ case where the judicial or the
collective social conscience is shocked and where a persons seems to be
beyond reform. The court needs to be satisfied that no punishment other than
capital punishment serves the cause of justice and that the existence and
survival of the accused is a constant threat and peril to the society. Reference
in this regard may be placed on the precedent judgments of the supreme court
that prescribe the test for determining as to whether an offence would fall in
the category of ‘rarest of the rare’ cases or not. The supreme Court laid certain
yardstick to be considered before an offence may be categorized as rarest of
the rare in the case of Bachan Singh versus State of Punjab reported as
(1980)2 SCC 684 , a court is to see the extreme manner or brutality in which
the crime was planned and committed, the motive behind the offense, the
vulnerability of the victim as well the magnitude and the societal shocking
impact of the crime and to weigh the same against the age of the accused, his
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mental state, background and emotional stress at the time of offence, the
criminal antecedents and the gravity of the cases in which involved, the
heightened possibility of the accused being involved in the life or crime. The
relevant extract thereof reads as under: -
“161 . A study of the propositions set out above, will show that, in
substance, the authority of none of them has been affected by the
legislative changes since the decision in Jagmohan's case. Of
course, two of them require to be adjusted and attuned to the
shift in the legislative policy. The first of those propositions is
No. (iv) (a) which postulates, that according to the then extant
CrPC both the alternative sentences provided in Section 302,
Penal Code are normal sentences, and the Court can, therefore,
after weighing the aggravating and mitigating circumstances of
the particular case, in its discretion, impose either of those
sentences. This postulate has now been modified by Section
354(3) which mandates the Court convicting a person for an
offence punishable with death or, in the alternative with
imprisonment for life or imprisonment for a term of years, not
to ins-pose the sentence of death on that person unless there are
"special reasons" - to be recorded - for such sentence. The
expression "special reasons" in the context of this provision,
obviously means "exceptional reasons" founded on the
exceptionally grave circumstances of the particular case
relating to the crime as well as the criminal. Thus, the legislative
policy now writ large and clear on the face of Section 354(3) is
that on conviction for murder and other capital offences
punishable in the alternative with death under the Penal Code,
the extreme penalty should be imposed only hi extreme cases.
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162 . In this view we are in accord with the dictum of this Court
in Balwant Singh v. State of Punjab , wherein the interpretation
of Section 354(3) first came up for consideration. After
surveying the legislative background, one of us (Untwalia, J.)
speaking for the Court, summed up the scope and implications
of Section 354(3), thus:
Under this provision the Court is required to state the
reasons for the sentence awarded and in the case of
sentence of death, special reasons are required to be
stated. It would thus be noticed that awarding of the
sentence other than the sentence of death is the general
rule now and only special reasons, that is to say, special
facts and circumstances in a given case, will warrant the
passing of the death sentence. It is unnecessary nor is it
possible to make a catalogue of the special reasons which
may justify the passing of the death sentence in a case.
While applying proposition (iv) (a), therefore, the Court has to
bear in mind this fundamental principle of policy embodied in
Section 354(3).
163. Another proposition, the application of which, to an
extent, is affected by the legislative changes, is No. (v). In
portion (a) of that proposition, it is said that circumstances
impinging on the nature and circumstances of the crime can be
brought on record before the pre-conviction stage. In portion
(b), it is emphasised that while making choice of the sentence
under Section 302, Penal Code, the Court is principally
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concerned with the circumstances connected with the
particular crime under inquiry. Now, Section 235(2) provides
for a bifurcated trial and specifically gives the accused person
a right of pre-sentence hearing, at which stage, he can bring
on record material or evidence, which may not be strictly
relevant to or connected with the particular crime under
inquiry, but nevertheless, have, consistently with the policy
underlined in Section 354(3) a bearing on the choice of
sentence. The present legislative policy discernible from
Section 235(2) read with Section 354(3) is that in fixing the
degree of punishment or making the choice of sentence for
various offences, including one under Section 302, Penal Code,
the Court should not confine its consideration "principally" or
merely to the circumstances connected with particular crime,
but also give due consideration to the circumstances of the
criminal.
xxx
209 . There are numerous other circumstances justifying the
passing of the lighter sentence; as there are countervailing
circumstances of aggravation. "We cannot obviously feed into
a judicial computer all such situations since they are
astrological imponderables in an imperfect and undulating
society." Nonetheless, it cannot be over-emphasised that the
scope and concept of mitigating factors in the area of death
penalty must receive a liberal and expansive construction by
the courts in accord with the sentencing policy writ large in
Section 354(3). Judges should never be bloodthirsty. Hanging
of murderers has never been too good for them. Facts and
figures albeit incomplete, furnished by the Union of India, show
that in the past Courts have inflicted the extreme penalty with
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extreme infrequency - a fact which attests to the caution and
compassion which they have always brought to bear on the
exercise of their sentencing discretion in so grave a matter. It
is, therefore, imperative to voice the concern that courts, aided
by the broad illustrative guidelines indicated by us, will
discharge the onerous function with evermore scrupulous care
and humane concern, directed along the highroad of legislative
policy outlined in Section 354(3), viz., that for persons
convicted of murder, life imprisonment is the rule and death
sentence an exception. A real and abiding concern for the
dignity of human life postulates resistance to taking a life
through law's instrumentality. That ought not to be done save
in the rarest of rare cases when the alternative option is
unquestionably foreclosed.
291 In Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra, reported as (2009) 6 SCC 498 , the Hon’ble Supreme Court
commuted the death sentence of the accused therein to rigorous imprisonment
for life and held as under : -
“66. The rarest of rare dictum, as discussed above, hints at this
difference between death punishment and the alternative
punishment of life imprisonment. The relevant question here
would be to determine whether life imprisonment as a
punishment will be pointless and completely devoid of reason in
the facts and circumstances of the case? As discussed above, life
imprisonment can be said to be completely futile, only when the
sentencing aim of reformation can be said to be unachievable.
Therefore, for satisfying the second exception to the rarest of rare
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doctrine, the court will have to provide clear evidence as to why
the convict is not fit for any kind of reformatory and
rehabilitation scheme. This analysis can only be done with rigour
when the court focuses on the circumstances relating to the
criminal, along with other circumstances. This is not an easy
conclusion to be deciphered, but Bachan Singh [(1980) 2 SCC
684 : 1980 SCC (Cri) 580] sets the bar very high by introduction
of the rarest of rare doctrine.”
292 In Machhi Singh and others v. State of Punjab, [1983] 3SCR
413 , a three-Judge Bench of the Hon’ble Supreme Court holds,
[H-D]. The reasons why the community as a whole does not
endorse the humanistic approach reflected in "death sentence in
no case" doctrine are not far to seek. In the first place, the very
humanistic edifice is constructed on the foundation of "reverence
for life" principle. When a member of the community violates this
very principle by killing another member, the society may not feel
itself, bound by the shackles of this doctrine. Secondly, it has to
be realized that every member of the community is able to live
with safety without his or her own life being endangered because
of the protective arm of the community and on account of the rule
of law enforced by it. The very existence of the rule of law and
the fear of being brought to book operates as a deterrent to those
who have no scruples in killing others if it suits their ends. Every
member of the community owes a debt to the community for this
protection. When ingratitude is shown instead of gratitude by
‘Killing’ a member of the community which protects the
murderer himself from being killed, or when the community feels
that for the sake of self-preservation the killer has to be killed,
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the community may well withdraw the protection by sanctioning
the death penalty. But the community will not do so in every case.
It may do so (in rarest of rare cases) when its collective
conscience is so shocked that it will expect the holders of the
judicial power centre to inflict the death penalty irrespective of
their personal opinion as regards desirability or otherwise of
retaining the death penalty…
293 As per the mandate of the Hon’ble Supreme Court, as per the
report/record, the mitigating and aggravating circumstances qua each of the
accused are as under: -
SUNIL KUMAR
294 Insofar as accused Sunil Kumar is concerned, the material placed
before us indicates that he is 29 years of age. He was arrested in the present
case in the year 2023 and was convicted in December 2025. He is engaged as
a labourer and has adequate family support. The psychological assessment
conducted during the course of the present proceedings records his IQ at 97,
which falls within the average range, with schizoid and passive-aggressive
traits; however, he is not suffering from any active psychiatric illness. The
sociological assessment further indicates that he does not engage in substance
abuse and only smokes occasionally. He had studied up to the 10th standard
but discontinued his education thereafter.
295 It is also relevant that his conduct during incarceration has been
reported to be cordial with the jail officials and his behaviour in social settings
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has been described as appropriate. The assessment does not indicate any
history of violent behaviour or suicidal tendencies. These circumstances,
particularly his relatively young age, employment as a labourer, educational
background, family support and appropriate conduct during incarceration, are
relevant factors which may be taken into consideration while determining the
appropriate sentence to be imposed upon him.
VIKRAM @ VICKY
296 As regards accused Vikram @ Vicky, the material before
us shows that he is 30 years of age and was arrested in the present case in the
year 2023 and convicted in December 2025. He belongs to a financially poor
background. His psychological assessment records his IQ at 90, within the
average range, with schizoid and passive-aggressive traits. The assessment
also records that he is experiencing adjustment disorder versus dysthymia.
297 From the sociological assessment, it emerges that he
studied up to the 5th standard and is the youngest amongst four siblings. His
father has expired and his mother is residing with his two elder brothers. These
aspects relating to his age, socio-economic circumstances, educational
background and family circumstances may be taken into consideration while
assessing the mitigating circumstances relevant to the question of sentence.
At the same time, the record also reflects his involvement in eight other
criminal cases and that he was punished for misuse of the Prison Inmate
Calling System while confined in District Jail, Karnal. These latter
circumstances are matters which have to be separately considered while
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undertaking the overall sentencing exercise.
MANISH KUMAR
298 In the case of accused Manish Kumar, the material on
record indicates that he is 26 years of age. He was first incarcerated in the
years 2019 and 2021 in connection with different offences and was arrested
in the present case in 2023 and convicted in December 2025. He belongs to a
financially poor background. His psychological assessment records an IQ of
93, which falls within the average range, with schizoid and passive-aggressive
traits. The assessment further records the presence of anxiety with major
depressive symptoms.
299 From the sociological assessment, it emerges that Manish Kumar
studied up to the 10th standard and is the youngest amongst four siblings. The
assessment records his involvement in 16 criminal cases, including the present
case. At the same time, the sociological assessment specifically records that
no sociological circumstances were found to have influenced the commission
of the present offence, while observing that no retrospective comment could
be made. The circumstances relating to his young age, financially
disadvantaged background, educational status and the psychological findings
recorded in the assessment may be taken into consideration while undertaking
the sentencing exercise, subject to the other circumstances appearing against
him on the record.
VIKRAMJEET @ BITTU
300 With respect to accused Vikramjeet @ Bittu, the material placed
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before us shows that he is 31 years of age. He was arrested in the present case
in the year 2023 and convicted in December 2025. He belongs to a financially
poor background and has two brothers and two sisters. His psychological
assessment records his IQ at 112, which falls within the above-average range,
and notes narcissistic and passive-aggressive traits.
301 The sociological assessment indicates that he studied up to the
10th standard and is the third amongst five siblings. The assessment, however,
records that he has been involved in criminal activities from the age of 13
years and has been involved in 20 criminal cases, including the present case.
It further records that no sociological circumstances were found to have
influenced the commission of the present offence, while no retrospective
comment could be made. The factors relating to his age, financial background
and family circumstances constitute the mitigating circumstances disclosed in
the assessment, however, these factors have to be considered alongside the
adverse circumstances emerging from the record while determining the
appropriate sentence.
302 The mitigating circumstances of the case, as above, have been
considered. The evidence does not show any criminal antecedents of the
accused herein or their criminal orientation beyond reform. Under the given
circumstances, the possibility of reformation of the accused persons at any
time in future cannot be entirely ruled out and they have opportunity to
suitably reintegrate into the mainstream of society keeping in view the
retributive and reformative objects of sentencing.
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303 In Mohinder Singh v. State of Punjab, [2013] 3 SCR 90 , the
Hon’ble Supreme Court holds,
[20E-F]. It is well settled law that awarding of life
sentence is a rule and death is an exception. The application of
the "rarest of rare" case principle is dependent upon and differs
from case to case. However, the principles laid down and
reiterated in various decisions of this Court show that in a
deliberately planned crime, executed meticulously in a diabolic
manner, exhibiting inhuman conduct in a ghastly manner,
touching the conscience of everyone and thereby disturbing the
moral fiber of the society, would call for imposition of capital
punishment in order to ensure that it acts as a deterrent.
304 In Shahjad Ali @ Ali Ur Rehman v. State of Uttarakhand, 2026
INSC 557 , decided on 06.05.2026, the Hon’ble Supreme Court, while
upholding the conviction of the accused under Sections 302, 392, 411, 436
and 506 of the Indian Penal Code and Section 25/4 of the Arms Act,
commuted the death sentence awarded under Section 302 IPC to
imprisonment for life for a fixed term of twenty-five years without remission.
The relevant part of the judgment is extracted hereunder: -
“52. Coming to the aspect of the sentence of death awarded by
the learned trial Court and affirmed by the High Court, we are
required to examine whether the present case falls within the
“rarest of rare” category as laid down by this Court in Bachan
Singh (supra).
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53. A consideration of the overall conspectus of the case as
emanating from the record reveals that the appellant was
working in the shop of the deceased Sanjay Guleria and was
removed from service on account of alleged misbehaviour with
the deceased Lalita. The appellant comes from the lower echelon
of society. Having lost his only source of livelihood, he had
repeatedly and persistently requested Sanjay Guleria to take him
back into service, but those requests went in vain. It is, therefore,
discernible that the appellant was deeply frustrated on account
of the loss of his source of livelihood and also probably, he felt
insulted on account of being thrown out of employment on
charges of misbehaviour. This context, while being wholly
irrelevant to justify the crime, provides a degree of explanation
for the mental state of the appellant that cannot be entirely
eschewed from consideration while deliberating upon the
quantum of sentence and the balancing act between death penalty
and life imprisonment.
54. It is settled position of law that capital punishment can be
only be awarded when the alternative of life imprisonment is
unquestionably foreclosed. The exercise requires a careful and
individualized balancing of the aggravating and mitigating
circumstances, with the focus being not merely on the nature of
the crime but equally on the character of the criminal, his
background, prior antecedents, socio-economic circumstances,
and the possibility of reformation and rehabilitation.
55. We have carefully considered the aggravating circumstances
in the present case. The murders were pre-meditated, the
appellant having arrived at the showroom with a knife concealed
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on his person with a clear intention to cause harm. The offence
was committed in broad daylight in a public place in the presence
of several eyewitnesses. The appellant first killed his employer
and thereafter chased and killed Lalita, the lady who had
reported his misconduct, by inflicting multiple stab wounds upon
her. Following the double murder, the appellant threatened the
bystanders, set the showroom ablaze and escaped by snatching
the motorcycle of the customer Harish Chandra (PW-17) while
threatening to kill any person who attempted to apprehend him.
These circumstances undoubtedly reflect a grave and heinous
crime.
56. At the same time, we cannot be unmindful of the mitigating
circumstances. The appellant had no prior criminal antecedents.
The motive for the commission of the crime, howsoever
reprehensible, was traceable to a perceivable grievance arising
from the termination of employment, his only source of livelihood
and was not rooted in any communal, political, gratuitous, or
preying motivation. The appellant belongs to the lower echelon
of society and was driven, in part, by the frustration of repeated
rejection of his pleas for re-engagement. There is no material on
record establishing that the appellant poses a continuing threat
to society or is incapable of reformation and rehabilitation.
57. On a careful and holistic consideration of the aforesaid
aggravating and mitigating circumstances, we are of the opinion
that the offence committed by the appellant, howsoever, brutal
and heinous, cannot be brought within the purview of the “rarest
of rare” category as expounded by this Court in Bachan Singh
(supra). The double murder, though arising from a calculated
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integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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premeditation, was fueled by the frustration of a man who had
been deprived of his livelihood and whose repeated requests for
revival of employment were rejected. It is thus, not a case
exhibiting such extreme moral depravity or exceptional brutality
as would shock the collective conscience of society so as to
warrant the imposition of death penalty. Hence, we are not
inclined to sustain the capital punishment imposed upon the
appellant by the trial Court and affirmed by the High Court.
58. The question that then falls for determination is as to the
appropriate sentence required to be imposed upon the appellant.
The governing principles in this regard were evolved by this
Court in Swamy Shraddananda v. State of Karnataka13, wherein
it was held that in cases falling short of the “rarest of rare”
category, the Court may yet find the ordinary sentence of life
imprisonment subject to remission to be inadequate having
regard to the gravity of the offence. In such situations, instead of
being compelled to choose between a sentence of 14 years’
imprisonment and death penalty, the Court may impose life
imprisonment for a specified term without remission so as to
ensure a punishment proportionate to the crime committed. The
constitutionality of this principle was subsequently affirmed by a
Constitution Bench in Union of India v. V. Sriharan alias
Murugan14, which recognised 13 (2008) 13 SCC 767. The power
of constitutional Courts to prescribe a fixed period of
incarceration without remission depending upon the nature of
the offence and the surrounding circumstances. The relevant
excerpts from V. Sriharan (supra) are extracted hereinbelow: -
“104. That apart, in most of such cases where death
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integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-261-
penalty or life imprisonment is the punishment imposed by
the trial court and confirmed by the Division Bench of the
High Court, the convict concerned will get an opportunity
to get such verdict tested by filing further appeal by way of
special leave to this Court. By way of abundant caution
and as per the prescribed law of the Code and the criminal
jurisprudence, we can assert that after the initial finding
of guilt of such specified grave offences and the imposition
of penalty either death or life imprisonment, when comes
under the scrutiny of the Division Bench of the High Court,
it is only the High Court which derives the power under the
Penal Code, which prescribes the capital and alternate
punishment, to alter the said punishment with one either
for the entirety of the convict's life or for any specific
period of more than 14 years, say 20, 30 or so on
depending upon the gravity of the crime committed and the
exercise of judicial conscience befitting such offence found
proved to have been committed.
105. We, therefore, reiterate that the power derived from
the Penal Code for any modified punishment within the
punishment provided for in the Penal Code for such
specified offences can only be exercised by the High Court
and in the event of further appeal only by the Supreme
Court and not by any other court in this country. To put it
differently, the power to impose a modifiedpunishment
providing for any specific term of incarceration or till the
end of the convict's life as an alternate to death penalty,
can be exercised only by the High Court and the Supreme
Court and not by any other inferior court.
RAJ KUMAR ARORA
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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106. Viewed in that respect, we state that the ratio laid
down in Swamy Shraddananda (2) [Swamy Shraddananda
v. State of Karnataka, (2008) 13 SCC 767] that a special
category of sentence; instead of death; for a term
exceeding 14 years and put that category beyond
application of remission is well founded and we answer the
said question in the affirmative. We are, therefore, not in
agreement with the opinion expressed by this Court in
Sangeet v. State of Haryana, (2013) 2 SCC 452 that the
deprival of remission power of the appropriate
Government by awarding sentences of 20 or 25 years or
without any remission as not permissible is not in
consonance with the law and we specifically overrule the
same.”
(Emphasis Supplied)
59. The principles governing determination of such fixed-term
sentence were comprehensively considered by a three-Judge
bench of this Court in Navas @ Mulanavas v. State of Kerala15.
After surveying a series of earlier precedents on the subject, this
Court observed that fixation of the minimum term of
incarceration is essentially an exercise in proportionality,
requiring due consideration of factors such as the nature of the
offence, number of victims, extent of injuries, motive, degree of
premeditation, criminal antecedents, possibility of reformation,
socio-economic background and conduct of the convict. The
Court further noticed that in a majority of cases, applying the
Swamy Shraddananda principle, the period of compulsory/fixed
term incarceration has generally ranged between 20 and 35
years, with 25 years being frequently considered appropriate in
cases involving double murder bereft of exceptionally
RAJ KUMAR ARORA
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integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-263-
aggravating circumstances. In the facts of that case, involving
murder of two persons arising out of personal grievance and
absence of criminal antecedents, the sentence of death was
accordingly commuted to imprisonment for life with a minimum
term of 25 years without remission.
60. Applying the aforesaid principles to the facts of the present
case, we find that the aggravating circumstances are that the
crime was premeditated; two persons both known to the
appellant were killed in cold blood; the manner of assault was
brutal and; the appellant thereafter indulged in acts of arson and
threatened those present at the spot. At the same time, certain
mitigating circumstances also deserve due reference. The
appellant had no prior criminal antecedents; the offence arose
out of personal frustration following loss of livelihood; he
belongs to the lower strata of the society with a modest socio-
economic background and; there is no material to indicate that
he is beyond the scope of reformation.
61. Balancing the aforesaid circumstances, we are of the
considered opinion that the ends of justice would be adequately
met by commuting the sentence of death to imprisonment for life
which shall enure to a fixed term of 25 (twenty-five) years without
remission. Such a sentence, in our view, would be proportionate
to the gravity of the offence while at the same time preserving the
possibility of reformation and rehabilitation of the appellant.”
305 It is evident from a perusal of the above that even though the
offence of Robbery and murder is a heinous offence, however, the offence
does not reflect brutality or extreme cruelty so as to shock the collective
conscience of the society or to bring it within the category of rarest of the rare
RAJ KUMAR ARORA
2026.10.28 18:06
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integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-264-
cases. It would also be difficult at this stage to hold that the accused are
beyond reform and their reintegration in the society is unlikely. Besides, the
material available on record also does not suggest that the accused are a threat
to the society and their existence and later reinduction in the society is likely
to expose the members of the society to grave danger or strong apprehension
about their security.
306 In the above legal and factual background, we are now required
to consider as to what would be an appropriate sentence to be imposed on the
accused in the facts of the present case.
307 The Constitution Bench of the Supreme Court in the matter of
Union of India Vs. V. Sriharan alias Murugan and others reported as
(2016) 7 SCC 1 , as well as Moyuddin Shaikh Vs. State of Gujarat, passed in
Criminal Appeal No.2686 of 2026 arising out of SLP (Crl.) Diary No.35717
of 2025, decided on 26.05.2026 , held that Constitutional Courts can impose
any other punishment and modify the life sentence to a fixed-term sentence
exceeding 14 years or so.
308 Having heard learned counsel for the parties and having weighed
the mitigating and aggravating circumstances qua each of the accused, we are
of the opinion that the present case, though the offence is grave and has shaken
the conscience of society, does not warrant capital punishment as the only
punishment to be imposed. The accused are between 26 and 31 years of age,
hail from financially modest backgrounds, have limited education, and none
is suffering from any active psychiatric illness. The record also reflects that
RAJ KUMAR ARORA
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integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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accused Sunil Kumar has maintained cordial relations with the jail authorities
and has shown no tendency toward violence. It cannot, therefore, be said with
certainty that the accused are beyond reform or incapable of returning to the
fold of society. At the same time, this Court cannot be oblivious to the adverse
circumstances: a woman was done to death within the sanctity of her home,
in pursuance of a conspiracy hatched with deliberation, and some of the
accused carry a long history of involvement in other criminal cases. These
aggravating features rule out any leniency that would belittle the loss suffered.
We also ponder whether the true measure of a sentence lies in how swiftly it
ends a life or in how long it compels a person to live with what he has done.
A sentence that gives every morning for decades to reflect and repent is no
mean sentence. While a family has lost one of its own, the law need not
extinguish the lives of the convicts to vindicate that loss; it must instead ensure
that they spend the prime of their lives in confinement, answerable for the
crime, with the door of reform left ajar, but not of release. Balancing the two,
we are of the considered view that the ends of justice would be met by
commuting the death sentence to imprisonment for a minimum period of 30
years without remission.
309 Accordingly, while CRA-AD-132-2026 titled as ‘Dr. Atul Arora
Vs. State of Haryana and another’ is dismissed; CRA-D-40-2026, titled as
‘Poonam and another Vs. State of Haryana’, is partly allowed and the accused
Poonam is acquitted of the charges against her, while conviction and sentence
of the co-accused are modified along with commuting the death penalty.
RAJ KUMAR ARORA
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MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
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Similarly, Appeal Nos.CRA-D-75-2026 and CRA-D-109-2026 are also partly
allowed and conviction of accused-appellants and their sentences are
modified/commuted. MRC-1-2026 ‘State of Haryana Vs. Sunil Kumar and
others’ is disposed of in terms as above. The sentence awarded to convicts-
accused Sunil, Manish, Vikram @ Vicky and Vikramjeet @ Bittu are
tabulated hereinafter below: -
Sentence in
Default of
Payment of
Fine
Sr.
Under Section Punishment Fine
No.
All the convicts are
sentenced to undergo
Rigorous
Imprisonment for
life.
Simple
Imprisonment
for six months
Section 120-B
1 of the Indian
Penal Code
Rs.
10,000/-
each
Section 323
read with
Section 120-B
of the Indian
Penal Code
All the convicts are
sentenced to undergo
Rigorous
Imprisonment for one
year.
Simple
Imprisonment
for fifteen
days
Rs. 1,000/-
each
2
Section 394
read with
Section 120-B
of the Indian
Penal Code
All the convicts are
sentenced to undergo
Rigorous
Imprisonment for
life.
Rs.
10,000/-
each
Simple
Imprisonment
for six months
3
Section 392
read with
Section 120-B
of the Indian
Penal Code
All the convicts are
sentenced to undergo
Rigorous
Imprisonment for
seven years .
Rs.
10,000/-
each
Simple
Imprisonment
for six months
4
Section 201
5 read with
Section 120-B
All the convicts are
sentenced to undergo
Rigorous
Rs.
10,000/-
each
Simple
Imprisonment
for six months
RAJ KUMAR ARORA
2026.10.28 18:06
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integrity of this document
MRC-1-2026 (O&M) with
CRA-D-40-2026 (O&M)
CRA-D-75-2026 (O&M)
CRA-D-109-2026 (O&M) and
CRA-AD-132-2026 (O&M)
-267-
Sentence in
Default of
Payment of
Fine
Sr.
Under Section Punishment Fine
No.
of the Indian
Penal Code
Imprisonment for
three years.
Convicts namely (1)
Sunil Kumar, (2)
Manish Kumar, (3)
Vikramjeet @ Bittu,
(4) Vikram @ Vicky
are sentenced to
undergo Rigorous
Imprisonment for
seven years .
Section 452 of
Indian Penal
Code read with
Section 120-B
of Indian Penal
Code
Rs.
10,000/-
each
Simple
Imprisonment
for six months
6
Section 302 of
Indian Penal
Code read with
Section 120-B
of Indian Penal
Code
Sentenced to
imprisonment for a
minimum period of
30 years without
remission.
Simple
imprisonment
Rs.25,000/-
each
7
for one year
310 All the sentences shall run concurrently.
311 A photocopy of the order be placed on the connected file(s).
(VINOD S. BHARDWAJ)
JUDGE
October 28, 2026. (RAVINDER MALIK)
raj arora JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
RAJ KUMAR ARORA
2026.10.28 18:06
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