Suresh vs State Of Delhi
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 20.04.2026
Pronounced on: 14.05.2026
+ CRL.A. 341/2003
+ CRL.A. 347/2003
+ CRL.A. 396/2003
+ CRL.A. 508/2003
NASIR AHMAD .....Appellant
Through: Ms.Divya Pulani, Mr.Vishal
Choudhary, Mr.Pradeep Kumar,
Mr.Rajvardhan Singh and
Mr.Lakshay Magan, Advs.
JAGJIT SINGH .....Appellant
Through: Mr.N. Hariharan, Sr. Adv. with
Mr.R. K. Thakur, Mr.Rishabh
Kumar Thakur, Ms.Shambhavi
Thakur, Ms.Aditi and
Ms.Anjali Agarwal, Advs.
MOHAMMAD NADIR KHAN .....Appellant
Through: Ms.Vrinda Grover, Ms.Devika
Tulsiani and Mr.Soutik
Banerjee, Advs.
SURESH .....Appellant
Through: Mr.Manoj Kumar Khanna,
Mr.Aryan Kumar, Ms.Alpna
and Ms.Nasrin Fatma, Advs.
versus
STATE OF DELHI .....Respondent
Through: Mr.Aman Usman, APP with
Mr.Manvendra Yadav, Adv.
with Insp. Lalit Kumar, PS
Hauz Khas
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By:REYMON VASHIST
Signing Date:14.05.2026
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CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
J U D G M E N T
NAVIN CHAWLA, J.
1. These appeals have been preferred by the appellants assailing
the judgment dated 01.05.2003 passed by the learned Additional
Sessions Judge, New Delhi (hereinafter referred to as ‘Trial Court’) in
S.C. No. 205/1997 (arising out of FIR No. 569/96 registered at Police
Station Hauz Khas, New Delhi), vide which the appellants were
convicted for offences punishable under Section 148 and Sections
302, 307 and 149 of the Indian Penal Code, 1860 (‘IPC’).
2. The appellants further challenge the Order dated 05.05.2003
passed by the learned Trial Court, whereby they were sentenced to
undergo:
a. imprisonment for life with fine of Rs.500/- each, with simple
imprisonment for three months in default, for offences under
Sections 302 and 149 of the IPC.
b. rigorous imprisonment for three years with fine of Rs.
1,000/- each, with simple imprisonment for three months in
default, for offences under Sections 307 and 149 of the IPC.
It was further directed that any period during which the
convicts remained in custody during the inquiry,
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investigation and trial would be set off against the sentences
awarded under Sections 307 and 149 of the IPC.
CASE OF THE PROSECUTION
3. Briefly stated, it is the case of the prosecution that:
a. The deceased-Inder Singh along with his three friends-
PW-1/ Vikram , PW-2/ Gianender, and PW-11/ Jeet
Ram@Jeetu had gone to Uphaar Cinema to watch a night
show on 13.08.1996.
b. They entered the cinema hall and occupied seats in the
balcony. After the show began, three boys picked a fight
with the deceased and his friends. Torchman
PW-6 /Dayanand removed these three boys out of the hall.
c. Once the show ended, the deceased along with his three
friends went to the basement of the cinema hall to collect
their motorcycles. The three boys who had picked a quarrel
with the deceased and his friends also reached there along
with their associates. They were armed with iron rods and
wooden sticks. They started beating the deceased with fists
and kick blows and with iron rods and wooden sticks,
whereafter they fled.
d. PW-1/ Vikram and PW-2/ Gianender removed the deceased to
the hospital. On the basis of the statement of PW-1/ Vikram ,
an FIR under Sections 147,148,149,307,308 and 323 of the
IPC was registered against unknown persons.
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e. Unfortunately, the deceased was unfit to make a statement
and died the following day, that is, on 14.08.1996.
Accordingly, Section 302 of the IPC was added.
f. The cause of death in the postmortem report (exhibited as
EX.PW-20/A) was opined to be a head injury produced by
application of blunt force and the same was opined to be
sufficient in the ordinary course of nature to cause death. It
was also opined that there were multiple fractures on the
skull of the deceased.
g. Investigation continued, however, no clue of the assailants
could be found.
h. On 24.04.1997, on the basis of secret information, accused
person Suresh Kumar @ Chuchu (appellant in Crl.A.
508/2003) was arrested. On the basis of his disclosure,
accused Jagbir Singh @ Dhilla (who unfortunately died
later), Mohd. Nadir Khan (appellant in Crl.A. 396/2003) and
Nasir Ahmed (appellant in Crl.A. 341/2003) were also
arrested by the police on the same day. They all allegedly
disclosed their involvement in the said offence.
i. Thereafter, on 20.05.1997, accused Devinder (who has been
acquitted by the learned Trial Court by the impugned
judgment dated 01.05.2003), Dhirender @ Munna (who was
discharged by the learned Trial Court), Nand Kishore @
Nandu (who has unfortunately died later), Ajay @ Pappu
(who was discharged by the learned Trial Court), Rakesh @
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Raka (who has been acquitted by the learned Trial Court
vide its impugned judgment dated 01.05.2003), Jagjit Singh
(appellant in Crl.A. 347/2003) and Narender @ Kittu (who
has unfortunately died later), surrendered before the learned
Metropolitan Magistrate.
j. On 23.05.1997, accused Harender Kumar @ Pandit (who has
been acquitted by the learned Trial Court vide its impugned
judgment dated 01.05.2003) also surrendered before the said
Court.
k. During the course of investigation it transpired that it was
accused Devinder, Jagjit Singh and Nand Kishore @ Nandu
who had quarrelled with the deceased and his friends in the
balcony of the Uphaar Cinema, whereafter accused Devinder
had gone to village Lado Sarai to bring the other accused
persons in a bus to the scene of the crime, that is, the
basement of the cinema hall.
l. After the show ended and when the deceased along with his
friends came to the basement of the Cinema Hall, all the
accused persons allegedly attacked them with angle iron rods
and wooden dandas.
m. Accused Devinder and Rakesh @ Raka had sustained
injuries on their head and hands in the fight with the
deceased and his friends and got treatment from Partap
Goswami Clinic, Lado Sarai on the night of 14.08.1996
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n. The prosecution claimed that accused Jagjit Singh and Nand
Kishore @ Nandu were identified by PW-1/ Vikram and PW-
2/ Gianender during the course of their Test Identification
Parade (TIP), while accused Narender @ Kittu, Suresh
Kumar @ Chuchu, Jagbir Singh @ Dhilla, Mohd. Nadir
Khan and Nasir Ahmed refused to participate in the TIP.
PROCEEDINGS BEFORE THE LEARNED TRIAL COURT
4. After the completion of investigation, the police filed a challan
against twelve accused persons namely, Suresh Kumar @ Chuchu,
Jagbir Singh, Mohd. Nadir Khan, Nasir Ahmed, Nand Kishore @
Nandu, Jagjit Singh, Narender @ Kittu, Ajay @ Pappu, Rakesh @
Raka, Dhirender @ Munna, Devinder, and Harender Kumar @Pandit,
for offences under Sections 147,148,149,307,308,302 and 323 of the
IPC read with Section 34 of the IPC.
5. Accused persons Ajay @ Pappu and Dhirender @ Munna were
discharged by the learned Trial Court vide its order dated 05.12.1997
for lack of connecting evidence inasmuch as neither were they
identified by the witnesses in the TIP nor was there any other evidence
connecting them to the offence.
6. Charges were framed against the remaining ten accused
persons. The same are reproduced hereinbelow:
“On 14.8.96 at about 12.10 am at the
basement of Uphaar Cinema you all
constituted an unlawful assembly to commit an
offence and you all were also armed with
deadly weapons and committed rioting there in
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prosecution of the common object of the said
assembly and thereby committed an offence
punishable u/s 147/148/149 IPC and within
the cognigesance of this court.
Secondly on the said date time and place you
all in furtherance in their common intention
and in prosecution of the common object of the
abovesaid unlawful assembly committed
murder of Inder Singh with hocky, iron rods
etc and thereby committed an offence
punishable u/s 3-2 r/w section 34 and 149 IPC
and within the cognisance of this court.
Thirdly on the abovesaid date time and place
you all caused hurt to Vikeram and Gyanander
with hockies and iron rods with such intention
or knowledge and under such circumstances
that if by that act you had all caused death of
Vikeram and Gyanander you would have been
guilty of murder and thereby committed an
offence punishable u/s 307 IPC read with
Section 34 IPC and with the cognisance of this
court.”
7. They pleaded not guilty and claimed trial.
8. In order to prove its case, the prosecution examined twenty one
witnesses including the purported eye-witnesses/victims PW-
1/ Vikram , PW-2/ Gianender and PW-11/ Jeet Ram @ Jeetu , the
torchman, police officials, and other formal witnesses.
9. Thereafter, the statements of the accused persons were recorded
under Section 313 of the Code of Criminal Procedure, 1973
(hereinafter referred to as ‘Cr.P.C.’). They all denied the incriminating
evidence against them and claimed false implication. They also
examined 2 defence witnesses, including accused-Suresh Kumar
@Chuchu, himself, as well as, DW-2/ Raj Pal, who was the neighbour
of accused-Suresh Kumar @Chuchu.
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Signing Date:14.05.2026
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IMPUGNED ORDERS OF CONVICTION AND ON SENTENCE
10. The learned Trial Court, in the impugned order of conviction,
while holding seven accused persons, namely, Suresh Kumar @
Chuchu, Jagbir Singh @ Dhilla, Mohd. Nadir Khan, Nasir Ahmed,
Narender @ Kittu, Jagjit Singh and Nand Kishore @ Nandu guilty of
the charges, acquitted three accused persons namely, Devinder,
Rakesh @ Raka and Harender Kumar @ Pandit.
11. In coming to the said conclusion, the learned Trial Court
primarily relied on the testimonies of PW-1/ Vikram , PW-2/ Gianender
and PW-11/ Jeet Ram@Jeetu as also the TIP which was carried out
before the learned Metropolitan Magistrate (M.M.). The learned Trial
Court categorised the accused persons in the following categories:
“Accused have been categorised by me in
three categorise viz.
(1) who have been correctly identified in the
TIP proceedings conducted by ld M.M.;
(2) accused persons who had refused to join
the TIP and
(3) accused persons who could not be
identified in the judicial TIP.”
12. Inasmuch as the first category is concerned, it was opined that
accused persons Jagjit Singh and Nand Kishore @ Nandu fell in the
same. They had been identified by PW-1/ Vikram during the course of
the TIP as also in Court. Hence, it was held to be proved beyond
reasonable doubt that they had participated in the incident.
13. As regards the second category of accused persons, Narender @
Kittu, Suresh Kumar @ Chuchu, Jagbir Singh @ Dhilla, Mohd. Nadir
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Khan and Nasir Ahmed were identified as falling in the same. It was
opined that although the said accused persons had refused to join the
TIP on account of them allegedly being shown to the witnesses at the
police station, no complaint to this effect had been made to the learned
Metropolitan Magistrate at a prior stage. It was held that this story of
them or their photographs having been shown to the witnesses was not
borne out of the record and was an afterthought. It was highlighted
that the said accused persons were also identified by PW-1/ Vikram in
the Court. Reliance was also placed on the testimony of PW-11/ Jeet
Ram@Jeetu who stated that he was called to the police station 15 days
after the incident, at which point none of the accused persons had been
arrested. Hence, it was opined that the participation of accused
persons Narender @ Kittu, Suresh Kumar @ Chuchu, Jagbir Singh @
Dhilla, Mohd. Nadir Khan and Nasir Ahmed in the incident stood
proved.
14. With regard to the third category of accused persons, it was
opined that Devinder, Rakesh @ Raka and Harender Kumar @ Pandit
were not identified in the TIP by the eye-witnesses. Inasmuch as the
alleged injuries sustained by Devinder and Rakesh @ Raka were
concerned, it was opined that the evidence on record was not enough
to implicate them in the incident. Accordingly, these accused persons
were acquitted.
15. Thereafter, the order on sentence dated 05.05.2003 was passed,
imposing the sentences as have been noted hereinabove.
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Signing Date:14.05.2026
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16. During the pendency of the appeals, the appeals of Narender @
Kittu and Nand Kishore @ Nandu stood abated vide order dated
20.11.2025. Similarly, the appeal filed by accused Jagbir Singh @
Dhilla also stood abated vide order dated 01.04.2014. Hence, before us
are the appeals filed by Nasir Ahmed, Jagjit Singh, Mohd. Nadir Khan
and Suresh Kumar @ Chuchu.
SUBMISSIONS MADE BY THE LEARNED SENIOR COUNSEL
FOR THE APPELLANT (JAGJIT SINGH)
17. Mr. Hariharan, the learned senior counsel for the Appellant-
Jagjit Singh, submits that the alleged incident in question can be
divided in two parts; the first being the quarrel in the cinema hall; and
the second being the fight in the basement of cinema hall, once the
movie ended.
18. He submits that as far as the first part of the incident is
concerned, it is the case of the prosecution that the torchman in the
cinema, that is, PW-6/ Dayanand intervened and removed the three
accused persons from the hall. PW-6/ Dayanand in his testimony
completely contradicts the said fact and states that no quarrel had
taken place inside the cinema hall on the day of the incident. Hence,
the sole public witness of the first part of the incident has not
supported the case of the prosecution.
19. As far as the second part of the incident is concerned, the
learned senior counsel submits that the same is alleged to have taken
place in the basement parking area of the cinema hall after the movie
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ended, where a large number of people who watched the show would
have gone to collect their vehicles. This, he submits, is corroborated
by the testimonies of PW-1/ Vikram , PW-2/ Gianender and PW-11/ Jeet
Ram @ Jeetu . In such circumstances, clear attribution of roles
becomes crucial which is lacking in the present case. He submits that
despite the presence of multiple public witnesses, both, inside the
cinema hall as well as in the basement, barring PW-6/ Dayanand , no
other public witness has been brought forth by the prosecution.
20. Placing reliance on the testimony of PW-9/ Ct. Virpal Singh, he
highlights that it is the case of the prosecution that the police reached
the spot after the incident at around 12:10am. He submits that
thereafter queries were made and eventually the statement of PW-
1/ Vikram was recorded. He submits that pertinently, PW-1/ Vikram did
not give any description of the assailants at the time of first report. He
submits that it is also the prosecution’s case that PW-1/ Vikram had
accompanied the police to the spot and assisted in the recovery of one
phatta which had allegedly been used by the accused persons during
the course of incident. He submits that this fact, however, is
contradicted by the own testimony of PW-1/ Vikram who has stated
that no recovery was made at his instance.
21. He further submits that the genesis of the prosecution’s case is a
mystery as it is to be based on ‘secret information’ that the accused
persons were identified. He submits that there is not even a DD entry
to this effect. He places reliance on the judgment dated 07.02.2024 of
the Supreme Court in Special Leave to Appeal (Crl.) No.6652/2014,
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titled Surender Singh v. The State of Haryana, to submit that in cases
involving the receipt of secret tip-offs, it is important to examine the
informants.
22. He further challenges the TIP, contending that the Appellant-
Jagjit Singh was shown to the witnesses in police custody at a prior
point of time. To this effect, he places reliance on the testimonies of
PW-1/ Vikram , PW-2/ Gianender and PW-11/ Jeet Ram@Jeetu . He
submits that hence, the same cannot be admitted under Section 9 of
the Indian Evidence Act, 1872 (IEA). He submits that the statement of
PW-1/ Vikram and PW-2/ Gianender to this effect has been wrongly
discarded by the learned Trial Court on basis of a vague statement of
PW-11/ Jeet Ram @ Jeetu .
23. He contends that the present case is one where the prosecution
has failed to establish any motive, has led no cogent evidence as to
why the Appellant-Jagjit Singh was arrested or how he was part of the
unlawful assembly. He further states that the Appellant-Jagjit Singh
was shown to the witnesses prior to TIP, thereby vitiating its
evidentiary value, and that the alleged weapon recovery at the instance
of the witness is also of no consequence.
SUBMISSIONS MADE BY THE LEARNED COUNSELS FOR
THE APPELLANT – NASIR AHMED AND SURESH KUMAR @
CHUCHU
24. The learned counsels for the Appellants- Nasir Ahmed and
Suresh Kumar @ Chuchu adopt the submissions made by the learned
senior counsel for Appellant-Jagjit Singh.
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25. They further submit that inasmuch as these appellants are
concerned, they were also shown to the witnesses at the police station
prior to the TIP. They contend that owing to the same they refused to
participate in the TIP and were placed in the second category of
accused persons by the learned Trial Court. They submit that it is not
the case of the prosecution that the witnesses were shown some other
suspects whom they did not identify but identified the appellants.
26. They submit that the testimonies of the alleged eye-witnesses
are riddled with contradictions.
27. They contend that there was a delay of around 8-9 months in the
arrest of the appellants and no recovery has been made on the basis of
their disclosure statements.
28. They contend that hence, there is no connection of appellants
with the incident in question and they deserve to be acquitted.
SUBMISSIONS MADE BY THE LEARNED COUNSEL FOR THE
APPELLANT-MOHD. NADIR KHAN
29. Ms. Vrinda Grover, the learned counsel for Appellant- Mohd.
Nadir Khan adopts the submissions made by the learned senior
counsel for the Appellant-Jagjit Singh.
30. She further submits that the prosecution’s case rests on a
perfunctory investigation, wherein even basic circumstances, such as,
the movie playing in the cinema hall on the date of the incident, the
concerned movie tickets and the relevant parking slips, have not been
brought to light.
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31. She submits that the alleged common objective of committing
murder is inherently improbable. Placing reliance on the judgments of
the Supreme Court in Hawa Singh & Ors. v. State of Haryana ,
(1993) Supp (2) SCC 527 and Naresh v. State of Haryana , (2023) 10
SCC 134, she submits that if motive is not proved, then the
prosecution fails to prove the common object.
32. She submits that there is no explanation as to why the deceased
was targeted. All the three eye-witnesses, that is, PW-1/ Vikram , PW-
2/ Gianender and PW-11/ Jeet Ram@Jeetu have deposed that when the
unlawful assembly was giving beatings, no one intervened and the
accused persons left on their own. Had a common object of the
unlawful assembly been to kill the four persons to avenge the dispute
in the balcony, it belies logic why the unlawful assembly would leave
the spot without inflicting more injuries on PW-1/ Vikram , PW-
2/ Gianender and PW-11/ Jeet Ram@Jeetu .
33. She submits that in fact, as per the MLC’s of PW-1/ Vikram
(EX.PW-20/C) and of PW-2/ Gianender (EX.PW-21/D), they
sustained only simple injuries, whereas PW-11/ Jeet Ram@Jeetu was
not even required to be medically examined.
34. She further highlights that none of the witnesses have
mentioned that the Appellant-Mohd. Nadir Khan inflicted any injury
upon them, nor has any witness stated that he specifically was
carrying any weapon. She submits that the disclosure statement of the
Appellant-Mohd. Nadir Khan is inadmissible and cannot be resorted
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to as evidence of common intention. She submits that no new
discovery of fact or material has resulted from the same.
35. She submits that the accused persons central to the
prosecution’s story have been acquitted by the learned Trial Court. As
per the case of the prosecution, it was accused Devinder, Nand
Kishore @ Nandu and Jagjit Singh who initially quarrelled with the
deceased in the balcony of Uphaar Cinema, and it was Devinder who
went to Lado Sarai to bring his associates and form the unlawful
assembly. However, Devinder has been acquitted by the learned Trial
Court on account of his not being identified in the TIP proceedings.
Further, it was the case of the prosecution that accused Harender
Kumar @ Pandit had driven the bus which brought members of the
unlawful assembly to the spot. He again has been acquitted. She
submits that without these two persons, the entire story of the
prosecution collapses as in such a circumstance, the alleged unlawful
assembly itself could not have come into being. She submits that
when the grain and chaff are inextricably interlinked and cannot be
separated, the benefit of doubt must extend to all accused. Reliance in
this regard, is placed on the judgments of the Supreme Court in Mohd.
Iqbal M. Shaikh & Ors. v. State of Maharashtra , (1998) 4 SCC 494
and Zainul v. The State of Bihar , 2025 INSC 1192.
36. She submits that there is no evidentiary basis of arrest of the
Appellant-Mohd. Nadir Khan. It is solely based on the disclosure
statement made by the appellant-Suresh Kumar @ Chuchu who was
arrested on the basis of alleged secret information more than seven
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months after the date of the incident. There is no official record or DD
entry regarding this alleged secret information. She places reliance on
the judgments of the Supreme Court in Manoj Kumar Soni v. State of
MP , 2023 SCC OnLine SC 984 and Nagamma @ Nagarathna & Ors.
v. The State of Karnataka , 2025 INSC 1135 to buttress her
submission.
37. She further states that the identification of the Appellant-Mohd.
Nadir Khan is highly improbable inasmuch as all three eye-witnesses
in their testimony regarding the quarrel that took place inside the
cinema hall, state that the theatre lights were not turned on during the
same. They further state that they were attacked in the basement at
midnight. She highlights that the site plan of the basement (Ex.PW-
16/B) does not mark any source of light.
38. With regard to the incident itself, she submits that the nature of
beating described by PW-1/ Vikram and PW-2/ Gianender, further
solidify her case. PW-1/ Vikram states that he was hit on head by one
person after which he sat on the floor looking at the ground. PW-
2/ Gianender also states that he covered his head with his hands after
being hit. They testified that they could not identify who gave the
beatings. Furthermore, all three eye-witnesses have identified different
people as being part of the first quarrel, which further deals a fatal
blow to the case of the prosecution. She highlights that as none of the
witnesses in their Section 161 Cr.P.C. statements gave any description
or identifying features of the assailants, their identification of the
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Appellant-Mohd. Nadir Khan in Court is, therefore, unworthy of any
credence.
39. She submits that the Appellant-Mohd. Nadir Khan was shown
to the witnesses prior to the TIP which is why he refused to participate
in the same. She submits that the dock identification of the Appellant
by PW-1 /Vikram is not reliable as the learned Trial Court cannot
cherry pick which part of PW-1/ Vikram’s testimony qua the appellant
is believable. Reliance is placed on the judgments of the Supreme
Court in Shaikh Umar Ahmed Shaikh and Anr. v. State of
Maharashtra, (1998) 5 SCC 103, Gireesan Nair & Ors. v. State of
Kerala , (2023) 1 SCC 180, Kamal v. State (NCT of Delhi), 2023 SCC
OnLine SC 933, Kattavellai @ Devakar v. State of Tamil Nadu , 2025
SCC OnLine SC 1439 and Raj Kumar @ Bheema v. State of NCT of
Delhi , 2025 INSC 1322.
40. She submits that the learned Trial Court has arbitrarily
disbelieved the testimonies of PW-1/ Vikram and PW-2/ Gianender in
so far as they testified to having seen the Appellant-Mohd. Nadir
Khan prior to the TIP, while believing the testimony of PW-11/ Jeet
Ram@Jeetu to conclude that the Appellant-Mohd. Nadir Khan was
not shown to the witnesses prior to the TIP. This conclusion was
founded on PW-11/ Jeet Ram@Jeetu’s statement that he was called to
the police station 15 days after the incident, that is, much before any
of the accused were arrested. She contends that such reliance is
misplaced, particularly when PW-11/ Jeet Ram@Jeetu’s testimony is
at variance with that of the other two ocular witnesses. His criminal
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record is also questionable; he was not present for the TIP; and he
neither accompanied the deceased to the hospital nor sustained any
injury, but instead disappeared into the crowd immediately after the
incident took place. She places reliance on the judgments of the
Supreme Court in Arvind Kumar & Ors. v. State of Rajasthan, (2022)
16 SCC 732, Balaram v. State of MP , 2023 SCC OnLine SC 1468
and Mehatar v. State of Maharashtra , 2025 SCC OnLine SC 319, to
submit that, as a rule of caution, the Court must reject evidence of a
wholly unreliable witness.
41. She submits that the formula adopted by the learned Trial Court
in categorising the accused persons in three groups, and solely on the
result of the TIP, handing out conviction and acquittals, is alien to the
settled principles of criminal jurisprudence.
42. She submits that the allegation that the accused persons were
armed with weapons such as swords, as testified by PW-11/ Jeet
Ram@ Jeetu, also does not stand corroborated. The alleged recovery
from the spot is limited to three wooden phattas and one iron angle.
Additionally, these objects have also not been linked to the crime. She
highlights that the presence of such items in a basement is not
unusual. The blood found on the objects was not sent for DNA
profiling in order to confirm whether it belonged to the deceased. The
FSL reports (EX.PX and EX.PY) are inconclusive insofar as they only
test for blood type, and that the mere detection of group ‘A’ blood
type, does not lead to the irresistible conclusion that the blood
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belonged to the deceased. Furthermore, no fingerprints were lifted
from the said objects in order to connect them with the accused.
43. She submits that there is no material or independent
corroboration of the prosecution’s case. She places reliance on the
testimony of PW-16/ SI Vinay Kumar to highlight that upon reaching
the spot, he could not get any information from public witnesses as to
between whom the quarrel took place and why.
44. She submits that, therefore, the Appellant-Mohd. Nadir Khan
deserves to be acquitted.
SUBMISSIONS MADE BY THE LEARNED ADDITIONAL
PUBLIC PROSECUTOR
45. Mr. Aman Usman, the learned Additional Public Prosecutor,
submits that there are no infirmities in the impugned orders passed by
the learned Trial Court.
46. He submits that there is enough evidence to establish the guilt
of the appellants. He submits that, therefore, the conviction recorded
by the learned Trial Court is well-founded, based on a sound
appreciation of evidence and settled principles of law, and calls for no
interference by this Court.
47. He highlights that PW-11/ Jeet Ram @Jeetu has testified to the
fact that the witnesses were called to the police station 15 days after
the incident took place, at which point none of the accused persons
had been arrested.
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48. He submits that PW-1/ Vikram and PW-2/ Gianender have
correctly identified the appellants as the assailants and as being part of
the unlawful assembly that caused injuries to them and also the
deceased. He submits that their testimony is sufficient to convict the
appellants.
49. He submits that the appellants Nasir Ahmed, Mohd. Nadir Khan
and Suresh Kumar @ Chuchu had denied taking part in the TIP on
false pretext of being shown to the witnesses. He submits that the
learned Trial Court had minutely examined this stand of the appellants
and has rightly rejected it and thereafter drawn an adverse inference
against these appellants. He submits that the said approach of the
learned Trial Court cannot be faulted.
ANALYSIS AND FINDINGS
50. We have considered the submissions made by the learned
counsels for the parties and perused the record.
51. The case of the prosecution rests on the testimonies of PW-
1/ Vikram, PW-2/ Gianender and PW-11/ Jeet Ram @Jeetu , the TIP, as
also on other circumstantial evidences such as the alleged recoveries
made during the course of the investigation and the common motive
of the unlawful assembly.
52. The incident in question can be divided in two parts; the first
being the quarrel in the cinema hall; and the second being the fight in
the basement of cinema hall once the movie ended.
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53. The Supreme Court in Zainul (supra) explained the rule of
prudence to be followed in convicting members of an unlawful
assembly, and further opined that in cases where the prosecution’s
case against the accused persons is so inextricably mixed up that it is
not possible to sever one from the other, the benefit of doubt must
extend to all accused persons. We quote from the said judgment as
under:
“45. Albeit the essentials of Section 149 of
the IPC are oft-repeated and firmly
established, they are reiterated herein for the
sake of convenience:
i. There must be an assembly of five or more
persons;
ii. An offence must be committed by any
member of that unlawful assembly;
iii. The offence committed must be in order to
attain the common object of that assembly, or
iv. The members of the assembly must have the
knowledge that the particular offence is likely
to be committed in order to attain the common
object.
xxx
52 . …
a. Innocent Bystander v. Member of an
Unlawful Assembly
53. Once the two broad essentials of Section
149 are fulfilled, i.e., (1) an offence is
committed by any member of an unlawful
assembly in prosecution of the common object,
or (2) if the members of the assembly knew
that the said offence is likely to be committed
in prosecution of the said common object,
every person who at the at the time of
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commission of the offence was a member of the
assembly is to be held guilty of that offence.
54. At the same time, mere presence at the
scene does not ipso facto render a person a
member of the unlawful assembly, unless it is
established that such an accused also shared
its common object. A mere bystander, to whom
no specific role is attributed, would not fall
within the ambit of Section 149 of the IPC. The
prosecution has to establish, through
reasonably direct or indirect circumstances,
that the accused persons shared a common
object of the unlawful assembly. The test to
determine whether a person is a passive
onlooker or an innocent bystander is the same
as that applied to ascertain the existence of a
common object. The existence of a common
object is to be inferred from the circumstances
of each case, such as:
a. the time and place at which the assembly
was formed;
b. the conduct and behaviour of its members at
or near the scene of the offence;
c. the collective conduct of the assembly, as
distinct from that of individual members;
d. the motive underlying the crime;
e. the manner in which the occurrence
unfolded;
f. the nature of the weapons carried and used;
g. the nature, extent, and number of the
injuries inflicted, and other relevant
considerations.
xxx
61. The law on the point can be summarized to
the effect that where there are general
allegations against a large number of persons,
the court must remain very careful before
convicting all of them on vague or general
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evidence. Therefore, the courts ought to look
for some cogent and credible material that
lends assurance. It is safe to convict only those
whose presence is not only consistently
established from the stage of FIR, but also to
whom overt acts are attributed which are in
furtherance of the common object of the
unlawful assembly.
xxx
78. It needs to be emphasized that injuries on
the eyewitnesses, at the best, may ensure their
presence at the scene of occurrence but that is
not enough. Before a criminal court even
accepts the testimony of an injured eyewitness,
it has to be satisfied that he is a truthful
witness and had no reason to falsely implicate
the accused persons. We have extensively
explained or rather discussed the various
infirmities in the oral evidence of all the
eyewitness. These eyewitnesses in their police
statements recorded under Section 161 of the
Cr.P.C. have gone to the extent of implicating
even those persons who were ultimately not
arrayed as an accused in the chargesheet
including those who ultimately came to be
acquitted by the trial court.
79 . In cases like the one in hand, the courts
must make an attempt to separate grain from
the chaff, the truth from falsehood, yet this
could only be possible when the truth is
separate from the falsehood.
80. In the aforesaid context, we may refer to
the decision of this Court in Balaka Singh &
Ors. v. State of Punjab, reported in (1975) 4
SCC 511. In paragraph 8, this Court observed
thus:-
“8. The suggestion of the appellants is that
they were falsely implicated because the
prosecution could not succeed in convicting
Balaka Singh for the murder of Gurnam Singh
in the previous murder case. It was to wreak
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fresh vengeance on the accused that they had
been falsely implicated in the present case. It
is true that there are as many as eight
witnesses who are alleged to have seen the
occurrence and they have given a parrot-like
version of the entire case regarding the assault
on the deceased by the various accused
persons. All these witnesses have with one
voice and with complete unanimity implicated
even the four accused persons, acquitted by
the High Court, equally with the appellants
making absolutely no distinction between one
and the other. A perusal of the evidence of the
prosecution witnesses would show that the
prosecution case against the appellants and
the four accused is so inextricably mixed up
that it is not possible to sever one from the
other. It is true that, as laid down by this Court
in Zwinglee Ariel v. State of M.P. [(1952) 2
SCC 560 : AIR 1954 SC 15 : 1954 Cri LJ 230]
and other cases which have followed that case,
the Court must make an attempt to separate
grain from the chaff, the truth from the
falsehood, yet this could only be possible when
the truth is separable from the falsehood.
Where the grain cannot be separated from the
chaff because the grain and the chaff are so
inextricably mixed up that in the process of
separation the Court would have to
reconstruct an absolutely new case for the
prosecution by divorcing the essential details
presented by the prosecution completely from
the context and the background against which
they are made, then this principle will not
apply.[...]”
(emphasis supplied) ”
54. Applying the aforementioned principles to the facts of the
present case, we find that in so far as the first part of the incident is
concerned, the torchman, that is, PW-6 /Dayanand, who was also the
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sole public witness, has turned hostile and denied the occurrence of
any quarrel inside the cinema hall. This denial is significant as the first
part of the incident forms the basis of the prosecution’s theory on
motive.
55. Furthermore, we find that PW-2/ Gianender in his testimony
states that a policeman assisted the torchman in escorting the
miscreants out of the hall. Interestingly, no such officer has been
examined as a witness.
56. Additionally, while it is the case of the prosecution that it was
accused Devinder, Jagjit Singh and Nand Kishore @ Nandu who had
the initial quarrel with the deceased and his friends, this fact is not
corroborated by the testimonies of the eye-witnesses. While PW-
1/ Vikram identifies accused Devinder and Jagjit Singh, PW-
2/ Gianender identifies accused Mohd. Nadir Khan, Nasir Ahmed and
Rakesh @ Raka, and PW-11/ Jeet Ram @Jeetu, on the other hand,
identifies accused Jagbir Singh, Nand Kishore @ Nandu and Nasir
Ahmed, as the persons who had fought with them in the balcony of the
cinema hall. This, itself casts a doubt on the identification of the
persons who had fought with the deceased and the witnesses in the
cinema hall over the seats, thereby creating a doubt on the very
inception of the incident.
57. Furthermore, the deceased and his friends had admittedly gone
to watch a night show in Uphaar Cinema and it is undisputed that
when the quarrel took place, the hall was dark. This is admitted by the
PW-11/ Jeet Ram @Jeetu. The identification of the accused by them is
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therefore, doubtful, especially when taken in conjunction with their
admission that they had not described the accused in their statements
given to the police.
58. Coming to the second part of the incident, we would, at the
outset, note that as per the prosecution, it was accused Devinder, who,
after the quarrel, went to Lado Sarai to bring his associates. It was
accused Harender who then drove a bus and brought members of the
unlawful assembly to the spot. However, these accused persons have
been acquitted by the learned Trial Court. This is almost fatal to the
case of the prosecution and the benefit of doubt must be extended to
all accused. Even though the case of the prosecution is based on the
testimony of the alleged injured and the eye-witnesses, the
circumstances must be proved beyond reasonable doubt. The chain of
such circumstances must not be broken and should be consistent with
the case of the prosecution, leading to no other inference but the guilt
of the accused. In the present case, the chain is broken when the
alleged key participants are let off by the learned Trial Court and the
judgment is accepted by the prosecution.
59. This is coupled with the fact that despite the presence of
multiple public witnesses, including the parking attendant and a guard,
in the parking, as testified by the PW-1/ Vikram , PW-2/ Gianender and
PW-11/ Jeet Ram @Jeetu , none of them have been examined. Though
it is not necessary for the prosecution to multiply witnesses, however,
at least the parking attendant and the guard present in the parking
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when the assault took place were material witnesses and their non-
examination casts a shadow of doubt on the case of the prosecution.
60. We now turn our attention to arrest of the accused persons. The
th
incident is of 13-14 August 1996. It was a blind case, with no clue of
the assailants. It is the case of the prosecution that on 24.04.1997,
more than seven months after the date of the incident, PW-13/ K.P.
Malik, who is posted at ICPP Pushp Vihar, P.S. Malviya Nagar,
received secret information regarding the involvement of appellant
Suresh Kumar @ Chuchu in the incident. Curiously, the incident and
the FIR is of Police Station Haus Khas. There is no explanation why
he did not pass on this information to P.S. Haus Khas or involve any
police official from the said Police Station in making the arrest. On
what basis he even suspected that the accused are involved in the
incident in question and who was this secret informant, has remained a
mystery.
61. In Surender Singh (supra), the Supreme Court held that the
non-examination of the secret informant may cast a doubt on the case
of the prosecution. We quote from the judgment as below:
“ 4. We find considerable force in the
submissions made by the learned counsel
appearing for the appellant. The police party
made the search upon receiving a secret
information tip. It is inexplicable as to why the
said persons have not been examined.”
62. The most important, and one may dare say, the only basis on
which the learned Trial Court has proceeded to convict the appellants
herein, is the TIP. As noted hereinabove, the learned Trial Court
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divided the accused into three parts; (i) those who were correctly
identified in the TIP proceedings conducted by the learned M.M.; (ii)
those who refused to join the TIP; and (iii) those who could not be
identified in the TIP. The learned Trial Court has gone on to convict
the accused falling in the first two categories, while acquitting the
accused falling in the third category. Therefore, we say that TIP gains
the most important significance in the case.
63. As far as the law concerning TIP is concerned, it is no longer
res integra that the accused persons must not be shown to the
witnesses prior to the TIP being conducted. In Gireesan Nair (supra),
the Supreme Court opined that in cases where the accused is shown at
a prior point of time, not only is the TIP inadmissible, so is the
identification of the accused persons in Court by the witness. It was
held as under:
“31. 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, television, etc.), the evidence of
the TIP is not admissible as a valid piece of
evidence (Lal Singh v. State of U.P. [Lal
Singh v. State of U.P., (2003) 12 SCC 554 :
2004 SCC (Cri) Supp 489]
and Suryamoorthi v. Govindaswamy [Suryamo
orthi v. Govindaswamy, (1989) 3 SCC 24 :
1989 SCC (Cri) 472] ).
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32. 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 (Sk. Umar Ahmed
Shaikh v. State of Maharashtra [Sk. Umar
Ahmed Shaikh v. State of Maharashtra, (1998)
5 SCC 103 : 1998 SCC (Cri) 1276] ). 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
Chhattisgarh [Chunthuram v. State of
Chhattisgarh, (2020) 10 SCC 733 : (2021) 1
SCC (Cri) 9] and Ramkishan Mithanlal
Sharma v. State of Bombay [Ramkishan
Mithanlal Sharma v. State of Bombay, (1955)
1 SCR 903 : AIR 1955 SC 104] ).”
64. In Shaikh Umar (supra), the Supreme Court held as under:
“8. The Designated Court after having
rejected the evidence of identification parade
on the ground that the suspects were possibly
shown to the witnesses, relied upon the
evidence of identification of the accused in the
Court by the two witnesses and on that
evidence recorded conviction against the
appellants. No doubt, the evidence of
identification parade is not a substantive
evidence, but its utility is for purposes of
corroboration. In other words, it is utilised for
corroboration of the sworn testimony of
witnesses in court as to the identity of the
accused who are strangers to them. The real
and substantive evidence of the identity of the
accused comes when witnesses give statement
in the court, identifying the accused. It is true
that in the present case, PW 2 and PW 11
identified the two accused who are the
appellants before us in the Court. But, the
question arises: what value could be attached
to the evidence of identity of accused by the
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witnesses in the Court when the accused were
possibly shown to the witnesses before the
identification parade in the police station. The
Designated Court has already recorded a
finding that there was strong possibility that
the suspects were shown to the witnesses.
Under such circumstances, when the accused
were already shown to the witnesses, their
identification in the Court by the witnesses
was meaningless. The statement of witnesses
in the Court identifying the accused in the
Court lost all its value and could not be made
the basis for recording conviction against the
accused. The reliance of evidence of
identification of the accused in the Court by
PW 2 and PW 11 by the Designated Court,
was an erroneous way of dealing with the
evidence of identification of the accused in the
Court by the two eyewitnesses and had caused
failure of justice. Since conviction of the
appellants have been recorded by the
Designated Court on wholly unreliable
evidence, the same deserves to be set aside.
We accordingly set aside the judgment and
order dated 14-10-1997 passed by the
Additional Judge, Designated Court for
Greater Bombay in TSC No. 21 of 1994,
convicting the appellants. The appellants are
acquitted of charges. The appeal is allowed.
The appellants are entitled to be released
forthwith. We order accordingly.”
65. In Kattavellai (supra), the Supreme Court held as under:
“38. … Before proceeding to the merits of this
circumstance, let us appreciate the law on this
point.
38.1 No provision of law casts an
obligation upon the investigating authorities to
conduct a test identification parade. If it is
conducted, the provision that governs is
Section 162, Cr. P.C. [See: Munshi Singh
Gautam v. State of
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M.P.; Malkhansingh v. State of
M.P.; Visveswaran v. State; and Ashok
Debbarma v. State of Tripura.]
38.2 The onus to show that the T.I.P. has
been conducted in accordance with law lies on
the prosecution, and only after this burden
stands prima facie discharged, does the
question of considering objections in this
regard arise. [See: Umesh Chandra v. State of
Uttarakhand.]
38.3 It is not a substantive piece of
evidence. Its only purpose is for the
investigating authorities to analyse the
correctness, or lack thereof, of the direction in
which they are steering the investigation.
[See: Hari Nath v. State of U.P.;
and Iqbal v. State of U.P.]
38.4 If the prosecution does not establish,
by examination of witnesses to the T.I.P., and
the Magistrate entrusted therewith, it cannot
be said that it was conducted per law.
[See: Umesh Chandra (supra).]
38.5 There is no hard and fast rule about
delay in conducting T.I.P. being fatal to the
case of the prosecution. In certain cases,
relatively small delay has been considered
fatal yet in others, a delay of as much as 40
days is not fatal. [See: Raja v. State.]
38.6 The prosecution must establish that
prior to the test identification parade being
conducted, the witness had no opportunity to
see the accused. In other words, the accused
must be kept ‘baparda’. [See: Gireesan
Nair v. State of Kerala; and Budhsen v. State
of U.P..]
38.7 If the above has not been ensured, the
evidence of the T.I.P. becomes inadmissible. It
has also been held that if, prior to the T.I.P.
the witness has the opportunity to see even the
photograph of the accused person, such
process becomes inconsequential. [See: Maya
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Kaur Baldevsingh Sardar v. State of
Maharashtra; C. Muniappan v. State of T.N.;
and Sk. Umar Ahmed Shaikh v. State of
Maharashtra.]
38.8 Dock identification by the informant,
even in the absence of T.I.P., can be accepted,
but generally, as a matter of prudence, a
witness's identification of an accused in Court
is sought to be corroborated by the
identification by the former of the latter in
previously conducted identification
proceedings [Rajesh v. State of Haryana;
and Mukesh v. State (NCT of Delhi).]
38.9 Considering the facts and
circumstances of the case at hand, it is open
for the Court to draw an adverse inference
against the witness, should they put forth a
refusal to participate in the identification
proceedings. [See: Mohd. Anwar v. State
(NCT of Delhi).]
39. It is plain as day that the above
principles were not observed in the present
case. We are constrained to record our
astonishment as to how the Courts below
considered the identification proceedings as a
circumstance accruing against the Appellant-
convict. It is undoubted that PW-50, in his
testimony, gives sufficient detail as to the
procedure followed in conducting the T.I.P.,
and on that count, no assault can be made
thereon, however, as the preceding paragraph
establishes, there are other equally crucial
factors. It is a matter of record that PW-5 (the
witness who participated in the T.I.P.), in his
testimony, stated that about a week after he
gave information to the concerned police
th
about the incident of 14 May, 2011, he saw
the Appellant- convict at the said police
station. Most importantly, as has come on
record, the police officials had informed him
about the Appellant-convict committing the
crime. As held by Budhsen (supra) as far back
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as the year 1970,
by Suryamoorthy v. Govindaswamy in
1989, Suresh Chandra Bahri v. State of
Bihar in 1995, Mulla v. State of U.P in 2010,
i.e., well before the judgment of the learned
Trial Court was pronounced, that if the said
witness had the opportunity to see the accused,
in any form, after the incident the subject
matter of testimony, but prior to the
identification proceedings, it would render the
same to be ineffective. Then, in our view, the
courts below committed an error of
elephantine proportions in considering these
proceedings as forming one of the chains of
circumstances against the Appellant-convict.”
66. In Raj Kumar (supra), the Supreme Court held that adverse
inference against accused persons for non-participation in TIP cannot
support the theory of identification, when the authenticity of the
proceedings themselves is under serious doubt. We quote from the
judgment as under:
“65. In this view of the matter, the prosecution
version that efforts made to subject the
accused to TIP failed on account of their
refusal, stands refuted . While the refusal of the
appellant to participate in the TIP may, prima
facie, invite an adverse inference, mere such
inference cannot support the theory of
identification when the very authenticity of the
TIP is under a serious cloud of doubt. When it
stands established from the record that the TIP
attempted by the prosecution was
fundamentally flawed, and a doubt is created
that the identifying witness herself may not
even have been present to participate therein,
the very foundation of the identification
proceedings falls flat to the ground.”
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67. Applying the aforementioned principles to the facts of the
present appeals, we find that the accused persons, namely Suresh
Kumar @ Chuchu, Jagbir Singh @Dhilla, Mohd. Nadir Khan and
Nasir Ahmed were shown to PW-1/ Vikram and PW-2/ Gianender at
the Police Post immediately on their arrest. Resultantly, the
subsequent refusal of Appellants- Nasir Ahmed, Mohd. Nadir Khan,
and Suresh Kumar @ Chuchu, to participate in the TIP, cannot be
accorded evidentiary value. Further, the dock identification of the
accused persons by the eye-witnesses also becomes inadmissible.
68. We find merit in the submission made by the learned counsel
for the Appellant-Mohd. Nadir Khan, that the mere statement of PW-
11/ Jeet Ram @ Jeetu that he was called to the police station 15 days
after the incident, is not enough to disbelieve that the appellants were
not shown to the witnesses prior to the TIP. The statements of PW-
1/ Vikram and PW-2/ Gianender are categorical on the appellants being
shown to them at the Police Post on their arrest. In our view, therefore,
the learned Trial Court has committed a grave error in convicting
these appellants only on the basis of their refusal to take part in the
TIP and on their identification by these witnesses in Court.
69. However, as far as the appellant-Jagjit Singh is concerned, the
above may not hold true inasmuch as he had surrendered in Court later
on 20.05.1997, therefore, was not the one who had been shown to the
witnesses at the Police Post. He had also participated in the TIP,
wherein he was identified by PW-1/ Vikram . At the same time, in our
opinion, such identification would not be sufficient to convict the
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appellant-Jagjit Singh. In this regard, as we have noted hereinabove,
PW-2/ Gianender had not identified appellant-Jagjit Singh in the TIP,
though it is the case of the prosecution that he was one of the three
with whom the initial fight in the hall had taken place. There is also an
inconsistency and contradiction between the case set up by the
prosecution and one deposed by PW-1/ Vikram, PW-2/ Gianender and
PW-11/Jeet Ram @ Jeetu, on who amongst the accused were present
when the initial fight took place . While, it is the case of the
prosecution that the initial quarrel over seats took place between the
deceased and PW-1/ Vikram and PW-2/ Gianender , on one side, and
Devinder, Jagjit Singh and Nand Kishore @ Nandu, on the other, PW-
2/ Gianender states that the initial fight was between their group and
Mohd. Nadir Khan, Nasir Ahmed and Rakesh @ Raka from the
accused. PW-11/ Jeet Ram @ Jeetu states that the initial fight took
place between their group and accused Jagbir Singh, Nand Kishore @
Nandu and Nasir Ahmed.
70. PW-1/ Vikram also stated that appellant Jagjit Singh had given
injuries with a thick wooden phatta, however, in his cross-
examination, he admits that he had not told this to the police.
71. PW-1/ Vikram had also identified Devinder in his deposition as
the person with whom the initial fight had taken place, however, the
learned Trial Court has found this to be insufficient to convict
Devinder, only because Devinder had not been identified in the TIP.
Therefore, the conviction of the appellant-Jagjit Singh is only because
of his identification by PW-1/ Vikram in the TIP. The TIP of other
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accused has not been found by us to be meeting the evidentiary
yardstick, inasmuch as it is evident on record that they were shown to
the witnesses at the time of their arrest, making their TIP and later
identification in Court as without any substance. This is coupled with
the fact that none of the witnesses in their Section 161 Cr.P.C.
statements gave any description or identifying features of the
assailants.
72. In such a scenario, in our opinion, merely on the identification
of the appellant-Jagjit Singh in the TIP, that too, by only one of the
witnesses, does not meet the test of proof beyond reasonable doubt.
73. In Iqbal & Anr. v. State of Uttar Pradesh, (2015) 6 SCC 623,
the Supreme Court warned that the TIP identification is not
substantive evidence and conviction cannot be based solely on the
identification of the accused by the witnesses in the TIP. The
prosecution has to adduce substantive evidence by establishing
incriminating evidence connecting the accused with the crime.
74. Basis the above, we find that the prosecution had been unable to
prove its case against the appellants beyond reasonable doubt. The
appellants are entitled to be accorded the benefit of doubt. The learned
Trial Court has erred in convicting the appellants.
75. The impugned orders dated 01.05.2003 and 05.05.2003 are,
therefore, set aside. The appellants are acquitted of the Charges
against them. Their personal bonds and surety are also discharged.
76. The appeals are allowed in the above terms.
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77. A copy of this judgment be communicated to the concerned Jail
Superintendent as also to the learned Trial Court for necessary
compliance and information.
NAVIN CHAWLA, J
RAVINDER DUDEJA, J
MAY 14, 2026/ ik
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