Full Judgment Text
2025 INSC 1322
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). OF 2025
(Arising out of SLP (Crl.) No (s). 697 of 2024)
RAJ KUMAR @ BHEEMA ….APPELLANT(S)
VERSUS
STATE OF NCT OF DELHI ….RESPONDENT(S)
J U D G M E N T
Mehta, J.
1. Heard.
2. Leave granted.
3. The instant appeal is directed against the final
th
judgment and order dated 29 September, 2022,
passed by the Division Bench of the High Court of
1
Delhi at New Delhi in Criminal Appeal No. 281 of
Signature Not Verified
Digitally signed by
NITIN TALREJA
Date: 2025.11.17
16:21:39 IST
Reason:
1
Hereinafter, referred to as the “High Court”.
1
2021, whereby the appeal preferred by the appellant
2
Raj Kumar @ Bheema came to be dismissed,
th
affirming the judgment dated 12 February, 2021,
rendered by the learned Additional Sessions Judge,
3
South East, Saket Courts, New Delhi . By the said
judgment, while the accused-appellant was acquitted
of the charges under Sections 3, 3(1)(i), 3(1)(ii), 3(2),
and 3(4) of the Maharashtra Control of Organised
4
Crime Act, 1999 , and Sections 396, 307, 397, 412
5
read with Section 34 of the Indian Penal Code, 1860 ,
he was convicted for the offence punishable under
Section 302 IPC, whereas the remaining co-accused
were acquitted. The High Court further affirmed the
th
order on sentence dated 20 February, 2021,
whereby the accused-appellant was sentenced to
2
Hereinafter, referred to as the “accused-appellant”.
3
Hereinafter, referred to as the “trial Court”.
4
For short, ‘MCOCA’.
5
For short, ‘IPC’.
2
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
undergo imprisonment for life with a fine of
Rs.5,000/-, and in default whereof, to further
undergo simple imprisonment for a period of one
month.
PROSECUTION CASE
nd rd
4. On the intervening night of 2 /3 November,
2008, at about 1:50 a.m., an information was
received at Police Station, New Friends Colony
through wireless operator, regarding an incident of
house breaking by night at House No. 81, Sukhdev
Vihar, near Escort Hospital, where the intruders were
allegedly assaulting the occupants of the premises.
At about 2:00 a.m., further information was received
at the said Police Station, which was reduced into
writing vide DD No. 29A, as per which, Head
Constable Bhagirath (PW-7) informed that SI Sanjeev
Solanki (PW-17) may be sent to the spot.
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5. Pursuant thereto, SI Sanjeev Solanki (PW-17),
accompanied by Constable Ashok Kumar (PW-9),
proceeded to the place of occurrence and apprised
the Additional S.H.O., who arrived there shortly
thereafter. Upon entering the premises, they found
the sliding door of the drawing room broken, the side
grill bent, the house ransacked, and the household
articles scattered. A large pool of blood was noticed
in the lobby, where the dead body of an elderly male
(deceased-Madan Mohan Gulati) was lying, alongside
certain articles. Bloodstains and articles in disarray
were also observed in the adjoining bedroom.
6. On hearing faint cries emanating from the
adjoining bedroom, the police officials rushed inside
and found an elderly lady, later identified as Smt.
Indra Prabha Gulati (PW-18), lying in an injured
condition. She was immediately shifted to AIIMS
Hospital by the PCR. Thereafter, SI Sanjeev Solanki
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(PW-17), accompanied by Inspector S.K. Sharma
(PW-15), proceeded to the Trauma Centre, AIIMS,
where Smt. Indra Prabha Gulati (PW-18) was under
6
treatment. Medico-Legal Certificate (MLC) of the
injured, Smt. Indra Prabha Gulati (PW-18) was
rd
prepared on 3 November, 2008, by Dr. Sharwan.
The MLC recorded that the injured was fit for
statement and noted multiple grievous stab injuries,
including blood clots around the nether region, scalp-
deep wounds, and a lacerated wound near the right
eyebrow. The nature of the weapon used to cause the
injuries was opined to be sharp.
7. Upon being declared fit, the statement ( Fard
7
bayan ) of Smt. Indra Prabha Gulati (PW-18) was
recorded by SI Sanjeev Solanki (PW-17) and based on
the said statement, Inspector S.K. Sharma (PW-15)
6
Exh. 21/A.
7
Exh. PW-17/A.
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prepared a rukka and handed it over to SI Sanjeev
8
Solanki (PW-17), pursuant to which an FIR came to
be registered at Police Station, New Friends Colony,
for the offences punishable under Sections
394/397/302/307/34 of IPC.
th
8. On 5 November, 2008, body of the deceased
Madan Mohan Gulati was identified by his son-Vivek
Gulati, and by his nephew-Servesh Gulati (son of the
deceased’s younger brother). The post-mortem
examination of the deceased was thereafter carried
out, and the post-mortem report was issued wherein
the cause of death was opined to be shock and
haemorrhage on account of multiple antemortem
injuries. The opinion on the weapon of offence
(knife/ chheni ) was also obtained from the doctor.
8 rd
FIR No. 601/2018 dated 3 November, 2008.
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st
9. The accused-appellant was apprehended on 21
November, 2008, based on the description allegedly
provided by the injured eye-witness, Smt. Indra
Prabha Gulati (PW-18). It is alleged that the accused-
9
appellant gave a disclosure statement , and in
furtherance thereof, he led the police party to an open
area near bushes situated at Pul Prahladpur, from
where a blood-stained Eagle brand pant was
recovered from a pit. The pant was duly seized and
sealed. On the following day, while the appellant was
on police remand, his disclosure led to the arrest of
the co-accused persons.
th
10. On 25 November, 2008, pursuant to a
10
supplementary disclosure statement , the appellant
purportedly led the police party to the bushes near
the railway track behind Priyanka Camp, from where
9
Exh. PW 14/A.
10
Exh. PW-14/N.
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one chheni was recovered. The same was also seized
and sealed. Thereafter, the accused-appellant also
facilitated the recovery of the robbed articles, namely,
one idol of Lord Ganesha and a Panasonic CD player,
from his Jhuggi .
11. Shri Vivek Kumar Gulati, son of the deceased
and Smt. Indra Prabha Gulati (PW-18) identified the
11
case property in the Test Identification Parade
th 12
conducted on 6 December, 2008. The proceedings
of the TIP were conducted by Shri Devendra Kumar
Jangala (PW-16), learned Additional District Judge,
West, Tis Hazari Courts.
th
12. On 24 December, 2008, TIP was organized in
respect of the accused Raj Kumar @ Bheema,
Jawahar, Ranbir @ Sintu, and Naeem @ Mota;
however, they refused to participate in the same.
11
For short, ‘TIP’.
12
Exh. PW16/B.
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Upon comparison, the fingerprints of the accused
Jawahar and Ranbir @ Sintu were found to tally with
the chance prints lifted from the spot. The site
inspection plan was prepared, and the material
exhibits were forwarded to the Forensic Science
13 nd
Laboratory on 22 January, 2009. Upon
completion of the investigation, chargesheet in
nd
connection with the said FIR came to be filed on 2
February, 2002, against the accused, namely, Raj
Kumar @ Bheema, Ramesh Kumar @ Shankar,
Naeem Khan @ Mota, Jawahar, and Ranbir @ Sintu,
in the Court of the learned ACMM, for offences
punishable under Sections 3, 3(1)(i), 3(1)(ii), 3(2), and
3(4) of the MCOCA, and Sections 396, 307, 397, 412
read with Section 34 of IPC. One of the accused,
namely, Kastoori, could not be traced out despite best
efforts, and proceedings under Sections 82 and 83 of
13
For short, ‘FSL’.
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14
the Code of Criminal procedure, 1973 were initiated
against him and his name was placed in Column No.
2 of the chargesheet. Since the offences were triable
exclusively by the Court of Sessions, the learned
ACMM, after compliance with the provisions of
Section 207 CrPC, committed the case to the Court
of Sessions for trial, where charges were framed
against the accused. They abjured their guilt and
claimed trial.
13. During the course of trial, the prosecution
examined 27 witnesses and exhibited 25 documents
in consolidated form to prove the guilt of the accused.
The accused Ramesh @ Shankar examined one
witness in defence. Upon closure of prosecution
evidence, statements of the accused persons were
recorded under Section 313 CrPC affording them an
opportunity to explain the incriminating material
14
For short, ‘CrPC’.
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appearing against them. The accused-appellant, in
answer to Question No. 82, categorically stated, “I am
innocent and have been falsely implicated in the
present case. PW-17 Inspector Sanjeev Solanki was
known to me prior to the present case, and he has
falsely implicated me in this case.”
FINDINGS OF THE TRIAL COURT
14. Upon consideration of the arguments advanced
by the prosecution and the defence, and after
appreciating the evidence available on record, the
th
trial Court, vide judgment dated 12 February, 2021,
acquitted the accused persons other than the
appellant Raj Kumar @ Bheema, holding that the
case against him stood proved beyond reasonable
doubt only for the offence punishable under Section
302 IPC. He was acquitted of the remaining charges.
The conviction was primarily based on the testimony
of the eye-witness, Smt. Indra Prabha Gulati (PW-18),
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who identified the appellant during her testimony
(recorded over video conferencing) while failing to
identify the remaining accused, coupled with the
purported recovery of weapon of offence at the
instance of the accused-appellant.
th
15. Further, the trial Court, vide order dated 20
February, 2021, directed the accused-appellant to
15
undergo sentence as mentioned hereinabove.
FINDINGS OF THE HIGH COURT
16. In appeal by the accused-appellant, the High
Court affirmed the findings of the trial Court vide
16 nd
judgment dated 22 September, 2022, finding no
infirmity in the judgment and order passed by the trial
Court, holding that the prosecution case essentially
rested upon the identification of the accused-appellant
by the injured witness and the recoveries effected at
15
Supra para 3 .
16
Crl.A. 218/2021.
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his instance. The High Court rejected the submission
advanced on behalf of the appellant that the
identification of the appellant by Smt. Indra Prabha
Gulati (PW-18) was doubtful as she failed to identify
the other accused, on the ground that, insofar as the
present accused-appellant was concerned, she was
categorical in her testimony that he was one of the
assailants.
17. The High Court observed that non-recovery of
the appellant’s finger prints from the place of incident
would not absolve him of participation in the offence,
which stood established by the identification made by
the injured victim, Smt. Indra Prabha Gulati (PW-18).
It was further noted that pursuant to the disclosure
made by the appellant, the pant allegedly worn by him
at the time of incident was recovered, on which human
blood was detected, and no plausible explanation was
forthcoming from the appellant as to the presence of
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human blood on his wearing apparel. The Court also
held that merely because the son of the deceased and
the injured victim, who had identified the robbed
articles in TIP, did not appear in the witness box to
identify the recovered articles, would not discredit the
rest of the evidence led by the prosecution, which was
sufficient to prove the guilt of the appellant for the
offence alleged, beyond reasonable doubt.
18. Aggrieved, the accused-appellant is before us in
the present appeal by way of special leave.
Submissions on behalf of accused-appellant
19. Learned counsel for the appellant, vehemently
and fervently urged that the High Court fell in grave
error in affirming the conviction of the accused-
appellant recorded by the trial Court, which is wholly
unsustainable in law. It was contended that the
prosecution case rests entirely upon the testimony of
the old and infirm witness Smt. Indra Prabha Gulati
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(PW-18), who was admittedly suffering from weak
eyesight. Accordingly, her testimony is riddled with
inconsistencies and is far too unconvincing so as to
form the sole basis for upholding a conviction for an
offence punishable with capital punishment.
20. It was further contended that Smt. Indra Prabha
Gulati (PW-18) identified the appellant in Court
th
through video conferencing on 8 May, 2017, after an
inordinate delay of nearly eight and a half years from
nd
the incident dated 2 November, 2008, while notably
failing to identify any of the other accused. It was
urged that in his statement under Section 313 CrPC,
the accused-appellant specifically alleged that PW-18
had been tutored, as his photographs had already
been shown to the witness prior to her deposition.
21. It was averred that there were material
contradictions and improvements in the testimony of
PW-18. In her initial statement under Section 161
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CrPC, she mentioned that the assailants were armed
with “knives, screwdriver, and rods,” but made no
reference to a “chheni.” The introduction of the
“chheni” for the first time during her sworn testimony
recorded after a lapse of more than eight years was a
material improvement, evidently tailored to align with
the alleged recovery. Moreover, she failed to identify
any of the co-accused, all of whom were acquitted,
rendering her solitary identification of the appellant
highly doubtful.
22. Learned counsel urged that the prosecution
placed reliance upon the alleged recoveries of a blood-
stained pant, a “chheni,” and articles such as a
Ganesh idol/CD player at the instance of the
accused-appellant. The first recovery attributed to
the accused-appellant was allegedly made pursuant
to his disclosure statement from an open area near
bushes at Pul Prahladpur, wherefrom a blood-stained
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pant was recovered. The prosecution alleged that the
said pant had been worn by the appellant at the time
of the incident. However, the blood-stains detected on
the garment did not test positive for the blood group
lifted from the scene of occurrence. It was thus
contended that the said article could not be
connected with the present case, even after forensic
17
examination .
23. It was further urged that the said recovery
cannot be read in evidence under Section 27 of the
Evidence Act, 1872 inasmuch as in his disclosure
18 st
statement dated 21 November, 2008, the accused-
appellant did not state that he could get the article
recovered from an open place near Pul Prahladpur,
which, in any event, was accessible to all and sundry.
The learned counsel urged that all the recoveries were
17
Ex. PW-24/B read with Ex. PW-24/A.
18
Exhibit PW 14/A.
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made without any independent witness being
associated to corroborate the same. It was further
averred that the alleged weapon of offence, namely
the “chheni,” was shown to have been recovered after
a lapse of 22 days from bushes near a railway track.
The said article was never shown to Smt. Indra
Prabha Gulati (PW-18) for identification, no
photographs were taken at the time of recovery, and
no independent witness was associated in the
process.
24. Placing reliance on the judgment of this Court
19
in Koppula Jagdish v. State of Andhra Pradesh ,
learned counsel further urged that the High Court
failed to appreciate that the appellant was wrongly
convicted for the offence under Section 302 IPC
simpliciter, inasmuch as no separate charge under
Section 302 IPC was framed against him. It was
19
(2005) 12 SCC 425.
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pointed out that in the present case, all the accused
were charged under Sections 394, 397, 302, 307,
read with 34 IPC, and except for the appellant, all
other co-accused have been acquitted.
25. It was also urged that Shri Vivek Gulati, son of
the deceased, who had identified the robbed articles
during the TIP, did not appear in the witness box
during the trial to prove and identify the articles
allegedly recovered at the instance of the accused-
appellant, and hence, no adverse inference ought to
be drawn against the appellant on this count.
26. He, thus, implored the Court to accept the
appeal and set aside the impugned judgment(s).
Submissions on behalf of respondent-State
27. Per contra , Shri Vikramjeet Banerjee, learned
Additional Solicitor General, supported the impugned
judgment and urged that the appellant Raj Kumar @
Bheema was correctly identified by the injured eye-
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witness, Smt. Indra Prabha Gulati (PW-18), in her
examination-in-chief as well as in her cross-
examination, as the person armed with a “ chheni”
and a rod, who inflicted blows upon her and her
husband, resulting in the death of the latter. It was
further submitted that the said weapons were
recovered from the appellant pursuant to his
disclosure statement, thereby corroborating the
version of the injured witness Smt. Indra Prabha
Gulati (PW-18).
28. It was further contended that, as per the
opinion rendered by Dr. Arvind Kumar (PW-1) with
regard to the weapon of offence, Exhibit V, i.e., the
recovered “chheni,” could be one of the weapons used
in the offence and that injuries marked B, C, and D
on the person of injured Smt. Indra Prabha Gulati
(PW-18) were possible by the said weapon.
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29. The conduct and antecedents of the appellant,
including his status as a history-sheeter, repeated
involvement in criminal cases, and acts of
misconduct during incarceration, clearly reflect a
persistent pattern of unlawful behaviour.
Considering the heinous nature of the offence, being
the murder (for gain) of a senior citizen, the accused-
appellant does not deserve any indulgence, and the
gravity of the crime and the attendant circumstances
warrant dismissal of the appeal filed on his behalf.
30. He thus implored the Court to dismiss the
appeal, urging that the High Court had rightly
affirmed the conviction of the accused-appellant and
the sentence awarded to him by the trial Court. It was
further urged that upon an independent and
comprehensive appraisal of the evidence on record,
including the consistent testimonies of Investigating
Officer Shri S.K. Sharma (PW-15) and Smt. Indra
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Prabha Gulati (PW-18), both the trial Court and the
High Court had recorded concurrent findings that the
prosecution had proved its case beyond reasonable
doubt, and hence no interference is warranted in the
impugned judgment.
Discussion and Analysis
31. We have given our thoughtful consideration to
the submissions advanced at bar and have carefully
gone through the impugned judgments, the material
available on record, as well as the written
submissions filed on behalf of both sides.
32. Since the appellant seeks reversal of concurrent
findings of fact recorded by the trial Court as well as
the High Court, this Court is required to tread with
circumspection. It has been consistently held by this
Court in a catena of decisions that unless the
findings are shown to be perverse or rendered in
disregard of material evidence, this Court would be
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slow in interfering with concurrent conclusions of the
Courts below. Reference in this regard may be made
to the decision of this Court in the case of Mekala
20
Sivaiah v. State of Andhra Pradesh
, the relevant
para of which is quoted hereinbelow:
“15. It is well settled by judicial pronouncements
that Article 136 is worded in wide terms and
powers conferred under the said Article are not
hedged by any technical hurdles. This overriding
and exceptional power is, however, to be
exercised sparingly and only in furtherance of
cause of justice. Thus, when the judgment
under appeal has resulted in grave
miscarriage of justice by some
misapprehension or misreading of evidence or
by ignoring material evidence then this Court
is not only empowered but is well expected to
interfere to promote the cause of justice .”
(Emphasis is supplied)
33. Keeping the aforesaid principle in mind, this
Court would proceed to consider the appeal at hand
to examine whether there is some manifest error or
illegality in the impugned judgment , and if any grave
and serious miscarriage of justice has been
20
(2022) 8 SCC 253.
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occasioned on account of misreading or ignoring of
material evidence in the present case.
34. Evidently, on a perusal of the judgments under
challenge and upon considering the submissions
advanced by learned Standing Counsel for the State,
it emerges that primarily three circumstances have
been relied upon by the prosecution to bring home its
case against the appellant:
i. The identification of the appellant in Court by
the prosecution witness Smt. Indra Prabha
Gulati (PW-18) during her sworn testimony.
ii. The refusal of the appellant to participate in the
TIP, leading to an adverse inference being drawn
against him.
iii. Recovery of weapon of offence stained with
human blood.
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A. Identification by the Sole Eye-Witness
35. It is undisputed that the fulcrum of the
prosecution case is based on the testimony of Smt.
Indra Prabha Gulati (PW-18). Thus, for the sake of
ready reference, we quote the entire deposition of the
said witness below: -
“ON S.A.
On 03.11.2008 I was present in my house at 81
Sukhdev Vihar, New Delhi. It was the intervening
night of 2nd and 3rd November, 2008 and time
was 11.30/11.45pm. I and my husband heard
the noise of falling of utensils. My husband went
. I also followed him and we saw
to see the same
five persons had entered into our house from
the door of drawing room. Out of those,
one/two persons were in the kitchen and four
persons came through door of drawing room.
They were having chheni , screwdriver and
knives in their hands. They asked for keys from
my husband. We told them to wait and the one
boy who came from drawing room and was
having iron rod and chheni in his hands, gave
the blow from the iron blow on the head of my
husband. He fell down. I was also given blow
and became unconscious. I do not remember
now by whom the blow was given . I remained
in the hospital for about two months. Someone
called the police and I was taken by the police to
the hospital. I am having an 8 inch cut on my
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stomach. I remained in Trauma Center. I was
also having bandage on my head and it might be
possible that blow was given on the head also. I
made statement to the police in the hospital
itself. It was given orally whatever was in my
memory as I was on hospital bed.
I remained in Moolchand Hospital for one
month and 10 days. I never met with the
police for this case after my discharge from
the hospital. I have never seen those boys
who came into my house thereafter.
At this stage, scanned image of signatures on
statement is shown to the witness through video-
link and after seeing it the witness states that the
same pertains to her which are at point A.
I can identify the accused if shown to me.
At this stage, accused persons who are facing
charges in this case, are shown through
audio-video link one by one and after seeing
accused the witness states that he is the
same boy who was having chheni and rod and
was giving blows to my husband. (The name
of accused is Raj Kumar).
Next accused is shown and after seeing him the
witness states that she is not remembering
complete and she is remembering face of only
one as she became unconscious. (The name of
accused is Ranbir).
Next accused is shown and after seeing him the
witness states that she does not know anything
about him. (The name of accused is Jawahar).
Next accused is shown and after seeing him the
witness states that she is remembering somehow
and it was 12.00midnight and 8 years have
passed she is not remembering further. She
further states that she cannot say whether he
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was among those persons or not. (The name of
accused is Naeem)
Next accused is shown and after seeing him the
witness states that the boy shown first be stand
with him so that she may identify again. The
accused Raj Kumar is shown with this accused
to the witness. After seeing the accused Raj
Kumar, the witness states that he is one among
those boys but she is not sure about second boy.
(The name of second boy is Ramesh Kumar).
XXN by Sh. Sunil Dutt, Ld. Addl. P.P for the
State.
It is correct that when my husband fell down
after blows given to him, I was also given rod
blows and knife blows.
I do not remember that I fell down in Angan as I
was unconscious. I was told by the police
officials that I was taken to the room by the boys
dragging me. I do not know that they after
breaking open the almirah in the room took away
Rs.20000/- and the jewellery articles. I do not
remember whether I raised noise or not or that I
remained lied on the floor of the room. (Vol. I
regained my consciousness in the Trauma
Center). It is wrong to suggest that the number
of boys who entered into the house was 3-4. (Vol.
They were five in number).
I did not go to Patiala House Court on
26.12.2008. (Vol. My son went to Patiala
House court as I was ill). It is wrong to suggest
that in the Patiala House Court I identified
four boys as Raj Kumar @ Bheema, Ranbir @
Shintu, Jawahar and Naeem @ Mota and
stated to the police that they were the boys
who gave blows to my husband and me in my
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house and took away cash and jewellary from
my house. (Vol. I did not go to PHC only my
son went there).
XXN by Sh. Mihi Lal Chaudhary, counsel for
accused Jawahar.
As far as I remember I regained consciousness
after three/four days in the Trauma Center and
at that time I was on ventilator.
XXN by Sh. S.M. Sallauddin, counsel for
accused Raj Kumar and Naeem, XXN by Sh.
V.P Kaushik, counsel for Ramesh Kumar, and
XXN by Sh. Sallauddin Khan, counsel for
accused Ranbir.
I do not remember the date when police met me
for the first time and the last time.
I cannot tell the name of the police official by
whom my statement was recorded. It was
recorded in the hospital. The signatures were
taken in the hospital and I do not remember now
whether it was in Trauma Center or Moolchand.
At that time police officials were present and my
son was also present. My son and daughter met
me in the Trauma Center. I do not remember the
date when they came to me in the Trauma
Center. It may be 4th or 5th. As far as I
remember I left India on 27.12.2008. I do not
remember whether my statement was written as
I told or not. (Vol. Due to the incident I was
unconscious and was not fit completely). I do not
remember how many pages were got signed by
me from the police. I do not remember whether I
signed any blank paper or not. If my signatures
were taken it might be that something was
written on the papers then my signatures were
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taken. I do not remember whether the writing
were in hindi or english language. The witness
is confronted with the statement Ex.PW17/A
and is asked that in the same 'Chheni' word is
not mentioned in the same. I do not
remember about the colour of the
screwdriver. I do not remember what was the
length of the iron rod. The accused Raj Kumar
was worn black shirt. I do not remember
about the clothes of remaining boys.
I do not remember the name of tenant of that
time. He was from Hyderabad. He was in the
premises for about 2/2 1/2 years prior to
incident. They vacated the premises after the
incident as they were also afraid. I do not
remember whether the verification of the tenant
was got conducted from police or not. We were
not having permanent servant or chowkidar at
that time but however, Kamla was part-time
domestic helper. She was working for the last 15
years. She was residing in a room taken on rent
in the Sukhdev Vihar. Her husband was residing
with her occasionally. I do not know name of her
village. (Vol. She had told me but due to my age
I have forgotten the same).
I retired on 28.02.1997. It is correct that Kamla
was residing in the jhuggi of Sukhdev Vihar. It is
correct that in my presence no inquiries were
made from Kamla and her husband not their
statement was recorded in my presence. The
tenant has vacated my premises before I
discharge from hospital. I do not know whether
inquiries were made by the police from my tenant
in my presence. At the time of incident, I was
using spectacles occasionally as I was having
long sight (dur ki nazar kamzor thi). At
29
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
present I use the spectacles whenever I have
to do some work of near distant. At present I
am not wearing contact lenses. It is correct
that I did not receive injury on my head and I
received injury on my right side of forehead. I
cannot say whether there was any stitching on
the forehead or not but there was a bandage. I
do not remember the number of lenses which I
was using at that time.
The Counsel wants to contradict the witness
with her statement Ex.PW17/A that in the
same there is no description about the
clothes and physique of the boys. (it will be
looked by the court during the arguments as
the witness is being recorded through video-
conferencing). It is wrong to suggest that police
did not take any statement from me and my
signatures were taken on a blank paper. I never
visited police station in respect of this case. I was
shifted from Trauma Center to Moolchand
after 20 days. I was discharged from
Moolchand hospital on 24 оr 25.12.2008. I
did not go to police after 25.12.2008. Police
have not met me after 25.12.2008 till I left
India . I do not remember how many times police
met me while I was in Trauma Center. Perhaps,
once or twice they met me. During those visits
inquiries were made from me about the manner
of the incident and the assailants. I do not
remember the date when I regained my
consciousness . As far as I remember police
did not come to me while I was in Moolchand
Hospital.
I do not know the name of chowkidar as it was
kept by my son after the incident. It is wrong to
suggest that the boy who has been identified by
30
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
me today i.e. Raj Kumar was not involved in the
incident or that I have been shown the
photographs by the police.
The co-assailants were calling him "Bhima aur
maar, bhima aur maar to him". It is wrong to
suggest that my counsel has sent photograph of
Bhima to me and after seeing him I am
identifying him today. It is wrong to suggest that
my counsel has tutored me on telephone and
upon tutoring I am deposing today or that copy
of the statements has been sent to me and after
going through the same I have deposed today. It
is wrong to suggest that the dosier of Bhima with
the police has been sent to me by the counsel. It
is wrong to suggest that Bhima was not involved
in the incident occurred in the intervening night
of 2nd and 3rd November, 2008 or that I am
naming him at the instance of police.
th
Dated: 8 May, 2017.”
(Emphasis supplied)
36. Based upon the testimony, it is clear that the
witness Smt. Indra Prabha Gulati (PW-18) had
shifted to the United States of America immediately
after the incident, and her statement came to be
th
recorded through video conferencing on 8 May,
2017, i.e., after a gap of eight and a half years from
the occurrence. She stated that out of the five
assailants who had entered the house, one or two
31
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
went towards the kitchen, while four entered through
the drawing room door. They were armed with a
chheni , screwdriver, and knife, and demanded the
keys from her husband. Upon his request for some
time, one of the assailants, who was carrying an iron
rod and a chheni , inflicted a blow on the head of her
husband, who collapsed. She too was given a blow,
though she could not recollect as to who had inflicted
the injury. She further stated that she remained
admitted in Moolchand Hospital for about one month
and ten days. She categorically asserted that she
never saw the assailants thereafter and that she
neither met the police nor did she go to the Patiala
House Courts after being discharged.
37. The Public Prosecutor requested the witness to
identify the accused on the video display and from
amongst the accused present in the dock, who were
shown to the witness, she identified the accused-
32
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
appellant as the assailant who was armed with a
chheni and a rod and who had inflicted blows upon
her husband.
38.
The witness further stated that she could
remember the face of only one accused, as she had
become unconscious, and thus she was unable to
identify any of the other assailants who were
presented for identification. The learned Public
Prosecutor sought permission of the Court to cross-
examine the witness on the ground that she was not
narrating complete facts disclosed during
investigation. However, in response to the
suggestions of the Public Prosecutor, she gave
discrepant answers.
39. To a material suggestion, the witness replied: “I
did not go to Patiala House Court on 26.12.2008” and
volunteered that her son had gone to the Court as
she was unwell. She denied the suggestion that she
33
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
had identified four boys, namely Raj Kumar, Ranbir,
Jawahar, and Naeem @ Mota, in the Patiala House
Court and affirmed to the police that they were the
assailants who inflicted blows on her husband and
looted cash and jewellery from the house.
40. In her cross-examination, the witness stated
th
that she had left India on 27 December, 2008. She
admitted that she could not recollect whether her
statement had been recorded in the manner she had
spoken. She volunteered that owing to the assault ,
she became unconscious and was not fully fit. She
further stated that the accused-appellant Raj Kumar
was wearing a black shirt, but she could not recollect
the clothes of the other assailants.
41. Learned defense counsel sought to confront and
contradict the witness with reference to her previous
21
statement under Section 161 CrPC on the aspect
21
Exh PW-17/A.
34
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
that there was no description of the clothes or
physique of the assailants in such statement. The
trial Court observed that the effect of such
omission/improvement would be considered at the
stage of final arguments, since the witness was being
examined through video conferencing . The witness
further stated that she was discharged from
th th
Moolchand Hospital on 24 /25 December, 2008,
th
and that she did not go to the police after 25
December, 2008. She was confronted with a
pertinent suggestion that the police had shown her
the photographs of Raj Kumar and that her counsel
had also seen the photograph and tutored her for
identifying the appellant, which she denied.
42. We must take note of and resolve a very
important feature being a procedural irregularity
which has arisen in this case. As would be evident
from the discussion made hereinabove, the evidence
35
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
of the star prosecution witness Indra Prabha Gulati
(PW-18) was recorded through video conferencing
because she had in the intervening period shifted to
Canada.
43. During the course of cross-examination, the
defence tried to confront the witness (PW-18) with
her previous statement so as to elicit a
contradiction/highlight an omission. However, the
trial Court observed that this objection would be
considered at the time of final adjudication because
the witness (PW-18) was not present before the Court
and the document being the previous statement in
writing could not be shown to her (supra) .
44. However, on going through the trial Court’s
judgment, we do not find any discussion made
regarding this pertinent objection by the defence.
45. The Evidence Act/ Bharatiya Sakshya
Adhiniyam, 2023 provide the procedure for evidence
36
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
as to the matters in writing and cross-examination as
to previous statements in writing. Section 147 of the
BSA (144 of the Indian Evidence Act and Section 148
of the BSA (Section 145 of the Indian Evidence Act)
are reproduced hereinbelow for the sake of
convenience: -
“147. Evidence as to matters in
writing .—Any witness may be asked,
while under examination, whether any
contract, grant or other disposition of
property, as to which he is giving
evidence, was not contained in a
document, and if he says that it was, or if
he is about to make any statement as to
the contents of any document, which, in
the opinion of the Court, ought to be
produced, the adverse party may object to
such evidence being given until such
document is produced, or until facts have
been proved which entitle the party who
called the witness to give secondary
evidence of it. Explanation.— A witness
may give oral evidence of statements
made by other persons about the contents
of documents if such statements are in
themselves relevant fact.
148. Cross-examination as to previous
statements in writing.— A witness may
be cross-examined as to previous
37
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
statements made by him in writing or
reduced into writing, and relevant to
matters in question, without such writing
being shown to him, or being proved; but,
if it is intended to contradict him by the
writing, his attention must, before the
writing can be proved, be called to those
parts of it which are to be used for the
purpose of contradicting him.”
46. A plain reading of the above provisions would
make it clear that wherever questions are required to
be put as to the matters in writing/previous
statements in writing, the attention of the witness
must be drawn to the document/statement itself.
Thus, a question would arise as to how this
procedure would be followed in cases where the
evidence of the witness is being recorded over video
conferencing.
47. In this age of advancement of technology,
instances are galore where, the evidence of witnesses
are being recorded over video conferencing. In such
circumstances, none of the parties should be put to
38
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
a dis-advantage merely because the witness is not in
attendance before the Court, and the
document/previous statement in writing with which
such witness is sought to be confronted, cannot be
shown/put to him.
48. Therefore, we hereby clarify and direct that in
every case where, it is proposed to record the
statement of a witness over video conferencing and
any previous written statement of such witness or a
matter in writing is available and the party concerned
is desirous of confronting the witness with such
previous statement/matter in writing, the trial Court
shall ensure that a copy of the statement/document
is transmitted to the witness through electronic
transmission mode and the procedure provided
under Section 147 and Section 148 of the Bharatiya
Sakshya Adhiniyam (corresponding Section 144 and
Section 145 of the Evidence Act) is followed in the
39
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
letter and spirit, so as to safeguard the fairness and
integrity of the trial.
49. This direction is being issued with a view to
avoid procedural irregularities and to prevent
disadvantage to any party before the Court, and also
to uphold the principles of fair trial, effective cross-
examination, and proper appreciation of evidence.
50. From the statement of the witness, the following
material facts emerge:
(a) She identified the accused-appellant in Court
while being examined through video
conferencing, nearly eight and a half years after
the incident.
(b) She admitted that she had been discharged
th th
from Moolchand Hospital on 24 or 25
December, 2008.
(c) She used to wear spectacles as her distance
vision was weak. At the time of dock
40
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
identification, the witness was not wearing
spectacles.
(d) Not even a bare suggestion was put to her by
the Public Prosecutor that she had been taken
to the police station or jail for TIP proceedings.
Most material is the fact that the witness
emphatically denied the suggestion of the
Public Prosecutor that she had gone to the
th
Court on 26 December, 2008, and identified
the assailants.
Identification in Court after delay – Unsafe and
Improbable
51. It is trite that the evidence of an eye-witness
must be of sterling quality and unimpeachable
character. It should not only inspire the confidence
of the Court but must also be of such a nature that
is acceptable at its face value.
41
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
52. We may note that the possibility of identification
of the accused-appellant by Smt. Indra Prabha Gulati
(PW-18) in Court, after a lapse of nearly eight and a
half years from the incident, is extremely unlikely. In
her testimony, the witness candidly admitted that her
distance vision was weak and that she could not see
objects at a distance without spectacles. It is also
borne out from the record that even at the time of the
incident, she was aged about 73 years and was
infirm. She was not wearing spectacles at the time of
her deposition via video conferencing . In this
background, her purported identification of the
assailant after such a long lapse of time, that too over
video conferencing, does not inspire confidence.
53. Furthermore, when a suggestion was put to the
witness by the Public Prosecutor in cross-
examination as to whether she had gone to the
Patiala House Courts for identifying the four
42
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
assailants, the witness emphatically denied the
same.
54. In her cross-examination, the witness Smt.
Indra Prabha Gulati (PW-18) stated that the accused-
appellant Raj Kumar @ Bheema was wearing a black-
coloured shirt, which is an improvement introduced
for the first time after nearly eight and a half years.
This appears to be one of the probable reasons for her
identification of the accused-appellant. No identifying
feature of the assailants was disclosed in her
22
previous statement recorded under Section 161
CrPC, wherein no physical description of the accused
persons or clothes worn by them at the time of the
incident was mentioned. Such an embellishment
casts a serious doubt on the reliability of her dock
identification and is suggestive of a clear attempt to
fill critical lacunae in the prosecution case.
22
Exh. PW-17/A.
43
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
55. In assessing the credibility of a witness, the
testimony must inspire confidence in the judicial
mind, and omissions, improvements, or
contradictions touching the core of the prosecution
version inevitably undermine such assurance. This
Court has consistently held that minor discrepancies
are not fatal, but material improvements that go to
the root of the matter essentially erode the credibility
of the witness.
56. In view of the aforesaid glaring facts emerging
from the testimony of Smt. Indra Prabha Gulati (PW-
18), it would be unsafe to place reliance on her
evidence regarding the identification of the accused.
Once her identification of the accused-appellant in
Court is discarded, no substantive evidence remains
on record to connect the accused with the crime.
44
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
B. Glaring Infirmities in the Test Identification
Proceedings
57. The trial Court, as well as the High Court, drew
an adverse inference against the accused-appellant
on the ground that he declined to participate in the
TIP. However, the fact remains that the very sanctity
of the TIP stands under a serious cloud of doubt when
it is manifest that Smt. Indra Prabha Gulati (PW-18)
did not go for participating in any such identification
parade.
58. In this context, it would be essential to advert to
the prosecution case regarding the effort made by the
Investigating Officer to get the appellant subjected to
the TIP.
59. It is the case of the prosecution that the accused
st
was arrested on 21 November, 2008. On perusal of
23
the arrest memo , it is apparent that there is no
23
Exh. PW- 14/B.
45
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
mention in the document that the face of the accused
was kept baparda (muffled) after his arrest. A doubt
on the prosecution case on identification thus arises
from this very stage.
60. The evidence of the first Investigating Officer
Shri S.K. Sharma (PW-15), who effected the arrest of
st
the accused-appellant on 21 November, 2008, has
been carefully examined. The Investigating Officer
(PW-15), though, stated in his deposition that at the
time of the arrest of the accused-appellant Raj Kumar
@ Bheema, his face was kept muffled. However, this
assertion stands contradicted by the arrest memo,
which contains no such recital.
61. The Investigating Officer further stated that the
accused-appellant was interrogated and, in
furtherance thereof, recoveries were affected vide
memoranda Exh. PW-14/D, Exh. PW-14/O, Exh.
PW-14/P, and Exh. PW-15/H. A careful scrutiny of
46
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
these memoranda would show that there is no
reference therein that the face of the accused was
muffled at the time of the recovery proceedings. This
significant omission lends support to the plea taken
by the accused-appellant during the TIP and in his
statement under Section 313 CrPC that he had
already been shown to the witness, and his
photographs had been taken by the Investigating
Officer, which were later used for dock identification.
62. It is trite that where the witnesses have had an
opportunity to see the accused prior to the holding of
the TIP, the evidentiary worth of such proceedings
stands considerably diminished. It is the duty of the
prosecution to establish beyond doubt that right from
the time of arrest, the accused was kept baparda to
rule out the possibility of his face being seen before
the identification proceedings are conducted. If the
witnesses have had any opportunity to see the
47
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
accused before the TIP – whether physically or
through photographs – the credibility and sanctity of
the identification proceedings would stand seriously
compromised.
63. Another material infirmity in the prosecution
case relates to the procedural aspects of the TIP.
From the evidence of Smt. Indra Prabha Gulati (PW-
18), it is evident that she categorically stated that she
was discharged from Moolchand Hospital on
th th
24 /25 December, 2008. She did not utter even a
single word to suggest that she had been taken to
prison or any Court for participating in any such
proceedings. Further, the witness was emphatic in
stating that neither did she meet the police nor did
she visit the Patiala House Courts after being
discharged from the hospital . It is also pertinent to
note that no document pertaining to the treatment or
discharge of Smt. Indra Prabha Gulati (PW-18) was
48
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
proved on record by the prosecution. Consequently,
a grave doubt arises regarding the very possibility of
any TIP proceedings having been conducted in the
presence of the witness Smt. Indra Prabha Gulati
th
(PW-18) on 24 December, 2008.
64. This conclusion gets support from the evidence
of the ACMM, Smt. Surya Malik Grover (PW-12), who,
in her deposition, only stated that the Investigating
Officer informed her that the identifying witness was
standing outside. Significantly, there is no signature
of the identifying witness Smt. Indra Prabha Gulati
(PW-18) on any of the documents prepared in
connection with the TIP.
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,
49
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
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.
66. Furthermore, in such circumstances and
considering the significant improvements made by
Indra Prabha Gulati (PW-18) from her previous police
statement on the aspect of identifying features (black
shirt), the dock identification of the accused-
appellant made by the injured witness, Smt. Indra
Prabha Gulati (PW-18), during the course of her
evidence through video-link, recorded nearly eight
50
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
and a half years after the incident would be unsafe to
rely upon.
C. Recoveries and Non-identification of Articles
67. In addition to the above, the prosecution placed
reliance on the alleged recoveries of looted articles at
the instance of the accused. However, it is pertinent
to note that Smt. Indra Prabha Gulati (PW-18) was
not made to identify the said articles during her
testimony. Furthermore, Vivek Gulati, son of Smt.
Indra Prabha Gulati (PW-18), who is stated to have
identified the articles in the TIP, was not examined
during the trial. Consequently, the alleged recoveries
lose their evidentiary worth and cannot be relied
upon, as there is no credible proof that they are the
looted articles.
68. The prosecution has tried to claim that the
accused-appellant could not offer any explanation for
51
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
the presence of human blood on the pant recovered
24
at his instance, which he had allegedly worn at the
time of the incident, which circumstance is
incriminating. However, indisputably, the blood
stains on the pant could not be matched with the
blood sample lifted from the scene of occurrence or
with the blood group of the deceased or the injured
25
victim, as the Serology report recorded “no reaction”
in respect of blood grouping for Exh. 20 (Pant). On
this count alone, guilt cannot be fastened upon the
appellant, as the recovery by itself is not sufficient to
prove the case beyond reasonable doubt. The mere
availability of human blood on an article is not
sufficient unless it is further corroborated by a
matching blood group with that of the deceased.
24
Exh. PW-14/D.
25
Exh. 24/B.
52
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
69. Once the identification of the accused by Smt.
Indra Prabha Gulati (PW-18) is discarded, and the
recovery of articles cannot be connected either with
the crime or with the accused, no substantive or
credible evidence remains on record to link the
accused with the offence.
CONCLUSION
70. In view of the discussion made hereinabove, the
impugned judgments do not stand to scrutiny. The
appeal is, thus, allowed.
th
71. The judgment dated 29 September, 2022,
passed by the High Court, as well as the judgment of
th
conviction dated 12 February, 2021, and the order
th
of sentence dated 20 February, 2021, passed by the
trial Court, are hereby set aside.
72. The accused-appellant is acquitted of the
charges. He has remained in custody for almost 15
53
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
and a half years and shall be released from prison
forthwith, if not wanted in any other case.
73. Pending application(s), if any, shall stand
disposed of.
….……………………J.
(VIKRAM NATH)
...…………………….J.
(SANDEEP MEHTA)
NEW DELHI;
NOVEMBER 17, 2025.
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Crl. Appeal@ SLP (Crl.) No(s). 697/2024
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). OF 2025
(Arising out of SLP (Crl.) No (s). 697 of 2024)
RAJ KUMAR @ BHEEMA ….APPELLANT(S)
VERSUS
STATE OF NCT OF DELHI ….RESPONDENT(S)
J U D G M E N T
Mehta, J.
1. Heard.
2. Leave granted.
3. The instant appeal is directed against the final
th
judgment and order dated 29 September, 2022,
passed by the Division Bench of the High Court of
1
Delhi at New Delhi in Criminal Appeal No. 281 of
Signature Not Verified
Digitally signed by
NITIN TALREJA
Date: 2025.11.17
16:21:39 IST
Reason:
1
Hereinafter, referred to as the “High Court”.
1
2021, whereby the appeal preferred by the appellant
2
Raj Kumar @ Bheema came to be dismissed,
th
affirming the judgment dated 12 February, 2021,
rendered by the learned Additional Sessions Judge,
3
South East, Saket Courts, New Delhi . By the said
judgment, while the accused-appellant was acquitted
of the charges under Sections 3, 3(1)(i), 3(1)(ii), 3(2),
and 3(4) of the Maharashtra Control of Organised
4
Crime Act, 1999 , and Sections 396, 307, 397, 412
5
read with Section 34 of the Indian Penal Code, 1860 ,
he was convicted for the offence punishable under
Section 302 IPC, whereas the remaining co-accused
were acquitted. The High Court further affirmed the
th
order on sentence dated 20 February, 2021,
whereby the accused-appellant was sentenced to
2
Hereinafter, referred to as the “accused-appellant”.
3
Hereinafter, referred to as the “trial Court”.
4
For short, ‘MCOCA’.
5
For short, ‘IPC’.
2
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
undergo imprisonment for life with a fine of
Rs.5,000/-, and in default whereof, to further
undergo simple imprisonment for a period of one
month.
PROSECUTION CASE
nd rd
4. On the intervening night of 2 /3 November,
2008, at about 1:50 a.m., an information was
received at Police Station, New Friends Colony
through wireless operator, regarding an incident of
house breaking by night at House No. 81, Sukhdev
Vihar, near Escort Hospital, where the intruders were
allegedly assaulting the occupants of the premises.
At about 2:00 a.m., further information was received
at the said Police Station, which was reduced into
writing vide DD No. 29A, as per which, Head
Constable Bhagirath (PW-7) informed that SI Sanjeev
Solanki (PW-17) may be sent to the spot.
3
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
5. Pursuant thereto, SI Sanjeev Solanki (PW-17),
accompanied by Constable Ashok Kumar (PW-9),
proceeded to the place of occurrence and apprised
the Additional S.H.O., who arrived there shortly
thereafter. Upon entering the premises, they found
the sliding door of the drawing room broken, the side
grill bent, the house ransacked, and the household
articles scattered. A large pool of blood was noticed
in the lobby, where the dead body of an elderly male
(deceased-Madan Mohan Gulati) was lying, alongside
certain articles. Bloodstains and articles in disarray
were also observed in the adjoining bedroom.
6. On hearing faint cries emanating from the
adjoining bedroom, the police officials rushed inside
and found an elderly lady, later identified as Smt.
Indra Prabha Gulati (PW-18), lying in an injured
condition. She was immediately shifted to AIIMS
Hospital by the PCR. Thereafter, SI Sanjeev Solanki
4
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
(PW-17), accompanied by Inspector S.K. Sharma
(PW-15), proceeded to the Trauma Centre, AIIMS,
where Smt. Indra Prabha Gulati (PW-18) was under
6
treatment. Medico-Legal Certificate (MLC) of the
injured, Smt. Indra Prabha Gulati (PW-18) was
rd
prepared on 3 November, 2008, by Dr. Sharwan.
The MLC recorded that the injured was fit for
statement and noted multiple grievous stab injuries,
including blood clots around the nether region, scalp-
deep wounds, and a lacerated wound near the right
eyebrow. The nature of the weapon used to cause the
injuries was opined to be sharp.
7. Upon being declared fit, the statement ( Fard
7
bayan ) of Smt. Indra Prabha Gulati (PW-18) was
recorded by SI Sanjeev Solanki (PW-17) and based on
the said statement, Inspector S.K. Sharma (PW-15)
6
Exh. 21/A.
7
Exh. PW-17/A.
5
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
prepared a rukka and handed it over to SI Sanjeev
8
Solanki (PW-17), pursuant to which an FIR came to
be registered at Police Station, New Friends Colony,
for the offences punishable under Sections
394/397/302/307/34 of IPC.
th
8. On 5 November, 2008, body of the deceased
Madan Mohan Gulati was identified by his son-Vivek
Gulati, and by his nephew-Servesh Gulati (son of the
deceased’s younger brother). The post-mortem
examination of the deceased was thereafter carried
out, and the post-mortem report was issued wherein
the cause of death was opined to be shock and
haemorrhage on account of multiple antemortem
injuries. The opinion on the weapon of offence
(knife/ chheni ) was also obtained from the doctor.
8 rd
FIR No. 601/2018 dated 3 November, 2008.
6
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
st
9. The accused-appellant was apprehended on 21
November, 2008, based on the description allegedly
provided by the injured eye-witness, Smt. Indra
Prabha Gulati (PW-18). It is alleged that the accused-
9
appellant gave a disclosure statement , and in
furtherance thereof, he led the police party to an open
area near bushes situated at Pul Prahladpur, from
where a blood-stained Eagle brand pant was
recovered from a pit. The pant was duly seized and
sealed. On the following day, while the appellant was
on police remand, his disclosure led to the arrest of
the co-accused persons.
th
10. On 25 November, 2008, pursuant to a
10
supplementary disclosure statement , the appellant
purportedly led the police party to the bushes near
the railway track behind Priyanka Camp, from where
9
Exh. PW 14/A.
10
Exh. PW-14/N.
7
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
one chheni was recovered. The same was also seized
and sealed. Thereafter, the accused-appellant also
facilitated the recovery of the robbed articles, namely,
one idol of Lord Ganesha and a Panasonic CD player,
from his Jhuggi .
11. Shri Vivek Kumar Gulati, son of the deceased
and Smt. Indra Prabha Gulati (PW-18) identified the
11
case property in the Test Identification Parade
th 12
conducted on 6 December, 2008. The proceedings
of the TIP were conducted by Shri Devendra Kumar
Jangala (PW-16), learned Additional District Judge,
West, Tis Hazari Courts.
th
12. On 24 December, 2008, TIP was organized in
respect of the accused Raj Kumar @ Bheema,
Jawahar, Ranbir @ Sintu, and Naeem @ Mota;
however, they refused to participate in the same.
11
For short, ‘TIP’.
12
Exh. PW16/B.
8
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
Upon comparison, the fingerprints of the accused
Jawahar and Ranbir @ Sintu were found to tally with
the chance prints lifted from the spot. The site
inspection plan was prepared, and the material
exhibits were forwarded to the Forensic Science
13 nd
Laboratory on 22 January, 2009. Upon
completion of the investigation, chargesheet in
nd
connection with the said FIR came to be filed on 2
February, 2002, against the accused, namely, Raj
Kumar @ Bheema, Ramesh Kumar @ Shankar,
Naeem Khan @ Mota, Jawahar, and Ranbir @ Sintu,
in the Court of the learned ACMM, for offences
punishable under Sections 3, 3(1)(i), 3(1)(ii), 3(2), and
3(4) of the MCOCA, and Sections 396, 307, 397, 412
read with Section 34 of IPC. One of the accused,
namely, Kastoori, could not be traced out despite best
efforts, and proceedings under Sections 82 and 83 of
13
For short, ‘FSL’.
9
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
14
the Code of Criminal procedure, 1973 were initiated
against him and his name was placed in Column No.
2 of the chargesheet. Since the offences were triable
exclusively by the Court of Sessions, the learned
ACMM, after compliance with the provisions of
Section 207 CrPC, committed the case to the Court
of Sessions for trial, where charges were framed
against the accused. They abjured their guilt and
claimed trial.
13. During the course of trial, the prosecution
examined 27 witnesses and exhibited 25 documents
in consolidated form to prove the guilt of the accused.
The accused Ramesh @ Shankar examined one
witness in defence. Upon closure of prosecution
evidence, statements of the accused persons were
recorded under Section 313 CrPC affording them an
opportunity to explain the incriminating material
14
For short, ‘CrPC’.
10
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
appearing against them. The accused-appellant, in
answer to Question No. 82, categorically stated, “I am
innocent and have been falsely implicated in the
present case. PW-17 Inspector Sanjeev Solanki was
known to me prior to the present case, and he has
falsely implicated me in this case.”
FINDINGS OF THE TRIAL COURT
14. Upon consideration of the arguments advanced
by the prosecution and the defence, and after
appreciating the evidence available on record, the
th
trial Court, vide judgment dated 12 February, 2021,
acquitted the accused persons other than the
appellant Raj Kumar @ Bheema, holding that the
case against him stood proved beyond reasonable
doubt only for the offence punishable under Section
302 IPC. He was acquitted of the remaining charges.
The conviction was primarily based on the testimony
of the eye-witness, Smt. Indra Prabha Gulati (PW-18),
11
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
who identified the appellant during her testimony
(recorded over video conferencing) while failing to
identify the remaining accused, coupled with the
purported recovery of weapon of offence at the
instance of the accused-appellant.
th
15. Further, the trial Court, vide order dated 20
February, 2021, directed the accused-appellant to
15
undergo sentence as mentioned hereinabove.
FINDINGS OF THE HIGH COURT
16. In appeal by the accused-appellant, the High
Court affirmed the findings of the trial Court vide
16 nd
judgment dated 22 September, 2022, finding no
infirmity in the judgment and order passed by the trial
Court, holding that the prosecution case essentially
rested upon the identification of the accused-appellant
by the injured witness and the recoveries effected at
15
Supra para 3 .
16
Crl.A. 218/2021.
12
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
his instance. The High Court rejected the submission
advanced on behalf of the appellant that the
identification of the appellant by Smt. Indra Prabha
Gulati (PW-18) was doubtful as she failed to identify
the other accused, on the ground that, insofar as the
present accused-appellant was concerned, she was
categorical in her testimony that he was one of the
assailants.
17. The High Court observed that non-recovery of
the appellant’s finger prints from the place of incident
would not absolve him of participation in the offence,
which stood established by the identification made by
the injured victim, Smt. Indra Prabha Gulati (PW-18).
It was further noted that pursuant to the disclosure
made by the appellant, the pant allegedly worn by him
at the time of incident was recovered, on which human
blood was detected, and no plausible explanation was
forthcoming from the appellant as to the presence of
13
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
human blood on his wearing apparel. The Court also
held that merely because the son of the deceased and
the injured victim, who had identified the robbed
articles in TIP, did not appear in the witness box to
identify the recovered articles, would not discredit the
rest of the evidence led by the prosecution, which was
sufficient to prove the guilt of the appellant for the
offence alleged, beyond reasonable doubt.
18. Aggrieved, the accused-appellant is before us in
the present appeal by way of special leave.
Submissions on behalf of accused-appellant
19. Learned counsel for the appellant, vehemently
and fervently urged that the High Court fell in grave
error in affirming the conviction of the accused-
appellant recorded by the trial Court, which is wholly
unsustainable in law. It was contended that the
prosecution case rests entirely upon the testimony of
the old and infirm witness Smt. Indra Prabha Gulati
14
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
(PW-18), who was admittedly suffering from weak
eyesight. Accordingly, her testimony is riddled with
inconsistencies and is far too unconvincing so as to
form the sole basis for upholding a conviction for an
offence punishable with capital punishment.
20. It was further contended that Smt. Indra Prabha
Gulati (PW-18) identified the appellant in Court
th
through video conferencing on 8 May, 2017, after an
inordinate delay of nearly eight and a half years from
nd
the incident dated 2 November, 2008, while notably
failing to identify any of the other accused. It was
urged that in his statement under Section 313 CrPC,
the accused-appellant specifically alleged that PW-18
had been tutored, as his photographs had already
been shown to the witness prior to her deposition.
21. It was averred that there were material
contradictions and improvements in the testimony of
PW-18. In her initial statement under Section 161
15
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
CrPC, she mentioned that the assailants were armed
with “knives, screwdriver, and rods,” but made no
reference to a “chheni.” The introduction of the
“chheni” for the first time during her sworn testimony
recorded after a lapse of more than eight years was a
material improvement, evidently tailored to align with
the alleged recovery. Moreover, she failed to identify
any of the co-accused, all of whom were acquitted,
rendering her solitary identification of the appellant
highly doubtful.
22. Learned counsel urged that the prosecution
placed reliance upon the alleged recoveries of a blood-
stained pant, a “chheni,” and articles such as a
Ganesh idol/CD player at the instance of the
accused-appellant. The first recovery attributed to
the accused-appellant was allegedly made pursuant
to his disclosure statement from an open area near
bushes at Pul Prahladpur, wherefrom a blood-stained
16
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
pant was recovered. The prosecution alleged that the
said pant had been worn by the appellant at the time
of the incident. However, the blood-stains detected on
the garment did not test positive for the blood group
lifted from the scene of occurrence. It was thus
contended that the said article could not be
connected with the present case, even after forensic
17
examination .
23. It was further urged that the said recovery
cannot be read in evidence under Section 27 of the
Evidence Act, 1872 inasmuch as in his disclosure
18 st
statement dated 21 November, 2008, the accused-
appellant did not state that he could get the article
recovered from an open place near Pul Prahladpur,
which, in any event, was accessible to all and sundry.
The learned counsel urged that all the recoveries were
17
Ex. PW-24/B read with Ex. PW-24/A.
18
Exhibit PW 14/A.
17
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
made without any independent witness being
associated to corroborate the same. It was further
averred that the alleged weapon of offence, namely
the “chheni,” was shown to have been recovered after
a lapse of 22 days from bushes near a railway track.
The said article was never shown to Smt. Indra
Prabha Gulati (PW-18) for identification, no
photographs were taken at the time of recovery, and
no independent witness was associated in the
process.
24. Placing reliance on the judgment of this Court
19
in Koppula Jagdish v. State of Andhra Pradesh ,
learned counsel further urged that the High Court
failed to appreciate that the appellant was wrongly
convicted for the offence under Section 302 IPC
simpliciter, inasmuch as no separate charge under
Section 302 IPC was framed against him. It was
19
(2005) 12 SCC 425.
18
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
pointed out that in the present case, all the accused
were charged under Sections 394, 397, 302, 307,
read with 34 IPC, and except for the appellant, all
other co-accused have been acquitted.
25. It was also urged that Shri Vivek Gulati, son of
the deceased, who had identified the robbed articles
during the TIP, did not appear in the witness box
during the trial to prove and identify the articles
allegedly recovered at the instance of the accused-
appellant, and hence, no adverse inference ought to
be drawn against the appellant on this count.
26. He, thus, implored the Court to accept the
appeal and set aside the impugned judgment(s).
Submissions on behalf of respondent-State
27. Per contra , Shri Vikramjeet Banerjee, learned
Additional Solicitor General, supported the impugned
judgment and urged that the appellant Raj Kumar @
Bheema was correctly identified by the injured eye-
19
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
witness, Smt. Indra Prabha Gulati (PW-18), in her
examination-in-chief as well as in her cross-
examination, as the person armed with a “ chheni”
and a rod, who inflicted blows upon her and her
husband, resulting in the death of the latter. It was
further submitted that the said weapons were
recovered from the appellant pursuant to his
disclosure statement, thereby corroborating the
version of the injured witness Smt. Indra Prabha
Gulati (PW-18).
28. It was further contended that, as per the
opinion rendered by Dr. Arvind Kumar (PW-1) with
regard to the weapon of offence, Exhibit V, i.e., the
recovered “chheni,” could be one of the weapons used
in the offence and that injuries marked B, C, and D
on the person of injured Smt. Indra Prabha Gulati
(PW-18) were possible by the said weapon.
20
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
29. The conduct and antecedents of the appellant,
including his status as a history-sheeter, repeated
involvement in criminal cases, and acts of
misconduct during incarceration, clearly reflect a
persistent pattern of unlawful behaviour.
Considering the heinous nature of the offence, being
the murder (for gain) of a senior citizen, the accused-
appellant does not deserve any indulgence, and the
gravity of the crime and the attendant circumstances
warrant dismissal of the appeal filed on his behalf.
30. He thus implored the Court to dismiss the
appeal, urging that the High Court had rightly
affirmed the conviction of the accused-appellant and
the sentence awarded to him by the trial Court. It was
further urged that upon an independent and
comprehensive appraisal of the evidence on record,
including the consistent testimonies of Investigating
Officer Shri S.K. Sharma (PW-15) and Smt. Indra
21
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
Prabha Gulati (PW-18), both the trial Court and the
High Court had recorded concurrent findings that the
prosecution had proved its case beyond reasonable
doubt, and hence no interference is warranted in the
impugned judgment.
Discussion and Analysis
31. We have given our thoughtful consideration to
the submissions advanced at bar and have carefully
gone through the impugned judgments, the material
available on record, as well as the written
submissions filed on behalf of both sides.
32. Since the appellant seeks reversal of concurrent
findings of fact recorded by the trial Court as well as
the High Court, this Court is required to tread with
circumspection. It has been consistently held by this
Court in a catena of decisions that unless the
findings are shown to be perverse or rendered in
disregard of material evidence, this Court would be
22
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
slow in interfering with concurrent conclusions of the
Courts below. Reference in this regard may be made
to the decision of this Court in the case of Mekala
20
Sivaiah v. State of Andhra Pradesh
, the relevant
para of which is quoted hereinbelow:
“15. It is well settled by judicial pronouncements
that Article 136 is worded in wide terms and
powers conferred under the said Article are not
hedged by any technical hurdles. This overriding
and exceptional power is, however, to be
exercised sparingly and only in furtherance of
cause of justice. Thus, when the judgment
under appeal has resulted in grave
miscarriage of justice by some
misapprehension or misreading of evidence or
by ignoring material evidence then this Court
is not only empowered but is well expected to
interfere to promote the cause of justice .”
(Emphasis is supplied)
33. Keeping the aforesaid principle in mind, this
Court would proceed to consider the appeal at hand
to examine whether there is some manifest error or
illegality in the impugned judgment , and if any grave
and serious miscarriage of justice has been
20
(2022) 8 SCC 253.
23
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
occasioned on account of misreading or ignoring of
material evidence in the present case.
34. Evidently, on a perusal of the judgments under
challenge and upon considering the submissions
advanced by learned Standing Counsel for the State,
it emerges that primarily three circumstances have
been relied upon by the prosecution to bring home its
case against the appellant:
i. The identification of the appellant in Court by
the prosecution witness Smt. Indra Prabha
Gulati (PW-18) during her sworn testimony.
ii. The refusal of the appellant to participate in the
TIP, leading to an adverse inference being drawn
against him.
iii. Recovery of weapon of offence stained with
human blood.
24
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
A. Identification by the Sole Eye-Witness
35. It is undisputed that the fulcrum of the
prosecution case is based on the testimony of Smt.
Indra Prabha Gulati (PW-18). Thus, for the sake of
ready reference, we quote the entire deposition of the
said witness below: -
“ON S.A.
On 03.11.2008 I was present in my house at 81
Sukhdev Vihar, New Delhi. It was the intervening
night of 2nd and 3rd November, 2008 and time
was 11.30/11.45pm. I and my husband heard
the noise of falling of utensils. My husband went
. I also followed him and we saw
to see the same
five persons had entered into our house from
the door of drawing room. Out of those,
one/two persons were in the kitchen and four
persons came through door of drawing room.
They were having chheni , screwdriver and
knives in their hands. They asked for keys from
my husband. We told them to wait and the one
boy who came from drawing room and was
having iron rod and chheni in his hands, gave
the blow from the iron blow on the head of my
husband. He fell down. I was also given blow
and became unconscious. I do not remember
now by whom the blow was given . I remained
in the hospital for about two months. Someone
called the police and I was taken by the police to
the hospital. I am having an 8 inch cut on my
25
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
stomach. I remained in Trauma Center. I was
also having bandage on my head and it might be
possible that blow was given on the head also. I
made statement to the police in the hospital
itself. It was given orally whatever was in my
memory as I was on hospital bed.
I remained in Moolchand Hospital for one
month and 10 days. I never met with the
police for this case after my discharge from
the hospital. I have never seen those boys
who came into my house thereafter.
At this stage, scanned image of signatures on
statement is shown to the witness through video-
link and after seeing it the witness states that the
same pertains to her which are at point A.
I can identify the accused if shown to me.
At this stage, accused persons who are facing
charges in this case, are shown through
audio-video link one by one and after seeing
accused the witness states that he is the
same boy who was having chheni and rod and
was giving blows to my husband. (The name
of accused is Raj Kumar).
Next accused is shown and after seeing him the
witness states that she is not remembering
complete and she is remembering face of only
one as she became unconscious. (The name of
accused is Ranbir).
Next accused is shown and after seeing him the
witness states that she does not know anything
about him. (The name of accused is Jawahar).
Next accused is shown and after seeing him the
witness states that she is remembering somehow
and it was 12.00midnight and 8 years have
passed she is not remembering further. She
further states that she cannot say whether he
26
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
was among those persons or not. (The name of
accused is Naeem)
Next accused is shown and after seeing him the
witness states that the boy shown first be stand
with him so that she may identify again. The
accused Raj Kumar is shown with this accused
to the witness. After seeing the accused Raj
Kumar, the witness states that he is one among
those boys but she is not sure about second boy.
(The name of second boy is Ramesh Kumar).
XXN by Sh. Sunil Dutt, Ld. Addl. P.P for the
State.
It is correct that when my husband fell down
after blows given to him, I was also given rod
blows and knife blows.
I do not remember that I fell down in Angan as I
was unconscious. I was told by the police
officials that I was taken to the room by the boys
dragging me. I do not know that they after
breaking open the almirah in the room took away
Rs.20000/- and the jewellery articles. I do not
remember whether I raised noise or not or that I
remained lied on the floor of the room. (Vol. I
regained my consciousness in the Trauma
Center). It is wrong to suggest that the number
of boys who entered into the house was 3-4. (Vol.
They were five in number).
I did not go to Patiala House Court on
26.12.2008. (Vol. My son went to Patiala
House court as I was ill). It is wrong to suggest
that in the Patiala House Court I identified
four boys as Raj Kumar @ Bheema, Ranbir @
Shintu, Jawahar and Naeem @ Mota and
stated to the police that they were the boys
who gave blows to my husband and me in my
27
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
house and took away cash and jewellary from
my house. (Vol. I did not go to PHC only my
son went there).
XXN by Sh. Mihi Lal Chaudhary, counsel for
accused Jawahar.
As far as I remember I regained consciousness
after three/four days in the Trauma Center and
at that time I was on ventilator.
XXN by Sh. S.M. Sallauddin, counsel for
accused Raj Kumar and Naeem, XXN by Sh.
V.P Kaushik, counsel for Ramesh Kumar, and
XXN by Sh. Sallauddin Khan, counsel for
accused Ranbir.
I do not remember the date when police met me
for the first time and the last time.
I cannot tell the name of the police official by
whom my statement was recorded. It was
recorded in the hospital. The signatures were
taken in the hospital and I do not remember now
whether it was in Trauma Center or Moolchand.
At that time police officials were present and my
son was also present. My son and daughter met
me in the Trauma Center. I do not remember the
date when they came to me in the Trauma
Center. It may be 4th or 5th. As far as I
remember I left India on 27.12.2008. I do not
remember whether my statement was written as
I told or not. (Vol. Due to the incident I was
unconscious and was not fit completely). I do not
remember how many pages were got signed by
me from the police. I do not remember whether I
signed any blank paper or not. If my signatures
were taken it might be that something was
written on the papers then my signatures were
28
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
taken. I do not remember whether the writing
were in hindi or english language. The witness
is confronted with the statement Ex.PW17/A
and is asked that in the same 'Chheni' word is
not mentioned in the same. I do not
remember about the colour of the
screwdriver. I do not remember what was the
length of the iron rod. The accused Raj Kumar
was worn black shirt. I do not remember
about the clothes of remaining boys.
I do not remember the name of tenant of that
time. He was from Hyderabad. He was in the
premises for about 2/2 1/2 years prior to
incident. They vacated the premises after the
incident as they were also afraid. I do not
remember whether the verification of the tenant
was got conducted from police or not. We were
not having permanent servant or chowkidar at
that time but however, Kamla was part-time
domestic helper. She was working for the last 15
years. She was residing in a room taken on rent
in the Sukhdev Vihar. Her husband was residing
with her occasionally. I do not know name of her
village. (Vol. She had told me but due to my age
I have forgotten the same).
I retired on 28.02.1997. It is correct that Kamla
was residing in the jhuggi of Sukhdev Vihar. It is
correct that in my presence no inquiries were
made from Kamla and her husband not their
statement was recorded in my presence. The
tenant has vacated my premises before I
discharge from hospital. I do not know whether
inquiries were made by the police from my tenant
in my presence. At the time of incident, I was
using spectacles occasionally as I was having
long sight (dur ki nazar kamzor thi). At
29
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
present I use the spectacles whenever I have
to do some work of near distant. At present I
am not wearing contact lenses. It is correct
that I did not receive injury on my head and I
received injury on my right side of forehead. I
cannot say whether there was any stitching on
the forehead or not but there was a bandage. I
do not remember the number of lenses which I
was using at that time.
The Counsel wants to contradict the witness
with her statement Ex.PW17/A that in the
same there is no description about the
clothes and physique of the boys. (it will be
looked by the court during the arguments as
the witness is being recorded through video-
conferencing). It is wrong to suggest that police
did not take any statement from me and my
signatures were taken on a blank paper. I never
visited police station in respect of this case. I was
shifted from Trauma Center to Moolchand
after 20 days. I was discharged from
Moolchand hospital on 24 оr 25.12.2008. I
did not go to police after 25.12.2008. Police
have not met me after 25.12.2008 till I left
India . I do not remember how many times police
met me while I was in Trauma Center. Perhaps,
once or twice they met me. During those visits
inquiries were made from me about the manner
of the incident and the assailants. I do not
remember the date when I regained my
consciousness . As far as I remember police
did not come to me while I was in Moolchand
Hospital.
I do not know the name of chowkidar as it was
kept by my son after the incident. It is wrong to
suggest that the boy who has been identified by
30
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
me today i.e. Raj Kumar was not involved in the
incident or that I have been shown the
photographs by the police.
The co-assailants were calling him "Bhima aur
maar, bhima aur maar to him". It is wrong to
suggest that my counsel has sent photograph of
Bhima to me and after seeing him I am
identifying him today. It is wrong to suggest that
my counsel has tutored me on telephone and
upon tutoring I am deposing today or that copy
of the statements has been sent to me and after
going through the same I have deposed today. It
is wrong to suggest that the dosier of Bhima with
the police has been sent to me by the counsel. It
is wrong to suggest that Bhima was not involved
in the incident occurred in the intervening night
of 2nd and 3rd November, 2008 or that I am
naming him at the instance of police.
th
Dated: 8 May, 2017.”
(Emphasis supplied)
36. Based upon the testimony, it is clear that the
witness Smt. Indra Prabha Gulati (PW-18) had
shifted to the United States of America immediately
after the incident, and her statement came to be
th
recorded through video conferencing on 8 May,
2017, i.e., after a gap of eight and a half years from
the occurrence. She stated that out of the five
assailants who had entered the house, one or two
31
Crl. Appeal@ SLP (Crl.) No(s). 697/2024
went towards the kitchen, while four entered through
the drawing room door. They were armed with a
chheni , screwdriver, and knife, and demanded the
keys from her husband. Upon his request for some
time, one of the assailants, who was carrying an iron
rod and a chheni , inflicted a blow on the head of her
husband, who collapsed. She too was given a blow,
though she could not recollect as to who had inflicted
the injury. She further stated that she remained
admitted in Moolchand Hospital for about one month
and ten days. She categorically asserted that she
never saw the assailants thereafter and that she
neither met the police nor did she go to the Patiala
House Courts after being discharged.
37. The Public Prosecutor requested the witness to
identify the accused on the video display and from
amongst the accused present in the dock, who were
shown to the witness, she identified the accused-
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appellant as the assailant who was armed with a
chheni and a rod and who had inflicted blows upon
her husband.
38.
The witness further stated that she could
remember the face of only one accused, as she had
become unconscious, and thus she was unable to
identify any of the other assailants who were
presented for identification. The learned Public
Prosecutor sought permission of the Court to cross-
examine the witness on the ground that she was not
narrating complete facts disclosed during
investigation. However, in response to the
suggestions of the Public Prosecutor, she gave
discrepant answers.
39. To a material suggestion, the witness replied: “I
did not go to Patiala House Court on 26.12.2008” and
volunteered that her son had gone to the Court as
she was unwell. She denied the suggestion that she
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had identified four boys, namely Raj Kumar, Ranbir,
Jawahar, and Naeem @ Mota, in the Patiala House
Court and affirmed to the police that they were the
assailants who inflicted blows on her husband and
looted cash and jewellery from the house.
40. In her cross-examination, the witness stated
th
that she had left India on 27 December, 2008. She
admitted that she could not recollect whether her
statement had been recorded in the manner she had
spoken. She volunteered that owing to the assault ,
she became unconscious and was not fully fit. She
further stated that the accused-appellant Raj Kumar
was wearing a black shirt, but she could not recollect
the clothes of the other assailants.
41. Learned defense counsel sought to confront and
contradict the witness with reference to her previous
21
statement under Section 161 CrPC on the aspect
21
Exh PW-17/A.
34
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that there was no description of the clothes or
physique of the assailants in such statement. The
trial Court observed that the effect of such
omission/improvement would be considered at the
stage of final arguments, since the witness was being
examined through video conferencing . The witness
further stated that she was discharged from
th th
Moolchand Hospital on 24 /25 December, 2008,
th
and that she did not go to the police after 25
December, 2008. She was confronted with a
pertinent suggestion that the police had shown her
the photographs of Raj Kumar and that her counsel
had also seen the photograph and tutored her for
identifying the appellant, which she denied.
42. We must take note of and resolve a very
important feature being a procedural irregularity
which has arisen in this case. As would be evident
from the discussion made hereinabove, the evidence
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of the star prosecution witness Indra Prabha Gulati
(PW-18) was recorded through video conferencing
because she had in the intervening period shifted to
Canada.
43. During the course of cross-examination, the
defence tried to confront the witness (PW-18) with
her previous statement so as to elicit a
contradiction/highlight an omission. However, the
trial Court observed that this objection would be
considered at the time of final adjudication because
the witness (PW-18) was not present before the Court
and the document being the previous statement in
writing could not be shown to her (supra) .
44. However, on going through the trial Court’s
judgment, we do not find any discussion made
regarding this pertinent objection by the defence.
45. The Evidence Act/ Bharatiya Sakshya
Adhiniyam, 2023 provide the procedure for evidence
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as to the matters in writing and cross-examination as
to previous statements in writing. Section 147 of the
BSA (144 of the Indian Evidence Act and Section 148
of the BSA (Section 145 of the Indian Evidence Act)
are reproduced hereinbelow for the sake of
convenience: -
“147. Evidence as to matters in
writing .—Any witness may be asked,
while under examination, whether any
contract, grant or other disposition of
property, as to which he is giving
evidence, was not contained in a
document, and if he says that it was, or if
he is about to make any statement as to
the contents of any document, which, in
the opinion of the Court, ought to be
produced, the adverse party may object to
such evidence being given until such
document is produced, or until facts have
been proved which entitle the party who
called the witness to give secondary
evidence of it. Explanation.— A witness
may give oral evidence of statements
made by other persons about the contents
of documents if such statements are in
themselves relevant fact.
148. Cross-examination as to previous
statements in writing.— A witness may
be cross-examined as to previous
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statements made by him in writing or
reduced into writing, and relevant to
matters in question, without such writing
being shown to him, or being proved; but,
if it is intended to contradict him by the
writing, his attention must, before the
writing can be proved, be called to those
parts of it which are to be used for the
purpose of contradicting him.”
46. A plain reading of the above provisions would
make it clear that wherever questions are required to
be put as to the matters in writing/previous
statements in writing, the attention of the witness
must be drawn to the document/statement itself.
Thus, a question would arise as to how this
procedure would be followed in cases where the
evidence of the witness is being recorded over video
conferencing.
47. In this age of advancement of technology,
instances are galore where, the evidence of witnesses
are being recorded over video conferencing. In such
circumstances, none of the parties should be put to
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Crl. Appeal@ SLP (Crl.) No(s). 697/2024
a dis-advantage merely because the witness is not in
attendance before the Court, and the
document/previous statement in writing with which
such witness is sought to be confronted, cannot be
shown/put to him.
48. Therefore, we hereby clarify and direct that in
every case where, it is proposed to record the
statement of a witness over video conferencing and
any previous written statement of such witness or a
matter in writing is available and the party concerned
is desirous of confronting the witness with such
previous statement/matter in writing, the trial Court
shall ensure that a copy of the statement/document
is transmitted to the witness through electronic
transmission mode and the procedure provided
under Section 147 and Section 148 of the Bharatiya
Sakshya Adhiniyam (corresponding Section 144 and
Section 145 of the Evidence Act) is followed in the
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Crl. Appeal@ SLP (Crl.) No(s). 697/2024
letter and spirit, so as to safeguard the fairness and
integrity of the trial.
49. This direction is being issued with a view to
avoid procedural irregularities and to prevent
disadvantage to any party before the Court, and also
to uphold the principles of fair trial, effective cross-
examination, and proper appreciation of evidence.
50. From the statement of the witness, the following
material facts emerge:
(a) She identified the accused-appellant in Court
while being examined through video
conferencing, nearly eight and a half years after
the incident.
(b) She admitted that she had been discharged
th th
from Moolchand Hospital on 24 or 25
December, 2008.
(c) She used to wear spectacles as her distance
vision was weak. At the time of dock
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Crl. Appeal@ SLP (Crl.) No(s). 697/2024
identification, the witness was not wearing
spectacles.
(d) Not even a bare suggestion was put to her by
the Public Prosecutor that she had been taken
to the police station or jail for TIP proceedings.
Most material is the fact that the witness
emphatically denied the suggestion of the
Public Prosecutor that she had gone to the
th
Court on 26 December, 2008, and identified
the assailants.
Identification in Court after delay – Unsafe and
Improbable
51. It is trite that the evidence of an eye-witness
must be of sterling quality and unimpeachable
character. It should not only inspire the confidence
of the Court but must also be of such a nature that
is acceptable at its face value.
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52. We may note that the possibility of identification
of the accused-appellant by Smt. Indra Prabha Gulati
(PW-18) in Court, after a lapse of nearly eight and a
half years from the incident, is extremely unlikely. In
her testimony, the witness candidly admitted that her
distance vision was weak and that she could not see
objects at a distance without spectacles. It is also
borne out from the record that even at the time of the
incident, she was aged about 73 years and was
infirm. She was not wearing spectacles at the time of
her deposition via video conferencing . In this
background, her purported identification of the
assailant after such a long lapse of time, that too over
video conferencing, does not inspire confidence.
53. Furthermore, when a suggestion was put to the
witness by the Public Prosecutor in cross-
examination as to whether she had gone to the
Patiala House Courts for identifying the four
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assailants, the witness emphatically denied the
same.
54. In her cross-examination, the witness Smt.
Indra Prabha Gulati (PW-18) stated that the accused-
appellant Raj Kumar @ Bheema was wearing a black-
coloured shirt, which is an improvement introduced
for the first time after nearly eight and a half years.
This appears to be one of the probable reasons for her
identification of the accused-appellant. No identifying
feature of the assailants was disclosed in her
22
previous statement recorded under Section 161
CrPC, wherein no physical description of the accused
persons or clothes worn by them at the time of the
incident was mentioned. Such an embellishment
casts a serious doubt on the reliability of her dock
identification and is suggestive of a clear attempt to
fill critical lacunae in the prosecution case.
22
Exh. PW-17/A.
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55. In assessing the credibility of a witness, the
testimony must inspire confidence in the judicial
mind, and omissions, improvements, or
contradictions touching the core of the prosecution
version inevitably undermine such assurance. This
Court has consistently held that minor discrepancies
are not fatal, but material improvements that go to
the root of the matter essentially erode the credibility
of the witness.
56. In view of the aforesaid glaring facts emerging
from the testimony of Smt. Indra Prabha Gulati (PW-
18), it would be unsafe to place reliance on her
evidence regarding the identification of the accused.
Once her identification of the accused-appellant in
Court is discarded, no substantive evidence remains
on record to connect the accused with the crime.
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B. Glaring Infirmities in the Test Identification
Proceedings
57. The trial Court, as well as the High Court, drew
an adverse inference against the accused-appellant
on the ground that he declined to participate in the
TIP. However, the fact remains that the very sanctity
of the TIP stands under a serious cloud of doubt when
it is manifest that Smt. Indra Prabha Gulati (PW-18)
did not go for participating in any such identification
parade.
58. In this context, it would be essential to advert to
the prosecution case regarding the effort made by the
Investigating Officer to get the appellant subjected to
the TIP.
59. It is the case of the prosecution that the accused
st
was arrested on 21 November, 2008. On perusal of
23
the arrest memo , it is apparent that there is no
23
Exh. PW- 14/B.
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mention in the document that the face of the accused
was kept baparda (muffled) after his arrest. A doubt
on the prosecution case on identification thus arises
from this very stage.
60. The evidence of the first Investigating Officer
Shri S.K. Sharma (PW-15), who effected the arrest of
st
the accused-appellant on 21 November, 2008, has
been carefully examined. The Investigating Officer
(PW-15), though, stated in his deposition that at the
time of the arrest of the accused-appellant Raj Kumar
@ Bheema, his face was kept muffled. However, this
assertion stands contradicted by the arrest memo,
which contains no such recital.
61. The Investigating Officer further stated that the
accused-appellant was interrogated and, in
furtherance thereof, recoveries were affected vide
memoranda Exh. PW-14/D, Exh. PW-14/O, Exh.
PW-14/P, and Exh. PW-15/H. A careful scrutiny of
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these memoranda would show that there is no
reference therein that the face of the accused was
muffled at the time of the recovery proceedings. This
significant omission lends support to the plea taken
by the accused-appellant during the TIP and in his
statement under Section 313 CrPC that he had
already been shown to the witness, and his
photographs had been taken by the Investigating
Officer, which were later used for dock identification.
62. It is trite that where the witnesses have had an
opportunity to see the accused prior to the holding of
the TIP, the evidentiary worth of such proceedings
stands considerably diminished. It is the duty of the
prosecution to establish beyond doubt that right from
the time of arrest, the accused was kept baparda to
rule out the possibility of his face being seen before
the identification proceedings are conducted. If the
witnesses have had any opportunity to see the
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accused before the TIP – whether physically or
through photographs – the credibility and sanctity of
the identification proceedings would stand seriously
compromised.
63. Another material infirmity in the prosecution
case relates to the procedural aspects of the TIP.
From the evidence of Smt. Indra Prabha Gulati (PW-
18), it is evident that she categorically stated that she
was discharged from Moolchand Hospital on
th th
24 /25 December, 2008. She did not utter even a
single word to suggest that she had been taken to
prison or any Court for participating in any such
proceedings. Further, the witness was emphatic in
stating that neither did she meet the police nor did
she visit the Patiala House Courts after being
discharged from the hospital . It is also pertinent to
note that no document pertaining to the treatment or
discharge of Smt. Indra Prabha Gulati (PW-18) was
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Crl. Appeal@ SLP (Crl.) No(s). 697/2024
proved on record by the prosecution. Consequently,
a grave doubt arises regarding the very possibility of
any TIP proceedings having been conducted in the
presence of the witness Smt. Indra Prabha Gulati
th
(PW-18) on 24 December, 2008.
64. This conclusion gets support from the evidence
of the ACMM, Smt. Surya Malik Grover (PW-12), who,
in her deposition, only stated that the Investigating
Officer informed her that the identifying witness was
standing outside. Significantly, there is no signature
of the identifying witness Smt. Indra Prabha Gulati
(PW-18) on any of the documents prepared in
connection with the TIP.
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,
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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.
66. Furthermore, in such circumstances and
considering the significant improvements made by
Indra Prabha Gulati (PW-18) from her previous police
statement on the aspect of identifying features (black
shirt), the dock identification of the accused-
appellant made by the injured witness, Smt. Indra
Prabha Gulati (PW-18), during the course of her
evidence through video-link, recorded nearly eight
50
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and a half years after the incident would be unsafe to
rely upon.
C. Recoveries and Non-identification of Articles
67. In addition to the above, the prosecution placed
reliance on the alleged recoveries of looted articles at
the instance of the accused. However, it is pertinent
to note that Smt. Indra Prabha Gulati (PW-18) was
not made to identify the said articles during her
testimony. Furthermore, Vivek Gulati, son of Smt.
Indra Prabha Gulati (PW-18), who is stated to have
identified the articles in the TIP, was not examined
during the trial. Consequently, the alleged recoveries
lose their evidentiary worth and cannot be relied
upon, as there is no credible proof that they are the
looted articles.
68. The prosecution has tried to claim that the
accused-appellant could not offer any explanation for
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the presence of human blood on the pant recovered
24
at his instance, which he had allegedly worn at the
time of the incident, which circumstance is
incriminating. However, indisputably, the blood
stains on the pant could not be matched with the
blood sample lifted from the scene of occurrence or
with the blood group of the deceased or the injured
25
victim, as the Serology report recorded “no reaction”
in respect of blood grouping for Exh. 20 (Pant). On
this count alone, guilt cannot be fastened upon the
appellant, as the recovery by itself is not sufficient to
prove the case beyond reasonable doubt. The mere
availability of human blood on an article is not
sufficient unless it is further corroborated by a
matching blood group with that of the deceased.
24
Exh. PW-14/D.
25
Exh. 24/B.
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69. Once the identification of the accused by Smt.
Indra Prabha Gulati (PW-18) is discarded, and the
recovery of articles cannot be connected either with
the crime or with the accused, no substantive or
credible evidence remains on record to link the
accused with the offence.
CONCLUSION
70. In view of the discussion made hereinabove, the
impugned judgments do not stand to scrutiny. The
appeal is, thus, allowed.
th
71. The judgment dated 29 September, 2022,
passed by the High Court, as well as the judgment of
th
conviction dated 12 February, 2021, and the order
th
of sentence dated 20 February, 2021, passed by the
trial Court, are hereby set aside.
72. The accused-appellant is acquitted of the
charges. He has remained in custody for almost 15
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and a half years and shall be released from prison
forthwith, if not wanted in any other case.
73. Pending application(s), if any, shall stand
disposed of.
….……………………J.
(VIKRAM NATH)
...…………………….J.
(SANDEEP MEHTA)
NEW DELHI;
NOVEMBER 17, 2025.
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