Mr. Anwesh Madhukar (DHCLSC), Mr. Ishat Singh Prachi Nirwan, and Ms. Advocates v. THE STATE

Judgment

1. The present appeal has been filed under Section 374(2) read with Section 383 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’) assailing the judgement dated 19th November, 2022 and order on sentence dated 1st March, 2023 passed by Ms. Manisha Khurana Kakkar, Ld. ASJ-01 (FTC)-01 South District, Saket Courts, Delhi whereby the Appellant has been convicted in Sessions Case No. 172/2015 arising out of FIR No. 131/2012 registered at Signature Not Verified Police Station, Safdarjung Enclave under Section 302 of the Indian Digitally Signed By:SHIWANI NEGI Signing Date:10.01.2025 18:23:02 CRL.A. 639/2023 Penal Code (hereinafter referred to as ‘IPC’).

2. Vide the aforesaid impugned judgement of conviction and order on sentence, the Appellant had been convicted for the offence punishable under Section 302 of the IPC. The Appellant has been sentenced to undergo imprisonment for life and a fine of Rs.5,000/- and in default of payment of fine, to further undergo a rigorous imprisonment for a period of six months. BRIEF BACKGROUND

3. i) Prosecution’s case before the learned Trial Court is as follows: On 24th April, 2012 at about 6:20 a.m., the body of the deceased was found at the Naala behind Green Fields School, A-1 Block, Safdarjung Enclave, New Delhi. It is stated that the first call was received by the Police Control Room (‘PCR’) at 6:55 a.m. regarding the recovery of a dead body. The said phone call was made by one Rajesh Kumar Ranjan (PW-2) who worked as a guard on night duty at the Central Market, Safdarjung Enclave. When PW-2 had reached the spot, he found a man lying unconscious with blood after which he called the Police from his mobile phone which he had purchased from his neighbor Rajeev Gupta, in whose name the said telephone number was registered. ii) Upon receiving the information, the Station House Officer, Inspector Sandeep Ghai (PW-25) along with other Police officers had reached the spot i.e., Ganda Naala from where the dead body was Signature Not Verified recovered which belonged to a male aged about 40-42 years having Digitally Signed By:SHIWANI NEGI Signing Date:10.01.2025 18:23:02 CRL.A. 639/2023 stab injuries on the left side of his chest and neck. The clothes of the deceased were also smeared with blood and mud. Inquiries were made at the time to identify the deceased, and a black bicycle with two sacks of garbage was found lying on the service road near the Naala. It was found that the bicycle had belonged to a rag picker of Jhuggi Cluster, Sector-1, R.K. Puram after which one Mahender Singh (PW-3) was traced who identified the deceased as Dharampal, who resided in the Jhuggi cluster of Sector 1, R.K. Puram and was a native of Bijnor, Uttar Pradesh. iii) Upon personal search of the deceased by Head Constable Yadvir (PW-16), one Samsung mobile phone in red and black colour, cash amounting to Rs. 150/- and a bundle of bidis and matchbox was recovered which were seized vide seizure memo (Ex. PW12/A). At the time, Inspector Naresh Kumar (PW-8) along with the crime team had also reached the spot around 7:30 a.m. pursuant to which a crime scene report (Ex. PW8/A) was prepared and was handed over to the Investigation Officer, Sandeep Ghai (PW-25) in which it was recorded that the injuries were inflicted by a sharp-edged weapon on the neck and the chest of the deceased. iv) Then, the body was sent to the mortuary of Jai Prakash Narayan Apex Trauma Centre, AIIMS through PW-16. Further, a rough site plan (Ex. PW12/B) was prepared by PW-25 and the exhibits were lifted from the spot i.e., blood from the place where dead body was lying, blood which was found at a distance of 8-10 feet from the dead body, earth, pair of chappals belonging to deceased and the bicycle Signature Not Verified which belonged to deceased were taken into possession by the Police Digitally Signed By:SHIWANI NEGI Signing Date:10.01.2025 18:23:02 CRL.A. 639/2023 apart from two garbage sacks which were lying on the deceased’s bicycle. All the exhibits were sealed in separate parcels and taken into possession by the Police vide seizure memo Ex.PW 12/C. v) Then, PW-25 also prepared the rukka (Ex. PW-25/A) on DD

No. 6A for the registration of the FIR which was handed over to Constable Naresh (PW-20) who took the same to P.S. Safdarjung Enclave, pursuant to which FIR No. 131/2012 was lodged at P.S. Safdarjung for the offence under Section 302 IPC, at about 10:30 a.m. on the date of the incident. Upon inquiries being made by the Police, one Smt. Ram Pyari (PW-1) who ran a shop of cigarettes, bidis, matchbox and bangles in the Central Market, Safdarjung Enclave stated that on 24th April, 2012, the Appellant, who worked at Chawla Chicken Shop came to her asking for a bidi to which she had refused, she further stated that the Appellant went towards the Naala, where one Kabari (rag-picker) was present as well. vi) PW-1, Ram Pyari had also stated that she saw the Appellant taking a knife from his chicken corner and going towards the Naala after which she saw the Appellant giving 3-4 knife blows to the rag- picker. Thereafter, the Appellant ran away with the said knife. As per PW-1, there were blood stains on the shirt of the accused person and that the Kabari had died later. It was also stated that the Appellant had a habit of taking Ganja. The statement of the said eye-witness was recorded by PW-25. vii) It was stated by PW-25 that around 9:00 p.m. on the date of the Signature Not Verified incident, i.e., 24th April, 2012, he had received secret information Digitally Signed By:SHIWANI NEGI Signing Date:10.01.2025 18:23:02 CRL.A. 639/2023 about the presence of the Appellant, who was hiding himself in the forest area behind R.K. Khanna Stadium, Safdarjung Enclave. A raiding team was prepared by the Investigating Officer (PW-25) consisting of Head Constable Sunil (PW-24) and Constable Naresh (PW-20) to apprehend the accused person. The Appellant was then arrested vide arrest memo (Ex. PW7/F) based on the identification of one Harjeet Singh Chawla (PW-7) who owned the shop named ‘Chawla Chicken’. Then, the disclosure statement of the Appellant was recorded vide Ex. PW7/A. The Appellant, thereafter, had led the Police officials to the bushes near F-Block, Nauroji Nagar where a knife was recovered with blood stains from the said bushes. A sketch of alleged murder weapon, i.e., the knife was prepared vide Ex. PW7/B and the same was seized vide seizure memo (Ex. PW7/C). The site plan of the place of recovery of the knife was also prepared vide Ex. PW7/E. viii) Further, the blood sample of the Appellant was also obtained and seized vide seizure memo Ex. PW25/B. Blood-stained clothes worn by the Appellant at the time of the incident had also been seized vide seizure memo Ex. PW7/D in the presence of PW-7. The samples of the blood of the deceased Dharampal, blood-stained clothes of the Appellant and the recovered knife were sent to the Forensic Science Laboratory, Rohini on 5th June, 2012 which were examined by Dr. D.S. Paliwal (PW-27) to generate DNA profiles abovementioned samples. The FSL: DNA Report bearing No- 2012/DNA-4042/1555 dated 6th June, 2013 (Ex. PW25/F) was then sent to the SHO, P.S. Safdarjung Enclave which was signed by PW- Signature Not Verified

27. In the said report, it was stated that the DNA profile generated Digitally Signed By:SHIWANI NEGI Signing Date:10.01.2025 18:23:02 CRL.A. 639/2023 from the blood of the deceased Dharampal was found to be “similar” as that of the DNA profile generated on the blood-stained knife, which was the alleged murder weapon in the present case recovered at the instance of the Appellant. ix) Then, the MLC Report of the deceased (Ex. PW10/A) dated 24th April, 2012 was prepared. The Post-Mortem Report of the deceased (Ex. PW4/A) was prepared on 25th April, 2012 wherein it was opined by Dr. Sanjay (PW-4) that the time of death of the deceased was one and a half days ago. As per the said Post-Mortem Report, several incised wounds were present on the neck and chest area of the deceased which were produced by a sharp weapon which were sufficient to cause death in the ordinary course of nature. As per the subsequent opinion (Ex. PW4/B) given by PW-4, in respect of the Post-Mortem Report as well as the MLC Report, the said injuries on the deceased were possible to have been inflicted by the recovered weapon, i.e., the knife.

4. After the investigation was concluded, charges were framed on 22nd August, 2012 by the learned Trial Court against the Appellant for inflicting knife injuries upon him with an intention to kill Dharampal, thereby committing an offence punishable under Section 302 of the IPC. The Appellant pleaded not guilty to the aforesaid charge and claimed trial.

5. Prosecution has examined 27 witnesses in order to prove the charges levelled against the Appellant. Learned Trial Court after Signature Not Verified examining the testimonies of the prosecution witnesses and various Digitally Signed By:SHIWANI NEGI Signing Date:10.01.2025 18:23:02 CRL.A. 639/2023 other evidences placed on record convicted and sentenced the Appellant for the offence punishable under Section 302 of the IPC. Hence, the present appeal. SUBMISSIONS ON BEHALF OF THE APPELLANT

6. Ld. Counsel for the Appellant, Mr. Anwesh Madhukar appearing on behalf of the Delhi High Court Legal Services Committee (‘DHCLSC’) has addressed the following submissions on behalf of the Appellant: i. As per the PCR Form (Ex. PW14/A), the call regarding the discovery of a dead body was made by one Rajeev Gupta, whose address and parentage are mentioned in the form. However, the said person has not been examined by the prosecution. Instead, the prosecution has relied on the testimony of one Rajesh Kumar Ranjan (PW-2) who claims to have made the PCR call using a phone he had purchased from his neighbor Rajeev Gupta. It is argued that this statement contradicts the details in Ex. PW14/A, which unequivocally attributes the call to Rajeev Gupta. Moreover, the PCR call stated that “Jhagde pe ek aadmi dead pada hai” which strongly indicates that the caller may have witnessed the incident firsthand. Therefore, it was incumbent upon the prosecution to examine Rajeev Gupta to establish the veracity of the PCR call. Ld. Counsel for the Appellant submitted that the failure in doing so undermines the case of the prosecution and an adverse inference may be drawn for withholding such a crucial witness. Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:10.01.2025 18:23:02 CRL.A. 639/2023 ii. It is further stated that the Rukka (Ex. PW25/A) was prepared at 10:15 a.m. and the FIR (Ex. PW9/A) was registered at 10:30 a.m. It is to be noted that till the time the Rukka was prepared no eyewitness had been found by the Police officials. iii. Further, if the allegation against the Appellant taking a knife from the Chawla Chicken shop, as stated by PW-1, Ram Pyari were to be believed, the prosecution had not examined any other witness from the said chicken shop to corroborate the fact that the accused went to the shop to collect the knife. This witness has admitted that there were other employees in the shop at that time. iv. As per the Ld. Counsel for the Appellant, there are contradictions in the Post-Mortem Report (Ex. PW4/A) and the MLC Report (Ex. PW10/A). The former states that there were 7 stab wounds on the body of the deceased, however, the latter mentions only 5 stab wounds. Thus, there is an evident contradiction in both the medical examinations. v. It is submitted that as per the arrest memo (Ex. PW7/F), the Appellant was arrested at 9:30 p.m. on 24th April, 2012 from DDA Jungle, Africa Avenue Road, New Delhi. However, PW-1, in her examination-in-chief had stated that the accused was brought to her shop in the evening. Similarly, PW-1 in her cross-examination states that the Appellant was brought to her shop for identification between 4-5 p.m. as to whether it was the same person who had committed the murder of Dharampal. Likewise, PW-7, Harjeet Singh Chawla was Signature Not Verified made a witness to the arrest memo whereas Sandeep Ghai, the Digitally Signed By:SHIWANI NEGI Signing Date:10.01.2025 18:23:02 CRL.A. 639/2023 Investigating Officer (PW-25) had stated in his cross examination that PW-7 was not present when the Appellant was arrested. These contradictions create doubt in the prosecution’s case. vi. Ld. Counsel for the Appellant further submits that the arrest of the Appellant as well as the recovery of the knife has not been proved beyond reasonable doubt, as PW-7 in his examination-in-chief had resiled from his statement under Section 161 Cr.P.C. Further, during the cross-examination, PW-7 had stated that the Appellant was not arrested in his presence, furthermore, he could not remember whether the clothes of the Appellant and recovered weapon, i.e., the knife were seized in his presence. The same fact has been reiterated by PW-25 who had stated in his cross-examination that PW-7 was not with him at the time of arrest and at the time when the weapon was recovered. vii. Ld. Counsel further submits that ASI Sri Krishan (PW-12) and HC Yadvir (PW-16) were the first to reach at the scene of the crime, however, notably they had stated that no other eyewitness was found at the spot till 12:30-1:00 p.m. on the day of incident. Thus, it would show that PW-1, Ram Pyari was not present at time of the incident and was introduced only subsequently. viii. It is further submitted that the site plans, i.e., Site Plan without scale (PW-12/B), Site Plan with scale (PW22/A) and Site Plan without scale of the weapon recovery (Ex. PW7/E) cannot be relied upon as there is material discrepancy in the positioning of PW-1, from where she had allegedly witnessed the crime and further there is a Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:10.01.2025 18:23:02 CRL.A. 639/2023 discrepancy in the position of the recovery of the alleged murder weapon, i.e., the knife. ix. Ld. Counsel for the Appellant submits that there was no blood found on the Appellant to establish his presence at the spot and to corroborate the allegation of murdering the deceased. As per the FSL Report (Ex.PW25/F) no DNA profile could be generated from the alleged blood-stained clothes of the Appellant.

7. Ld. Counsel for the Appellant further submits that there are contradictions in the statements of Smt. Ram Pyari (PW-1) and Harjeet Singh Chawla (PW-7). Following contradictions have emerged from the statements of the two prosecution witnesses:

7.1. It is submitted that PW-1, who is allegedly the only eyewitness in the present case had changed her statements numerous times, and thus is not a reliable witness. In her statement under Section 161 Cr.P.C. (PW1/DA) she had stated that she witnessed the incident after waking up when she followed the Appellant and saw him inflicting knife blows to the deceased, however, in her examination-in-chief, she had deposed that she witnessed the alleged murder from the bridge where she had gone to dry her clothes.

7.2. It is also submitted that, PW-1 in her statement under Section 161 Cr.P.C. had stated that she left for work to the hospital where she worked as a private nurse whereas in her examination-in-chief she states that after the incident she had gone to her work in a Kothi Signature Not Verified (bungalow) situated in A-Block of Safdarjung Enclave, New Delhi. Digitally Signed By:SHIWANI NEGI Signing Date:10.01.2025 18:23:02 CRL.A. 639/2023 Ld. Counsel submits that these inconsistencies in the statement of PW- 1 as well her deposition renders her testimony to be unreliable.

7.3. It is further submitted by the Ld. Counsel for the Appellant that the statements of Harjeet Singh Chawla (PW-7) cannot be relied upon as well as there are material discrepancies in his testimony. In his examination-in-chief, PW-7 had resiled from his statement under Section 161 Cr.P.C. Furthermore, PW-7 in his cross-examination had stated that the Appellant was not arrested in his presence and he does remember whether the clothes and knife were seized in his presence or not despite the fact he had been made a witness in the arrest memo and recovery memo of the knife. The same fact regarding the absence of PW-7 during the arrest of Appellant and recovery of the alleged murder weapon has been reiterated by Inspector Sandeep Ghai (PW- 25), who was the Investigating Officer in the present case.

8. Ld. Counsel for the Appellant further submits that in the present case, the forensic evidence cannot be relied upon in view of the following reasons:

8.1. It is submitted that the established position regarding the accuracy of DNA profiling should be hundred per cent. The mere fact that forensic expert opined DNA to be similar does not support the prosecution’s case in the absence of an exact DNA match. Thus, in the present case the DNA report stands inconclusive, and cannot become a basis for conviction of the Appellant. To support this contention, Ld. Counsel relies upon the following decisions: Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:10.01.2025 18:23:02 CRL.A. 639/2023 I. Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik & Anr.1 II. Manoj v. State of Madhya Pradesh2 III. Bhagwan Bairwa v. State of Rajasthan3 IV. Sudhir Sahni v. State4

8.2. Ld. Counsel for the Appellant further states that the conviction of the Appellant in the present case is based on only one circumstance, which is the inconclusive FSL report. In support of his argument, Ld. Counsel placed reliance on the settled proposition of law as laid down in Sharad Birdhichand Sarda v. State of Maharashtra5 to state that in a case of circumstantial evidence, every circumstance must be proved beyond reasonable doubt.

9. Lastly, the Ld. Counsel for the Appellant submits that in view of the aforesaid submissions, it stated that the alleged eye witness, i.e., Ram Pyari (PW-1) appears to be a planted witness and, thus, her deposition cannot be relied upon, as she in fact tried to make improvements in her depositions, contradicting her statements under Section 161 Cr.P.C. Therefore, the case is then based on circumstantial evidence. It is submitted that the contradictions starting with the PCR call, statements of prosecution witnesses, to the contents of MLC Report as well as the Post-Mortem Report would show that there are multiple instances where the evidence produced by the prosecution is