Ravi Kumar @ Sonu @ Chandu v. State

judgment. The Evidence'

¶22As noticed earlier, P\V-20 Narender Gaur was llllplicated for the offence, as an iaccllsed, and made to stand trial. However, the prosecution could noL in that case, prove his guilt. In the meanwhile another Sessions case, involving dacalt)' was pending; the em, which iwas in charge of the investigation, directed by this court, III another to take over investigations in this case. PW -72 deposed having rccei vcd in Cormation while on duty ia 'he peR, around 03-29 AM in Ule rnorning of 23-09-199(-;, about the incident. A wireless l1essage was flashed; it was received by ASI Dineshwar Prasad PW-78, at 03:30 AM; this I as recorded as PW-78/A and B. PW-7l, a constable posteci in the GTB hospital, l1entioned receivlllg information that the deceased and his WI iC were taken to the hospital at , , rollnd 04:00 AM: they were brought by their neighbours. He deposed that Ihe deceased's ife, PW-8 told him that 6-7 pea plc had trespassed into ll1cir hOLlse, and attacked ber husband, ;u.. 'f .. "1=0:= .. !! ..=. .. ' m l". HI rl. A.290, 317, 972 & 497!200G, 598 & 1020/2008 Page 9 • as well as herself. PW-73 deposed 10 I\:;ceiving EI report (PW-43/C) from Ihe Police Station , q ! ' and having gone to thc hospital to deliver it to He ReiHl Kishcll, along with Constable Subhash. He says that Kishen handed over the rukka containing her statement, which was taken to the hospita [, and registered as FIR. This document (lx. PW-7S/B) was recorded by HC Jagdish Prasad. PW-82 deposed that he received the wi n..:lcss message at 03:36 AM I about the trespass incident and attack. having gone to the SpOL Jearnt that the injured were taken to GTB hospital, '''Iher<:; he weill :0. The deceased was in the cmergency ward; his wife too was injured in the aLtuck: she said that the knife used in the clttack was lying on the bed I where she had slept. The witness mentioned that the knife "va, sci/'.eci by him, after he went to I the crime scene. PW-85 Rakesh deposed that he photographed the scene on the directions of SI Kanchan Lal. At a later stage, afLer the investigation was handed over to CBI, he went I along with the CBI team to Pradeep's house, and interrogated him. The latter disclosed that a , ,desi kotta was given by Devender, which be lent to his cousin Sanclcep. The CBI team went to Sanauli, conducted a search and recovered a Icalta; the memo was produced as Ex. i, PW-37/B. The accused Ravinder was arrested from NOIDA. 011 18-01-2001. This was sought 'to be supported by P\V-37 Anis. The arrest of Ravincler was also spoken to by PW-30, A.S. ,Mann . He is also witness Lo the disclosure statement allegedly made on 27-01-2001, and the 'pointing out" by that accLlsed, of various places, as well as the crime scene. PW-34 deposed , bout Satinder's disclosure statement. on 03-03-2000. ycwitnesses

¶3PW-6: Ajay Kumar, the deCeased's .SOIl was present ill the house at the time of the ncident. He stated that at 2.30-A.M, 'vvhen he was sleeping, in a room near the kitchen, le heard his mother shrieking. He, and his cousin Jitendcr, (who was also sleeping ncar the , itchen), woke up and looked out uC the window; they saw his mother with three accused. All f them had knives. Tv/o of them were holding her leg, 011e struck her all her hips with the life and did not remove it. On hearing their cries the accused run, leaving the knife thrust in is mother's When they rall towards the room (,,;vherl· his sister and his brother were 'leeping), they smv three others run away with blood stained knives. Then they to the loom where his father was sleeping. They saw him standing hy the side of the room, next to le wall. He was covered in lllulLiple stab wounds. Anolher accused came out of this rOOlll, """"'"'=""""","'",,,. ""'.-mr rl. /\.290, 317, 972 & 97/200G, 598 & 1020/200g Page I( had been called lrom his vi] ith a katta in his hand and he warned lhem that if lhey raised ,Ill alarm, he would kill them. W-6 then tried to'staul1ch a bleeding wound on his father's stomach, using his father's lungi .. hich lay on the floor. They made him reSL on the charpai and then \vcnt outside and raised an arm. His phupa and the two tenants or his phupha '8 house came first to their help, then two 1 ighbours Vishesbar and Jail arrived, and moved Devl Sharan on to a charpai and t ok him to Kanti Nagar Bus Stand. from where to they took him to Guru Bahadur Ii ospital, Shahdara, ill a three-wheeler. .His sister, one Sbri Karanpal, and he went to the • l' 1 splta m an auto rickshaw. On .9.1998, when he came back to his house, he discovered t at the local police had recovered a knife, an iron roel, one beel sheet, and broken pair of awaii chappells. His mother had pulled out the knife from her hips (l]}(lthrown it in the room, hich was recoverec1later by the police. The witness further deposed tl1at his father expired on 3.1 O.19n, and a post mortem as conducted on his body. I-Ie iclentillcd all the accused Illade an error in Slating that eepak had also been a part of the attack, whereas Deepak had heen present in Court, for at c lUlected Trial, and was 110t an accused in this case. staled tbat during the time of the iI cident, his house was lit by a He also stated that his cousin .Iitcncler's house was a jacent to his hOllse and that he had not seen those who had attackcd his father. He also slated that he could 110t specify \I,II11<.:h of the accused had helel his motber, due to passage of 1'11C, neither could be spccificall y identify which of the aecllscd he had seen running away f am Brij Lata's room. Barish \vas shown to the witness, anc11w was asked whether he too was t ere in the house ""vith the other he replied in the affirmative. He coulc! not identify hieh weapons had been helel by each of the accused clue to passage 0 f time. He denied that I 's family had a dispute with his ullcle regarding the plot adjacent to his house, He deniec1that to identify the accused. lie idcllLi lIed them for the first PW-7 Jitcmler Kumar was the deceased's nephew ami was in the latter's house at the time of the incident. I-Tc cJeposeclthm he was sleeping near the kitchell where his cousin Ajay as sleeping as well. At aboul 2.30/2.35 AM, be heard his ,Iunt screaming. He and Ajay oke up and knocked the door lO gallery (where she was slceping); they looked through e window, and he smv that three persons had overpowered his aunt, and all three had knives. - C I. 1\.290, 317, 972 & 497/2006, 598 & 1020/2008 Page II - ne man had gagged her mouth, another was holding down her ICCi, (mel a third . h r hands. The man \;vho was holding her hands was stabbing her on her hips with his knife. hen they raised an alarm, all three ran to\vards the staircase. If e and Ai ay then entered the r ,om where Brij Lala, 13unty and Lal i l were sleeping. They s;,rw the three other accused run o:lt towards the staircase, with blood ;;lained knives. Then they weIlL La Devi Shamn's room, f om where he saw anolher accused with a Karla, who thn::atencd to kill them if they raised an a arm. He ran towards the staircase leading to the roof He followed his cousin into the room a d saw his uncle bleeding wilh multiple stab injuries. by wall. Ilis cousin tried to staunch H;e s 'o111aeh injury using a Iungi that was 'ng on the nOO1'. Thcy took him ouL to the gallery and ade him rest on the chatpoi. On hearing Lheir cries. tenalllS 11'0111 thc neighbouring house, c, mc in to help. Another neighbour Jail Singh also came. His L1l1cic told them to take him to t e hospital. They took him on tbe churpai 10 Shanti Nagar Bu:-: Sland, Cram where they took , 1 '111 to Guru Tegh Bahadur Hospital ill a three-vvheelcr. cam c back, home from the bus 'and, but Ajay, Bnj Lata, Phoolwalj, Karan Pal, and one l'vl:JSlclli accompanied them to the BI lospital. He said he could sec i1il the accused since the iighls \vcrc on at the time of ommissiol1 of the oflcnce, In cross examination, he stated thaL his aunt had removed the knife ,'om her hips. There \;I,lere two bui lis that switched on at the ti me (J [' the incident; one in Devi haran's room, and the other in the !cry where his aunt h:Jci heen sleeping. He says that the recorded his statement twice. lle also deposed that he could nol attribute specific , capons to each of the accuscd but l.:ould remember that most Ill' [hem hud knives and one had /cottCl, and that he could not specilically identify whIch one olthem had attacked his aunt. PW-8 Phoolwati, is the deceased's wife. She deposed to sleeping in the gallery, and hat her husband was sleeping in a room adjacent to her ]'110m. At about 2.30 AM, three accused persons entered the house; one of them stabbed her on the hips, another gagged her 10uth, and a third had hcld her legs. On being stabbed screamed, and Ajay and Jitender came towar0s her. On seeing thcl11, the three accused ran away and left the knife thrust into her hips. She pulled it away and threw il on the floor and they went Lo her husband's rool11. 'There, she saw him lying on thc nOO1' with multiple stab injuries. 'fhe wall and the floor were ieovered in blood. When she was cntering the room, anolher accused came out with a Kalta and threatened that if they raised alarm, he would kill thcm. They went to the room where 21Y'<='" ·..,'F- .i iClLEi:s:ca::::::: , 'kn! "!_ .. , Crl. A.290, 317, 972 & 497/2005,598 & 1020/2001\ Page 12 . 7. , crl. 11.290, 317, 972 & 497/2006, 598 & J02.0/2008 .Lalit and Bunty were sleeping: three accused ran away with blood stained k11ives '] 0 to ards the staircase. The witness identified Dilshacl@ Bawa as the aCt.:Llsecl armed with the k ta, and also identified Satincler Bmva, Dccpak and Ravi. Shc deposed that Ravi and epak had stabbed her, and she bad seen Satinder come (lui of Brijlata's r00111. She Sl, ported PW-7 ancl PW-6 <lboLlt taking Devi Sharan to the hospi tal. and slated ihat she, along w th her daughter, SOl1, Karallpal and iVlasterji 'Nent to the she was given first aid, a er which she came back home on . 9.1998. Her husband died alier len clays. She said that II :her statement to the 10 she categorically mentioned about involvcmcnt of seven people, but tl TO had insisted that shc should only mention about lour accused. She also deposed to n'ver implicating Narender G<lur in tbe crime. However, Shl' staLed that on the night of 0, currence, he had been siUing 011 her staircase. She also deposed that she was unable to i1 dentify two-three of the accused clue to the pnssage of time and as she was shocked and d sturbed by the event. She was cross examined by the cm where she admitted that the kl1ife t I (en out by her from her hips, 'ViiS t<lken away by the police ufljcials of PS Gokul Puri and s le also, admitted to have stated to CBI that she \-vas told by her nephe\v 1Jlat one iron rod and lC Hawai Chapp<ll \vere left behind on the roof of the hOllsc by the assailants which were I,anded over to the local police. She did not remember whether ncr thumb impressions Were t ken on certain blank papers by police but she was sure that local police did not read vel' the contents of her statement to her and it was the IO 'Nllo had pressurized her to name nly four persons as offenders; she did not name Narendcr Gaur c.1S the offender or he was itting on their staircase on the night of occurrence. She admits that clue lapse of time, she , ould not identify 21 3 remaining persons vvho had assaulted lbG!11 as because of occurrence, be was in great shock and disturbed stale of 111 indo PW-9, Brij Lata. the deceased's daughter deposed that she was sleeping.in a room with her younger brother Lalit ancl her cousin Bunty. Her father was sleeping in the adjacent room 'and an electric bulb vvas switched Oil il1 ber father's room. At uhout 2.30 A1VI. she heard some ,people enter her hOLlse ane! she heard her mother's screams. She tricd to get out of her c11.arpai, I but one of the assailants grabbed her mouth and helel a kni l"e to her throat. She says that on 'hearing her mother's screams, Aiay and Jitender went to heL and the three assailants who , were in that room, ran towards the staircase leading to the Ino I' of the house, She saw that her I Page 13 ttr't.'. W C">·· '- 10ther had been stabbed on her hips. ,mci Ihe wound was bleedi She saw her mother pull .1]J ut the knife and throw i1 011 the floor. They then went to her room. Another assailant arrying a katta was coming out of hiS roOI11 and be threatened thcm that if they raised an lar111, he would kill them, and then. ran towards the staircase. 'J went her father's joom, and saw him silting on the 1100r. bleeding. Her brOlher h;lci lied a fungi around bis ouncls. Her father was crying, askil:g to be taken to the hospital. lie had multiple stab ounds, the Door him and clothes \·\1ere soaked in blood. Her brothers her , I! eighbor's tenants and her mother t.ook him to Shanti nagar Bus S 011 a chorpai, and then 1er mother, her elder brother Ajay, 13isheshar and Karan Pal louk him in a two wheeler to TB Hospital, Shahdara. After ber father was admitted and her mother had received first aid , " :he and her mother were taken to the house of Khushi Ram ill Shiv Vihar. mother had tated that there were seven assailants, but the police pressuri/'ed hcr into saying that there ere only four assailants as athenvise lbe case would becol1L (00 complicated.

¶8PW-l deposed to being approachccl Satencler to be a member of his gang; he laimed to have met accused. lie gave details of the modus operandi of the accused. They sed to assemble at the bank of a canal, and commit crimes in tile locality of Mohalla No.2. i atinder had given him a lmllo. During the 100Ling a person, he was commanded to jJoint 1e katta at the person's neck. If (he person used to raise an alarl11, Satinder and Kale lIsed to tab them. He says be had seen them stab people on three or four occasions, He deposed about i wo looting incidents that thiS gang bad perpetrated and h':1(1 heen told abouL In ,first, he 'as told that they had looted a hOllse in Ganga Vibar, which they had entered, in which lived family of three. a coup Ie and thei r son; all three persons were LLackcd, the man died and his ife and son susLained They looted an amount oj' about Rs. 20,000/- in cash, ewellery and bidi cigarettes. They Lold him that they escapcd Llsing the nolo to put the police nd dogs were put olT Lrail. This loot was clone witb another person named Barish. Some of i he accused had absconded to Vaishno Devi. After coming bilck Crom Vaishnodevi, 10, 000 f the loot was given by Satincler to Barish. Alter some clays. Lhey came back to his house, and old him about another house tlwt they had looted the previous night ['rom which they had had narrow escape. lie says that they had told him that they lwd gone to the hOLlse of a police 11a11, and in the course of the looting Lhey had stabbed lhe police mnll and his "'life., and that rL A,290, 317, 972 & 4Y7!200G. 598 & 1020/2008 Page: 14 some members of the family had ,vokcl1 up, raised an alarm in 1he street, and they had had to . make their escape without ta k:ing any,bing frol11 the house. Sell inder had also told them that . while they were escapi PW-J jccja Shaym hac! seen them, [lnd lhey had threatened to kill him ifhe raised an aJarm. One of the :lccused, Chanclu, told J11m thal during the commission of the crime, some blood had on his shoes and clothes which he had thrown into the nala while escaping from tbe spot. J-Je idcntified accused Dilshad as the secret informer who would tell the gang where to Joot next.

¶29PW-l then deposed that thc accused Satincler had givcn him a country made pistol to dispose ofIto sell as this kal/a had been used him in several dacoities in and around Ganga Vihar. He refused, but Salincler thrc(ltened to kill him if he dill nol do so. He even identified the katta in Court. He said he came to the Court on his oyvn got his statement recorded under Section 164 CrPC in the year 2000 during the festival HoI i. He says that after he becamc a witness in this maHc)"' lhe accused persons had threatcned to kill him. Even Satinder's brother had threatened him. He further staled that III ::WOO, Satincler had brought CBl officials to his hOllse and iclenti him as the man to vvhom he had given the !catta. He (PW-l) then took the police to the hOllse of the person to wholll he had sold the gun, a person named Amit. The Kalta was recovered from Amit's house. 11 \Vas identified by the witness in court. He says that 'vvhen the accLlsed Satinder met him the second time, to tell him about the commission of the second dacoity, Harish was not with thclll. hUl a person namcd [shu was with them. He claimed to have remained with Satinc1er's gang hccausc or the thrcat extended by him. He said that on those occasions whcn they had stuhbed pcoplc, accused Kale and Chandu had also been present. Thc Kalla uscd to be with . n Oil all the occasions. He stated that on the 20/25 occasions the accLlsed persons had commitled these crimes, but had never given him a share. PV-/-4 Kapil is lhe PW-1's brother. l-lc reilerated his broiher's account of the events with respcct to the latter' involvement with the gang, modus operandi the \ gang, the extrajudicial confession madc by Satinder to them the aitack on the house of a IPolice man, about iheir uncle Shyam baving seen them. He also said that after the attack, Kale and Satinder had hidden themselves in his hOLlse for two/1hrce days. He deposed that later, 4-5 CBI persOlU1cl had gone to . house, when he was alone and he was questioned about his Crl. 1'1.290, 317, 972 & 49712.00G, & 1020/2008 Page 15 L A.290, 317, 972 & 497/2006,598 & 1020/2008 They searched his house and found one iwn rocl (15 inches) and a vegetable'> ; cuttmg kmfe. He says that they used to use the iron rod for cmlhil1g. Analysis & Reasol1ing 30, As tnay be seen Crom the previous discllssion. the prosecution has relied on testimony, identification in court, recoveries and extra confessions allegedly made by the appellants, to PW-J and PW-4.

¶31Satender, Ravi Kumar, Ravinder and Dilshad are said to have been identified by PW-6, 7 and 8. Devenc1er and Anil were seen by PW-6 and PW-7. It is noteworthy that all accused had not participated in the III' . Though the three eyewi Inesses, who claimed to have witnessed the incidcnt (one of v'ihom, PW-,8, was seriollsly injured during it), deposed in their examination in chieL about the roJc(s) played by the accllsed, ami evcn identified most of C; them in court, yeL in cross examination, they made damaging admissions.

¶32PW 6 deposed that "it is corra'l thaI Jhad not seen the person who had stohhed my/ather" Later she said: "I call1101 tell which three Ihem were catching hold of Illy mother as with the passage or tim£! I am Ul1uhlc to tell this, Similarly / C0/1110t tell which of the three accused person came out ({ml were escapingfi'om the roOJ// ofBrij Lata. " ii Further PW 6 wrongly identified Harish when in faet he was not an accused in the present . case. The prosecution assertion lnat PW6 idcntified 1he [\ccused properly or was able to . identify each of the assailants who killcd the deceased therei(lfC, stands falsified.

¶33PW 7 aiso coulc! nol icicnli(Y the assailant who killed the deceased and failed to ,identify any of the accused and the roles played by them. The relevant portion of the statement of PW7 hereinbelow in cross examination is "1 carmot identify specificu/ly and precisely those Ihrec w'suilal1ls who had over powered rn)' Mumi Phoo/1I1L/fi, caught hold oj' her gagged her mouth and also caught hold of her hands ... ... nor J con say as 10 who mere thosc who CClme out from the room o/Kumori Brijloto and others. " ........ ... ' tHU Page 16 A careful reading or the deposition of PW-8 reveals lhat she loo, was unable to identify the assailants who had killed her husband. She made contradictory statements regarding the: accused's identity. In the first instance, she deposed that t';urinder, Deepak and Ravi as the persons who caugbt hole! of her and subsequently contrary [0 Silll1e she statecllhat Satinder as the person coming oUl Cromlhe room of BrijJata (PW9). Furthermore, PW-8 identified Deepak as the assailant who stabbed ber. when in Cact he (Dcepak) \vas not even arrayed as an accused, in this case. In cross examination she said thal: " ... due to lapse o(time ! c(}uld no! idcn!ifjJ 2/3 persons lFhu had assaulted ... " PW-8, hael only seen four assajlan:s. and therefore the proseculion story that there were seven assailants is doubtful. Though PW -8 had deposed to having secn Dilshad running away with a katta, the fact that she says that she bad seen only four assailanls destroys the credibility of her story. Trial CourC in our opinion. overlooked the fact that according to PW-8's testimony, she had been stabbed and her husbanci had also been stabbed. This clearly showed that a Kalla had not been used. Significantly, PW-15 who bad conducted the postmortem had deposed that injuries 5,6 anel 7 were sufficient in the ordinary course, to cause the death of a person; yet, on being shown the alleged weapon DC offence in coure he h,Jd slaled that the injuries could not' have been caused by that \-veapoll. As regards Brijlata (PW ()) the evidence shows that she could not identi1), any or the accLlsed and specify the roles pbyed by them. Therefore, from the statement of the eye witnesses PW6, 7, 8 and 9 it is clear lhat none of the eye witnesses could specify or establish the idcJ1lify the accused ancl specirically of the assailant who killed the deceased or Lhe role played by Lbe accllsed.

¶34Another aspect which the court has to take into con::;iclcratiol1 is that the twO witnesses, who claimed to have seen the assai lonts, were sleeping; they wcre woken up by the screams of PW-8; PW-6 and P\N-7 deposed seeing who ,vere the because the r00111 was lit. Now, the materials on record show that the premises were vcry small; the probability its being lit, as is deposed by the latter two witnesses, is very remote. The incident occurred in the early hours of the morning. The \-\lilnesses' deposition that t\-\lO bulbs were lit, seems improbable, because it would nol have becn possible for anyone to sleep vvith a light or at least a , powerful one, switched on, sincc it would have lit up the l'l1tirc room (the entire prcmises in i . Crl. A.290, 317, 972 & S98 & 1020/200R this case measured about 500 sCJuare feet). Even if tbCiT was a light, it would have been - JJ-- extrel11ely weak. JrSlIC], werc (ile posi(i0 11, again, (he C13 [ e ClSl' 0 [ Hle possibiiity 0 f identifying any assailant won]d have beell slim. [11 allY case, the assailall(s would not have switched on the light, or left it on, alter entering the premises.

¶35'D,e corn(. III Ihis case. is "live to (he lac( that (ile iOClden( necurrcci quite some time, io September] 998, hefore the atensed werc fID'eSled, aod made (0 [ace trial, after 2000. All the accused refused TIP: two of d'em were identified by PW.8. As to the value of such identification, the Supreme Court. in Suresh Chandra Bahr; r. Siole of Bihar (1995 Supp (1) SCC 80), said that it is well scilled that substantive e,icienee of the Wiuless is his evidence in tl,e Court but when thc accused person is not previously known to the witness conccOled tllen identification of the aCCllSed by tile witness soon afier iris ancst is of great impott,,"ce because it furnishes an aSSUl'ancc that the in v esti gatlO n IS proceed ing on rigirt Iincs in addition 10 furnishing corroboration of tl10 eVidence to be given by the witness laler in COllrt at thc trial. In the decision reported as MalkhunSlI1gh and Olhers v. SIUle "I MP. [(2003) 5 SCC 746J the Supreme Court Slated that: "It. is well sell/cd Ihullhe suhstantive evidence i.l the cl'icience o/ident(jicotion in court and [he lesl ldcl1li/icCllion parade provides corrub()ratiO/1 to the idemijication of the witness in co urI, ifrequired !iowe)Jcr, who I weigh! 1111/.\'/ be Of/Ciched 10 Ihe evidence 0/ identificatiof1 ill courl, wl1tch is l10t preceded by U Ie'\/ hicnlijicalion parade is a matter .for fhe cOurls O//OCf 10 determine. " In Slale of UUar Pradesh v. UOO{u Singh others (J 979 ( I ) sec 31), the Supreme Court observed that U)e cv i d ence "I' identitieation beeomes stn'"g cr i [ til e wi tncss had an opportunity of seeing the accu,sccl not for a lew minutes bUl fur :--:Ol11C length of lime, in broad daylight, when he \"'ould be ablc 10 note the features 01' the more carefiI1Jy than on seeing the aCCLlsed jn a dark l1ight (or a few minutes. In /(u/Ilunbhoi Naral1bhai Palel ana' others v. StOll! o(Guju["al (2000 (1) SCC 358) after considering the earlier decisions the Court observed:- "1t becomes at once clew' Ihallhe ajhl'csaid observulilills were mac/e iN/he ligh.t ofthe peculiar/clc/s ond circumstances wherein the police is ,laid to have given the names of the accused to the lvilfle,lses. Under fhese CirClIlJJS!Ul7ces, idel1lijicaliol1 of such a named accused only ill rhe Court when the accl/,Ied was no! known earlier to thE witness hod 10 he treo/cd os valueless. The said deCiSion, in turn, relied Upon ar:. CrL A.290, 317, 972 & 497/2005,598 & 1020/200(; Page IE earlier dccision oflhis ('UlIri in Ihe case ofS/ole (Delhi ildll1l1.) v. V C Shukla (AIR 1980 SC 1382) wherein 0/.1(1 Fazed /lIi, J .I'PC{f/CiI1P, for (f Ihree-Judge Bench made similar observations ill Ihi.l regard In Ihol cose Ihe el'ic/el1ce of Ihe witness in the Court ond his identifying the (feeused O/1()! in the C01/rl 11'ilhout identification parade was found to he {/ ·I·{f/ueless exercise. The observ{flions made therein were confined 10 the l10ture of rhe evidence deposed I(} hy Ihe .mid eye-witnesses. It, therefore, c(ll1l1ol he held as Iried to be submitted hv learned Counsel for the appel/on/s, thai il1 the absence ora lest identif/calioll porade, Ihe evidence of an eye-witness idel1lifj!ing the {lcnl.lcd H'mdd become il10dmissihle or lotaliy useless,' whether Ihe evidence deserves OilY credence or 1101 would (/Iwoys depend un the facts and circumSIOI1CeS uieach case. " In the present case, the length 0[' time which occurrcd, bcfore the accused were arrested, and sent for TIP, and the nat.ure of their idenliiicat.ion in court. renders t.hat circumstance to be a weak link, and not strong enough to implicate them. for the oCknce lhey "vere charged with. Furthermore, the incident occurred in the early hours or the morning, ancl in what can be termed, at best at a cllmly lit plcKC, \.vhen the eyewitnesses were bleary eyed, and jolted out of sleep. They could at best have formed a blurred impression aholll the attack, and tbe sequence of events which unfolded in frolll of them. Thc circumstances were in:surticient to enable them to form a lasting impression about the identity of the assailants.

¶36Now, as far as the extra.l icial confessions 111ack allegedly 10 PW-J and PW-4 is concerned, it is apparent that the main witness (PW-l), by thc proseculion's showing, was a . partner in crime, with some of the accused. Before a court huses ils lindings, particularly on '. the testimony of sllch a \.vitness, iL would bc useful to sec that evidence by self confessed ". accomplices stands on a weak fOOling. 1n Shomsher Khan ,. CuVI of NCT or Delhi 2000 (8) SCC 568, it ViaS held that: "!fthe lestimony o(PW .2 is helievable, there CO/1 he lillie douhllhat the appellant had caused explosive bombs 10 he manufactured and stored them ;n his house. But PW 2 Shahabudin, 011 the shOWing of tile prosecution itseq; is W1 accomplice and t/terefore we would seek corroborative materials to give {lSSllnlflCe to Wi that tlte testimony is true, de.spi/e the inherent drawback ofthat will1ess. ' similar approach had been spell out in a previous decision of the Supreme Court, reported a ],.10. Shon7suddin v Stale of/;'cmla ]995 (3) SCC 351 in the follO\ving words: Page 19 Crl' A.290, 317, 972 & 497/2006,598 & 1020/2008 " Ihe COllrls ill india /701'1' held Ihal while if is IInl illegal 10 Gel upon fhl A uncorrn" oraII'd I es 11/11a11.1' of Ihe accompli cc (he rille of prude nce so universally ,/0110 wed hos 10 amou", 10 rule of law Ihal il ii' /i!!.loji· 10 acl on Ihe evidence of an unless II IS corroboraled in malerio/ U,\j7eCfs So as 10 implicate the accused j he reasons /01' requiring L'orr0hol'Cllioli oj Ille testimony oj' an accomplice are thai all ac(,omplice is likely fo swearfcdselJl in order to shifi Ihe guilt fi'om himself and thai he is an immorul pel'SOl1 being a parliclI/,Il' i1l (he crime vl'ho not any regard 10 Clny sec/ioll orthe OMh and in !he COole 0/ UI1 approver, , 011 his own' admission, he is a crimirlUl who gives eVidence III/der a promise oj' pardon and SUpporls thc prosecutio/l H'il/7 the hope oj'getting his 01I1flji'cedo/71, " In tbis case, p W" 1 clliilJ" to have been a pariy [0 [he previ (JL" oJrenees COl11lJ1i[[ed by [he appellants, and there 10re, a c"nIidan[ "f S Mcnder, (one 0 I' [ilcAp pcIfrOltS), who sllpposed I y approached him, This Court. in lather case titled as NariS/I ruderv and Drs. v. CEI, 2007 1 AD (Delhi) 703, ill which the present accllsed were arrested, observed th8t the Court have to be satisfied tha1 the exira judicial confessions are made bc(ll)'c a crcdible witness, who can be safely believed. Commenting ()n the confession uscd in case, said 10 have been made to the very same witnesses, the court noted Hlat no time even tJ1C date of occurrence were given by the witness to c.\,ra judicial confession. The relevant portion of the said judgment below: "13. On u careful exulfl i!lofiOIl of {he evidcnce; 0/ l' W-3 Prctl!7od we are of the view {hat this willJeSS cal1nut he said 10 be an indepunc/cill and reliable 01 all. He himsel( was 011 asscJciate aCl'lfIed persons fIis brOlher hoI' ,'ioimed thai he (PW-3) was also a memher of a gang 01 c/uCOifS headed by accused .)'uremla. Both the brothers have claimed thai the {.ICc1!sed persons had threafened /'rumor! wil./1 his life. So, these witnesses ('all he said {Ii he haVing (,f motive tofct/.lc(l' imp/icotc the appellants. For this reason alone fhe evic/cl7(,u about eXIra judicia/ c()ll(i.;ssion needs 10 he discarded However, {hun! are other reasons a/so for 1101 plC/elllg any reliance 011 the evidence of PW-3. He has not give!l any dale when fhe cOI1/i!ssi()/1 was made to him. An extra iudiciol conf2ssion in order to impil'e confidence sholild be shown to have been made 'by an aCClised SOOI1 a/ia (he particular incidel1fjof' HIfich that accused is fried PW-3 has also not specified as /0 what was stated /0 him hv (,f purlicu/ar accused. He has L , given a general s/olef1lclIl Ihal all the accused lJud confessed be/ore him aboul th(! incident il1 question. /II/ fhe oCLused could not statl' u{ {he same lime the same words, f! is highly improbable '\'0, uo reliaf1ce can be placed in these circumslLmces on the so coiled eX/I'Ll judicia! relied upon by the C/JI, .. , -. .. ,. '-' " .. 14, In /ere{, same eviLil!l1ce of CXlra judiciol confession bejewe PW-3 has not beer:. accepled hj} the Irial CIIUI'I il1 re,specl O/lwO occused who have been acquitted But no reasons hapc been sla/ed il1 fhe judgment as to 11'/[1' Ihal evideNce was sufficient il1 re,:,pecl of Ihe present appellcmfs Cllld not /(Jr the ({cquilted accused There is ye.: , Crt A.2.90, 317, 972 & 497/2006, 598 & 1020/2008 Page 20 I another 1'1:0.1'011 for discording the evidence (!f eXIra judicial conj'ession. As noticed already, P W-3 in his cfoss-examination adm/fled Ihal he had nol made any complaint to the police Ihal {he (fecused persons had II/aeft: /lte confession before him. That conduct o/Ihis wi/ness o!so makes his evidence unl'e/i{{hle. It appears that so long as everything was well betll'een him ({Ild his co-g(mg,I/CI'.I· he did nol hather 10 report 1o the police ({boul the Lle/il'i/ies oj' his gang ond the m()menl his relations became strained 1'1';111 Ihelll, he chose /0 side with the police Learned tria! Judge has also observed il1 para no. 45 o//hejudg,lnel1l rhat {ilis witnt'ss had claimed that he was with the gang oj 5,'atendcr !Jete/use oj'the threats exlellded by Salender. . This kind of it witness ca/1 hOl'dly he relied upon/or convicting em ({ccl/sed. " We are of the opinion that the credibility ofPW-l and PW-4 is suspect for the same reasons, articulated in the above n18nI)Cr. Frcre too, no time, date 01 venue when the extra judicial confessions \vere made, has been deposed. Furthermore. the precise substance, if not the exact phraseology of' the extra judicial confession, has not lll:en deposed: to compound these infirmities, the CB I would the court believe that these witnesses kept silent,. and approached it more than a year laler. PW -1 had allegedly known of the activities of the gang (such as looting, dacolty), bad even been given, Kaf{a one a f the accused, and had witnessed the gang meil1bers slab a few persons; yet he did not these to the police. Kale and Satender Ba'vva had, as ncr tbcse witnesses' t.estimuny Jived in Ani]'s house for two days, and from this it could nol be inferred that he had been associated with each other. Another significant aspect is lhat PW-l and PW-4 iclent:ricd the accused in an omnibus manner and had not specificalJ y identified each of them. Thc last aspect which highlights the doubtful credibilily of tbe two wilnesses is that PW-4 had depused in Court, that the accused told him that they bad shot the police man whose hOLlse they bad looted. However, no bullet injuries were found 011 the deccased. We 21rc therefore. (II' the opinion that t.he Trial Court could not have relied on t.he testimony of PW-land PW-4 tu conclude that the accused had made extrajudicial confessions implicating themselves for Ihe crime.

¶37The opinion of PW-] 5 Dr. Ani! Kohli, who had conducteci the post mortem of the deceased, was that the cause of' deaLh was Septicemia and Peritonitis clue ante-mortem injuries on the abdominal region caused by a sharp edged weapon. Injuries no. 5,6.7 werc sufficien', in the ordinary course of nature. to both independently cl\lcl collectively causes death. witness stated that the recovered weapons shown to him such as dagger (Ex.P 1) could have cause injuries 4, 8, 9; PS could have also caused injuries 8 and 9. Importantly, PW-IS Crl. 1\.290, 317, 972 & 497/2006, ::;98 & 1020/100" Page 2: • " t.t stated that injmies 5. 6. 7 £2.l1!cLnQ! haye been caused by tile )'eeovered weapons him in Court. ]l,is immediately puts a question mark on tile credibility of the prosecution story about recovery of the murder yvcapol1, a1 the instance of the accused.

¶38The recoveries of four ehurris/knifes allegedly at tile instance of Satindcr, in tile year in the 0 ihe r case No. R C c(S)/ 1 999 ISJUT/SICT is II nreliable. In fact the evidence of recoveries of said churries was inadmissible because tiley were not shown to tile eye wihlesses and were not shown to Dcvender. Jt was also ciJsbclieved by this comi in the case qf Hcrrish Yadav & Drs. in whidl tile recoveries were said to have been made. Moreover, as noted in tbe previons paragraph, i'W IS's depOsition docs nnt support the prosecution so far as o fata) inj uri es N .5, 6& 7 are co n ccrned; PW J5 has stated that i nj ur)' No.5, 6,7, I 0, I 1,12, J3 are spindl e shape w h lC h can be caused by a do u b Ie edged WCil pon. Tire c hurr is shown to PW Jj were not double edged.

¶39The 10 in tire present ,asc. /'W-87, deposed lhat alt the accused were arrested doring the investigation of case RC 2 (S) 99/S1UT/SICT and on dirccLiol) of this Court in that case the investigation of the present case was hrUlcicd OVel' to eBI; case no. RC2 (S) 2DDDISllJT2/S) Cl Was re g i stered nn t I.]2 DOD. PW -87 CO" I d not tel) the ciate when S atinder, Dilshad and Ravi Kumar were Llrrested in {he other case and their disclosure statements were recorded. These persons were aJre<lciy in cllstody {Inc! were arrested in present case after obtaining the permissioll of the court. The witness cI id not remember the date when 101" the first time he came to know about lllC involvemenl of accused persons in the present case. PW 87 stated that he suspected the involvement of the acclised in this case belorc rcgistratiOll of the FIR on 11. J .:2000. We aLso notice that Satender's disclosure statement was recorded iL the present case on 10.3.2000 after two months of regiS!ral ion of the case when they wefe already in custody of cm anel 10 had suspicion about their involvement.

¶40The Supreme COlH1, in ,I'oml'''/ Khan 1'Slale of flo/us/lIOn AIR J956 SC 54, held that: "Beaumont, C.J and Sel1, .J in Bhikha Gober v Ell/perot righlly held that the mer.: jCIC{ that an occu:sed produced shortly after the Il1lfl"dcr orf10menls which were on the 'murdered person is nol enough 10 juslffy the injerence Ihol the accused must have committed the murder. There! must be some (iJrlher /I1uferiu! /0 connect the accused with (he murder in order (0 hold him guilty olthai o//cncc. Our oftenlion was drawn 10 CI number of deCisions 11'hich hove' been .<,'umlJ1ed, lip ;n ({ Bench decision althe Allahabad ffi'2;h Courl in Siale v. ShonkaI' Pra,\C/(r,l ill some of}lihich a presumpiiol? was drawn ojguilt/rom the circlImstance ojposSc,\Siol1 alslolen articles .1'0011 after c , (rio A.290, 317, 972 & 497(2006,598 & Pllge 22 murder. hovl.! exumined II/esc Cuses om! ;1 (0 us tho! eoch one oj'these decisions wus p,iven Oil (he c 1'idel1cr.: ond circum.)!L/l1ces es/u/Jlished in that jJarticular cuse, uno' 110 }l,CI1r!l'o/ prOfJ(} ....1I Ojic/H' con deduce'd/rom them. 111 ()urjudgmenf, no hurd lil7d/Cts/ rule cun he fuid dowl1 (IS (0 1vhul illj(;/'{,l1ce should be drawnfrOI11 a cerloil1 cil'i:lIl1lslonce. Wln:!'e, h()wever, the only evidellce ogaills( un Cfccusedperson is the recover]' ()/slo/en jJi'(J/Jerll' ond olfhough the Cin..'liIllsfol1ces may indicate fhat {he Iheji und ihc murder I7/lIsl hu1'e' heen COlilmilled (if the sLIme! fime, il is nol sqle to draw fhe il1j£:l'ence thul the /JeI'.I(}1l ;11 jJossession 01 the sto/cn properly was Ihe murderer. ,')'uspicion CO/1/70f toke the pierce' O/}JIOO/" , In tJl': present ecl.')e. the recoveries allegedly made at the bellc,,/ ()/' one or the other Appellants, -in vicw or the medical cvicl";llce (that the chllrril!.1 or other weapons, relied on by the WeT,..:; not (he n I inJ uries j., be said to illcri minale them, or constitute rj rcuill S(;111 ces. A ghastly crimc was corlll1lillc'd, JlJ lh[s case. Wh<ll<.;lmtccl as a burglary or cbcoity, turq.ccl inlo a mure/cr. ThlTC is every probability that the perpclrJlors were aware ahout place [hey hac! set abllLl( to commit the offence; they to hdVC marked it. Hovvcvel. iheir plans went awry. resulting in the death of Devi The police allegcd inv()lvcmcnt or someone eise, ;l1lc!prosecuted him; he was The em \\'<'lS entrusted with invesligaliOIl 0[' the case, because it have ::;ccunxl leads ahollt this casc, during the im'e;;;tigalion and prosecution oj' case, PW-I alld PW-,q \vcre, like in the present C3SC, slar witnesses il1 those ings: their credihility was seriously doubted by this C('Un ill Ilarish Yaden' ',I' case, and present Appellants \verc acquilted The witllesses, who \\''\'C relied on in this case, by the COllrt to cOllvict the Appellants, have serious eredibilil) issues. Taking into account the or blCls, and ill view or the previolls disCLISSIOIL we arc of the opinion t.hat by the Trial Court unsustainable. The impugned " [ is accordingly, set aside. AppeaLs are therefore, ;I1lowed. G. P. MKT'fAJ.J 311, n (JUDGE) 31i', 972 & 497/100u, 598 & 1020/

* IN THE HIGH COURT OF DELHI AT NEW 11ELHI RESERVED ON: 18.08.201 PRONOUNCED ON: CRL.A. 317/2006 DILSHAD @ KALE versus STATE THRU C .B.I • I CRL.A. 290/2006 ANIL versus STATE t- 'e CRL.A. 972/2006 DEVENDFR versus STATE T' CRL.A. 598/2008 RA VINDER S/O SH. KUMUDI ..... Appellant versus THE STATE -" + CRL.A. 1020/2008 RAVI KUMAR @ SONU @' CHANDU versus STATE e Presence: Ms. Reena Singh, Ms. Priyanka Singh and Mr. Ajay Singh, Advocates for appellant in Crl. A 972/200". Ms. Purnima Sethi. Advocate for appellant in Cr1.A598/2008 & 1020/2008. Mr. Narender Mann, Special P.P. for CBl along with Mr. Pant. Advocate for respondent - CBI. ..... Responditnt ..... AppelUmt ..... Respon,*nt Ii Crl. A.317, 290, & 972/2006,598 & 1020/2008 Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. --- " )::t- CORAM: MR. JUSTICE S. RAVINDRA BHAT MR. JUSTICE G.P. MITTAI, 1. Whether the Reporters of local papers YES may be allowed to see the jUdgment? 2. To be referred to Reporter or not? YES ., Y. Whether the judgment should be YES reported in the Digest? MR. .JUSTICE S.RA VINDRA BHAT The present criminal appeals are allowed in terms of the separate judgment passdd today in Criminal Appeal No.497/2006 titled Satinder i@ Bawa For detailed order please see the above mentioned judgment. OCTOBER 31,2011 e Cr!. A.317, 290, & 972/2006,598 & 1020/2008 , Page 2 * / Y RT OF !JEL]U NEW OELlU H,ESERVED ON: 18.08.2011 r,"b{ONOUNCED ON: 31.10.2011 + CRL.A. 497/2006, en j\LA.3290/UU J SATIN]) ER BA \V;\- -- -'''' Appellam vcrsus STATE TIIKCB,L "'" Respondent + CRL.A. 31712006 DILSHAD @ KALE " .. Appellant verSLl::, STATE THRLJ CBJ .-". Respondent + CRL.A. 29012006 ANIL ..... Appellant verSllS STATE c. ••• Respondent + CRL.A. 972/200(; DEVENDER .. , . Appellant ycrsus STATE Respondent + CRL.A .. 598/2008 RAVINDER SiO SH. Kt fj\'ll IDl ..... Appellant versus THE STALE ... Respondent CRL.A. ] 020/2\W3 RAVI KUMAR SONl) CHANDU ., .. AppeUant Vl::rsus STATE .... Respondent Presence: Ms. Rieha K?1pool', for appellant in CrL A497/2006. Ms. Reen::1 Singh, Ms. Singh and ]'vir. /\jay Singh, Ac1vcca!es Ior appellant in Crl. ;\ ()7212006. . lvls. Fdrnima Sethi) Advocate /()I ;lppcl [ant in CrJ.A.598/2008 & 1020:2008. IVlr. Nm'cncler Mann, Special P.P. I()r cm along with Mr Manoj Pant, Ac1voc;}te for respomknt (' B1. II. m . ..::-;"-r:......... ', .. :.; CrL A.290, 317, 972 & 497/2006, 598 & l021J/200R Page I II CORAM: MR. JUSTICE S. RAV]NDRA BHAT MR. JUSTRCE GJJ>. MrrT'U'AL Whether the Reporters of local papers may be allowed to see the j uclgment? YES To be referred to Reporter or not? YES Whether the judgment should be repOlied in the Digest? YES MR. JUSTICE S.RA VliNDRA lBHAT f 1. The Appellants Satinder 13tiwa, Devenc1er, Dilshad Kale, Ravi Kumar @ Sonu, . and Ravinder, (hereafter referred to by tbeir names) lmpugll <I judgment and order of the ¥\dditional Sessions Judge, Karkurclooma Delhi, dated I in SC No. 79/2005 rherebY they were convicted for committing Ihe offences pLlni.<hable under Sections 396 and IPC and sentenced to life imprisonment. They were sl'I1tencec1 to 7 years rigorous fmprisonment with <' 10001- fine lor the offence under Sccli(lI1 201 IPC and in default of payment of fine, Curther simple imprisonment for one month. Further, for the olIence under 450 IPC. they were sentenced. to 7 years with a fine of \' 1000. 111 default of payment of fine. to lurther undergo Sll11pJc 1ll1pnSOnl11cnt for one month. A dacoity was committed al House No.B-98, Lane No.7, Phase-IO Ganga Vihar, belhi. The premises belonged to SiJ. Devi Saran. The incidenl occurred in the intervening " night of 22/23.09.1998 during whieh he was killed. FIR No.70J/98 was registered in Police Station Gokul Puri on 23.09.] 998 under Sections 4521307/:i24134 IPC against unknown Ii ipersons, on the \vriUcl1 complainl o[ his wife. On eomplcLioll oj' investigation, a charge-sheet was filed Dis 452/323/307/34 IPe against