[Cites 19, Cited by 0]
Delhi High Court
Virender Alias Bablu vs State Nct Of Delhi on 23 March, 2026
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 17th February, 2026.
Date of Decision: 23rd March, 2026.
Uploaded on: 23rd March, 2026.
+ CRL.A. 797/2025 & CRL.M.(BAIL) 1228/2025
VIRENDER ALIAS BABLU .....Appellant
Through: Mr. Himanshu Anand Gupta, Ms.
Mansi Yadav, Mr. Shekhar Anand
Gupta, Mr. Sidharth Barua, Mr. Mike
Desai, Ms. Navneet Kaur and Ms.
Shivani Rampal, Advs.
versus
STATE NCT OF DELHI .....Respondent
Through:
Mr. Ritesh Kumar Bahri, APP with
Ms. Divya Yadav & Mr. Lalit Luthra,
Advs.
+ CRL.A. 983/2025 & CRL.M.(BAIL) 1514/2025
VIKAS @ TINKU .....Appellant
Through: Mr. Dhruva Bhagat, Adv.
versus
STATE (NCT OF DELHI) ....Respondent
Through: Mr. Ritesh Kumar Bahri, APP with
Ms. Divya Yadav & Mr. Lalit Luthra,
Advs.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE MADHU JAIN
JUDGMENT
MADHU JAIN, J.
BACKGROUND:
1. The present appeals have been filed under Section 415 (2) read with
Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter,
'BNSS') assailing the impugned judgment of conviction and order on sentence
dated 10th March, 2025 and 27th March 2025 respectively passed by the court
of Ld. ASJ-05 North-West District, Rohini Court, Delhi whereby the
Appellants have been convicted in Sessions Case No. 56/2017 arising out of
FIR No. 732/2016 registered at P.S. Begumpur, Delhi under Sections 302/34
of the Indian Penal Code, 1860 (hereinafter 'IPC') and wherein Appellant -
Virender@Bablu has also been convicted under Sections 25/27 of the Arms
Act, 1959.
2. By the impugned judgment of conviction and order on sentence, the
Appellants have been sentenced to undergo imprisonment for life for the
commission of offence punishable under Section 302 of the IPC along with a
fine of Rs. 1,00,000/-. In default of payment of the said fine, they have been
sentenced to undergo simple imprisonment for a period of 6 months. Further,
Appellant Virender @ Bablu has been sentenced to undergo Imprisonment for
a period of 3 years with fine of Rs. 5,000/-, for commission of offence under
Sections 25/27 of the Arms Act, 1959. In default of the payment of fine, the
concerned Appellant will have to undergo simple imprisonment for a period
of 1 month.
3. It is pertinent to mention here that
this is the second round of appeals being filed by the Appellants. Vide
judgment dated 26th March, 2024, both the Appellants were convicted for the
offence under Section 302 IPC and accused Virender @ Bablu was
additionally convicted for the offence under Sections 25/27 Arms Act,1959.
Thereafter, vide order dated 6th December, 2024, the Ld. Division Bench of
this court in CRL.A.792/2024 and in CRL.A.913/2024, set aside the said
judgment of conviction and order on Sentence dated 26th March, 2024 and
30th May, 2024 respectively, and remanded the matter back to the ld. Trial
court for fresh arguments and pronouncement of judgment. The relevant
portion of the order in CRL.A.792/2024 and CRL.A.913/2024 dated 6th
December, 2024 is extracted below:
"8. In the considered opinion of this Court, the
impugned judgment of the Trial Court is sketchy to
say the least as there is no discussion in respect of
the evidence or the basis of the conclusions that the
Trial Court has arrived at in the said judgment. In a
case involving a serious offence such as an offence
under Section 302 IPC, the ld. Trial Court is
expected to analyse and appreciate the evidence
which has been led and draw its conclusions only on
the basis of the same. The said reasoning being
completely absent in the impugned judgment, the
same cannot be sustained. In these circumstances,
therefore, this Court is of the opinion that the matter
deserves to be remanded for re-hearing of the final
arguments and pronouncement of judgment afresh
on the existing evidence and documents on record.
9. According to the respective nominal rolls on
record, the Appellant in CRL. A. 792/2024 i.e.,
Vikas@Tinku has already undergone a period of
approximately 3 years 7 months and the Appellant
in CRL.A. 913/2024 i.e., Virender@Bablu has
undergone approximately 5 years 10 months.
Accordingly, the Appellants are directed to be
released on bail till the pronouncement of final
judgment by the ld. Trial Court, upon them
furnishing a personal bond of Rs. 20,000/- each with
one surety of like amount, to the satisfaction of the
ld. Trial Court/Link Court, further subject to
following conditions:
i. The Appellants shall not leave India without prior
permission of the ld. Trial Court.
ii. The Appellants shall intimate the ld. Trial Court
by way of an affidavit and to the Investigating
Officer regarding any change in residential
address.
iii. The Appellants shall appear before the ld. Trial
Court as and when the matter is taken up for
hearing.
iv. The Appellants are directed to give their mobile
numbers to the Investigating Officer and keep it
operational at all times. v. The Appellants shall not,
directly or indirectly, tamper with evidence or try to
influence the witness in any manner.
10. The impugned judgment of conviction and order
of sentence dated 26th March, 2024 and 30th May,
2024, respectively, are set aside. The matter is
remanded back to the ld. Trial Court and the same
shall be listed on 9th January, 2025. The ld. Trial
Court shall hear the arguments afresh and
pronounce judgment within a period of 2 months
from the said date."
4. The impugned judgement has now been passed on 10th March 2025,
which is under challenge in this appeal.
BRIEF FACTS:
5. The present case arises out of the incident dated 22nd September 2016
when around 8:34 PM, PS Begumpur received information from Brahm
Shakti Hospital regarding one Vinay Singh having been admitted with a
gunshot injury who was declared brought dead. The said information was
recorded vide DD No.42A, pursuant to which the police machinery was set
into motion.
6. Upon reaching the hospital, the IO (PW26 / Retd. Ins. Ramesh Singh)
collected the MLC bearing No. 1268/16(Ex. Pw-1/1) of the deceased and
thereafter proceeded to the place of occurrence near Maxfort School, Sector-
23, Rohini. At the spot, one motorcycle bearing registration No. HR-12X-
7510 was found lying with blood stains. The crime team inspected the scene
and collected exhibits including blood-stained earth samples. Consequently,
FIR No. 732/2016 was registered at PS Begumpur for the offence punishable
under Section 302 IPC.
7. On 23rd September 2016, the postmortem examination of the deceased
was conducted, wherein two firearm wounds (one entry and one exit) were
noted on the temporal region of the head, with blackening and tattooing,
indicative of close-range firing. The cause of death was opined as cranio-
cerebral damage resulting from ante-mortem firearm injury sufficient to cause
death in the ordinary course of nature.
8. On 29th September 2016, as per the testimony of PW-14 HC Yashpal,
at about 06:00 p.m., he along with SI Surender and IO (PW26) reached Sector-
24, Rohini in search of the culprits, where the IO (PW26) requested 4-5 public
persons to join the proceedings, however, they refused and left. Thereafter, a
raiding party was constituted. The concerned raiding party, at about 6:45 pm,
apprehended 2 boys coming from the side of the Rithala road after they were
pointed out by the secret informer. Upon interrogation, their names were
revealed as Vikas @ Tinku and Virender @ Bablu. Both the Appellants were
formally arrested vide arrest memo dated 29th September 2016, and their
personal search was conducted. Their disclosure statements were recorded as
Ex.PW14/5 and Ex.PW14/6.
9. Pursuant to the above disclosure statements, Appellant Virender is
stated to have led the police party to the Service Road, Sector-25, Rohini, near
electric pillars No. 561-52/23, and got recovered one country-made pistol
(desi katta), wrapped in green colour cloth, from underneath the bushes. The
prosecution examined PW-19 to prove the recovery of the said katta. The said
weapon was seized after sealing, and was handed to SI Surinder (PW-20).
10. After completion of the investigation, charge-sheet was filed before the
concerned court and cognizance of the offences was taken.
11. Upon compliance with the provisions of Section 207 Cr.P.C., the case
was committed to the Court of Sessions for trial in accordance with law.
12. Vide order dated 18th March 2017, charges were framed against both
the Appellants for offences punishable under Sections 302/34 IPC, and
additionally against accused Virender under Sections 25/27 of the Arms Act,
1959 to which they pleaded not guilty and claimed trial.
13. The prosecution has examined as many as twenty-six (26) witnesses in
order to prove the charge against the accused/Appellants. While believing the
testimonies of these witnesses, the ld. Trial Court has discussed them as under:
"5. (i) PW-1 Dr. Afroz is the person who examined
the dead body of the deceased namely Vinay Singh
vide MLC No. 1268 (Ex.PW 1/1).
(ii) PW-2 Sh. Baljeet Singh is the uncle of deceased
Vinay. It was deposed similarly by both of them that
they have identified the dead body of deceased. It
was also deposed by Sh. Baljeet Singh (PW-2) and
Sh. Wazir Singh (PW-9) that then statements were
recorded (Ex.PW2/1 and Ex.PW9/ respectively).
It was also inter-alia deposed by Sh. Wazir Singh
(PW-9) that his son Vinay used to lend money
against interest and that around July 2016. Vinay
had told him that he had lent Rs.2.5 lakhs to one
Virender Verma @ Bablu. who resided in Sector-25.
Rohini on 12.02.2016 in connection with marriage
of his sister. That the money was paid in presence of
father of Virender and an affidavit and a blank
signed cheque was given to him. It was further
deposed by him that about 4-5 days prior to the
incident, his son Vinay had told him that he had
demanded back his money from Birender. who
refused to make the payment and had threatened to
shoot him.
(iii). PW-3 ASI Karambir Singh is the photographer,
who had taken photographs at the spot (Ex.PW3/l to
14).
(iv). PW-4 SI Akashdeep is the official, who was
posted with Crime Team and on receipt of
information, he inspected the spot and got it
photographed and recorded his observations in the
Scene of Crime report.
(v). PW-5 Sh. Krishan Kumar Batra deposed that he
was a property dealer by profession and that
deceased Vinay was known to him and used to visit
his office and Vinay used to lend money against
interest.
It was further deposed that on 22.09.2016 at about
07.00 PM while Vinay was sitting in park in front of
his office, one of his relatives came there and Vinay
left with him.
(vi). PW-6 HC Parvinder is the D.O, who registered
the F.I.R of the present case (Ex.PW6/l) on receipt
of rukka, vide endorsement (EX.PW6/2). The
witness had brought the DD Register w.r.t. DD
No.42/A dt. 22.09.2016 (Ex.PW6/4).
(vii). PW-7 HC Dilip Kumar is the official, who, on
receipt of copies of F.I.R from D.O, delivered the
same at the residence of Ld. MM, Joint C.P. and
D.C.P.
(vii) HC Dilip Kumar (PW-7) is the official, who, on
receipt of copies of F.I.R from D.O, delivered the
same at the residence of Ld. MM, Joint C.P. and
D.C.P.
(viii). PW-8 ASI Prem Pal is the official, who was
on patrolling duty in Sector-23, Rohini. It was
deposed by him that near divider of Max Fort
School near crossing of Sector-23 & Sector-24.
Rohini, he saw a black coloured Pulsar M/C
NO.HR12X-7510 lying parked; a large crowd was
found present there; blood was on the motorcycle;
the injured was also lying (here; S.I Surender
reached there, who took injured to the hospital by
leaving him at the spot.
It was further deposed that after S.I Surender
returned back to the spot and sent him to P.S with
Rukka at around 10.30 p.m. and that after
registration of F.I.R, he returned back to the spot
with rukka.
(x). PW-10 HC Charan Singh is the official, who, on
receipt of information from Brahm Shakti Hospital,
went there along with S.I Surender. It was deposed
that on reaching the hospital, it transpired that
injured Vinay was brought dead and that M.L.C was
collected and that no eye witness met them in the
hospital. It was further deposed that after leaving
him in the hospital, I.O went to the spot and that he
got preserved the dead body in S.G.M Mortuary,
that Post Mortem was got conducted on 23.09.2016;
dead body was handed over to legal heirs and then
returned back to the P.S. It was further deposed that
some pullandas received in the hospital were
handed over to him by the I.O in the hospital and he
had brought the same to P.S.
(xi). PW-11 HC Narender is the official, who, had
taken one viscera box bearing seal of hospital
alongwith a sample seal and two plastic boxes duly
sealed with seal of RS from malkhana FSL, Rohini
vide RC no.218/21/16 & 219/21/16 and that after
depositing the said articles in FSL, he brought back
the receipt and deposited same in malkhana.
(xii). PW-12 Sh. Rajan Walia deposed that on
22.09.2016, he was bringing his father home on
motorcycle and that on the way, he saw a large
crowd having collected at Sector-23. Rohini near
Max Fort School. That when he went there and saw
Vinay @ Doctor lying therein injured condition;
there was bleeding and that he alongwith some
other persons helped to put Vinay in a Champion
vehicle which had been got stopped on road; the
vehicle driver took him to hospital; too had gone to
Brahm Shakti Hospital and was declared dead in the
hospital.
(xiii). PW-13 Insp. Manohar Lai deposed that on
24.11.2016, while being posted as Draftsman (N-
W), he had gone to P.S Begumpur, where he met
Insp. Ramesh Singh and that thereafter, they went to
the spot near Max fort School, Sec-23, Rohini; he
inspected the spot at instance of the I.O and PW
Satish Kumar and prepared his rough notes and that
subsequently, he prepared scaled site plan in his
office on 25.11.2016 (EX.PW13/1).
(xiv). PW-14 HC Yashpal deposed that on
29.09.2016, he had joined investigation alongwith
S.I Surinder and the I.O; at about 06.00 p.m., they
reached Sector-24, Rohini in official vehicle in
search of culprits of the case; a secret informer met
I.O and informed that Virender @ Bablu, who was
wanted in the present case would be coming at Deep
Vihar for taking money from someone alongwith his
accomplice Tinku; that Insp. Ramesh requested 4-5
passersby to join the proceedings, but they all
refused and went away; that thereafter, a raiding
party alongwith the informer reached center of road
near I.C.I.C.I. Bank between Deep Vihar and
Sector-24, Rohini, they parked their vehicle on the
service road and that they took positions behind
trees near the spot; that at about 06.45 p.m., two
boys were seen coming from the side of Rithala
road; they were pointed out by the informer and the
raiding party apprehended both the said boys,
whose name were revealed as Vikas @ Tinku and
Virender @ Bablu and both of them were arrested
after interrogation vide arrest memos (EX.PW14/1
& EX.PW14/2); that their personal search was
conducted vide memos (Ex.PW14/3 & Ex.PW14/4);
that the disclosure statements were recorded as
Ex.PW14/5 & Ex.PW14/6; that in accordance with
disclosure statement, accused Virender took them to
Service Road, Sector-25. Rohini, to a pair of electric
pillars No.561-52/23 and from under the bushes, he
got recovered a desi katta wrapped in a green
colour; that the same was opened and found
containing an empty cartridge; the sketch of katta
(Ex.PW14/7) and cartridge was prepared and the
same was sealed in a transparent plastic dabba and
was seized vide memo (Ex,PW14/8); that the seal
after use was handed over to S.I Surender; that in
accordance with disclosure statement, accused
Vikas took them to his house in Village Rithala. from
where he got recovered a Passion Pro motorcycle;
that the motorcycle was seized vide memo
(Ex.PW14/9).
(xv). PW-15 HC Rajender is the MHC (M), who has
deposed that on 29.11.2016, H.C Shamsher
deposited 9 live cartridges vide RC no.237/21; on
30.11.2016, the said cartridges were sent through
Ct. Narender to FSL Rohini vide RC no.4/21; Ct.
Narender deposited back the receipt with him and
that nobody had tampered with the cartridges as
long as same remained in his custody.
(xvi). PW-16 Ct. Ran Singh is the official, who has
deposited the 7 sealed exhibits with seal of RS and
two with seal of SGMH Mortuary from MHC (M) to
FSL Rohini; he took the same vide RC no.220/21
and after depositing the same in FSL, he deposited
back the receipt with MHC (M) and that the same
was not tampered with so long as the same remained
in his custody.
(xvii). PW-17 Sh. Jeetu is the registered owner of
motorcycle bearing registration no. DL-11SG-
8846. It was deposed by him that the I.O had seized
the said motorcycle, which was taken by him on
superdari vide supardarginama (Ex.PW17/A) and
that the copy of RC was EX.PW17/B.
(xviii). PW-18 Sh. Satish Kumar is the relative of the
deceased and also the eyewitness in the present
case. It was inter-alia deposed by him that at about
10/12 minutes later, when they reached near
Maxfort School, Sector-23, Rohini, Vinay Singh was
about 15/20 mts ahead of him on his motorcycle; in
the meantime, one motorcycle make Passion Pro of
Black colour crossed him from his back in a fast
speed on which two boys aged about 20/25 years
were riding towards Vinay Singh side; the
registration number on the plate of the said
motorcycle was not visible as the tape was affixed to
hide the same; the said motorcyclist took their
motorcycle parallel to the motorcycle of Vinay
Singh and the pillion rider of the said motorcycle
fired on the head of Vinay Singh; as a result of that,
the motorcycle of Vinay struck with the divider and
Vinay fell down towards the right side of the divider;
the said motorcyclist made U turn and started
running on their motorcycle towards Sector-24
Rohini side; that he wanted to apprehend them, so
he followed them on his motorcycle upto some
distance but he could not chase them, so he came
back to the spot. During his examination-in-chief,
this witness correctly identified both the accused
persons by pointing out that accused Virender @
Bablu was the pillion rider and caused gunshot
injury to Vinay Singh and that accused Vikas @
Tinku was riding the motorcycle at the time of
incident.
It was also deposed by him that he made effort to
stop the vehicle and in the meantime, one of the
known of the Vinay came there, who has identified
Vinay and with the help of that person, he took Vinay
to Braham Shakti Hospital.
(xix). PW-19 Sh. Khushi Ram is the recovery
witness, who has inter-alia deposed that on
29.09.2016, he had gone to Sector-25, Rohini, on his
motorcycle and when reached near CNG Pump Sec-
25, Rohini and saw some police officials with a
person, whose name was revealed as Virender @
Babloo, who is resident of Sec-25, Pocket-1, Rohini,
Delhi; the said accused led them to some distance
ahead of CNG Pump towards the bushes by the side
of pair of electricity pole; accused took out one
green colored cloth bag from the bushes and handed
over the same to the police; police opened the bag
and it was found containing one desi katta; police
checked the katta and it was found containing one
empty cartridge (khali khol); Police prepared the
sketch of desi katta and fired cartridge; I.O kept the
katta and sealed the same and that the I.O
recorded his statement.
(xx) PW-20 SI Surender is the official, who
alongwith Ct. Charan Singh reached at Brahm
Shakti Hospital, Budh Vihar, Phase 1, Delhi, where
Sh. Vinay Singh was brought dead. He is also the
witness to several memos i.e. seizure memo
(Ex.PW18/A to Ex.PW18/E, EX.PW20/B,
EX.PW20/D, Ex.PW14/9), Sketch of katta and
cartridge (Ex.PW14/7), pointing out -cum- seizure
memo (Ex.PW14/D), pointing out memos
(Ex.PW20/E & Ex.PW20/F), personal search
memos (Ex.PW14/l to Ex.PW14/4), Disclosure
statement of accused persons (Ex.PW14/5 &
Ex.PW14/6), photographs (Ex.PW20/P)
EX.PW20/P4),
(xxi) PW- 21 Dr. Adesh Kumar is the official from
FSL, Rohini, who has deposed that on 30.11.2016,
one sealed wooden box with the seal of SGMH
Mortuary Mangol Puri, Delhi-83, was received in
his office and same was marked to him for chemical
examination. That on examination, he prepared his
report (Ex.PW21/A).
(xxii) PW- 22 Dr. Anurag Thapar is the doctor, who
has conducted the postmortem of the body of
deceased Vinay. It was deposed by him that the body
of deceased was duly identified by Wazir (Father)
and Baljit (uncle) and that the post-mortem report
was Ex.PW22/A. That in his opinion, the cause of
death was cranio cerebral damage as a result of fire
arm injury, which was ante-mortem in nature.
(xxiii) PW-23 Sh. Saurabh Pathak is the witness
from Biology, FSL, Rohini, who has deposed that on
30.11.2016, 09 sealed parcels were received, which
were assigned to him for biological and serological
examination. That the parcel no.1 to 7 were sealed
with the seal of RS and the parcel no.8 & 9 were
sealed with the seal of SGMH Mortuary Mangol
Puri Delhi-83. It was also deposed by him that after
opening, parcel no.1 & 3 were found containing
road material, parcel no.2, 4 to 8 were having blood
stained gauze cloth piece and parcel no.9 was found
containing Ex.PW9a, 9b, 9c and 9d.
It was also deposed by him that during biological
examination, blood was detected on Ex.1 to 9d and
that the Exhibits were sealed with the seal of SP FSL
Delhi and that thereafter, he prepared Report
(EX.PW23/A) and the forwarding letter (E
X.PW23/B).
(xxiv) PW-24 Sh. Jagminder Singh is the
owner/supardar of motorcycle No.HR12X-7510,
who has deposed that on 22.09.2016, the said
motorcycle was with his nephew namely Vinay. This
witness identified the photographs of the motorcycle
(Ex.PW20/P1, EX.PW20/P2, EX.PW24/P1 and
Ex.PW24/P2).
(xxv) PW-25 Sh. Puneet Puri is the witness from
FSL. who has deposed that on 30.11.2016, the
sealed parcels were received in FSL through Ct.
Narender and same were marked to him for
examination; the seals on the parcels were intact.
The witness correctly identified the exhibits as
Ex.P1 and Ex.PW25/P1.
(xxvi) PW-26 Retd. Insp. Ramesh Singh is the I.O of
the case, who has deposed that on 22.09.2016 and
at about 08.34 P.M., Dr. Afroj from Braham Shakti
hospital telephonically informed about the
admission of injured Vinay Singh vide MLC
No.1268/16 by Rajan, who was declared brought
dead; who received gun shot injury; he alongwith SI
Surender Kumar reached the place, where HC Prem
Pal met them; one motorcycle no. HR12X-7510 was
found parked near Maxfort School and the blood
was also found there; no witness was found at the
.spot; SI Surender prepared the rukka and got the
case registered; the case was assigned to him; he
got the spot inspected through mobile crime team by
taking photographs; eye-witness reached at the
spot; he lifted blood on gauze etc; he recorded the
statement of witnesses u/s 161 Cr.PC; seized the
motorcycle; got conducted the post-mortem over the
body of the deceased; prepared the site plan and
several seizure memos besides pointing out memo.
It was also deposed by him that accused Virender
refused join the TIP proceedings (Ex.PW26/J) and
that the TIP proceedings of accused Vikas @ Tinku
was Ex.PW26/M.
14. In the statements of the Appellants under Section 313 Cr.P.C recorded
on 15th May, 2023, the Appellants denied the entire prosecution case and
claimed false implication. They asserted that no offence was committed by
them and that they had been roped in on fabricated allegations. The Appellants
further contended that the alleged threats attributed to Appellant- Virender
were an afterthought, as no complaint had ever been lodged by PW-9 Wazir
Singh in that regard. In support of their defence, they examined DW-1 Ram
Bahadur and DW-2 Tarun Verma. The defence evidence closed on 23rd
November, 2023.
15. The ld. Trial Court vide the impugned judgment dated 10th March, 2025
convicted the Appellants. The relevant paragraph is re-produced hereinbelow:
"CONCLUSION
29. In view of the foregoing discussion and on the basis
of evidence proved on record, the prosecution has
proved the charge u/s 302/34 against both the accused
beyond reasonable doubts. I hold the accused Virender
@ Bablu and Vikash @ Tinku guilty and accordingly
convict then u/s 302 IPC. The accused Virender @
Bablu is convicted also for the offence u/s. 25/27 Arms
Act. Therefore, this court is of the opinion that the
prosecution has not been able to prove the offence
punishable U/s 201/34 IPC against the accused
persons."
16. As can be seen from above, the Ld. Trial Court held the Appellants
guilty for offences under Sections 302/34 IPC and additionally convicted the
Accused/Appellant Virender @Bablu for offences under Sections 25/27 of
Arms Act, 1959. In terms of the impugned order on sentence dated 27th
March, 2025, the Appellants were directed to undergo as stated in the
paragraph re-produced hereinbelow:
"8. After considering all the relevant facts and
circumstances, I am of the view that the present case
does not qualify the test of rarest of the rare case in
which the death sentence can be imposed. Both the
convicts are accordingly sentenced u/s 302 IPC for
imprisonment for life and a fine of Rs. 1 lac each. In
default of payment of fine, the convicts shall
undergo a further simple imprisonment for a term of
6 months. The convict Virender @ Bablu is also
sentenced u/s.25/27 Arms Act for imprisonment for
3 years and a fine of Rs. 5000/-. In default of
payment of fine, he shall undergo a further simple
imprisonment for a term of 1 month. All the
sentences of imprisonment to run concurrently.
Benefit of section 428 Cr.PC be given to the convicts
as per law. Sentenced accordingly.
Accordingly, the convict Virender@ Bablu is
sentenced as under: -
Sr. Offence Substantive Fine Sentence in default
No. Sentence of payment of fine
1. Section Life Rs.1,00,000/- Six months (SI)
302/34 IPC imprisonment
(RI)
2. Section Imprisonment for Rs. 5000/- One month (SI)
25/27 3 years
Arms Act
Convict Vikar (Vikas) @Tinku is sentenced as
under:-
Sr. Offence Substantive Fine Sentence in default
No. Sentence of payment of fine
1. Section Life Rs.1,00,000/- Six months (SI)
302/34 IPC imprisonment
(RI)
All the sentences of imprisonment to run concurrently. Benefit of Section 428
Cr.P.C. be given to the convicts as per law.
17. The CRL.A. 797/2025 and the CRL.A. 983/2025 were admitted in this
Court vide order dated 30th May, 2025 and 16th July, 2025 respectively.
SUBMISSIONS MADE ON BEHALF OF THE APPELLANTS:
18. On behalf of the Appellants, an attempt has been made to show that
there are inconsistencies in the statements of PW-12 and PW-18, who were,
in effect, the only witnesses present at the scene (PW-18 being the only
eyewitness to the incident). Firstly, it is submitted that PW-12 does not
confirm the presence of PW-18 either at the crime scene or at the hospital. He
also does not confirm that the deceased had sustained a gunshot injury. The
Appellants were arrested on 29th September, 2016 on the basis of certain
purported secret information, which is recorded.
19. He further submits that a perusal of the statement of PW-18 would
show that even he does not state that he knew the names of the persons who
were riding the motorcycle, which he described as a black coloured 'Passion
Pro' motorcycle. It is further submitted that, on the basis of the site plan, the
recovery of the bullet is also suspicious, as it is unclear how a bullet without
blood traces could have been recovered from such a large road where
vehicular movement is substantial.
20. Finally, a dispute is raised with respect to how the Appellants were
recognized or identified as the accused in the case, inasmuch as the defence
led the evidence of DW-1 and DW-2, who placed on record photocopies of
two newspapers published on 29th September, 2016, wherein it was reported
that two young boys had been arrested by the Delhi Police from Faizabad. The
distance between Faizabad and Delhi being about 500 to 600 kms, leads to a
suspicion that the arrest in fact took place in Faizabad. The witnesses were
not questioned on the authenticity of the newspapers, rather, it was merely put
to them that the news had been planted on behalf of the defence.
21. On behalf of the Appellant - Vikas@Tinku, Mr. Bhagat has argued that
his client had no motive or past dispute with the deceased. He was only 21
years of age at the time of the incident. No CDR was produced to confirm the
location of the two Appellants near Maxfort School, Rohini, or to show any
conversation between them. In the absence of any independent evidence, the
Appellant - Vikas has been convicted solely on the basis of the testimony of
PW-18. In fact, PW-12 does not even confirm the presence of PW-18 in the
hospital, and in the MLC, the person accompanying the deceased is shown to
be PW-12 and not PW-18, who claims to be a close relative. Ld. Counsel has
emphasized that PW-5 stated that both the deceased and the relative-PW-18
left on the same bike bearing the same registration number. However, PW-18
stated that he was riding a separate bike from the deceased.
22. It is therefore submitted that this goes to the root of the matter, in view
of the fact that PW-18 and the deceased were riding on the same bike, then
the entire testimony of PW-18 would prove to be untrue. It is further
highlighted that PW-12 also stated that he did not see anyone else related to
the deceased who was known to him, except the deceased. The said testimony
shows that the facts stated by PW-12 and PW-18 do not match with each
other. There is a clear contradiction which creates doubt as to whether PW-18
was even present at the site when the incident took place and his entire
testimony is false and fabricated.
23. It is further submitted on behalf of the Appellants that the testimony of
PW-19 would show that on the day when the arrest and recovery were made,
only one person, namely Virender @ Bablu, was arrested, and Appellant -
Vikas was not arrested on that date. There is no independent evidence
showing the arrest of Appellant-Vikas. Further, the manner in which the gun
was allegedly recovered from the bushes would also suggest that the same
was planted.
24. Further, it is submitted by the learned counsel on behalf of the
appellants that the manner in which PW-18 identified the accused in Rohini
Court appears to be doubtful, suggesting that the alleged identification is a
concocted and made-up story.
SUBMISSIONS MADE ON BEHALF OF THE RESPONDENTS:
25. On behalf of the State, Mr. Bahri, ld. APP submits that there are four
main disputes raised by the Appellants. The same are:
I. Regarding the articles in the newspaper.
II. Regarding the identity of the Appellants.
III. Regarding the lack of common intention.
IV. The Reliabilty of PW-19.
26. On the first issue, insofar as the newspaper is concerned, the submission
of Mr. Bahri, ld. APP is that the original newspapers have not been produced.
Secondly, since the newspaper is only secondary evidence, no complaint, no
image, and no document relating to the Delhi Police arresting the Appellants
from Faizabad has been produced.
27. It is contended by the ld. APP that the entire newspaper story is false
and fabricated. Reliance is placed upon the decision in Lakshminath Shetty
and Another vs. State of Tamil Nadu, 1988 (3) ACC 319, to argue that such
newspapers constitute hearsay evidence and cannot form the basis of either
conviction or acquittal. It is further submitted that the father of the deceased,
Sh. Wazir Singh, who deposed as PW-9, clearly stated in his statement under
Section 161 Cr.P.C. that he suspected Appellant-Virender due to a money
dispute with his son.
28. It is also submitted that the blank cancelled cheque allegedly given in
connection with the transaction was within the knowledge of his father and
has been produced in evidence. It is further argued that the TIP was refused
by both the Appellants as per Ex. PW26/I and Ex. PW26/J, and therefore, an
adverse inference ought to be drawn. The truthfulness of PW-18 is also sought
to be supported by the fact that he did not name the Appellants in his
statement, but only stated that he could recognize them, which shows that he
had no intention to falsely implicate the Appellants.
29. Mr. Bahri placed reliance on Shahaja v. State of Maharashtra, (2023)
12 SCC 558, submitting that while appreciating the testimony of a witness,
the Court must examine whether the evidence, when read as a whole, carries
a ring of truth. In this regard, reliance was placed upon the principles
governing the appreciation of ocular evidence. Further reliance was also
placed on Baban Shankar Daphal v. State of Maharashtra, 2025 SCC
OnLine SC 137, and Nirmal Singh v. State of Bihar, (2005) 9 SCC 725,
which discuss the settled principles relating to the appreciation of ocular
evidence.
30. Mr. Bahri, ld. APP also submits that the gunshot injury has been proved
through the FSL. The fact that the deceased died due to a gunshot from the
recovered weapon is not in dispute in terms of the FSL report. PW-25, who is
the Assistant Director (Ballistics), had clearly established that the
characteristics of the striations present on the evidence bullet and on the test-
fired bullets were found to be identical. Thus, the weapon used for the
shooting has been confirmed. The same was recovered at the instance of the
accused from the bushes, which was also proved in the presence of PW-19,
an independent witness. Under these circumstances, it is his submission that
small inconsistencies may be present, but the same deserve to be ignored.
ANALYSIS AND FINDINGS:
31. The Court has considered the matter.
32. Upon perusal of the post-mortem report, it is evident that there was a
firearm entry wound and a firearm exit wound and the cause of death as
categorically mentioned in the post mortem report is cranio cerebral damage.
The relevant portion of the post-mortem report is reproduced hereinbelow:
"EXTERNAL EXAMINATION (Injuries etc.):
1. Firearm entry wound, 0.7 x 0.7 cm, over left
temporal region, situated 168 cm above the heel and
5 cm lateral to the outer angle of left eye with
blackening & tattooing in the 15 cm of surrounding
area seen. Singeing of surrounding scalp hair
present. Abrasion collar and grease collar present.
2. Firearm exit wound, 0.7 x 0.6 cm over right
temporal region, 168 cm above the heel and 8 cm
lateral to the outer angle of the right eye.
On exploration, projectile passed through
underlying skin, s/c tissues, muscles, fracturing left
temporal bone lacerating the left temporal lobes
and then right temporal lobe, fracturing right
temporal bone. Massive blood extravasation seen
along the injury track.
3. Laceration, 6 x 3 cm x bone deep, present on the
outer aspect of right knee with overlying abrasion,
reddish, measuring 10 x 5.5 cm.
4. Abraded contusion, reddish, 5.3 cm x 1.5 cm,
present on the front of left leg in its middle 1/3rd.
5. Abraded contusion, reddish, 2 x 1 cm, present on the
front of left leg in its lower 1/3rd.
6. Abraded contusion, reddish, 1 x 1 cm, present on the
outer aspect of right elbow.
7. Laceration, 3.5 cm x 0.5 cm x muscle deep, present
on the medial malleolus of the right ankle.
OPINION: Cause of Death is cranio cerebral
damage as a result of firearm injury, antemortem
in nature. However, blood and viscera have been
preserved to rule out intoxication."
33. Upon perusal of the impugned judgment, it is manifested that the ld.
Trial Court has placed substantial reliance upon the testimony of PW-18 for
recording conviction. The relevant extract of the impugned judgment reads as
under:
"The identity of the accused persons have been
sufficiently established through PW-18. It is proved
that accused Vikas @ Tinku was driving the
motorcycle and accused Virender @ Bablu was
pillion rider, when accused Virender @ Bablu fired
gun shot injury on the head of victim and caused his
death. From the facts and circumstances, it is
proved on record, it can be gathered that both the
accused were having common intention to kill Vinay
Singh".
34. However, this Court is unable to concur with the aforesaid findings. A
careful and independent scrutiny of the testimony of PW-18 reveals material
inconsistencies, improbabilities and conduct contrary to normal human
behaviour, giving rise to doubts regarding the presence of PW-18 during the
incident, thereby rendering his version unsafe to be made the sole foundation
of conviction. The relevant portion showing inconsistency are produced is
hereinbelow:
Witness Statement in Examination in Statement in Cross-
Chief Examination
PW-18 ....In the year 2016, I was doing the ...It is correct that I used to
business of finance at B-340, near do the job of finance with
Satish
Mother Dairy, Shahbad Dairy, Delhi. cash only without using any
Kumar The daughter of my real uncle cheque or other instrument in
(chacha) got married with Vinay this regard. It is correct that I
Singh S/o Sh. Wajir Singh R/o Flat do not file income tax return.
no. 109, Pocket 12, Sector 21, Rohini, I was dealing the business of
Delhi about one year back from the finance from my office
day of incident. I used to meet Vinay which was situated at 340-B,
Singh after his marriage at his house Near Mother Dairy,
as well as at his office situated at Shahbad Dairy, Delhi. I
Sector 25, Rohini in the name of used to run alone my finance
White House. business in Delhi. I do not
xxx remember the mobile
In the evening of 22.09.2016, I had number which I was
gone from my office of Shahbad Dairy carrying on that day.
to the office of Vinay at Sector 25, Nowadays, I am using
Rohini. I parked my bike outside his mobile number 8168-3
office and met with Vinay Singh. After xxx
sometime thereafter, Vinay Singh I was not having said mobile
asked me to go with him to his home number with me on the day of
and then we both left the office of incident. It is wrong to
Vinay Singh at about 7 pm. Vinay was suggest that I was using the
on his own motorcycle whereas I was same mobile number at the
following him on my motorcycle. time of incident also.
xxx xxx
At about 10/12 minutes later, when At the time of incident, I was
we reached near Maxfort School, not carrying any mobile
Sector 23, Rohini at that time Vinay phone with me. It is wrong to
Singh was about 15/20 mts ahead of suggest that on 22.09.2016, I
me on his motorcycle. In the was keeping with me my
meantime, one motorcycle make personal mobile phone in
Passion Pro of Black color crossed working condition.
me from my back in a fast speed on xxx
which two boys aged about 20/25 The visibility with sunlight
years were riding towards Vinay was very low, but the street
Singh side. The registration number light was there near the spot
on the plate of the said motorcycle and things were visible. Only
was not visible as the tape was affixed few persons were passing by.
to hide the same. The said I do not know whether any
motorcyclist took their motorcycle other person had seen the
parallel to the motorcycle of Vinay said incident at that time or
Singh and the pillion rider of the said not.
motorcycle fired on the head of Vinay xxx
Singh. As a result of that, the Friend of Vinay Singh get
motorcycle of Vinay struck with the admitted him in the hospital.
divider and Vinay fell down towards It is wrong to suggest that I
the right side of the divider. The said never went to Brahm Shakti
motorcyclist made U turn and started Hospital with injured Vinay
running on their motorcycle towards Singh. I cannot tell the name
sector 24 Rohini side. of the Doctor who attended
xxx Vinay Singh in the hospital.
I wanted to apprehend them, so I I had stated residential
followed them on my motorcycle upto address of Vinay Singh to
some distance but I could not chase the Doctor. Brahm Shakti
them, so I came back to the spot. Hospital is situated at Pooth.
xxx xxx
At the spot, I made efforts to stop the We reached hospital in 5-10
vehicles who were passing from the minutes after putting the
said spot at that time, but after seeing injured in vehicle. Incident
the condition of Vinay Singh nobody took place at about 7.15 pm.
agreed to accompany us to the We reached hospital around
hospital in their vehicle. In the 7.35 to 7.45 pm. On our way
meantime, one known of Vinay came to hospital traffic was
there who also identified Vinay as his normal.
known one. With his help I had taken It is wrong to suggest that I
Vinay Singh to Brahma Shakti did not accompany the
Hospital in a Green color Champion injured to the hospital. I
Vehicle. Doctors of the hospital remained in the hospital for
examined Vinay Singh and declared about half an hour and once
him dead. doctor declared the deceased
xxx as dead, I left for my sister's
The known of Vinay Singh remained house to tell her about the
in the hospital and I left the hospital incident. No policeman had
for going to my cousin sister's house reached at the hospital till
to inform her regarding the incident. the time I remained in the
After hearing the said shocking hospital. My statement was
information, my sister became very not recorded by the police in
nervous and shocked, so I had to the hospital.
remain with her to make her
understand. The father of Vinay
Singh went to the hospital. Other
relatives and family members started
coming to my cousin sister's house at
that time.
xxx
After about 2/2:30 hours, I recalled
that the motorcycle of Vinay Singh is
still lying at the spot so I went to the
spot again. Some police officials were
found present at the said spot and
were making enquiry from the persons
present there.
xxx
On 30.09.2016, I had come to Rohini
Court for some personal work I saw
IO of this case while getting from the
staircase alongwith both the accused
persons and 2-3 police officials. I
identified them as the same persons
who came at the spot on a motorcycle
and the pillion rider gave gun shot
injury to Vinay Singh at the time of
incident. On asking their names
revealed to be Vikas @ Tinku and
Virender @ Bablu. I identified Vikas
@ Tinku as motorcycle rider and
Virender @ Bablu as pillion rider
and who fired upon Vinay Singh. IO
recorded my statement...
35. PW-18 has admitted that he is related to the deceased, stating that he is
the cousin of the deceased's wife. Though the testimony of a related witness
cannot be discarded only on that ground, it must be examined with caution.
In the present case, several aspects of PW-18 conduct and statement raise
serious doubts. PW-18 stated that after the incident, he tried to stop passing
vehicles but no one agreed to help. He then stated in his cross-examination on
8th March, 2019 that 'one known person of Vinay' i.e (PW-12) came to the
spot, and with his help, he took the injured to Brahm Shakti Hospital in a
champion vehicle. He further deposed in examination in chief that after
Vinay/deceased was declared dead, that 'known person' remained in the
hospital and he himself left to inform his cousin sister. This conduct appears
unnatural as it is not easy to believe that a close relative, who claims to have
witnessed the shooting, would leave the hospital after the deceased was
declared dead and entrust the body to a person who is only described as 'one
known of Vinay'. Ordinarily, a relative would stay at the hospital until close
family members arrive or police formalities are completed. Furthermore, PW-
18's statement that he did not remember the mobile number of the phone he
was carrying at that time and a further claim that he was not carrying any
mobile phone on the day of the incident does not inspire court's confidence
and seems like a made-up story. In fact, it appears to the Court that the mobile
phone of PW -18 would have been clear evidence to prove his location.
Further, as per PW - 18, immediately upon witnessing the shooting, instead
of attending to the victim, he claims to have followed the shooters for some
distance. PW-18 says in his examination in chief as under:
"I wanted to apprehend them, so I followed them
on my motorcycle upto some distance but I could
not chase them, so I came back to the spot."
36. In the meantime, PW - 12 had reached the spot and had taken the victim
to the hospital. In fact, PW-12 had not seen PW-18 at all either at the spot or
at the hospital.
37. PW-18 has further deposed that on 30th September, 2016, when he had
come to Rohini Court for some personal work, he allegedly saw the IO of the
present case coming down the staircase along with both the accused persons
and 2-3 police officials. This version of a chance meeting in the Court
premises appears highly doubtful. The identification of the accused in police
custody, without any prior Test Identification Parade (hereinafter 'TIP'), and
that too allegedly by coincidence in the court complex, casts serious doubt on
the credibility of this part of the prosecution case. The explanation offered by
PW-18 appears to be an afterthought and does not inspire confidence.
38. It is necessary at this juncture to examine the statement of PW-12. It
emerges that he was admittedly a friend of the deceased. He has deposed that
on the relevant date and time, while returning after closing his father's shop,
he noticed a crowd gathered near Maxfort School, Sector-23, Rohini, and
found the deceased Vinay lying in an injured condition. The relevant portion
of the said statement is quoted hereinbelow:
Witness Statement in Examination in Statement in Cross-
Chief Examination
PW-12 ...I am doing private job in ...As I do not now remember I cannot
Libaspur. On 22.9.17 at say if the other person who had
Rajan
about 7.00-7.30 PM I was accompanied me to hospital was named
Walia bringing my father home Satish.
from his shop in Pooth I have no knowledge about particulars
Kalan. On way I saw a large of its driver. Only one motorcycle was
crowd having collected at seen by me at the spot. It is correct that
Sector-23, Rohini near the injured was unconscious.
Maxfort School. When I Motorcycle of Vinay was lying near
went there I saw Vinay @ him. Vinay was bleeding from his head.
Doctor lying there in His motorcycle was of black colour.
injured condition. He was I knew Vinay being my friend. It is
bleeding. I alongwith some incorrect to suggest that after stopping
other persons helped to put at the spot I had gone to leave my
Vinay in a Champion father at home or that thereafter I had
vehicle which had been got remained at home. There was only one
stopped on road. The gate of the hospital and I entered
vehicle driver took him to through it. It is correct that except for
hospital. I too had gone to Vinay I did not know anyone else from
Brahm Shakti Hospital. He the crowd which had collected there.
was declared dead in the The Champion vehicle had been got
hospital. I then went to leave stopped by the crowd. It was not there
my father at home and then when I firstly reached the spot. It is
went to PS Begumpur as I correct that my statement was recorded
was directed by police to by police in the PS.
reach there. Police had I had initially remained at the spot for
interrogated me. I do not about 10 minutes and it took me
know anything else. I have around 15-20 minutes in reaching the
nothing more to say. hospital. I cannot say who had got
Vinay admitted in the hospital. Doctors
had not made any inquiry from me. It
is incorrect to suggest that my
statement had not been recorded by
police on 22.09.16 or that I had been
subsequently called to the PS and my
statement was recorded.
It is incorrect to suggest that I came to
know about his death after I had
returned back home. Infact I came to
know about his death in the hospital
itself.
39. From a perusal of the testimony of PW-12, it is evident that he was a
friend of the deceased and had reached the spot shortly after the incident. He
has categorically stated that he remained at the spot for about 10 minutes and
thereafter accompanied the injured to Brahm Shakti Hospital in a Champion
vehicle, reaching there within approximately 15-20 minutes. PW - 12 does
not confirm the presence of PW -18 but only states 'some other persons'. He
further deposed that he remained in the hospital for about 15-20 minutes until
the deceased was declared dead. What assumes significance is that PW-12, at
no point in his examination-in-chief or cross-examination, makes any specific
reference to PW-18: Satish Kumar, who claims to be a close relative of the
deceased and an eye-witness to the occurrence. Even when specifically
confronted by the ld. APP, PW-12 stated that he could not say whether the
other person who accompanied him to the hospital was named Satish.
40. If the version of PW-18 is to be accepted, he was not only present at
the spot at the time of incident but was also instrumental in taking the
deceased to the hospital, he remained present during treatment, furnished the
residential address of the deceased to the doctor, and stayed there for a
considerable duration. In ordinary course of human conduct, a close relative
of an injured person, particularly in a case of gunshot injury resulting in death,
would exhibit anxiety, urgency, and emotional involvement sufficient to make
his identity and relationship apparent to those present. However, the
testimony of PW-12 does not reflect any such circumstance as PW-12 has
categorically stated that except for the deceased, he did not know anyone from
the crowd. He has further stated that he cannot say who had got the deceased
admitted in the hospital and that the doctors did not make any inquiry from
him. If PW-18 was actually present there and had indeed taken charge of the
situation in the manner asserted by him, it is difficult to comprehend how PW-
12, who remained both at the spot and in the hospital for nearly half an hour
in total, remained unaware of PW-18's identity or of his relationship with the
deceased.
41. The absence of any interaction, acknowledgment, or even an incidental
reference to PW-18 by PW-12 renders the prosecution version on this aspect
unnatural with normal human probabilities. The natural and expected conduct
of a close relative in such circumstances would ordinarily manifest in a
manner perceivable to others present. The absence of such indication assumes
relevance while appreciating the credibility and presence of PW-18 at the
material time.
42. PW-1: Dr. Afroz, who was on duty when the deceased was brought to
the hospital, also disposed that PW-12: Rajan Walia had brought the dead
body. Relevant portion of the said statement is extracted hereinbelow:
"I was present on duty in the hospital when the
patient was brought there. It is correct that no police
official was accompanying the body when it was
brought to the hospital. I cannot say whether or not
any gun powder marking was present on the dead
body when I examined it. It is incorrect to suggest
that I cannot say so as in fact no gun powder was
visible on the body.
It may be possible that the injuries mentioned in
the MLC, found on the dead body, had been caused
by way of fall on a pointed object. The patient was
already dead when brought to the hospital. It is
correct that Rajan, who had brought the body to
the hospital, had never informed me about any gun
shot injury having been suffered by the patient.
There was no active bleeding from wounds of the
body when I examined it."
43. Furthermore, the MLC also records that the deceased was brought to
the hospital by PW-12 Rajan which corroborates the statement of Dr. Afroz,
PW-1 regarding the presence of PW-12 in the hospital. The relevant portion
is reproduced hereinbelow:
44. Moreover, the incident is alleged to have taken place at 8:34 P.M.
during the night, as stated in the Rukka. Whether the place was sufficiently
illuminated has not been proved beyond reasonable doubt by the prosecution.
PW-18 has stated that his motorcycle was at a distance of about 15-20 mts
behind the motorcycle of the deceased when two persons on another
motorcycle as per him, "crossed me from my back" and then reached near the
motorcycle of the deceased. According to him, the pillion rider fired at the
deceased at point-blank range, and both assailants immediately fled from the
spot after taking a U-turn. The entire occurrence, as per PW-18's own version,
would have taken about 1-2 minutes.
45. In such circumstances, it is difficult to accept that within such a short
span of time, during night-time, PW-18 was in a position to clearly observe
and recognize both assailants, particularly when they overtook him from
behind and thereafter quickly escaped. PW-18 has further admitted that tape
was affixed on the number plate and therefore, the registration number was
not visible. The defence submission that the motorcycle allegedly bore the
word 'RAJPUT' inscribed in bold letters, which none of the witnesses have
stated to have noticed, assumes relevance and cannot be lightly brushed aside.
46. The prosecution has also relied upon the alleged recovery of desi katta
pursuant to disclosure statement but no fingerprint examination was
conducted on the weapon. The absence of such scientific corroboration
renders the alleged recovery doubtful and weakens the prosecution case. If the
said pistol had in fact been used in the incident, it would ordinarily have
fingerprints.
47. More importantly, it is clarified that the alleged recovery of the pistol
cannot be accepted, not merely on account of the absence of fingerprint
examination, but also because the testimony of the recovery witness itself
does not inspire confidence as the presence of recovery witness, PW-19:
Khushi Ram at the spot appears suspicious. He claims to be engaged in the
business of property dealing, where the presence of a mobile phone is
essential; yet he stated that he was not carrying any mobile phone. He further
deposed that he did not know which property he had gone to see, who had
asked him to see the property, and that he was not carrying any mobile phone
with a camera. He was not even aware of the model of the mobile phone he
was using at that time. He also stated that he could not recollect whether any
police official made any recording at the spot. Additionally, he admitted that
he was not wearing a helmet and was travelling through the service lane to
avoid the police officials. Despite attempting to avoid the police, he
voluntarily stopped to see what the police officials were doing. These
circumstances cast doubt on the naturalness of his presence at the alleged
place of recovery. Moreover, the considerable distance between the place of
the incident and the place of recovery cannot be ignored. Viewed
cumulatively, these circumstances give rise to serious suspicion in the mind
of this Court that the alleged pistol may have been planted. The relevant
portion of his testimony has been produced hereinbelow:
Witness Statement in Cross Examination
PW-19 .....I had gone to Sector 25 to see a property at around 9 PM. I
Khushi left my house at 8 PM. The description of the property is not
Ram known to me. I do not even know the number or ownership of
the property. I do not even know who had asked me to see the
property. I remained at the property for 4-5 minutes and found
it to be locked. I even enquired from the labourers in the
adjoining house, but they did not tell me anything about the
property.
xxx
It is correct that the police vehicles were quite visible from a
distance as the blue and red lights of the police were on. I myself
stopped after seeing the police officials. No one except the
police officials was present. There were 3-4 police persons
present. One police official was having three stars on his
uniform. As I am a common man, I am afraid of police officials.
I was not afraid of the police officials on that day as I had not
committed any offence. I remained at the spot for around half
an hour. Thereafter, I never met the police officials again for
the present case....
My statement was recorded on the spot. I was present at the spot,
but I do not know which police official recorded my statement.
My signatures were obtained on two papers. Only one person
was there who seemed to be apprehended by the police officials.
I was not carrying any mobile phone having a camera. I was
not even aware which model of mobile phone I was having at
that time. I cannot recollect whether any police official made
any recording at the spot. I was not wearing a helmet and was
going through the service lane in order to avoid the police
officials. Despite not wearing a helmet, I myself stopped to see
what the police officials were doing. I was never a witness in
any case previously.
I am afraid of police officials. I was not afraid of the police
officials on that day as I had not committed any offence. I
remained at the spot for around half an hour. Thereafter, I never
met the police officials again for the present case.
My statement was recorded on the spot. I was present at the spot,
but I do not know which police official recorded my statement.
My signatures were obtained on two papers. Only one person
was there who seemed to be apprehended by the police officials.
I was not carrying any mobile phone having a camera. I was
not even aware which model of mobile phone I was having at
that time. I cannot recollect whether any police official made
any recording at the spot. I was not wearing a helmet and was
going through the service lane in order to avoid the police
officials. Despite not wearing a helmet, I myself stopped to see
what the police officials were doing. I was never a witness in
any case previously....
48. Furthermore, PW-9, the father of the deceased, stated that the
Appellant- Virender @Bablu had borrowed money from the deceased and,
upon being asked to return the money, the Appellant Virender allegedly
threatened to shoot him. It appears doubtful that PW-9, being himself a police
officer, did not lodge any complaint regarding such a serious threat. The
absence of any contemporaneous complaint or report significantly weakens
the credibility of the alleged threat and renders the prosecution version weak
in relation to motive.
49. Moreover, previous enmity by itself cannot be the sole basis for presu
ming motive; some cogent and reliable material must be placed on record by
the prosecution to establish the existence of such motive. Further, this Court
finds that there is no clear, cogent, or convincing evidence on record to
establish any motive on the part of Appellant - Vikas @ Tinku to commit the
alleged offence against the deceased. The prosecution has failed to bring on
record any prior enmity, dispute, or circumstance which could reasonably
suggest why Appellant-Vikas @ Tinku would participate in the commission
of such a serious crime.
50. The Apex Court in Prahlad v. State of M.P., (2024) 14 SCC 203
reiterated the well-settled principle that previous enmity is a double-edged
sword. While it may furnish a motive for the commission of an offence, it can
equally form the basis for false implication. The relevant portion is extracted
hereinbelow:
"42. It is also equally well settled that previous
enmity is a double-edged sword. Though, it can
provide a motive for the crime, it can also be a
ground for false implication. Reliance in this
respect, could be made on the judgment of this Court
in Ramashish Rai v. Jagdish Singh [Ramashish
Rai v. Jagdish Singh, (2005) 10 SCC 498 : 2005
SCC (Cri) 1611] , wherein this Court has observed
thus: (SCC p. 501, para 7)
"7. ... By now, it is well-settled principle of law that
enmity is a double-edged sword. It can be a ground
for false implication. It also can be a ground for
assault. Therefore, a duty is cast upon the court to
examine the testimony of inimical witnesses with
due caution and diligence."
51. The Supreme Court in Nimai Ghosh v. State of Bihar, 2025 SCC
OnLine SC 2337, reiterated that while the testimony of a solitary eyewitness
can form the basis of conviction, such testimony must withstand strict
scrutiny, particularly where the conduct of the witness appears unnatural or
inconsistent with ordinary human behaviour. The relevant portion extracted
hereinbelow:
"11. In Gopal Singh v. State of Madhya Pradesh², a
case relating to double murder, this Court allowed
the appeal against the conviction recorded by the
High Court, which had set aside the judgment of
acquittal passed by the Trial Court for offences
under Section 302/34 IPC. The testimony of the
alleged eyewitness, Feran Singh (PW-5), was
disbelieved. The Court observed as under:--
"25. We also find that the High Court has accepted
the statement of Feran Singh, PW 5 as the
eyewitness of the incident ignoring the fact that his
behaviour was unnatural as he claimed to have
rushed to the village but had still not conveyed the
information about the incident to his parents and
others present there and had chosen to disappear
for a couple of hours on the specious and
unacceptable plea that he feared for his own
safety."
In the said case, this Court held that the conduct
of the eyewitness was unnatural. Though he
claimed to have rushed to the village after the
incident, he did not convey any information to the
villagers, his parents, or other persons present
there. Instead, he disappeared for a couple of
hours on the pretext of fear and self-preservation,
which rendered his testimony doubtful."
52. In Narendrasinh Keshubhai Zala v. State of Gujarat, (2023) 18 SCC
783. The Apex Court reiterated in cases resting on the testimony of a sole
eyewitness, such witness must be wholly reliable and trustworthy. The
relevant portion extracted hereinbelow:
"8. It is a settled principle of law that doubt cannot
replace proof. Suspicion, howsoever great it may
be, is no substitute of proof in criminal
jurisprudence (Jagga Singh v. State of
Punjab [Jagga Singh v. State of Punjab, 1994 Supp
(3) SCC 463 : 1994 SCC (Cri) 1798] ). Only such
evidence is admissible and acceptable as is
permissible in accordance with law. In the case of
a sole eyewitness, the witness has to be reliable,
trustworthy, his testimony worthy of credence and
the case proven beyond reasonable doubt.
Unnatural conduct and unexplained
circumstances can be a ground for disbelieving the
witness.
9. This Court in Anil Phukan v. State of Assam [Anil
Phukan v. State of Assam, (1993) 3 SCC 282 : 1993
SCC (Cri) 810] has held that : (SCC p. 285, para 3)
"3. ... So long as the single eyewitness is a wholly
reliable witness the courts have no difficulty in
basing conviction on his testimony alone.
However, where the single eyewitness is not found
to be a wholly reliable witness, in the sense that
there are some circumstances which may show
that he could have an interest in the prosecution,
then the courts generally insist upon some
independent corroboration of his testimony, in
material particulars, before recording conviction.
It is only when the courts find that the single
eyewitness is a wholly unreliable witness that his
testimony is discarded in toto and no amount of
corroboration can cure that defect."
The same principle has been enunciated in : Amar
Singh v. State (NCT of Delhi) [Amar Singh v. State
(NCT of Delhi), (2020) 19 SCC 165 : (2021) 3 SCC
(Cri) 784] .
12. Police interrogated PW 3 at different places and
recorded his statement on the 14th of January at
around 4.30 p.m. at the Police Headquarters.
Cross-examination part of his testimony reveals
this witness to have repeatedly improvised his
initial statement, disclosed to the police.
Illustratively he had not informed the police of
having disclosed the incident to the sister of the
deceased. He had also not disclosed to the police
that there was exchange of words between Ram
and Narendra (appellant herein) in relation to
some money owed by the deceased to the accused.
This may not have any effect on the veracity of his
statement. But what makes his testimony shaky
and the witness unbelievable is his admission of
the Police Headquarters being in close proximity
to the place of occurrence of the incident and
despite knowing that police is always posted at the
gate he did not approach the police. The
explanation furnished is only that he was "much
scared", which prudently is not acceptable, given
that he was a close friend of the deceased."
53. In the considered opinion of this Court, the conduct attributed to PW-
18 raises serious doubts regarding the reliability of his testimony. PW-18
claims to be engaged in business; however, he stated that he was not carrying
a mobile phone at the relevant time. Further, despite claiming to have
witnessed the incident, he allegedly left the deceased, who was his relative, in
the care of a person described only as "a known person of Vinay," without
informing the police or making use of the hospital telephone. He also stated
that he left the hospital soon after the deceased was declared dead and
proceeded to his sister's house, where he remained for nearly two hours. Such
conduct appears inconsistent with the natural conduct expected of a close
relative who had allegedly witnessed a fatal shooting. Additionally, the
absence of any reference to PW-18 either in the MLC or in the testimony of
PW-12 assumes significance and creates a serious dent in the prosecution
case.
54. The issue of visibility at the spot also assumes importance. As per the
testimony of PW-18, he was riding his motorcycle at a distance of about 15-
20 metres behind the deceased when the incident occurred. Considering that
the occurrence took place during evening hours and that PW-18 himself was
riding a moving motorcycle, the possibility of clearly observing and
accurately identifying the assailants becomes doubtful. His subsequent claim
that he identified the accused persons by chance upon seeing them in Rohini
Court, in the absence of a prior Test Identification Parade, does not inspire
confidence. These circumstances cumulatively give rise to serious and
reasonable doubt regarding the presence of PW-18 at the scene of the incident,
thereby rendering the prosecution version unsafe to rely upon.
55. The judgments relied upon by the ld. APP namely, Shahaja (supra),
Baban Shankar Daphal (supra) and Nirmal Singh (supra), do not assist the
prosecution, as the testimony of PW-18 is fraught with irregularities and
highly improbable conduct, thereby creating sufficient doubt in the mind of
the Court.
CONCLUSION
56. In view of the foregoing discussion, this Court finds that the
prosecution case rests primarily on the testimony of PW-18, whose version is
inconsistent and unreliable. His testimony does not inspire confidence and
cannot be made the sole basis of conviction.
57. The prosecution has thus failed to prove the charges against the
Appellants beyond reasonable doubt.
58. Accordingly, the impugned judgment of conviction and order on
sentence are set aside. The Appellants are acquitted of all charges and shall
be released forthwith, if not required in any other case.
59. The bail bonds and surety bonds furnished by the Appellants shall stand
discharged. Pending applications, if any, also stand disposed of.
60. Copy of this order be sent to the Jail Superintendent, for information
and compliance.
MADHU JAIN
JUDGE
PRATHIBA M. SINGH
JUDGE
MARCH 23, 2026/RM/ys
