Raj Kumar @ Bheema vs State Of Nct Of Delhi

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). OF 2025 (Arising out of SLP (Crl.) No (s). 697 of 2024)

RAJ KUMAR @ BHEEMA ….APPELLANT(S)

VERSUS

STATE OF NCT OF DELHI ….RESPONDENT(S)

JUDGMENT

Mehta, J.

1. Heard.

2. Leave granted.

3. The instant appeal is directed against the final

judgment and order dated 29th September, 2022,

passed by the Division Bench of the High Court of

Delhi at New Delhi1 in Criminal Appeal No. 281 of Signature Not Verified Digitally signed by NITIN TALREJA Date: 2025.11.17 16:21:39 IST Reason: 1 Hereinafter, referred to as the “High Court”.

1 2021, whereby the appeal preferred by the appellant

Raj Kumar @ Bheema2 came to be dismissed,

affirming the judgment dated 12th February, 2021,

rendered by the learned Additional Sessions Judge,

South East, Saket Courts, New Delhi3. By the said

judgment, while the accused-appellant was acquitted

of the charges under Sections 3, 3(1)(i), 3(1)(ii), 3(2),

and 3(4) of the Maharashtra Control of Organised

Crime Act, 19994, and Sections 396, 307, 397, 412

read with Section 34 of the Indian Penal Code, 18605,

he was convicted for the offence punishable under

Section 302 IPC, whereas the remaining co-accused

were acquitted. The High Court further affirmed the

order on sentence dated 20th February, 2021,

whereby the accused-appellant was sentenced to

2 Hereinafter, referred to as the “accused-appellant”. 3 Hereinafter, referred to as the “trial Court”. 4 For short, ‘MCOCA’.

5 For short, ‘IPC’.

2 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 undergo imprisonment for life with a fine of

Rs.5,000/-, and in default whereof, to further

undergo simple imprisonment for a period of one

month.

PROSECUTION CASE

4. On the intervening night of 2nd/3rd November,

2008, at about 1:50 a.m., an information was

received at Police Station, New Friends Colony

through wireless operator, regarding an incident of

house breaking by night at House No. 81, Sukhdev

Vihar, near Escort Hospital, where the intruders were

allegedly assaulting the occupants of the premises.

At about 2:00 a.m., further information was received

at the said Police Station, which was reduced into

writing vide DD No. 29A, as per which, Head

Constable Bhagirath (PW-7) informed that SI Sanjeev

Solanki (PW-17) may be sent to the spot.

3 Crl. Appeal@ SLP (Crl.) No(s). 697/2024

5. Pursuant thereto, SI Sanjeev Solanki (PW-17),

accompanied by Constable Ashok Kumar (PW-9),

proceeded to the place of occurrence and apprised

the Additional S.H.O., who arrived there shortly

thereafter. Upon entering the premises, they found

the sliding door of the drawing room broken, the side

grill bent, the house ransacked, and the household

articles scattered. A large pool of blood was noticed

in the lobby, where the dead body of an elderly male

(deceased-Madan Mohan Gulati) was lying, alongside

certain articles. Bloodstains and articles in disarray

were also observed in the adjoining bedroom.

6. On hearing faint cries emanating from the

adjoining bedroom, the police officials rushed inside

and found an elderly lady, later identified as Smt.

Indra Prabha Gulati (PW-18), lying in an injured

condition. She was immediately shifted to AIIMS

Hospital by the PCR. Thereafter, SI Sanjeev Solanki

4 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 (PW-17), accompanied by Inspector S.K. Sharma

(PW-15), proceeded to the Trauma Centre, AIIMS,

where Smt. Indra Prabha Gulati (PW-18) was under

treatment. Medico-Legal Certificate (MLC)6 of the

injured, Smt. Indra Prabha Gulati (PW-18) was

prepared on 3rd November, 2008, by Dr. Sharwan.

The MLC recorded that the injured was fit for

statement and noted multiple grievous stab injuries,

including blood clots around the nether region, scalp-

deep wounds, and a lacerated wound near the right

eyebrow. The nature of the weapon used to cause the

injuries was opined to be sharp.

7. Upon being declared fit, the statement (Fard

bayan)7 of Smt. Indra Prabha Gulati (PW-18) was

recorded by SI Sanjeev Solanki (PW-17) and based on

the said statement, Inspector S.K. Sharma (PW-15)

6 Exh. 21/A. 7 Exh. PW-17/A.

5 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 prepared a rukka and handed it over to SI Sanjeev

Solanki (PW-17), pursuant to which an FIR8 came to

be registered at Police Station, New Friends Colony,

for the offences punishable under Sections

394/397/302/307/34 of IPC.

8. On 5th November, 2008, body of the deceased

Madan Mohan Gulati was identified by his son-Vivek

Gulati, and by his nephew-Servesh Gulati (son of the

deceased’s younger brother). The post-mortem

examination of the deceased was thereafter carried

out, and the post-mortem report was issued wherein

the cause of death was opined to be shock and

haemorrhage on account of multiple antemortem

injuries. The opinion on the weapon of offence

(knife/chheni) was also obtained from the doctor.

8 FIR No. 601/2018 dated 3rd November, 2008. 6 Crl. Appeal@ SLP (Crl.) No(s). 697/2024

9. The accused-appellant was apprehended on 21st

November, 2008, based on the description allegedly

provided by the injured eye-witness, Smt. Indra

Prabha Gulati (PW-18). It is alleged that the accused-

appellant gave a disclosure statement9, and in

furtherance thereof, he led the police party to an open

area near bushes situated at Pul Prahladpur, from

where a blood-stained Eagle brand pant was

recovered from a pit. The pant was duly seized and

sealed. On the following day, while the appellant was

on police remand, his disclosure led to the arrest of

the co-accused persons.

10. On 25th November, 2008, pursuant to a

supplementary disclosure statement10, the appellant

purportedly led the police party to the bushes near

the railway track behind Priyanka Camp, from where

9 Exh. PW 14/A. 10 Exh. PW-14/N.

7 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 one chheni was recovered. The same was also seized

and sealed. Thereafter, the accused-appellant also

facilitated the recovery of the robbed articles, namely,

one idol of Lord Ganesha and a Panasonic CD player,

from his Jhuggi.

11. Shri Vivek Kumar Gulati, son of the deceased

and Smt. Indra Prabha Gulati (PW-18) identified the

case property in the Test Identification Parade11

conducted on 6th December, 2008. The proceedings12

of the TIP were conducted by Shri Devendra Kumar

Jangala (PW-16), learned Additional District Judge,

West, Tis Hazari Courts.

12. On 24th December, 2008, TIP was organized in

respect of the accused Raj Kumar @ Bheema,

Jawahar, Ranbir @ Sintu, and Naeem @ Mota;

however, they refused to participate in the same.

11 For short, ‘TIP’.

12 Exh. PW16/B.

8 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 Upon comparison, the fingerprints of the accused

Jawahar and Ranbir @ Sintu were found to tally with

the chance prints lifted from the spot. The site

inspection plan was prepared, and the material

exhibits were forwarded to the Forensic Science

Laboratory13 on 22nd January, 2009. Upon

completion of the investigation, chargesheet in

connection with the said FIR came to be filed on 2nd

February, 2002, against the accused, namely, Raj

Kumar @ Bheema, Ramesh Kumar @ Shankar,

Naeem Khan @ Mota, Jawahar, and Ranbir @ Sintu,

in the Court of the learned ACMM, for offences

punishable under Sections 3, 3(1)(i), 3(1)(ii), 3(2), and

3(4) of the MCOCA, and Sections 396, 307, 397, 412

read with Section 34 of IPC. One of the accused,

namely, Kastoori, could not be traced out despite best

efforts, and proceedings under Sections 82 and 83 of

13 For short, ‘FSL’.

9 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 the Code of Criminal procedure, 197314 were initiated

against him and his name was placed in Column No.

2 of the chargesheet. Since the offences were triable

exclusively by the Court of Sessions, the learned

ACMM, after compliance with the provisions of

Section 207 CrPC, committed the case to the Court

of Sessions for trial, where charges were framed

against the accused. They abjured their guilt and

claimed trial.

13. During the course of trial, the prosecution

examined 27 witnesses and exhibited 25 documents

in consolidated form to prove the guilt of the accused.

The accused Ramesh @ Shankar examined one

witness in defence. Upon closure of prosecution

evidence, statements of the accused persons were

recorded under Section 313 CrPC affording them an

opportunity to explain the incriminating material

14 For short, ‘CrPC’.

10 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 appearing against them. The accused-appellant, in

answer to Question No. 82, categorically stated, “I am

innocent and have been falsely implicated in the

present case. PW-17 Inspector Sanjeev Solanki was

known to me prior to the present case, and he has

falsely implicated me in this case.”

FINDINGS OF THE TRIAL COURT

14. Upon consideration of the arguments advanced

by the prosecution and the defence, and after

appreciating the evidence available on record, the

trial Court, vide judgment dated 12th February, 2021,

acquitted the accused persons other than the

appellant Raj Kumar @ Bheema, holding that the

case against him stood proved beyond reasonable

doubt only for the offence punishable under Section

302 IPC. He was acquitted of the remaining charges.

The conviction was primarily based on the testimony

of the eye-witness, Smt. Indra Prabha Gulati (PW-18),

11 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 who identified the appellant during her testimony

(recorded over video conferencing) while failing to

identify the remaining accused, coupled with the

purported recovery of weapon of offence at the

instance of the accused-appellant.

15. Further, the trial Court, vide order dated 20th

February, 2021, directed the accused-appellant to

undergo sentence as mentioned hereinabove.15

FINDINGS OF THE HIGH COURT

16. In appeal by the accused-appellant, the High

Court affirmed the findings of the trial Court vide

judgment16 dated 22nd September, 2022, finding no

infirmity in the judgment and order passed by the trial

Court, holding that the prosecution case essentially

rested upon the identification of the accused-appellant

by the injured witness and the recoveries effected at

15 Supra para 3.

16 Crl.A. 218/2021.

12 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 his instance. The High Court rejected the submission

advanced on behalf of the appellant that the

identification of the appellant by Smt. Indra Prabha

Gulati (PW-18) was doubtful as she failed to identify

the other accused, on the ground that, insofar as the

present accused-appellant was concerned, she was

categorical in her testimony that he was one of the

assailants.

17. The High Court observed that non-recovery of

the appellant’s finger prints from the place of incident

would not absolve him of participation in the offence,

which stood established by the identification made by

the injured victim, Smt. Indra Prabha Gulati (PW-18).

It was further noted that pursuant to the disclosure

made by the appellant, the pant allegedly worn by him

at the time of incident was recovered, on which human

blood was detected, and no plausible explanation was

forthcoming from the appellant as to the presence of

13 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 human blood on his wearing apparel. The Court also

held that merely because the son of the deceased and

the injured victim, who had identified the robbed

articles in TIP, did not appear in the witness box to

identify the recovered articles, would not discredit the

rest of the evidence led by the prosecution, which was

sufficient to prove the guilt of the appellant for the

offence alleged, beyond reasonable doubt.

18. Aggrieved, the accused-appellant is before us in

the present appeal by way of special leave.

Submissions on behalf of accused-appellant

19. Learned counsel for the appellant, vehemently

and fervently urged that the High Court fell in grave

error in affirming the conviction of the accused-

appellant recorded by the trial Court, which is wholly

unsustainable in law. It was contended that the

prosecution case rests entirely upon the testimony of

the old and infirm witness Smt. Indra Prabha Gulati

14 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 (PW-18), who was admittedly suffering from weak

eyesight. Accordingly, her testimony is riddled with

inconsistencies and is far too unconvincing so as to

form the sole basis for upholding a conviction for an

offence punishable with capital punishment.

20. It was further contended that Smt. Indra Prabha

Gulati (PW-18) identified the appellant in Court

through video conferencing on 8th May, 2017, after an

inordinate delay of nearly eight and a half years from

the incident dated 2nd November, 2008, while notably

failing to identify any of the other accused. It was

urged that in his statement under Section 313 CrPC,

the accused-appellant specifically alleged that PW-18

had been tutored, as his photographs had already

been shown to the witness prior to her deposition.

21. It was averred that there were material

contradictions and improvements in the testimony of

PW-18. In her initial statement under Section 161

15 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 CrPC, she mentioned that the assailants were armed

with “knives, screwdriver, and rods,” but made no

reference to a “chheni.” The introduction of the

“chheni” for the first time during her sworn testimony

recorded after a lapse of more than eight years was a

material improvement, evidently tailored to align with

the alleged recovery. Moreover, she failed to identify

any of the co-accused, all of whom were acquitted,

rendering her solitary identification of the appellant

highly doubtful.

22. Learned counsel urged that the prosecution

placed reliance upon the alleged recoveries of a blood-

stained pant, a “chheni,” and articles such as a

Ganesh idol/CD player at the instance of the

accused-appellant. The first recovery attributed to

the accused-appellant was allegedly made pursuant

to his disclosure statement from an open area near

bushes at Pul Prahladpur, wherefrom a blood-stained

16 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 pant was recovered. The prosecution alleged that the

said pant had been worn by the appellant at the time

of the incident. However, the blood-stains detected on

the garment did not test positive for the blood group

lifted from the scene of occurrence. It was thus

contended that the said article could not be

connected with the present case, even after forensic

examination17.

23. It was further urged that the said recovery

cannot be read in evidence under Section 27 of the

Evidence Act, 1872 inasmuch as in his disclosure

statement18 dated 21st November, 2008, the accused-

appellant did not state that he could get the article

recovered from an open place near Pul Prahladpur,

which, in any event, was accessible to all and sundry.

The learned counsel urged that all the recoveries were

17 Ex. PW-24/B read with Ex. PW-24/A. 18 Exhibit PW 14/A.

17 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 made without any independent witness being

associated to corroborate the same. It was further

averred that the alleged weapon of offence, namely

the “chheni,” was shown to have been recovered after

a lapse of 22 days from bushes near a railway track.

The said article was never shown to Smt. Indra

Prabha Gulati (PW-18) for identification, no

photographs were taken at the time of recovery, and

no independent witness was associated in the

process.

24. Placing reliance on the judgment of this Court

in Koppula Jagdish v. State of Andhra Pradesh19,

learned counsel further urged that the High Court

failed to appreciate that the appellant was wrongly

convicted for the offence under Section 302 IPC

simpliciter, inasmuch as no separate charge under

Section 302 IPC was framed against him. It was

19 (2005) 12 SCC 425.

18 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 pointed out that in the present case, all the accused

were charged under Sections 394, 397, 302, 307,

read with 34 IPC, and except for the appellant, all

other co-accused have been acquitted.

25. It was also urged that Shri Vivek Gulati, son of

the deceased, who had identified the robbed articles

during the TIP, did not appear in the witness box

during the trial to prove and identify the articles

allegedly recovered at the instance of the accused-

appellant, and hence, no adverse inference ought to

be drawn against the appellant on this count.

26. He, thus, implored the Court to accept the

appeal and set aside the impugned judgment(s).

Submissions on behalf of respondent-State

27. Per contra, Shri Vikramjeet Banerjee, learned

Additional Solicitor General, supported the impugned

judgment and urged that the appellant Raj Kumar @

Bheema was correctly identified by the injured eye-

19 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 witness, Smt. Indra Prabha Gulati (PW-18), in her

examination-in-chief as well as in her cross-

examination, as the person armed with a “chheni”

and a rod, who inflicted blows upon her and her

husband, resulting in the death of the latter. It was

further submitted that the said weapons were

recovered from the appellant pursuant to his

disclosure statement, thereby corroborating the

version of the injured witness Smt. Indra Prabha

Gulati (PW-18).

28. It was further contended that, as per the

opinion rendered by Dr. Arvind Kumar (PW-1) with

regard to the weapon of offence, Exhibit V, i.e., the

recovered “chheni,” could be one of the weapons used

in the offence and that injuries marked B, C, and D

on the person of injured Smt. Indra Prabha Gulati

(PW-18) were possible by the said weapon.

20 Crl. Appeal@ SLP (Crl.) No(s). 697/2024

29. The conduct and antecedents of the appellant,

including his status as a history-sheeter, repeated

involvement in criminal cases, and acts of

misconduct during incarceration, clearly reflect a

persistent pattern of unlawful behaviour.

Considering the heinous nature of the offence, being

the murder (for gain) of a senior citizen, the accused-

appellant does not deserve any indulgence, and the

gravity of the crime and the attendant circumstances

warrant dismissal of the appeal filed on his behalf.

30. He thus implored the Court to dismiss the

appeal, urging that the High Court had rightly

affirmed the conviction of the accused-appellant and

the sentence awarded to him by the trial Court. It was

further urged that upon an independent and

comprehensive appraisal of the evidence on record,

including the consistent testimonies of Investigating

Officer Shri S.K. Sharma (PW-15) and Smt. Indra

21 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 Prabha Gulati (PW-18), both the trial Court and the

High Court had recorded concurrent findings that the

prosecution had proved its case beyond reasonable

doubt, and hence no interference is warranted in the

impugned judgment.

Discussion and Analysis

31. We have given our thoughtful consideration to

the submissions advanced at bar and have carefully

gone through the impugned judgments, the material

available on record, as well as the written

submissions filed on behalf of both sides.

32. Since the appellant seeks reversal of concurrent

findings of fact recorded by the trial Court as well as

the High Court, this Court is required to tread with

circumspection. It has been consistently held by this

Court in a catena of decisions that unless the

findings are shown to be perverse or rendered in

disregard of material evidence, this Court would be

22 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 slow in interfering with concurrent conclusions of the

Courts below. Reference in this regard may be made

to the decision of this Court in the case of Mekala

Sivaiah v. State of Andhra Pradesh20, the relevant

para of which is quoted hereinbelow:

“15. It is well settled by judicial pronouncements that Article 136 is worded in wide terms and powers conferred under the said Article are not hedged by any technical hurdles. This overriding and exceptional power is, however, to be exercised sparingly and only in furtherance of cause of justice. Thus, when the judgment under appeal has resulted in grave miscarriage of justice by some misapprehension or misreading of evidence or by ignoring material evidence then this Court is not only empowered but is well expected to interfere to promote the cause of justice.” (Emphasis is supplied)

33. Keeping the aforesaid principle in mind, this

Court would proceed to consider the appeal at hand

to examine whether there is some manifest error or

illegality in the impugned judgment, and if any grave

and serious miscarriage of justice has been

20 (2022) 8 SCC 253.

23 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 occasioned on account of misreading or ignoring of

material evidence in the present case.

34. Evidently, on a perusal of the judgments under

challenge and upon considering the submissions

advanced by learned Standing Counsel for the State,

it emerges that primarily three circumstances have

been relied upon by the prosecution to bring home its

case against the appellant:

i. The identification of the appellant in Court by

the prosecution witness Smt. Indra Prabha

Gulati (PW-18) during her sworn testimony.

ii. The refusal of the appellant to participate in the

TIP, leading to an adverse inference being drawn

against him.

iii. Recovery of weapon of offence stained with

human blood.

24 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 A. Identification by the Sole Eye-Witness

35. It is undisputed that the fulcrum of the

prosecution case is based on the testimony of Smt.

Indra Prabha Gulati (PW-18). Thus, for the sake of

ready reference, we quote the entire deposition of the

said witness below: -

“ON S.A.

On 03.11.2008 I was present in my house at 81 Sukhdev Vihar, New Delhi. It was the intervening night of 2nd and 3rd November, 2008 and time was 11.30/11.45pm. I and my husband heard the noise of falling of utensils. My husband went to see the same. I also followed him and we saw five persons had entered into our house from the door of drawing room. Out of those, one/two persons were in the kitchen and four persons came through door of drawing room. They were having chheni, screwdriver and knives in their hands. They asked for keys from my husband. We told them to wait and the one boy who came from drawing room and was having iron rod and chheni in his hands, gave the blow from the iron blow on the head of my husband. He fell down. I was also given blow and became unconscious. I do not remember now by whom the blow was given. I remained in the hospital for about two months. Someone called the police and I was taken by the police to the hospital. I am having an 8 inch cut on my

25 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 stomach. I remained in Trauma Center. I was also having bandage on my head and it might be possible that blow was given on the head also. I made statement to the police in the hospital itself. It was given orally whatever was in my memory as I was on hospital bed.

I remained in Moolchand Hospital for one month and 10 days. I never met with the police for this case after my discharge from the hospital. I have never seen those boys who came into my house thereafter. At this stage, scanned image of signatures on statement is shown to the witness through video- link and after seeing it the witness states that the same pertains to her which are at point A. I can identify the accused if shown to me. At this stage, accused persons who are facing charges in this case, are shown through audio-video link one by one and after seeing accused the witness states that he is the same boy who was having chheni and rod and was giving blows to my husband. (The name of accused is Raj Kumar).

Next accused is shown and after seeing him the witness states that she is not remembering complete and she is remembering face of only one as she became unconscious. (The name of accused is Ranbir).

Next accused is shown and after seeing him the witness states that she does not know anything about him. (The name of accused is Jawahar). Next accused is shown and after seeing him the witness states that she is remembering somehow and it was 12.00midnight and 8 years have passed she is not remembering further. She further states that she cannot say whether he

26 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 was among those persons or not. (The name of accused is Naeem) Next accused is shown and after seeing him the witness states that the boy shown first be stand with him so that she may identify again. The accused Raj Kumar is shown with this accused to the witness. After seeing the accused Raj Kumar, the witness states that he is one among those boys but she is not sure about second boy. (The name of second boy is Ramesh Kumar).

XXN by Sh. Sunil Dutt, Ld. Addl. P.P for the State.

It is correct that when my husband fell down after blows given to him, I was also given rod blows and knife blows.

I do not remember that I fell down in Angan as I was unconscious. I was told by the police officials that I was taken to the room by the boys dragging me. I do not know that they after breaking open the almirah in the room took away Rs.20000/- and the jewellery articles. I do not remember whether I raised noise or not or that I remained lied on the floor of the room. (Vol. I regained my consciousness in the Trauma Center). It is wrong to suggest that the number of boys who entered into the house was 3-4. (Vol. They were five in number).

I did not go to Patiala House Court on 26.12.2008. (Vol. My son went to Patiala House court as I was ill). It is wrong to suggest that in the Patiala House Court I identified four boys as Raj Kumar @ Bheema, Ranbir @ Shintu, Jawahar and Naeem @ Mota and stated to the police that they were the boys who gave blows to my husband and me in my

27 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 house and took away cash and jewellary from my house. (Vol. I did not go to PHC only my son went there).

XXN by Sh. Mihi Lal Chaudhary, counsel for accused Jawahar.

As far as I remember I regained consciousness after three/four days in the Trauma Center and at that time I was on ventilator.

XXN by Sh. S.M. Sallauddin, counsel for accused Raj Kumar and Naeem, XXN by Sh. V.P Kaushik, counsel for Ramesh Kumar, and XXN by Sh. Sallauddin Khan, counsel for accused Ranbir.

I do not remember the date when police met me for the first time and the last time.

I cannot tell the name of the police official by whom my statement was recorded. It was recorded in the hospital. The signatures were taken in the hospital and I do not remember now whether it was in Trauma Center or Moolchand. At that time police officials were present and my son was also present. My son and daughter met me in the Trauma Center. I do not remember the date when they came to me in the Trauma Center. It may be 4th or 5th. As far as I remember I left India on 27.12.2008. I do not remember whether my statement was written as I told or not. (Vol. Due to the incident I was unconscious and was not fit completely). I do not remember how many pages were got signed by me from the police. I do not remember whether I signed any blank paper or not. If my signatures were taken it might be that something was written on the papers then my signatures were

28 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 taken. I do not remember whether the writing were in hindi or english language. The witness is confronted with the statement Ex.PW17/A and is asked that in the same 'Chheni' word is not mentioned in the same. I do not remember about the colour of the screwdriver. I do not remember what was the length of the iron rod. The accused Raj Kumar was worn black shirt. I do not remember about the clothes of remaining boys. I do not remember the name of tenant of that time. He was from Hyderabad. He was in the premises for about 2/2 1/2 years prior to incident. They vacated the premises after the incident as they were also afraid. I do not remember whether the verification of the tenant was got conducted from police or not. We were not having permanent servant or chowkidar at that time but however, Kamla was part-time domestic helper. She was working for the last 15 years. She was residing in a room taken on rent in the Sukhdev Vihar. Her husband was residing with her occasionally. I do not know name of her village. (Vol. She had told me but due to my age I have forgotten the same).

I retired on 28.02.1997. It is correct that Kamla was residing in the jhuggi of Sukhdev Vihar. It is correct that in my presence no inquiries were made from Kamla and her husband not their statement was recorded in my presence. The tenant has vacated my premises before I discharge from hospital. I do not know whether inquiries were made by the police from my tenant in my presence. At the time of incident, I was using spectacles occasionally as I was having long sight (dur ki nazar kamzor thi). At

29 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 present I use the spectacles whenever I have to do some work of near distant. At present I am not wearing contact lenses. It is correct that I did not receive injury on my head and I received injury on my right side of forehead. I cannot say whether there was any stitching on the forehead or not but there was a bandage. I do not remember the number of lenses which I was using at that time.

The Counsel wants to contradict the witness with her statement Ex.PW17/A that in the same there is no description about the clothes and physique of the boys. (it will be looked by the court during the arguments as the witness is being recorded through video- conferencing). It is wrong to suggest that police did not take any statement from me and my signatures were taken on a blank paper. I never visited police station in respect of this case. I was shifted from Trauma Center to Moolchand after 20 days. I was discharged from Moolchand hospital on 24 оr 25.12.2008. I did not go to police after 25.12.2008. Police have not met me after 25.12.2008 till I left India. I do not remember how many times police met me while I was in Trauma Center. Perhaps, once or twice they met me. During those visits inquiries were made from me about the manner of the incident and the assailants. I do not remember the date when I regained my consciousness. As far as I remember police did not come to me while I was in Moolchand Hospital.

I do not know the name of chowkidar as it was kept by my son after the incident. It is wrong to suggest that the boy who has been identified by

30 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 me today i.e. Raj Kumar was not involved in the incident or that I have been shown the photographs by the police.

The co-assailants were calling him "Bhima aur maar, bhima aur maar to him". It is wrong to suggest that my counsel has sent photograph of Bhima to me and after seeing him I am identifying him today. It is wrong to suggest that my counsel has tutored me on telephone and upon tutoring I am deposing today or that copy of the statements has been sent to me and after going through the same I have deposed today. It is wrong to suggest that the dosier of Bhima with the police has been sent to me by the counsel. It is wrong to suggest that Bhima was not involved in the incident occurred in the intervening night of 2nd and 3rd November, 2008 or that I am naming him at the instance of police.

Dated: 8th May, 2017.” (Emphasis supplied)

36. Based upon the testimony, it is clear that the

witness Smt. Indra Prabha Gulati (PW-18) had

shifted to the United States of America immediately

after the incident, and her statement came to be

recorded through video conferencing on 8th May,

2017, i.e., after a gap of eight and a half years from

the occurrence. She stated that out of the five

assailants who had entered the house, one or two

31 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 went towards the kitchen, while four entered through

the drawing room door. They were armed with a

chheni, screwdriver, and knife, and demanded the

keys from her husband. Upon his request for some

time, one of the assailants, who was carrying an iron

rod and a chheni, inflicted a blow on the head of her

husband, who collapsed. She too was given a blow,

though she could not recollect as to who had inflicted

the injury. She further stated that she remained

admitted in Moolchand Hospital for about one month

and ten days. She categorically asserted that she

never saw the assailants thereafter and that she

neither met the police nor did she go to the Patiala

House Courts after being discharged.

37. The Public Prosecutor requested the witness to

identify the accused on the video display and from

amongst the accused present in the dock, who were

shown to the witness, she identified the accused-

32 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 appellant as the assailant who was armed with a

chheni and a rod and who had inflicted blows upon

her husband.

38. The witness further stated that she could

remember the face of only one accused, as she had

become unconscious, and thus she was unable to

identify any of the other assailants who were

presented for identification. The learned Public

Prosecutor sought permission of the Court to cross-

examine the witness on the ground that she was not

narrating complete facts disclosed during

investigation. However, in response to the

suggestions of the Public Prosecutor, she gave

discrepant answers.

39. To a material suggestion, the witness replied: “I

did not go to Patiala House Court on 26.12.2008” and

volunteered that her son had gone to the Court as

she was unwell. She denied the suggestion that she

33 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 had identified four boys, namely Raj Kumar, Ranbir,

Jawahar, and Naeem @ Mota, in the Patiala House

Court and affirmed to the police that they were the

assailants who inflicted blows on her husband and

looted cash and jewellery from the house.

40. In her cross-examination, the witness stated

that she had left India on 27th December, 2008. She

admitted that she could not recollect whether her

statement had been recorded in the manner she had

spoken. She volunteered that owing to the assault,

she became unconscious and was not fully fit. She

further stated that the accused-appellant Raj Kumar

was wearing a black shirt, but she could not recollect

the clothes of the other assailants.

41. Learned defense counsel sought to confront and

contradict the witness with reference to her previous

statement21 under Section 161 CrPC on the aspect

21 Exh PW-17/A.

34 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 that there was no description of the clothes or

physique of the assailants in such statement. The

trial Court observed that the effect of such

omission/improvement would be considered at the

stage of final arguments, since the witness was being

examined through video conferencing. The witness

further stated that she was discharged from

Moolchand Hospital on 24th/25th December, 2008,

and that she did not go to the police after 25th

December, 2008. She was confronted with a

pertinent suggestion that the police had shown her

the photographs of Raj Kumar and that her counsel

had also seen the photograph and tutored her for

identifying the appellant, which she denied.

42. We must take note of and resolve a very

important feature being a procedural irregularity

which has arisen in this case. As would be evident

from the discussion made hereinabove, the evidence

35 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 of the star prosecution witness Indra Prabha Gulati

(PW-18) was recorded through video conferencing

because she had in the intervening period shifted to

Canada.

43. During the course of cross-examination, the

defence tried to confront the witness (PW-18) with

her previous statement so as to elicit a

contradiction/highlight an omission. However, the

trial Court observed that this objection would be

considered at the time of final adjudication because

the witness (PW-18) was not present before the Court

and the document being the previous statement in

writing could not be shown to her (supra).

44. However, on going through the trial Court’s

judgment, we do not find any discussion made

regarding this pertinent objection by the defence.

45. The Evidence Act/ Bharatiya Sakshya

Adhiniyam, 2023 provide the procedure for evidence

36 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 as to the matters in writing and cross-examination as

to previous statements in writing. Section 147 of the

BSA (144 of the Indian Evidence Act and Section 148

of the BSA (Section 145 of the Indian Evidence Act)

are reproduced hereinbelow for the sake of

convenience: -

“147. Evidence as to matters in writing.—Any witness may be asked, while under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it. Explanation.— A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant fact.

148. Cross-examination as to previous statements in writing.—A witness may be cross-examined as to previous

37 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

46. A plain reading of the above provisions would

make it clear that wherever questions are required to

be put as to the matters in writing/previous

statements in writing, the attention of the witness

must be drawn to the document/statement itself.

Thus, a question would arise as to how this

procedure would be followed in cases where the

evidence of the witness is being recorded over video

conferencing.

47. In this age of advancement of technology,

instances are galore where, the evidence of witnesses

are being recorded over video conferencing. In such

circumstances, none of the parties should be put to

38 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 a dis-advantage merely because the witness is not in

attendance before the Court, and the

document/previous statement in writing with which

such witness is sought to be confronted, cannot be

shown/put to him.

48. Therefore, we hereby clarify and direct that in

every case where, it is proposed to record the

statement of a witness over video conferencing and

any previous written statement of such witness or a

matter in writing is available and the party concerned

is desirous of confronting the witness with such

previous statement/matter in writing, the trial Court

shall ensure that a copy of the statement/document

is transmitted to the witness through electronic

transmission mode and the procedure provided

under Section 147 and Section 148 of the Bharatiya

Sakshya Adhiniyam (corresponding Section 144 and

Section 145 of the Evidence Act) is followed in the

39 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 letter and spirit, so as to safeguard the fairness and

integrity of the trial.

49. This direction is being issued with a view to

avoid procedural irregularities and to prevent

disadvantage to any party before the Court, and also

to uphold the principles of fair trial, effective cross-

examination, and proper appreciation of evidence.

50. From the statement of the witness, the following

material facts emerge:

(a) She identified the accused-appellant in Court

while being examined through video

conferencing, nearly eight and a half years after

the incident.

(b) She admitted that she had been discharged

from Moolchand Hospital on 24th or 25th

December, 2008.

(c) She used to wear spectacles as her distance

vision was weak. At the time of dock

40 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 identification, the witness was not wearing

spectacles.

(d) Not even a bare suggestion was put to her by

the Public Prosecutor that she had been taken

to the police station or jail for TIP proceedings.

Most material is the fact that the witness

emphatically denied the suggestion of the

Public Prosecutor that she had gone to the

Court on 26th December, 2008, and identified

the assailants.

Identification in Court after delay – Unsafe and Improbable

51. It is trite that the evidence of an eye-witness

must be of sterling quality and unimpeachable

character. It should not only inspire the confidence

of the Court but must also be of such a nature that

is acceptable at its face value.

41 Crl. Appeal@ SLP (Crl.) No(s). 697/2024

52. We may note that the possibility of identification

of the accused-appellant by Smt. Indra Prabha Gulati

(PW-18) in Court, after a lapse of nearly eight and a

half years from the incident, is extremely unlikely. In

her testimony, the witness candidly admitted that her

distance vision was weak and that she could not see

objects at a distance without spectacles. It is also

borne out from the record that even at the time of the

incident, she was aged about 73 years and was

infirm. She was not wearing spectacles at the time of

her deposition via video conferencing. In this

background, her purported identification of the

assailant after such a long lapse of time, that too over

video conferencing, does not inspire confidence.

53. Furthermore, when a suggestion was put to the

witness by the Public Prosecutor in cross-

examination as to whether she had gone to the

Patiala House Courts for identifying the four

42 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 assailants, the witness emphatically denied the

same.

54. In her cross-examination, the witness Smt.

Indra Prabha Gulati (PW-18) stated that the accused-

appellant Raj Kumar @ Bheema was wearing a black-

coloured shirt, which is an improvement introduced

for the first time after nearly eight and a half years.

This appears to be one of the probable reasons for her

identification of the accused-appellant. No identifying

feature of the assailants was disclosed in her

previous statement22 recorded under Section 161

CrPC, wherein no physical description of the accused

persons or clothes worn by them at the time of the

incident was mentioned. Such an embellishment

casts a serious doubt on the reliability of her dock

identification and is suggestive of a clear attempt to

fill critical lacunae in the prosecution case.

22 Exh. PW-17/A.

43 Crl. Appeal@ SLP (Crl.) No(s). 697/2024

55. In assessing the credibility of a witness, the

testimony must inspire confidence in the judicial

mind, and omissions, improvements, or

contradictions touching the core of the prosecution

version inevitably undermine such assurance. This

Court has consistently held that minor discrepancies

are not fatal, but material improvements that go to

the root of the matter essentially erode the credibility

of the witness.

56. In view of the aforesaid glaring facts emerging

from the testimony of Smt. Indra Prabha Gulati (PW-

18), it would be unsafe to place reliance on her

evidence regarding the identification of the accused.

Once her identification of the accused-appellant in

Court is discarded, no substantive evidence remains

on record to connect the accused with the crime.

44 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 B. Glaring Infirmities in the Test Identification Proceedings

57. The trial Court, as well as the High Court, drew

an adverse inference against the accused-appellant

on the ground that he declined to participate in the

TIP. However, the fact remains that the very sanctity

of the TIP stands under a serious cloud of doubt when

it is manifest that Smt. Indra Prabha Gulati (PW-18)

did not go for participating in any such identification

parade.

58. In this context, it would be essential to advert to

the prosecution case regarding the effort made by the

Investigating Officer to get the appellant subjected to

the TIP.

59. It is the case of the prosecution that the accused

was arrested on 21st November, 2008. On perusal of

the arrest memo23, it is apparent that there is no

23 Exh. PW- 14/B.

45 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 mention in the document that the face of the accused

was kept baparda (muffled) after his arrest. A doubt

on the prosecution case on identification thus arises

from this very stage.

60. The evidence of the first Investigating Officer

Shri S.K. Sharma (PW-15), who effected the arrest of

the accused-appellant on 21st November, 2008, has

been carefully examined. The Investigating Officer

(PW-15), though, stated in his deposition that at the

time of the arrest of the accused-appellant Raj Kumar

@ Bheema, his face was kept muffled. However, this

assertion stands contradicted by the arrest memo,

which contains no such recital.

61. The Investigating Officer further stated that the

accused-appellant was interrogated and, in

furtherance thereof, recoveries were affected vide

memoranda Exh. PW-14/D, Exh. PW-14/O, Exh.

PW-14/P, and Exh. PW-15/H. A careful scrutiny of

46 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 these memoranda would show that there is no

reference therein that the face of the accused was

muffled at the time of the recovery proceedings. This

significant omission lends support to the plea taken

by the accused-appellant during the TIP and in his

statement under Section 313 CrPC that he had

already been shown to the witness, and his

photographs had been taken by the Investigating

Officer, which were later used for dock identification.

62. It is trite that where the witnesses have had an

opportunity to see the accused prior to the holding of

the TIP, the evidentiary worth of such proceedings

stands considerably diminished. It is the duty of the

prosecution to establish beyond doubt that right from

the time of arrest, the accused was kept baparda to

rule out the possibility of his face being seen before

the identification proceedings are conducted. If the

witnesses have had any opportunity to see the

47 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 accused before the TIP – whether physically or

through photographs – the credibility and sanctity of

the identification proceedings would stand seriously

compromised.

63. Another material infirmity in the prosecution

case relates to the procedural aspects of the TIP.

From the evidence of Smt. Indra Prabha Gulati (PW-

18), it is evident that she categorically stated that she

was discharged from Moolchand Hospital on

24th/25th December, 2008. She did not utter even a

single word to suggest that she had been taken to

prison or any Court for participating in any such

proceedings. Further, the witness was emphatic in

stating that neither did she meet the police nor did

she visit the Patiala House Courts after being

discharged from the hospital. It is also pertinent to

note that no document pertaining to the treatment or

discharge of Smt. Indra Prabha Gulati (PW-18) was

48 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 proved on record by the prosecution. Consequently,

a grave doubt arises regarding the very possibility of

any TIP proceedings having been conducted in the

presence of the witness Smt. Indra Prabha Gulati

(PW-18) on 24th December, 2008.

64. This conclusion gets support from the evidence

of the ACMM, Smt. Surya Malik Grover (PW-12), who,

in her deposition, only stated that the Investigating

Officer informed her that the identifying witness was

standing outside. Significantly, there is no signature

of the identifying witness Smt. Indra Prabha Gulati

(PW-18) on any of the documents prepared in

connection with the TIP.

65. In this view of the matter, the prosecution

version that efforts made to subject the accused to

TIP failed on account of their refusal, stands refuted.

While the refusal of the appellant to participate in the

TIP may, prima facie, invite an adverse inference,

49 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 mere such inference cannot support the theory of

identification when the very authenticity of the TIP is

under a serious cloud of doubt. When it stands

established from the record that the TIP attempted by

the prosecution was fundamentally flawed, and a

doubt is created that the identifying witness herself

may not even have been present to participate

therein, the very foundation of the identification

proceedings falls flat to the ground.

66. Furthermore, in such circumstances and

considering the significant improvements made by

Indra Prabha Gulati (PW-18) from her previous police

statement on the aspect of identifying features (black

shirt), the dock identification of the accused-

appellant made by the injured witness, Smt. Indra

Prabha Gulati (PW-18), during the course of her

evidence through video-link, recorded nearly eight

50 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 and a half years after the incident would be unsafe to

rely upon.

C. Recoveries and Non-identification of Articles

67. In addition to the above, the prosecution placed

reliance on the alleged recoveries of looted articles at

the instance of the accused. However, it is pertinent

to note that Smt. Indra Prabha Gulati (PW-18) was

not made to identify the said articles during her

testimony. Furthermore, Vivek Gulati, son of Smt.

Indra Prabha Gulati (PW-18), who is stated to have

identified the articles in the TIP, was not examined

during the trial. Consequently, the alleged recoveries

lose their evidentiary worth and cannot be relied

upon, as there is no credible proof that they are the

looted articles.

68. The prosecution has tried to claim that the

accused-appellant could not offer any explanation for

51 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 the presence of human blood on the pant recovered

at his instance,24 which he had allegedly worn at the

time of the incident, which circumstance is

incriminating. However, indisputably, the blood

stains on the pant could not be matched with the

blood sample lifted from the scene of occurrence or

with the blood group of the deceased or the injured

victim, as the Serology report25 recorded “no reaction”

in respect of blood grouping for Exh. 20 (Pant). On

this count alone, guilt cannot be fastened upon the

appellant, as the recovery by itself is not sufficient to

prove the case beyond reasonable doubt. The mere

availability of human blood on an article is not

sufficient unless it is further corroborated by a

matching blood group with that of the deceased.

24 Exh. PW-14/D. 25 Exh. 24/B.

52 Crl. Appeal@ SLP (Crl.) No(s). 697/2024

69. Once the identification of the accused by Smt.

Indra Prabha Gulati (PW-18) is discarded, and the

recovery of articles cannot be connected either with

the crime or with the accused, no substantive or

credible evidence remains on record to link the

accused with the offence.

CONCLUSION

70. In view of the discussion made hereinabove, the

impugned judgments do not stand to scrutiny. The

appeal is, thus, allowed.

71. The judgment dated 29th September, 2022,

passed by the High Court, as well as the judgment of

conviction dated 12th February, 2021, and the order

of sentence dated 20th February, 2021, passed by the

trial Court, are hereby set aside.

72. The accused-appellant is acquitted of the

charges. He has remained in custody for almost 15

53 Crl. Appeal@ SLP (Crl.) No(s). 697/2024 and a half years and shall be released from prison

forthwith, if not wanted in any other case.

73. Pending application(s), if any, shall stand

disposed of.

….……………………J. (VIKRAM NATH)

...…………………….J. (SANDEEP MEHTA) NEW DELHI;

NOVEMBER 17, 2025.

54 Crl. Appeal@ SLP (Crl.) No(s). 697/2024