Virender alias Bablu v. State NCT of Delhi

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 craniocerebral 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:

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:

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 Chief Statement in Cross- Examination PW-18 Satish Kumar ….In the year 2016, I was doing the business of finance at B-340, near Mother Dairy, Shahbad Dairy, Delhi. The daughter of my real uncle (chacha) got married with Vinay Singh S/o Sh. Wajir Singh R/o Flat no. 109, Pocket 12, Sector 21, Rohini, Delhi about one year back from the day of incident. I used to meet Vinay Singh after his marriage at his house as well as at his office situated at Sector 25, Rohini in the name of White House. xxx In the evening of 22.09.2016, I had gone from my office of Shahbad Dairy to the office of Vinay at Sector 25, Rohini. I parked my bike outside his office and met with Vinay Singh. After sometime thereafter, Vinay Singh asked me to go with him to his home and then we both left the office of Vinay Singh at about 7 pm. Vinay was on his own motorcycle whereas I was following him on my motorcycle. xxx At about 10/12 minutes later, when we reached near Maxfort School, Sector 23, Rohini at that time Vinay Singh was about 15/20 mts ahead of me on his motorcycle. In the meantime, one motorcycle make Passion Pro of Black color crossed me from my back in a fast speed on which two boys aged about 20/25 years were riding towards Vinay Singh side. The registration number …It is correct that I used to do the job of finance with cash only without using any cheque or other instrument in this regard. It is correct that I do not file income tax return. I was dealing the business of finance from my office which was situated at 340-B, Near Mother Dairy, Shahbad Dairy, Delhi. I used to run alone my finance business in Delhi. I do not remember the mobile number which I was carrying on that day. Nowadays, I am using mobile number 8168-3 xxx I was not having said mobile number with me on the day of incident. It is wrong to suggest that I was using the same mobile number at the time of incident also. xxx At the time of incident, I was not carrying any mobile phone with me. It is wrong to suggest that on 22.09.2016, I was keeping with me my personal mobile phone in working condition. xxx The visibility with sunlight was very low, but the street light was there near the spot 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. xxx 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. xxx At the spot, I made efforts to stop the vehicles who were passing from the said spot at that time, but after seeing the condition of Vinay Singh nobody agreed to accompany us to the hospital in their vehicle. In the meantime, one known of Vinay came there who also identified Vinay as his known one. With his help I had taken Vinay Singh to Brahma Shakti Hospital in a Green color Champion Vehicle. Doctors of the hospital examined Vinay Singh and declared him dead. xxx The known of Vinay Singh remained in the hospital and I left the hospital for going to my cousin sister's house and things were visible. Only few persons were passing by. I do not know whether any other person had seen the said incident at that time or not. xxx Friend of Vinay Singh get admitted him in the hospital. It is wrong to suggest that I never went to Brahm Shakti Hospital with injured Vinay Singh. I cannot tell the name of the Doctor who attended Vinay Singh in the hospital. I had stated residential address of Vinay Singh to the Doctor. Brahm Shakti Hospital is situated at Pooth. xxx We reached hospital in 5-10 minutes after putting the injured in vehicle. Incident took place at about 7.15 pm. We reached hospital around

7.35 to 7.45 pm. On our way to hospital traffic was normal. It is wrong to suggest that I did not accompany the injured to the hospital. I remained in the hospital for about half an hour and once doctor declared the deceased as dead, I left for my sister's house to tell her about the incident. No policeman had reached at the hospital till to inform her regarding the incident. After hearing the said shocking information, my sister became very nervous and shocked, so I had to 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… the time I remained in the hospital. My statement was not recorded by the police in the hospital.

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 Chief Statement in Cross- Examination PW-12 Rajan Walia …I am doing private job in Libaspur. On 22.9.17 at about 7.00–7.30 PM I was bringing my father home from his shop in Pooth Kalan. On way I saw a large crowd having collected at Sector-23, Rohini near …As I do not now remember I cannot say if the other person who had accompanied me to hospital was named Satish. I have no knowledge about particulars of its driver. Only one motorcycle was seen by me at the spot. It is correct that the injured was unconscious. Maxfort School. When I went there I saw Vinay @ Doctor lying there in injured condition. He was bleeding. I 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. I too had gone to Brahm Shakti Hospital. He was declared dead in the hospital. I then went to leave my father at home and then went to PS Begumpur as I was directed by police to reach there. Police had interrogated me. I do not know anything else. I have nothing more to say. Motorcycle of Vinay was lying near him. Vinay was bleeding from his head. His motorcycle was of black colour. I knew Vinay being my friend. It is incorrect to suggest that after stopping at the spot I had gone to leave my father at home or that thereafter I had remained at home. There was only one gate of the hospital and I entered through it. It is correct that except for Vinay I did not know anyone else from the crowd which had collected there. The Champion vehicle had been got stopped by the crowd. It was not there when I firstly reached the spot. It is correct that my statement was recorded by police in the PS. I had initially remained at the spot for about 10 minutes and it took me around 15-20 minutes in reaching the 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 Khushi Ram …..I had gone to Sector 25 to see a property at around 9 PM. I left my house at 8 PM. The description of the property is not 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

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:

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