Full Text
HIGH COURT OF DELHI
Date of Decision: 28.08.2025
VIJAY .....Appellant
Through: Mr. Tanveer Ahmed, Sr. Adv.
Mohd. Imran Ahmed, Advs.
Through: Mr. Ritesh Kumar Bahri, APP
Narela.
HON'BLE MS. JUSTICE SHALINDER KAUR SHALINDER KAUR, J (ORAL)
JUDGMENT
1. The present application under Section 430 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has been filed by the applicant/appellant, seeking Suspension of Sentence in FIR No.775/2014 dated 17.06.2014 for the offences punishable under Sections 302, 307, 365 and 34 of the Indian Penal Code, 1860 (IPC) and Section 25 and 27 of the Arms Act, 1959 (Subject FIR) registered at Police Station Narela.
2. The prosecution case, as it emerges from the record, is that on 17.06.2014 at about 7:55 a.m., DD No. 10-A was recorded at P.S. Narela regarding an incident of firing near Lampur Road, Narela, in which one person was stated to have sustained a gun-shot injury. On receipt of the information, SI Amit along with Ct. Lilu Ram reached the spot. There they met the complainant, Ramesh Chand Garg, who stated that at about 6:10 a.m. he had gone to his shop bearing NO. 1973/2B, Lampur Road, Narela, and while goods were being unloaded at about 7:40 a.m., a white Maruti Eeco Car stopped near his shop. Two young men alighted, pointed a pistol at him and asked him to sit inside the Eeco. On his refusal, both attempted to force him into the vehicle; one shot was fired towards the ground and another in his direction, which he escaped. In the meantime, a third associate got down from the Eeco, caught hold of him from behind and all three tried to push him into the vehicle. The boy holding the pistol then fired again with the intention to shoot him; the bullet, however, passed close to the complainant’s head and struck the associate who had held him from behind. That associate fell on the ground, while the other assailants fled in the Eeco.
3. At the scene, three empty cartridges and one live cartridge were recovered. The injured person was shifted to SRHC Hospital by PCR, where he was declared “brought dead”. On enquiry, the deceased was identified as Praveen, s/o Mahabir, resident of Swatantra Nagar, Narela. On the basis of the complainant’s statement, the Subject FIR was registered and investigation commenced.
4. During the course of investigation, the Maruti Eeco vehicle was traced and several suspects were identified. On 26.06.2014, co-accused Arun and Parveen (s/o Dharam Pal) were arrested. Their disclosure statements, inter alia, referred to a plan allegedly conceived on the previous evening for abducting the complainant for ransom.
5. On 14.08.2014, the applicant/appellant and co-accused Jaspreet Singh @ Raja were apprehended. From the appellant’s possession, a country-made pistol with live cartridges in its magazine was recovered, for which a seizure memo was prepared.
6. Test Identification Proceedings (TIP) were thereafter conducted. The complainant did not identify the applicant/appellant in the TIP held on 25.08.2014; however, on the same day, a supplementary statement under Section 161 of the CrPC was recorded to the effect that he had hesitated during TIP and that the applicant/appellant was the person who had fired at him.
7. The case property, including the pistol allegedly recovered from the appellant, the bullet recovered from the body of the deceased and the three fired cartridge cases lifted from the spot, was sent to the Forensic Science Laboratory. The FSL report opined that the bullet and the fired cartridge cases had been fired through the said pistol.
8. Upon completion of the investigation, a Charge-Sheet was filed on 22.09.2014.
9. By the Order on Charge dated 03.06.2015, charges were framed against the applicant/appellant for the offences under Section 120B of the IPC, Sections 365 and 511 read with Section 120B of the IPC, Sections 307 and 34 of the IPC, Section 302 and 34 of the IPC and Sections 25 and 27 of the Arms Act.
10. Upon conclusion of trial, by Judgment dated 23.05.2023, the learned Additional Sessions Judge (ASJ) held the applicant/appellant guilty of the offence punishable under Section 302 of the IPC and of offences under Sections 25 and 27 of the Arms Act. Vide the Order on Sentence dated 29.08.2023, he was sentenced to imprisonment for life with a fine of ₹25,000/- for the offence under Section 302 IPC (with a default sentence of simple imprisonment for two months), and to rigorous imprisonment for five years each for the offences under Sections 25 and 27 of the Arms Act, with all sentences to run concurrently. Co-accused Arun and Amit @ Vicky were convicted under Section 120B of the IPC and sentenced to the period already undergone along with fine; Jaspreet Singh @ Raja and Parveen (s/o Dharam Pal) were acquitted.
11. The learned Senior Counsel for the applicant/appellant, Mr. Tanveer Ahmed Mir, submitted that the present case falls squarely within the parameters governing Suspension of Sentence pending appeal, as delineated by the Supreme Court in Om Prakash Sahni v. Jai Shankar Choudhary, (2023) 6 SCC 123. It is urged that substantial and arguable grounds arise on the record which, upon reappreciation, create a distinct possibility of Acquittal as the case of prosecution doesn’t touch the threshold of proof beyond reasonable doubt.
12. The learned Senior Counsel submitted that there is a complete absence of an independent testimony placing the applicant/appellant at the crime scene. Save and except the complainant (PW-11), the prosecution has not produced any independent witness to connect the applicant/appellant with the occurrence. It has further not been proved by the prosecution that the applicant/appellant was the person who had fired the shot at the victim, thus he cannot be convicted, even if the pistol has been recovered from his possession. To draw sustenance, the learned Senior Counsel placed reliance on the decision of the Apex Court in Prem Singh vs State of (N.C.T) Delhi.
13. Further, he submitted, PW-11 failed to identify the applicant/appellant in the TIP held on 25.08.2014, as well as failed to identify him in Court during trial.
14. It is submitted that the prosecution version rests materially on an alleged recovery of a country-made pistol with live cartridges from the applicant/appellant at the time of his arrest on 14.08.2014, nearly two months after the incident in question.
15. The learned Senior Counsel submitted that neither the arrest memo nor the personal search memo records the recovery of any firearm and the personal search memo notes that nothing was recovered. This omission, it is urged, is not a mere irregularity but a material contradiction that questions the recovery. Further, on the aspect of recovery of the said weapon, the learned Senior Counsel also submitted that no sane person would carry the gun alleged to be a weapon of offence in a criminal case with him even after 2 months of incident.
16. Moreso, the alleged recovery was made near the MCD toll, yet no independent witness joined the proceedings, despite the MCD toll being a busy place. Since there is a constant passing of vehicles, the probability of availability of public witnesses would also be doubled. Also, no CCTV footage for the toll plaza was seized.
17. It is submitted that the learned Trial Court has, in effect, inverted the burden by invoking Section 106 of the Indian Evidence Act, 1872 against the applicant/appellant. Mr. Mir submitted that Section 106 does not absolve the prosecution of proving its case beyond reasonable doubt; at the highest, it operates where foundational facts are proved and a specific fact lies within the special knowledge of the accused. In the present matter, with identity itself in serious doubt and the recovery under a cloud, invocation of Section 106, it is submitted, was misplaced.
18. This, the learned Senior Counsel submitted does not prove that the applicant/appellant fired the shot, even if the possession of the gun was proved. Additionally, he submitted that the bullets recovered with the gun were of a 9mm calibre one, however, the bullet recovered from the body of the victim was of 7.65mm. Thus, the bullet could not have been fired from the same gun. Reliance was placed on the decision in Anees vs. State Govt. of NCT 2024 SCC OnLine SC 757.
19. It is lastly pointed out that an earlier application for suspension of sentence was withdrawn on 22.08.2024; the present application is predicated on prolonged incarceration, pendency of the appeal, and the merit of the case as delineated above. He submitted that the appellant has deep roots in society and there is no material to suggest flight risk or likelihood of tampering with evidence/witnesses. He has suffered incarceration for a period of about 04 years and no other criminal case is pending against him. He submitted, the applicant/appellant was on bail for a considerable period of time during trial, however, he never misused the liberty of bail granted to him.
20. The learned Senior Counsel relied on the following decisions in support of his contentions: Hanumant vs. State of M.P. (1952) 2 SCC 71 Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116 Boby vs State of Kerela (2023) SCC OnLine SC 50 Shambu Nath Mehra vs. State of Ajmer (1956) SCC OnLine SC 27 Maulana Mohammed Amir Rashadi vs. State of Uttar Pradesh and Anr. (2012) 2 SCC 382
21. Opposing the Suspension of Sentence, Mr. Ritesh Kumar Bahri, the learned APP for the State submitted that out of the six accused, three accused have been convicted in the present case. He submitted that the PW11 (complainant) is the eye witness who has supported the case of the prosecution with respect to the entire incident of inflicting a gunshot injury on accomplice Praveen. It is submitted that the gunshot injury intended to be caused to the complainant, the bullet missed and instead injured the deceased Praveen.
22. The learned APP, while relying upon scientific evidence, submitted that the country-made pistol which was recovered at the instance of the applicant/appellant, was improvised and the bullet recovered from the body of the victim and the empty cartridge recovered from the crime scene were fired from the pistol recovered from the instance of the applicant/appellant.
23. He submitted even though the eye witness failed to identify the applicant/appellant still the prosecution is able to prove its case beyond reasonable doubt on the basis of circumstances of the case.
24. The learned APP submitted that the conspiracy has to be viewed holistically and the Eeco vehicle used to facilitate the crime in question was last seen by PW-2 and PW-4. The said vehicle was abandoned by the accused; however, it was recovered at a later stage. It was further submitted that the onus under Section 106 of the Evidence Act is on the applicant/appellant and not on the prosecution. He submitted, the recovery of the gun from the possession of applicant/appellant has also been proved.
25. The learned APP submitted that the applicant/appellant does not have clean antecedents, he is involved in multiple criminal cases. The first being in FIR No.920/2016 for the offences under Section 394,397,365,506 and 34 of the IPC, the second being FIR No.438/2020 for the offences under Section 323,341,506 and 34 of the IPC and the third being FIR No.531/2006 for the offences under Section 452,323 and 34 of the IPC, albeit, excluding the present case.. This previous criminal history, he strenuously submitted carries due weightage post-conviction.
26. In the totality of the circumstances, he submitted, the sentence of the applicant/appellant ought not to be suspended and the application deserves dismissal, as the applicant/appellant would be a threat to society if released on bail.
27. In rebuttal, the learned Senior Counsel submitted that the entire chain of circumstantial evidence is broken, thus giving benefit of Om Prakash (supra), the sentence of applicant/appellant be suspended as in all probability, the appellant would be acquitted at the time of disposal of appeal.
28. Having heard the arguments on behalf of the parties and perused the record, we may begin by noting that it is the settled law that at the time of suspension of sentence, the Court is not required to meticulously appreciate the evidence recorded during the trial.
29. No doubt there may be major discrepancies and contradictions appearing in the prosecution case, from which emerges a likelihood of acquittal of a convict at the time of disposal of the appeal. These factors may be considered by the Court at the time of the suspension of sentence as well. The Court may also look into other relevant facts such as the antecedents of the convict and possibility to commit a crime when released on bail.
30. The learned Senior Counsel has vociferously argued before us that in the absence of the identity of the applicant/appellant having been established by the prosecution, the charge under Section 302 of the IPC cannot be proved. Moreso, the recovery of the weapon of offence is not believable and the entire case of the prosecution does not inspire confidence, thus entitling the applicant/appellant for suspension of sentence.
31. On the other hand, the learned APP has relied on the past conduct of the applicant/appellant and submitted that during the course of trial, when the applicant/appellant was enlarged on bail, he got involved in another case in the year 2016 when FIR No. 920/2016 under Section 394,397,365,506 and 34 IPC was registered against him. No doubt, he submitted, the applicant/appellant has been acquitted in the said criminal case, but the acquittal was a result of a material witness turning hostile and not supporting the case of the prosecution.
32. He submitted that in the said case also, the offence qua abduction is somewhat of similar nature, but in the present case, the offence committed is graver, which resulted in the murder of Praveen. He submitted that the possibility cannot be ruled out that the complainant in the said case turned hostile regarding identity of applicant/appellant due to the fear of applicant/appellant.
33. The learned APP also stressed on the fact that one more FIR being FIR No. 438/2020 under Sections 323,341,506 and 34 of the IPC is pending against the applicant/appellant, therefore, it is evident that in case the applicant/appellant, if enlarged on bail, would indulge in committing further criminal offences.
34. The emphasis on the evidence, as contended by the learned Senior Counsel for the applicant/appellant with respect to the involvement of the convict under Section 302 of the IPC, would be appreciated at the time of disposal of his appeal. Nonetheless, apparently, after being enlarged on bail, in the present criminal case in the year 2016, the applicant/appellant was arrested in another case involving similar offence of abduction apart from other offences resulting in his conviction. Undoubtedly, the applicant/appellant has been acquitted in FIR No. 920/2016, however, much is owed to the fact that prime witness of the prosecution’s case had turned hostile.
35. In view of the above, the possibility of the applicant/appellant committing a crime cannot be ruled out, keeping in view involvement of the applicant/appellant in other criminal case.
36. Consequently, the present application seeking suspension of sentence is dismissed.
VIVEK CHAUDHARY, J SHALINDER KAUR, J AUGUST 28, 2025